Saturday, June 25, 2011

Odgers on the Common Law -- self-defense

Odgers was active around the turn of the century (19th to 20th), not around the time of the Founding, but since he wrote on the Common Law tradition in England, I think his writing effectively corroborates what others wrote on the topic of the right to self-defense:

"Under this term [public rights] we group those absolute rights which every one in the realm possesses..."

"Ancillary to the right of personal security is the right of self-defence.  Every man may repel unlawful force by force; and this whether such unlawful force be directed against himself or against his wife, child, or servant, and probably if it be directed against any weak or helpless stranger.

"Again, every one who is inside a house is entitled to use force to prevent the forcible entry into that house of any one who has no right to enter it.  'Every man's house is his castle.'  This right is not confined to the occupier of the house or even to his family or servants.  Any stranger, who is lawfully present in the house, may exercise this right."

...

"We have already spoken of the right of self-defence.  Whenever it is necessary for a person in defence of himself, wife, child, or any one under his protection to kill the assailant, no crime is committed.  But the means adopted to repel an attack must in every case be reasonable and commensurate with the force employed by the assailant."

...

"Self-defence.  It is also a defence if the assault complained of was committed by the accused in defenc eof himself, his wife, child or any one under his protection.  This right has already been discussed.  But the acts adopted to repel an attack must in every case be reasonable and commensurate with the force employed by the assailant and must not be continued after he has abandoned his attack.  Some assaults may also be justified on the ground that they were committed in defence of  a man's property; but this right is much more limited than the right of self-defence."

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