14 Conn. 1 | Conn. | 1840
This is not a case in which the destruction of the plaintiff’s property resulted from acts done by the de
By the settled principles of the English law, the degree of force, which may be employed in defending one’s person or property, when present, is well defined, and admits of no controversy. It is entirely and exclusively defensive. If a man makes an assault on the person of another ; or enters his house and refuses to go out, when ordered; or enters on his land ; or in any way attempts a mere trespass on his property real or personal, by force; so much force as is necessary to to repel or prevent injury, or remove the trespasser, may be employed. There is no doubt, that if A is trespassing on the land of B, the latter, when present, by himself or his servants, may, after notice to depart, use such reasonable force as is necessary for his removal. He may use like force to expel another’s beast from his land, or he may seize and impound it. But he has no right, by the English law or our own, when present, in such a case, to destroy life, or inflict permanent injury, or use greater force than is necessary for removal or prevention. This is admitted. The right to kill a bull or other furious beast-from which one’s person is in present danger ; or a dog chasing sheep or other animals of property, so that they are exposed to harm ; or a dog seen at large, which is accustomed to bite mankind ; is an exception to this rule. Wadhurst v. Damme, Cro. Jac. 45. 1 Saund. 84. note (3.) Leonard v. Williams, 9 Johns. Rep. 233. Putnam v. Payne, 13 Johns. Rep. 312. 1 Freem. 347.
This is a summary of the principles applied, by the English jurists, in support of the rule as held in that country.
In Connecticut, this question has not, to our knowledge, been decided. It is certainly of very great importance. Upon the principles adopted in England, no distinction is made between the various kinds of property, which a party
But we will consider, more particularly, some of the chief grounds on which this severe rule is held, in the English courts, to be sustained by legal principles.
It is said to be “absolutely necessary for the protection of property in the absence of the owner.”
If this be true at all, it must be in relation to that kind of property only, which, in England, is the chief object of this sort of protection. It has never been adopted in this state ; and the ordinary protection of fences as required by statute, and redress by impounding and suits at law, have been found sufficiently effectual for almost every sort of intrusion on real estate. In this very case, an action for damages would probably have prevented trespasses in future. But if further provision is necessary in regard to winged animals, and others
That a man shall not do indirectly wrhat he cannot do directly, is an acknowledged maxim of the English law and of our own. The reasoning which excludes its application to this case, is very inconclusive. The argument is, that the trespasser, having full knowledge of the danger, goes into it voluntarily, aijd personally inflicts the injury on himself. It is not done, even indirectly, by the owner of the enclosure.
So far as this applies to taking human life, it proves too much. The man who should furnish suicides with the means of self-destruction, would justly be considered as partaking of the crime of homicide, however voluntarily or rashly they were bent on its perpetration. To prevent the commission of a felony, the law of necessity applies ; and on that ground, a man, in such a case, may, when present, justify personal violence, which would not be admissible, in the case of a simple trespass. The argument admits this, but attempts to make a distinction, on the ground, that he is not the agent who sets the spring-gun, but he who fires it off.
But what is the agency of the trespasser, in such a case ? Does he voluntarily pul! the wire of the spring-gun ? Is it his intention to be shot ? This question must be answered in the negative. It must be admitted, that his intention is to commit a simple trespass only, and he will, if possible, avoid the injury to which he is exposed. So far as his intentions are concerned, the discharge of the gun is accidental and against his will. He knew, indeed, that, by his own act, he was exposing himself to death ; but that catastrophe he meant, if possible, to avoid. But what was his intention who set the gun? It was to subject the trespasser to whatever injury he might suffer, if he trod on the vrire. Here is an agency accompanied with intention; and that intention is accomplished, if the event happens. This transaction, in the English view of it, does not differ from one which is admitted to be illegal. The owner of a hundred-acre field gives notice, that he shall be there, at a given time, with a loaded gun, and shall fire on
Much stress is laid, by the English judges, in various cases, upon the argument, that the trespasser incurs the evil which he suffers, by entering or permitting his creatures to enter on another’s land, with full knowledge of the impending injury; and of course, must attribute the consequences to his own voluntary act. Whatever he suffers, be it death itself, is of his own procurement.
Were this reasoning sound, it would supersede the necessity of complicated codes of criminal law. The punishment of death might justly be inflicted for every offence. The offender can always avoid the punishment, if he pleases; for no man is punished but for voluntary violations of known law. Such a code would be, on some accounts, more tolerable
It has been assumed, in the preceding remarks, that the common law of England is in favour of the right of the defendant to take the measures which he did to protect his land from the plaintiff’s fowls. It is true, that spring-guns and other destructive means have been immemorially used in that country. The particular grounds, however, upon which this assumption is made, are of very recent origin. It was never decided, by their courts, that the proprietor of land could vindicate himself for any injury to the person or property of another, by means of dangerous engines, until 1820, in the recent case of Ilott v. Wilkes, already cited. Three years before, the same question was agitated in the court of Common Pleas, and very elaborately debated, in Deane v. Clayton, 7 Taun. 489. That action was for the loss of the plaintiff’s dog, which was killed, by running against a dog-spear, while chasing a hare, on the defendant’s land. The spear was fixed to a tree, to destroy dogs and foxes, and protect the game. After great deliberation the judges were equally divided in opinion on the general question, as well as on some minor points involved in the case. In the course of those discussions, the learned counsel and judges thoroughly examined the authorities; and, although they derived arguments and inferences from decided cases, yet the main question was on all hands admitted to be new. As the court was equally divided, no judgment was rendered. The unanimous opinion of the King’s Bench in the case of Ilott v. Wilkes, is of binding authority in that kingdom. Except for the preservation of game, such engines appear to be little used in that country, and, for the same purpose, would be of no use in this. The opinions of those judges, who held that the law will not justify a man in causing injuries by such means, which he cannot inflict directly, with his own hands, are sustained by the settled principles of the common law.
We cannot justify the defendant in committing the comparatively small trespass for which the plaintiff complains, upon any principles which have been admitted in this state,
We advise that the judgment of the county court be affirmed.
Judgment affirmed.