Sunday, June 02, 2013

“This right of self defence carries with it all the means necessary for its exercise."

    “Having got a correct statement of the facts, as derived from the evidence, let us apply the law to them, and see if it is not clearly a case of self-defence. I read the following quotations from Blackstone, on personal security, and the redress of private wrongs.

"The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, and his reputation.

"Both the life and limbs of a man are of such high value in the estimation of the law of England, that it pardons even homicide, if committed se defende, or in order to preserve them. For whatever is done by a man to save either life or members, is looked upon as done upon the highest necessity and compulsion.

“Besides, those limbs and members that may be necessary to a man in order to defend himself, or annoy his enemy, the rest of his person is also entitled, by the same natural rights, to security from the corporeal insults of menaces, assaults, beating, and wounding, though such insults amount not to the destruction of life or member.

"Next to personal security, the law of England regards, asserts, and promises, the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation as inclination may direct, without imprisonment or restraint, by due. course of law. 

"The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relatives be forcibly attacked, in his person or property, it is lawful for him to repel force by force, and the breach of the peace which follows, is chargeable only upon him who began the affray. For the law in this case respects the passions of the human mind, and (when external violence is offered to a man himself, or to those whom be bears a near connection) makes it lawful for him to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process is by no means an adequate remedy for injuries accompanied with force, since it is impossible to say to what greater length of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self defence, therefore, as it is justly called the primary law of nature, so it is not. neither can it be, in fact, taken away by the law of society. In the English law. particularly, it is held an excuse for breaches of the peace, nay, even for homicide itself; but care must be taken that the resistance does not exceed the bounds of mere defence, and preservation, for then the defender would himself be the aggressor." 

    “Such then is the law of self-defence. It is the first law of nature, and pervades all its departments, animate and inanimate. Everything seems to have its natural enemy, and is furnished with its peculiar means of defence. The bark of the, tree, the rind of the fruit, and the cuticle of the vegetable, are all means of defence. And so in the animate world, every animal has its weapons for protection. Even to the serpent, that cursed, blasted creature, sentenced to crawl on its belly, and lick the dust, even to that creature, God left his venom and fang, when he pronounced his curse.

    “This right of self defence carries with it all the means necessary for its exercise. It must be used cautiously, but it gives me the right to beat, maim, or kill my opponent, not only to save my own life, but to save a limb, or any serious injury, whether it be actual or apparent. That life is not worth possessing that I have not the right to defend. If I had not this right, I would raise my own arm, take my own life, and hurl it back into the face of high heaven — a despised and worthless gift.

    “As to the amount of force I have a right to use, necessity is the only measure. If Matt. Ward should undertake to whip me, and I should kill him, I should be guilty of murder, for I could hold him with one hand. But there are other men that might undertake to beat me. Suppose a stout man should attack me, I strike him, and he would lick me five times worse. If I had a bludgeon, I might use it; but I have none. Must I stand and be beaten? Will any Kentucky man tell me to stand thaw? No; If I had no other weapon, I would out with my knife and cut his throat from ear to ear. The right of self-defence is nugatory, unless it carries with it all the means necessary for its exercise. Read your old musty law books! This is the criminal law in Kentucky; so acknowledged, and so administered. I have defended many criminals in my life, and this is the law wherever I have practiced.

    “Now take this law and apply it to this case. The law as I have declared it is the law of the land. Apply this law to the facts as I have adduced them from the evidence, and see if this can be called a crime of murder; and if it is not murder, it is not anything. The difference between murder and manslaughter is very slight, as shown by the books. When a man is driven as far as he can be, and then slays his adversary, it is self-defence. In this instance one of these men was powerful, very powerful, neighing one hundred and thirty-five pounds. I have seen such whip men of twice their weight. The other is a feeble invalid, in no condition to fight, goes expecting to ask a civil question and receive a civil answer, is refused an explanation, resents it in words, is seized, bent, pushed back, and at last, fainting and falling, he rids himself of his adversary, fires his pistol, and most unfortunately, the shot is fatal....”


(Thomas Francis Marshall, (June 7, 1801 – Sept. 22, 1864), was a nineteenth-century politician and lawyer from Kentucky. He was the nephew of U.S. Supreme Court Chief Justice John Marshall. And attended the 1830 Constitutional convention of Virginia, in order to observe the debates, which included his uncle John Marshall, John Randolph, James Madison, and James Monroe. He then pursued politics, being elected to the Kentucky House of Representatives in 1832. And in 1841, was elected to represent Kentucky's Tenth District in the U.S. House of Representatives.)

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