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"The

ishment for certain classes of infamous crimes. general rule of the common law was that the punishment of all infamous crimes should be disgraceful; as the pillory for every species of crimen falsi, as forgery, perjury and other offenses of the same kind. Whipping was more peculiarly appropriated to petit larceny and to crimes which betray a meanness of disposition and a deep taint of moral depravity." It does seem as if there are crimes so infamous in character, and betoken such a hopeless state of moral iniquity, that they can only be controlled and arrested by the degrading punishment of a public whipping. It is now being very generally suggested as the only appropriate punishment for those cowardly creatures who lay their hands in violence upon their defenseless wives. But public opinion is still strongly opposed to its infliction in any case. The punishment is so degrading that its infliction leaves the criminal very little chance for reformation, unless he betakes himself to a land, whither the disgrace will not follow him, or be generally known.2

In respect to the constitutional right to impose the penalty of corporal punishment for crime, Judge Cooley says: "We may well doubt the right to establish the whipping-post and the pillory in the States in which they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be regarded as having condemned them as cruel;' and any punishment, which if ever employed at all has become altogether obsolete, must certainly be looked upon as ' ' unusual.'" The fact, that this mode of punishment

1 Taylor, Ch. J., in State v. Kearney, 1 Hawks, 53.

"Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself." Herber v. State, 7 Texas, 69.

3 Cooley Const. Lim. *330.

has become obsolete, has made it impossible to secure any large number of adjudications on the constitutionality of a statute, which authorized or directed the infliction of corporal punishment. But so far as the courts have passed upon the question, they have decided in favor of its constitutionality, and held that whipping was not a "cruel and unusual" punishment. It has also been recognized as a legitimate power, in keepers of prisons and wardens of penitentiaries to administer corporal punishment to refractory prisoners.2 But whatever may be the correct view in respect to the constitutionality of laws imposing corporal punishment, this mode of punishment has now become very generally obsolete, and no court would presume to employ it upon the authority of the English common law. A statute would be necessary to revive it.3

§ 14. Personal chastisement in certain relations. As a natural right, in consequence of the duty imposed upon the husband, parent, guardian and master, it was conceded by the common law that they could inflict corporal punishment, respectively, upon the wife, child, pupil, ward and apprentice. But as the domestic relations, and the relative rights and duties growing out of them, will receive a more detailed treatment in a subsequent chapter, the reader is referred to that chapter.*

§ 15. Battery in self-defense. One of the primary restrictions upon individual liberty, growing out of the

1 Commonwealth v. Wyatt, 6 Rand. 694; Foote v. State, 59 Md. 264 (for wife-beating); Garcia v. Territory, 1 New Mex. 415. In the last case, the corporal punishment was inflicted for horse-stealing.

2 Cornell v. State, 6 Lea, 624. This power is exercised generally throughout the country; it is hard to say, to what extent with the direct sanction of law.

3 1 Bishop Crim. Law, § 722. Under the national government, both the whipping-post and the pillory were abolished by act of Congress in 1839. 5 U. S. Stat. at Large, ch. 36, § 5.

4 See post, §§ 191, 195, 203.

organization of society and the institution of government, is that which limits or takes away the right to undertake the remedy of one's own wrongs, and provides a remedy in the institution of courts and the appointment of ministerial officers, who hear the complaints of parties and condemn and punish all infractions of rights. But the natural right of protecting one's own rights can only be taken away justly where the law supplies in its place, and through the ordinary judicial channels, a reasonably effective remedy. In most cases where the remedy should be preventive, in order that it may be effectual, the law is clearly powerless to afford the necessary protection, and hence it recognizes in private persons the right to resist by the use of force all attacks upon their natural rights. The degree of force, which one is justified in using in defense of one's rights, is determined by the necessities of the case. He is authorized to use that amount of force which is necessary to repel the assailant. And in defending his rights, as a general rule, he may use whatever force is necessary for their protection, although it extends to the taking of life. But before using force in repelling an assault upon one's person, certainly where the necessary force would involve the taking of life, the law requires the person, who is assailed, to retreat before his assailant, and thus avoid a serious altercation as long as possible. When escape is impossible, then alone is homicide justifiable. Says Blackstone "For which reason the law requires that the person, who kills another in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not fictitiously, or in order to watch his opportunity, but from a real ten

1 Bartlett v. Churchhill, 24 Vt. 218; Elliott v. Brown, 2 Wend. 497; Murray v. Commonwealth, 79 Pa. St. 311; Lewis v. State, 51 Ala. 1; McPherson v. State, 29 Ark. 225; Holloway v. Commonwealth, 11 Bush, 344; Erwin v. State, 29 Ohio St. 186; Roach v. People, 77 Ill. 25; State v. Kennedy, 20 Iowa, 569; State v. Shippen, 10 Minn. 223.

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derness of shedding his brother's blood." In the excitement which usually attends such occurrences, it would be requiring too much of the party assailed to adjust to a nicety the exact amount of force which would be sufficient to furnish him and his rights with the necessary protection, and hence he is required to exercise that degree of care which may be expected from a reasonably prudent man under similar circumstances.2

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Blackstone also justifies, in cases of extreme necessity, the taking of the life of another, for the preservation of one's own life, where there is no direct attack upon the personal security, but the circumstances, surrounding the persons, require the death of one of them. He says: "There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by Lord Bacon, where two persons being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity, and the principle of self-defense; since both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of each other's life." But, of late, the doctrine has been repudiated by the English courts in a case, which has created widespread interest. A shipwreck had occurred, and some four or five persons occupied one of the life-boats.

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1 4 Bl. Com. 217. See People v. Sullivan, 7 N. Y. 396; State v. Dixon, 75 N. C. 275; Haynes v. State, 17 Ga. 465; Tweedy v. State, 5 Iowa, 433. 2 Shorter v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625. 3 Elem. c. 5.

4 4 Bl. 186.

They were without provisions, and after enduring the pangs of hunger until they were almost bereft of reason, one person, a young boy, was selected by the others to die for their benefit. The boy was killed, and the others subsisted on his flesh and blood, until they were overtaken by a vessel, and carried to England. Their terrible experience was published in the papers, and the ship having been an English vessel, they were arrested on the charge of murder, and convicted, notwithstanding the strong effort of counsel to secure from the court a recognition of the principle advocated by Blackstone. A contrary doctrine is laid down by the court, that no one has a right to take the life of another to save his own, except when it is endangered by the attacks of the other person. Even in cases of the extremest necessity the higher law must be obeyed, that man shall not save his life at the expense of another, who is not responsible for the threatening danger.1

Homicide is not only justifiable when committed in defense of one's life, but it is likewise excusable, when it is necessary to the protection of a woman's chastity. She may employ whatever force is necessary to afford her protection against the assault, even to the taking of life.2 So may one use any degree of force that may be necessary to protect any member of his family, a wife, child, etc.3 So may a battery be justified which is committed in defense of one's property, both real and personal, providing, always, that the force used is not excessive. And where

1 Reg v. Dudley, 15 C. C. 624; 14 L. R. Q. B. Div. 273, 560; 54 L. J. M. C. 32, 52. See the Mignonette Case, 19 Am. Law Rev. 118.

2 Staten v. State, 30 Miss. 619; Briggs v. State, 29 Ga. 733.

3 Commonwealth v. Malone, 114 Mass. 295, Stoneman v. Commonwealth, 25 Gratt. 887; State v. Johnson, 75 N. C. 174; Staten v. State, 30 Miss. 619; Patten v. People, 18 Mich. 314.

• Green v. Goddard, 2 Salk. 641; Beecher v. Parmele, 9 Vt. 352; Harrison v. Harrison, 43 Vt. 417; Ayers v. Birtch, 35 Mich. 501; Woodman v. Howell, 45 Ill. 367; Abt v. Burgheim, 80 Ill. 92; Staehlin v. Destrehan, 2 La. Ann. 1019; McCarty v. Fremont, 23 Cal. 196.

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