one is assaulted in one's dwelling, he is not required to retreat, but he may take the trespasser's life, if such extreme force is necessary to prevent an entrance.1 But, although one may resist to any extent the forcible taking away of any property from himself, yet homicide in resisting a simple trespass to property, where there is no violence offered to the person, is never justifiable, except in the case of one's dwelling.2

In all these cases, the assault and battery are justified, only where they are employed in protecting rights against threatened injury. One cannot use force in recovering property or rights which have been taken or denied, or in punishing those who have violated his rights. It is no part of one's legal rights to avenge the wrongs of himself and of his family.1

At common law it was the right of one, who was unlawfully disseised, to recover his lands by force of arms, using whatever force was necessary to that end. But in the reign of Richard II., a statute was passed which prohibited entries upon land, in support of one's title, "with strong hand or a multitude of people, but only in a peaceable and easy manner. Similar statutes have been passed in most of the States of this country, and the effect of the

"5

1 State v. Burwell, 63 N. C. 661; McPherson v. State, 22 Ga. 478; State v. Abbott, 8 W. Va. 741; Pitford v. Armstrong, Wright (Ohio), 94; Wall v. State, 51 Ind. 453; Pond v. People, 8 Mich. 150; State v. Stockton, 61 Mo. 382; Palmore v. State, 29 Ark. 248.

2 State v. Vance, 17 Iowa. 138. See Loomis v. Terry, 17 Wend. 496. See, also, Bird v. Holbrook, 4 Bing. 623; Aldrich v. Wright, 53 N. H. 398 (16 Am. Rep. 339); Hooker v. Miller, 37 Iowa, 613 (18 Am. Rep. 18), where it is held that the use of spring guns and other like instruments, which cause the death of trespassers upon the land, is not permissible.

8 Commonwealth v. Haley, 4 Allen, 318; Sampson v. Henry, 13 Pick. 336; Churchill v. Hulbert, 110 Mass. 42 (14 Am. Rep. 578).

4 Cockroft v. Smith, 11 Mod. 43; Barfoot v. Reynolds, 2 Stra. 953; State v. Gibson, 10 Ired. 214.

5 Tiedeman on Real Property, § 228.

statute has been the subject of more or less extensive litigation. The question has been mooted from an early period, whether the purpose of the statute was to take away the common-law civil right to recover one's lawful possession by force of arms, or simply to provide a punishment for the breach of the public peace thereby occasioned. Although there are decisions, which maintain that the statute has this double effect, and that such a forcible entry would lay the lawful owner open to civil actions for trespass and for assault and battery,1 yet the weight of authority, both in this country and England, is certainly in favor of confining the operation of the statute to a criminal prosecution for the prohibited entry. The decisions cited below maintain that the plea of liberum tenementum is a good plea to every action of trespass quare clausum fregit, and even if the tenant is forcibly expelled and suffers personal injuries therefrom, no civil action for any purpose will lie, unless the force used was greater than what was necessary to effect his expulsion."

§ 16. Abortion. In the act of abortion, there is a twofold violation of rights. In the first place, it involves a violation of personal security to the limbs and body of the

1 Reeder v. Pardy, 41 Ill. 261; Doty v. Burdick, 83 Ill. 473; Knight v. Knight, 90 Ill. 208; Dustin v. Cowdry, 23 Vt. 631; Whittaker v. Perry, 38 Vt. 107 (but see contra Beecher v. Parmelee, 9 Vt. 352; Mussey v. Scott, 32 Vt. 82). See Moore v. Boyd, 24 Me. 247.

2 Harvey v. Brydges, 13 M. & W. 437; Davis v. Burrell, 10 C. B. 821; Hilbourne v. Fogg, 99 Mass. 11; Churchill v. Hulbert, 110 Mass. 42 (15 Am. Rep. 578); Clark v. Kelliher, 107 Mass. 406; Stearns v. Sampson, 59 Me. 569 (8 Am. Rep. 442); Sterling v. Warden, 51 N. H. 239 (12 Am. Rep. 80); Livingston v. Tanner, 14 N. H. 64; Estes v. Redsey, 8 Wend. 560; Kellum v. Jansorn, 17 Pa. St. 467; Zell v. Reame, 31 Pa. St. 304; Todd v. Jackson, 26 N. J. L. 525; Walton v. Fill, 1 Dev. & B. 507; Johnson v. Hanahan, 1 Strobh. 313; Tribble v. Frame, 1 J. J. Marsh. 599; Krevet v. Meyer, 24 Mo. 107; Fuhr v. Dean, 26 Mo. 116. But where force is used after a peaceable entry to eject a tenant, it is lawful and will not sustain a prosecution for assault and battery. Stearns v. Sampson, 59 Me. 569 (8 Am. Rep. 442).

1

woman. The foetus is part of the body of the woman and an unnatural expulsion of it inflicts injury upon the mother. But since the maxim of the law is, volenti non fit injuria, there is at common law no crime of assault and battery against the woman, where she procures or assents to the abortion. But abortion involves also the destruction of the life-germ of the fœtus, which is considered, even by the common law, to be a living human being for certain purposes. Mr. Blackstone says: "Even an infant in ventre sa mère, or in the mother's womb, is, for many purposes, which will be specified in the course of these commentaries, treated in law as if actually born." But the foetus was not supposed to have such an actual separate existence as to make abortion a crime against the unborn child, until it had reached that stage of its growth when it is said to" quicken.' Consequently at common law, where an abortion is committed upon a woman, with her consent, before the child had quickened, it is no crime unless the death of the mother ensues.2 The crime of abortion is now regulated by statute in the different States, and is generally made a crime, under all circumstances, to procure the miscarriage of a pregnant woman, whether she consents to the act, or the child has not quickened, and even where she herself, unaided, attempts the abortion.

1 1 Bl. Com. 154.

2 Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 22 N. J. L. 52; see Abrams v. Foshee, 3 Iowa, 274; Hatfield v. Gano, 15 Iowa, 177; People v. Jackson, 3 Hill, 92; Wilson v. Iowa, 2 Ohio St. 319; Robbins v. State, 8 Ohio St. 131; State v. Smith, 32 Me. 369; Commonwealth v. Wood, 11 Gray, 85; Mills v. Commonwealth, 13 Pa. St. 631; State v. Morrow, 40 S. C. 221; Com. v. Thompson, 159 Mass. 56; Cave v. State, 33 Tex. Cr. Rep. 335; People v. McGonegal, 136 N. Y. 62. One who abets or assists in procuring an abortion is guilty of a crime. People v. Vanzile, 73 Hun, 534. So, also, is the unsuccessful attempt to commit an abortion a punishable crime. Com. v. Tibbetts, 157 Mass. 519. And see People v. McGonegal, supra, as to the effect of evidence, that the time was not sufficient for the successful commission of the crime of abortion.

§ 17. Compulsory submission to surgical and medical treatment. Although it has never been brought before the courts for adjudication, it is nevertheless a most interesting question of police power, whether a person who is suffering from disease can be forced to submit to a surgical operation or medical treatment. We can readily understand the right of a parent or guardian to compel a child to submit to necessary medical treatment, and likewise the right of the guardian or keeper of an insane person to treat him in a similar manner. So also can we justify the exercise of force in administering remedies to one who is in the delirium of fever. But can a sane, rational man or woman of mature age be forced to submit to medical treatment, though death is likely to follow from the consequent neglect? If the disease is infectious or contagious, we recognize without question the right of the State to remove the afflicted person to a place of confinement, where he will not be likely to communicate the disease to others; and we recognize the right of the State to keep him confined, as long as the danger to the public continues. Inasmuch as the confinement of such a person imposes a burden upon the community, all means for lessening that burden may be employed as a legitimate exercise of police power; and if a surgical operation or medical treatment be necessary to effect a cure, the patient cannot lawfully resist the treatment.

Not only is this true, but it seems that medical and surgical treatment can be prescribed, against the consent of the individual, as a preventive of contagious and infectious diseases. Thus in England, and probably in some of the United States, vaccination has been made compulsory. When one remembers the terrible scourges

1 See post, § 44.

2 In Montreal, Canada, during the winter of 1885-86, the enforcement of such a law was resisted by a large part of the population, and serious riots ended. It has been made optional in England by recent statute (1898).

suffered from small-pox in the past, and thinks of the moderation and control of them effected by a general vaccination of the people, no one would hesitate to answer all philosophical objections to compulsory vaccination by an appeal to the legal maxim, salus populi suprema lex. In the United States, school boards have been very generally authorized by statute to exclude children from the privileges of the public schools, who have not been vaccinated. This law has been contested in a number of cases, on the ground that it was an unconstitutional interference with personal rights. But, in every case, the constitutionality of this exercise of police power has been sustained. And in Georgia a city ordinance was sustained which required every one to submit to vaccination when the small-pox was epidemic.2

A number of decisions have sustained the constitutionality of laws, which made vaccination compulsory upon school children. The opposition to compulsory vaccination seems

1 Bissell v. Davison, 65 Conn. 183; In re Walters, 84 Hun, 457; Duffleld v. School Dist. of Williamsport, 162 Pa. St. 476; Abeel v. Clark, 84 Cal. 226. In Illinois it has been held that a school board cannot require vaccination as a condition precedent to the attendance of a child upon the public school, except where small-pox is epidemic in the place. People v. Board of Education, 177 Ill. 572.

2 Morris v. City of Columbus, 102 Ga. 792.

3 On the general question of the constitutionality of law, requiring all school children to be vaccinated, see Nissley v. School Directors, 18 Pa. Co. Ct. 481; 5 Pa. Dist. 732; Sprague v. Baldwin, 18 Pa. Co. Ct. 568; Duffield v. Williamsport School Dist., 162 Pa. St. 476; Bissell v. Davison, 65 Conn. 183; In re Rebenack, 62 Mo. App. 8; Morris v. City of Columbus (Ga. 99), 30 S. E. 850; Miller v. School Dist., 5 Wyo. 217. There must, of course, be an express statutory authority, in order to justify a board of health in forcing vaccination upon unwilling patients. State v. Burdge, 95 Wis. 390. And where compulsory vaccination is provided for in general terms, it can be enforced against school children only on the occasion of a small pox epidemic. A resolution of a school board, under such a law, denying the privileges of the school to children at other times, who do not produce a certificate of vaccination, is void and without authority. Potts v. Breen, 167 Ill. 67; 47 N. E. 81. But it is lawful, however, to require at all times such a certificate of vaccination