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[Cite as Gray v. Combs, 30 Ky. (7 J.J. Mar.) 478 (1832).]

Gray v. Combs.--Case.

OPINION OF THE COURT, by Judge Nicholas.

To an action on the case, brought by Gray against Combs, for killing a negro man slave, the latter plead, in substance, that as clerk and storekeeper, he had the care and custody of a brick warehouse, containing a variety of goods of great value; that before the killing said slave, some person having been in the habit of entering said warehouse at night, and stealing goods therefrom, though well secured with good doors and locks, and the defendant not being able to apprehend said thief, for the protection of said property and prevention of such stealing, set up a loaded gun on the inside of the house, with a string tied to the trigger; that said slave, in the dead hour of the night, with the intent of stealing said goods, broke and entered said house, pushed against said string, and thereby caused the gun to go off, and himself to be shot and killed, etc. To this defense the plaintiff demurred, and the court having overruled the demurrer, and given judgment for the defendant, the plaintiff prosecutes this writ of error.

For the defendant, it is contended that his act is only to be viewed, in this suit, with an eye to the civil code, and the killing of the slave to (p.479)be treated no otherwise than the killing of an ox under similar circumstances, and that, if he has infringed any part of the criminal code, he must be left to a criminal prosecution for his punishment. This can not be. If what he has done is illegal, he is none the less responsible to remunerate the master for the value of the slave, because he may also be responsible to the state for taking the life of a human being. His act, whether viewed civilly or criminally, must be adjudged of in all its consequences, according to its legality, and it is perfectly immaterial whether the rule for testing its legality be found in the civil or the penal code. But conceding the distinction attempted, we should, by no means, be prepared to concede the consequence deduced from it. A similar process of reasoning would justify the destruction of human life, in the prevention of any mere trespass, by the use of like indirection in the mode of defense.

For the plaintiff it is contended, first, that the use of means calculated to produce death, by whatever indirection they may have been used, are as obnoxious to the censure of the law, and render the user as culpable, as if they had been used directly and immediately by himself.

Second, that the theft or robbery attempted by the slave, if perpetrated, would have been no felony, but only a misdemeanor, punishable by stripes alone.

Third, that the law does not allow the taking of human life, except for the necessary prevention of a crime which, if committed, would be punished by the law with death.

The first of these propositions may well be conceded. The second is undeniably correct. By the nineteenth section of an act of 1802, 2 Dig. 1160, it is declared that a slave convicted of any other offense than murder, arson, rape, robbery from the person, and burglary, shall be sentenced to receive any number of lashes not exceeding thirty-nine. The third section of an act of 1806, Dig. 1161, declares, in substance, that any offense in a slave for which stripes are imposed as the only punishment, shall be deemed a misdemeanor only.(p.480)

In support of the third proposition, we are referred to the language used by Judge Blackstone on this subject, 4 Com. 181. After citing the instances in which the law justifies killing, to prevent the perpetration of various crimes, he alludes to another, which he makes no doubt may be equally resisted by the death of the unnatural aggressor. "For," says he, "the one uniform principle that runs through our own, and all other laws, seems to be this, that where a crime which in itself is capital is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting." "The law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to suffer, with impunity, any crime to be prevented by death, unless the same, if committed, would also be punished by death." If the law be as thus laid down, it is difficult, if not impossible, to escape the conclusion that the act of the defendant in this case was illegal, and he, consequently, responsible for the value of the slave. For as the crime would not, if committed, have been punished with death, it would, according to this rule, have been unlawful to kill him.

But we can not accede to the correctness of this rule; no authority is cited in support of it, and we believe none sufficient to sustain it can be found. Its recognition would singularly and essentially curtail the right of self-defense in this state, as heretofore supposed to be, and long acted upon with the approbation of all the virtue and intelligence of the community. In such a community, where the rights of self-defense are so dearly cherished and so well maintained by the sentiments of our population, it would not merely be with reluctance, but extreme regret, that we should acknowledge ourselves compelled to adopt or follow so restricted a rule. The result would be, in the present state of our criminal code, that neither highway robbery, rape, or a variety of other equally atrocious crimes could be lawfully prevented by the death of the aggressor. Indeed, we apprehend that it would be as futile as unwise for even the legislature to announce (p.481)such a rule. Public opinion is so decidedly and unalterably opposed to it that it would be vain to attempt its enforcement. In vain would the wayfarer be directed to surrender his horse and his purse to a robber, rather than protect them by the death of the assailant. In vain would juries be called on to punish, with the gallows, a necessary defense of female chastity. We fear not the imputation of temerity in hazarding the opinion that Blackstone has misconceived both the rule and the reason of it.

In every civilized community, except where there prevails such a draconic code as exists in England, the authorized extent of resistance in the necessary defense of the person or property against the perpetration of crimes, must greatly exceed the amount of punishment proscribed by law for their perpetration. The final sanctions of all wise codes are framed in a spirit of true clemency, and with a view rather to deter from the commission and repetition of crime, than thoroughly to avenge an injury done. Much of the punishment is left to the conscience of the criminal, and to the ultimate Avenger of all human crime. On the other hand, the right of necessary defense, in the protection of a man's person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well-ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy nor propriety in extending this tenderness and care so far as to protect the robber, the burglar, and the nocturnal thief, by an unnecessary restraint of the honest citizen's natural right of self-defense.

Sir Mathew Hale, in speaking on this subject, says: "The right of self-defense in these cases is founded in the law of nature, and is not, nor can be superseded by the law of society. Before societies were formed, the right of self-defense resided in individuals, and since, in cases of necessity, individuals incorporated into society can not resort for protection to the law of society, that law, with great propriety and strict justice, considereth them as still, in that instance, under the protection of the law of nature."(p.482)

Indeed, Blackstone himself, 4 Com. 180, holds this language: "Such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature, and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared in statute, 24 Hen. 8, c. 2." He then cites the Jewish law, which punishes no theft with death, yet justifies homicide in cases of nocturnal house-breaking. "If a thief be found breaking up, and he be smitten that he die, no blood shall be shed for him; but if the sun be risen, then shall blood be shed for him." He then cites the law of Athens, where if any theft was committed by night, it was lawful to kill the criminal if taken in the fact, and the transcription of the same law into the Roman twelve tables, and concludes thus, "which amounts very nearly to the same as is permitted by our own constitutions." Without attempting to reconcile this language with that first quoted, an apology may be found for the latter, in the fact that almost every forcible and atrocious crime is punished with death by the laws of England; so that the rule, as laid down by Blackstone may there be strictly correct in its letter, though not in its spirit or for the reason assigned by him.

We have not had access to Bracton, to see the citation made from him by Blackstone, but have met with the following quotation from him in a note to Hale, 488. Qui latronem occiderit, nocturnum vel diurturnum, non tenetur, si aliter periculum evadere non possit tenetum tamen si possit.

It is evident from the language used by Hale, P. C. 484 to 489, that he placed justifiable homicide upon the ground of the prevention of a felony, and not the prevention of a crime punished by death. After stating a case of justifiable homicide in defense of a third person, he says, "and the reason seems to be because every man is bound to use all possible lawful means to prevent a felony." Again: "In case of a felony attempted, as well as of a felony committed, every man is thus far an officer, that at least in killing the attempter in case of necessity, puts him in the condition of se defendendo, in defending his neighbor." "Now concerning felonies, as there (p.483)is a difference between them and trespasses, so there is a difference among themselves, in relation to the point of se defendendo. If a man come to take my goods as a trespasser, I may justify the beating him in defense of my goods; but if I kill him, it is manslaughter. But if a man come to rob me, or take my goods as a felon, and in resisting I kill him, it is me defendendo at least, and in some cases not so much."

He further says that the statute, 24 Hen. 8 c. 5, was but declarative of the law as it stood before, and to remove a doubt, and puts the killing a robber in or near a highway, etc., in the same condition with one that intends to rob or murder in the dwelling-house, and exempts both from forfeiture.

Foster, p. 273, says, "A party may repel force by force, in defense of his person, habitation, or property, against one who manifestly intendeth and endeavoreth, by violence or surprise, to commit a known felony on either."

From these authorities, and what we deem to be the reason of the law, it would seem that the right of killing to prevent the perpetration of crime, depends more upon the character of the crime and the time and manner of its attempted perpetration, than upon the degree of punishment attached to it by law, or upon the fact of its being designated in the penal code as a felony or not. A name can neither add to, or detract from, the moral qualities of a crime; and in the eye of reason and justice, the intrinsic nature of the offense, together with the time and manner of its attempted commission, must ever test the legality of the means to be resorted to for its prevention. It is not absolutely necessary, however, for the purposes of this case, to do more than place it on the ground of the prevention of a felony. For, though the robbery attempted in this case would only have been a misdemeanor in a slave, yet, in a white person, it would have been a felony; and, therefore, though according to strict law it may not have been a justifiable means of prevention as against a slave, such being known to be the character of the thief, yet, in the absence of such knowledge, (p.484)we would suppose a resort to such means justifiable as is permitted against the general, more numerous, and worthier class of the community, and the circumstance of the calamity lighting upon one of the other class, is to be taken as misadventure. Whatever cavils may be entertained against such a course of reasoning, we should feel little hesitation in resorting to it, if necessary, to render slaves liable to all the same perils that whites incur in nocturnal depredations, and justifying as against them the same means of defense as against whites. The crime is of the same moral die in each; and neither justice or policy would allow the inculpation of a resort to the necessary means of prevention against its perpetration by one, and not by the other, merely from the circumstance that the offense, when committed by one, is designated in our code by a different name than when committed by the other.

The right of punishing crimes, and the infraction of individual rights, may well be presumed to be surrendered by every man to the whole community, when he enters into civil society. The well-being of society requires it. Not so, however, as to the right of defense. Its possession and exercise are still necessary to individual security, and not incompatible with the public good. It is true, society may curtail this right, and no doubt does restrain its exercise in many important particulars. But it is emphatically a right brought by the individual with him into society, and not derived from it. He consequently retains the plenary right, except so far as it has been restrained by the laws of society. The extent of the right of defense is necessarily undefined by the law of nature. Its only limit is necessity. "That law," says Rutherforth, "allows us to defend our persons or property, and such a general allowance implies that no particular means of defense are prescribed to us. Whatever means are necessary, must be lawful; because it would be absurd to suppose that the law of nature allows of defense, and yet forbids us, at the same time, to do what is necessary for this purpose. It follows, that he who attempts to injure us gives us an indefinite right over his person, or a right to make use (p.485)of such means to prevent the injury as his behavior and our situation make necessary." He also says, "The right of defending our goods is an indefinite one, and that we are not naturally debarred from proceeding to extremities in their defense, where the obstinate injustice of those who would deprive us of them renders this necessary." The same author also vindicates such defense of our goods as may end in the death of him who attempts to take them from us, as consistent not merely with justice, but with benevolence also. This, however, is a question for casuists. It is one with which we have little to do. Our inquiry is limited to ascertaining whether our municipal code has restrained the natural right of defense so far as to inhibit what the defendant has done in this case. We can not find that it has. So far as we know, there has been no authoritative precedent for so saying. We are not at all disposed to make such a precedent.

It is not necessary in this case, nor shall we, therefore, attempt the difficult and delicate task, defining how far, and in what instances, the law of society has restrained the right of defense for the security of the lives of our citizens from the wanton cruelty and guileful malice of those who might otherwise indulge their evil passions under the guise of protecting property. We shall content ourselves with saying the restraint does not and should not extend to this case. That where a person has valuable property in a strong warehouse, well secured by locks and doors, that he may, as an additional security at night, erect a spring gun which can only be made to explode by entering the house. That the defense used by the defendant was, therefore, lawful, and the calamity which ensued ascribable to the slave's own act. We know of no process by which the defendant could have obtained the protection of the law against an unknown thief. The law did not require him to hire a guard for its protection. Neither was he bound to leave it to the spoliation of nocturnal depredators. The time and circumstances constituted a case of necessity that legitimated the means resorted to.(p.486)

This conclusion is sustained by the respectable authority of Rutherforth, in his Institutes, 336. "Some injuries of a lower order," he says, "though not irreparable in their own nature, are so by accident. There is the same reason why a man should be at liberty to defend himself against these, as there is why he should be at liberty to defend himself against those of higher order, where he can have no assistance from civil jurisdiction. Of this sort we may reckon the loss of goods, where the person who attempts to steal them is unknown; or where, though he is known, there is a moral certainty that the public can never interpose, so as to obtain the restitution of them. The rules that ought to be observed in these circumstances, are the same as ought to be observed in a state of nature. And where the law of nature would justify a man, considered as an individual, in proceeding to extremities, the same law will justify him in taking the same measures, though he is a member of society." Meaning, of course, as we presume, except so far as restrained by the ordinances of society. As before stated, we know of no law restraining the right as exercised in this case.

We have been unable to find any case in which this question has come before any of the courts in America, or any English court, prior to the revolution. But in the case of Halt v. Wilkes, 3 B. and A. 304, it was decided by the court of king's bench, that a person might lawfully place loaded spring guns in inclosed grounds to prevent depredations; and the plaintiff, in that case, who had received severe bodily injury while gathering nuts from a gun so placed, was nonsuited. It is true, the plaintiff had notice of the gun's being in the woods, but that seems not to have been treated as a controlling circumstance; for it is conceded by the court, that if the setting of the guns had been unlawful, notice to the plaintiff would not have exempted the defendant from liability. We are not called on now to give our dissent or assent to the principle ruled in this case, but mention it for the double purpose of showing the extent to which such means have been permitted in England for the protection of property, and of authorizing a suggestion of the propriety of (p.487)legislative interposition, for the restraining within due and proper bounds the exercise of any such right. The determination in Wilkes v. Halt was, no doubt, the occasion of the passing of the act of the British Parliament, 7 and 8 Geo. IV, 18, which declares, "that if any person shall set or place, or cause to be set or placed, any spring gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, the person so setting or placing, or causing to be set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor. Provided, that nothing in this act shall be deemed to make a misdemeanor within the meaning thereof, to set or cause to be set, from sunset to sunrise, any spring gun, man-trap, or other engine, which shall be set in a dwelling-house for the protection thereof."

The judgment must be affirmed, with costs.

Morehead and Brown, for plaintiff; Crittenden and Monroe, for defendant.