Dave & Susan Caplan on common law self defense
I was reviewing an article by the late David Caplan and his wife, Susan Wimmershoff-Caplan, Postmodernism and the Model Penal Code, 73 UMKC Law Rev. 1080 (2005). Pretty interesting in that it shows, by citation to English cases from 1330 onward, that the common law version of the castle doctrine was simple. You could kill a person who broke into your house to steal, period. The 1330 case specifically recognized that this was so even if it was not in necessary self-defense. It was regarded as a good deed that benefitted the entire community. (In one early case, cited in Coke's Commentaries, the defender killed a burglar and the court said "he would receive from the law nothing but good.") If he was no menace, if he was fleeing -- who cares? He was a burglar, prove that and you walk.
This underscore a point Don Kates has made. Self-defense law, with its restrictions (including retreat in a minority of US jurisdictions) evolved against a background where thieves and other felons could be killed out of hand, so it never came to a matter of pleading self defense. Self defense only came into play when two people, with no other criminal intent, got into a fight. There it made sense to have restrictions such as retreat. (At earliest common law, self defense wasn't even a defense, it was just good grounds to apply for a pardon. Even that didn't stop forfeiture of your goods. Later it did apply to forfeiture, and pardon became routine -- the court made the finding and sent notice to the monarch, and the monarch sent back a pardon.)
Only when the courts and legislatures moved away from "open season on burglars" were the requirements of self defense made applicable to use of force against persons committing a felony. I suspect that, like many legal evolutions, it happened so slowly that no one realized it.
[UPDATE in light of comments: I haven't been able to find the article anywhere on line. David is dead and I don't know if Susan does much on the internet. What the Latin means, I cannot figure out. My days of Latin are around 35 years ago, and that sentence is a little too involved for me. Tucker didn't worry about it, since in his day knowing two classical languages was an entry requirement for most colleges. I read somewhere that, at the seige of Yorktown, many American and French officers conversed in Latin. With the English-French conflicts, learning the enemy language had not been important to them, but everyone who'd gone to a college knew Latin.]
“BURGLARY, or nocturnal housebreaking, burgi latrocinium, which by our ancient law was called hamefecken, as it is in Scotland to this day, has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; an invasion, which in such a state, would be sure to be punished with death, unless the assailant were the stronger. But in civil society, the laws also come in to the assistance of the weaker party: and, besides that they leave him this natural right of killing the aggressor, if he can, (as was shown in a former chapter15) they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of ancient Rome, as expressed in the words of Tully;16 "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?"- St. George Tucker’s Blackstone, Volume 5, Chapter 16.
Ah, the good old days when people recoginzed and understood the law of nature.
Posted by: Rudy DiGiacinto at August 28, 2006 09:23 PM
any chance the Caplans' article will ever become available electronically? i have no law library near me, and arranging an inter-library loan from one would be cumbersome at best.
(in fact, i only have a public library and an otherwise fine community college that doesn't specialize in anything very law-related. it does teach some law enforcement classes, but it's more pre-police-academy than pre-legal. internet access to this article would likely be the only way i'll see it, in practice.)
Posted by: Nomen Nescio at August 29, 2006 06:37 PM
All the damn attorneys (Sorry, David) like to keep as many criminals out and active so there will be plenty of cases going to litigate. Think of what would all the poor criminal attorneys unable to provide for their families if we killed all the burglars ?
Posted by: The Mechanic at August 29, 2006 06:43 PM
Tully;16 "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?"- St. George Tucker’s Blackstone, Volume 5, Chapter 16.
Translated to the vulgar tongue says what? We aren't all Latinos here.
Posted by: The Mechanic at August 29, 2006 06:47 PM
i've never studied latin either, but a rough first cut might be:
"what is (can be?) sacred, among all the religions, when homes (are not inviolable?) / (if not the peace of the home?)"
i might benefit from actually studying the tongue, yes, but even just reading a lot of Blackstone-era English you can pick up a surprising amount of Latin.
Posted by: Nomen Nescio at August 30, 2006 05:25 AM
Interestingly, the same applies in Talmudic law; i.e. that an intruder can be killed out of hand. There, however, the rationale is self-defense, as it is presumed that if the householder opposes the intruder (as is his right), the intruder will attempt to kill him.
Posted by: kishke at August 31, 2006 08:30 PM
According to Blackstone, common law required that a person retreat and use arms against the attacker only as a last resort. Florida's no retreat law is a reversal of common law tradition. It was considered by basic principle of natural rights philosophy that once you entered a civilized society you gave up your rights of self defense to be regulated by the laws of society. Read Locke. Of course, you wouldn't expect to learn the whole truth from a revisionist scholar such as Kates.
Posted by: One Who Knows at October 2, 2006 01:32 AM