Brown_01-1994
View

No Duty to Retreat American Self-Defense

One of the most significant but little noted transitions from English to American society was in the Common Law of homicide and self-defense. As far back as the 13th century, English Common Law dealt harshly with the act of homicide. The "right to kill in self-defense was slowly established, and is a doctrine of modern rather than medieval law" said an early 20th-century article in the Harvard Law Review. In his 18th-century Commentaries, Blackstone favored the centuries-long bias of the Common Law against killing in self-defense out of his concern that the right to defend might be mistaken for the right to kill. Crucial to the English Common Law of homicide was the notion of retreat. Actually, the first obligation of an individual under attack in a personal dispute—even a person without fault in the quarrel—was to flee from the scene. With one of the two parties gone, a homicide could not possibly occur. Should it be impossible, however, to get away, the Common Law required the individual to retreat as far as possible—"to the wall" was the legal phrase—before resisting, and perhaps killing, in an act of lawful self-defense.

Thus, in English society of the medieval and early modern periods, the state through its courts attempted to reduce the number of homicides by shifting personal imbroglios from field and street to the judicial chamber. At its nub, the legal duty to...

Join now to access the full article and gain access to other exclusive features.

Get Started

Already a member? Sign in here

X