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22 Harv. L. Rev. 97 (1908-1909)
Law and Morals

handle is hein.journals/hlr22 and id is 133 raw text is: LAW AND MORALS. LAW AND MORALS.1 p RIMITIVE law regards the word and the act of the individual; it searches not his heart. The thought of man shall not be tried, said Chief Justice Brian, one of the best of the medieval lawyers, for the devil himself knoweth not the thought of man. 2 As a consequence early law is formal and unmoral. Are these adjectives properly to be applied to the English common law at any time within the period covered by the reports of litigated cases? To answer this question let us consider, first, the rule of liability for damage caused to one person by the act of another. Not quite six hundred years ago an action of trespass was brought in the King's Bench for a battery. The jury found that the plain- tiff was beaten, but that this was because of his assailing the de- fendant who had acted purely in self-defense, and that the action was brought out of malice. It was nevertheless adjudged that the plaintiff should recover his damages according to the jury's ver- dict, and that the defendant should go to prison. The defendant had committed the act of battery; therefore he must make repara- tion. He was not permitted to justify his act as done in protecting himself from the attack of the plaintiff. That attack rendered the plaintiff liable to a cross action, but did not take away his own action. The case we have just considered was an action for compensa- tion for a tort. Suppose, however, that the defendant, instead of merely injuring his assailant, had killed him in self-defense, using no unnecessary force. Did the early English law so completely ignore the moral quality of the act of killing in self-defense as to make it a crime? Strictly speaking, yes. An official reporter of the time of Edward 1I1 and Lord Coke 4 were doubtless in error in stating that prior to 1267 a man was hanged in such a case just as if he had acted feloniously. But such killing was not jus- 1 From an address delivered at the seventy-fifth anniversary of the Cincinnati Law School, and reprinted by permission of the University of Cincinnati Record. 2 Y. B. 7 Ed. IV, f. 2, pl. 2. 3 Y. B. 21 Ed. III, f. 17, pl. 22. 4 Coke, Second Inst., 148.

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