Law of Self Defense News/Q&A Show: September 2, 2021

I just looked up Brown v United States to refresh my memory on that case and I see that the homicide in that case is distinguished from the Babbitt homicide in that the homicide in the Brown case was governed by the English law of excusable homicide in self defense in an affray and the Babbitt homicide would be governed by the English law of justifiable homicide in self defense in prevention of crimes against the person. Justice Holmes uses the term “justified” when he is actually talking about “excused,” much like people who know better use the term “assault” when they are talking about a “battery,” and vice-a-versa.

Since the English defense of justified self defense and the English defense of excusable homicide in self defense have been merged in America, I still think the Brown case is still pretty well on point even though the Babbitt homicide did not occurr during the course of an affray and Justice Holmes in the Brown case is talking about the English rules governing the excusable homicide in an affray, rather than the English rules governing a justifiable homicide in self defense.

For those of you who aren’t familiar with the historic English law of self defense, a person who was without fault what-so-ever, in any manner or degree, had the permission of the law to use force in self defense when he was the victim of an unprovolked attack, and this permission of the law is what justified his use of force. The justified use of deadly force was limited to defending against a felony attack. A person who was guilty of provacation did not have the permission of the law to use force to defend himself from the use of any degree of unlawful force by an aggressor that he had provolked and was therefore not justified in doing so even if it were necessary to preserve his life and limb, but if such person found it necessary to commit a homicide to defend himself from an assault that he had provolked, the homicide would be excused from felony on the grounds of necissity if the person had not begun to fight with the aggressor before he killed him, or, if having begun to fight with the aggressor he retreated, if retreat were possible, before he killed the aggressor. The English excusable homicide in self defense was repugnant to the U.S. Constitution and those homicides in self defense that were merely excusable under English law were merged with the justifiable homicide in self defense in America, and this is where all the confusion in America about the right to stand your ground and the duty to retreat comes from.