2

It has been said more than once, that presenting a gun at another is not an assault, if the gun is not, in point of fact, loaded.1 But this can only be just and sensible, where it is quite clear that the person aimed at knew that it was not loaded; for if he did not, the terror would be just as great under the uncertainty as under the reality. And, at all events, presenting a loaded gun at half-cock is an assault, for though it could not go off in that form, a momentary touch of the finger could alter the case. So no words, however irritating, if not accompanied with a threat of the kind mentioned, will, in the eye of the law, amount to an assault; though in former times, when men's passions were less under control, this was considered an excusable cause for a blow, as being done in self-defence. And yet if, in the heat of passion, a blow shall be given for sharp words, and an action be brought, the jury may give nominal damages only, and the judge may, so far as he can, deprive the plaintiff of his costs.

An assault implies that it is against consent of assaulted.A material legal ingredient also in an assault and battery is, that the threat or blow is against the consent of the person, for the maxim volenti non fit injuria will then apply. Hence in a game or sport, such as wrestling or boxing, or playing at cudgels, this licence is either express or presumed, and the mutual exchange of blows excludes this necessary ingredient of the cause of action. Thus, if two persons agree to play at cricket together, and the one strikes the other with the ball in the course of the game, inasmuch as the consent to take the risk of usual incidents was implied, it would be a contradiction in terms to sue for this as an assault. If, indeed, two parties fight together, though in a certain sense each may be said to license the other to beat him, yet the law will not excuse the blow, if either chooses to resort for redress to the court, seeing that all such conduct necessarily implies a breach of the peace, and is thus unlawful if the other chooses so to treat it. And though there can be no assault

5

1 Blake v Bernard, 9 C. & P. 626; R. v James, 1 C. & K. 530; R v Baker, 1 C. & K. 254. 2 Osborn v Veitch, 1 F. & F. 317.

3 The Romans distinguished beating without pain, pulsatio, from beating with pain, verberatio, and prohibited both,—ff. 47, 10, 5. 4 Christopherson v Bere, 11 Q. B. 477. 5 Bull. N. P. 16.

unless it be committed against the consent of the party assaulted, yet if the consent or pretended consent is obtained wholly or partially by a trick or misrepresentation, the act done will then not the less be an assault: as where a schoolmaster takes liberties with a female scholar;1 where a doctor pretends that it is necessary to strip, or otherwise treat a female patient,2 and thereby under the false impression a kind of simulated consent is procured. And so jealous is the law of such a defence being set up, that it is incumbent on the defendant to set out in the clearest manner, that the act of assault was either unavoidable, or with consent, and so involved no blame, otherwise the presumption will be against him.3

This doctrine, that consent of the party assaulted will negative the legal character of an assault, has been carried to what at first sight appears an extravagant extent in the case of children. Thus it has been held no assault at common law for a man to take indecent liberties with a child between ten and twelve, or even under ten, provided the child consented. It might have been expected that there was nothing to prevent a court holding that a child's consent, in such cases, should be immaterial, if such child was incapable of knowing the nature of the act to which she is assumed by the law to consent, and thus it might have been treated as a question of fact in each particular instance for the court, or jury, or justices deciding it. Owing, however, to the singular and exaggerated importance often assigned to precedents, it may be now impracticable to treat this last view as correct in law.

Some assaults are excusable or justifiable.-Another characteristic of an assault is, that there should be no legal excuse for it, and this introduces a large class of exceptions or legal excuses, which are recognised as adequate reasons, why the law should overlook the apparent wrong. And at the outset one maxim is adopted, namely, that a blow for a word shall not be allowed: in

1 R. v Nichol, Russ. & R. 130. R. v Case, Den. C. C. 580.

19;

kenson & Watson, T. Jones, 205.

2 R. v Rosinski, 1 Moody, C. C. 3 Weaver v Ward, Hob. 134; Dic

4 R. v Meredith, 8 C. & P. 589; R. v Banks, Ib. 574; R. v Martin, 9 C. & P. 213; 2 Mon. C. C. 123; R. v Cockburn, 3 Cox, C. C. 543; R. v Johnson, 1 L. & C. 632.

other words, however irritating another's language may be, the party addressed is not justified in dealing a blow in answer to it, for in a settled state of society, where actions and remedies of all kinds abound, each should be able to control his temper, and not use his hands to express, or to vindicate, or to give emphasis to his opinions or feelings. Hobart attempted to explain why it was, that the law did. not allow any man to strike in private revenge of ill words, and his reason was, that there was "no proportion between words and blows, but he that is stricken may strike again." 1 The same learned judge however admitted it to be true, that there is a judicial combat allowed before the constable, if a man be called "traitor." Perhaps a more lucid reason may be suggested, namely, that a blow is only the revenge of barbarians for the want of a ready answer by the tongue, and that the strength or readiness of a man's hand has nothing to do with his quarrel being just.

Self-defence against blows.-While words however may not be answered by blows, it is otherwise when blows are first given, for then other blows may be returned.2 To ward off blows and overcome them with greater blows is one of the laws of nature, which no advance of civilisation is ever likely to render superfluous or wrong. Hence I may lawfully return blow for blow, or may strike in order to ward off an impending blow from my own person, whenever there is no other means of protection. Some discrimination is however necessary in order to keep one's acts of self-defence within their proper sphere, so that what is meant to be a shield may not be used too liberally as a weapon of offence. If I have been already assaulted, and further assaults are likely to follow, I may lawfully strike my assailant, and even though no further assaults were reasonably to be apprehended, I will not be too nicely judged if in the heat of the moment I have in a spirit of retaliation dealt a finishing blow. Yet even in the latter case some proportion is to be observed between the strength of the assault and the apprehended danger which it was intended to ward off; for if the assault is trifling, then a battery or maiming of undue severity inflicted in order to guard against such assault cannot be justified, 1 Lord Darcey v Markham, Hob. 120. 2 Wise v Hodnell, 11 A. & E. 816.

whichever of the parties may have made the first assault.1 As Holt, C. J., said, hitting a man a little blow with a little stick on the shoulder is not a reason for him to draw a sword and cut and hew the other.2 The blows of selfdefence are thus only excusable so long as the transaction is one and continuous; for after my blood has cooled, and an interval has elapsed, I ought no longer to think of physical force as my remedy, seeing that the law will sufficiently redress the grievance by its own appropriate forms.3

Assault in defence of child or wife.-Not only is it excusable for one to assault another in self-defence, but the same excuse is extended in deference to the feelings of human nature, where the assault is made in defence of one's wife or child. In this respect the law makes allowance for the indignation natural to one whose social affections may be outraged by violence or insult; and if in protecting these near relatives it is reasonably necessary to commit an assault and battery, the circumstances will afford sufficient excuse. It is difficult indeed to draw the line between one near relation and another, and a parent, brother, sister, or husband may equally well claim the same degree of zeal, more especially if ill-health or special circumstances render these relatives incapable of self-defence.4

Dauny v Lucy, Sid. 246; Keb. 884. 2 Cockroft v Smith, 1 L. Raym. 177; 2 Salk. 642.

3 Cockroft v Smith, 11 Mod. 43; R. v Driscoll, 1 Car. & M. 214. It is often a question of difficulty to decide in case of two persons assaulting each other, how to separate the blamable from the innocent party. The Gentoo Code obviously thought this was impracticable, for it fined both parties, but the one who first struck was made to pay the larger fine.-Gentoo Code, c. 3, § 3. Puffendorf said of private assaults as of public wars, that the aggressor is not he, who gives the first blow, but he who first resolves and prepares to give one.-Puff. Man & Citiz., b. 1, c. . 5, § 17.

But

Self-defence is, moreover, distinguishable from taking the initiative, or what is known as taking the law into one's own hands-that being an offence according to all laws, and one which lies at the root of law itself. Even the Kaffirs punish a man for taking the law into his own hands, or for anything like retaliation.-Maclean's Kaffers, 111.

Leward v Baseley, 1 L. Rayın. 62; 3 Salk. 46.

If master and servant are justified in striking in defence of each other.-Not only is a parent entitled to strike in defence of a wife or child, but a similar rule has been extended to servants, for it has been often said a servant will be admitted to justify an assault and battery in defence of his master about to be struck in his presence,1 and in like manner a master in defence of his servant.2 This last point however has been doubted, on the ground that though the servant is justified in defending the master, the converse is not true. The relation of master and servant was once more close and confidential than it now is, and the habits of society insensibly react on the law, and may change it by degrees. Much will depend even in this branch of the law on the nature of the service and the duties arising out of it. And certainly where the relation is no closer than that of master and servant, the courts are reluctant to admit this justification, seeing that the party may be deemed usually able to protect himself in circumstances which at most give rise to a civil action. Hence a servant has been deemed to be not justified in striking in defence of his master's son, or to strike one who was about to beat his master's horse, for this was said to be a premature and somewhat remote precaution.5 And for the same reason it is not deemed any justification that the assault was committed by a tenant in defence of his landlord, or by one neighbour or friend in defence of another.7

All justifiable assaults must be to protect, not revenge.— In all cases, however, except in self-defence, it is necessary to show, that the assault was made not by way of revenge or retaliation, nor even in hot blood, nor on the spur of the moment, but solely in order to prevent an injury to some person, whom it was a natural duty to protect; and therefore, if the ground of provocation be past, an assault which in the heat of the moment would have been justifiable, will then cease to be so.8

Assault in chastising children.-A child however young

1 Barfoot v Reynolds, 2 Str. 953.

3 Seaman v Cuppledick, Owen, 150.

2 Tickell v Read, Lofft, 215.

5 Shingleton & Smith, 2 Lutw. 1481, 1483.

4 1 Hawk. c. 60, § 24.

6 1 Hawk. c. 60, § 24. 8 Bar

7 Leward v Baseley, 1 L. Raym. 62; 1 Salk. 407; 3 Salk. 46. foot v Reynolds, 2 Str. 953.