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 retreat was a command to individuals to forsake physical combat. There were, of course, few situations in which flight from the scene was entirely blocked, but even in such a case an individual could not stand his ground and defend himself but was legally obliged to retreat “to the wall” before fighting for his life.
The decisive arena for the Americanization of this approach to homicide and self-defense was the appellate decisions of state supreme courts, which determined the doctrine of homicide and self-defense for each state. Following the movement of the population west of the Appalachians in the 19th century, the highest court in state after state repudiated the English Common Law duty to retreat in favor of the American right to stand one’s ground. The traditional duty-to-retreat stipulation would shrink to a remnant of states, found mainly in the Northeast but also in South Carolina, Florida, and Alabama. These vestigial duty-to-retreat jurisdictions in the eastern tier of states were too few to form a critical mass in restraint of the general social and legal trend toward the no-duty-to-retreat concept. In writing their opinions, state supreme court judges not only discussed the classic doctrine of the English Common Law and the new American legal textbooks that, in contrast, opposed the duty to retreat, but also bolstered their own anti-retreat rulings by citing and quoting like-minded highcourt colleagues in other states.
Two crucial state decisions affirming the American theme of no duty to retreat came in 1876-77. The first was Erwin v. State (1876), in which the supreme court of Ohio held that a “true man” (the assumption being that there was, or should be, no other kind) was “not obliged to fly” from a menacing assailant. The following year the supreme court of Indiana faced the issue and likewise upheld the doctrine of no duty to retreat. The author of the Indiana court’s decision was a conservative Democrat, William Niblack, who later would be mentioned as a possibility for the presidential nomination of his party. Niblack’s father was a leading Indiana pathfinder who pioneered the primitive “mud hole” trail in the angle between the Ohio and Wabash Rivers. His son William forged a frontier law practice and a career in polities that took him to the nation’s capital for a long stint in the House of Representatives before election to the Indiana Supreme Court.
William Niblack was a forceful judge who in the case of Runyan v. Stale (1877) confronted the issue of retreat posed by the appeal of a manslaughter conviction growing out of an election-day dispute. The killer, John Runyan, appealed his conviction on the ground that the lower-court trial judge—who hewed to the retreat requirement—was incorrect in his instruction to the jury that Runyan should have obeyed the duty to retreat before shooting and killing his opponent. For his supreme court colleagues, Judge Niblack upheld Runyan’s appeal. Niblack resorted to both law and the frontier values of the Midwest to support his finding that Runyan, as the target of a felonious assault, had no duty to retreat.
Holding that Runyan’s fatal wounding of his assailant was a justifiable homicide, Niblack noted that the “ancient” English doctrine of the duty to retreat had been “greatly modified” in America. Then in a passage that would be widely quoted in other high-court cases supporting no duty to retreat, Niblack got down to the social bedrock of the matter: “Indeed,” he announced, “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed [emphasis added].” In effect, the Indiana Supreme Court held that the duty to retreat was a legal rationale for cowardice and that cowardice was simply un-American. A similar idea had surfaced earlier in Tennessee, where a Supreme Court judge contemptuously referred to a hunter who had been a participant in a murder episode as a “timid, cowardly man.” This influential Tennessee ease, Grainger v. State (1830), significantly widened the right of self-defense and was ever after labeled the “timid hunter” case.
Also serving to undermine the sway of the legal doctrine of the duty to retreat in the United States was, as the 19th century wore on, the increasing deadliness of repeating firearms. In 1905 the Minnesota supreme court, supporting no duty to retreat in regard to a North Woods murder case, emphasized the frontier conditions that brought “courageous” and “self-reliant” men into conflict equipped with a weaponry of rifle and revolver far more lethal than anything known in English medieval times when the duty to retreat was formulated.
Meanwhile, Rudyard Kipling encountered the culture of no duty to retreat during an 1889 tour of America. As the eventual poet and prophet of imperialism, Kipling might have been expected by some latter-day observers to approve the aggressive temper of no duty to retreat, but such was not the case. Possibly because he was a product of England’s much less violent duty-to-retreat society, Kipling was horrified by the violence of Americans. Visiting Portland, Oregon, on his crosscountry trip, Kipling was impressed by the bustling, busy life of the Pacific Northwest metropolis, but he was appalled by a recent killing there. “One well-known man,” wrote Kipling, “had shot another on the street, and was now pleading self-defense. because the other man had, or the murderer thought he had, a pistol [on him]. I read the [legal] pleadings [in the newspaper],” continued Kipling, “and they made me ill. So far as I could judge, if the dead man’s body had been found with a pistol on it the shooter would have gone free.” “Here in this civilized city the surviving brute was afraid he would be shot—fancied he saw the other man make a motion to his hip-pocket, and so on. And the degrading thing,” he concluded, “was that the trial was reported by men who evidently understood all about the pistol, was tried before a jury who were versed in the etiquette of the hip pocket, and was discussed on the street by men equally initiate [emphasis added].” Kipling was an accurate reporter on the state of law and social values in Oregon, for in the same month that Kipling was in Portland, a state supreme court judge confirmed that in Oregon a man had a “right” to “stand his ground and defend himself against the personal violence of another. He isn’t obliged to retreat: that doctrine is done away with in these days, especially when firearms are used and missiles strike at a distance and without warning.”
Yet a one-man scholarly backlash was building up against the American right to stand one’s ground and kill in selfdefense. It was Professor Joseph H. Beale, Jr., of the Harvard Law School who, in taking to the pages of leading law journals in 1903, echoed Kipling’s consternation over “the etiquette of the hip pocket,” staunchly defended the English notion of the duty to retreat, and in reference to the habitual packing of a pistol in a side pocket scathingly denounced what he termed the “hip-pocket ethics” of the West. Did Beale base his phrase “hip-pocket ethics” on Kipling’s “etiquette of the hip pocket”? Beale gave no such acknowledgment, but he might well have read Kipling’s book American Notes (1895), in which the phrase appeared, and, perhaps unconsciously, adapted Kipling’s usage to his own.
To Beale’s extreme displeasure, the reign of “hip-pocket ethics” made questions of cowardice and honor superior to reverence for life. In an attitude that would not have been widely accepted or even widely understood in grassroots America, Beale conceded that “a really honorable man” would “perhaps always regret the apparent cowardice of a retreat” from an assailant, but in “the case of a killing to avoid a stain on one’s honor,” he would “regret ten times more, after the excitement of the contest was past, the thought that he had the blood of a fellow-being on his hands.” Even Beale, however, sensed that he was bucking the momentum of society as well as the law, and, although read with respect, his impassioned views did not reverse the trend.
While the majority of states enshrined no duty to retreat in their Common Law, the U.S. Supreme Court had in the 1890’s waffled on the issue in regard to cases under federal jurisdiction. In 1921 the Supreme Court once more faced the matter and this time settled it. For the Court, Justice Oliver Wendell Holmes, a fellow New Englander and an even greater legal scholar than Professor Beale, carefully considered but strongly rejected Beale’s viewpoint when in Brown v. United States (1921) he wrote the 7-2 majority opinion in favor of no duty to retreat. The case originated in Texas, a state whose law so strongly supported the doctrine of standing one’s ground that the latter was often called the “Texas rule.” In the case in question, a knife-wielding enemy came at Robert Brown on a U.S. post-office construction site and, far from running away or retreating. Brown stood his ground and shot to death his opponent. Because the episode occurred on federal property, the homicide fell into the realm of the federal courts rather than those of Texas. Found guilty of murder, Brown appealed his conviction all the way up to the Supreme Court where Oliver Wendell Holmes spoke for the strong majority that upheld his appeal.
Ultimately citing with favor the “Texas rule,” Holmes incisively condemned the duty to retreat, hi America, he observed, the law had—in contrast to England—grown “in the direction of rules consistent with human nature.” Many legal authorities agreed, Holmes noted, “that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceeded the bounds of lawful self-defense.” With Brown’s life having been endangered by a knife-fighting rival it was wrong, Holmes wrote, to require even a “reasonable man” to calculate whether it might be “possible to fly with safety or to disable his assailant rather than to kill him,” because, said Holmes with withering sarcasm, “detached reflection cannot be demanded in the presence of an uplifted knife.”
Holmes’s emotions as well as his intellect were engaged by the case, for Brown’s ordeal seems to have reminded Holmes of an incident where, as a young army officer during the Civil War, he sought to save his own life by defending himself in a bout of man-to-man combat. Indeed, Holmes’s private view of the duty-to-retreat doctrine was even more hostile than he revealed in his Supreme Court opinion. In a letter about the case to a friend. Holmes wrote approvingly that in Texas “it is well settled” that “a man is not born to run away.” More generally, Holmes informed his correspondent that upon the issue of retreat the law must “make some allowances for the fighting instinct at critical moments”—critical moments such as those experienced by Holmes in Civil War battle and by Robert Brown in fatally repelling a knife attack. Although Holmes’s maxim, “detached reflection cannot be demanded in the presence of an uplifted knife,” is sometimes quoted. Holmes scholars have virtually ignored the ease of Brown v. United States in favor of Holmes’s more celebrated opinions upholding civil liberties. Neglected is the point that to the noted civil libertarian Holmes, as to so many other Americans, the right to stand one’s ground and kill in self-defense was as great a freedom as, say, the liberty of speech.
Oliver Wendell Holmes’s ardor suggests that the concept of no duty to retreat is not just a legal doctrine but a value deeply rooted in the national character. President Bush’s “line drawn in the sand” of Arabia (and the popularity of the Persian Gulf War) is only a recent example. On the other hand, the spirit of aggressive, violent self-defense accentuated by no duty to retreat is strongly challenged nowadays by those who energetically promote the values of peace and civility. Yet many of those who uphold social causes they deem to be benign and progressive do so with a militance that has much in common with the often belligerent spirit of no duty to retreat. Several years ago Molly Yard, then president of the National Organization for Women, reacted to a U.S. Supreme Court decision allowing tighter state restrictions on abortion by announcing plans for massive protest against the ruling. Said Yard, “We’re not about to go home and give up. We are going to stay and fight.”
Straws in the wind indicate that the American legal and judicial community is edging away, philosophically, from the no-duty-to-retreat doctrine Joseph H. Beale, Jr., failed to discredit in his time. The Oregon Supreme Court that in the 1880’s so firmly upheld the right to stand one’s ground in self-defense reversed itself a century later when it reverted to the old English duty to retreat in 1982. In her opinion for the Oregon court. Judge Betty Roberts made clear her distaste for the no-duty-to-retreat doctrine that, she held, deleteriously branded men who avoided personal combat as “cowards” who “ignominiously” ran “from a physical encounter.”
Still, recent violent episodes in Oregon (and elsewhere) suggest that the mood of aggressive, violent self-defense is as strong among the people as it was a hundred years ago. In broader terms there is even a hardening legal trend in favor of expanded violent self-defense for chronically abused wives and in favor of neighborhood action against drug dealers endangering the community and its children. One of the most significant results of the massive Los Angeles riots of the spring of 1992 is a premium in the public mind on the defense of home and property. This is a view that focuses on family survival in our era of rampant crime, in what might be called “The Age of the Los Angeles Riots.” From this perspective the defense of home and property is paramount—an attitude exemplified by the widespread admiration for the Korean-immigrant shopkeepers of downtown Los Angeles who during the peak of the 1992 rioting stood armed and ready to defend themselves, their property, and their livelihood in the spirit of no duty to retreat.