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**Frank Ettin** · October 30, 2008, 04:07 AM

Evidence, from the 1915 abridgment of Blackstone's 18th century Commentaries on the Common Law of England (page 289) --

http://books.google.com/books?id=jAU...um=8&ct=result

Force may be used in self defense, in which "...if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force..." with the caveat that, "...care must be taken that the resistance does not exceed the bounds of mere defense and prevention, for then the defender would himself become an aggressor..." (emphasis added)

However, note that under what Blackstone refers to as reprisal, once property is taken, it may be recovered or retained only if, "...it be not in a riotous manner, or attended with a breach of the peace....." Blackstone notes, "...the public peace is a superior consideration to any one man's private property ; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society..." (emphasis added)

So once the thief has physical possession of your property, the rule for at least 250 years has been that you may not use violence to recover it.

There is thus an historic distinction between using force to defend one's person or property from an immediate attack presenting physical danger to the defender on one hand, and using force after the attack has ended and the thief now has possession, albeit wrongful, of property.

In the hypothetical that started this discussion, BuckHammer wrote, "...when the BG is driving my vehicle, ... If I can stop the guy from fleeing the scene (by shooting him), I will most likely do it...." As thus described, the attack has broken off, and the defender is no longer in immediate, physical danger. Thus, as described by Blackstone, under long standing principles of Common Law violence to recover the property would not be legally permitted.

And since under modern law in the United States, lethal force is generally justified only in the case of immediate danger of death or grave bodily injury, the use of lethal force to recover property already taken would constitute either aggravated assault or manslaughter.

October 30, 2008, 04:07 AM	#89
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,471	Evidence, from the 1915 abridgment of Blackstone's 18th century Commentaries on the Common Law of England (page 289) -- http://books.google.com/books?id=jAU...um=8&ct=result Force may be used in self defense, in which "...if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force..." with the caveat that, "...care must be taken that the resistance does not exceed the bounds of mere defense and prevention, for then the defender would himself become an aggressor..." (emphasis added) However, note that under what Blackstone refers to as reprisal, once property is taken, it may be recovered or retained only if, "...it be not in a riotous manner, or attended with a breach of the peace....." Blackstone notes, "...the public peace is a superior consideration to any one man's private property ; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society..." (emphasis added) So once the thief has physical possession of your property, the rule for at least 250 years has been that you may not use violence to recover it. There is thus an historic distinction between using force to defend one's person or property from an immediate attack presenting physical danger to the defender on one hand, and using force after the attack has ended and the thief now has possession, albeit wrongful, of property. In the hypothetical that started this discussion, BuckHammer wrote, "...when the BG is driving my vehicle, ... If I can stop the guy from fleeing the scene (by shooting him), I will most likely do it...." As thus described, the attack has broken off, and the defender is no longer in immediate, physical danger. Thus, as described by Blackstone, under long standing principles of Common Law violence to recover the property would not be legally permitted. And since under modern law in the United States, lethal force is generally justified only in the case of immediate danger of death or grave bodily injury, the use of lethal force to recover property already taken would constitute either aggravated assault or manslaughter.