competition between two parallel and com peting roads engaged in interstate trade and commerce. IN the Columbia Law Rcricw for December, Professor J. H. Beale, Jr., of the Harvard and Chicago University Law Schools, has an important technical article on "Homicide in Self-Defence." Especially interesting is his statement of the law on "Resistance With out Retreat": In many jurisdictions it is held that one who, being without fault, is murderously as sailed may stand his ground and justifiably kill his assailant, even though he might safe ly retreat and thus avoid the necessity of killing. In other jurisdictions, on the con trary, it is held that if the necessity of killing may be safely avoided by retreating, the party assailed must retreat, rather than kill. The arguments in favor of the former opinion are that to require a retreat is to force the assailed to yield a right at the bid ding of a wrongdoer; and that it is dis honorable to retreat, and the necessity of such dishonor must not be thrust upon one who is without fault. On the other side it is urged that one may, under certain cir cumstances, be forced to forego the exercise of a legal right, and that the exercise of a right, when such exercise involves the com mission of a public offence can be justified only when it is required by public policy; and that between the killing and the safe retreat of a human being public policy re quires the latter. Even in those jurisdictions which require one assailed to withdraw, if he can, rather than kill, retreat is not required where it dearly would not diminish the danger. For this reason one is not required to retreat from his dwelling-house, or even from his land in the immediate vicinity of his dwell ing-house, to which he can retire in case of need; though if he can withdraw from his yard to his house, and thus avoid the neces sity for killing, he must do so, and if he has voluntarily left his house he must continue to retreat. One's place of business will be
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treated like his dwelling-house; he is en titled to remain there in safety. The doctrine that one need not retreat from his house is based upon the fact that such retreat would leave him exposed to at tacks which his house is intended to protect him against. It is not merely an aspect of the doctrine which allows him to defend his dwelling-house from an attack from without. It follows, therefore, that one may stand his ground and repel a murderous assault by one who is already within the house, even one rightfully there. In a few authorities this rule is carried still further, and it is held that one need not retreat from his own premises, even though not in the vicinity of his house. Most of these cases are from jurisdictions where the duty to retreat is not now enforced in any case of murderous attack; but the Supreme Court of the United States, which does not usually permit one to stand his ground and kill where retreat is open to him, appears not to require a retreat when the assailed is on his own premises, though remote from his house. This distinction appears to be un tenable. There can be no question here of depriving the assailed of the protection of a building; if he has a greater right than when off his own premises, it must be a right con nected in some way with the defence of land. But there is no right to use fatal force in the defence of one's land. Where one is threatened with death un less he will give up a chattel he certainly need not retreat, leaving the chattel, rather than kill the assailant; to yield would be to permit the assailant to commit robbery, and one may always kill to prevent the commis sion of such a felony. It has been attempted to apply this same reasoning to the ordinary case of murderous atack. Foster in a pass age often quoted, says "the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprise to commit a known felony upon either;" and he applies this rule to a case of murderous assault. And it is
