Pierce v. Hicks

34 Ga. 259

• Court: Supreme Court of Georgia
• Decided: June 15, 1866
• Status: Published

Opinion

Harris, J.

It is related in a biographical sketch of the celebrated Lord Ellenborough — when simply Mr. Law — that during the trial of Warren Hastings, Mr. Sheridan, one of the managers conducting the impeachment, in the fervor of his speech, said: “ That the treasures of the Tenana of the Begum was an offering laid by the hand of piety upon the altar of the saint.” Mr. Law, in a sarcastic tone, inquired “ How the Beguin could be considered a saint, and how the camels, the better part of her treasures, were to be laid on an altar.” Mr. Sheridan replied, “That it was the first time in his life that he had ever heard of special pleading on a metaphor, or a bill of indictment against a trope.”

Has not our brother De Graffenreid — whose chief ground of complaint against the charge of Judge Eeese, is, that he submitted to the jury as law that defendant’s shop was “ his castle,” and as such its inviolability — done precisely what the distinguished lawyer mentioned did, — make war on a metaphor ?

I am fully sensible how very difficult it is for a gentleman of refined literary cultivation, by any effort of the will, to bring his senses into such subjection to an abstraction, an ideality, so as to regard a shop redolent with the perfume of corn whisky — quo semel est imhuta vecms servabit odorem “ caso?din — as a royal or baronial castle — a fortress, like the proud keep of "Winsor, rising in the majesty of proportion, and girt with the double belt of its kindred and coeval towers — an awful structure, defended by power, and overseeing and guarding a subjected land.

He must strip this shop of its accessories, and learn to contemplate it not in the concrete.

How, otherwise, could the patriot scholar glow with enthusiasm when he listened to the vehement and boldly figurative illustration, by Lord Chatham, of that undoubted maxim of the English'law, “That every man’s house is his castle”— “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter, but the king of England cannot enter! All his force dares not cross the threshold of the ruined tenement.”

Can a principle be less law because it is enunciated in such splendid declamation ?

It enforces, not in the stolid and jejune style of many of the venerated common law writers, (worthy of immortality in a Duneiad) but in burning eloquence, the sacredness and inviolability of home — the uncontrollable dominion of the tenant of the cabin, alike with that of the lord of the-castle.

We will not elaborate this idea further.

The record furnishes us with, the testimony of an uncontradicted witness, who says, that after plaintiff had been mildly rebuked by defendant for his disordly conduct, plaintiff arose very much offended, cursing and threatening, and advanced with a small drawn knife upon defendant, as if intending to cut him. Defendant gave back. In such a case, is there any principle of law which required the .defendant to flee from his own house — to wait until the plaintiff had struck with his knife, before attempting to disable him ? We think not. Even oh the public square, or in the street, the defendant would have been justified, under the provisions of our penal code, in doing what he did.

The defendant, moreover, was bound by the requirements of statute to keep an orderly shop, and was liable to prosecution for a failure.

Does not this requirement sanction the use of all means that are proper, and not excessive, to accomplish so salutary an end ?

The plaintiff, upon the testimony in the case, was not entitled to damages.

Let the judgment be affirmed.