NECESSITY. That which makes the con trary of a thing impossible.
Necessity is of three sorts: of conserva tion of life; see DURESS ; of obedience, as the obligation of civil subjection, and, in some cases, the coercion of a wife by her husband; and necessity of the act of God, or of a stranger. Jacob.
Whatever is done through necessity is done without any intention; and as. the act is done without will (q. v.) and is com pulsory, the agent is not legally responsible; Whart. Cr. L. § 95 ; Bacon, Max. Reg. 5. Hence the maxim, Necessity has no law; indeed, necessity is itself a law which can not be avoided nor infringed. Clef des Lois Rom.; Dig. 10. 3. 10. 1; Comyns, Dig. Plead er (3 M 20, 3 M 30). As to the circum stances which constitute necessity, see 1 Russ. Cr. 16, 20; Morris v. State, 31 Ind. 189; Flagg v. Millbury, 4 Cush. {Mass.) 243.
Either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on pub lic necessity, and no one is bound to com pensate for or to contribute to the loss, un less the town or neighborhood is made lia ble by express statute; Rail v.• Troop, 157 U. S. 405, 15 Sup. Ct. 657, 39 L. Ed. 742, citing 2 Kent 338; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; The James P. Don aldson, 19 Fed. 269. See EMINENT Dometzt; FIRES.
In 12 Rep. 63, it was held that in a tem pest, and to save the lives of the passengers, a passenger might cast out ponderous and valuable goods, without making himself lia ble to an action by their owner, cited in Ralli v. Troop, 157 U. S. 405, 15 Sup. Ct. 657, 39
L. Ed. 742. Where a person goes to the house of another to buy cattle and there becomes ill and is turned out in the cold and injured thereby, it is an actionable breach of the duty to care for him in his necessity; Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485.
To justify a trespass by a tenant on the ground that his intervention was necessary in order to prevent destruction of property (here a heath fire on land leased for shoot ing), It is sufficient to show that the interven tion was, in the circumstances at the time it took place, reasonably necessary; 81 L. J. K. B. 346.
The law of necessity (jus necessitatis) is the right of a man to do that from which he cannot be dissuaded by any terror of le gal puhishment. The test of necessity is the powerlessness of any possible, not that of any reasonable, punishment. Only the most limited scope can be given to the jus neees sitatis; it is acknowledged as a reason for the reduction of the penalty, even to a nomi nal amount, but not for its total remission. Salmond, Jurisprudence 429. See 2 Stephen, Hist. Cr. L. ch. 18; 1 L. Q. R. 51.
In the German Criminal Code, p. 51, the doctrine receives express recognition. See EMINENT DOMAIN; FIRES.
As to the meaning of the word under Sun day laws, see SUNDAY.