Necessity induces, or gives, a privilege as to private rights.
The privileges given to one acting in the exercise of private rights are said to arise out of the necessity for self- preservation ; for obedience ; and the necessity resulting from the act of God. Of the necessity for self-preservation, justifiable homicide, or the killing of another in self-defence, or in defence of master or servant, parent or child, husband or wife, is an example ; and this applies to property as well as to the person ; as, to defend the person or property against thieves. Of the necessity for obedience, i.e., obedience to the laws ; as, where an officer of government, civil or military, in the execution of a lawful command, causes death : for example, where a sheriff's officer, in the execution of a civil process, as giving possession of lands or houses under a writ of habere facias possessionem, calls to his aid the posse comitatus, and in the affray death ensues. Of the necessity resulting from the act of God, may be mentioned that in which an idiot, lunatic, or person labouring under some mental or bodily impotency, is held not to be responsible for his acts.
“ Necessitas non habet legem ” — Necessity has no law , is another branch of the same maxim. This necessity as regards the mind of man, and his acts under influence of that mind, is, where a man is compelled to do what otherwise he would not consent to ; where he is impelled to do what his conscience rejects. And, so considered, the law allows him certain privileges, and excuses him those acts which are done through unavoidable force and compulsion, which would otherwise be punishable as breaches of the law. But, this privilege is in strictness limited to breaches of the law as regards private rights : for a man's private rights must be sacrificed to the public good, and this of necessity also ; for public necessity is greater than private : “Necessitas publica major est quam privata.”
The Christian burial of the poor is a necessity which cannot be denied them ; so he in whose house a poor person dies is bound to bury the body decently : he cannot keep it unburied, or do anything to prevent its proper burial ; nor can he cast it out, or expose it so as to offend the feelings or endanger the health of the living. And upon this principle a mandamus will be granted to the rector of a parish to compel him to bury a corpse ; and so also will a mandamus go, for the like reason, to a gaoler to deliver up the body of a deceased debtor to his executors.
It was once a common notion that the body of a deceased debtor could be taken in execution for a debt owing by him at the time of his decease ; and that notion was encouraged by the fact that a case had actually occurred, and existed in the law books, where a woman, fearing that the dead body of her son would be arrested for debt, promised, in consideration of forbearance, to pay, and she was held liable upon such promise. It has, however, since been stated in another case that such ruling was contrary to every principle of law and morality, and such an act was revolting to humanity and illegal, and that any promise extorted by fear of it could not be valid in law.
The necessity which exists amongst mankind that they should bury their dead out of their sight, alone gives the privilege of possession of the body to those to whom it naturally belongs ; and it is only in very dark ages, and when reason is perverted by superstitious folly, that a contrary notion can possibly prevail.
Bao. Jlax. 25; 12 Co. 63; 1 Hale P. C. 54, 434; Co. Litt. 217; Jenk Cent. 280 ; Noy. Max. 32 ; 4 Bla. Com. ; R. e. Antrobus, 2 A. & E. 788 Uore v. Gibson, 13 M. & W. 623; Quick v. Coppleton, 1 Lev. 162 Mr-Naughten's Case, 10 CI. & Fin. 200 ; Rex v, Coleridge, 2 B. & Aid. 809 Reg. o. Stewart, 12 A. & E. 773; Reg. v. Fox, 2 Q. B. 216; Jones v. Atlitmrnham, 4 East, 459.