Necessity

Constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will, if left to itself, would reject.' An inevitable or unavoidable necessity is regarded as a defect of will, and excuses an act otherwise criminal in nature.' Moral necessity; physical necessity. Moral necessity arises where there is a duty incumbent upon a rational being which he ought at the time to perform. It presupposes a power of volition and action, under circumstances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming superior force. It means a sense of duty, when it becomes imperative by its urgency upon his conscience and judgment. That is not a physical necessity where " Stuyvesant v. Mayor of New York, 7 Cow. 606 (1827); 7 Johns. Ch. 315; 6 E. I. 325.

2 Chalcratt v. Louisville, &c. R. Co., 113 Dl. 88 (1885). 3 The Fortitude. 3 Sumn. 237 (1838), Story, J. See generally 50 Cal. 302; 50 Conn. 155,253; 27 Ind. 191; 6 Iowa, 432; 13 Mass. 278; 112 id.

3-4; 3 Pa. 331. * Bacon, Maxims. » Cooley, Const. Lim. 747. « West River Bridge Co. v. Dix, 6 How. 543, 545 (1848); the agent is called upon to exercise judgment and discretion, to act or not to act.^ A master may sell his vessel, in case of wreck or irreparable disaster — the necessity being extraordinary, paramount, actual and not merely apprehended: a question which the court passes upon.^ See Hypothecation. At common law, to prevent the spreading of fire, in a case of actual necessity, any one might destroy realty or personalty with no responsibility in him and no remedy in the owner.^ See Fire. Work of necessity. In the exception to the prohibition of labor, business, or work on the Lord's day, the reference is not to a physical or absolute necessity. Any labor, business, or work which is morally fit and proper to be done on that day, under the circumstances of the case, is a work of necessity.* Not limited to labor for the preservation of life, health, or property from impending danger. The necessity may grow out of, or be incident to, the general course of trade or business, or even be an exigency of a particular trade or business. For example, a danger of navigation being closed may make it lawful to load a vessel on Sunday, if there is no other time to do so. So, as to keeping a blast furnace open. If absolute necessity were intended, it would be unlawful to prepare a meal. ^

See Sunday.