A tract on duelling: wherein the opinions of some of the most celebrated writers on crown law are examined and corrected ... in order to ascertain the due distinction between manslaughter and murder. By Granville Sharp.

A TRACT ON DUELLING.

NO MAN can give or accept a chal∣lenge to fight with weapons, and kill his antagonist (on any private difference whatever) without being guilty of Wil∣ful Murder, such as ought to be excluded from the benefit of clergy. For Wilful Murder is the killing of a man ex ma∣litiâ proecogitatâa 1.1; which malice is either implied or express,b 1.2 or, as judge Hale calls

it, Malice in Law, or ex presumptione Legisc 1.3; and malice must necessarily be implied when a man wilfully strikes or wounds another with any offensive weapon whatever, because that is

an act that must apparently introduce harm

d 1.4, and the intention to do harm makes it murdere 1.5; so that the allowance which the writers of the two last centuries have made for sudden anger (without preserv∣ing a proper distinction of the case where∣in it really deserves consideration) is unjust in itself, as well as dangerous to society; for few men would entertain such absurd notions of honour, as to think themselves obliged to revenge affronts with their swords or pistols, if the risque of being hanged up as felons and murderers for their own gentleman∣like satisfaction, was rendered obvious by

just and proper decisions of the Law on this point.

In every charge of murder, the fact of killing being first proved, all the cir∣cumstances of Accident, Necessity, or Infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him: for the law presumeth the fact to have been founded in malice, until the contrary appeareth.

Judge Foster, 255.

The cases of homicide which are justi∣fied or excused by the above-mentioned circumstances of Accident and Necessity, are well understood, and, by many emi∣nent writers, sufficiently explained un∣der the heads of Misfortune and Self-defence. But with respect to those cases of Homicide, which are attended with

circumstances of infirmity (the third branch of circumstances mentioned above) the writers on crown law in general have been very indiscriminate, notwithstanding that the true distinction between Murder and Manslaughter de∣pends entirely on a clear stating of those cases of infirmity, which really deserve consideration and excuse.

Judge Foster, indeed, is, for the most part, nice and accurate in his distinctions; yet he has paid so great a regard to the authority of precedents, that he has been unwarily led away (as well as other writers) from the necessary conclusions of his own arguments upon this point; I shall, nevertheless, make use of his words as far as they express my own opinion of the subject.—

Whoever would shelter himself under the plea of Provocation must prove his case to the satisfaction of the jury. The

presumption of law is against him, till that presumption is repelled by contrary evidence. What degree of Provocation, and under what circum∣stances heat of blood, the Furor bre∣vis, will or will not avail the De∣fendant is now to be considered.

Words of Reproach, how grievous soever, are not a Provocation suffi∣cient to free the Party killing from the guilt of murder. Nor are inde∣cent provoking actions or gestures expressive of contempt or reproach, without an assault upon the person.

(p. 290.) But I think myself obliged to add that even an assault* 1.6upon the person is NOT

a Provocation suffi∣cient to free the Party killing from the guilt of murder,

(though this

learned judge seems to think otherwise. See Sect. iii. p. 295) unless all the cir∣cumstances which are necessary to ren∣der it excusable by the plea of self∣defence can clearly be proved. For if the Killing in a sudden fray is not ex necessitate, (as in Self-defence, or in the lawful Defence of others), it must be esteemed voluntary; and voluntary is the same thing as wilful; which neces∣sarily includes malice. For Bracton says,

Crimen non contrahitur nisi Voluntas nocendi intercedat & voluntas et pro∣positum distinguunt Maleficium,

&c.

The Guilt is not incurred unless the intention of injuring intervenes, for the Intention and Purpose (or design) marks the Felony (or malicious Deed.)

Lib. iii. c. 17. So that malice must necessarily be presumed, whenever the killing is not ex necessitate, especially if the fatal blow be wilfully given with a weapon; for in that case a man must

necessarily be supposed to strike,

cunt occidendi animo,—with murderous in∣tent,

because the Voluntas nocendi is apparent; and, consequently, the malice, in such a case, is not only implied but clearly expressed; so that the sudden anger is only a further proof of the malice and "intention to do harm."

Bracton has accurately laid down the proper distinction to be observed in the plea of an excusable Necessity for killing.

Quo casu distinguendum est utrum Necessitas illa fuit evitabilis vel non. Si autem evitabilis, et evadere posset abs∣que occisione, tune erit reus homi∣cidii,

(and a felonious homicide or manslaughter, in the days of Bracton, had the same meaning that we now apply to Murder).

Si autem inevi∣tabilis, quia occidit hominem sine odii meditatione in metu & dolore

animi, se et sua liberando cum aliter

(mortem propriam Fleta, lib. i. c. 23.)

evadere non posset, non tenetur ad poenam homicidii* 1.7.

Bract. lib. iii. c. 4. And Staunford remarks, that the necessity ought to be so great, that it ought to be esteemed inevitable, or otherwise it shall not be excused; so that the whole matter consists (says he) in the inevitable necessity, without which the killing is by no means excusablef 1.8 so

that the learned Judge Foster certainly goes too far, when he insinuates, in the passage before cited,

that an assault upon the person

(without mentioning the necessary exception con∣cerning inevitable Necessity)

is a pro∣vocation sufficient to free the party killing from the guilt of murder.

For a farther distinction (besides that of inevitable necessity) is also to be ob∣served, which is very accurately laid down, even by judge Foster himself, in p. 291, though the same would be use∣less, if an assault upon the person was to be admitted as a sufficient provocation to the act of killing.

It ought to be remembered (says he) that in all other cases of homicide upon slight provocationg 1.9, if it may be reasonably

collected from the weapon made use of, or from any other circumstance, that the Party intended to kill, or to do some great bodily harm, such Homi∣cide will be Murder. The mischief done is irreparable, and the outrage is considered as flowing rather from brutal rage or diabolical malignity, than from human frailty. And it is to human frailty, and to that alone, the Law indulgeth in every case of felonious Homicide.

The first instance which he gives by way of illustration to this doctrine is cited from Judge Hale, vol. i. p. 473.

If A. come into the wood of B. and pull his hedges, or cut his wood, and B. beat him, whereof he dies, this is manslaughter, because, though it was not lawful for A. to cut the wood, it was not lawful for B. to beat him, but either to bring him to a Justice

of Peace, or punish him otherwise according to law.

But here Lord Hale is not sufficiently distinct in stating the case; because circumstances are wanting, which are necessary for the determination of such a case, whether it ought to be esteemed manslaughter or murder. The accurate Judge Foster was sensible of this want of necessary circumstances, and therefore adds,

But it must be understood (says he) that he beat him, not with a mischievous intention, but meerly to chastise him for the trespass, and to deter him from committing the like. For if he had knocked his brains out with a bill or hedgestake, or had given him an out∣rageous beating with an ordinary cud∣gel beyond the bounds of a sudden resentment, whereof he had died, It had been Murder. For these circum∣stances are some of the genuine symp∣toms of the Mala Mens, the heart

bent upon mischief, which, as I have already shewn, enter into the true notion of Malice in the legal sense of the word.

P. 291.

The next instance he mentions is that of the parker tying the boy to his horse's tail. Which was (says he)

held to be murder.

For it was a deliberate act, and savoured of cruelty.

But the third instance, viz. that of Sted∣man the soldier killing a woman with a sword (which Judge Foster mentions as a case that was held clearly to be no more than manslaughter) was, most cer∣tainly, wilful murder: for tho' it appeared that the woman had struck the soldier on the face with an iron patten; yet she afterwards fled from him, and he

pur∣suing her, stabbed her in the back.

Now if such a case of wilful killing is to be esteemed only manslaughter, it

entirely perverts the just arguments already quoted from the same author concerning the cases wherein human frailty deserves to be indulged! May I not use his own words against him? That "these circumstances" (the pur∣suing, and stabbing the woman in the back)

are some of the genuine symp∣toms of the mala mens, the heart bent upon mischief.

Whereas, if he had struck her merely with his fist, or with a small stick not likely to kill, and had unluckily, and against his intention, killed, it had been but manslaughter. For this is the necessary distinction for which I contend in all cases of killing where the striking (not the killing) is voluntary: and I cannot so well express my meaning as in the words of Judge Foster himself, though that sensible and acute reasoner is afterwards misled from the truth of his own doctrine, by

paying too much regard (I mean an indiscriminate regard) to the practice of the Courts, which, in this point, has frequently been erroneous.

In page 290, after the 1st section (already quoted) concerning the cir∣cumstances, which

are not a provo∣cation sufficient to free the Party Killing from the Guilt of Murder,

he adds,

This rule will, I conceive (says he) govern every case where the Party Killing upon such provocation maketh use of a deadly weapon, or otherwise manifesteth an intention to kill, or to do some some great bodily harm. But if he had given the other a box on the ear, or had struck him with a stick or other weapon not likely to kill, and had unluckily and against his intention killed, it had been but manslaughter. The difference between the cases is plainly this. In the for∣mer,

the malitia, the wicked vindictive disposition already mentioned, evidently appeareth: in the latter it is as evidently wanting. The Party, in the first trans∣port of his passion, intended to chas∣tise for a piece of insolence which few spirits can bear. In this case the benignity of the law interposeth in favour of human frailty; in the other its justice regardeth and punisheth the apparent malignity of the heart.

P. 290 and 291.

Nevertheless, the same author, in p. 296, endeavours to excuse killing in sudden rencounters, without preserving this necessary distinction concerning "the use of a deadly weapon," and

the intention to kill.

To what I have offered (says he) with regard to sudden rencounters, let me add, that the blood, already too

much heated, kindleth afresh at every pass or blow. And in the tumult of the passions, in which meer instinct self-preservation, hath no inconsider∣able share, the voice of reason is not heard. And therefore the law, in condescension to the infirmities of flesh and blood, hath extenuated the of∣fence.

But the Law, in reality, makes no such condescension, though the Courts of Law have, indeed, indiscrimi∣nately done so, and have occasioned a mul∣titude of bad precedents, wherein wilful murder has been excused under the name of manslaughter; and this unhappy dif∣ference between the Law, and the cor∣rupt practice of the Courts, with respect to this point, has unwarily led the more modern writers on crown-law into con∣cessions, which are absolutely contra∣dictory to the just doctrines laid down in other parts of their excellent works.

When I speak of such respectable and justly revered authors as Sir Edward Coke, Sir Matthew Hale, Lord Chief Justice Holt, &c. No person can conceive that I am misled by personal or party prejudice against their opini∣ons; and as I have, really, the highest esteem and veneration for their memory, not only as great and learned lawyers, but as true patriots, and, above all, as sincere Christians, and worthy honest men, I should not presume to contro∣vert any point that has been laid down by such excellent lawyers (so accomplished as above) was I not armed by their own authority; for no other authority is suf∣ficiently authentic for the purpose of correcting such deservedly esteemed wri∣ters; though I must acknowledge my obligation to the more ancient writers for the discovery of the errors of which I complain.

The proper distinction to be observed

between murder and manslaughter is well laid down by Sir Matthew Hale. "Mur∣der" (says he)

being aggravated with malice presumed or implied, but man∣slaughter Not.

1 Hale's P. C. 466* 1.10.

This rule is good and unexceptiona∣ble; and therefore it must appear, that even Sir Matthew Hale himself is mis∣taken in the paragraph preceding this quotation, where he says that

Man∣slaughter, or simple homicide, is the vo∣luntary killing of another without ma∣lice express or implied:

for though there may be a voluntary striking with∣out malice, yet I hope I have already proved, that there cannot be a voluntary killing

without malice express or implied, except in the legal execution of justice, and in the case of self-defence and its several branches, which some writers (rather improperly have, indeed, called voluntarya 1.11 though they proceed from an inevitable neces∣sityb 1.12 Nevertheless even the great Sir Edward Coke (and before him the learn∣ed Lambard in his Eirenarcha, p. 250.) was guilty of this same impropriety of expression. "Some manslaughters" (says Sir Edward Coke, 3 Inst. cap. viii. p. 55.)

be voluntary, and not of malice forethought, upon some sudden fall∣ing out. Delinquens per iram pro∣vocatus puniri debet mitiusc 1.13 And this for distinction sake (says he) is called manslaughter.

But it is a very indiscriminate distinction (if I may

use such an expression concerning the writings of so great a man,) because the maxim "Delinquens per iram," &c. can only be admitted in case where the malice is neither express nor implied: for instance, when the Striking is volun∣tary; but the Killing, or Manslaughter, is involuntary, and unexpected; as when a man, in sudden anger, gives an un∣lucky blow merely with his fist, or with a small stick, or small stone,d 1.14 (meaning

only to correct) which, undesignedly, oc∣casions death; for, in such cases, the

malice is not implied; whereas, in a voluntary homicide, even a Malice pre∣pensed is implied, according to Sir Ed∣ward Coke's own definition of that term, viz. "That it is voluntary, and of set purpose, though it be done upon a

Sudden Occasion: for if it be Volun∣tary, the law implieth Malice,

3 Inst. c. xiii. p. 62.—Sir William Blackstone has also fallen into the same error in his 4th vol. chap. xiv. p. 191. where he in∣forms us that Manslaughter is

the un∣lawful killing of another, without malice either express or implied: which may be either voluntarily upon a sudden heat; or involuntarily, but in the

commission of some unlawful act.

In both of which he is also mistaken; for, with respect to the latter, his doctrine cannot be admitted, except in cases where the circumstances of the unlaw∣ful act amount only to a bare trespasse 1.15

For I propose, in the course of this tract, to mention several allowed cases, on

good authority, wherein even the invo∣luntary or undesigned killing is not deem∣ed manslaughter, but murder, when the acts, which occasioned death, were un∣lawful: and, with the respect to the for∣mer, it is a manifest inconsistency, in all these great writers, to rank voluntary killing under the head of manslaughter, in the modern confined sense of that once general term; because a voluntary kill∣ing (except in the case of self-defence,

through inevitable necessity, which some writers have, rather improperly, called voluntaryf 1.16) is certainly the same thing as a wilful killing; and either of them must be allowed to be the proper defi∣nition of what we now understand by the term Murder (though the meaning of that word was, originally, very dif∣ferent. See le Mirroir de justice, 1642, c. i. sect. xiii. p. 104. and Lambard's Eirenarcha, c. vii. p. 239.) because, in

a voluntary or wilful killing, malice is necessarily implied;

and, consequently, voluntary killing is excluded from the favour due to manslaughter by the rule

which these learned writers themselves admit, viz.

that manslaughter is with∣out out malice express or implied;

so that they are really guilty of a contradiction in terms; because the malice, or inten∣tion of killing, is undeniable, if the killing be voluntaryg 1.17: and therefore, as it is a maxim that

Allegans contraria non est audiendus

(Jenk. Cent. fo. 16.) I am compelled to reject the definition of manslaughter given by these learned writers, as far as it is contradictory to to that excellent rule, already cited, for the distinction of manslaughter from murder, which they themselves admit, viz. that

manslaughter is without malice express or implied.

The errors, of which I complain, were not originally occasioned by these cele∣brated

authors, but by a previous cor∣rupt practice in the courts, which had been introduced by degrees, and at last unhappily prevailed, through a false idea of mercy and consideration for sudden anger; and also through the want of preserving the proper distinction of cases, wherein manslaughter in sudden anger is really excusable. The proper distinction to be observed is, when the inten∣tion of killing is not necessarily impiled in the act itself; as when a man strikes ano∣ther merely with his hand, in sudden anger; or thrusts him suddenly from him, whereby he falls and receives a hurt, which occasions death; in these, and similar cases, the striking, or thrusting is, indeed, voluntary, yet the killing, or manslaughter, is not so, but entirely undesigned and unexpected; which proper and necessary distinction the Law Commentators have unhappily neglected. For, though the act of stri∣king

or thrusting in anger bears some re∣semblance to malice, and though such an act is certainly unlawful in itself, yet it is reasonable to make some allow∣ance for the frailty of human nature, and the sudden passion of a man that is provoked, whenever a more criminal malice is not necessarily impiled in the act itself, which occasions death. And in this lenity we are justified by the laws of God, whereby such cases of manslaughter in sudden anger, as I have mentioned, were excused without any other penalty than that of banish∣ment to a city of refuge.

If he thrusth 1.18 him suddenly〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉without

enmityi 1.19 (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Numb. xxxv. 22.) —the congregation shall restore him to the city of his refuge, &c.

v. 25.) Yet the very same action, if done in ha∣tred, (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 see the 20th verse) and even a blow with the hand in enmity, (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 see the 21st verse, apparently meaning, when there was an express proof of ma∣lice, or intention to kill,) were to be deemed unpardonable; "he shall surely die."

But, it is remarkable, that these are the only two cases wherein an express proof of malice was required; for in all the examples given in the same chapter of killing with a weapon, or with a stone wherewith a man may die, (meaning such a stone as from its shape or size might be deemed a sufficient weapon to occa∣sion death) there is not the least men∣tion

made of malice (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Hatred, or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Enmity) which is a sufficient proof that the same were necessarily implied from the stroke, when given with a weapon; for, in that case, the com∣mand was peremptory.

If he smite him with an instrument of iron, so that he die,

he is a murderer (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Retsch, or Killer, perhaps from thence the Eng∣lish word wretch) "the murdererk 1.20

shall

surely be put to death:

(v. 16.) the same also, if he smote him with

a stone wherewith he may die,) or with an hand weapon of wood.

But in none of these cases is there the least mention of malice; which was, therefore, most certainly implied: and the congregation (to which our trials per Pares are in some degree similar) were to judge

"according to these judgments;" see 24th verse. For the slayer was not to die, un∣til he stood before the congregation in judgment; see 12th verse: and then, if it did not appear, that the killing was at unawares (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in error) see 11th verse, or, as the same meaning is ex∣pressed in different words in Deut. xix. 4. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ignorantly, or without know∣ledge (agreeable to the example, there laid down, for all other cases of mere misfortunel 1.21) the malice was presumed

from the weapon with which the stroke was made; for the hatred〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and en∣mity

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 were never enquired after in any cases where a wilful stroke was given with "an instrument of iron," or

a weapon of wood,

or even with "a stone (wherewith a man may die)" that is, if it were such a stone as was appa∣rently capable of occasioning the death of a man (see Numb. xxxv. 16. to 19.) all which crimes were unpardonable by the law of God; "he shall surely die."

And the Levitical Law is, certainly, in this point, still binding, even under the dispensation of the gospel; because the reason and justice of it still subsists, as in other moral laws.

So that the allowance usually made for sudden anger, when the blow is given with a weapon, is so far from deserving the name of "a proper distinction in the crime of killing," (as some contend) that

it is apparently founded in a want of that proper distinction, which the laws of God and reason require, concerning cases of manslaughter, wherein sudden anger is really excusable; which can only be when the killing is not voluntary, or, at least, the intention of killing not apparent; as in the cases before-menti∣oned of a man striking another merely with his hand,m 1.22 or fist, in sudden anger; or the sudden thrustingn 1.23 a man down,

by which he is hurt in falling, so that death unexpectedly ensues. In these and similar cases the malice or the inten∣tion of killing is not necessarily implied in the action itself; and, therefore, if all the other circumstances are also free from premeditated malice and laying in wait, the law has reserved a reasonable use of an unreasonable popish indulgence, called The Benefit of Clergy, to relieve the undesigning manslayer (if the occasion

was not unlawful) from the too great severity of the common law; for in such cases we may safely admit Sir Ed∣ward Coke's maxim,

Delinquens per iram provocatus puniri debet mitius,

3 Inst. 55.o 1.24

But a false idea of mercy, and consi∣deration for sudden anger unhappily pre∣vailing in the Courts, this lenity was indiscriminately extended even to cases where the prepensed malice was necessa∣rily implied by the stroke; so that the wretch, who stabbed his neighbour in brutal anger, escaped with impunity, to the scandal of public justice. The bad effects of this false mercy, and injustice, became so notorious in the reign of King James I. that the legislature was obliged to seek a remedy; and a statute was then made (1 Jac. I. c. 8.) by which the

benefit of clergy was taken away from

the offence of mortally stabbing an∣other, though done upon sudden provo∣cation.

Judge Blackstone's Com. b. 4. c. xiv. p. 193. But unfortunately this remedy proved almost as indiscrimi∣nate as the abuse intended to be correct∣ed by it; for it takes no notice of any other crime than that of stabbing; as if sudden anger was not equally criminal, when a man is killed "by throwing a hammer or other weapon;" or by

a shot with a pistol.

Ibid. p. 194. Whereas, in truth, no new law was wanted: nothing but a better admini∣stration of the old laws before-menti∣oned; for, in all such furious sallies of sudden anger, the malice was necessarily implied, or presumed, from the weapon, as well in the laws of God (which I have already shewn) as in the law of nations: —"Ex telo praesumitur malum consilium (says the learned Grotius)

nisi contra∣rium

appareat.

p 1.25 And in his second book, de Jure Belli & Pacis, he remarks, "that either iron, a club, or a stone, comes under the denomination of a weapon.

Teli autem nomine ferrum, fustis, & lapis venit,

c. i. p. 175.

The reason of the severity in the di∣vine law, against striking with a weapon, is well expressed by Dr. Wells in his paraphrase on Numbers xxxv. 16 to 19.

Forasmuch (says he) as though he might have no malice to him before∣hand, yet his striking him with a sword, or hatchet, &c. shews he had an intention to do him mischief;

and, as another writer remarks

though per∣haps he had no formed intention to kill the person; yet he ought to have mo∣derated his passion, and could not be

ignorant that such an instrument was capable of inflicting a deadly wound,

And, therefore, when a man is killed with a weapon (except it be by misfor∣tune, or in self-defenceq 1.26, when the Slayer could retire no further to save himself without striking; or else in such law∣ful and reasonable cases, wherein a man is not obliged to give back; as in the case of a peace officerr 1.27 who is assaulted

in his duty; or when any other man en∣deavours to keep the peaces 1.28 or to save ano∣ther person from violence and oppressiont 1.29;

or a womanu 1.30 in the necessary defence of chastity; or when any person resists the

attack of a Robberw 1.31) I say, excepting these, and similar cases, if a man wil∣fully

strikes another with a weapon in sudden anger, the design of killing is, by

"the weapon, rendered express, as I have before observed, though the

prepensed malice

may, perhaps, more properly (upon a sudden provocation) be said to be implied; and it, certainly, is implied or presumed in law, though the sudden anger was but a moment before the fa∣tal strokex 1.32; so that, if no proof can be

produced by the prisoner, of an inevita∣ble necessity, as in se defendendo, the act must, in reason and justice, be deemed "wilful murder of malice prepensed," such as was sufficiently excluded from the benefit of clergy by two express acts of parliament (23 Hen. VIII.c. i. and 1 Edw. VI.c.xii.) previous to the undistinguishing act of James I. against stabbing.

By an act of the 2 Edw. III. it was ordained that a charter of pardon

shall not be granted, but only where the

king may do it by his oathy 1.33 that is to say, where a man slayeth another

in his own defence, or by misfortune.

Now with respect to the first case, viz.

"in his own defence," (or se defendendo) "all writers, both antient and modern,

agree, that the killing of a man must

bez 1.34inevitable, and that the manstayer must be able to prove, that he retired; and that he was obliged, ex necessitate, to strike, in order to save his own life; a plea which cannot be admitted in fa∣vour of a Man, who has accepted a challenge; or who has drawn his sword, in sudden anger, merely to revenge an affront.

And with respect to the second par∣donable case, mentioned in the said act of Edw. III. viz. by Misfortune, I must ob∣serve, that there are some cases of ho∣micide that may even be said to happen by misfortune, or without intention, which are, nevertheless, deemed Murder. And the severity of the law, in this respect, will enable me, by comparison, to point out, more clearly, the absurdity and in∣justice of excusing homicide, in consi∣deration of sudden anger, when the mor∣tal stroke is given with a weapon in rencounters.

The cases of Misfortune or Accident, which are deemed Murder, are those wherein the act, which undesignedly occasions death, is in itself unlawfulaa 1.35.

If the act be unlawful (says Lord Coke) it is murder. As if A. meaning to steal a deer in the park of B. shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush; this is murder, for that the act was unlawful, although A. had no intent to hurt the boy, nor knew not of him.

3 Inst. 56. Lord Chief Justice Holt, indeed, says it is but manslaughter; in which he is mistakenbb 1.36. (See his Edition of Kelyng. Rex versus Plummer, 117.) But whether this be deemed murder or manslaughter, the killing is merely accidental, or by mis∣fortune; and, therefore, is certainly a much less crime than that of aiming at,

and striking a man with a weapon, or shooting at him in sudden anger, howso∣ever great the previous affront may have been. For, in the former case, though the shooting at a deer belonging to an∣other person is both unlawful, and vo∣luntary, yet the manslaughter, which it accidentally occasions, is involuntary, and without intention; whereas in the vo∣luntary aiming, and shooting at a man, the act itself is not only unlawful, but implies malice; or rather, I may say, the malice is expressed by the act; and the sudden anger is so far from being an ex∣cuse, that it is, absolutely, a further proof of the malice and intention of killing. The malice was also implied in the case of the Lord Dacres, though his Lordship was not half so criminal in his unlawful hunting, as the passionate man who strikes with a weapon. See how the case is mentioned by Lord Chief Justice Kelyng, (Rep. p. 87. published by Judge Holt.)

The Lord Dacres and Mansell, and others in his company came unlawfully to hunt in a forestcc 1.37, and being resisted, one of the company, when the Lord Dacres was a great way off, and not present, killed a man; judged murder in him and all the rest, and the Lord Dacres was hanged.

Lord Chief Justice Holt supposes a case in his Rep. of Rex versus Plummer, p. 117. in the same book, which is in some degree similar.

So (says he) if

two men have a design to steal a hen, and the one shoots at the hen for that purpose, and a man be killed, it is murder in both, because the design was felonious.

See also the last para∣graph of p. 56.3 Inst. concerning the shooting at a tame fowl, of which this case, supposed by Judge Holt, is an ex∣planation. But surely the design must be much more felonious when a man wilfully strikes his neighbour with a weapon in sudden anger; because this must neces∣sarily be allowed to be an act

com∣mitted felleo animo, with a fell, furi∣ous, and mischievous mind and intent,

which is Lambard's definition of felony, c. vii. p. 224.

The implication of malice in the owner of a beast that kills a man, after warn∣ing given, will also further illustrate what has been said; for though mere carelessness or inconsideration might oc∣casion

his neglect, so that the accident may, in some degree, be esteemed a misfortune, yet the law implies malice;

for if one keep a mastiff dog (says Sir James Astry, in his charge to grand juries, p. 18.) that is used to bite peo∣ple near the common highway; or bull or beast, that hath hurt any one (after notice) they kill any one, that will be murder in the Owner, although not present when the fact was done; and yet in this, and the other precedent cases, here is no express malice to be proved, but what the law construes to be so:

this is agreeable to the doc∣trine of Judge Staunford, P. C. lib. i. cap. 9.

Que si home ad un jument que est accustomé male faire et le Owner ceo bien sachant, negliga luy, eins suffra d'aller a large, et puis le jument tua un home: que ceo est felo∣nie in le owner, eo que, per tiel suf∣ferance: le owner semble d'aver volunté

a tuer.

See also Crompton, p. 24. b. and 1 Hawkins, c. xxxi. § 8. And, according to Bracton, the Common Law imputes the death of a man by a beast, to any man, who follows, or drives the beast at the time of the misfortune;—

vel dum insequitur quis equum vel bovem, et aliquis a bove vel equo per∣cussus fuerit, et hujusmodi hoc imputa∣tur ei.

Bract. lib iii. c. iv. p. 120. b. If this law were still enforced, we should not have such continual complaints of accidents in the streets, by cattle, that are enraged, and made mad, through the cruelty of the two-legged brutes who drive them. For the first step that ought to be taken, in such cases, is, to seize the drivers; and, nineteen times out of twenty, it will be found, that the poor beast will recover it-self (when they are gone) from the excess of fear and rage which the Brutality of the hurrying

Driversdd 1.38 had occasioned; so that it is plain where the guilt is to be imputed: but yet even a brutal driver is not so base and detestable as the man who wilfully strikes with a weapon in sudden anger. And again, he who aims to strike or shoot at a man, and accidentally kills a different person (whom perhaps he did not see) contrary to his intention (or by misfortune as it were) is, nevertheless, deemed guilty of wilful murder, though he had not the least anger, or resentment, against the person killedee 1.39. But surely the

man who actually kills the person he aims at, in his anger, is at least as culpable! so that if sudden anger deserves no lenity in the former case, it certainly deserves none in the latter. Several cases also are mentioned by Sir William Blackstone, wherein sudden anger is not excusable, even though the death may be said to be "by misfortune," as there was no real intention of killing, yet rendered by the circumstances

equivalent to a deliberate act of slaughter.

See Comment. b. iv. chap. xiv. p. 199 and 200.

Also if even upon a sudden provocation (says he) one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by an express malice;

that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy that was steal∣ing wood, to a horse's tail, and drag∣ged him along the park; when a master corrected his servant with an iron bar, and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died; these were justly held to be murders, because the cor∣rection being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter.

But is not an express evil design as apparent, in the act of stri∣king a man with a weapon, in anger, (be the anger ever so sudden) as it is in these cases where death was not really intended? For surely the design of killing, is by the weapon rendered expressff 1.40; |which equally

fulfils "the genuine sense of malitia," tho' perhaps, the prepensed malice may, more properly (upon a sudden provocation as above) be said to be implied than express. But whether it be express or implied, it undoubtedly constitutes murder; for malice is the leading circumstance which distinguishes manslaughter from murder, and therefore an express evil design, such as is apparent in the voluntary killing of a man, cannot be admitted under the head of simple homicide or manslaughter, because the necessary difference is want∣ing in the degree of the offence according to the excellent rule before cited from

Sir Matthew Hale, viz.—

murder being aggravated with malice presumed or implied; but manslaughter not, &c.

1 Hale, P. C. 466.

I may probably seem guilty of much tautology in this little Work; but hope my Readers will excuse it, in considera∣tion of the necessity I am under, of re∣peatedly comparing the crimes of stri∣king with a weapon in sudden Anger, and of voluntary Killing, with so many other different cases, wherein even involuntary and accidental Killing have been solemnly adjudged Murder: and I apprehend that the severity of the Law, in the last∣mentioned cases, must sufficiently de∣monstrate such a general abhorrence in our Law to the shedding of Human Blood, that we cannot reasonably sup∣pose the same Law capable of admitting an excuse for voluntary Manslaughter on

any private difference, howsoever great the provocation. Nevertheless, Mr. Hawkins ventures to assert a very dif∣ferent doctrine in his Pleas of the Crown, 1 Book c. xxviii. § 24.

I see no reason (says he) why a person, who without provocation is assaulted by another in any place whatsoever, in such a manner as plainly shews an in∣tent to murder him, as by discharg∣ing a Pistol, or pushing at him with a drawn Sword, &c. may not justify Killing such an Assailant, as much as if he had attempted to rob him: for is not he, who attempts to Murder me (says he) more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life? And it is not only highly agreeable to reason, that a man in such circumstances may lawfully Kill another, but it seems

also to be confirmed by the general Te∣nor of our Law-books,

&c.

But howsoever specious this argument may appear, I hope I have already proved "by the general Tenor of our Law-books;" that the Justifiable Kill∣ing of a Man must be through an inevita∣ble necessity: and therefore what Mr. Hawkins afterwards advances, in his comparison of such a case with Homi∣cide in se Defendendo, cannot in the least justify either his opinion on that point, or his assertion concerning

the general Tenor of the Law-books.

He endeavours to represent the Volun∣tary Killing of a Man as Justifiable Ho∣micide, and consequently he must sup∣pose it a less crime than Excusable Ho∣micide, in se Defendendo.

He founds his opinion in the suppo∣sition of "some precedent Quarrel" in

the latter, "in which" (says he)

both parties always are, or at least may justly be supposed to have been, in some fault, so that the necessity, to which a Man is at length reduced to kill another, is in some measure presumed to be owing to himself:

&c.

But may it not, as "justly be supposed" that the person, who Kills without such necessity, is also "in some fault?" Is not the Presumption of Law against him (as I have elsewhere shewn) by the bloody FACT, when he cannot prove that he endeavoured, at least, to retreat, in or∣der to avoid unnecessary bloodshed? And is not FACT a more substantial ground for a criminal charge, than any idea that a Court can possibly form con∣cerning the Murderous Intentions, which the Killer may attribute to the person Killed?

The single circumstance that the Killer was under no necessity of endea∣vouring to retreat, and avoid the assail∣ant, is not only a proof that his own in∣tentions (though he might not be the first aggressor) were nearly as criminal, as those he attributes to the person Killed, but it also affords a strong presumption, that the latter was not very strenuous or sanguine, either in his attack, or in his supposed intention to commit murder: so that the very pretence, by which Mr. Hawkins endeavours to justify such a voluntary Killing, must necessa∣rily fall to the ground, whenever the Killer is unable to prove, that he endea∣voured to avoid the attackgg 1.41 And tho' the Deceased might have had

a Wea∣pon Drawn,

yet that circumstance affords no positive proof of his criminal

intention; for he might have thought himself obliged to draw in his own de∣fence, through a reciprocal suspicion of his adversary's criminal intentions: and as he cannot plead his own cause, it is reasonable that the Law should pre∣sume, that he really did draw in his own defence, especially as the circumstance, that the Killer was under no necessity of endeavouring to avoid him, affords a sufficient Ground for such a presump∣tion:

And even in cases where it may be supposed that the person Killed might really have had "an intent to murder," we ought to remember that the Laws of England do not punish men merely for their "criminal intentions" without some fact! and, therefore, it would be highly absurd to suppose, that the Law, with∣out some apparent necessity, would en∣trust every individual, indiscriminately,

with a supreme Authority, which it de∣nies even to the Highest and most solemn Courts of Justice; I mean an Authority to inflict capital punishment without a previous Trial per pares; and that mere∣ly for "a Criminal Intention;" which, in many cases, might as easily, (through fear, passion, or violent prejudice) be mistaken, or imaginary, as be real!

And therefore

an Assault upon the Person

is not (as I have before in∣sisted in p. 5. against the opinion of Judge Foster)

Provocation sufficient to free the Party Killing from the Guilt of Murder.

The case of Gentlemen in the Army, nevertheless, seems peculiarly hard upon such unhappy occasions. The first prin∣ciple of their profession is Courage; and the World, in general, is too de∣praved to distinguish in what cases a

Man of true Courage may retreat with honour from the Assault of an Enemy; so that Military Men are liable to be unjustly despised, whenever they act rea∣sonably in cases either of insult, or as∣sault!

Yet, at the same time, it ought to be remembered, that those men who sub∣mit to the Slavish Yoke of other Men's depraved opinions or unreasonable cus∣toms (in contradiction to that natural Knowledge of Good and Evil, which they inherit, in common with the rest of Mankind, from our first Parents), can∣not justly be deemed Men of Honour; and, consequently, are unworthy of Rank in the honourable Profession of Arms. And though such men may support an outward appearance of Cour∣age in the eye of the world, by daring to violate the Laws of God and Man in private Quarrels, yet that very act af∣fords

the most manifest token of the Want of real and steady Courage: for unless the submission to that depraved custom can be attributed to inconsidera∣tion, or to the want of Knowledge, it must necessarily be supposed, that the Duellist had not sufficient Courage to as∣sert his natural Right of Acting agreea∣ble to the Dictates of his own reason and conscience; and was unable to face the Terrors of an adverse Fortune in a good Cause; and therefore, like a wretched Coward, he yielded himself a prisoner and slave to the fashionable Depravity!

I am far from meaning however to charge all Soldiers with Cowardice that have fought Duels: sometimes Passion and false Pride, but more frequently in∣consideration, and ignorance of the Laws of God and Man (as I have before hint∣ed) occasion the base submission and conformity to those false and unreasona∣ble

notions of Honour, which almost uni∣versally prevail.

Nor do I so much blame the Military Gentlemen, for this unnatural depravity, as I do the Professors of the Law; who ought to have set them a better exam∣ple, and yet, have rather contributed to the ignorance of the times, by the many gross perversions of our Law, which they have admitted into the Books. Gen∣tlemen of the Army are not obliged, in∣deed, to acquire a critical knowledge of the Law, but they must not forget that they are Men, as well as Soldiers; and that if they do not maintain the Natural Privilege of Men, (viz. that of thinking for themselves, and acting agreeable to the Dictates of their own Conscience, as Members of the Commu∣nity), they are unfit for British Soldiers, of whom the Law requires an acknow∣ledgement of her supremacy.

For the Law will not excuse an un∣lawful Act by a Soldier, even though he commits it by the express Command of the highest military Authority in the Kingdom: and much less is the Sol∣dier obliged to conform himself impli∣citly to the mere opinions and false No∣tions of Honour, which his Superiors may have unfortunately adopted.—Even in publick military Service, or warlike Expeditions by National authority, the Law manifestly requires the Soldier to think for himself; and to consider, be∣fore he acts in any war, whether the same be just; for, if it be otherwise, the Common Law of this Kingdom will impute to him the Guilt of Murder.

And though the Law does not actually punish such general Crimes, as may un∣fortunately have obtained, at any time, the Sanction of Government, yet the time will certainly come, when all such

temporizing military Murderers must be responsible for the innocent blood that is shed in an unjust War, if they have rendered themselves accessaries to it by an implicit, and, therefore, criminal obe∣dience to the promoters of it.

Item fit Homicidium in Bello,

(says the learned Bracton)

et tunc videndum utrum Bellum sit justum vel injustum. Si autem injustum, tenebitur occisor: si autem justum, sicut pro defensione patriae, non tenebitur, nisi hoc fecerit corrupta voluntate et intentionehh 1.42

Men of true honour, therefore, at the same time that they are sensible of their duty as Soldiers and Subjects to their King, must be mindful that they are subject also to the empire of reason, and are bound thereby, in common with all mankind, to maintain the dignity and natural freedom of Human Nature: and

those Soldiers, who, in addition to their natural reason, have a true sense of Reli∣gion, will not only be mindful, that they are Soldiers and Subjects to an earthly King, but that they are also Soldiers and Subjects to the King of Kings; whose Laws and precepts they will, on all occasions, prefer to every other Com∣mand; and will obey the same with such a steady courage, as may be equal to every adversity, and undeserved suffering that threatens them.ii 1.43

It was this indispensible, this happy disposition, and sense of superior duty, which prevailed even in an unlawful standing Army, that had been raised, and was expressly designed for arbitrary purposes, and which, nevertheless, con∣trary to all expectation, exerted itself in saving this Kingdom, at the Glori∣ous Revolution, from the Political Slavery, which then threatened it, as well as from the more intolerable Tyranny of the Romish Religion.

The Soldier, therefore, who has not Courage enough to profess, on all occa∣sions,

a strict obedience to the Laws of his Country, according to the dictates of his own reason and Conscience, in prefer∣ence to every command, and every other opinion whatever, is unworthy of the British military service; being qualified rather to be inlisted with the slavish Troops of absolute Monarchs; or to serve in the Black Banditti of the Emperor of Morocco!

But I must return once more to the opinions of the Professors of Law—

it is saidkk 1.44 that if he who draws upon another in a sudden Quarrel, make no pass at him till his sword is drawn, and then fight with him, and Kill him, is guilty of Manslaughter only,

&c. 1 Hawkins Pleas of the Crown, c.xxxi. § 28. for which he quotes Kelynge 55.

61. and 131: but the pretence for this indulgence is as frivolous as the Doctrine is false, viz, "because (says Mr. Haw∣kins)

that by neglecting the opportu∣nity of Killing the other before he was on his guard, and in a condition to defend himself, with like Hazard to both, he shewed that his intent was not so much to kill, as to combat with the other, in compliance with those common notions of Honour,

&c.—But is not "the intent to kill," or to do some bodily harm, and certainly, at least, the Risque of Killing, included in the intention "to Combat" with dangerous weapons? And is it Justice? Nay! is it common Sense to excuse a Notorious Crime, by the Plea of an intention to commit another Crime almost as bad?

I have already shewn, by fair com∣parison with a variety of cases, that the crime of wilfully striking or Combating

with weapons in sudden Anger, is a much more unlawful act than many others, wherein even involuntary and accidental Homicide has been solemnly adjudged Murder, and has been generally admitted as such by the Sages of our Law in their Reports; and it will therefore be highly disgraceful to our Law, but more parti∣cularly (because deservedly) to the pro∣fessors of it, if they should still persist in the unreasonable and unjust practice of pu∣nishing lesser Crimes with more severity than the crying Sin of voluntary Man∣slaughter, which, as I have already proved in my preface, is absolutely un∣pardonable in this World, by the Laws of God!

Glory in the highest to GOD; And on Earth PEACE. Towards Men GOODWILL.

Notes

• a 1.1

  Pleas of the Crown 1678, p. 35. also 1 Hal. P. C. 425.
• b 1.2

  Fitzherbert's Justice of Peace, p. 21. Lambard's Eirenarcha, c. 7. p. 240. also 3 Inst. c. vii. p. 47.
• c 1.3

  1 Hal. P. C. 451.
• d 1.4

  P. C. 1678, p. 36.
• e 1.5

  Ibid. 36.
• * 1.6

  See my Remarks (in p. 〈◊〉〈◊〉, &c.) on Mr. Hawkins's assertions relating to this point.
• * 1.7

  In which case it is necessary to distinguish whether that Necessity was avoidable or not; for if it was avoidable and might have been evaded without Killing, then he shall be guilty of Manslaughter,

  (i. e. Murder in those days);

  but if it was inevitable, for that he killed the man without (any) prepence of hatred, (but) in fear and grief of Mind, in delivering himself and his own, when otherwise he could not escape, he shall not,

  (in such case)

  be held (or be liable) to the penalty of Murder.
• f 1.8

  Nota que la necessite doit etre cy graunde; que il doit estre existimé inevitable, ou autrement il n'ex∣cusera, &c. eins tout la matier consist in le inevitable necessité, sans quel, le tuer n'est ascun voi excusable. Staunford, P. C. lib. i. c. 7.
• g 1.9

  But I have already shewn that no provocation whatever can justify a voluntary or wilful killing.
• * 1.10

  See also the Statute 52 Hen. 3. c. 25. made at Marlbridge, A. D. 1267.—Title.

  What kind of Manslaughter shall be adjudged Murther. Mur∣ther from henceforth shall not be judged before our justices, where it is found misfortune only, but it shall take place in such as are slain by felony, and not otherwise.
• a 1.11

  Lambard's Eirenarcha 255. Sir Edward Coke's 3 Inst. p. 55 and 56.
• b 1.12

  See the note in page 4.
• c 1.13

  He who, provoked by anger, offends, ought to be more mildly punished.
• d 1.14

  See judge Foster's comment on Rowley's case, wherein the difference of striking with a dangerous weapon, and with a small stick, or cudgel not likely to destroy, is well expressed, pages 294 and 295.

  I have always thought Rowley's case (says he) a very extraordinary one, as it is reported by Coke, from whom Hale cites it. The son fights with another boy and is beaten; he runs home to his father all bloody; the father takes a staff, runs three quarters of a mile, and beats the other boy, who dieth of this beating. This is said to have been ruled man∣slaughter, because done in sudden heat and passion,

  (for which he cites 12 Rep. 87. and 1 Hale 453) "Surely" (continues judge Foster)

  the provoca∣tion was not very grievous. The boy had fought with one who happened to be an overmatch for him, and was worsted; a disaster slight enough, and very frequent among boys. If upon this pro∣vocation the father, after running three quarters of a mile, had set his strength against the child, had dispatched him with an bedgestake or any other deadly weapon, or by repeated blows with his cudgel, it must, in my opinion, have been murder; since any of these circumstances would have been a plain indication of the malitia, that mischievous vindic∣tive motive before explained. But with regard to these circumstances, with what weapon, or to what degree the child was beaten, Coke is totally silent. But Croke setteth the case in a much clearer light, and at the same time leadeth his readers into the true grounds of the judgment. His words are, Rowley struck the child with a small cudgel (God-bolt calleth it a rod, meaning, I suppose, a small wand) of which stroke he afterwards died. I think it may be fairly collected from Croke's man∣ner of speaking, that the accident happened by a single stroke with a cudgel not likely to destroy, and that death did not immediately ensue. The stroke was given in heat of blood, and not with any of the circumstances which import the malitia, the malignity of the heart attending the fact already explained, and therefore Manslaughter. I observe that Lord Raymond layeth great stress on this cir∣cumstance, That the Stroke was with a Cudgel not likely to Kill.
• e 1.15

  Which he himself elsewhere allows.

  Judge Foster in his second discourse of homicide, p. 258. where he treats of involuntary homicide in the commission of an unlawful act, informs us,

  that if it be done in the prosecution of a felonious inten∣tion it will be Murder, but if the intent went no farther than to commit a bare trespass, Man∣slaughter, Though I confess (say he) Lord Coke seemeth to think otherwise.

  That is, Lord Coke did not even make an allowance for "a bare tres∣pass," but seems to have been of opinion, That every case of involuntary homicide is to be treated as Murder, whenever the act which occasions death may be esteemed unlawful. See 3 Inst. p. 56. to which judge Foster refers. But that learned judge could not mean, that he differed in opinion from Lord Coke concern∣ing the first case there stated under the head of unlaw∣ful, viz. the unlawful shooting at a deer, whereby a boy was killed by the glance of the arrow; because that case must necessarily be esteemed Murder ac∣cording to judge Foster's own rule above-mentioned; for Lord Coke has clearly stated a felonious intention, viz.

  A. meaning to steal a deer in the park of B. &c.

  It must therefore appear, that he refers only to the 2d case, there mentioned, of a man shooting at a cock or hen, or any tame fowl of ano∣ther man's; for a person might wantonly shoot at another man's pigeons, or poultry, without any in∣tention to steal them; which, I conceive, would amount, to no more than a bare trespass in judge Foster's sense of the word; because

  voluntas et propositum distinguunt maleficia; furtum vero non committitur sine affectu furandi

  Fleta, lib. i. c. 33. p. 48. Whereas if Lord Coke had added, in the supposed case, that there was an intention to steal the tame fowl, Judge Foster could not, reasonably, have dissented from his opinion; because the crime must necessarily have been adjudged Murder according to his own rule; for the very same case has been so laid down by Lord Chief Justice Holt in a very clear manner, (see pages 56 and 57 of this tract) in order to explain Lord Coke's assertion; though Judge Holt himself is, as apparently, mistaken in his Judg∣ment of the other Case wherein the occasion was an intention to steal a Deer, which is, at least, as felo∣nious as the intention of stealing a Hen, that is, if the Deer be tame and inclosed in a Park (as stated by Lord Coke) by which the property is rendered ap∣parent: but if the case had been stated that the Deer was in a Forest or open chase, the offence (with∣out the accident) would be only a Trespass, (See Hawkins P. C. Book i. c. xxxiii. § 26); and the idea of this latter position may probably, have occasioned Lord Holt's mistake; for this circumstance would have rendered the accidental Killing of the Boy, only Manslaughter, agreeable to his opinions. Compare pages 54 and 57, wherein Lord Holt's opinions of these two Cases are mentioned.
• f 1.16

  Lambard's Eirenarcha 255. "The last member (says he) of voluntarie homicide is where one man kill∣eth another in his own defence, &c." and Sir Edward Coke, speaking of self-defence in 3 Inst. p. 55 and 56, says, "this is voluntary, and yet no felony." Sir Matthew Hale is more accurate; for when he speaks of homicide ex necessitate, he informs us

  that this necessity makes the homicide not simply voluntary, but mixed, partly voluntary and partly involuntary, and is of two kinds,

  &c. 1 vol. 478.
• g 1.17

  And where a man doth any cruel and voluntary act whereby death ensues, it is murder, though done of a sudden.

  See a little book dedicated to Lord Bathurst in 1724, intitled, The Laws of Liberty and Property, p. 67.
• h 1.18

  The thrusting, here mentioned (which some writers seem to have misunderstood) does not mean a thrust with a sword or other weapon; for the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 has no such meaning, but properly signifies a violent thrusting or shoving away, as with the hand; or a sudden driving away, as chaff is drove before the wind, as Bythner remarks, "Proprie dicitur de vento, qui rapta prosequitur." Lyra prophetica, p. 6.
• i 1.19

  Here a proper distinction is preserved between sudden anger and enmity.
• k 1.20

  The Word Murder was anciently understood in the same general sense, as the Hebrew 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 to kill; so that Judge Foster is mistaken when he says (p. 307.) that

  our oldest writers made use of the term murder in a very narrow limited sense.

  The Sense was afterwards, indeed, restrained to hidden manslaughter, whereof the author was not known; but in later times it was, still once more, changed to the sense in which it is at present understood, viz. that of wilful man∣slaughter, wherein "malice prepensed" is either express, or implied. See Lambard 2 Book c.vii. p. 239 and 240.

  In old time (says he) every killing of one man by another, was (of the effect) called murder, because death ensued of it. For (as Postellus noteth) of the Hebrew word Moth came the Latine Mors and thereof our elders (the Saxons) called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as we now sound it. Afterward (about the time of M. Bracton) murder was restrained to a se∣cret killing only: and therefore he, in the definition of murder saieth, that it is occulta occisio, &c. with whom Britton agreeth also. But since the statute (14 Edw. III.c. 4. by which the presentment of Englesherie was taken away) Murder is taken in a middle degree, neither so largely as it first was, nor so narrowly as it afterward became to be. For Mur∣der is now construed to be, where one man of malice prepensed killeth another feloniously, that liveth with∣in the realme under the protection of the queene, whether it be openly or privilie, and whether the partie slayne be English or alien.

  And then he proceeds to shew that the "malice prepensed" may be either apparent, or implied.
• l 1.21

  As when a man goeth into the wood with his neighbour, to hew wood, and his hand fetcheth a stroke with the ax to cut down the tree, and the head slippeth from the helve, and lighteth upon his neigh∣bour, that he die,

  &c. (Deut. xix. 5.) or as it may, rather, be rendered, the

  iron glanceth from the tree, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and findeth his neighbour, that he die;

  which corresponds, in some measure, with that less explicit case mentioned in Exodus xxi. 13. where God is said to deliver, him into his hand, or rather, to make him meet his hand, as Mr. Haak translated it in 1657; as if a man should accidentally come in the way of a stroke that was aimed at some other object: for

  as God is the Lord of life and death, whose Provi∣dence is over all his works, the scripture teaches us to ascribe to him all such events, as in common phrase, are called accidental.

  (Dr. Dodd) and so Castalio translates the passage. "In eum fortefortuna incur∣rerit;" which he further explains in a note as fol∣lows:

  In Hebraeo est, Deus ejus manui injecerit. Sed Deus pro fortuna Hebraicè ideo dicitur, quod quae putant homines casu fieri, utpote quae non prae∣viderint, ea Dei providentiâ fiunt, cui nihil fortuitum esse potest. &c.

  The learned Selden (who was most deservedly esteemed for his knowledge in the laws both of God and men) supposed also that the text in Exodus xxi. 13. might relate to involuntary homicide; and he accordingly refers to it from his first division of that head,

  Prima est quando 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ex errore & igno∣rantiâ simplici atque infortunio, nec tamen sine culpâ levi ex negligentiâ aliquâ, qualem prudentiores seu cordatiores sugerent, contractâ, omnino interea nolens quis hominem occiderat; juxta illud in lege sacrâ (Exod. xxi. 13.) Qui non est insidiatus, sed Deus tradidit illum in manum ejus, ponam tibi locum quo confugiat.

  (1 Tom. Tract. de Jure Naturali & Gen∣tium, cap. ii. de homicidio involuntario, seu quod casu sactum ac errore, &c.)
• m 1.22

  See a case supposed by Judge Holt in his edition of Kelyng's Reports, 131. Regina versus Mawgridge.

  Suppose (says he) upon provoking language given by B. to A. A. gives B. a box on the ear, or a little blow with a stick, which happens to be so unlucky that it kills B. who might have some imposthume in his head, or other ailment, which proves the cause of his death; this blow, though not justisiable by law, but is a wrong, yet it may be but manslaughter, because it doth not appear that he designed such a mischief,
• n 1.23

  See the case of Thompson and Daws, cited by Lord Chief Justice Holt, in the case Rex versus Plu∣mer, (Kelyng, p. 115.)

  Thompson thrust away Daws, and threw him down upon an iron in the chimney, which broke one of his ribs, of which he died; this, upon a special verdict, was held to be only manslaughter, though the peace was broke, and the person slain came only to keep the peace; and it is the same if he had been constable,

  that is, if he did not declare his intention, (as it is after∣wards explained) and charge the offending parties, in the king's name to keep the peace. This case is pro∣perly excuscable manslaughter, because it did not ap∣pear that the killing was voluntary, though the "thrusting away" was voluntary; and therefore the malice, or intention, was neither express nor implied, as in murder.
• o 1.24

  "He who, provoked by anger, offends, ought to be more mildly punished."
• p 1.25

  From the weapon the evil intention is presumed, unless the contrary should appear.
• q 1.26

  Regularly, it is necessary that, the person, that kills another in his own defence, fly as far as he may to avoid the violence of the assault before he turn upon his assailant; for though in cases of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in cases of as∣saults and affrays between subjects under the same law, the law owns not any such point of honour, be∣cause the king and his laws are to be vindices in∣juriarum, and private persons are not trusted to take capital revenge one of another.

  1 Hale, p. 481.
• r 1.27

  If a gaoler be assaulted by his prisoner, or if the Sheriff or his Minister be assaulted in the execution of his office, he is not bound to give back to the wall, but if he kill the assailant, it is in law adjudged se∣defendendo, though he gave not back to the wall. The like of a constable or watchman,

  &c. 1 Hale, p. 481. For which he quotes Co. P. C. p. 56. 9. Co. Rep. 66. b. Machally's case.
• s 1.28

  Ou il purra dire que il le tua en defendaunt nostre pees, &c.

  Britton, p. 44. b.
• t 1.29

  For it is the duty of every man to interpose in such cases, for preserving the public peace, and pre∣venting mischief.

  Foster, p. 272. for which he refers to Stanf. 13. & 2 Inst. 52. And in the latter place there are several cafes mentioned wherein a pri∣vate person may lawfully interfere by warrant in law without writ.—Lord Hale also allows, that

  every man is bound to use all possible lawful means to prevent a felony, as well as to take the felon, and if he doth not, he is liable to a fine and imprison∣ment, therefore if B. and C. be at strife, A. a by∣stander, is to use all lawful means that he may, without hazard of himself, to part them, &c.—If A. be travelling, and B. comes to rob him, if C. falls into the company, he may kill B. in desence of A. and therefore much more, if he come to kill him, and such his intent be apparent; for in such case of a felony attempted, as well as of a felony committed, every man is thus far an officer, that, at least, his kill∣ing of the attempter in case of necessity, puts him in the condition of se defendendo in defending his neigh∣bour. 1 Hale, p. 484 & 485.

  Ou il purra dire que tout fist il le fait, nequedent ne le fist il mye par felonie purpense, mes par necessite soy defendaunt, ou sa femme, ou sa meason, ou sa meyne, ou son seig∣niour, ou sa dame de la mort, &c. Britton, p. 44. b.

  —And again,

  ei qui justè possidet, licitum erit cum armis contra pacem venientem ut expellat, cum armis repellere, ut per arma tuitionis et pacis, quae sunt justitiae, repellat injuriam, et vim injustam, et arma injuriae: sed tamen cum talis discretionis moderamine, quod injuriam non committat, non enim poterit sub tali pretextu hominem interficere, vulnerare, vel male tractare, si alio modo suam tueri possit possessionem. Ei igitur qui vult viribus uti, erit viribus viriliter resistendum cum armis vel sine, juxta illud. Cum fortis armatus, &c.

  Bract. l. 4. c. 4. 162. b.
• u 1.30

  A woman in defence of her chastity may law∣fully kill a person attempting to commit a rape upon her. The injury intended can never be repaired or forgotten,

  &c. Foster 274.
• w 1.31

  Thorp dit que chescun home peut prender larons, et s'ils ne voilent soi render, mes estoient al defens ou fuont; in tiel cas il les peut occire sans blame. Staund∣ford, p. 13, Also,

  If a thief assault a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony.

  1 Hale, p. 481. for which he quotes Co. P. C. p. 56.—But this rule is subject to just restrictions; for even a thief is not to be killed but through necessity, "Si alio modo suam tueri possit possessionem, &c. See the preceding quotation from Bracton.—Judge Hale, indeed, seems to think that a thief may lawfully be killed, if he can∣not otherwise be taken.

  If a person (says he) be in∣dicted of felony, and flies, or being arrested by war∣rant or process of law upon such indictment, escapes and flies, and will not render himself, whereupon the officer or minister cannot take him without killing of him, this is not felony,

  &c.

  But if he may be taken without such severity, it is at least manslaughter in him that kills him: there∣fore the jury is to enquire whether it were done of necessity or not.

  1 Hale 489. for which he cites 3 E. 3. Coron 288.22 Assiz. 55. Stamf. P. C. lib. 1. cap. 5. fol. 13, b. But this doctrine requires some further restriction; for the necessity of taking a thief, or retaking a prisoner, or that of executing a civil writ is not so great as to justify killing when the person endea∣vours to escape merely by flight; the Necessity can only be founded in his resistance, from which no man is bound to give back: and this will appear by Lord Hale's own words in another place, viz.

  But if the prisoner makes no resistance, but flies, yet the officer, either for fear that he or some other of his party will rescue the prisoner, strikes the prisoner, whereof he dies, this is murder, for here was no assault first made by the prisoner, and so it cannot be se defendendo in the officer.

  —And again,

  If a man be in dan∣ger of arrest by a capias in debt or trespass, and he flies, and the bailiff kills him, it is murder,

  &c. 1 Hales 481. The same point is still more accurately explained by Judge Foster, chap. 2. p. 271.

  I ra∣ther choose to say (says he) it will be murder or man∣slaughter, as circumstances may vary the case. For if the officer in the heat of the pursuit, and merely in order to overtake the defendant, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon, not likely to kill, and death should unhappily ensue, I cannot think that this will amount to more than manslaughter, if in some cases even to that offence. The blood was heated in the pursuit, his prey, a lawful prey, just within his reach, and no signal mischief was intended. But had he made use of a Deadly Weapon,

  (here is the proper distinction for which I contend)

  it would have amounted to Murder. The mischievous vindictive spirit, the Malitia, I have already explained, which always must be collected from circumstances, deter∣mineth the nature of the offence.
• x 1.32

  I would willingly except from this rule (If I may be allowed to do so) that sudden anger, which of all others, is most deserving of indulgence and privilege, as being incited by the most atrocious injury and affront, that one man can possibly receive from another; so far doth it surpass in villainy every other act of injustice and dis∣honesty; I mean

  the case of a husband taking the Adulterer in the manner:

  to this case alone (as Lord Bacon informs us) the ancient Roman law restrained

  the privilege of passion to that rage and provocation only,

  (says he)

  it gave way, that it was an homi∣cide (which) was justifiable. But for a difference to be made

  (adds the learned Chancellor)

  in case of kill∣ing and destroying man upon a fore thought purpose

  (as in the case of duelling)

  between foul and fair, and as it were between single murder and vyed murder; it is but a monstrous child of this latter age, and there is no shadow of it in any law, Divine or Human!
• y 1.33

  This Statute was confirmed and enforced by two subsequent statutes of the same reign (10 Ed. 3. c. 2. and 14 Ed. 3. c. 15.) in the plainest terms that words are capable of expressing; yet were they not sufficient to root up the disloyal practice of pardoning murderers: for in the following reign, King Richard the II. (as if in preparation to his own destruction) paid so little regard to these just and necessary laws, that in the par∣liament of his 13th year, the Commons made

  grievous complaint

  see 13 R. 2. St. 2.)

  of the outrage∣ous mischiefs and damages which have happened to his said realm, for that Treasons, Murders, and Rapes of Women be commonly done and committed, and the more because charters of pardon have been easily granted in such cases;

  and

  the said Commons re∣quested quested our Lord the King, that such charters might not be granted.

  The three former Statutes were then, as they still are, unrepealed, and no subsequent Statute had at that time been made, that could possibly be construed to affect them, or abate their force, so that the King's disloyalty in granting such prohibited charters was notorious; and his answer to the Com∣mons was not less disloyal than his practice, viz.

  That he will save his liberty and regality as his pro∣genitors have done heretofore.

  Richard, however, consented to admit some considerable limitation of his pretended prerogative in pardoning murder. See 2 stat. c. 1. whereby it is ordained,

  that no charter of par∣don from henceforth shall be allowed FOR MURDER, or for the death of a man slain by await, assault, or malice prepensed, Treason or Rape of a Woman, un∣less the same murder, &c. be specified in the same charter.

  On a slight view, the word "UNLESS" may seem, by a negative implication, to admit the al∣lowance of a charter of pardon for murder; but Sir Edward Coke has remarked upon it, that

  the inten∣tion of the said act of 13 R. 2. was NOT that the King should grant a pardon for murder, by express name in the charter; but because the whole Parliament con∣ceived, that he would never pardon Murder by special name for the causes aforesaid, therefore was that pro∣vision made, which was grounded

  (says he)

  upon the Law of God, Quicunque effuderit humanum san∣guinem, fundetur sanguis illius; ad imaginem quippe Dei creatus est Homo. NEC ALITER EXPIARI POTEST NISI PER EJUS SANGUINEM qui alterius sanguinem effuderit.

  (Gen. 9.6. Num. 35.33.) So that this learned Lawyer really resolves

  THE INTENTION OF THE SAID ACT

  into the doc∣trine of the Divine Law, for which I contend, viz. "that blood" (i. e. wilful murder)

  cannot be expiated but by the blood of the guilty.

  And happily the Act seems also to have been effectual to accomplish that intention; for the learned Judge Blackstone, after citing Sir Edward Coke's opinion, that it was

  NOT THE INTENTION of the Parliament, that the King should ever PARDON MURDER under these aggrava∣tions

  &c. adds, "and it is remarkable enough" (says he)

  that there is NO PRECEDENT OF A PAR∣DON in the register for any homicide than that which happens SE DEFENDENDO, or PER INFORTUNIUM.

  And with respect to the determination of the Court of K. B. cited by Salkeld 499, that the King may par∣don on an indictment of murder, as well as the subject may discharge an appeal; I observe, that the force of the learned Judge Holt's argument for that doctrine, rests on the repeal (in 16 R. 2. c. 6.) of the restrictions, and great difficulties which are put upon those that shall be suitors for a pardon of murder in this Act of 13 R. 2. which (said he)

  were found GRIEVOUS TO THE SUBJECT:

  But that worthy and upright Judge would have acted on this point more like himself, if he had previously examined the nature of the supposed griev∣ance, whereby he would have known, whether it was really true and just, or only fained? For if the alledged "grievance to the subject" was only an unjust sugges∣tion, the whole Statute of Repeal, as far as relates to this point is null and void for the want of truth, as well as for being contrary to the 2d foundation of Eng∣lish law, "for contra veritatem nihil possumus:" and again "contraveritatem lex nunquam aliquid permittit". (2 Inst. 252 Plowden, &c.) But above all, the FATAL END of King Richard II. should warn and deter all fu∣ture Monarchs from presuming to assert a PREROGA∣TIVE TO PARDON MURDER. The ill-fated Mo∣narch by his ignorance of the nature of Royal Preroga∣tive in a limited or politic government, prepared the way for his own destruction, not considering that his regality had no foundation but the law; and that his neglect of the latter, did necessarily undermine the former, which he afterwards severely experienced when compelled to deliver up both Crown and Regality with a public con∣fession of his own unworthiness to bear them: And it is remarkable, that the murders which had increased through his criminal indulgence, were awefully retali∣ted afterwards in his own blood: for, at last, he was himself, also, most cruelly and wickedly murdered, con¦trary to the laws of God and man, as if the blood which he had unjustly refused to cleanse from the land, and ex∣piate by the blood of the guilty, had fatally rested on his own head!!!
• z 1.34

  "It must be inevitable necessity." (Pleas of the Crown, 1678, p. 33.) "upon an inevitable cause." 3d Inst. chap. 8. p. 55 and 56.—

  but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

  3 Blackstone 4—"this is not excuseable se defendendo, since there is no absolute necessity,"—&c. 4 Blackstone 191.

  Eins tout la matier consist in le inevitable necessite, sans quel le tuer n'est Ascun Voi Excusable.

  Staunford, P. C. lib. 1. c. 7.—

  He must flie so farre as he may, and till he be letted by some wall, hedge, &c. —that his necessitie of defence may be esteemed alto∣gether great and inevitable,

  &c. Lambard's Eiren. c. 7. p. 256. See note in p. 41.
• aa 1.35

  For if the act be unlawful, I mean, if it be Ma∣lum in se, the case will amount to felony, either murder or manslaughter, as circumstances may vary the na∣ture of it. If it be done in prosecution of a felonious intention, it will be Murder; but if the intent went no further than to commit a bare trespass, manslaughter.

  Judge Foster, p. 258.

  Though I confess (says he) Lord Coke seemeth to think otherwise.
• bb 1.36

  See note in ps. 23, 24 and 25, and Judge Holt's own opinion on another case quoted in p. 56.
• cc 1.37

  Judge Kelynge was mistaken in this point: for the Lord Dacres probably would not have been treated with such severity, if the Trespass had been in a Forest or open chace; but it was in a Park belonging to Mr. Pelham in Surry (Crompton 25.) so that the unlawful Hunting was more than a bare trespass. See note, p 23, 24, and 25. See also 1 Hawkins, cap. xxxi. § 46. where another ground for the imputation of Murder, in that case, seems to be assigned, viz. a Resolution of Divers Persons to resist all opposers in the commission of a breach of the peace; though it be only, as he calls it, a bare breach of the peace.
• dd 1.38

  —

  Si quis operam rei dederit illicitae, ut cum quis Boves velociter fugaverit, quorum unus obviando hominem cornu occiderit, fugatori imputabitur, quia diligentiam quam potuit non adhibuit.

  Fleta, lib. i. c. xxiii. p. 34.
• ee 1.39

  Homme sagitta a un ex malicia praecogitata, et luy misse, et tue autre qui estoit decost, et a qui nad malice, unc' il est murder, eo que il ad intent de mur∣der. Crompton's edition of Fitzherbert's Justice of Peace, p. 23.—

  As if a man, says Judge Holt, out of malice to A. shoots at him to kill him, but misses him and kills B. it is no less a murder than if he had killed the person intended,

  Lord Chief-Justice Holt's Rep. of Rex versus Plummer, in Kelyng's Rep. p. 111. for which he quotes Dyer, p. 128. Cromp. p. 101. Plowden's Com. p. 474. Saun∣ders's case, 9 Rep. 91. Agnes Gore's case.
• ff 1.40

  If one executes his revenge upon a sudden provo∣cation in such a cruel manner, with a dangerous wea∣pon as shews a malicious and deliberate intent to do mischief, and death ensues, it is express malice from the nature of the fact, and murder.

  Wood's Inst. 3 Book, p. 608. And this must always be the case when men presume to decide their quarrels with dan∣gerous weapons, be quarrels ever so sudden and unpre∣meditated: for the "malice" is by the weapons, expressed, and the "malice prepensed" is therefore im∣plied. "Ex telo praesumitur malum consilium," &c. See p. 39.
• gg 1.41

  I have already made the necessary exceptions con∣cerning Civil Officers in the legal Execution of jus∣tice, &c.
• hh 1.42

  Bracton, Lib. 3. c. 4. de Corona, p. 121.
• ii 1.43

  This doctrine is censured by a Critic in the Monthly Review for Jan. 1774, who calls it "a strange Princi∣ple!" In an age of Infidelity, indeed, it may, perhaps, be allowed (in one sense) to be "a strange principle"; but then we have the greatest reason to lament the igno∣rance and depravity of those men who esteem it so in any other sense, than that of being too often neglected and transgressed! For I trust that no man, who admits or believes the divine authority of the Holy Scriptures, will doubt the truth of it. If this "strange principle" had not been equally true, the English nation would long ago have been enslaved, and even the very standing Army itself would, by this time, have been reduced to that abject state of political slavery, which disgraces the standing Armies of unlimited Monarchies, and renders them very truly the "Abomination of Desolation," and the Belluina Potestas, or power of the Beast, against which the vengeance of the Almighty is denounced in the Holy Scriptures. See a Note on the word command, or imperium in p. 59 of my Tract, on the

  Means of national Defence by a free Militia.
• kk 1.44

  This opinion is in the true stile of a Tradition, such as those, by which the Jews of old "perverted the Law."