A TRACT ON DUELLING: WHEREIN The Opinions of some of the most celebrated Writers ON CROWN LAW ARE EXAMINED AND CORRECTED Either by the Authority of the
same Writers,
declared in contradictory Sentiments on the same Subject collated from other Parts of their Works, Or, by the solemn Decisions of
more ancient Writers of
(at least)
equal Authority;
in order to ascertain the due Distinction between MANSLAUGHTER AND MURDER.
By GRANVILLE SHARP.
LONDON: (FIRST PRINTED IN 1773) SECOND EDITION WITH ADDITIONS PRINTED FOR B. WHITE AND SON, FLEET-STREET; AND C. DILLY, IN THE POULTRY. MDCCXC.
Whoso sheddeth Man's blood, by Man shall his blood be shed: for in the image of God made he Man.
(Gen. ix. 6.)
For blood it defileth the land.
(Num. xxxv. 33)
There cannot, therefore, be any legal
Prerogative
to pardon
wilful Manslaughter,
but only where the King may do it BY HIS OATH,
that is to say,
where a Man slayeth another
in his own defence,
or by
misfortune.
(2 Ed. iii.)
To pardon without one or other of these two favourable circumstances would be an act highly
disloyal
to GOD and MAN, and even to THE LAND; for
THE LAND
cannot be cleansed of the blood that is shed therein, but the blood of him that shed it.
(Num. xxxv. 33.)
Caedes manifestè numerantur inter scelera nullo humano jure expiabilia.
(3 Inst. 47.)
PREFACE.
THE intention of the following Tract is to prove that the plea of
sudden Anger
cannot remove the imputation and guilt of
Murder,
when a
Mortal Wound
is
wilfully
given
with a weapon:
That the indulgence allowed by the Courts to
voluntary Manslaughter
in Rencounters, and in sudden Affrays and Duels, is
indiscriminate,
and without foundation in Law:
And that
impunity
in such cases of
voluntary Manslaughter
is one of the principal causes of the
continuance
and present
increase
of the
base
and
disgraceful
practice of Duelling.
Universal Benevolence, including
gentleness, patience
and an unaffected
placability
in our behaviour, even towards those men who injure and affront us, is manifestly required of all men, who profess the true religion; and yet, unhappily for the Christian world, this most obvious doctrine of the
gospel of peace,
is too commonly either misunderstood, or else absolutely rejected, though the
temporal
as well as the
eternal happiness
of mankind, greatly depends upon a conscientious and proper observation of it. For a man cannot be a true Christian without observing this doctrine; and yet, so generally received is the opposite and contradictory doctrine, concerning the necessity of revenging every personal affront with sword and pistol, for the sake of, what is falsely called,
honour,
that a true Christian is rarely to be with! Nay, we are fallen into such gross depravity, that the writer of a late publication on
the principles of penal law,
has ventured to assert, (tho' he is in other respects, as I am informed, a sensible and ingenious young gentleman) that
the judge condemns the duellist, whilst he scarcely knows how in his own heart to disapprove his behaviour.
(p. 224.) So that one would suppose Christianity to be almost entirely extinct amongst us, if its principles are so little regarded,
even in our courts of justice,
where they ought to be held
most sacred.
My readers, perhaps, will start at such an idea in these enlightened days of reformation; but I will even go farther, and venture to assert, that the Europeans not only cease to be Christians, but will no longer deserve the name even of
men,
if they persist in such a brutal and diabolical contradiction to the most indispensible principles of the laws of God and nature: for nothing deserves to be esteemed
human
that is
unreasonable;
and the depravity, of which I complain, is not only incompatible with the laws of God, but absolutely inconsistent with
common sense.
Let us view the character of the
modern man of honour
(falsely so called) who thinks it inconsistent with his reputation, to pass over a personal affront with that Christian submission, which the gospel requires of all men, without exception.
Such an one perhaps will alledge, that his
honour
obliges him, whenever he receives an affront, to
call out
his adversary, or
to accept his challenge,
lest his
courage
should be questioned; and therefore in such case, the one must give, and the other take, what is commonly called
gentleman-like Satisfaction.
But let us examine this perversion of words. The
Satisfaction
to both parties is the risk both of
body
and
soul,
in the perpetration of a most
dishonourable, base,
and
cowardly felony;
which cannot, therefore, be
gentleman-like,
whatever the
satisfaction
of it may be. And 1st. It is
Felony;
because no man can give, or accept, a challenge, without being guilty of
Wilful Murder,
if he
kills
his antagonist; which I hope is proved in the course of the following tract. 2ndly. It is
dishonourable,
because it is an open violation of the indispensible principles enjoined in the two great commandments of the supreme Law, viz. the
love of God,
and the
love of our neighbour:
for, in this respect, the offender is upon the same footing as culprits for
burglary, theft,
or any other felony; the
not having the fear of God before his eyes,
being equally applicable to all of them; and the common law of England esteems no man qualified to be a member of society, who wants this principle. The act is therefore highly
dishonourable;
and to use a still more humiliating term of the same import, I must observe—3dly, that it is also
base;
because it affords the most apparent proof of a
little Soul
Nec Christiani veteres hoc tantum viderunt, sed et philosophi, qui dixerunt
pusilli esse animi contumeliam ferre non posse,
ut alibi ostendimus,
says the learned Grotius, in his 2d book De jure Belli et Pacis, p. 172.
;
being,
in reality,
a
brutal
revenge;
brutal
because
unreasonable;
(for how can
Honour
be vindicated or retrieved by the commission of a
notorious Felony?
) and what is
unreasonable,
must be disgraceful to human nature, and therefore is truly
base.
And lastly, it is
cowardly
(that is, when it cannot be imputed to
Ignorance
or
Folly
) because a man submits to it contrary to the light of his own reason,
for fear
his
courage
should be called in question; and yet
he has not courage enough
to withstand the barbarous prejudices of a depraved world, lest he should suffer some temporal inconveniencies: and the
slavish Fear
which he entertains of these (for
cowards
always dread the present evil most) deprives him of that
reasonable fear,
which he ought to entertain of God's judgment, because he thinks it at a distance, though, he knows, it must inevitably follow!—I condemn no man in particular; God forbid! I speak of the question only in general: inveterate prejudices and customs may perhaps afford some excuse in particular cases to some
individuals,
who have
ignorantly
yielded thereto: but as
ignorance
is disgraceful to
humanity,
I sincerely wish that all persons may enter into as careful an examination of this question as I have done, by which they will not only be enabled to avoid a repetition of their crime, but also be prevented from attempting to defend what is past, and thereby afford the best proof of an ingenuous and honourable heart.
This abominable practice of duelling, which of late years has increased to a most alarming degree, may chiefly be attributed (I humbly conceive) to the improper indulgence which our English courts of justice, for about two centuries back, have shewn to persons
convicted of killing in sudden affrays and rencounters,
through a false idea of mercy due to human failty, in cases of
sudden provocation;
without preserving the proper distinction of those cases wherein homicide, in
sudden anger,
is really excusable by the laws of God, and of this kingdom; and the
improper precedents,
which have arisen from this
indiscriminate and corrupt practice,
have so misled the more modern writers on
Crown Law,
that even the greatest and most respectable of them have been unhappily induced to admit doctrines on the subject of Manslaughter, which are absolutely incompatible with the
proper
and
necessary distinctions
to be observed between
wilful murder
and
manslaughter,
which they themselves have laid down in other parts of their works: and it is on the authority of these just
distinctions,
with the necessary consequences arising therefrom, (and not on my own presumption) that this censure is founded; which the following tract I hope will clearly demonstrate.
But as my readers might seem to give too much credit to an inconsiderable person like myself, were they, (without a previous intimation of what is proposed,) to risque any loss of time in the perusal of the arguments and proofs at large, on which my vindication for this attempt depends, I think it my duty to state the subject and intention of the tract, as briefly as I can, in this prefatory address, that my readers may, thereby, be enabled to judge, without much loss of time, whether the matter is of sufficient consequence to merit any more of their attention.
I have already mentioned my opinion, that
No man can give or accept a challenge to fight
with weapons,
on any private difference whatever, without being guilty of
wilful murder
if he
kills
his antagonist.
And the intention of the following tract is to shew, that the writers on Crown Law have no just warrant for admitting the contrary doctrines, which they have laid down concerning
sudden affrays
and
rencountres, viz.
that
the voluntary killing
of a man on a
sudden provocation
is only to be esteemed
Manslaughter,
and, as such, is intitled to the benefit of Clergy. And they have also supposed that
an assault
is a sufficient provocation to justify a
voluntary manslaughter.
Now, certain it is; that some allowance ought to be made for heat of blood upon a
sudden provocation,
in consideration of the extreme frailty of human nature; provided that there are no circumstances of
malice
in the case. As if (for instance) a man,
in sudden anger,
should strike another, merely
with his fist,
or a small
cane,
or
stick,
meaning only to correct, and should
accidentally kill;
this would be, properly,
manslaughter;
which, though it is deemed
Felony
(as the act of striking, or beating another person is, in itself,
unlawful
), is nevertheless
pardonable
both by the laws of God and man. But when two persons fight with
dangerous weapons,
an
intention of killing
is
expressed
by the
weapons;
and
such intention
renders the manslaughter
voluntary,
which is the same thing as
wilful;
and consequently the
"malice prepensed"
(which excludes the benefit of clergy) is necessarily
implied,
though the sudden anger be but a moment before the fatal stroke; for
"malice prepensed"
is thus defined by Sir Edward Coke,
That is (says he)
voluntary,
and of set purpose, though done
upon a sudden occasion:
for if it be
voluntary
the law implieth
malice.
3
Inst.
c.xiii. p. 62.
And yet the same great lawyer in p.
55,
speaks of
voluntary manslaughter
upon
some sudden falling out,
as distinct from
murder;
which cannot, in reason, be true; for if the
killing be voluntary,
the evil and
malicious intention
is necessarily included in the act, even though the fatal blow be given merely with
the hand,
or a
small cane
or
stick,
which I have before mentioned as pardonable cases, when the
killing
is not intended; for a
voluntary striking,
without intention to kill, is indeed pardonable, though death ensues; but a
voluntary killing
is so far from being so, that the law, according to Lord Coke's own rule,
implieth malice;
and, consequently, the same must, necessarily, be esteemed
Murder,
and not merely
Manslaughter;
because the necessary marks, whereby
manslaughter
ought to be distinguished, are absolutely wanting therein: for
manslaughter
must be "without
malice
express or implied" (
1
Hale
466. 4
Blackstone
191
) "
Murder
being aggravated" (says Lord Hale)
with malice presumed or
implied,
but manslaghter not.
And yet all these great and excellent lawyers have unhappily fallen into the same error of treating the
voluntary branch
of killing, as bare
Homicide,
or
manslaughter;
whereas, all the older writers agree, that
killing
is pardonable only in cases
of inevitable necessity
(Bracton, lib.
iii.
c.
4.
p.
120.
b. Fleta lib.
i.
c.
23.
) And the learned Judge Staunford says
That the whole matter consists in the
inevitable necessity;
without which the
killing
is by
no means excusable
There is but one case of
voluntary Killing,
wherein the plea of
sudden Anger
and atrocious provocation may seem entitled to some indulgence and consideration: See Note in p. 46.
(n'est ascun voi excusable.
P.C. lib.
i.
c.
7.
)
Now, the absurd and depraved notions of
honour,
and
gentleman-like satisfaction,
of which I complain, could not possibly exist, if every conqueror in a duel, who kills his antagonist, was sure of being
hanged up
as an ignominious
felon,
for his own
gentleman-like satisfaction;
and therefore I apprehend, that the diabolical practice of settling private differences with sword and pistol is chiefly to be attributed to the want of punishment due to
voluntary manslaughter,
through the mistaken concessions of the Writers on Crown Law, and the false mercy of Juries, in consideration of
sudden anger;
because
impunity
fosters vice and depravity; but more especially in cases of
wilful manslaughter,
impunity ought to be esteemed the bane of society; as
the guilt of blood
is thereby thrown upon a whole nation or country; for it is a supreme law, that
whoso sheddeth
man's blood,
by
man
shall
his blood
be shed. Gen.
ix. 6.
For
blood
it defileth the
Land:
and the
Land
cannot be cleansed of
the Blood that
is shed therein, but
by the Blood of him that shed it.
(Num. xxxv. 33.)
And I hope I have proved by incontrovertable extracts from the laws of God, that the said judgment is inevitably incurred by all
voluntary killing,
except in the legal prosecution of justice, and in the necessary defence of our lives and properties; so that
no man
has any legal or just right to pardon or remit the punishment due to
murder,
or
voluntary manslaughter
(which are the same crime, and equally
unpardonable
in this world); for such an indulgence is not only a manifest sin against Almighty God, but also against the community at large, or
country;
for
Blood
it defileth the
land;
and the
land
cannot be cleansed of
the blood
that is shed therein, but
by the blood of him that shed it.
Numb.
xxxv. 33.
This is not a ceremonial law, but a law of morality, founded in
divine Justice,
which must, therefore, be ever binding. Now as
the
Land cannot be cleansed, &c. but by
manslaughter,
so that even
the king himself
is absolutely restrained from it. See an act of the 2 Edw. III. whereby it is ordained, that a charter of pardon
shall not be granted, but only where the king may do it by his oath; that is to say, where a man slayeth another in
his own defence,
or
by misfortune.
See also a Note in p. 48. on the further limitation of Royal Prerogative by a subsequent Statute of 13 Ric. 2. (2 Stat. c. 1.) rendering it obnoxious to
the wrath of God!
the blood of him who shed it,
the
Land
is surely entitled to that expiation, as a matter of
indispensible Right,
which, when withheld or withdrawn by
Charters of Pardon
to the guilty, is a manifest
injury
and
wrong
to the
land,
i.e. to the whole Country or Kingdom; which opens to us the true ground and reason why the Royal Prerogative is so strictly and expressly limited in this point; for
Non potest Rex gratiam facere cum injuriâ et damno aliorum:
This is an ancient and constant rule "of Law."
(3 Inst. p. 236.)
and an
injury, wrong,
or
damage
is surely
most intolerable,
when it is liable to affect the whole
Land
or
Country,
by rèndering it obnoxious to
the wrath of God!
I may probably be charged with an unpardonable temerity for presuming to censure the writings of some of the greatest and most learned men that this nation, perhaps, ever produced; and I am thoroughly sensible of the risk and ill consequences to myself, in case I am mistaken; but a sincere persuasion of being in the right, (arising from a laborious research and careful examination of the most celebrated and approved writers on Crown Law) obliges me to prefer, what I conceive to be
truth,
before the authority of the greatest names.
And even, though I should not have succeeded according to my own conceptions of the subject, yet, I trust, that my impartial readers will pardon any
involuntary errors,
that they find in the performance, especially if they see no cause to suspect any want of uprightness in the intention of it: and, at all events, I hope, that the attempt may, at least, be considered as a proof, that I am not afraid of difficulties and labour, nor of the risk of personal inconveniences, when I undertake any point with a view of serving my country, or mankind in general.
London.
3d Sept. 1773
GRANVILLE SHARP.
A TRACT ON DUELLING.
NO MAN can give or accept a challenge to fight
with weapons,
and
kill
his antagonist (on any private difference whatever) without being guilty of
Wilful Murder,
such as ought to be excluded from the benefit of clergy. For
Wilful Murder
is the killing of a man
ex malitiâ proecogitatâ
Pleas of the Crown 1678, p. 35. also 1 Hal. P. C. 425.
; which
malice
is either
implied
or
express,
Fitzherbert's Justice of Peace, p. 21. Lambard's Eirenarcha, c. 7. p. 240. also 3 Inst. c. vii. p. 47.
or, as judge Hale calls it,
Malice in Law,
or
ex presumptione Legis
1 Hal. P. C. 451.
; 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
P. C. 1678, p. 36.
, and the intention to do harm
makes it murder
Ibid. 36.
; so that the allowance which the writers of the two last centuries have made for
sudden anger
(without preserving a proper
distinction
of the case wherein 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
gentlemanlike 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 circumstances 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 justified or excused by the above-mentioned
circumstances
of
Accident
and
Necessity,
are well understood, and, by many eminent writers, sufficiently explained under 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
depends 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 circumstances heat of blood, the
Furor brevis,
will or will not avail the Defendant is now to be considered.
Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party killing from the
guilt of murder.
Nor are indecent 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
See my Remarks (in p.
, &c.) on Mr. Hawkins's assertions relating to this point.
upon the person
is NOT
a Provocation sufficient 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 circumstances which are necessary to render it excusable by the plea of
selfdefence
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 necessarily includes
malice.
For Bracton says,
Crimen non contrahitur nisi
Voluntas nocendi
intercedat & voluntas et propositum 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 intent,
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 absque occisione, tune erit
reus homicidii,
(and a felonious
homicide
or
manslaughter,
in the days of Bracton, had the same meaning that we now apply to
Murder
).
Si autem
inevitabilis,
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
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.
.
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 excusable
Nota que la necessite doit etre cy graunde; que il doit estre existimé
inevitable,
ou autrement il n'excusera, &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.
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 concerning
inevitable Necessity
)
is a provocation sufficient to free the party killing from the guilt of murder.
For a farther distinction (besides that of
inevitable necessity
) is also to be observed, which is very accurately laid down, even by judge Foster himself, in p. 291, though the same would be useless, 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 provocation
But I have already shewn that
no provocation
whatever can justify a
voluntary
or
wilful killing.
, 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 Homicide
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 outrageous beating
with an ordinary cudgel beyond the bounds of a
sudden resentment,
whereof he had died,
It had been Murder.
For these circumstances are some of the genuine symptoms 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 Stedman 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 certainly,
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
pursuing
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 pursuing, and stabbing the woman in the back)
are some of the genuine symptoms 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 circumstances, which
are not a provocation 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 former,
the malitia, the wicked vindictive disposition
already mentioned,
evidently appeareth:
in the latter it is
as evidently wanting.
The Party, in the first transport of his passion, intended to chastise 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 inconsiderable share, the voice of reason is not heard. And therefore the law,
in condescension
to the infirmities of flesh and blood, hath extenuated the offence.
But
the Law,
in reality, makes no such
condescension,
though
the Courts of Law
have, indeed,
indiscriminately
done so, and have occasioned a multitude of bad precedents, wherein
wilful murder
has been excused under the name of
manslaughter;
and this unhappy difference between
the Law,
and the corrupt practice of
the Courts,
with respect to this point, has unwarily led the more modern writers on crown-law into concessions, which are absolutely
contradictory
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 opinions; 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 controvert 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 sufficiently authentic for the purpose of correcting such deservedly esteemed writers; 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.
"Murder"
(says he)
being aggravated with malice
presumed
or
implied, but manslaughter
Not.
1 Hale's P. C. 466
See also the Statute 52 Hen. 3. c. 25. made at Marlbridge, A. D. 1267.—Title.
What kind of
Manslaughter
shall be adjudged
Murther.
Murther 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.
.
This rule is good and unexceptionable; and therefore it must appear, that even Sir Matthew Hale himself is mistaken in the paragraph preceding this quotation, where he says that
Manslaughter,
or
simple homicide,
is the
voluntary killing
of another without
malice express
or
implied:
for though there may be a
voluntary striking
without
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
voluntary
Lambard's Eirenarcha 255. Sir Edward Coke's 3 Inst. p. 55 and 56.
though they proceed from an
inevitable necessity
See the note in page 4.
Nevertheless even the great Sir Edward Coke (and before him the learned 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 falling out.
Delinquens per iram provocatus puniri debet mitius
He who, provoked by anger, offends, ought to be more mildly punished.
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
voluntary;
but the
Killing,
or
Manslaughter,
is
involuntary,
and
unexpected;
as when a man,
in sudden anger,
gives an unlucky blow merely with his fist, or with a small stick, or small stone,
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 manslaughter,
because done in sudden heat and passion,
(for which he cites 12 Rep. 87. and 1 Hale 453) "Surely" (continues judge Foster)
the provocation 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 provocation 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 vindictive 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
manner 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 circumstance,
That the Stroke was with a Cudgel not likely to Kill.
(meaning only to correct) which,
undesignedly,
occasions death; for, in such cases, the
malice
is not
implied;
whereas, in a
voluntary homicide,
even a
Malice prepensed
is implied, according to Sir Edward 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
Voluntary,
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 informs us that Manslaughter is
the unlawful 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
unlawful act
amount only to
a bare trespass
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 intention
it will be
Murder,
but if the intent went no farther than to commit
a bare trespass,
Manslaughter, Though I confess (say he) Lord Coke seemeth to think otherwise.
That is, Lord Coke did not even make an allowance for "
a bare trespass,
" 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 concerning the first case there stated under the head of
unlawful,
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
according 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 another man's;
for a person might wantonly shoot at another man's pigeons, or poultry, without any intention 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 Judgment of the other Case wherein the occasion was an intention to
steal a Deer,
which is, at least, as
felonious
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 apparent: but if the case had been stated that the Deer was in a
Forest
or open chase, the offence
(without 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.
For I propose, in the course of this tract, to mention several allowed cases, on good authority, wherein even the
involuntary
or undesigned killing is not deemed
manslaughter,
but
murder,
when the acts, which occasioned death, were
unlawful:
and, with the respect to the former, 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 killing
(except in the case of
self-defence,
through inevitable necessity, which some writers have, rather improperly, called
voluntary
Lambard's Eirenarcha 255. "The last member (says he) of
voluntarie homicide
is where one man killeth 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.
) is certainly the same thing as a
wilful killing;
and either of them must be allowed to be the proper definition of what we now understand by the term
Murder
(though the meaning of that word was, originally, very different. 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 without out malice
express
or
implied;
so that they are really guilty of a
contradiction in terms;
because the
malice,
or
intention of killing,
is
undeniable,
if the
killing
be
voluntary
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.
: 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 celebrated authors, but by a previous
corrupt 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
intention
of
killing
is not necessarily
impiled
in the act itself; as when a man strikes another 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
striking or thrusting in anger
bears some resemblance to
malice,
and though such an act is certainly
unlawful in itself,
yet it is reasonable to make some allowance 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 banishment to a city of refuge.
If he
thrust
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
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.
him
suddenly
without
enmity
Here a proper distinction is preserved between
sudden anger
and
enmity.
(
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 hatred,
(
see the 20th verse) and even a blow with the hand
in enmity,
(
see the 21st verse, apparently meaning, when there was an
express proof of malice,
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 occasion death) there is not the least mention made of
malice
(
Hatred, or
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 command was peremptory.
If he smite him with an instrument of iron, so that he die,
he is a
murderer
(
Retsch, or Killer, perhaps from thence the English word
wretch
) "the
murderer
The Word
Murder
was anciently understood in the same
general sense,
as the Hebrew
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 manslaughter,
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
and
, as we now sound it. Afterward (about the time of M. Bracton) murder was restrained to
a secret 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
Murder
is now construed to be, where one man of
malice prepensed
killeth another feloniously, that liveth within 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.
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, until he stood before the congregation in judgment;
see 12th verse: and then, if it did not appear, that the killing was at
unawares
(
in error) see 11th verse, or, as the same meaning is expressed in different words in Deut. xix. 4.
ignorantly,
or
without knowledge
(agreeable to the example, there laid down, for all other cases of mere
misfortune
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 neighbour, that he die,
&c. (Deut. xix. 5.) or as it may, rather, be rendered, the
iron glanceth from the tree,
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 Providence 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 incurrerit;"
which he further explains in a note as follows:
In Hebraeo est,
Deus ejus manui injecerit.
Sed Deus pro
fortuna
Hebraicè ideo dicitur, quod quae putant homines
casu fieri,
utpote quae non praeviderint, 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
ex errore
&
ignorantiâ
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 & Gentium, cap. ii.
de homicidio involuntario,
seu quod casu sactum ac errore, &c.)
) the malice was presumed from the
weapon
with which the stroke was made; for
the hatred
and enmity
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 apparently 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-mentioned of a man striking another merely
with his hand,
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,
or fist, in
sudden anger;
or the sudden
thrusting
See the case of Thompson and Daws, cited by Lord Chief Justice Holt, in the case
Rex versus Plumer,
(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 afterwards explained) and charge the offending parties, in the king's name to keep the peace. This case is properly
excuscable manslaughter,
because it did not appear 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.
a man down, by which he is hurt in falling, so that death unexpectedly ensues. In these and similar cases
the malice
or the
intention 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 Edward Coke's maxim,
Delinquens per iram provocatus puniri debet mitius,
3 Inst. 55.
"He who, provoked by anger, offends, ought to be more mildly punished."
But a false idea of mercy, and consideration for
sudden anger
unhappily prevailing in the Courts, this lenity was
indiscriminately
extended even to cases where the
prepensed malice
was necessarily
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
another, though
done upon sudden provocation.
Judge Blackstone's Com. b. 4. c. xiv. p. 193. But unfortunately this remedy proved almost as
indiscriminate
as the abuse intended to be corrected 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 administration of the old laws before-mentioned; 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 contrarium appareat.
From the weapon the evil intention is presumed, unless the contrary should appear.
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 divine 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 beforehand, 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 perhaps he had no
formed intention to kill
the person; yet he ought to have moderated 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
misfortune,
or in
self-defence
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 assaults and affrays between subjects under the same law,
the law owns not any such point of honour,
because the king and his laws are to be
vindices injuriarum,
and private persons are not trusted to take capital revenge one of another.
1 Hale, p. 481.
, when the Slayer could retire no further to save himself without striking; or else in such lawful and reasonable cases, wherein a man is not obliged to give back; as in the case of a peace officer
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
sedefendendo,
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.
who is assaulted in his duty; or when any other man endeavours to keep the peace
Ou il purra dire que il le tua en defendaunt
nostre pees,
&c.
Britton, p. 44. b.
or to save another person from violence and oppression
For it is the duty of
every man
to interpose in such cases, for preserving the public peace, and preventing 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 private 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 imprisonment, therefore if B. and C. be at strife, A. a bystander, 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 killing of the attempter
in case of necessity,
puts him in the condition of
se defendendo
in defending his neighbour.
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 seigniour, 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.
; or a woman
A woman in defence of her chastity may lawfully kill a person attempting to commit a rape upon her. The injury intended can never be repaired or forgotten,
&c. Foster 274.
in the necessary defence of chastity; or when any person resists the attack of a Robber
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.
Staundford, 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 cannot otherwise be taken.
If a person (says he) be indicted of felony, and flies, or being arrested by warrant 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: therefore 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 endeavours 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 danger 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 rather choose to say (says he) it will be
murder
or
manslaughter,
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, determineth the nature of the offence.
) I say, excepting these, and similar cases, if a man
wilfully
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 fatal stroke
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
dishonesty;
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 homicide
(which) was justifiable.
But for a difference to be made
(adds the learned Chancellor)
in case of killing 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!
; so that, if no proof can be produced by the prisoner, of
an inevitable 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 oath
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 parliament of his 13th year,
the Commons
made
grievous complaint
see 13 R. 2. St. 2.)
of the outrageous 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 requested 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 Commons was not less
disloyal
than his practice, viz.
That he will save his liberty and regality as his progenitors 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 pardon 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, unless 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
allowance
of a
charter of pardon for murder;
but Sir Edward Coke has remarked upon it, that
the intention 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 conceived, that he would never pardon Murder by special name for the causes aforesaid, therefore was that provision made, which was grounded
(says he)
upon the Law of God, Quicunque effuderit humanum sanguinem, 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 doctrine 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 aggravations
&c. adds,
"and it is remarkable enough"
(says he)
that there is
NO PRECEDENT OF A PARDON
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 pardon 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
grievance,
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 suggestion,
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 English 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 future Monarchs from presuming to assert a PREROGATIVE TO PARDON MURDER. The ill-fated Monarch by his ignorance of the nature of
Royal Prerogative
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 confession of his own unworthiness to bear them: And it is remarkable, that the
murders
which had increased through his criminal indulgence, were awefully retalited afterwards in his own
blood:
for, at last, he was himself, also, most cruelly and wickedly
murdered,
contrary to the laws of God and man, as if the
blood
which he had unjustly refused to
cleanse from the land,
and
expiate by the blood of the guilty,
had fatally rested on his own head!!!
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 be
"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 altogether
great and inevitable,
&c. Lambard's Eiren. c. 7. p. 256. See note in p. 41.
inevitable,
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 favour 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
pardonable case,
mentioned in the said act of Edw. III. viz.
by Misfortune,
I must observe, that there are some cases of homicide 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 injustice of excusing homicide, in consideration
of sudden anger,
when the mortal 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
unlawful
For if the act be
unlawful,
I mean, if it be Malum in se, the case will amount to felony, either
murder
or
manslaughter,
as circumstances may vary the nature 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.
.
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 mistaken
See note in ps. 23, 24 and 25, and Judge Holt's own opinion on another case quoted in p. 56.
. (See his Edition of Kelyng. Rex versus Plummer, 117.) But whether this be deemed
murder
or
manslaughter,
the
killing
is merely accidental, or by
misfortune;
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,
howsoever great the previous affront may have been. For, in the former case, though the
shooting
at a
deer
belonging to another person is both
unlawful,
and
voluntary,
yet the
manslaughter,
which it accidentally occasions, is
involuntary,
and without intention; whereas in the
voluntary
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
excuse,
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
forest
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.
, 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 paragraph of p. 56.3 Inst. concerning the shooting at a
tame fowl,
of which this case, supposed by Judge Holt, is an explanation. 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 necessarily be allowed to be an act
committed
felleo animo,
with a
fell, furious,
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 warning given, will also further illustrate what has been said; for though mere carelessness or inconsideration might occasion 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 people 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 doctrine 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 felonie
in le owner, eo que, per tiel sufferance:
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
percussus fuerit, et hujusmodi
hoc imputatur 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 Drivers
—
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.
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 killed
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
murder.
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. Saunders's case, 9 Rep. 91. Agnes Gore's case.
. 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 stealing wood, to a horse's tail, and dragged 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 correction 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 striking 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 express
If one executes his revenge upon
a sudden provocation
in such a cruel manner, with a
dangerous weapon
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 dangerous weapons,
be quarrels
ever so sudden and unpremeditated:
for the
"malice"
is by the weapons,
expressed,
and the
"malice prepensed"
is therefore
implied.
"Ex telo praesumitur malum consilium," &c. See p. 39.
; |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 wanting
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 consideration of the necessity I am under, of repeatedly comparing the crimes of
striking 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 lastmentioned cases, must sufficiently demonstrate such
a general abhorrence in our Law
to the shedding of
Human Blood,
that we cannot reasonably suppose
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 different 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 intent to murder him, as by discharging 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 Tenor 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 Killing
of a Man must be through
an inevitable necessity:
and therefore what Mr. Hawkins afterwards advances, in his comparison of such a case with Homicide 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 Voluntary Killing
of a Man as
Justifiable Homicide,
and consequently he must suppose it a less crime than
Excusable Homicide,
in
se Defendendo.
He founds his opinion in the supposition 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 order 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 concerning the
Murderous Intentions,
which
the Killer
may attribute to
the person Killed?
The single circumstance that
the Killer
was under
no necessity
of endeavouring to retreat, and avoid the assailant, is not only a proof that
his own intentions
(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 necessarily fall to the ground, whenever
the Killer
is unable to prove, that he endeavoured to avoid the attack
I have already made the necessary exceptions concerning Civil Officers in the legal Execution of justice, &c.
And tho' the Deceased might have had
a Weapon Drawn,
yet that circumstance affords no positive proof of his
criminal intention;
for he might have thought himself obliged to draw in his own defence, 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
presume,
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 presumption:
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, without some apparent necessity, would entrust every individual, indiscriminately, with a supreme Authority, which it denies
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 merely 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 insisted 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 principle of their profession is
Courage;
and the World, in general, is too depraved 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
reasonably
in cases either of insult, or assault!
Yet, at the same time, it ought to be remembered, that those men who submit to
the Slavish Yoke
of other Men's depraved opinions or unreasonable customs (in contradiction to that
natural Knowledge
of
Good and Evil,
which they inherit, in common with the rest of Mankind, from our first Parents), cannot
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
Courage
in the eye of the world, by
daring
to violate the Laws of God and Man in
private
Quarrels, yet that very act affords the most manifest token of the Want of
real
and
steady Courage:
for unless the submission to that depraved custom can be attributed to
inconsideration, or
to
the want of Knowledge,
it must necessarily be supposed, that the
Duellist had not sufficient Courage
to assert his
natural Right
of Acting agreeable 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 inconsideration, and ignorance of the Laws of God and Man (as I have before hinted) occasion the base submission and conformity to those
false
and
unreasonable notions of Honour,
which almost universally 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 example, 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. Gentlemen of the Army are not obliged, indeed, 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 Community), they are unfit for
British Soldiers,
of whom the
Law
requires an acknowledgement of
her supremacy.
For the Law will not excuse an
unlawful 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 Soldier obliged to conform himself
implicitly
to the mere opinions and false Notions 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, before 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 unfortunately 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
obedience 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 intentione
Bracton, Lib. 3. c. 4.
de Corona,
p. 121.
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
Religion,
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 Command;
and will obey the same with such a
steady courage,
as may be equal to every adversity, and undeserved suffering that threatens them.
This doctrine is censured by a Critic in the Monthly Review for Jan. 1774, who calls it
"a strange Principle!"
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 ignorance 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.
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, contrary to all expectation, exerted itself in saving this Kingdom, at the Glorious 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 occasions, a strict obedience to the
Laws of his Country,
according to the dictates of his
own reason
and
Conscience, in preference 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 said
This opinion is in the true stile of a
Tradition,
such as those, by which the Jews of old
"perverted the Law."
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. Hawkins)
that by neglecting the opportunity 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 comparison 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 particularly (because
deservedly
) to the professors of it, if they should still persist in the
unreasonable
and
unjust
practice of punishing
lesser
Crimes with
more
severity than the
crying Sin
of
voluntary Manslaughter,
which, as I have already proved in my preface, is absolutely
unpardonable in this World,
by the Laws of God!
Glory in the highest to GOD;
And on Earth PEACE.
Towards Men GOODWILL.
A TABLE of the Authorities and Cases quoted, or examined in this Book.
TEXTS.
Genesis ix. 6 preface xvi.
Exodus xxi. 13 pages 32.34
Numbers xxxv. 33. pref. xvi&xvii.
—Do. 20.22 & 25 p. 30
—Do 21 p. 31
—Do. 11, 12.16 & 24 p. 32, 33
—Do. 16. to 19 p. 35 and 40
Deuteronomy xix. 4 & 5 p. 33.
AUTHORS and CASES.
Sir James Astry, p. 58
Army,—Case of the Gentlemen in the Army considered, p. 70 to 78
Lord Bacon, p. 47.
Henry de Bracton, pref. xv. also p. 6, 7.32. 43, 44.59 & 75
John Britton (Bishop of Hereford) p. 32.42 & 43
Bythner's Lyra Prophetica p. 29.
Sir William Blackstone, pref. xiv. also p. 22, 23.39, 50. & 61
Sir Edward Coke, pref. xiii. also p. 1.17.19. 20, 21, 22, 23.38.42, 44, 49.51 54 & 57.
Judge Croke, p. 21
Mr. Richard Crompton (his Edition of Judge Fitzherbert's Justice de Peace) p. 1.56. 59&61
Sebastian Castalio, p. 34
Sir James Dyer, p. 61
Lord Dacre's Case, p. 55
Fleta, pref. xv. also pages 8.24 & 60
Sir Anthony Fitzherbert, p. 56.
Judge Foster, p. 3, 4, 5.7, 9.10, 11, 12, 13, 14, 20.23.24.31.53, 46.53.54 & 70
Grotius, pref. vii. also p. 39 40
Andrew Horn (his Mirroir de Justice) p. 26
Sir Matthew Hale, pref. xiv. also p. 1.9.17. 20.28.43, 44, 45, 46, 52, & 64
Lord Chief Justice Holt, p. 24, 25.36.50. 56.61 & 72.
William Hawkins, Esq. p. 5.25.56.59. 66, 68.78 & 79
Theodore Haak, p. 33
Judge Jenkins, p. 27
Judge Kelyng, p. 56 and 78
Mr. William Lambard, p. 1.19.26, 31.52 & 57
Laws of Liberty and Property, printed in 12mo. p. 27
Mirroir de Justice. (See Horn)
The Principles of Penal Law, pref. iv.
Pleas of the Crown, printed in 1678, 8vo. p. 1, 2 & 50
Plowden p. 51.
Sir Robert Raymond, p. 22
Rowley's Case, p. 20
Sir William Staunforde, pref. xv. also p. 8. 45, 46.49.52 & 58.
John Selden, Esq. p. 34
Stedman's Case, p. 12
Statutes 52 Hen. III. c. 25. p. 18.
2 Edw. III. c. 2. pref. xvii. also p. 47 & 48
— 10 Edw. III. c. 2. p. 48.
— 14 Edw. III. c. 4. p. 32
— 13 Ric. II. Stat. 2. c. 1. p. xvii. 48, 49
— 16 Ric. II. c. 6. p. 50
— 23 Hen. VIII. c. 1. p. 47
— 1 Edw. VI. c. 12. p. 47.
— 1 Jac. I. c. 8. p. 38 & 47
Thomson and Daws (Case) p. 36
Thomas Wood, L.L.D. p. 62 & 63