A TRACT ON DUELLING.

NO MAN can give or accept a chal⯑lenge to fight with weapons, and kill his antagoniſt (on any private difference whatever) without being guilty of Wil⯑ful Murder, ſuch as ought to be excluded from the benefit of clergy. For Wilful Murder is the killing of a man ex ma⯑litiâ proecogitatâ ^a; which malice is either implied or expreſs, ^b or, as judge Hale calls [2]it, Malice in Law, or ex preſumptione Legis ^c; and malice muſt neceſſarily be implied when a man wilfully ſtrikes or wounds another with any offenſive weapon whatever, becauſe that is ‘an act that muſt apparently introduce harm’ ^d, and the intention to do harm makes it murder ^e; ſo that the allowance which the writers of the two laſt centuries have made for ſudden anger (without preſerv⯑ing a proper diſtinction of the caſe where⯑in it really deſerves conſideration) is unjuſt in itſelf, as well as dangerous to ſociety; for few men would entertain ſuch abſurd notions of honour, as to think themſelves obliged to revenge affronts with their ſwords or piſtols, if the riſque of being hanged up as felons and murderers for their own gentleman⯑like ſatisfaction, was rendered obvious by [3]juſt and proper deciſions of the Law on this point.

‘In every charge of murder, the fact of killing being firſt proved, all the cir⯑cumſtances of Accident, Neceſſity, or Infirmity are to be ſatisfactorily proved by the priſoner, unleſs they ariſe out of the evidence produced againſt him: for the law preſumeth the fact to have been founded in malice, until the contrary appeareth.’ Judge Foſter, 255.

The caſes of homicide which are juſti⯑fied or excuſed by the above-mentioned circumſtances of Accident and Neceſſity, are well underſtood, and, by many emi⯑nent writers, ſufficiently explained un⯑der the heads of Misfortune and Self-defence. But with reſpect to thoſe caſes of Homicide, which are attended with [4]circumſtances of infirmity (the third branch of circumſtances mentioned above) the writers on crown law in general have been very indiſcriminate, notwithſtanding that the true diſtinction between Murder and Manſlaughter de⯑pends entirely on a clear ſtating of thoſe caſes of infirmity, which really deſerve conſideration and excuſe.

Judge Foſter, indeed, is, for the moſt part, nice and accurate in his diſtinctions; yet he has paid ſo great a regard to the authority of precedents, that he has been unwarily led away (as well as other writers) from the neceſſary concluſions of his own arguments upon this point; I ſhall, nevertheleſs, make uſe of his words as far as they expreſs my own opinion of the ſubject.— ‘Whoever would ſhelter himſelf under the plea of Provocation muſt prove his caſe to the ſatisfaction of the jury. The [5]preſumption of law is againſt him, till that preſumption is repelled by contrary evidence. What degree of Provocation, and under what circum⯑ſtances heat of blood, the Furor bre⯑vis, will or will not avail the De⯑fendant is now to be conſidered.’

‘Words of Reproach, how grievous ſoever, are not a Provocation ſuffi⯑cient to free the Party killing from the guilt of murder. Nor are inde⯑cent provoking actions or geſtures expreſſive of contempt or reproach, without an aſſault upon the perſon.’ (p. 290.) But I think myſelf obliged to add that even an aſſault ^* upon the perſon is NOT ‘a Provocation ſuffi⯑cient to free the Party killing from the guilt of murder,’ (though this [6]learned judge ſeems to think otherwiſe. See Sect. iii. p. 295) unleſs all the cir⯑cumſtances which are neceſſary to ren⯑der it excuſable by the plea of ſelf⯑defence can clearly be proved. For if the Killing in a ſudden fray is not ex neceſſitate, (as in Self-defence, or in the lawful Defence of others), it muſt be eſteemed voluntary; and voluntary is the ſame thing as wilful; which neceſ⯑ſarily includes malice. For Bracton ſays, ‘Crimen non contrahitur niſi Voluntas nocendi intercedat & voluntas et pro⯑poſitum diſtinguunt Maleficium,’ &c. ‘The Guilt is not incurred unleſs the intention of injuring intervenes, for the Intention and Purpoſe (or deſign) marks the Felony (or malicious Deed.)’ Lib. iii. c. 17. So that malice muſt neceſſarily be preſumed, whenever the killing is not ex neceſſitate, eſpecially if the fatal blow be wilfully given with a weapon; for in that caſe a man muſt [7]neceſſarily be ſuppoſed to ſtrike, ‘cunt occidendi animo,—with murderous in⯑tent,’ becauſe the Voluntas nocendi is apparent; and, conſequently, the malice, in ſuch a caſe, is not only implied but clearly expreſſed; ſo that the ſudden anger is only a further proof of the malice and "intention to do harm."

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

‘Quo caſu diſtinguendum eſt utrum Neceſſitas illa fuit evitabilis vel non. Si autem evitabilis, et evadere poſſet abſ⯑que occiſione, tune erit reus homi⯑cidii,’ (and a felonious homicide or manſlaughter, in the days of Bracton, had the ſame meaning that we now apply to Murder). ‘Si autem inevi⯑tabilis, quia occidit hominem ſine odii meditatione in metu & dolore [8]animi, ſe et ſua liberando cum aliter’ (mortem propriam Fleta, lib. i. c. 23.) ‘evadere non poſſet, non tenetur ad poenam homicidii^*.’ 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 ^f ſo [9]that the learned Judge Foſter certainly goes too far, when he inſinuates, in the paſſage before cited, ‘that an aſſault upon the perſon’ (without mentioning the neceſſary exception con⯑cerning inevitable Neceſſity) ‘is a pro⯑vocation ſufficient to free the party killing from the guilt of murder.’ For a farther diſtinction (beſides that of inevitable neceſſity) is alſo to be ob⯑ſerved, which is very accurately laid down, even by judge Foſter himſelf, in p. 291, though the ſame would be uſe⯑leſs, if an aſſault upon the perſon was to be admitted as a ſufficient provocation to the act of killing. ‘It ought to be remembered (ſays he) that in all other caſes of homicide upon ſlight provocation^g, if it may be reaſonably [10]collected from the weapon made uſe of, or from any other circumſtance, that the Party intended to kill, or to do ſome great bodily harm, ſuch Homi⯑cide will be Murder. The miſchief done is irreparable, and the outrage is conſidered as flowing rather from brutal rage or diabolical malignity, than from human frailty. And it is to human frailty, and to that alone, the Law indulgeth in every caſe of felonious Homicide.’

The firſt inſtance which he gives by way of illuſtration to this doctrine is cited from Judge Hale, vol. i. p. 473. ‘If A. come into the wood of B. and pull his hedges, or cut his wood, and B. beat him, whereof he dies, this is manſlaughter, becauſe, though it was not lawful for A. to cut the wood, it was not lawful for B. to beat him, but either to bring him to a Juſtice [11]of Peace, or puniſh him otherwiſe according to law.’ But here Lord Hale is not ſufficiently diſtinct in ſtating the caſe; becauſe circumſtances are wanting, which are neceſſary for the determination of ſuch a caſe, whether it ought to be eſteemed manſlaughter or murder. The accurate Judge Foſter was ſenſible of this want of neceſſary circumſtances, and therefore adds, ‘But it muſt be underſtood (ſays he) that he beat him, not with a miſchievous intention, but meerly to chaſtiſe him for the treſpaſs, and to deter him from committing the like. For if he had knocked his brains out with a bill or hedgeſtake, or had given him an out⯑rageous beating with an ordinary cud⯑gel beyond the bounds of a ſudden reſentment, whereof he had died, It had been Murder. For theſe circum⯑ſtances are ſome of the genuine ſymp⯑toms of the Mala Mens, the heart [12]bent upon miſchief, which, as I have already ſhewn, enter into the true notion of Malice in the legal ſenſe of the word.’ P. 291.

The next inſtance he mentions is that of the parker tying the boy to his horſe's tail. Which was (ſays he) ‘held to be murder.’ ‘For it was a deliberate act, and ſavoured of cruelty.’ But the third inſtance, viz. that of Sted⯑man the ſoldier killing a woman with a ſword (which Judge Foſter mentions as a caſe that was held clearly to be no more than manſlaughter) was, moſt cer⯑tainly, wilful murder: for tho' it appeared that the woman had ſtruck the ſoldier on the face with an iron patten; yet ſhe afterwards fled from him, and he ‘pur⯑ſuing her, ſtabbed her in the back.’

Now if ſuch a caſe of wilful killing is to be eſteemed only manſlaughter, it [13]entirely perverts the juſt arguments already quoted from the ſame author concerning the caſes wherein human frailty deſerves to be indulged! May I not uſe his own words againſt him? That "theſe circumſtances" (the pur⯑ſuing, and ſtabbing the woman in the back) ‘are ſome of the genuine ſymp⯑toms of the mala mens, the heart bent upon miſchief.’ Whereas, if he had ſtruck her merely with his fiſt, or with a ſmall ſtick not likely to kill, and had unluckily, and againſt his intention, killed, it had been but manſlaughter. For this is the neceſſary diſtinction for which I contend in all caſes of killing where the ſtriking (not the killing) is voluntary: and I cannot ſo well expreſs my meaning as in the words of Judge Foſter himſelf, though that ſenſible and acute reaſoner is afterwards miſled from the truth of his own doctrine, by [14]paying too much regard (I mean an indiſcriminate regard) to the practice of the Courts, which, in this point, has frequently been erroneous.

In page 290, after the 1ſt ſection (already quoted) concerning the cir⯑cumſtances, which ‘are not a provo⯑cation ſufficient to free the Party Killing from the Guilt of Murder,’ he adds, ‘This rule will, I conceive (ſays he) govern every caſe where the Party Killing upon ſuch provocation maketh uſe of a deadly weapon, or otherwiſe manifeſteth an intention to kill, or to do ſome ſome great bodily harm. But if he had given the other a box on the ear, or had ſtruck him with a ſtick or other weapon not likely to kill, and had unluckily and againſt his intention killed, it had been but manſlaughter. The difference between the caſes is plainly this. In the for⯑mer, [15] the malitia, the wicked vindictive diſpoſition already mentioned, evidently appeareth: in the latter it is as evidently wanting. The Party, in the firſt tranſ⯑port of his paſſion, intended to chaſ⯑tiſe for a piece of inſolence which few ſpirits can bear. In this caſe the benignity of the law interpoſeth in favour of human frailty; in the other its juſtice regardeth and puniſheth the apparent malignity of the heart.’ P. 290 and 291.

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

‘To what I have offered (ſays he) with regard to ſudden rencounters, let me add, that the blood, already too [16]much heated, kindleth afreſh at every paſs or blow. And in the tumult of the paſſions, in which meer inſtinct ſelf-preſervation, hath no inconſider⯑able ſhare, the voice of reaſon is not heard. And therefore the law, in condeſcenſion to the infirmities of fleſh and blood, hath extenuated the of⯑fence.’ But the Law, in reality, makes no ſuch condeſcenſion, though the Courts of Law have, indeed, indiſcrimi⯑nately done ſo, and have occaſioned a mul⯑titude of bad precedents, wherein wilful murder has been excuſed under the name of manſlaughter; and this unhappy dif⯑ference between the Law, and the cor⯑rupt practice of the Courts, with reſpect to this point, has unwarily led the more modern writers on crown-law into con⯑ceſſions, which are abſolutely contra⯑dictory to the juſt doctrines laid down in other parts of their excellent works.

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

The proper diſtinction to be obſerved [18]between murder and manſlaughter is well laid down by Sir Matthew Hale. "Mur⯑der" (ſays he) ‘being aggravated with malice preſumed or implied, but man⯑ſlaughter Not.’ 1 Hale's P. C. 466^*.

This rule is good and unexceptiona⯑ble; and therefore it muſt appear, that even Sir Matthew Hale himſelf is miſ⯑taken in the paragraph preceding this quotation, where he ſays that ‘Man⯑ſlaughter, or ſimple homicide, is the vo⯑luntary killing of another without ma⯑lice expreſs or implied:’ for though there may be a voluntary ſtriking with⯑out malice, yet I hope I have already proved, that there cannot be a voluntary killing [19]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 ^a though they proceed from an inevitable neceſ⯑ſity ^b Nevertheleſs even the great Sir Edward Coke (and before him the learn⯑ed Lambard in his Eirenarcha, p. 250.) was guilty of this ſame impropriety of expreſſion. "Some manſlaughters" (ſays Sir Edward Coke, 3 Inſt. cap. viii. p. 55.) ‘be voluntary, and not of malice forethought, upon ſome ſudden fall⯑ing out. Delinquens per iram pro⯑vocatus puniri debet mitius^c And this for diſtinction ſake (ſays he) is called manſlaughter.’ But it is a very indiſcriminate diſtinction (if I may [20]uſe ſuch an expreſſion concerning the writings of ſo great a man,) becauſe the maxim "Delinquens per iram," &c. can only be admitted in caſe where the malice is neither expreſs nor implied: for inſtance, when the Striking is volun⯑tary; but the Killing, or Manſlaughter, is involuntary, and unexpected; as when a man, in ſudden anger, gives an un⯑lucky blow merely with his fiſt, or with a ſmall ſtick, or ſmall ſtone,^d (meaning [21]only to correct) which, undeſignedly, oc⯑caſions death; for, in ſuch caſes, the [22] malice is not implied; whereas, in a voluntary homicide, even a Malice pre⯑penſed is implied, according to Sir Ed⯑ward Coke's own definition of that term, viz. "That it is voluntary, and of ſet purpoſe, though it be done upon a ‘Sudden Occaſion: for if it be Volun⯑tary, the law implieth Malice,’ 3 Inſt. c. xiii. p. 62.—Sir William Blackſtone has alſo fallen into the ſame error in his 4th vol. chap. xiv. p. 191. where he in⯑forms us that Manſlaughter is ‘the un⯑lawful killing of another, without malice either expreſs or implied: which may be either voluntarily upon a ſudden heat; or involuntarily, but in the [23]commiſſion of ſome unlawful act.’ In both of which he is alſo miſtaken; for, with reſpect to the latter, his doctrine cannot be admitted, except in caſes where the circumſtances of the unlaw⯑ful act amount only to a bare treſpaſs ^e [24]For I propoſe, in the courſe of this tract, to mention ſeveral allowed caſes, on [25]good authority, wherein even the invo⯑luntary or undeſigned killing is not deem⯑ed manſlaughter, but murder, when the acts, which occaſioned death, were un⯑lawful: and, with the reſpect to the for⯑mer, it is a manifeſt inconſiſtency, in all theſe great writers, to rank voluntary killing under the head of manſlaughter, in the modern confined ſenſe of that once general term; becauſe a voluntary kill⯑ing (except in the caſe of ſelf-defence, [26]through inevitable neceſſity, which ſome writers have, rather improperly, called voluntary ^f) is certainly the ſame thing as a wilful killing; and either of them muſt be allowed to be the proper defi⯑nition of what we now underſtand by the term Murder (though the meaning of that word was, originally, very dif⯑ferent. See le Mirroir de juſtice, 1642, c. i. ſect. xiii. p. 104. and Lambard's Eirenarcha, c. vii. p. 239.) becauſe, in ‘a voluntary or wilful killing, malice is neceſſarily implied;’ and, conſequently, voluntary killing is excluded from the favour due to manſlaughter by the rule [27]which theſe learned writers themſelves admit, viz. ‘that manſlaughter is with⯑out out malice expreſs or implied;’ ſo that they are really guilty of a contradiction in terms; becauſe the malice, or inten⯑tion of killing, is undeniable, if the killing be voluntary ^g: and therefore, as it is a maxim that ‘Allegans contraria non eſt audiendus’ (Jenk. Cent. fo. 16.) I am compelled to reject the definition of manſlaughter given by theſe learned writers, as far as it is contradictory to to that excellent rule, already cited, for the diſtinction of manſlaughter from murder, which they themſelves admit, viz. that ‘manſlaughter is without malice expreſs or implied.’

The errors, of which I complain, were not originally occaſioned by theſe cele⯑brated [28]authors, but by a previous cor⯑rupt practice in the courts, which had been introduced by degrees, and at laſt unhappily prevailed, through a falſe idea of mercy and conſideration for ſudden anger; and alſo through the want of preſerving the proper diſtinction of caſes, wherein manſlaughter in ſudden anger is really excuſable. The proper diſtinction to be obſerved is, when the inten⯑tion of killing is not neceſſarily impiled in the act itſelf; as when a man ſtrikes ano⯑ther merely with his hand, in ſudden anger; or thruſts him ſuddenly from him, whereby he falls and receives a hurt, which occaſions death; in theſe, and ſimilar caſes, the ſtriking, or thruſting is, indeed, voluntary, yet the killing, or manſlaughter, is not ſo, but entirely undeſigned and unexpected; which proper and neceſſary diſtinction the Law Commentators have unhappily neglected. For, though the act of ſtri⯑king [29]or thruſting in anger bears ſome re⯑ſemblance to malice, and though ſuch an act is certainly unlawful in itſelf, yet it is reaſonable to make ſome allow⯑ance for the frailty of human nature, and the ſudden paſſion of a man that is provoked, whenever a more criminal malice is not neceſſarily impiled in the act itſelf, which occaſions death. And in this lenity we are juſtified by the laws of God, whereby ſuch caſes of manſlaughter in ſudden anger, as I have mentioned, were excuſed without any other penalty than that of baniſh⯑ment to a city of refuge. ‘If he thruſt ^h him ſuddenly [...]without [30] enmity ⁱ ( [...] Numb. xxxv. 22.) —the congregation ſhall reſtore him to the city of his refuge, &c.’ v. 25.) Yet the very ſame action, if done in ha⯑tred, ( [...] 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 ma⯑lice, or intention to kill,) were to be deemed unpardonable; "he ſhall ſurely die."

But, it is remarkable, that theſe are the only two caſes wherein an expreſs proof of malice was required; for in all the examples given in the ſame chapter of killing with a weapon, or with a ſtone wherewith a man may die, (meaning ſuch a ſtone as from its ſhape or ſize might be deemed a ſufficient weapon to occa⯑ſion death) there is not the leaſt men⯑tion [31]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 com⯑mand 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 Eng⯑liſh word wretch) "the murderer ^k ‘ſhall [32]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 [33] "according to theſe judgments;" ſee 24th verſe. For the ſlayer was not to die, un⯑til he ſtood before the congregation in judgment; ſee 12th verſe: and then, if it did not appear, that the killing was at unawares ( [...] in error) ſee 11th verſe, or, as the ſame meaning is ex⯑preſſed in different words in Deut. xix. 4. [...] ignorantly, or without know⯑ledge (agreeable to the example, there laid down, for all other caſes of mere misfortune ^l) the malice was preſumed [34]from the weapon with which the ſtroke was made; for the hatred [...] and en⯑mity [35] [...] were never enquired after in any caſes where a wilful ſtroke was given with "an inſtrument of iron," or ‘a weapon of wood,’ or even with "a ſtone (wherewith a man may die)" that is, if it were ſuch a ſtone as was appa⯑rently capable of occaſioning the death of a man (ſee Numb. xxxv. 16. to 19.) all which crimes were unpardonable by the law of God; "he ſhall ſurely die."

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

So that the allowance uſually made for ſudden anger, when the blow is given with a weapon, is ſo far from deſerving the name of "a proper diſtinction in the crime of killing," (as ſome contend) that [36]it is apparently founded in a want of that proper diſtinction, which the laws of God and reaſon require, concerning caſes of manſlaughter, wherein ſudden anger is really excuſable; which can only be when the killing is not voluntary, or, at leaſt, the intention of killing not apparent; as in the caſes before-menti⯑oned of a man ſtriking another merely with his hand, ^m or fiſt, in ſudden anger; or the ſudden thruſting ⁿ a man down, [37]by which he is hurt in falling, ſo that death unexpectedly enſues. In theſe and ſimilar caſes the malice or the inten⯑tion of killing is not neceſſarily implied in the action itſelf; and, therefore, if all the other circumſtances are alſo free from premeditated malice and laying in wait, the law has reſerved a reaſonable uſe of an unreaſonable popiſh indulgence, called The Benefit of Clergy, to relieve the undeſigning manſlayer (if the occaſion [38]was not unlawful) from the too great ſeverity of the common law; for in ſuch caſes we may ſafely admit Sir Ed⯑ward Coke's maxim, ‘Delinquens per iram provocatus puniri debet mitius,’ 3 Inſt. 55.^o

But a falſe idea of mercy, and conſi⯑deration for ſudden anger unhappily pre⯑vailing in the Courts, this lenity was indiſcriminately extended even to caſes where the prepenſed malice was neceſſa⯑rily implied by the ſtroke; ſo that the wretch, who ſtabbed his neighbour in brutal anger, eſcaped with impunity, to the ſcandal of public juſtice. The bad effects of this falſe mercy, and injuſtice, became ſo notorious in the reign of King James I. that the legiſlature was obliged to ſeek a remedy; and a ſtatute was then made (1 Jac. I. c. 8.) by which the [39]benefit of clergy was taken away from ‘the offence of mortally ſtabbing an⯑other, though done upon ſudden provo⯑cation.’ Judge Blackſtone's Com. b. 4. c. xiv. p. 193. But unfortunately this remedy proved almoſt as indiſcrimi⯑nate as the abuſe intended to be correct⯑ed by it; for it takes no notice of any other crime than that of ſtabbing; as if ſudden anger was not equally criminal, when a man is killed "by throwing a hammer or other weapon;" or by ‘a ſhot with a piſtol.’ Ibid. p. 194. Whereas, in truth, no new law was wanted: nothing but a better admini⯑ſtration of the old laws before-menti⯑oned; for, in all ſuch furious ſallies of ſudden anger, the malice was neceſſarily implied, or preſumed, from the weapon, as well in the laws of God (which I have already ſhewn) as in the law of nations: —"Ex telo praeſumitur malum conſilium (ſays the learned Grotius) ‘niſi contra⯑rium [40]appareat.’ ^p And in his ſecond book, de Jure Belli & Pacis, he remarks, "that either iron, a club, or a ſtone, comes under the denomination of a weapon. ‘Teli autem nomine ferrum, fuſtis, & lapis venit,’ c. i. p. 175.

The reaſon of the ſeverity in the di⯑vine law, againſt ſtriking with a weapon, is well expreſſed by Dr. Wells in his paraphraſe on Numbers xxxv. 16 to 19. ‘Foraſmuch (ſays he) as though he might have no malice to him before⯑hand, yet his ſtriking him with a ſword, or hatchet, &c. ſhews he had an intention to do him miſchief;’ and, as another writer remarks ‘though per⯑haps he had no formed intention to kill the perſon; yet he ought to have mo⯑derated his paſſion, and could not be [41]ignorant that ſuch an inſtrument was capable of inflicting a deadly wound,’

And, therefore, when a man is killed with a weapon (except it be by misfor⯑tune, or in ſelf-defence ^q, when the Slayer could retire no further to ſave himſelf without ſtriking; or elſe in ſuch law⯑ful and reaſonable caſes, wherein a man is not obliged to give back; as in the caſe of a peace officer^r who is aſſaulted [42]in his duty; or when any other man en⯑deavours to keep the peace^s or to ſave ano⯑ther perſon from violence and oppreſſion^t; [43]or a woman^u in the neceſſary defence of chaſtity; or when any perſon reſiſts the [44]attack of a Robber^w) I ſay, excepting theſe, and ſimilar caſes, if a man wil⯑fully [45]ſtrikes another with a weapon in ſudden anger, the deſign of killing is, by [46]"the weapon, rendered expreſs, as I have before obſerved, though the ‘prepenſed malice’ may, perhaps, more properly (upon a ſudden provocation) be ſaid to be implied; and it, certainly, is implied or preſumed in law, though the ſudden anger was but a moment before the fa⯑tal ſtroke^x; ſo that, if no proof can be [47]produced by the priſoner, of an inevita⯑ble neceſſity, as in ſe defendendo, the act muſt, in reaſon and juſtice, be deemed "wilful murder of malice prepenſed," ſuch as was ſufficiently excluded from the benefit of clergy by two expreſs acts of parliament (23 Hen. VIII.c. i. and 1 Edw. VI.c.xii.) previous to the undiſtinguiſhing act of James I. againſt ſtabbing.

By an act of the 2 Edw. III. it was ordained that a charter of pardon ‘ſhall not be granted, but only where the [48]king may do it by his oath ^y that is to ſay, where a man ſlayeth another [49]in his own defence, or by misfortune.’ Now with reſpect to the firſt caſe, viz. [50]"in his own defence," (or ſe defendendo) "all writers, both antient and modern, [51]agree, that the killing of a man muſt [52]be^z 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 fa⯑vour of a Man, who has accepted a challenge; or who has drawn his ſword, in ſudden anger, merely to revenge an affront.

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

The caſes of Misfortune or Accident, which are deemed Murder, are thoſe wherein the act, which undeſignedly occaſions death, is in itſelf unlawful ^aa. [54] ‘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^bb. (See his Edition of Kelyng. Rex verſus Plummer, 117.) But whether this be deemed murder or manſlaughter, the killing is merely accidental, or by miſ⯑fortune; and, therefore, is certainly a much leſs crime than that of aiming at, [55]and ſtriking a man with a weapon, or ſhooting at him in ſudden anger, howſo⯑ever great the previous affront may have been. For, in the former caſe, though the ſhooting at a deer belonging to an⯑other perſon is both unlawful, and vo⯑luntary, yet the manſlaughter, which it accidentally occaſions, is involuntary, and without intention; whereas in the vo⯑luntary aiming, and ſhooting at a man, the act itſelf is not only unlawful, but implies malice; or rather, I may ſay, the malice is expreſſed by the act; and the ſudden anger is ſo far from being an ex⯑cuſe, that it is, abſolutely, a further proof of the malice and intention of killing. The malice was alſo implied in the caſe of the Lord Dacres, though his Lordſhip was not half ſo criminal in his unlawful hunting, as the paſſionate man who ſtrikes with a weapon. See how the caſe is mentioned by Lord Chief Juſtice Kelyng, (Rep. p. 87. publiſhed by Judge Holt.)

[56] ‘The Lord Dacres and Manſell, and others in his company came unlawfully to hunt in a foreſt ^cc, 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 [57]two men have a deſign to ſteal a hen, and the one ſhoots at the hen for that purpoſe, and a man be killed, it is murder in both, becauſe the deſign was felonious.’ See alſo the laſt para⯑graph of p. 56.3 Inſt. concerning the ſhooting at a tame fowl, of which this caſe, ſuppoſed by Judge Holt, is an ex⯑planation. But ſurely the deſign muſt be much more felonious when a man wilfully ſtrikes his neighbour with a weapon in ſudden anger; becauſe this muſt neceſ⯑ſarily be allowed to be an act ‘com⯑mitted felleo animo, with a fell, furi⯑ous, and miſchievous mind and intent,’ which is Lambard's definition of felony, c. vii. p. 224.

The implication of malice in the owner of a beaſt that kills a man, after warn⯑ing given, will alſo further illuſtrate what has been ſaid; for though mere careleſſneſs or inconſideration might oc⯑caſion [58]his neglect, ſo that the accident may, in ſome degree, be eſteemed a misfortune, yet the law implies malice; ‘for if one keep a maſtiff dog (ſays Sir James Aſtry, in his charge to grand juries, p. 18.) that is uſed to bite peo⯑ple near the common highway; or bull or beaſt, that hath hurt any one (after notice) they kill any one, that will be murder in the Owner, although not preſent when the fact was done; and yet in this, and the other precedent caſes, here is no expreſs malice to be proved, but what the law conſtrues to be ſo:’ this is agreeable to the doc⯑trine of Judge Staunford, P. C. lib. i. cap. 9. ‘Que ſi home ad un jument que eſt accuſtomé male faire et le Owner ceo bien ſachant, negliga luy, eins ſuffra d'aller a large, et puis le jument tua un home: que ceo eſt felo⯑nie in le owner, eo que, per tiel ſuf⯑ferance: le owner ſemble d'aver volunté [59]a tuer.’ See alſo Crompton, p. 24. b. and 1 Hawkins, c. xxxi. § 8. And, according to Bracton, the Common Law imputes the death of a man by a beaſt, to any man, who follows, or drives the beaſt at the time of the misfortune;— ‘vel dum inſequitur quis equum vel bovem, et aliquis a bove vel equo per⯑cuſſus fuerit, et hujuſmodi hoc imputa⯑tur ei.’ Bract. lib iii. c. iv. p. 120. b. If this law were ſtill enforced, we ſhould not have ſuch continual complaints of accidents in the ſtreets, by cattle, that are enraged, and made mad, through the cruelty of the two-legged brutes who drive them. For the firſt ſtep that ought to be taken, in ſuch caſes, is, to ſeize the drivers; and, nineteen times out of twenty, it will be found, that the poor beaſt will recover it-ſelf (when they are gone) from the exceſs of fear and rage which the Brutality of the hurrying [60]Drivers ^dd 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 ^ee. But ſurely the [61]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; [62]that is, by an expreſs evil deſign, the genuine ſenſe of malitia. As when a park-keeper tied a boy that was ſteal⯑ing wood, to a horſe's tail, and drag⯑ged him along the park; when a maſter corrected his ſervant with an iron bar, and a ſchoolmaſter ſtamped on his ſcholar's belly; ſo that each of the ſufferers died; theſe were juſtly held to be murders, becauſe the cor⯑rection being exceſſive, and ſuch as could not proceed but from a bad heart, it was equivalent to a deliberate act of ſlaughter.’ But is not an expreſs evil deſign as apparent, in the act of ſtri⯑king a man with a weapon, in anger, (be the anger ever ſo ſudden) as it is in theſe caſes where death was not really intended? For ſurely the deſign of killing, is by the weapon rendered expreſs^ff; |which equally [63]fulfils "the genuine ſenſe of malitia," tho' perhaps, the prepenſed malice may, more properly (upon a ſudden provocation as above) be ſaid to be implied than expreſs. But whether it be expreſs or implied, it undoubtedly conſtitutes murder; for malice is the leading circumſtance which diſtinguiſhes manſlaughter from murder, and therefore an expreſs evil deſign, ſuch as is apparent in the voluntary killing of a man, cannot be admitted under the head of ſimple homicide or manſlaughter, becauſe the neceſſary difference is want⯑ing in the degree of the offence according to the excellent rule before cited from [64]Sir Matthew Hale, viz.— ‘murder being aggravated with malice preſumed or implied; but manſlaughter not, &c.’ 1 Hale, P. C. 466.

I may probably ſeem guilty of much tautology in this little Work; but hope my Readers will excuſe it, in conſidera⯑tion of the neceſſity I am under, of re⯑peatedly comparing the crimes of ſtri⯑king with a weapon in ſudden Anger, and of voluntary Killing, with ſo many other different caſes, wherein even involuntary and accidental Killing have been ſolemnly adjudged Murder: and I apprehend that the ſeverity of the Law, in the laſt⯑mentioned caſes, muſt ſufficiently de⯑monſtrate ſuch a general abhorrence in our Law to the ſhedding of Human Blood, that we cannot reaſonably ſup⯑poſe the ſame Law capable of admitting an excuſe for voluntary Manſlaughter on [65]any private difference, howſoever great the provocation. Nevertheleſs, Mr. Hawkins ventures to aſſert a very dif⯑ferent doctrine in his Pleas of the Crown, 1 Book c. xxviii. § 24. ‘I ſee no reaſon (ſays he) why a perſon, who without provocation is aſſaulted by another in any place whatſoever, in ſuch a manner as plainly ſhews an in⯑tent to murder him, as by diſcharg⯑ing a Piſtol, or puſhing at him with a drawn Sword, &c. may not juſtify Killing ſuch an Aſſailant, as much as if he had attempted to rob him: for is not he, who attempts to Murder me (ſays he) more injurious than he who barely attempts to rob me? And can it be more juſtifiable to fight for my goods than for my life? And it is not only highly agreeable to reaſon, that a man in ſuch circumſtances may lawfully Kill another, but it ſeems [66]alſo to be confirmed by the general Te⯑nor of our Law-books,’ &c.

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

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

He founds his opinion in the ſuppo⯑ſition of "ſome precedent Quarrel" in [67]the latter, "in which" (ſays he) ‘both parties always are, or at leaſt may juſtly be ſuppoſed to have been, in ſome fault, ſo that the neceſſity, to which a Man is at length reduced to kill another, is in ſome meaſure preſumed to be owing to himſelf:’ &c.

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

[68]The ſingle circumſtance that the Killer was under no neceſſity of endea⯑vouring to retreat, and avoid the aſſail⯑ant, is not only a proof that his own in⯑tentions (though he might not be the firſt aggreſſor) were nearly as criminal, as thoſe he attributes to the perſon Killed, but it alſo affords a ſtrong preſumption, that the latter was not very ſtrenuous or ſanguine, either in his attack, or in his ſuppoſed intention to commit murder: ſo that the very pretence, by which Mr. Hawkins endeavours to juſtify ſuch a voluntary Killing, muſt neceſſa⯑rily fall to the ground, whenever the Killer is unable to prove, that he endea⯑voured to avoid the attack^gg And tho' the Deceaſed might have had ‘a Wea⯑pon Drawn,’ yet that circumſtance affords no poſitive proof of his criminal [69]intention; for he might have thought himſelf obliged to draw in his own de⯑fence, through a reciprocal ſuſpicion of his adverſary's criminal intentions: and as he cannot plead his own cauſe, it is reaſonable that the Law ſhould pre⯑ſume, that he really did draw in his own defence, eſpecially as the circumſtance, that the Killer was under no neceſſity of endeavouring to avoid him, affords a ſufficient Ground for ſuch a preſump⯑tion:

And even in caſes where it may be ſuppoſed that the perſon Killed might really have had "an intent to murder," we ought to remember that the Laws of England do not puniſh men merely for their "criminal intentions" without ſome fact! and, therefore, it would be highly abſurd to ſuppoſe, that the Law, with⯑out ſome apparent neceſſity, would en⯑truſt every individual, indiſcriminately, [70]with a ſupreme Authority, which it de⯑nies even to the Higheſt and moſt ſolemn Courts of Juſtice; I mean an Authority to inflict capital puniſhment without a previous Trial per pares; and that mere⯑ly for "a Criminal Intention;" which, in many caſes, might as eaſily, (through fear, paſſion, or violent prejudice) be miſtaken, or imaginary, as be real!

And therefore ‘an Aſſault upon the Perſon’ is not (as I have before in⯑ſiſted in p. 5. againſt the opinion of Judge Foſter) ‘Provocation ſufficient to free the Party Killing from the Guilt of Murder.’

The caſe of Gentlemen in the Army, nevertheleſs, ſeems peculiarly hard upon ſuch unhappy occaſions. The firſt prin⯑ciple of their profeſſion is Courage; and the World, in general, is too de⯑praved to diſtinguiſh in what caſes a [71]Man of true Courage may retreat with honour from the Aſſault of an Enemy; ſo that Military Men are liable to be unjuſtly deſpiſed, whenever they act rea⯑ſonably in caſes either of inſult, or aſ⯑ſault!

Yet, at the ſame time, it ought to be remembered, that thoſe men who ſub⯑mit to the Slaviſh Yoke of other Men's depraved opinions or unreaſonable cuſ⯑toms (in contradiction to that natural Knowledge of Good and Evil, which they inherit, in common with the reſt of Mankind, from our firſt Parents), can⯑not juſtly be deemed Men of Honour; and, conſequently, are unworthy of Rank in the honourable Profeſſion of Arms. And though ſuch men may ſupport an outward appearance of Cour⯑age in the eye of the world, by daring to violate the Laws of God and Man in private Quarrels, yet that very act af⯑fords [72]the moſt manifeſt token of the Want of real and ſteady Courage: for unleſs the ſubmiſſion to that depraved cuſtom can be attributed to inconſidera⯑tion, or to the want of Knowledge, it muſt neceſſarily be ſuppoſed, that the Duelliſt had not ſufficient Courage to aſ⯑ſert his natural Right of Acting agreea⯑ble to the Dictates of his own reaſon and conſcience; and was unable to face the Terrors of an adverſe Fortune in a good Cauſe; and therefore, like a wretched Coward, he yielded himſelf a priſoner and ſlave to the faſhionable Depravity!

I am far from meaning however to charge all Soldiers with Cowardice that have fought Duels: ſometimes Paſſion and falſe Pride, but more frequently in⯑conſideration, and ignorance of the Laws of God and Man (as I have before hint⯑ed) occaſion the baſe ſubmiſſion and conformity to thoſe falſe and unreaſona⯑ble [73]notions of Honour, which almoſt uni⯑verſally prevail.

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

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

And though the Law does not actually puniſh ſuch general Crimes, as may un⯑fortunately have obtained, at any time, the Sanction of Government, yet the time will certainly come, when all ſuch [75]temporizing military Murderers muſt be reſponſible for the innocent blood that is ſhed in an unjuſt War, if they have rendered themſelves acceſſaries to it by an implicit, and, therefore, criminal obe⯑dience to the promoters of it. ‘Item fit Homicidium in Bello,’ (ſays the learned Bracton) ‘et tunc videndum utrum Bellum ſit juſtum vel injuſtum. Si autem injuſtum, tenebitur occiſor: ſi autem juſtum, ſicut pro defenſione patriae, non tenebitur, niſi hoc fecerit corrupta voluntate et intentione ^hh’

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

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

The Soldier, therefore, who has not Courage enough to profeſs, on all occa⯑ſions, [78]a ſtrict obedience to the Laws of his Country, according to the dictates of his own reaſon and Conſcience, in prefer⯑ence to every command, and every other opinion whatever, is unworthy of the Britiſh military ſervice; being qualified rather to be inliſted with the ſlaviſh Troops of abſolute Monarchs; or to ſerve in the Black Banditti of the Emperor of Morocco!

But I muſt return once more to the opinions of the Profeſſors of Law— ‘it is ſaid^kk 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. [79]61. and 131: but the pretence for this indulgence is as frivolous as the Doctrine is falſe, viz, "becauſe (ſays Mr. Haw⯑kins) ‘that by neglecting the opportu⯑nity of Killing the other before he was on his guard, and in a condition to defend himſelf, with like Hazard to both, he ſhewed that his intent was not ſo much to kill, as to combat with the other, in compliance with thoſe common notions of Honour,’ &c.—But is not "the intent to kill," or to do ſome bodily harm, and certainly, at leaſt, the Riſque of Killing, included in the intention "to Combat" with dangerous weapons? And is it Juſtice? Nay! is it common Senſe to excuſe a Notorious Crime, by the Plea of an intention to commit another Crime almoſt as bad?

I have already ſhewn, by fair com⯑pariſon with a variety of caſes, that the crime of wilfully ſtriking or Combating [80]with weapons in ſudden Anger, is a much more unlawful act than many others, wherein even involuntary and accidental Homicide has been ſolemnly adjudged Murder, and has been generally admitted as ſuch by the Sages of our Law in their Reports; and it will therefore be highly diſgraceful to our Law, but more parti⯑cularly (becauſe deſervedly) to the pro⯑feſſors of it, if they ſhould ſtill perſiſt in the unreaſonable and unjuſt practice of pu⯑niſhing leſſer Crimes with more ſeverity than the crying Sin of voluntary Man⯑ſlaughter, which, as I have already proved in my preface, is abſolutely un⯑pardonable in this World, by the Laws of God!