REMARKS, &c.

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⯑litia praecogitata ^a; which malice is either implied or expreſs, ^b or, as judge Hale calls it, Malice in Law, or ex preſumptione Le⯑gis ^c; and malice muſt neceſſarily be im⯑plied [2]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 un⯑juſt in itſelf, as well as dangerous to ſo⯑ciety; for few men would entertain ſuch abſurd notions of honour, as to think themſelves obliged to revenge affronts with their ſwords or piſtols, if they were ſure to be hanged up as felons and murderers for their own gentleman-like ſatisfaction.

‘In every charge of murder, the fact of killing being firſt proved, all the circum⯑ſtances of Accident, Neceſſity, or In⯑firmity [3]are to be ſatisfactorily proved by the priſoner, unleſs they ariſe out of 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 juſtifi⯑ed or excuſed by the above-mentioned cir⯑cumſtances 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 circumſtan⯑ces mentioned above) thewriters on crown law in general have been very indiſcrimi⯑nate, notwithſtanding that the true diſ⯑tinction between Murder and Manſlaughter depends entirely on a clear ſtating of thoſe [4]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 wri⯑ters) 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 his 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 Fu⯑ror brevis, will or will not avail the Defendant is now to be conſidered.’

[5] ‘Words of Reproach, how grievous ſoever, are not a Provocation ſuffi⯑cient to free the Party killing from the guilt of murder. Nor are indecent pro⯑voking 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 ſufficient to free the Party killing from the guilt of murder,’ (though this learned judge ſeems to think otherwiſe. See Sect. iii. p. 295) un⯑leſs all the circumſtances which are ne⯑ceſſary to render 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 [6]ſame thing as wilful; which neceſſarily in⯑cludes "malice. For Bracton ſays, ‘Cri⯑men non contrahitur niſi Voluntas no⯑cendi intercedat & voluntas et propo⯑ſitum diſtinguunt Malificium,’ &c. 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, "cum occidendi animo," 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 evitablis vel non. Si [7]autem evitabilis, et evadere poſſet abſ⯑que 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 inevitablis, quia occidit homi⯑nem ſine odii meditatione in metu & do⯑lore animi, ſe et ſua liberando cùm ali⯑ter’ (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 mat⯑ter conſiſts (ſays he) in the inevitable neceſſity, without which the killing is by no means excuſable ^f ſo that the learned judge Foſter certainly goes too far, when [8]he inſinuates, in the paſſage before cited, "that an aſſault upon the perſon" (with out 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 ine⯑vitable 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 remembred (ſays he) that in all other caſes of homicide upon ſlight provocation^g if it may be rea⯑ſonably collected from the weapon made uſe of, or from any other circum⯑ſtance, that the Party intended to kill, or to do ſome great bodily harm, ſuch [9]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 man⯑ſlaughter, becauſe, tho 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 ſuffi⯑ciently diſtinct in ſtating the caſe; becauſe Circumſtances are wanting, which are ne⯑ceſſary [10]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 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 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 miſ⯑chief, which, as I have already ſhewn, enter into the true notion of Malice in the legal ſenſe of the word.’ p. 291.

[11]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, wil⯑ful murder: for though it appeared, that the woman had ſtruck the ſoldier on the face with an iron patten; yet ſhe after⯑wards 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? [12]That "theſe circumſtances" (the pur⯑ſuing, and ſtabbing the woman in the back) ‘are ſome of the genuine ſymp⯑toms of the mala mens, the heart bent upon miſchief.’ Whereas, if he had ſtruck her merely with his fiſt, or with a ſmall ſtick not likely to kill, and had unluckily, and againſt his intention, killed, it had been but manſlaughter. For this is the neceſſary diſtinction for which I contend in all caſes of killing where the ſtriking (not the killing) is voluntary: and I cannot ſo well expreſs my meaning as in the words of judge Foſter himſelf, though that ſenſible and acute reaſoner is afterwards miſled from the truth of his own doctrine by paying too much regard 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 pro⯑vocation [13]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 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 paſ⯑ſion 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; [14]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 of⯑fence.’ But the Law, in reality, makes no ſuch condeſcenſion, though the Courts of [15]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 differ⯑ence between the Law, and the corrupt practice of the Courts, with reſpect to this point, has unwarily led the more mo⯑dern writers on crown law into conceſ⯑ſions, 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 per⯑ſonal or party prejudice againſt their opi⯑nions; 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 ſin⯑cere [16]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-ſuf⯑ficiently authentic for the purpoſe of cor⯑recting ſuch deſervedly eſteemed wri⯑ters; though I muſt acknowledge my obligation to the more ancient writers for the diſcovery of the errors of which I complain.

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

This rule is good and unexceptionable; and therefore it muſt appear, that even Sir Matthew Hale himſelf is miſtaken in [17]the paragraph preceding this quotation, where he ſays that ‘Manſlaughter, or ſim⯑ple homicide, is the voluntary killing of another without malice expreſs or impli⯑ed:’ for though there may be a volun⯑tary 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 juſ⯑tice, and in the caſe of ſelf-defence and its ſeveral branches, which ſome writers (ra⯑ther improperly) have, indeed, called vo⯑luntary ^h, though they proceed from an inevitable neceſſity ⁱ. Nevertheleſs even the great Sir Edward Coke (and before him the learned Lambard in his Eiren⯑archa, p. 250.) was guilty of this ſame impropriety of expreſſion. ‘Some manſlaughters (ſays Sir Edward Coke, 3 Inſt. cap. viii. p. 55.) be voluntary, [18]and not of malice forethought, upon ſome ſudden falling out. Delinquens per iram provocatus puniri debet mi⯑tius. 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 writ⯑ings of ſo great a man,) becauſe the maxim "Delinquens per iram" &c. can only be admitted in caſes where the malice is neither expreſs nor implied: for inſtance, when the Striking is voluntary; but the Killing, or Manſlaughter, is invo⯑luntary, 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,^k (meaning only to correct) [19]which, undeſignedly, occaſions death; for, in ſuch caſes, the malice is not implied; [20]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 Black⯑ſtone 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, with⯑out malice either expreſs or implied: which may be either voluntarily [21]upon a ſudden heat; or involuntarily, but in the commiſſion of ſome un-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 ^l For I propoſe, in the [22]courſe of this tract, to mention ſeveral allowed caſes, on good authority, where⯑in [23]even the involuntary or undeſigned kill⯑ing is not deemed manſlaughter, but mur⯑der, when the acts, which occaſioned death, were unlawful: and with 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 gene⯑ral term; becauſe a voluntary killing (ex⯑cept in the caſe of ſelf-defence, through ine⯑vitable neceſſity, which ſome writers have, rather improperly, called voluntary ^m) is [24]certainly the ſame thing as a wilful kill⯑ing; 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.) be⯑cauſe, in ‘a voluntary or wilful killing, ma⯑lice is neceſſarily implied;’ and, conſe⯑quently, voluntary killing is excluded from the favour due to manſlaughter by the rule which theſe learned writers them⯑ſelves admit, viz. ‘that manſlaughter is without 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 kill⯑ing [25]be voluntary ⁿ: and therefore, as it is a maxim that ‘Allegans con⯑traria 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 that excellent rule, already cited, for the diſtinction of manſlaughter from mur⯑der, which they themſelves admit, viz. that ‘manſlaughter is without malice ex⯑preſs or implied.’

The errors, of which I complain, were not originally occaſioned by thefe cele⯑brated authors, but by a previous corrupt practice in the courts, which had been in⯑troduced by degrees, and at laſt unhappily prevailed, through a falſe idea of mercy [26]and conſideration for ſudden anger, and alſo through the want of preſerving the pro⯑per diſtinction of caſes, wherein manſlaugh⯑ter in ſudden anger is really excuſable. The proper diſtinction to be obſerved is, when the intention of killing is not neceſſarily implied in the act itſelf; as when a man ſtrikes another merely with his hand, or fiſt, in ſudden anger; or thruſts him ſudden⯑ly from him, whereby he falls and receives a hurt, which occaſions death; in theſe, and ſimilar caſes, the ſtriking, or thruſt⯑ing is, indeed, voluntary, yet the killing, or manſlaughter, is not ſo, but entirely un⯑deſigned and unexpected; which proper and neceſſary diſtinction the Law Com⯑mentators have unhappily neglected. For, though the act of ſtriking or thruſt⯑ing in anger bears ſome reſemblance to malice, and though ſuch an act is cer⯑tainly unlawful in itſelf, yet it is reaſon⯑able to make ſome allowance for the [27]frailty of human nature, and the ſudden paſſion of a man that is provoked, when⯑ever a more criminal malice is not neceſ⯑ſarily implied in the act itſelf, which oc⯑caſions 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 ^o him ſuddenly ( [...])without enmity ^p ( [...] 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 [28]the hand in enmity, ( [...] ſee the 21ſt verſe, apparently meaning, when there was any expreſs proof of malice, or inten⯑tion to kill,) were to be deemed unpar⯑donable; "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 ( [...] [29]Retſch, or Killer, perhaps from thence the Engliſh word wretch) ‘the murderer ^q [30]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 im⯑plied: and the congregation (to which our trials per Pares are in ſome degree ſimilar) were to judge ‘according to theſe judgments;’ ſee 24th ver. 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. [31]XIX. 4. [...] ignorantly, or without knowledge (agreeable to the example, there laid down, for all other caſes of mere misfortune ^r) the malice was pre⯑ſumed [32]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 [33]the death of a man (ſee Numb. xxxv. 16. to 19.) all which crimes were unpardon⯑able by the law of God; ‘he ſhall ſurely die.’

And the Levitical Lawis 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 [34]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 ^s, or fiſt, in ſudden anger; or the ſudden thruſt⯑ing ^t a man down, by which he is hurt [35]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 circum⯑ſtances are alſo free from premeditated malice and laying in wait, the law has reſerved a reaſonable uſe of an unreaſon⯑able popiſh indulgence, called The Bene⯑fit of Clergy, to relieve the undeſigning manſlayer (if the occaſion was not unlaw⯑ful) from the too great ſeverity of the common law; for in ſuch caſes we may ſafely admit Sir Edward Coke's maxim, [36] ‘Delinquens per iram provocatus pu⯑niri debet mitius,’ 3 Inſt. 55.

But a falſe idea of mercy, and conſi⯑deration for ſudden anger unhappily pre⯑vailing in the Courts, this lenity was in⯑diſcriminately 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 (I Jac. I. c. 8.) by which the benefit of clergy was taken away from ‘the offence of mortally ſtabbing an⯑other, though done upon ſudden provo⯑cation.’ Judge Blackſtone's Com. b. 4. [37]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 ad⯑miniſtration of the old laws before-men⯑tioned; 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.’ And in his ſecond book, de Jure Belli & Pacis, he remarks, that either iron, a club, or a [38]ſtone, comes under the denomination of a weapon. ‘Teli autem nomine ferrum, ſuſtis, & 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 tho' he might have no malice to him before-hand, yet his ſtriking him with a ſword, or hatchet, &c. ſhews he had an inten⯑tion to do him miſchief;’ and, as Dr. Dodd 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 misfor⯑tune, [39]or in ſelf-defence ^u, 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^w, who is aſſaulted in his duty; or when any other man endeavours [40]to keep the peace^x, or to ſave another perſon from violence and oppreſſion^y; or [41]a woman^z in the neceſſary defence of chaſtity; or when any perſon reſiſts the attack of a Robber^a. I ſay, excepting [42]theſe, and ſimilar caſes, if a man will⯑fully ſtrikes another with a weapon in [43] ſudden anger, the deſign of killing is, by the weapon, rendered expreſs, as I have [44]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 pre⯑ſumed in law, though the ſudden anger was but a moment before the fatal ſtroke; 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. 1. and 1 Edw. VI. c. xii.) pre⯑vious to the undiſtinguiſhing act of James I. againſt ſtabbing.

By an act of the 2 Edw. III. it was or⯑dained 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 [45]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^b ine⯑vitable, and that the manſlayer 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 [46]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 misfor⯑tune, 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 [47]wherein the act, which undeſignedly oc⯑caſions death, is in itſelf unlawful ^c. ‘If the act be unlawful (ſays lord Coke) it is murder. Asif 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, altho' 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^d. (See his Edition of Kelyng. Rex verſus Plumber, 117.) But whether [48]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, 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 volun⯑tary aiming, and ſhooting at a man, the act itſelf is not only unlawful, but im⯑plies 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 [49]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.

‘The Lord Dacres and Manſell, and others in his company came unlawfully to hunt in a foreſt ^e, and being reſiſted, one of the company, when the lord Dacres was a great way off, and not [50]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 de⯑gree 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 neigh⯑bour with a weapon in ſudden anger; becauſe this muſt neceſſarily be allowed to be an act ‘committed felleo animo, [51]with a fell, furious, and miſchievous mind and intent,’ which is Lam⯑bard's definition of felony, c. vii. p. 224.

The implication of malice in the owner of a beaſt that kills a man, after warn⯑ing given, will alſo further illuſtrate what has been ſaid; for though mere careleſſneſs or inconſideration might oc⯑caſion his neglect, ſo that the accident may, in ſome degree, be eſteemed a miſ⯑fortune, 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, altho' 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 [52]is agreeable to the doctrine of judge Staunford, P. C. lib. i. cap. 9. ‘Que ſi home ad un jument que eſt accuſ⯑tomé a male faire et le Owner ceo bien ſachant, negliga luy, eins luy 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 daver 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 acci⯑dents in the ſtreets, by cattle, that are en⯑raged, and made mad, through the cruelty of the two-legged brutes who drive them. [53]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 reco⯑ver it-ſelf (when they are gone) from the exceſs of fear and rage which the the Brutality of the hurrying Drivers ^*. 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 dif⯑ferent perſon (whom perhaps he did not ſee) contrary to his intention (or by misfor⯑tune as it were) is, nevertheleſs, deemed guilty of wilful murder, though he had not the leaſt anger, or reſentment, againſt [54]the perſon killed ^f. 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 for⯑mer 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 [55]Comment. b. iv. chap. xiv. p. 199 and 200. ‘Alſo if even upon a ſudden pro⯑vocation (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 ex⯑preſs evil deſign the genuine ſenſe of ma⯑litia. 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 cor⯑rection being exceſſive, and ſuch as could not proceed but from a bad heart, it was equivalent to a deliberate act of ſlaugh⯑ter.’ 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 [56]ſo ſudden) as it is in theſe caſes where death was not really intended? For ſurely the deſign of killing, is by the weapon, ren⯑dered expreſs ^g; which equally fulfils "the genuine ſenſe of malitia," though, 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 diſtin⯑guiſhes manſlaughter from murder, and [57]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 ex⯑cellent rule before cited from Sir Mat⯑thew Hale, viz.— ‘murder being ag⯑gravated with malice preſumed or im⯑plied; 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 acci⯑dental Killing have been ſolemnly adjudged Murder: and I apprehend that the ſeve⯑rity [58]of the Law, in the laſt-mentioned caſes, muſt ſufficiently demonſtrate ſuch a general abhorrence in our Law to the ſhedding of Human Blood, that we can⯑not reaſonably ſuppoſe the ſame Law ca⯑pable of admitting an excuſe for volun⯑tary Manſlaughter on any private differ⯑ence, 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 diſcharg⯑ing a Piſtol, or puſhing at him with a drawn Sword, &c. may not juſtify Kill⯑ing 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 [59]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 pro⯑ved "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. Haw⯑kins afterwards advances, in his com⯑pariſon 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.’

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

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

But may it not, as "juſtly be ſuppoſed" that the perſon, who Kills without ſuch ne⯑ceſſity, 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 endea⯑voured, [61]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 attri⯑butes to the perſon Killed, but it alſo af⯑fords a ſtrong preſumption, that the latter was not very ſtrenuous or ſanguine, either in his attack, or in his ſuppoſed inten⯑tion to commit murder: ſo that the very pretence, by which Mr. Hawkins en⯑deavours to juſtify ſuch a voluntary Kill⯑ing, muſt neceſſarily fall to the ground, [62]whenever the Killer is unable to prove, that he endeavoured to avoid the attack^h. And though the Deceaſed might have had "a Weapon Drawn," yet that cir⯑cumſtance affords no poſitive proof of his criminal intention; for he might have thought himſelf obliged to draw in his own defence, through a reciprocal ſuſpi⯑cion 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 de⯑fence, eſpecially as the circumſtance, that the Killer was under no neceſſity of en⯑deavouring to avoid him, affords a ſuffi⯑cient Ground for ſuch a preſumption:

And even in caſes where it may be ſuppoſed that the perſon Killed might [63]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 ſupream 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 [64]Foſter) ‘a Provocation ſufficient to free the Party Killing from the Guilt of Murder.’

The caſe of Gentlemen in the Army, nevertheleſs, ſeems peculiarly hard upon ſuch unhappy occaſions. The firſt prin⯑ciple of their profeſſion is Courage; and the World, in general, is too de⯑praved to diſtinguiſh in what caſes a Man of true Courage may retreat with honour from the Aſſault of an Enemy; ſo that Military Men are liable to be un⯑juſtly 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 ſubmit to the Slaviſh Yoke of other Men's de⯑praved opinions or unreaſonable cuſtoms [65](in contradiction to that natural Know⯑ledge of Good and Evil, which they in⯑herit, in common with the reſt of Man⯑kind, from our firſt Parents), cannot juſtly be deemed Men of Honour; and, conſe⯑quently, are unworthy of Rank in the honourable Profeſſion of Arms. And though ſuch men may ſupport an out⯑ward 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 Know⯑ledge, it muſt neceſſarily be ſuppoſed, that the Duelliſt had not ſufficient Courage to aſſert his natural Right of Acting agree⯑able to the Dictates of his own reaſon and conſcience; and was unable to face the Ter⯑rors [66]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 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 [67]have admitted into the Books. Gentle⯑men 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 Community), they are unfit for Britiſh Soldiers, of whom the Law requires an acknowledgment of her ſupremacy.

For the Law will not excuſe an un⯑lawful Act by a Soldier, even though he commits it by the expreſs Command of the higheſt military Authority in the King⯑dom: and much leſs is the Soldier obliged to conform himſelf implicitly to the mere opinions and falſe Notions of [68]Honour, which his Superiors may have unfortunately adopted. — Even in pub⯑lick military Service, or warlike Expe⯑ditions 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 Com⯑mon Law of this Kingdom will impute to him the Guilt of Murder.

And though the Law does not actually puniſh ſuch general Crimes, as may un⯑fortunately have obtained, at any time, the Sanction of Government, yet the time will certainly come, when all ſuch temporizing military Murderers muſt be reſponſible for the innocent blood that is ſhed in an unjuſt War, if they have ren⯑dered themſelves acceſſaries to it by an im⯑plicit, and, therefore, criminal obedience [69]to the promoters of it. ‘Item fit Ho⯑micidium in Bello,’ (ſays the learned Bracton) ‘et tunc videndum utrum Bellum ſit juſtum vel injuſtum. Si au⯑tem injuſtum, tenebitur occiſor: ſi au⯑tem juſtum, ſicut pro defenſione pa⯑triae, non tenebitur, niſi hoc fecerit corrupta voluntate et intentione ⁱ.’

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 [70]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.

It was this indiſpenſible, this happy diſpoſition, and ſenſe of ſuperior duty, which prevailed even in an unlawful ſtand⯑ing Army, that had been raiſed, and was expreſly 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 Re⯑ligion.

[71]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 what⯑ever, is unworthy of the Britiſh military ſervice; being qualified rather to be in⯑liſted with the ſlaviſh Troops of the Grand Monarch of France; 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 ^k, that if he who draws upon an⯑other in a ſudden Quarrel, make no paſs at him till his ſword is drawn, and then fight with him, and Kill him, he is guilty [72]of Manſlaughter only,’ &c. 1 Haw⯑kins Pleas of the Crown, c. xxxi. § 28. for which he quotes Kelynge 55. 61. and 131: but the pretence for this indul⯑gence 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 com⯑mon 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?

[73]I have already ſhewn, by fair com⯑pariſon with a variety of caſes, that the crime of wilfully ſtriking or Combating with weapons in ſudden Anger, is a much more unlawful act than many others, wherein even involuntary and accidental Homicide has been ſolemnly ajudged 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!

Soli DEO Gloria & Gratia.