Remarks on the opinions of some of the most celebrated writers on Crown Law: respecting the due distinction between manslaughter and murder: ... With a prefatory address to the reader, ... By Granville Sharp.

Table of contents

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- PREFACE.

- A TABLE of the Authorities and Cases quoted, or examined in this Book.

- ERRATA:

REMARKS, &c.

NO MAN can give or accept a challenge to fight with weapons, and kill his antagonist (on any private difference whatever) without being guilty of Wilful Murder, such as ought to be excluded from the benefit of clergy. For Wilful Murder is the killing of a man ex malitia praecogitata [a]; which malice is either implied or express, [b] or, as judge Hale calls 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 preserving a proper distinction of the case wherein it really deserves consideration) is unjust in itself, as well as dangerous to society; for few men would entertain such absurd notions of honour, as to think themselves obliged to revenge affronts with their swords or pistols, if 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 circumstances of Accident, Necessity, or Infirmity 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 justified or excused by the above-mentioned circumstances of Accident and Necessity, are well understood, and, by many eminent writers, sufficiently explained under the heads of Misfortune and Self-defence. But with respect to those cases of Homicide, which are attended with circumstances of infirmity (the third branch of circumstances mentioned above) thewriters on crown law in general have been very indiscriminate, notwithstanding that the true distinction between Murder and Manslaughter depends entirely on a clear stating of those cases of infirmity, which really deserve consideration and excuse.

Judge Foster, indeed, is, for the most part, nice and accurate in his distinctions; yet he has paid so great a regard to the authority of precedents, that he has been unwarily led away (as well as other writers) from the necessary conclusions of his own arguments upon this point; I shall, nevertheless, make use of his words as far as they express my own opinion of the subject.— ‘Whoever would shelter himself under the plea of Provocation must prove his case to the satisfaction of 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 Furor brevis, will or will not avail the Defendant is now to be considered.’

‘Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party killing from the guilt of murder. Nor are indecent provoking actions or gestures expressive of contempt or reproach, without an assault upon the person. ’ (p. 290.) But I think myself obliged to add that even an assault [*] upon the person is NOT ‘a Provocation sufficient to free the Party killing from the guilt of murder, ’ (though this learned judge seems to think otherwise. See Sect. iii. p. 295) unless all the circumstances which are necessary to render it excusable by the plea of 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 necessarily includes "malice. For Bracton says, ‘Crimen non contrahitur nisi Voluntas nocendi intercedat & voluntas et propositum 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 autem evitabilis, et evadere posset absque occisione, tune erit reus homicidii ’ (and a felonious homicide or manslaughter, in the days of Bracton, had the same meaning that we now apply to Murder). ‘Si autem inevitablis, quia occidit hominem sine odii meditatione in metu & dolore animi, se et sua liberando cùm 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 that the learned judge Foster certainly goes too far, when 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 inevitable necessity) is also to be observed, which is very accurately laid down, even by judge Foster himself, in p. 291, though the same would be useless, if an assault upon the person was to be admitted as a sufficient provocation to the act of killing.
It ought to be remembred (says he) that in all other cases of homicide upon slight provocation[g] if it may be reasonably collected from the weapon made use of, or from any other circumstance, that the Party intended to kill, or to do some great bodily harm, such Homicide will be Murder. The mischief done is irreparable, and the outrage is considered as flowing rather from brutal rage or diabolical malignity than from human frailty. And it is to human frailty, and to that alone, the Law indulgeth in every case of felonious Homicide.

The first Instance which he gives by way of illustration to this doctrine is cited from Judge Hale, Vol. i. p. 473. If ‘ A. come into the wood of B. and pull his Hedges, or cut his wood, and B. beat him, whereof he dies, this is manslaughter, because, 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 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 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 mischief, which, as I have already shewn, enter into the true notion of Malice in the legal sense of the word.’ p. 291.

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

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

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

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

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

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

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

This rule is good and unexceptionable; and therefore it must appear, that even Sir Matthew Hale himself is mistaken in the paragraph preceding this quotation, where he says that ‘ Manslaughter, or simple homicide, is the voluntary killing of another without malice express or implied: ’ for though there may be a voluntary striking without malice, yet I hope I have already proved, that there cannot be a voluntary killing without malice express or implied, except in the legal execution of justice, and in the case of self-defence and its several branches, which some writers (rather improperly) have, indeed, called voluntary [h], though they proceed from an inevitable necessity [i]. Nevertheless even the great Sir Edward Coke (and before him the learned Lambard in his Eirenarcha, p. 250.) was guilty of this same impropriety of expression. ‘Some manslaughters (says Sir Edward Coke, 3 Inst. cap. viii. p. 55.) be voluntary, and not of malice forethought, upon some sudden falling out. Delinquens per iram provocatus puniri debet mitius. And this for distinction sake (says he) is called manslaughter. ’ But it is a very indiscriminate distinction (if I may use such an expression concerning the writings of so great a man,) because the maxim "Delinquens per iram" &c. can only be admitted in cases where the malice is neither express nor implied: for instance, when the Striking is voluntary; but the Killing, or Manslaughter, is involuntary, and unexpected; as when a man, in sudden anger, gives an unlucky blow merely with his fist, or with a small stick, or small stone,[k] (meaning only to correct) which, undesignedly, occasions death; for, in such cases, the malice is not implied; whereas, in a voluntary homicide, even a Malice prepensed is implied, according to Sir Edward Coke's own definition of that term, viz. ‘That it is voluntary, and of set purpose, though it be done upon a Sudden Occasion: for if it be Voluntary, the law implieth Malice, ’ 3 Inst. c. xiii. p. 62.—Sir William Blackstone has also fallen into the same error in his 4th vol. chap. xiv. p. 191. where he informs us that Manslaughter is ‘the unlawful killing of another, without malice either express or implied: which may be either voluntarily upon a sudden heat; or involuntarily, but in the commission of some 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 course of this tract, to mention several allowed cases, on good authority, wherein even the involuntary or undesigned killing is not deemed manslaughter, but murder, when the acts, which occasioned death, were unlawful: and with respect to the former, it is a manifest inconsistency, in all these great writers, to rank voluntary killing under the head of manslaughter, in the modern confined sense of that once general term; because a voluntary killing (except in the case of self-defence, through inevitable necessity, which some writers have, rather improperly, called voluntary [m]) is certainly the same thing as a wilful killing; and either of them must be allowed to be the proper definition of what we now understand by the term Murder (though the meaning of that word was, originally, very different. See le Mirroir de justice, 1642, c. i. sect. xiii. p. 104. and Lambard's Eirenarcha, c. vii. p. 239.) because, in ‘ a voluntary or wilful killing, malice is necessarily implied; ’ and, consequently, voluntary killing is excluded from the favour due to manslaughter by the rule which these learned writers themselves admit, viz. ‘that manslaughter is without malice express or implied; ’ so that they are really guilty of a contradiction in terms; because the malice, or intention of killing, is undeniable, if the killing be voluntary [n]: 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 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 thefe celebrated authors, but by a previous corrupt practice in the courts, which had been introduced by degrees, and at last unhappily prevailed, through a false idea of mercy and consideration for sudden anger, and also through the want of preserving the proper distinction of cases, wherein manslaughter in sudden anger is really excusable. The proper distinction to be observed is, when the intention of killing is not necessarily implied in the act itself; as when a man strikes another merely with his hand, or fist, in sudden anger; or thrusts him suddenly from him, whereby he falls and receives a hurt, which occasions death; in these, and similar cases, the striking, or thrusting is, indeed, voluntary, yet the killing, or manslaughter, is not so, but entirely undesigned and unexpected; which proper and necessary distinction the Law Commentators have unhappily neglected. For, though the act of striking or thrusting in anger bears some resemblance to malice, and though such an act is certainly unlawful in itself, yet it is reasonable to make some allowance for the frailty of human nature, and the sudden passion of a man that is provoked, whenever a more criminal malice is not necessarily implied in the act itself, which occasions death. And in this lenity we are justified by the laws of God, whereby such cases of manslaughter in sudden anger, as I have mentioned, were excused without any other penalty than that of banishment to a city of refuge.
If he thrust [o] him suddenly (〈 in non-Latin alphabet 〉)without enmity [p] (〈 in non-Latin alphabet 〉 Numb. xxxv. 22.)— the congregation shall restore him to the city of his refuge, &c.
(v. 25.) Yet the very same action, if done in hatred, (〈 in non-Latin alphabet 〉 see the 20th verse) and even a blow with the hand in enmity, (〈 in non-Latin alphabet 〉 see the 21st verse, apparently meaning, when there was any express proof of malice, or intention to kill,) were to be deemed unpardonable; "he shall surely die."

But it is remarkable, that these are the only two cases wherein an express proof of malice was required; for in all the examples given in the same chapter of killing with a weapon, or with a stone wherewith a man may die, (meaning such a stone as from its shape or size might be deemed a sufficient weapon to occasion death) there is not the least mention made of malice (〈 in non-Latin alphabet 〉 Hatred, or 〈 in non-Latin alphabet 〉 Enmity) which is a sufficient, proof that the same were necessarily implied from the stroke, when given with a weapon; for, in that case, the command was peremptory. ‘If he smite him with an instrument of iron’ so that he die, he is a murderer (〈 in non-Latin alphabet 〉 Retsch, or Killer, perhaps from thence the English word wretch)
the murderer [q] shall surely be put to death:
(v. 16.) the same also, if he smote him with ‘ a stone (wherewith he may die,) or with an hand weapon of wood. ’ But in none of these cases is there the least mention of malice; which was, therefore, most certainly implied: and the congregation (to which our trials per Pares are in some degree similar) were to judge ‘ according to these judgments; ’ see 24th 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 non-Latin alphabet 〉 in error) see 11th verse, or, as the same meaning is expressed in different words in Deut. XIX. 4. 〈 in non-Latin alphabet 〉 ignorantly, or without knowledge (agreeable to the example, there laid down, for all other cases of mere misfortune [r]) the malice was presumed from the weapon with which the stroke was made; for the hatred 〈 in non-Latin alphabet 〉 and enmity 〈 in non-Latin alphabet 〉 were never enquired after in any cases where a wilful stroke was given with ‘ an instrument of iron, ’ or "a weapon of wood," or even with ‘ a stone (wherewith a man may die) ’ that is, if it were such a stone as was apparently capable of occasioning the death of a man (see Numb. xxxv. 16. to 19.) all which crimes were unpardonable by the law of God; ‘ he shall surely die. ’

And the Levitical 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 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 thrusting [t] a man down, by which he is hurt in falling, so that death unexpectedly ensues. In these and similar cases the malice or the intention of killing is not necessarily implied in the action itself; and, therefore, if all the other circumstances are also free from premeditated malice and laying in wait, the law has reserved a reasonable use of an unreasonable popish indulgence, called The Benefit of Clergy, to relieve the undesigning manslayer (if the occasion was not unlawful) from the too great severity of the common law; for in such cases we may safely admit Sir Edward Coke's maxim, ‘Delinquens per iram provocatus puniri debet mitius,’ 3 Inst. 55.

But a false idea of mercy, and consideration for sudden anger unhappily prevailing in the Courts, this lenity was indiscriminately extended even to cases where the prepensed malice was necessarily implied by the stroke; so that the wretch, who stabbed his neighbour in brutal anger, escaped with impunity, to the scandal of public justice. The bad effects of this false mercy, and injustice, became so notorious in the reign of King James I. that the legislature was obliged to seek a remedy; and a statute was then made (I Jac. I. c. 8.) by which the benefit of clergy was taken away from ‘the offence of mortally stabbing another, though done upon sudden provocation. ’ Judge Blackstone's Com. b. 4. c. xiv. p. 193. But unfortunately this remedy proved almost as indiscriminate as the abuse intended to be corrected by it; for it takes no notice of any other crime than that of stabbing; as if sudden anger was not equally criminal, when a man is killed ‘ by throwing a hammer or other weapon; ’ or by "a shot with a pistol." Ibid. p. 194. Whereas, in truth, no new law was wanted: nothing but a better administration of the old laws before-mentioned; for, in all such furious sallies of sudden anger, the malice was necessarily implied, or presumed, from the weapon, as well in the laws of God (which I have already shewn) as in the law of nations:— ‘ Ex telo praesumitur malum consilium (says the learned Grotius) nisi contrarium appareat. ’ 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, sustis, & lapis venit,’ c. i. p. 175.

The reason of the severity in the divine law, against striking with a weapon, is well expressed by Dr. Wells in his paraphrase on Numbers xxxv. 16 to 19. ‘Forasmuch (says he) as tho' 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 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 misfortune, or in self-defence [u], when the Slayer could retire no further to save himself without striking; or else in such lawful and reasonable cases, wherein a man is not obliged to give back; as in the case of a peace officer[w], who is assaulted in his duty; or when any other man endeavours to keep the peace[x], or to save another person from violence and oppression[y]; or a woman[z] in the necessary defence of chastity; or when any person resists the attack of a Robber[a]. I say, excepting these, and similar cases, if a man willfully strikes another with a weapon in sudden anger, the design of killing is, by the weapon, rendered express, as I have before observed, though the ‘ prepensed malice ’ may, perhaps, more properly (upon a sudden provocation) be said to be implied; and it, certainly, is implied or presumed in law, though the sudden anger was but a moment before the fatal stroke; 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.) previous to the undistinguishing act of James I. against stabbing.

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

And with respect to the second pardonable case, mentioned in the said act of Edw. III. viz. by Misfortune, I must observe, that there are some cases of homicide that may even be said to happen by misfortune, or without intention, which are, nevertheless, deemed Murder. And the severity of the law, in this respect, will enable me, by comparison, to point out, more clearly, the absurdity and injustice of excusing homicide, in consideration of sudden anger, when the mortal stroke is given with a weapon in rencounters.

The cases of Misfortune or Accident, which are deemed Murder, are those wherein the act, which undesignedly occasions death, is in itself unlawful [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 this be deemed murder or manslaughter, the killing is merely accidental, or by misfortune; and, therefore, is certainly a much less crime than that of aiming at, and striking a man with a weapon, or shooting at him in sudden anger, howsoever great the previous affront may have been. For, in the former case, though the shooting at a deer belonging to another person is both unlawful, and voluntary, yet the manslaughter, which it accidentally occasions, is involuntary, and without intention; whereas in the voluntary aiming, and shooting at a man, the act itself is not only unlawful, but implies malice; or rather, I may say, the malice is expressed by the act; and the sudden anger is so far from being an excuse, that it is, absolutely, a further proof of the malice and intention of killing. The malice was also implied in the case of the lord Dacres, though his lordship was not half so criminal in his unlawful hunting, as the passionate man who strikes with a weapon. See how the case is mentioned by lord chief justice Kelyng, Rep. p. 87.

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 present, killed a man; judged murder in him and all the rest, and the lord Dacres was hanged.

Lord chief justice Holt supposes a case in his Rep. of Rex versus Plummer, p. 117. in the same book, which is in some degree similar. ‘So (says he) if two men have a design to steal a hen, and the one shoots at the hen for that purpose, and a man be killed, it is murder in both, because the design was felonious. ’ See also the last paragraph of p. 56.3 Inst. concerning the shooting at a tame fowl, of which this case, supposed by judge Holt, is an explanation. But surely the design must be much more felonious when a man wilfully strikes his neighbour with a weapon in sudden anger; because this must necessarily be allowed to be an act ‘committed felleo animo, with a fell, furious, and mischievous mind and intent, ’ which is Lambard's definition of felony, c. vii. p. 224.

The implication of malice in the owner of a beast that kills a man, after warning given, will also further illustrate what has been said; for though mere carelessness or inconsideration might occasion his neglect, so that the accident may, in some degree, be esteemed a misfortune, yet the law implies malice; ‘for if one keep a mastiff dog (says Sir James Astry, in his charge to grand juries, p. 18.) that is used to bite people near the common highway; or bull or beast, that hath hurt any one (after notice) they kill any one, that will be murder in the Owner, 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 is agreeable to the doctrine of judge Staunford, P. C. lib. i. cap. 9. ‘Que si home ad un jument que est accustomé 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 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 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 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 [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 former case, it certainly deserves none in the latter. Several cases also are mentioned by Sir William Blackstone, wherein sudden anger is not excusable, even though the death may be said to be "by misfortune," as there was no real intention of killing, yet rendered by the circumstances ‘ equivalent to a deliberate act of slaughter. ’ See Comment. b. iv. chap. xiv. p. 199 and 200. ‘Also if even upon a sudden provocation (says he) one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by an express malice; that is by an express evil design the genuine sense of malitia. As when a park-keeper tied a boy that was stealing wood, to a horse's tail, and dragged him along the park; when a master corrected his servant with an iron bar, and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died; these were justly held to be murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter. ’ But is not an express evil design as apparent, in the act of striking a man with a weapon, in anger, (be the anger ever so sudden) as it is in these cases where death was not really intended? For surely the design of killing, is by the weapon, rendered express [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 distinguishes manslaughter from murder, and therefore an express evil design, such as is apparent in the voluntary killing of a man, cannot be admitted under the head of simple homicide or manslaughter, because the necessary difference is wanting in the degree of the offence according to the excellent rule before cited from Sir Matthew Hale, viz.— ‘murder being aggravated with malice presumed or implied; but manslaughter not, ’ &c. 1 Hale, P. C. 466.

I may probably seem guilty of much tautology in this little Work; but hope my Readers will excuse it, in consideration of the necessity I am under, of repeatedly comparing the Crimes of striking with a weapon in sudden Anger, and of voluntary Killing, with so many other different cases, wherein even involuntary and accidental Killing have been solemnly adjudged Murder: and I apprehend that the severity of the Law, in the last-mentioned cases, must sufficiently demonstrate such a general abhorrence in our Law to the shedding of Human Blood, that we cannot reasonably suppose the same Law capable of admitting an excuse for voluntary Manslaughter on any private difference, howsoever great the provocation. Nevertheless, Mr. Hawkins ventures to assert a very different doctrine in his Pleas of the Crown, 1 Book c. xxviii. § 24. ‘I see no reason (says he) why a person, who without Provocation is assaulted by another in any place whatsoever, in such a Manner as plainly shews an intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify Killing such an Assailant, as much as if he had attempted to rob him: for is not he, who attempts to Murder me (says he) more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my Life? And it is not only highly agreeable to reason, that a Man in such circumstances may lawfully Kill another, but it seems also to be confirmed by the general Tenor of our Law-books, ’ &c.

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

He endeavours to represent the Voluntary Killing of a Man as Justifiable Homicide, and consequently he must suppose it a less crime than Excusable Homicide, in se Defendendo.

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

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

The single circumstance that the Killer was under no necessity of endeavouring to retreat, and avoid the assailant, is not only a proof that his own intentions (though he might not be the first aggressor) were nearly as criminal, as those he attributes to the person Killed, but it also affords a strong presumption, that the latter was not very strenuous or sanguine, either in his attack, or in his supposed intention to commit murder: so that the very pretence, by which Mr. Hawkins endeavours to justify such a voluntary Killing, must necessarily fall to the ground, whenever the Killer is unable to prove, that he endeavoured to avoid the attack[h]. And though the Deceased might have had "a Weapon Drawn," yet that circumstance affords no positive proof of his criminal intention; for he might have thought himself obliged to draw in his own defence, through a reciprocal suspicion of his adversary's criminal intentions: and as he cannot plead his own cause, it is reasonable that the Law should presume, that he really did draw in his own defence, especially as the circumstance, that the Killer was under no necessity of endeavouring to avoid him, affords a sufficient Ground for such a presumption:

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

And therefore ‘ an Assault upon the Person ’ is not (as I have before insisted in p. 5. against the opinion of Judge Foster) ‘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 principle of their profession is Courage; and the World, in general, is too depraved to distinguish in what cases a Man of true Courage may retreat with honour from the Assault of an Enemy; so that Military Men are liable to be unjustly despised, whenever they act reasonably in cases either of insult, or assault!

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

I am far from meaning however to charge all Soldiers with Cowardice that have fought Duels: sometimes Passion and false Pride, but more frequently inconsideration, and ignorance of the Laws of God and Man (as I have before hinted) occasion the base submission and conformity to those false and unreasonable notions of Honour, which almost universally prevail.

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

For the Law will not excuse an unlawful Act by a Soldier, even though he commits it by the express Command of the highest military Authority in the Kingdom: and much less is the Soldier obliged to conform himself implicitly to the mere opinions and false Notions of Honour, which his Superiors may have unfortunately adopted. — Even in publick military Service, or warlike Expeditions by National authority, the Law manifestly requires the Soldier to think for himself; and to consider, before he acts in any war, whether the same be just; for, if it be otherwise, the Common Law of this Kingdom will impute to him the Guilt of Murder.

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

The Soldier, therefore, who has not Courage enough to profess, on all occasions, a strict obedience to the Laws of his Country, according to the dictates of his own reason and Conscience, in preference to every command, and every other opinion whatever, is unworthy of the British military service; being qualified rather to be inlisted with the slavish Troops of 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 another 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 of Manslaughter only,
&c. 1 Hawkins Pleas of the Crown, c. xxxi. § 28. for which he quotes Kelynge 55. 61. and 131: but the pretence for this indulgence is as frivolous as the Doctrine is false, viz. ‘because (says Mr. Hawkins) that by neglecting the opportunity of Killing the other before he was on his guard, and in a condition to defend himself, with like Hazard to both, he shewed that his intent was not so much to kill, as to combat with the other, in compliance with those common notions of Honour, ’ &c.—But is "not the intent to kill," or to do some bodily harm, and certainly, at least, the Risque of Killing, included in the intention "to Combat" with dangerous weapons? And is it Justice? Nay! is it common Sense to excuse a Notorious Crime, by the Plea of an intention to commit another Crime almost as bad?

I have already shewn, by fair comparison with a variety of cases, that the crime of wilfully striking or Combating with weapons in sudden Anger, is a much more unlawful act than many others, wherein even involuntary and accidental Homicide has been solemnly 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 particularly (because deservedly) to the professors of it, if they should still persist in the unreasonable and unjust practice of punishing lesser Crimes with more severity than the crying Sin of voluntary Manslaughter, which (as I have already proved in my preface) is absolutely unpardonable in this World, by the Laws of God!

Soli DEO Gloria & Gratia.

Notes

a
Pleas of the Crown 1678, p. 35. also 1 Hal. P. C. 425.
↵

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

c
1 Hal. P. C. 451.
↵

d
P. C. 1678, p. 36.
↵

e
Ibid. 36.
↵

*
See my Remarks (in p. 58, &c.) on Mr. Hawkins's assertions relating to this point.
↵

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

g
But I have already shewn that no provocation whatever can justify a voluntary or wilfull killing.
↵

h
Lambard's Eirenarcha 255. Sir Edward Coke's 3 Inst. p. 55 and 56.
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i
See the note in page 45.
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k
See judge Foster's comment on Rowly's case, wherein the difference of striking with a dangerous weapon, and with a small stick, or cudgel not likely to destroy, is well expressed, pages 294 and 295.
I have always thought Rowly's case (says he) a very extraordinary one, as it is reported by Coke, from whom Hale cites it. The son fights with another boy and is beaten; he runs home to his father all bloody; the father takes a staff, runs three quarters of a mile, and beats the other boy, who dieth of this beating. This is said to have been ruled manslaughter, because done in sudden heat and passion,
(for which he cites 12 Rep. 87. and 1 Hale 453.) "Surely" (continues judge Foster)

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

↵

l
Which he himself elswhere allows.
Judge Foster in his second discourse of homicide, p. 258. where he treats of involuntary homicide in the commission of an unlawful act, informs us, ‘that if it be done in the prosecution of a felonious intention it will be Murder, but if the intent went no farther than to commit a bare trespass, Manslaughter. Though I confess (says he) lord Coke seemeth to think otherwise.’ That is, Lord Coke did not even make an allowance for "a bare trespass," but seems to have been of opinion, That every case of involuntary homicide is to be treated as Murder, whenever the act which occasions death may be esteemed unlawful. See 3 Inst. p. 56. to which judge Foster refers. But that learned judge could not mean, that he differed in opinion from lord Coke concerning the first case there stated under the head of unlawful, viz. the unlawful shooting at a deer, whereby a boy was killed by the glance of the arrow; because that case must necessarily be esteemed Murder according to judge Foster's own rule above-mentioned; for lord Coke has clearly stated a felonious intention, viz. ‘A. meaning to steal a deer in the park of B. &c.’ It must therefore appear; that he refers only to the 2d case, there mentioned, of a man shooting at a cook or a hen, or any tame fowl of another man's; for a person might wantonly shoot at another man's pigeons, or poultry, without any intention to steal them; which, I conceive, would amount to no more than a bare trespass in judge Foster's sense of the word; because "voluntas et propositum distinguunt ‘maleficia; furtum vero non committitur sine affectu furandi. ’ Fleta lib. i. c. 33. p. 48. Whereas if lord Coke had added, in the supposed case, that there was an intention to steal the tame fowl, judge Foster could not, reasonably, have dissented from his opinion; because the crime must necessarily have been adjudged Murder according to his own rule; for the very same case has been so laid down by lord chief justice Holt in a very clear manner, (see pages 49 and 50 of this tract) in order to explain lord Coke's assertion; tho' Judge Holt himself is, as apparently, mistaken in his Judgment of the other Case wherein the occasion was an intention to steal a Deer, which is, at least, as felonious as the intention of stealing a Hen, that is, if the Deer be tame and inclosed in a Park (as stated by lord Coke) by which the property is rendered apparent: but if the case had been stated that the Deer was in a Forest or open chase, the offence (without the accident) would be only a Trespass, (See Hawkins P. C. Book i. c. xxxiii. § 26); and the idea of this latter position may probably, have occasioned lord Holt's mistake; for this circumstance would have rendered the accidental Killing of the Boy, only Manslaughter, agreeable to his opinion. Compare pages 47 and 50, wherein Lord Holt's opinion of these 2 Cases are mentioned.

↵

m
Lambard's Eirenarcha 255. "The last member (says he) of voluntarie homicide is where one man killeth another in his own defence, &c." and Sir Edward Coke, speaking of self-defence in 3 Inst. p. 55 and 56. says, "this is voluntary, and yet no felony." Sir Matthew Hale is more accurate; for when he speaks of homicde ex necessitate, he informs us
that this necessity makes the homicide not simply voluntary, but mixed, partly voluntary and partly involuntary, and is of two kinds,
&c. 1 vol. 478.

↵

n

And where a man doth any cruel and voluntary act whereby death ensues, it is murder, though done of a sudden.
See a little book dedicated to lord Bathurst in 1724, intitled, The Laws of Liberty and Property, p. 67.

↵

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

↵

p
Here a proper distinction is preserved between sudden anger and enmity.
↵

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

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

The Sense was afterwards, indeed, restrained to hidden manslaughter, whereof the author was not known; but in later times it was, still once more, changed to the sense in which it is at present understood, viz. that of wilful manslaughter, wherein "malice prepensed" is either express, or implied. See Lambard 2 Book c. vii. p. 239 and 240.
In old time (says he) every killing of one man by another, was (of the effect) called murder, because death ensued of it. For (as Postellus noteth) of the Hebrew worde Moth came the Latine Mors, and thereof our elders (the Saxons) called it 〈 in non-Latin alphabet 〉 and 〈 in non-Latin alphabet 〉, as we now found it. Afterward (about the time of M. Bracton) murder was restrained to a secret killing only: and therefore he, in the definition of murder saieth, that it is occulta occisio, &c: with whom Britton agreeth also. But since the statute (14. Edw. III. c. 4. by which the presentment of Englesherie was taken away) Murder is taken in a middle degree, neither so largely as it first was, nor so narrowly as it afterward became to be. For Murder is now construed to be, where one man of malice prepensed killeth another feloniously, that liveth within the realme under the protection of the queene, whether it be openly or privilie, and whether the partie slayne be English or alien.
And then he proceeds to shew that the "malice prepensed" may be either apparent, or implied.
↵

r

As when a man goeth into the wood with his neighbour, to hew wood, and his hand fetcheth a stroke with the ax to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die,
&c. (Deut xix. 5.) or as it may, rather, be rendered, the

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

which corresponds, in some measure, with that less explicit case mentioned in Exodus xxi. 13. where God is said to deliver him into his hand, or rather, to make him meet his hand, as Mr. Haak translated it in 1657; as if a man should accidentally come in the way of a stroke that was aimed at some other object: for
as God is the Lord of life and death, whose Providence is over all his works, the scripture teaches us to ascribe to him all such events, as in common phrase, are called accidental.
(Dr. Dodd) And so Castalio translates the passage.
In eum fortefortuna incurrerit;
which he further explains in a note as follows:
In Hebraeo est, Deus ejus manui injecerit. Sed Deus pro fortuna Hebraicè ideo dicitur, quod quae putant homines casu fieri, utpote quae non praeviderint, ea Dei providentia fiunt, cui nihil fortuitum esse potest. &c.
The learned Selden (who was most deservedly esteemed for his knowledge in the laws both of God and men) supposed also that the text in Exodus xxi. 13. might relate to involuntary homicide; and he accordingly refers to it from his first division of that head,
Prima est quando 〈 in non-Latin alphabet 〉 ex errore & ignorantia simplici atque infortunio, nec tamen sine culpa levi ex negligentia aliqua, qualem prudentiores seu cordatiores fugerent, contracta, omnino interea nolens quis hominem occiderat; juxta illud in lege sacra (Exod. xxi. 13.) Qui non est insidiatus, sed Deus tradidit illum in manum ejus, ponam tibi locum quo confugiat.
(I Tom. Tract. de Jure Naturali & Gentium, cap. ii. de homicidio involuntario, seu quod casu factum ac errore, &c.)
↵

s
See a case supposed by judge Holt in his edition of Kelyng's Reports, 131. Regina versus Mawgridge.
Suppose (says he) upon provoking language given by B. to A. A. gives B. a box on the ear, or a little blow with a stick, which happens to be so unlucky that it kills B. who might have some imposthume in his head, or other ailment, which proves the cause of his death; this blow, though not justifiable by law, but is a wrong, yet it may be but manslaughter, because it doth not appear that he designed such a mischief.

↵

t
See the case of Thompson and Daws, cited by lord chief-justice Holt, in the case Rex versus Plumer, (Kelyng, p. 115.)
Thompson thrust away Daws, and threw him down upon an iron in the chimney, which broke one of his ribs, of which he died; this upon a special verdict was held to be only manslaughter, though the peace was broke, and the person slain came only to keep the peace; and it is the same if he had been constable,
that is, if he did not declare his intention, (as it is afterwards explained) and charge the offending parties, in the king's name, to keep the peace. This case is properly excuseable manslaughter, because it did not appear that the killing was voluntary, though the "thrusting away" was voluntary; and therefore the malice, or intention, was neither express nor implied, as in murder.

↵

u

Regularly, it is necessary that, the person, that kills another in his own defence, fly as far as he may to avoid the violence of the assault before he turn upon his assailant, for tho in cases of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in cases of assaults and affrays between subjects under the same law, the law owns not any such point of honour, because the king and his laws are to be vindices injuriarum, and private persons are not trusted to take capital revenge one of another.
1 Hale, p. 481.

↵

w

If a gaoler be assaulted by his prisoner, or if the sheriff or his minister be assaulted in the execution of his office, he is not bound to give back to the wall, but if he kill the assailant, it is in law adjudged se defendendo, tho he gave not back to the wall. The like of a constable or watchman,
&c. 1 Hale, p. 481. For which he quotes Co. P. C. p. 56. 9 Co. Rep. 66. b. Machally's case.

↵

x

On il purra dire que il le tua en defendaunt nostre pees, &c.
Britton, p. 44. b.

↵

y

For it is the duty of every man to interpose in such cases, for preserving the public peace, and preventing mischief.
Foster, p. 272. for which he refers to Stanf. 13. & 2 Inst. 52. And in the latter place there are several cases mentioned wherein a private person may lawfully interfere by warrant in law without writ.—Lord Hale also allows, that

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

1 Hale, p. 484 & 485.
Ou il purra dire que tout fist il le fait, nequedent ne le fist il mye par felonie purpense, mes par necessite soy defendaunt, ou sa femme, ou sa meason, ou sa meyne, ou son seigniour, ou sa dame de la mort, &c.
Britton, p. 44. b.—And again,
ei qui justè possidet, licitum erit cum armis contra pacem venientem ut expellat, cum armis repellere, ut per arma tuitionis et pacis, quae sunt justitiae, repellat injuriam, et vim injustam, et arma injuriae: sed tamen cum talis discretionis moderamine, quod injuriam non committat, non enim poterit sub tali pretextu hominem interficere, vulnerare, vel male tractare, si alio modo suam tueri possit possessionem. Ei igitur qui vult viribus uti, erit viribus viriliter resistendum cum armis vel sine, juxta illud. Cum fortis armatus, &c.
Bract. l. 4. c. 4. 162. b.
↵

z

A woman in defence of her chastity may lawfully kill a person attempting to commit a rape upon her. The injury intended can never be repaired or forgotten,
&c. Foster 274.

↵

a
Thorp dit que chescun home peut prender larons, et s'ils ne voilent soi render, mes estoient al defens ou fuont; in tiel cas il les peut occire sans blame. Staundford, p. 13. Also,
If a theif assault a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony.
1 Hale, p. 481. for which he quotes Co. P. C. p. 56.—But this rule is subject to just restrictions; for even a thief is not to be killed but through necessity, "Si alio modo suam tueri possit possessionem," &c. See the preceding quotation from Bracton.—Judge Hale, indeed, seems to think that a thief may lawfully be killed, if he cannot otherwise be taken.

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

&c.
‘But if he may be taken without such severity, it is at least manslaughter in him that kills him: therefore the jury is to enquire whether it were done of necessity or not. ’ 1 Hale 489. for which he cites 3 E. 3. Coron 288.22 Assiz. 55. Stamf. P. C. lib. 1. cap. 5. fol. 13, b. But this doctrine requires some further restriction; for the Necessity of taking a thief, or retaking a prisoner, or that of executing a civil writ is not so great as to justify killing when the person endeavours to escape merely by flight; the Necessity can only be founded in his resistance, from which no man is bound to give back: and this will appear by Lord Hale's own words in another place, viz. ‘But if the prisoner makes no resistance, but flies, yet the officer, either for fear that he or some other of his party will rescue the prisoner, strikes the prisoner, whereof he dies, this is murder, for here was no assault first made by the prisoner, and so it cannot be se defendendo in the officer.’—And again, ‘If a man be in danger of arrest by a capias in debt or trespass, and he flies, and the bailiff kills him, it is murder, ’ &c. 1 Hales 481. The same point is still more accurately explained by judge Foster, chap. 2. p. 271. ‘I rather choose to say (says he) it will be murder or manslaughter, as circumstances may vary the case. For if the officer in the heat of the pursuit, and meerly in order to overtake the defendant, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon, not likely to kill, and death should unhappily ensue, I cannot think that this will amount to more than Manslaughter, if in some cases even to that offence. The blood was heated in the pursuit, his prey, a lawful prey, just within his reach, and no signal mischief was intended. But had he made use of a Deadly Weapon, ’ (here is the proper distinction for which I contend) ‘it would have amounted to Murder. The mischievous vindictive spirit, the Malitia, I have already explained, which always must be collected from circumstances, determineth the nature of the offence.’

↵

b
"It must be inevitable necessity." (Pleas of the Crown, 1678, p. 33.) "upon an inevitable cause." 3d Inst. chap. 8. p. 55 and 56. —
but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.
3 Blackstone 4.—

this is not excuseable se defendendo, since there is no absolute necessity,

—&c. 4 Blackstone 191.
Eins toutla matier consist in le inevitable necessite, sans quel le tuer n'est Ascun Voi Excusable.
Staunford, P. C. lib. 1. c. 7.—
He must flie so farre as he may, and till he be letted by some wall, hedge, &c.—that his necessitie of defence may be esteemed altogether great and inevitable,
&c. Lambard's Eiren. c. 7. P. 256. See note in p. 39.
↵

c

For if the act be unlawful, I mean, if it be Malum in se, the case will amount to felony, either murder or manslaughter, as circumstances may vary the nature of it. If it be done in prosecution of a felonious intention, it will be Murder; but if the intent went no further than to commit a bare trespass, manslaughter.
Judge Foster, p. 258. ‘Though I confess (says he) Lord Coke seemeth to think otherwise.’

↵

d
See note in p. 21, and Judge Holt's own opinion on another case quoted in p. 49.
↵

e
Judge Kelynge is mistaken in this point: for the lord Dacres probably would not have been treated with such severity, if the Trespass had been in a Forest or open chace; but it was in a Park belonging to Mr. Pelham in Surry (Crompton 25.) so that the unlawful Hunting was more than a bare trespass. See note, p. 21, 22, and 23. See also 1 Hawkins cap. xxxi. § 46. where another Ground for the imputation of Murder, in that case, seems to be assigned, viz. a Resolution of Divers Persons to resist all opposers in the commission of a breach of the peace; though it be only, as he calls it, a bare breach of the peace.
↵

*
—
Si quis operam rei dederit illicitae, ut cum quis Boves velociter fugaverit, quorum unus obviando hominem cornu occiderit, fugatori imputabitur, quia diligentiam quam potuit non adhibuit.
Fleta, lib. i. c. xxiii. p. 34.

↵

f
Homme sagitta a un ex malicia praecogitata, et luy misse, et tue autre qui estoit decost, et a qui nad malice, unc'il est murder, eo que il ad intent de murder. Crompton's edition of Fitzherbert's Justice of Peace, p. 23.—
As if a man, says judge Holt, out of malice to A. shoots at him to kill him, but misses him and kills B. it is no less a murder than if he had killed the person intended.
Lord chief-justice Holt's Rep. of Rex versus Plummer, in Kelyng's Rep. p. 111. for which he quotes Dyer, p. 128. Cromp. p. 101. Plowden's Com. p. 474. Saunders's case, 9 Rep. 91. Agnes Gore's case.

↵

g

If one executes his revenge upon a sudden provocation in such a cruel manner, with a dangerous weapon, as shews a malicious and deliberate intent to do mischief, and death ensues, it is express malice from the nature of the fact, and murder.
Wood's Inst. 3 Book, p. 608. And this must always be the case when men presume to decide their quarrels with dangerous weapons, be quarrels even so sudden or unpremeditated: for the "malice" is by the weapons, expressed, and the "malice prepensed" is therefore implied.

↵

h
I have already made the necessary exceptions concerning Civil Officers in the legal Execution of justice, &c.
↵

i
Bracton, Lib. 3. c. 4. de Corona, p. 121.
↵

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

REMARKS ON THE Opinions of some of the most celebrated Writers ON CROWN LAW, Respecting the due Distinction between MANSLAUGHTER and MURDER.

REMARKS On the Opinions of some of The most celebrated Writers on CROWN LAW, Respecting the due Distinction between MANSLAUGHTER and MURDER:

Being an attempt to shew

That the plea of sudden Anger cannot remove the imputation and guilt of Murder, when a Mortal Wound is wilfully given with a weapon:

That the indulgence allowed by the Courts to voluntary Manslaughter in Rencounters, and in sudden Affrays and Duels, is indiscriminate, and without foundation in Law:

And that impunity in such cases of voluntary Manslaughter is one of the principal causes of the continuance and present increase of the base and disgraceful practice of Duelling.

To which are added some thoughts on the particular case of the Gentlemen of the Army when involved in such disagreeable private differences.

With a PREFATORY ADDRESS to the Reader, concerning the Depravity and Folly of modern Men of Honour, falsely so called; including a short account of the, Principles and Design of the Work.

BY GRANVILLE SHARP.

LONDON: Printed for B. WHITE, Fleet-street, and R. HORSFIELD, Ludgate-street.

MDCCLXXIII.

—And surely your Blood of your Lives will I, require: at the hand of every beast" (or rather of every" Animal 〈 in non-Latin alphabet 〉) "will I require it; and at the hand of Man, at the hand of every Man's brother will I require the life of Man. Whoso sheddeth Man's blood, by man shall his blood be shed: for in the image of God made he man.

Gen. ix. 5 and 6.

PREFACE.

UNIVERSAL BENEVOLENCE, including gentleness, patience and an unaffected placability in our behaviour, even towards those men who injure and affront us, is manifestly required of all men, who profess the true religion; and yet, unhappily for the Christian world, this most obvious doctrine of the gospel of peace, is too commonly either misunderstood, or else absolutely rejected, though the temporal as well as the eternal happiness of mankind, greatly depends upon a conscientious and proper observation of it. For a man cannot be a true Christian without observing this doctrine; and yet, so generally received is the opposite and contradictory doctrine, concerning the necessity of revenging every personal affront with sword and pistol, for the sake of, what is falsely called, honour, that a true Christian is rarely to be met with! Nay, we are fallen into such gross depravity, that the writer of a late publication on "the principles of penal law," has ventured to assert, (though he is in other respects, as I am informed, a sensible and ingenious young gentleman) that ‘the judge condemns the duellist, whilst he scarcely knows how in his own heart to disapprove his behaviour.’ (p. 224.) So that one would suppose Christianity to be almost entirely extinct amongst us, if its principles are so little regarded, even in our courts of justice, where they ought to be held most sacred. My readers, perhaps, will start at such an idea in these enlightened days of reformation; but I will even go further, and venture to assert, that the Europeans not only cease to be Christians, but will no longer deserve the name even of men, if they persist in such a brutal and diabolical contradiction to the most indispensible principles of the laws of God and nature: for nothing deserves to be esteemed human that is unreasonable; and the depravity, of which I complain, is not only incompatible with the laws of God, but absolutely inconsistent with common sense.

Let us view the character of the modern man of honour (falsely so called) who thinks it inconsistent with his reputation, to pass over a personal affront with that Christian submission, which the gospel requires of all men, without exception.

Such an one perhaps will alledge, that his honour obliges him, whenever he receives an affront, to call out his adversary, or to accept his challenge, lest his courage should be questioned; and therefore in such case, the one must give, and the other take, what is commonly called gentleman-like Satisfaction. But let us examine this perversion of words. The Satisfaction to both parties is the risk both of body and soul, in the perpetration of a most dishonourable, base, and cowardly felony; which cannot, therefore, be gentleman-like, whatever the satisfaction of it may be. It is Felony; because no man can give, or accept, a challenge, without being guilty of Wilful Murder, if he kills his antagonist; which I hope is proved in the course of the following tract.

2dly. It is dishonourable, because it is an open violation of the indispensible principles enjoined in the two great commandments of the supreme Law, viz. the love of God, and the love of our neighbour: for, in this respect, the offender is upon the same footing as culprits for burglary, theft, or any other felony; the ‘ not having the fear of God before his eyes, ’ being equally applicable to all of them; and the common law of England esteems no man qualified to be a member of society, who wants this principle. The act is therefore highly dishonourable; and to use a still more humiliating term of the same import, I must observe, Thirdly, that it is also base; because it affords the most apparent proof of a little Soul [a]; being, in reality, a brutal revenge; brutal because unreasonable; (for how can Honour be vindicated or retrieved by the commission of a notorious Felony?) and what is unreasonable, must be disgraceful to human nature, and therefore is truly base. And lastly, it is cowardly, (that is, when it cannot be imputed to Ignorance or Folly) because a man submits to it contrary to the light of his own reason, for fear his courage should be called in question; and yet he has not courage enough to withstand the barbarous prejudices of a depraved world, lest he should suffer some temporal inconveniencies: and the slavish Fear which he entertains of these (for cowards always dread the present evil most) deprives him of that reasonable fear, which he ought to entertain of God's judgment, because he thinks it at a distance, though, he knows, it must inevitably follow!—I condemn no man in particular; God forbid! I speak of the question only in general: inveterate prejudices and customs may perhaps afford some excuse in particular cases to some Individuals, who have ignorantly yielded thereto: but as ignorance is disgraceful to humanity, I sincerely wish that all persons may enter into as careful an examination of this question as I have done, by which they will not only be enabled to avoid a repetition of their crime, but also be prevented from attempting to defend what is past, and thereby afford the best proof of an ingenuous and honourable heart.

This abominable practice of duelling, which of late years has increased to a most alarming degree, may chiefly be attributed (I humbly conceive) to the improper indulgence which our English courts of justice, for about two centuries back, have shewn to persons convicted of killing in sudden affrays and rencounters, through a false idea of mercy due to human frailty, in cases of sudden provocation without preserving the proper distinction of those cases wherein homicide, in sudden anger, is really excusable by the laws of God, and of this kingdom; and the improper precedents, which have arisen from this indiscriminate and corrupt practice, have so misled the more modern writers on Crown Law, that even the greatest and most respectable of them have been unhappily induced to admit doctrines on the subject of Manslaughter, which are absolutely incompatible with the proper and necessary distinctions to be observed between wilful murder and manslaughter, which they themselves have laid down in other parts of their works: and it is on the authority of these just distinctions, with the necessary consequences arising therefrom, (and not on my own presumption,) that this censure is founded; which the following tract I hope will clearly demonstrate.

But as my readers might seem to give too much credit to an inconsiderable person like myself, were they, (without a previous intimation of what is proposed,) to risque any loss of time in the perusal of the arguments and proofs at large, on which my vindication for this attempt depends, I think it my duty to state the subject and intention of the tract, as briefly as I can, in this prefatory address, that my readers may, thereby, be enabled to judge, without much loss of time, whether the matter is of sufficient consequence to merit any more of their attention.

I have already mentioned my opinion, that ‘No man can give or accept a challenge to fight with weapons, on any private difference whatever, without being guilty of wilful murder if he kills his antagonist.’ And the intention of the following tract is to shew, that the writers on Crown Law have no just warrant for admitting the contrary doctrines, which they have laid down concerning sudden affrays and rencountres, viz. that the voluntary killing of a man on a sudden provocation is only to be esteemed Manslaughter, and, as such, is intitled to the benefit of clergy. And they have also supposed that an assault is a sufficient provocation to justify a voluntary manslaughter.

Now, certain it is, that some allowance ought to be made for heat of blood upon a sudden provocation, in consideration of the extreme frailty of human nature, provided that there are no circumstances of malice in the case. As if (for instance) a man, in sudden anger, should strike another, merely with his fist, or a small cane, or stick, meaning only to correct, and should accidentally kill; this would be, properly, manslaughter; which, tho' it is deemed Felony (as the act of striking, or beating another person is, in itself, unlawful,) is nevertheless pardonable both by the laws of God and man. But when two persons fight with dangerous weapons, an intention of killing is expressed by the weapons; and such intention renders the manslaughter voluntary, which is the same thing as wilful; and consequently the "malice prepensed" (which excludes the benefit of clergy) is necessarily implied, though the sudden anger be but a moment before the fatal stroke; for "malice prepensed" is thus defined by Sir Edward Coke, ‘That is (says he) voluntary, and of set purpose, though done upon a sudden occasion: for if it be voluntary the law implieth malice. ’ 3 Inst. c. xiii. p. 62.

And yet the same great lawyer in p. 55, speaks of voluntary manslaughter upon some sudden falling out, as distinct from murder; which cannot, in reason, be true; for if the killing be voluntary, the evil and malicious intention is necessarily included in the act, even though the fatal blow be given merely with the hand, or a small cane or stick, which I have before mentioned as pardonable cases, when the killing is not intended; for a voluntary striking, without intention to kill, is indeed pardonable, though death ensues; but a voluntary killing is so far from being so, that the law, according to lord Coke's own rule, implieth malice; and, consequently, the same must, necessarily, be esteemed Murder, and not meerly Manslaughter; because the necessary marks, whereby manslaughter ought to be distinguished, are absolutely wanting therein: for manslaughter must be "without malice express or implied" (1 Hale 466. 4 Blackstone 191) "Murder being aggravated" (says lord Hale) ‘with malice presumed or implied, but manslaughter not.’ And yet all these great and excellent lawyers have unhappily fallen into the same error of treating the voluntary branch of killing, as bare Homicide, or manslaughter; whereas, all the oldest writers agree, that killing is pardonable only in cases of inevitable necessity (Bracton, lib. iii. c. 4. p. 120. b. Fleta lib. i. c. 23.) And the learned judge Staunford says ‘That the whole matter consists in the inevitable necessity; without which the killing is by no means excusable, (n'est ascun voi excusable.’ P. C. lib. i. c. 7.)

Now, the absurd and depraved notions of honour, and gentleman-like satisfaction, of which I complain, could not possibly exist, if every conqueror in a duel, who kills his antagonist, was sure of being hanged up as an ignominious felon, for his own gentleman-like satisfaction; and therefore I apprehend, that the diabolical practice of settling private differences with sword and pistol is chiefly to be attributed to the want of punishment due to voluntary manslaughter, through the mistaken concessions of the Writers on Crown Law, and the false mercy of Juries, in consideration of sudden anger; because impunity fosters vice and depravity; but more especially in cases of wilful manslaughter, impunity ought to be esteemed the bane of society; as the guilt of blood is thereby thrown upon a whole nation or country; for it is a supreme law, that ‘whoso sheddeth man's blood, by man shall his blood be shed.’ Gen. ix. 6. And I hope I have proved by incontrovertable extracts from the laws of God, that the said judgment is inevitably incurred by all voluntary killing, except in the legal prosecution of justice, and in the necessary defence of our lives and properties; so that no Man on earth (and much less in England[b] has any legal or just right to pardon or remit the punishment due to murder, or voluntary manslaughter (which are the same crime, and equally unpardonable in this world); for such an indulgence is not only a manifest sin against Almighty God, but also against the community at large, or country; ‘for Blood it defileth the land; and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it, ’ Numb. xxxv. 33. This is not a ceremonial law, but a law of morality, founded in divine justice, which must, therefore, be ever binding.

I may probably be charged with an unpardonable temerity for presuming to censure the writings of some of the greatest and most learned men that this nation, perhaps, ever produced; and I am thoroughly sensible of the risk and ill consequences to myself, in case I am mistaken; but a sincere persuasion of being in the right (arising from a laborious research and careful examination of the most celebrated and approved writers on Crown Law) obliges me to prefer, what I conceive to be truth, before the authority of the greatest names.

And even, though I should not have succeeded according to my own conceptions of the subject, yet, I trust, that my impartial readers will pardon any involuntary errors, that they find in the performance, especially if they see no cause to suspect any want of uprightness in the intention of it: and, at all events, I hope, that the attempt may, at least, be considered as a proof, that I am not afraid of difficulties and labour, nor of the risk of personal inconveniences, when I undertake any point with a view of serving my country, or mankind in general.

OLD JEWRY, 3d Sept. 1773.
GRANVILLE SHARP.

Notes

a

Nec Christiani veteres hoc tantum viderunt, sed et philosophi, qui dixerunt pusilli esse animi contumeliam ferre non posse, ut alibi ostendimus,
says the learned Grotius, in his 2d book De jure Belli et Pacis, p. 172.

↵

b
For in England, not only the laws of God, but the laws of the land forbid the pardoning of wilful manslaughter, so that even the king himself is absolutely restrained from it. See an act of the 2 Edw. III. whereby it is ordained, that a charter of pardon
shall not be granted, but only where the king may do it by his oath; that is to say, where a man slayeth another in his own defence, or by misfortune.

↵

A TABLE of the Authorities and Cases quoted, or examined in this Book.

TEXTS.

- Genesis ix. 6 preface xvi.

- Exodus xxi. 13 pages 31, 32

- Numbers xxxv. 33. pref. xvii.

- — Do. 20.22 & 25 p. 27

- — Do. 21 p. 28

- — Do. 11, 12.16 & 24 p. 30.

- — Do. 16. to 19 p. 33 & 38

- Deuteronomy xix. 4 & 5 p. 31.

AUTHORS and CASES.

- Sir James Astry, p. 51

- Army,—Case of the Gentlemen in the Army considered, p. 64 to 71

- Henry de Bracton, pref. xv. also p. 6, 7.29. 41, 42.52 & 69

- John Britton (Bishop of Hereford) p. 29.40 & 41

- Bythner's Lyra Prophetica, p. 27

- Sir William Blackstone, pref. xiv. also p. 20, 21.36, 37.45.54 & 55

- Sir Edward Coke, pref. xiii. also p. 1.17.19. 20, 21, 22, 23.36. 39, 40, 41.45.47 & 50.

- Judge Croke, p. 19

- Mr. Richard Crompton (his Edition of Judge Fitzherbert's Justice de Peace) p. 1.49.52 & 54

- Sebastian Castalio, p. 31

- Sir James Dyer, p. 54

- Rev. Dr. Dodd, p. 31.38

- Lord Dacres Case, p. 49

- Fleta, pref. xv. also pages 7.22 & 53

- Sir Anthony Fitzherbert, p. 51

- Judge Foster, p. 3, 4, 5.7, 8.10, 11, 12, 13, 14.18.21.29.40, 41.43.47 and 63

- Grotius, pref. vii. also p. 37

- Andrew Horn (his Mirroir de Justice) p. 24

- Sir Matthew Hale, pref. xiv. also p. 1.9.16. 19.24.39, 40, 41, 42, 43 & 57

- Lord Chief Justice Holt, p. 22.34.47.50. 54 & 72

- William Hawkins, Esq p. 5.23.49.52. 58, 59, 60, 61 & 72

- Theodore Haak, p. 31

- Judge Jenkins, p. 25

- Judge Kelyng, p. 49 & 72

- Mr. William Lambard, p. 1.17.23, 24.29. 45 & 51

- Laws of Liberty and Property, printed in 1724, 12mo. p. 25

- Mirroir de Justice. (See Horn)

- The Principles of Penal Law, pref. iv.

- Pleas of the Crown, printed in 1678, 8vo. p. 1, 2 & 45

- Sir Robert Raymond, p. 20

- Rowley's Case, p. 18

- Sir William Staunforde, pref. xv. also p. 7. 40, 41.45 & 52

- John Selden, Esq p. 32

- Stedman's Case, p. 11

- Statutes 2 Edw. III. c. 2. pref. xvi. also p. 44 & 46

- — 14 Edw. III. c. 4. p. 29

- — 23 Hen. VIII. c. 1. p. 44

- — 1 Edw. VI. c. 12. p. 44

- — 1 Jac. l. c. 8. p. 36 and 44

- Thomson and Daws (Case) p. 34

- Thomas Wood, L. L. D. p. 56

- Rev. Dr. Wells, p. 38

ERRATA:

- P. 22. Note, line 19. for p. 49 & 50 read p. 50.

- P. 47. Note, line last, for p. 49 read p. 50.

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Remarks on the opinions of some of the most celebrated writers on Crown Law: respecting the due distinction between manslaughter and murder: ... With a prefatory address to the reader, ... By Granville Sharp.

Sharp, Granville, 1735-1813.

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