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leanies in his fihe de cout the presid the

eternity if I do not fetch something, and run him through the body.” The deceased and the rest of the company continued in the room where the 'affray happened ; and in about half an hour the prisoner returned, having put off a thin slight coat he had on when he quitted the room, and put on one of a coarse thick cloth. The door of the room being open into the street, the prisoner stood leaning against the door-post, his left hand in his bosom, and a cudges in his right, locking in upon the company, but not speaking a word. The deceased seeing him in that posture, invited him into the company : but the prisoner answered, “I will not come in.” “Why will you not?” said the deceased. The prisoner replied, “ Perhaps you will fall on me and beat me.” The deceased assured him he would not; and added, “besides, you think yourself as good a man as me at cudgels, perhaps you will play at cudgels with me.” The prisoner answered, “ I am not afraid to do so if you will keep off your fists." Upon these words the deceased got up and went towards the prisoner, who dropped the cudgel as the deceased was coming up to him. The deceased took up the cudgel, and with it gave the prisoner two blows on the shoulder. The prisoner immediately put his right hand into his bosom, and drew out the blade of a tuck sword, crying, “ Damn you stand off, or I'll stab you ;” and immediately, without giving the deceased time to step back, made a pass at him with the sword, but missed him. The deceased thereupon gave back a little; and the prisoner shortening the sword in his hand, leaped forward toward the deceased and stabbed him to the heart, and he instantly died,

The Judges met in Michaelmas vacation at Lord Mansfield's chambers, in conference upon this case ; and unanimously agreed, that there were in this case so many circumstances of deliberate malice and deep revenge on the defendant's part, that his offence çould not be less than wilful murder. He vowed he would fetch something to stick him, to run him through the body. Whom did he mean by him? Every circumstance in the case shewed that he meant his brother. He returned to the company, provided, to appearance, with an ordinary cudgel, as if he intended to try skill and manhood a second time with that weapon : but the deadly weapon was all the while carefully concealed under his coat; which most probably he had changed for the purpose of concealing the weapon. He stood at the door, refusing to come nearer, but artfully drew on the discourse of the past quarrel; and as soon as he saw his brother disposed to engage a second time at cudgels, he dropped his cudgel and betook him to the deadly weapon, which till that moment he had concealed. He did indeed bid his brother stand off: but he gave him no opportunity of doing so before the first pass was made. His brother retreated before the second: but he advanced as fast, and took the revenge he had vowed. The circumstance of the blows before the sword was produced, which probably occasioned the doubt, did not alter the case, nor did the precedent quarrel; because, all circumstances considered, he appeared to have returned with a deliberate resolution to take a deadly revenge for what had passed ; and the blows were plainly a provocation sought on his part, that he might exe

will not

cute the wicked purpose of his heart with some colour of ex

cuse. (.x) Provocation

In the foregoing case it was considered that the blows with the sought by the cudgel were a provocation sought by the prisoner, to give occasion party killing and pretence for the dreadful vengeance which he meditated : and

it should be observed, that where the provocation is sought by the party killing, and induced by his own act, in order to afford him à pretence for wreaking his malice, it will in no case be of any avail. (y) Thus where A. and B. having fallen out, A. said he would not strike, but would give B. a pot of ale to strike bim; upon which B. did strike, and A. killed him, it was held to be murder.(z) So where A. and B. were at some difference; A. bade B. take a pin out of his (A.’s) sleeve, intending to take the occasion to strike or wound B.: B. accordingly took out the pin, and A. struck him and killed him; and this was ruled murder; first, because it was no provocation when B. did it by the consent of A.; and, secondly, because it appeared to be a malicious and deliberate

artifice, by which to take occasion to kill B.(a) Provocation . It must be further observed also, that in every case of homicide

not avail, upon provocation, how great soever that provocation may have if there is cooling time. been, if there be sufficient time for passion to subside and reason

to interpose, such homicide will be murder.(b) Therefore, in the
case of the most grievous provocation to which a man can be ex-
posed, that of finding another in the act of adultery with his wife,
though it would be but manslaughter if he should kill the adul-
terer in the first transport of passion, yet if he kill him delibe-
rately, and upon revenge after the fact and sufficient cooling time,
it would undoubtedly be murder.(c) “For let it be observed,
" that in all possible cases, deliberate homicide upon a principle of
“ revenge is murder. No man under the protection of the law is
“ to be the avenger of his own wrongs. If they are of a nature
“ for which the laws of society will give him an adequate remedy,
“ thither he ought to resort: but be they of what nature soever,
“ he ought to bear his lot with patience, and remember that ven-
“ geance belongeth only to the Most High.”(d) With respect to
the interval of time which shall be allowed for passion to subside,
it has been observed that it is much more easy to lay down rules
for determining what cases are without the limits, than how far
exactly those limits extend.(e) In cases of this kind the imme-
diate object of inquiry is, whether the suspension of reason arising
from sudden passion continued from the time of the provocation
received to the very instant of the mortal stroke given; for if from
any circumstances whatever it appear that the party reflected, de-
liberated, or cooled any time before the fatal stroke given ; or
if in legal presumption there was time or opportunity for cooling;
the killing will amount to murder; as being attributable to malice
and revenge, rather than to human frailty. (f) And, from the

(2) Mason's case, Fost. 132. 1 East.
P.C. c. 5. s. 23. p. 239.

(y) i East. P. C. c. 5. S. 23. p. 239.
(2) I Hawk. P. C. c. 31. s. 24.

(a) 1 Hale 456.
· (6) Fost. 296.

(c) Fost. 296. 1 East. P. C. c. 5. S. 20. p. 234. and s. 30. p. 251.

(d) Fost. 296. Rom. chap. xii. v. 19. (e) i East. P. C. c. 5. s. 30. p. 251.

(f) Oneby's case, 2 Lord Raym. 1496.

cases which have been stated in the former part of this section, it appears that malice will be presumed, even though the act be perpetrated recently after the provocation received, if the instrument or manner of retaliation be greatly inadequate to the offence given, and cruel and dangerous in its nature: for the law supposes that a party capable of acting in so outrageous a manner upon a slight provocation must have entertained a general, if not a particular malice, and have previously determined to inflict such vengeance upon any pretence that offered. (g)

SECT. II.

Cases of Mutual Combat.

WHERE words of reproach or other sudden provocations have led to blows and mutual combat, and death has ensued, the important enquiry will be, whether the occasion was altogether sudden, and not the result of pre-conceived anger or malice : for in no case will the killing, though in mutual combat, admit of alleviation, if the fighting were upon malice. (h)

Thus a party killing another in a deliberate duel is guilty of Deliberate murder: for wherever two persons in cold blood meet and fight on duel. a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased; or that he had often declined to meet him, and was prevailed upon to do it by his importunity; or that it was his intent only to vindicate his reputation ;(i) or that he meant not to kill, but only to disarm his adversary.(k) He has deliberately engaged in an act, highly unlawful, in defiance of the laws, and he must at his peril abide the consequences: and upon this principle, wherever two persons quarrel over night and appoint to fight the next day, or quarrel in the morning and agree to fight in the afternoon, or at any time afterwards so considerable that in common intendment it must be peesumed that the blood was cooled, the person killing will be guilty of murder.(1) And in a case where, upon a quarrel happening at a tavern, Lord Morley objected to fighting at that time, on account of the disadvantage he should have by reason of the height of his shoes, and presently afterwards went into a field and fought; the cir. cumstance was relied on as shewing that he did not fight in the first passion.(m) So wherever there is an act of deliberation, and a meeting by compact, such mutual combat will not excuse the

(g) 1 East. P.C. c. 5. s. 30. p. 252. (1) 1 Hawk. P. C. c. 31. s. 22. 1 Hale (h) 1 East. P. C. c. 5. 8. 24. p. 241. 453.

(i) As where he had been threat (m) Bromwick's case, i Lev. 180.' ened that he should be posted for a Sid. 277. 7 St. Tr. 42. Bromwick coward. I Hale 452. and see Rex v. was indicted for aiding and abetting Rice, 3 East. R.581.

Lord Morley in the murder of Hast(k) i Hawk. P.C. c. 31. s. 21.

ings.

party killing from the guilt of murder; as where B. challenged A., and A. refused to meet him, but in order to evade the law, told B. that he should go the next day to a certain town about his business, and accordingly B. met him the next day in the road to the same town and assaulted him, whereupon they fought, and A. killed B., it is said that A. seems guilty of murder: but the same conclusion would not follow, if it should appear by the whole circumstances that he gave B. such information accidentally, and not with a design to give him an opportunity of fighting, (n) Upon the same principle, if A. and B. meet deliberately to fight, and A. strike B., and pursue B. so closely that B., in safeguard of his own life, kills A., this is murder in B.; because their meeting was a compact, and an act of deliberation, in pursuance of which all that follows is presumed to be done.(0)

And the law so far abhors all duelling in cold blood, that not only the principal who actually kills the other, but also his second, is guilty of murder;(p) and it has been held that the second also of the person killed is equally guilty by reason of the countenance given to the principal, and of the compact : but this has been considered as a severe construction by Lord Hale, who thinks that

the law in that case was too far strained.(9) Combat upon Where the combat is not an act of deliberation, but the immesudden quar

diate consequence of sudden quarrel, it does not of course fall rels.

within the foregoing doctrine : yet in cases of this kind the law

may come to the conclusion of malice, if the party killing began Undue advan- the attack with circumstances ' of undue advantage.(r) For in tage.

order to save the party making the first assault, upon an insufficient legal provocation, from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be put on an equal footing in point of defence; at least at the onset: and

(n) i Hawk. P. C. c. 31. s. 25. declining to fight, proceeds thus:

(0) i Hale 452. 480. who says, “Thus “ Yet still it may be doubtful whe“ is Mr. Dalton, cap. 93. p. 241. (new “ ther, admitting the full force of “ edit, c. 145. p. 471.) to be under- “ this reasoning, the offence can be “ stood.” But a qu. is added in 1“ less than manslaughter, or whether Hale 452. whether, if B. had really “in such case the party can altoand truly declined the fight, ran away “ gether excuse himself upon the foot as far as he could, and offered to yield, " of necessity in self-defence, because and yet A. refusing to decline it had “ the necessity which was induced attempted his death, and B. after this “ from his own faulty and illegal act, had killed A. in his own defence, it " namely, the agreement to fight, was would excuse him from the guilt of “in the first instance deliberately murder; admitting clearly that if the “ foreseen and resolved upon, in derunning away were only a pretence to "fiance of the law." i East. P. C. save his own life, but was really de- c. 5. s. 54. p. 285. signed to draw out A. to kill him, it (p) I Hale 442. 452. 1 Hawk. P. C. would be murder. This quære of Lord c. 31. s. 31. Hale's is discussed in 1 East. P.C. c. 5. (a) i Hale 442. where he says, that S. 54. p. 233. et sequ. and it is ob- the book of 22 E. 3. Coron. 262. was served that Mr. J. Blackstone (4 Blac. relied upon : but, as he thinks, the law Com. 185.) expressly puts the same was too far strained in that case; and case of a duel as Lord Hale, but with- in page 452, he says, “ some have out subjoining the same doubt; and “thought it to be murder also in the that it was considered as settled law " second of the party killed, because by the chief justice, in Oneby's case“ done by compact and agreement. (Lord Raym. 1489). Mr. East, after " 22 E. 3. 262. Sed qu. de hoc." reasoning in favour of the extenua (r) Fost. 295. tion of the crime of the duellist so

ing

this more particularly where the attack is made with deadly or dangerous weapons.(s)

Thus if B. draw his sword and make a pass at A., the sword of A. being then undrawn, and thereupon A. draw his sword, and a combat ensue, in which A. is killed, this will be murder; for B., by making the pass, while his adversary's sword was undrawn, shews that he sought his blood; and A.'s endeavour to defend himself, which he had a right to do, will not excuse B. (t)

In Mawgridge's case, words of anger happening, Mawgridge Mawgridge's threw a bottle with great force at the head of Mr. Cope, and im- case. mediately drew his sword. Mr. Cope returned a bottle at the head of Mawgridge, and wounded him : whereupon Mawgridge stabbed Mr. Cope. This was ruled to be murder; for Mawgridge, in throwing the bottle, shewed an intention to do some great mischief: and his drawing immediately shewed that he intended to follow his blow; and it was lawful for Mr. Cope, being so assaulted, to return the bottle. (u)

Even if the parties are upon an equal footing when the combat Violent conbegins, malice may be implied from the violent conduct which the duct of the party killing pursued in the first instance : more especially where there is time for cooling, and such expressions are used as manifest deliberation; as in the following case of Major Oneby :

Mujor Oneby was indicted for the murder of Mr. Gower; and Oaeby's case. a special verdict was found, containing the following statement. The prisoner being in company with the deceased and three other persons at a tavern, in a friendly manner, after some time, began playing at hazard; when Rich, one of the company, asked if any one would set him three half crowns : whereupon the deceased, in a jocular manner, laid down three halfpence, telling Rich he had set him three pieces; and the prisoner at the same time set Rich three half crowns, and lost them to him. Immediately after which, in an angry manner, he turned about to the deceased, and said, it was an impertinent thing to set halfpence, and that he was an impertinent puppy for so doing; to which the deceased answered, whoever called him so was a rascal. Thereupon the prisoner took up a bottle, and with great force threw it at the deceased's head; but did not hit him, the bottle only brushing some of the powder out of his hair. The deceased in return immediately tossed a candlestick or bottle at the prisoner, which missed him; upon which they both rose up to fetch their swords, which then hung up in the room, and the deceased drew his sword; but the prisoner was prevented from drawing his by the company. The deceased thereupon threw away his sword; and the company interposing, they sat down again for the space of an hour. At the expiration of that time the deceased said to the prisoner, “We have had hot “words, but you were the aggressor; but I think we may pass it “ over:” and at the same time offered his hand to the prisoner, who made answer, “No, damn you; I will have your blood.”

(8) 1 East. P. C. c. 5. s. 25. p. 242. is said that the judgment in this case

(t) Fost. 295. I Hawk. P. c. c. 31. was holden to be good law by all the S. 27.

Judges of England, at a conference in (u) Rex v. Mawgridge, Kel. 128, the case of Major Oneby, 2 Lord Raym. 129. cited in Fost. 295, 296. where it 1485. 2 Stra, 771.

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