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although it cannot be proved that the same was done of malice “aforethought; yet the party so offending, and being thereof “convicted by verdict, confession, or otherwise, according to law, “ shall be excluded from the benefit of clergy, and suffer death, 56

as in case of wilful murder.” There is a proviso that the act shall not extend “to cases of self-defence, misfortune, or in

any other manner than as aforesaid ; nor to any person, who “shall commit manslaughter, in preserving the peace, or chastising

or correcting his child or servant."

This statute was made on account of the frequent quarrels, and Lenient constabbings with short daggers, between the Scotch and the English, the statute. at the accession of James the First; and as it was intended to meet a temporary evil, it would perhaps have been better if it had expired with the mischief it was meant to remedy.(o) It has been considered as a rigorous statute, of doubtful expediency; (p) and, accordingly, construed, by the benignity of the law, so favourably in behalf of the subject, and so strictly when against him, that the offence of stabbing is left by this statute almost upon the same footing as it stood at common law. (9) Indeed, it was agreed by the Judges, in Lord Morley's case, that the statute was only declaratory of the common law; (r) and it was the opinion of Mr. Justice Foster, that whenever the defendant is indicted at coinmon law, and also upon the statute, (s) the most important question will be, whether the fact, upon the evidence, is or is not murder at common law. (t) And Glyn, C. J. said, upon an indictment on this statute, that, in order to bring a case within the meaning of the act, there ought to be malice. (u)

All circumstances which, at common law, will serve to justify, excuse, or alleviate, in a charge of murder, have always had their due weight in prosecutions grounded on this statute; and, in the construction of it, one general rule may, it is conceived, be safely laid down; namely, that in all cases of doubt and difficulty the benig. nity of the common law ought to turn the scale.(w) Thus, though the words of the statute are very general; yet many cases coming

(0) 4 Blac. Com. 193. I Ld. Raym. fence of stabbing, where death does 140. It was continued by 18 Car. 1. pot ensue, provision has been made c. 4. till some other act shall be made, by the 43 G. 3. c. 58., which will be touching the continuance or disconti- stated in a subsequent Chapter. nuance thereof.

(r) Lord Morley's case, Kel. 55. 1 (p) Fost. 299, 300., where Mr. Jus Hale 456. Post. 298. tice Foster says, Let me add, that (8)“ A prisoner, whose case may

be if the outrages at which the statute brought within the letter of the act,

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was levelled had been prosecuted “ commonly is arraigned upon two “ with due vigour and proper severity “ indictments, one at common law

upon the foot of common law, I “ for murder, the other upon the sta“ doubt not an end would soon have " tute; and if it cometh out in evi“ been put to them, without incum- “ dence, that the fact was either justi“ bering our books with a special act “ fiable, or amounted barely to man“ for that purpose, and a variety of “ slaughter at common law, it hath “ questions touching the true extent “ been rarely known, that such per“ of it. This observation will hold son hath been convicted of man“ with regard to many of our penal slaughter upon the statute.” Fost. “ statutes, made upon special and 299. “ pressing occasions, and savouring (1) Post. 301, 302. rankly of the times.”

(u) Buckner's case, Sty. 467. (9) 4 Blac. Com. 193. As to the of. (w) Fost. 298, 302.

.

within the letter of the act, and not covered by any of the exceptions in the proviso, have been very rightly adjudged not to be within its meaning. (x) By this construction, the case of an adulterer, stabbed by the husband in the act of adultery, has been held not to be within the act, but manslaughter at common law.(y) So where a man assaulted by thieves in his house, stabs one of them, the thieves having no weapon drawn, nor having struck him, it is not within the statute, but justifiable homicide ; (z) and where, upon an outcry of thieves in the night time, a person, who was concealed in a closet, but no thief, was in the hurry and surprise stabbed in the dark, it was considered as an innocent mistake, and ruled to be homicide by misadventure. (a) And where an officer pushed violently and abruptly into a gentleman's chamber early in the morning, in order to arrest him, not telling his business, nor using words of arrest; and the gentleman, not knowing that he was an officer, under the first surprise, took down a sword that hung in the chamber, and stabbed him; it was ruled manslaughter at common law, though the defendant was indicted on the statute; for the defendant, not knowing the officer's business, might, from his behaviour, have reasonably concluded, that he came to rob or

murder him. (6) No accesso- There are no accessories within this statute: (c) and it has been ries, nor aiders holden, that persons present, aiding and abetting, though, at com

mon law, principals in the manslaughter, are not within the statute; and therefore, where several persons were indicted upon it, and it did not appear which of them made the thrust at the party killed, they being all present, it was held that they could only be convicted

of manslaughter at common law, and must have their clergy.(d) Particular

It

may be proper to mention some of the questions, which have points upon been raised and decided upon the construction of this statute ; the construction of the

more particularly as to the meaning of the words “stab or thrust;' statute. as to the person that hath not then any weapon drawn;" as to

what is considered as "a weapon drawn;" and as to the meaning of the words that hath not then first stricken the party, which

« shall so stab or thrust.” Meaning of Under the words “stab or thrust,” shooting with any sort of the words

fire arms, and thrusting with a staff, or any other blunt weapon, thrwt."

have been brought within the act: and the case of shooting with

will

govern the cases of sending an arrow out of a bow, or a stone from a sling, or using any device of that kind, holden in the hand of the party at the instant of discharging it. (e) The

(*) Fost. 298. 4 Blac. Com. 193. (c) 1 East. P. C. c. 5. s. 29. p. 247. (y) i Hale 486. 1 Ventr. 158.

(d) I Hale 468. 2 Hale 344. Fost. T.,Raym. 212. Fost. 298.

301. Alleyn 44. 1 Hawk. P.C. c. 30. (z) Sty. 469. Fost. 298.

$. 7. Sty. 86. 1 East. P. C. c. 5. s. 29. (a) i Hale 474. Cro. Car, 538. Fost. p. 247.

(e) i Hale 469. Fost. 300. Lord (6) 1 Hale 470 ; and see Kel. 136. Hale, after saying that if the stabbing Post. 298, 299. 1 East. P. C. c. 5. s. or thrusting were with a sword, or with 29. p. 251, where it is said, that per- a pikestaff, it is within the statute, haps there were circumstances in the says,-So it seems, if it be a shot with case not mentioned, wbich might rea- a pistol, or a blow with a sword or sonably induce such a suspicion, and staff. "Yet, quære; for Jones, Jusraise such a fear as might fall in con- tice, denied it.stantem virum.

stab or

fire arms

Sir

299.

case of thrusting with a blunt weapon is supposed to have been in the contemplation of the Legislature, as otherwise it would not be easy to account for the exception with regard to the correction of children or servants: (f) but it is elsewhere said, that the killing a person with a hammer, or such like instrument, which cannot properly come under the words "thrust,” or “stab,” is not a killing within the statute ; (8) and certainly throwing at a distance, and wounding the party, whereby death ensues, the weapon, be it what it may, being delivered out of the hand at the time the stroke is given, is not considered with strict propriety to come within the terms “stab” or “thrust.” () It may be added, that the stab or thrust ought to be made with a weapon or instrument from which danger was likely to ensue. (i)

As to the "S person or persons, that hath not then any weapon Who shall be “ drawn,” it has been properly holden, that these words 'extend to said to be a any other person, acting in concert upon the same design with the hath not then party killed : (k) and if two assault a third person, and one of them any weapon strike him, and he kill the other who did not strike, he is not

- drawn." within the statute; for it is the assault and striking of both. (1) The Judges were once divided upon the construction of the word then--the party killed "not having then any weapon drawn,”and the point in debate was, whether the word then was to be confined to the instant the stab was given, or whether it related to the whole time of the combat.(m) The circumstances were these. Upon mutual words of reproach between Hunter and De Loy, the former struck the latter with his hand; whereupon De Loy attempted to draw his dagger at Hunter : but, being prevented by the company present, he threw a pot at him, and missed him; on which Hunter gave De Loy the mortal wound with his sword. Those who were for the conviction admitted the pot to be a weapon drawn, as long as it was in De Loy's hand; but thought that after he had thrown it out of his hand, without hurt done, and was afterwards stabbed, the case fell within the statute. On the other hand it was maintained, that the word then referred to the time of the fighting or controversy, and not to the immediate instant of the wounding : and they thought it unreasonable that one having a weapon drawn at one time during the controversy, and having done all the mischief he could with it, should be within the protection of the statute, which was made to prevent the sudden killing of men without provocation or defence; and they compared it to the case of two who are fighting, and one lets fall his sword, or it is beat out of his hand, and he is then killed; which cases, they conceived, could not be brought within the statute. (n) It is said, that the latter opinion being more conformable to the princi(f) Post. 300.

Williams in Mawgridge's case, Kel. (g) 1 Hawk. P. C. c. 30. s. 8.

(h) Newman's case, Old Bailey, 8 (i) i East. P. C. c. 5. S. 29. p. 248. Anne, where the point of a sword was (k) Id. ibid. thrown at twenty yards’ distance; MS. (1) Rex v. Buckner, Sty. 469. 1 Denton and Chapple. East. P. C. c. East. P. C. c. 5. 3. 29. p. 248. 5. s. 29. p. 248. and Williams's case, (m) Post. 301. i Hale 468. W. Jones 432, where a (n) Rcx v. Hunter, 3 Lev. 255. 1 hammer was throwo; and see the opi. East. P. C. c. 3. s. 29. p. 248, 249. nion of Holt, C. J. as to this case of

131.

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weapon

ples of the common law, in a case where the meaning of the statute is at least doubtful, seems most to be relied upon; more especially as the prisoner in this case finally had his clergy: and it is laid down as a rule, that if the party killed be at any one instant of time during the controversy out of the protection of the statute, between which time and the time of receiving the mortal wound the common law would allow for the prisoner's blood continuing to be heated, the case will not be governed by this sta

tute.(o) What is con- An extraordinary cudgel, or other thing proper for defence or sidered as annoyance in the hand of the party, has been considered, as a “ drawn."

weapon drawn, so as to take the case out of the statute; though the words, “a weapon drawn” seem rather to import a sword or other weapon of that kind, drawn out of the scabbard. (p) But it has been already shewn, that this statute has been construed with reference to its rigorous nature; and, upon the same principles, the discharging a pistol, or throwing a pot, or candlestick, or other dangerous weapon, at the party, has been holden to be within the equity of the words, “having a weapon drawn." (9) This construction, however, does not extend to such an instrument as may not probably do hurt, such as a small riding rod or cane; () and, therefore, what was said by Glyn, C. J.(s) that a tobaccopipe had been adjudged a weapon drawn, may admit of ques

tion. (t) The meaning The meaning of the words, “that hath not then first stricken of the words that hath not

“ the party, which shall so stab or thrust," was questioned in a then first case, in which it was ultimately decided that the words “not hav. “ stricken the

ing first stricken" signify, not having given the first blow in the chale soustache affray. (u) But one of the Judges (w) was of a different opinion; or thrust." and thought that the meaning of the words was, not having struck

before the mortal wound was given : and this latter opinion, notwithstanding the decision of the case, has been approved by great authorities, the view and spirit of the statute having been more fully sifted and understood. Holt, C. J. says of the decision in that case, that it was against the natural order of the words, and the obvious meaning of the act. (2) And Mr. Justice Foster thought that the arrangement of the words, as they stand in the statute, seemed to have been inverted, and a construction extorted from them, of which the Legislature never dreamt. (y) Hawkins says expressly, that wherever a person, who happens to kill another, was struck by him in the quarrel, before he gave the mortal wound, he is out of the statute, though he himself gave the first blow;() and Mr. Justice Blackstone speaks of this as the better opinion.(a)

It is also said, that it may be well to consider, whether these words, “having first stricken,&c. mean any thing more than having first assaulted, &c.; and, therefore, whether the attempt to

(0) i East. P.C. c. 5. s. 29. p. 249.
(p) Fost. 300, 301. i Hale 470.
(9) I Hawk. P. C. c. 30. s. 8.
(r) i Hale 470.
(8) Rex v. Buckner, Sty. 468.
() i East. P. C. c. 5. s. 29. p. 250.

(u) Rex v. Byard, W. Jones 340.
(w) Richardson, J.
(6) Skin. 668.
(y) Fost. 301.
(z) i Hawk. P. C. c. 30. s. 6.
(a) 4 Blac. Com. 193.

strike, being in law an assault, and equivalent to an actual striking, is not equally within the plain intent of the act as the stroke itself. (6)

SECT. III.

Cases of Mutual Combat.

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INSTANCES of mutual combat in which, from the deliberate con- Manslaughter duct of the parties, from some undue advantage taken by the party combat. killing, or from the violent conduct which the party killing pursued in the first instance, the conclusion of malice has been drawn, and the killing has consequently amounted to murder, have been shewn in the preceding Chapter. (c) We have now to consider those cases where, upon words of reproach, or any other sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side: for if death happen under such circumstances, the offence of the party killing will amount only to manslaughter. (d)

If, therefore, upon a sudden' quarrel, the parties fight upon the Sudden quarspot, or if they presently fetch their weapons, and go into a field rel. and fight, and one of them be killed, it will be but manslaughter, because it may be presumed that the blood never cooled. (e) And it must be observed, with regard to sudden rencounters, that when they are begun, the blood, previously too much heated, kindles afresh at every pass or blow; and in the tumult of the passions, in which mere instinct, self-preservation, has no inconsiderable share, the voice of reason is not heard : therefore the law, in condescension to the infirmities of flesh and blood, has extenuated the offence. (f)

If two draw their swords upon a sudden quarrel, and one kills Walters's case. the other, it is only manslaughter. Sir Charles Pym with one party, and Mr. Walters with another party, dined at a tavern; and on coming out Sir Charles P. and Mr. W. quarrelled and drew their swords, and Mr. W. ran Sir Charles P. through the body, and he died. There was no evidence of any

unfair advantage taken by Mr. W.; nor could the witnesses say more than that they heard them quarrelling, saw their swords drawn, and the sword through Sir Charles P.'s body; and it appeared that the parties did not know each other before. When Sir Charles P. fell, Mr. W. took him by the nape of the neck, dashed his head upon the ground, and said, “ Damn you, you are dead.” Jenner, B. told the jury that this was only manslaughter: the jury, however, were disposed to find it murder because of the dashing the head against the ground, &c.: but Allibone, J. repeated to them that it was manslaughter only, and they found accordingly. (a)

(6) 1 East. P. C. e. 5. s. 29. p. 270. 31. s. 29. 3 Inst. 51. (c) Ante, 443, et seq.

(f) Fost. 138, 296. (d) Fost. 295.

(a) Rex v. Walters and others, 12 (e) i Hale 453. 1 Hawk. P. C. c. St. Tr. 118.

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