circumstances: "Upon St David's Day the prisoner, David Williams, had a leek in his hat, and there was, at the same time, in waggery, a Jack-a-lent' in the street put up with a leek, and one Nicholas Redman spake to the prisoner, and, pointing to the Jack-a-lent, said, 'Look at your countryman!' and the prisoner being therewith enraged, threw a hammer at Redman, which missing him, did hit one Francis Marbury, whereof he died." So, even subsequently to the resolution in Lord Morley's case, Hale cites a special verdict whereby it appeared that a man had killed a woman by throwing a broomstick at her for calling him a son of a whore." Hale says that two points were raised, one, whether "bare words, or words of this nature would extenuate?" the other, touching the broomstick. The prisoner was pardoned. The law respecting provocation by words and gestures is, at present, in accordance with the main resolution in Lord Morley's case, as confirmed by the authority of Sir M. Foster. But it must be observed that, inasmuch as the principle of extenuation is founded on the want of self-control occasioned by provocation, it is obvious that gross insults by word, gesture, or even caricature, may have as potent a tendency to move many persons on a sudden to violent passion as bodily injuries Thus the name of hunchback is represented (probably from personal experience) as peculiarly aggravating in Byron's Deformed Transformed. And the word of denial has been treated as inevitably productive of strife, at least if not qualified by Shakspere's peace-maker, an if." Sir M. Hale has not thrown light upon a point that occurred in the case of the Welshman Williams above noticed, and which remains still in obscurity, how far, in estimating degrees of provocation, the particular temperament of the person provoked 1 A figure set up during Lent to be thrown at, usually for a penny, as appears from several old plays. 2 A treatise published in Venice, in 1566, contains the following heads of chapters, "Of all kinds of lies; of the lie direct; of the lie hypothetical; of the lie general; of the lie special; of the immaterial lie." ought to be taken into consideration. Armstrong, in his poem on Health, cautions some persons: If your wrathful blood be apt to boil, Or, are your nerves too irritably strung, Scriblerus thought that the muscles of choleric people were in fault, as the buccinators or blowers out of the cheeks, and the dilators of the nose. Even blows are represented, in Hudibras, to produce very different effects on the minds of different individuals; with some, a kick in a certain part of the body Whilst others More Hurts honour than deep wounds before. Have been beaten till they know Some kick'd, until they can feel whether The intensity of provocation may depend less on words or blows than on the state of feelings in the person provoked, and the relations of the parties, whether the injury come from a stranger, or from a "familiar friend." The Poet of Human Nature has touched on the effect of recent affliction in sharpening resentment at sudden provocation : CASSIUS. I did not think you could have been so angry. CASSIUS. Of your philosophy you make no use BRUTUS. No man bears sorrow better. Portia is dead. CASSIUS. And he exhibits the poignancy by which an injury, though consisting in words, is augmented, when proceeding from a daughter; thus he makes Lear complain of Goneril: As to manslaughter under the provocation of adultery, Sir M. Hale writes, agreeably to the present law, "If A commits adultery with B the wife of C, who comes up, and takes them in the very act, and, with his staff kill the adulterer upon the place, this is manslaughter." Upon which subject the Indian Law Commissioners write: "One outrage which wounds only the honour and the affections is admitted by Mr Livingston to be an adequate provocation. A discovery of the wife of the accused in the act of adultery with the person killed is an adequate cause.' The law of France, the law of England, and the Mahomedan law are also indulgent to homicide committed under such circumstances. We must own that we can see no reason for making a distinction between this provocation and many other provocations of the same kind. We cannot consent to lay it down as an universal rule, that in all cases this provocation shall be considered as an adequate provocation. Circumstances may easily be conceived which would satisfy a court that a husband had in such a case acted from no feeling of wounded honour or affection, but from mere brutality of nature, or from disappointed cupidity. On the other hand, we conceive that there are many cases in which as much indulgence is due to the excited feelings of a father, or a brother, as to those of a husband. That a worthless, unfaithful and tyrannical husband should be guilty only of manslaughter for killing the paramour of his wife, and that an affectionate and high-spirited brother should be guilty of murder for killing, in a paroxysm of rage, the seducer of his sister, appears to us inconsistent and unreasonable. It appears to us that the principle of extenuated homicide, being ascertained to be the loss of self-control arising from that human infirmity which is so general and almost universal as to render it proper to make allowance for it in admeasuring punishment, it is expedient to leave the consideration of this subject to juries, unfettered by arbitrary distinctions." Next, with regard to those cases of semi-grave provocation where there has been no apparent intention of killing. Sir M. Hale has laid down the law more leniently than, perhaps, is consistent with modern decisions. He writes: "If A be passing the street, and B, meeting him (there being convenient distance between A and the wall) takes the wall of A, who, thereupon, kills him, this is murder; but, if B had justled A, this justling had been a provocation, and would have made it manslaughter; and so it would be if A, riding on the road, B had whipped the horse of A out of the track, and, then, A had alighted and killed B, it had been manslaughter." He writes, indeed, "A and B are at some difference, A bids B take a pin out of the sleeve of A, which B doth accordingly, and then A strikes B, whereof he died, this was ruled murder:" for which ruling, however, one reason assigned is, “Because it is no provocation, when he did it by the consent of A." It may appear, that, in the present day, the provocation in all these cases, though it be regarded · as an assault, would not extenuate a homicide to manslaughter, the killing being supposed intentional. In a modern case, a distinction has been taken between the provocation of a box on the ear by a woman, and a blow by her with an iron patten fetching blood. Sir M. Hale states, further, "If A come into a wood of B, and pull his hedges, and B beat him, whereof he dies, this is manslaughter." Sir M. Foster, in commenting on this case, writes, that B beat A "merely 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 beyond the bounds of ordinary resentment, whereof he had died, it had been murder.” Another case is that stated by Sir M. Hale as from Coke's Reports: "A, the son of B, and C, the son of D, fall out in a field and fight. A is beaten, and runs home to his father all bloody: B presently takes a staff, runs into the field, being three-quarters of a mile distant, and strikes C that he dies; this is not murder in B, because done in sudden heat and passion." Sir M. Foster explains the case differently, forasmuch as from another Reporter it appears that the prisoner gave only a single stroke with a small cudgel not likely to kill: and Sir M. Foster does not consider that the plea of provocation could have availed the prisoner, had he killed the deceased with a hedgestake or any other deadly weapon, or by repeated blows of the cudgel. He says, that "with what weapon and in what manner the child was beaten, Coke is totally silent." Coke, however, expressly states that the weapon was a cudgel, and the manner was upon the head. There have been numerous modern decisions whereby offences have been held to be manslaughter on the ground of semi-grave provocation, there being no intention of killing, as in the instances of throwing a four-legged stool, a pair of tongs, or the leg-bone of a cow, striking with clogs because they were not cleaned, ducking a pickpocket. It may be questioned, however, how far the moral provocation in such cases may have been thrown in as a make-weight, and whether they do not depend on the circumstances of an absence of a design to kill, and the improbability of the means of aggression occasioning death.1 But, to cases of this description, the rule of Scotch law, as stated by Mr Alison, may seem applicable. "The crime of murder is committed, if death ensue from an intention to commit an inferior bodily injury, provided it be of such a kind as plainly, and in the ordinary course of events, puts the life of the sufferer in hazard." The cases, however, suggest the qualification of a maxim which is found in Hale, and is repeated by Foster, that a "wrong-doer cannot apportion his own wrong." As to the third head of manslaughter above mentioned, viz. 1 Administering snuff with liquor, and giving nine glasses of brandy to a boy ten years old, which have been followed by death, have been held manslaughter. |