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Browsing: Legal Papers of John Adams, Volume 2


This foot note contained in document ADMS-05-02-02-0008-0002-0007
16. Andreas Gail, Practicarum observationum tam ad processum judiciarum praesertim imperialis camerae quam causarum decisiones pertinentium 503–506 (Cologne, 1721). The editors' translation follows; passages omitted by JA , except omitted citations, appear in brackets:
Corporal punishment of homicide never takes place except in the case of voluntary homicide, when the homicide is perpetrated by design, deliberately, and also with malicious intent. A genuine and express evil intent ought to appear [in such a case, for the punishment of the Lex Corneliae on murder to apply]. And this is always true—to such an extent that even gross fault is not equated to evil intent. [And this is the first extension of this original rule. Secondly, it is extended so that it may apply to statutes imposing capital punishment for homicide, which statutes receive an interpretation at common law. Therefore, they are to be understood to concern homicide committed with evil intent. Hence it is considered the rule in offenses requiring evil intent, that in the absence of evil intent an offense is not committed, at least for purposes of corporal or ordinary punishment.] Evil intent, [moreover,] is not regularly presumed. Therefore he who alleges evil intent ought to prove it [since one is clearly presumed to be lacking in evil intent until the contrary be proved]. For nature lacks evil intent from its origins, [and as its origins are, so its later development is presumed to be. Moreover, evil intent is proved by various circumstances—by place, time, type of weapons, violence itself. And evil intent is regularly presumed from an illegal act—when someone does an illicit thing by that fact alone he is judged to be of evil intent.] From this first rule, that plainly an ordinary penalty in homicide demands evil intent, many unique things which are becoming matters of practice can be inferred. And the first of these is that homicide which has been committed with the excuse of guiltless self-defense is not punishable: for consider the case where a person is provoked and defends himself with the excuse of guiltless self-defense and kills the aggressor—such a murderer ought not to be punished but fully absolved, and this is confirmed on three grounds: First, because defense belongs to natural law and is permitted by every legal system, [which we share with dumb animals.] Secondly, because if the aggressor is the provoker, he is considered slain by his own hand and not by another [and consequently the provoked party is not judged to be of evil intent]; thirdly, because the person killing does not perpetrate an evil deed in defense of himself, since it is lawful to meet force with force, and where there is no offense, then there should be no punishment.
And the rule of common opinion is that a person who has been attacked is presumed to do everything in his own defense and not for revenge: necessity rules out the presumption of evil intent. The reason is that necessary defense is allowed by all law—even the divine—and is without sin. Moreover, defense is considered reasonable if with the excuse of guiltless self-defense, when a person could not defend himself from mishap in any way other [than in the manner by which he defends himself, as, for example, if, having been placed in peril of his life, he defends himself in the best way that he can, the one who challenged him is not slain unjustly]. Moreover, someone is presumed to have been placed in a position of peril when he is attacked by another man who has arms in hand and his sword unsheathed by this very fact, that fear of weapons puts anyone in such a position.
[Therefore, in order to obtain absolution or withdrawal of the accusation of the homicide committed, the person provoked ought to plead clearly the two most important items, namely the provocation and the necessary defense, and prove them by way of purgation and innocence.]
But what if once provoked he goes beyond the manner of guiltless self-defense and slays the attacker who is in flight? Would he then have to be punished by the ordinary punishment of the Lex Corneliae [concerning murderers]? Certainly not— rather, he who has exceeded reason ought to be punished by the decision of a judge in a manner other than that laid down by the law. The reason is that, as stated a while ago, evil intent and the intent to kill are not presumed to exist in the person provoked, nor is an eagerness for revenge presumed, but rather the need for defense. Nor is he even bound to flee, if flight would bring him in danger of his life: for a person provoked, just as one moved by intense vexation, does not have complete possession of his faculty of understanding: unexpected dread of impending danger removes correct judgment and prudent deliberation: and therefore the commentators say that the man provoked does not have scales in his hand to measure blows and wounds.
[Wherefore it is relevant, that when it is a matter of excusing wrongs, a principle —and not a conclusion—is sought.] Therefore the provoked person ought to be punished for that excess, not as a person of evil intent (since the previous provocation excuses him from evil intent) but as one guilty through fault [(since he exceeded the reasonable limits of guiltless self-defense)].
Moreover, defense is likewise favored, as even where a third party, for example, a friend to the provoked man, is excused from the usual punishment if he intercedes and slays the attacker.