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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0008-0002-0007

Author: Adams, John
Date: 1769-06

Adams' Argument and Report1

Special Court of Admiralty, Boston, June 1769

But, the first Question that is to be made, according to my Opinion, is, whether Impresses in any Cases, are legal? For if Impresses are always illegal, and Lt. Panton acted as an Impress Officer, Michael Corbitt and his Associates had a Right to resist him, and if they could not otherwise preserve their Liberty, to take away his Life. His Blood must lye at his own Door, and they be held guiltless. Nay I think that Impresses may be allowed to be legal, and yet Corbit might have a Right to resist. To be more particular, when I say Impresses may be legal, I mean that the Lieutenant or other officer who Impresses, may not be liable to any Action of false Imprisonment at the suit of the Party, or to any Indictment at the suit of the Crown, for an Assault, or Riot. The Custom may be admitted to extend so far, and yet it will not follow, that the Seaman has not a Right to resist, and keep himself out of the officers Power, if he can. And whatever may be said of the Antiquity of the Custom, &c. it is very remarkable, that no statute has ever been made to establish or even to approve it, and no single Judgment of any Court of Law can be found in favour of it.2 It is { 323 } found in the Commissions of the Admiralty, and in Warrants from the Admiralty, but no where else.
However the General Question concerning the Legality of Impresses may be determined I humbly conceive it clear, that in America, they are illegal. And that by a particular statute. I mean 6. Ann, c. 37, §9.3 “No Mariner, or other Person who shall serve on Board, or be retained to serve on Board any Privateer, or trading Ship or Vessell, that shall be imployed in any Part of America, nor any Mariner or other Person, being on Shore in any Part thereof, shall be liable to be impressed or taken away, or shall be impressed or taken away, by any officer or officers, of or belonging to any of her Majestys Ships of War, impowered by the Lord high Admiral, or any other Person whatsoever, unless such Mariner shall have deserted &c.4 upon Pain that any officer or officers so impressing or taking away or causing to be impressed or taken away, any Mariner or other Person, contrary to the Tenor and true Meaning of this Act, shall forfeit to the Master, or owner or owners, of any such Ship or Vessell, twenty Pounds, for every Man he or they shall so impress or take, to be recovered with full Costs of Suit, in any Court within any Part of her Majestys Dominions.”
This Statute is clear, and decisive, and if it is now in Force, it places the Illegality of all Impresses in America, beyond Controversy. No Mariner on board any trading Vessell, in any Part of America, shall be liable to be impressed, or shall be impressed, by any officer, impowered by the Ld. Admiral, or any other Person. If therefore this Statute is now in Force, all that Lt. Panton did on board the Vessell was tortious and illegal, he was a Trespasser from the Beginning, a Trespasser, in coming on board, and in every Act that he did, untill { 324 } he received the mortal, fatal Wound. He was a Trespasser in going down below, but especially in firing a Pistall among the Men in the Forepeak. It is said that the Lt. with his own Hand discharged this Pistall directly att Michael Corbitt but the Ball missed him and wounded the Man who was next him in the Arm. This therefore was a direct Commencement of Hostilities, it was an open Act of Pyracy, and Corbit and his associates had a Right and it was their Duty to defend themselves. It was a direct Attempt upon their Lives. And surely these unhappy Persons had a Right to defend their Lives. No Custom House officer, no Impress officer has a Right to attempt Life. But it seems that a second Pistall was discharged and wounded Corbit in his Cheek, with Powder before the fatal Blow was struck. What could Corbit expect? Should he stand still and be shot? Or should he have surrendered, to a Pyrate? Should he have surrendered to the Impress?
But it has been made a Question whether this Statute of 6. of Ann is now in Force? It has been reported as the Opinion of Sir Dudley Rider, and Sir John Strange, that this Statute expired with the War of Queen Ann.5 These are venerable Names, but their Opinions are Opinions only of private Men. And there has been no judicial Decision to this Purpose, in any Court of Law, and I trust never will. Their Opinions were expressed so very concisely, that there is great Room to question whether they were given upon the whole Act, or only on some particular Clause in it. Supposing these Opinions to extend to the whole Act, I have taken Pains, to discover what Reasons can be produced in Support of them. And I confess I can think of none. There is not the least Colour, for such an Opinion. On the Contrary, there is every Argument, for supposing the Act perpetual.
1. It is a good Rule, to consider the Title of an Act, in order to ascertain its Construction and operation in all Respects. The Title of this is “An Act for the Encouragement of the Trade to America.” Encouragement of the Trade to America, is [the] professed Object, End and Design of this Law. Is this Trade, only valuable in Time of War? If the Trade to America existed and was carried on only in Time of War, { 325 } the Act made for the Encouragement of it must expire when the Trade expired, at the End of the War. But the Trade did not expire with the War, but continued after it, and therefore, the Encouragement given it, by this Act, continued and survived too. This is of equal Importance in Peace as in War, and there is stronger Reason why it should be incouraged by exempting Seamen from Impresses, in Peace than in War, because there is not the same Necessity for impressing seamen in Peace, as there is in War.
2. The Preamble furnishes another Argument to prove the Act perpetual. “For Advancement of the Trade of her Majestys Kingdom of Great Britain, to and in the several Parts of America.”6 This is one End of this Law. Is not this End as beneficial and Important in Peace as in War? Has there been a Year, a Day, an Hour since 1707 when this Act was made when the Trade of Great Britain, to and in the several Parts of America, was of less Consequence to the Nation, than it was at that Time? Surely the Advancement of the British American Trade, is a perpetual object. It is no temporary object or Expedient, it has lasted these 60 Years, and I hope will last 1000 longer.
3. For the Encrease of Shipping and of Seamen, for the Purposes mentioned before in the Preamble, is another End of this Law. Now shipping and seamen are usefull and necessary to a commercial Nation, in Times of Peace as well as War.
4. Some Clauses in this statute are in their Nature temporary, and limited to the Duration of the War. §2. 3. 4. 5. 6. 7. 8. &c.7 Others are expressly limited to the Continuance of War as §14. “during the Continuance of the present War”8 and §19. during the Continuance thereof9 and §21.10 But §9. and §2o,11 are not by the Nature of them limited to War. They are not expressly and in Terms limited to Years, or to War.
5. If it is not now in force why is it bound up in the statute Book? And why was not the whole Act limited to Years, or to War.
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If it is once established as a Fact that Lt. Panton acted in the Character of an impress officer, not in that of an officer of the Customs; and if it is also established as Law that no officer has a legal Right to impress a seaman; our next Enquiry must be what the Rules of the civil Law are, relative to Homicide in Cases of Self Defence. Self Preservation is first Law of Nature. Self Love is the strongest Principle in our Breasts, and Self Preservation <the most important Duty,> not only our unalienable Right but our clearest Duty, by the Law of Nature. This Right and Duty, are both confirmed by the municipal Laws of every civilized Society.
2. Domat. 638. §6. “He who is attacked by Robbers, or by other Persons, that are armed in such a manner, as to put him in Danger of his Life, in Case he does not defend himself, may kill the Robber or the aggressor, without any fear, of being punished as a Murderer.”12
Woods Inst. civ. Law. 270. “Necessary Homicide is when one for the Defence of his own Life kills the Aggressor. This may be done without expecting the first Blow, for that may make him incapable to defend himself att all. But this ought not to exceed the Bounds of self defence.13 The manner of self Defence, directs that you should not kill, if you can by any means escape,” &c.14
Cod. Lib. 9. Tit. 16. 2. “De eo, qui salutem suam defendit. “Is qui aggressorem vel quemcunque alium, in dubio vitae discrimine constitutus occiderit, nullam ob id factum, calumniam metuere debet. “3. Si quis Percussorem, ad se venientem gladio repulerit, non ut homicida tenetur: quia defensor proprise solutis in nullo peccasse videtur. “4. Si, (ut allegas) latrocinantem peremisti: dubium non est, cum qui inferendae caeedis voluntate prascesserat jure caesum videri. “Liceat 46 cuilibet aggressorem, nocturnum in Agris, vel obsidentem vias, atque insidiantem praetereuntibus, impune occidere, etiamsi miles sit: melius numque est bis occurrere, et mederi, quam injuria accepta vindictam perquirere.”
“Note 46. Homicida non est, qui aggressorem, in vitae discrimine constitutus, interficit nec primum ictum, quis expectare debet, quia irreparabilis esse potest.”15
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Gail. Page 503. Poena homicidii corporalis, nunquam habet locum, nisi in Homicidio voluntario, quando homicidium, ex proposito, destinata voluntate, et quidem dolo malo commissum est. Debet enim verus et expressus intervenire dolus, &c. Et hoc usque adeo verum est, ut etiam lata culpa, non aequiparetur dolo, &c. Dolus non praesumitur regulariter, &c. Quapropter dolum allegans, eum probare debet, &c. Natura enim bona est, a suis Principiis. Ex hac principali Regula, quod videlicit Poena ordinaria, in Homicidio requirat dolum, multa singularia, et quotidie usu venientia inferri possunt. Et primo, quod Homicidium, cum moderamine inculpate tutelar commissum non sit punibile puta, si quis provocatus se cum moderamine inculpate tutaelae defendat, et aggressorem occidat: talis enim Homicida non puniri, sed plene absolvi debet, idque triplici ratione confirmatur. Primo quod Defensio sit Juris naturalis, et omni Jure permissa. Deinde quod Aggressor, sive provocans, non ab alio, sed a seipso occidi videatur. Et per consequens, quod provocatus non censeatur esse in Dolo. Tertio, quia occidens ad sui defensionem, non committit maleficium, cum vim vi repellere liceat, et ubi non est Delictum, ibi Pcena abesse debet.
Et regulariter ex communi opinione, Aggressus, praesumitur omnia facere ad sui defensionem, non autem ad Vindictam Necessitas, Doli Praesumptionem excludit, &c. &c. Ratio, quia necessaria Defensio, omni Jure, etiam divino permissa et sine peccato est. Defensio autem moderata, sive cum moderamine inculpatae tutelar dicitur, quando quis non potuit aliter se ab offensione tueri &c.
Praesumitur autem in Discrimine Vitae quis constitutus, eo ipso, quod ab alio, armata manu, et Gladio evaginato aggreditur, terror ille armorum aliquem in Vitae Discrimen adducit, &c.
Sed quid si provocatus modum inculpatae tutelae excedat, et Aggressorem in fuga occidat, an Poena ordinaria legis Corneliae &c. plectendus sit? Minime, sed extra ordinem, Judicis arbitrio, ratione excessus puniri debet, &c. Ratio, quia ut paulo ante dictum, in provocato non { 328 } praesumitur Dolus, et animus occidendi, aut Vindictae studium, sed potius Defensionis Necessitas. Nee etiam fugere tenetur, si fuga ei Periculum Vitae adferret. Provocatus enim tanquam intense dolore commotus, non est in plenitudine Intellectus: metus improvisus, instantis Periculi tollit Rectum ludicium, et consilium deliberandi, et ideo dicunt DD. quod provocatus non habeat Stateram in manu, ut possit dare ictus, et Vulnera ad Mensuram &c. Puniendus igitur provocatus pro isto excessu, non ut dolosus, quia provocatio praecedens a dolo excusat, sed ut culpabilis, &c.
Adeo autem defensio favorabilis est, ut etiam tertius, puta, Amicus, provocati, si intercedendo, aggressorem occidat, excusetur a Poena ordinaria.16
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Page 509. Sexto infertur, quod Homicidium Calore Iracundiae perpetratum, non puniatur Poena ordinaria, quod est intelligendum de Iracundia lacessita, quando quis ab alio verbis injuriosis, ad Iram provocatur, nam eo casu ita excusat Poena ordinaria &c. quo pertinet, quod supra dictum est, hominem intense dolore permotum, non esse in Plenitudine Intellectus, &c.17
Maranta Page 49. Pars. 4 Dist[inctio] 1. 77. Hoc patet, quia Homi• { 330 } cidium commissum per culpam, dicitur crimen extraordinariam, et punitur poena arbitraria, &c. Ubi si maritus occidit uxorem deprehensam in Adulterio, non punitur poena mortis, sed alia poena corporali mitiori; et ratio est, quia tale Homicidium dicitur culposum, et non dolosum, ex quo difficile fuit temperare justum dolorem cum ergo ex proedictis appareat, quod homicidium culpa commissum puniatur poena arbitraria et extraordinaria; sequitur de necessitate quod non potest Judex imponere Poenam mortis, quae est poena ordinaria; &c.18 Sed vid. Ld. Ray. 149619 and Barringtons Observations on the Statutes page 54, bottom, Note.20
So much for the Distinction between Homicide with Deliberation and without Deliberation, according to the civil Law, which [is] analogous to that of the common Law between Murder and Manslaughter.21 But, the Case of these Prisoners does not require this Distinction. I am not contending for the Sentence of Manslaughter, against my Clients. I think they are intituled to an honourable Acquittal. They have committed no Crime whatever, but they have behaved with all that Prudence And Moderation, and at the same Time with that Fortitude and Firmness that the Law requires and approves.
Mr. Panton and his Associates and Attendants, had no Authority for what they did. They were Trespassers, and Rioters. The Evidence must be carefully recapitulated, their Arms, Swords, Pistals, &c. their Threats and Menaces. Pantons orders for more Men, his orders to { 331 } break down the bulk Head. Their Execution of these orders, their fetching the Adz and the Crow, but above all their Discharge of a Pistal, right in the face of Corbit, which tho loaded only with Powder, wounded him so badly in his Lip, these Circumstances are abundantly sufficient to shew who was the first Aggressor, and to shew that the Lives of the present Prisoners were in danger. What could Corbit think? when a Pistol had been presented at his Mouth and discharged, loaded he knew not with what. It had wounded him, he knew not how badly. <He had reason to suppose> He saw a desperate Gang of armed Sailors, before him, other Pistals, cocked and presented at him, and his Companions, their Heads and Breasts, drawn swords in the Hands of some, continual Threats to blow their Brains out, could he expect any Thing but Death? In these Circumstances what could he do? but defend himself, as he did? In these Circumstances what was his Duty? He had an undoubted Right, not merely to make a push at Lt. Panton, but to have darted an Harpoon, a dagger thro the Heart of every Man in the whole Gang.
If Mr. Panton came as a Custom house Officer, and it may be true that he came in Part, to search the Ship for uncustomed Goods, he had a fair Opportunity to do it. He <ordered> asked and was told, that the Hatchways were open. He ordered the Lazaretto open and it was done, and after this instead of searching for uncustomed Goods he proceeds directly to search for Seamen.
The Killing of Lt. Panton was justifiable Homicide. Homicide se defendendo.
1. Hawkins 71. §[14], middle. “The Killing of dangerous Rioters, by any private Persons, who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private Person seems to be authorised by the Law to arm himself for the Purposes aforesaid.”22
Same page §21. “A Woman [who] kills one who attempts to ravish her, may be justified.”23
Page 72. §23, towards the End, “It seems that a Private Person, and a fortiori an officer of Justice, who happens unavoidably to kill another in endeavouring to defend himself from, or suppress dangerous Rioters, may justify the fact, inasmuch as he only does his Duty in Aid of the public Justice.”24
§24. “I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatever, in such manner as { 332 } plainly shews an Intent to murder him, as by discharging a Pistall or pushing at him with a drawn sword, may not justify killing such an Assailant.”25
Page 75. §14. “Not only he who on an assault retreats to a Wall, or some such Streight beyond which he can go no further, before he kills the other, is judged by the Law to act upon unavoidable Necessity: But also he who being assaulted in such a manner and such a Place, that he cannot go back without manifestly ind[ang]ering his Life, kills the other without retreating at all.”26
Keyling. Page 128. Bottom. “It is not reasonable for any Man that is dangerously assaulted, and when he perceives his Life in danger from his Adversary, but to have Liberty for the Security of his own Life, to pursue him that maliciously assaulted him; for he that hath manifested that he hath Malice against another is not fit to be trusted with a dangerous Weapon in his Hand.”27
Keyling. Page. 136. Top. Buckners Case. Imprisoned injuriously without Proscess of Law, &c.28
Page 136. 3. Bottom, “sdly. If a Man perceives another by force to be injuriously treated, pressed and restrained of his Liberty, tho the Person abused, doth not complain,29 &c. and others out of Compassion shall come to his Rescue, and kill any of those that shall so restrain him, [that is] Manslaughter.”30
Keyling. 59. Hopkin Huggetts Case, who killed a Man in attempting to Rescue a Seaman impressed without Warrant.31
2. Ld. Raym. Queen vs. Tooley & als. The Case of the reforming Constables. Holt. 485.32
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Holt. 484. Maugridges Case.33
Foster. 312. 316. Vid. Foster 292 the smart &c. for Manslaughter. Also 296.34
A Question has been started by Sir Francis Bernard, whether, (as there is no Distinction between Murder and Manslaughter, in the civil Law,) the Court can allow Clergy, if they find the Prisoners guilty of Manslaughter? i.e. whether the Court can do any Thing but pass sentence of Death and Respite Execution, and recommend them to Mercy? He said he had formerly attended at the Admiralty sessions in England, and had heard it said by the Court, that Clergy was expressly taken away by these statutes from Manslaughter, and the Court could not grant it.
But see a Paragraph in Foster to the Contrary. 288.35
In this Case, I shall not make a Question whether Corbit and others are guilty of Murder, or of Manslaughter. I am clear they are guilty of Neither. All that they did was justifiable Self Defence, or to use the Expressions of most Writers upon Crown Law, it was justifiable and necessary Homicide, se defendendo. This will be fully shewn, by a particular Examination of the Law, and of the Evidence.
But it may not be amiss to consider, the observation of Sir Francis, in order to remove the Clouds from his Brain, 1. It is total Ignorance to say there is no Distinction between Murder and Manslaughter, in the civil Law, as appears abundantly, already.†36 2. I say that Clergy is not expressly taken away by the statutes, from Manslaughter. By the 28. H. 8. all Felonies are to be tryed according to the Common Course of the Laws of this Land. What is the common Course of the Laws of the Land, relative to Manslaughter, which is a Felony? It has its Clergy. It is true the Word Manslaughter is once mentioned in the statute of H. 8. Every Indictment found, &c. of Treasons, Felonies Robberies, Murthers, Manslaughters, or such other offences, &c. then such, order, &c. Judgment and Execution, shall be had, as { 334 } against such offences upon Land.37 What is the Judgment vs. Manslaughter upon Land? They have their Clergy. §3. For Treasons, Robberies, Felonies, Murthers, and Confederacies done at sea, the offenders shall not have Clergy. Here Manslaughter is dropped. So that Clergy is not taken from Manslaughter by this Act.
By 11. and 12. W. 3. Piracies, Felonies and Robberies, are mentioned, but Manslaughter is not. The Word is not in the whole statute. It was needfull to mention it in that of H. 8. because the Tryal was to be by the Law of the Land, and it clearly has its Clergy. But by this statute the Tryal, and Judgment and Sentence were to be all by the civil Law, where the Offence that is called Manslaughter by the common Law, is never punished with death. But it is observable that Clergy is not taken away by this statute from any Crime.
By 4. G. c. 11, §. 7. any Pirate Felon or Robber, within the 11. and 12. W. may be tryd in the manner and Form of 28. H. 8. and shall be excluded Clergy.38 We see that whenever the Tryal is to be by a Jury and the common Law, Clergy is excluded, from such Crimes as were not intituled to it upon Land, and the Reason was because it is a known Rule of Law, that when the Legislature creates any new felony, it shall be intituled to Clergy if not expressly taken away. Doubts might arise, whether making Crimes at sea Felonies, was not creating new felonies, and so they would be intituled to Clergy. To avoid this the Clause was inserted.
† Sed vid. Ld. Ray. 1496.39 And especially Barringtons Observations on the Statutes page 54, bottom. Note.40
Barrington. 54. “By the Law of Scotland there is no such Thing as Man Slaughter, nor by the civil Law; and therefore a criminal indicted for Murder, under the Statute of Henry the Eighth, where the Judges proceed by the Rules of the civil Law, must either be found guilty of the Murder or acquitted.”
Ld. Ray. 1496. “From these Cases it appears, that though the Law of England is so far peculiarly favourable (I use the Word peculiarly, because I know no other Law, that makes such a Distinction between Murder and Manslaughter) as to permit the Excess of Anger and { 335 } Passion (which a Man ought to keep under and govern) in some Instances to extenuate the greatest of private Injuries, as the taking away a Mans Life is; Yet in these Cases, it must be such a Passion, as for the Time deprives him of his reasoning Faculties;”41
Foster 288.42 If taking general Verdicts of acquittall in plain Cases of Death per Infortunium, &c. “deserveth the Name of a Deviation, it is far short of what is constantly practised at an Admiralty sessions, under 28. H. 8 with Regard to offences not ousted of Clergy by particular Statutes,43 which had they been committed at Land, would have been intitled to Clergy. In these Cases the Jury is constantly directed to acquit the Prisoner; because the Marine Law doth not allow of Clergy in any Case, and therefore in an Indictment for Murder on the high seas, if the fact cometh out upon Evidence to be no more than Manslaughter, supposing it to have been committed at Land, the Prisoner is constantly acquitted.”
Observations on Statute 422. Note (z). “I have before observed, that by the civil Law, as well as the Law of Scotland, there is no such offence as what is with us termed Manslaughter: The Scotts, therefore might have apprehended, that if not convicted of Murder they should have been acquitted.”44
1. In JA 's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184, continuing Doc. II. Printed in 2 JA, Works 528–534. It is impossible to say accurately how much of this document is JA 's notes for actual trial use and how much is his subsequent embryonic report. See text at note 24 above. See also note 12 50 above.
2. This contention is subject to qualification: “It is quite certain that the Crown had the power to impress mariners for the navy. The statutes of the Long Parliament which provided for their impressment practically assume this. There is no recital in them that impressment is contrary to the liberty of the subject; and . . . they would have contained such a recital, if Parliament had thought the practice illegal.” 4 Holdsworth, History of English Law 329. “[T]he compulsion of men to go beyond or upon the sea, or otherwise imprisoning them, or compelling men to take prest money, or otherwise imprison them hath been, I Confess, a practice long in use.” 1 Hale, Pleas of the Crown 678. And, for a thorough contemporary review of the law, see Rex v. Broadfoot, Foster, Crown Cases 154 (Recorder's Court, Bristol 1743). Mr. Recorder (later Mr. Justice) Foster admitted that he knew “of no Statute now in force, which directly and in express Terms impowereth the Crown to press Mariners into the Service. And admitting that the Prerogative is grounded on immemorial Usage, I know of no Necessity for any such Statute.” Id. at 168. Authority to impress was usually conveyed by Admiralty warrant issued pursuant to Orders in Council. Id. at 154–155. No warrant in the name of Panton, or Captain Caldwell of the Rose has been found. Since the Crown did not urge the warrant as a basis for Panton's actions, there may have been none.
3. “An act for the encouragement of the trade to America” (1707). The emphasis is JA 's. Quotation marks supplied.
4. JA omits: “from such ship of war belonging to her Majesty at any time after the fourteenth day of February, one thousand seven hundred and seven.”
5. Dudley Ryder (1691–1756) was attorney general of England, 1737–1754; John Strange (1691–1754) was solicitor general, 1737–1742. DNB . In 1740, they signed a joint opinion: “We have perused the several clauses in the American Act, and by comparing the several clauses together, it seems to us, that the Act is not now in force, but expired at the end of the war.” Chalmers, Opinions 232. See also Clark, “The Impressment of Seamen in the American Colonies,” in Essays in Colonial History Presented to Charles McLean Andrews 198, 212 (New Haven, 1931). In 1716, Sir Edward Northey, the attorney general, had given an identical opinion. Chalmers, Opinions 232.
6. JA omits: “for the further encouragement of her Majesty's ships, and private ships of war, the annoying and diminishing the wealth and power of her Majesty's enemies in those parts, and for the encrease of shipping and of seamen for these and other services.”
7. These sections concern prize procedure.
8. §14 concerns privateers.
9. § 19 relaxes “during the continuance of this present war, and no longer,” the requirement of the Navigation Act, 12 Charles 2, c. 18, §1 (1660), that privateers and trading ships must have a British master and a crew three-fourths British.
10. §21 relaxes “during the continuance of the present war” the requirement of the Navigation Act, 12 Car. 2, c. 18, §1 (1660), that all British ships be British-built.
11. §20 concerns naturalization of foreign seamen serving in British ships.
12. 2 Domat, Civil Law 638. Quotation marks supplied in this and following citations by JA .
13. JA omits: “Now those bounds may be observ'd with respect to the manner, the time and the cause.”
14. Wood, New Institute of the Civil Law 270. JA omits: “for you are bound to fly if it may be without danger. Neither is such flight ignominious even in a Soldier.”
15. Justinian, Codex, bk. 9, tit. 16, “§2. Of those who defend their own safety. He who, when in danger of his life, kills his aggressor or anyone else, should have no fear of prosecution on this account. “§3. When anyone kills another who attacks him with a sword, he should not be considered a homicide, for the reason that the defender of his own life is not held to have committed an offense. “§4. If (as you state) you have killed a robber, there is no doubt that it will be decided that you have lawfully killed him who had the intention of depriving you of life.” See 15 Scott, Civil Law 29–30.
The editors have translated the material following “Liceat” as follows:
“It is lawful (46) to kill with impunity one who attacks by night in the fields, or blockades the highways, and lies in ambush for passersby, even if he be a soldier. For indeed it is doubly better to attack, than for an injury suffered to be healed, and to seek vengeance.
“Note 46. He is not a murderer who, in peril of his life, kills an attacker, nor ought anyone to wait for the first blow, because it might be irreparable.”
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.
17. Gail, Practicarum observationum 509. The editors' translation follows; passages omitted by JA , except omitted citations, appear in brackets:
Sixthly, it is inferred that homicide committed in the heat of anger is not to be punished in the ordinary way because inquiry must be made as to wrath which has been provoked, when someone is provoked to anger by another man because of damaging language: for in that case he is thus excused from the ordinary punishment. [And it is necessary to investigate what was the nature of this proneness to anger which has deprived the wrongdoer of reason: for angry men are wholly upset in the mind and lack the use of reason and know not how to speak and cannot use their senses, and have so much trouble speaking that they are consequently presumed to lack evil intent, and the will to inflict harm arises from an excessive proneness to anger, which an armed wrath, so to speak, feeds.] Wherefore it is relevant, as stated above, that a man who has been spurred by intense vexation is not in full possession of his understanding. [Further, it is most difficult to control righteous vexation of the mind.]
18. Robertus Maranta, Praxis, sive de ordine judiciorum . . . vulgo speculum aureum et lumen advocatorum 51 (Cologne, 1614). The editors' translation follows; passages omitted by JA , except omitted citations, appear in brackets:
This is evident, because homicide perpetrated by fault is said to be an offense which the law does not cover and is punished with discretionary penalties. Whenever a married man slays the wife he has caught in an act of adultery, he is not given the death penalty but another milder corporal punishment; and this is because this sort of homicide is said to have been committed through fault, but not with evil intent, since it occurred in a situation in which it was difficult to control righteous indignation. [For in his guilty frame of mind there was an element missing due to the justification, and so he is punished more mildly than the man with a guilty frame of mind.] Therefore, since it appears from the aforesaid that a homicide perpetrated through fault is to be punished by a penalty that is discretionary and out of the ordinary course, it necessarily follows that a judge cannot impose the death penalty, which is the ordinary punishment [for in his discretionary judgments a judge can never impose a punishment like an ordinary punishment for a similar wrong].
19. Rex v. Oneby, 2 Ld. Raym. 1485, 1496, 92 Eng. Rep. 465, 472 (K.B. 1727). Held: Killing after aroused passions have had reasonable time to cool is murder.
20. See text at note 40 140 below.
21. JA made this point at somewhat greater length, citing the authorities in notes 15–20 115–120 above, in a footnote to the published version of his argument in the trial of the British soldiers. See No. 64, note 41 218 . He also used this argument again before a Special Court of Admiralty in Rex v. Nickerson, No. 57.
27. Reg. v. Mawgridge, Kelyng 119, 128, 84 Eng. Rep. 1107, 1111 (Q.B. 1706).
28. The Protector v. Buckner, Style 467, 82 Eng. Rep. 867 (U.B. 1655), cited in Reg. v. Mawgridge, Kelyng 136, 84 Eng. Rep. at 1114. Held: Stabbing upon provocation of false imprisonment is not within the Statute of Stabbings, I Jac. 1, c. 8 (1603), and hence the prisoner is entitled to clergy.
29. JA omits: “or call for Aid or Assistance.”
30. Reg. v. Mawgridge, Kelyng 119, 136, 84 Eng. Rep. 1107, 1114 (Q.B. 1706).
31. Rex v. Hugget, Kelyng 59, 84 Eng. Rep. 1082 (Newgate Gaol Delivery 1666). Held: Killing while attempting to rescue man impressed without a warrant is manslaughter.
32. Reg. v. Tooley et al., 2 Ld. Raym. 1296, 92 Eng. Rep. 349; sub nom. The Case of the Reforming Constables, Holt K.B. 485, 90 Eng. Rep. 1167 (Q.B. 1709). Constable arrests a woman without a warrant; prisoners attempt to rescue her; constable calls deceased to aid him; one of the prisoners kills deceased. Held: Manslaughter, because constable was not acting within his authority, and the prisoners had sufficient provocation to attack him. “[I]f one be imprisoned upon an unlawful authority it is a sufficient provocation to all people out of compassion; much more where it is done under a colour of justice, and where the liberty of the subject is invaded it is a provocation to all the subjects of England.” 2 Ld. Raym. at 1301, 92 Eng. Rep. at 352; see also Holt K.B. at 489, 90 Eng. Rep. at 1169.
33. Reg. v. Mawgridge, Holt K.B. 484, 90 Eng. Rep. 1167 (Q.B. 1706).
34. Foster, Crown Cases , discusses, at 312 and 315–316, Reg. v. Tooley, note 32 132 above; at 292, Reg. v. Stedman (unreported) (Old Bailey 1704), in which one who killed a woman after she struck his face with an iron patten was held guilty of manslaughter only, because of the “smart” of his wound; at 296, Reg. v. Mawgridge, note 27 127 above. At this point in the MS appears the narrative set out in text following note 1 50 above.
35. Foster, Crown Cases 288–289; JA sets out the text at note 42 142 below.
36. See text at notes 15–21 115–121 above. The dagger appears in the MS , and refers to the text at notes 39–44 139–144 below.
37. An accurate condensation of 28 Hen. 8, c. 15, §2 (1536).
38. 4 Geo. 1, c. 11, §7 (1717). See text at notes 14–15 52–53 above.
39. Rex v. Oneby, note 19 119 above.
40. Barrington, Observations upon the Statutes 54 note (k). The text appears in JA 's next paragraph. JA used this and the passage from Lord Raymond in a footnote to the published text of his argument in the trial of the British soldiers. See No. 64, note 41 218 . Quotation marks have been supplied here and below.
41. See note 19 119 above.
42. Foster, Crown Cases 288–289. JA has paraphrased Foster's opening: “I therefore think those Judges who have taken general Verdicts of Acquittal in plain Cases of Death per Infortunium . . . have not been to Blame. They have, to say the worst, deviated from antient Practice in Favour of Innocence.”
43. Foster cites, among other examples, 11 & 12 Will. 3, c. 7 (1700) and 4 Geo. 1, c. 11 (1717).
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