. The paragraphs printed following the asterisk below appear as a footnote in the Wemms Trial
164–165. They were clearly based on JA
's research in Rex v. Corbet, No. 56
; citations for all the authorities may be
found in the documentary text of that case.
* The distinction between Murder and Manslaughter, is more easily confounded than
other distinctions of Law relative to Homicide. And many persons among us seem to
that the punishment of Death ought to be inflicted upon all voluntary killing one
man by another, whether done suddenly or deliberately, cooly or in anger. These received
notions may have originated partly from a false construction of the general precept
to Noah, whoso sheddeth man's blood, by man shall his blood be shed.
But may not some of these mistaken notions have been derived from law books. We find
distinction between Murder and Manslaughter, sometimes attributed to the peculiar
of the English law, and it is sometimes represented that the particular fact which
of England calls Manslaughter, and indulges with Clergy, is punished with death in
Vide Observations on the Statutes page 54. By the law of
Scotland, there is no such thing as Manslaughter, nor by the civil law; and therefore
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—and in another place, Observations on the Statutes
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: Sir Michael Foster
288. If taking general verdicts of acquittal, in plain cases of death, Per Infortunium, &c. deserveth the name of a deviation, it is
far short of what is constantly practiced at an Admiralty sessions, under 28. H. 8.
regard to offences not ousted of Clergy by particular statutes, which had they been
committed at land would have been intituled to Clergy. In these cases the Jury is
constantly directed to acquit the prisoner; because the marine law doth not allow
in any case, and therefore in an indictment for murder on the high seas, if the fact
out upon evidence to be no more than Manslaughter, supposing it to have been committed
land, the prisoner is constantly acquitted.
II. Lord Raymond 1496. His Lordship says, “From these cases it appears, that though
law of England, is so far peculiarly favourable (I use the word peculiarly because
of no other law, that makes such a distinction between Murder and Manslaughter) as
permit the excess of anger and passion (which a man ought to keep under and govern)
instances to extenuate the greatest of private injuries, as the taking away a man's
is; yet in these cases, it must be such a passion, as for the time deprives him of
I shall not enter into any enquiry, how far the Admiralty sessions in England, or
Special Court of Admiralty in America ought to proceed by the rules of civil law,
is a question of immense importance to Americans. But must beg leave to observe that
the distinction between Murder and Manslaughter is not found in words in the civil
the distinction between homicide, with deliberation and without deliberation, and
sudden provocation is well known in that law, and the former is punished with death,
lat[t]>er, with some inferior corporal punishment at the discretion of the Judges.
Indeed the civil law is more favourable, and indulgent to sudden anger and resentment
than the common law, and allows many things to be a provocation sufficient to exempt
person killing from the Poena ordinaria, which is death, which
the common law considers as a slight provocation or none at all.
Cod. Lib. 9. Tit. 16, Note 46. Gail, page 503. Maranta, page 49. Par. 4. Dist. 1.
It should seem from these authorities, that the lenity and indulgence of the laws
England, is not unnatural, extraordinary, or peculiar, and instead of being unknown
civil law, that it is carried much further in many respects than in the common law.
indeed it seems that the like indulgence, was permitted in the Jewish law—though it
been so often represented as peculiar to the English law, that many persons seem to
it unwarrantable, and tending to leave the guilt of blood upon the land.