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the chafe of Sr John's Scabbard fell off unknown to him upon a thrust, so
the Rapier went into his man's Belly and killed him" — he was found guilty
by the direction of the Judges — We should be utterly unable to find some difficulty in comprehend the
motives of this extraordinary determination which Ld Hale reports with great perfect
tranquility, were it not for some circumstance in the history of it preserved by another reporter, whose
account I have therefore chosen. which very consistent/is consistent with that Judge's [to deliver.] "And the Court, (continues he) "directs
the Jury that forasmuch as such Acts are not warranted by Law, the parties
that use them ought at their own peril to prevent the mischief that may ensue
for consent will not change the case; and therefore though there were no intention
of doing mischief, yet the thrust being voluntary, was an assault in Law, and on
Death ensuing, the offence was Manslaughter; yet the Jury found it Chancemedly,
but the Court would not accept the Verdict, but charged them if they
varied from the Indictment to find it specially. And Bacon said, || || Qu. what to mention what Bacon he had
known a Jury bound over to the Starchamber upon the like cause, whereon
they found him guilty, and day was given him to procure his Pardon + Aleyn 12. H.P.Cr. 472. &c
But this was in the year
1646 during the Civil Wars
& after the Battle of Naseby Qu. whether the Court of
King's Bench was not no any
longer at the disposal of
the Crown.
Observing that this happened
about the end of Ch. 1st's reign
I was going on very boldly to
account for it upon the supposition
of the necessity of filling
the Defts Coffers by the Forfeiture:
when upon examining considering the date more
particularly I found,
I mention this error of mine
that the observation of it may
be a check upon the passion of accounting for every thing upon secret History. The ambition of appearing sagacious, displaying sagacity &
natural propensity in mankind to find .
These circumstances will sufficiently clear up the case, when it be consider'd
in Chancemedley the other case or Homicide per infortunium it had been usual as a matter of
course to pardon, [but not in Manslaughter] that the King was
The same Law, we learn from Sr M. Hale in the place above referred to was laid down upon another occasion, which is not particularly
mentioned: in case of 2 men playing only at cudgels & solemnly settled in Easter Term in the 2d year of Ch. 2d by all the Judges
on a special verdict — the accident here happened by 2 friends in a fencing school exercising themselves playing at foils
in a fencing School.
Thus has the improvidence pusillanimity or sophistry of the long Robe Law encompassed with uncompelled by Statute or by Custom [useless &] artificial danger
his manly and laudable & manly exercises, the respective innocent occupations of the first/one of the gentry & the second The other of the yeomanry of this real
useful to them individuals as supplying an unexhausted fund of innocent entertainment [useful
to them] as cherishing that rigor of mind as well as body, which is constitutes one of its most valuable
endowments; useful to the State, as making up for it a breed of expert alert & hardy defenders.
Many a gallant Gentleman little thinks. that should he by one of those unforeseen Accidents the peril which
a man must every day encounter under the penalty of perpetual Slumber, be unhappy unwilling instrument
of the Death of a his companion, the Law has provided stored up him with Beggary as a
for his sorrow. — I shall hereafter have but too much occasion to observe, how often by affirmative
for frigid conformity & repose, the Law has been led to encroach on the affection of liberties & that pleasure of the common people
If he have one such misfortune in his life, he must be a Beggar
if he have two of them, he must die.
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