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to be gotten by it, & that in all cases the subject relations of the deceased would commonly want a motive from not finding
unvoluntary slayer's a proper object of revenge.
[It is curious to observe with what unconcern Lawyers Lawyer Sr Edw. Coke will wade through this march on through passages
of doubt and difficulty — distrust beyond measure at the thoughts of going alone, the least
shred of authority will however serve them by way of binding-string. It is from this
quotation passages of Bracton & such as the reader has seen quoted, & nothing more that Sr Edw. Coke has
formed deduced the lumping and atrocious proposition "If the act be unlawful it is
Murder. He who is at every turn introducing applying well or ill in season & out of season passages as well as out of those other
Authors as out of this, might if his hard heart little accustomed to be affected by
which would starth the humanity of another, or weak judgment had put him upon
the enquiry. have found that in either or at least in the latter of the two other
passages which would have put a much more precise negative, on his proposition than the passage
he has resorted to does the an affirmative.
To look at his margin, a reader would be apt to suppose the position better of his sanctions authority
by decisions: but it is only in two out of the three the general rule that concerning the exemption it is
so sanctioned, & not had the position which forms an exception to that rule, & which is that
the sheer product as a late spirited stiled it of his own merciless † + Br. Per. Law p. or of the "merciless fertility" of the
Lawyer's his "genius"]
[To return from this digression,] we shall not therefore be surprized at account of any finding no but one adjudged
case memorable relative to this branch of the topic before us in question in all that period interval meeting with between the
extant on that topic before Edw: 3d & in that reign, & only one other viz: commencement of the History of decisions and those cases of in the reign of H. 7th previous to those cases in the time of Ch. 1st which have been
already observed upon. This is a fragment reformed to preceded in the Year Book of the
of H. 7. [p.23 which consists containing the an opinion of a Lord Ch. J. Fineux [who was
but whether in or out of a Cause or out of a Cause direct or collateral to the point in question, with the concurrence
of his Brethren or without it we are left to conjecture, & which is to this effect contains this a particular
That "if two men play together with Sword & Buckler or just together by agreement
if one kill the other, it shall be called Felony: for although those sports are sufferable
by Law, yet it is not lawful to use them without the King's command — "And it is not
like (says he) contends he to like the case of a Man chafing at a kills some man by a where one happens to kill a man that in shooting of a bat or the
downs a Stone from a House: for it shall be called Felony because striking tho' by
That of 2d H.4.18 is nothing to
the purpose & yet has just relation
enough to let me see that the reference
was not an error of the press
It was an a civil action on the case brought
by a person whose house was burnt down consumed by fire
to against the owner of a house which
it began to obtain a satisfaction in
taking fire
damages — it is there said somebody says in the
course of the pleadings, that if a
man kills another by misfortune
he forfeits his goods — but it is fitting
I conceive that he should have his pardon
of grace which all the Court
agree to
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