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it has no is not in any way connected with the principle by the medium of utility; that principle
which in all new questions even in our strict system of Jurisprudence ought ever & is now usually permitted to decide.
then, as every one knows, it had as yet met with but a very distant & confused attention [+]
[+]
Without regarding which way it
pointed whether in parallelism to or in divergence
from the like of expediency men followed but as
well as they could the track of
Analogy that was before them
These were the materials which Sr Edw. Coke had or might have had before him †
† There is a case in the Y. Books
2 years after this [13 H.7.23]
where on an appeal, putting
out a person's eye by a stroke
aimed at another is adjudged
mayhem. But on appeal of
Mayhem was nothing more than
a particular action of Trespass on the case
in which the cause of action was
perfect enough to separate it
from the common mass, & give
it a title of it's own — the
penalty, just as in trespass other Actions
on the case was pecuniary & remedial
assessed by the Jury under the name
of damages. And in trespass
and actions on the cases voluntary whether the act by which the Deft suffer'd a
neither the involuntariness nor the legality of
or involuntary, legal or illegal
the act was ever a ground of exemplar
never made any difference.
It is not therefore as if in an
appeal of Manslaughter it had
been adjudged Manslaughter.
when he framed that lumping position, so shocking both to himself & to common se understanding
"If the Act be unlawful, it is murder" — ǂ ǂ 3d Inst. 56.
Mayhem We have seen that Bracton's is
only one of the 5 ancient Treatises that by it's expressions equivocal as they are appear
to this conclusion. countenance the Idea that Nullity under these circumstances was felonious, that is obnoxious
to that punishment which was then indiscriminably affixed to those two very different offences
which we now distinguish by the name of manslaughter & Murder. He who is at a
turn introducing in season & out of season passages as well out of those other Authors as
well out of this, might if he had had any thing in his judgment or his heart to put him up
the enquiry, might as we have seen have found that which in two or at least in one of them that which would have put
a much more precise negative to the Idea of it's being felonious, than the passage which
has resorted to does the an affirmative. Negligence in collecting materials & precepetance in judged
a Judgment from them are common: but to justify in forming a conclusion which which into the bread of life it is not
normal to take up with the first alone out of many a number of similar authorities which present the
This we should have to say, of his positive case, But If the act be unlawful act is filing
But in calling it murder, he is absolutely without excuse: and we stand aghast at that appetite
for cruelty ignominity/absurdity seasoned with absurdity inhumanity which to satiate itself end its could pass over overlook what regulation
which were those as well as now still more than now of the most palpable notoriety. He could almost
remember the time when the denomination & penalty of murder punishment of Death which the term Murder refers to is its consequence was at length in express words composed
Act of Parliament which he cites Statute to wilful killing. Thanks be to providency it is not then that Penalty
is now interpreted or pronounced.
One would think by the example he has given, he was afraid men should take into
their Idea of unlawfulness, some sort of distant connection at least with the calamitous
event, & put a sense upon the proposition somewhat less absurd than his own, "
"if A, says continues he meaning to steal a Deer in the park of B, shooteth at the Deer
"by the glance of the arrow hitteth a boy that is hidden in a Bush: this is
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