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B. - John Adams, The Works of John Adams, vol. 2 (Diary, Notes of Debates, Autobiography) 
The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Vol. 2.
Part of: The Works of John Adams, 10 vols.
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The following abstract, taken from one of Mr. Adams’s note books, in addition to the interest attaching to the cause itself, may serve as a specimen of his manner of getting up his cases for argument:—
Case of Michael Corbet and others, charged with the murder of Lieutenant Panton, on the high seas.
28 Hen. VIII. c. 15. “For Pirates.” “Where traitors, pirates, thieves, robbers, murderers and confederates upon the sea, many times escaped unpunished, because the trial of their offences hath heretofore been ordered, judged, and determined before the Admiral, or his Lieutenant or Commissary, after the course of the civil laws, the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly confess their offences, (which they will never do without torture or pains,) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, &c. for reformation whereof, be it enacted, That all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or upon the sea, or in any other haven, river, creek, or place, where the Admiral or Admirals have or pretend to have the jurisdiction, authority, or power, shall be inquired, tried, heard, determined, and judged, in such shires and places in the realm as shall be limited by the King’s commission, &c., as if the offence had been done upon the land, &c. after the common course of the laws of this realm.”
“Sect. 2. To inquire by the oaths of twelve good and lawful men, &c. in the shire limited in the commission.”
11 & 12 William III. c. 7. An Act for the more effectual suppression of piracy.
“All piracies, felonies, and robberies, committed in or upon the sea, or in any haven, river, creek, or place, where the Admiral or Admirals have power, authority, or jurisdiction, may be examined, inquired of, tried, heard, determined, and adjudged, in any place at sea, or upon the land, in any of his Majesty’s Islands, Plantations, Colonies, dominions, forts, or factories, to be appointed for that purpose by the King’s commission, &c. under the great seal of England, or the seal of the Admiralty of England, directed to all or any of the Admirals, Vice-Admirals, Rear-Admirals, Judges of Vice-Admiralties, or commanders of any of his Majesty’s ships of war, and also to all or any such person or persons as his majesty shall please to appoint, &c. which said commissioners shall have full power, jointly or severally, by warrant under the hand and seal of them, or any one of them, to commit to safe custody any person, &c. against whom information of piracy, robbery, or felony, upon the sea, shall be given upon oath, &c. and to call and assemble a Court of Admiralty, on shipboard, or upon the land, &c. and such persons so assembled shall have full authority, according to the course of the admiralty, to issue warrants for bringing any persons accused of piracy or robbery, before them to be tried, &c. to summon and examine witnesses, &c. and to do all things necessary for the hearing and final determination of any case of piracy, robbery, and felony; and to give sentence and judgment of death, and to award execution, according to the civil law and the methods and rules of the admiralty.”
This statute is the foundation of the special commission, and of the present proceedings, and upon it a question has been made by Mr. Otis, whether the prisoners have not a right to a jury? He says that Magna Charta, in a case of life at least, must be expressly repealed, not by implication or construction only; and that in England a jury is summoned every day for the trial of such offences committed at sea. But I think that the statute of 28 Henry VIII. before cited, explains this difficulty; and this case seems to be but one instance among many others of the partial distinctions made between British subjects at home and abroad. The civil law, the course of the admiralty, and the methods and rules of the admiralty, will be construed, to take away the benefit of a jury.
[1 Mr. Otis, from his first retainer in the cause, has been very sanguine to move for a jury. He has mentioned his resolution in all companies, and last week, at Plymouth, he mentioned it to the Lieutenant-Governor, and the rest of the judges. Mr. Fitch, happening to hear of our design to move for a jury, went to rummaging up Acts of Parliament, to satisfy himself, and found the 4 of George, c. 11: An act for the further preventing of robbery, &c. and for declaring the law upon some points relating to pirates. In the seventh section of this statute, “It is hereby declared, that all and every person and persons, who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed, and taken to be pirates, felons, or robbers, by an act made in the Parliament holden in the 11 & 12 years of William III. intituled ‘An Act for the more effectual suppression of piracy,’ may be tried and judged for every such offence, in such manner and form as in and by an act 28 Henry VIII. is directed and appointed for the trial of pirates.” This statute, Fitch discovered to Sewall, and Sewall showed it to the Governor and Lieutenant-Governor and the rest of the court, the first morning of the court’s sitting, in the council chamber. They were all struck and surprized, and the Lieutenant-Governor observed that this statute cleared up what had always to him appeared a mystery. In the State trials, vol. 6, 156, the trial of Stede Bonnet, before Judge Trott, at Carolina, 1718, 5 George I., it being the next year after the statute, Bonnet had a grand and petit jury.
In the council chamber, the court, however, agreed that they would go into the Court House, and take the oaths, &c. and then the court would publicly propose a jury. This was done, and the Statutes 28 Henry VIII. 11 & 12 William III. and 4 George I. were read, and then the commission, &c.; and then the Governor proposed to adjourn the court to Thursday, and to hear counsel this afternoon, in the council chamber, upon the subject of a jury.
In the afternoon we accordingly attended, and a difficulty was started by the Lieutenant-Governor about the venires, whether they should be directed to the sheriff, to summon a jury, as in England, or whether the venires should issue in any manner analogous to the laws of this Province relative to this subject? In the afternoon we had the argument, and the whole court seemed convinced that a jury must be had. The Governor, indeed, talked that they might be sent to England for trial, &c.
But the next morning, when Mr. Otis was to have prepared and produced a venire facias to the sheriff to return a jury, we found all aback. The whole court, advocate-general Mr. Sewall, and Mr. Fitch, all of opinion that we had been all wrong, and that a jury could not be had. The Lieutenant-Governor had, in the course of his lucubrations, discovered this great secret, that, by law, two ways of trial are pointed out and provided, one by 28 Henry VIII., the other by 11 & 12 of William III., and that his Majesty may grant a commission in pursuance of either. That this commission was expressly limited to 11 & 12 William III., and therefore could not proceed according to 28 Henry VIII.]
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 Lieutenant Panton acted as an impress officer, Michael Corbet 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 lie at his own door, and they be held guiltless. Nay, I think that impresses may be allowed to be legal, and yet Corbet 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 officer’s 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 favor of it. It is found in the commissions of the admiralty, and in warrants from the admiralty, but nowhere 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 Anne, c. 37, s. 9. “No mariner or other person, who shall serve on board, or be retained to serve on board any privateer or trading ship or vessel, that shall be employed 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 Majesty’s ships of war, empowered by the Lord-High-Admiral, or any other person whatsoever, unless such mariner shall have deserted, &c. 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 vessel, 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 Majesty’s 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 vessel, in any part of America, shall be liable to be impressed, or shall be impressed, by any officer, empowered by the Lord-Admiral or any other person. If, therefore, this statute is now in force, all that Lieutenant Panton did on board the vessel was tortious and illegal; he was a trespasser from the beginning; a trespasser in coming on board, and in every act that he did, until he received the mortal, fatal wound. He was a trespasser in going down below, but especially in firing a pistol among the men in the fore peak. It is said that the Lieutenant with his own hand discharged this pistol directly at Michael Corbet, 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 piracy, and Corbet 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 pistol was discharged, and wounded Corbet in his cheek, with powder, before the fatal blow was struck. What could Corbet expect? Should he stand still and be shot, or should he have surrendered to a pirate? Should he have surrendered to the impress?
But it has been made a question, whether this statute of 6 Anne 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 Anne. 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 be. 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 color 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, 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 encouraged, 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 Majesty’s kingdom of Great Britain, to and in the several parts of America.” 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 sixty years, and I hope will last a thousand longer.
3. For the increase of shipping and of seamen, for the purposes mentioned before in the preamble, is another end of this law. Now shipping and seamen are useful 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. Sections 2, 3, 4, 5, 6, 7, 8, &c.; others are expressly limited to the continuance of war, as s. 14, “during the continuance of the present war,” and s. 19, “during the continuance thereof,” and s. 21. But s. 9 and s. 20 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 be 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?
If it be once established as a fact that Lieutenant Panton acted in the character of an impress-officer, not in that of an officer of the customs; and if it be also established as law, that no officer has a legal right to impress a seaman, our next inquiry must be, what the rules of the civil law are relative to homicide in cases of self-defence. Self-preservation is the first law of nature. Self-love is the strongest principle in our breasts, and self-preservation not only our inalienable 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, s. 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.”
Wood’s Inst. civil 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 at all. But this ought not to exceed the bounds of self-defence. The manner of self-defence directs that you should not kill, if you can by any means escape, &c.”
Cod. lib. 9, tit. 16. “2. De eo, qui salutem suam defendit. Is qui aggressorem vel quemcunque alium in dubio vitæ 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 propriæ salutis in nullo peccasse videtur. 4. Si (ut allegas) latrocinantem peremisti: dubium non est, eum, qui inferendæ cædis voluntate præcesserat, jure cæsum videri.”
“Liceat cuilibet aggressorem nocturnum in agris, vel obsidentem vias, atque insidiantem prætereuntibus, impunè occidere, etiam si miles sit: melius namque est his occurrere et mederi, quàm injuriâ receptâ vindictam perquirere.”
Note 4c. “Homicida non est, qui aggressorem in vitæ discrimine constitutus interficit, nec primum ictum quis expectare debet, quia irreparabilis esse potest.”
Gaill. page 509. Pœna 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, etc.; et hoc usque adeo verum est, ut etiam lata culpa non æquiparetur dolo, etc. Dolus autem non præsumitur regulariter, etc.;—quapropter dolum allegans, eum probare debet, etc. Natura enim bona est a suis principiis, etc. Ex hac principali regulâ, quod videlicet pœna ordinaria in homicidio requirat dolum, multa singularia et quotidie usu venientia inferri possunt. Et primo, quod homicidium, cum moderamine inculpatæ tutelæ commissum, non sit punibile: puta, si quis provocatus se cum moderamine inculpatæ tutelæ defendat, et aggressorem occidat; talis enim homicida non puniri, sed plene absolvi debet, idque triplici ratione confirmatur. Primo, quod defensio sit juris naturalis, ab omni jure permissa, etc. Deinde, quod aggressor, sive provocans, non ab alio, sed a se ipso 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 pœna abesse debet.
Et regulariter ex communi opinione, aggressus præsumitur omnia facere ad sui defensionem, non autem ad vindictam. Necessitas doli præsumptionem excludit, etc. etc. Ratio, quia necessaria defensio omni jure, etiam divino permissa, et sine peccato est. Defensio autem moderata, sive cum moderamine inculpatæ tutelæ dicitur, quando quis non potuit aliter se ab offensione tueri, etc.
Præsumitur autem in discrimine vitæ quis constitutus, eo ipso quod ab alio, armata manu, et gladio evaginato aggreditur, terror ille armorum aliquem in vitæ discrimen adducit, etc.
Sed quid si provocatus modum inculpatæ tutelæ excedat, et aggressorem in fugâ occidat, an pœnâ ordinariâ legis Corneliæ, etc., plectendus sit? Minime, sed extra ordinem, judicis arbitrio, ratione excessus puniri debet, etc. Ratio, quia, ut paulo ante dictum, in provocato non præsumitur dolus, et animus occidendi, aut vindictæ studium, sed potius defensionis necessitas. Nec etiam fugere tenetur, si fuga ei periculum vitæ adferret; provocatus enim tanquam intenso dolore commotus, non est in plenitudine intellectus: metus improvisus instantis periculi tollit rectum judicium et consilium deliberandi, et ideo dicunt DD. quod provocatus non habeat stateram in manu, ut possit dare ictus et vulnera ad mensuram, etc. Puniendus igitur provocatus pro isto excessu, non ut dolosus, quia provocatio præcedens a dolo excusat; sed ut culpabilis, etc.
Adeo autem defensio favorabilis est, ut etiam tertius, puta amicus provocati, si intercedendo aggressorem occidat, excusetur a pœnâ ordinariâ.
Page 515. Sexto infertur, quod homicidium calore iracundiæ perpetratum non puniatur pœnâ ordinariâ: quod est intelligendum de iracundiâ lacessitâ, quando quis ab alio verbis injuriosis ad iram provocatur; nam eo casu ira excusat a pœna ordinaria, etc. Quo pertinet, quod supra dictum est, hominem intenso dolore permotum, non esse in plenitudine intellectus, etc.
Maranta, page 49, pars 4, dist. 1, 77. Hoc patet; quia homicidium commissium per culpam, dicitur crimen extraordinarium, et punitur pœnâ arbitraria, etc. Ubi si maritus occidit uxorem deprehensam in adulterio, non punitur pœnâ mortis sed alia pœnâ corporali mitiori; et ratio est; quia tale homicidium dicitur culposum, et non dolosum; ex quo difficile fuit temperare justum dolorem: cum ergo ex prædictis appareat, quod homicidium culpa commissum puniatur pœnâ arbitraria et extraordinaria, sequitur de necessitate, quod non potest judex imponere pœnam mortis, quæ est pœna ordinaria, etc.
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. 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 entitled to an honorable 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, pistols, &c.; their threats and menaces. Panton’s orders for more men, his orders to break down the bulkhead, their execution of these orders, their fetching the adze and the crow, but above all their discharge of a pistol right in the face of Corbet, which, though loaded only with powder, wounded him so badly in his lip—these circumstances are abundantly sufficient to show who was the first aggressor, and to show that the lives of the present prisoners were in danger. What could Corbet 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 saw a desperate gang of armed sailors before him, other pistols cocked and presented at him and his companions, their heads and breasts, drawn swords in the hands of some, continued 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 Lieutenant Panton, but to have darted an harpoon, a dagger, through 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 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 Lieutenant Panton was justifiable homicide; homicide se defendendo.
1 Hawkins, 71, s. 4, 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 authorized by the law to arm himself for the purposes aforesaid.”
Same page, s. 21. A woman kills one who attempts to ravish her, may be justified. Page 72, s. 23. towards the end. “It seems that a private person, and a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from, or to suppress dangerous rioters, may justify the fact, inasmuch as he only does his duty in aid of the public justice.” s. 24. “I can see no reason why a person, who, without provocation, is assaulted by another in any place whatever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, may not justify killing such an assailant.” Page 75, s. 14. “Not only he who on an assault retreats to a wall or some such strait, 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 endangering his life, kills the other without retreating at all.”
Kelyng, 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 who 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.”
Kelyng, page 136, top. Buckner’s case. Imprisoned injuriously, without process of law, &c. Page 136, bottom. “3. If a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain, &c. &c., others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter.”
Kelyng, 59. Hopkin Hugget’s case, who killed a man in attempting to rescue a seaman impressed without warrant.
2 Ld. Raym., Queen vs. Tooley, & als. The case of the reforming constables. Holt, 484, 485. Mawgridge’s case.
Foster, 312, 316. Vid. Foster, 292. The smart, &c. for manslaughter. Also 296.
A question has been started by Sir Francis Barnard, 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; that is, 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.
In this case I shall not make a question whether Corbet 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 shown 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 civil law, as appears abundantly already.1 2. I say that clergy is not expressly taken away by the statutes from manslaughter; by the 28 Henry VIII., all felonies are to be tried 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 statutes of Henry VIII. c. 15, s. 2. “Every indictment found, &c. of treasons, felonies, robberies, murders, manslaughters, or such other offences, &c. that then such order, &c. judgment and execution shall be had, as against such offences upon land.” What is the judgment versus manslaughter upon land? They have their clergy. s. 3. For treasons, robberies, felonies, murders 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 & 12 William III. Piracies, felonies, and robberies, are mentioned, but manslaughter is not. The word is not in the whole statute. It was needful to mention it in that of Henry VIII., because the trial was to be by the law of the land, and it clearly has its clergy. But, by this statute, the trial 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 George, c. 11, s. 7. Any pirate, felon or robber, within the 11 & 12 William, may be tried in the manner and form of 28 Henry VIII., and shall be excluded clergy. We see that whenever the trial is to be by a jury and the common law, clergy is excluded from such crimes as were not entitled 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 entitled 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 entitled to clergy. To avoid this, the clause was inserted.
Lord Raymond, 1496. “From these cases it appears, that, though the law of England is so far peculiarly favorable (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 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 man’s life is; yet, in those cases, it must be such a passion, as for the time deprived him of his reasoning faculties.”
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 practised at an admiralty sessions, under 28 Henry VIII., with regard to offences not ousted of clergy by particular statutes, which, had they been committed at land, would have been entitled 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 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. The Scots, therefore, might have apprehended, that if not convicted of murder they should have been acquitted.”
[1 ]This portion of narrative, marked in brackets seems to have been afterwards appended, by way of note to the proceedings in the case.
[1 ]Sed vid. Ld. Raymond, 1496. And especially Barrington’s Observations on the Statutes, p. 54, bottom, note. “By the law of Scotland, there is no such thing as manslaughter, nor by the civil law; and then a criminal indicted for murder, under the statute of Henry VIII., when the Judges proceed by the rules of the civil law, must either be found guilty of the murder or acquitted.”