"Gentlemen, as to the laws my brother talks of, they may be known in the bull-ring, or the bear-garden, or the cock-pit, but they are not known here. Or, if they should be so far admitted as furnishing a species of proof that no malice was intended in this sort of combat, from which fatal accidents do sometimes arise, it can only be so admitted when both parties are IN PARI CASU, equally acquainted with, and equally willing to refer themselves to, that species of arbitrament. But will it be contended that a man of superior rank and education is to be subjected, or is obliged to subject himself, to this coarse and brutal strife, perhaps in opposition to a younger, stronger, or more skilful opponent? Certainly even the pugilistic code, if founded upon the fair play of Merry Old England, as my brother alleges it to be, can contain nothing so preposterous. And, gentlemen of the jury, if the laws would support an English gentleman, wearing, we will suppose, his sword, in defending himself by force against a violent personal aggression of the nature offered to this prisoner, they will not less protect a foreigner and a stranger, involved in the same unpleasing circumstances. If, therefore, gentlemen of the jury, when thus pressed by a VIS MAJOR, the object of obloquy to a whole company, and of direct violence from one at least, and, as he might reasonably apprehend, from more, the panel had produced the weapon which his countrymen, as we are informed, generally carry about their persons, and the same unhappy circumstance had ensued which you have heard detailed in evidence, I could not in my conscience have asked from you a verdict of murder. The prisoner's personal defence might indeed, even in that case, have gone more or less beyond the MODERAMEN INCULPATAE TUTELAE, spoken of by lawyers; but the punishment incurred would have been that of manslaughter, not of murder. I beg leave to add that I should have thought this milder species of charge was demanded in the case supposed, notwithstanding the statute of James I. cap. 8, which takes the case of slaughter by stabbing with a short weapon, even without MALICE PREPENSE, out of the benefit of clergy. For this statute of stabbing, as it is termed, arose out of a temporary cause; and as the real guilt is the same, whether the slaughter be committed by the dagger, or by sword or pistol, the benignity of the modern law places them all on the same, or nearly the same, footing.
"But, gentlemen of the jury, the pinch of the case lies in the interval of two hours interposed betwixt the reception of the injury and the fatal retaliation. In the heat of affray and CHAUDE MELEE, law, compassionating the infirmities of humanity, makes allowance for the passions which rule such a stormy moment --for the sense of present pain, for the apprehension of further injury, for the difficulty of ascertaining with due accuracy the precise degree of violence which is necessary to protect the person of the individual, without annoying or injuring the assailant more than is absolutely necessary. But the time necessary to walk twelve miles, however speedily performed, was an interval sufficient for the prisoner to have recollected himself; and the violence with which he carried his purpose into effect, with so many circumstances of deliberate determination, could neither be induced by the passion of anger, nor that of fear. It was the purpose and the act of predetermined revenge, for which law neither can, will, nor ought to have sympathy or allowance.
