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
inculpat
tutel_, 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.
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