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.

"It is true, we may repeat to ourselves, in alleviation of this poor
man's unhappy action, that his case is a very peculiar one. The country
which he inhabits was, in the days of many now alive, inaccessible
to the laws, not only of England, which have not even yet penetrated
thither, but to those to which our neighbours of Scot