Paines Autho[rities].
Foster 278. Plea of self Defense. Nailors Case.2
290.3 291. §2. Slight provocation and ——. Instances in Illustration.4
295. A uses provoking Language. &c.5
298.6
Ld. Ray. 1489. Oneby’s Case.7
1 Hawk. 73 page. §25.8 Foster 296. §4.9
Har [Thus in MS.]
1. H.H.P.C. 485. 486.10 Cokes Case Cro. Car. description begins George Croke, Reports of Cases in King’s Bench and Common Bench, Part 3, Charles, London, 1657. description ends 538.11
2. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 278, discusses Reg. v. Nailor (unreported) (Old Bailey 1704): Drunken son fights with father; second son floors inebriate, who stabs second son to death. Held (after conference, by all the judges of England): Manslaughter. “For there did not appear to be any Inevitable Necessity so as to Excuse the Killing in this Manner,” because “The Deceased did not appear to aim at the Prisoner’s Life, but rather to Chastise Him for his Misbehaviour and Insolence towards his Father.”
3. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 290: “Words of Reproach, how grievous soever, are not a Provocation sufficient to free the Party Killing from the Guilt of Murder. Nor indecent provoking Actions or Gestures expressive of Contempt or Reproach, without an Assault upon the Person.”
4. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to kill, or to do some great bodily Harm, such Homicide will be Murder.” The author then sets out “a few Instances,” which Paine presumably alluded to.
5. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 295. See note 11 above.
6. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 298, discusses exceptions to the Statute of Stabbing. See note 5 above.
7. Rex v. Oneby, 2 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 1485, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 465 (K.B. 1727).
8. 1 Hawkins, Pleas of the Crown description begins William Hawkins, A Treatise of the Pleas of the Crown, 4th edn., London, 1762; 2 vols. description ends 73, §25: “[I]n all these Cases, there ought to be a Distinction between an Assault in the Highway and an Assault in a Town; for in the first Case it is said, That the Person assaulted may justify killing the other without giving back at all: But that in the second Case, he ought to retreat as faras he can without apparently hazarding his Life, in respect of the Probability of getting Assistance.”
9. Foster, Crown Cases description begins Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases. To Which are Added Discourses upon a few Branches of the Crown Law, Oxford, 1762. description ends 296: In every “Case of Homicide upon Provocation how great soever it be, if there is sufficient Time for Passion to subside, and for Reason to interpose, such Homicide will be Murder.”
10. 1 Hale, Pleas of the Crown description begins Matthew Hale, Historia Placitorum Coronse: The History of the Pleas of the Crown, London, 1736; 2 vols. description ends 485–486, discusses the law of self-defense.
