R v Mawgridge
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1708 |
| Date | 01 January 1708 |
| Court | Court of the Queen's Bench |
English Reports Citation: 84 E.R. 1107
IN THE QUEEN'S BENCH.
[119] term. hil. 5 ann.e regime. 1^3 i ". ci.c../h.^a". regina versus mawgridge. in the queen's bench. Holt, 484. 9 St. Tr. 61, S. C. At the sessions of the peace held at Guildhall, London, on the first of July, in the fifth year of the Queen, John Mawgridge, of London, gent, was indicted, for that on the seventh of June, in the same year, he did feloniously, voluntarily, and of his (1) Sum. (2) Sum. (3) 3 Inst. 1108 REGINA V. MAWGRIDGB KE1YNQ, J. 120. malice forethought, make an assault upon William Cope, gent, and with a sword on the left part of his breast, near the left pap, did him strike and pierce, giving him thereby a mortal wound, of which he the said William Cope did instantly die. Which indictment being delivered to the justices of goal delivery of Newgate, he was arraigned thereupon, and pleaded not guilty. [120] The Jury found this Special Verdict. That William Cope vms Lieutenant of the Queen's Guards in the Tower, and the principal officer then commanding there, and was then upon the guard in the guard room; and that John Mawgridge was then and there, by the invitation of Mr. Cope, in company with the said William Cope, and with a certain woman of Mr. Cope's acquaintance, which woman Mawgridgt did then affront, and angry words passed between them in the room, in the presence of Mr. Cope and other persons there present, and Mawgridge there did threaten the woman; Mr. Cope did thereupon desire Mawgridge to forbear such usage of the woman, saying that he must protect the woman; thereupon Mawgridge did continue the reproachful language to the woman, an/I demanded satisfaction of Mr. Cope, to the intent to provoke him to Jight; thereupon Mr. Cope told him it was not a convenient place to give him satisfaction, but at another time and place he would be ready to give it to him, and in the mean time desired him to be mare, civil, or to leave the company; thereupon John Mawgridge rose up, and was going out of the room ; and so going, did suddenly snatch up a glass bottle full of wine, then standing upon the table, and violently threw it at him the said Mr. Cope, and therewith struck him upon the head, and immediately thereupon, witimit any intermission, drew his sword, and thrust him into the left part of his breast, over the arm of one Robert Martin, notwithstanding the endeavour used by the said Martin to hinder Mawgridge from falling Mr. Cope, and gave Mr. Cope the wound in the indictment jnentioned, whereof he instantly died. But the jury do further say, that immediately, in a little space of time, between Mawgridge's drawing his sword and the giving the mortal wound by him, Mr. Cope did arise from his chair where he sate, and took another bottle that then stood upon the table, and threw it at Mawgridge, which did hit and break his head ; that Mr. Cope had no sword in his hand drawn all the while; and that after Mawgridge had thrown the buttle, [121] Mr. Cope spake not. And whether this be murder or manslaughter, the jury pray the ad-vice of the Court. A day being appointed for the resolution of the Court, and the marshal required to bring the prisoner to the Bar, returned he was escaped; which being recorded, the Chief Justice gave the opinion of the Judges in this manner: This record being removed into this Court, the case hath been argued before all the Judges; and all of us, except my Lord Chief Justice Trevor, are of opinion that Mawgridge is guilty of murder. This hath been a case of great expectation. This distinction between murder and manslaughter only, is occasioned by the statute of 23 H. 8 and other statutes that took away the benefit of clergy from murder committed by malice prepensed, which statutes have been the occasion of many nice speculations. The word MURDER is known to be a term or a description of homicide committed in the worst manner, which is no where used but in this island, and is a word framed by our Saxon ancestors in the reign of Canutus upon a particular occasion, which appears by an uncontested authority, Lamb. 141.(1) In the laws of Edward the Confessor: Murdra quhlem inventa fuerunt in diebus Canuti Regis, qui post acquisitam AngUam & pacificatam, rogatu baronum Anglue remisit in Daciam exercitum mum. Thereupon a law was made, That if any Englishman should kill any of the Danes that he had left behind, if he were apprehended, he should be bound to undergo the ordeal trial to dear himself; and if the murderer were not found within eight days, and after that a month was given, then if he could not be found, the ville should pay forty-six marks, which if not able to pay, it should be levied upon the hundred. Bracton 120 agrees with this account. [122] Though this law ceased upon the expulsion of the Danes, yet William the (1) 237 in other editions. KELTOG, J. 123. REGINA V. MAWGRIDGE 1109 Conqueror revived it for the security of his Normans, as appears by his laws, after he had confirmed King Edward the Confessor's laws. And Henry I. anno primo Regni, afterwards by his law (as appears in the addition to Lambert) establishes, That if a man be found slain, he should be taken to be a Frenchman if it was not proved that he was an Englishman, and the country was bound to enquire whether the person slain was an Englishman or a French-man. These inquisitions were taken before the coroner, and returned to the justices in eyre, and if the jury found him an Englishman, then the country was to be discharged, which law was called Englishire, and the justices in eyre were also bound to enquire thereof, until the statute of 14 E. 3, which, as it is mentioned in Stamford, was abolished. Hereby a mistake upon the Statute of Marlebridge is rectified, which is cap. 26. Murdrum de ccetero nan adjudicetur cm-am justiciaries, ubi per infortuniurn tantummodo adjudicatwm est, sed locum habeat murdrum de interfectis per fdon.ia.rn tantuni, & non aliter. This was not made upon a supposition that he that killed the person slain by misfortune should be hanged, but only to explain, or rather to take oft' the rigor of the Conqueror's law, that the country should not be compelled to find out the manslayer; or if he were found out, he should not undergo the penalty of that law. For as the law stood, or was interpreted before that statute, if a man was found to be slain, it was always intended. 1. That he was a Frenchman. 2. That he was killed by an Englishman. 3. That killing was murder. 4. If any one was apprehended to be the murderer, he was to be tried by fire and water, though he killed him by misfortune; which was extended beyond reason and justice in favour of the Normans: but if an Englishman was killed by misfortune, he that killed him was not in danger of death, because it was not felony. For, saith Bracton (who wrote the latter-end of H. 3) fo. 136, [123] He that killed a man by misfortune ioas to be discharged. 5. If the malefactor was not taken, then the country was to be amerced. But by the Statute of Marlebridge, if it was known that the person slain was a Frenchman, and was killed by misfortune, then the country should not be amerced if the manslayer was not taken, or if he were taken, he should not be put to his ordeal trial. This seems to be the true meaning of that statute. But, secondly, it will appear to a demonstration, that before that statute, he that killed an Englishman...
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