Thursday, November 6, 2008


At Reason, Commerce, Justice & Free Beer, we believe in the rule of law. In America, the rule of law derives from the sensible dictates of the English common law. At common law, wise judges listened closely to everyday facts and used those facts to create practical rules for all who followed. Common law represents a prudent approach to disputes. It reinforces our expectations through rules based upon experience. For example, if a person acts carelessly and injures someone, we expect the common law to create a rule that blames the careless person. Experience tells us that carelessness leads to injury, and legal rules should conform to common experience. The same holds true for legal rules dealing with contracts, commerce, crimes and business. Here at Reason, Commerce, Justice & Free Beer, we salute our legal system. And we salute the common law.

Today, we would like to teach a brief history lesson about the rule of law. In criminal cases, the common law says that a person commits murder if a victim dies in the course and in furtherance of a felony, even if the killer did not intend to kill the victim. This is called the “felony murder rule.” That may seem prudent to us in theory, but at common law, the rule had to come from original facts. Below, we print an essential case from our English forebears in which we see the genius of the common law at work. In the case, we see both clarity and wisdom. And we see the origins of cogent rules that still guide us today.

Cloverton v. Rex (Court of King’s Bench 1676) – Hear’d upon the Augustine Session in the Yeare of our Blessed Lorde, Christ Jesus, anno Domini 1676. It being averr’d by one Cloverton, of Salisbury, anon., that he being in Trespasse upon the Lande of Lorde Fenwick, Dorchester, then possessing a Piece, namely a Muskete. The said Cloverton, wishing in his Hearte to poach a Deere on the said Lorde Fenwicke’s Lande, without Authoritie or Coloure of Righte, did discharge and make Lighte to said Piece, or Muskete, having took Aime at a Deere not belonging to Him Selfe, et & c. But the said Cloverton, intending in his Hearte onely to kill the Deere at which he didst aime, did not see George Stanwell, of Kente-Towne, servant, et al., to his Lordeshipe, Fenwicke, as aforesaid. That upon the Discharge of said Piece, or Muskete, and upon the Fire thereof, the Deere didst give Flight, the Ball having thus missed. But the Ball having thus missed the Deere, it didst strike the aforesaid Stanwell, he having not been seen at the time whereat said Muskete didst give Fire & Light, et & c. That the said Cloverton, upon Notice thereof, did take Frighte, not having intended to do Hurte to the said Stanwell, he crying out. Cloverton whereupon, having cognized his Error & Wrong, didst withal Haste to the Manor of his Lordeshipe, Fenwicke, as aforesaid, sic, confessing that, without Minde, he hadst Discharg’d his Piece and struck the said servant Stanwell, of Kente-Towne. That, knowing he be a Trespasser and Poacher upon the Lande of his Lordeshipe, he yet be no Murtherer, et & c., et & c. Whereupon the Constable, Mourney, upon Notice thereof, didst to the fallene Stanwell with due Haste, Time being of the Essence herein. But upon Arrival the said Stanwell, not having well borne the Hurte, already had died. Whereupon the said Constable, Mourney, upon Notice and Cause, didst take the said Cloverton to Fenwicke Gaole, he now standing accused of Murther. Ettingham, Lorde Justice: “Methinks it be a clear Case. The accused Cloverton, an admitted Trespasser and Felone, didst attempte with clear Minde to shoot a Deere not belonging to Him Selfe. Now, it being laid down before many Moones in the Case of Cartwrighte v. Jacob, in the reign of Rex Henry, the VIII, that a Trespasser & Poacher, being a Felone, must suffer the ill effects thereof, be they not foreseen to Him Selfe. This Cloverton, too, be a Trespasser & Poacher, without Authoritie or Coloure of Righte to be upon the Lande of Fenwicke, Lorde. According to the Lawe and Reason aforementioned in Cartwrighte, he too must suffer the ill effects of his felonious Entry, be they foreseen to Him Selfe or not. In the eye of the Lawe, my Brethren, the Hearte & Minde have not always Bearinge upon the Result. Methink it cleare, on all the Witnesses & Evidences, and upon the Confessione of the said Cloverton Him Selfe, that he didst commit Trespasse & Felony at the time he didst discharge his Muskete, et al. The said Cloverton saith, he hath no ill Minde, but that be of no Momente. Murther be the killing of another Manne with Malice aforethought. But Malice doth exist in the Minde of a Felone, wish he or not to kill. In Wordes of Lorde Chief Justice Lanham, ‘Ought we to set free a Robber who, in his Flighte, doth throw his Blade blind awry, killing some unknown Soule, notwithstanding he have no Minde to kill? It be enough that he throw his Blade blind with the Minde of a Felone while doing a Felony. That it Selfe be Murther, no matter what the accused doth say,’ et & c. And in Wordes of Lorde Justice Meade in the Case of Rex v. James, et al., decided in the reign of our first King Charles, “What of it, he saith he hath no Minde to kill? The Evidences doth show him a Rapiste and Felone. This said James, while doing the Rape, and in Efforte to conceal same, didst cause such a Frighte and Starrte to the passed Mary Dolbrighte, that she didst die, et & c. His Felony didst cause Death and that be enough to make it Malice at Lawe, say he what he will. The Lawe careth not for the Minde, but for what wee see.’ Here the accused Cloverton saith he have no ill Minde, he not foreseeing the Presence of the servant when he did give Light & Fire to his Piece. But that have no Momente in Lawe, as the learned Authorities rightly shew. The Evidences & Witnesses, deposed, shew him a Felon, and his Felony, namely, Trespassing & Poaching, hath caused the Death of the aforesaid Stanwell. That be Malice in Lawe, and that be enough to call him a Murtherer.” Cockwell, Lorde Justice: “The Lawe hath no Hearte for a Trespasser & Poacher. Take a Trespasser a Shotte from his Piece upon Lande not his, take he too the Risque, that such Shotte might take a Life. I agree with the Authorities cited by my Brother Lorde Ettingham. The Minde of a Felon be relevant onely insofar it shew that he hath committed a Felony, there leading to Death. The actual Object of the Felon signifieth No Thing to the Lawe. What of a Felon? Wherefore should the Lawe credit a Felon’s excuse? The Lawe must act to stoppe Felony, not give them Comforte, et & c. Thus it be a sound Rule when we make a Felon an Murtherer, when his Mischiefe, though without Minde to, doth kill.” Burrington, Lorde Chief Justice: “It be cleare enough from the Lawe, and my learned Brethren, that a Felon who doth practice Mischiefe taketh the Risque that such felonious Mischiefe might cause Death. The Lawe hath no Patience for a Felon, no matter his Hearte. It be the Minde of the Lawe to make all Felony ill in the Eye of the People. The King our Lorde hath made certain acts Felony for goode Reason, et & c, namely to put goode Ende to Uproars, Riottes, Tumults, Sundrances, Grievous Hurtes & Ills among Menne. Let any Manne felon at his Peril, for the Lawe knoweth no Splitte atween him with a Minde to kill a Manne, and him who doth felon and cause a Manne’s Death, though he have no Minde therefor.” Guilty. Murther. Hanged forthwith at Tyburn, anno Domini 1676. God save the King and the Lawe.

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