Amicus Curiae Brief — Cutberto Viramontes, et al., Petitioners v. Cook County, Illinois, et al.
Supreme Court briefAug 31, 2026
Ask Donna
What actually matters in this document.
Text
Nos. 25-238, 25-566
In the
Supreme Court of the United States
CUTBERTO VIRAMONTES, et al.,
Petitioners,
v.
COOK COUNTY, ILLINOIS, et al.,
Respondents.
EDDIE GRANT, JR., et al.,
Petitioners,
v.
RONNELL HIGGINS, IN HIS OFFICIAL CAPACITY
AS COMMISSIONER OF THE CONNECTICUT
DEPARTMENT OF EMERGENCY SERVICES
AND PUBLIC TRANSPORTATION, et al.,
Respondents.
On Writs of Certiorari to the United States Courts
of A ppeals for the Seventh and Second Circuits
AMICUS CURIAE BRIEF OF THE
HAWAII RIFLE ASSOCIATION
IN SUPPORT OF PETITIONERS
A lan A lexander Beck
Counsel of Record
Attorney at Law
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
alan.alexander.beck@gmail.com
Counsel for Petitioners
August 31, 2026
132271
(800) 274-3321 • (800) 359-6859
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .............................................. i
TABLE OF AUTHORITIES....................................... ii
INTEREST OF AMICUS CURIAE............................. 1
SUMMARY OF THE ARGUMENT ............................ 1
ARGUMENT ............................................................... 2
CONCLUSION .......................................................... 29
ii
TABLE OF AUTHORITIES
Cases:
Page
Baron Snigge v. Shirton,
79 E.R. 173 (1607) .................................................. 8
Commonwealth v. Moss,
9 Pa. D. & C. 713 (1927) ...................................... 20
District of Columbia v. Heller,
554 U.S. 570 (2008) ..... 2, 3, 4, 7, 15, 16, 17, 21, 23,
24, 27, 28, 29
English v. State,
35 Tex. 473 (1871) ................................................ 22
Koons v. Att'y Gen. N.J.,
156 F.4th 210 (2025) ............................................ 21
N.Y. State Rifle & Pistol Ass'n v. Bruen,
597 U.S. 1 (2022) .......................... 24, 25, 26, 27, 28
O’Neill v. State,
16 Ala. 65 (1849) .................................................. 21
Respublica v. Montgomery,
1 Yeates 419 (1795) .............................................. 20
Rex v. Sir John Knight,
1 Comb. 38, 90 Eng. Rep. 330 (K.B. 1686) .......... 15
Simpson v. State,
13 Tenn. 356 (1883) ................................. 19, 22, 23
Sir John Knight’s Case,
3 Mod. 117, 87 Eng. Rep. 75 (K.B. 1686) ............ 15
State v. Dawson,
272 N.C. 535 (1968)................................................ 6
State v. Huntley,
3 Iredell 418 (N.C. 1843)...................................... 19
iii
State v. Langford,
10 N.C. 381 (1824)................................................ 22
State v. Lanier,
71 N.C. 288 (1874)................................................ 22
The King v. Oneby,
92 E.R. 465 (Court of the King’s Bench 1727) ...... 7
U.S. v. Miller,
307 U.S. 174 (1939) ................................................ 2
United States v. Hare,
26 F. Cas. 148; 1818 U.S. App. LEXIS 240
(C.C.D. Md. 1818)............................................... 6, 7
United States v. Hemani,
146 S. Ct. 1677 (2026) .......................................... 28
United States v. Mitchell,
2 U.S. 348 (1795) .................................................. 14
United States v. Rahimi,
602 U.S. 680 (2024) .............................................. 28
United States v. Vigol,
2 U.S. 346 (1795) .................................................. 14
Warder v. Arell,
2 Va. 282 (1796) ................................................... 14
Wolford v. Lopez,
146 S. Ct. 2032 (2026) .......................................... 29
Wrenn v. District of Columbia,
864 F.3d 650 (2017)........................................ 15, 16
iv
Statutes & Other Authorities:
1 William Hawkins, A Treatise of the Pleas of the
Crown 135, ch. 63, § 4 (1716), Available at
https://archive.org/details/bim_eighteenthcentury_a-treatise-of-the-pleas-_hawkinswilliam_1771_1/page/136/mode/2up.............. 16, 23
3 Wilson 59 (1804), Available at
https://www.google.com/books/edition/The_Works
_of_the_Honourable_James_Wilson/74s0AAAAM
AAJ?hl=en&gbpv=1&bsq=one%20assault%20anot
her%20 .................................................................. 12
3 Wilson 155 (1804), Available at
https://www.google.com/books/edition/The_Works
_of_the_Honourable_James_Wilson/74s0AAAAM
AAJ?hl=en&gbpv=1&bsq=terrour....................... 13
4 William Blackstone, Commentaries on the
Laws of England ch. 18 (1769), Available at
https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-418 ................ 9, 10
4 William Blackstone, COMMENTARIES ON THE
LAWS OF ENGLAND 148-49 (1769), Available at
https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-411/ ............. 15, 28
1786 Va. Acts 33, Available at
https://firearmslaw.duke.edu/assets/1786-vach.-49-an-act-forbidding-and-punishingaffrays.pdf ........................................................... 26
A Law for the Regulation of Slaves, 1799 Miss.
Terr. Laws 112 (A. Marschalk 1799), Available
at https://firearmslaw.duke.edu/assets/1799,-ms.laws-of-the-mississippi-territory,-1799,-a-law-forthe-regulation-of-slaves.pdf ................................. 10
v
An Universal Etymological Dictionary (R. Ware,
W. Innys and J. Richardson, J. Knapton
(and twelve others)) (1675), Available at
https://archive.org/details/baileyuniversaletymdict2ed/
page/n873/mode/2up ............................................... 11
W. Blackstone, Commentaries on the Laws of
England, bk. 4, ch. 11 (1765–1769), Available at
https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-411/ ........... 7, 8, 21
David Caplan, The Right of the Individual to Bear
Arms: A Recent Judicial Trend, DET. L. C. REV.
789 (1982) (citing Rex v. Knight, 90 Eng. Rep.
330 (K.B. 1686), Available at https://foacillea.org/uploads/law_reviews/CaplanThe%20Individual%20Right%20to%20Arms.pdf .... 15
Cunningham, Timothy, -1789. A New And
Complete Law-dictionary: Or, General
Abridgment of the Law : On a More Extensive
Plan Than Any Law-dictionary Hitherto
Published : Containing Not Only the
Explanation of the Terms, but Also the Law
Itself, Both With Regard to Theory And Practice
: Very Useful to Barristers, Justices of the
Peace, Attornies, Solicitors, & c.. London:
Printed by the Law printers to the King's
Most Excellent Majesty, for S. Crowder,
17641765, Available at
https://babel.hathitrust.org/cgi/pt?id=mdp.3511210
3369031&seq=84 ............................................. 5, 6, 7
J.A.G. Davis, A Treatise on Criminal Law with an
Exposition of the Office and Authority of Justices
of the Peace of Virginia (1838)............................. 21
vi
John A. Dunlap, THE NEW-YORK JUSTICE (1815),
Available at
https://archive.org/details/newyorkjusticeor00
dunliala/page/8/mode/2up?q=cause+terror ........ 16
Ga. Code, div. 10, no. 19 (T. S. Hannon 1821)
(Law Passed 1816), Available at
https://firearmslaw.duke.edu/assets/1816,-ga,a_compilation_of_the_laws_of_the_state,-div.-10,no.-19-1745947360.pdf ......................................... 11
Charles Humphreys, A COMPENDIUM OF THE
COMMON LAW IN FORCE IN KENTUCKY
(1822), Available at
https://play.google.com/books/reader?id=jZRGAQ
AAIAAJ&pg=GBS.PA482&hl=en........................ 17
Giles Jacob, The law-dictionary 149 (P. Bryne 1811
first American from the second London edition)
(1811), Available at
https://babel.hathitrust.org/cgi/pt?id=nyp.3343300
8807749&seq=157 ................................................ 13
Kopel, David B. and Greenlee, Joseph, The History
of Bans on Types of Arms Before 1900 (May 23,
2024). Journal of Legislation, Vol. 50, No. 2, 2024,
U. Denver Legal Studies Research Paper at
page 4, available at SSRN:
https://ssrn.com/abstract=4393197 ..................... 26
Scott Macnab, David: Sir John Fastolf and the
Diverse Affinities of the Medieval Lancegay,
S.A. Journal of Medieval and Renaissance
Studies (2009), Available at
https://www.researchgate.net/publication/236870
083_Sir_John_Fastolf_and_the_Diverse_Affinities
_of_the_Medieval_Lancegay ................................ 25
vii
https://www.merriamwebster.com/dictionary/liberty%20pole
(last accessed 8/24/2026) ...................................... 20
https://www.nbcnews.com/id/wbna50490090
(last visited 08/16/2026) ....................................... 24
H. Peterson, Daggers and Fighting Knives of
the Western World (2001), Available at
https://firearmslaw.duke.edu/laws/7-ric-2-35ch-13-1383 ...................................................... 24, 25
William Oldnall Russell, A TREATISE ON CRIMES
AND INDICTABLE MISDEMEANORS (1826),
Available at
https://play.google.com/books/reader?id=AqcDAA
AAQAAJ&pg=GBS.RA1-PA270&hl=en ........ 17, 18
Statute of Northampton 2 Edw. 3, c. 3 (1328),
Available at
https://firearmslaw.duke.edu/laws/statute-ofnorthampton-1328-2-edw-3-c-3-eng .................. 3, 4
Henry John Stephen, Summary of the Criminal Law,
available at
https://play.google.com/books/reader?id=_PtCAQA
AMAAJ&pg=GBS.PA48&hl=en .......................... 21
The Cyclopedia Law Dictionary (Walter a. Shumaker
and George Foster Longsdorf, ed. Callaghan and
Company 1922) (1901), Available at
https://books.google.com/books/about/The_Cyclopedic_
Law_Dictionary.html?id=x3c8AAAAIAAJ .......... 12
F. Wharton, A Treatise on the Criminal Law of
the United States (1852), Available at
https://books.google.com/books/about/A_Treatise_
on_the_Criminal_Law_of_the_Un.html?id=Q04rA
QAAMAAJ .......................................... 11, 12, 18, 20
viii
James Wilson, WORKS OF THE HONOURABLE
JAMES WILSON (Bird Wilson ed., 1804),
Available at
https://www.google.com/books/edition/The_Works_
of_the_Honourable_James_Wilson/74s0AAAAMA
AJ?hl=en&gbpv=1&bsq=affray ........................... 16
INTEREST OF AMICUS CURIAE
This amicus curiae brief is filed on behalf of the
Hawaii Rifle Association in support of petitioners.
Hawaii Rifle Association is a non-profit organization
dedicated to the correct construction, interpretation,
and application of the law. 1 Its mission is to protect
Hawaiians’ Second Amendment right to keep and
bear arms, and to protect Hawaii’s hunting and
shooting traditions. The rifles at issue in this
litigation are used by its members and other
Hawaiians to hunt and protect their families. Hawaii
Rifle Association’s interest in this matter is for this
Court to come to the correct interpretation of the
Second Amendment so that Hawaiians can continue
to hunt and defend themselves with those rifles.
SUMMARY OF THE ARGUMENT
This Court should not find the rifles at issue in this
litigation are dangerous and unusual weapons. That
is because the term “dangerous and unusual” weapons
does not refer to any particular type of weapon or
characteristic of any arm. Rather, it refers to forms of
conduct with weapons. To put it another way, under
the historical definition of the term “dangerous and
unusual” weapon, no weapon, or class of arms, can be
dangerous and unusual because the term refers to
conduct not any particular type of weapon. As will be
shown below, historically the term “dangerous and
unusual” weapons was a conjunctive test.
All
1 No counsel for a party authored this brief in whole or in part,
nor did such counsel or any party make a monetary
contribution to fund this brief. No person other than the
amicus, its members or counsel, made a monetary contribution
intended to fund the preparation or submission of this brief.
2
weapons were considered dangerous. Unusual
referred to an unusual use of a dangerous weapon. It
did not refer to a weapon which was rarely owned or
any other characteristic intrinsic to a weapon. A
weapon only became a “dangerous and unusual
weapon” when it was used in an unusual manner
reasonably foreseeable to cause terror.
ARGUMENT
This Court should not find the rifles at issue in this
litigation are inherently dangerous and unusual
weapons. Any finding that an arm is inherently
dangerous and unusual, based upon a characteristic
of the arm itself, would be a misapplication of the
phrase because the term only refers to the unusual
use of an arm in a manner which historically could be
prohibited. This Court should determine whether the
rifles at issue in this litigation are protected by the
Second Amendment solely based on whether they are
in common use for lawful purposes – which they
plainly are. This position is supported by every single
source in Heller which references “dangerous and
unusual” weapons.
Writing for the Court in District of Columbia v.
Heller, 554 U.S. 570, 626 (2008), Justice Scalia stated:
[w]e also recognize another important
limitation on the right to keep and carry
arms. Miller said, as we have explained,
that the sorts of weapons protected were
those “in common use at the time.” [U.S.
v. Miller, 307 U.S. 174, 179 (1939)]. We
think that limitation is fairly supported
by the historical tradition of prohibiting
3
the carrying of “dangerous and unusual
weapons.” (Emphasis added).
Heller, 554 U.S. at 627. 2
The prohibition on carrying “dangerous and
unusual” weapons is derived from the Statute of
Northampton 2 Edw. 3, c. 3 (1328)3 which is a statute
that banned carrying in certain situations, such as
affrays.
...Item, it is enacted, that no man great
nor small, of what condition soever he be,
except the King’s servants in his
presence, and his ministers in executing
of the King’s precepts, or of their office,
and such as be in their company
assisting them, and also [upon a cry
made for arms to keep the peace, and the
same in such places where such acts
happen,] be so hardy to come before the
King’s justices, or other of the King’s
ministers doing their office, with force
and arms, nor bring no force in affray of
the peace, nor to go nor ride armed by
night nor by day, in fairs, markets, nor
in the presence of the justices or other
ministers, nor in no part elsewhere, upon
pain to forfeit their armour to the King,
2 Please note that any case not hyperlinked or included in the
appendices is available on LexisNexis.
3 Available at https://firearmslaw.duke.edu/laws/statute-of-
northampton-1328-2-edw-3-c-3-eng
4
and their bodies to prison at the King’s
pleasure.
Id.
This law is cited by several of the commentators on
which Heller relies. For example, Heller cites Timothy
Cunningham (see 554 U.S. at 581). Cunningham’s
1789 law dictionary defines “affray” as follows:
Affray, Is derived from the French word
effrayer, to affright, and it formerly
meant no more, as where persons
appeared with armour or weapons not
usually worn, to the terror of others;
and so is the word used in the statute of
Northampton []. It is now commonly
taken for a skirmish, or fighting between
two or more. … Yet, as it is there said,
they differ in this, that where an assault
is but a wrong to the party, an affray is
wrong to the commonwealth, and
therefore
both
inquirable
and
punishable in a leet. … Beside this
signification, it may be taken for a terror
wrought in the subject by an unlawful
fight or violence, &c. as if a man shew
himself furnished with armour or
weapons not usually worn, it may strike
a fear into others unarmed; and so it is
used in flat 2 Ed 3 c 3. But altho’ no bare
words, in the judgement of law, carry in
them so much terror as to amount to an
affray, yet it seems certain, than in some
cases there may be an affray, where
there is no actual violence, as where a
5
man arms himself with dangerous and
unusual weapons in such a manner as
will naturally cause a terror to the
people; which is said to have been
always an offence at the Common law
and is strictly prohibited by Statute.
See Cunningham, Timothy, -1789. A New And
Complete Law-dictionary: Or, General Abridgment of
the Law : On a More Extensive Plan Than Any Lawdictionary Hitherto Published : Containing Not Only
the Explanation of the Terms, but Also the Law Itself,
Both With Regard to Theory And Practice : Very
Useful to Barristers, Justices of the Peace, Attornies,
Solicitors, &c.. London: Printed by the Law printers to
the King's Most Excellent Majesty, for S. Crowder,
17641765. 4 (Emphasis added).
Cunningham defines riding armed,
“dangerous and unusual” weapons as:
with
an offense at Common law. [citation
omitted] By the stat. 2 Ed. 3. Cap. 3.
None shall ride armed by day or night to
the terror of the people; or come with
force and arms before the King’s
justices...but men may wear common
arms according to their quality and
fashion, and have attendants with them
armed agreeable to their characters; all
persons may ride or go armed take
4 Available at
https://babel.hathitrust.org/cgi/pt?id=mdp.35112103369031&s
eq=84
6
felons, suppress riots, execute the King’s
process…
Cunningham, supra, Riding.
As shown below, this is a prohibition against
carrying arm(s) in a threatening manner which
disturbs the public. The North Carolina Supreme
Court correctly interpreted the dangerous and
unusual language and found that the phrase refers to
an unusual use of a weapon. See State v. Dawson, 272
N.C. 535 (1968). 5
The term “dangerous weapon,” in the English
common law, is a legal term of art that usually
included weapons designed or able to kill human
beings. In this context, the Common Law’s definition
of “dangerous” was any item that could be used to take
human life through physical force. See United States
5 “It has been remarked that a double-barrel gun, or any other
gun, cannot in this country come under the description of
‘unusual weapons,’ for there is scarcely a man in the community
who does not own and occasionally use a gun of some sort. But
we do not feel the force of this criticism. A gun is an ‘unusual
weapon,’ wherewith to be armed and clad. No man amongst us
carries it about with him, as one of his everyday accoutrements - as a part of his dress -- and never, we trust, will the day come
when any deadly weapon will be worn or wielded in our peaceloving and law-abiding State, as an appendage of manly
equipment. But although a gun is an ‘unusual weapon,’ it is to be
remembered that the carrying of a gun, per se, constitutes no
offense. For any lawful purpose -- either of business or
amusement -- the citizen is at perfect liberty to carry his gun. It
is the wicked purpose, and the mischievous result, which
essentially constitute the crime. He shall not carry about this or
any other weapon of death to terrify and alarm, and in such
manner as naturally will terrify and alarm a peaceful people.”
Dawson, 272 N.C. at 544-45 (citation omitted)
7
v. Hare, 26 F. Cas. 148, 163-64 (C.C.D. Md. 1818) 6
(“[S]howing weapons calculated to take life, such as
pistols or dirks, putting [the victim] in fear of his life
… is … the use of dangerous weapons.”). See also The
King v. Oneby 92 E.R. 465 (Court of the King’s Bench
1727) (“Any dangerous weapon, as a pistol, hammer,
large stone, &c. which in probability might kill B. or
do him some great bodily hurt.”). 7 Thus, all arms are
“dangerous” within this context because they can be
used to injure another person. 8 They only become
“dangerous and unusual” arms when they are used in
an unusual manner. Historically, an unusual use of
weapons involved using those weapons in a manner
which caused an affray.
Timothy Cunningham’s 1789 law dictionary
defined an affray as “to affright, and it formerly meant
no more, as where persons appeared with armour or
weapons not usually worn, to the terror of others.” See
Cunningham, supra, Affray. When discussing forcible
entry or detainer, Blackstone stated, “so that the
entry now allowed by law is a peaceable one; that
forbidden is such as is carried on and maintained,
with force, with violence, and unusual weapons.” W.
Blackstone, Commentaries on the Laws of England,
6 Alternative citation as used by Lexis, United States v. Hare, 26
F. Cas. 148; 1818 U.S. App. LEXIS 240.
7 Available at Appendix E.
8 “[T]he very attributes that make handguns particularly useful
for self-defense are also what make them particularly
dangerous.” Heller, 554 U.S. at 711 (Breyer, dissenting).
8
bk. 4, ch. 11 (1765–1769). 9 It would make little sense
to think that the distinction was being drawn between
peaceable entry and entry with weapons that are
difficult to purchase or hard to find, or new. Instead,
the term “unusual weapons” means weapons that are
being used in a threatening or shocking manner, or
weapons that are being used to facilitate an unlawful
endeavor.
This position is supported by case law. In an
English case, Baron Snigge v. Shirton, a tenant was
in a dispute with his landlord, and “kept the
possession [of the house he rented] with drum, guns,
and halberts”. See generally Baron Snigge v. Shirton
79 E.R. 173 (1607). 10 “The drum was only to give
notice if any came to enter, but no body offered to
enter.” Id. This was considered keeping “his house
with unusual weapons against a purchaser.” Id. In
another English case, a sailor fired warning shots
with a “musqet and ball” across the bow of another
ship as a signal and killed a man. See generally Rex v.
Rowland Phillips 98 E.R. (1385). 11 The Court found
“[t]he firing was not done in an uncommon manner, or
with unusual weapons.” Id. And held “[i]t is
impossible upon this special verdict to say, that the
defendant is guilty of more than manslaughter. For it
is expressly found, that he fired in the usual manner
to bring vessels to, and to hit the hallyards.” Id. In
both cases, the weapons were in common use at the
9
Available at https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-411/
10
Available at Appendix F.
11
Available at Appendix D.
9
time. However, in one case, the weapon was unusual,
while in the other case, it was not. The relevant
difference between the cases is whether the use of
force was reasonable. In no case did the mere
possession of an arm, unrelated to the manner in
which the arm was used, ever fall within the
“dangerous and unusual weapon” prohibition.
This definition of unusual is supported by
Blackstone’s discussion of forfeited recognizance. “A
recognizance for the good behavior may be forfeited …
by going armed with unusual attendance, to the terror
of the people.” 4 William Blackstone, Commentaries
on the Laws of England ch. 18 (1769). 12 At Common
Law, just as people could legally own weapons, large
groups of people could legally gather, so long as their
purpose was lawful. It is when those groups of people
became threatening (or terrifying), that these
gatherings were labeled as “unusual attendance” to
the terror of the public and became unlawful.
Similarly, when the manner in which one carries a
weapon becomes threatening, the conduct is labeled
as carrying a unusual weapon.
When used to describe weapons, the word,
“unusual” is not being used in a different way than
when it is being used to describe attendance.
Blackstone states, “Any justice of the peace may…
bind all those… who make any affray; or threaten to
kill or beat another; or contend together with hot and
angry words; or go about with unusual weapons or
attendance, to the terror of the people” 4 William
12
Available at https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-418/#fn11d
10
Blackstone, Commentaries on the Laws of England
ch. 18 (1769). 13 Just as the common law is not
outlawing the assembly of unusual people, the
common law is not referring to the type of weapon
involved when it mentions unusual weapons. The
historical phrase, “dangerous and unusual weapons”
does not refer to classes or characteristics of weapons.
Rather, it describes a class of behavior.
Other, stricter laws outlawed specific types of
weapons for certain individuals, or when possessed
with certain “intent”. For example, “[n]o negro or
mulatto shall keep or carry any gun, powder, shot,
club or other weapon whatsoever, offensive or
defensive; but all and every gun, weapon and
ammunition found in the possession or custody of any
negro or mulatto may be seized by any person, and
upon due proof thereof made before any justice of the
peace of the county where such seizure shall be, shall
by his order be forfeited to the seizor for his own use,
and moreover every such offender shall have and
receive by order of such justice, any number of lashes
not exceeding thirty-nine, on his or her bare back, well
laid on, for every such offense...”. A Law for the
Regulation of Slaves, 1799 Miss. Terr. Laws 112, 113
(A. Marschalk 1799). 14 Also, Georgia had a law
prohibiting bearing certain weapons based on intent,
“[i]f any person shall be apprehended, […] shall have
upon him any pistol, hanger, cutlass, bludgeon, or
13
Available at https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-418
14
Available at https://firearmslaw.duke.edu/assets/1799,-ms.laws-of-the-mississippi-territory,-1799,-a-law-for-theregulation-of-slaves.pdf.
11
other offensive weapon, with intent feloniously to
assault any person[…]every such person shall be
deemed a rogue and vagabond." Ga. Code, div. 10, no.
19 (T. S. Hannon 1821) (Law Passed 1816). 15 In these
specifically defined and limited instances, the people
or arms at issue were considered inherently suspect.
Therefore, all use of arms was prohibited whether
those uses were usual or unusual. If the term
“dangerous and unusual” weapons meant a type of
prohibited arm, then the legislature would have used
that phrase with these laws. Rather, the carrying of
dangerous and unusual weapons refers to a class of
conduct with arms.
Historically, this class of conduct was that which
caused terror. Terror in this context means carrying
in a threatening manner. A 1675 dictionary defined
“terrour” as “dread, great fear or fright”. An Universal
Etymological Dictionary (R. Ware, W. Innys and J.
Richardson, J. Knapton (and twelve others)) (1675). 16
An affray may not be committed in private because
then, the public would not be terrified. F. Wharton, A
Treatise on the Criminal Law of the United States 726
(1852) at 725 (“An affray has been noticed, is the
fighting of two or more persons in some public place,
15
Available at https://firearmslaw.duke.edu/assets/1816,-ga,a_compilation_of_the_laws_of_the_state,-div.-10,-no.-191745947360.pdf.
16
Available at
https://archive.org/details/baileyuniversaletymdict2ed/page/
n873/mode/2up.
12
to the terror of the citizens”). 17 The Cyclopedia Law
Dictionary from 1922 defined terror as “That state of
mind which arises from the event or phenomenon that
may serve as a prognostic of some catastrophe;
affright from apparent danger. One of the
constituents of the offense of riot is that the acts of the
persons engaged in it should be to the terror of the
people, as a show of arms, threatening speeches, or
turbulent gestures; but it is not requisite, in order to
constitute this crime, that personal violence should be
committed.” See The Cyclopedia Law Dictionary
(Walter a. Shumaker and George Foster Longsdorf,
ed. Callaghan and Company 1922) (1901) at 1003. 18
Historically, “terror” was an apprehension of harm to
come. In describing a mugging, James Wilson wrote,
“If one assault another with such circumstances of
terrour as to put him in fear, and he, in consequence
of his fear, deliver his money; this is a sufficient
degree of violence.” 3 Wilson 59 (1804). 19 Later,
Wilson described arson as “a crime of deep malignity
… The confusion and terror which attend arson, and
the continued apprehension which follows it, are
mischiefs frequently more distressing than even the
loss of the property.” Id at 63. Wilson wrote, in
17
Available at
https://books.google.com/books/about/A_Treatise_on_the_Cri
minal_Law_of_the_Un.html?id=Q04rAQAAMAAJ.
18
Available at
https://books.google.com/books/about/The_Cyclopedic_Law_D
ictionary.html?id=x3c8AAAAIAAJ.
19
Available at
https://www.google.com/books/edition/The_Works_of_the_Ho
nourable_James_Wilson/74s0AAAAMAAJ?hl=en&gbpv=1&b
sq=one%20assault%20another%20.
13
describing interrogation methods, “terrour is
frequently added to fraud. The practice… is said… to
have been derived its origin from the customs of the
inquisition.” 3 Wilson 155 (1804). 20
Giles Jacob’s law dictionary states, when
describing a legal device known as a Surety of the
Peace (which appears to be a promise not to harm),
“the demand of the Surety of the Peace ought to be
soon after the cause of fear; for the suffering much
time to pass before it is demanded, shews that the
party has been under no great terror.” Giles Jacob,
The law-dictionary 149 (P. Bryne 1811 first American
from the second London edition) (1811). 21 Jacob
further described the difference between mere fear
and terror while defining the word, “robbery”. Jacob
wrote, “[a]nd when it is laid to be done by putting in
fear, this does not imply any great degree of terror, or
affright in the party robbed. It is enough that so much
force, or threatening by word or gesture, be used, as
might create an apprehension of danger, or induce a
man to part with his property without or against his
consent.” Id at 546. From these sources, “terror” is
more than mere apprehension of danger; it might
more aptly be described as the apprehension of an
extreme danger or a catastrophe.
20
Available at
https://www.google.com/books/edition/The_Works_of_the_Ho
nourable_James_Wilson/74s0AAAAMAAJ?hl=en&gbpv=1&b
sq=terrour.
21
Available at
https://babel.hathitrust.org/cgi/pt?id=nyp.33433008807749&
seq=157.
14
Some American case law comports with the above
view. A 1795 case describes “a defence based upon the
ground of duress and terror.” United States v. Vigol, 2
U.S. 346 (1795). Another 1795 case stated, “raising a
body of men to … oppose and prevent by force and
terror, the execution of a law, is an act of levying war.”
United States v. Mitchell, 2 U.S. 348 (1795). However,
other old American cases treat the word “terror” as if
it were synonymous with the word “threat”. See e.g.
Warder v. Arell, 2 Va. 282, 295 (1796) (This case
mentions people “armed with all the terrors of
forfeiture”).
Either way, as historically understood, the
prohibition against carrying “dangerous and unusual”
weapons requires an arm to be carried in a
threatening manner. The longstanding prohibition on
the carrying of “dangerous and unusual weapons”
thus refers to types of conduct with weapons. “A man
has a clear right to protect himself when he is going
singly or in a small party upon the road where he is
traveling or going for the ordinary purposes of
business. But I have no difficulty in saying you have
no right to carry arms to a public meeting, if the
number of arms which are so carried are
calculated to produce terror and alarm.” Rex v.
Dewhurst, 1 State Trials, New Series 529, 601-602
(1820). 22 (Emphasis added). A necessary element of
this common law crime of affray, to which the
“dangerous and unusual” prohibition refers, had
always required that the arms be used or carried in
22
Available at Appendix C.
15
such manner as to terrorize the population, rather
than in the manner suitable for ordinary self-defense.
Heller’s first source on the topic, Blackstone,
offered that “[t]he offence of riding or going armed,
with dangerous or unusual weapons, is a crime
against the public peace, by terrifying the good people
of the land.” 4 William Blackstone, COMMENTARIES
ON THE LAWS OF ENGLAND 148-49 (1769) 23
(emphasis added). Blackstone referenced the 1328
Statute of Northampton, which, by the time of the
American Revolution, English courts had long limited
to prohibit the carrying of arms only with evil intent,
“in order to preserve the common law principle of
allowing ‘Gentlemen to ride armed for their Security.’”
David Caplan, The Right of the Individual to Bear
Arms: A Recent Judicial Trend, DET. L. C. REV. 789,
795 (1982) 24 (citing Rex v. Knight, 90 Eng. Rep. 330
(K.B. 1686)25). “[N]o wearing of arms is within the
meaning of this statute, unless it be accompanied with
such circumstances as are apt to terrify the people.”
See Wrenn v. District of Columbia, 864 F.3d 650, 660
23
Available at https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-411/.
24
Available at https://foacillea.org/uploads/law_reviews/CaplanThe%20Individual%20Right%20to%20Arms.pdf.
25
The same case is also reported in Sir John Knight’s Case, 3
Mod. 117, 87 Eng. Rep. 75 (K.B. 1686). They are available at
Appendix A and B respectively.
16
(2017) (quoting 1 William Hawkins, A Treatise of the
Pleas of the Crown 135, ch. 63, § 4, at 135 (1716)). 26
Heller’s additional citations regarding the
“dangerous and unusual” doctrine are in accord.
“[T]here may be an affray, where there is no actual
violence; as where a man arms himself with
dangerous and unusual weapons, in such a manner,
as will naturally diffuse a terrour among the people.”
James Wilson, WORKS OF THE HONOURABLE
JAMES WILSON (Bird Wilson ed., 1804) (footnote
omitted) (emphasis added). 27 “It is likewise said to be
an affray, at common law, for a man to arm himself
with dangerous and unusual weapons, in such
manner as will naturally cause terror to the people.”
John A. Dunlap, THE NEW-YORK JUSTICE 8 (1815)
(emphasis added). 28
Charles Humphreys stated, that:
[r]iding or going armed with dangerous
or unusual weapons, is a crime against
the public peace, by terrifying the people
of the land … But here it should be
remembered, that in this country the
26
Available at https://archive.org/details/bim_eighteenthcentury_a-treatise-of-the-pleas-_hawkinswilliam_1771_1/page/136/mode/2up.
27
Available at
https://www.google.com/books/edition/The_Works_of_the_Ho
nourable_James_Wilson/74s0AAAAMAAJ?hl=en&gbpv=1&b
sq=affray.
28
Available at
https://archive.org/details/newyorkjusticeor00dunliala/page/
8/mode/2up?q=cause+terror.
17
constitution guar[]anties to all persons
the right to bear arms; then it can only
be a crime to exercise this right in such a
manner, as to terrify the people
unnecessarily.
See Charles Humphreys, A COMPENDIUM OF THE
COMMON LAW IN FORCE IN KENTUCKY 482
(1822); 29 see also Heller, 554 U.S. at 588 n.10 (quoting
same). It is the manner of how the right is exercised,
not the type of weapon that is carried, that constitutes
the crime. Said another way, just because a firearm
or other weapon is in common usage at the time does
not make the manner in which the right is exercised
excused or excusable simply due to the type of firearm
or weapon carried. “[T]here may be an affray … where
persons arm themselves with dangerous and unusual
weapons, in such manner as will naturally cause a
terror to the people.” William Oldnall Russell, A
TREATISE ON CRIMES AND INDICTABLE
MISDEMEANORS 271 (1826). 30 But:
it has been holden, that no wearing of
arms is within [meaning of Statute of
Northampton] unless it be accompanied
with such circumstances as are apt to
terrify the people; from whence it seems
clearly to follow, that persons of quality
29
Available at
https://play.google.com/books/reader?id=jZRGAQAAIAAJ&p
g=GBS.PA482&hl=en.
30 Available at
https://play.google.com/books/reader?id=AqcDAAAAQAAJ&p
g=GBS.RA1-PA270&hl=en.
18
are in no danger of offending against the
statute by wearing common weapons …
in such places, and upon such occasions,
in which it is the common fashion to
make use of them, without causing the
least suspicion of an intention to commit
any act of violence, or disturbance of the
peace.
Id. at 272. The Supreme Court then referred to F.
Wharton’s, A Treatise on the Criminal Law of the
United States which states:
An affray, as has been noticed, is the
fighting of two or more persons in some
public place, to the terror of the citizens.
(footnote omitted) There is a difference
between a sudden affray and a sudden
attack. An affray means something like
a mutual contest, suddenly excited,
without any apparent intention to do any
great bodily harm. (footnote omitted). …
yet it seems certain that in some cases
there may be an affray where there is no
actual violence; as where a man arms
himself with dangerous and unusual
weapons, in such a manner as will
naturally cause a terror to the people,
which is said to have been always an
offence at common law, and is strictly
prohibited by the statute. For by statute
2 Edw. 3., s. 3, in force in several of the
United States, it is enacted…
F. Wharton, A Treatise on the Criminal Law of the
United States (1852) at 726.
19
Wharton also includes a manner requirement to
the rule against dangerous and unusual weapons. If a
man armed himself with a “dangerous and unusual”
weapon in such a manner that did not naturally cause
a terror to the people, he would not be guilty of an
affray. After discussing the King’s statute, Wharton
stated:
It has been said generally, that the
public and open exhibition of dangerous
weapons by an armed man, to the terror
of good citizens, is a misdemeanor at
common law. (State v. Huntley, 3 Iredell,
418; but see State v. Simpson, 5 Yerger
356). On the same general reasoning, it
has been held indictable to drive a
carriage through a crowded street, in
such a way as to endanger the lives of the
passers-by; (footnote omitted) to disturb
a congregation when at religious
worship; (footnote omitted) to beset a
house, with intent to wound, tar and
feather; (footnote omitted) to raise a
liberty-pole, in the year 1794, as a
notorious and riotous expression of illwill to the government; (footnote
omitted) to tear down forcibly and
contemptuously an advertisement set up
by the commissioners of a sale of land for
county taxes; (footnote omitted) to break
into a house in the day-time, and disturb
its inhabitants; (footnote omitted) and to
violently disturb a town-meeting, though
the parties engaged were not sufficient
in number to amount to a riot.
20
F. Wharton, A Treatise on the Criminal Law of the
United States (1852) at 727.
All of Wharton’s examples compare the reasoning
behind outlawing riding with dangerous weapons to
the terror of the public with behavior that caused a
disruption to the public peace. 31 This supports the
proposition that carrying dangerous and unusual
weapons to the terror of the people is a manner of
carry which disturbs others rather than a particular
type of weapon. Notably, Wharton referenced rioting.
Blackstone defined a riot as follows:
A riot is where three or more actually do
an unlawful act of violence, either with
or without a common cause or quarrel
(footnote omitted): as if they beat a man;
or hunt and kill game in another’s park,
chase, warren, or liberty; or do any other
unlawful act with force and violence; or
even do a lawful act, as removing a
nuisance, in a violent and tumultuous
manner.
31
Wharton’s reference to a liberty pole deals with a traditional
symbol of protest during the colonial era. A liberty pole is “a
tall flagstaff surmounted by a liberty cap or the flag of a
republic and set up as a symbol of liberty.” See
https://www.merriam-webster.com/dictionary/liberty%20pole
(last accessed 8/24/2026) “The mere erection of a liberty pole
was innocent in itself.” Respublica v. Montgomery, 1 Yeates
419, 422 (1795). However, “riotously raising a liberty pole in
a public place” was unlawful because it disturbed the peace.
See Commonwealth v. Moss, 9 Pa. D. & C. 713, 715 (1927).
21
See W. Blackstone, Commentaries on the Laws of
England, bk. 4, ch. 11 (1765–1769). 32
The rule against riots is meant to help preserve the
public peace and to avoid unruly mobs. 33 Similarly, to
preserve the peace, the common law has outlawed
reckless displays of firearms in public. 34
The other sources Heller cites in support of the
“dangerous and unusual” doctrine are in accord, as
are the cases Heller cites. See O’Neill v. State, 16 Ala.
65, 67 (1849) (affray “probable” “if persons arm
32
Available at https://lonang.com/library/reference/blackstonecommentaries-law-england/bla-411/.
33
Historically, it was legal to assemble armed. It was only
when the assembly turned threatening did the conduct
become illegal. “A Virginia commentator observed that "the
common" meaning of unlawful assembly did not prohibit
large, armed assemblies to peaceably discuss redress. J.A.G.
Davis, A Treatise on Criminal Law with an Exposition of the
Office and Authority of Justices of the Peace of Virginia 25455 (1838). That's because peaceably assembling while armed
was normal behavior, not dangerous or riotous.” See Koons v.
Att'y Gen. N.J., 156 F.4th 210, 305 (2025) (Porter, J.,
concurring in part and dissenting in part).
34
Heller also refers to Henry John Stephen, Summary of the
Criminal
Law,
1840
available
at
https://play.google.com/books/reader?id=_PtCAQAAMAAJ&p
g=GBS.PA48&hl=en . This treatise has a very short
discussion of dangerous and unusual weapons. “Riding or
going armed with dangerous or unusual weapons. By statute
of Northampton, 2 Edw. III c. 3, this is a misdemeanor,
punishable by forfeiture of the arms and imprisonment
during the King’s pleasure.” Id at 48. Stephen does not
investigate the intricacies of what constitutes a violation of
the law.
22
themselves with deadly or unusual weapons for the
purpose of an affray, and in such manner as to strike
terror to the people”) (emphasis added); State v.
Langford, 10 N.C. 381, 383 (1824) (affray “when a
man arms himself with dangerous and unusual
weapons, in such a manner as will naturally cause a
terror to the people”) (emphasis added); English v.
State, 35 Tex. 473, 476 (1871) (affray “by terrifying the
good people of the land”). In fact, one does not even
need to be armed with a firearm to commit the crime
of affray under the dangerous and unusual doctrine.
See State v. Lanier, 71 N.C. 288, 290 (1874) (riding
horse through courthouse, unarmed, is “very bad
behavior” but “may be criminal or innocent”
depending on whether people are alarmed).
And in Simpson v. State, the Supreme Court of
Errors and Appeals of Tennessee dismissed an
indictment alleging that “William Simpson, labourer,
with force and arms being arrayed in a warlike
manner, in a certain public street or highway situate,
unlawfully, and to the great terror and disturbance of
divers good citizens, did make an affray…”. Simpson
v. State, 13 Tenn. 356, 361 (1833) The Attorney
General sought to rely on Hawkins’ claim that “there
may be an affray… where a man arms himself with
dangerous and unusual weapons, in such a manner as
will naturally cause terror to the people, which is said
always to have been an offence at common law, and is
strictly prohibited by many statutes.” Id. at 358.
The court in Simpson held that the indictment was
insufficient as it failed to allege the elements of an
affray of fighting between two or more persons. The
Simpson court repeated Hawkins’ comment about the
23
Statute of Northampton that “persons of quality are
in no danger of offending against this statute by
wearing their common weapons, or having their usual
number of attendants with them, for their ornament
or defence, in such places and upon occasions in which
it is the common fashion to make use of them without
causing the least suspicion of an intention to commit
any act of violence or disturbance of the peace.” Id at
358-59 citing William Hawkins, Pleas of the Crown,
book 1, ch. 28, sec. 4. 40 (1716).
No law or court, cited by Heller or from the
Founding Era, ever examined the characteristics of
the arm itself, completely unconnected to how it was
used and labeled it as “dangerous and unusual.” The
traditional right to arms “was not a right to keep and
carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Heller, 554
U.S. at 626. It was a right to keep and carry weapons
for usual purposes such as self-defense. The term
“dangerous and unusual” has nothing to do with the
analysis of whether an arm is protected by the Second
Amendment. That is entirely dealt with by the
common use test which should be decided solely by an
inquiry into whether an arm’s typical use is for a
lawful purpose. After the common use inquiry is
complete, the decision on whether an arm is protected
is definitively decided.
The “dangerous and unusual” inquiry is only
applicable to deciding whether a manner of carry or
similar conduct is protected by the Second
Amendment. E.g. a prohibition on brandishing
firearms is supported by the tradition of prohibiting
the carry of “dangerous and unusual” weapons
24
because brandishing a firearm is an unusual use of a
weapon. This interpretation also makes sense
considering Heller’s finding that “laws forbidding the
carrying of firearms in sensitive places such as schools
and government buildings” are presumptively
constitutional. See Heller, 554 U.S. at 626. As shown
above, historically it was permissible to prohibit
carrying in places where it would be unusual to do so.
Those places are what Heller refers to as sensitive
places. It might be unusual to carry one arm in a
location whereas it would be usual or permissible to
carry a different arm in that same location. As shown
below, people used to wear certain defensive weapons
as part of their everyday dress, almost everywhere.
However, Justice Scalia once said that
historically there were times when it was permissible
to prohibit carrying certain arms. “For example, there
was a tort called affrighting, which if you carried
around a really horrible weapon just to scare people,
like a head ax or something, that was I believe a
misdemeanor. So yes, there are some limitations that
can be imposed. What they are will depend on what
the society understood was reasonable limitation.” See
https://www.nbcnews.com/id/wbna50490090
(last
visited 08/16/2026). This was true despite the fact
other arms were regularly carried by ordinary people
for self-defense. In the medieval period, “[a]lmost
everyone carried a knife or a dagger in his belt.” N.Y.
State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 41
(2022) (quoting H. Peterson, Daggers and Fighting
Knives of the Western World 12 (2001)). “While these
knives were used by knights in warfare, “[c]ivilians
wore them for self-protection,” among other things.”
25
Id. (quoting H. Peterson, Daggers and Fighting
Knives of the Western World 12 (2001)).
Historically, it was normal (usual) for a person to
carry a dagger to the market and that carry was not
prohibited. Whereas carrying a head axe dressed in
armor to a market, would be unusual and could likely
be prohibited. Similarly, there were restrictions on
riding with lancegays despite them being legal to
possess. See 7 Rich. 2, ch. 13 (1383). 35 This despite the
fact “[e]ven common folk with no military associations
seem to have [legally] possessed the weapon [the
lancegay].” See Scott Macnab, David: Sir John Fastolf
and the Diverse Affinities of the Medieval Lancegay,
S.A. Journal of Medieval and Renaissance Studies, 19
(2009), pp.97-116. 36 This is in line with the overall
tradition of regulating unusual carry in certain
circumstances but not possession. “The Statute’s
apparent focus on armor and, perhaps, weapons like
launcegays makes sense given that armor and lances
were generally worn or carried only when one
intended to engage in lawful combat or—as most early
violations of the Statute show—to breach the peace.”
Bruen, 597 U.S. at 41. Weapons like head axes and
lancegays were typically not worn for everyday selfdefense, therefore their carry in metropolitan areas
such as marketplaces or in the case of lancegays,
35
Available at https://firearmslaw.duke.edu/laws/7-ric-2-35-ch13-1383.
36
Available at
https://www.researchgate.net/publication/236870083_Sir_Jo
hn_Fastolf_and_the_Diverse_Affinities_of_the_Medieval_La
ncegay.
26
while riding, fell within the prohibition against
carrying of “dangerous and unusual” weapons.
Similar restrictions on arms bearing existed
during the colonial era. E.g. a 1786 Virginia statute
forbade persons to “go nor ride armed by night or by
day, in fairs or markets, or in other places, in terror of
the Country. See 1786 Va. Acts 33. 37 During Colonial
America, being armed with a head axe outside of
certain locations would likely cause apprehension i.e.
terror whereas a person carrying a knife would not.
Thus, certain arms could be banned at certain
locations because they created terror whereas other
arms could not be banned at the same location. This
was true even though “no colonial law banned any
particular arm.” Kopel, David B. and Greenlee,
Joseph, The History of Bans on Types of Arms Before
1900 (May 23, 2024). Journal of Legislation, Vol. 50,
No. 2, 2024, U. Denver Legal Studies Research Paper
at
page
4,
available
at
SSRN:
https://ssrn.com/abstract=4393197.
Bruen is in line with this reading. In Bruen, the
Supreme Court reviewed the carry restrictions of the
history of “the Colonies and early Republic.” Bruen,
597 U.S. at 4. It found “[t]he statutes essentially
prohibited bearing arms in a way that spread “fear” or
“terror” among the people, including by carrying of
“dangerous and unusual weapons.” Id. Later, the
Court addressed New York’s amici’s argument “that
“‘offensive’” arms in the 1600s and 1700s were what
Blackstone and others referred to as “‘dangerous or
37
Available at https://firearmslaw.duke.edu/assets/1786-va-ch.49-an-act-forbidding-and-punishing-affrays.pdf.
27
unusual weapons,’” […] a category that they say
included firearms.” Id at 46
The Court dismissed this argument. “Respondents,
their amici, and the dissent all misunderstand these
statutes. Far from banning the carrying of any class
of firearms, they merely codified the existing commonlaw offense of bearing arms to terrorize the people, as
had the Statute of Northampton itself.” Id at 47.
Bruen then reiterated Heller’s findings. There, “we
found it ‘fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual
weapons’” that the Second Amendment protects the
possession and use of weapons that are “‘in common
use at the time.’”” Id at 21.
This is another way of saying Americans have a
right to own arms which are in common use. However,
the government may permissibly restrict carry in
certain circumstances pursuant to the tradition of
prohibiting the carrying of “dangerous and unusual”
weapons. Amici acknowledges that Bruen did say
“[w]hatever the likelihood that handguns were
considered “dangerous and unusual” during the
colonial period, they are today “the quintessential
self-defense weapon.” Id. at 4. This must be read in
context. Bruen is a case about handgun carry. This
discussion by the Court is another way of saying
whatever the likelihood it was considered unusual to
carry a handgun during the colonial period, in the
modern-day, handguns are considered usual to carry.
Therefore, modern day handgun carry does not run
afoul of the tradition of carrying dangerous and
unusual weapons.
28
Likewise, nothing in Justice Breyer’s dissent in
Bruen contradicts Amici’s position. Justice Breyer
acknowledges that the Statute of Northampton and
similar law applied “only to “dangerous and unusual
weapons,” [...] [and] that category almost certainly
included guns.” Id at 121 (Breyer, J., dissenting). We
know from Heller and Bruen that handguns are
protected arms. Thus, it cannot be that the phrase
“dangerous and unusual” weapons refer to types of
arms which are intrinsically unprotested by the
Second Amendment. Rather the term only refers to
prohibitions on types of conduct with arms.
Similarly, nothing in Rahimi contradicts Amici’s
position. In Rahimi the Supreme Court reiterated its
prior findings that historical prohibitions on
“dangerous and unusual” weapons dealt with carry
not possession. “The “going armed” laws—a particular
subset of the ancient common law prohibition on
affrays, or fighting in public—provided a mechanism
for punishing those who had menaced others with
firearms. Under these laws, individuals were
prohibited from “riding or going armed, with
dangerous or unusual weapons, [to] terrify[ ] the good
people of the land.” 4 Blackstone 149.” United States
v. Rahimi, 602 U.S. 680, 681-82 (2024). “Whether
classified as an affray law or a distinct prohibition, the
going armed laws prohibited “riding or going armed,
with dangerous or unusual weapons, [to] terrify[ ] the
good people of the land.” 4 Blackstone 149 (emphasis
deleted).” Id at 697. 38 The term “dangerous and
38
This Court’s subsequent Second Amendment opinions in
United States v. Hemani, 146 S. Ct. 1677 (2026), and
29
unusual” weapons dealt with prohibitions on types of
conduct with arms not the intrinsic property of an
arm. The historical tradition of weapons in common
use being protected by the Second Amendment is
fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual”
weapons because even when an arm is
constitutionally protected citizens may not carry them
“in any manner whatsoever and for whatever
purpose.” Heller, 554 U.S. at 626.
CONCLUSION
This Court should determine whether the rifles at
issue in this litigation are protected by the Second
Amendment solely by a determination of whether
they are in common use for lawful purposes. Any
opinion which holds that arms can be “dangerous and
unusual” weapons unrelated to their particular use by
a person under specific circumstances would do so via
a misapplication of the historical term.
Respectfully submitted,
ALAN ALEXANDER BECK
Counsel of Record
ATTORNEY AT LAW
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
alan.alexander.beck@gmail.com
Counsel for Petitioners
Wolford v. Lopez, 146 S. Ct. 2032 (2026), contain no
language applicable to the issue discussed in this brief.
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — SIR JOHN KNIGHT’S CASE,
3 MOD. 117, 87 ENG. REP. 75 (K.B. 1686) . . . . . . . . 1a
APPENDIX B — REX V. SIR JOHN KNIGHT,
1 COMB. 38, 90 ENG. REP. 330 (K.B. 1686) . . . . . . 3a
A PPEN DI X C — REX V. DEW HU RST,
1 STATE TRIALS, NEW SERIES 529, 601-602
(1820) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a
APPENDIX D — REX V. ROWLAND PHILLIPS
98 E.R. (1385) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9a
APPENDIX E — KING V. ONEBY 92 E.R.
465 (COURT OF THE KING’S BENCH
1727) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12a
APPENDIX F — BARON SNIGGE V. SHIRTON
79 E.R. 173 (1607) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38a
1a
Appendix
APPENDIX A — SIR
JOHNAKNIGHT’S CASE,
3 MOD. 117, 87 ENG. REP. 75 (K.B. 1686)
Case 78. Sir John K night’s Case.
An information lies, both at common law and on the
statute 2 Edw. 3, c. 3, for going armed, to the terror of
the public.—S. C. Comb. 38, 40. Dalton, 130. F. N. B.
249. 2 Bulst. 330. Cromp. 64. Fitzg. 47, 65. 10 Mod. 121,
337, 358, 409.
1 Ld. Ray. 347, 682. 2 Ld. Ray. 1039.
2 Stra. 828. 1 Hawk. P. C. 267. 2 Hawk. P. C. 369.
An information was exhibited against him by the
Attorney General, upon the statute of 2 Edw. 3, c. 3, which
prohibits “all persons from coming with force and arms
before the King’s Justices, &c., and from going or riding
armed in affray of peace, on pain to forfeit his armour, and
suffer imprisonment at the King’s pleasure.” This statute
is confirmed by that of 20 Rich. 2, c. 1, with an addition of
a further punishment, which is to make a fine to the King.
The information sets forth, that the defendant did
walk about the streets armed with guns, and that he went
into the church of St. Michael, in Bristol, in the time of
divine service, with a gun, to terrify the King’s subjects,
contra formam statuti.
This case was tried at the Bar, and the defendant was
acquitted (a).
(a) But on the motion of the Attorney General he was bound
to his good behavior.
2a
Appendix A
[118] The Chief Justice said, that the meaning of the
statute of 2 Edw. 3, c. 3, was to punish people who go
armed to terrify the King’s subjects. It is likewise a great
offence at the common law, as if the King were not able
or willing to protect his subjects; and therefore this Act
is but an affirmance of that law; and it having appointed
a penalty, this Court can inflict no other punishment than
what is therein directed.
3a
B JOHN KNIGHT,
APPENDIX B — Appendix
REX V. SIR
1 COMB. 38, 90 ENG. REP. 330 (K.B. 1686)
Rex versus Sir John K night. Post, p. 40.
Information for going to church armed.
Information for going to church with pistols, &c.
contra stat. 2 Ed. 3, of Northampton.
Winnington pro defendente. This statute was made
to prevent the people’s being oppressed by great men; but
this is a private matter, and not within the statute. Vide
stat. 20 R. 2.
C. J. This offence had been much greater, and better
laid at common law. But tho’ this statute be almost gone in
desue-[39]-tudinem, yet where the crime shall appear to
be malo animo, it will come within the Act (tho’ now there
be a general connivance to gentlemen to ride armed for
their security); but afterwards he was found, not guilty.
Rodney and Stroud. Ante p. 18.
Nolle prosequi.
Hollis. This case differs from Heydon’s case; for
here the jury have gone contrary to evidence. 3 Cro. 860,
Miles’s case.
Bulst. 157, and Cro., Walsh and Bishop come not up
to our case, which is on a nolle prosequi.
4a
Appendix B
Pollexfen contra. Cited Trebarefoot and Greenway’s
case in B. E. and that it is in the plaintiff’s power to help
it by nolle prosequi.
Roll. Error, 784, 785. Vide two cases there in an
ejectment for a term, and a fishery. So in an action for
words, if some are incertain, a nolle prosequi will help
the other.
C. J. This differs from Heydon’s case; where several
damages are given by several juries, there the release of
the one, and election of the better damage, is good. But
where one jury assess several damages, the verdict is bad.
An insufficient verdict is not curable; and the cases
cited are not in point; for in them the fault is in the
declaration; but here the declaration is good, and the fault
in the verdict.
Wythens, Holloway, and Wright contra pro quer’.
Judgment pro quer’.
Order to provide for a bastard-child: exception was
taken, that it doth not appear in the order, that he is
chargeable to the parish, or likely to be so. 1 Cro. 36. Sid.
222, quash’d.
5a
Appendix B
Rex versus Davies.
Felonica interfectio implies murder in a pardon. Q.
Indicted of felony and murder, and pray’d to have his
pardon allow’d.
Per Wythens and Holloway. Felonica interfectio is well
enough, tho’ murdrum be omitted.
C. J. contra. Manslaughter is felonica interfectio, but
at another day (the Chief Justice being absent) it was
allowed.
Comperuit ad diem pleaded. Clerk of the rules gives
a day by rule.
Per Aston and other clerks, A defecit de recordo
cannot be entred without a rule given, and notice; the
like in bail.
[40] Per C. J. An attaint lieth against a jury for giving
excessive damages.
This term a new order was made per Cur’, that all
orders to be spoke to, shall be put in the paper and copies
given, and not to be spoke to the two last days of the term.
C. J. When a man proceeds both criminally and civilly
upon the same cause of
6a
C DEWHURST,
APPENDIX CAppendix
— REX V.
1 STATE TRIALS, NEW SERIES 529, 601-602 (1820)
The KING against
GEORGE Dewhurst and OTHERS.
T ria l of G eorge Dewhurst, John K night, Nath a n
Broadhurst, John A damson, William Fletcher, John
Bury, John Astin, James Wade, at Lancaster, on A pril
1st, 1820, before Mr. Justice Bayley and a Common
Jury, for unlawfully assembling and causing People
to go armed to a Public Meeting.
A meeting, at which the defendants were present,
and of which the defendant Knight was chairman, was
held at Habergham Eaves, near Burnley, on the 15th
November 1819, “to consider the best means of bringing
the instigators and perpetrators of the late Manchester
massacre to justice, and to embrace the subject of the
necessity of Parliamentary Reform.” Bodies of men to
the number of several thousands, many of them carrying
sticks, marched, with banners and music, to the place of
meeting. Some days before the meeting the magistrates
had issued notices cautioning all persons against attending
it.
*
*
*
On the subject of carrying arms the learned judge
said:] Gentlemen, I forgot to observe to you on the subject
of carrying arms that I do not agree with the counsel on
the part of the defendants that persons have a right to
carry arms in the way in which those arms are described
7a
Appendix C
to have been carried. Mr. Justice Blackstone lays down
the right of the subject to carry arms as “having arms for
their defence, suitable to their condition and degree, and
such as are allowed by law. Which is also declared by the
same statute 1 William and Mary, sess. 2. c. 2 ; and it is
indeed a public allowance under due restrictions of the
natural right of resistance and self-preservation, when
the sanctions of society and laws are found insufficient to
restrain the violence of oppression.”(a)
Gentlemen, he refers to the Bill of Rights. You will
see what the Bill of Rights says upon that subject. It
provides that, “The subjects which are Protestants may
have arms for their defence suitable to their conditions,
and as allowed by law.”(b)
But are arms suitable to the condition of people in the
ordinary class of life, and are they allowed by law? A man
has a clear right to arms to protect himself in his house. A
man has a clear right to [602] protect himself when he is
going singly or in a small party upon the road where he is
travelling or going for the ordinary purposes of business.
But I have no difficulty in saying you have no right to
carry arms to a public meeting, if the number of arms
which are so carried are calculated to produce terror and
alarm; and if you could be at liberty to carry arms upon
an expectation that by possibility there might be an attack
at the place, that would be an excuse for carrying arms
(a) Book 1, c. 1.
(b) 1 Will. and Mar. sess. 2. c. 2. 7.
8a
Appendix C
in every instance when you went to a public meeting.(a)
Therefore, I have no difficulty in saying persons are not
warranted in carrying arms to a public meeting, if they are
calculated to create terror and alarm. You have no right to
suspect there will be an illegal attack on you. Therefore,
you are not at liberty to carry arms with you. You will,
therefore, on this evidence pause, and judge whether you
are of opinion that at the time the pikes were produced
Dewhurst was in such a situation in which he must have
seen them. If he was in such a situation in which he must
have seen them, then he would have seen that the persons
who were attending there were armed in a way in which
they ought not to be armed. And if he did not at once take
steps to remove those persons and those arms from that
assembly, his continuing there and lending himself to the
purposes of that assembly was an illegal act.
*
(a) See above, p. 519.
*
*
9a
Appendix
D
APPENDIX D — REX
V. ROWLAND
PHILLIPS
98 E.R. (1385)
Rex versus Rowland Phillips. Same day, 1778. If an officer
on the impress service fire in the usual manner at the
ball-yards of a boat, in order to bring her to, and kill
a man, it is only manslaughter.
Upon an indictment against the defendant, at the Lent
Assizes, at Exeter, for the county of Devon, 1778, for the
murder of William Collier, the jury at the trial before Mr.
Baron Perryn, found a special verdict, stating in substance
as follows: “An Order of Council for impressing seamen.
A warrant made in consequence of it to Captain Milbank,
Commander of His Majesty’s ship ‘Princess Royal,’ who,
by indorsement deputed John Nasmith, Fourth Lieutenant
of the ‘Princess Royal,’ to execute it. That William Collier,
the deceased, was a fisherman: the defendant was a
midshipman belonging to the ‘Princess Royal,’ and on
the 25th of September 1777, was sent in the brig ‘Hope’ (a
tender) commanded by Lieutenant Nasmith, into Torbay,
to impress seamen. That he went from the tender into a
boat, by the directions of the lieutenant, to put people
on board the fishing boats as they returned from sea,
who might carry them under the stern of the tender
that the lieutenant might examine whether they had any
protections. That he put Francis Graham, a quartermaster, on board the boat or smack of the deceased; that
the smack at first made a feint of proceeding towards
the tender; but instead of continuing in that course, she
afterwards put out to sea, with the said Francis Graham
on board. That Graham [831] then waived his hat, by way
of signal of distress, and for assistance: upon which the
10a
Appendix D
defendant went on board another fishing-boat, with the
quarter-master as his assistant, armed with a musquet
and ball, and two cutlasses; and gave chace to the deceased
for three hours; in the course of which time, the defendant
fired six or seven shots, at the distance of a quarter or half
an hour between each, for the purpose of bringing the
smack of the deceased to. That the hallyards of the smack
had been cut by Francis Graham, and that the smack was
in the act of lying to. That within the distance of sixty
yards, the defendant fired a musquet loaded with ball,
the sea then running very high, and shot the deceased on
the left side of his head. That Francis Graham was at that
time standing close to the deceased. That the defendant
said, ‘If they did not bring to, he would fire at the man
at the helm; but if he could get Graham out of the vessel,
he might go to hell.’ That before the defendant fired the
musket, the master of the ‘Industry’ fishing-boat desired
him not to fire, but the defendant did fire; the deceased fell,
and then one John Desent said, ‘You have killed a man:’
upon which the defendant said, ‘Do you think I meant it.’
That before the last firing, a struggling was seen between
Francis Graham and the deceased, and that there was an
apprehension Graham would have been thrown overboard:
that a hat and four bludgeons were seen floating on the
sea. That the defendant fired from a musquet loaded with
ball, as is usual in the Navy, to bring the smack of the
deceased to, and to hit the hallyards.”
No counsel appeared on the part of the prosecution.
Mr. Baldwyn for the prisoner argued, that the facts
found, amounted only to manslaughter. To constitute
11a
Appendix D
murder, there must be malice, either express or implied.
Lord Coke, 3 Inst. 47, defines murder thus: “When a
person of sound memory and discretion, unlawfully killeth
any reasonable creature in being under the King’s peace,
with malice aforethought either express or implied:” and
according to Lord Hale, vol. 1, 449, “murder is killing a
man of malice prepense.” But the unfortunate act here,
has nothing of express or implied malice within the above
definition. There is no appearance of to the deceased.
The firing was not done in an uncommon manner, or with
unusual weapons. He cited Hawk. Pl. C. 85, sect. 50, and
Kelyng, 60.
Lord Mansfield.—It is impossible upon this special
verdict to say, that the defendant is guilty of more than
manslaughter. [832] For it is expressly found, that he
fired in the usual manner to bring vessels to, and to hit
the hallyards.
Whereupon, the defendant was immediately arraigned,
and upon praying the benefit of clergy, Mr. Justice Willes
pronounced the sentence for burning him in the hand,
which was executed in the face of the Court, and he was
then discharged.
12a
E
APPENDIX E — Appendix
KING V. ONEBY
92 E.R. 465
(COURT OF THE KING’S BENCH 1727)
The K ing vers. Oneby.
[Referred to, Allen v. Flood [1898], A. C. 63.]
S. C. with the arguments of the counsel in
B. R. Str. 766, and with the indictment, evidence
and special verdict. 9 St. Tr. 14.
The killing of a man may be a murder altho’ he had
stricken the person who killed him before the mortal
wound was given. Acc. ante, 140, and see the books
there cited. A transport of passion shall never make
the killing of a man manslaughter only, unless it
deprived the party of his reasoning faculties from the
time when it was raised until the giving of the mortal
wound. S. C. 1 Barnard. B. R. 17, acc. Fort. 296. Any
act of deliberation in the interim affords a proof that
the party was not deprived of his reasoning faculties
during the whole of that period. S. C. 1 Barnard. B.
R. 17. A transport of passion shall not be taken to
continue an immoderate length of time. ’Tis properly
the province of the Court to determine what acts
afford proof of malice. D. acc. post, 1584, vide Burr.
396, 474, 937. 3 T. R. 428. What deliberation, and
within what time a transport of passion shall be taken
to have subsided, vide Sweetapple v. Appleton, B. R.
M. 23 G. 3. 1 T. R. 168, 169, 171. ’Tis a proof of malice
to tell a man deliberately after a quarrel, you will have
his blood. S. C. 1 Barnard. B. R. 17, of deliberation to
call a man back into a room he has quitted. ’Tis never
13a
Appendix E
to be presumed that the killing of a man took place
upon a sudden quarrel.
At the General Sessions of the Peace held at Hickes
Hall for the county of Middlesex 28th of Feb. in the 12th
year of His Majesty’s reign John Oneby of St. Martins in
the Fields, gent. was indicted, for that he the 2d of Feb.
12 Geo. at the said parish, feloniously, voluntarily, and of
his malice forethought, made an assault upon one William
Gower, Esq; and that he the said John Oneby, with a sword
which he had then and there held drawn in his right hand,
the said William Gower in and upon the left part of his
belly near the navel feloniously, voluntarily, and of his
malice forethought, did strike and thrust, giving the said
William Gower then and there with the said drawn sword
in and upon his said left part of his belly near the navel
a mortal wound, of which mortal wound the said William
Gower lived in a languishing condition from the said 2d
of Feb. to the third day of the said Feb. on which 3d day
of Feb. the said William Gower at the parish aforesaid
of the said mortal wound did die; and so the jurors find,
that the said Oneby the said William Gower feloniously,
voluntarily, and of his malice forethought, did kill, and
murder. Which indictment being delivered to the Justices
of Goal Delivery for Newgate, the said John Oneby was
arraigned thereupon, and pleaded not guilty. And upon
the trial, which was had before Mr. Baron Hale and Sir
William Thompson Recorder of London, the jury found the
special verdict following, viz. that the said John Oneby and
the said William Gower, together with John Rich, Thomas
Hawkins and Michael Blunt, were in company together in
a room in the Castle-Tavern in the parish of St. Martin’s in
14a
Appendix E
the Fields, in a friendly manner; that after the said John
Oneby, William Gower, John Rich, Thomas Hawkins and
Michael Blunt, had continued together in the said room
for the space of two hours, a box and dice were called for;
whereupon the drawer said, that be had dice but no box,
and that thereupon the said John Oneby commanded the
drawer to bring a pepper-box, and accordingly a pepperbox and dice were brought; that immediately after the said
John Oneby, William Gower, John Rich, Thomas Hawkins,
and Michael Blunt, began to play at hazard; and after
they [1486] had played half an hour, the said John Rich
asked if any of the company would set him three pieces of
money called half-crowns, that thereupon the said William
Gower in a jocular manner set three pieces of money called
halfpence, and then said to the said John Rich, that he had
set him three pieces; that the said John Oneby at the same
time set the said John Rich three half-crowns, which the
said John Rich won; and immediately the said John Oneby
in an angry manner turned to the said William Gower,
and said to him, that it was an impertinent thing to set
halfpence; and further said to the said William Gower that
he the said William Gower was an impertinent puppy in
so doing; to which the said William Gower then and there
answered, that whosoever called him so was a rascal; and
thereupon the said John Oneby took up a glass bottle, and
with great force threw it at the said William Gower, but
the glass bottle did not strike the said William Gower, but
passing by near his head brushed his peruke, which he
then had upon his head, and beat out some of the powder
out of his peruke; that thereupon the said William Gower
immediately after tost a glass or candlestick at the said
John Oneby, but the glass or candlestick did not hit the
15a
Appendix E
said John Oneby; upon which both the said John Oneby and
William Gower presently rose from their seats, to fetch
their swords, which then hung up in the room; and the said
William Gower then drew his sword out of the scabbard,
but the said John Oneby was hindred by others of the
company from drawing his sword out of the scabbard,
whereupon the said William Gower threw away his sword,
and by the interposition of the said John Rich, Thomas
Hawkins and Michael Blunt, the said William Gower
and John Oneby sat down again, and being so set down
continued for the space of an hour in company with the
said John Rich, Thomas Hawkins and Michael Blunt; that
after the expiration of that hour the said William Gower
said to the said John Oneby, We have had hot words, but
you was the aggressor, but I think we may pass it over;
and at the same time the said William Gower offered his
hand to the said John Oneby; to which the said John Oneby
then answered the said William Gower, No damn you, I
will have your blood; that afterwards the reckoning was
paid by the said John Oneby, William Gower, John Rich,
Thomas Hawkins and Michael Blunt; and that the said
William Gower, John Rich, Thomas Hawkins and Michael
Blunt went out of the said room, with an intent to go home,
leaving the said John Oneby in the room; that the said
John Oneby so as aforesaid remaining in the room, called
to the said William Gower, Young man come back, I have
something to say to you; that thereupon the said William
Gower returned into the said room and the door of the
room was immediately flung to, and shut, by reason of
which shutting of the door, all of the said company besides
the said William Gower and John Oneby were shut out of
the room; and that then after [1487] shutting of the door
16a
Appendix E
a clashing of swords was heard; then the jury find, that
the said John Oneby gave the said William Gower with his
sword the mortal wound in the indictment mentioned, of
which he died; but they further find, that at the breaking
up of the company the said John Oneby had his great coat
thrown over his shoulders, and that the said John Oneby
received three small wounds in the fighting with the said
William Gower; and that the said William Gower, being
asked upon his death-bed, whether he the said William
Gower had received his wounds in a manner among
swords-men called fair, answered, I think I did; and they
further find, that from the time the said Oneby threw
the glass bottle at the said William Gower, there was no
reconciliation between the said John Oneby and William
Gower: and whether this is murder or manslaughter, the
jury pray the advice of the Court: and if, &c.
So that the question upon the special verdict is,
whether John Oneby-the prisoner at the Bar is guilty of
murder or manslaughter.
A great deal of time was spent in drawing up this
special verdict; for altho’ the trial at the Old Bailey was
in the beginning of last March was twelve months, yet
the record was not removed into this Court till Hilary
term last; towards the end of which term it was argued
by counsel on both sides, and another argument being
desired by the counsel for the prisoner, we thought it
proper, to desire the opinion of all the rest of the Judges;
and for that purpose it was argued before all the Judges at
Serjeants Inn Hall in Chancery Lane upon the 6th day of
May last; which was as soon as all the Judges could meet
17a
Appendix E
by reason of the intervention of the circuits. And after
mature consideration had, upon a meeting of them, they
seriatim gave their opinions; and came to this resolution
unanimously, not one of them dissenting, and which I have
authority from them to declare, viz. that John Oneby the
prisoner at the Bar, upon the facts found upon special
verdict, is guilty of murder.
Without entring into a nice examination of the several
definitions or descriptions of murder, as they are found in
the old law-books, as Bracton, Briton, and Fleta where the
wickedness of the act is aggravated by the circumstances
of secrecy or treachery; murder has been long since settled
to be, the voluntary killing a person of malice prepense,
and that whether it was done secretly, or publickly.
Staundf. pl. Cor. 18 b. 3 Inst. 54.
But then it must be considered, what the word malice
in such case imports. In common acceptation malice is took
to be a settled anger (which requires some length of time)
in one person against another, and a desire of revenge. But
in the legal acceptation, it imports a wickedness, which
[1488] includes a circumstance attending an act, that cuts
off all excuse. By the 25 H. 8, c. 33, for taking away clergy,
it is enacted, that every person, who shall be indicted of
the crimes therein mentioned, and thereupon arraigned,
and stand mute of malice or of frowardness of mind, shall
lose the benefit of his clergy. Now in that place malice can
never be understood in the vulgar sense, for the party
cannot be thought to stand mute out of a settled anger, or
desire of revenge, but only to save himself; and therefore
such standing mute, and refusing to submit to the course
18a
Appendix E
of justice, is said to be done wickedly, i.e. without any
manner of excuse, or out of frowardness of mind.
This malice, an essential ingredient to make the
killing a person murder (to use the expressions of Lord
Chief Justice Coke and Lord Chief Justice Hale, whose
authority hath established them) must be either implied
or express; and says Hale in his Pleas of the Crown 44,
this implied malice is collected, either from the manner
of doing, or from the person slain, or the person killing.
As to the two last, there is no occasion at present, to take
them into consideration.
1. As to the first, viz. from the manner of doing, as
Hale expresses it, or as Holt Chief Justice, Kelynge 126,
says, from the nature of the action. 1. Wilfully poisoning
any man implies malice. 2. If a man doth an act, that
apparently must do harm, with an intent to do harm, and
death ensues; it will be murder. As if A. runs with a horse
used to strike, among a multitude of people, and the horse
kills a man; it will be murder, for the law implies malice
from the nature of the act. 3. Killing a man without a
provocation is murder; as if A. meets B. in the street, and
immediately runs him through with a sword, or knocks out
his brains with a hammer, or bottle. And if angry words
had passed in that case between A. and B. yet it would
have been murder in A. because (a)1 words are not such a
provocation, as will prevent such a homicide from being
murder; Lord Morley’s case, Kelynge 56. 4. The law will
imply malice from the nature of the original action, or
1. (a) R. acc. ante, 140, and see the books there cited.
19a
Appendix E
first assault, tho’ blows pass between the parties, before
the stroke is given, which occasions the death. As if upon
angry words, or abusive language, between A. and B. of
a sudden, A. without any provocation (for angry words
or abusive language in such a case is looked on as none)
draws his sword immediately, and makes a pass at B. or
strikes at him with any dangerous weapon, as a pistol,
hammer, large stone, &c. which in probability might kill
B. or do him some great bodily hurt, and then B. draws his
sword, and mutual passes are made, and A. kills B. this
will be murder; for the act was voluntary, and it appears
from the nature of it, that it was done with an intent to
do mis-[1489]-chief; and therefore since in all probability
it might have occasioned B.’s death, or done him some
great bodily harm, the law implies malice prepense; and
the resistance or passes that were made by B. were but
in the defence of his person, which was violently and
cruelly attacked. And this was the resolution of Kelynge
Chief Justice, Twisden, Windham, and Morton Justices,
in Hopkin Huggers case, Kelynge 62, cit. ante, 1300, 1302.
And though in the principal case the eight other Judges
differed in opinion from the four Judges in the King’s
Bench, yet to this opinion of the four the eight Judges did
agree, as Kelynge took it. And this was the true reason of
Mawgridge’s case, Kel. 119, the judgment in which case
is a great authority in this case, that not being so strong
a case as the present case. It was indeed objected by the
counsel for the prisoner at the Bar in their arguments in
the present case, 1. That Mawgridge’s case was a single
case, that the judgment in that case had carried murder
further than it had ever been carried before. 2. That it was
not determined with the unanimous opinion of all the then
20a
Appendix E
Judges, for one very great Judge of the then twelve, viz.
Lord Trevor, differed from the other Judges, and held it
was only manslaughter. But upon our meeting to consider
of this present case, all the Judges unanimously agreed,
that Mawgridge’s case was undoubted law, and that that
judgment was a right and just judgment so groundless
was that insinuation which had been made (for such an
insinuation there was) in Westminster-Hall, that some of
the present Judges were of opinion, that the judgment in
Mawgridge’s case was not a legal judgment.
And this is as much as is necessary, rather more than
is necessary, to be said as to implied malice, since there
will be no occasion in this case to look out for malice
implied.
2. Malice express, is a design formed of taking away
another man’s life, or of doing some mischief to another, in
the execution of which design death ensues. And this holds,
where such design is not formed against any particular
person; as if A. having no particular malice against any
particular person, comes with a general resolution against
all opposers; if the act be unlawful, and death ensue, it is
murder. As if it be to commit a riot, to enter into a park,
Lord Dacre’s case, H. P. C. 47. Moor 86. Say. 67. So if A.
goes with a resolution to kill the first man he meets, and
meeting B. kills him, it is murder with express malice; yet
A. had riot declared any malice against B. nor against any
particular person. Much more will it be express malice,
when the mischievous design is formed against any
particular person, which may be made evident as well by
circumstances as by the express declarations of the person
21a
Appendix E
killing. As that he would be revenged of B. or that he [1490]
would have his life, or have his blood, and some time after
he kills B. And that such declarations spoken seriously,
or deliberately, or after time for reflection, manifest an
express malice, no body can doubt.
Having thus briefly mentioned that known and settled
rule, that there must be either malice express or implied,
to make murder, and also some instances of what is one
and what the other of them; I come to the present case
before us.
All the twelve Judges were unanimous in opinion, that
as the facts are founded in this special verdict, it appears,
that the prisoner at the bar had express malice against
Mr. Gower, when he gave him the mortal wound, of which
he died: 1. Mr. Gower did nothing that could reasonably
raise a passion in Mr. Oneby. He gave him no provocation
whatsoever, for when Mr. Gower set the three halfpence,
he set them against Mr. Rich, and that in a jocular manner,
therefore that was no affront to Mr. Oneby. 2. Upon that
Mr. Oneby turned to Mr. Gower in an angry manner, and
gave him abusive language, and called him impertinent
puppy; the answer of Gower was not improper, nor more
than what might be expected, that whosoever called him
so was a rascal. 3. That as Oneby had before began with
Gower, by giving him abusive language, so he then took
up the glass bottle, et magna cum vi threw it at Gower,
and beat the powder out of his peruke; if it had killed G.
it had been certainly murder; upon which Gower tossed
a glass or candlestick at Oneby. And the difference of
the finding in the special verdict is observable, Oneby
22a
Appendix E
threw the bottle at G. magna cum vi; Gower only tossed
the glass or candlestick at Oneby. 4. When they fetched
their swords, Gower did it only to defend himself; for the
verdict finds, that though G. drew his sword first, yet the
prisoner at the Bar being hindred by the company from
drawing his sword, Gower thereupon threw his sword
away. 5. By the interposition of the company the prisoner
at the Bar and Mr. Gower sat down again, and continued
in company for an hour, after which Mr. Gower said, We
have had hot words, but you was the aggressor, but I think
we may pass it over, and offered his hand to the prisoner;
that the prisoner at the Bar was the aggressor is true,
and that in a violent manner; this was sufficient, to have
appeased Mr. Oneby, but what is his answer? No, damn
you, I will have your blood. There is an express declaration
of malice, an express declaration of a design of taking away
Mr. Gower’s life. These words are incapable of any other
construction. These words shew his malicious intent, even
in throwing the bottle at first; they are spoken an hour
after the first action; and are spoken with deliberation.
The next fact [1491] the jury find is, that afterwards (not
particularly finding what interval of time passed between
the speaking these words, and what is found next) that
Mr. Gower, Rich, Hawkins, and Blunt went out of the
room, with an intent to go home, leaving the prisoner at
the Bar in the room; that the prisoner remaining in the
room, called to the said William Gower, saying, Young
man, come back, I have something to say to you. These
words also shew a plain deliberation, and being attended
with the circumstances found before, and what follows
immediately, import contempt, Young man, come back,
are insolent and imperious, and import a resentment
23a
Appendix E
he had conceived against Mr. Gower, about which he
had something to say to him. For what purpose did the
prisoner stay, after all the company had left the room, to go
home it was to say something to Mr. Gower. What is that?
Why as soon as Mr. Gower is returned into the room, the
door was immediately flung to, and shut; and the rest of
the company shut out; and then after shutting the door, a
clashing of swords was heard, and the prisoner gave Mr.
Gower the mortal wound of which he died.
These immediate subsequent facts shew, what it was
the prisoner had to say to Mr. Gower; it was to carry the
malicious design, he had before declared he had against
Mr. Gower, into execution, viz. to have his blood; and he
had it, for he gave him the wound of which be died.
To go farther; if the prisoner had malice against Mr.
Gower, though they fought after the door was shut, the
interchange of blows will make no difference; for if A.
has malice against B. and meets B. and strikes him, B.
draws, A. flies to the wall, A. kills B. it is murder. H. P.
C. 42. Kelynge 58.
Nay, if the case had been, that there had been mutual
malice between the prisoner and Mr. Gower (which does
not appear to have been on the part of the deceased) and
they had met and fought upon that malice; the killing Mr.
G. by the prisoner had been murder. H. P. C. 47. 1 Bulstr.
86, 87. Hob. 121. Crompt. 21.
The Judges were all of opinion upon the facts found in
this verdict, there appeared to be express malice in Oneby
24a
Appendix E
against Mr. Gower, and then Oneby killing Gower, having
such express malice against him, they were all unanimous
and clear of opinion, that this was plainly murder.
Having thus mentioned the reasons, upon which we
ground this present resolution; I shall next consider, if any
of the objections made by the counsel for the prisoner are
[1492] an answer to these reasons, or take off the force
of them.
The counsel for the prisoner Mr. Oneby insisted, that
upon the whole verdict the case was no more, than that
from a slight occasion passionate words arose, mutual
reproaches passed, the quarrel was sudden, mutual
assaults were made, and on a sudden fighting in heat of
passion the prisoner killed the deceased; which can be no
more than manslaughter.
That such fact could amount to no more than
manslaughter, they cited the known case, that if A. and
B. fall out upon a sudden, and they presently agree to
fight, and each fetches his weapon, and go into the field,
and fight, and one of them kills the other; this is but
manslaughter, H. P. C. 48. 3 Inst. 57, because the passion
was never cooled.
In this case (said they) it is plain, the quarrel arose on
a sudden; Mr. Oneby’s passion was raised, and that is not
found by the jury to have ever been cooled, and therefore:
the words Mr. Oneby spoke, No, damn you, I will have
your blood, &c. were only words of heat spoke under the
continuance of the first passion. And they further insisted,
25a
Appendix E
that the law had fixed no time, in which the passion must
be took to be cooled; but that depends upon circumstances,
of which the jury are the proper judges. In this case the
whole time that passed between the quarrel and giving
the mortal wound, was but little more than an hour; and
it has been adjudged, that the passion shall not be took
to be cooled in very near that time in 12 Co. 87. Cro. Jac.
296. H. P. C. 48, Rowley’s case, where the child of A. beat
the child of B. B.’s child all bloody ran home to his father;
B. the father ran three quarters of a mile, and beat the
child of A. by means whereof he died; this was adjudged
to be only manslaughter; yet there must have been a
considerable time after B. was provoked by the usage of
his child, before he killed A.’s child, because he ran three
quarters of a mile; yet it being one continued passion
raised in B. upon the beating of his child, it was held this
was only manslaughter. And in this present case, to show
the passion of Mr. Oneby, which was suddenly raised, was
not cooled; the counsel for Mr. Oneby observed, that the
jury had expressly found, that there was no reconciliation
between Oneby the prisoner and Mr. Gower the deceased,
from the time Mr. Oneby first threw the bottle.
This I take to be the chief objection, upon which the
counsel for the prisoner principally relied.
[1493] In answer to this objection I must first take
notice, that where a man is killed, the law will not presume,
that it was upon a sudden quarrel, unless it is proved so to
be; and therefore in Legg’s case, Kelynge 27, it was agreed
upon evidence, that if A. kills B. and no sudden quarrel
appears, it is murder, for it lies upon the party indicted,
to prove the sudden quarrel.
26a
Appendix E
In the next place, from what I have said before it
appears, that though a quarrel was sudden, and mutual
fighting before the mortal wound given; it is by no means
to be took as a general rule, that the killing a man will
be only manslaughter. It is true, if reproachful language
passes between A. and B. and A. bids B. draw, and they
both draw, (it is not material which of them draws first)
and they both fight, and mutual passes are made; death
ensuing from thence (a) 2 will be only manslaughter,
because it was of a sudden, and each ran the hazard of his
life. But there is a wide difference between that case, and
where upon words A. draws his sword, and makes a pass
at B. or with some dangerous weapon attacks him, and
then B. draws, and they fight, and A. kills B. there though
there was a quarrel upon abusive language, and there
was afterwards a. mutual fighting, yet since A. attacked
B. with a weapon or instrument, which might have taken
away B.’s life, though they fought afterwards, that will
be murder. And this was agreed by all the Judges in the
present case.
But for argument’s sake, and it is only for argument’s
sake, and to give the objection made by the counsel for the
prisoner it’s full force; if it should be looked on here, that
what is found in the former part of the verdict was upon
a sudden quarrel, and only the effect of passion; yet if it
appears upon the special verdict, that there was sufficient,
time for this passion to cool, and for reason to get the
better of the transport of passion, and the subsequent
acts were deliberate, before the mortal wound given; the
killing of the deceased will be murder.
2. (a) Vide Fort. 295.
27a
Appendix E
And all the Judges were of opinion, that upon
consideration of the facts found, it appeared, there had
been sufficient time for Mr. Oneby’s transport of passion
to cool, and that he had deliberated, and that the killing of
Mr. Gower was a deliberate act, and the result of malice
Mr. Oneby had conceived against the deceased.
But before I mention their reasons, I must lay down
this proposition, which they all agreed, viz. that the
Court are judges of the malice, and not the jury; and
that the Court are also judges upon the facts found by
the jury, whether, if the quarrel was sudden, there was
time for [1494] the passion to cool, or whether the act was
deliberate or not?
Upon the trial of the indictment the Judge directs
the jury thus, if you believe such and such witnesses, who
have sworn such and such facts, the killing the deceased
was with malice prepense express, or it was with malice
implied, and then you ought to find the prisoner guilty of
murder; but if you do not believe those witnesses, then
you ought to find him guilty of manslaughter only: and
so according to the nature of the case, if you believe such
and such facts, the act was deliberate, or not deliberate;
and then you ought to find so and so. And the jury may, if
they think proper, give a general verdict, either that the
prisoner is guilty of murder, or of manslaughter. But if
they decline giving a general verdict, and will find the facts
specially, the Court is to form their judgment from the
facts found, whether there was malice or not, or whether
the fact was done on a sudden transport of passion, or was
an act of deliberation or not.
28a
Appendix E
Although there are many special verdicts in indictments
for murder, there never was one, where the jury find in
express terms, that the act was done with malice, or was
not done with malice prepense, or that it was done upon
a sudden quarrel and in transport of passion, or that the
passion was cooled, or not cooled, or that the act was
deliberate, or not deliberate; but the collection of those
things from the facts found is left to the judgment of the
Court. Holloway’s case, Palm. 545. Cro. Car. 131. W. Jones
198. So in the case cited by the counsel for the prisoner,
Cro. Jac. 266, Rowley’s case, the jury find the fact, but
don’t find in express terms, that the father, whose child
was beat, killed the other child in a sudden heat of passion;
but that was left to the judgment of the Court, upon the
particular facts found.
But then it is objected, that the law has fixed no time
in which the passion must be supposed to be cooled. ’Tis
very true, it has not, nor could it, because passions in some
persons are stronger and their judgments weaker than in
others; and by consequence it will require a longer time in
some, for reason to get the better of their passions, than
in others; but that must depend upon the facts, which
shew whether the person has deliberated or not; for acts
of deliberation will make it appear, whether that violent
transport of passion was cooled or no.
But thus far the resolutions of the Judges have already
gone, and it has been adjudged, that if two fall out upon a
sudden, and they appoint to fight next day, that the passion
by that time [1495] must be looked on to be cooled; and
in such case, if they meet next day, and fight, and the one
29a
Appendix E
kills the other at that meeting, it has been often held to
be murder. Hale P. C. 48.
To go a little further: if two men fall out in the
morning, and meet and fight in the afternoon, and one of
them is slain; this is murder; for there was time to allay
the heat, and their meeting is of malice. So is Legg’s case,
Kelyng 27.
At the meeting of all the Judges before Lord Morley’s
trial by the peers for the murder of one Hastings, they
all agreed, that if upon words two men grow to anger,
and afterwards they suppress that anger, and then fall
into other discourse, or have other diversions, for such
a reasonable space of time as in reasonable intendment
their heat might be cooled, and some time after they
draw upon one another, and fight, and one of them is
killed; this is murder, because being attended with such
circumstances, it is reasonably supposed to be a deliberate
act, and a premeditated revenge upon the first quarrel.
But the circumstances of such an act being matter of fact,
the jury are judges of them, Kelyng 56. The meaning of
which last words is, that the jury are judges of the facts,
from which those circumstances are collected. But as I
said before, when those facts are found, the Court is to
judge from them, whether they do not shew the act was
deliberate or not.
Lord Morley upon his trial by the peers was acquitted;
and after that in Easter term 18 Car. 2, Broomwich, who
was indicted as a principal, in being present, aiding and
abetting Lord Morley in the murder of Hastings, was tried
30a
Appendix E
at the King’s Bench Bar. The quarrel was at a tavern; but
it was proved, when the quarrel was at the tavern, that
Lord Morley said, if we fight at this time, I shall have a
disadvantage, by reason of the height of my shoes; and
presently after they went into the fields and fought, Lord
Morley killed Hastings but while they were fighting,
Broomwich made a thrust at Hastings, and Lord Morley
closed in with Hastings, and killed him; and (says the
book) this was held as clear evidence of their intention to
fight, when they went out of the tavern; and the quarrel
being only about words, and fighting in a little time after,
it was held murder by all the Court. And there need not
be a night’s time between the quarrel and the fighting, to
make it murder, but such time only as it may appear not
to be done on the first passion; for Lord Morley considered
the disadvantage of his shoes: and the Court directed the
jury, that it was murder in Broomwich, being present
and aiding; but the jury acquitted him. 1 Sid. 277 reports
the same case, and says, that the Court in the direction
to [1496] the jury laid it down, that after the provocation
in the house, they say, this is no convenient place (and so
have reason, to judge of conveniency) and appoint another
place, though the fight is to be presently; this is murder,
for the circumstances shew their temper.
In H. P. C. 48, if A. and B. fall out, A. says be will not
strike, but will give B. a pot of ale to touch him, B. strikes,
A. kills him; murder.
Two quarrel; the one says, If you’ll go into the field I
will break your head, and there one kills the other; murder.
Crompt. 25, p. 49.
31a
Appendix E
Two fall out on a sudden in the town, and they by
agreement go into the field presently, and one kills the
other; murder. Crompt. 23, fol. 31.
From these cases it appears, that though the law of
England is so far peculiarly favourable (I use the word
peculiarly, because I know no other law that makes such
a distinction between murder and manslaughter) as to
permit the excess of anger and passion (which a man
ought to keep under and govern) in some instances to
extenuate the greatest of private injuries, as the taking
away a man’s life is; yet in those cases it must be such
a passion, as for the time deprives him of his reasoning
faculties; for if it appears, reason has resumed its office;
if it appears he reflects, deliberates, and considers before
he gives the fatal stroke, which cannot be as long as the
fury of passion continues, the law will no longer under that
pretext of passion exempt him from the punishment, which
from the greatness of the injury and heinousness of the
crime he justly deserves, so as to lessen it from murder
to manslaughter. Let us see therefore, whether upon this
special verdict it appears, that the fighting and killing Mr.
Gower was only done in heat of passion, or was a deliberate
act. By what I observed before, it plainly appears, it was a
deliberate act. But to recapitulate in short: after the words
had passed, and the bottle was thrown by the prisoner,
and swords drawn; by the interposition of friends they sat
down, and continued in company for an hour (a reasonable
time under those circumstances for the passion to cool,)
and after that hour expired, the deceased says, We have
had hot words, but you was the aggressor, but I think we
may pass it over, and at the same time offered his hand
32a
Appendix E
to the prisoner, which was enough to have appeased the
prisoner; to this Mr. Oneby answered, No, damn you, I’ll
have your blood, words expressing malice, not passion:
then when the company went out of the room, the prisoner
staid, and called the deceased back; Young man, come
back, I have something to say to you; [1497] the door was
immediately shut, clashing of swords was heard, and the
deceased received the mortal wound from the prisoner at
the Bar. The prisoner’s words shew what was his intention,
viz. to take away Mr. Gower’s life; and the killing him may
properly be said to have been done upon deliberation and
consideration.
The counsel for the prisoner in their arguments
insisted, that there were several circumstances found in
the special verdict in favour of the prisoner, which were a
foundation for the Court, to construe the other expressions
to be only words of heat, and that what he did was in the
heat of his first passion, which was never cooled, and not
out of malice. As, 1. It is found, that at the breaking up of
the company Mr. Oneby had his great coat thrown over
his shoulders, from whence it would be a strain to think he
then intended to fight with Mr. Gower. 2. It might be Mr.
Gower who shut the door, who came back after he was out
of the room, the jury not having found who shut the door.
3. That it was found, there was no reconciliation between
them, from the throwing the bottle at Mr. Gower. But as
to the first of these objections, considering the words the
prisoner used after this, and after the deceased was out
of the room, and what followed; since the jury have found
this fact, without saying any more about it, the natural
construction is, that this was only used by the prisoner
33a
Appendix E
as a blind to the company, to conceal from them his real
intention, till they were gone out of the room. As to the
second, it stands uncertain upon the verdict, but it is an
uncertainty which can have no influence upon the present
determination; for if Mr. Gower had shut the door, that
would not alone have materially altered the case. As to
the third, since express malice before appeared to be in
the prisoner, the finding that fact does not import, that
the first heat of passion continued only, but that the malice
continued.
The counsel for Mr. Oneby farther objected, that it
appeared, there was a mutual fighting after the door was
shut; for it is found, that he received three slight wounds;
then it is not found, who drew first, or made the first
assault after the door was shut; and it was possible, a
new sudden quarrel might then arise, in which Mr. Gower
might be the aggressor; and therefore the special verdict
was uncertain in a material point. The answer to which is,
what is said in Legg’s case, Kelyn. 27, cited before; that if
A. kills B. and no sudden quarrel appears, it is murder; for
it lies on the party indicted, to prove the sudden quarrel;
and therefore the jury not having found any such thing for
the prisoner’s benefit, it is to be took, there was no such.
This is said, supposing the latter part of the verdict could
be [1498] considered, without regarding the former part
of it; and that when the company went out of the room, the
prisoner and Mr. Grower were reconciled. But however
that might have done, here it appears there was no
reconciliation, and therefore there can be no imagination
of a new original quarrel in the room, after the door was
shut. And as to the slight wounds the prisoner received,
34a
Appendix E
that is immaterial, for be having malice against Mr. Gower,
though there was a mutual fighting, and the prisoner was
wounded, yet when be killed Mr. Grower it will be murder.
The last fact in the special verdict, which they relied
on was, when Mr. Grower was asked upon his death-bed,
whether he had received his wounds in a manner among
swordsmen called fair, he answered I think I did; whereby
the deceased sheaved, he was satisfied the act was fair.
The answer to which is plain, that if A. having malice
against B. and they meet and fight, though the fight is
never so fair according to the laws of arms, yet if A. kills
B. it will be murder.
The cases the counsel for the prisoner principally
relied on to make this fact only manslaughter, were
Rowley’s case, 12 Co. 87, and Turner’s case, Comberbatch
407, 8.
As to 12 Co. 17, the case was, that two boys fighting
together, the one of them was scratched in the face, and he
bled a great deal at the nose, and so he run three quarters
of a mile to his father, who seeing him very bloody, took
in his hand a cudgel, and went three quarters of a mile
to the other boy, and struck him upon the head, upon
which he died; and it was held but manslaughter, for (a) 3
the passion of the father continued. And there is no time,
that the law can determine, that it was so settled, that it
should be adjudged malice prepense.
3. (a) Vide Fort. 294.
35a
Appendix E
To which the answer is plain for the reason given
in Cro. Jac. 269, which is the same case, that the father
having no anger, before, but being provoked upon the
complaint and sight of his son’s blood, and in that anger
beating him, of which he died; the law adjudged it to be
upon that sudden passion. But that is, considering what has
been said before, clearly distinguishable from the present
case; besides it may be added, it was but a little cudgel
he struck with, from which no such fatal event could be
reasonably expected.
Turner’s case was this; his wife complained, the boy
had not cleaned her clogs, upon which Mr. Turner took
up a clog and struck him on the head, and killed him; and
though there was no other provocation it was only held
manslaughter. [1499] But the reason of that was, because
the clog was so small, there could be no design to do any
great harm to the boy, much less to kill him; and a master
may correct a servant in a reasonable manner for a fault.
And Lord Chief Justice Holt, in Comberbatch 408, says,
that in that case it was an unlikely thing, meaning that the
clog should kill the boy. The counsel for the prisoner being
apprehensive of the authority of Maugridge’s case, Kelyng
119, besides the observations they had made, mentioned
before, to induce the Court to look upon that judgment
as not warranted by law; endeavoured to distinguish the
present case from it, supposing it to be law. And 1st, they
said, that in Maugridge’s case the bottle hit Mr. Cope and
stunned him; but here the bottle did not hit Mr. Grower,
but only brushed some powder out of his peruke. 2dly,
in Maugridge’s case the bottle was full of wine; here it
is not found to have been so, and therefore must be took
36a
Appendix E
to have been empty; and the size of the bottle does not
appear, it might be very small. 3dly, Maugridge drew
his sword immediately after throwing the bottle without
intermission; here Mr. Gower’s sword was first drawn.
4thly, Mr. Cope never drew; here Mr. Gower not only drew
the first, but clashing of swords were heard, so there must
have been fighting.
It is very true (so far as those facts will make a
difference) this present case is distinguishable from
Maugridge’s case; for that case was determined only upon
an implied malice (but as I said before, was very rightly
and justly determined, as we all agreed;) for strictly and
properly speaking, although the words express malice is
mentioned in the reasons given for that resolution, yet it
was but malice implied. But still this way of distinguishing
the present case from Maugridge’s will be of no service
to the prisoner; because though all the Judges held, this
case was distinguishable from Maugridge’s case, it was
in respect that this was a much stronger case as to the
murder, the jury having found facts which skew Mr.
Oneby had an express malice against Mr. Gower. Upon
the whole matter this Court, with the concurrent opinion
of all the other Judges, is of opinion, that the prisoner at
the Bar John Oneby, by this special verdict is found guilty
of murder.
The prisoner being, after this resolution pronounced,
intitled by the course of the Court to have four days to
move in arrest of judgment, he was sent back to Newgate,
and a rule for bringing him up to receive judgment the
end of the week, was made; before which time an account
37a
Appendix E
came of the death of His late Majesty at Osnaburgh the
11th of June. And afterwards at the time appointed by
the rule he was brought to the Bar, and judgment was
pronounced against him, and execution awarded. After
which a pretty strong [1500] application was made to His
Majesty King George the Second for a reprieve; but he was
pleased to declare, that the Judges having adjudged the
prisoner guilty of murder, the law should take its course.
In which attempt the prisoner not succeeding, he killed
himself in Newgate in the night before the day appointed
for his execution, by cutting through the great artery in
his arm with a razor, by which he bled to death.
Memorandum, as soon as I had delivered this
resolution, I desired my brothers Fortescue, Reynolds
and Probyn, that if they disapproved any thing I have laid
down, they would express their disapprobation; but they
publickly declared, they concurred in omnibus.
38a
Appendix
F
APPENDIX F — BARON
SNIGGE
V. SHIRTON
79 E.R. 173 (1607)
[199] Case 28. Baron Snigge against Shirton.
In the Star-Chamber.
The possession of a termor is the possession of the lessor;
and therefore, if a tenant for years, at the expiration
of his term, keep his house with unusual weapons
against a purchaser of the reversion to whom he has
long paid rent, under colour of a lease from another, it
is a forcible detainer, though no one attempts to enter.
F. N. B. 249. Lamb. 145. Dalt. c. 77. 2 Bac. Ab. 559.
1 Hawk. P. C. 281. 288. 290.
Shirton being tenant for years, Baron Snigge
purchased the reversion, and he paid to him rent for fifteen
years. Before the end of the term, one Chambers came to
Shirton, and persuaded him that Alexander Staples had
title to the land, and advised him to take a lease from him;
whereupon he took a lease of him for ten years, rendering
seventy pounds per annum, and the land was worth one
hundred and forty pounds per annum; and willed him to
hold the possession against all persons; and he, at the end
of his first term, kept the possession with drum, guns, and
halberts, &c. (The drum was only to give notice if any came
to enter, but no body offered to enter.) He was censured
for this, being a riot and forcible detainer, although none
other offered to enter.
For it was held, that the possession of the termor was
the possession of the lessor; and when, at the end of the
39a
Appendix F
term, he kept it against him to whom he had so long paid
his rent, it was a forcible detainment. And whereas the
statute 31 Eliz. c. 11. is, that where one bath had possession
for three years quietly, be might hold the possession with
force, that is to be intended where the estate is continued.
And for this offence Shirton was fined five hundred
pounds; and Chambers, for counselling and stirring up
that title, was fined three hundred pounds; and all the
servants in the house, which kept it with weapons, were
fined ten pounds a-piece. But Alexander Staples was not
censured; for he made the lease only, but did not command
him to keep the possession with force.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.