Amicus Curiae Brief — Cutberto Viramontes, et al., Petitioners v. Cook County, Illinois, et al.

Supreme Court briefAug 31, 2026

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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

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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

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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,

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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.

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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.

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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

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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.

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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

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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.

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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

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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

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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.

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