Provocation and Responsibility

By Jeremy Horder | Go to book overview

2
The Seventeenth Century

When men had a glowing ambition to excel in all manner of feats and exercises they naturally conceived that manslaughter in an HONEST way . . . was the most chivalrous and gentlemanly of all their achievements.1

It was during the seventeenth century2 that the foundations of the modern doctrine of provocation were laid. That is to say, threshold conditions for the availability of the mitigation provided by the doctrine were developed. These were clearly what the modern lawyer would consider to be an early analogue of the present combination of factual or subjective, and evaluative or objective, criteria for desert of mitigation.3 These developments will be considered in due course.

None the less, it has proved tempting for commentators to overemphasize continuities with the past, a mistake perhaps due to fear of error or to a wish not to satisfy historical curiosity simply for the sake of it. It has been a costly mistake. If seventeenth-century developments are set in their proper historical context, they reveal a highly distinctive legal superstructure erected on the late medieval foundations, a superstructure rather different from that which now governs the law.4


1. A PUZZLE ABOUT THE CATEGORIES OF SUFFICIENT PROVOCATION

The seventeenth century is traditionally associated with two important developments concerning the doctrine of provocation. The first was confirmation that the doctrine was no condescension to deliberate killings out of pure cold-blooded revenge for a provocation given; only provoked

____________________
1
Anonymous Irish duellist, cited by Baldrick ( 1965: 102).
2
Included within the notion of '17th-c.' developments will be developments naturally belonging to it, or reflecting explanatory light on it, such as the cases of R. v. Mawgridge ( 1707) Kel. 119, and R. v. Tooley ( 1709) 2 Ld. Raym. 1296; Holt KB 485, and the 16th- and 18th-c. writers on honour. The classification is largely one of convenience.
3
For the meaning of the factual-subjective and evaluative-objective criteria, see Introd. above.
4
The ensuing sections contain a good deal of citation from 16th-, 17th-, and 18th-c. writers and cases. It is hoped that this will not make reading the chapter too wearisome. It is simply too difficult to capture the real flavour of the early modern mind by second-hand explanation rather than by citation and accompanying commentary.

-23-

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Provocation and Responsibility
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vi
  • Preface vii
  • Acknowledgements viii
  • Contents ix
  • Abbreviations x
  • Table of Statutes xiii
  • Table of Cases xiv
  • Introduction 1
  • 1- The Early Centuries Of Development 5
  • 2- The Seventeenth Century 23
  • 3- Honour, Anger, and Virtue 43
  • 4- Anger as Outrage 59
  • 5- The Rise of Loss Of Self-Control 72
  • 6- Justifying Mitigation Morally 111
  • 8- Excusing Action in Anger 156
  • 9- Anger, Mitigation, and Gender 186
  • References 199
  • Index 205
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