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‘Red mist’ homicide: sexual infidelity and the English law of murder (glossing Titus Andronicus)

Published online by Cambridge University Press:  02 January 2018

Adrian Howe
Adrian Howe*
Affiliation:
Griffith University
*
Adrian Howe, Adjunct Research Fellow, Socio-Legal Research Centre, Room 0.04 N61, Law School, Griffith University, Nathan Campus, 170 Kessels Road, Nathan, Queensland 4111, Australia. Email: [email protected]
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Abstract

For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder in Titus Andronicus.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 3 , September 2013 , pp. 407 - 430
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

*

Research for this paper was conducted during my visiting professorial fellowship at Queen Mary Law School, University of London. An earlier version was delivered at a seminar in the School in October 2011. I thank those present for their comments. Once again, I acknowledge the inspired work of Eric Heinze in the law and Shakespeare field, and wish to thank him for all his support. Thanks also to the referees for their informed and constructive comments. Citations follow lineation and typesetting in EM Waith (ed) William Shakespeare: Titus Andronicus (Oxford: Oxford University Press, 2008).

References

1. Horder, J ‘Reshaping the subjective element in the provocation defence’ (2005) 25 OJLS 123 CrossRefGoogle Scholar at 131–132. Gough's observation in 1999 that provocation has ‘long been a puzzle’ which scholarly debates have ‘often seemed to deepen’ remains relevant. Gough, S ‘Taking the heat out of provocation’ (1999) 19 OJLS 481 at 492CrossRefGoogle Scholar.

2. A search of law-based e-resources reveals over 16,000 law journal articles and commentaries on the law of provocation. See Quick, O and Wells, C ‘Getting tough with defences’ (2006) 514 Crim LR 514 at 524–525Google Scholar, on the importance of the ‘gender context’ and the ‘general denial of gender as relevant factor’ in domestic provocation cases. For a discussion of some of the extensive feminist law scholarship on provocation's gender bias, see Howe, A ‘Provoking polemic: provoked killings and the ethical paradoxes of the postmodern feminist condition’ (2002) 10 Feminist Legal Studies 39 CrossRefGoogle Scholar and Howe, A ‘Provocation in crisis: law's passion at the crossroads? New directions for feminist strategists’ (2004) 21 Australian Feminist Law Journal 55 CrossRefGoogle Scholar. Key foundational feminist critiques include: Taylor, L ‘Provoked reason in men and women: heat-of-passion manslaughter and imperfect self-defence’ (1986) 33 UCLA Law Review 1679 Google Scholar; Allen, H ‘One law for all reasonable persons?’ (1988) 16 International Journal of the Sociology of Law 419 Google Scholar; Coker, Dk ‘Heat of passion and wife killing: men who batter/men who kill’ (1992) 2 Southern California Review of Law and Women's Studies 71 Google Scholar; Lees, S ‘Lawyer's work as constitutive of gender relations’ in Cain, Me and Harrington, Cb (eds) Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994) andGoogle Scholar Bandalli, S ‘Provocation: a cautionary note’ (1995) 22 Journal of Law and Society 398 CrossRefGoogle Scholar.

3. This exclusion has attracted surprisingly little attention in criminal law scholarship, but see Edwards, S ‘Anger and fear as justifiable preludes for loss of self-control’ (2010) 74 J Crim Law 223 at 230–232 andCrossRefGoogle Scholar Miles, J ‘the Coroners and Justice Act 2009: a “dog's breakfast” of homicide reform’ (2009) 6 Archibold News 6 Google Scholar.

4. Quoted in R Verkaik ‘Judge backs infidelity defence for killers’ (2008) The Independent 7 November.

5. I have suggested elsewhere that piecemeal approaches to reform are unlikely to succeed. See, eg, Howe, A ‘Reforming provocation (more or less)’ (1999) 12 Australian Feminist Law Journal 127 CrossRefGoogle Scholar.

6. Horder, Memorandum to Public Bill Committee, January 2009.

7. Hansard, Testimony to Public Bill Committee, col 28, 4 February 2009.

8. JR Spencer ‘Response to Ministry of Justice Consultation Paper Murder, Manslaughter and Infanticide: Proposals for Reform’, available at http://www.docstoc.com/docs

9. For example, Howe, A ‘Provoking comment: the question of gender bias in the provocation defence – A Victorian case study’ in Grieve, N and Burns, A (eds) Australian Women: New Feminist Perspectives (Oxford University Press: Oxford, 1994) andGoogle Scholar Howe, A ‘More folk provoke their own demise (revisiting the provocation defence debate courtesy of the homosexual advance defence)’ (1997) 19 Sydney Law Review 366 Google Scholar.

10. Most recently in Howe, A ‘a right to passions? Compassion's sexed asymmetry and a minor Comedy of Errors’ (2012) 23 Law and Critique 83 CrossRefGoogle Scholar.

11. See, eg, Heinze, E ‘Power politics and the rule of law: Shakespeare's first historical tetralogy and law's “foundations”’ (2009) 29 OJLS 139 CrossRefGoogle Scholar; Heinze, E ‘“Were it not against our laws”: oppression and resistance in Shakespeare's Comedy of Errors’ (2009) 29 Legal Studies 230 CrossRefGoogle Scholar; Heinze, E ‘Heir, celebrity, martyr, monster: legal and political legitimacy in Shakespeare and beyond’ (2009) 20 Law and Critique 79 CrossRefGoogle Scholar; Heinze, E ‘Imperialism and nationalism in early modernity: the “cosmopolitan” and the “provincial” in Shakespeare's Cymbeline’ (2009) 18 Social and Legal Studies 373 CrossRefGoogle Scholar; Jordan, C and Cunningham, K (eds) The Law in Shakespeare (New York: Palgrave Macmillan, 2007)CrossRefGoogle Scholar; Raffield, P and Watt, G (eds) Shakespeare and the Law (Oxford: Hart, 2008)Google Scholar; Raffield, P Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford: Hart, 2010).Google Scholar

12. Quoted in Verkaik, above n 4.

13. Quoted in G Hinsliff ‘Harman and Law Lord clash over wife killers’ (2008) The Guardian 9 November.

14. Hansard HL Deb, col 576, 7 July 2009.

15. Ibid, col 578.

16. Ibid, col 581.

17. Ibid, cols 589–590 referring to the case of R v Mawgridge[1706] Kel 119 at 135.

18. November 11, 2009, Ibid, col 839.

19. Hansard HL Deb, col 1061, 26 October 2009. Thanks to the reviewer who pointed out that Lord Neill appears to be confused about his classical precedent. In Sophocles' play, Antigone does not kill anyone except herself.

20. Ibid, cols 1061–1062.

21. Hansard HC Deb, cols 85–95, 9 November 2009.

22. Partial Defences to Murder Law Com No. 290 (2004) para 3.143, citing Smith (Morgan) [2001] 1 AC 146 at 169.

23. Ibid, para 3.145, citing Holmes[1946] AC 588 at 598.

24. Ibid, paras 3.52–54, citing Nourse, V ‘Passion's progress: modern law reform and the provocation defence’ (1997) 106 Yale L J 1331 at 1338CrossRefGoogle Scholar.

25. Ibid, at 1370.

26. Nourse, above n 24, at 1332–1336 and 1345.

27. Law Commission, Murder, Manslaughter and Infanticide, No 304 (2006) paras 5.61–5.77.

28. Horder, J. Punishment and Responsibility (Oxford: Clarendon Press, 1992) p 112 Google Scholar.

29. Ibid, pp 186 and 197. See also Stannard, Je ‘towards a normative defence of provocation in England and Ireland’ (2002) 66 J Crim Law 528. On the intrinsically normative evaluations made in determinations of criminal responsibility, seeCrossRefGoogle Scholar Watkins, J ‘Responsibility in context’ (2006) 26 OJLS 593 CrossRefGoogle Scholar.

30. Horder's shift from an abolitionist to a reformist position is discernible in ‘Between provocation and diminished responsibility’ (1999) 10 King's College Law Journal 143, where he criticises Holmes for ‘wrongly’ turning the strong excuse theory into ‘a theory that disregards all individual characteristics’ (at 145; his emphasis) and in Excusing Crime (Oxford: Oxford University Press, 2004) pp 97–98, although he remains sympathetic to abolitionism (p 178).

31. R v Suratan, R v Humes and R v Wilkinson (Attorney General's Reference No 74 of 2002, No 95 of 2002 and No 118 of 2002) [2002] EWCA Crim 2982.

32. Ibid, at 285.

33. Ibid, at 274. See Burton, M ‘Case note: sentencing domestic homicide upon provocation: still “getting away with murder”’ (2003) 11 Feminist Legal Studies 279. Burton suggests that the Court of Appeal has ‘implicitly approved the mitigation afforded to jealous men who kill’ (p 287).CrossRefGoogle Scholar

34. Hulse, S Clark ‘Wresting the alphabet: oratory and action in Titus Andronicus’ (1979) 21 Criticism 106 Google Scholar.

35. Horder cites this widely published statistic in ‘Reshaping the subjective element in the provocation defence’. Horder, above n 1, at 124, n 2. This number has remained fairly constant. In 2009–2010, 54% (94 offences) of female victims aged 16 or over had been killed by their partner or ex-partner – a slightly lower proportion than in 2008–2009 (58%, 100 offences). By contrast, only 5% (21 offences) of male victims aged 16 or over were killed by a partner or ex-partner. Smith, K etal (eds) ‘Homicides, firearm offences and intimate violence 2009/10: supplementary volume 2 to crime in England and Wales 2009/10’ in Home Office Statistical Bulletin (London: Home Office, 2011).Google Scholar Statistics on the sex distribution of intimate partner homicide in different jurisdictions indicates that in ‘Anglo-Saxon countries generally, men are far more likely to kill their married female partners than the reverse’, with a ratio of 4:1 in England. Nourse, above n 24, at 1344, n 82. Across all jurisdictions, ‘gender differences are especially stark in the context of murder’. Bergman, Da ‘Digging deeper into, and thinking about, the interplay of families and criminal justice’ (2010) 13 New Criminal Law Review 119 at 120Google Scholar.

36. Bate, J. Shakespeare and Ovid (Oxford: Oxford University Press, 1994) p 102. For the ‘explosion of scholarly interest’ in the play in North American literary studies, seeCrossRefGoogle Scholar Solga, K ‘Rape's metaphorical return: rehearsing sexual violence among the early moderns’ (2006) 58 Theatre Journal 53 at 63CrossRefGoogle Scholar.

37. St Hilaire, Da ‘Allusion and sacrifice in Titus Andronicus’ (2009) 2 Studies in English Literature 311 at 316Google Scholar. See also West, G Starry ‘Going by the book: classical allusions in Shakespeare's Titus Andronicus’ (1982) 79 Studies in Philology 62 andGoogle Scholar Miola, Rs ‘Titus Andronicus, Rome and the family’ in Kolin, Pc (ed) Titus Andronicus: Critical Essays (New York: Garland, 1995).Google Scholar For an earlier account of the play's classical origins see Law, Ra ‘the Roman background of Titus Andronicus’ (1943) 40 Studies in Philology 145. For its Roman history sources, seeGoogle Scholar Liebler, Mc ‘Getting it all right: Titus Andronicus and Roman history’ (1994) 45 Shakespeare Quarterly 263 CrossRefGoogle Scholar.

38. Aebischer, P Shakespeare's Violated Bodies (Cambridge: Cambridge University Press, 2004) pp 56–57 Google Scholar; C Asp ‘“Upon her wit doth earthly honour wait”: female agency in Titus Andronicus’ in Kolin, above n 37, p 341.

39. Kendall, Gm ‘“Lend me thy hand”: metaphor and mayhem in Titus Andronicus’ (1989) 40 Shakespeare Quarterly 299 at 313CrossRefGoogle Scholar.

40. Titus Andronicus (ed) J Bate (London: Arden Shakespeare, 1995) p 267, n 43. Titus' depiction of his ‘warrant’ to kill Lavinia as ‘lively’ has alerted more than one critic to ‘the corporeal effects that come from the bind of those past tales’. Anderson, Tp ‘What is written shall be executed: nude contracts and lively warrants in Titus Andronicus’ (2003) 45 Criticism 301 at 312CrossRefGoogle Scholar.

41. H James ‘Cultural disintegration in Titus Andronicus: mutilating Titus, Vergil and Rome’ in Kolin, above n 37, p 297.

42. Fawcett, Ml ‘Arms/words/tears: language and the body in Titus Andronicus’ (1983) 50 English Literary History 261 at 269 (her emphasis).CrossRefGoogle Scholar

43. Aebischer, above n 38, p 57.

44. Cunningham, K. ‘“Scars can witness”: trials by ordeal and Lavinia's body in Titus Andronicus’ in Ackley, Ka (ed) Women and Violence in Literature (New York: Garland, 1990) p 153 Google Scholar.

45. Bate above n 40, p 107. One can only agree with the reviewer who notes the further irony of Titus deferring to Saturninus on such a grave ethical question, given the Emperor's brutality and despotism throughout the play.

46. Corbett Roberts, a Jamaican immigrant, was hanged in Birmingham prison in 1955 for killing his wife with two hammers. ‘News in brief’ (1955) The Times 3 August and ‘Corbett Roberts’, available at http://www.murder.uk. Jack Cull was the last Englishman hanged for killing his wife. The prosecution alleged he stabbed her with a bayonet after receiving a letter saying she wished to leave him. ‘Murder of 17-year old wife’ (1952) The Times 13 September.

47. In some years, over half the men hanged had killed wives, rising as high as eight out of the twelve executed in 1900, seven out of the eight in 1906, eight out of the ten in 1912 and seven out of the nine in 1915. http://www.capitalpunishment.org/hanged

48. Of the four other women executed for murdering their husbands in twentieth-century Britain, his infidelity was raised as a motive in just one case. Ethel Major, hanged in 1934 for poisoning her husband, was said to be jealous of a woman neighbour. ‘Wife charged with murder’ (1934) The Times 30 October. The Court noted that Mr Major was ‘addicted to drink, had a violent temper and uttered many threats’. The Times, 4 December 1934. Ellis is well-known as the last woman hanged in England, but who can name the man hanged the same year for murdering a woman partner? Answer: Winston Shaw, hanged at Leeds prison in 1955 for murdering a former girlfriend.

49. See the discussion of the Holmes case below.

50. Anonymous[1670] T Raym 212; also cited as Maddy's Case[1671] 1 Vent 158.

51. R v Mawgridge, above n 17, at 135.

52. Ibid, at 137.

53. Pearson's Case[1832] 2 Lewin 216.

54. R v Kirkham[1837] 173 ER 422 at 425.

55. Ibid, at 423.

56. R v Matthias Kelly[1848] 175 ER 342 at 342–343.

57. R v Townley[1863] 176 ER 384.

58. Ibid, at 386.

59. Trial of Charles Taylor, November 1882, Old Bailey Proceedings Online (http://www.oldbaileyonline.org).

60. For example, Trial of Alfred Palmer, September 1901, ibid.

61. Trial of John Price, October 1901, ibid.

62. Trial of Henry Williams, October 1902, ibid.

63. Trial of Edward Harrison, 1905, ibid.

64. R v Rothwell[1871] 12 Cox CC 145.

65. Ibid, at 147.

66. R v Palmer[1913] 2 KB 29.

67. Ibid, at 31 and R v Greening[1914] 9 Cr App R 105.

68. R v Ellor[1921] 15 Cr App R 41 at 43–44, citing Palmer (above n 66), Greening (above n 67) and R v Birchill[1914] 9 Cr App R 91.

69. R v Gauthier[1944] 29 Cr App R 113.

70. Holmes, above n 23.

71. Ibid, at 593–594.

72. Ibid, at 596.

73. Ibid, at 598.

74. Ibid, at 600.

75. Ibid, at 600–601.

76. Surveying the state of the English case-law at the turn of the twenty-first century, one commentator, recalling Viscount Simon's observation, observed that it ‘seems that we are going backwards by going forwards!’. Allen, Mj ‘Provocation's reasonable man: a plea for provocation's self control’ (2000) 64 J Crim Law 216 at 240CrossRefGoogle Scholar. Bandalli (above n 2, at 399) puts it more bluntly: the Homicide Act 1957 ‘facilitated the regression of men's matrimonial evolution’.

77. R v Vinagre[1979] 69 Cr App R 104 at 105.

78. Ibid, at 106.

79. Elliot, C ‘What future for voluntary manslaughter?’ (2004) 68 J Crim Law 253 at 255CrossRefGoogle Scholar (my emphasis) and Davies, Mc ‘Leaving provocation to the jury: a homicidal muddle?’ (1998) 62 J Crim Law 374 CrossRefGoogle Scholar.

80. R v Melletin[1985] 7 Cr App R (S) 9 at 10. Compare Gorman, W ‘Provocation: the jealous husband defence’ (1999) 42 Criminal Law Quarterly 478 Google Scholar, discussing at 489–490 the Australian case of Arrowsmith v R[1994] 55 FCR 130, where the court stated that in Australia in the 1990s, ‘the mere telling of a partner that a relationship is over, whether accompanied or not by an admission of adultery’ should not be regarded as sufficient to ‘induce an ordinary person to so lose control as to deliberately or recklessly inflict fatal violence on the other’ (at 138).

81. R v Birks[2011] 1 Cr App R (S) 48.

82. Attorney General's Reference No 74 of 2002, above n 31, at 277–280, citing Taylor[1987] 9 Cr App R (S) 175, Gilbey[1990] 12 Cr App R (S) 49 and Light[1995] 16 Cr App R (S) 824.

83. Ibid, at 282.

84. R v Haines[1983] 5 Cr App R (S) 58.

85. R v Green[1986] 8 Cr App R (S) 284 at 287. The Court thought the defendant in Donnelly[1983] 5 Cr App R (S) 70, who had behaved in an extremely jealous manner over a long period, accusing his wife of infidelity, threatened her and hitting her with a hammer, was ‘lucky’ to get his sentence reduced from nine to seven years. Ibid.

86. R v Dearn[1990–1991] 12 Cr App R (S) 527 at 528. The trial judge found it ‘very hard to think of a worse case of attempted murder than this....Its consequences have been utterly disastrous, some would say as bad if not worse’ than if he had killed her. Ibid.

87. R v Townsend[1979] 1 Cr App R (S) 333. Instead, they reduced his sentence of fifteen years imprisonment to ten.

88. R v Casseram[1992] 13 Cr App R (S) 384 at 387–388.

89. R v Bedford[1993] 14 Cr App R (S) 336 at 338.

90. R v Jason Clement[1995] 16 Cr App R (S) 811 at 815 (my emphasis).

91. R v Giboin[1980] 2 Cr App R (S) 99. Nevertheless, the court reduced his sentence from six to five years. See the comments comparing sentencing in attempted murder and manslaughter cases in Horder, J ‘Sex, violence and sentencing in domestic provocation cases’ (1989) Crim LR 546 Google Scholar at 547–548 and Burton, above n 33, at 282–286.

92. Attorney General's Reference No 80 of 2009 [2010] EWCA Crim 470 at para 19.

93. R v Thompson Attorney General's Reference No 1 of 2010 [2010] EWCA Crim 748 at para 21.

94. Ibid at para 22.

95. R v Edwards Attorney General's Reference No 008 of 2011 [2011] EWCA Crim 1461 at para 15.

96. R v Williams (Sanchez) Attorney General's Reference No 23 of 2011 [2001] EWCA Crim 1496.

97. Ibid, at para 32.

98. Ibid, at para 33.

99. R v Rush[2008] Cr App R(S) 45 at para 26.

100. R v Clinton, R v Parker, R v Evans[2012] EWCA Crim 2. So much for the view, expressed in 1973, that the notion that ‘a husband can treat his wife with any kind of force seems now to be obsolete, whether she is living with him or apart’. ‘Kidnapping one's wife: R v Reid’ (1973) 37 J Crim Law 33.

101. Crosbie, C ‘Fixing moderation: Titus Andronicus and the Aristotelian determination of value’ (2007) 58 Shakespeare Quarterly 147 CrossRefGoogle Scholar. See also D Callaghan and CR Kyle ‘The wilde side of justice in early modern England and Titus Andronicus’ in Jordan and Cunningham, above n 11, and Raffield, above n 11, pp 18ff.

102. Bate, above n 40, p 28.

103. Raffield, above n 11, p 21.

104. Bate, above n 40, p 28. Extending the argument, Raffield (above n 11, pp 28–29) claims that Titus' search for justice ‘marks him out also as the dramatic descendant’ of the ‘apologist for the constitutional supremacy of the common law, Sir John Fortescue’.

105. Crosbie, above n 101, pp 148 and 163–164. Indeed, it is easy to overlook. This was a man who slaughtered one son for filial disobedience, killed his daughter for dishonouring the family by getting herself raped and served up two sons to their mother in a pie as revenge for plotting the rape!

106. Raffield, above n 11, p 48. According to Crosbie (above n 101 pp 158–159), Titus' piety, ‘however imperfect, nonetheless nobly privileges the ethos of gratitude over unrestrained self-interest’, even when he kills Lavinia, Compare Hunt, M ‘Compelling art in Titus Andronicus’ (1999) 28 Studies in English Literature 197 CrossRefGoogle Scholar, arguing at 211, that Titus adapts the Virginius story to ‘satisfy his perverted sense of honour. Clearly, Lavinia's death in Titus' staging is gratuitous’.

107. James, above n 42. Bate describes James' argument as ‘ingenious’, noting its coherence with his ‘sense’ that Shakespeare uses Ovid to ‘destabilise a Virgilian, imperial idiom’. Bate, above n 36, p 103, n 33.

108. Aebischer, above n 38, pp 58–63. See also McCandless, D ‘a tale of two Tituses: Julie Taymor's vision in stage and screen’ (2002) 53 Shakespeare Quarterly 487 CrossRefGoogle Scholar.

109. West, above n 37, p 74. See also Cutts, Jp ‘Shadow and substance: structural unity in Titus Andronicus’ (1968) 2 Comparative Drama 161 Google Scholar.

110. Raffield, above n 11, p 39.

111. Packard, B ‘Lavinia as co-author of Shakespeare's Titus Andronicus’ (2010) 2 Studies in English Literature 1500–1900 281 at 282CrossRefGoogle Scholar.

112. For James, Ovid provides Shakespeare with a precedent for parodying Vergil's Aeneid, the epic tale of empire-building, order and pietas which the Andronici ‘virtually claim as family history’. James, above n 41, at 287. Bate (above n 36, p 109) agrees.

113. Dickson, L “High and low” blows: Titus Andronicus and the critical language of pain’, (2008) 26 Shakespeare Bulletin 1 at 6 and 15CrossRefGoogle Scholar. See also Rowe, Ka ‘Dismembering and forgetting in Titus Andronicus’ (1994) 45 Shakespeare Quarterly 279 CrossRefGoogle Scholar; Willis, D ‘“the gnawing vulture”: revenge, trauma theory and Titus Andronicus’ (2002) 53 Shakespeare Quarterly 21 andCrossRefGoogle Scholar Choy, Hyf ‘toward a poetic minimalism of violence: on Tang Shu-wing's Titus Andronicus’ (2011) 1 Asian Theatre Journal 44 CrossRefGoogle Scholar.

114. I Cetin ‘Titus Andronicus: a comedy of blood’ (2010) 28 Shakespeare Bulletin 356 at 357.

115. This would not surprise Marianne Constable who argues that ‘modern law often seems silent as to justice’. Constable, M Just Silences: The Limits and Possibilities of Modern Law (Princeton, NJ: Princeton University Press) p 7 Google Scholar.

116. Vinagre, above n 77, at 106–107.

117. Townsend, above n 87, at 334.

118. Constable, above n 115, p 177.

119. Buckner's Case[1655] Style 467 at 469.

120. Oneby[1727] 2 Ld Raym 1485 at 1494–1495.

121. Ibid.