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and accordingly amounts to murder (z). So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot : though this was allowed by the laws of Solon (a), as likewise by the Roman civil law (if the adulterer was found in the husband's own house) (b), and also among the ancient Goths (c); yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, *but it is manslaughter (d). It is however the lowest degree of (*192] it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation (e). Manslaughter therefore on a sudden provocation differs from excusable homicide se defendendo in this : that in one case there is an apparent necessity, for self-preservation, to kill the aggressor: in the other, no necessity at all, being only a sudden act of revenge.

The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure in this; that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawfnl one. As if two persons play at sword and buckler, unless by the king's command, and one of them kills the other : this is manslaughter, because the original act was unlawful ; but it is not murder, for the one had no intent to do the other any personal mischief (). So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection : as when a workman flings down a stone or piece of timber into the street, and kills a man ; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done : if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only ; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning (8); and murder, if he knows of their passing, and gives no warning at all, for then it is malice against all mankind (h). And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter (i), according to the nature of the act which occasioned it. If it be in prosecution of a felonious *intent, or in its consequences naturally tended to bloodshed, (*193] it will be murder ; but, if no more was intended than a mere civil trespass, it will only amount to manslaughter (j). (2) Fost. 296.

on one species of criminal negligence, whereby the (a) Plutarch, in vit. Solon.

For by statute 10 (0) Ff. 48. 5. 24.

Geo. II. c. 31, if any waterman between Graves(c) Stiernh. de jure Goth. I. 3, c. 2.

end and Windsor receives into his boat or barge a greater number of persons than the act allows, and any passenger shall then be drowned, such water. man is guilty (not of manslaughter, but) of felony, and shall be transported as a felon (19).

(1) Foster, 258. I Hawk. P. C. 84. (6) Our slatute law has severely animadverted

(19) Repealed, together with all other Acts passengers shall be carried in any boat, &c. for the regulation of watermen plying upon ihan is allowed, and any one or more of them the river Thames, (vide ante, 64, note (22), ) shall by reason thereof be drowned, every perby 7 and 8 Geo. IV. c. 75; section 38 of son navigating such boat, &c., offending therewhich, after providing that no boat, &c., for in, and being thereof lawfully convicted, carrying passengers on the river Thames, shall be deemed guilty of misdemeanor, and shall be used without a licence, expressing shall be liable to such punishment as in cases the number of persons it may be allowed to of misdemeanor, at the discretion of the court; carry, and that the number and name of the and shall be disfranchised, and not allowed owner shall be painted thereon, and imposing thereafter to navigate any boat, &c. on the a penalty for infringing those provisions, river Thames. enacts, that in case, any greater number of

death of a man is occasioned.

(d) I Hal. P. C. 486.
(e) Sir T. Raym. 212.
(f) 3 Inst. 56.
(g) Kes. 40.
(h) 3 Inst. 57.

Next, as to the punishment of this degree of homicide: the crime of manslaughter amounts to felony, but within the benefit of clergy; and the offender shall be burnt in the hand, and forfeit all his goods and chattels (20).

But there is one species of manslaughter which is punished as murder, the benefit of clergy being taken away from it by statute ; namely, the offence of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. I. c. 8. when one thrusts or stabs another, not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers, between the Scotch and the English at the accession of James the First (k), and being therefore of a temporary nature, ought to have expired with the mischief which it meant to remedy. For in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling, or shooting, can either extenuate or en. hance the guilt : unless where, as in the case of poisoning, it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law hath construed the statute so favourably in behalf of the subject

, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing, as it did at the common law (1). Thus, (not to repeat the cases before mentioned, of stabbing an adulteress, &c. which are barely manslaughter, as at common law), in the construction of this statute it hath been doubted, whether, if the deceased had struck at all be. fore the mortal blow given, this does not take it out of the statute, though

in the preceeding quarrel the stabber had given the first blow; and [*194] *it seems to be the better opinion, that this is not within the

statute (m). Also it hath been resolved, that the killing a man by throwing a hammer or other blunt weapon is not within the statute ; and whether a shot with a pistol be so or not, is doubted (n).

But if the party slain had a cudgel in his hand, or had thrown a pot or bottle, or discharged

a a pistol at the party stabbing, this is a sufficient having a weapon drawn on his side within the words of the statute (o) (21).

(k) Lord Raym. 140.

1

a

(n) i Hal. P. C. 470.
(0) 1 Hawk. P. C. 77.

(1) Fost. 299, 300.
(m) Fost. 301. 1 Hawk. P. C. 77.

(20) By 9 Geo. IV. c. 31, 99, (repealing all attempt to discharge any kind of loaded arms former enactments on this subject,) every per- at any person, or shall unlawfully and mali. son convicted of manslaughter shall be liable, ciously stab, cut, or wound any person, with at the discretion of the court, to be transport. intent, in any of the cases aforesaid, to mur. ed for life, or for any terin not less than seven der such person, every such offender, and years, or to be imprisoned with or without every person counselling, aiding, or abetting hard labour, for any term not exceeding four such offender, shall be guilty of felony, and, years, or to pay such fine as the court shall being convicted thereof, shall suffer death as award.

a felon. And by 9 12, it is enacted, that if any (21) The 1 J. I. c. 8, together with the 43 person unlawfully and maliciously shall shoot G. III. c. 58, (Lord Ellenborough's Act,) and at any person, or shall, by drawing a trigger, the 1 G. IV. c. 90, relating to the same sub- or, in any other manner, attempt to discharge ject, is repealed by 9 G. IV. c. 31 ; by 0 11 of any kind of loaded arms at any person, or which it is enacted, that if any person unlaw- shåll unlawfully and maliciously stab, eut, or fully and maliciously shall administer, or at wound any person, with intent, in any of the tempt to administer to any person, or shall cases aforesaid, to maim, disfigure, or disable cause to be taken by any person, any poison such person, or to do some other grievous or other destructive thing, or shall unlawfully bodily harm to such person, or with intent to and maliciously attempt to drown, suffocate, resist or prevent the lawful apprehension or or strangle any person, or shall unlawfully detainer of the party so offending, or of any and maliciously shoot at any person, or shall, of his accomplices, for any offence for which by drawing a trigger, or in any other manner, he or they may respectively be liable by law

2. We are next to consider the crime of deliberate and wilful murder ; a crime at which human nature starts, and which is I believe punished almost universally throughout the world with death. The words of the Mosaical law (over and above the general precept to Noah (p), that “ whoso sheddeth man's blood, by man shall his blood be shed") are very emphatical in prohibiting the pardon of murderers (). “Moreover ye shall

9 take no satisfaction for the life of a murderer, who is guilty of death, but he shall surely be put to death; for the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.” And therefore our law has provided one course of prosecution (that by appeal, of which hereafter), wherein the king himself is excluded the power of pardoning murder; so that, were the king of England so inclined, he could not imitate that Polish monarch mentioned by Puffendorf (r): who thought proper to remit the penalties of murder to all the nobility, in an edict with this arrogant preamble, "nos, divini juris rigorem moderantes, fc.” But let us now consider the definition of this great offence.

The name of murder (as a crime) was anciently applied only to the secret killing of another (s); (which the word moerda signifies in the Teutonic language) (t); and it was defined, " homicidium quod nullo vidente, nullo sciente, clam perpetratur (u):" for which the vill wherein it was committed, or (if that were too poor) the whole hundred was liable to a heavy *amercement; which amercement itself was also de- (*195] nominated murdrum (w). This was an ancient usage among the Goths in Sweden and Denmark ; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder (w): and, according to Bracton (y), was introduced into this kingdom by king Canute, to prevent his countrymen the Danes (p) Gen. ix. 6.

lari permittam nec murdari.” And the words“

pur (9) Numb. xxxv. 31.

murdre le droit," in the articles of that statute, are (r) L. of N. b. 8, c. 3.

rendered in Fleta, ibid. 0 8. “ pro jure alicujus (8) Mal. de Scacch. I. 1, c. 10.

murdriendo." (1) Stiernh. de jure Sueon. l. 3, c. 3. The word (u) Glanv. 1. 14, c. 3. murdre in our old statutes also signified any kind of (20) Bract. l. 3, ir. 2, c. 15,0 7. Stat. Marl. c. 26. concealment or stifling. So in the statute of Exeter, 14 Edw. I." je riens ne celerai, ne sufferia estre (1) Stiernh. 1.3, c. 4. celé ne murdre ;" which is thus translated in Fleta, (y) 1. 3, tr. 2, c. 15. 1.1, c. 18, 04. “ Nullam veritatem celabo, nec ceto be apprehended or detained, every such of. or a cut. The new Act also places, attempts sender, and every person counselling, aiding, or to murder, and attempts to maim, under two abetting such offender, shall be guilty of fel. distinct clauses ; it does not, however, make ony, and, being convicted thereof, shall suffer those offences distinct in their nature : it fol. death as a felon : provided, that in case it shall lows, therefore, that both may be charged in the appear, on the trial of any person indicted for same indictment. An indictment under this staany of the offences above specified, that such tute must describe with accuracy the mode in acts of shooting, or of attempting to discharge which the injury is inflicted; for where the inloaded arms, or of stabbing, cutting, or wound. dictment under 43 G. III. c. 58, was for cutting, ing, as aforesaid, were committed under such and the evidence was that the wounds were in. circumstances, that if death had ensued there. flicted by stabbing, the judges held the convicfrom, the same would not in law have amount- tion wrong. Rex v. M Dermot, R. and R. C. ed to the crime of murder, in every such case C. 356. It may be observed, generally, that the person so indicted shall be acquitted of sel- where the injury is inflicted with intent to ony: There are two novelties in this Act prevent a lawful apprehension, it must be of Parliament ; first, the provisions in section shewn that the offender had notice of the pur11, respecting drowning, suffocating, and strang. pose for which he was apprehended ; for otherling; and secondly, the introduction, in both ss. wise, in case of death ensuing, the offence 11 and 12, of the word wound, after the words would be manslaughter, and the prisoner would stab and cut. The latter is an improvement be entitled to the benefit of the proviso in secwhich had long been a desideratum, many in- tion 12. See Rickett's case, I Russell, 599. dictments under the former statue having With respect to offences of this, and of other failed merely for the want of some such gener descriptions, committed upon the high seas ; al term, where the injury inflicted did not fall see, post, 268. strictly within the definition either of a stab VOL. II.

68

Fost. 281.

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from being privily murdered by the English ; and was afterwards continued by William the Conqueror, for the like security to his own Normans (2). And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman (the presentment whereof was denominated englescherie) (a), the country seems to have been excused from this burthen. But, this difference being totally established by statute 14 Edw. III. c. 4. we must now (as is observed by Staundforde) (6) define murder in quite another manner, without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction.

Murder (22) is therefore now thus defined or rather described by sir Edward Coke (c); “ when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.” The best way of examining the nature of this crime will be by considering the several branches of this definition.

First, it must be committed by a person of sound memory and discretion : for lunatics or infants, as was formerly observed, are incapable of committing any crime: unless in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil (23)

Next, it happens when a person of such sound discretion unlaw[*196] fully killeth. The unlawfulness arises from the killing without war

rant or excuse: and there must also be an actual killing to constitute murder ; for a bare assault, with intent to kill, is only a great misdemeanor, though formerly it was held to be murder (d) 24. The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. And if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an axe, or a hatchet, this difference is immaterial (e) (25). Of (2) 1 Hal. P. C. 447. (a) Bract. ubi supr. (6) P. C.l. 1, c.

(c) 3 Inst. 47.
(d) I Hal. P. C. 425.
(e) 3 lost. 319. 2 Hal. P. C. 183

OS

a

(22) See note 18, p. 191.

burglary, larceny, or other felony, or in resist(23) See ante, 23. as to infants. In the case ing legal process, is punishable with imprisonof lupacy, where there is only such a partial ment for not more than 10 years : administer derangement as leaves the person free to acting poison with an intent to kill, is punishable or to forbear, in the particular case in ques. with imprisonment not less than 10 years. tion, or where he is guilty of the crime during Mingling poison in any food, drink, or media lucid interval, he will be equally liable to cine, with intent to kill, but without adminispunishment with those who are perfectly sane. tering it; or poisoning any spring, reservoir, or Earl Ferrer's case, 10 Harg. St. Tr. 478. well of water, is punishable with imprisonWhere, however, the mind labours under such ment not exceeding 10 years, and fine not exa delusion, that though it discerns some object3 ceeding 500 dollars. An assault with intent clearly, it is totally deranged as to the objects to commit a felony, is punishable with impriof its attack, the party will be entitled to an sonment not exceeding 5 years, and fine notexacquittal. See Erskine's Speeches, 5 vol. 1. ceeding 500 dollars, in cases where no other Ridgway's ed. 1812. How far drunkenness punishment is before provided by the act. (2 excuses a crime, see ante, 25, 6.

R. S. 665. 666.) (24) As to attempts to commit crimnes gener. (25) See l East, P. C. 341, and Sharwin's ally, see 2 R. S. 698, 702. Shooting, or at- case, ihere cited, in which it was held that an tempting to shoot, another, or assaulting and averment of an assault with a wooden staff, beating him by such means as were likely 10 was satisfied by proof of an assault with a produce death, with an intent to kill, maim, stone ; the effect being the same. See Rer ravish, or rob, or in the attempt to commit any v. Dale, 13 Price, 172, 9 J. B. Moore, 19. A

all species of deaths, the most detestable is that of poison; because it can of all others be the least prevented either by manhood or forethought (f). And therefore by the statute 22 H. VIII. c. 2. it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed ; namely, boiling to death (26): but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was also, by the ancient common law, one species of killing held to be murder, which may be dubious at this day ; as there hath not been an instance wherein it has been held to be murder for many ages past (g): I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed (h). The Gothic laws punished in this case, both the judge, the witnesses, and the prosecutor: " peculiari poena judicem puniunt ; peculiari testes, quorum fides judicem seduxit ; peculiari denique et maxima auctorem,ut.homicidum (i).' And, among the Romans, the lex Cornelia, de sicariis, punished the false witness with death, as being guilty of a species of assassination (k). And 3 Inst. 48.

able, but from other prudential reasons. Nothing (g) Fost. 132. In the case of Macdaniel and Ber- therefore should be concluded from the waiving of ry, reported by sir Michael Foster, though the then that prosecution. attorney general declined to argue this point of law, (h) Mirror, c. 1, $ 9. Britt. c. 52. Bract. 1. 3, c. 4. I have good grounds to believe it was not from any (i) Stiernh. de jure Goth. l. 3, c. 3. apprehension of his that the point was not maintain- (k) Ff. 48. 8. 1.

stroke must be expressly averred, and an in. word murdered is absolutely necessary in the dictment stating that the prisoner murdered, indictment. 2 Hale, P. C. 187. The allega. or gave a mortal wound, without saying that tions, "not having the sear of God," &c. “ vi he struck, is bad. Rex v. Long, 5 Co. Rep. et armis," and " being in the peace of God," 122, a ; 1 East, P. C. 342. It must also be &c. are not necessary. 2 Stark. C. P. 385. stated upon what part of the body the deceas. Where the stroke is given in one county, and ed was struck ; 2 Hale, P. C. 185; and the the death happens in another, the venue may length and depth of the wound must be shewn; be laid in either. As to laying the venue, id. 186, Haydon's case, 4 Co. Rep. 42, a. where the stroke is given at sea, see 9 G. IV. Where there are several wounds, the length c. 31, 9 8. Where the name of the deceased and breadth of each need not be stated. Rex is not known, he may be described as a cer. 0. Mosley, R. and N. C. C. 97. And see tain person to the jurors unknown ; but a basYoung's case 4 Co. Rep. 40, Walker's case, tard child cannot be described by his mother's id. 41, Rex v. Lorkin, 1 Bulster. 124, 2 Hale, name, unless he has acquired that name by P. C. 184, Rex v. Dale, R. and M. C. C. 5; reputation. Rex v Clarke, R. and R. C. C. as to the wound, cause of death, &c. Where 358 : and see Rex v. Sheen, 2 C. and P. 655. the death proceeded from suffocation from the (26) This extraordinary punishment seems swelling up of the passage of the throat, and to have been adopted by the legislature, from such swellings proceeded from wounds occa- the peculiar circumstances of the crime which sioned by forcing something into the throat ; gave rise to it; for the preamble of the stait was held sufficient to state in the indictment, tute informs us, that John Rnose, a cook, had that the things were forced into the throat, and been lately convicted of throwing poison into the person thereby suffocated ; and that the a large pot of broth, prepared for the bishop of process immediately causing the suffocation, Rochester's family, and for the poor of the panamely, the swelling, need not be stated. Rex rish ; and the said John Roose was by a retro

. Tye, R. and R. Č. C. 345. The death, by spective clause of the same statute ordered to the means stated, must be positively averred, be boiled to death. Lord Coke mentions se. and cannot be inferred; 1 East, P. C. 343 : veral instances of persons suffering this horrid and where the death is occaisoned by a stroke, punishment. 3 Inst, 48. Murder of malice it must be further alleged that the prisoner prepense, was made high treason in Ireland, gave the deceased a mortal wound, &c. where. by 10 Hen. VII. c. 21. Irish Statutes. By the of he died. 2 Hale, P. C. 186, Kel. 125 ; Lad's 43 Geo. III. c. 58. it is enacted, that if any case Leach, 96. The time and place both of person shall wilfully and maliciously administhe wound and of the death, must be stated, ter to, or cause to be administered to, or taken in order to shew that the deceased died with by, any of his majesty's subjects any deadly in a year and a day from the cause of the poison with intent to murder, he, his counsel. death ; in computing which, the day of the ac. lors, aiders, and abettors, shall be guilty of done is reckoned the first ; though a precise felony without benefit of clergy. So the at. statement of the day is immaterial, if the par: tempt to murder by poison, which by the comty is proved to have died within the limited mon law was only a misdemeanor, is now period. 2 Inst, 318, 2 East, P. C. 344. The made a capital crime.

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