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there is no doubt but this is equally murder in foro conscientiae as (*197] killing with a *sword ; though the modern law (to avoid the

danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such (27). If a man however does such an act of which the probable consequence may be, and eventually is, death ; such killing may be murder, although no stroke be struck by himself, and no killing be primarily intended : as was the case of the unnatural son, who exposed his sick father to the air, against his will, by reason whereof he died (l); of the harlot, who laid her child under leaves in an orchard, where a kite struck it and killed it (m); and of the parish officers, who shifted a child from parish to parish, till it died for want of care and sustenance (n) (28). So too, if a man hath a beast that is used to do mischief; and he knowing it, suffers it to go abroad, and it kills a man ; even this is manslaughter in the owner : but if he had purposely turned it loose, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder, as if he had incited a bear or dog to worry them (o). If a physician or surgeon gives his patient a portion or plaister to cure him, which contrary to expectation kills him, this is neither murder nor manslaughter, but misadventure ; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance (p) (29): but it hath been holden, that if it be not a regular physician or surgeon, who administers the medicine or performs the operation, it is manslaughter at the least (9). Yet sir Matthew Hale very justly questions the law of this determination (r) (30). In order also to make the killing

(p) Mirr. c. 4,0 16. See Book III. page 122


(1) I Hawk. P. C. 78.
(m) 1 Hal. P. C. 452.
(n) Palm. 543.
(o) lord 431.

(9) Britt. c. 5. 4 Inst. 251.
(r) I Hal. P. C. 430.

(27) The guilt of him who takes away the fending is criminal in this degree. Fost. 321; life of an innocent man by a false oath, is much and see 2 Stra. 856. 2 Lord Raym. 1578. more atrocious than that of an assassin, who Fost. 322. Laying noisome and poisonous murders by a dagger or by poison. He who filth at a man's door, which kills him by cordestroys by perjury, adds to tbe privation of rupting the air which he breathes, will be mur. life public ignominy, the most excruciating of der. i Hale, 432. tortures to an honourable mind, and reduces (29) Such persons are clearly still liable to an innocent family to ruin and infamy; but a civil action, where gross negligence or notwithstanding this is the most horrid of all ignorance can be proved. Slater v. Baker, 2 crimes, yet there is no modern authority to Wils. 359 ; Seare v. Prentice, 8 East, 348 ; induce us to think that it is murder by the law and it would also be a good defence to an ac. of England : lord Coke says expressly," it is tion by an apothecary on his bill, that he had not holden for murder at this day." 3 Inst

. treated his patient ignorantly or improperly. 48. See also Fost. 132. Such a distinction Kannea v. M.Mullen, Peake, 59. in perjury would be more dangerous lo socie- (30) It is not murder to work on the imagity, and more repugnant to principles of sound nation so that death ensues, or to call the feelpolicy, than in ihis instance the apparent want ings into so strong an exercise as to produce of severity in the law. Few honest witness- a fatal malady, though such acts, if not mali. es would venture to give evidence against & cious, spring from a criminal thoughtlessness. prisoner tried for his life, if thereby they made Post, 204. I Hale, 429. If a wound itself themselves liable to be prosecuted as murder. be not mortal, but by improper applications

becomes so and terminates fatally, and it can (28) Or if a master refuse his apprentice be clearly shewn that the medicine and not the necessary food or sustenance, or treat him wound was the cause of the death, the party, with such continued harshness and severity as who inflicted the wound will not be guilty of his death is occasioned thereby, the law will murder. i Hale, 428. But where the wound imply malice, and the offence will be murder. was adequate to produce death, it will not be Leach, 127. 2 Camp. 650 ; and see 1 Russ. an excuse to shew that, had proper care been 621. If a prisoner die by the cruelty or neg. taken, a recovery might have been effected lect of the gaoler, or, in legal language, by i Hale, 428. duress of imprisonment, the party aciually of.


murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which, the whole day upon which the hurt was done shall be reckoned the first (s).

Farther; the person killed must be "a reasonable creature in being, and under the king's peace,” at the time of the *killing. Therefore to [*198] kill an alien, a Jew, or an outlaw, who are all under the king's peace and protection, is as much murder as to kill the most regular-born Englishman ; except he be an alien enemy in time of war (t). To kill a child in its mother's womb, is now no murder, but a great misprision : but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them (u). But, as there is one case where it is difficult to prove the child's being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I. c. 27. that if any woman be delivered of a child which if born alive should by law be a bastard ; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law, which savours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe ; as the Danes, the Swedes, and the French (v). But I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption (that the child whose death is concealed, was therefore killed by its parent) is admitted to convict the prisoner (31).

P. C. 433.
(v) See Barrington on the statutes, 425.


(s) 1 Hawk. P.C. 79.
(1) 3 Inst. 50. 1 Hal. P. C. 433.
(u) 3 Inst. 50. 1 Hawk. P. C. 80. but see 1 Hal.

(31) The 21 J. I. c. 27, was repealed by the years, or to be imprisoned, with or without 43 G. III. c. 58, which has also recently been hard labour, for any term not exceeding three repealed, and the law upon this subject is now years, and if a male, to be once, twice, or as follows: By 9 Geo. IV. c. 31, $ 13, if any thrice publicly or privately whipped. By $ 14, person with intent to procure the miscarriage if any woman shall be delivered of a child, of any woman then being quick with child, and shall, by secret burying or otherwise disunlawfully and maliciously shall administer to posing of the dead body of the said child, en. her, or cause to be taken by her, any poison deavour to conceal the birth thereof, every or other noxious thing, or shall use any instru. such offender shall be guilty of a misdemeanment or other means whatever with the like or, and being convicted thereof, shall be liable intent, every such offender, and every person to be imprisoned, with or without hard labour, counselling, aiding, or abetting, such offender, for any term not exceeding two years ; and it shall be guilty of felony, and being convicted shall not be necessary to prove whether the thereof, shall suffer death as a felon ; and if child died before, at, or after its birth: proany person, with intent to procure the miscar. vided, that if any woman tried for the murder riage of any woman not being, or not being of her child shall be acquitted thereof, it shall prored to be, then quick with child, unlawfully be lawful for the jury,hy whose verdict she shall and maliciously shall administer to her, or be acquitted, lo find, in case it shall so appear cause to be taken by her, any medicine or in evidence, that she was delivered of a child, other thing, or shall use any instrument or and that she did, by secret burying or otherother means whatever with the like intent, wise disposing of the body of such child, enevery such offender, and every person coun- deavour io conceal the birth thereof, and thereselling, aiding, or abetting such offender, upon the court may pass such sentence, as if shall be guilty of felony, and being convicted she had been convicted upon an indictment for thereof, shall be liable, at the discretion of the the concealment of the birth. These enactcourt, to be transported for any term not ex. ments are substantially the same as those of ceeding fourteen, and not less than seven the 43 G. III. e. 58, upon the same subjects,


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Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which now distinguishes murder from other killing : and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general: the dictate of a wicked, depraved, and

malignant heart (w); un disposition à faire un male chose (t); and [*199] it may be either express or implied in law. Express *malice is

when one, with a sedate deliberate mind and formed design, doth kill another : which formed design is evidenced by external circumstances discovering that inward intention ; as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm (y). This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder : thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man; and therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also (2) (32). Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom ; till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of him who hath given the insult (33), Also, if even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice ; that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy, that was stealing wood, to a horse's tail, and dragged him along the park ; when a master corrected his servant with an iron bar; and a schoolmaster stamped on his scholar's belly ; so that each of the sufferers died : these were justly held to be murders, because the correction being excessive, and such as could not proceed out from a bad heart, it was equivalent to a de

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(w) Foster, 256.
(3) 2 Roll. Rep. 461.

(y) 1 Hal. P. C. 451.
(2) 1 Hawk. P. C. 82.

except that by section 14 of the new Act, the putation; or that he meant not to kill, but only concealment of the birth of a child is made an to disarm his adversary : for, as he deliberateindictable misdemeanor, whereas, before, the ly engaged in an act in defiance of the law, prisoner could only be found guilty of the he must at his peril abide the consequences. concealment upon an indictinent charging her i Haw. P. C. c. 31, 921; 1 Bulstr. 86,7; 2 with murder. See Rex_v Parkinson, 1 Rus. Bulstr. 147 ; Crom. 22, 6; 1 Rol. Rep. 360; sell, 475, n. ; 1 Cherw. Burn, 334. The rules 3 Bulstr, 171 ; 1 Hale, P. C. 48. Therefore, laid down with respect to indictments for if two persons quarrel over night, and appoint these offences under the old statute, seem, in to fight the next day, or quarrel in the morning, other respects, equally applicable to the new and agree to fight in the afternoon, or such a Act.

considerable time after, by which, in common (32) Wherever two persons in cold blood intendment, it must be presumed that the meet and fight, on a precedent quarrel, and blood was cooled, and athen they meet and one of them is killed, the other is guilty of fight, and one kill the other, he is guilty of murder, and cannot excuse himself by alleg. murder. ) Haw. P. C. c. 31. 0 22 ; 3 Inst. ing that he was first struck by the deceased; 51 ; 1 Hale, P. C. 48 ; Kel. 56 ; 1 Lev. 180. or that he had often declined to meet him, and (33) See the law of duelling fully stated 3 was prevailed upon to do it by his importunity; East Rep. 581. 6 East, 464.° 2 Bar. & Ald. of that his only intent was to vindicate his re- 462.

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liberate act of slaughter (a) (34). Neither shall he be guilty of a less crime, who kills another *in consequence of such a wil- [*200] ful act, as shews him to be an enemy to all mankind in general ; as going deliberately, and with an intent to do mischief (), upon a horse used to strike, or coolly discharging a gun among a multitude of people (c). So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not ; for this is universal malice. And, if two or more come together to do an unlawful act against the king's peace, of which the probable consequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park : and one of them kills a man ; it is murder in them all, because of the unlawful act, the malitia praecogitata, or evil intended beforehand (d) (35).

Also in many cases where no malice is expressed, the law will imply it : as where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved (e). And if (a) 1 Hal. P. C. 454, 473, 474.

(d) Ibid. 84.
(e) i Hal. P. C. 455.

(6) Lord Raym. 143.
(c) 1 Hawk. P. C. 74

(34) Homicide may be and is often exte- a quarrel between a party of keel-men and nuated by the circumstance of a mutual contest soldiers, one of the latter drew his sword to arising from the spur of the occasion, where protect himself and his comrades from the as. no undue advantage is either sought or taken saults of the mob, and killed a person dressed by either of the parties. See 5 Burr. 2793. like one of the former, whom he mistook for and cases cited 1 East P. C. 241 to 246. And one of the keel-men; and this was held to be in this case, it is of no consequence from no more than manslaughter. Brown's case, I whom the first provocation arises. 1 Hale, Leach, 148. If A. stands with an offensive 456. But if one with his sword drawn makes weapon in the door-way of a room, wrongful. a pass at another whose sword is andrawn, ly to prevent T. S. from leaving it, and others and a combat ensues, if the former be killed, from entering, and C. who has a right to the it will only be manslaughter in the latter ; but room struggles with him to get his weapon if the latter fall, it will be murder in the for- from him, upon which D. a comrade of A's stabs mer, for by making the pass before his adver- C., it will be murder in D. if C. dies, Russ. & sary's sword was drawn, he evinced an inten- Ry. C. C. 228 ; see a late case, where the tion not to fight with but to destroy him. Kel. judges entertaining doubts as to whether the 61. Hawk. c. 31. s. 33, 4. (a). And where a prisoner who killed another in an affray was man upon occasion of some angry words, guilty of murder, recommended him to a parthrew a bottle at the head of his opponent and don. Russ. & Ry. C. C. 43. Where, after immediately drew, and when his adversary mutual provocation, the deceased and his opreturned the bottle, stabbed him; this was ponent struggled, and in the course of the holden to be murder in him, because he drew contest the former received his mortal wounds previous to the first aggression. Kel. 119. from a knife which the latter had previously 2 Ld. Raym. 1489. So if two bailiffs arrest in his hand in use, though the jury found the a man, and he abuse and threaten and strike prisoner guilty of murder, the judges held the them, and bring pistols, declaring that he will conviction wrong, and recommended him for not be forced from his house, and on high a pardon. 1 Leach, 151. But in no case will words arising between them, and on the bai. previous provocation avail, if it was sought liffs being struck and provoked, they fall on for by the act of the slayer, to afford him a him and kill him, they will be guilty of man- pretence for gratifying his own malice. Nor slaughter only. 6 Hargr. St. Tr. 195, Fost. will it alter the case, that blows had previous292, 3, 4. And where, on an affray in a street, ly been given, if they evidently left traces of a soldier ran to the combatants, and in his way a deadly revenge, which seeks an opportunity a woman struck him in the face with an iron of indulging itself by provoking a second conpallen and drew a great deal of blood, on test to cover and excuse a deliberate attempt which he struck her on the breast with the on the life of its object. 1 East, P. C. 239, pommel of his sword ; and on her running 240. away, immediately followed and stabbed her (35) And see cases in 3 Chit. C. L. 729, 2 in the back; he was holden to be guilty simply ed. Where in an act which is not malum in of felonious homicide, Fost. 292. see 5 Burr. se, but malum prohibitum (it being prohibited, 2794 ; and where after inutual blows between except to persons of a certain description), as the prisoner and the deceased, the prisoner shooting at game, an unqualified person will knocked down the deceased, and after he was not be more guilty, if in shooting he accident. upon the ground stamped upon his stomach ly kills a human being, than one who is qnalle and belly with great force, it was held man- fied. i Hale, 475. Fost. 259. slaughter only. Russ. & Ry. C. C. 166. On

a man kills another suddenly, without any, or without a considerable provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another (f). But if the person so provoked had unfortunately killed the other, by beating him in such a manner as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not murder (g).

In like manner if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be

guilty of murder (h) (36), (37). And if one intends to do another [*201] felony, *and undesignedly kills a man, this is also murder (1).

Thus if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A ; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder (j). So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it (k). It were endless to go through all the cases of homicide, which have been adjudged either expressly, or impliedly malicious: these therefore may suffice as a specimen; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law ; excused on the account of accident or self-preservation ; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury : the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence (1) (38).


1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.

(3) Fost. 291.
(h) 1 Hal. P.C. 457. Fost. 308, de.
(0) 1 Hal, P. C. 465.

6) Ibid. 466.
(k) Ibid. 429.
(1) Fost. 255.

(36) As to what will amount to murder in ed the ghost : he met the deceased, who was killing an officer, see 1 Chit. Crim. Law, 2 ed. dressed in white, and immediately discharged c. 2. 2 id. 729.

his gun and killed him. Chief Baron Mac(37) It is murder to kill a constable, though donald, Mr. J. Rooke, and Mr. J. Lawrence he has no warrant, and does not witness the were unanimously of opinion that the facts felony committed, but takes the party upon a amounted to the crime of murder. For the charge only; and that, even though the charge person who represented the ghost, was only be in itself defective to constitute a felony. guilty of a misdemeanor (a nuisance), and no Rexo. Ford, R. and R. C. C. 329.

one would have had a right to hare killed him, (38) Francis Smith was indicted for murder even if he could not otherwise have been at the Old Bailey, January 13, 1804. The taken. The jury brought in a verdict of man. neighbourhood of Hammersmith had been slaughter, but the court said they could not alarmed by what was supposed to be a ghost. receive that verdict; if the jury believed the The prisoner went out with a loaded gun with witnesses, the prisoner was guilty of murder : intent to apprehend the person who personat. if they did not believe them, they must acquit

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