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derer 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, &c." But let us now consider the definition of this great offence.

The name of murder (as a crime) was antiently applied only to the secret killing of another,(s) (which the word moerda *signifies in the Teuton **195 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 denominated murdrum.(w) This was an antient usage amonge Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder,(x) and, according to Bracton,(y) was introduced into this kingdom by king Canute to prevent his countrymen, the Danes, 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 abolished by statute 14 Edw. III. c. 4, we must now (as is observed by Staundforde)(b) 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 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 show a consciousness of doing wrong, and of course a discretion or discernment between good and evil.13


Next, it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without *warrant 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 misdemeanour, though formerly it was held to be murder.(d) 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 poison

(*) L. of N. b. viii. c. 3.
(Dial. de Scacch. 1. 1, c. 10.

(1) Stiernh. de jure Sucon. 1. 3, c. 3. The word murdre in our old statutes also signified any kind of concealment or stifling. So in the statute of Exeter, (14 Edw. I.,) "je riens me celerai, ne sufferia estre celé ne murdré," which is thus translated in Fleta, l. 1, c. 18, 4:-"Nullam veritatem celabo, nec celari permittam nec murdari." And the words 'pur murdre le droit," in the articles of that statute, are rendered in Fleta, (ibid. 28,) "pro jure alicujus murdriendo."

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18 See ante, 23, as to infants. In the case of lunacy, where there is only such a partial derangement as leaves the person free to act or to forbear in the particular case in question, or where he is guilty of the crime during a lucid interval, he will be equally liable to punishment with those who are perfectly sane. Earl Ferrer's case, '10 Harg. St. Tr. 478. Where, however, the mind labours under such a delusion that, though it discerns some objects clearly, it is totally deranged as to the objects of its attack, the party will be entitled to an acquittal. See Erskine's Speeches, vol. v. 1, Ridgway's ed. 1812. How far drunkenness excuses a crime, see ante, 25, 26.-CHITTY..

ing, 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) Of 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 Hen. 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; but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was also, by the antient 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

() 3 Inst. 319. 2 Hal. P. C. 185. ()3 Inst. 48.

(9) Fost. 132. In the case of Macdaniel and Berry, reported by Sir Michael Foster, though the then attorneygeneral declined to argue this point of law, I have good

grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution.

14 See 1 East, P. C. 341, and Sharwin's case there cited, in which it was held that an averment of an assault with a wooden staff was satisfied by proof of an assault with a stone,— the effect being the same. See Rex vs. Dale, 13 Price, 172. 9 J. B. Moore, 19. A stroke must be expressly averred; and an indictment stating that the prisoner murdered, or gave a mortal wound, without saying that he struck, is bad. Rex vs. Long, 5 Co. Rep. 122, a. 1 East, P. C. 342. It must also be stated upon what part of the body the deceased was struck, (2 Hale, P. C. 185;) and the length and depth of the wound must be shown. Id. 186. Haydon's case, 4 Co. Rep. 42, a. Where there are several wounds, the length and breadth of each need not be stated. Rex vs. Mosley, R. & N. C. C. 97. And see Young's case, 4 Co. Rep. 40, Walker's case, id. 41, Rex vs. Lorkin, 1 Bulst. 124, 2 Hale, P. Č. 184, Rex vs. Dale, R. & M. C. C. 5, as to the wound, cause of death, &c. Where the death proceeded from suffocation from the swelling up of the passage of the throat and such swelling proceeded from wounds occasioned by forcing something into the throat, it was held sufficient to state in the indictment that the things were forced into the throat and the person thereby suffocated, and that the process immediately causing the suffocation, namely, the swelling, need not be stated. Rex vs. Tye, R. & R. C. C. 345. The death, by the means stated, must be positively averred, and cannot be inferred, (1 East, P. C. 343;) and where the death is occasioned by a stroke, it must be further alleged that the prisoner gave the deceased a mortel wound, &c. whereof he died. 2 Hale, P. C. 186. Kel. 125. Lad's case, Leach, 96. The time and place both of the wound and of the death must be stated, in order to show that the deceased died within a year and a day from the cause of the death; in computing which, the day of the act done is reckoned the first; though a precise statement of the day is immaterial, if the party is proved to have died within the limited period. 2 Inst. 318. 2 East, P. C. 344. The word murdered is absolutely necessary in the indictment. 2 Hale, P. C. 187. The allegations, "not having the fear of God," &c. "vi et armis," and "being in the peace of God," &c. are not necessary. 2 Stark. C. P. 385. Where the stroke is given in one county and the death happens in another, the venue may be laid in either. As to laying the venue, where the stroke is given at sea, see 9 Geo. IV. c. 31, 8. Where the name of the deceased is not known, he may be described as a certain person to the jurors unknown; but a bastard child cannot be described by his mother's name unless he has acquired that name by reputation. Rex vs. Clark, R. & R. C. C. 358; and see Rex vs. Sheen, 2 C. & P. 655.-CHITTY.

15 This extraordinary punishment seems to have been adopted by the legislature from the peculiar circumstances of the crime which gave rise to it; for the preamble of the statute informs us that John Roose, a cook, had been lately convicted of throwing poison into a large pot of broth prepared for the bishop of Rochester's family and for the poor of the parish; and the said John Roose was, by a retrospective clause of the same statute, ordered to be boiled to death. Lord Coke mentions several instances of persons suffering this horrid punishment. 3 Inst. 48. Murder of malice prepense was made high treason in Ireland by 10 Hen. VII. c. 21, Irish Statutes. By the 43 Geo. III. c. 58, it is enacted, that if any person shall wilfully and maliciously administer to, or cause to be administered to or taken by, any of his majesty's subjects any deadly poison with intent to murder, he, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy. So the attempt to murder by poison, which by the common law was only a misdemeanour, is now made a capital crime.-CHRISTIAN:

and executed.(h) The Gothic laws punished, in this case, both the judge, the witnesses, and the prosecutor: "peculiari pœna judicem puniunt; peculiar testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homici dam."(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 there is no doubt but this is equally murder in foro conscientiæ as killing with a *sword; though the modern law (to avoid the danger of deterring wit- [*197 nesses from giving evidence upon capital prosecutions, if it must be at

the peril of their own lives) has not yet punished it as such.16 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;(1) 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)" 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) 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.(g) Yet Sir Matthew Hale very justly questions the law of this determination.(r)19 In order also to make the killing 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)

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16 The guilt of him who takes away the life of an innocent man by a false oath is much more atrocious than that of an assassin who murders by a dagger or by poison. He who destroys by perjury adds to the privation of life public ignominy, the most excruciating of tortures to an honourable mind, and reduces an innocent family to ruin and infamy; but notwithstanding this is the most horrid of all crimes, yet there is no modern authority to induce us to think that it is murder by the law of England: lord Coke says expressly, "it is not holden for murder at this day." 3 Inst. 48. See also Fost. 132. Such a distinction in perjury would be more dangerous to society, and more repugnant to principles of sound policy, than in this instance the apparent want of severity in the law. Few honest witnesses would venture to give evidence against a prisoner tried for his life, if thereby they made themselves liable to be prosecuted as murderers.-CHRISTIAN.

"Or if a master refuse his apprentice necessary food or sustenance, or treat him with such continued harshness and severity as his death is occasioned thereby, the law will imply malice and the offence will be murder. Leach, 127. 2 Camp. 650; and see 1 Russ. 621. CHRISTIAN.

If a prisoner die by the cruelty or neglect of the gaoler, or, in legal language, by duress of imprisonment, the party actually offending is criminal in this degree. Fost 321; and see 2 Stra. 856. 2 Lord Raym. 1578. Fost. 322. Laying noisome and poisonous filth at a man's door, which kills him by corrupting the air which he breathes, will be murder. 1 Hale, 432.-CHITTY.

18 Such persons are clearly still liable to a civil action where gross negligence or ignorance can be proved, (Slater vs. Baker, 2 Wils. 359. Seare vs. Prentice, 8 East, 348;) and it would also be a good defence to an action by an apothecary on his bill that he had treated his patient ignorantly or improperly. Kannea vs. M'Mullen, Peake, 59.-CHITTY. 19 It is not murder to work on the imagination so that death ensues, or to call the feelings into so strong an exercise as to produce a fatal malady,-though such acts, if not

Further, the person killed must be "a reasonable creature in being, and under *198] the king's peace," at the time of the *killing. Therefore to 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.( 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 his parent) is admitted to convict the prisoner."

(f) 3 Inst. 50. 1 Hal. P. C. 433.

(") 3 Inst. 50. 1 Hawk. P. C. 80. But see 1 Hal. P. C. 433.

(*) See Barrington on the Statutes, 425.

malicious, spring from a criminal thoughtlessness. Post, 204. 1 Hale, 429. If a wound itself be not mortal, but by improper applications becomes so and terminates fatally, and it can be clearly shown that the medicine and not the wound was the cause of the death, the party who inflicted the wound will not be guilty of murder. 1 Hale, 428. But where the wound was adequate to produce death it will not be an excuse to show that, had proper care been taken, a recovery might have been effected. 1 Hale, 428.-CHITTY.

20 The 21 Jac. I. c. 27 was repealed by the 43 Geo. III. c. 58, which has also recently been repealed, and the law upon this subject is now as follows: By 9 Geo. IV. c. 31, § 13, if any person, with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon; and if any person, with intent to procure the miscarriage of any woman not being, or not being proved to be, then quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any medicine or other thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported for any term not exceeding fourteen and not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped. By 14, if any woman shall be delivered of a child and shall, by secret burying or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labour, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth: provided that, if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or other wise disposing of the body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence as if she had been convicted upon an indictment for the concealment of the birth. These enactments are substantially the same as those of the 43 Geo. III. c. 58 upon the same subjects, except that, by sect. 14 of the new act, the concealment of the birth of a child is made an indictable misdemeanour, whereas, before, the prisoner could only be found guilty of the concealment upon an indictment charging her with murder. See Rex vs. Parkinson, 1 Russell, 475, 2. 1 Chetw. Burn, 334. The rules laid down with respect to indictments for these of


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 præcogitata, 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; (x) and 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 hodily 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) Yet it requires such 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 life and fortune, as well of the person insulted as of him who hath given the insult." 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 but from a bad heart, it was equivalent to a deliberate act of

(t) Foster, 256,

(*) 2 Roll. Rep. 461.

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

fences under the old statute seem, in other respects, equally applicable to the new act.— CHITTY.

21 Wherever two persons in cold blood meet and fight, on a precedent quarrel, and one of them is killed, the other is guilty of murder and cannot excuse himself by alleging that he was first struck by the deceased; or that he had often declined to meet him and was prevailed upon to do it by his importunity; or that his only intent was to vindicate his reputation; or that he meant not to kill but only to disarm his adversary: for, as ho deliberately engaged in an act in defiance of the law, he must at his peril abide the consequences. 1 Hawk. P. C. c. 31, 21. 1 Bulst. 86, 87. 2 Bulst. 147. Crom. 22, 26. 1 Rol. Rep. 360. 3 Bulst. 171. 1 Hale, P. C. 48. Therefore if two persons quarrel over night and appoint to fight the next day, or quarrel in the morning and agree to fight in the afternoon, or such a considerable time after by which, in common intendment, it must be presumed that the blood was cooled, and then they meet and fight and one kill the other, he is guilty of murder. 1 Hawk. P. C. c. 31, & 22. 3 Inst. 51. 1 Hale, P. C. 48. Kel. 56. 1 Lev. 180.-CHITTY.

22 See the law of duelling fully stated, 3 East, Rep. 581; 6 East, 464; 2 Bar. & Ald. 462.-CHITTY.

It is to be observed that it is enacted by stat. 1 Vict. c. 85, 22 3 & 8 that whosoever shall attempt to poison or shoot at any person, or attempt to drown, or suffocate, with intent to commit murder, shall, although no bodily injury be effected, be guilty of felony, and shall be liable to transportation for life, or for any term not less than fifteen years, or imprisonment for three years; by 22 4 & 8, the same punishment is awarded to shooting, stabbing, or wounding any person with intent to maim, disfigure, or do any grievous bodily harm to such person, or with intent to resist the lawful apprehension or detainer of any person; and, by 11, the jury may acquit of these offences and find a verdict of guilty of assault against the person indicted if the evidence warrants such finding.--STEWART.

VOL. II.-30


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