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 enhance 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 before 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 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) Fost. 299, 300.

(m) Fost. 301. 1 Hawk. P. C. 77.

(20) By 9 Geo. IV. c. 31, 9, (repealing all former enactments on this subject,) every person convicted of manslaughter shall be liable, at the discretion of the court, to be transported for life, or for any term not less than seven years, or to be imprisoned with or without hard labour, for any term not exceeding four years, or to pay such fine as the court shall award.

(21) The 1 J. I. c. 8, together with the 43 G. III. c. 58, (Lord Ellenborough's Act,) and the 1 G. IV. c. 90, relating to the same subject, is repealed by 9 G. IV. c. 31; by 11 of which it is enacted, that if any person unlawfully and maliciously shall administer, or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall, by drawing a trigger, or in any other manner,

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

attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, 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 by § 12, it is enacted, that if any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or, in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any offence for which 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 (9). "Moreover ye shall 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, &c." 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 (x): and, according to Bracton (y), was introduced into this kingdom by king Canute, to prevent his countrymen the Danes

(p) Gen. ix. 6.

(q) Numb. xxxv. 31.

(r) L. of N. b. 8, c. 3.

(8) Dial. de Scacch. l. 1, c. 10.

(t) Stiernh. de jure Sueon. 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 ne celerai, ne sufferia estre celé ne murdre ;" which is thus translated in Fleta, 7. 1, c. 18, ◊ 4. "Nullam veritatem celabo, nec ceto be apprehended or detained, 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 provided, that in case it shall appear, on the trial of any person indicted for any of the offences above specified, that such acts of shooting, or of attempting to discharge loaded arms, or of stabbing, cutting, or wounding, as aforesaid, were committed under such circumstances, that if death had ensued therefrom, the same would not in law have amounted to the crime of murder, in every such case the person so indicted shall be acquitted of felony. There are two novelties in this Act of Parliament; first, the provisions in section 11, respecting drowning, suffocating, and strangling; and secondly, the introduction, in both ss. 11 and 12, of the word wound, after the words stab and cut. The latter is an improvement which had long been a desideratum, many indictments under the former statue having failed merely for the want of some such general term, where the injury inflicted did not fall strictly within the definition either of a stab VOL. II.

68

or a cut. The new Act also places, attempts to murder, and attempts to maim, under two distinct clauses; it does not, however, make those offences distinct in their nature: it follows, therefore, that both may be charged in the same indictment. An indictment under this statute must describe with accuracy the mode in which the injury is inflicted; for where the indictment under 43 G. III. c. 58, was for cutting, and the evidence was that the wounds were inflicted by stabbing, the judges held the conviction wrong. Rex v. M'Dermot, R. and R. C. C. 356. It may be observed, generally, that where the injury is inflicted with intent to prevent a lawful apprehension, it must be shewn that the offender had notice of the purpose for which he was apprehended; for otherwise, in case of death ensuing, the offence would be manslaughter, and the prisoner would be entitled to the benefit of the proviso in section 12. See Rickett's case, Russell, 599. With respect to offences of this, and of other descriptions, committed upon the high seas; see, post, 268.

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) (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 (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 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 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

(z) 1 Hal. P. C. 447.

(a) Bract. ubi supr.

(b) P. C. l. 1, c. 10.

(22) See note 18, p. 191.

(23) 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, 5 vol. 1. Ridgway's ed. 1812. How far drunkenness excuses a crime, see ante, 25, 6.

(24) As to attempts to commit crimes generally, see 2 R. S. 698, 702. Shooting, or attempting to shoot, another, or assaulting and beating him by such means as were likely to produce death, with an intent to kill, maim, ravish, or rob, or in the attempt to commit any

(c) 3 Inst. 47.

(d) 1 Hal. P. C. 425.

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

burglary, larceny, or other felony, or in resist ing legal process, is punishable with imprisonment for not more than 10 years: administering poison with an intent to kill, is punishable with imprisonment not less than 10 years. Mingling poison in any food, drink, or medicine, with intent to kill, but without adminis tering it; or poisoning any spring, reservoir, or well of water, is punishable with imprisonment not exceeding 10 years, and fine not exceeding 500 dollars. An assault with intent to commit a felony, is punishable with imprisonment not exceeding 5 years, and fine not exceeding 500 dollars, in cases where no other punishment is before provided by the act. (2 R. S. 665. 666.)

(25) 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 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 (ƒ). 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

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 v. 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 shewn; 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 v. Mosley, R. and N. C. C. 97. And see Young's case 4 Co. Rep. 40, Walker's case, id. 41, Rex v. Lorkin, 1 Bulster. 124, 2 Hale, P. C. 184, Rex v. Dale, R. and 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 swellings 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 v. Tye, R. and R. Č. 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 occaisoned by a stroke, it must be further alleged that the prisoner gave the deceased a mortal 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 shew that the deceased died within a year and a day from the cause of the death; in computing which, the day of the acdone 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

able, but from other prudential reasons. Nothing
therefore should be concluded from the waiving of
that prosecution.

(h) Mirror, c. 1, § 9. Britt. c. 52. Bract. 1. 3, c. 4.
(i) Stiernh. de jure Goth. 1. 3, c. 3.
(k) Ff. 48. 8. 1.

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 G. 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 v Clarke, R. and R. C. C. 358 and see Rex v. Sheen, 2 C. and P. 655.

(26) 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 adminis ter 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 misdemeanor, is now made a capital crime.

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 (/); 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 (0). 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 (q). Yet sir Matthew Hale very justly questions the law of this determination (r) (30). In order also to make the killing

:

(7) 1 Hawk. P. C. 78. (m) 1 Hal. P. C. 452. (n) Palm. 545.

(0) Ibid 431.

(27) 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 murder

ers.

(28) 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 wil imply malice, and the offence will be murder. Leach, 127. 2 Camp. 650; and see 1 Russ. 621.

If a prisoner die by the cruelty or neg. lect of the gaoler, or, in legal language, by duress of imprisonment, the party actually of

(p) Mirr. c. 4, 16. See Book III. page 122
(q) Britt. c. 5. 4 Inst. 251.
(r) 1 Hal. P. C. 430.

fending 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. I Hale, 432.

(29) Such persons are clearly still liable to a civil action, where gross negligence or ignorance can be proved. Slater v. Baker, 2 Wils. 359; Seare v. 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 v. M'Mullen, Peake, 59.

(30) 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 malicious, spring from a criminal thoughtlessness. Post, 204. I Hale, 429. If a wound itself be not mortal, but by improper applications becomes so and terminates fatally, and it can be clearly shewn 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 shew that, had proper care been taken, a recovery might have been effected. Hale, 428.