Front Page Titles (by Subject) CHAPTER XIV.: OF HOMICIDE. - Commentaries on the Laws of England in Four Books, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XIV.: OF HOMICIDE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
**176]In the ten preceding chapters we have considered, first, such crimes and misdemeanours as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.
Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs, for which a satisfaction would be due only to the party injured, the manner of obtaining which was the subject of our inquiries in the preceding book. But the wrongs which we are now to treat of are of a much more extensive consequence: 1. Because it is impossible they can be committed without a violation of the laws of nature,—of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is **177]that, besides the private satisfaction due and given in many cases to the individual by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the king, in whom, by the texture of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution there was a threefold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example.(a) Of which we may trace the groundwork in what Tacitus tells us of his Germans,(b) that, whatever offenders were fined, “pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur.”
These crimes and misdemeanours against private subjects are principally of three kinds: against their persons, their habitations, and their property.
Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator, and of which, therefore, no man can be entitled to deprive himself or another but in some manner either expressly commanded in or evidently, deducible from those laws which the Creator has given us; the divine laws, I mean, of either nature or revelation. The subject, therefore, of the present chapter, will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.
Now, homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the **178]third is the highest crime against the law of nature that man is capable of committing.
I. Justifiable homicide is of divers kinds.
1. Such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death who had forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty, and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore, wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled and extrajudicially, is murder.(c) For, as Bracton(d) very justly observes, “istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet justè occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam.” And, further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder.(e) And upon this account Sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell’s government, (since it is necessary to decide the disputes of civil property in the worst of times,) yet declined to sit on the crown side at the assizes and try prisoners, having very strong objections to the legality of the usurper’s commission;(f) a distinction perhaps rather too refined, since the punishment of crimes is at least as necessary to society as maintaining the boundaries of property. Also, such judgment, when legal, must be executed by the proper officer or his appointed deputy; for no one else is required by law to do it, which requisition it is that justifies the homicide. If another *[*179person doth it of his own head, it is held to be murder,(g) even though it be the judge himself.(h) It must, further, be executed servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder,(i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law; but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide, and, besides, this license might occasion a very gross abuse of his power. The king, indeed, may remit part of a sentence, as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment: and in the case of felony, where the judgment is to be hanged, the king (it hath been said) cannot legally order even a peer to be beheaded.(k) But this doctrine will be more fully considered in a subsequent chapter.
Again: in some cases homicide is justifiable rather by the permission than by the absolute command of the law, either for the advancement of public justice, which without such indemnification would never be carried on with proper vigour; or, in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided.
2. Homicides committed for the advancement of public justice are:—1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him.(l) 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted, and in the endeavour to take him kills him.(m) This is similar to the old Gothic constitutions, which (Stiernhook informs us)(n) “furem, si aliter capi non posset, occidere *[*180permittunt.” 3. In case of a riot, or rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law,(o) and by the riot act 1 Geo. I. c. 5. 4. Where the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape.(p) 5. If trespassers in forests, parks, chases, or warrens will not surrender themselves to the keepers, they may be slain, by virtue of the statute 21 Edw. I. st. 2, demalefactoribus in parcis, and 3 & 4 W. and M. c. 10.1 But in all these cases there must be an apparent necessity on the officer’s side, viz., that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, the deer-stealers could not but escape, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable.2 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favour of the truth.(q)3
In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature;(r) and also by the law of England, as it stood so early as the time of Bracton,(s) and as it is since declared in statute 24 Hen. VIII. c. 5.4 If any person attempts a robbery or murder of another, or attempts to break open a house, in the night-time, (which extends also to an attempt to burn it,)(t) and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the daytime, unless it carries with it the attempt of robbery also. So the Jewish law, which punished no theft with death, makes homicide only justifiable in case of nocturnal house-breaking: if a thief be found breaking up, and he be “smitten that **181]he die, no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution.”(u) At Athens, if any theft was committed by night, it was lawful to kill the criminal if taken in the fact:(w) and by the Roman law of the twelve tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon:(x) which amounts to nearly the same as is permitted by our own constitutions.
The Roman law also justifies homicide when committed in defence of the chastity either of one’s self or relations;(y) and so also, according to Selden,(z) stood the law in the Jewish republic. The English law likewise justifies a woman killing one who attempts to ravish her:(a) and so too the husband or father may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other.(b) And I make no doubt but the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own and all other laws seems to be this,—that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does, who holds(c) “that all manner of force without right upon a man’s person puts him in a state of war with the aggressor; and, of consequence, that, being in such state of war, he may lawfully kill him that puts him under this unnatural restraint.” However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other *[*182well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.
In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.
II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.
1. Homicide per infortunium or misadventure is where a man, doing a lawful act without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man:(d) for the act is lawful, and the effect is merely accidental.5 So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure; for the act of correction is lawful; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder;(e) for the act of immoderate correction is unlawful. *[*183Thus, by an edict of the emperor Constantine,(f) when the rigour of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and if death accidentally ensued, he was guilty of no crime; but if he struck him with a club or a stone, and thereby occasioned his death, or if in any other yet grosser manner, “immoderate suo jure utatur, tunc reus homicidii sit.”
But to proceed: A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act: and so are boxing and sword-playing, the succeeding amusement of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony or manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful.(g) In the like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games authorized or permitted by the state, was not held to be guilty of homicide.(h) Likewise to whip another’s horse whereby he runs over a child and kills him, is held to be accidental in the rider, for he had done nothing unlawful; but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness of inevitably dangerous consequence.(i)6 And in general if death ensues in consequence of an idle, dangerous, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cock-throwing, in these and similar cases the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts.(k)
2. Homicide in self-defence or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned as calculated to **184]hinder the perpetration of a capital crime; which is not only a matter of excuse but of justification. But the self-defence which we are now speaking of is that whereby a man may protect himself from an assault or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley, the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import: but the former is in common speech too often erroneously applied to any manner of homicide or misadventure; whereas it appears, by the statute 24 Hen. VIII. c. 5, and our antient books,(l) that it is properly applied to such killing as happens in self-defence upon a sudden rencounter.(m) This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence but in sudden and violent cases, when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant.7
It is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defence) from that of manslaughter, in the proper legal sense of the word.(n) But the true criterion between them seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter: but if the slayer has not begun the fight, or (having begun) endeavours to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence.(o) For which reason the law requires that the person who kills another in his own defence *[*185should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not factitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother’s blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy, yet between two fellow-subjects the law countenances no such point of honour, because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves.(p) In this the civil law also agrees with ours, or perhaps goes rather further: “qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt.”(q) The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him,(r) for it may be so fierce as not to allow him to yield a step without manifest danger of his life or enormous bodily harm, and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice(s) as well as of the municipal law.
And as the manner of the defence, so is also the time to be considered; for, if the person assaulted does not fall upon the aggressor till the affray is over, or when he is running away, this is revenge, and not defence. Neither, under the colour of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder; for if two persons, A. and B., agree to fight a duel, and A. gives the first onset, and B. retreats as far as he safely can and then kills A., this is murder, because of the previous malice and concerted design.(t) But if A., upon a sudden quarrel, assaults B. first, and upon B.’s returning the assault A. really and bona fide flees, and, being driven to the wall, turns again upon B. and kills him, this may be se defendendo according to some of our writers,(u) *[*186though others(w) have thought this opinion too favourable, inasmuch as the necessity to which he is at last reduced originally arose from his own fault. Under this excuse of self-defence the principal civil and natural relations are comprehended: therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused; the act of the relation assisting being construed the same as the act of the party himself.(x)
There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death; and yet this homicide is also excusable, from the great universal principle of self-preservation which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by lord Bacon,(y) where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man’s is excusable through unavoidable necessity and the principle of self-defence, since their both remaining on the same weak plank is a mutual though innocent attempt upon and an endangering of each other’s life.
Let us next take a view of those circumstances wherein these two species of homicide by misadventure and self-defence agree; and those are in their blame and punishment. For the law sets so high a value upon the life of a man that it always intends some misbehaviour in the person who takes it away, unless by the command or express permission of the law. In the case of misadventure it presumes negligence, or at least a want of sufficient caution, in him who was so unfortunate as to commit it, who therefore is not altogether faultless.(z) And as to the necessity which excuses a man who **187]kills another se defendendo, lord Bacon(a) entitles it necessitas culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intends that the quarrel or assault arose from some unknown wrong, or some provocation either in word or deed; and since, in quarrels, both parties may be, and usually are, in some fault, and it scarce can be tried who was originally in the wrong, the law will not hold the survivor entirely guiltless. But it is clear, in the other case, that where I kill a thief that breaks into my house, the original default can never be upon my side. The law, besides, may have a further view: to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment, by ordaining that he who slays his neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.
Nor is the law of England singular in this respect. Even the slaughter of enemies required a solemn purgation among the Jews; which implies that the death of a man, however it happens, will leave some stain behind it. And the Mosaical law(b) appointed certain cities of refuge for him “who killed his neighbour unawares; as, if a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree, and the head slippeth from the helve and lighteth upon his neighbour that he die, he shall flee unto one of these cities and live.” But it seems he was not held wholly blameless any more than in the English law, since the avenger of blood might slay him before he reached his asylum, or if he afterwards stirred out of it till the death of the high-priest. In the imperial law, likewise,(c) casual homicide was excused by the indulgence of the emperor, signed with his own sign-manual, “annotatione principis;” otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks,(d) homicide by misfortune was expiated by voluntary **188]banishment for a year.(e) In Saxony a fine is paid to the kindred of the slain; which also, among the Western Goths, was little inferior to that of voluntary homicide:(f) and in France(g) no person is ever absolved, in cases of this nature, without a largess to the poor, and the charge of certain masses for the soul of the party killed.
The penalty inflicted by our laws is said by Sir Edward Coke to have been antiently no less than death;(h) which, however, is with reason denied by later and more accurate writers.(i) It seems rather to have consisted in a forfeiture, some say of all the goods and chattels, others of only part of them, by way of fine or weregild:(k) which was probably disposed of, as in France, in pios usus, according to the humane superstition of the times, for the benefit of his soul who was thus suddenly sent to his account with all his imperfections on his head. But that reason having long ceased, and the penalty (especially if a total forfeiture) growing more severe than was intended in proportion as personal property has become more considerable, the delinquent has now, and has had as early as our records will reach,(l) a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same.(m) And, indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal.(n)
III. Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one’s self, or another man.
*[*189Self-murder, the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure, though the attempting it seems to be countenanced by the civil law,(o) yet was punished by the Athenian law with cutting off the hand which committed the desperate deed.(p) And also the law of England wisely and religiously considers that no man hath a power to destroy life but by commission from God, the author of it: and, as the suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one’s self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder.(q) A felo de se, therefore, is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if, attempting to kill another, he runs upon his antagonist’s sword; or, shooting at another, the gun bursts and kills himself.(r)8 The party must be of years of discretion and in his senses, else it is no crime. But this excuse ought not to be strained to that length to which our coroner’s juries are apt to carry it, viz., that the very act of suicide is an evidence of insanity; as if every man who acts contrary to reason had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter,(s) to *[*190form a legal excuse. And, therefore, if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man.(t)
But now the question follows,—What punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune; on the former by an ignominious burial in the highway, with a stake driven through his body;9 on the latter by a forfeiture of all his goods and chattels to the king; hoping that his care for either his own reputation or the welfare of his family would be some motive to restrain him from so desperate and wicked an act. And it is observable that this forfeiture has relation to the time of the act done in the felon’s lifetime, which was the cause of his death. As if husband and wife be possessed jointly of a term of years in land, and the husband drowns himself, the land shall be forfeited to the king, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term; which gives a title to the king prior to the wife’s title by survivorship, which could not accrue till the instant of her husband’s death.(u) And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this, as on all other occasions, is reminded by the oath of his office to execute judgment in mercy.10
The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt which divide the offence into manslaughter and murder, the difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this,—that manslaughter, when voluntary, arises from the sudden heat of the passions, murder from the wickedness of the heart.
**191]1. Manslaughter is therefore thus defined:(v) the unlawful killing of another without malice, either express or implied; which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. These were called, in the Gothic constitutions, “homicidia vulgaria; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu.”(w) And hence it follows that in manslaughter there can be no accessories before the fact, because it must be done without premeditation.
As to the first, or voluntary branch: if, upon a sudden quarrel, two persons fight, and one of them kills the other, this is manslaughter; and so it is if they, upon such an occasion, go out and fight in a field, for this is one continued act of passion,(x) and the law pays that regard to human frailty as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So, also, if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice, but it is manslaughter.(y) But in this and in every other case of homicide upon provocation, if there be a sufficient cooling-time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, 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 antient Goths,(c) yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, *[*192but it is manslaughter.(d) It is, however, the lowest degree of 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 unlawful 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.(f) 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,(g) 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 *[*193intent, or in its consequences naturally tended to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will only amount to manslaughter.(j)
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 burned in the hand and forfeit all his goods and chattels.11
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.(l) 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 preceding 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, it 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)12
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.(q) “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 antiently applied only to the secret killing of another,(s) (which the word moerda *[*195signifies 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 denominated murdrum.(w) This was an antient 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, from being privily murdered by the English; and was afterwards continued by William the Conqueror, for the like security to his own Normans.(z) 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 *[*196warrant 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 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)14 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;15 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 and executed.(h) The Gothic laws punished, in this case, both the judge, the witnesses, and the prosecutor: “peculiari pœna judicem puniunt; pecutiari testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam.”(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 *[*197sword; 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.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;(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)17 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)18 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)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)
Further, the person killed must be “a reasonable creature in being, and under the king’s peace,” at the time of the **198]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.(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 his parent) is admitted to convict the prisoner.20
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 *[*199malice 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 lying 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.(z)21 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 life and fortune, as well of the person insulted as of him who hath given the insult.22 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 slaughter.(a)23 Neither shall he be guilty of a less crime who kills another **200]in consequence of such a wilful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief,(b) 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 præcogitata, or evil intended beforehand.(d)24
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 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 showed 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)25 And if one intends to do another felony, *[*201and undesignedly kills a man, this is also murder.(i) 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.(l)26
The punishment of murder and that of manslaughter was formerly one and the same, both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime.(m) But now, by several statutes,(n) the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers, and counsellors. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place **202]where the fact was committed: but this was no part of the legal judgment; and the like is still sometimes practised in the case of notorious thieves. This, being quite contrary to the express command of the Mosaical law,(o) seems to have been borrowed from the civil law, which, besides the terror of the example, gives also another reason for this practice, viz., that it is a comfortable sight to the relations and friends of the deceased.(p) But now, in England it is enacted, by statute 25 Geo. II. c. 37, that the judge before whom any person is found guilty of wilful murder shall pronounce sentence immediately after conviction, unless he sees cause to postpone it, and shall, in passing sentence, direct him to be executed on the next day but one, (unless the same shall be Sunday, and then on the Monday following,)27 and that his body be delivered to the surgeons to be dissected and anatomized,(q) and that the judge may direct his body to be afterwards hung in chains,28 but in no wise to be buried without dissection. And during the short but awful interval between sentence and execution the prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to respite the execution and relax the other restraints of this act.29
By the Roman law, parricide, or the murder of one’s parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leathern sack with a live dog, a cock, a viper, and an ape, and so cast into the sea.(r) Solon, it is true, in his laws, made none against parricide, apprehending it impossible that any one should be guilty of so unnatural a barbarity.(s) And the Persians, according to Herodotus, entertained the same notion when they adjudged all persons who killed their reputed parents to be bastards. And upon some such reason as this we must account for *[*203the omission of an exemplary punishment for this crime in our English laws, which treat it no otherwise than as simple murder, unless the child was also the servant of his parent.(t)
For, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connections, when coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason, which, however, is nothing else but an aggravated degree of murder;(u) although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason.(v) And thus, in the antient Gothic constitutions, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign.(w)
Petit treason,30 according to the statute 25 Edw. III. c. 2, may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason; for the traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention.(x) So, if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband she is a traitress.(y) And a clergyman is understood to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop; and, therefore, to kill any of these is petit treason.(z) As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applicable to the crime of petit treason, which is no other than murder in *[*204its most odious degree, except that the trial shall be as in cases of high treason, before the improvements therein made by the statutes of William III.(a) But a person indicted of petit treason may be acquitted thereof and found guilty of manslaughter or murder;(b) and in such case it should seem that two witnesses are not necessary, as in case of petit treason they are.31 Which crime is also distinguished from murder in its punishment.
The punishment of petit treason in a man is, to be drawn and hanged, and in a woman to be drawn and burned;(c) the idea of which latter punishment seems to have been handed down to us by the laws of the antient Druids, which condemned a woman to be burned for murdering her husband,(d) and it is now the usual punishment for all sorts of treasons committed by those of the female sex.(e)32 Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. c. 7, which has been since extended to their aiders abettors, and counsellors, by statute 23 Hen. VIII. c. 1 and 4 & 5 P. and M. c. 4.
[(a) ] Stiernhook, l. 1, c. 5.
[(b) ]De Mor. Germ. c. 12.
[(c) ] 1 Hal. P. C. 497.
[(d) ] Fol. 120.
[(e) ] 1 Hawk. P. C. 70. 1 Hal. P. C. 497.
[(f) ] Burnet, in his Life.
[(g) ] 1 Hal. P. C. 501. 1 Hawk. P. C. 70.
[(h) ] Dalt. Just. c. 150.
[(i) ] Finch, L. 31. 3 Inst. 52. 1 Hal. P. C. 501.
[(k) ] 3 Inst. 52, 212.
[(l) ] 1 Hal. P. C. 494. 1 Hawk. P. C. 71.
[(m) ] 1 Hal. P. C. 494.
[(n) ]De jure Goth. l. 3, c. 5.
[(o) ] 1 Hal. P. C. 495. 1 Hawk. P. C. 161.
[(p) ] 1 Hal. P. C. 496.
[1 ] 21 Edw. I. stat. 2 is repealed, by 7 & 8 Geo. IV. c. 27, and 3 & 4 W. and M. c. 10, by 16 Geo. III. c. 30,—which latter is also repealed, by 7 & 8 Geo. IV. c. 27.—Chitty.
[2 ] If a person commits felony, and flies, or resists those who attempt to apprehend him, or is indicted of felony, and flies, or is arrested by warrant or process of law, and escapes, or is being conveyed to prison, and escapes,—in any of these cases, if he cannot be taken alive, and is killed in the act of resistance, the homicide is justifiable. 1 Hale, P. C. 489. 1 East, P. C. 298. So if an officer has a warrant against A., by name, for felony, or if A. is indicted of felony, or if the hue and cry is levied against him, by name, in any of these cases if A., though innocent, flies or resists, and is killed by the officer or any other person aiding him during flight or resistance, the person so killing him is indemnified. Fost. 318. 1 East, P. C. 300. And the officer, it seems, would be equally indemnified though he had no warrant, if he acted on a charge of felony, and on reasonable suspicion, even though it should appear in the result that no felony had been committed. Samuel vs. Payne, Doug. 359. Guppy vs. Brittlebank, 5 Price, 525.—Chitty.
[(q) ] 1 Hawk. P. C. 71.
[3 ] The trial by battle is abolished, by 59 Geo. III. c. 46. See further upon that subject, post. 346.—Chitty.
[(r) ] Puff. L. of N. l. 2, c. 5.
[(s) ] Fol. 155.
[4 ] Repealed, by 9 Geo. IV. c. 31, sect. 10 of which enacts that no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner, without felony.—Chitty.
[(t) ] 1 Hal. P. C. 488.
[(u) ] Exod. xxii. 2.
[(w) ] Pott. Antiq. b. i. c. 24.
[(x) ] Cic. pro Milone, 3. Ff. 9, 2, 4.
[(y) ] “Divus Hadrianus rescripsit cum qui stuprum sibi vel suis inferentem occidit dimittendum.” Ff. 48, 8, 1.
[(z) ]De legib. Hebræor, l. 4, c. 3.
[(a) ] Bac. Elem. 64. 1 Hawk. P. C. 71.
[(b) ] 1 Hal. P. C. 485, 486.
[(c) ] Ess. on Govt. p. 2, c. 5.
[(d) ] 1 Hawk. P. C. 73, 74.
[5 ] If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; if he might have seen the danger, but did not look before him, it will be manslaughter; but if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death and excusable homicide. 1 East, P. C. 263. Where, on a false alarm of thieves, the master of the house killed one of the family by mistake, who had concealed himself in a closet, this was holden homicide by misfortune. Cro. Car. 538. Where an unqualified person by accident shoots another in sporting, it is no greater offence than in a qualified person. 1 East, P. C. 260, 269.—Chitty.
[(e) ] 1 Hal. P. C. 473, 474.
[(f) ]Cod. l. 9, t. 14.
[(g) ] 1 Hal. P. C. 473. 1 Hawk. P. C. 74.
[(h) ] Plato, de LL. lib. 7. Ff. 9, 2, 7.
[(i) ] 1 Hawk. P. C. 73.
[6 ] Whenever death is the consequence of idle, dangerous, and unlawful sports, or of heedless, wanton, and indiscreet acts, without a felonious intent, the party causing the death is guilty of manslaughter. As if a man rides an unruly horse among a crowd of people, (1 East, P. C. 231;) or throws a stone or shoots an arrow over a wall into a public and frequented street, (1 Hale P. C. 475;) or discharges his pistols in a public street upon alighting from his carriage, (1 Stra. 481;) or throws a stone at a horse which strikes a man, (1 Hale, P. C. 39:) in any of these cases, though the party may be perfectly innocent of any mischievous intent, still, if death ensues, he is guilty of manslaughter. So, if the owner suffers to be at large any animal which he knows to be vicious and mischievous, and it kills a man, it has been thought by some that he may be indicted for manslaughter; but it is well agreed that he is guilty of a high misdemeanour, (2 Hawk. P. C. c. 13, 8;) and, in a very recent case of that kind, Best, C. J., laid it down as law “that if a person thinks proper to keep an animal of this description, [a bull,] knowing its vicious nature, and another person is killed by it, it will be manslaughter in the owner, if nothing more: at all events, it will be an aggravated species of manslaughter.” Blackman vs. Simmons, 3 C. & P. 140. If workmen, in the ordinary course of their business, throw rubbish from a house in a direction in which persons are likely to pass, and any one passing is killed, this is manslaughter. 1 East, P. C. 262. Killing a person in a prize-fight is manslaughter, Ward’s case, 1 East, P. C. 270. As to what are lawful sports, see Pulton, title Riot.—Chitty.
[(k) ] Ibid. 74. 1 Hal. P. C. 472. Fost. 261.
[(l) ] Staundf. P. C. 16.
[(m) ] 3 Inst. 55, 57. Fost. 275, 276.
[7 ] The general principle seems to be this:—If a man is attacked in such a manner that there is no possibility of his escaping without killing his assailant, he is justified in doing so, after having done his utmost to retreat. Fost. 278. Kel. 128. But no assault, however violent, will justify killing the assailant under the plea of necessity unless there is a clear manifestation of a felonious intent. 1 East, P. C. 277. 1 Russell, 551. And an officer who kills one who resists him in the execution of his office, and even a private person that kills one who feloniously assaults him in the highway, may justify the fact without retreating at all. 1 Hawk. P. C. c. 29, s. 16. 1 Hale, P. C. 41. 3 Inst. 56. Crom. 28, a.—Chitty.
[(n) ] 3 Inst. 55.
[(o) ] Fost. 277.
[(p) ] 1 Hal. P. C. 481, 483.
[(q) ]Ff. 9, 2, 45.
[(r) ] 1 Hal. P. C. 483.
[(s) ] Puff. b. ii. c. 5, 13.
[(t) ] 1 Hal. P. C. 479.
[(u) ] Ibid. 428.
[(w) ] 1 Hawk. P. C. 75.
[(x) ] 1 Hal. P. C. 448.
[(y) ] Elem. c. 5. See also 1 Hawk. P. C. 73.
[(z) ] 1 Hawk. P. C. 72.
[(a) ] Elem. c. 5.
[(b) ] Numb. xxxv. and Deut. xix.
[(c) ]Cod. 9, 16, 5.
[(d) ] Plato, de Leg. lib. 9.
[(e) ] To this expiation by banishment the spirit of Patroclus in Homer may be thought to allude when he reminds Achilles, in the twenty-third Iliad, that when a child he was obliged to flee his country for casually killing his play fellow: “νηπιος οὐ[Editor: illegible character] ἐθελων.”
[(f) ] Stiernh. de jure Goth. l. 3, c. 4.
[(g) ] De Morney, on the Digest.
[(h) ] 2 Inst. 148, 315.
[(i) ] 1 Hal. P. C. 425. 1 Hawk. P. C. 75. Fost. 282, &c.
[(k) ] Fost. 287.
[(l) ] Ibid. 283.
[(m) ] 2 Hawk. P. C. [Editor: illegible character]
[(n) ] Fost. 288.
[(o) ] “Si quis impatientia doloris, aut tædio vitæ, aut morbo, aut furore, aut pudore, mori maluit, non animadvertatur in sum.” Ff. 49, 16, 6.
[(p) ] Pott. Antiq. b. i. c. 26.
[(q) ] Keilw. 136.
[(r) ] 1 Hawk. P. C. 68. 1 Hal. P. C. 413.
[8 ] He who kills another upon his desire or command is in the judgment of the law as much a murderer as if he had done it merely of his own head; and the person killed is not looked upon as a felo de se, inasmuch as his assent was merely void, being against the law of God and man. 1 Hawk. P. C. c. 27, s. 6. Keilw. 136. Moor. 754. And see Rex vs. Sawyer, 1 Russell, 424. Rex vs. Evans, id. 426.—Chitty.
[(s) ] See page 24.
[(t) ] 1 Hal. P. C. 412.
[9 ] But now, by 4 Geo. IV. c. 52, s. 1, it shall not be lawful for any coroner, or other officer having authority to hold inquests, to issue any warrant or other process directing the interment of the remains of persons against whom a finding of felo de se shall be had in any public highway; but such coroner or other officer shall give directions for the private interment of the remains of such person felo de se, without any stake being driven through the body of such person, in the churchyard or other burial-ground of the parish or place in which the remains of such person might by the laws or customs of England be interred if the verdict of felo de se had not been found against such person, such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night. Proviso, (s. 2,) not to authorize the performing of any of the rites of Christian burial on the interment of the remains of any such person, nor to alter the laws or usages relating to the burial of such person, except so far as relates to the interment of such remains in such yard or burial-ground at such time and in such manner.—Chitty.
[(u) ] Finch, L. 216.
[10 ] As to what a felo de se shall forfeit, it seems clear that he shall forfeit all chattels real or personal which he has in his own right; and also all chattels real whereof he is possessed, either jointly with his wife, or in her right; and also all bonds and other personal things in action belonging solely to himself; and also all personal things in action, and, as some say, entire chattels in possession, to which he was entitled jointly with another, or any account, except that of merchandise. But it is said that he shall forfeit a moiety only of such joint chattels as may be severed, and nothing at all of what he was possessed of as executor or administrator. 1 Hawk. P. C. c. 27, s. 7. The blood of a felo de se is not corrupted, nor his lands of inheritance forfeited, nor his wife barred of her dower. 1 Hawk. P. C. c. 27, s. 8. Plowd. 261, b., 262, a. 1 Hale, P. C. 413. The will of a felo de se therefore becomes void as to his personal property, but not as to his real estate. Plowd. 261. No part of the personal estate of a felo de se vests in the king before the self-murder is found by some inquisition, and consequently the forfeiture thereof is saved by a pardon of the offence before such finding. 5 Co. Rep. 110, b. 3 Inst. 54. 1 Saund. 362. 1 Sid. 150, 162. But if there be no such pardon, the whole is forfeited immediately after such inquisition, from the time of the act done by which the death was caused, and all intermediate alienations and titles are avoided. Plowd. 260. 1 Hale, P. C. 29. 5 Co. Rep. 110. Finch, L. 216. See also, upon this subject, Lambert vs. Taylor, 6 D. & R. 188, 4 B. & C. 138.—Chitty.
[(v) ] 1 Hal. P. C. 466.
[(w) ] Stiernh. de jure Goth. l. 3, c. 4.
[(x) ] 1 Hawk. P. C. 82.
[(y) ] Kelyng. 135.
[(z) ] Fost. 296.
[(a) ] Plutarch, in vit. Solon.
[(b) ]Ff. 48, 5, 24.
[(c) ] Stiernh. de jure Goth. l. 3, c. 2.
[(d) ] 1 Hal. P. C. 486.
[(e) ] Sir T. Raym. 212.
[(f) ] 3 Inst. 56.
[(g) ] Kes. 40.
[(h) ] 3 Inst. 57.
[(i) ] Our statute-law has severely animadverted on one species of criminal negligence whereby the death of a man is occasioned. For, by statute 10 Geo. II. c. 31, if any waterman between Gravesend 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 waterman is guilty (not of manslaughter, but) of felony, and shall be transported as a felon.
[(j) ] Foster, 258. 1 Hawk. P. C. 84.
[11 ] By 9 Geo. IV. c. 31, s. 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.—Chitty.
[(k) ] Lord Raym. 140.
[(l) ] Fost. 299, 300.
[(m) ] Ibid. 301. 1 Hawk. P. C. 77.
[(n) ] 1 Hal. P. C. 470.
[(o) ] 1 Hawk. P. C. 77.
[12 ] The 1 Jac. I. c. 8, together with the 43 Geo. III. c. 58 (lord Ellenborough’s Act) and the 1 Geo. IV. c. 90, relating to the same subject, is repealed, by 9 Geo. IV. c. 31, by sect. 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, 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 sect. 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 to 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 sections 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 statute 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 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 Geo. III. c. 58 was for cutting, and the evidence was that the wounds were inflicted by stabbing, the judges held the conviction wrong. Rex vs. McDermot, R. & 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 shown 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, 1 Russ. 599. With respect to offences of this and of other descriptions committed upon the high seas, see post, 268.—Chitty.
[(p) ] Gen. ix. 6.
[(q) ] Numb. xxxv. 31,
[(r) ] L. of N. b. viii. c. 3.
[(s) ]Dial de Scacch l. 1, c. 10.
[(t) ] Stiernh de jure Sueon l. 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 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. 8,) “pro jure alicujus murdriendo.”
[(u) ] Glanv. l. 14, c. 3.
[(w) ] Bract. l. 3, tr. 2, c. 15, 7. Stat. Marl. c. 26. Fost. 281.
[(x) ] Stiernh. l. 3, c. 4.
[(y) ]L. 3, tr. 2, c. 15.
[(z) ] 1 Hal. P. C. 447.
[(a) ] Bract. ubi supra.
[(b) ] P. C. l. 1, c. 10.
[(c) ] 3 Iust. 47.
[13 ] 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.
[(d) ] 1 Hal. P. C. 425.
[(e) ] 3 Inst. 319. 2 Hal. P. C. 185.
[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 murderer, 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. C. 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 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 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.
[(f) ] 3 Iust. 48.
[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.
[(g) ] Fost. 132. In the case of Macdaniel and Berry, reported by Sir Michael Foster, though the then attorney-general 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.
[(h) ] Mirror, c. 1, 9. Britt. c. 52. Bract. l. 3, c. 4.
[(i) ] Stiernh. de jure Goth. l. 3, c. 3.
[(k) ]Ff. 48, 8, 1.
[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.
[(l) ] 1 Hawk. P. C. 78.
[(m) ] 1 Hal. P. C. 452.
[(n) ] Palm. 545.
[17 ] 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.
[(o) ] Ibid. 431.
[(p) ] Mirr. c. 4, 16. See book iii. page 122.
[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.
[(q) ] Britt. c. 5. 4 Inst. 251.
[(r) ] 1 Hal. P. C. 430.
[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 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.
[(s) ] 1 Hawk. P. C. 79.
[(t) ] 3 Inst. 50. 1 Hal. P. C. 433.
[(u) ] 3 Inst. 50. 1 Hawk. P. C. 80. But see 1 Hal. P. C. 433.
[(v) ] See Barrington on the Statutes, 425.
[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 otherwise 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, I Russell, 475, upon 1 Chetw. Burn, 334. The rules laid down with respect to indictments for these of fences under the old statute seem, in other respects, equally applicable to the new act.—Chitty.
[(w) ] Foster, 256.
[(x) ] 2 Roll. Rep. 461.
[(y) ] 1 Hal. P. C. 451.
[(z) ] 1 Hawk. P. C. 82.
[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 he 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, 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 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.
[(a) ] 1 Hal. P. C. 454, 473, 474.
[23 ] Homicide may be and is often extenuated by the circumstance of a mutual contest arising from the spur of the occasion, where no undue advantage is either sought or taken by either of the parties. See 5 Burr, 2793, and cases cited 1 East, P. C. 241 to 246. And in this case it is of no consequence from whom the first provocation arises. 1 Hale, 456. But if one with his sword drawn makes a pass at another whose sword is undrawn, and a combat ensues, if the former be killed it will only be manslaughter in the latter, but if the latter fall it will be murder in the former; for by making the pass before his adversary’s sword was drawn he evinced an intention not to fight with but to destroy him. Kel. 61. Hawk. c. 31, s. 33, 34, a. And where a man, upon occasion of some angry words, threw a bottle at the head of his opponent and immediately drew, and when his adversary returned the bottle stabbed him, this was holden to be murder in him, because he drew previous to the first aggression. Kel. 119. 2 Ld. Raym. 1489. So, if two bailiffs arrest a man, and he abuse and threaten and strike them, and bring pistols, declaring that he will not be forced from his house, and on high words arising between them and on the bailiffs being struck and provoked they fall on him and kill him, they will be guilty of manslaughter only. 6 Harg. St. Tr. 195. Fost. 292, 293, 294. And where, on an affray in a street, a soldier ran to the combatants, and in his way a woman struck him in the face with an iron patten and drew a great deal of blood, on which he struck her on the breast with the pommel of his sword, and on her running away immediately followed and stabbed her in the back, he was holden to be guilty simply of felonious homicide, (Fost. 292; see 5 Burr. 2794;) and where, after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was held manslaughter only. Russ. & Ry. C. C. 166. On a quarrel between a party of keelmen and soldiers, one of the latter drew his sword to protect himself and his comrades from the assaults of the mob. and killed a person dressed like one of the former, whom he mistook for one of the keelmen; and this was held to be no more than manslaughter. Brown’s case, 1 Leach, 148. If A. stands with an offensive weapon in the doorway of a room wrongfully to prevent T. S. from leaving it and others from entering, and C., who has a right to the room, struggles with him to get his weapon from him, upon which D., a comrade of A.’s, stabs C., it will be murder in D. if C. dies. Russ. & Ry. C. C. 228. See a late case where the judges, entertaining doubts as to whether the prisoner who killed another in an affray was guilty of murder, recommended him to a pardon. Russ. & Ry. C. C. 43. Where, after mutual provocation, the deceased and his opponent struggled, and in the course of the contest the former received his mortal wounds from a knife which the latter had previously in his hand in use, though the jury found the prisoner guilty of murder, the judges held the conviction wrong, and recommended him for a pardon. 1 Leach, 151. But in no case will previous provocation avail, if it was sought for by the act of the slayer, to afford him a pretence for gratifying his own malice. Nor will it alter the case that blows had previously been given, if they evidently left traces of a deadly revenge which seeks an opportunity of indulging itself by provoking a second contest to cover and excuse a deliberate attempt on the life of its object. 1 East, P. C. 239, 240.—Chitty.
[(b) ] Lord Raym. 143.
[(c) ] 1 Hawk. P. C. 74.
[(d) ] Ibid. 84.
[24 ] And see cases in 3 Chit. C. L. 729, 2d ed. Where, in an act which is not malum in se but malum prohibitum, (it being prohibited, except to persons of a certain description,) as shooting at game, an unqualified person will not be more guilty, if, in shooting, he accidentally kills a human being, than one who is qualified. 1 Hale, 475. Fost. 259.—Chitty.
[(e) ] 1 Hal. P. C. 455.
[(f) ] 1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.
[(g) ] Fost. 291.
[(h) ] 1 Hal. P. C. 457. Fost. 308, &c.
[25 ] It is murder to kill a constable, though he has no warrant and does not witness the felony committed, but takes the party upon a charge only, and that even though the charge be in itself defective to constitute a felony. Rex vs. Ford, R. & R. C. C. 329.—Chitty.
[(i) ] 1 Hal. P. C. 465.
[(j) ] Ibid. 466.
[(k) ] Ibid. 429.
[(l) ] Fost. 255.
[26 ] Francis Smith was indicted for murder at the Old Bailey, January 13, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun with intent to apprehend the person who personated the ghost: he met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron Macdonald, Mr. J. Rooke, and Mr. J. Lawrence were unanimously of opinion that the facts amounted to the crime of murder. For the person who represented the ghost was only guilty of a misdemeanour, (a nuisance,) and no one would have had a right to have killed him, even if he could not otherwise have been taken. The jury brought in a verdict of manslaughter, but the court said they could not receive that verdict: if the jury believed the witnesses, the prisoner was guilty of murder; if they did not believe them, they must acquit. Upon this they found a verdict of guilty. Sentence of death was pronounced; but the prisoner was reprieved.—Christian.
In many of the United States a distinction has been made in cases of murder, and the crime divided into two degrees.
Murder in the first degree is in general wilful and deliberate killing, or where the homicide is committed in the attempt to commit certain crimes, such as rape, robbery, burglary, or arson.
Murder in the second degree is all other homicide which would be murder at the common law.
At common law every homicide is prima facie murder. The circumstances which may justify, excuse, or reduce the offence to manslaughter must be shown by the prisoner. Where the statutory offence of murder in the first degree exists, it is incumbent upon the State or commonwealth to show by affirmative evidence that the crime belongs to the higher grade. In other words, every homicide is still prima facie murder, but not murder in the first degree. To constitute wilful and deliberate killing, there must be an intent not merely to do bodily harm, but to take life; and that intent most commonly appears by the deadly character of the means or weapon. Where such intent plainly appears, it is not necessary that time should intervene to give the offence the character of deliberation. Wharton’s Amer. Crim. Law, 490.—Sharswood.
[(m) ] 1 Hal. P. C. 450.
[(n) ] 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. 4 & 5 Ph. and M. c. 4.
[(o) ] “The body of a malefactor shall not remain all night upon the tree, but thou shalt in any wise bury him that day, that the land be not defiled.” Deut. xxi. 23.
[(p) ] “Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit: ut. et conspectu deterreantur alii, et solat[Editor: illegible character] sit cognatis interemptorum eodem loco pœna qui, in qui latrones homicidia fecissent.” Ff. 48, 19, 28, 15.
[27 ] William Wyatt was convicted before Chambre, J., at Cornwall Lent Assizes, 1812, upon an indictment for murder. The day of the week on which the trial took place was Thursday, but by mistake it was supposed to be Friday; and, in passing sentence, the execution was directed to be on the following Monday instead of Saturday. Immediately after sentence the court was adjourned till the next morning, without the intervention of any other business, and, the error being discovered soon after the adjournment, the prisoner was directed to be brought up at the sitting of the court in the morning, which was accordingly done: and the sentence was given before any other business was entered upon, to be executed on the Saturday. An order was then made, pursuant to the authority given by the 4th and 7th sections of stat. 25 Geo. II. c. 37, to stay the execution and relax the restraints imposed by the act, in order to take the opinion of the judges upon the following questions:—1st. Whether the statute, so far as it requires the time of the execution to be expressed in pronouncing the sentence, is not to be considered as directory only, without invalidating the judgment when omitted, or preventing the entry of the proper judgment and record, specifying the time of execution. 2d. Whether, supposing the specification of time to be a necessary act in pronouncing sentence, the error was not legally corrected by what was done in open court the next morning, the court not having proceeded to any other business whatever in the intermediate time. The judges, on conference, held that the stat. 25 Geo. II. c. 37 is directory only so far as it requires the time of the execution to be expressed in pronouncing the sentence, and therefore the error in this case was rightly and legally corrected by the proceedings on the following morning, no other business having intervened between the conviction and pronouncing sentence. The prisoner was accordingly executed. 2 Burn. J. 24th ed. 1044.—Chitty.
[(q) ] Fost. 107.
[28 ] The judge, if he thinks it advisable, may afterwards direct the hanging in chains, by a special order to the sheriff; but it does not form any part of the judgment. Fost. 107.—Christian.
[29 ] The stat. 25 Geo. II. c. 37 was repealed, but re-enacted, in almost all its provisions, by stat. 9 Geo. IV. c. 31. By stat. 2 & 3 W. IV. c. 75, s. 16, however, the enactment of this last statute as to dissection is repealed, and the court must direct that the prisoner shall be either hung in chains or buried within the precincts of the prison. But, by stat. 4 & 5 W. IV. c. 26, s. 1, so much of the stat. 2 & 3 W. IV. c. 75. s. 16 as authorizes the hanging the body of a murderer in chains is repealed; and, by stat. 6 & 7 W. IV. c. 30, the enactment as to the time of execution is also repealed, and sentence may be pronounced as in other capital offences. And under this last statute sentence of death may be recorded.—Stewart.
[(r) ]Ff. 41, 9, 9.
[(s) ] Cic. pro. S. Roscio, 25.
[(t) ] 1 Hal. P. C. 380.
[(u) ] Foster, 107, 324, 336.
[(v) ] See page 75.
[(w) ] “Omnium gravissima censetur vis factu ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores, (et vice versa,) servis in dominos, aut etiam ab homine in semet ipsum.” Stiernh de jure Goth. l. 3, c. 3.
[30 ] The distinction between petit treason and murder is now entirely abolished. 9 Geo. IV. c. 31, s. 2.—Stewart.
[(x) ] 1 Hawk. P. C. 89. 1 Hal. P. C. 380.
[(y) ] 1 Hal. P. C. 381.
[(z) ] Ibid.
[(a) ] Fost. 337.
[(b) ] Foster. 106. 1 Hal. P. C. 378. 2 Hal. P. C. 184.
[31 ] It has been determined that a person indicted for petit treason may upon the evidence of one witness be convicted of murder, though acquitted of the petit treason. Radbourne’s case, Leach, 363.—Christian.
[(c) ] 1 Hal. P. C. 382. 3 Inst. 311.
[(d) ] Cæsar de Bell. Gall. l. 6, c. 18.
[(e) ] See page 93.
[32 ] By the 30 Geo. III. c. 48, women shall no longer be sentenced to be burned; but in all cases of high and petit treason they shall be condemned to be drawn and hanged; and in petit treason they shall be subject besides to the same judgment with regard to dissection and the time of execution as is directed by the 25 Geo. II. c. 37 in cases of murder. Soon after the passing of the 25 Geo. II. c. 37, the majority of the judges agreed that in the case of men convicted of petit treason the judgment introduced by that statute should be added to the common-law judgment for petit treason. Fost. 107.—Christian.