Lastly, the killing must be committed with malce 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 praesugitata, 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 [199] it may be either express or implied in law. Express malice is

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

(0) Foster, 256.

(x) 2 Roll. Rep. 461.

except that by section 14 of the new Act, the concealment of the birth of a child is made an indictable misdemeanor, whereas, before, the prisoner could only be found guilty of the concealment upon an indictment charging her with murder. See Rex v Farkinson, 1 Russell, 475, n. 1 Chetw. Burn, 334. The rules laid down with respect to indictments for these offences under the old statute, seem, in other respects, equally applicable to the new Act.

(32) 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 alleg. ⚫ing 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 re

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

putation; 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 Haw. P. C. c. 31, § 21; 1 Bulstr. 86, 7; 2 Bulstr. 147; Crom. 22, 6; 1 Rol. Rep. 360; 3 Bulstr, 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 Haw. P. C. c. 31, § 22; Inst. 51; 1 Hale, P. C. 48; Kel. 56; 1 Lev 180

(33) See the law of duelling fully stated 3 East Rep. 581. 6 East, 464. 2 Bar. & Ald 462.

liberate act of slaughter (a) (34). Neither shall he be guilty of a less crime, who kills another "in consequence of such a wil- [*200] ful act, as shews him to be an enemy to all mankind in general;

as going deliberately, and with an intent to do mischief (6), 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, ǝ commit a riot, or to rob a park and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia praecogitata, or evil intended beforehand (d) (35).

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

a man kills another suddenly, without any, or without a considerable pro vocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another (f). But if the person so provoked had unfortunately killed the other, by beating him in such a manner as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not murder (g). In like manner if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be

guilty of murder (h) (36), (37). And if one intends to do another [201] felony, and undesignedly kills a man, this is also murder (i). Thus if one shoots at A and misses him, but kills B, this is mur der; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder (j). So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it (k). It were endless to go through all the cases of homicide, which have been adjudged either expressly, or impliedly malicious: these therefore may suffice as a specimen; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence (1) (38).

(36) As to what will amount to murder in killing an officer, see 1 Chit. Crim. Law, 2 ed. c. 2. 2 id. 729.

(37) 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 v. Ford, R. and R. C. C. 329.

(38) 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 personat

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

ed 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 misdemeanor (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 man slaughter, but the court said they could no receive that verdict; if the jury believed the witnesses, the prisoner was guilty of murder if they did not believe them, they must acquit

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 abet tors, 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 where the fact was com- [*202] mitted 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) (39), 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 (40), but in nowise 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 (41).

(m) 1 Hal. P. C. 450

(n) 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. 4 & 5 Ph. & M. c. 4.

(0)"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.

Upon this they found a verdict of guilty. Sentence of death was pronounced, but the prisoner was reprieved.

(p) "Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit: ut, et conspectu deterreantur alii, et solatio sit cognatis interemptorum eodem loco poena reddita, in quo latrones homicidia fecissent." Ff. 48. 19. 28, ◊ 15. (9) Fost. 107.

ed as directory only, without invalidating the judgment when omitted, or preventing the entry of the proper judgment and record, spe. cifying the time of execution. 2d. Whether supposing the specification of time to be a recessary 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 G. 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. 24 ed. 1044.

(39) William Wyatt was convicted before Chambre, J. at Cornwall Len 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 direct ed 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 G. 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 pro- 31. nouncing the sentence, is not to be considerVOL. II. 69

(40) 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.

(41 The act now in force is 9 Geo. IV. o

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 bas

tards. And, upon some such reason as this, we must account for [*203] *the 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 connexions, when coupled with murder, denomi nates 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 ancient Gothic constitution, 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 (42), 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 applic

able to the crime of petit treason, which is no other than murder [*204] in its 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 (¿) : and in such case it should seem that two witnesses are not necessary, as in case of petit treason they are (43.) Which crime is also distinguished from murder in its punishment.