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every person convicted thereof may be sentenced, at the discretion of the court, to be kept in penal servitude for life or for a term of not less than five years: or to be imprisoned, with or without hard labour, for any term not exceeding two years: or to pay such fine as the court shall award, in addition to or without such other discretionary punishment as aforesaid (9).

[Secondly. We are next to consider the crime of deliberate and wilful murder ; a word which (as denoting a crime) was antiently applied only to the secret killing of another (h); which the word moërda signifies in the Teutonic language (i). And it was defined homicidium quod nullo vidente, nullo sciente, clam perpetratur (k); 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 (1). 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

to the punishment inflicted a requisition to give security for keeping

the peace.

quarrels and stabbings with short daggers, between the Scotch and

English at the accession of James “ I.” But this Act was repealed (as well as the 43 Geo. 3, c. 58, and 1 Geo. 4, c. 90, s. 2, relating to the same subject) by 9 Geo. 4, c. 31.

(9) 24 & 25 Vict. c. 100, s. 5; 27 & 28 Vict. c. 47. Besides the punishment of manslaughter considered as a crime, it is attended, under Lord Campbell's Act (9 & 10 Vict. c. 93), with a liability to make pecuniary satisfaction to the representatives of the deceased. It may be here also observed (and the remark applies to all the felonies mentioned in this chapter with the exception of murder), that by 24 & 25 Vict. c. 100, s. 71, the court may, in its discretion, add

(h) Dial. de Scacc. I. 1, c. 10.

(i) Stiern. de Jure Sueon. I. 3, c. 3. The word murdre in the old statutes also signified any kind of concealment or stilling. So in the statute of Exeter, 14 Edw. 1, " Je riens ne celerai, ne sufferai estre celé, ne murdré,” which is thus translated into Fleta, 1. 1, c. 18, s. 4, “ Nullam veritatem celabo, nec celari permittam, nec murdrari.And the words pur murdre le droit,” in the articles of that statute, are rendered in Fleta, ib. s. 8, pro jure alicujus murdrando." (k) Glanv. 1. 14, c. 3.

(1) Bract. 1. 3, tr. 2, c. 15, s. 7; Stat. Marl. c. 26; Fost. 281.

[at least connived at the murder (m); and, (according to Bracton,) was introduced into this kingdom by King Canute, to prevent his countrymen, the Danes, from being privily murdered by the English (n); and was afterwards continued by William the Conqueror, for the like security to his own Normans (0). And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman, (the presentment whereof was denominated englescherie,) the country seems to have been excused from this burthen (p). But this difference being totally abolished by statute 14 Edw. III. st. 1, c. 4, we must now, (as is observed by Staundforde,) 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 (9).

Accordingly murder is thus defined by Sir Edward Coke (r): “When a person of sound memory and discre“tion unlawfully killeth any reasonable creature in being, “ and under the king's peace, with malice aforethought, “ either express or implied” (s). 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; and hence, if there be a defect of the understanding in the person charged, by reason of his infancy, lunacy or idiocy, according to the distinctions already considered, he cannot be convicted of this or any other crime (t).

[Next, it happens when a person, of such sound discretion, unlawfully killeth. The unlawfulness arises from the

(m) Stiern. 1. 3, c. 4.

“ fendant did feloniously, wilfully, (7) Bracton, L. 3, tr. 2, c. 15. “and of his malice aforethought, (0) i Hale, P. C. 447.

" kill and murder the deceased," (P) Bract. ubi sup.

and it is unnecessary to set forth (9) P. C. 1. 1, c. 10.

the manner or means. (24 & 25 (*) 3 Iust. 47.

Vict. c. 100, s. 6.) (s) In an indictment for murder, (t) Vide sup. pp. 23–30. the charge should be that “the de

[killing without lawful warrant or excuse : and there must also be an actual killing, to constitute murder; and not merely an assault with intent to kill (u). The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death by which human nature may be overcome (x); but 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 circumstances; 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 (y). Of all species of murder the most detestable is that by poison ; because it can of all others be the least prevented, either by manhood or forethought(z): and therefore, by the statute 22 Hen. VIII. c. 9, it was made treason; and a more grievous and lingering kind of death was inflicted for it than the common law allowed, namely, boiling to death (a); but this Act did not live long, being

P. 78.

(u) i Hale, P. C. 425. As to an foro conscientiæ as killing with a attempt to murder, &c., vide post, sword; though there may be reason

to forbear to punish it as such, to (2) It is doubtful whether by our avoid the danger of deterring witlaw, the bearing false witness against nesses from giving evidence upon another, with intent to take away capital prosecutions. his life, is murder, though he be con- (y) 3 Inst. 135; 2 Hale, P. C. 185. sequently condemned and executed. (z) 3 Inst. 48. (R. v. Macdaniel, 1 Leach, 52; 1 (a) This extraordinary punishEast, P. C. 333; 3 Inst. 48; Fost. ment seems to have been adopted by 131.) But, as Blackstone remarks, the legislature, from the peculiar (vol. iv. p. 196,) the Gothic laws circumstances of the crime which punished in this case both the judge, gave rise to it; for the preamble of the witnesses and the prosecutor the statute informs us that John (Stiern. de Jure Goth. 1. 3, c. 3), Roose, a cook, had been lately conand among the Romans, the lex Core victed of throwing poison into a nelia de sicariis punished the false large pot of broth prepared for the witness with death, as being a spe- Bishop of Rochester's family, and cies of assassination (Ff. 48, 8, 1); for the poor of the parish; and the and there is no doubt, Blackstone said John Roose was, by a retroadds, that it is equally murder in spective clause of the same statute,

[repealed by 1 Edw. VI. c. 12. It is to be observed, that if a man does 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 may be primarily intended. As was the case of the unnatural son who exposed his rich father to the air against his will, by reason whereof he died (6); of the harlot who laid her child under leaves in an orchard, where a kite struck and killed it (c); and of the parish officers who shifted a child from parish to parish, till it died for want of care and sustenance (d). 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 it was in the Jewish law (e), as much murder as if he had incited a bear, or a dog to worry them(s). If a physician or surgeon gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure ; but by some of the older authorities, it hath been holden, that if he be not a regular physician or surgeon who administers the medicine or performs the operation, it is manslaughter at the least (9).] Yet Sir Matthew Hale very justly questions the law of this determination (h); though, on the other hand, it is clear that where death is occasioned by gross want of skill or care in the medical man (whether he be regularly licensed or not), it will amount to man

ordered to be boiled to death. Lord
Coke mentions several instances of
persons suffering this horrid punish-
ment. See 3 Inst. 28.

(6) Hawk. P. C. b. 1, c. 31, s. 5.
(c) 1 Hale, P. C. 432.
(d) Palm. 545.
(C) Exod. xxi. 28, 29.
(f) Palmer, 431.

(9) Britt. c. 5; 4 Inst. 251.

(h) 1 Hale, P. C. 430. See also, in accordance with the opinion of Hale and Blackstone, R. v. Van Butchell, 3 C. & P. 629; R. v. Williamson, ib. 635; R. 4. St. John Long, 4 C. & P. 398, 423; R. v. Spiller, 5 C. & P. 333.

slaughter (i). [It is settled, however, in all cases of homicide, that in order 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 (k).]

Further: the person killed must be a “reasonable creature, in being, and under the king's peace” at the time of the killing (1). To kill an alien or an outlaw, (who are both under the king's peace and protection,) is therefore as much murder as to kill the most regular-born Englishman. On the other hand, it is not murder to slay an alien enemy in the heat of battle (m); and, again, to kill a child in its mother's womb is not murder, but falls under a different description of crime (n).

[Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which 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(0); un disposition à faire un male chose (p): and it may be either express or implied in law. Express malice is when one, with a sedate, deliberate mind and formed design doth kill another; which formed design is evidenced by external circumstances, discovering that inward intention; - as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm (9). This takes place in the case of deliberate duelling, where both

(i) See R. v. St. John Long, 4 C. & P. 398, 423; R. v. Spiller, 6 C. & P. 333.

(k) Hawk. P. C. b. 1, c. 31, s. 9.

(1) 4 Bl. Com. 198. Hence if a foreigner should kill a foreigner on the high seas or on board a foreign ship, no offence is committed which

is triable in this country. See R. 1. Lopez, 1 Dears. & B. 525.

(m) 3 Inst. 50; 1 Hale, P. C. 433.

(n) Hale, ubi sup.; vide post, p. 83.

(0) Foster, 256.
(P) 2 Roll. Rep. 461.
() i Hale, P. C. 451.

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