CHAPTER THE FOURTEENTH.

OF HOMICIDE.

IN the ten preceding chapters we have confidered, firft, fuch crimes and mifdemefnors as are more immediately injurious to God and his holy religion; fecondly, fuch as violate or tranfgrefs the law of nations; thirdly, fuch as more efpecially affect the king, the father and reprefentative of his people; fourthly, fuch as more directly infringe the rights of the public or commonwealth, taken in it's collective capacity; and are now, laftly, to take into confideration thofe which in a more peculiar manner affect and injure individuals or private fubjects.

WERE thefe injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall abfolutely under the notion of private wrongs; for which a fatisfaction would be due only to the party injured: the manner of obtaining which was the fubject of our enquiries in the preceding volume. But the wrongs, which we are now to treat of, are of a much more extenfive confequence; 1. Becaufe it is impoffible they can be committed without a violation of the laws of nature; of the moral as well as political rules of right: 2. Becaufe they include in them almoft always a breach of the public peace: 3. Becaufe by their example and evil tendency they threaten and endanger the fubverfion of all civil fo-

ciety.
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ciety. Upon thefe accounts it is, that, befides the private fatisfaction due and given in may cafes to the individual, by action for the private wrong, the government alfo calls upon the offender to fubmit to public punifhment for the public crime. And the profecution of thefe offences is always at the fuit and in the name of the king, in whom by the texture of our conftitution the jus gladii, or executory power of the law, entirely refides. Thus too, in the old Gothic conftitution, there was a threefold punifhment inflicted on all delinquents: firft, for the private wrong to the party injured; fecondly, for the offence againft the king by difobedience to the laws; and thirdly, for the crime againft the public by their evil example ^a. Of which we may trace the groundwork, in what Tacitus tells us of his Germans ^b; that, whenever offenders were fined, “pars mulctae regi, vel civitati, “pars pfi qui vindicatur vel propinquis ejus, exfolvitur.”

THESE crimes and mifdemefnors againft private fubjects are principally of three kinds; againft their perfons, their habitations, and their property.

OF crimes injurious to the perfons of private fubjects, the moft principal and important is the offence of taking away that life, which is the immediate gift of the great creator; and which therefore no man can be entitled to deprive himfelf or another of, but in fome manner either expreffly commanded in, or evidently deducible from, thofe laws which the creator has given us; the divine laws, I mean, of either nature or revelation. The fubject therefore of the prefent chapter will be, the offence of homicide or deftroying the life of man, in it's feveral ftages of guilt, arifing from the particular circumftances of mitigation or aggravation which attend it.

NOW homicide, or the killing of any human creature, is of three kinds; juftifiable, excufable, and felonious. The firft has no fhare of guilt at all; the fecond very little; but the third is

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^a Stiernhook. l. 1. c. 5.
^b de mor. Germ. c. 12.
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the higheft crime againft the law of nature, that man is capable of committing.

I. JUSTIFIABLE homicide is of divers kinds.

1. SUCH as is owing to fome unavoidable neceffity, without any will, intention, or defire, and without any inadvertence or negligence, in the party killing, and therefore without any fhadow of blame. As, for inftance, by virtue of fuch an office as obliges one, in the execution of public juftice, to put a malefactor to death, who hath forfeited his life by the laws and verdict of his country. This is an act of neceffity, and even of civil duty; and therefore not only juftifiable, but commendable, where the law requires it. But the law muft require it, otherwife it is not juftifiable : therefore wantonly to kill the greateft of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled, and extrajudicially, is murder ^c. For as Bracton ^d very juftly obferves, “iftud homicidium fi fit ex livore, “vel delectatione eftundendi humannum fanguinem, licet jufte occidatur “ifte, tamen occifor peccat mortaliter, propter intentionem corruptam.” And farther, if judgment of death be given by a judge not authorized by lawful commiffion, and execution is done accordingly, the judge is guilty of murder ^e. and upon this account fir Matthew Hale himfelf, though he accepted the place of a judge of the common pleas under Cromwell's government (fince it is neceffary to decide the difputes of civil property in the worft of times) yet declined to fit on the crown fide at the affifes, and try prifoners; having very ftrong objections to the legality of the ufurper's commiffion ^f: a diftinction perhaps rather too refined; fince the unlawful of crimes is at leaft as neceffary to fociety, as maintaining the boundaries of property. Alfo fuch judgment, when legal, muft be executed by the proper officer, or his appointed deputy; for no one elfe is required by law to do it, which requifition it is, that juftifies

.{FS}
^c 1 Hal. P. C. 497.
^d fel. 120.
^e 1 Hawk. P. C. 70. 1 Hal. P. C. 497.
^f Burnet in his life.
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the homicide. If another perfon doth it of his own head, it is held to be murder ^g: even though it be the judge himfelf ^h. It muft farther be executed, fervato juris ordine; it muft purfue the fentence of the court. If an officer beheads one who is adjudged to be hanged, or vice verfa, it is murder ^I: for he is merely minifterial, and therefore only juftified when he acts under the authority and compulfion of the law; but, if a fheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commiffion of homicide: and, befides, this licence might occafion a very grofs abufe of his power. The king indeed may remit part of a fentence; as, in the cafe of treafon, all but the beheading: but this is no change, no introduction of a new punifhment; and in the cafe of felony, where the judgment is to be hanged, the king (it hath been faid) cannot legally order even a peer to be beheaded ^k. But this doctrine will be more fully confidered in a fubfequent chapter.

AGAIN: in fome cafes homicide is juftifiable, rather by the permiffion, than by the abfolute command of the law: either for the advancement of public juftice, which without fuch indemnification would never be carried on with proper vigour; or, in fuch inftances where it is committed for the prevention of fome atrocious crime, which cannot otherwife avoided.

2. HOMICIDES, committed for the advancement of public juftice, are; 1. Where an officer, in the execution of his office, either in a civil or criminal cafe, kills a perfon that affaults and refifts him ^l. 2. If an officer, or any private perfon, attempts to take a man charged with felony, and is refifted; and, in the endeavour to take him, kills him ^m. This is of a piece with the old Gothic conftitutions, which (Stiernhook informs us ⁿ) “furem, fi aliter capi non poffet, occidere permittunt.” 3. In cafe

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^g 1 Hal. P. C. 501. 1 Hawk. P. C. 70.
^h Dalt. Juft. c. 150.
^I Finch. L. 31. 3 Inft. 52. 1 Hal. P. C. 501.
^k 3 Inft. 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.
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of a riot, or rebellious affembly, the officers endeavouring to difperfe the mob are juftifiable in killing them, both at common law ^o, and by the riot act, 1 Geo. I. c. 5. 4. Where the prifoners in a gaol, or going to gaol, affault the gaoler or officer, and he in his defence kills any of them, it is juftifiable, for the fake of preventing an efcape ^p. 5. If trefpaffers in forefts, parks, chafes, or warrens, will not furrender themfelves to the keepers, they may be flain; by virtue of the ftatute 21 Edw. I. ft. 2. de malefaotoribus in parcis, and 3 & 4 W. & M. c. 10. But, in all thefe cafes, there muft be an apparent neceffity on the officer's fide; viz. that the party could not be arrefted or apprehended, the riot could not be fuppreffed, the prifoners could not be kept in hold, the deer-ftealers could not but efcape, unlefs fuch homicide were committed: otherwife, without fuch abfolute neceffity, it is not juftifiable. 6. If the champions in a trial by battel killed either of them the other, fuch homicide was juftifiable, and was imputed to the juft judgment of God, who was thereby perfumed to have decided in favour of the truth ^q.

3. IN the next place, fuch homicide, as is committed for the prevention of any forcible and atrocious crime, is juftifiable by the law of nature ^r; and alfo by the law of England, as it ftood fo early as the time of Bracton ^s, and as it is fince declared by ftatute 24 Hen. VIII. c. 5. If any perfon attempt to burn it ^t,) and fhall be killed in fuch attempt, the flayer fhall be acquitted and difcharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any houfe in the day time, unlefs it carries with it an attempt of robbery alfo. So the Jewifh law, which punifhed no theft with death, makes homicide only juftifiable, in cafe of nocturnal houfe-breaking: “if a thief be found breaking up, and he be fmitten

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^o 1 Hal. P. C. 495. 1 Hawk. P. C. 161.
^p 1 Hal. P. C. 496.
^q 1 Hawk. P. C. 71.
^r Puff. L. of N. l. 2. c. 5.
^s fol. 155.
^t 1 Hal. P. C. 488.
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“that
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“that he die, no blood fhall be fhed for him: but if the fun “be rifen upon him, there fhall blood be fhed for him; for he “fhould have made full reftitution ^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 flain by night with impunity; or even by day, if he armed himfelf with any dangerous weapon ^x: which amounts very nearly to the fame as is permitted by our own constitutions.

THE Roman law alfo juftifies homicide, when committed in defence of the chaftity either of onefelf or relations ^y: and fo alfo, according to Selden ^z, ftood the law in the Jewifh republic. The Englifh law likewife juftifies a woman, killing one who attempts to ravifh her ^a: and fo too the hufband or father may juftify killing a man, who attempts a rape upon his wife or daughter; but not if he takes them in adultery by confent, 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 ftill more deteftable nature, may be equally refifted by the death of the unnatural aggreffor. For the one uniform principle that runs through our own, and all other laws, feems to be this: that where a crime, in itfelf capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we muft not carry this doctrine to the fame vifionary length that Mr. Locke does; who holds ^c, “that all manner of force without right upon a man's perfon, puts him in a “ftate of war with the aggreffor; and, of confequence, that, “being in fuch a ftate of war, he may lawfully kill him that conclufion may be in a ftate of uncivilized nature, yet the law

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^u Exod. Xxii. 2.
^w Potter. Antiqu. b. 1. c. 24.

^x Cic. pro Milone. 3. Ff. 9. 2. 4.
^y “Divus Hadrianus rejcripfit, eum qui “ftuprum fibi vel fuis infcrentem occidie,dimittendum.” (Ff. 48. 88. 1.)
^z de legib. Hebrrer. l. 4. c. 3.
^a Bac. Elem. 34. 1 Hawk. P. C. 71.
^b 1 Hal. P. C. 485, 486.
^c Eff. on gov. p. 2. c. 3.
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of
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of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the fubjects, to adopt fo contentious a fyftem; nor will fuffer with impunity any crime to be prevented by death, unlefs the fame, if committed, would alfo be punifhed by death.

IN thefe inftances of juftifiable homicide, you will obferve that the flayer is in no kind of fault whatfoever, not even in the minuteft degree; and is therefore to be totally acquitted and difcharged, with commendation rather than blame. But that is not quite the cafe in excufable homicide, the very name whereof imports fome fault, fome error, or omiffion; fo trivial however, that the law excufes it from the guilt of felony, though in ftrictnefs it judges it deferving of fome little degree of punifhment.

II. EXCUSABLE homicide is of two forts; either per infortunium, by mifadventure; or fe defendendo, upon a principle of felf-prefervation. We will firft fee wherein thefe two fpecies of homicide are diftinct, and then wherein they agree.

1. HOMICIDE per infortunium, or mifadventure, 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 ftander by; or, where a perfon, qualified to keep a gun, is fhooting at a mark, and undefignedly kills a man ^d: for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a mafter his fervant or fcholar, or an officer punifhing a criminal, and happens to occafion his death, it is only mifadventure; for the act of correction was lawful: but if he exceeds the bounds of moderation, either in the manner, the inftrument, or the quantity of punifhment, and death enfues, it is manflaughter at leaft, and in fome cafes (according to the circumftances) murder ^e; for the act of immoderate correction is un-

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^d 1 Hawk. P. C. 73, 74.
^e 1 Hal. P. C. 473, 474.
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lawful. Thus by an edict of the emperor Conftantine ^f, when the rigor of the Roman law with regard to flaves began to relax and foften, a mafter was allowed to chaftife his flave with rods and imprifonment, and, if death accidentally enfued, he was guilty of no crime: but if he ftruck him with a club or a ftone, and thereby occafioned his death; or if in any other yet groffer manner “immoderate fuo jure utatur, tunc reus homicidii fit.”

BUT to proceed. A tilt or tournament, the martial diverfion of our anceftors, was however an unlawful act; and fo are boxing and fwordplaying, the fucceeding amufement of their pofterity: and therefore if a knight in the former cafe, or a gladiator in the latter, be killed, fuch killing is felony of manflaughter. But, if the king command or permit fuch diverfion, it is faid to be only mifadventure, for then the act is lawful ^g. In 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 ftate, was not held to be guilty of homicide ^h. Likewife to whip another's horfe, whereby he runs over a child and kills him, is held to be accidental in the rider, for he has done nothing unlawful; but manflaughter in the perfon who whipped him, for the act was a trefpafs, and at beft a piece of idlenefs, of inevitably dangerous confequence ⁱ. And in general, if death enfues in confequence of any idle, dangerous, and unlawful fport, as fhooting or cafting ftones in a town, or the barbarous diverfion of cock-throwing, in thefe and fimilar cafes, the flayer is guilty of manflaughter, and not mifadventure only, for thefe are unlawful acts ^k.

2. HOMICIDE in felf-defence, or fe defendendo, upon a fudden affray, is alfo excufable rather than juftifiable, by the Englifh law. This fpecies of felf-defence muft be diftinguifhed from that juft now mentioned, as calculated to hinder the perpetra-

.{FS}
^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 Hawk. P. C. 73.
^k Ibid. 74. 1 Hal. P. C. 472. Foft. 261.
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tion
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tion of a capital crime; which is not only a matter of excufe, but of juftification. But the felf-defence, which we are now fpeaking of, is that whereby a man may protect himfelf from an affault, or the like, in the courfe of a fudden brawl or quarrel, by killing him who affaults him. And this is what the law expreffes by the word chance-medley, or (as fome rather chufe to write it) chaud-medley; the former of which in it's etymology fignifies a cafual affray, the latter an affray in the heat of blood or paffion: both of them of pretty much the fame import; but the former is in common fpeech too often erronceoufly applied to any manner of homicide by mifadventure; whereas it appears by the ftatute 24 Hen. VIII. c. 5. and our antient books ^l, that it is properly applied to fuch killing, as happens in felf-defence upon a fudden reencounter ^m. This right of natural defence does not imply a right of attacking: for, inftead of attacking one another for injuries paft or impending, men need only have recourfe to the proper tribunals of juftice. They cannot therefore legally exercife this right of preventive defence, but in fudden and violent cafes; when certain and immediate fuffering would be the confequence of waiting for the affiftance of the law. Wherefore, to excufe homicide by the plea of felf-defence, it muft appear that the flayer had no other poffible means of efcaping from his affailant.

IN fome cafes this fpecies of homicide (upon chance-medley in felf-defence) differs but little from manflaughter, which alfo happens frequently upon chance-medley in the proper legal fenfe of the word ⁿ. But the true criterion between them feems to be this: when both parties are actually combating at the time when the mortal ftroke is given, the flayer is then guilty of manflaughter; but if the flayer hath not begun to fight, or (having begun) endeavours to decline any farther ftruggle, and afterwards, being clofely preffed by his antagonift, kills him to avoid his own deftruction, this is homicide excufable by felf-defence ^o. For which reafon the law requires, that the perfon, who kills another

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^l Staundf. P. C. 16.
^m 3 Inft. 55. 57. Foft. 275. 276.
ⁿ 3 Inft. 55.
^o Foft. 277.
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in his own defence, fhould have retreated as far as he conveniently or fafely can, to avoid the violence of the affault, before he turns upon his affailant; and that, no fictitioufly, or in order to watch his opportunity, but from a real tendernefs of fhedding his brother's blood. And though it may he cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow fubjects the law countenances no fuch point of honour: becaufe the king and his courts are the vindices injuriarum, and will give too the party wronged all the fatisfaction he deferves ^p. In this the civil law alfo agrees with ours, or perhaps goes rather farther; “qui cum aliter tueri fe non poffunt, “damni culpam dederint, innoxii funt ^q. The party affaulted muft therefore flee as far as he conveniently can, either by reafon of fome wall, ditch, or other impediment; or as far as the fiercenefs of the affault will permit him ^r: for it may be fo fierce as not to allow him to yield a ftep, without manifeft danger of his life, or enormous bodily harm; and then in his defence he may kill his affailant inftantly. And this is the doctrine of univerfal juftice ^s, as well as of the municipal law.

AND, as the manner of the defence, fo is alfo the time to be confidered: for if the perfon affaulted does not fall upon the aggreffor till the affray is over, or when he is running away, this is revenge and not defence. Neither, under the colour of felf defence, will the law permit a man to fcreen himfelf from the guilt of deliberate murder: for if two perfons, A and B, agree to fight a duel, and A gives the firft onfet, and B retreats as far as he fafely can, and then kills A, this is murder; becaufe of the previous malice and concerted defign ^t. But if A upon a fudden quarrel affaults B firft, and upon B's returning the affault, A really and bona fide flees; and, being driven to the wall, turns again upon B and kills him; this may be fe defendendo according to fome of our writers ^u:

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^p 1 Hal. P. C. 481. 483.
^q Ff. 9. 2. 45.
^r 1 Hal. P. C. 483.
^s Puff. b. 2. c. 5. §. 13.
^t 1 Hal. P. C. 479.
^u 1 Hal. P. C. 482.
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though others ^w have thought this opinion too favourable; inafmuch as the neceffity, to which he is at laft reduced, originally arofe from his own fault. Under this excufe of felf-defence, the principal civil and natural relations are comprehended; therefore mafter and fervant, parent and child, hufband and wife, killing an affailant in the neceffary defence of each other refpectively, are excufed; the act of the relation affifting being conftrued the fame as the act of the party himfelf ^x.

THERE is one fpecies of homicide fe defendendo, where the party flain is equally innocent as he who occafions his death: and yet this homicide is alfo excufable from the great univerfal principle of felf-prefervation, which prompts every man to fave his own life preferably to that of another, where one of them muft inevitably perifh. As, among others, in that cafe mentioned by lord Bacon ^y, where two perfons, being fhipwrecked, and getting on the fame plank, but finding it not able to fave them both, one of them thrufts the other from it, whereby he is drowned. He who thus preferves his own life at the expence of another man's, is excufable though unavoidable neceffity, and the principle of felf-defence; fince their both remaining on the fame weak plank is a mutual, though innocent, attempt upon, and an endangering of, each other's life.

LET us next take a view of thofe circumftances wherein thefe two fpecies of homicide, by mifadventure and felf-defence, agree; and thofe are in their blame and punifhment. For the law fets fo high a value upon the life of a man, that it always intends fome mifbehaviour, it perfumes negligence, or at leaft a want of fufficient caution in him who was fo unfortunate as to commit it; who therefore is not altogether faultlefs ^z. And as to the neceffity which excufes a man who kills another fe defendendo,

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^w 1 Hawk. P. C. 75.
^x 1 Hal. P. C. 484.
^y Elem. c. 5. See alfo 1 Hawk. P. C. 73.
^z 1 Hawk. P. C. 72.
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lord
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lord Bacon ^a entitles it neceffitas culpabilis, and thereby diftinguifhes it from the former neceffity of killing a thief or a malefactor. For the law intends that the quarrel or affault arofe from fome unknown wrong, or fome provocation, either in word or deed: and fince in quarrels both parties may be, and ufually are, in fome fault; and it fcarce can be tried who was originally in the wrong; the law will not hold the furvivor intirely guiltlefs. But it is clear, in the other cafe, that where I kill a thief that breaks into my houfe, the original default can never be upon my fide. The law befides may have a farther 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 flays his neighbour, without an exprefs warrant from the law fo to do, fhall in no cafe be abfolutely free from guilt.

NOR is the law of England fingular in this refpect. Even the flaughter of enemies required a folemn purgation among the Jews; which implies that the death of a man, however it happens, will leave fome ftain behind it. And the mofaical 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 ftroke with “the ax to cut down a tree, and the head flippeth from the “helve, and lighteth upon his neighbour that he die, he fhall “flee unto one of thefe cities and live.” But it feems he was not held wholly blamelefs, any more than in the Englifh law; fince the avenger of blood might fly him before he reached his afylum, or if he afterwards ftirred out of it till the death of the high prieft. In the imperial law likewife ^c cafual homicide was excufed, by the indulgence of the emperor figned with his own fign manual, “adnotatione principis:” otherwife the death of a man, however committed, was in fome degree punifhable. Among the Greeks ^d homicide by misfortune was expiated by

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^a Elem. c. 5.
^b Numb. c. 35. and Dcut. c. 19.
^c Cod. 9. 16. 5.
^d Plato de Leg. lib. 9.
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volutary banifment for a year^e. In Saxony a fine is paid to the kindred of the flain; which alfo among the weftern Goths, was little inferior to that of voluntary homicide^f : and in France^g no perfon is ever abfolved in cafes of this nature, without a largefs to the poor, and the charge of certain maffes for the foul of the party killed.

THE penalty inflicted by our laws is faid by fir Edward Coke to have been antiently no lefs than death^h ; which however is with reafon denied by later and more accurate writersⁱ. It feems rather to have confifted in a forfeiture, fome fay of all the goods and chattels, others of only part of them, by way of fine or weregild^k : which was probably difpofed of, as in France, in pios ufus, according to the humane fuperftition of the times, for the benefit of his foul, who was thus fuddenly fent to his account, with all his imperfections on his head. But that reafon having long ceafed, and the penalty (efpecially if a total forfeiture) growing more fevere than was intended, in proportion as perfonal property has become more confiderable, the delinquent has now, and has had as early as our records will reach^l , a pardon and writ of reftitution of his goods as a matter of courfe and right, only paying for fuing out the fame^m . And indeed, to prevent this expenfe, in cafes where the death has notorioufly happened by mifadventure or in felf-defence, the judges will ufually permit (if not direct) a general verdict of acquittalⁿ .

III. FELONIOUS homicide is an act of a very different nature from the former, being the killing of a human creature, of any

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^e To this expiation by banifhment the fpirit 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 caufually killing his playfellow; “???.”
^f Stiernh. de jure Goth. l. 3. c. 4.
^g De. Mornay on the digeft.
^h 2 Inft. 148. 315.
ⁱ 1 Hal. P. C. 425. 1. Hawk. P. C. 75. Foft. 282, & c.
^k foft. 287.
^l Foft. 283.
^m 2 Hawk. P. C. 381.
ⁿ Foft. 288.
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age

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age or fex, without juftification or excufe. This may be done, either by killing one's felf, or another man.

SELF-MURDER, the pretended heroifm, but real cowardice, of the Stoic philofophers, who deftroyed themfelves to avoid thofe ills which they had not the fortitude to endure, though the attempting it feems to be countenanced by the civil law^o , yet was punifhed by the Athenian law with cutting off the hand, which committed the defperate deed^p . And alfo the law of England wifely and religioufly confiders, that no man hath a power to deftroy life, but by commiffion from God, the author of it: and, as the fuicide is guilty of a double offence; one fpiritual, in invading the prerogative of the Almighty, and rufhing into his immediate prefence uncalled for; the other temporal, againft the king, who hath an intereft in the prefervation of all his fubjects; the law has therefore ranked this among the higheft, crimes, making it a peculiar fpecies of felony, a felony committed on onefelf. a felo de fe therefore is he that deliberately puts an end to his own exiftence, or commits any unlawful malicious act, the confequence of which is his own death: as if, attempting to kill another, he runs upon his antagonift's fword; or, fhooting at another, the gun burfts and kills himfelf^q . The party muft be of years of difcretion, and in his fenfes, elfe it is no crime. But this excufe ought not to be ftrained to that length, to which our coroners' juries are apt to carry it, viz. that the very act of fuicide is an evidence of infanity; as if every man who acts contrary to reafon, had no reafon at all: for the fame argument would prove every other criminal non compos, as well as the felf-murdereer. The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of difcerning right from wrong; which is neceffary, as was obferved in a former chapter^r , to form a legal excufe. And

.{FS}
^o “Si quis impatientia doloris, aut taedio “vitae, aut morbo, aut furore, aut pudore, “mori maluit, non animadvertatur in eum.” Ff. 49. 16. 6.
^p Pott. Antiqu. b. 1. c. 26.
^q 1 Hawk. P. c. 68. 1 Hal. P. C. 413.
^r See pag. 24.
.{FE}

there-

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therefore, if a real lunatic kills himfelf in a lucid interval, he is a felo de fe as much as another man^s .

BUT now the queftion follows, what punifhment can human laws inflict on one who has withdrawn himfelf 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 ftake driven through his body; 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 fome motive to reftrain him from fo defperate and wicked an act. And it is obefervable, that this forfeiture has relation to the time of the act done in the felon's lifetime, which was the caufe of his death. As if hufband and wife be poffeffed jointly of a term of years in land, and the hufband drowns himfelf; the land fhall be forfeited to the king, and the wife fhall not have it by furvivorfhip. For by the act of cafting himfelf into the water he forfeits the term; which gives a title to the king, prior to the wife's title by furvivorfhip, which could not accrue till the inftant of her hufband's death^t . And, though it muft be owned that the letter of the law herein borders a little upon feverity, yet it is fome alleviation that the power of mitigation is left in the breaft of the fovereign, who upon this (as on all other occafions) is reminded by the oath of his office to execute judgment in mercy.

THE other fpecies of criminal homicide is that of killing another man. But in this there are alfo degrees of guilt, which divide the offence into manflaughter, and murder. The difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally confifts in this, that manflaughter arifes from the fudden heat of the paffions, murder from the wickendnefs of the heart.

.{FS}
^s Hal. P. C. 412.
^t Finch. L. 216.
.{FE}

I. MAN

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I. MANSLAUGHTER is therefore thus defined^u, the unlawful killing of another, without malice either exprefs or implied: which may be either voluntarily, upon a fudden heat; or involuntarily, but in the commiffion of fome unlawful act. Thefe were called in the Gothic conftitutions “homicidia vulgaria; quae “aut cafu, aut etiam fponte committuntur, fed in fubitaneo quodam “iracundiae calore et impetu^u .” And hence it follows, that in manflaughter there can be no acceffories before the fact; becaufe it muft be done without premeditation.

AS to the firft, or voluntary branch: if upon a fudden quarrel two perfons fight, and one of them kills the other, this is manflaughter: and fo it is, if they upon fuch an occafion go out and fight in a field; for this is one continued act of paffion^x : and the law pays that regard to human frailty, as not to put a hafty and a deliberate act upon the fame footing with regard to guilt. So alfo if a man be greatly provoked, as by pulling his nofe, or other great indignity, and immediately kills the aggreffor, though this is not excufable fe defendendo, fince there is no abfolute neceffity for doing it to preferve himfelf; yet neither is it murder, for there is no previous malice; but it is manflaughter^y . But in this, and in every other cafe of homicide upon provocation, if there be a fuffcient cooling-time for paffion to fubfide and reafon to interpofe, and the perfon fo 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 fpot; though this was allowed by the laws of Solon^a , as likewife by the Roman civil law, (if the adulterer was found in the hufband's own houfe^b ) and alfo among the antient Goths^c ; yet in England it is not abfolutely ranked in the clafs

.{FS}
^u 1 Hal. P. C. 466.
^w Stiernh. de jure Goth. l. 3. c. 4.
^x 1 Hawk. P. C. 82.
^y Kelyng. 135.
^z Foft. 296.
^a Piutarch. in vit. Solon.
^b Ff. 48. 5. 24.
^c Stiernh. de jure Goth. l. 3. c. 2.
.{FE}

of

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of juftifiable homicide, as in cafe of a forcible rape, but it is manflaughter^d . It is however the loweft degree of it: and therefore in fuch a cafe the court directed the burning in the hand to be gently inflicted, becaufe there could not be a greater provocation^c . Manflaughter therefore on a fudden provocation differs from excufable homicide fe defendendo in this: that in one cafe there is an apparent neceffity, for felf-prefervation, to kill the aggreffor; in the other no neceffity at all, being only a fudden act of revenge.

THE fecond branch, or involuntary manflaughter, differs alfo from homicide excufable by mifadventure, in this; that mifadventure always happens in confequence of a lawful act, but this fpecies of manflaughter in confequence of an unlawful one. As if two perfons play at fword and buckler, unlefs by the king's command, and one of them kills the other: this is manflaugher, becaufe the original act was unlawful; but it is not murder, for the one had no intent to do the other any perfonal mifchief^f . So where a perfon does an act, lawful in itfelf, but in an unlawful manner, and without due caution and circumfpection: as when a workman flings down a ftone orpiece of timber into the ftreet, and kills a man; this may be either mifadventure, manflauthter, or murder, according to the circumftances under which the original act was done: if it were in a country village, where few paffengers are, and he calls out to all people to have a care, it is mifadventure only: but if it were in London, or other populous town, where people are continually paffing, it is manflaughter, though he gives loud warning^g ; and murder, if he knows of their paffing and gives no warning at all, for then it is malice againft all mankind^h . And, in general, when an involuntary killing happens in confequence of an unlawful act, it will be either murder or manflaughter according to the nature of the act which occafioned it. If it be in profecution of a felonious

.{FS}
^d 1 Hal. P. C. 486.
^e Sir. T. Raym. 212.
^f 3 Inft. 56.
^g Kel. 40.
^h 3 Inft. 57.
.{FE}

intent,

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intent, it will be murder; but if no more was intended than a mere trefpafs, it will only anount to manflaughterⁱ .

NEXT, as to the punifhment of this degree of homicide: the crime of manflaughter amounts to felony, but within the benefit of clergy; and the offender fhall be burnt in the hand, and forfeit all his goods and chattels.

BUT there is one fpecies of manflaughter, which is punifhed as murder, the benefit of clergy being taken away from it by ftatute; namely, the offence of mortally ftabbing another, though done upon fudden provocation. For by ftatute 1 Jac. I. c. 8. when one thrufts or ftabs another, not then having a weapon drawn, or who hath not then firft ftricken the party ftabbing, fo that he dies thereof within fix months after, the offender fhall not have the benefit of clergy, though he did it not of malice aforethought. This ftatute was made on account of the frequent quarrels and ftabbings with fhort daggers, between the Scotch and the Englifh, at the acceffion of James the firft^k ; and, being therefore of a temporary nature, ought to have expired with the mifchief, which it meant to remedy. For, in point of folid and fubftantial juftice, it cannot be faid that the mode of killing, whether by ftabbing, ftrangling or fhooting, can either extenuate or enhance the guilt: unlefs where, as in the cafe of poifoning, it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law hath conftrued the ftatute fo favourably in behalf of the fubject, and fo ftrictly when againft him, that the offence of ftabbing ftands almoft upon the fame footing, as it did at the common law^l . thus, (not to repeart the cafes before-mentioned, of ftabbing an adulterefs, & c. which are barely manflaughter, as at common law) in the conftruction of this ftatute it hath been doubted, whether, if the deceafed had ftruck at all before the mortal blow given, this takes it out of the ftatute, though in the preceding quarrel the

.{FS}
ⁱ Fofter. 258.
^k 1 Lord Raym. 140.
^l Foft. 299, 300.
.{FE}

VOL. IV.

A a

ftabber

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ftabber had given the firft blow; and it feems to be the better opinion, that this is not within the ftatute^{m .} Alfo it hath been refolved, that the killing a man by throwing a hammer or other weapon is not within the ftatute; and whether a fhot with a piftol be fo or not, is doubted^{n .} But if the party flain had a cudgel in his hand, or had thrown a pot or a bottle or difcharged a piftol at the party ftabbing, this is a fuffcient having a weapon drawn on his fide within the words of the ftatute^o .

2. WE are next ot confider the crime of deliberate and wilful murder; a crime at which human nature ftarts, and which is I believe punifhed almoft univerfally throughout the world with death. The words of the mofacial law (over and above the general precept to Noah^p , that “whofo fheddeth man's blood, by “man fhall his blood be fhed”) are very emphatical in prohibiting the pardon of murderers^q . “Moreover ye fhall take no fatisfaction for the life of a murderer, who is guilty of death, “but he fhall furely be put to death; for the land cannot be “ cleanfed of the blood that is fhed therein, but by the blood “of him that fhed it.” And therefore out law has provided one courfe of profecution, (that by appeal, of which hereafter) wherein the king himfelf is excluded the power of pardoning murder: fo that, were the king of England fo inclined, he could not imitate that Polifh 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 confider the definition of this great offence.

THE name of murder was antiently applied only to the fecret killing of another^s ; (which the word, moerda, fignifies in the Teutonic language^t ) and it was defined “homicidium quod nullo

.{FS}
^m Foft. 301. 1 Hawk. P. C. 77.
ⁿ 1 Hal. P. C. 470.
^o 1 Hawk. P. C. 77.
^p Gen. ix. 6.
^q Numb. xxxv. 31.
^r L. of N. b. 8. c. 3.
^s Dialog. de Scacch. l. 1. c. 10.
^t Stiernh. de jure Sueon. l. 3. c. 3.
.{FE}

“vidente,

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“vidente, nullo fciente, clam perpetratur^u :” for which the will wherein it was committed, or (if that were too poor) the whole hundred, was liable to a heavy amercement; which amercement itfelf was alfo denominated murdrum^w . This was an antient ufage among the Goths in Sweden and Denmark; who fuppofed the neighbourhood, unlefs they produced the murderer, to have perpetrated or at leaft 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 Englifh; and was afterwards continued by William the conqueror, for the like fecurity to his own Normans ^z. And therefore if, upon inquifition had, it appeared that the perfon found flain was an Englifhman, (the prefentment whereof was denominated englefcherie^a ) the country feems to have been excufed from this burthen. But, this difference being totally abolifhed by ftatute 14 Edw. III. c. 4. we muft now (as is obferved by Staundforde^b ) define murder in quite another manner, without regarding whether the party flain was killed openly or fecretly, or whether he was of Englifh or foreign extraction.

MURDER is therefore now thus defined, or rather defcribed, by fir Edward Coke^c ; “when a perfon, of found memory and “difcretion, unlawfully killeth any reafonable creature in being “and under the king's peace, with malice aforethought, either “exprefs or implied.” The beft way of examining the nature of this crime will be by confidering the feveral branches of this definition.

FIRST, it muft be committed by a perfon of found memory and difcretion: for a lunatic or infant, as was formerly obferved, are incapable of committing any crime; unlefs in fuch cafes where

.{FS}
^u Glanv. l. 14. c. 3.
^w Bract. l. 3. tr. 2. c. 15. §. 7. Stat. Marlbr. c. 26 Foft. 281.
^x Stiernh. l. 3. c. 4.
^y l. 3. tr. 2. c. 15.
^z 1 Hal. P. C. 447.
^a Bract. ubi fupr.
^b P. C. l. 1. c. 10.
^c 3 Inft. 47.
.{FE}

A a a

they

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they fhew a confcioufnefs of doing wrong, and of courfe a difcretion, or difcernment, between good and evil.

NEXT, it happens when a perfon of fuch found difcretion unlawfully killeth. The unlawfulnefs arifes from the killing without warrant or excufe: and there muft alfo be an actual killing to conftitute murder; for a bare affault, with intent to kill, is only a great mifdemefnor, though formerly it was held to be murder^d . The killing may be by poifoning, ftriking, ftarving, drowning, and a thoufand other forms of death, by which human nature may be overcome. Of thefe the moft deteftable of all is poifon; becaufe it can of all others be the leaft prevented either by manhood or forethought^e . And therefore by the ftatute 22 Hen. VIII. c. 9. it was made treafon, and a more grievous and lingering kind of death was inflicted on it than the common law allowed; namely, boiling to death; but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was alfo, by the antient common law, one fpecies of killing held to be murder, which is hardly fo at this day, nor has there been an inftance wherein it has been held to be murder for many ages paft^f : I mean by bearing falfe witnefs againft another, with an exprefs premeditated defign to take away his life, fo as the innocent perfon be condemned and executed^g . The Gothic laws punifhed in this cafe, both the judge, the witneffes, and the profecutor; “peculiari poena judicem puniunt; peculiari “teftes, quorum fides judicem feduxit; peculiari denique et maxima “auctorem, ut homicidam^h .” And, among the Romans, the lex Cornelia, de ficariis, punifhed the falfe witnefs with death, as being guilty of a fpecies of affaffination^i. And there is no doubt

.{FS}
^d 1 Hal. P. C. 425.
^e 3 Inft. 48.
^f Foft. 132. In the cafe of Macdaniel and Berry, reported by fir Michael Fofter, though the attorney general declined to argue this point of law, I have grounds to believe it was not from any apprchenfion that the point was not maintainable, but from other pudential reafons. Nothing therefore fhould be concluded from the waiving of that profecution.
^g Mirror. c. 1. §. 9. Britt. c. 5. Bracton. l. 3. c. 4.
^h Stiernh. de jure Goth. l. 3. c. 3.
ⁱ Ff. 48. 8. 1.
.{FE}

but

.P 197
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but this is equally murder in foro confcientiae as killing with a fword; though the modern law (to avoid the danger of deterring witneffes from giving evidence upon capital profecutions, if it muft be at the peril of their own lives) has not yet punifhed it as fuch. If a man however does fuch an act, of which the probable confequence may be, and eventually is, death; fuch killing may be murder, although no ftroke be ftruck by himfelf: as was the cafe of the unnatural fon, who expofed his fick father to the air, againft his will, by reafon whereof he died^k ; and, of the harlot, who laid her child in an orchard, where a kite ftruck it and killed it^l . So too, if a man hath a beaft that is ufed to do mifchief; and he, knowing it, fuffers it to go abroad, and it kills a man; even this is manflaughter in the owner: but if he had purpofey turned it loofe, though barely to frighten people and make what is called fport, it is with us (as in the Jewith law) as much murder, as if he had incited a bear of a dog to worry them^m . If a phyfician or furgeon gives his patient a potion or plaifter to cure him, which contrary to expectation kills him, this is neither murder, nor manflaughter, but mifaventure; and he fhall not be punifhed criminally, however laible he might formerly have been to a civil action for neglect or ignoraceⁿ : but it hath been holden, that if it be not a regular phyfician or furgeon, who adminifters the medicine or performs the operation, it is manflaughter at the leaft^o . Yet fir Matthew Hale very juftly queftions the law of this determination; fince phylic and falves were in ufe before licenfed phyficians and furgeons: wherefore he treats this doctrine as apocryphal, and fitted only to gratify and flatter licentiates and doctors in phyfic; though it may be of ufe to make people cautious and wary, how they meddle too much in fo dangerous an employment^p . In order alfo to make the killing murder, it is requifite that the party die within a year and a day after the ftroke received, or caufe of death adminiftred;

.{FS}
^k 1 Hawk. P. C. 78.
^l 1 Hal. P. C. 432.
^m Ibid., 431.
ⁿ Mirr. c. 4. §. 16. See Vol. III. pag. 122.
^o Britt. c. 5. 4. Inft. 251.
^p 1 Hal. P. C. 430.
.{FE}

in

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in the computation of which, the whole day upon which the the hurt was done fhall be reckoned the firft ^q .

FARTHER; the perfon killed muft be “a reafonable creature “in being, and under the king's peace,” at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace or protection, is as much murder as to kill the moft regular born Englifhman; except he be an alienenemy, in time of war^r . To kill a child in it's mother's womb, is now no murder, but a great mifprifion: but if the child be born alive, and dieth by reafon of the potion or bruifes it received in the womb, it is murder in fuch as adminiftred or gave them^s . But, as there is one cafe where it is difficult to prove the child's being born alive, namely, in the cafe of the murder of baftard children by the unnatural mother, it is enacted by ftatute 21 Jac. I. c. 27. that if any woman be delivered of a child, which if born alive fhould by law be a baftard; and endeavours privately to conceal it's death, by burying the child or the like; the mother fo offending fhall fuffer death as in the cafe of murder, unlefs fhe can prove by one witnefs at leaft that the child was actually born dead. This law, which favours pretty ftrongly of feverity, in making the concealment of the death almoft conclufive evidence of the child's being murdered by the mother, is neverthelefs to be alfo met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French^t : but I apprehend it has of late years been ufual with us in England, upon trials for this offence to require fome fort of prefumptive evidence that the child was born alive, before the other conftrained prefumption (that the child, whofe death is concealed, was therefore killed by it's parent) is admitted to convict the prifoner.

LASTLY, the killing muft be committed with malice aforethought, to make it the crime of murder. This is the grand cri-

.{FS}
^q 1 Hawk. P. C. 79.
^r 3 Inft. 50. 1 Hal. P. C. 433.
^s 3 Inft. 50. 1 Hawk. P. C. 80.
^t See Barrington on the ftatutes. 425.
.{FE}

terion,

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terion, which now diftinguifhes murder from other killing: and this malice prepenfe, malitia praecogitata, is not fo properly fpite or malevolence to the deceafed in particular, as any evil defign in general; the dictate of a wicked, depraved, and malignant heart^u ; un difpofition a faire un male chofe^w . and it may be either exprefs, or implied in law. Exprefs malice is when one, with a fedate deliberate mind and formed defign, doth kill another: which formed defign is evidenced by external circumftances difcovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted fchemes to do him fome bodily harm^x . This takes in the cafe 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 won lives and thofe 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 juftly fixed the crime and punifhment of murder, on them, and on their feconds alfo^y . Yet it requires fuch a degree of paffive valour, to combat the dread of even underferved contempt, arifing from the falfe notions of honour too generally received in Europe, that the ftrongeft prohibitions and penalties of the law will never be intirely effectual to eradicate this unhappy cuftom; till a method be found out of compelling the original aggreffor to make fome other fatisfaction to the affronted party, which the world fhall efteem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the perfon infulted, as of him who hath given the infult. Alfo, if even upon a fudden provocation one beats another in a cruel and unufual manner, fo that he dies, though he did not intend his death, yet he is guilty of murder by exprefs malice; that is, by an exprefs evil defign, the genuine fenfe of malitia. As when a park-keeper tied a boy, that was ftealing wood, to a horfe's tail, and dragged him along the park; when a mafter corrected his

.{FS}
^u Fofter. 256.
^w 2 Roll. Rep. 461.
^x 1 Hal. P. C. 451.
^y 1 Hawk. P. C. 82.
{Fe}

fervant

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fervant with an iron bar, and a fchoolmafter ftamped on his fcholar's belly; fo that each of the fufferers died; thefe were juftly held to be murders, becaufe the correction being exceffive, and fuch as could not proceed but from a bad heart, it was equivalent to a deliberate act of flaughter^z . Neither fhall he be guilty of a lefs crime, who kills another in confequence of fuch a wilful act, as fhews him to be an enemy to all mankind in general; as going deliberately with a horfe ufed to ftrike, or difcharging a gun, among a multitude of people^a . so if a man refolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is univerfal malice. And, if two or more come together to do an unlawful act againft the king's peace, of which the probable confequence might be bloodhed; 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, becaufe of the unlawful act, the malitia praecogitata, or evil intended beforehand ^b.

ALSO in many cafes where no malice is expreffed, the law will imply it: as, where a man wilfully poifons another, in fuch a deliberate act the law prefumes malice, though no particular emnity can be proved^c . And if a man kills another fuddenly, without any; or without a confiderable provocation, the law implies malice; for no perfon, unlefs of an abandoned heart, would be guilty of fuch an act, upon a flight or no apparent caufe. No affront, by words, or geftures only, is a fuffcient provocation, fo as to excufe or extenuate fuch acts of violence as manifeltly endanger the life of another^ds . But if the perfon fo provoked had unfortunately killed the other, by beating him in fuch a manner as fhewed only an intent to chaftife and not to kill him, the law fo far confiders the provocatoin of contumelious behaviour, as adjudge it only manflaughter, and not murder^e . In like manner if one kills an officer of juftice, either

.{FS}
^z 1 Hal. P. C. 454. 47. 4.
^a 1 Hawk. P. C. 74.
^b Ibid. 84.

1. Hal. P. C. 455.
   

^d 1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.
^e Foft. 291.
civil
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civil or criminal, in the execution of his duty, or any of his affiftants endeavouring to conferve the peace, or any private perfon endeavouring to fupppfres an affray or apprehend a felon, knowing his authority or the intention with which he interpofes, the law will imply malice, and the killer fhall be guilty of murder^f . And if one intends to do another felony, and undefignedly kills a man, this is alfo murder^g . Thus if one fhoots at A and miffes him, but kills B, this is murder; becaufe of the previous felonious intent, which the law transfers from one to the other. The fame is the cafe, where one lays poifon for A; and B, againft whom the prifoner had no malicious intent, takes it, and it kills him; this is likewife murder^h . It were endlefs to go through all the cafes of homicide, which have been adjudged either expreffly, or impliedly, malicious: thefe therefore may fuffice as a fpecimen; and we may take it for a general rule, that all homicide is malicious, and of courfe amounts to murder, unlefs where juftified by the command or permiffion of the law; excufed on a principle of accident or felf-prefervation; or alleviated into manflaughter, by being either the involuntary confequence of fome act, not ftrictly lawful or (if voluntary) occafioned by fome fudden and fufficiently violent provocation. And all thefe circumftances of juftification, excufe, or alleviation, it is incumbent upon the prifoner to make out, to the fatisfaction of the court and jury: the latter of whom are to decide whether the circumftances alleged be proved to have actually exifted; the former, how far they extend to take away or mitigate the guilt. For all homicide is prefumed to be malicious, until the contrary appeareth upon evidenceⁱ .

THE punifhment of murder, and that of manlaughter, were formerly one and the fame; both having the benefit of clergy: fo that none but unlearned perfons, who leaft knew the guilt of

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^f 1 Hal. P. C. 457. Fofter. 308, & c.
^g 1 Hal. P. C. 465.
^h 1 Hal. P. C. 466.
ⁱ Foft. 255.
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it, were put to death for this enormous crime^k . But now, by ftatute 23 Hen. VIII. c. 1. and 1 Edw. VI. c. 12. the benefit of clergy is taken away from murder though malice prefenfe. In atrocious cafes it was frequently ufual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains, near the place where the fact was committed: but this was no part of the legal judgment; and the like is ftill fometimes practiced in the cafe of notorious thieves. This, being quite contrary to the exprefs command of the mofacial law^l , feems to have been borrowed from the civil law; which, befides the terror of the example, gives alfo another reafon for this practice, viz. that it is a comfortable fight to the relations and friends of the deceafed^m . But now in England, it is enacted by ftatute 25 Geo II. c. 37. that the judge, before whom a murderer is convicted, fhall in paffing fentence direct him to be executed on the next day but one, (unlefs the fame fhall be funday, and then on the monday following) and that his body be delivered to the furgeons to be diffected and anatomizedⁿ ; and that the judge may direct his body to be afterwards hung in chains, but in no wife to be buried without diffection. And, during the fhort but awful interval between fentence and execution, he prifoner fhall be kept alone, and fuftained with only bread and water. But a power is allowed to the judge, upon good and fufficient caufe, to refpite the execution, and relax the other reftraints of this act.

BY the Roman law, parricide, or the murder of one's parents or children, was punifhed in a much feverer manner than any other king of homicide. After being fcourged, the delinquents were fewed up in a leathern fack, with a live dog, a cock, a vi-

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^k 1 Hal. P. C. 450.
^l “The body of a malefactor fhall not “remain all night upon the tree; but thou “fhalt in any wife bury him in that day, “that the land be not defiled.” Deut. xxi. 23.
^m “Famofos latrones, in his locis, ubi graffati funt, furca figendos placuit; ut, et confpectu deterreantur alii, et folatio fit cognatis interemptorum, codem loco poena reddita, “in quo latrones bomicidia feciffent.” Ff. 48. 19 28. §. 15.
ⁿ Foft. 107.
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per, and an ape, and fo caft into the fea^o . Solon, it is true, in his laws, made none againft parricide; apprehending it mpoffble that any one fhould be guilty of fo unnatural a barbarity^p . And the Perfinas, according to Herodotus, entertained the fame notion, when they adjudged all perfons who killed their reputed parents to be baftards. And, upon fome fuch reafon as this, muft we account for the omiffion of a exemplary punifhment for this crime in our Englifh laws; which treat it no otherwife than as fimple murder, unlefs the child was alfo the fervant of his parent^q .

FOR, though the breach of natural relation is unobferved, yet the breach of civil or ecclefiaftical connexious, when coupled with murder, denominates it a new offence; no lefs than a fpecies of treafon, called parva proditio, or petit treafon: which however is nothing elfe but an aggravated degree of murder^r ; although, on account of the violation of private allegiance, it is ftigmatized as an inferior fpecies of treafon^s . And thus, in the antient Gothic conftitution, we find the breach both of natural and civil relations ranked in the fame clafs with crimes againft the fate and the fovereign^t .

PETIT treafon, according to the ftatute 25 Edw. III. c. 2. may happen three ways: by a fervant killing his mafter, a wife her hufband, or an ecclefiaftical perfon (either fecular, or regular) his fuperior, to whom he owes faith and obedience. A fervant who kills his mafter whom he has left, upon a grudge conceived againft him during his fervice, is guilty of petit treafon: for the traiterous intention was hatched while the relation fubfifted between them; and this is only an execution of that intention ^u . So if a wife be divorced a menfa et thoro, ftill the vinculum ma-

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^o Ff. 48. 9. 9.
^p Cic. Pro. S. Rofcio. §. 25.
^q 1 Hal. P. C. 380.
^r Fofter. 107. 324. 336.
^s See pag. 75.
^t “Omnium graviffima cenfetur vie facta “at incolis in patriam, fubbitis in regem, “liberis in parentes, maritis in uxores, (et “vice verfa) fervis in dominos, aut etiam “at bomine in femet ipfum.” Stierhn. de jure Goth. l. 3. c. 3.
^u 1 Hawk. P. C. 89. 1 Hal. P. C. 380.
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trimonii fubfifts; and if the kills fuch divorced hufband, fhe is a traitrefs^w . And a clergyman is underftood to owe canonical obedience, to the hifhop who ordained him, to him in whofe diocefe he is beneficed, and alfo to the metropolitan of fuch fuffragan or diocefan bifhop: and therefore to kill any of thefe is petit treafon^x . As to the reft, whatever has been faid, or remains to be obferved hereafter, with refpect to wilful murder, is alfo applicable to the crime of petit treafon, which is no other than murder in it's moft odious degree: except that the trial fhall be as in cafes of high treafon, before the improvements therein made by the ftatutes of William III^y ; and alfo except in it's punifhment.

THE punifhment of petit treafon, in a man, is to be drawn and hanged, and, in a woman, to be drawn and burned^z : the idea of which latter punifhment feems to have been handed down to us from the laws of the antient Druids, which condemned a woman to be burned for murdering her hufband^a ; and it is now the ufual punifhment for all forts of treafons committed by thofe of the female fex^b . Perfons guilty of petit treafon were firft debarred the benefit of clergy by ftatute 12 Hen. VII. C. 7.

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^w 1 Hal. P. C. 381.
^x Ibid.
^y Foft. 337.
^z 1 Hal. P. C. 382. 3. Inft. 311.
^a Cacfar de bell. Gall. l. 6. c. 18.
^b See pag. 93.
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