was done fhall be reckoned the first. Malice prepenfe is the grand characteristic of this crime. This malice is not confined to the particular object, but where the conduct fhews that depravity of mind, and wicked malignant heart, which evidences that the offender is capable of any mitchief however dangerous to the community, it will be fufficient proof of malice prepenfe. This may be either express or implied. Exprefs malice is where the defign is formed, and the act perpetrated in a deliberate manner. This may be determined by the attendant circumstances, as by lying in wait, former menaces and enmity; and concerted schemes to do fome bodily injury, which clearly discover the intention to kill. * A duel will come within the defcription of deliberate murder. There are instances where there is no intent to kill, yet the act is accompanied by fuch exprefs hatred, revenge, and cruelty, as to evidence a total depravity of heart, and conftitute malice prepenfe. Where a park-keeper tied a boy that was stealing wood, to a horse's tail, and dragged him along the park: a master corrected a fervant with an iron bar; and a school-master stamped on a fcholar's belly, so that the fufferers died, these acts were held to be murder. So where a perfon deliberately goes with a horfe ufed to ftrike, or difcharges a gun among a multitude of people, by which any are killed. Such act demonstrate that wanton cruel. ty, and unfeeling barbarity, which render the perpetrators unfit and dangerous members of fociety.

Where two, or more affemble for the purpose of doing an unlawful act against the peace, and of which the probable confequence be bloodshed, as to beat a man, or commit a riot, and one of them kills a man, it is murder in all, because of the illegality of the act, and the premeditated wickednefs of the defign.

may

Implied malice must be deduced from the circumftances attending the fact. "Where a perfon upon little or no provocation, ftrikes another with a dangerous weapon, and kills him, the law implies malice prepenfe. There is confiderable nicety in diftinguishing between murder, and manslaughter, where the death enfues upon a fudden quarrel. Where on a fudden quarrel, and high provocation, a manis tranfported beyond himself, and in the paroxifin of anger intentionally

b 4 Black Com. 198. #4 Black. Com. 199.

i̟Ibid. 199. I Hal. P. C. 451. kr Hawk. P. C 82. I Hawk. P. C. 74. * 4 Blac. Com. aco.

intentionally kills a perfon, it is manflaughter. So where a perfon upon flight provocation beats another, with an intent to chaftife him, and not kill him, and unfortunately kills him, it is manflaughter. These seem to be very reasonable allowances for the paffions and failings of mankind. But if a man will rife into anger upon trifling provocations, as mere words and gestures, and intentionally kill his fellow creature, or treat him with that cruelty, and barbarity, which produce his death, the law implies malice, and pronounces him a murderer: or if a perfon in a fudden affray, howeyer abused, has the command of his temper, and deliberately and intentionally kills another, it is murder. If two have had a quarrel, and they feparate, and have time to cool their paffions, and then one kills the other, it is murder. If a man kills a fheriff or other public officer, or any of his affistants in the execution of their duty, endeavouring to preferve the peace, or any private perfon endeavouring to fupprefs an affray, or apprehend a felon, knowing the authority or intention with which he interpofes, the law implies malice, and the killer is guilty of murder. It is a principle of the common law, that where a man, intending to commit a felony, undefignedly kills a man, he is guilty of murder. If a man shoots at a one perfon, and miffing him kills another, be is guilty of murder. If one lays poifon to kill a man, and another by accident takes it, and dies, it is murder; but if the poifon be laid to kill rats, and a man takes it, and dies, it is not murder.

The ftatute has declared, that in the cafes of juft and neceflary defence, and cafualty, the killing of a man is not murder. Let us attend to thefe circumftances, and this will aid us in giving an accurate defcription, of murder.

Juftifiable homicide is where the act refults from unavoidable neceflity, without any will, intention, negligence, on the part of the killer.

defire, inadvertence, or As where an officer in the

execution of a judgment of court, puts a malefactor to death; or where an officer in the execution of his office, kills a person that affaults, or refifts him. So where an officer, or a private perfon' endeavor to take a perfon, charged with fome high crime, and are refifted, and in the attempt to take kill him, this is juftifiable.

o Fort. 291.

Hal. P. C. 457 g 4 Black. Com. 201.

fi Hawk. P. C. 71.

Where r luid 173.

Where there is a riot, or rebellious affèmbly, and the peace officers endeavour to difperfe them, and they refufe, it will be juftifiable to kill them, if it be neceflary for the purpose of executing the law.

Homicide is juftifiable for the preventing of any forcible and atrocious crime; as an attempt to rob, to murder, to break open a houfe, or to burn it. But to prevent crimes not accompanied by force, to kill a perfon, could not be juftifiable. It is juftifiable for a woman to kill a man, who attempts to ravish her and a husband or father may jultify killing a man, who attempts to commit a rape upon his wife or daughter. And in all inftances where the crime is capital, it is juftifiable to prevent the commiffion of it, by killing the perfon attempting it.

:

Excufable homicide is by mifadventure, or cafualty, or in selfdefence, upon the principle of felf prefervation. Homicide by mifadventure, or cafualty, is where a man, doing a lawful act, without any intention of hurt, unfortunately kills another as where a man is cutting with an ax, and the head flies off, and kills a byeftander or where fundry perfons are hunting, and one difcharging his gun, undefignedly kills another. Where a parent moderately corrects his child, or mafter his fcholar, and happen to occafion their death, it is only misadventure: but if they exceed the bounds of moderation, either in the manner, the inftrument, or the quantity of punishment, and death enfues, it is manflaughter at least ; and may according to the circumstances of the cafe be murder.

away

Homicide in felf-defence, or felf-prefervation, is one of the first laws of nature, which no man ever refigned upon entering into fociety. Whenever a perfon is affaulted by another, and he has no other mode to defend his life, he may kill the aflailant. Here the law goes upon this principle, that a man may take the life of another only when his own is in danger, and he has no other poffible mode of defending himself. One may not kill another to defend himself from an affault. The law therefore requires that where a man is aflaulted by another, he fhall do every thing in his power to defend himself, and fave his own life, without killing the affailant. He shall retreat as far as he can, till he be ftopped by fonic fence, wall, or ditch, if the fiercenefs of the affailant will per

mit

Black Com. 180. u 4 Black. Com. 182. Hawk. P. C. 73, 74. Hal. P. C. 473. y 4 Black. Com. 184.

mit it but when he can retreat no farther, or the fury of the af failant will not permit it, without manifeft danger of life, or enormous bodily harm, then in his defence he may justify killing the affailant.

Where perfons ftand in the relation of hufband and wife, pa rent and child, and mafter and fervant, they may justify the killing. of an affailant, when neceffary to the defence of each other.

• Excufable homicide is by the law of England deemed a crime, and is punishable by the forfeiture of goods, and the unfortunate perfon muft now pray out a writ of pardon and reftitution of goods which however, is a matter of courfe. In this country it has not been deemed a crime, and the unfortanate perfon is fubjected to no kind of punishment.

There is one fpecies of murder, refpecting which the ftatute has varied the mode of proof. If a woman be delivered of a baftard child, and the endeavour privately, either by drowning, or fecret burying, or in any other way, by herfelf or others, fo to conceal the death thereof, that it may not be known whether it was born alive, or not, fhe fall be accounted guilty of murder, unless the can prove by one witnefs at least, that the child was born dead. This law is intended to prevent the fecret murdering of bastard children by their mothers, to conceal their difgrace: and for that purpofe has introdued a prefumptive mode of proof, which the nature of the cafe fees to require. This law however, has by many been confidered as bearing hard upon female frailty, and a rigid construction of it, might expofe an innocent woman to fuffer death, who only attempted to conceal her difgrace, by con*cealing the death of a bastard child, which was born dead, and to which fhe is impelled by the ftrong inducement of preferving her character.

In England they require fone prefumptive proof, that the child was born alive, before from the circumftance of the concealment, they will convict the parent of murdering it. In this ftate it has not been confidered neceflary that the woman fhould produce a witnefs prefent at the birth of the child, to prove that it was born dead:

≈ 4 Black.Com. 186. e 2 Hawk. P. C. 381. 4 Black. Com. 198.

Statutes 162.

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dead but if by any circumstances, as the appearance of the child when found, the mind of the triers can be satisfied, that the child was ftill born, the mother, tho from a wish to hide her difgrace, fhe concealed the birth of her child, fhall not be convicted of murder.

Before I finish my obfervations on murder, it may be proper to fay fomething refpecting fuicide, or felf-murder, which by the English law is deemed a crime. The perfon murdering himself, is cal led felo de fe, and the punishment is a forfeiture of his perfonal eftate, and the burial of his body in a public highway, with a stake driven thro it. The Roman law confidered fuicide as not within its animadverfion; and it is evident that the English law originated in the barbarous period of fuperftition, and cruelty. There can be no act more contemptible, than to attempt to punish an of fender for a crime, by exercising a mean act of revenge upon lifelefs clay, that is infenfible of the punishment. There can be no greater cruelty, than the inflicting a punishment, as the forfeiture of goods, which muft fall folely on the innocent offspring of the offender. This odious practice has been attempted to be justified upon the principle, that fuch forfeiture will tend to deter mankind from the commiffion of fuch crimes, from a regard to their families. But it is evident that when a perfon is so destitute of affection for his family, and regardless of the pleasures of life, as to wish to put an end to his existence, that he will not be deterred by a confideration of their future fubfiftence. Indeed this crime is fso abhorrent to the feelings of mankind, and that ftrong love of life which is implanted in the human heart, that it cannot be fo frequently committed, as to become dangerous to fociety. There can of course be no neceffity of any punifliment. This principle has been adopted in this ftate, and no inftances have happened of a forfeirure of estate, and none lately of an ignominious burial.

The English nation have been diftinguished for the frequent commiflion of acts of fuicide. Such acts are rare in this country; but no inftance has happened more remarkable in any country, than that of Beadle, who cooly and deliberately in the exercise of his reafon, murdered his wife, four children, and himself, from a dread of their being expofed to want.

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