[intention with which he interposes,] or if any of his assistants be killed under the like circumstances, [the law will imply malice, and the killer shall be guilty of murder (d);] though it is manslaughter only, if the warrant under which the officer acts be void, or be executed in an unlawful manner (e). So, in case of a sudden affray, if a third person interposes to part the combatants, giving them notice of his friendly intention, and either of the combatants kill him in resisting his interposition, it is murder (ƒ). [And if one intends to do another felony, and undesignedly kills a man, this is also murder (g). Thus, if one shoots at A., and misses him, but kills B., this is murder; because of the previous felonious intent, which the law transfers from one to the other:] for the malice, as it has been sometimes expressed, egreditur personam (h). [The same is the case where one lays poison for A.; and B., against whom the prisoner had no felonious intent, takes it, and it kills him; this is likewise murder (i). It were endless to go through all the cases of homicide which have been adjudged, either expressly or impliedly, malicious. These, therefore, may suffice for 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 account of accident or self-preservation] in sudden quarrel; [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

(d) 1 Hale, P. C. 457; Hawk. P. C. b. 1, c. 31, s. 55; Foster, 270, 308, &c. As to the case of the killing of private persons, attempting to apprehend felons, see 2 Hale, P. C. 84; Foster, 272, 309, 318.

(e) Hawk. P. C. b. 1, c. 31, ss. 57, 58; Fost. 312.

(f) Fost. 272.

(g) 1 Hale, P. C. 465.

(h) Fost. 262; see Reg. v. Smith, 4 Dearsley's C. C. R. 559.

(i) 1 Hale, P. C. 466.

[latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to mitigate or take away the guilt (1). For all homicide is supposed to be malicious, until the contrary appeareth upon evidence (m).]

The crime of murder, enormous as it is, was in antient times allowed (as also was manslaughter) the benefit of clergy (n); a commutation of capital punishment, in many cases of capital felony, allowed to persons in holy orders, or, what was equivalent, persons who were able to read,and once allowed to these only; though it was afterwards extended both to clergy and laity, whether able to read or not, and confined, on the other hand, to capital felonies of the lighter kind. But benefit of clergy was abolished by 7 & 8 Geo. IV. c. 28; having been by several earlier statutes (o) long since taken away [from murderers through malice prepense, their abettors, procurers, and counsellors (p)] and by 24 & 25 Vict. c. 100, s. 1, it is now expressly enacted, that every person convicted of murder shall suffer death as a felon (9). [In atrocious cases, it was, at one time, usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the crime was committed.] A direction, indeed, which formed no part of the legal judgment; though, at a later period, it was provided, by 25 Geo. II. c. 37, and 9 Geo. IV. c. 31, that the judge might direct the body to be hung in chains. This practice of hanging in chains, [which was quite contrary to the express command of the Mosaical law (r),

(1) Fost. 257; Hazel's case, 1 Leach, 406; R. v. Greenacre, 8 Car. & P. 35.

(m) Fost. 255.

(n) 4 Bl. Com. 201. As to benefit of clergy, see further post, p. 524, n. (c).

(o) See 23 Hen. 8, c. 1; 1 Edw.

6, c. 12; 4 & 5 Ph. & M. c. 4.
(p) 4 Bl. Com. 201.

(q) This had previously been provided in similar terms by 9 Geo. 4, c. 31, s. 3, repealed by 24 & 25 Vict. c. 95. Vide post, p. 527, n. (?).

(r) "The body of a malefactor "shall not remain all night upon

[seems to have been borrowed from the civil law; which, besides the terror of the example, gives also another reason, viz. that it is a comfortable sight to the relations and friends of the deceased (r).] By 25 Geo. II. c. 37, moreover, dissection was also required to be,—and by 9 Geo. IV. c. 31, might be,-a part of the sentence; and by the same statutes the judge was, in passing sentence, to direct the offender to be executed on the day next but one after that on which it was passed,-unless that day should happen to be Sunday, and then on the Monday following. But all these severities are now laid aside (s). And it is provided by 24 & 25 Vict. c. 100, s. 2, that sentence of death, on every conviction for murder, shall be pronounced and may be carried into execution, and all other proceedings had and taken upon and in respect of such sentence, in the same manner as in other cases which were capital before that Act (t); and (by sect. 3) that the body of every person executed for murder shall be buried within the precincts of the prison in which he shall have been last confined before conviction, and that the sentence of the court shall so direct (u).

[By the Roman law parricide, or the murder of one's

"the tree: but thou shalt in any"wise bury him that day, that the "land be not defiled."-Deut. xxi. 23.

(r) "Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit; ut, et conspectu deterreantur alii, et solatio sit cognatis interemptorum eodem loco pœna reddita, in quo latrones homicidia fecissent.”—Ff. 48, 19, 28, s. 15.

(s) By 2 & 3 Will. 4, c. 75, s. 16, so much of the sentence as regards dissection, was taken away; and by 4 & 5 Will. 4, c. 26, the hanging in chains.

(t) As to recording judgment of death, instead of pronouncing sentence, vide post, chap. XXIII.

(u) A similar provision was contained in 6 & 7 Will. 4, c. 30, repealed by 24 & 25 Vict. c. 95. The statutes of George II. and Geo. IV. above cited, had further provided that the offender should be confined in some safe place within the prison, apart from all other persons, and should be fed with bread and water, except only in case of sickness; but this enactment was repealed by 6 & 7 Will. 4, c. 30.

[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 (v). Solon, however, in his laws made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity (x). And the Persians, (according to Herodotus,) entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards (y).] And in like manner our English laws make no particular provision with regard to this crime, so as to distinguish it in any respect from that of simple murder (z). Yet formerly, where a servant killed his master, a wife her husband,- or an ecclesiastical person, (either secular or regular,) his superior, to whom he owed faith and obedience (a),-this was accounted [a species of treason, called parva proditio or petit treason (b).] From which it followed that, in the particular case also where a parricide was committed, by one who happened to stand in the relation of servant to his parent, he was guilty of petit treason, though the crime was so ranked under no other circumstances (c). For all these cases involved, in contemplation of law, not only murder, but murder aggravated by a species of treason; on account of the violation of private allegiance (d). [And thus in the antient Gothic

"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 bishop,-and therefore to kill "any of these is petit treason," and he cites 1 Hale, P. C. 381.

(b) As to petit treason, see 25 Edw. 3, c. 2; 1 Hale, P. C. 380. (c) 1 Hale, P. C. 380; 4 Bl. Com. 203.

(d) Foster, 107, 324, 336.

[constitutions, we find the breach both of natural and civil relations, ranked in the same class with crimes against the state and the sovereign (e).] Nor was the distinction merely nominal,-the punishment being more exemplary than in the case of simple murder: the sentence for petit treason, in a man, being to be drawn and hanged (ƒ); and, in a woman, to be drawn and burned. But the crime of petit treason is now abolished; it being provided by 24 & 25 Vict. c. 100, s. 8, that such homicides as amounted to that offence before 9 Geo. IV. c. 31 (g), shall be now deemed to be murder only, and no greater offence.

II. Attempts to murder (h).-Not only the crime of actual murder, but that of endeavouring to commit it, until very recently, in certain cases, amounted to a capital felony (i). This crime, however, is no longer punishable with death under any circumstances,-and the existing enactments concerning it are contained in 24 & 25 Vict. c. 100; which provides (sect. 11) that whosoever shall administer to (k), or cause to be administered to or be taken by, any person, any poison or other destructive thing; or

(e) "Omnium gravissima censetur vis, facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores (et vice versâ), servis in dominos, aut etiam ab homine in semet-ipsum."-Stiernh. de Jure Goth. 1. 2, c. 3.

(f) 1 Hale, P. C. 382; 3. Inst. 211. Blackstone (vol. iv. p. 203) remarks that this punishment of burning, in the case of the woman, seems to be handed down to us by the laws of the antient Druids; which condemned a woman (see Cæs. de Bell. Gall. 1. 6, c. 19) to be burned for murdering her husband. It was, however, the usual punishment (until lately) for all treasons committed by those of the female VOL. IV.

(g) The statute 9 Geo. 4, c. 31, contained an enactment that homicides, then amounting to petit treason, shall in future be deemed murder only; but that statute was repealed by 24 & 25 Vict. c. 95.

(h) As to a conspiracy to commit murder, vide post, c. IX. As to threatening murder, vide post, c. x.

(i) Under 7 Will. 4 & 1 Vict. c. 85 (repealed by 24 & 25 Vict. c. 95), attempting to commit murder by poisoning, wounding, &c., was punishable with death.

(k) As to what constitutes an administration of poison, see R. v. Michael, 9 Car. & P. 356.

M