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[parties meet avowedly with an intent to commit homicide, -thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power either Divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder on them and on their seconds also (r). Yet it requires a great degree of passive valour to combat the dread of even undeserved contempt, arising from false notions of honour (s). Also, if, even upon a sudden provocation, one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy that was stealing wood to a horse's tail, and dragged him along the park ; when a master corrected his servant with an iron bar; and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died,—these were justly held to be murders: because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter (t). Neither shall he be guilty of a less crime, who in consequence of such a wilful act as shows him to be an enemy to all mankind in general, causes the death of a fellow creature; as by going deliberately, and with an intent to do mischief, upon a horse used to strike (u); or by coolly



(r) Hawk. P. C. b. 1, c. 31, s. 31. See R. v. Murphy, 6 C. & P. 103; R. r. Young, ib. 645.

(8) 4 Bl. Com. p. 199. Black. stone adds, that " the strongest pro“hibitions and penalties of the law “ will never be entirely effectual to “ eradicate this unhappy custom; “ till a method be found out of com“pelling the original aggressor to

“ make some other satisfaction to “ the affronted party, which the “ world shall esteem equally re“ putable, as that given at the hazard “ of life and fortune, as well of the ' party insulted, as of him who hath "given the insult.”

(t) i Hale, P. C. 454, 473, 474. (1) Lord Raym. 143.


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[discharging a gun among a multitude of people (x). So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not, for this is universal malice; and if two or more come together to do an unlawful act against the peace, of which the probable consequence might be bloodshed, -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, because of the unlawful act, the malitia præcogitata, or evil intended beforehand(y).

Also, in many cases, where no malice is expressed, the law will imply it. As where a man wilfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved (z), and if a man kills another suddenly, without any or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent cause. No affront by words or gestures alone is a sufficient provocation, so as to excuse extenuate such acts of violence as manifestly endanger the life of another (a). But if the person so provoked had unfortunately killed the other, by beating him in such a manner as showed only an intent to chastise and not to kill him; the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter and not murder (6). In like manner, if one kills an officer of justice, either civil or criminal, while resisting him in the execution of his duty, and knowing his authority or the 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 (C); though it is manslaughter only, if

(2) Hawk. P. C. b. 1, c. 31, s. 12.
(y) Ibid. 8. 10.
(2) 1 Hale, P. C. 455.

(a) Hawk. P. C. b. 1, c. 31, s. 33; 1 Hale, P. C. 455, 456.

() Foster, 291.

(c) i Hale, P. C. 457; Hawk. P. C. b. 1, c. 31, s. 55; Foster, 270, 308, &c. As to killing a private person attempting to apprehend a felon, see 2 Hale, P. C. 84; Foster, 272, 309, 318.

[the warrant under which the officer acts be void, or be executed in an unlawful manner (d). 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 (e). And if one intends to do another felony, and undesignedly kills a man, this is also murder ($). 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 (9). 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 (h). 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 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 (i). For all homicide is supposed to be malicious, until the contrary appeareth upon evidence (k).]

(d) Hawk. P. C. b. 1, c. 31, ss. (h) 1 Hale, P. C. 466. 57, 58; Fost. 312.

(i) Fost. 257 ; Hazel's case, 1 (e) Fost. 272.

Leach, 406; R. v. Greenacre, 8 Car. (f) 1 Hale, P. C. 465.

& P. 35. (9) Fost. 262; see Reg. r. Smith, (K) Fost. 255. 4 Dearsley's C. C. R. 559.

It was formerly a fundamental principle that where murder or any other crime is committed abroad, and not within the jurisdiction of the Court of Admiralty, it could not be tried or dealt with in this country; but by many statutes this principle is now broken in upon, and particularly by 24 & 25 Vict. c. 100, s. 9, which provides, as to murder and manslaughter, that where either of them shall be committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed be a subject of her Majesty or not, such offence, if committed by any subject of her Majesty, may be dealt with, tried, and punished in any place in England or Ireland in which such person shall be in custody, in the same manner in all respects as if such offence had been actually committed in that place (m).

With regard to the punishment of murder by the death of the criminal, the words of the Mosaical law,-over and above the general precept to Noah, that “whoso shed“ deth man's blood, by man shall his blood be shed,”—are very emphatical in prohibiting the pardon of a murderer. “ Moreover ye shall take no satisfaction for the life of a “ murderer, who is guilty of death, but he shall surely be “ put to death; for the land cannot be cleansed of the “ blood that is shed therein, but by the blood of him that “shed it”(n). And yet in our country this crime, enormous as it is, was in antient times allowed the benefit of clergy(0); which was a commutation of capital punishment, at one period of our law allowed to persons in holy orders, or, what was equivalent, to 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 was then confined, on the other hand, to capital felonies of the lighter kind. But benefit of clergy was

(m) See also 12 & 13 Vict. c. 96, 8. 3.

(n) Gen. ix. 6; Numb. xxxv. 31, 32.

(0) 4 Bl. Com. 201.

abolished by 7 & 8 Geo. IV. c. 28; having been, by several earlier statutes, long since taken away from murderers through malice prepense, their abettors, procurors, 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 (2). In atrocious

9 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 (r). 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, seems to have been borrowed from the civil law (s); 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 (t).] By 25 Geo. II. c. 37, moreover, dissection was 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 these severities were successively laid aside (u); and it was, at length, provided by 24 & 25 Vict. c. 100, s. 2, that sentence of death, on every conviction for murder, should be pronounced and carried into execution, in the same manner as for other crimes which were capital before that


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(P) See 23 Hen. 8, c. 1; 1 Edw. 6, c. 12; 4 & 5 Ph. & M. c. 4.

(9) This had previously been provided in similar terms by 9 Geo. 4, c. 31, s. 3, repealed by 24 & 25 Vict. c. 95.

(r) 4 BI. Com. 202.
(8) “ The body of a malefactor

« shall not reinain all night upon the “ tree : but thou shalt in anywise “ bury him that day, that the land “ be not defiled.”-Deut. xxi. 23.

(1) Ff. 48, 19, 28, S. 15.

(u) See 2 & 3 Will. 4, c. 75, s. 16; and 4 & 5 Will. 4, c. 26.

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