against the king, who hath an interest in the preservation-of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder. (q) A felo de se therefor. is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if attempting to kill another, he runs upon his antagonist's sword: or, shooting at another, the gun bursts and kills himself. (r) (9) The party must be of years of discretion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length to which our coroner's juries are apt to carry it, viz.: that the very act of suicide is an evidence of insanity; as if every man, who acts contrary to reason had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter, (s) to form a legal excuse.

And therefore if a real lunatic kills himself in a lucid interval, he is a [*190] felo de se as much as another man. (t)

But now the question follows, what punishment can human laws inflict on one who has withdrawn himself from their reach?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 stake driven through his body; (10) 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 some motive to restrain him from so desperate and wicked an act. And it is observable, that this forfeiture has relation to the time of the act done in the felou's lifetime, which was the cause of his death. As if husband and wife he possessed jointly of a term of years in land, and the husband drowns himself; the land shall be forfeited to the king, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term which gives a title to the king, prior to the wife's title by survivorship, which could not accrue till the instant of her husband's death. (u) And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this, as on all other occasions, is reminded by the oath of his office to execute judgment in mercy. (11)

(q) Keilw. 136.
(u) Finch, L. 216.

(r) 1 Hawk. P. C. 68. 1 Hal. P. C. 413.

(8) See page 24. (t) 1Hal. P. C. 412.

(9) [He who kills another upon his desire or command, is in the judgment of the law as much a murderer, as if he had done it merely of his own head; and the person killed is not looked upon as a felo de se, inasmuch as his assent was merely void, being against the law of God and man. 1 Hawk. P. C. c. 27, s. 6; Keilw. 136; Moor. 754. And see Rex v. Sawyer 1 Russell, 424; Rex v. Evans, id. 426.]

(10 Interment in the highway, with a stake driven through the body, is done away, with by statute 4 Geo. IV, c. 52, but it must be private, and without the rites of Christian burial.

(11) [As to what a felo de se shall forfeit, it seems clear that he shall forfeit all chattels real or personal which he has in his own right; and also all chattels real whereof he is possessed, either jointly with his wife, or in her right; and also all bonds and other personal things in action, belonging solely to himself; and also all personal things in action, and, as some say, entire chattels in possession to which he was entitled jointly with another, or any account, except that of merchandise. But it is said that he shall forfeit a moiety only of such joint chattels as may be severed, and nothing at all of what he was possessed of as executor or administrator 1 Haw. P. C., c. 27, § 7. The blood of a felo de se is not corrupted, nor his lands of inheritance forfeited, nor his wife barred of her dower. 1 Haw. P. C., c. 27, § 8; Plowd. 261, b., 262, a.; 1 Hale, P. C. 413. The will of a felo de se, therefore, becomes void as to his personal property, but not as to his real estate. Plowd. 261. No part of the personal estate of a felo de se vests in the king, before the self-murder is found by some inquisition; and, consequently, the forfeiture thereof is saved by a pardon of the offence before such finding. 5 Co. Rep. 110, b.; 3 Inst. 54. 1 Saund. 362; 1 Sid. 150, 162. But if there be no such

But

The other species of criminal homicide is that of killing another man. in this there are also degrees of guilt, which divide the offence into manslaughter and murder. The difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this, that manslaughter, when voluntary, arises from the sudden heat of the passions, murder from the wickedness of the heart.

*1. Manslaughter is therefore thus defined, (v) the unlawful killing of

[*191] another without malice either express or implied; which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. These were called in the Gothic constitutions "homicidia vulgaria; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu." (w) And hence it follows, that in manslaughter there can be no accessories before the fact; because it must be done without premeditation.

As to the first, or voluntary branch: if upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter: and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion: (x) and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter. (y) But in this and in every other case of homicide upon provocation, if there be a sufficient cooling-time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder. (z) (12) So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot: though this was allowed by the laws of Solon, (a) as likewise by the Roman civil law (if the adulterer was found in the husband's own house), (b) and also among the ancient Goths; (c) yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is man[*192] slaughter. (d) (13) It is however the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation. (e) Manslaughter, therefore, on a sudden provocation differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other, no necessity at all, being only a sudden act of revenge. The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure in this; that misadventure always happens in consequence of a lawful act, but, this species of manslaughter in consequence of an unlawful one. As, if two persons play at sword and buckler, unless by the king's command, and one of them kills the other: this is manslaughter, because the original act was unlawful; but it is not murder, for the one had no intent to do (w) Stiernh, de jure Goth. l. 3, c. 4 (x) 1 Hawk. P C. 82 (y) Kelyng. 135. Plutarch, in vita Solon. (b) Ff. 48, 5, 24. (c) Stiernh. de jure Goth. 1. 3, c. 2. (e) Sir. T. Raym. 212.

(v) 1 Hal. P. C. 466.
(z) Fost. 296. (a)
(d) 1 Hal. P. C. 486.

pardon, the whole is forfeited immediately after such inquisition, from the time of the act done by which the death was caused, and all intermediate alienations and titles are avoided. Plowd. 260, 1 Hale, P. C. 29; 5 Co. Rep. 110; Finch, L. 216. See, also upon this subject, Lambert v. Taylor, 6 D. and R. 188; 4 B. and C. 138.]

The offence of self-murder is not puuishable in the United States.

(12) The question what is sufficient cooling time under all the circumstances of the case is one of fact for the jury, in which the nature of the aggravation is an important consideration. See Rex v. Lynch, 5 C. and P. 324; Rex v. Hayward, 6 C. and P. 157; Maher v. People, 10 Mich. 212. This doctrine though disputed (2 Bish. Cr. L. § 642; Whart. Cr. L. § 984), is nevertheless practically acted upon, and is believed to be sound.

(13) See State v. Samuel, 3 Jones, N. C. 74; State v. John. 8 Ired. 330; Whart. Cr. L. § 983

the other any personal mischief. (f) So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection: as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; (g) and murder, if he knows of their passing, and gives no warning at all, for then it is malice against all mankind. (h) And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter, (i) according to the nature of the act which occasioned it. If it be in prosecution of a felonious *intent, or in its consequences [*193] naturally tended to bloodshed, it will be murder; but, if no more was intended than a mere civil trespass, it will only amount to manslaughter. (j) Next, as to the punishment of this degree of homicide: the crime of manslaughter amounts to felony, but within the benefit of clergy; and the offender shall be burnt in the hand, and forfeit all his goods and chattels.

But there is one species of manslaughter which is punished as murder, the benefit of clergy being taken away from it by statute; namely, the offence of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. I, c. 8, when one thrusts or stabs another, not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers, between the Scotch and the English at the accession of James the First, () and being therefore of a temporary nature, ought to have expired with the mischief which it meant to remedy. For in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling, or shooting, can either extenuate or enhance the guilt; unless where, as in case of poisoning it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law hath construed the statute so favourably in behalf of the subject, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing as it did at the common law. (1) Thus, (not to repeat the cases before mentioned, of stabbing an adulteress, &c. which are barely manslaughter, as at common law), in the construction of this statute it hath been doubted whether, if the deceased had struck at all before the mortal blow given, this does not take it out of the statute, though in the preceding quarrel the stabber had given the first blow; and *it seems to be the better opinion

that this is not within the statute. (m) Also it hath been resolved, that [*194]

the killing a man by throwing a hammer or other blunt weapon is not within the statute; and whether a shot with a pistol be so or not, is doubted. (n) But if the party slain had a cudgel in his hand, or had thrown a pot or bottle, or discharged a pistol at the party stabbing, this is a sufficient having a weapon drawn on his side within the words of the statute. (o) (14)

2. We are next to consider the crime of deliberate and wilful murder; a crime at which human nature starts, and which is, I believe, punished almost universally throughout the world with death. The words of the Mosaical law (over and above the general precept to Noah, (p) that" whoso sheddeth man's blood, by man shall his blood be shed"), are very emphatical in prohibiting the

(f) 3 Inst. 56.

(g) Kel. 40.

(h) 3 Inst. 57.

(i) Our statute law has severely animadverted on one species of criminal negligence. whereby the death of a man is occasioned. For by statute 10 Geo. II, c. 31, if any waterman between Gravesend and Windsor receives into his boat or barge a greater number of persons than the act allows, and any passenger shall then be drowned, such waterman is guilty (not of manslaughter, but) of felony, and shall be transported as a felon, (j) Fost. 258. 1 Hawk. P. C. 84. (k) Lord Raym. 140. (1) Fost. 299, 300. (m) Fost. 301. 1 Hawk. P. C. 77. (n) 1 Hal. P. C. 470. (0)1 Hawk. P. C. 77. (p) Gen. ix. € (14) The statute 1 James I, c. 8. is repealed. The crime of attempt to murder is punishable under 24 and 25 Vic. c. 100. Murder and manslaughter are punishable under the same statute.

pardon of murderers. (q) "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." And therefore our law has provided one course of prosecution (that by appeal, of which hereafter), wherein the king himself is excluded the power of pardoning murder; so that, were the king of England so inclined, he could not imitate the Polish 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 et us now consider the definition of this great offence.

The name of murder (as a crime) was anciently applied only to the secret killing of another; (8) (which the word moerda signifies in the Teutonic language); (f) and it was defined, "homicidium quod nullo vidente, nullo sciente, clam perpetratur:" (u) for which the vill wherein it was committed or (if that were too poor) the whole hundred was liable to a heavy *amercement; [ *195 ] which amercement itself was also denominated murdrum. (w) This was an ancient usage among the Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated, or at least connived at the murder; (2) 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 English; and was afterwards continued by William the Conqueror, for the like security to his own Normans. (2) And therefore if upon inquisition had, it appeared that the person found slain was an Englishman (the presentment whereof was denominated englescherie), (a) the country seems to have been excused from this burthen. But, this difference being totally abolished by statute 14 Edw. III, c. 4, we must now (as is observed by Staundford) (b) define murder in quite another manner, without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction.

Murder is therefore now thus defined, or rather described, by Sir Edward Coke: (c) "when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." The best way of examining the nature of this crime will be by considering the several branches of this definition.

First, it must be committed by a person of sound memory and discretion; for Junatics or infants, as was formerly observed, are incapable of committing any crime: unless in such cases where they show a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.

Next it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without *warrant or excuse: [*196] and there must also be an actual killing to constitute murder; for a bare assault, with intent to kill, is only a great misdemeanor, though formerly it was held to be murder. (d) The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. And if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstances, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an ax, or a hatchet, this difference is immaterial. (e) (15)

(r) L. of N. 1. 8, c. 3.

(8) Dial.. de Scacch. l. 1, c. 10.

(q) Numb. xxxv, 31. (t) Stiernh. de jure Sueon. 1. 3, c 3. The word murdre in our old statutes also signified any kind of concealment or stifling. So in the statute of Exeter, 14 Edw. I, je riens ne celerai, ne sufferai estre cele ne murdre" which is thus translated in Fleta. 7 1, c. 15. 4. Nullam veritatem celabo, nec celari permittam nec murdrari.” And the words pur murdre le droit." in the articles of that statute, are rendered in Fleta, ibid. 28. pro jure alicujus murdrando."

(w) Bract. l. 3, tr. 2, c. 15, § 7. Stat. Marl. c. 26. Fost. 281. (y) l. 3, tr. 2, c. 15. (z) 1 Hal. P. C. 447. (a) Bract. upi supr. (c) Inst. 47. (d) I Hal. P. C. 425. (e) 3 Inst. 319. 2 Hal. P. C. 185,

(15) [See 1 East, P. C. 341, and Sharwin's Case, there cited, in which it was held that an averment of an assault with a wooden staff, was satisfied by proof of an assault with a stone;

Of all species of deaths, the most detestable is that of poison; because it can of all others be the least prevented either by manhood or forethought. (f) And therefore by the statute 22 H. VIII, c. 2, it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed, namely, boiling to death: (16) but this act did not live long, being repealed by 1 Edw. VI, c. 12. There was also by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder for many ages past: (g) I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed. (h) The Gothic laws punished, in this case, both the judge, the witnesses, and the prosecutor: "peculiari pæna judicem puniunt; peculiari testes quorum fides judicem seduxit: peculiari denique et maxima auctorem, ut homicidum." (i) And, among the Romans, the lex Cornelia de sicariis, punished the false witness with death, as being guilty of a species of assassination. (k) And there is no doubt but this is equally murder in foro conscientiæ as killing with a *sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon [*198] capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such. If a man however does such an act of which the probable consequence may be, and eventually is death; such killing may be murder, although no stroke be struck by himself, and no killing be primarily intended: as was the case of the unnatural son who exposed his sick father to the air, against

(f) 3 Inst. 48.

(g) Fost. 132. In the case of Macdaniel and Berry, reported by sir Michael Foster, though the then attorney-general declined to argue this point of law, I have good grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution.

(h) Mirror, 2. 1, 29. Brit. c. 52. Bract 1. 3. c. 4.

A stroke must

the effect being the same. See Rex v. Dale, 13 Price, 172; 9 J. B. Moore, 19. be expressly averred, and an indictment stating that the prisoner murdered, or gave a mortal wound, without saying that he struck, is bad. Rex v. Long, 5 Co. Rep. 122, a; 1 East, P. C. 342. It must also be stated upon what part of the body the deceased was struck: 2 Hale, P. C. 185; and the length and depth of the wound must be shown. Id. 186; Haydon's Case, 4 Co. Rep. 42, a. Where there are several wounds, the length and breadth of each need not be stated. Rex v. Mosley, R. & M. C. C. 97. And see Young's Case, 4 Co. Rep. 40; Walker's Case, id. 41; Rex v. Lorkin, 1 Bulstr. 124; 2 Hale, P. C., 184; Rex v. Dale, R. and M. C. C. 5, as to the wound, cause of death, &c. Where the death proceeded from suffocation from the swelling up of the passage of the throat, and such swellings proceeded from wounds occasioned by forcing something into the throat, it was held sufficient to state in the indictment, that the things were forced into the throat, and the person thereby suffocated: and that the process immediately causing the suffocation, namely the swelling, need not be stated. Rex . Tye, R. and R. C. C. 345. The death, by the means stated, must be positively averred, and cannot be inferred: 1 East, P. C. 343; and where the death is occasioned by a stroke, it must be further alleged that the prisoner gave the deceased a mortal wound, &c., whereof he died. 2 Hale, P. C. 186; Kel. 125; Lad's Case, Leach, 96. The time and place both of the wound and of the death must be stated, in order to show that the deceased died within a year and a day from the cause of the death; in computing which the day of the act done is reckoned the first; though a precise statement of the day is immaterial, if the party is proved to have died within the limited period. 2 Inst. 318; 2 East, P. C. 344. The word murdered is absolutely necessary in the indictment. 2 Hale, P. C. 187.]

The cominon-law rule in setting forth the instrument of death is, that where the instrument laid and that proved are of the same nature and character, there is no variance, but where they are of an opposite nature and character, the contrary. Whart. Cr. L. § 1059. Thus, evidence of a dagger will support the averment of a knife, but evidence of a knife will not support the averment of a pistol. If the indictment allege a death by one kind of poison, proof of a death by another kind of poison will support the indictment. Id.

(16) This extraordinary punishment seems to have been adopted by the legislature, from the peculiar circumstances of the crime which gave rise to it; for the preamble of the statute informs us, that John Roose, a cook, had been lately convicted of throwing poison into a large pot of broth, prepared for the bishop of Rochester's family, and for the poor of the parish; and the said John Roose, was, by a retrospective clause of the same statute, ordered to be boiled to death. Lord Coke mentions several instances of persons suffering this horrid punishment. 3 Inst. 48.