And first of MURDER. Sect. 1. The word "murder" anciently signified only the pri- Dialog. de vate killing of a man, for which, by force of a law introduced by Scacch. 1. 1. c. KING CANUTE for the preservation of his Danes, the town or Sueo. 1. 3. c. 3. 10. Stiern. jure hundred where the fact was done was to be amerced to the king, Glanv. l. 14. unless they could prove that the person slain were an English- c. 3. man (which proof was called Engleschire), or could produce the Stat. Marlbr. offender, &c. And in those days the open wilful killing of a c. 26. man through anger or malice, &c. was not called murder, but vo- Prin. P. L. 230. luntary homicide, Foster, 281. Bract. 134, 135. 1 Hale, c. 447. Bract. 121. Sect. 2. But the said law concerning Engleschire having been S. P. C. 18, 19. abolished by 14 Edw. 3. c. 4. the killing of any Englishman or 1 Hale, 448. foreigner through malice prepense, whether committed openly or secretly, was by degrees called murder; and 13 Rich. 2. c. 1. which restrains the king's pardon in certain cases, does in the preamble, under the general name of murder, include all such homicide as shall not be pardoned without special words; and, in the body of the act, expresses the same by "murder, or kill"ing crime of aggravated homicide, yet it anciently had another and very different meaning. MURDRUM anciently signified the fine imposed upon the township where any one was secretly assassinated and the slayer not forthcoming to answer the demand of justice. This fine is said to have originated in the policy of the Danish monarch Canute, who, after his victories over the Saxons in this country, seated himself upon the throne. But his countrymen, like all conquerors, were hated by the people whom they had subdued and oppressed. They were, therefore, frequently killed in private by the natives. And in order for their security, be imposed a fine of 66 marks of silver upon every township where a Dane was found killed, and the slayer not forthcoming. And further, to throw a greater security around them, and to make townships more vigilant to apprehend the offender, the slain man was always to be considered a Dane whether he was known or not, unless it was found by a presentment that he was an Englishman and not a Dane-which presentment was called "Englescherie," and being found, relieved the township of the fine. After the Norman conquest, William adopted the same law for the protection of his Norman followers. And it appears that this fine of murdrum was only imposed in cases of se cret killing, for it is thus described by Bracton, who wrote at the close of the reign of Hen. 3.: "Nunc autem dicendum de homicidio quod nullo præsente, nullo sciente, nullo audiente, nullo vidente clam perpetratur quod dicitur murdrum, unde in primis videndum quod sit quæ causæ inventionis et qualiter quis ex murdro excusetur. Murdrum vero est occulta extraneorum et notorum hominum occisio a manu hominis nequiter perpetratum et quæ nullo sciente, vel vidente facta est prater solum interfectorem, et suos coadjutores et fautores, et ita quod non statim assequatur clamor popularis." "Extraneorum dico quia sive interfectus cognitus fuerit sive ignotus dicitur Francigena (a Norman), nisi Englescheria; i. e. quod Anglicus sit probetur per parentes et coram justiciarios presentetur." He then goes on to detail the differ ent evidence required of the party slain being an Englishman, which it appeared differed in different places-some requiring two male and two female relatives of the deceased to prove the fact; and he concludes by observing, “ quoniam in diversis comitatibus diversimode presentatur inquirendum erit in quolibet itinere ab initio quæ sit consuetudo præsentandi Englescheriam." (Lib. 3. c. 16.) “And this further appears by many hundred old charters of the kings of England, especially to bishops and monasteries, whereby it was granted that they and their possessions should be quiet de murdro et latrocinio; whereby we must not think that they had power granted them to commit murder or theft, but they were thereby acquitted of those common amerciaments, in ancient times imposed in eyre upon vills for murder and theft committed there." (H. H. P. C. c. 35.) This law continued in force until the 14 Ed. 3., at which time the distinction between Norman and Saxon became lost, both being blended in one people; and by a statute of that year it was enacted, "That Engleschery, and the presentment thereof, shall be taken away for ever." It may now be proper to say something as to the legal import of the words "malice forethought," which is now an essential ingredient in the crime of murder. Malice is a word of legal import both in the civil law and our own, and denotes a wicked, perverse, and incorrigible disposition, and not as the word would, in its limited signification, seem to imply, a principle of malevolence to particular persons. Sir M. Foster has cited many passages from our ancient laws in which the term malice has clearly that general signification, and therefore the implied malice of the law, if carefully adverted to, he says, will be found to turn upon this single point," that the fact hath been attended with such circumstances, as carry in them plain indications of a heart regardless of social duty, and fatally bent on mischief." (Introduction to Discourse on Homicide.) Stamf. l. 1. c. 10. S Inst. 48. 91. 1 Inst. 295. 4 Comm. 196. 1 Hale, 425. 432. 2 Hawk. c. 29. "ing by await, assault, or malice prepensed." And doubtless the makers of 23 Hen. 8. c. 1. which excluded all wilful murder of malice prepense from the benefit of the clergy, intended to include open, as well as private, homicide within the word murder. Sect. 3. By MURDER, therefore, at this day, we understand the wilful killing of any subject whatsoever, through malice forethought, whether the person slain shall be an Englishman or foreigner. And for the better understanding hereof, I shall examine the following particulars:-FIRST, In what cases a man may be said to kill another. SECONDLY, In what places such killing is within the cognizance of the law. THIRDLY, Who are such persons by killing of whom a man may commit murder. FOURTHLY, What killing shall be adjudged to be malice prepense, or murder. As to THE FIRST POINT, viz. In what cases a man may be said to kill another. Sect. 4. Not only he who by a wound or blow, or by poisoning, strangling, or famishing, &c. directly causes another's death, but also in many cases he who by wilfully and deliberately doing a thing which apparently endangers another's life, thereby occasions his death, shall be adjudged to kill him. 31. 9 Str. Tr. 146 to 251. Crom. 24. 90. Pult. 122. Sect. 5. And such was the case of him who carried his sick father against his will, in a cold frosty season, from one town 1 Hale, 431,432. to another, by reason whereof he died. Dalt. c. 93. Crom. 24. 1 Hale, 432. (a) S. P. C. 36. 3 Inst. 91. Vide 14 Ed. 3. c. 10. (b) Dalt. c. 93. Sup. c. 1. s. 7. Sect. 6. Such also was the case of the harlot, who being delivered of a child, left it in an orchard covered only with leaves, in which condition it was struck by a kite, and died thereof. Sect. 7. And in some cases a man shall be said, in the judgment of the law, to kill one who is in truth actually killed by another, or by himself; as where one by duress (a) or imprisonment compels a man to accuse an innocent person, who on his evidence is condemned and executed; or where one incites a (b) madman to kill himself or another; or where one lays (c) poi(c) Plowd. 474. son with an intent to kill one man, which is afterwards accidentally taken by another, who dies thereof. 1 Hale, 431. 436.442. 467. Sect. 8. Also he who wilfully neglects to prevent a mischief, which he may and ought to provide against, is, as some have said, in judgment of the law, the actual cause of the damage which ensues; and therefore if a man have an ox or a horse, which he knows to be mischievous, by being used to gore or strike at those who come near them, and do not tie them up, but leave them to their liberty, and they afterwards kill a man, according to some opinions, the owner may be indicted as having himself feloniously killed him; and this is agreeable to the Mosaical law. However, as it is agreed by all, such a person is certainly guilty of a very gross misdemeanor. Sect. Sect. 9. Also it is agreed, that no person shall be adjudged Pult. 123. by any act whatever to kill another who doth not die thereof Dalt. c. 93. within a year and a day after; in the computation whereof, the S. P. C. 21. whole day on which the hurt was done shall be reckoned the first. Sect. 10. But if a person hurt by another die thereof within a year and a day, it is no excuse for the other that he might have recovered, if he had not neglected to take care of himself. (2) 3 Inst. 53. 1 Keb. 17. As to THE SECOND POINT, viz. In what places such killing is Prin. P. L. 234. within the conusance of the law. Bk. 2. c. 23. Sect. 11. It seems, that the killing of one who is both wound- 3 Inst. 48. ed and dies out of the realm, or wounded out of the realm and 1 Hale, 426. 3 Inst. 51. dies here, cannot be determined at common law, because it canCo. Lit. 75. not be tried by a jury of the neighbourhood where the fact was S. P. C. 65. done. But it is agreed, that the death of one who is both B. App. 153. wounded and dies beyond sea; and it is said by some, that the C. Car. 247. death of him who dies here of a wound given him there, may be s. 12. heard and determined before the constable and marshal, accord- 3 Keb. 785. ing to the civil law, if the king please to appoint a constable. Cont. 3 Keb. And it seemeth also to be clear, that such a fact being examined 1 And. 195. by the privy council, may by force of 33 Hen. 8. c. 23. be tried, in relation to the principal offenders, but not as to the accessaries, before commissioners appointed by the king in any county in England. Sect. 12. A murder at sea was anciently cognizable only by 715. the civil law, but now by force of 27 Hen. 8. c. 4. and 28 Hen. 8. 3 Inst. 48, 49. c. 15. it may be tried and determined before the king's commissioners (S) in any county of England according to the course of the common law. Yet the killing of one who dies at land of a 1 Leon. 270. wound received at sea, is neither determinable at common law, 3 Inst. 48. Vide 4 Black. nor by force of either of these statutes: but it seems that it Com. 459. be tried by the constable and marshal, or before commissioners (2) A gaolor, knowing a prisoner to be infected with an epidemic distemper, confines another prisoner against his will in the same room with him, by which he catches the infection, of which the gaoler had notice, and the prisoner dies; this is a felonious killing. Stra. 856. 9 St. Tr. 146. So, to confine a prisoner in a low, damp, unwholesome room, not allowing him the common conveniences which the decencies of nature require, by which the habits of his constitution are so affected as to produce a distemper of which he dies; this also is felonious homicide. Stra. 884. Ld. Raym. 1578. For although the law invests gaolers with all necessary powers for the interest of the commonwealth, they are not to behave with the least degree of wanton cruelty to their prisoners. O. B. 1784. p. 1177. And these were deliberate acts of cruelty, and enormous violations of the trust the law reposeth in its ministers of justice. Foster, 322. So also, any one who assuming to take care of another, refuses the necessary subsistence, or by any other severity, though not of a nature to produce immediate death, as by putting the party in such a situation as may possibly be dangerous to life or health, if death actually and clearly ensues may appointed, in consequence of it, it is murder.-And this mode of killing is of the most aggravated kind, because a long time must unavoidably intervene before the death can happen, and also many opportunities of deliberation and reflection. O. B. 1784. p. 455. and Rex v. S. Self. O. B. Feb. Sess. 1776. So also, by the old common law, to bear false witness, and with express premeditation, by this means to take away the life of another, was held to be murder. Mirr. c. 1. s. 19. Brit. c. 5. Bract. 1. 3. c. 4. But it is said that this enormous crime can hardly be so considered at this day. 3 Inst. 48. The authority, however, for this opinion, in Foster, 131, is said by no means absolutely to warrant the conclusion. 4 Comm. 196. (3) Namely, the admiral or his deputy, and three or four more, (among whom two commonlaw judges are constantly appointed, who in effect try all the prisoners,) the indictment being first found by a grand jury of twelve men, and afterwards tried by another jury. This is now the only method of trying marine felonies in the court of admiralty; the judge of the admiralty still presiding therein, just as the lord mayor presides at the sessions in London. 4 Comm. 266. 3 Inst. 48, 49. 1 Hale, 426. B. Cor. 140, 141.143. S. P. C. 90. 6 H. 7. 10. Finch, 411. S.P.C. 182. appointed, in pursuance of the aforesaid statute of 33 Hen. 8. c. 23. + And for preventing any failure of justice, and for taking away all doubts touching the trial of murders in the following cases- -It is enacted by the 2 Geo. 2. c. 21. “ That where any person shall be feloniously stricken or poisoned upon the sea, "or at any place out of England, and shall die of the same. "stroke or poisoning within England;-or where any person "shall be feloniously stricken or poisoned at any place within England, and shall die of the same stroke or poisoning upon "the sea, or at any place out of England; an indictment thereof "found by the jurors of the county of England in which such "death, stroke, or poisoning shall happen respectively as afore"said, whether before the coroner upon the view of such dead body, or before the justices of the peace, or other justices or "commissioners who shall have authority to enquire of murders, "shall be as good and effectual in law as well against the principals and accessaries, as if such felonious stroke and death, or poisoning and death, and the offence of such accessaries, had "happened in the same county where such indictment shall be "found; and the justices of gaol delivery and oyer and terminer "in the same county, and also any superior court, in case such "indictment shall be removed, &c. shall and may proceed upon "the same in all points, as they might or ought to do in case "such stroke, poisoning, or death, &c. had happened in the same county where such indictment shall be found." Sect. 13. It is said by some, that the death of one who died in one county of the wound given in another, was not indictable at all at common law, because the offence was not complete in Indict. 13. 45. either county, and the jury could enquire only of what happened in their own county. But it hath been holden by others, that if the corpse were carried into the county where the stroke was given, the whole might be enquired of by a jury of the same county; and it is agreed, that an appeal might be brought in B. App. 3.80. either county, and the fact tried by a jury returned jointly from each and at this day, by force of 2 and 3 Edw. 6. c. 24. the whole is triable by a jury of the county where the death shall happen, on an indictment found, or appeal brought, in the same county. Ass. 9. 83. 85. 149. B. 2. c. 25. s. 39, 40. C. Car. 247. 498.533. Sect. 14. Also by force of 26 Hen. 8. c. 6. a murder in Wales may be enquired of in an adjoining English county. But appeals must still be brought in the proper county. Stra. 502. 553. 6 Mod. 1 Jon. 255. 1 Lev. 118. Latch. 12. 118. S Inst. 50. 8 Mod. 136. 146. Bract. 121. B. Cor. 91. As to THE THIRD POINT, viz. Who are such persons by killing of whom a man may commit murder. Sect. 15. It is agreed, that the malicious killing of any person, whatsoever nation or religion he be of, or of whatsoever crime attainted, is murder. Sect. 16. And it was anciently holden, that the causing of an abortion, by giving a potion to, or striking a woman big with child, was murder. But at this day it is said to be a great mis prision B. 2. c. 29. B. Cor. 68. prision only, and not murder, unless the child be born alive and (4) Vide 1 Hale, die thereof, in which case it seems clearly to be murder, notwith- 433. 23 Ass. 94. standing some opinions to the contrary (a). And in this respect also, the common law seems to be agreeable to the Mosaical, 3 Inst. 50. which as to this purpose is thus expressed: "If men strive and 3 Ass. 2. "hurt a woman with child, so that her fruit depart from her, and Dalt. c. 93. "yet no mischief follow, he shall be surely punished, according Exodus, c. xxi. "as the woman's husband will lay upon him, and he shall pay "as the judges determine; and if any mischief follow, then thou "shalt give life for life." v. 22, 23. 429. Sect. 17. It seems also agreed, that where one counsels a wo- Dyer. 186. man to kill her child when it shall be born, who afterwards does 1 Hale, 433. kill it in pursuance of such advice, he is an accessary to the mur- 3 Inst. 51. der. But in the case of the murder of bastard children by the Kely. 127. unnatural mother, it is difficult to prove that the child was born alive; and it was therefore enacted by 21 Jac. 1. c. 27. made perpetual by 16 Car. 1. c. 4. “That if any woman be delivered 4 Comm. 198. "of any issue of her body, male or female, which being born Barring. 425. "alive, should by the laws of this realm be a bastard, and she O. B. 1784. p. "endeavour privately, either by drowning or secret burying 1223. "thereof, or any other way, either by herself, or the procuring "of others, so to conceal the death thereof, as that it may not come to light whether it were born alive or not, but be con"cealed, except such mother can prove by one witness that such "child was born dead, she shall suffer death as in case of mur"der." This statute is repealed by stat. 43 Geo. 3. c. 58. s. 3. by which it is enacted, "That from the first day of July, 1803, the "trials in England and Ireland, respectively, of women charged "with the murder of any issue of their bodies, male or female, "which being born alive, would by law be bastard, shall pro"ceed and be governed by such and the like rules of evidence "and of presumption, as are by law used and allowed to take "place in respect to other trials for murder, and as if the said 66 I act had never been made." Section 4th provides, "It shall be lawful for the jury by "whose verdict any person charged with such murder as afore"said shall be acquitted, to find, in case it shall so appear in "evidence, that the prisoner was delivered of issue of her body, "male or female, which, if born alive, would have been bastard, " and that she did, by such burying or otherwise, endeavour to "conceal the birth thereof, and thereupon it shall be lawful for "the court before which such prisoner shall be tried, to adjudge "that such prisoner shall be committed to the common gaol or "house of correction for any time not exceeding two years." (4) As to THE FOURTH POINT, viz. What killing shall be adjudged of malice prepense or murder. Prin. P. L. 16. 1 Hale, 451 to Sect. 18. It is to be observed, that any formed design of doing Fost. 256, 257. mischief may be called malice; and therefore that not such kill- Kely, 130. ing only as proceeds from premeditated hatred or revenge against 454. the person killed, but also in many other cases, such as is accom (4) This statute does not make the concealment a substantive indictable offence, but merely authorizes the jury to find the fact upon an indictment panied for murder, so that it is still necessary to indict for the murder to warrant the jury to find the fact of concealment. |