or Murther, the act of killing another with violence and injustice. The word comes from the Saxon morth "death;" which some will have to signify a violent death; whence the barbarous Latin murdurn and modurn.

Among the number of popular errors, is the notion which has obtained, that the dead body would bleed in the presence or upon the touch of the murderer.

The crime of murder is punished with death in almost all nations.

or Murther, in law, is thus defined, or rather described, by Sir Edward Coke: "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.

1. It must be committed by a person of sound memory and discretion: for lunatics or infants 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.

2. Next, it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without warrant or excuse; 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. The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. Of these the most detestable of all is poison; because it can of all others be the least prevented, either by manhood or forethought. And therefore, by the stat. 22 Hen. VIII. c. 9, 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death was inflicted on it than the common law allowed; namely, boiling to death: but this act did not live long, being repealed by 1 Edw.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, viz., bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed. The Gothic laws punished in this case both the judge, the witnesses, and the prosecutor; and, among the Romans, the lex Cornelia de sicariis, punished the false witness with death, as being guilty of a species of assassination. And there is no doubt but this is equally murder in force. Murder. conscientious as killing with a sword; though the modern law (to avoid the danger of deterring witneses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such. If a man, however, do 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 may be primarily intended: as was the case of the unnatural son who exposed his sick father to the air against his will, by reason whereof he died; and of the harlot, who laid her child under leaves in an orchard, where a kite struck and killed it. So too, if a man have a beast that is used to do mischief; and he, knowing it, suffers it to go abroad, and it kills a man; even this is manslaughter in the owner; but if he have purposely turned it loose, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder as if he had incited a bear or dog to worry them. If a physician or surgeon give his patient a potion or plaster to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance; but it hath been holden, that if it be not a regular physician or surgeon who administers the medicine, or performs the operation, it is manslaughter at the least. Yet Sir Matthew Hale very justly questions the law of this determination; since physicians and surgeons were in use before licensed physicians and surgeons: wherefore he treats this doctrine as apocryphal, and fitted only to gratify and flatter licentiates and doctors in physic; though it may be of use to make people cautious and wary how they meddle too much in so dangerous an employment. In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which the whole day upon which the hurt was done shall be reckoned the first.

3. Farther: The person killed must be "a reasonable creature in being, and under the king's peace," at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace or protection, is as much murder as to kill the most regular-born Englishman; except he be an alien-enemy, in the time of war. To kill a child in its mother's womb, is now no murder, but a great misprision; but if the child be born alive, and die by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them. As to the murder of bastard children, see Bastard.

4. Lastly, The killing must be committed "with malice aforethought," to make it the crime of murder. This is the grand criterion which now distinguishes murder from other killing: and this malice prepense, malitia praecognita, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart; un disposition à faire une mal choise: and it may be either express, or implied, in law. Express malice is when one, with a fedated deliberate mind and formed design, doth kill another, which formed de-

Vol. XIV. Part II. Murder. 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. In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his affiants endeavouring to convey the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder. And if one intends to do another felony, and undignifiedly 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. The same is the case, where one lays poison for A, and B, against whom the prisoner had no malicious intent, takes it, and it kills him, this is likewise murder. So also, if one give a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it. It were endless to go through all the cases of homicide, which have been adjudged, either expressly or impliedly, malicious; these therefore may suffice as 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 a principle of accident or self-preservation; 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 take away or mitigate the guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence.

The punishment of murder, and that of manslaughter, were formerly one and the same; both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime. But now, by several statutes, the benefit of clergy is taken away from murderers, through malice prepense, their abettors, procurers, and counsellors. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the fact was committed; but this was no part of the legal judgement; and the like is still sometimes practised in the case of notorious thieves. This, being quite contrary to the express command of the Mosaic law, seems to have been borrowed from the civil law; which, besides the terror of the example, gives also another reason for this practice, viz., that it is a comfortable sight to the relations and friends of the deceased. But now, in England, it is enacted by statute 25 Geo. II. c. 37. that the judges, before whom any person is found guilty of wilful murder, shall pronounce sentence immediately after conviction, unless he sees cause to postpone it; and shall in passing sentence direct him to be executed on the next day but one (unless the same shall be Sunday, and then on the Monday following), and that his body be delivered to the surgeons to be dissected and anatomized; and that the judge may direct his body to be afterwards hung in chains, but in nowise to be buried without dissection. And, during the short but awful interval between sentence and execution, the prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to reprieve the execution, and relax the other restraints of this act. See farther, Parricide, and Pater Traepon.