or MURTHE, the act of killing another with violence and injustice. The word comes from the Saxon morth, "death;" which form will have to signify a violent death; whence the barbarous Latin murdrum and modrum.

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.

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death was inflicted on it than the common law allowed; namely, boiling to death: but this act did not live long, being repealed by 1 Edw.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 witnessees, and the prosecutor; and, among the Romans, the lex Cornelia de sicariis, punished the false witnesse with death, as being guilty of a species of assassination. And there is no doubt but this is equally murder in foro conscientiae. conscientious as killing with a sword; though the modern law (to avoid the danger of deterring witnesses 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 platter 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 physic and salves 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 dieth 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 prescience, multitia praecogitata, is not to 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 chose: and it may be either express, or implied, in law. Express malice is when one, with a sedate deliberate mind and formed design, doth kill another, which formed de-

sign is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: 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. Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom, till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of him who has given the insult. 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; i.e. by an express evil design, the genuine sense of multitia: 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. Neither shall he be guilty of a less crime who kills another in consequence of such a wilful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief, upon a horse used to strike, or coolly discharging a gun among a multitude of people. 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 king's 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 multitia praecogitata, or evil intended beforehand.

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. 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 only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another. But if the person so provoked had unfortunately killed the other, by beating him in such a manner as showed 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 assistants endeavouring to preserve 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 unexpectedly 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 man-slaughter, 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 judgment; 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 fees 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 no wise 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 Petit Treson.