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. 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 the other any personal mischief. And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, or in its consequences 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.

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 ́s punished as murder, the benefit of clergy being aken away from it by statute; namely, the offence of mortally stabbing another, though done upon sudden provocation.

2. Deliberate and wilful murder; a crime at vhich human nature starts, and which is I believe unished almost universally throughout the world with death.

Murder is thus defined, or rather described, by ir Edward Coke; "when a person of sound meory and discretion, unlawfully killeth any reasonble creature, in being, and under the king's peace, ith malice aforethought, either express or imlied." The best way of examining the nature of his crime will be by considering the several ranches of this definition.

First, it must be committed by a person of sound emory and discretion: for lunatics or infants, as as formerly observed, are incapable of commiting any crime: unless in such cases where hey shew a consciousness of doing wrong, and f course a discretion, or discernment between good and evil.

Next, it happens when a person of such sound liscretion 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

H H

ail. s my 1 get mistemeanor, though formerly I as lea uk murier. The killing may be by soming, sring, sarving, drowning, and a Das her irns of death, by which human Dure may be overcome. And if a person be ricer or me species of kling, as by poisoning,

cant viced by evidence of a totally fferent gecies of fer, as by shooting with a asan ir turing. But where they only differ in zrennsanet. If a mud be alleged to be given Win a Sword, uni it proves to have arisen from a saf, u s. ra hutchet, this difference is im

E a man does such an act, of which NE MWADHE Zinsequence may be, and eventually sje: such king may be murder, although

srose le suck by himself, and no killing may be primary intended: as was the case of the annacirai sen, who exposed his sick father to the air, einst his will, by reason whereof he died; of die harive who laid her child under leaves in an orchard, where a kite struck it and killed it; and of the parish-officers, who shifted a child from parish to parish, till it died for want of care and sustenance. So too, if a man hath 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 had 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 mur der, as if he had incited a bear or dog to worry them.

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 time of war.

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 præcogitata, 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 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: and therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also. 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. Neither shall he be guilty of a less crime, who kills another in consequence of such a wilful act as shews 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 malitia præcogitata, 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 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 transferred 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 gives 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