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.

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. 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, 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 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 before-hand.

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

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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 shewed 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 conserve 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 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 transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the poisoner had no malicious intent, takes it, and it kills him; this is likewise murder. 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 the account of accident or selfpreservation; 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 alledged 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. The punishment of death was, however, afterwards allotted

by statute to all murderers without exception, and was accompanied with certain peculiar incidents and solemnities, which are however now abolished by Statute 6 & 7 W. IV. c. 30.

QUESTIONS.

How many kinds are there of homicide and what are they called? In what manner, and under what circumstances must a sentence of death be executed on a malefactor, in order to make such homicide "justifiable"?

What is the nature of that kind of homicide, which is committed for the advancement of public justice? State instances.

Which may be killed in attempting to commit their respective crimes, a burglar or a pickpocket? And on what does this distinction depend?

What was the Jewish law, the law of Athens, and the law of the Twelve Tables at Rome, with respect to the killing of a thief by the party injured?

What principle did Mr. Locke lay down in these cases, and is it consonant with the law of England?

How many kinds are there of excusable homicide?

How do you define the first of these? And cite the instances by which it is illustrated?

What kind of homicide is it that happens in the course of idle, dangerous or unlawful sports?

What is the consequence of homicide committed in self defence? What is the distinction between chance-medley, and manslaughter? How does the law regard duelling?

If two shipwrecked persons are on a plank which will hold but one, is either justified in pushing off the other, to save his own life? State the grounds for this opinion.

How does the law regard suicide?

If one should persuade another to commit suicide, how would the law regard his conduct?

How does the law punish suicide?

How do you define manslaughter?

Can there be accessories before the fact, in manslaughter? Why? Suppose in a sudden quarrel and fight, one person kills another what species of offence is this?

Suppose a man, violently and suddenly insulted and provoked were immediately to kill the aggressor, how would the law regard such an act?

How is manslaughter distinguished from excusable homicide se defendendo ?

Suppose an involuntary killing happens in consequence of an un. lawful act, when will it be murder, and when only manslaughter? How is manslaughter punished?

What was the punishment of wilful murder, under the Mosaic law? What did the word "murder " anciently import?

What is Sir Edward Coke's definition of murder?

Within what time after the stroke, or cause of death administered, must the party die, in order to make the killing murder?

What is the grand criterion distinguishing murder from all other killing?

How many kinds of malice are there?

How does this apply to duelling?

What are the instances given in the text, of implied malice ?
What does the law presume concerning homicide?

Who is to prove that a given case of homicide is not malicious?

INDICTMENT-GRAND JURY.

AN indictment is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be commanded them.

They are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority.

This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest sa tisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, “ignoramus; know nothing of it; intimating, that though the facts

or, we