2 0! H O M I 
lea, or at any place out of England, and fiia.ll die of the 
lame in England; or where any perfon lhall be felonioully 
lhicken or poifoned within England, and (hail die of fuch 
ftroke or poilbniag upon the lea, or out of England ; an 
indictment thereof found by jurors of the county of Eng¬ 
land, in which fuch dpath-ftroke or poifoning lhall hap¬ 
pen, whether it he round before any coroner upon view 
of fuch dead body, or before juftices of peace, or other 
juftices who fliall have authority to inquire of murders, 
/ball be as effectual, as well againft: the principals as the 
accefiories, as if fuch Itroke or poifoning-and death, and 
the offence of fuch accelfories, had happened in the fame 
county; and every fuch offender fliall have the like de¬ 
fences (except challenges for the hundred) as if fuch 
ftroke or poifoning and death, and the like offence of 
lu.ch accefl’ories, had happened in the ikine county where 
fuch indictment fliall be found. 
To kill a child in its mother’s womb, is now decided 
to be no murder, but a great mifprifion : (fee the article 
Abortion, vol. i. p. 25.) but if the child be born alive, 
and dieth by reafon of the potion or bruifes it received 
?n the womb, it teems the received opinion to be murder 
in fuch as administered or gave them, z Injl. 50. 1 Hawk. 
P. C.c. 31. It is alfo agreed, that where one counfels a 
woman to kill her child when it fhall be born, who after¬ 
wards kills it in purfuance of fuch advice, he is an accef- 
fory to the murder. Dyer, 186, 3 Injl. 51. But, as there is 
one cafe where it is difficult to prove the child’s being- 
born alive, namely, in the cafe of the murder of baftard 
children by the unnatural mother, it is enabled by flat. 21 
Jac. I. c. 27, “that if a woman be delivered of a child, 
which, if born alive, lhould by law be a baftard; and en¬ 
deavours privately to conceal its death, by burying the 
child or the like ; the mother fo offending, fhall fuft'er 
death as in the cafe of murder, unlefs fhe can prove by 
one vvitnefs at leal! that the child was actually born dead.” 
See the article Bastard, vol. ii. p. 78+. 
The killing mult.be committed with malice afore¬ 
thought, to make it the crime of murder. This is the 
grand criterion which now diftinguifhes murder from 
other killing ; and this malice prepenfe, malicia pracogi- 
tata, is not fo properly l'pite or malevolence to the de- 
ceafed in particular, as any evil deiign in general; the 
dictate of a wicked, depraved, and malignant, heart; Fojl. 
256 : un difpojition a. faire un male chafe ; 2 Kol. Rep. 461. 
and it may be either expvef's, or implied in law. Ex- 
prefs, when one with a deliberate mind, and formed de- 
ftgn, doth kill another; which formed defign is evidenced 
by external circumftances, difeovering that inward in¬ 
tention ; as lying in wait, antecedent menaces, former 
grudges, and concerted fchemes to do him fome bodily 
harm. 1 Hal. P. C. 451. This takes in the cafe 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 thoi'e of their fellow-creatures^ without any war¬ 
ranty, either divine or human, but in direct contradic¬ 
tion to the laws both of God and man ; and therefore the 
law has juftly fixed the crime and punifhment of murder 
on them, and their feconds alfo. 1 Hawk. P. C. c. 31. 
From hence it clearly follows, that if t-wo perfons quar¬ 
rel over night, and appoint to fight the next day, or quar¬ 
rel in the morning, and 'agree to fight in the afternoon, 
or fuch a confiderable time after, by which, in common 
intendment, it muft be prefumed that the blood was 
cooled, and then they meet and fight, and one kill the 
other, he is guilty of murder. And the law fo far ab¬ 
hors all duelling in cold blood, that not only the princi- 
.pal who actually kills the other, but alfo his feconds, are 
guilty of murder, whether they fought or not. 1 Hawk. 
P. C. c. 31. Dalt. c. 93. 
Any formed defign of doing mifehief may be called 
.malice; and therefore not only fuch killing as proceeds 
from premeditated hatred or revenge againft the perfon 
killed, but alfo in many other cales, fuch as is accompa- 
C ID E. 
nied with thofe circumftances that {bow the heart to be 
perverfely wicked, is adjudged to be of malice prepenfe or 
aforethought, and coufequently murder. Thus, if up.on 
a fudden provocation one beats another in an unmerciful 
and favage manner, fo tha-t he dies, though he could not 
intend his death, yet he is guilty of murder by exprels 
malice ; that is, by an exprefs evil deiign, the genuine fenfe 
of malitia. As when a park-keeper tied a boy, that was 
Healing wood, to a horfe’s tail, and dragged him along 
the park ; when a mafter corrected his fervant with an 
iron bar; and a fchoolmafter ftampea on his fcholar’s 
belly ; fo that each of the fufferers died ; tbefe were juftly 
held to be murders, becaufe the correction being exceffive, 
and fuch as could not proceed but from a bad heart, it 
was equivalent to a deliberate act of /laughter. 1 Hal. 
P ' C : +S4 " 
If one kills, an officer of juftice, either civil or criminal, 
in the execution of his duty, or. any of his afiiftants en¬ 
deavouring to conferve the peace, or any private perfon 
endeavouring to fupprefs an affray; or apprehend a felon, 
knowing his authority, or the intention with which he i:i- 
terpofes ; the law will imply malice ; and the killer fhall 
be guilty of murder. Fojl. 308. And if one intends to do 
another felony, and undefignedly kill a man, this is alfo 
murder. 1 Hal. P.C. 465. Thus if one.fhoots at A, and 
mifles him, but kills B. this is murder; becaufe of the 
previous felonious intent, which the law transfers from 
one to the other. The fame is the cafe where one lays 
poifon for A ; and B, againft whom the prifoner had no 
malicious intent, takes it, and it kills him ; this is like- 
wile murder. 1 Hal. P.C. 466. So alfo if one gives a wo¬ 
man with child a medicine to procure abortion, and it 
operates fo violently as to kill the woman, this is murder 
in the perfon who gave it. 1 Hal. P. C. 429. 
If two having malice fight, and the fervant of one of 
them, not knowing of the malice, killeth the other, this 
is murder in the mafter, and manllaughter in the fervant; 
though if there be a confpiracy to kill a man, but no ma¬ 
lice againft his fervant; if the fervant be {lain, the malice 
againft the mafter fliall be conftrued to extend to his fer¬ 
vant ; and the killing the fervant is murder. Dyer 128. 
The punifnment of murder, in atrocious cafes, was for 
the murderer to be immediately hung upon agibbet in chains 
near the place where the fact was committed; but this was 
no part of the legal judgment; it was therefore enadled, 
by flat. 25 Geo. II. c. 37, that the judge before whom any 
perfon is found guilty of wilful murder, fhall pronounce 
fentence immediately after conviftion, unlefs he fees caufe 
to poftpone it; and fhall in pafiing fentence diredl him to 
be executed on the next day but one (unlefs the fame 
fliall be Sunday, and then on the Monday following), and 
that his body be delivered to the furgeons to be diifedted 
and anatomized ; and that the judge may afterwards direft 
his body to be hung in chains: but in no wife to be buried. 
without dilfecrion. And during the fhort but awful in¬ 
terval between fentence and execution, the prifoner fhall 
be kept alone, and fuftaified only with bread and water. 
But a power is allowed to the judge, upon good and fuf- 
ficient caufe, to refpite the execution, and refax the other 
reftraints of the act. At a meeting of the judges to con- 
fider of this aft, there was fome doubt whether hanging 
in chains might ever be made part of the fentence; but 
on debate it was agreed by nine judges, that in all caf^s 
within the aft, the judgment for diflefting and anatomiz¬ 
ing only fhould be part of the fentence, and if it (hould 
be thought advifeable, the judge might afterwards diredl: 
the hanging in chains by fpecial order to the fheriffs, pur- 
fuant to the power given by the aft.' 
By the Roman law, parricide, or the murder of one’s 
parents or children, waspunifhed in a much feverer man¬ 
ner than any other kind of homicide. But fhe Englifh 
laws treat it no otherwife than as firnple murder, unlefs the 
child was alfo the fervant of his parent. But, though the 
breach of natural relation is unobferved, yet the breach 
of civil or eccleliaftical conneftions, when coupled with 
1 inurdcr 9 
