Of all species of deaths, the most detestable is that of poison; because it can of all others be the least prevented either by manhood or forethought (f). And therefore, by the statute 22 Hen. III. 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was inflicted on it than the common law allowed; namely, boiling to death (34): but this act did not live long, being repealed by Edw. VI. c. 12 (35). 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,

(ƒ) 3 Inst. 48.

for many ages past (g): I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed (h). The Gothic laws punished in this case, both the judge, the witnesses and the prosecutor: "peculiari poená judicem puniunt; peculiari testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam (i) (36)." And, among the Romans, the lex Cornelia de sicariis, punished the false witness with death, as being guilty of a species of assassination (k). And there is no doubt but this is equally murder in foro conscien[*197] tiæ 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 (37). If a man, however, does such an act, of which the probable conse

(g) Fost. 132. In the case of Macdaniel and Berry, reported by Sir Michael Foster, though the then attorney general declined to argue this point of law, I have good grounds to believe it was not from any apprehension of his that the point was not maintainable,

but from other prudential reasons.
Nothing therefore should be concluded
from the waving of that prosecution.
(h) Mirror, c. 1, § 9; Brit. c. 52.
Bracton, 1. 3. c. 4.

(i) Stiern. de jure Goth. 1. 3, c. 3.
(k) Ff. 48, 8, 1.

(36) They visit the judge with one punishment; the witnesses, whose testimony seduced the judge, with another; and the author, as a homicide, with another and heavier punishment.

(37) The guilt of him, who takes away the life of an innocent man by a false oath, is much more atrocious than that of an assassin, who murders by poison or a dagger. He, who destroys by perjury, adds to the privation of life public ignominy, the most excruciating of tortures to an honourable mind, and reduces an innocent family to ruin and infamy; but notwithstanding this is the most horrid of all crimes,

But it is stated as the result of that case, to have been held that a person cannot be indicted for murder in procuring another to be executed by

yet there is no modern authority to induce us to think that it is murder by the law of England. Lord Coke says expressly "it is not holden for murder at this day;" 3 Inst. 48; see also Fost. 132. Such a distinction in perjury would be more dangerous to society and more repugnant to principles of sound policy, than in this instance the apparent want of severity in the law. Few honest witnesses would venture to give evidence against a prisoner tried for his life, if thereby they made themselves liable to be prosecuted as murderers.-CH.

falsely charging him with a crime of
which he was innocent; I Leach, 44
1 East, P. C. 333.

HOMICIDE.

quence 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 (); of the harlot, who laid her child under leaves in an orchard, where a kite struck. it and killed it (m); and of the parish officers, who shifted a child from parish to parish, who died from want of care and sustenance (n) (38) (39). 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 murder, as if he had incited a bear or dog to worry them (o) (40). If a physician

(1) 1 Hawk. P. C. 78. (m) 1 Hal. P. C. 432.

(38) Or if a master refuses his apprentice necessary food or sustenance, or treats him with such continued harshness and severity as his death is occasioned thereby, the law will imply malice, and the offence will be murder; Leach, 127.-CH.

(39) So, in a recent case, a man was convicted of murder in causing the death of his apprentice, by not providing him with sufficient food and nourishment, without reference to other acts of cruelty committed by the prisoner towards the deceased; Rex v. Squire, 1 Russell, 246. So it is clearly an indictable, though a subordinate offence, to refuse or neglect to supply necessaries to a child, servant, or apprentice, whom a person is bound by duty or contract to provide for, if such child, &c. be of tender years, and unable to provide for itself; Rex v. Friend, R. & R. C. C. 20. So, likewise, with respect to a servant; Rex v. Ridley, 2 Camp. 650. An overseer is not indictable for not relieving a pauper, unless there be an order for his relief, except in case of immediate urgency, where there is not time to get an order; Rex v. Meredith, id. 46.

(n) Palm. 545.

(0) Ibid. 431.

But on an indictment charging that the
overseer had under his care a poor per-
son, and neglected or refused to pro-
vide him with necessary food, &c. for
want of which he died, the overseer
was convicted; Rex v. Booth, id 47, n.
And in Rex v. Warren, id. 48, n.
which was an indictment against an
overseer for neglecting to supply medi-
cal assistance to a pauper dangerously
ill, the offence was held to be suffi
ciently made out, though it was neither
charged nor proved that the person
was in the workhouse, nor had, before
his illness, received or needed parish
relief. There is no legal obligation
on one brother to maintain another, so
as to make the omission indictable;
Rex v. Smith, 2 C. & P. 449. If one
has his idiot brother, who is helpless,
as an inmate in his house, and omits to
supply him with proper food, warmth,
&c.; semble, that he is not indictable
for the omission; Id. ibid. And held
that evidence of this will not support
an indictment for assault or imprison-
ment; Id. ibid.

(40) See 2 Hawk. P. C. c. 13. § 8;
Blackman v. Simmons, 2 C. & P. 140;
ante 183, note (11).

197

and the person killed must be

"a reasonable

creature, in

or surgeon gives his patient a potion or plaister to cure him,
which, contrary to expectation, kills him, this is neither mur-
der nor manslaughter, but misadventure; and he shall not
be punished criminally, however liable he might formerly
have been in a civil action for neglect or ignorance (p):
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 (q) (41). Yet Sir
Matthew Hale very justly questions the law of this determi-
nation (r). In order also to make the killing murder, it is re-
quisite that the party die within a year and a day after the
stroke received, or cause of death administered; in the com-
putation of which, the whole day upon which the hurt was
done shall be reckoned the first (s).
¿Further ; the

ture, in being,

being, and in the the *killing.

king's peace."

[198]

person killed must be "a reasonable creaand under the king's peace," at the time of Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace and protection, is as much murder as to kill the most regular-born Englishman; except he be an alien enemy in time of war (t). To kill a child in its mother's womb, is now no murder, but a great misprision (42); 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 (u) (43). But, as there is one case where

(p) Mirr. c. 4, § 16. See Vol. III.
page 122.

(q) Britt. c. 5; 4 Inst. 251.
(r) 1 Hal. P. C. 430.

(s) 1 Hawk. P. C. 79.

(t) 3 Inst. 50; 1 Hal. P. C. 433. (u) 3 Inst. 50; 1 Hawk. P. C. 80. But see 1 Hal. P. C. 433.

(41) Such persons are clearly still liable to a civil action, where gross negligence or ignorance can be proved; Slater v. Baker, 2 Wills. 359; Seare v. Prentice, 8 East, 348; and it would also be a good defence to an action by an apothecary on his bill, that he had treated his patient ignorantly or improperly; Kannea v. M'Mullen, Peake 59. And where a person, undertaking the cure of a disease, (whether he has received a medical education, or not,) is guilty of gross negligence in attending his patient after he has applied a remedy, or of gross rashness in

the application of it, and death ensues in consequence of either, he is guilty of manslaughter; Rexv. St. John Long, 4 C. & P. 423. And see other cases, S. P. 1 Har. Dig. 740, 741.

(42) Where an unskilful practitioner wounded the head of a child before the child was perfectly born, and the child was afterwards born alive, but subsequently died of this injury, it was held manslaughter, although the child was in its mother's womb at the time when the wound was given; Rer v. Senior, M. C. C. 344; and see note (44) post.

(43) To justify a conviction on an

it is difficult to prove the child's being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I. c. 27, that if any woman be delivered of a child which if born alive should by law be a bastard; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law which savours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French (v): but I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption, that the child whose death is concealed, was therefore killed by its parent, is admitted to convict the prisoner (44). (v) See Barrington on the Statutes, 425.

indictment charging a woman with the wilful murder of a child "of which she was delivered, and which was born alive," the jury must be satisfied affirmatively that the whole body was brought alive into the world; it is not sufficient that the child had breathed in the progress of the birth; Rer v. Poulton, 5 C. & P. 329.

If a child has breathed before it is born, this is not sufficiently life to make the killing of the child murder. There must be an independent circulation in the child, or the child cannot be considered as alive for this purpose; Rex v. Enoch, 5 C. & P. 539.

A child must be actually wholly in the world, in a living state, to be the subject of a charge of murder; but if it is wholly born, and is alive, it is not essential that it should have breathed; Rex v. Brain, 6 C. & P. 349; and see the next note.

(44) The 21 J. I. c. 27, was re

pealed by the 43 G. III. c. 58, which has also recently been repealed, and the law upon this subject is now as follows: by 9 Geo. IV. c. 31, § 13, if any person with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon; and if any person with intent to procure the miscarriage of any woman not be ing, or not being proved to be, then quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any medicine or other thing, or shall use any instrument or other means whatever with the