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 (h) (52). And if one intends to do another felony, and undesignedly kills a man, this is [*201] also murder (i). 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 (j). 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 (k). 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 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 (53). 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 ho (h) 1 Hal. P. C.457. Foster, 308, &c. (i) 1 Hal. P. C. 465. (j) Ibid. 466. twice with a cudgel, in order to renew the engagement, immediately dropped his own cudgel, and stabbed the deceased to the heart: the offence, from the many circumstances of deliberate malice and deep revenge, was clearly held to be murder; Mason's case, 1 East, P. C. 239. (52) It is murder to kill a constable, though he has no warrant, and does not witness the felony committed, but takes the party upon a charge only; and that, even though the charge be in itself defective to constitute a felony ; Rex v. Ford, R. & R. C. C. 329. (53) See the notes, ante, 180 to 190. the punishment of murder and manslaughter formerly the same, but now different; [*202] micide is presumed to be malicious, until the contrary appeareth upon evidence (1) (54). 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 (m). But now, by several statutes (n), 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 mosaical law (o), 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 (p). But now in England, it is enacted by sta (1) Fost. 255. (m) 1 Hal. P. C. 450. (n) 23 Hen. VIII. c. 1; 1 Edw. VI. c. 12; 4 & 5 Ph. & M. c. 4. (0) "The body of a malefactor shall not remain all night upon the tree; but thou shalt in anywise bury him that day, that the land be not defiled." Deut. xxi. 23. (p) "Famosus latrones, in his locis, ubi grassati sunt, furca figendos placuit; ut, et conspectu deterreantur alii, et solatio sit cognatis interemptorum, (54) Francis Smith was indicted for murder at the Old Bailey, January 13th, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun with intent to apprehend the person who personated the ghost; he met the deceased, who was dressed in white, and immediately discharged his gun, and killed him. Chief Baron Macdonald, Mr. J. Rooke, and Mr. J. Lawrence, were unanimously of opinion that the facts amounted to the tute 25 Geo. II. c. 37, that the judge, before whom any person is found guilty of wilful murder, shall pronounce sentence immediately after conviction, unless he sees 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 (q); and that the judge may direct his body to be afterwards hung in chains, but in nowise 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 respite the execution, and to relax the other restraints of this act (55). (q) Fost. 107. Sentence of death was pronounced, but the prisoner was reprieved.—CH. (55) The 25 Geo. II. c. 37, is repealed by the 9 Geo. IV. c. 31, with the exception of two sections, 9 & 10; the former of which enacts, that if any person shall by force set at liberty or rescue, or attempt to rescue or set at liberty, any person out of prison, who shall be committed for, or found guilty of murder; or rescue, or attempt to rescue, any person convicted of murder, going to execution, or during execution; every person so offending shall be deemed guilty of felony, and shall suffer death; and the latter, that if any person shall, after such execution had, by force rescue, or attempt to rescue, the body of such offender out of the custody of the sheriff or his officers, or from the company of surgeons, or their officers, or servants, or from the house of any surgeon where the same shall have been deposited; every person so offending shall be deemed guilty of felony, and shall be liable to be transported for the term of seven years. The 9 Geo. IV. c. 31, 3, enacts, that every person convicted of murder, or of being an accessary before the fact to murder, shall suffer death as a felon; and every accessary after the fact to murder, shall be liable, at the discretion of the court, to be transported for life, or to be imprisoned, with or without hard labour, for any term not exeeding four years. Section 4 enacts, that every person convicted of murder shall be executed according to law on the day next but one after that on which the sentence shall be passed, unless the same shall happen to be Sunday, and in that case on the Monday following; and the body of every murderer shall, after execution, either be dissected or hung in chains, as to the court shall seem meet; and sentence shall be pronounced immediately after the conviction of every murderer, unless the court shall see reasonable cause for postponing the same; and such sentence shall express not only the usual judgment of death, but also the time hereby appointed for the execution thereof, and that the body of the offender shall be dissected or hung in chains, whichsoever of the two the court shall order: provided, that after such sentence shall have been pronounced, it shall be lawful for the court parricide, by the English law, a By the Roman law, parricide, or the murder of one's parents or children, was punished in a much severer manner or judge to stay the execution thereof, if such court or judge shall so think fit. Sect. 5 enacts, that whenever dissection shall be ordered by such sentence, the body of the murderer, if executed in Middlesex or London, shall be immediately conveyed by the sheriff or his officers to the Hall of the Surgeons' Company, or to such other place as the said company shall appoint, and shall be delivered to such person as the said company shall appoint, for the purpose of being dissected; and the body of the murderer, if executed elsewhere, shall in like manner be delivered to such surgeon as the court or judge shall direct, for the same purpose. And now by statute 2 & 3 W. IV. c. 75, § 16, reciting 9 G. IV. c. 31, it is enacted, that so much of the said recited Act as authorises the court, if it shall see fit, to direct that the body of a person convicted of murder shall, after execution, be dissected, be repealed, and that in every case of conviction of any prisoner for murder, the court before whom such prisoner shall have been tried shall direct such prisoner either to be hung in chains, or to be buried within the precincts of the prison in which such prisoner shall have been confined after conviction, as to such court shall seem meet, and that the sentence to be pronounced by the court shall express that the body of such prisoner shall be hung in chains, or buried within the precincts of the prison, whichever of the two the court shall order. By 9 G. IV. c. 31, § 6, every person convicted of murder shall, after judgment, be confined in some safe place within the prison, apart from all other prisoners, and shall be fed with bread and water only, and with no other food or liquor, except in case of receiving the sacrament, or in case of any sickness or wound, in which case the sur geon of the prison may order other necessaries to be administered; and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict, without the permission in writing of the court or judge before whom such convict shall have been tried, or of the sheriff or his deputy: provided, that in case the court or judge shall think fit to respite the execution of such convict, such court or judge may, by a licence in writing, relax, during the period of the respite, all or any of the restraints or regulations hereinbefore directed to be observed. As to rescue generally, see ante, 131, 2, both in text and notes. As to accessaries generally, both before and after the fact, see ante, 34 to 40, both in text and notes. As to accessaries in murder, see 1 Russell, 431. If a person charged as principal is acquitted, a conviction of another, charged in the indictment as being present, aiding and abetting, is good; Id. Whether the award of dissection was an essential part of the sentence to be pronounced by the judge upon a convicted murderer, seems to have been considered doubtful; but the omission of it was held to be curable by the judge going again into court after adjournment, and passing a fresh sentence; Rex v. Fletcher, R. & R. C. C. 60. It is not essential to award the day of execution in the sentence, the statute in that respect being merely directory; and if a wrong day is awarded, it will not vitiate the sentence, if the mistake is discovered and set right during the assizes: and notwithstanding the statute, the judge may, if he sees fit, order a person convicted of murder to be executed immediately, or at any time within forty-eight hours after conviction, as in any other capital felony; Rex v. Wyatt, Id. 230. And unless the child parent; than any other kind of homicide. After being scourged, the simple murder, delinquents were sewed up in a leathern sack, with a live dog, be servant to the a cock, a viper, and an ape, and so cast into the sea (r). Solon, it is true, in his laws, made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity (s). And the Persians, according to Herodotus, entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards. And, upon some such reason as this, we must account for *the [*203] omission of an exemplary punishment for this crime in our English laws; which treat it no otherwise than as simple murder, unless the child was also the servant of his parent (†). aggravated de For, though the breach of natural relation is unobserved, petit treason an yet the breach of civil or ecclesiastical connections, when gree of murder; coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason: which however is nothing else but an aggravated degree of murder (u); although on account of the violation of private allegiance, it is stigmatized as an inferior species of treason (v). And thus, in the ancient Gothic constitution, we find the breach both of natural and civil relations, ranked in the same class with crimes against the state and the sovereign (w). by two wit Petit treason, according to the statute 25 Edw. III. c. 2, must be proved may happen three ways: by a servant killing his master, a nesses. wife her husband, or an ecclesiastical person, either secular or regular, his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a (r) Ff. 48, 9, 9. (s) Cic. pro. S. Roscio, § 25. (t) 1 Hal. P. C. 380. (u) Foster, 107, 324, 336. (v) See page 75. (w) "Omnium gravissima censetur vis facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores (et vice versa,) servis in dominos, aut etiam ab homine in semet ipsum." see Atkinson v. Rex (in error), 3 Bro. P. C. 517. A peer convicted of murder ought to receive judgment according to the provisions of the statute; Earl Ferrers' case, Fost. 138. As to Stiernh. de jure Goth. 1. 3, c. 3.- the admissibility in evidence, in cases of |