another in a contention for the wall; or in the defence of his person from any unlawful arrest; or in the defence of his house from those, who, claiming a title to it, attempt forcibly to enter it, &c. or in the defence of his possession of a room in a public house, from those who attempt to turn him out of it, and thereupon draw their swords upon him; in which case the killing the assailant hath in some cases been holden justifiable; but it is certain that it can amount to no more than manslaughter. 1 Haw. (6 edit.) 125.

There can be no accessaries before the fact in manslaughter. 1 Hawk. 76.) But there may be accessaries after the fact. 3 Inst. 55. Upon an indictment of murder, the party offending may be acquitted of murder, and yet found guilty of manslaughter, as daily experience witnesseth, and they may not find him generally not guilty, if guilty of manslaughter. 1 H. H. 449.

The reader is particularly requested to peruse the case of Rex v. Oneby (2 Strange 766) where the distinction between murder and manslaughter is very accurately marked out and defined by chief justice Raymond, in delivering the opinion of all the judges in England.

A person found guilty of manslaughter on a slave is not now exempted from punishment, as formerly was the case. See acts of 1788, ch. 23.

Whenever any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, the attorney for the commonwealth, with leave of the court, may wave the felony, and proceed as for a misdemeanor; and may give in evidence any act of manslaughter; and the party, on conviction, shall be fined, or imprisoned, as in cases of misdemeanor; or he may charge both offences in the same indictment, in which case the jury may acquit the party of the one, and find him guilty of the other charge. 1 Rev. Code, p. 357, sect. 12.

A person convicted of voluntary manslaughter shall be imprisoned in the penitentiary for not less than two nor more than ten years; and be bound to his good behaviour for life, or less time, according to the nature of the offence; and for a second offence, he shall be imprisoned not less than six nor more than fourteen years. 1 Rev. Code, p. 357,

sect. 11.

But the penitentiary law not embracing the case of a slave, the punishment of such remains as before the passing of that act.

V. MURDER.

Is when a man of sound memory, and of the age of discretion, unlawfully killeth any person under the commonwealth's peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded or hurt die of the wound or hurt within a year and a day. 3 Inst. 47.

By malice expressed is meant a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorised. 1 H. H. 451.

And the evidences of such a malice must arise from external circumstances discovering that inward intention, as laying in wait, menacing antecedent, former grudges, deliberate compassings, and the

1

like; which are various according to variety of circumstances. 1 H. H. 451.

Malice implied is in several cases, as when one voluntarily kills another without any provocation; for in this case the law presumes it to be malicious, and that he is a public enemy of mankind.

455, 456.

\ H. H. Poisoning also implies malice, because it is an act of deliberation, 1 H. H. 455.

Also, when an officer is killed in the execution of his office, it is murder, and the law implies malice. 1 H. H. 457.

Also, where a prisoner dieth by duress of the jailor, the law implies malice, by reason of the cruelty. 3 Inst. 52.

And in general, any formed design of doing mischief may be called malice, and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as are accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. 2 Haw. 89. Strange 766.

For when the law makes use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense to which the modern sense of the word malice is apt to lead one, a principle of malevolence to particulars; for the law, by the term malice (malitia) in this instance meaneth that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked heart, regardless of social duty, and fatally bent upon mischief. Fost. 256, 7.

And wherever it appears that a man killeth another, it shall be intended prima facie that he did it maliciously, unless he can make out the contrary, by shewing that he did it on a sudden provocation, or the like. 1 Haw. 82.

Also, wherever a person in cool blood, by way of revenge, beats another in such a manner that he afterwards dies thereof, he is guilty of murder, however unwilling he might have been to have gone so far. 1 Haw. 83.

And it seems to be agreed, that no breach of a man's word or promise, no trespass either to lands or goods, no affront by bare words or gestures, however false or malicious it may be, and aggravated with the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby as immediately to attack the person who offends him, in such a manner as manifestly endangers his life, without giving him time to put himself upon his guard, if he kills him in pursuance of such an assault, whether the person slain did at all fight or not. 1 Haw. 82.

But if the person provoked beat the other, so as apparently not te design to kill him, or if he gives him time to be on his guard, it is manslaughter only. 1 Haw. (6 edit.) 125.

If a man by harsh and unkind usage put another into such a passion of grief or fear, that the party either die suddenly, or contract some disease whereof he dies, though this be murder or manslaughter in the sight of God, yet in a humane judicature it cannot come under the judgment of felony, because no external act of violence was offered, whereof the law can take notice. 1 H. H. 429.

If two fall out upon a sudden occasion, and agree to fight in such a field, and each of them go and fetch their weapon, and go into the field and therein fight, and the one killeth the other, this is no malice prepense; for the fetching the weapon, and going into the field, is but a continuance of the falling out, and the blood was never cooled. if there were deliberation, as that they meet the next day, nay, though it were the same day, if there were such a competent distance of time, that in common presumption they had time of deliberation, then it is murder. 3. Inst. 51. 1 H. H. 453.

But

If a physician or surgeon gives a person a potion, without any intent of doing him any bodily harm, but with intent to cure or prevent a disease, and, contrary to the physician or surgeon's expectation, it kills him, this is no homicide. And lord Hule says, he holds their opinion to be erroneous, who think that if he be no licensed surgeon or physician that occasioneth this mischance, that then it is felony. These opinions (he says) may caution ignorant people not to be too busy in this kind with tampering with physic, but are no safe rule for a judge or jury to go by. 1 H. H. 429.

But if a woman be with child, and any gives her a potion to destroy the child within her, and she take it, and it works so strongly that it kills her, this is murder; for it was not given her to cure her of a disease, but unlawfully to destroy the child within her; and therefore he that gives her a potion to this end must take the hazard, and if it kills the mother, it is murder. 1 H. H. 430.

Also, if a woman be quick with child, and by a potion, or otherwise, killeth it in her womb; or, if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, but no murder. But if the child be born alive, and dieth of the potion, battery, or other cause, this is murder. 3 Inst. 50.

Lord Hale says, that in this case it cannot legally be known, whether the child were killed or not; and that if the child die, after it is born and baptised, of the stroke given to the mother, yet it is not homicide. (1 H. H. 433.) And Mr. Dalton says, whether it die within her body, or shortly after her delivery, it maketh no difference. (Dalt. 332) But Mr. Hawkins says, that (in this latter case) it seems clearly to be murder, notwithstanding some opinions to the contrary. 1 Haw. 80. Also it seems agreed, that where one counsels a woman to kill her child when it shall be born, who afterwards doth kill it in pursuance of such advice, he is an accessary to the murder. Ibid.

Lord Hale says, if a man have a beast, as a buil, cow, horse, or dog, used to hurt people, and he hath notice thereof, and it doth any body hurt, he is chargeable with an action for it.

If he have no particular notice that it did any such thing before, yet, if it is feræ naturæ, as a lion, a bear, a wolf, yea an ape, or a monkey, if it get loose and do harm to any person, the owner is liable to an action for the damage.

If he have notice of the quality of any such his beast, and use all due diligence to keep him up, yet he breaks loose and kills a man, this is no felony in the owner, but the beast is a deodand.

But if he did not use that due diligence, but through negligence the beast goes abroad, after warning or notice of his condition, and kills a man, he thinks it is manslaughter in the owner.

But if he did purposely let him loose or wander abroad, with design to do mischief, nay, though it were with design only to fright people and make sport, and it kills a man, it is murder in the owner. 1 H. H. 431.

They that are present when any man is slain, and do not their best endeavour to apprehend the murderer or manslayer, shall be fined and imprisoned. 3 Inst. 53.

At the common law, and by the former statute of Virginia, there was no distinction in the degrees of murder: but the principal and the accessary before the fact, if guilty at all, was punishable by death, without benefit of clergy. See 2 Hale 344. 1 Rev. Code, p. 45, 46.

The forfeitures which accrued at the common law, on conviction or attainder of murder, are expressly abolished in Virginia. See 1 Rev. Code, p. 106, sect. 31.

Under the penitentiary system of Virginia, the two degrees of murder are thus defined:

"All murder which shall be perpetrated by means of poison, or by lying in wait, or by duress of imprisonment or confinement, or by starving, or by wilful, malicious, and excessive whipping, beating, or other cruel treatment or torture, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree. And all other kinds of murder shall be deemed murder of the second degree; and the jury shall ascertain in their verdict, whether it be murder in the first or second degree." 2 Rev. Code, p. 15.

"Every person convicted of murder of the first degree, his or her aiders, abettors and counsellors, shall suffer death, by hanging by the neck." 1 Rev. Code, p. 357, sect. 14.

Every person convicted of murder in the second degree shall be sentenced to confinement in the penitentiary, for a period not less than five nor more than eighteen years. 1 Rev. Code, p. 356, sect. 4.

VI. SELF MURDER.

A felo de se, or felon of himself, is a person, who, being of sound mind, and of the age of discretion, voluntarily killeth himself. 3 Inst. 54. 1 H. H. 411.

If a man give himself a wound, intending to be felo de se, and dieth not within the year and day after the wound, he is not felo de se. 3 Inst. 54.

Mr. Hawkins speaks with some warmth against an unaccountable notion (as he calls it) which hath prevailed of late, that every one who kills himself must be non compos of course; because it is said to be impossible, that a man in his senses should do a thing so contrary to nature, and all sense and reason. But he argues, that if this doctrine were allowable, it might be applied in excuse of many other crimes as well as this; as for instance, that of a mother murdering her child, which is also against nature and reason: and this consideration, instead of being the highest aggravation of a crime, would make it no crime at all for it is certain a person non compos mentis can be guilty of no crime. 1 Haw, 67.

And lord Hale says, it is not every melancholy or hypocondriaca! distemper that denominates a man non compos, for there are few who commit this offence, but are under such infirmities; but it must be such an alienation of mind, as renders a person to be a madman, or frantic, or destitute of the use of reason, which will denominate him non compos. 1 H. H. 412,

The offender herein doth incur a forfeiture of goods and chattels, but not of lands; for no man can forfeit his land, without an attainder by course of law. 3 Inst. 54.

Nor shall his goods be forfeited, until it be lawfully found by the oaths of twelve men, and this belongs to the coroner to inquire of, upon view of the body. And if the body cannot be viewed, the justices in sessions may inquire thereof; for they have power by their commissions to inquire of all felonies; and a presentment thereof found before them intitles the commonwealth to the forfeiture. 3 Inst. 54, 55. Dalt. c. 144. See CORONER.

But, nevertheless, the forfeiture shall relate to the time of the wound given, and not to the time of the death, or of the inquisition. 3 Inst. Dalt. c. 144. 1 Hale's Pl. 29. 1 Haw. 68.

55.

But lord Hale, in his history of the pleas of the crown, seemeth to doubt, whether it shall not relate to the time of the death only, and not to the time of the wound given. 1 1 H. H. 414.

Nor doth the offence work any corruption of blood or loss of dower. 1 Haw. 68.

The act of assembly which abolishes the forfeitures formerly accruing on the attainder or conviction of a person, is thought not to extend to the case of a felo de se. See 3 Inst. 54. 4 Tuck. Bl. 191.

VII. DUELLING.

By the common law, not only the principal, who killed his antagonist in a duel, but also his seconds, were deemed guilty of murder; and the seconds of the party slain were held to be guilty as accessaries. 1 Haw. 82.

But by act of the General Assembly of Virginia, of the twentysixth of January, 1810, after reciting that "experience had evinced that the existing remedy for the suppression of the barbarous custom of duelling was inadequate to the purpose, and the progress and consequences of the evil had become so destructive as to require an effort on the part of the legislature to arrest a vice, the result of ignorance and barbarism, justified neither by the precepts of morality nor by the dictates of reason;" it is declared (sect. 1.) that any person who shall heareafter, wilfully and maliciously, or by previous agreement, fight a duel or single combat with any engine, instrument or weapon, the probable consequence of which might be the death of either party, and in so doing shall kill his antagonist, or any other person or persons, or inflict such wound as that the person injured shall die thereof within three months thereafter, such offender, his aiders, abettors, and counsellors, on conviction, shall be deemed guilty of murder, and suffer death.

2. If any person shall challenge another to fight a duel, with any weapon, or in any manner whatsoever, the probable issue of which may