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CHAP. XI.

Of Homicide.

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The last division of public wrongs is into such crimes

HE and misdemeanors as more peculiarly affect and injure individuals or private subjects, whether in their persons, their habitations, or their property.

To the head of justifiable homicide, may be referred § 1. the clauses of several statutes which have been already Killing persons stated in the preceding pages (617. 9. 630. 823. 8.) of murde36

altemp?rg to this book. And the 24 Hen. 8. c. 5.

Eng. declares or &c. justifiable. enacts, that if any person be indicted or appealed for the Hen. 8. c. 5.

Eng death of any evil disposed person attempting feloniously to murder or rob any person in or nigh any common highway, cart-way, horse-way, or foot-way, or in his mansion, messuage, or dwelling-place, or feloniously or burglarily to break any dwelling-house or mansion-house [*in the night time,) and the same by verdict be found, he shall not forfeit any lands, tenements, goods, or chat*tels, for the death of such person so slain, but shall be thereof fully acquitted, as if lawfully acquitted of the death of such person. The 15 Car. 1. c. 9. Ir. is the 15 Car. 1. c. 9. corresponding statute in Ireland. And the 28 Hen. 6. c. 3. Ir. also enacts, that it shall be lawful for every liege man of the king, to kill all notorious thieves, and thieves found robbing and spoiling, or breaking houses, by night or by day, and thieves found with the manner, and to take them without impeachment by the king, his justices, officers, or ministers, for such manslaughter or taking. And every man that kills or takes such thieves, shall have one penny of every plough, and one farthing ling or taking

Reward for kila of every cottage within the barony where the manslaugh- thieves. ter is done, for every thief. And the town where the said VOL. II.

manslaughter

Ir.
28 Hen. 6. c. 3,
Ir.

.

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* The preamble to the 15 Car. 1. c. 9. Ir. adds, “or in the day time.”

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§ 2.

manslaughter is done, and other four towns next to the said town, which were before charged with the escapes for such manslaughter, shall be quit of said escapes, without impeachment in any court, or payment to any officer. And the sheriff of the county shall have power to levy the money aforesaid within a month after the manslaugliter, and shall deliver it to him that made the said homicide: And if the sheriff be negligent in levying the money as aforesaid, be shall pay it to the party.

II. The benefit of clergy is taken away from one Manslaugh'er species of manslaughter (or homicide without malice, when a capital felony.

by the 1 Jac. 1. c. 8. Eng. which enacts, that every 1 Jac. 1.c. 3. person which shall stab or thrust any person that hath 5. 1 & 2. Erg

not then any weapon drawn, or that hath not then first strichen the party which shall so stab, &c. so as the person so stabbed or thrust shall thereof die within 6 months then next following, although it cannot be proved that the same was done of malice forethought, yet such offender, being convicted by verdict, confession, or otherwise according to law, shall be excluded from the benefit of clergy, as in the case of [*wilful murder.] Provided (s. 3.) that this act shall not extend

to the killing of any person se defendendo, or by mis Proviso.

fortune, or in any other manner than as aforesaid ; nor shall extend to any person which in 'keeping and preserving the peace shall commit manslaughter, so as the 'manslaughter be not committed wittingly, willingly, and of purpose, under pretext and colour of keeping the peace, nor shall extend to any person which in chastising or correcting his child or servant, shall, besides his intent

and purpose, chance to commit manslaughter. The 7 W. 3. c. 11. 7 W. 3. c. 11. Ir. is a transcript of this statute, except

as noted in the margin. § 3. III. Next as to murder: By the 1 Edw. 6. c. 12. Poisoning any

s. 13. Eng. all wilful killing by poisoning of any person, Coron a capital shall be deemed wilful murder of malice prepensed ;. folny. I Fdw 6. c. 12, and the offenders therein, their aiders, abettors, pro5. 13. ln curers, and counsellors, shall suffer death as in cases of

9. 3.

Ir.

wilful

C

*"Telony without benefit of clergy” in 7 W. 3. c. 11. Ir. murder being then treason in Ireland.

E. & I.

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wilful 'murder of malice prepensed. By the 43 Geo. 3. 43 Geo. 3.c.58. c. 58. E. & I. if any person shall wilfully, maliciously, and unlawfully administer to, or cause to be adminis

Administering tered to or taken by any of his majesty's subjects, any

poison with in

tent to murder, deadly poison, or other noxious and destructive sub- or produce mis

carriage, a cupi. stance or thing, with intent thereby to murder, or thereby tal felony. to cause and procure the miscarriage of any woman then being quick with child; such offender, his counsellors, aiders, and abettors, knowing of and privy to such offence, shall be guilty of felooy without benefit of clergy. And by s. 2. if any person shall wilfully and maliciously administér to, or cause to be admisistered

Punishment for to or taken by any woman, any medicines, drug, or other administering substance or thing, or shall use or employ, or cause or with intent 10

medicines, &c. procure to be used or employed, any instrument or other produce mis

carriage. means with intent thereby to cause or procure the miscarriage of any woman not being, or not being proved to bé, quick with child at the time of administering such things, or using such means, such offender, his counsellors, aiders and abettors, knowing of and privy to such offence, shall be guilty of felony, and shall be liable to be fined, imprisoned, and set upon the pillory, publicly or privately whipped, or to suffer one or more of said punishments, or to be transported beyond the seas for any term not exceeding 14 years, at the discretion of the court before which such offender shall be tried and convicted. The evidence in one case of murder is regulated by this statute, (s. 3.) which repeals the $. 3 & 4. 21 Jac. 1. c. 27. Eng. and 6 Ann. C. 4.' Ir. and enacts, Trials of women that the trials in England and Ireland respectively of for murder of women charged with the murder of any issue of their how to be. bodies, male or female, which being born alive would by law be bastard, shall proceed and be governed by the like rules of evidence and of presumption as are by law used in respect to other trials for murder: Piovided (s. 4.) that it shall be lawful for the jury by whose verdict any prisoner charged with such murder shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, male or female, which, if born alive, would have been bastard,

and

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their bastard's

their accessaries

and that she did, by secret burying, or otherwise, endeavour to conceal the birth thereof, and thereupon it shall be lawful for the court to adjudge that such prisoner shall be committed to the common gaoi or house

of correction for any time not exceeding 2 years. The 23 Hen. 8. c. 1. 23 Hen. 8. c. 1. s. 3. Eng. was the first statute which $. 3. Eng.

enacted, that no person found guilty of any wilful murder of malice prepensed, or of any abetment, procurement, helping, maintaining, or counselling of or to any

such murder, shall be admitted to the benefit of clergy. 1 Edw. 6.C. 12. And by the 1 Edw. 6. c. 12. Eng. the benefit of clergy s. 10. Eng.

was also taken away from murderers through malice prepensed, if found guilty, or confessing the same upon

arraignment, or not answering directly, or standing wil4 & 5 Pb.& M. fully mute: And by the 4 & 5 Ph. & M. c. 4. Eng. c. 4. Eng.

every person maliciously commanding, hiring, or counMurderers and selling any person to commit wilful murder, being outdeprived of best lawed thereof, or found guilty or otherwise attainted,

. nefir os clergy. or. who being arraigned shall stand mute, or challenge

peremptorily above 20 persons, or will not answer directly to such offence, shall not have the benefit of

clergy. Provided (s. 2.) that every lord of parliament, Proviso.

and peer of the realm, having place and voice in parliament, upon every indictment for any of the offences in s. 1. shall be tried by his peers. The offence of murder, of malice prepensed, was made high treason in

Ireland by the 10 Hen. 7. c. 21. Ir, but this statute was 31 Gen. 3.c.17 repealed by the 31 Geo. 3. c. 17. Ir. which enacts (s. 1.)

that all persons who shall be found guilty of wilful murder of malice prepensed, or of any abetment, procurement, helping, maintaining, or counselling of or to any such murder, shall be adjudged felons, and be excluded from the benefit of clergy. In order that some further terror, and peculiar mark of infainy, may be added to

the punishment of death inflicted on such as are guilty 95 Cleo.2 c.37. of murder; the 25 Geo. 2. c. 37. Eng. enacts, that all s. 1. Eng.

persons found guilty of wilful murder, shall be executed F.tcction of

on the day next but one after sentence passed, unless cier when to be the same shall be Sunday, and in that case on the Monday following. And by s. 2. the body of such murderer

$. 2.

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s. 1. Ir,

shall,

convicts of muro

6.2.

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