The broad

between that and cases of adult persons. principle is laid down, that whenever a child has been born, and has an independent circulation of the blood, even though the umbilical cord be not severed, so as to fulfil the description of a living human being, the killing of such child is murder.1 It is true that in many cases where a child is killed at the time of birth it may be difficult to ascertain whether the child was born alive, and then killed, or was killed before it was finally separated from the mother, or during the act of separation. These questions are frequently so mixed up with other offences falling short of murder, and known under other names, as concealment of birth, and procuring abortion, and infanticide, that they will be more appropriately considered in a subsequent chapter under the head of "Variations in the Laws of the Person caused by Age."2

Murder of sick and aged persons. And though the old and sick are treated as entitled, like the rest of their fellow creatures, to enjoy what life is in store for them, and it is murder to shorten their allotted span by an hour, if it can be made clear that the act was done maliciously, and had that effect, it is singular that so many barbarous tribes should have shown a callous and brutal disposition towards human beings arrived at those stages.3

1 R. v Enoch, 5 C. & P. 539; R. v Wright, 9 C. & P. 754 ; R. v Sellis, 7 C. & P. 850.

2 See post, Ch. ix. HALE regarded it impossible, according to the law of England, to treat the procuring or effecting of abortion either as murder or manslaughter. COKE leaned to the opposite view.— See post, Ch. viii.

3 The Sioux Indians of North America and some African tribes bring up their children to view murder as the great object of ambition.-Galbraith, Ethnol. Journ., 1869; Burton's Africa, 176. In Alaska old, sick, and useless persons are put to death, out of kindness and affection, by their relatives.-Dall's Alaska, 384. In Fiji, in Tahiti, and among the Esquimaux and the Missouri Indians, parents are killed or buried alive, whenever they are burdensome or disabled by sickness.-1 Williams' Fiji, 183; 1 Ellis, Pol. Res., 365; Parry's Three Voyages; Wilkes' Expl. Exped. Among the Kaffirs, the Congos, and the Arrakanese, the sick and dying are taken to a thicket and exposed, or drowned, or tossed into the air. -Maclean's Kafirs, 161; 6 Univ. Mod. Hist. 418, 469; 3 Ibid. 230. HERODOTUS said the Indians of the East, and the Essedonians, and Massagetes, killed and ate their sick.-Herod, b. i., b. iv.

Where murdered person is confidentially related.—Many ancient nations singled out from the common case those who murdered another who was confidentially related. Eastern nations as well as the ancients had an especial detestation for parricides, and for slaves who kill their masters, though it seldom dawned on their minds that masters could possibly murder their slaves. And though in modern times we make no distinction, but treat all murderers as on one level, our ancient law followed the traditions of their elders. By our old law, any mischief which one knowingly did or procured to be done to another while pretending friendship was deemed treason, and was punished sometimes with death, sometimes with loss of limb, with pillory or imprisonment, according to the nature of the case.1 And among the Anglo-Saxons murder in a tavern was deemed an enormous crime.2 And if murder was committed by any one who had been three days a guest, his host was hound to bring that guest to justice, or himself answer for the crime. If a servant killed his master whom he had left, owing to a grudge contracted during the service; if a wife, after being divorced a menså et toro, killed her divorced husband; and if a clergyman killed the bishop who ordained him, or in whose diocese he was beneficed, or the metropolitan of such suffragan, or diocesan bishop, these were treated by the statute of 25 Edward III., c. 2, as crimes of petit treason, involving a higher punishment than felony. This distinction has long been abolished, and the sentence of burning passed on women convicted of petty treason as well as high treason was changed in 1790 into that of hanging, and this identity continues to the present day.5

The Medes bred a number of large dogs for the express purpose of devouring the bodies of the dying, as it was dishonourable to die in bed or to be buried in the ground.-Bardesan, ap. Euseb. The ancient Germans for several ages killed their old and sick.— Christ. Hartnock, Pr. Antiq. xiii.

1 Britt. b. i. c. 9. 2 Anct. Laws, Ethel. Eadr. Hloth. Eadric. 4 30 Geo. III. c. 48.

24 & 25 Vic. c. 100, § 1.

3 Anct. Laws, 5 9 Geo. IV. c. 31;

PLATO in his laws directed a murderer to be punished with death and refused burial. But in the case of one murdering his parent, or brothers, or children, the murderer was to be punished with

Mental capacity of murderer.-The malice, which is an ingredient of the crime of murder, implies that the party is in full possession of his senses and is able to discriminate between right and wrong. In general a lunatic, or idiot, or an infant under the age of discretion, is incapable of committing a crime, or rather is exempt from the usual punishment, by reason of his incapacity to know what he

death at an appointed place where three roads met, and to be cast out of the city naked, and the magistrates were to throw stones on his head, and thereafter cast his body, unburied, beyond the borders. -Plato, De Leg. b. ix. And a slave who killed his master in selfdefence was treated as a parricide, which MONTESQUIEU says was a law contrary to nature.-Montesq. b. xxvi. c. 3. When a Roman

was found murdered in his house, all the slaves under his roof at the time were first put to the torture, and if it was thought they had not done their best to defend their master, they were put to death. And Adrian mitigated this rule by allowing only those slaves to be killed who were near enough to prevent the murder. -6 Univ. Hist. 47.

Constantine, in restoring the old punishment of parricide which the Twelve Tables had ordered, laid down the law to be, that if any one hastened the fate of his parent, or son, or any the like relation, which goes under the name of parricide, whether he attempt it privately or publicly, he shall not be punished with the sword, or with fire, or with any other common death; but be sewed up in a sack with a serpent, an ape, a cock, and a dog, and thrown alive into the sea, that he might have no air to breathe whilst he lived, nor earth to receive him when he was dead.--Cod. Theod. lib. ix. tit. 15, leg. 1. The ancient Egyptians punished a parricide by laceration with sharp reeds, then by throwing him on thorns and burning him.-2 Wilk. Anc. Egypt, c. 8.

By the law of China the murder of a parent, grandparent, or uncle, or aunt, was a crime of the deepest dye, and ranked amongst offences of a treasonable nature. Even an attempt to kill was a capital offence. The murderer suffered death by a slow and painful execution. If the party murdered or attempted to be murdered was a more distant relative, the crime was also singled out for severer punishment than in ordinary cases.-Staunton's Code of China, 306. There was a saying in Japan that the same heaven could not cover a man and the murderer of his parent, master, or elder brother; and he could with impunity, on giving notice to the public authorities, kill such murderer.-Dickson's Japan, 256. And the slaying of a master was deemed a species of treason, and the murderer's family was wholly extirpated.-1b. In Korea the wife who had killed her husband was buried alive up to the shoulders in a pit in a highway, and an axe was laid near her, and each passenger, except a nobleman, was bound to give her a stroke on the head.-7 Pink. Voy. 539.

does. Hence it is a usual defence to all indictments that the party charged was at the time in a state of mind which deprives him of all responsibility for his acts. As the non-liability of lunatics and others incapable of legal discretion is an incident of their status, and is not peculiar to any one crime, the distinctions as to the usual tests of soundness of mind are treated more appropriately under another head. And the defence of mental incapacity is to be carefully distinguished from mere ignorance or want of education and knowledge, for the law presumes that all alike, whether educated or uneducated, sufficiently know the law so as not to set up their ignorance as any excuse. Hence a foreigner on landing in England is no more excused from committing a crime than if he were a nativeborn subject. It is true that ignorance of a specific fact is on a different footing, and may make a great difference in liability, both for crimes and civil acts. If, for example, a man intending to kill a thief or housebreaker in selfdefence, by mistake kills one of his own family, this takes such a case out of the category of crime, and reduces it to a mere accident or act of God.2

1

Murder by drunkards.-Though the rule is, that in order to establish the crime of murder it must be presumed or shown that the murderer is a person in possession of reason; this rule may be supposed to suffer some variation where, at the moment of committing the fatal act, the murderer is in a state of intoxication. Though drunkenness is a voluntary act, and every man must be taken to intend the natural consequences of his act, it must be observed that murder is not such a natural consequence, nor can it be said that a man who is drunk can entertain that kind of malice which is the chief ingredient of the crime of murder, and proceeds from a mind possessed of firmness of purpose. A drunken person is scarcely in a state to entertain an intent at all, either malicious or not. Though, therefore, drunkenness will not be any excuse for crime, yet if in the condition of the prisoner malice

1 R. v Esop, 7 C & P. 456.

2 1 Hale, P. C. 42. The subject of ignorance, as a branch of mental capacity, is treated under the head of Variations in the Law of the Person, produced by Mental Capacity.-See post, Ch. xi,

cannot be presumed, he can only be found guilty of manslaughter.1

The murderer must be a free agent.-Again, it is an essential ingredient of the crime of murder, that the murderer should be a free agent in what he does, that is to say, he must be so far master of his own actions as not to be subject to the compulsion of another. Thus, to seize the arm of another which holds a weapon, and with it to kill a third person, or instigate a lunatic to kill a third person, is murder, not in the agent or medium, but in him. who uses that agent as he would use an ordinary weapon.2 But if the compulsion operating on the agent is merely mental, and amounts, for example, to a threat to kill B if B do not kill C, this would be no defence to B if he killed C, for if the life of one or other is to be sacrificed there is no reason why B should make an innocent person suffer for the iniquitous pressure put on himself. And he can usually protect himself by the courts of law in such circumstances. Some legal casuistry has, however, been exercised on the niceties of this case. Lord Hale has said that the person assailed with the threat ought rather to die himself than kill an innocent person. While others hold that by analogy to the case of treason being committed under compulsion or fear of present death, in which case the treason is extenuated, so it ought to be in a case where death of a third party is caused under the fear that otherwise the perpetrator will himself be murdered. The defence that one person killed another to save his own life must always be scrutinised with rigour in favour of the innocent third party; and should such a defence ever be made, it is difficult to see how the law could treat such homicide as less than manslaughter. And yet the next case to be mentioned makes even this doubtful.

Two shipwrecked persons on a plank. This is the case which was referred to by Lord Bacon, where an innocent person's death may be caused without crime, and as it were involuntarily, or by compulsion; as where two shipwrecked persons get upon the same plank, and one thrusts the other

1 R. v Thomas, 7 C. & P. 817; R. v Cruse, 8 C. & P. 546; R. v Monkhouse, 4 Cox, C. C. 55. 2 1 Hale, P. C. 433; 1 East. P. C. c. 5, § 14. 31 Hale, P. C. 51; Dalt. c. 145. 4 1 Hale, 51. 51 East, P. C. c. 2, § 15; Ibid. c. 5, § 61.