"days at leaft before he fhall be tried;" but alteration has been made in fome of these respects by the 7 Ann. c. 21. which enas, that after the deceafe of the pretender, "when any "perfon is indicted for high treafon, or misprision of treason, "a lift of the witneßles who fhall be produced on the trial for "proving the indiament, and of the jury, mentioning their "names, profeffion, and places of abode, fhall be alfo given " at the fame time that the copy of the indictment is delivered, and that copies of all indictments for the offences aforefaid, "with fuch lifts, fhall be delivered to the party indicted ten "days before the trial, and in the prefence of two or more "credible witnesses."

The operation of thefe acts, it is to be obferved, is confined to fuch perfous only as ftand indicted for treafons, or misprisons, which work corruption of blood; therefore the cafes of petty treafon, of treafons created by acts faving the corruption of blood, and of the treafons exprefsly excluded by the 13th fection of the act, of counterfeiting the king's coin, the great feal, privy feal, fign manual, and privy fignet, all stand upon the fame foot as they did before the making of this act. The operation of the ftatute of William has been still further confirmed by a late act, which took its rife from the attempt of a wretched maniac of the name of Hadfield to affaffinate his majesty, by firing a pistol at him in the theatre at Drury-lane. The refon of the ftatute, which is fhortly hinted at in the preamble, is obvious: it was thought incongruous that greater privileges and indulgence should be allowed to a prisoner upon his trial, under a charge for aflaffinating or attempting the life of his fovereign, than if he had made the fame attempt upon the life of any of his majefty's fubjects. Upon this occafion the prisoner had the benefit of the ftatute of king William, and foon afterward, the legislature paffed the ftat. 40 Geo. III. c. 93. which enacts that in all cafes of high treafon, in compaffing or imagining the death of the king, and of mifprifion of fuch treason, where the overt act or acts alleged in the indictment fhall be the affaffination or killing of the king, or any direct attempt againft his life, or any direct attempt against his perfon, whereby his life may be endangered, or his perfon may fuffer bodily harm, the perfon or perfons charged with fuch offence fhall and may be indicted, arraigned, tried and attainted in the fame manner, and according to the fame courfe and order of trial, in every refpect, and upon the like evidence, as if fuch person or perfons ftood charged with murder: and none of the provifions contained in the acts of the 7 W. III. and 7 Ann. touching trials in cafes of treafon and mifprifion of treafon, fhall extend to any indictment for high treafon or mifprifion, where the overt

act or acts alleged, are fuch as aforefaid: but upon conviction, judgment is to be given, and execution done, as in other cafes of high treafon.

EVIDENCE. The written evidence which may affect a prifoner indicted for treafon is the fubject of much learned difcuffion and many diftinctions; but it is an effential requifite on the trial of this offence, that the treafon charged in the indictment fhould be proved by two witneffes. It is, however, fully eftablished that one witnefs to one overt act, and another to another of the fame fpecies of treafon, are two fufficient witneffes within the ftatute of Edward. From that time the rule has prevailed. The ftatute 7 W. III. does not require that each overt act shall be proved by two witneffes, but only that the treafon shall be so proved; and, by the express direction of that statute, either two witneffes to the fame overt act, or one witness to one and another witness to another overt act of the fame treason, that is of the fame species of treafon, are fufficient. But, if feveral overt acts are proved by different witneffes fingly, they must relate to the fame kind of treafon, otherwise it is infufficient by the exprefs provifion of the ftatute 7 W. c. 3. which in this respect is only declaratory of what was the known rule of law before. And although the treason itself must be proved by two witneffes in the manner above specified; yet a collateral fact, not tending to the proof of the overt acts, may be proved by one witness only.

JUDGMENT. The judgment in high treason for a man, in all. cafes except counterfeiting the coin, is to be drawn upon a hurdle to the place of execution, there to be hanged by the neck; to be cut down while he is alive, and his entrails to be taken out and burnt before his face; and his head to be cut off, and body quartered: and the head and quarters to be at the king's difpofal. For women the judgment was always the fame in high or petty treason, namely to be drawn to the place of execution, and there burnt alive: that is now altered to being drawn and hanged, by the ftatute 30 Geo. III. c. 48. but the forfeitures and corruptions of blood enfue as before the act; and further, women convicted as principals or acceffaries before in petty treafon, are made liable to the punishment inflicted by the ftatute 25 Geo. II. c. 37. on perfons convicted of murder. In all cafes of treafon refpecting the coin, whether newly created or not, and so in petty-treafon, the judgment is only to be drawn on a hurdle and hanged. The fentence for counterfeiting the great or privy feal is the fame as in other treafons. The confequences of a judgment and attainder in treafon, are: 1. Corruption of blood to the party attaint; by which he can neither inherit nor tranfmit lands by defcent VOL. II.

to his heirs. 2. Lofs of dower to his wife. 3. Forfeiture to the king of all his lands, goods, and chattels : and this relates back to the time of the treafon committed. 4. Execution. Without attainder, there is no forfeiture of lands, unlefs, fays lord Hale, where the chief justice of the king's bench, as fupreme coroner, in perfon, upon view of the body of one killed in open rebellion, records it, and returns the record into his own court; when both lands and goods are forfeited.

MISPRISION OF TREASON. Mifprifion of treafon is where a perfon knowing of a treafon, but no party or confenter to it, does not reveal it by a fair and full difclofure in convenient time to the king, or his privy council, or to fome magiftrate or perfon having authority to take the examination; and it is doubtful whether a declaration to any other than these is sufficient. By the ftat. 1 and 2 Ph. and M. c. 10. and other prior ftatutes, fuch a concealment or keeping fecret of any high treafon is now only a mifprifion, though formerly it was deemed evidence of an aiding and abetting to the treafon itself; but ftill, under particular circumftances, concealment may amount to evidence of affent to the treason, and fo make the party a principal traitor. The knowledge muít, however, be of the perfon of the offender, as well as of the defign or offence, for a man cannot be faid to conceal that which he does not know.

PUNISHMENT. The punishment for mifprifion of high treafon is the lofs of the profits of lands during life, forfeiture of goods, and imprisonment during life: but mifprition of petty treafon is only punishable by fine and imprisonment, as in cafe of mifprifion of felony.

HOMICIDE. Homicide, which is here used to denote the killing of a perfon by whatever means, is ufually treated of under the heads of murder, (of which petit treafon is a more aggravat ed fpecies,) felo de fe, manslaughter per infortunium or chancemedley, and homicide ex neceffitate; which latter relates, either to the execution or advancement of justice, or to self-defence. But as the fhades between fome of these are in many instances very faint, and as the difficulty in this branch of the law lies chiefly in difcriminating between the one and the other, it is not judged neceffary here to enter into all thofe niceties which are laid down in larger treatifes, but merely to defcribe in a general way each mode of offence, with its ufual punishment.

Homicide is faid to be either felonious, juftifiable, or excufable. Felonious homicide may be either against the life of another, or against a man's own life. The former is of two forts, murder, and manflaughter.

MURDER, in the fenfe in which it is now understood, is the voluntarily

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voluntarily killing any perfon under the king's peace, of malice prepenfe or afore-thought, either exprefs or implied by law. The fenfe of the word malice is not confined to a particular ill will to the deceased, but is intended to denote an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with fuch circumftances, as carry in them the plain indications of an heart regardless of focial duty, and fatally bent upon mischief; and therefore malice is implied from any cruel act against another, however fudden.

When this malice is exerted to the death of a mafter by hist fervant, or of a husband by his wife, of an ecclefiaftic fuperior, by one owing obedience to him as fuch, it takes the name of petit treafon.

The groffer inftances of murder, where the depravity of the heart, or malice is apparent, form the first clafs of cafes under this head. 2. Where an officer, or one who affifts in the advancement of justice where he lawfully may, is killed in the regular discharge of his duty. 3. Where a private man, lawfully interfering to prevent a breach of the peace, is opposed in fuch his endeavour, and flain. 4. Where death happens incidentally in the profecution of fome other felony. 5. Where it happens from other unlawful acts, of which death was the probable confequence, done deliberately, and with intention of mifchief or great bodily harm to particular perfons, or of mifchief indiscriminately, fall where it may; though the death enfue against, or befide, the original intent of the party. 6. From deliberate duelling.

Clergy is taken away in all cafes of murder and petit treason from acceffaries before, as well as principals; and lands and goods are forfeited; the forfeiture in fuch cafe relating back to the ftroke or other caufe of death; but acceffaries after the fact, either in petit treafon or murder, are in no inftance oufted of clergy.

MANSLAUGHTER. Manflaughter is principally diftinguishable from murder in this, that although the act which occafions the death be unlawful, or likely to be attended with bodily mischief, yet the malice either exprefs or implied, which is the very effence of murder, is prefumed to be wanting in manflaughter; and the act being imputed to the infirmity of human nature, the correction ordained for it is proportionably lenient. It follows that although there may be feveral principals, there cannot be any acceffaries before to man-flaughter, because it must be done without premeditation; but there may be acceffaries after.

PUNISHMENT. The offence amounts to felony, but within benefit of clergy; and the offender is burned in the hand, and

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forfeits

forfeits all his goods and chattels. By ftatute 19 Geo. III. c. 74, the burning in the hand may, in the difcretion of the court, be changed to a moderate fine, but not to whipping; but this does not prevent the court from alfo adjudging the offender to be imprifoned for any term not exceeding a year.

The benefit of clergy is however taken away by the 1 Jas. I. c. 8. (commonly called the ftatute of stabbing) in one fpecies of killing, though done upon a fudden provocation, namely, the offence of mortally ftabbing another under certain circumstances.

With refpe&t to indictments for homicide on the high feas, before the admiralty feflions, under the stat. 28 Hen. VII. c. 15., inafmuch as the marine law does not allow of clergy in any cafe, if the fact appeared upon the evidence to be no more than manflaughter at common law, the prifoner was, prior to the statute 39 Geo. III. c. 37., conftantly directed to be acquitted. But now,by that act, perfons fo tried, and found guilty of manflaughter only, are intitled to clergy, and fubject to punishment, as if they had committed the offence on land.

The cafes falling under the head of manilaughter are either, 1ft, where death enfues from actions in themfelves unlawful, but not proceeding from a malicious or felonious intention; 2dly, from actions in themfelves lawful, but done without due care and circumfpection for preventing mifchief; 3dly, where death enfues upon a fudden combat or affray; or, 4thly, upon heat of blood from a reafonable provocation given.

SUICIDE. The laft kind of felonious homicide is that against a man's own life, which denominates the party flaying himself felo de fe. This is where any one wilfully, or by any malicious act, caufes his own death. The law regards this an heinous offence, and has ordained as fevere a punishment for it as the nature of the cafe will admit of, namely, an ignominious burial in the high-way, with a ftake driven through the body; and a forfeiture of all the offender's goods and chattels to the king. The ufual inftances of this offence are either, Ift, where felo de fe intended his own death; or, fecondly, where he intended fome other felony, in which he accidentally flew himfelf.

JUSTIFIABLE HOMICIDE. To make homicide juftifiable, it mult arife from an imperious duty preferibed by the law, or be owing to fome unavoidable neceffity, induced by the act of the perfon killed, without any manner of fault in the party killing. In thefe cafes it is now clearly underflood that the jury may acquit the prifoner generally, without obliging him, by a fpecial finding of the matter, to purchase his pardon under the ftatute of Gloucefter, c. 9.; and no forfeiture is incurred.

EXCUSABLE HOMICIDE. Homicide is excufable where the

party