off under the urgent apprehension that both cannot be saved. In such a case the law seems to support the unscrupulous instinct of self-preservation, and holds this justifiable. It is true the legislature has expressly made it felony to unlawfully and maliciously prevent or impede another from saving his life from shipwreck.2 But this case of one drowning man killing another in the circumstances above named, cannot be brought within the category of unlawful and malicious acts. So that the point seems still to rest on the doctrine of the common law, and the common law may be taken quite consistently to treat the act of killing a rival in these circumstances as blameless. Such a case, indeed, like the one preceding, comes more properly under the head of self-defence, and though probably a human tribunal will seldom require to decide as to the part each takes in such emergency, it is agreeable to the spirit of the law, to hold him who drowns the other in order to save his own life blameless; for the law cannot appreciate or understand any of the higher motives of conduct, and the inherent selfishness of human nature leads each to prefer his own life to that of everyone else. It is on this ground (and many other kindred views will be found to prevail in the law), that such a compulsory homicide as killing his drowning companion, however revolting his conduct seems to all notions of the higher humanity, will be deemed blameless by the law.

Malice as an ingredient of murder.-The most conspicuous ingredient in the crime of murder is the malice of the murderer-a mental state which is variously described or explained, but means the feeling of anger, revenge, or fury towards the person murdered, and which is the motive, impulse, and immediate cause of the act.

3

Much speculation has been spent on the origin of this word malice, or malitia. Cicero treats it as necessarily importing fraud or deceit in the means used to compass the end; and this may be admitted as nearly always true. But it is so common to find the meaning of a word change more or less insensibly in every language, that we need not attribute much importance to its earliest use. It is

2 24 &

1 Bac. Max. 5; 4 Bl. Com. 186; 1 Hawk. c. 28, § 26. 25 Vic. c. 100, § 17. 3 Cic. De Nat. Deor. lib. iii. § 30; De

Offic. lib. iii. § 10.

enough that it has become a term of art applicable preeminently to that state of mind which precedes, and is an essential ingredient of the crime of murder. This mental state of the murderer has been variously described as a settled anger -a desire of revenge—a heart full of gall—a rancour of mind-a mind cankered by deliberate wickedness-a heart regardless of social duty, and fatally bent upon mischief-a deliberate design to take life without any excuse whatever.1

Malice is the element distinguishing murder from manslaughter and accident.—And it is at this point that it is most convenient to contrast murder with manslaughter, for where no malice exists or can be proved to have existed in the mind of the murderer or the slayer, yet the person who kills another may be guilty of the crime of manslaughter, which, though not malicious, yet implies an unlawful reckless and grossly negligent disposition of mind towards his fellow man, while doing the act which was the immediate cause of death to another. Accordingly, following the definition of murder, manslaughter is "the unjustifiable killing by one human being of another human being by some external or other means satisfactorily traced; and an unjustifiable killing is where neither selfdefence nor any lawful business or conduct of the killer excuses it." When the death of another has neither been caused by the malicious act of any person, which is murder; nor by the unlawful reckless and grossly negligent disposition of any person, which is manslaughter; nor by that species of negligence described in a former chapter, which gives rise to an action for damages in some situations; then the conclusion is, that the death must have been merely an accident or misadventure-as one of the chances of life for which nobody is to blame. All other causes of death except accident must thus in the eye of the law come under the category of murder or manslaughter or actionable negligence. It is true that besides mere accident and

1 Some judges, as LITTLEDALE, J., have thought it a sufficient definition to say, that malice denotes a wrongful act done intentionally without just cause or excuse.-—Macpherson v Daniels, 10 B. & Č. 1272. While BEST, J., said it was enough to describe malice as any wicked or mischievous intention of the mind.-R. v Harvey, 2 B. & C. 268. The former of these seems to be as accurate as a negative account of positive acts can be made.

misadventure there is the case of a capital execution, but that of necessity is an act for which no legal remedy whatever exists, simply because it is itself the carrying out of a legal remedy requiring the death of the person punished.

Staundforde and Coke seemed to treat manslaughter as synonymous with chance medley, the distinguishing characteristic of murder, namely, the malice as an ingredient being left out in manslaughter; and hence the latter term covered a variety of situations in which death was caused, some of these being little short of accident or chance, and others more or less involving an ingredient of carelessness or blame. At that time the leading idea on which manslaughter was founded was, that it was a quarrel or sudden heat ending in death, and rather accidental than intended. On this subject, and as to the general bearing of the law relating to the killing of a human being, it was well said in argument: "He who takes away the life of another is presumed to have taken it away deliberately and maliciously, till it shall appear to have been the effect of necessity, of accident, or of sudden passion; for as necessity will justify and accident excuse the fact, an ungovernable transport of passion will so far alleviate the crime as to make that which would otherwise have been murder and a capital offence manslaughter only, which saves the life of the offender. This is a condescension the law shows to the frailties of the human mind, which upon great and sudden provocations cannot command itself nor maintain its reason; but whilst the law shows this condescension, it guards the life of the subject with all possible caution and reserve against the excess and abuse of the benignity. shelters no man whose mind is not free, perfectly free from the guilt of malice, expressed in words or implied in action. To be free from malice, he must have acted from the impulse of a present passion without deliberation or meditated mischief. If it should so have happened that the provocation did not irritate, or, irritating, did not overcome the reason, or, overcoming the reason, the mind cooled and deliberated, or had time to cool and deliberate, and then he fought and killed, he has incurred the guilt of malicious murder; for he did not act from the impulse of a present passion, and whatever motive actuated him, whether some secret grudge, or an imaginary necessity of

It

vindicating his honour, or of satisfying the world of his courage, or any other latent cause, he is no object of this benignity of the law. The law-books do not make it murder only where the passion has actually cooled, but where in the time that has passed it ought in reason to have cooled. And in Major Oneby's case no more than an hour had passed, and the judges thought that sufficient for the purpose." 1

Very slight evidence of negligence indeed will thus be taken to justify a conviction for manslaughter. Thus, where a man turned out a vicious horse on a common through which there was a highway, and a child carelessly strayed a little from the road and was kicked and killed by the horse, this was held to justify a verdict of manslaughter.2

Express and implied malice.-Malice has sometimes been distinguished into express and implied malice, but this is nothing but a loose way of indicating the kind of evidence, out of which juries and courts infer the existence of the ingredient which is sought for. When that thing is found, whether in plain words, or by implication from acts or words not plain, it is altogether immaterial by what process it is discovered. All that requires to be said is, that it is rather more difficult to make up one's mind in one case than another. The words "express malice" would of themselves naturally indicate, that the murderer had published or expressed in plain words that he intended to murder the object of his fury; but this is seldom the case, as all the selfish instincts of human nature generally combine to save him from so openly publishing his shame. What has been generally meant by the use of the words express malice," is merely, that that inference is drawn from such conduct of the murderer as necessarily, or rather prima facie, imports deliberation, as by lying in wait, by laying plans, or laying poison, and by expression of grudges or ill-will; whereas by implied malice has been meant the same conclusion, drawn from conduct and acts which do not of themselves so necessarily and clearly import deliberation beyond that of the moment.3

Malice prepense.-Again, the word "malice" has often 1 Per De Grey, S. G., R. v Byron, 19 St. Tr. 1223. Dant, 1 L. & C. 567. 3 1 Hale, P. C. 451; 4 Bl. Com. 199,

2 R. v

been associated with the word "prepense," but this latter word means little more than is necessarily implied in the other. The meaning of the word "malice was only made a little more difficult, when a statute of Henry VIII. first took away the benefit of clergy from the offence of "murder with malice prepense," for the use of this phrase set courts upon thinking to find out fine distinctions as to what was prepense or not prepense. Prepense, in any view, can mean no more than that kind of deliberate anger or wickedness of mind which precedes the fatal act; and, indeed, if there was no previous consciousness, it would be difficult to infer that discriminating ingredient of malice which is necessary to enter into the legal conception of murder.

Secrecy not necessary to malice in murder.-Secrecy or fraud, though often accompanying, is not a necessary part of the notion of malice. It is true, that in Bracton, Britton, and Fleta the wickedness of the act of murder is said to be aggravated by the circumstances of secrecy or treachery; but it has long been settled to be a voluntary killing of a person of malice prepense, and that whether it is done secretly or publicly.1 Glanville also, in the time of Henry II., treated murder as a secret killing, and all other killings as homicide generally, but nothing now turns on the secrecy of the act or the designs and marks of deliberation that often precede murder. If the murderer were to proclaim aloud what he was about to do in presence of a multitude of people, it would be murder still.

Malice does not imply gain or profit to murderer.— Though in some cases murder may be committed from motives of lucre, it is obvious that it is perhaps more frequently committed without a thought as to whether profit or loss pecuniary will result. Cassius Longinus, who acquired the reputation of the most severe of judges, used to say, when investigating who was the criminal-cui bono, that is to say, "tell me who is most benefited by the crime, and I get very near the criminal." But this was only the method of setting about the inquiry as to the discovery of the murderer, which is altogether a different question from that which regards the characteristics of the criminal act.

1

1 17 St. Tr. 43; Staundf. P. C. 18 B.; 3 Inst. 54.