with, otherwise the officer will be guilty of murder.1 If the sheriff vary from the judgment; as, where the judgment is, that the prisoner be hanged, and he beheads the party, this is deemed murder. Yet Foster justifies some deviation on the part of the sheriff, and says the common law allows the crown to direct beheading instead of hanging in some special cases; and on this ground, he said, the sheriff was justified in suffering a traitor to hang till he was dead without, disembowelling, and a woman to be stifled instead of being burnt alive. And the House of Commons, when debating whether the traitor Stafford should be beheaded only, without disembowelling, consented to this being done by the sheriff. When Colonel Morley, in 1745, after being hanged six minutes, was cut down, and was still found alive, the executioner, after giving in vain several blows on the chest, at last cut his throat.2 But in Walcot's case, under Charles II., a writ of error was brought and attainder reversed, because the record stated, not that his entrails should be burnt while he was alive, as it should have done, but merely that they should be drawn out of the body."

In some countries ancient and modern the practice is to make a condemned prisoner execute himself. The Athenians thought it proper that the criminal should execute himself. And it is said that Witold, prince of Lituania made a law, that criminals condemned to death should execute the sentence on themselves, for a third person would be guilty of homicide.*

The means used for murdering.—As the means of murdering another seem to be infinite, it at first sight requires explanation why it is said that the means used in murder must be some external or visible means, and why it is not the less murder, if the death of another is brought about anyhow, provided cause and effect be clearly traceable. But it is partly due to the infirmity of the senses and

1 1 Hale, 433, 454, 466, 501; 2 Hale, 411. 2 Amos, Ruins, 125. 3 Walcot's Case, 1 Salk. 632.

4 Cromer, De Reb. Pol. xvi. See further as to this, post, Chap. viii. Punishment. It was said that an Athenian executioner, having given his victim sufficient hemlock to cause death, though in fact it did not take effect, refused to provide more till he was paid, and this was so in the case of Phocion.-Plut. Phoc.

human evidence, that the law can only deal with coarse visible and tangible facts, and will refuse to inquire into any secret and circuitous modes of compassing another's death, especially if part of the means involves inquiries into the working of the mind, which at most are mysterious and unsusceptible of strict rules. Hence it is said there can be no murder except the means of killing be some external means, such as a stroke, or poison, or exposure, or imprisonment. Digging a pit with the intention that A should fall into it and be killed, is the same as killing A with a blow.1 So if the fear of immediate violence cause a person to retreat for escape to dangerous places or courses, and he is killed or drowned, this is the same as if the death had been caused directly by the person threatening violence.2 But there is great difficulty in pushing the doctrine of cause and effect, where the working of the mind is concerned; for the minds of two persons are seldom or never alike, and what is predicable of one might be grossly unjust and inapplicable as to another. Mere words or acts therefore which operate on the mind or feelings, though the immediate occasion or vehicle of death, and though all the malice and malignity exist, will not be reckoned by the law as equivalent to the crime of murder, for all persons are somewhat harshly presumed by the law to be able to control their feelings within bounds on any mere provocation of words, however false or irritating 3 Where it is the slanderous lie that kills, it is therefore thought to be no murder at all, because it is said no sagacity can penetrate the connection between the hidden workings of the mind and their effect on the body.

Killing by drugs or means of cure. And for a like reason, namely, the uncertainty in tracing the cause and effect, where a person professing to be skilled in medicine, administers some drug, or performs some operation, so unskilfully as to cause death, this will, in general, in the absence of the grossest recklessness and ignorance, be deemed misadventure, and nothing seems to turn on his

1 4 Bl. Com. 35.

2 Rv Pitts, Car. & M. 284; R. v Evans, 1 Russ. Cr. 676.

3 1 Hale, P. C. 427; 1 East, c. 5, § 13; R. v Murton, 3 F.& F. 492. See as to perjury killing post, p. 370.

not being a qualified practitioner.1 The connection between the death and the negligence, or unskilfulness, is too obscure to warrant a verdict even of manslaughter, for it is idle to expect that these cures can always be successful; and if the medical man honestly believes he is right, and is not grossly ignorant, he is free from blame.2 Britton and Coke contributed to the notion, that, if an unlicensed surgeon occasioned the death of his patient, it was felony and Hale, while treating this as a vulgar error, said it tended to make people cautious.3

Killing by keeping dangerous animals.-A somewhat circuitous means of murder occurs in the case of letting loose a fierce animal. Where a man keeps a fierce animal and lets it loose, so that it kills some one, this will be murder or manslaughter, according to the conduct shown, for there is, in such cases, no difficulty in tracing cause and effect. To let loose such wild animal in a crowd, or to fire into a crowd, was said by Hale to be an example of malice in law, and the killing to be murder. And Foster said that, whenever an action, unlawful in itself, is done deliberately and with an intention to do mischief or great bodily harm to individuals, or of mischief indiscriminately, fall where it may, and death ensue against and beside the original intention of the party, it will be murder.5

Killing by communicating infectious disease. It was formerly held, that a person, who goes about knowingly with an infectious disease like the plague, is not guilty of manslaughter at common law, if he thereby cause another's death, though Hale admits (or at least doubts the contrary) that if one go about purposely to infect another, then it may be murder; and, though he do it not purposely, still

1 1 Hale, 429; R. v Long, 4 C. & P. 398; R. v Crick, 1 F. & F. 519; Lamphier v Phipos, 8 C. & P. 475. 2 See also ante, p. 82. 3 Sometimes in proving the gross ignorance which is relied upon as implying criminal responsibility, it is attempted to give evidence that the same person had not been successful in other cases with a like treatment; but this, according to the rules of evidence, is inadmissible.-R. & Whitehead, 3 C. & K. 202.

4 1 Hawk. P. C. c. 31, § 8. See ante, p. 70.

5 Foster, C. C. 261. And the Mosaic law said, that if the owner of an ox knew that it pushed with its horn, and did not keep it in, and it killed a man or woman, not only the ox, but the owner was to be put to death.—Exod. xxi. 9. 6 1 Hale, P. C. 432.

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it may be a misdemeanour. This glaring defect of the common law was fortunately remedied in 1603 by a statute which ordered an infected person to keep his house, and taxed the inhabitants for means to keep in houses for the purpose such as were so infected; and if the infected person went abroad, he might be arrested as a felon.1 And under that statute, a writ de leproso amovendo could be obtained to seize and imprison a leprous person, and if he went about, he could even be killed with impunity.2 The quarantine laws or statutes had also no other object than to prevent infected persons going abroad from foreign vessels, and spreading some deadly disease on unsuspecting people. A master of such vessel is subject to a penalty of 4001. for quitting, or allowing his passenger to quit, or not going to the appointed place; and the passenger may also be imprisoned six months, and forfeits 30018

In modern times it has been held to be an indictable offence for one suffering from a contagious disease, such as small-pox, to be unlawfully or without necessity in a public place where infection may be communicated. But this is too small a protection to mankind; and hence the legislature has come to the aid of human life with supplementary details. Each sanitary authority is authorised to provide proper conveyances for carrying infected persons through streets; and if such persons are without a proper lodging, then of removing them to an hospital. And a person suffering from a dangerous infectious disorder, who wilfully exposes himself in streets and public places, or enters public conveyances without proper precautions, is subjected to a penalty of five pounds. And for like reasons a penalty of twenty pounds is imposed on those who let houses and lodgings, which they know to be tainted with infectious disorders." Killing by swearing away another's life.-Perjury also may kill one. Thus if a witness falsely swear away life, and thereby cause an innocent person to be condemned and executed, he may be convicted of murder; and such seems to have been the ancient law, as well as the opinion of Lord

78.

repealed in 1837. 3 6 Geo. IV. c. Burnet, 4 M. & S. Mirror, c. 1, § 9; Brit.

11 Jas. I. c. 31; 3 Ch. I. c. 4; 16 Ch. I. c. 4, 2 Heath arg., Stroud's Case, 3 St. Tr. 284. 4 R. v Vantandillo, 4 M. & S 73; R. v 5 38 & 39 Vic. c. 55, §§ 120-129. c. 52; Bract. lib. iii. c. 4; 1 Hawk. P. C. c. 31, § 7; 3 Inst. 91, 224.

272.

In

Mansfield and of Blackstone. But Foster, while observing that ancient writers are of uncertain authority on the subject of homicide, seems to think this offence, if it be one, only cognizable in foro cali; and that, if it had been law it was singular that the enemies of Titus Oates had never thought of bringing it to bear on him.1 But the old common law scarcely doubted that this kind of killing was a capital offence, and Coke says, as David killed Uriah with his pen, so such men kill one with their tongue. cases of this kind it is not enough to say, that no visible or physical means are used, and so there can be no murder, for that rule depends, not on any importance as to the visibility of the means so much as the difficulty of tracing cause and effect. Here the deliberation and intent are ready to hand. And though perjury has its appointed mode of punishing false evidence, yet if the death is shown clearly to be a consequence of the act of false swearing, there seems no possible reason why murder should not be committed in this way. To say that a man should not be punished for one crime, because he by the same act committed also another, seems to be untenable. Though some cases, therefore, of doubtful authority encouraged the notion, that murder cannot be committed by mere words, there seems no ground for restricting the proof of murder to any particular means, so long as the connection of cause and effect is clearly demonstrated by such evidence as all mankind agree to be sufficient. There is and can be no magical importance attributable to any one out of the great variety of means open to the craft and ingenuity of malignant minds. Indeed, murder by poisoning at first differed little in the kind and cogency of its evidence from murder by words and speeches; and the operation of poisons was long equally mysterious and inscrutable, till chemical science and post-mortem examinations reduced it to rules and observations easily followed and traced out.

Poison as a means of murder.-Though murder by poison seems in modern law to differ in no conspicuous quality from other kinds of murder, it seems to have not been included in the earliest notions of murder. Probably at first murder was practised chiefly by blows, and swords, 1 Foster, Rep. 131; 1 Leach, 44; 1 East, P. C. c. 5, § 94; 4 Bl. Com. 196.