they ſhew a conſciouſneſs of doing wrong, and of courſe a diſcretion, or diſcernment, between good and evil.
Next, it happens when a perſon of ſuch found diſcretion unlawfully killeth. The unlawfulneſs ariſes from the killing without warrant or excuſe : and there muſt alſo be an actual killing to conſtitute murder; for a bare aſſault, with intent to kill, is only a great miſdemefnor, though formerly it was held to be murder[1]. The killing may be by poiſoning, ſtriking, ſtarving, drowning, and a thouſand other forms of death, by which human nature may be overcome. Of theſe the moſt deteſtable of all is poiſon ; becauſe it can of all others be the leaſt prevented either by manhood or forethought[2]. And therefore by the ſtatute 22 Hen. VIII. c. 9. it was made treaſon, and a more grievous and lingering kind of death was inflicted on it than the common law allowed ; namely, boiling to death : but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was alſo, by the antient common law, one ſpecies of killing held to be murder, which is hardly ſo at this day, nor has there been an inſtance wherein it has been held to be murder for many ages paſt[3]: I mean by bearing falſe witneſs againſt another, with an expreſs premeditated deſign to take away his life, ſo as the innocent perſon be condemned and executed[4]. The Gothic laws puniſhed in this caſe, both the judge, the witneſſes, and the proſecutor; "peculiari pocna judicem puniunt ; peculiari teſtes, quorum fides judicem ſeduxit; peculiari denique et maxima auctorem, ut homicidam[5]." And, among the Romans, the lex Cornelia, de ſicariis, puniſhed the falſe witneſs with death, as being guilty of a ſpecies of aſſaſſination[6]. And there is no doubt
- ↑ 1 Ha!. P. C. 425.
- ↑ 3 Inft. 48.
- ↑ 1 Foſt. 132. In the cafe of Macdaniel and Berry, reported by ſir Michael Foſter, though the then attorney general declined to argue this point of, law, I have grounds to believe it was not from my apprehenſion that the point was not maintainable, but from other prudential reaſons. Nothing therefore ſhould be concluded from the waiving of that proſecution.
- ↑ Mirror c. 1 §. 9. Britt. c. 5. Bracton. l. 3. c. 4
- ↑ Stiernh. de jure Goth. l. 3. c. 3.
- ↑ Ff. 48. 8. i.
