them is, in some places, difficult to be discerned: it is marked, however, in the consideration of law. In both species, it is supposed that passion has kindled on each side; and that blows have passed between the parties. But in the case of manslaughter, either the combat on both sides continues till the mortal stroke is given, or the party giving it is not in imminent danger: whereas, in the case of excusable homicide, he who is excused declines, before a mortal stroke given, any further combat, and retreats as far as he can with safety; and then, through mere necessity, and to avoid immediate death, kills his adversary.1

Though this species of homicide is very different from that which happens by misfortune; yet the judges, in one as well as the other, permit, if not direct, a general verdict of acquittal.2

V. To alleviated homicide, the term manslaughter is appropriated. When the epithet alleviated is applied to this species of homicide, it must be understood only as compared with that which is malicious: for manslaughter, though in this view an alleviated, is a felonious homicide. It is the unlawful killing of another, without malice; and may be either voluntarily, upon a sudden heat or provocation; or involuntarily, but in the commission of some unlawful act. When manslaughter is voluntary, it is distinguished from excusable homicide by this criterion—that, in the latter case, the killing is through necessity, and to avoid immediate death; whereas, in the former, there is no necessity at all; it being a sudden act of revenge. When manslaughter is involuntary, it is distinguished from homicide by misfortune by this criterion—that the latter always happens in consequence of a lawful, the former, in consequence of an unlawful act. Manslaughter, both voluntary and involuntary, is distinguished from

1 Fost. 275, 277. 4 Bl. Com. 185.

24 Bl. Com. 188.

malicious homicide by this criterion-that the latter is with, the former without, malice.

In England, manslaughter is punished by burning in the hand, and by the forfeiture of goods and chattels.1 In the United States, it is punished by a fine not exceeding one thousand dollars, and by imprisonment not exceeding three years.2 In Pennsylvania,3 it is punished by a fine at the discretion of the court, and by imprisonment not exceeding two years; and the offender shall find security for his good behavior during life. 4

VI. To malicious homicide the term murder is appropriated by the law. This name was, in ancient times, applied only to the secret killing of another; for which the vill or hundred where it was committed was heavily amerced. This amercement was called murdrum. This expression is now applied to the crime; and the crime is now considered in a very different, and much more extensive point of view, without regarding whether the person killed was killed openly or secretly.5

Murder is the unlawful killing of another with malice aforethought, express or implied. The distinction, you observe, which is strongly marked between manslaughter

14 Bl. Com. 193.

3 1 Laws Penn. 846.

2 Laws U. S. 1 cong. 2 sess. c. 9, s. 7.

The punishment of voluntary manslaughter, by the act of 22d April, 1794 (3 Laws Penn. 601, s. 7), is, for the first offence, imprisonment at hard labor, not less than two, nor more than ten years; and the offender shall be sentenced likewise to give security for his good behavior during life, or for any less time, according to the nature and enormity of the offence. For the second offence, he shall be imprisoned as aforesaid not less than six, nor more than fourteen years. In cases of involuntary manslaughter, the prosecutor for the commonwealth may, with the leave of the court, wave the felony, and charge the person with a misdemeanor; who, on conviction, shall be fined and imprisoned as in cases of misdemeanor; or the prosecutor may charge both offences in the indictment; and the jury may in such case acquit the party of one, and find him guilty of the other charge. 3 Laws Penn. 601, s. S. Ed. 6 3 Ins. 47.

54 Bl. Com. 195.

and murder is, that the former is committed without, the latter with malice aforethought. It is essential, therefore, to know, clearly and accurately, the true and legal import of this characteristic distinction.

There is a very great difference between that sense which is conveyed by the expression malice in common language, and that to which the term is appropriated by the law. In common language, it is most frequently used to denote a sentiment or passion of strong malevolence to a particular person; or a settled anger and desire of revenge in one person against another. In law, it means the dictate of a wicked and malignant heart; of a depraved, perverse, and incorrigible disposition. Agreeably to this last meaning, many of the cases, which are arranged under the head of implied malice, will be found to turn upon this single point, that the fact has been attended with such circumstances-particularly the circumstances of deliberation and cruelty concurring-as betray the plain indications and genuine symptoms of a mind grievously depraved, and acting from motives highly criminal; of a heart regardless of social duty, and deliberately bent upon mischief. This is the true notion of malice, in the legal sense of the word. The mischievous and vindictive spirit denoted by it, must always be collected and inferred from the circumstances of the transaction. On the circumstances of the transaction, the closest attention should.. for this reason, be bestowed. Every circumstance may weigh something in the scale of justice.

In England, in the United States, in Pennsylvania, and almost universally throughout the world, the crime of wilful and premeditated murder is and has been punished with death. Indeed it seems agreed by all, that, if a capital punishment ought to be inflicted for any crimes, this is unquestionably a crime for which it ought to be inflicted. Those who think that a capital punishment is

enjoined against this crime by the law which is divine, will not imitate the conduct of that Polish monarch, who remitted to the nobility the penalties of murder, in a charter of pardon beginning arrogantly thus "Nos divini juris rigorem moderantes, etc." 2

VII. Treasonable homicide is committed by a servant who kills his master, and a wife, who kills her husband. Petit treason is the name appropriated, by the law, to this crime. It arises from the relation which subsists between the person killing and the person killed. The crime which, committed by another, would be murder, is petit treason when committed by the wife, or by a servant.

The punishment of this crime, in England, is, that the man is drawn and hanged; and the woman is drawn and burned. By a law still in force in Pennsylvania, persons convicted of this crime, or of murder, shall suffer as the laws of Great Britain now do or hereafter shall direct and require in such cases respectively.5

14 Bl. Com. 194.

2 Murder, by the act of 22d April, 1794, is distinguished into two degrees. Murder of the first degree alone is punished with death, and is the only capital crime now known to the laws of Pennsylvania. Murder perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary is deemed murder in the first degree. All other kinds of murder are deemed murder in the second degree. The punishment of this is imprisonment at hard labor, for a period not less than five, nor more than eighteen years. 3 Laws. Penn. 599, 600, ss. 1, 2, 4. Ed.

34 Bl. Com. 204.

41 Laws Penn. 135.

5 "Every person liable to be prosecuted for petit treason shall in fufure be indicted, proceeded against, and punished, as is directed in other kinds of murder." Act of 22d April, 1794, s. 3. 3 Laws Penn. 600. Ed.

CHAPTER V.

OF CRIMES, IMMEDIATELY AGAINST THE COMMUNITY.

I HAVE hitherto considered crimes, which wound the community through the sides of individuals: I now come to consider one which directly and immediately aims a stab at the vitals of the community herself. I mean treason against the United States, and against the state of Pennsylvania.

Treason is unquestionably a crime most dangerous to the society, and most repugnant to the first principles of the social compact. It must, however, be observed, that as the crime itself is dangerous and hostile to the state, so the imputation of it has been and may be dangerous and oppressive to the citizens. To the freest governments this observation is by no means inapplicable; as might be shown at large by a deduction, historical and political, which would be both interesting and instructive. But, at present, we have not time for it.

To secure the state, and at the same time to secure the citizens-and, according to our principles, the last is the end, and the first is the means-the law of treason should possess the two following qualities. 1. It should be determinate. 2. It should be stable.

It is the observation of the celebrated Montesquieu,1 that if the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary 1Sp. L. b. 12, c. 7.