the said poysons were not contained in the Indictment yet the Evidence of giving them was sufficient to maintain the Indictment for the substance of the Indictment was as before is said Whether he were poysoned or not And when the cause of the Murther is laid in the Indictment to be poyson no Evidence can be given of another cause because they be distinct and other causes So if the Murther be laid by one kind of Weapon as by a Sword Dagger Stilletto Stick Tobacco-pipe Knife Sheers or other like Weapon it makes no difference the Evidence will be sufficient if the party be slain by any of these because they are all under one Classis or cause And afterwards Anne Turner Sr. Gervase Elwys and Richard Francklyn a Physician Purveyor of the Poysons were Indicted as Accessaries before the fact done And it was Resolved by all the said Judges that either the proofs of the poyson contained in the Indictment or of any other poyson although it were out of the Indictment were sufficient to prove them Accessaries for the substance of the Indictment against them as Accessaries was Whether they did procure Weston to poyson Sr. Thomas Overbury or no So that it may be observed here what in the Case above was observed by the Lo. Coke that Jurors were not to expect a direct and precise Proof in every point laid in the Indictment shewing how impossible it were to Convict a Poysoner who useth not to take any Witnesses to the composing of his slibber-sawces neither do other Murtherers to the contriving of their malice and manner of killing another but keep the fire burning in their own bosoms until it break out Nor in all Cases of Murther is it material that express Malice be proved to the Jury of Life and Death though they be to Convict the Prisoner much less or not at all is it material to prove it to the Grand Jury who are but to present it not to the Jury of Life and death in any case where the Law only implies it for such proof is in the Judgment of the Court and not in the Jury which the Jury must submit unto and be over-ruled in much less is this implied Malice to be proved to the Grand Jury for it lies not in the proof of Witnesses but in the construction of the Law as is said before and yet the Grand Jury must find those words Ex malitia praecogitata c. as if they were proved expresly unto them by Witnesses or otherwise the Jurors of Life and Death cannot enquire of the offence as Murther And the Jury of Life and Death in such a Case must find those words expresly although they cannot be proved unto them but are only implied and supplied by Law or else the party accused can never be Convicted of Murther as might be instanced in very many cases take some for all viz. One in prison kills his Keeper and makes an escape where no malice or falling out can be proved a stranger or other person kills a Watchman Constable or other Officer that hath good warrant to stay him though happily there be no cause for his stay being an Innocent person or another person and not the same they intended here 's no Malice yet this is Murther ex malitia praecogitata c. One goes into the Street or High-way and kills the first man he meets although he did never see him before The Father or Mother takes their sucking Child and dasheth out the Brains of it against the wall Two persons are fighting a Duel together upon cool blood upon premeditate malice and a third person comes to part them and is killed by one of them this is Murther ex malitia praecogitata in him that killed him if not in both although neither of them ever saw him before and yet no malice to this man One wilfully kicks or wounds a Woman great with Child whereby the Child is wounded in her she is afterwards safely delivered of the Child the Child alive the wound or bruise by the kick or blow appearing upon the Child mortally whereof afterwards it dies this is Murther ex malit praecog and yet what malice had this man to the Child he never did see Divers persons are unlawfully hunting in a Park one of them kills the Keeper after the Keeper had duly according to his Office admonished him to stand all the rest of the Company although a mile off in the said Park and out of sight are guilty of wilful Murther of the Keeper and yet nothing of malice can be expresly proved One is shooting at a Cock or a Hen and kills another person this is Murther his act was unlawful One finding a Gun or Pistol charged lying upon a Table or other place takes it up into his hands draws up the Cock not thinking it to be charged and in a jesting way gives fire at one in the Room the Gun goes off and kills him this is Murther he had nothing to do to meddle with the Gun it was out of his Calling and none of his he must Jest at his peril A Drunken-man gets upon a Horse which a sober person might ride quietly and in a Fair or Market occasions the Horse to run over another person and kills him this is Murther A gives B the lie with many other provoking words as Coward Thief Murtherer whereupon B strikes A and kills him this is Murther ex malitia c. words are not a sufficient provocation for one man to kill another If one killeth another without any provocation actual of the part of him that is slain this is Murther the Law implieth Malice If a man knowing that many People are coming along the Street from a Sermon throw a Stone over a wall or house intending only thereby to fear them and thereupon one is killed with the Stone this is Murther although he knew not the party slain If A assault B to rob him and in resisting A killeth B this is Murther by malice implied although he never knew him If one meaning to steal a Deer in a Park shooteth at the Deer and by glance of the Arrow killeth a Boy that is hidden in a Bush this is Murther the Act being unlawful though here was no intent to hurt the Boy knowing nothing of his being there If a Woman being quick with Child do wilfully with a potion or otherwise intend the destruction of the Child in her womb the Child being born alive dieth of the potion battery or other cause this is Murther If one keep a Mastiff-dog that is used to bite people near the Common Highway or a Bull or Beast that hath hurt any one after notice they kill any one it will be Murther in the Owner although not present when the fact was done and yet in this and the other precedent Cases here is no express Malice to be proved but what the Law construes to be so which can in no
Murther for the word conceal in the Statute relates not to the Body of the Infant but the death of it the words being these Shall so conceal the death thereof that it may not come to light that is to the knowledge of one Witness at least whether it were born alive or not but be concealed she shall suffer death as in case of Murther If she can prove by one Witness it was born dead then her hiding or burying it afterwards will not be Evidence against her to take away her Life upon that Statute These two Statutes create no new Offence that was not Felony and Murther before but only take away Clergy in those two cases the one of sudden and desperate stabbing then frequently in use the other of lewd Whores who having committed one sin to avoid their shame and the charge of a Bastard would commit a greater by trusting to their own strength in their Delivery that they might more privately destroy the Infant and yet avoid the danger of the Law because in that case none for the King could prove the Child born alive and therefore it was impossible to Indict and Convict her at the common Law for Murther although really and in truth it were so This Statute makes the Supposition good for the King to the Grand Jury and Jury of Life and Death and to the Judgment of the Judge in point of Law that the Child supposed to be murthered was born alive and by her murthered in regard she being a lewd woman and contrary to the Custome of honest and innocent women who always desire help in their Labour chuseth to be delivered alone this Statute puts the proof upon her if she will avoid so strong a presumption of Murther to be sure to have one Witness to prove the Child was born dead It being likewise strongly presumed that a woman without help of some other cannot be delivered of a Child at full growth dead in the Womb. Two remarkable Cases I have known in my time upon the said Statute of 1 Jac. in Oxfordshire Circuit the one in Mr. Justice Jones his time a Learned Judge that went Sixteen years together that Circuit where the Case was A cunning desperate Fellow having an intention to stab another person and yet to avoid coming within the danger of that Statute had to that purpose provided himself of a Dagger naked in his Pocket he being never known to wear any before came into an Alehouse where the party was he intended to stab and at first coming used very friendly Language unto him but afterwards all the provoking Language he could to make the other strike him which the other no sooner held up his stick to have done but he stabb'd him into the Body with his Dagger whereof he dyed No malice could be proved yet so much of his intention by his preparation and circumstances appearing to design the stabbing of the other that it was adjudged to be within the meaning though not within the Letter of the Statute the Lord Chief Baron Davenport being the other Judge of that Circuit and he was denyed his Clergy and after Judgment was Executed It being then observed by the Judges That immediately after the making of that Statute many desperate Fellows that could read as Clarks to those they had a mind to quarrel withal would use all means to make them strike first and then suddenly stab them and by this way avoid the said Statute and become guilty only of a Manslaughter at Common Law and so receive the benefit of Clergy which the Statute takes away The other Case was in the same Circuit very lately before Mr. Justice Windham at the Assizes at Worcester a little before his death Where a Father correcting his Son for some undutifulness he conceived in him having a Knife in his hand being eating his dinner struck his Son over the back with his knife and gave him a stab whereof he died The Judge apprehended this Offence to be within the Statute notwithstanding that Exception in the Statute of a Father correcting or chastising his Child or Servant in regard it was an unreasonable way and means of correction whereupon he reprieved the Father for some short time and advised with the rest of the Judges at Serjeants Inn and after he had their Opinions that it was within the Statute he forthwith sent down a Warrant to the Sheriff to do Execution having received Judgment of Death at the Assizes and yet the words of the said Act of Parliament are although his Son or Servant dye of such correction he shall not be within the said Act Observe here how necessary it is That all the circumstances that can be in an offence of blood be put into an Indictment and be so found by the Grand Jury as it is advised by the King's Counsel where there is innocent blood shed by the party indicted that every part and circumstance of the Fact with all its aggravations may come to be considered and weighed by the Court which otherwise cannot be as in this Case of the Father killing his Son if the Indictment had not been drawn upon the Statute but at Common Law in regard of that Exception in the Statute as the Grand Jury then would have had it the party had been capable of Clergy and so might have escaped that Judgment of Death If such difficulties appear to the Learned Judges upon due consideration of the Law and of all circumstances in cases of blood how much more will it prove difficult to Grand Jurors and how little reason have they to expunge alter and obliterate circumstances of aggravation in such an Indictment upon hearing only of one side as they please and so prevent the Judgment of the Court therein taking from them the power even to examine such a circumstance as may if truly stated and examined rule the whole Case as before is observed In all the Offences formerly mentioned where Clergy is taken away by those Statutes there is no new offence of Felony or Murther made that was not so before the making of those Laws as might be instanced in Murther Robbery Burglary Sacriledge Cutting of Purses Stealing of Horses Rape and the like but only Clergy taken away from the Offender which is no more but the abusive bloody liberty of Clerks in those times restrained as wilful Murther where malice appeared and other mixt and simple Felonies which were then most raging and reigning Offences in the Kingdom and cryed out for a greater Remedy a stricter Law to be made against them as appears by the Preambles of those Statutes that take away Clergy in those Special Cases that were Murther and Felony at the Common Law before from whence I conclude that the Forms of Indictments of Felony or Murther are no way directed to be altered by those Statutes that take away Clergy but are to continue in the same form as they did before at the Common Law And I
am not of their Opinion That the words ex malitia praecogitata came into Indictments immediately after the aforesaid Statute of 23 H. 8. Certainly there were Murthers committed and that frequently of malice fore-thought before the making of that Statute and those Murtherers had their Clergy also otherwise that Statute had never been made to take it away If the Grand Jurors shall say They will not find those words Ex malitia praecogitata put into the Indictment except the malice be plainly proved to them then farewel that distinction and inference of implied malice which the Law makes in many Cases and which otherwise cannot be made they may as well say That they will not find such words Treason that are Treasonable because no Act of Parliament or express Case at Common Law says those particular words are Treason or that they will find no Indictment of Burglary although the Goods stoln be found with the Thief and the dwelling House broke because no Witness stood by to see the breaking of the House entring into it and stealing thence the Goods Or against a Cut-purse though the Purse or Mony be found in his hand or because none see him take it forth of his Pocket or to find the Indictment because it is laid to be done Vi armis with force and arms and yet said to be done in the same Indictment clam secrete sine notitia privily secretly and without notice of the party which in Fact could not be done if it were done by force or arms Or to find an Indictment of Robbery done upon the High-way against those that rob in Vizards notwithstanding the mony be owned and found about them because the party cannot swear he saw their faces and that these were the men Or that such a one kill'd a man that comes out last from him with a bloody Sword in his hand and no person besides with him In all these Cases it is possible the Parties accused might find the Goods stoln and so might the bloody Sword be sound and another do the Fact but sure here is great and violent presumption sufficient for an Accusation for a Grand Jury to find an Indictment which is but an Accusation upon Record to bring the Delinquent or Party so strongly suspected to a Judicial Trial and as well may it be presumed when one Christian is kill'd by another it may be Murther that there may be a seed of malice in the will of him that did it by a voluntary and spontaneous motion in that act that may upon a greater Debate contain some circumstance in it that by some reason in Law better known to the Learned Judge than the Grand Jurors that may in Law prove malice expressed or implyed in the criminous Person And if it be so difficult in cases of blood for Grand Jurors to determine what is Murther and what is not let them consider how dangerous a thing it is for them to miscarry in their Presentment in cases of blood of innocent blood as is before manifested and so acquit the Murtherer and take the imputation of blood-guiltiness with them from the Assizes to their respective Families where it may and will cry against them and the whole Kingdom for vengeance I do therefore submit it to their serious consideration upon what hath been said Whether it be not much better and a safer way for them to submit their Judgments herein to the Rule of Law and the Resolutions of the Learned Judges than by their extenuating presentment for the Court can go no higher than they present to stifle Justice in the birth and to acquit a Murtherer For the Indictment although no part of the Trial yet is the very Basis and Foundation of all the other Proceedings And let them consider how strict formerly the very Law of England was in King Edward the Second's time in cases of blood where the very will and intent to kill a man although it was not executed was punished for the Deed although the party wounded recovered of his wounds A memorable Case there was in that King's Reign cited by Justice Stamford where one compassed the death of another and did so grievously wound him that he left him for dead but afterwards the party recovered this was then adjudged Murther because his will appeared so plainly to have kill'd him For as Bracton says In maleficiis spectatur voluntas non exitus then was the Will by our Law as it is yet before God reputed for the Deed But now our Law couples the Will and the Act together in cases of blood but looks more upon the Act than the Will For though the Will do neither intend the Act as it is done nor approve of it after it is done yet if the Will in any part of the Act be criminous it makes the Offender in our Law in cases of blood guilty of the whole Fact with all the obliquity and evil in it As if a man intend only to beat another to strike him but not to kill him and the party die of the stroke it may be murther in him that gave the stroke So if three men come to make a Disseisin and one of the three kill a man the other two persons are guilty as principals in the murther although they neither consent to it will it or strike the Party nor came with that intent but only were in company to have done another Act. So if one to kill his Wife give her lying sick Poyson in a roasted Apple and she eating a little of it give the rest to a little Child of theirs which the Husband lest he should be suspected suffereth the Child to eat who dieth of the same poyson this is murther though the Wife recover for the Poyson ministred upon malice prepensed to one which by a contingency procureth the death of another whom he meant not to kill nor bear any malice to shall be as great an Offence as if it had taken the effect which he meant proceeding from a naughty and malicious intent So where two men combat together upon the evil and provoking words of a woman and the one killeth the other the woman in this case was Arraigned of the death of him that was kill'd and in this Case the Grand Jurors found it murther So if an ignorant person take upon him to give Physick to one that is not well and through his ignorance administreth that unto him that apparently kills him this is murther And so it might be instanced in many similar Cases which are not to be disputed by Grand Jurors but presented by them in re forma as the Indictment is advised by the King's Council and comes to their hands where they find as before is said a criminous Party in the Indictment and a Body found of a reasonable Creature certainly or probably kill'd by him although the Evidence be not express to every circumstance of aggravation as it is laid down in