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The objections to this rule of evidence divide themselves into two sorts, the first depending for their validity upon the technical character of the law of murder under the common law, and the second resting on the broader ground that it is irreconcilable with the general and acknowledged maxims of criminal jurisprudence. In considering these, and especially the first, it will be convenient to refer briefly to the history of homicide under the English law. It will be remembered that in Legg's Case, where the rule under discussion was found unequivocally laid down for the first time, the authority cited for that position was Mackalley's Case. That was a case of great importance, decided on a special verdict by all the judges in the year 1611. The defendant was indicted for killing one of the king's officers. The jury found that the defendant struck the fatal blow, but did not find that he did it feloniously or of malice aforethought. The judges held, among the several points decided, that the office of the jury was only to show the truth of the facts, and it was for the court to say whether such facts amounted to the crime charged or not. Lord Coke, in his report of the case, makes this comment: “ If one kills another without provocation, and without any malice prepense which can be proved, the law adjudges it murder, and implies malice; for by the law of God every one ought to be in love and charity with all men, and therefore when he kills one without provocation, the law implies malice.” This is language similar to that used by Lord Hale, and the phrase “without proyocation” has been understood to mean “ without any provocation proved,” on the well-established rule that in law things not prored are held not to exist. And this interpretation is rendered rational by considering the manner in which the character of the act was brought before the court by means of special verdicts. In such cases the jury found the material, that is, the external facts, and upon these the court were to draw their conclusions as to the character of the act. In doing so they could take into account only those facts found by the jury. If, therefore, the jury found that the accused struck the fatal blow, and said nothing about any facts that might have tended to prove provocation, it would be necessary for the court to assume that there were no such facts; and in the report of a case thus brought

39 Co. 676.

3 Com. v. York, 9 Metc. 93.

1 Kelyng, 27.

before the court, it would be natural to speak of it as one where the prisoner killed the deceased without provocation, that is, where no facts tending to prove provocation were found by the jury. This case is important in another aspect, as throwing light upon the relation that murder and manslaughter bore to each other. It is here stated by Lord Coke, that if one be indicted of the murder of another upon malice prepense, and he is found guilty of manslaughter, he shall have judgment upon this verdict, for the killing is the substance and the malice prepense the manner of it ; and when the substance is found, judgment shall be given thereupon, although the manner be not precisely pursued. That doctrine was first settled in 1553. The defendant was indicted for murder, and the jury found that he killed the deceased, but not with malice prepense. The question was whether he should be utterly acquitted under this verdict, or whether judgment for manslaughter should be pronounced, or whether the verdict could only be used to indict him for manslaughter. But the court held that the substance of the matter was whether he killed him or not, and the malice prepense was but matter of form or the circumstance of the killing. And although the malice prepense. makes the manner more odious, yet it is nothing more than the manner of the fact and not the substance of the fact, for the substance is the killing, and when substance and manner are put in issue together, and the jury find the substance and not the manner, judgment shall be given for the substance. The doubt in this case was occasioned by the statute 23 Hen. VIII. and statute 1 Edw. VI., enacted a few years before, by which the benefit of clergy was taken away from those convicted of wilful murder of malice prepense, and thus for the first time a practical distinction was made between felonious homicide, or manslaughter, as it was afterwards called,? and murder with malice prepense. This case established the construction of these statutes, which has ever since prevailed. Murder and manslaughter are not essentially separate and distinct offences, but the same in substance, differing only in the form. This is expressing the matter in technical language, following that of pleading ; but no form of words could more forcibly have expressed the theory that the change of punishment for one existing species of criminal homicide did not create any new offence, did not go to the substance of the matter, that is the fact of the killing, as is said, but only touched the manner or circumstance of the fact. In a trial on an indictment for murder therefore, after these statutes, in which the prisoner might be acquitted of the murder, but in which, if the necessary facts came out on the trial, he might be convicted of manslaughter, it was not illogical for the court to disregard the grade of manslaughter in raising the presumption of intent to commit murder from the fact of killing, provided of course they were authorized to admit such a presumption where no intermediate grade of the offence existed.

i Salisbury's Case, Plow. 101. 2 Staunf. Pl. Coron. b. 1, c. 10; Lamb. Eiren. c. 8,

Now although the modern law of homicide dates practically from this statute 23 Hen. VIII., yet the law upon the subject had been gradually elaborating itself before that period, and its earlier history affords many suggestions to account for the existence of the principle of the presumption of malice, as it has since prevailed in its more definite shape. Glanville divides homicide into two sorts, the first called murder, which is perpetrated secretly, no one seeing it or knowing it except the slayer and his accomplices; the second called simple homicide. In the book called Regiam Majestatem there is a similar division of homicide in law into simple homicide or killing, and murder, which is "committed quietly.”3 Bracton made a more elaborate subdivision of the kinds of homicide, among which those by unavoidable necessity, by accident or misadventure in the performance of an unlawful act, or negligence in the performance of a lawful act, and by wilful intention of the perpetrator, were punishable. Wilful homicide was described as when any one “of certain knowledge and in a premeditated assault, from anger or hatred or for the sake of gain, wickedly and feloniously and against the peace of the lord king, slay any one."1 This description is not unlike our idea of murder. But in Bracton's time murder was only one species of wilful homicide, and was said to be the unlawful killing of a foreigner perpetrated secretly. Bracton says he includes the word foreigners, extraneorum, in the definition, because whether the deceased were known or not, it was always presumed that he was a Frenchman, unless, by a presentment of Englescherie, it was proved that he was an Englishman. If proper presentment of Englescherie were not made, the presumption stood, and the vill where the murder occurred, or if that were too poor, then the hundred, was amerced in the sum of sixty-six marks, and this fine was also called murdrum. This law, he says, grew out of an enactment of King Canute, made for the protection of his Danes, against secret killing by the English. And this law seems to have been continued by William for the protection of the Normans. This is the provision adverted to by the learned judges in Com. v. York, who, however, refer to the account of the matter given by Lord Holt. That judge, however, seems to have extended the presumption beyond what is to be gathered from Bracton. He says that in such cases it was always to be presumed, 1. That the man slain was a Frenchman; 2. That he was killed by an Englishman; 3. That the killing was murder. But however that may be, it is certain that these laws tended to make the crime of secret killing peculiarly odious, as being that most dangerous to society, from being least liable to detection. Moreover, the form of inquiry in cases of secret killing differed from that in cases of other felonious homicide, since in murder only blood relations could make presentment of Englescherie,

I Bentham, however, makes this division of homicide into two grades in the common law the basis of a characteristic criticism upon the rule in question. After stating the rule as laid down by Gilbert, he says : “But in his zeal to destroy somebody who, though the jury would have thought otherwise, it must be presumed deserved to be destroyed, Gilbert, who on this occasion is the representative and mouthpiece of the learned tribe, forgets that there was any such distinct thing as manslaughter, and that, according to the account thus given of the matter himself, murder and manslaughter are exactly the same thing." Benth. Rat. Jud. Ev. (Introd. View) c. 12, $ 12. See 2 Bish. Cr. Proc. $ 618.

i “Cnum est quod dicitur murdrum quod nullo vidente, nullo sciente, clam perpetratur . . . et aliud dicitur simplex homicidium.” Glanv. de Leg. et Com. lib. xiv. C, 3.

3 "There is twa kindes of slauchter; ane quhilk is called murther, qubilk is committed quyetlie, na other man seing or knawing the samine.” Skene, Reg. Majest. h. iv. c. 5, no. 3.

1 Brac. de Leg. lib. iii. c. 4.

2 “Murdrum vero est occulta extraneorum et notorum hominum occisio, a manu hominis nequiter perpetrata et quæ, nullo presente, nulle sciente, nullo audiente, nullo vidente, clam perpetratur.” Brac. de Leg. lib. iii. c. 15; vide Leg. Hen. I. c. 92, $$ 1-6.

3 Leg. Conb. 15.
* Leg. Conq. c. 21; vide 1 Thorpe, Anc. Laws, 602.
6 Mawgridge's Case, Kelyng, 122.

6 In the Assizes de Jerusalem, the crime of killing a man in the night and in his own bed, is called by a corresponding name, “Murtre est quant home est tué de nuit ou en repos dehors ou dedans vile.” Ass. de Jerusalem, c. 85.

while in other cases not only relations, but those allied to the deceased by homage or dominion, and who had seen the killing, were admitted to an appeal. This fact, and the presentment of Englescherie, must have kept the offence of murder very distinct from that of other felonious homicide. The reason of the process of the presentment of Englescherie, however, ceased after a time, and it was finally abolished in 1340 by statute 14 Edw. III. But the word murdrum, from indicating at first merely one peculiar species of punishable homicide, gradually made its way into all inquests and indictments for felonious killing. So that, while at first the essential words were nequiter et in feloniâ et præmeditato assultu, in course of time the necessary words were, quod murdravit and ex malitia præcogitata. But before the statute of 23 Hen. VIII. it made no practical difference whether the indictment recited that the prisoner killed the deceased wickedly and feloniously, or that he murdered him of malice prepense, for all homicide, or at least all unlawful homicide, including that in selfdefence and by misadventure, was punishable with death, and it was all equally clergyable. In homicide se defendendo and per infortunium, however, the offender could have a pardon.

Although from this view of the early law of felonious homicide it cannot be said, as was supposed by Mr. Justice Wilde, that the modern rule of the presumption of malice from the fact of killing had its origin in the arbitrary provisions that gave rise to the presentment of Englescherie, yet considering that the word murder was originally confined to secret killings, that is, to cases where such a presumption would be most practically available, and that afterwards the word came to apply to all felonious homicide, and was so used until statute 23 Hen. VIII., when, as we have seen, it was confined to the worst sort of such homicides, it is natural to suppose that while the word was working its way into general use, it should have aided to establish a rule which certainly is more applicable in those cases originally denoted by that word than to any others, that is, to secret killings. Moreover, it is everywhere apparent that

Glanv. lib. xiv. c. 2.

2 3 Reeve, Hist. Com. Law, 542. 3 Fleta says that murder is the secret killing of a man unlawfully done, while mere homicide is the killing of a man unlawfully done. “Homicidium est hominis occisio ab homine nequiter facta.” “Est autem murdrum occulta hominem occisio a manibus hominum nequiter perpetrata." Fleta, lib. 1, cc. 23, 30.

Com. v. York, 9 Metc. 93, 129.

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