mand, he was not only flogged, but was beaten a second time the day following, with such unheard of severity, and cruelty that death ensued in less than a fortnight.

You may well, Gentlemen, appear amazed when I say such will be the testimony, for 'tis a tale of horrors at which every humane ear must be astonished, but the sad recital is nevertheless true.

Homicide, Gentlemen, is the killing of any human creature.

And,

When the killing is through malice or general depravity, it is murder.

When without malice, it is manslaughter.

When through misfortune, or in self-defence, it is excusable.

And,

When in advancement of public justice, in obedience to the laws, it is justifiable.

And in order that you may be enabled to make discriminations, I beg leave to call your attention to Blackstone's Commentaries, 4th vol. page 176 to 204. 5 Bacon 118 to 125, and 1st Hale 431.

From the lengthy quotations which I have just made, you must be fully aware, Gentlemen of the jury, of the distinctions which the law makes of the several kinds of homicide, and doubtless you have noted, that in order to constitute the crime of murder, malice must be proved to exist at the time of the perpetration of the horrid act; but, Gentlemen, in a legal sense the word malice is not to be interpreted or

understood in the manner it is in common parlance or conception; it is not to be conceived a settled rancour of mind which has been concealed in the breast of him who kills, and upon opportunity presenting, is fatally exercised-No, Gentlemen, that is not the construction which you are bound by your oaths to put upon the word "malice," and that my dictum may not be a rule for your decision. I will now read to you part of a case in which you will find the true legal signification of malice fully expressed. (Here Mr. Lisle quoted Sir John Kelyng's Reports, "Regina vs. Maugridge," pages 126, 127 and 128.

"Some have been led into mistake by not well considering what the passion of malice is; they have construed it to be a rancour of mind, lodged in the person killing, for some considerable time before the commission of the fact; which is a mistake, arising from the not well distinguishing between hatred and malice. Envy, hatred and malice are three distinct passions of the mind.

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"1st.Envy, properly is a repining or being grieved, at the happiness and prosperity of another, invidus alterius rebus macrescit opimis.'

"2nd. Hatred, which is odium, is, as Tully saith, ira inveterata, a rancour fixed and settled in the mind of one towards another, which admits of several degrees. It may arrive to so high a degree, and may carry a

man so far as to wish the hurt of him, though not to perpetrate it himself.

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"3rd. Malice is a design formed of doing mischief to another, cum quis data opera male agit, he that designs and useth the means to do ill is malicious, 2₫ Inst, 42. Odium signifies hatred; Atia, malice, because it is eager, sharp and cruel, he that doth a cruel act voluntarily, doth it of malice prepensed, 3 Inst. 62. By the statule of 5 Hen. 4, if any one out of malice prepensed, shall cut out the tongue, or put out the eyes of another, he shall incur the pain of felony; if one doth such a mischief on a sudden, that is malice prepensed; for, saith my Lord Coke, if it be voluntarily, the law will imply malice.

Therefore when a man shall, without any provo cation, stab another with a dagger, or knock out his brains with a bottle, this is express malice, for he designedly and purposely did him the mischief. This is such an act that is malicious in the nature of the act itself, if found by a jury, though it be sudden, and the words ex malitia præcogitata, are not in the verdict, 1 Cro. Charles 131. Halloway's case, who was woodward of Austerly Park; a boy came there to cut wood, whom by chance he espying, and the boy being upon a tree, he immediately calls to him to descend, which the boy obeying, Halloway tied him to an Horse's tail with a cord that the boy had, then gave him two blows, the Horse runaway and brake the boy's shoulder,

whereof he died. This was ruled to be murder by all the Justices and Barons, except Justice Hutton, who only doubted thereof; and that was a stronger case than this, for there was some kind of provocation in the boy, who was stealing the wood in the Park, of which Halloway had the care; and it cannot be reasonably thought that he designed more than the chastisement of the boy, and the horse running away in that manner, was a surprise to Halloway; yet in regard the boy did not resist him, his tying him to the horsetail, was an act of cruelty, the event whereof proving so fatal, it was adjudged to be malice prepensed, though of a sudden, and in the neat of passion. This case is reported in Jones 198. Pal. 585, and there held, that the Court could determine it to be malice prepensed upon the special matter found. Crompton 23. Two playing at Tables fall out in their game: one upon a sudden kills the other with a dagger; this was held to be murder by Bromley at Chester Assizes, 27 Eliz. so in this case, if the bottle had killed Mr. Cope before he had returned the bottle upon Maugridge, that would have been murder without all manner of doubt."

The doctrine respecting malice, I will also quote from a very highly respected modern authority; East's pleas of the Crown, let Vol. Fol. 224.

You have heard, Gentlemen, the legal definition of malice, and, if you receive the testimony, I have assu

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red you will be given, I am certain you will feel satisfied that if malice did not constitute the crime of murder in the killing of Prosper by the prisoner, it never could have been an ingredient in any offence heretofore committed; and that those who have hitherto been convicted of, and executed for murder, must have been illegally sacrificed at the shrine of justice.

You will have no doubt, I am sure, Gentlemen, that the killing of Prosper was murder; your senses, your feelings, your consciences, will tell you so; for at the horrid occurrences set forth in the indictment, your very natures revolt. What but malice induced that monster in cruelty to, coolly, lay down his miserable slave, and cart-whip him for upwards of an hour at the works? What but malice, diabolical malice could instigate him, after the poor, helpless, forlorn creature was lacerated till his flesh hung in shreds upon him, to order him up to the house on the hill, and there again, after having lashed him to a tree, a second time, to beat, cut, wound and torment the victim of his cruelty, until nature was exhausted, and his head fell down backwards, and he was no longer able to bawl? What but malice induced him to confine, chain, famish and persecute even unto death the friendless African? Turn humanity, turn from the melancholy, dreadful spectacle, for 'tis one thou canst not bear to contemplate; turn from that fatal spot,