Page:William Blackstone, Commentaries on the Laws of England (4th ed, 1770, vol IV).djvu/209

 Ch. 14. WRONGS. 197

but this is equally murder :n faro confcientiae as killing with a fword ; though the modern law (to avoid the danger of deter- ring witnerTes from giving evidence upon capital profecutions, if it mud be at the peril of their own lives) has not yet pu- nifhed it as fuch. If a man however does fuch an act, of which the probable confequence may be, and eventually is, death ; fuch killing may be murder, although no flroke be ftruck by 'himfelf : as was the cafe of the unnatural fon, who expofed his lick father to the air, againft his will, by reafon whereof he died k ; and of the harlot, who laid her child in an orchard, where a kite ftruck it and killed it '. So too, if a man hath a beaft that is ufed to do mifchief ; and he, knowing it, fvff'ers it to go abroad, and it kills a man j even this is manflaughter in the owner : but if he had purpofely turned it ' loofe, though barely to frighten people and make what is called fport, it is with us (as in the Jewiih law) as much murder, as if he had incited a bear or a dog to worry them m. If a phyfician or fur- ^eon gives his patient a potion or plaifter to cure him, which contrary to expectation kills him, this is neither murder, nor manflaughter, but mifadventure ; and he (hall not be punilhed criminally, however liable he' might formerly have been to a civil action for neglect or ignorance" : but it hath been holder, that if it be not a regular phyfician or lurgeon, who ad'minifters the medicine or performs the operation, it is manflaughter at the leaft . Yet fir Matthew Hale very juftly questions the law of this determination ; fince phyfic and falves were in ufe be- fore licenfed phyficians and furgeons : wherefore he treats this doctrine as apocryphal, and fitted only to gratify and flatter li- centiates and doctors in phyfic ; though it may be of ufe to make people cautious and wary, how they meddle too much in fo dangerous an employment p . In order alfo to make the kill- ing murder, it is requiiite that the party die vv'-.hin a year and a day after the flroke received, or cauie of death adminiftred ;

k i Hawk. P. C. 78. " Mirr. 0.4. ..o. iecVol. III. pag. 122. J i Hal. P. C. 452. Britt. c. 5. 411111.251. Ibid, 431. P i Ha!. P. 0.430. in