Page:William Blackstone, Commentaries on the Laws of England (4th ed, 1770, vol IV).djvu/210

 PUBLIC BOOK IV.

in the computation of which, the whole day upon which the hurt was done fhall be reckoned the rirlt 9. FARTHER ; the peribn killed muft be " a rcafonable creature " in being, and under the king's peace," at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace or protection, is as much murder as to kill the moil regular born Englishman ; except he be an alien- enemy, in time of war r . To kill a child in it's mother's womb, is now no murder, but a great mifprilion : but if the child be born alive, and dieth by reafon of the potion or bruifes it recei- ved in the womb, it is murder in fuch as adminiftred or gave them 5 . But, as there is one cafe where it is difficult to prove the child's being born alive, namely, in the cafe of the murder of baftard children by the unnatural mother, it is enacted by ftatute 21 Jac. I. c. 27. that if any woman be delivered of a child, which if born alive mould by law be a baftard j and en- deavours privately to conceal it's death, by burying the child or the like ; the mother fo offending fhall fuffer death as in the cafe of murder, unlefs me can prove by one witnefs at leaft that the child was actually born dead. This law, which favours pretty ftrongly of feverity, in making the concealment of the death almoft conclufive evidence of the child's being murdered by the mother, is neverthelefs to be alfo met with in the cri- minal codes of many other nations of Europe ; as the Danes, the Swedes, and the French 1 : but I apprehend it has of late years been ufual with us in England, upon trials for this offence, to require fome fort of prefumptive evidence that the child was born alive, before the other constrained prefumption (that the child, whofe death is concealed, was therefore killed by it's parent) is admitted to convict the prifoner. LASTLY, the killing muft be committed with malice afore- thought, to make it the crime of murder. This is the grand cri- < i Hawk. P. C. 79. ! 3 Inft. 50. i Hawk. P. C. So. ' 3 Inft. 50, i Hal. P. C. 433. t See Barrington on the ftatutes. 425. terion,