he be an idiot or insane person,' an alien enemy,2 convicted of a capital crime,' or struck with a mortal disease.*

The life, which is destroyed, must be complete by the birth of the person deprived of it."

A child, in its mother's womb, is not in being, nor is it born, so as to be the subject of murder, until its whole body is brought into the world, and it has an independent circulation."

But if a child be born alive, and then die in consequence of potions administered or violence done, before its birth or during its birth, it is the killing of a human being."

1 Daft Jamie's C., 1 Hume, 275.

21 Hale, 433; Inglis's C., 1 Hume, 275; Maxwell's C., ib.

3 Bowen's C., 13 Mass. R. 356; in this case the deceased was to have been hung the next day. Vin. Abr. Murder, B. 3.

4 Martin's C., 5 C. & P., 128; Jean Ramsay's C., 1 Hume, 267.

5 Livingston, 346; 1 Hale, 433; Roscoe, 565; Davis's Cr. Law, 97, and authorities, infra.

The law was formerly otherwise. Bracton said that it was murder, to destroy a child in the womb of the mother, if it was formed, and especially if it had quickened there; and the contemporary writers support the same opinion, (Bracton 1, 3 f; Fleta, B. 1, ch. 23, § 10, 11, 12,) although the contrary is now well settled in conformity with the statement in the text. See citations in note 5.) The question seems to have been much discussed by the philosophers and lawyers of Rome, (Poth. Pand. 48, 8, No. 5,) as it has also been by the writers of the common law of the continent of Europe. Tittman's Compendium, § 145. And the better opinion would seem to have been, with both, that the destruction of a child in the mother's womb, after it had quickened there, was the killing of a human being.

7 Enoch's C. 5 C. & P. 329; Brain's C. 6 C. & P. 344.

8 Pulley's C. 5 C. & P. 539.

The commissioners have here stated the common law as they believe it to exist. There are no cases in the American, and but two, which they find in the English books upon the subject. The earliest is a case before sir G. Scrope, reported in the Year books, (1 Edw. 3, 23, pl. 18.) See it in full, 24 Eng. C. L. Reps. 447, note (a). There the defendant had beaten a woman, pregnant with two children. One of them was dead born; the other was born alive, and baptized, but died two days after the injury, in consequence (as was charged) of the beating of its mother before its birth. The judges held that the defendant was not guilty of a felony, (murder or any homicide) but of a misdemeanor only.

The doctrine of this case is maintained by lord Hale, (1 Hale, 443,) and sir Geo. Staundford, (Staund. 21). But lord Coke denied it to be the law, and

insisted "if a child be born alive, and dieth of the potion, battery or other cause, which happened before its birth, it may be murder," (3 Inst. 50-1,) and quotes Bracton, who goes, as we have seen, much further, (see note 6), he maintaining that it may be murder to destroy a formed child in the mother's womb, certainly if it have quickened there. In Gould, 176, pl. 110, Coke, Fenner and Popham, Js., are said to have ruled, that if one "beat a woman great with child, and after the child is born living, but hath signs and bruises on his body, received by the said battery, and after die thereof, this is murder (homicide), and the difference is where the child is born dead, and where it is born living, for if it be dead born, it is no murder (homicide), for non constat whether the child were living at the time of the battery or not, or if the battery was the cause of the death.”

The opinion of lord Coke has been followed, by nearly all the later writers upon the criminal law, and the authority of the case in the Year-books has been for a long time much impaired, if not entirely overthrown. 1 Hawk. ch. 31, § 16; 4 Blk. Com. 198; 1 East, ch. 50, § 14; 3 Chitty, 727; Archbold, 320; 1 Russel, 424, and note; Roscoe, 505; Davis's J. 311.

A very recent case in England has removed all doubt as to the common law of that country.-(Senior's C., Moody's C. C. 344.) Joseph Senior was convicted of manslaughter (homicide) before Bolland, B., at the Chester spring assizes, 1832, for inflicting a wound upon a child, during its birth, but before it had breathed, and while it was still in ventre sa mere. The case was afterwards submitted to the twelve judges, who unanimously held the conviction right.

The commissioners find that child-murder, and especially the killing of illegitimate children, has been the subject of particular provisions in many of the foreign codes, the killing during birth, and within twenty-four hours afterwards, being put on the same ground and punished as an offence less than murder. They do not find, however, any provision as to the death of a child, after birth or twenty-four hours after birth, on account of an injury previously received.

The books of the Scottish law, so abundant in illustration of most of the - principles relating to murder, contain, so far as the commissioners know, no cases upon this point. Hume quotes the doctrine from Hawkins, and adds, "but it is difficult to imagine (and no more needs be said in such a case,) that in these circumstances, a decisive proof can be obtained of the true cause of the death of the child." It will be seen also, that the difficulty of proof had great weight with lord Hale and sir George Staundford.

3. THE KILLING MUST BE UNLAWFUL.

Every killing of a human being, which, &c.

To ascertain what constitutes murder, it remains to be explained what is an “unlawful," and what a “malicious" killing.

ART. III.-SKETCHES OF ENGLISH JUDGES.-NO. 2.

THOMAS EGERTON was the son of sir Richard Egerton, of Ridley in Chester, by Alice, daughter of Sparke, and was born in that county about the year 1540. At the age of sixteen he was admitted a commoner of Brazen-nose college in Oxford, and removed from thence, in 1559, to Lincoln's Inn, where he studied the law with equal assiduity and success, and acquired soon after his appearance at the bar, the highest distinction as well for his eloquence as for his professional learning. Many years elapsed before he became a public officer, for he sought not for patronage, and abhorred intrigue. At length, on the 28th of June, 1581, Elizabeth appointed him her solicitor-general, and he remained in that office without further promotion, till the 2d of June, 1594, when he was placed in that of attorney. On the 10th of April, 1596, he was raised to the place of master of the rolls, and on the 6th of the following month to that of lord keeper, on the sudden death of sir John Puckering.

It seems well established, that he owed this elevation to the queen's sole favor, and that it was beheld by the people with the highest approbation. Nature, which had endowed him with all the grand principles whereon to form a statesman, had given him also dispositions which tended to render him unfit for that character. His perfect integrity, and the frank simplicity of his mind and heart, were ill suited to the practice of those artifices and frauds, which exalt the fame of the politician, while they ought to degrade that of the man. It is perhaps owing to this circumstance, that we know but little of his diplomatic negotiations, although it was the fashion of the time to entrust them mostly to eminent lawyers. In 1598, the lord keeper was in commission for treating with the Dutch in order to lessen the charge of the war with Spain, and with lord Buckhurst

and others, signed a new treaty at London, with the ambassadors of the states, whereby the queen was relieved from the payment of no less than £100,000 per annum, besides gaining other advantages. In 1600, he was again in commission with the lord treasurer, Buckhurst, and the earl of Essex, for negotiating affairs with Denmark, and once more, towards the conclusion of his life, for the surrendering the cautionary towns into the hands of the statesgeneral.

It is probable, however, that he was strictly the keeper of the queen's conscience, and that such of her affairs as could be submitted to the regulation of unmixed wisdom and honor, were directed solely by his advice. Strictly of that nature was the mediation which Elizabeth secretly entrusted to him, by which she vainly sought to shield the amiable and frantic Essex against his own rage. The lord keeper and Essex lived in the strictest friendship and confidence. Their dispositions to common observers seemed to be dissimilar almost to opposition, but the perfect honesty of their hearts, that sublime principle, compared to which the petty differences of character among men will be found to be little more than habits, had bound them in a firm union. This friendship, which on the part of the lord keeper was constantly interposed to bring Essex to a just sense of his duty, and the queen to a dispassionate consideration of his merits and infirmities, which enabled him to submit, with a patience and magnanimity only equaled by Essex's madness, to the indignity and danger of being locked up by that nobleman in Essex house, which he had visited unprotected with conciliatory proposals from the queen, exposed to the fury of an infatuated mob, by which his life was every moment threatened,—this friendship was terminated but by the stroke under which the earl soon after fell on the scaffold.

Upon the accession of James, he tendered his resignation

of the great seal, May 3d, 1603, but was with the most flattering expressions on the part of the king, commanded to retain it. On the 19th of July following, James, not by the customary warrant, but by a notice, as is said, in his own hand writing, bestowed on him the title of baron Ellesmere "for his good and faithful services, not only in the administration of justice, but also in council to the late queen and to himself." His patent for that honor was dated on the twenty-first of the same month, and on the twenty-fourth his great office was dignified by the more splendid style of lord high chancellor. Towards the end of that year he presided at the trials of lords Cobham and Grey, and in the next was one of the commissioners for the union of Scotland to England, which was then ineffectually attempted. In 1605, he was appointed high steward of the city, and in 1610 elected chancellor of the university of Oxford, in which character he opposed his authority with an earnest, but well-tempered zeal, and with the strictest impartiality, against the popish and puritan parties, which in his time had attained to a great, though unequal, ascendancy in that body. The church of England never had a truer son, nor learning a more earnest friend; those therefore, who rose by his means, were generally as much distinguished by their orthodoxy as by their erudition. Among the many who shared his favor, the most remarkable were Bacon and Williams, the one selected from the law, the other from the church, and each of these filled at length the exalted seat, which had been so long and so worthily held by their venerable patron.

The peace of lord Ellesmere's latter days was somewhat clouded by an attack on the jurisdiction of his court, which was indirectly encouraged by the great chief justice Coke, rather as it should seem, from a natural turbulence, and busy restlessness of temper, than from any particular impression of malice or envy. The cause, progress, and ter