Ch. 14. WRONGS. 199 terion, which now diftinguifhes murder from ether killing : and this malice prepenfe, malitia praecogitata, is not fo properly fpite or malevolence to thedeceafed in particular, as any evil defign in general ; the dictate of a wicked, depraved, and malignant heart 11 ; tin difpojition a fair e tin male chafe : and it may be either exprejs, or implied in law. Exprefs malice is when one, with a fedate deliberate mind and formed defign, doth kill another : which formed defign is evidenced by external circumftances dif- covering that inward intention ; as lying in wait, antecedent menaces, former grudges, and concerted fchemes to do him ibme bodily harm". This takes in the cafe of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their own lives and thofe of their fellow creatures ; without any warrant or authority from any pov/er either divine or human, but in direct contradiction to the laws both of God and man : and therefore the law has juftly fixed the crime and punifhment of murder, on them, and on their feconds alfo y . Yet it requires fuch a degree of paflive valour, to combat the dread of even undeferved contempt, ari- fing from the falfe notions of honour too generally received in Europe, that the ftrongeft prohibitions and penalties of the law will never be intirely effectual to eradicate this unhappy cultom ; till a method be found out of compelling the original aggreflbr to make fome other fatisfaction to the affronted party, which the world mail efleem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the perfon iniulted, as of him who hath given the infult. Alfo, if even upon a fudden provocation one beats another in a cruel and un- ufual manner, fo that he dies, though he did not intend his death, yet he is guilty of murder by exprefs malice; that is, by an exprefs evil defign, the genuine fenfe of malitia. As when a park-keeper tied a boy, that was flealing wood, to a horfe's tail, and dragged him along the park ; when a mailer corrected his
u Fofler. 256. * i Hal. P. .451. w 2 Roll. Rep. 461. r i Hawk. P. C. 82. fervant
