Wednesday, December 14, 2016

Report of the Capital Punishment Commission

In June, 1864, I published an article in this magazine, which reviewed the whole subject of capital punishments, and replied to some of the arguments commonly used against them. That article also pointed out the respects in which, in my opinion, the law required alteration, and in particular insisted upon the importance of making such alterations in the present definition of murder, if it can be called a definition at all, as would bring it into harmony with popular feelings upon the subject. I was subsequently examined as a witness before the Commission, and explained at greater length and in more detail the views which I had stated in the article. The Commission has now made its report, and my present object is to make some remarks upon its recommendations.

On the main question of the abolition of capital punishment the Commissioners offer no opinion. It is obvious, indeed, that the question is more one of feeling than of facts; and the feelings with which men will regard the subject are not likely to be affected by the report of a Commission.

Their practical recommendations are four in number. I shall confine my observations to one only—that which suggests the revision and amendment of the law relating to murder. The definition which is at present given of this crime is so wide that it includes many acts which clearly ought not to be the subjects of capital punishment. The Commission accordingly recommend an alteration. Their recommendations are in the following words:—
8. We proceed to offer such recommendations as we think expedient for altering the present law of murder. It appears to us that there are two modes in which the change may be effected.
9. The first plan is to abrogate altogether the existing law of murder, and to substitute a new definition of that crime, confining it to felonious homicides of great enormity, and leaving all those which are of a less heinous description in the category of manslaughter.
10. The other plan is one which has been extensively acted upon in the United States of America, where the common law of England is in force; this leaves the definition of murder and the distinction between that crime and manslaughter untouched, but divides the crime of murder into two classes or degrees, solely with the view of confining the punishment of death to the first or higher degree.
11. We have given both these plans our serious consideration, and we are of opinion that the required change may be best effected by the latter, which involves no disturbance of the present distinction between murder and manslaughter, which does not make it necessary to remodel the statutes relating to attempt to murder, and does not interfere with the operation of those treaties with foreign powers which provide for the extradition of fugitives accused of that crime. The object proposed can be attained by a short and simple enactment, providing that no murder shall be punished with death except such as are particularly therein mentioned.
These should be called murders of the first degree; all other murders should be called murders of the second degree, and punished as hereinafter recommended.
12. We recommend therefore—
(1) That the punishment of death be retained for all murders deliberately committed with express malice aforethought, such malice to be found as a fact by the jury.
(2) That the punishment of death he also retained for all murders committed in, or with the view to, the perpetration, or escape after the perpetration, or attempt at perpetration of any of the following felonies: murder, arson, rape, burglary, robbery, or piracy.
(3) That in all other cases of murder the punishments be penal servitude for life, or for any period not less than seven years, at the discretion of the Court.
No one who has considered the subject will be inclined to doubt that the Commissioners are perfectly right in their wish that the law should be altered; but it appears to me that if their suggestion as to the mode of making the alteration is accepted, a most valuable opportunity of effecting a legal reform of the first importance will have been lost, and that the existing condition of the law, had as it is, will have been involved in still greater confusion than exists in it at present. In order to set this matter in its true light, and to show its full importance, it will be necessary to say something, not only of the definition of murder in particular, but of the definitions of crimes in general which form a part of our law, and of the characteristics which are common to all of them.

No one can have paid much attention either to the study or to the practice of the criminal law without being struck, on the one hand, with the substantial narrowness of the field which it covers, and, on the other hand, by its enormous and unwieldy complexity and intricacy in practice. Leaving out of account those branches of the criminal law which come into operation only on rare occasions, and confining our attention to the common routine of criminal business, it will appear that the total number of crimes which lead to trials at the assizes or sessions may be reduced to surprisingly few heads. Murder, and the infliction of bodily injury; theft, with or without violence to the person or the habitation; arson, and other malicious injuries to property; forgery; and offences against the coinage, make up probably nineteen-twentieths of the whole list. If the separate offences falling under these five heads be again considered, and if they are compared with the cases which have been decided in connection with them, the reason of the excessive intricacy of our whole system of criminal law will at once become apparent. It may be described in a very few words, ‘mala stamina vitae.’ The fundamental definitions of crimes have every fault that definitions can have, and until this fundamental error is recognised as such, until its importance and the ease of correcting it are fully understood, the law itself will never be coherent and rational, nor will its administration ever be practically satisfactory. I will now proceed to develope and illustrate these statements, and to show that the defects of the law of murder arise out of the way in which not only murder but all other crimes have been defined amongst us, and that those defects can be removed only by supplying new and sound definitions. I will then proceed to show that this is practicable, and indeed easy; and that the considerations which the Commissioners view in the light of objections are in reality so many strong arguments in favour of the proposal which they reject.

First, then, let us look at the general character and history of English definitions of crimes. Open any standard law-book on the subject, such as Russell on Crimes, or Roscoe’s Criminal Evidence, and elaborate chapters on all the crimes mentioned above will present themselves to the reader, entering into distinctions of the most subtle kind, and crowded with discussions of which, without a special acquaintance with the subject, he will understand neither the method nor the object. The general result will be a vast mass of details, bewildering to the understanding and overwhelming to the memory. If all this intricacy is followed up to its source, and that which is inherent in the subject-matter itself divided from that which is the result of unskilful legislation, direct or indirect, it will be found that the whole system is ultimately built upon a set of vague descriptions—for they do not deserve to be called definitions—of great antiquity, which have been supplemented and patched up from time to time by successive generations of judges and text-writers. Thus the present state of things has at last been produced by the isolated efforts of different people, each of whom endeavoured, without concert with the rest, to apply the rules which they had laid down to some state of facts which in all probability had never presented itself to the mind of the man who originally laid down the rule. In every part of the law, but especially in the criminal law, the judges for centuries past have been occupied in solving the problem what their predecessors would have thought of a state of facts which never was before them, if it had been brought before them. Having arrived at a conclusion, which again was always more or less modified by their own notions of justice or expediency, they declared that conclusion to be the law of the land. Thus all definitions of crimes--and especially the definitions of murder and theft which lie respectively at the bottom of the two great departments of the criminal law, offences against the person and offences against property—are exceedingly complicated aggregates. These aggregates are composed of the remarks of different people on a subject which those who originally wrote upon it were by no means competent to handle properly, and which those who brought greater ability to its consideration at a later time were not able to handle freely, because the limits within which they were to consider it had already been prescribed to them by their predecessors. Thus, for instance, at an uncertain time an unknown person introduced into the definition of murder the word ‘malice.’ The first inventor of this phrase, whoever he may have been, probably attached no very definite meaning to it, and employed it without having the least idea of the number of intricate questions of which it would afterwards be made the centre. When he had once succeeded in introducing it into the definition of murder, the ingenuity of many subsequent generations of judges and text-writers was exercised in trying to adapt it to new sets of circumstances as they arose. The consequence of the continuance of this process for many generations has been the production of what the Commissioners justly call ‘arbitrary rules’ and ‘nice and subtle distinctions,’ of which ‘the practical result’ is ‘most unsatisfactory.’ In order to show fully how and why it is so unsatisfactory, and how much more unsatisfactory it would be made if their proposed alterations were adopted, it will be necessary to give in some detail an account of the law of murder and of its history.

The earliest definition of murder in English law is given in Bracton, and, like the greater part of his book, is taken, with certain modifications, from the Roman law. Murder, according to him, was one of the subdivisions of homicide, which he defines as the killing of a man by a man, and classifies as follows:—

Murder therefore was a secret, wilful, actual, corporal homicide; and in Bracton’s time, and long afterwards, it differed in no material respect from what we now call manslaughter, for both murder and manslaughter were punished with death, and each were within the law of benefit of clergy. The peculiarity of murder was, that it entailed what was called a ‘presentment of Englishry;’ that is to say, unless the coroner found that the murdered man was an Englishman, he was presumed to be a Norman murdered out of spite; and the township in which his body was found was liable to a fine.

From the time of Bracton there were very few writers on the criminal law till the latter part of the sixteenth century. Fleta repeats what Bracton had said; the ‘Mirror,’ which is a book of little authority and uncertain date, is to much the same purpose. It is remarkable, however, that the expression ‘malice aforethought,’ appears in the ‘Mirror’ in a form given for appeals of murder; that is, for the civil action which was then the usual way of bringing murderers to justice. The appellor is made to allege that the appellee committed the crime ‘upon malice forethought feloniously.’ The expression also occurs in an early statute of pardon (13 Rich. 11., st.2, c.1), in which murders ‘with malice aforethought’ are exempted from the list of crimes included in the pardon. The expression occurs also in a statute, 23 Henry VIII. c.13, by which persons guilty of ‘wilful’ murder ‘with malice prepense’ were deprived of the benefit of clergy. The date of this enactment is 1533. Somewhat later, Standford and Lambard wrote upon the subject, and laid down that murder is homicide with malice prepense, whether the act is open or secret, and whether the person killed is or is not an Englishman. This is clearly inconsistent with the Act of 1533, the wording of which obviously implies that there are some kinds of murder in which there is no malice aforethought.

It thus appears, upon the whole, that the present definition of murder is founded upon a vague phrase introduced no one knows when, why, by whom, or in what sense. All that can be said of it is, that it is entirely different from the original sense of the word murder, i.e. secret killing; and that it contradicts the earliest Acts of Parliament in which the phrase ‘malice aforethought’ was used, for by treating ‘murder with malice aforethought’ as a peculiar species, not of homicide, but of murder, these statutes plainly imply that in some kinds of murder malice aforethought was absent.

The next step in the history of the law of murder is Lord Coke’s account of it. He defines murder thus: ‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth, within any country of the realm, any reasonable creature in rerum naturâ under the king’s peace, with malice forethought, either expressed by the party or implied by the law, so as the party wounded or hurt, &c., die of the wound or hurt, &c.., within a year and a day after the same.’ He goes on to explain what malice means, and says: ‘Malice prepensed is when one compasseth to kill, wound, or hurt another, and does it sedato animo. This is said in law to be malice forethought prepensed.’ He then adds, that malice is implied by the law in three cases. ‘First, in respect of the manner of the deed. As if one kill another without any provocation the law implieth malice.’ So poisoning (which, he adds, may be done four ways--gustu, anhelitu, contactu, and suppostu—and by divers poisons, as the powder of diamonds, the powder of spiders, due. &c.) implies malice.  Secondly, in respect of the person slain. If a magistrate or known officer is slain in the execution of his duty, the law implies malice. Thirdly, in respect of the person killing. A. tries to rob B. B. resists, and A. kills him. ‘This is murder by malice implied, albeit he never saw or knew him before.’ ‘If a prisoner by the duresse of his gaoler cometh to untimely death, this is murder in the gaoler, and the law implieth malice by reason of the cruelty.’ ‘If the sheriff, where he ought to hang the party, burn or behead him, or e converse, the law implieth malice in him.’ ‘If a lieutenant or other that hath commission of martial authority, in time of peace, hanger otherwise execute any man by colour of martial law, this is murder, for this is against Magna Charta . . . and here the law implieth malice.’

It is out of this doctrine of Coke’s that the whole modern law of murder, as we have it, has taken its form; and it is worth while to attend with some particularity to its character. In Bracton we see two different elements at work. On the one hand, there is the rough brutality of an almost barbarous age, which punished with death almost every description of homicide. On the other side, there is the ingenuity and love of classification, for classification’s sake, which are the special characteristics of the Roman law, it from which this part, like nearly the whole of Bracton’s work, was taken. [In an account of the definitions of the Roman lawyers on the subject of homicide, in Adolphe and Hélie’s Théorie du Code Pénal, iii. 385, &c. ch.46.] This trivial ingenuity altogether passed away and was lost sight of in the interval between Bracton and Standford, and by degrees a rough classification obtained which divided killing into murder if there was, and manslaughter if there was not, ‘malice aforethought.’ The natural meaning of those words was a personal grudge, and a positive settled intention to kill, on the part of the criminal. Experience, however, soon showed how rough and inadequate this distinction was. In many cases where the moral guilt was obviously of the deepest dye—as in the case of a robber killing in order to effect a robbery—there was no settled hostility, and no deliberate intention to kill. These cases showed that the crime had been ill-defined, and that neither malice, in the common sense of the word, nor premeditation, nor both together, were the proper tests by which the worst kinds of killing might be distinguished from those which were less had. The proper course would have been to have discarded the old phrase, and to have chosen a more appropriate one upon a full examination of the subject: but English lawyers have never taken this course. Parliament was never a very suitable theatre for discussions about the proper use of words; and in Coke’s time, and long afterwards, the common law was regarded with a sort of idolatry, as something much too wise and good to be rudely questioned and reformed. Hence it had to be adapted to common sense by a set of fictions, of which the fiction of implied malice is a good illustration. The phrase is worth examining. It is murder, says the law, to kill with a premeditated intent to kill, proceeding from ill-will towards the person killed. It is also murder to kill with an implied premeditated intent to kill, proceeding from ill-will towards the person killed. What sense is there in these words? What state of mind is an ‘implied’ premeditation? The first word does not modify the second. It is like talking of a green premeditation, or the square root of a premeditation. A meaning might no doubt be given to the expression, by interpreting it to relate to the question of evidence, and so asserting that, by the law, certain facts were taken as conclusive proof of a premeditated design to kill. This would do pretty well for Lord Coke’s first case of implied malice. It is reasonable enough to say that to kill deliberately, without any apparent provocation at all, or by means which, like poisoning, involve art and contrivance, ‘implies or suggests the existence of premeditation and ill-will; but it is an abuse of language in such cases to say that the law implies malice. The malice is in these cases a real fact, of which other real facts are the evidence. It would be as reasonable to say that the law ‘implies’ that a man cuts another’s throat in cases in which six unprejudiced witnesses swear that they saw him do so. It is impossible, however, to make any sense at all of the doctrine of ‘implied’ malice in connection with Coke’s second case of implication. A robber kills his victim in order to carry out the act of robbery. Here, says Coke, the law ‘implies’ a premeditated intention to kill, arising out of personal ill-will, in order to punish so atrocious a crime in a proper manner. Why could not the law, or, to speak more properly, the legislator, punish the crime as it deserved without making a false statement about it? Why say malice aforethought shall mean something quite different from what it really does mean, because malice aforethought is an essential element in murder, and this kind of killing is as bad morally and politically as killing with malice aforethought? This is to be at once a slave and a tyrant to words—a slave to the sound and a tyrant to the sense.

After discussing the subject of murder-and introducing into the Subject, or at least recording, for the misfortune of his successors, the fiction of implied malice—Coke, in his usual disorderly manner, goes on to homicides in general, under which head he considerably enlarges the definition of murder by a set of distinctions which are inconceivably absurd. The whole of his chapter on this subject is confused and disjointed in the extreme. He says: ‘There is no difference between murder and manslaughter, but that the one is upon malice forethought, and the other upon a sudden occasion, and therefore is called chance-medley.’ He then mentions in the most cursory way one or two cases of manslaughter, and afterwards goes on, so confusedly that it almost seems as if part of the chapter must be lost, to describe justifiable homicide, homicide se defendendo, and homicide per infortanunim. He defines this last thus: ‘Homicide by misadventure is when a man doth an act that is not unlawful, which, without any evil intent, tendeth to a man’s death.’ Upon the word unlawful he adds: ‘If the act be unlawful it is murder.’ . . . ‘So if one shoot at any wild fowl upon a tree and the arrow killeth any reasonable creature afar off, without any evil intent in him, this is per infortanunim, for it was not unlawful to shoot at the wild fowl; but if he had shot at a cook or hen, or any tame fowl of another man’s, the arrow by mischance had killed a man, this had been murder, for the act was unlawful.’ In these chapters Coke says nothing of manslaughter by negligence.

Hale was the next writer of eminence on the criminal law. He treats it far more philosophically than Coke, but follows in the road which Coke had marked out, as indeed he was obliged to do. He distributed the subject in a rather different manner, and by doing so introduced into the law a considerable modification, which still forms a part of it. He distinguishes murder and manslaughter as Coke distinguished them, as being killing ‘of malice propense,’ and ‘upon a sudden provocation and falling out.’ He also divides malice into express and implied; and, after illustrating the meaning of express malice, he gives, as the first kind of implied malice, cases ‘where the homicide is voluntarily committed without provocation,’ and in connection with this he enters upon the question of the degree of provocation which will reduce murder to manslaughter. The elaborate intricacy of this, and the great change quietly effected by it in the law may not be immediately perceptible, and may require explanation. Coke had put the case of one man killing another without provocation, as an instance in which the law would imply malice. Hale transforms this, by the rearrangement of the subject just described, into the modern doctrine that all voluntary killing is presumed to be murder, unless the person who has done the act succeeds in proving the existence of a sufficient provocation to reduce it to manslaughter. He then goes on to describe what the sort of provocation is which has this effect. Blows are such a provocation, but words of insult are not, unless possibly the violence which causes the death is of a kind which was not likely to cause death. This was a moot point in Hale’s time, though it was developed at length by Foster, and is now a well-established part of the law. This doctrine, when combined with the definition of manslaughter given afterwards, makes the law coherent, but throws its phraseology into strange confusion. Manslaughter is defined as ‘the voluntary killing another without malice express or implied.’ But, by the doctrine just stated, malice is always implied in the case of a voluntary killing, unless provocation can be shown. Thus the word ‘malice,’ with its various divisions into express and implied, becomes a mere alias for provocation. If it is always implied unless there is a provocation, the presence of express malice becomes immaterial, and the second and third cases of implied malice—i.e. when the homicide is ‘done upon a minister of justice,’ and when it is done by a person that intends ‘a theft or burglary, &c.’—also become superfluous. The law of malice, as stated by Hale, might be thus parodied:—
‘Bread is either leavened or unleavened.
Leaven is either express or implied.
Express leaven is the substance called yeast.
Leaven is implied in three cases:—
First-It is implied in all white bread.
Secondly-It is implied in all brown bread.
Thirdly, and lastly--It is always implied in every sort of bread, unless the person denying its presence can show that the bread in question contains no yeast.’

Surely this is rather a cumbrous way of saying that there either is or is not yeast in a loaf of bread. Yet all Hale’s elaborate apparatus comes to this, that if one person intentionally and culpably kills another, he either does so without provocation, which is murder, or with provocation, which is manslaughter.

Sir Michael Foster stands at about the same distance from Hale as Hale from Coke. His work on the Crown Law consists partly of a report of certain cases which he considered important; and partly of several ‘discourses’ on different branches of the law, including in particular one on high treason and another on homicide. The discourse on homicide appears to me to be far superior both to Hale and to Coke. It enters into a variety of particulars about homicide by necessity, per infortanunim, and the like, which are foreign to the present question, and are more or less complicated with curious antiquarian subtleties now laid aside. The great merit of the discourse is that it gets rid of the fiction of implied malice, and substitutes for it a reasonable definition or rather description of malice as ‘such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit.’ In other words, Foster views malice as being synonymous with wickedness, and then enumerates the various circumstances which are considered by the law as such symptoms. He remarks with great good sense: ‘Most, if not all the cases which in our books are ranged under the head of implied malice, will, if carefully adverted to, be found to turn upon this single point, that the fact hath been attended by such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief.’ This is obviously the simplest and most perspicuous way of treating the subject, and the criminal law appears still to have retained enough of the character of a science depending on principles of its own, in Foster’s time, to have been susceptible of a good deal of moulding in the hands of a really able writer who happened also to be placed in a conspicuous, and especially in a judicial, position. Still, however, the opposite character was so strongly impressed upon it that the most absurd of all the rules of the law of England upon the subject of murder is repeated by Foster from Coke, without criticism, though no one was more alive than he to Coke’s great defects. After laying down his general principle about malice, Foster says: ‘A. shooteth at the poultry of B. and killeth a man; if his intention was to steal the poultry, which must be educed from circumstances, it will be murder by reason of that felonious intent; but if it was done wantonly, and without that intention, it will be but barely manslaughter.’ It is a curious proof of the power of dyslogistic epithets, that the word ‘felonious’ so completely overpowered Foster as to make him take it for granted that every felonious act showed ‘a heart regardless of social duty, and fatally bent upon mischief,’ in respect even of the accidental consequences of the act itself. His perceptions, however, were probably somewhat blunted by the cruelty of the criminal law in his time.

Foster’s simple and reasonable way of considering the subject has unfortunately not prevailed. Since his time the criminal law has fallen almost entirely into the hands of reporters. During the whole of the present, and part of the last century, a succession of reports of Crown cases, and of treatises on criminal law, which are little more than digests of the reports intended almost entirely for the practical purpose of being quoted in court and referred to in argument, have followed each other with so much rapidity that the criminal law, like every other branch of our jurisprudence, is swollen to an immense and unwieldy size and shape. In order to give some sort of notion of the degree in which the subject is overgrown with authorities, I will give a short account of the way in which it is treated in the last edition of Sir William Russell’s standard book on crimes and misdemeanours. The chapters on murder and manslaughter fill 216 very large and closely printed 8vo. pages, which comprise nearly everything that has ever been said upon the subject by any text-writer or judge, or in any-court of justice. The subject is opened by a definition of murder quoted from Coke, which is followed by Foster’s definition of malice, and next by Hale’s division of malice into express and implied - an unfortunate arrangement, as one of Foster’s objects was to do away with the subtleties about implied malice recorded, if not invented, by Coke. After this come several cases about the person killing; then many others as to the person killed, bearing on the whole subject of infanticide; then various illustrations of the different means by which death may be caused, including many cases as to homicide by neglect; as to the responsibility lying on parents, guardians, the masters of apprentices, &c., as to providing for children or apprentices; as to homicide by mala praxis; as to suicide and as accessories. All this occupies between forty and fifty pages; after which the author observes:—
‘A statement of the several instances of gross and direct wilful murder cannot be thought necessary, but there are a variety of cases of a less decided character, and some upon which doubts have arisen, which may properly be here considered. An apt arrangement often is a. matter of some difficulty, yet the .following order seems to be appropriate:—I. Cases of provocation. 2. Cases of mutual combat. 3. Cases of resistance to officers of justice, &c. 4. Cases where the killing takes place in the prosecution of some other criminal, unlawful, or wanton act. 5. Cases where the killing takes place in consequence of some lawful act being criminally or improperly performed, &c.’
This is followed by a full abstract of as many cases on these subjects as fill upwards of forty more pages. A chapter is then interposed on the indictment, trial, and evidence in cases of murder; after which the subject of manslaughter is treated with the same immense enumeration of cases arrayed under precisely the same heads, and occupying this time about 100 pages. Here and there general rules are laid down as the result of the cases. For instance, after a great number of cases have been detailed, it is said:—
‘In all cases of slight provocation in which it may be reasonably estimated, from the weapon made use of, or from any other circumstance, that the party intended to kill or to do some great bodily harm, wilful homicide will be murder.’
After another long detail of cases it is said:—
‘From the cases which have been stated in the former part of this section, it appears that malice will be presumed, even though the act be perpetrated recently after the provocation received, if the instrument or manner of retaliation be greatly inadequate to the offence given, and cruel and dangerous in its nature; for the law supposes that a party capable of acting in so outrageous a manner upon a slight provocation must have entertained a general, if not a particular malice, and have previously determined to inflict such vengeance upon any pretence that offered.’
Further on, after a variety of cases about resistance to lawful apprehension, it is said:--
‘Where persons having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing and killed, it will be murder in all who take a part in such resistance.’
There are other rules in other parts of the treatise in question, but these are enough to illustrate the form into which the law has fallen in course of time, and under the influence of unlimited and unregulated reporting. That form is a strange mass of precedents, principles, and rules, of which the precedents form very much the largest part. It may, however, be said with some confidence that the subject is at length exhausted; and that rules free from all fiction (like those quoted above) have at length been established, by which the meaning of the unlucky word ‘malice’ has been reduced to a certainty. Indeed, so fully has the subject been discussed, and so very complete is the collection of illustrations, that for the last twenty years and more no single case has been decided which materially varies the law upon the subject. The authorized reports from 1844 to the present time are those of Dennison, Dearsley, Dearsley and Bell, Bell, and Leigh and Cave. None of these contain any case which affects the definition of murder. As hundreds of trials for that crime have taken place during the period in question, it is obvious that the law may be considered to have taken its final shape, and our experience on the different ways in which, and circumstances under which, men may take away each other’s lives may be said for all practical purposes to be complete. The shape of the law is cumbrous in the extreme, and, as the Commissioners have found, it is to a considerable extent unsatisfactory. But there can be little real doubt as to what it is.

In this state of things, the question is how the law is to be altered. Its faults are obvious enough. The most important of them are that no importance is attached to provocation, except the provocation of considerable personal violence and the actual sight of adultery committed by a wife; and that the law goes too far in considering that the fact that an act which causes death was done in the commission of a felony is conclusive evidence of that malice which constitutes murder. The case mentioned by Foster and others, about the man who shoots at a fowl with intent to steal, and accidentally kills a man, is an extreme case of this principle; and though it is doubtful whether in the present day the extreme severity of such a rule would not prevent it from being acted upon, several cases have occurred at no very great distance of time in which men have actually been executed in accordance with it. Not very many years ago, for example, a burglar was hanged at Lincoln for murder, in having killed an old lady, rather by fright than violence. He broke into the house where she was, and threw a pillow over her, not with the intention of killing or even of injuring her, but probably as a sort of threat. The effect on her nerves was such that she immediately died. A similar case happened perhaps about the same time, or rather earlier, at Warwick. Three boys went out to pick pockets. One gave a blow to an old man to make him lean forward, snatched his watch from his pocket, and passed it to his accomplices. The old man was fat and weak, and the blow killed him, though it was not a severe or apparently dangerous one. All the three boys were convicted of murder, and sentenced to death. So, too, the rule which makes it murder to kill any officer of justice in the execution of his duty, without reference to the means employed or the intention of the criminal, is exceedingly harsh. Take, for instance, the case of a thief tripping up a constable who tries to arrest him, and accidentally killing him. Would it not be monstrous to treat such an act as murder? yet murder it undoubtedly is by law. ‘The law implies malice’ in cases of resistance to lawful authorities. So, again, suicide is murder; and if two persons attempt to commit suicide together, and one escapes, the one who escapes is a principal in the murder of the other. It is easy to see that in all these cases the law is far too wide, and it is obvious enough that it came to be too wide by the generality of the original definition, ‘murder is wilful killing with malice afore-thought,’ which generality many generations of judges reduced to a definite shape, acting upon the view which they happened to take of the particular facts which chanced from time to time to come before them. Such being the Commissioners have had before them two proposals for its alteration. On the one hand, it was recommended that the law should be recast, and the crime of murder re-defined. On the other, it was proposed that the law should be left as‘ it is, but that an Act should be passed providing that sentence of death should not be passed in cases of murder unless the jury found, as a fact, the presence of express malice aforethought, or unless the murder were ‘committed in, or with a view to, the perpetration, or escape after the perpetration or attempt at perpetration, of any of the following crimes—murder, arson, rape, burglary, robbery, or piracy.’

In considering these recommendations, I will first examine the suggestion made by the Commissioners, and give my reasons for objecting the defects of the law, and such its general condition to it, and then show that the other course is perfectly practicable and easy, and that it would be attended with many advantages which would be lost by adopting the proposal of the Commissioners.

In the first place, it must be observed that the proposal to leave the law unaltered, but to split the crime into two degrees, is obviously a proposal not to simplify the law, but to make it much more complicated than it was before. All the ‘nice and subtle distinctions’ of which the Commissioners justly complain will be left just as they are, to take the most favourable view of the case; and the question will be complicated by the further question of the two degrees of murder. It is, however, too much to hope that the law will be left as it is, with the addition of an extra complication.  It will be rendered far worse, as I now proceed to show. At present the distinction between express and implied malice has in practice become obsolete. Though it still to some extent perplexes the subject, a series of positive rules, which are at all events intelligible and complete, have practically superseded it. For instance, when a judge has to deal with a case of death inflicted in the commission of a felony, he does not explain to the jury the difference between express and implied malice, but tells them broadly that to inflict death in the commission of a felony is murder, and the same course is taken in the case of resistance to officers in the execution of their duty, &c. In short, though the law has not been expressly codified, it has worked itself by degrees into a system which has some of the advantages of a code, as it admits of being thrown into the shape of a set of positive rules which have been established by a vast number of cases. Pass an Act of Parliament declaring that ‘express malice aforethought to be found as a fact by the jury’ is to be a necessary ingredient of murder in the first degree, and this advantage will be entirely given up, and the old legal fictions will all be revived. Let us consider what ‘express malice’ means. Whatever else it is, it is not ‘implied malice.’ But what are Lord Coke’s cases of implied malice? Poisoning, he says, is a case of ‘implied malice.’ So is a murder committed either without any assignable motive, or in the execution of another crime, such as robbery. The Commissioners propose to provide specially for the case of murders committed in the execution of another crime, and therefore their recommendation is that if A. kills B. without any precise assignable motive ‘to be found as a fact by the jury’—as, for instance, if he secretly poisons him, and no motive appears—this is to be murder in the second degree. If this is not their meaning, they use the words ‘express malice’ in a different sense both from Lord Coke and Lord Hale; for Coke expressly says that poisoning, where no special grudge is proved, is a case of implied malice; and Hale says that malice is implied in all cases, unless its absence can be shown. Hence, if Coke and Hale are to be authorities at all, the law as proposed to be altered by the Commissioners will be that all murders are to be assumed to be murders in the second degree, unless the particular grudge between the parties can be proved, or unless the crime is committed in the perpetration of one of the other crimes mentioned. Surely this is an absurd result. If, however, it is the result which the Commissioners wish for, their recommendation, instead of using the obscure phrase ‘express malice aforethought,’ should substitute its equivalent, when their recommendation would be expressed thus: ‘The punishment of death should be retained for all murders deliberately committed, for which there can be assigned some definite motive of ill-will towards the person murdered, to be found as a fact by the jury.’ A definite motive of ill-will must be what Coke and Hale meant by express malice, or they would never have defined implied malice as they did. When the proposition is thus .stated in plain words, it implies, in the first place, that murders may be deliberately committed without any definite motive of ill-will against the person murdered (which seems remarkable); and, in the second place, that the punishment of a murderer is to depend on the degree of knowledge which the jury may be able to attain of the state of his feelings before he did the act. Surely common sense tells us, that if one man deliberately or intentionally kills another, it does not matter what his motive is. If it were benevolent—if he wished to send the man to heaven, or to rid him of a painful and lingering disease—that ought to make no difference, unless every one is to have the power of life and death over all his neighbours.

It may indeed be that the essence of the Commissioners’ recommendation lies not in the words ‘express malice,’ but in the words ‘to be found as a fact by the jury;’ and it might perhaps be held, by a sort of analogy to the law of libel, that the effect of the proposed enactment would be to remit it to the jury, in every particular case, to say whether or no the circumstances of that case exhibited what they would call express malice aforethought. It appears probable that this was their meaning, as otherwise they leave the question of provocation just as it is. If this is the intention, the effect would be very similar to that of the French system of extenuating circumstances, which is one of the worst and weakest parts of their law. If such a power were given to the jury, they would become, not judges of the fact, but depositaries of the Crown’s prerogative of mercy, and this they would have to exercise under the pressure of vehement and eloquent appeals to their passions. In a case, for instance, like Townley’s, the trial would no longer be an inquiry into facts. It would consist principally of vehement appeals to the sympathies of twelve small shopkeepers or farmers chosen by chance, and called upon to decide, not on the question of fact as at present, but on the propriety of hanging A. B.; and this decision would have to be given on the bare evidence admissible for the purpose of examining the facts, and under the excitement of the moment. The present mode of exercising the prerogative of mercy is most unsatisfactory in every possible way, but it is at least calm, dignified, and deliberate. In determining on the fate of a man convicted of murder, the Home Secretary takes his own time. He inquires into such collateral facts as may appear to him to be relevant to the question whether it is desirable to hang a particular person, and which could not have been admitted in evidence on his trial. He is known to the public, and is responsible in various ways for the advice which he gives. He is also a Cabinet Minister, and may thus be presumed to have some acquaintance at least with the principles on which punishment ought to be administered. None of these things are true of a jury. They cannot travel out of the evidence before them; they must decide on the spot; they have no special acquaintance with the administration of criminal justice; and their number is just large enough to shield them from any sort of responsibility. The system of extenuating circumstances incorporates for the time being popular sentimentality, whether in the fierce or in the tender mood, as the case may be. It is, in short, a device intended solely to shirk a difficulty which the Legislature ought to face and solve, by throwing the solution of it on a body which is particularly unfit to bear it.

If proof of this is required, it is to be found in the way in which the law relating to extenuating circumstances has worked in France. It is a constant occasion of ignominious compromises. The jury constantly convict with little or no evidence when their passions are aroused; and find extenuating circumstances in cases of the worst kind of guilt, if their sensibility happens to be worked upon either by the speeches of advocates, or by any romantic circumstances in the case itself. The introduction of sentiment and romance into the administration of any branch of the law is an immense evil, and this would be the direct and inevitable consequence of introducing into our own system the change proposed, if I have rightly conjectured its meaning.

The objection which I have been illustrating may be put very shortly as follows. If ‘express malice aforethought’ is made a necessary ingredient in murder in the first degree, and if those words are construed as meaning what Coke and Hale say they mean, many of the worst kinds of assassinations will be treated as murders of the second degree, so long as the motive of the murderer is not brought to light.

If the words ‘to be found as a fact by the jury’ mean that the jury, without being guided by any rule at all, are to decide whether the particular circumstances proved in a particular case do or do not constitute ‘express malice aforethought,’ then the French law of extenuating circumstances, with all its evils and weaknesses, will be introduced into this country.

It may be added that it is altogether uncertain which of these two things the recommendation of the Commissioners means. The use of the well-known technical words ‘express malice aforethought’ point to the first meaning. The use of the words ‘to be found as a fact by the jury ’ points to the second; for by the law as it stands, malice, whether express or implied, must always be found as a fact by the jury.

I now come to the second class of crimes, which the Commissioners propose to describe as murders of the first degree. These are murders committed ‘in, or with a view to, the perpetration, or escape after the perpetration, of murder, arson, rape, burglary, robbery, or piracy.’

This is an adaptation of the old rule that malice is implied when the death is caused in the commission of a felony. The Commissioners felt, and felt justly, that this was far too severe. The cases which have been mentioned above, of the man shooting at a tame fowl with intent to steal, and the like, are instances of this excessive severity. Their recommendation appears to me to be quite as arbitrary as the old law, and to be likely to work great injustice both in what it includes and in what it excludes. In the first place, the list of crimes to which the rule applies appears to be far too small. Murder committed in, or with a view to, the perpetration of high treason, is surely as bad a crime as murder committed in, or with a view to, robbery. A Fenian brother deliberately shoots or poisons the sentries at Dublin Castle, in order to prepare the way for an attack on it. According to the Commissioners, this is murder in the second degree only. There is no ‘express malice aforethought,’ for the prisoner had no personal ill-will to any particular man, and the object of the murder was neither to perpetrate, nor to escape after perpetrating, murder, arson, rape, burglary, robbery, or piracy. The object was to commit high treason, and therefore the prisoner, if tried on a capital charge at all, must be tried for high treason, with all the cumbrous incidents attached to such a prosecution, and the murder must be laid as an overt act of treason. To vary the illustration let us suppose that the victims were officers of a gaol, and the object to rescue a powerful leader of rebellion from lawful custody. A more atrocious crime could scarcely be conceived, yet the same remark would apply, unless by some quibble the breaking into the prison were viewed as burglary. This, however, would not be the case if the victims were the judges on the bench, the counsel, and the officers in court. A general massacre of all these persons, for the sake of rescuing a prisoner, would only be murder in the second degree.

Take another case of a similar kind. It is a felony riotously to demolish or begin to demolish a house. It is also a felony for more than twelve persons to continue riotously assembled together for more than an hour after the Riot Act has been read. It is also a felony to wound with intent to do grievous bodily harm; and if, in the commission of any of these felonies, death is wilfully caused, the crime is murder, and the punishment at present is death. Let us suppose the recurrence of such a scene as the Bristol riots. The streets are full of armed mobs ; the Riot Act has been read; houses are being burnt or pulled down on all sides; several soldiers are shot dead whilst attempting to disperse the crowd; a clergyman who interferes to persuade the rioters to go home is deliberately shot through the leg by a drunken ruffian, and dies of his wounds. In one of the houses which is being pulled down are several people, who are thrown out of the windows for remonstrating, and killed on the spot; and in one of the houses which is being burnt an old man is pushed roughly on one side, falls down stairs, and dies some time afterwards. The persons guilty of these various crimes are all apprehended and convicted. As the law now stands, they were all guilty of one and the same offence, namely, wilful murder; and some might, and probably would, be executed, and others respited, according to circumstances. Under the new provisions proposed by the Commissioners, one man only, and he the least guilty of all, would be guilty of murder in the first degree—the person, namely, who pushed down the old man in the burning house. This criminal would have committed murder in the perpetration of arson. The man who shot the soldier would be a murderer in the second degree only, as his crime would have been committed without express malice against the soldier, and in the perpetration of the felony of being assembled riotously after the Riot Act was read. The persons thrown out of the windows of the houses demolished otherwise than by fire would have been murdered in the perpetration, not of arson, but of a special statutory felony. The clergyman—the worst case of all-—would have been murdered in the perpetration of the felony of wounding with intent to do grievous bodily harm. So long as there is no definite intent to kill, but only an intent to take the chance of killing by acts of atrocious personal cruelty, the crime would be murder in the second degree.

Let us pursue these illustrations a little further. It would be murder in the first degree to kill a man by a slight blow or push given for the purpose of taking his watch by force, or for the purpose of preventing him from apprehending the robber as he ran away. It would be murder in the second degree to kill a child by setting a ferocious dog at it for sport; or to kill a woman by the most brutal kicks in the stomach and blows on the head, given not with the intention of killing, but with the intention of doing grievous bodily harm, and with utter indifference whether death was inflicted or not. By way of compensation for this leniency, if a pirate were to fire a gun to bring a vessel to in order to rob her, and if the gun were to burst and kill one of his companions, this would be murder in the first degree. A., B., (1., D., E., and F. are in custody—A. for a night poaching afl'ray in which several keepers and poachers have been maimed for life; B. for extorting money by threats; ‘C. for wounding with intent to do grievous bodily harm, having cut out a man’s eyes ; D. for setting fire to a stack of beans in a solitary field; E. for a burglary, consisting in opening the door of a shop at 9.15 on a summer’s evening to steal a penny loaf ; and F. for robbing a drunken man of a shilling when he himself was drunk. They find means to break out of prison, and escape together. They meet a warder, who opposes them. One pushes him down, and he dies. The push in law is the push of all, and the crime is murgree in A., B., and C., and in the first degree in D., E., and E; and this is the result of a proposal intended to mitigate the unreasonable severity of the law as it exists.

I will make at present only one general observation on the cause of this absurd result. The Commissioners have altogether left out of consideration the character of the act by which death is caused, and the intention of the man who causes it. They have looked only at the fact that it is part of a series of actions ending in serious crimes. Surely If a murderer, in the act of committing one murder, undesignedly, and by some strange accident, kills another person, he is not more guilty morally in respect of the second death than he would have been if he had not caused the first. You might as well hang a murderer for the trespass he commits in entering his victim’s house without leave, as on account of an unintentional homicide accidentally connected with the principal offence. Men ought to be punished for their crimes, not for matters accidentally and unintentionally connected with them.

I pass now to another consideration connected with the proposed change. It is self-evident, that to multiply legal definitions is a great evil. Wherever there are two crimes which closely resemble each other, there will be a number of hard cases, because crimes between which there is not much substantial difference will be very near to each side of the boundary. Most of the intricacy of the criminal law would be removed if the distinctions between theft, embezzlement, and false pretences were done away with, and the explanations already given show how many ‘nice and subtle distinctions,’ to use the Commissioners’ own words, have arisen in settling the boundaries between murder and manslaughter. The fact is that there is no use in distinguishing cognate crimes unless a distinction is to be made in the punishment to be awarded, or in the court competent to try the offence. Tried by this principle, which is self-evident, Why distinguish between murder in the second degree and manslaughter? Murder in the second degree will be punishable with penal servitude for life, or not less than seven years. Manslaughter is punishable with penal servitude for life, or any less term; or with imprisonment, with or without hard labour, for two years or under. Why there should be a minimum punishment in the case of murder in the second degree I cannot imagine. Many cases of murder by way of implied malice may be put in which seven years’ penal servitude would be an absurdly severe punishment; as, for instance, where a thief trips up, and so kills, a policeman who is trying to apprehend him. There is only one other case in which a minimum punishment is now prescribed by law,* and experience has shown that such punishments are exceedingly inconvenient, and perfectly useless when the judges can be trusted. [The case of crimes against nature.  This is a very peculiar case, affording no analogy for any other; for the guilt consists in the act itself, independently of all other circumstances.  It may thus be susceptible of aggravation, but not of extenuation, beyond a certain point, and so is a proper case for a minimum punishment. I know of no other crime of which the same can be said.] Take away this slight difference, and murder in the second degree and manslaughter become identical. Each consists in culpable homicide, punishable in precisely the same way. Why, then, retain a difference in name which might frequently embarrass the administration of justice? If the proposal of the Commissioners is adopted we shall get the following strange result:—

Manslaughter is wilful killing without malice.
Murder in the second degree is wilful killing with implied malice.
Murder in the first degree is wilful killing with express malice, or in the perpetration of certain crimes.
N.B.—The presence of implied malice makes no difference.
Is not this a strange way of simplifying and improving the law?

The last objection I have to make to the suggestion of the Commissioners for the alteration of the law of murder is of a general character, yet I believe it to be quite as weighty as the others on which I have already enlarged. Men are to a great extent the creatures of words and names. When, therefore, it fortunately happens that the name of a crime is connected with terrible associations, and is regarded with universal horror, nothing can be more foolish than to weaken its effect. The word ‘murder’ at present is associated with all that is horrible, and exercises a powerful influence over the imaginations of mankind. This is because the popular conception of it is simple. Split the crime up into murder of the first degree, and murder of the second degree, and teach people that there are many murders which involve comparatively slight punishment, and the whole moral effect of the present association is destroyed. Conceive what an effect for evil it would have if, after receiving a sentence of seven years’ penal servitude for murder, a man were to come back to his native place, and afford to its inhabitants a daily illustration of the fact that, owing to alterations in the law, the mysterious horror which used to surround the name of murder was now dispelled. The loss of such an association would do far more harm than would counterbalance the good to be obtained by an alteration of the law.

Such are my objections to the change which it is proposed to make. I now proceed to consider the arguments which have induced the Commissioners to give it the preference over the other scheme which was proposed of abrogating the present law of murder, and starting afresh with a new definition. These arguments are three in number.

The first is, that the measure proposed by the Commissioners ‘involves no disturbance of the present distinction between murder and manslaughter.’

This would be an excellent and indeed conclusive argument if the distinction in question were sound; but considering that the unsoundness of the distinction is the foundation of all the proposals of the Commissioners, it is difficult to understand the force of the argument. They observe that ‘arbitrary rules have been introduced into the law’ (as to the distinction between murder and manslaughter) ‘which most materially restrict its beneficial operation.’ They refer to the ‘nice and subtle distinctions which prevail upon the subject’ of provocation. They declare that the practical effect of this state of things ‘is most unsatisfactory.’ They have ‘unanimously arrived at the conclusion that this portion of the law requires revision and amendment;’ and they conclude, not by recommending that the ‘ arbitrary rules’ should be abolished, and the ‘nice and subtle distinctions’ taken away, but by treating the ‘disturbance of the present distinction between murder and manslaughter’ as a positive evil. Unless ‘murder’ and ‘manslaughter’ are something more than the names of crimes—unless they are real substantial entities, whose interests are to be carefully protected, and whose relations are on no account to be disturbed, I confess myself utterly unable to understand what this can possibly mean. I should have thought that if the present distinction between murder and manslaughter was arbitrary, intricate, and unreasonable, it ought to be ‘disturbed’ at once to any extent that might be necessary to make it natural, simple, and reasonable. On no account, say the Commissioners. To ‘disturb’ an existing distinction is unreasonable, and an evil in itself. The right way to get rid of its inconveniences is to set up a second absurd distinction, the effects of which will probably, or at least possibly, neutralise those of the first.

The second argument is, that the proposal in question does not make it necessary to remodel the statutes relating to attempts to murder.

This at least has the advantage of being an intelligible argument. No doubt a new definition of murder would imply an alteration in the law relating to attempts to murder, and in this there would be a certain degree of trouble. In order to show the amount of trouble which the alteration would cause, and the importance of making the alteration, it will be necessary to say a few words on the law relating to attempts to murder. A very little attention to this matter will show that the argument put forward by the Commissioners as an objection to the scheme is in truth one of the strongest arguments in its favour.

If murder had been properly defined in the first instance, all attempts to murder might have been punished as crimes involving the same or a similar amount of guilt; but the extreme latitude of the definition of the offence itself led to one of the strangest and most characteristic results in the whole range of our criminal jurisprudence. In very early times it seems that the rule ‘Voluntas pro facto’ applied in this matter, and that an attempt to murder which failed by accident was punished as a murder. At some unknown period this rule fell into disuse, and attempts to commit murder fell back into the general class of misdemeanours. Some peculiarly atrocious crimes of the kind having attracted notice, particular Acts were passed—like the Coventry Act and the Black Act-which made certain forms of personal violence capital felonies, and these were slightly generalised and enlarged, until at last the law fell into its present shape, which is as follows. Attempts to murder fall under the provisions of ss. 11-15, both inclusive, of the 24. & 25 Vict. c. 100:—
S. 11 punishes with penal servitude for life or less, or imprisonment with or without hard labour for two years or under, the administration of poison, or wounding with intent to murder.
S. 12 inflicts the same punishment on those who, with the same intent, destroy or damage a building with gunpowder.
S. 13 inflicts the same punishment on those who, with the same intent, set fire to or cast away a ship.
S. 14. inflicts the same punishment on those who, with the same intent, attempt to administer poison, or shoot or attempt to shoot, or attempt to drown, suffocate, or strangle.
S. 15 inflicts the same punishment on those who, with the same intent, ‘shall by any other means than those specified in any of the preceding sections’ attempt to commit murder.

This is the statute which the Commissioners do not wish to ‘remodel.’ If there were not other instances of the same sort of ingenuity in the other Consolidation Acts, it might perhaps be a pity to abolish what would deserve to be considered as an unrivalled specimen of the art of botching. But it is only as a curiosity of clumsiness that the present law deserves any kind of respect. The way to remodel it is simply to repeal it altogether, and to substitute for it the following enactment:_—‘Whoever shall attempt to commit murder or manslaughter shall be guilty of felony, and shall, ’&c.

If murder were reasonably defined, there could be no objection to this. Whatever be the definition adopted, there can be no attempt to commit murder except in cases of premeditation and design. A man cannot attempt to do what he does not intend to do. He cannot try to kill a man unintentionally or negligently. If he tried to kill him under strong provocation, that would be an attempt to commit, not murder, but manslaughter. This crime at present, or under the alteration suggested by the Commissioners, would be punishable only as a misdemeanour; but surely an attempt to kill a man under provocation is a most serious matter, and if the law as to provocation is to be relaxed, it will become still more serious than it was before. It is very remarkable that the Commissioners object to the severity of the law of murder as it stands, and yet propose to leave the law as to attempts to murder unaltered. Thus a man, driven to frenzy by the grossest insults, shoots another dead. It is hard, say the Commissioners, that he should be hanged for this; nevertheless, let us continue to call the act itself murder, though we mitigate the punishment, in order that the attempt may be punished with sufficient severity.

The third argument is, that the proposed change will not ‘interfere with the operation of those treaties with foreign powers which provide for the extradition of fugitives accused of that crime.’

It has been lately decided that the law which is to be applied in the case of extradition, is the law of the country which delivers up the criminal. Hence, if the Americans demanded the extradition of a person accused of murder, it would be necessary to consider whether he was a murderer by our law. As the law at present stands, they would have the power to claim extradition in thousands of cases to which it is morally certain that the treaties were never meant to apply. Suppose, for instance, a political refugee, in escaping from prison at New York, were to trip up and so kill a, policeman who was in chase of him, this by our law as it stands would be murder, and the extradition of the offender could be claimed; yet such an act, though within the words of the treaty, would certainly not be within its spirit. This is not mere speculation. The case of John Anderson, the runaway slave, who was claimed by the Americans in 1861, was a case of constructive malice; and if the matter had not been settled by the course of events without the necessity of a decision from our courts, the looseness and width of our definition of murder might have involved us in most serious difficulties. It cannot surely be seriously contended that the treaties with France and America bind us not to modify in any degree those parts of our municipal law to which the treaties refer. If this were so, by what right did we in 1861 recast the whole of our law of bankruptcy, and especially alter entirely all the provisions constituting offences against the bankruptcy law when we had a treaty with France for the extradition of ‘fraudulent bankrupts’?

Such are my reasons for objecting to the change which the Commissioners propose to make in the present state of the law of murder, and for thinking that the arguments by which they support their proposal are unsatisfactory. I will now proceed to state my reasons for thinking that the other course suggested—namely, the re-definition of the crime of murder—would be highly beneficial and perfectly easy.

I have given elsewhere [See my General View of the Criminal Law of England, chapter iv.] at length an account of the common law definitions of crime, and have shown that by far the greater part of the intricacy and technicality with which the criminal law is justly chargeable arises from their insufficiency, and from the manner in which successive generations of judges have cobbled them up to make them meet, if possible, the requirements of successive generations. The great defeat of the law, indeed, is that the great leading crimes have never been defined at all in an authoritative manner. There is, indeed, one exception to this statement. By far the best and most scientific Criminal Code that has ever been composed is little more than an abstract of the criminal law of England, altered in some particulars, but preserving its principal outlines. I refer, of course, to the Indian Criminal Code, the practical success of which, I believe, has been fully equal to its theoretical merits. [See upon this, the evidence of Sir Mordaunt Wells before the Commissioners.] In the article which I published in this magazine in June 1864, I proposed the adoption of its provisions in this country; and in my evidence before the Commissioners I entered upon the subject more fully, and pointed out one or two modifications which I thought might be advantageously made in it. I still think that this course would be the best which could be taken; besides, it is one which is already sanctioned by experience, and by the authority of the eminent lawyers who prepared the code in question. Suppose, however, that for any reason the particular definition in question is objected to, still the importance of having some definition, and the general character of the definition to be adopted, admit of illustration. I will now discuss these subjects in their turn.

As to the importance of having a definition, there can, one would think, be no doubt of it. The many scores of reported cases which encumber our law books are, after all, only substitutes—and singularly clumsy and unserviceable substitutes they are—for a regular and careful definition. When a certain number of them have been decided, the law upon the point to which they relate is said to be well settled, and to admit of no further discussion; and when matters have once been brought into this shape, the particular cases by which a given rule has been established, and the special facts on which the rule was founded, are for the most part forgotten. Thus, for instance, it is perfectly well settled that no provocation except considerable personal violence, or the sight of the act of adultery by a wife, will reduce guilt of murder to that of manslaughter. Indeed, if nothing else were required than to codify the existing law, it would be easy to throw the cases already decided into the shape of a series of propositions which would express all that they decide. That such a step would be an immense convenience in the administration of justice and in popularising the knowledge of the law, is a self-evident proposition. How anyone can doubt it who does not also doubt whether the Latin syntax ought not to consist entirely of an indefinite number of examples to the total exclusion of all rules, is to me incomprehensible. Whoever may object to definitions, the authors of the suggestions under examination cannot consistently do so, for they recommend that murder of the first degree should be defined. Hence the question is not between defining and not defining, but between one definition and another.

Since, then, it is obvious that, if the law is to be altered at all, there must of necessity be a new definition of some sort, what is it to be? The natural division of the subject is simple and obvious. All homicide is either criminal or not criminal. If it is not criminal, it is either accidental or justifiable. If it is criminal, the criminality must arise from the nature of the intention with which the act causing death was done, and this again will generally be inferred from the nature of the act itself. The cardinal points, therefore, are the intention with which the fatal act was done, and the nature of the act as evidence of that intention. As the question of evidence is exclusively for the jury, the only point with which the definition need be concerned is the intention. What, then, are the intentions with which acts which destroy life may be done? They may be done either with or without an intention to kill. If done without an intention to kill, they may be done with or without an intention to inflict bodily injury likely to kill; and that intention, if it exists, may or may not be coupled with indifference as to the result. In either case they may be done with or without provocation. I will give a single illustration of each case.

1. A. cuts B.’s throat from ear to ear with a razor, B. being asleep in bed: A. robs the house. Here there is an intent to kill, shown by the character of the act and the subsequent conduct.
2. A. robbing B.’s room, B. wakes up and tries to arrest A.; A. strikes at B. with a knife and cuts B.’s throat. Here there is no intent to kill, but there is an intent to do personal injury likely to kill, and coupled with indifference whether death follows or not.
3. It would be possible to put a case of an intent to do personal injury likely to kill, coupled with a wish not to kill; but this is a mere speculative possibility. No jury which acted on the rule that a man intends the natural consequence of his actions would ever find the existence of such a state of facts.

Substitute for the motive assigned in these cases some gross outrage by B. against A., and you have the case of killing, or doing an act likely to kill, with provocation. The remaining cases of criminal homicide are killing by negligence, without any intention to inflict dangerous bodily injury; and killing by bodily injury intentionally inflicted, but not likely to kill. This is obviously very near the case of killing by negligence. I would therefore lay down the following propositions, not as definitions, but as illustrations of the ease with which a definition might be framed. A formal definition would require further explanations and provisos, such as are contained in the Indian Code. The propositions which follow are intended to exhibit the broad outline of the subject according to its natural arrangement.

1. Homicide is either accidental, or justifiable, or criminal. Accidental and justifiable homicide are sufficiently ascertained by the law as it stands.
2. Criminal homicide is either murder or manslaughter.
3. Murder is criminal homicide committed without provocation, and either with an intention to kill or with an intention to inflict bodily injury or violence likely to cause death, coupled with indifference whether death is caused or not.
4.. Manslaughter is criminal homicide committed without either of these intentions, or with either of these intentions, but under provocation.
5. Provocation is conduct likely to cause uncontrollable passion in an ordinary man. Acts are said to be done ‘under provocation’ only if the person committing them is, in fact, thrown by them into an uncontrollable passion, and does the act whilst so deprived of self-command. [Further rules on this point are laid down in the Indian Code, which I omit here for the sake of simplicity.]

I will now proceed to contrast these propositions and the outline which they draw with the recommendations of the Commissioners. In the first place they get rid of two expressions introduced by the Commissioners into their definition of murder in the first degree--‘deliberately,’ and ‘express malice aforethought.’ It appears to me that moral point of view, and quite as dangerous to society. A person who suddenly conceives and immediately executes the resolution to kill another for some unlawful reason, not amounting to provocation, appears to me to be rather worse, if anything, than the man who decides to do so only after long deliberation. Suppose, for instance, that a person were to be discovered in the commission of an indecent or immoral action, and in order to prevent disclosure were instantly, without further provocation, to kill the person who so discovered him, would not this show greater wickedness and a far more dangerous temper than the same crime committed after long hesitation and reflection? Yet the one would be a case of premeditation, and the other a case in which there was no premeditation. A policeman meets a thief or vagrant whom he has a right to search, and offers to search him; the thief or vagrant pulls out a pistol and shoots him through the head, forming and executing the design on the instant.

Why is this to be treated as murder in the second degree? According to what test of the criminality of an action is it less criminal than a planned assassination, or than a murder committed in the course of a burglary? Consider again the indefiniteness of such a word as ‘deliberately.’ Is five minutes time for deliberation, or two, or one, or an hour? If it be replied that this depends on circumstances, this no doubt is true, but it proves that intention and not deliberation is the test, and that deliberation is important only as showing intention.

Contrast, again, the propositions in question with the second class of murders, for which the Commissioners purpose to reserve capital punishment—murders that are committed in the perpetration of certain specified crimes. I have shown already that the atrocity of such murders depends principally on the intention of the murderer, and that it is altogether arbitrary and unreasonable to punish a man for accidentally causing death in the act of committing some other offence for which he is already liable to be punished with extreme severity. Burglary, robbery, piracy, and arson are already liable, and justly liable, to be punished with penal servitude for life. If death were inflicted by any means likely to cause death in the commission of any of these offences, this, by my propositions, would be murder, inasmuch as the facts would furnish the strongest possible evidence that the crime had been committed either with an intention to cause death, or at least by the intentional infliction of bodily injury likely to cause it, coupled with indifference as to whether it was caused or not. It is impossible to suggest a case falling within the Commissioners’ definition and not falling within my definition, which, if it stood alone, anyone would wish to punish capitally; for in all such cases death must, of necessity, be caused in the commission of one of the crimes in question, under circumstances not showing either of the intentions referred to—i.e. death must be caused by some accidental circumstance not showing any greater wickedness of disposition in the criminal than was already shown by his commission of the collateral offence. But for cases of this class the wide discretion as to punishment already- vested in our judges is surely sufficient. If a burglar, in the commission of burglary, accidentally destroys life, this may be taken into consideration in apportioning his punishment; but it surely is extremely harsh to make a mere accident a substantive offence of the highest degree known to the law.

To show the unreasonableness of this rule, it is enough to trace it to its source. This is to be found in the old definitions of murder to which I have so often referred, and which are given by Coke and Hale. According to them, murder is bounded——so to speak—not only by manslaughter, but also by accidental homicide. Accidental homicide is divided by Bracton into homicide in a lawful and in an unlawful act. Coke and Foster make accidental homicide in a felonious act murder. This might be tolerable in days when men were liable to be hanged for every sort of petty crime which was included under the name of felony, but surely the time for such a doctrine is now past.

These remarks show that my propositions are not open to objections which may be urged against those proposed by the Commissioners. I will now proceed, by comparing them with past experience, to show how they stand related to the existing law. I will refer for this purpose to the last edition of Russell on Crimes, in which, as I have already shown, the subject is exhausted.

Chapter I. begins by an account of malice, and an explanation of the different senses in which the word is used. These would all be swept away by the substitution of the plain word ‘intention,’ for the ambiguous and technical term ‘malice.’ In substance, as I have already shown, this change has actually been effected; for the scores of cases decided on the subject have resulted in defining malice to mean an intention to do one or the other of several specified things. It would therefore be a clear improvement to drop the technical phrase, with its intricate and subtle distinctions, and to substitute for it the plain meaning which has by degrees been affixed to it. Passing over some cases relating to the possible subjects of murder (infants in the womb, &c.), which have no special reference to the definition of the crime itself, we come to cases as to the sort of acts which would amount to murder, such as not providing food for children. These cases may be summed up by saying that they establish that ‘wilful neglect, so gross and wilful as to satisfy the jury that the prisoner must have contemplated the death of the deceased,’ would amount to murder. This is exactly the intention to destroy life specified in my proposition. These are followed by cases about physicians, or persons acting as such (St. John Long’s case), which prove that ‘gross negligence and gross rashness’ causing death, in medical treatment, amount to manslaughter. This falls within my second proposition. The death is caused by an act neither justifiable nor accidental; it is therefore criminal. There is no intention to cause death or dangerous bodily injury; therefore it is not murder. It is, therefore, manslaughter. This is followed by some cases on suicide, in which people went out to commit suicide together. One died, and the survivor was held guilty of murder. For simplicity’s sake, I have not gone into this topic; but in my evidence before the Commissioners I did so, and recommended that suicide should no longer be considered as murder, but that assisting a person to commit ’ suicide should be made a substantive offence. After these come various cases as to the law of principal and accessory in murder, which are not relevant to the definition of the crime.

We next come to cases of provocation. In these it is admitted that a considerable change in this part of the law is necessary. The way in which the Commissioners propose to deal with the subject is by no means clear—unless their proposal, that ‘express malice aforethought, to be found as a fact by the jury,’ means that the jury are in every particular case, and without any direction whatever from the judge, to say whether or not there was sufficient provocation to reduce the crime from the first to the second degree. If this is intended, the result will be to attach a most unreasonable degree of importance to the ‘momentary impressions of ignorant and inexperienced men, under the influence of the excitement of a novel position, of a grave responsibility, and of powerful appeals to their feelings. Surely they may fairly expect some guidance from the Legislature. The law of provocation, as laid down by the Indian Code, goes far in this direction — I should have thought too far; but at least it expressly requires that the jury are to decide as to what constitutes ‘grave and sudden provocation,’ and it lays down a variety of wholesome rules, adopted from English decided cases, as to what shall not be provocation. It declares that if murder is to be reduced to manslaughter, ‘the provocation is not to be sought or voluntarily provoked by the offender as an excuse for killing or doing harm,’—that the provocation ‘is not given by anything done in obedience to the law, or by a public servant in the lawful exorcise of the powers of such public servant,’ and that it ‘is not given by anything done in the lawful exercise of the right of private defence.’ None of these explanations are proposed by the Commissioners. Under the general words ‘ express malice aforethought, to be found as a fact by the jury,’ anything and everything‘ may be accepted by the jury as an excuse for reducing an offence to murder to the second degree. They need not even find that there was any provocation at all ; still less that it was either grave or sudden; and thus they will be at liberty, if they like. to make the very motive which caused the crime, and which under the present law is taken as proof of malice, an excuse for it. The Indian Code, whilst allowing considerable and, I think, [I addressed a paper on this point to the Commissioners, but it is too special to be referred to here in detail] undue latitude to the jury on this point, does subject them to considerable restrictions, and furnish them with rules by which, if they wish to discharge their duty properly, they can always be guided.

Passing from this we come to the cases relating to mutual combat, which is either deliberate, as in the case of duelling, or upon a sudden quarrel. Broadly, the result of these cases is somewhat as follows. Where there is a deliberate compact to fight with deadly weapons and death ensues, this is murder. If my propositions were adopted, it would also be murder; for there would certainly be an intent to hurt, and indifference whether death were caused or not. A duel might be imagined (and no doubt many such duels have occurred) in which one combatant unluckily killed the other when trying to miss him, having come out merely to satisfy the opinions of society. If, from circumstances, the jury took that view of the case, they might, under the propositions which I have proposed, convict of manslaughter. As for combats on a sudden quarrel, the law as it stands is, that if the circumstances show that both parties were in hot blood, so that each gave provocation, it is manslaughter; if there was deliberation and express malice, it is murder. This would not be altered either by the Commissioners’ propositions or by mine. A mutual combat is a mutual continuing provocation. The Indian Code meets this by an express rule.

The next class of cases noticed by Sir William Russell [It is hardly necessary to say to the legal reader, though it is right to inform others, that perhaps the greater part of the present value of this book is derived from the fact that it has been carefully edited by Mr. Greaves] are those of resistance to officers of justice, to persons assisting them, and to private persons lawfully interfering to apprehend felons or to prevent a breach of the peace. He thus sums up the law on the subject:—‘Where persons having authority to arrest or imprison, using the proper means for that .purpose, are resisted in so doing, and killed, it will be murder in all who take part in such resistance.’ According to the Commissioners, it will be murder in the first degree only if there is ‘express malice found as a fact by the jury,’ whatever that may mean. According to my propositions, the question of murder or manslaughter would turn on the intention to kill or do grievous bodily harm, as there would be no provocation. To shoot a policeman dead with a. pistol when he tried to restore peace, would be murder; to kill him by a blow neither likely nor intended to cause death, would be manslaughter. According to the suggestions of the Commissioners, all these cases, however atrocious, would be murders in the second degree.

The remaining sections relate to the cases of criminal, unlawful, or wanton acts, and lawful acts improperly performed. These are the cases to which I have so often referred of felonious or other illegal acts. It appears to me that no part of the law is more irrational, and that there is none in which the question of the intention with which the act is done, to be gathered generally from the nature of the act itself, is so important. The proposal of the Commissioners, as I have already observed, lessens the extent of the irrationality, but leaves the principle itself untouched.

I have thus compared the propositions which I suggest with the cases decided and with the proposals of the Commissioners.  There can be no more searching test of their soundness; at all events, the comparison will enable anyone to judge for himself as to the present state of the law, as to the degree in which it is likely to be improved by the adoption of the suggestions of the Commissioners, and as to the degree in which it ought to be improved by a change which, if it looks a little bolder, is in reality much more prudent (witness the question of provocation), and more likely to put the whole matter on a simple and rational footing.

Fraser’s Magazine, February 1866.

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