25 JULY 1846, Page 11




The first section of the second chapter of the Code, "Of Homicide and other offences against the person," is headed—" Of what homicide the law takes cogni- zance "; and the first article stands as follows-

1. "Homicide is the killing of any human being"; which, by the next two arti- a 4, is shown to comprise infants yet unborn, but who may be born alive after the co.smission of the injury from which death results.

4. "The law takes no cognizance of homicide unless death result from bodily king, caused by some act or omission, as contradistinguished from death occa- sioned by any influence on the mind, or by any disorder or disease arising from such influence."

In a note to this article, the Commissioners quote, as having "great weight," the observations of the Indian Law Commissioners, tending to establish as homi- cide the cases of a blind man directed to a deadly precipice, of a sick man ordered to take poison, of an invalid whose life depends on mental quietude thrown into a deadly fit by a false piece of dreadful news. I confess that I side entirely with the Indian Law Commissioners; but this is one of those speculative questions with which I have pledged myself not to cumber your columns.

• 5. "it is homicide, although the effect of bodily injury be merely to accelerate the death-of one labouring under some previous bodily injury, disorder, or disease. • 6. "It is homicide if the death be caused by bodily injury, although by proper remedies and skilful treatment death might have been prevented.

7. "It is homicide, although, through neglect or ill-treatment on the part of the injured person himself or some other, a disease or disorder which is the immediate cause of the death ensue from the original injury. 8. "it is homicide, although death be not directly caused by the injury done, nor, as is mentioned in the last preceding 'article, by a disease or disorder ensuing foam such injury, but by some distinct bodily injury, disease, or disorder, resulting from the treatment of the original injury; provided the injury, disease, or disorder resulting therefrom, were not negligently caused within the meaning of art. 5 of section 2 of chapter 1 of this act."

-Correctly to understand these articles, it is necessary to bear in mind, that homicide (although vaguely styled an "offence" in the heading of the chapter) is not yet made criminal; so that we can only test the justice or efficacy of these provisions as we proceed to the further sections of the chapter. Mr. Starkie him- sdf seems to have overlooked this in his separate report; where he puts the case of a wound inflicted by A on B, and a strong medicine administered to B by his physician, from the effect of which B dies; and contends that, under the Code, A would be responsible as for killing B. It is true that the death of B might be homicide in A; but whether such homicide be criminal or not, we have as yet no data for pronouncing. I may, however, add at once, that on examination, Mr. Starkie's objection does not appear to me well-founded. Section 2, Murder. Art. 1. "Whosoever shall be guilty of murder shall suffer death.

2. "Homicide is murder whensoever the killing is wilful, and is neither ex- tenuated within the provisions of section 3, nor justifiable within the provisions of eection 5 of this chapter." I do not like this definition, if definition it may be called, of murder. Are the characteristics of one of the two highest crimeaknown to the law, instead of being simply and clearly set forth, to be extracted negatively from of extennations and justifications ? So that if by any chance one

be overlooked by judge, counsel, or jury, the homicid. .. .... '14 tiinosmiustification has been omitted from the following sections,

murder—or at least, is to be punished as such. And if the supposition of such an oversight at a trial appear at first view unlikely in this country, yet it would be far from improbable ins distant colony; smite such we must wish and hope the Code may be some day extended. And indeed, when one glances over the intricacies of extenuation and justification, to which I shall advert hereafter, one cannot help feeling pity for future juries under the Code when, instead of having their minds directed to the main fact of malice, they will be left wandering amidst all these subtile distinctions.

In the introduction of this novelty, the Commissioners are solely kept in coun- tenance by Mr. Livingstone, in his proposed Louisiana Code, from which they ex- tract a long passage with approbation. " The advantage," he says, " of this mode of description over that of a simple definition is evident; for should any words contained in that definition be liable to misconstruction, an act properly coming within the lower degree of that offence might be brought within the de- finition of the higher." And what if the definition of the lower offence be insuffi- cient, good sir? . . . " By the new Code, no jury can convict, no judge can condemn for murder, until they have carefully examined all the lighter shades of homicide." . . . And what if they. do not carefully examine ? The whole tissue of Mr. Livingstone's reasoning is of this flimsy character,—so flimsy, that one feels astonished that any one but the author could ever have become enamoured of it. Certainly the definition of Lord Coke, " When a pc:seen of sound memory and discretion unlawfully killeth any reasonable creature, in being, and under the King's peace, with malice aforethought, either express or implied," 12 capable of improvement. But, allowing for the antiquity of the definition, and putting aside those elements of it which are otherwise disposed of by the Code,—such as criminal responsibility, (" sound memory and discretion ") ex- ecutions by sentence of law, Sic., (" unlawfully,") the subsequent birth of infants injured in the womb, (" reasonable creature in being,") as well as the obsolete doctrine of the common right to kill outlaws and the rights of warfare, (" under the King's peace,") we find the definition contract itself to the one leading idea of " malice aforethought, whether express or implied"; answering very nearly to the " premeditation" and " lying in wait," which characterize the equivalent crime of assassination" in the Code Napoleon.

It must not be supposed that the term " malice " has been discarded from the Code. On the contrary, I have already briefly adverted to the section " of wilful, malicious, negligent, and accidental injuries," (sect. 2 of chapter I„) which primi fade certainly includes the case of homicide. Let us see, therefore, whether the definition of malice by the Commissioners can by any means be fitted on again to that of murder. Ch. 1, sect. 2, art. 4, " An act shall he deemed to be maliciously done or omitted, and an injury shall be deemed to be maliciously caused, when- soever such act or injury shall be wilfully done or omitted or caused respectively, without justification or excuse." So that the want of justification or excuse is that which is to render a wilful act—e. f. homicide—malicious. This definition seems at once to point to a sec- tion of justifications and excuses. But such a section is nowhere to be found. There is, indeed, a section of justifiable homicide, (chap. II. s. 5,) and an article providing that the justifications of homicide shall apply to certain minor injuries, (chap. IL s. 7, art. 39); but the word " excuse " seems almost foreign to the Code, and is only practically applied in articles 6, 7, and 8 of ch. I. sect. I. (how intole- rable are these threefold references at every step !) with respect to duress.

The meaning, therefore, of this important element in the definition of " malice," remains altogether uncertain; only one thing being clear, that it is not equivalent to" extenuation" in the chapter of homicide, since duress—which is an excuse— is not stated to be, and in fact is not, an extenuation. It follows thence, that if the definition of malicious injuries is to apply, as one would suppose it ought, to the very first class of injuries of which the Code takes cognizance, that definition will embrace the whole two sections of Murder and Extenuated Homicide or Man- slaughter. I am afraid my reasoning will have proved grievously. tedious. But it was ab- solutely necessary to enter a protest against so marked an interference with the established language of the law as that which, by embracing manslaughter within the class of malicious injuries, utterly destroys the familiar import of the ten* "malice" as distinctive of the crime of murder.

The definition of " malice " by the Commissioners is, indeed, adopted from a • phrase of Mr. Justice Littledale: "Malice in its legal sense denotes a wr

act done intentionally without just cause or excuse." But it seems likely that the word " excuse " was used by the Judge in the same sense as "extenuation" by the Commissioners; or if otherwise, we have a right to demand far greater pre- cision of language at the hands of the code-maker in his chambers than at those of the judge in the hurry of trial.

Definitions which do not explain themselves—definitions made to be set aside on the first occasion—definitions which will not fit, unless by breaking up old associations of thought and language,—these are faults which we should not have expected to find in a work, the result certainly of careful deliberation. Rossi, now French Ambassador at Rome, has well said, in his " Traite de Droit Penal," on the subject of this tampering with definitions—" The lawgiver cannot change the sense which men's consciences and common speech attach to a word. He would be as guilty as an officer intrusted with the defence of a stronghold, who should point his artillery wrong, on the ground that the acute angle is greater than the right." I may as well observe here once for all, that finding that the Commissioners (p. 37) promise "a general chapter on the subject of Punishments," I shall make no comment on the application of specific penalties, although the gradations of punishment may form in some cases a subject for observation. Thus we need only consider " death " as the symbol of the highest penalty of the law.

The third article of this section decides one of the doubtful points of the crimi- nal law-3. "Bearing false witness with intent to destroy the life of any person, by reason whereof such person suffers death by the sentence of the law, shall not b.! deemed to be murder." On this the Commissioners observe—" The act seems to be attended with many of the bad consequences and to have the general features of a murder of the most malignant description. It may be thought, however, that no very strong or general apprehensions can be entertained of life being iaken away by such means, and that very great difficulty would occur in obtaining a conviction for the offence Under these circumstances, and regardiag the severe penalties for perjury, and the general difficulty. of procuring convictions in capital cases, the Commissioners are disposed to propose the rule stated in the text The crime will, however, be provided for in the chapter of the digest relating to offences against the administration of justice." There may be weight in the reasoning of the Commissioners, but I confess that the crime appears to me as deliberate a murder, fraught with at least as dangerous consequences to the body politic, as when the hired Irish assassin waits on the high-road for the doomed landlord or middleman to shoot him down in his car. And, assuming, (which I think will hardly be denied,) that bearing witness in a court of justice comes within the definition of an "act," this article appears to constitute a sort of loose exception to the above quoted fourth article of the first section—" The law takes no cognizance of homicide, unless death result from bodily injury, caused by some act or omission." Indeed, unless the word " homi- cide " be substituted in the now referred to article for "murder" the

deliberate false witness on a capital charge would still seem to be homicide some undefined nature, but not murder under the Code. A Samuels*.