THE CRIMINAL CODE.

LETTER VIL

The fourth section of the second chapter is that of negligent homicide.

Article I. " Whosoever shall be guilty of negligent homicide shall incur the penalties of the seventh class (imprisonment not exceeding three years, or fine at discretion, or both)."

2. "Homicide is negligent whensoever death is not wilfully caused, but results from want of reasonable caution, as is hereinbefore, in article 5 of section 2 of chapter 1 defined."

It seems necessary to extract here the article referred to; a notable example of the unconquerable wordiness of our English law-language; of which we might almost say, as Rabelais comically does of the chronicler Monstrelet, that it is " Plus baveux qua ung pot a moustarde,"--more slobbery than a mustard-pot. "An injury shall be deemed to be negligently caused, whensoever it is not wilfully caused, but results from want of reasonable caution, in the undertaking and doing of any act, either without such skill, knowledge, or ability, as is suitable to the occasion; or without due care taken to ascertain the nature and probable consequences of such act; or where it results from the not exercising reasonable caution in the doing of any act, either as regards the means used or the manner of using them; or from the doing of any act without using reasonable caution for the prevention of mischief; or from the omitting to do any act which a person using reasonable caution would not have omitted to do." If the reader wishes to understand the last quoted article, he should quietly ,atop at the conclusion of the words in Italics • the remainder being merely an am- plification of those words, in a most unreasonable attempt to define " resume&

caution." An attempt the more singular, that entirely; -:rolir expreesions, such as "reasonable fear of death," are left undefined; and very voperly so, as their value must vary according to the circumstances of every 1.... ;filer case.

The two following articles bring within the definition of negligent homicide deaths which result from " excess of violence beyond the limits prescribed by the law for the advancement of the law; or for the purpose of correction, the defence of person or property, or any other lawful purpose, either as regards the means tiled or the manner of using them"; or which occur " in any sport, exercise, or amicable contest, if, weapons, instruments, or means be used which cannot be used without probability of causing grievous bodily harm." Here, indeed, a state- ment of the limits prescribed by the law to violence exercised for the purpose of correction, or other lawful purpose, might have been useful; and I trust such

i statement is but deferred, not omitted by the Cominisioners. The fifth article declares homicide to be accidental, where it occurs "in any sport, &c., without in- tent on either side to cause, and without using weapons, &c., likely to cause, grievous bodily harm." The principle of this section, which, as I have before observed, marks off from the too wide class of offences hitherto denominated manslaughter, a number of acts of distinct character and far inferior gravity, must, I think, be generally ap- proved of. Section fifth relates to justifiable homicide; of which the Commissioners enume- rate five species: first, homicide in execution of the law; secondly, homicide for the advancement of the law; thirdly, homicide for the prevention of crime; fourthly, homicide in defence of person or property; fifthly, homicide resulting from an act done in good faith with a view to the bodily safety or health of another person.

The first is obvious—that of the execution of the law, (article 1.) The Commissioners refer prospectively to the digest of procedure for the definition of a "lawful sentence," of "lawful manner of executing it," and of the "per- sons lawfully authorized to execute it."

Secondly. The result of articles 2 to 10, which relate to homicide for the ad- vancement of the law, is as follows. An officer, whether in the execution of a lawful authority, or proceeding to execute it, or retreating after its execution or from inability to execute it, may justifiably kill a party whom he is authorized to arrest on a capital charge, in case of the flight of the offender, or of an attempted rescue with Ins consent, where the officer has reasonable cause for believing that the party cannot be otherwise overtaken or his escape prevented: he may also kill any person unlawfully and forcibly resisting, either using no more force than he has reason to believe necessary to overcome the resistance, or because he has rea- son to believe that he cannot otherwise execute his authority and preserve his life. In the latter case, it is essential that the party killed had notice, ' to be collected as a matter of fact from the terms used by the officer or other person, or from ether circumstances," that the officer was acting under authority. And such notice must be " express " in the case of homicide by a private person acting for the advancement of the law, or interposing for the prevention of an offence. These rules involve a humane modification of the present law, by confining to capital charges the justification of homicide on a flying offender; such justifica- tion extending at present to all cases of felony.

Thirdly. Article 11. " Homicide is I justifiable where the party killing has rea- sonable cause for believing it to be necessary for preventing the perpetration of any offence, in respect of which the punishment of transportation for life or any higher punishment may be awarded, attempted to be committed by violence or surprise against the person, habitation, or property of the party killing, or of any other."

Fourthly. (Articles 12 to 18.) Homicide is justifiable in defence, first, of per

• secondly, of moveable property in one's lawful possession; thirdly, of house

or hind in ones lawful possession, where a party endeavours by force to enter into or upon such house or land; and fourthly, of the . right of possession of house or land where a party wrongfully refuses to depart from house or land on request of the party in lawful possession. But in all such cases, the party killing must use no more violence than he has reason to believe necessary for the purpose of defence qr of removal of the wrongdoer; or must be under reasonable apprehension of immediate death, and have reason to believe that he cannot otherwise preserve his life than by killing the offender. The most remarkable extension of this justifi- cation is that exhibited by article 13, which exempts from punishment a party killing, although engaged in an assault or unlawful conflict, where there was on bis part no intent or endeavour to kill or do grievous bodily harm, before the ne- cessity for killing arose; where he retreated from further conflict, as far as was practicable with safety to his life; and where he had reason to believe it necessary to kill the assailant in order to avoid immediate death. The most remarkable restriction of this justification is exhibited by article 14, which excludes from the immunities of lawful self-defence the case of resistance to an officer believing himself justified in the execution of an unlawful warrant.

How singular is the juxtaposition of these two articles ! By the one, an ad- mitted offender is allowed to kill the offended party, to save his own life; by the other, an innocent man defending his lawful rights against an officer is made sub- ject to death-punishment if he should kill the offender! I must say that the rule of article 13 (for which a mere opinion of Mr. Justice Foster is quoted as sole authority) appears to me as ultra-lenient as the other is ultra-severe,—breaking down as it does the whole framework of the law. Is there any very material difference between the guilt of a man who in committing an assault is led on to kill another for his own safety, and that of one fighting another in heat of blood and killing him? the former case being wholly exempt from punishment under the Code, the latter being punishable with transportation for life.

5th. Article 19. "Homicide is justifiable where death results from an act done in good faith with the intention of affording succour or aid to any other per- son by rescuing him from danger or curing him of any bodily injury, or of any disorder or disease, or where death results from any other act done with a view to the bodily safety or health of any other person; provided that no unnecessary risk or peril be wilfully incurred, and provided also that the act be not attributable to want of reasonable caution."

I really cannot see the use of this article. If such homicide occur with neither the will to kill nor want of reasonable caution, (which we have seen above to be the characteristic of "negligent injuries,") it seems to fall exactly within the de- finition of accidental injuries, ch. I. s. 2, art. 6: "An injury shall be deemed to be accidentally caused whensoever it is neither wilfully nor negligently caused."

Lastly, the Commissioners state in a note, that they omit a rule usually con- tained in the treatises, justificatory of the homicide of an uuoffending party, where the accused reasonably thought the homicide indispensable for preserving his own life. I entirely concur in thinking that such cases had far better be left to the mercy of the Crown. Section sixth is that of self-murder; and we may here gladly observe a note upon the cruel absurdity of confiscation of property in such cases, which punishes the living for the crime of the dead. The Commissioners expressly state, indeed, in a note upon the chapter of Penalties, that they are "strongly opposed" to the retaining of the law of forfeiture in any case.

A remarkable alteration of the law is that by which the "procuring, promoting, or being present, aiding in or abetting, the commission of self-murder," is made punishable with the penalties of the second class (transportation for life, or for not less than seven years); the crime being, under the present law, murder. The Commissioners justly observe, that the case is analogous to that of homicide by consent, the penalty for which they have already mitigated; Mr. Starkie still die- , senting. It is difficult to see, however, why homicide by consent should be subject" to lower penalties (those of the fourth class) than the abetting a suicide.

The last and largest section of this chapter (section seventh) is that of " other offences against the person. Article 1. " Whosoever shall administer to, or cause to be taken by any other person, any poison or other destructive thing, or shall by any means manifesting a design to kill, cause bodily harm to any other person, with intent, in any of the cases aforesaid, to commit murder, shall suffer death." 2. "Whosoever shall by any means manifesting a design to kW, other than the actually administering, or causing to be taken, poison or any other destructive thing, attempt to commit murder, shall, although no bodily harm shall be caused, incur the penalties of the fourth Class, (transportation for life, or for not less than seven years, or imprisonment for not more than three)." These articles exhibit an improvement upon the present law; by which, "any stab, cut, or wound," (words in themselves of somewhat difficult construction,) " however slight, with intent to commit murder, is a capital offence, but any other bodily harm, however _grievous, must be dangerous to life in order to make the doing of it capital." But, at the risk of running counter to perhaps the general feeling, I must protest against the assimilating to actual murder all attempted poisonings, all attempts to murder accompanied with bodily harm. From the moment that the penal law is founded not upon the principle of re- venge but of protection to society by the prevention of crime, its enactments

should be regulated by the amount of injury done, the evil intent being proved,

and not by the actual scope of the evil intent itself. To make an attempt to murder, not wholly consummate, punishable in the same degree as actual murder, is to stimulate murderers thoroughly to accomplish their crime, and thereby to inflict a greater evil upon society. To make attempts to murder, not wholly con- summate, punishable in a less degree than actual murder, would be to hold out to all murderers, even to the last moment, the temptation to leave their crime half accomplished, so as to spare much injury to society. The repugnant character of the two above-given articles is, moreover, obvious. For the administering poison with no evil effect whatever—death. For the at- tempting to produce death without evil effect in other cases—a penalty which may

not exceed seven years' transportation. Vengeance is the principle of the OM enactment, prevention of evil of the other. Poisoners are warned in all eases to

make their doses strong enough, or even to follow up the dose with a well-directed stab, as they are to expect no mercy. I am glad, however, to see that the Com- missioners "wish for an opportunity of reconsidering their opinion on the subject of capital punishment in the above cases."

The same observations apply in a great measure to the next article, inflicting the punishment of death on a crime indeed of most threatening character to the wellbeing of society. Article 3. " Whosoever shall set fire to, cast away, or in anywise destroy, any ship, vessel, boat, or raft, with intent to murder any other person, or shall ma- liciously do any such act, whereby the life of any other person shall be put in danger, shall suffer death."

The three next articles enact the penalties of the seventh class (see above, sect 4. art. 1,) for the" maliciously putting life in danger" by means not before speci-

fied; those of the ninth class (-imprisonment for not more than two years, or fine at discretion, or both) for the " negligently causing danger to life "; and those of the third class (transportation for life, or for not less than seven years, or im- Earrisirent for one to three years) for the "maliciously causing grievous bodily

The good effected by these enactments is shown in a note by the Commissioners; who observe, that " the only injuries to the person, short of murder and attempts to murder, which are punished more severely than by fine and imprisonment ac- cording to the present law, are attempts to maim, disfigure, disable, or do grievous bodily harm." And whilst the antiquated offence of mayhem consists " in ren- dering a man less capable of fighting," those of " disfiguring, disabling, or doing grievous bodily harm," are left in a most vague state by the present law. The Commissioners' definition of "grievous bodily harm," as given in ch. III. art. 1, is as follows—" The term 'grievous bodily harm' shall be deemed to signify any harm whereby any organ of sense or any member of the human body is rendered permanently imperfect, the fracture or dislocation of any bone, or any bodily harm whereby the person to whom it is caused is during the space of twenty days at the least in bodily pain, diseased, or unable to follow his ordinary calling or pursuits." The limitation of twenty days is adopted from the Code Napoleon, with the further countenance of the Indian Law Commissioners. Mr. Starkie declares himself opposed to its introduction, but without offering any better delimitation of the injury sought to be characterized. The seventh article of the section we are now considering—consistently with cer-

tain articles of sections 3 and 5, on which I have had occasion to comment already— enacts the penalties of the third class (see above) for the infliction of grievous bodily harm on officers or other persons believing themselves authorized to do any act for the advancement of the law, "although such parties use no more violence than the law permits for the pose of self-defence.' With a curious prudery, the Commissioners excuse themselves from not following up the creation of this new class of crimes, by the making it penal " to offer any resistance whatever to an officer who is acting illegally, provided he believes himself to be acting legally," on the ground that they have already given " a great extension " to the present law. So we may still resist a little when our liberty is illegally invaded by an officer ! We may box his ears, tread on his toe, pull his hair, prick him with piss and needles, without the slightest fear of punishment. But if we put out his little finger, we are liable to transportation for life. Such Lilliputian concessions to the sense of injured freedom are really not worth accepting; and the Commissioners

would have done better to give full scope to their aspirations after consistency in the attempt (avain one, I trust) to engraft the doctrine of passive obedience upon our English law. Article 9 enacts the penalties of the fourth class (see above, article 2) for the

"maliciously attempting to cause grievous bodily harm to any other person, by any means manifesting a design to cause grievous bodily harm, whether any bodily harm be caused to such person or not." Quave, How can a man attempt to cause grievous bodily harm by means not manifesting a design to cause it 7 Whence can the attempt be inferred, but from the means employed ? Where a child fires a popgun, and says' " Now I'll kill you," it seems to me that there is no attempt to injure, precisely because the means do not manifest a design to do BO.

Article 10 inflicts the penalties of the eleventh class (imprisonment not exceed-

ing eighteen months, or fine at discretion, &both) for the "negligently causing to any other person any grievous bodily harm." Article 11 inflicts those of the fourth class (see above) for the " maliciously impeding any other person endeavouring to save his life from any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, whether such person shall be on board, or shall have quitted the same." It is perhaps to be regretted that this offence is placed away from the cognate offence referrred to in article 8. And I may observe here, once for all, that the inconvenience of scattering cognate offences at wide intervals is felt more than once in the Code. Articles 12 to 14 provide against the setting or allowing to be set spring-guns, man-traps, and other engines calculated to destroy human life, or to cause grievous bodily harm to any trespasser or other person coming in contact therewith, except such guns or traps as may be usually set to destroy vermin, and except when set in any dwelling-house. The penalties for this offence are those of the ninth class (imprisonment not exceeding two years, or fine at discretion, or both). And articles 15 and 16 enact the penalties of the fourth class (see above) for the maliciously administering poison or any other noxious thing to procure abortion, (whether by the woman herself or any other person,) unless the act be done in good faith to save the woman's life.

A Bensurrse.