THE CRIMINAL CODE.

LETTER V.

TO ME EDITOR OF THE SPECTATOR.

We come now to that section of the Code which exhibits the most daring altera- tions of the law, that of " Extenuated Homicide "; comprising all wilful homicide below the degree of murder, but excluding " negligent homicide," the result of want of caution.

Of the dividing into two classes the very various offences now included under the head of "Manslaughter," every one will, I think, approve. But why abolish the use of the word "manslaughter" as regards the present section, to which it seems fully adapted ? Is it because "manslaughter present

Saxon for "homicide"? Bat so is "baron" Norman for "man" in the sense of the Latin " vir,"—a mean- ing retained in the law-phrase of "baron and feme," for "husband and wife"; yet that is no reason for new-naming either one of the orders of our nobility or the members of one of our courts of justice. In both cases, custom has ended by fixing so clearly the restricted application of the word, that it is mere squeam- ishness to attempt to change it. How long will it be before the last Welsh jury- man understands that "extenuated homicide" means nothing more than "man- slaughter," although it is a so much harder word ? At this rate, the Commis- sioners will make sad havoc with our law language ! " Malice" is retained, but so disfigured that we can no longer recognize it. "Murder" exists, but its meaning has to be exhaustively extracted from six-and-thirty articles of extennations and justifications. "Manslaughter" has vanished wholly. Let me recommend ano- ther passage of Rossfs to the Commissioners: "When an act is recognized as uniting the moral and political characteristics of an offence, and we wish to include it in the penal law, we must examine first of all if the act has received in common speech a proper, flied, and determinate name, to distinguish it from all other im- moral acts. If such a name exists, the lawgiver should lay hold of it, and use it without defining it." The last six words of the quotation are not, however, always applicable.

Art. I. "Whosoever shall be guilty of extenuated homicide shall, except as is hereinafter mentioned in Art. 16 of this section, incur the penalties of the 4th class," (,i. e. transportation for life, or for any other term not less than seven years, qr imprisonment for any term not exceeding three years).

Art. 2. "Homicide is extenuated whensoever the killing is wilful and not justi- fiable; but the act from which death results is attributable to want of self-control, occasioned by an impulse of passion, fear, or alarm, which for a time suspends the

self-control." (AHnodwwIlinthilysizeordusede !is Ittetreheiren eta. difference betweenwords?- "want pofwer"oafnd "al

" want of self-control' occasioned 7 something that "suspends the power of self-control "1) Art. 3. "Homicide is extenuated, although the offender by mistake or accident kills not the person who offered the provocation but another person." Art. 4. "Whether such provocation as mentioned in the last two preceding articles existed, and whether at the time of doing the act from which death re- sults, the passion, fear, or alarm, occasioned by such provocation, continued in force, are questions of fact." Art. 5. " Homicide is not extenuated where the offender either seeks the pro- vocation as a pretext for killing or for doing grievous bodily harm, or where he endeavours to kill or to do grievous bodily harm, whereupon provocation is given." We have now conic to a series of articles in which the Commissioners seem to me to have been guilty of a worse sin than that of word-murdering. The first one (Art. 6) is innocuous, and far too wordy to be here inserted. It amounts to this— that it is murder to kill an officer lawfully acting, when the party killing has notice of his authority, or when, not having notice of the officer's authority, he takes part in an unlawful resistance to the officer. The next article, however wordy, must be inserted. Art. 7. "Whensoever the killing of an officer or other person is not extenuated within the meaning of the last preceding article, if such officer or other person be lawfully executing any writ, warrant, or process, civil or i criminal, or if such officer be lawfully acting n obedience to the command of a Magistrate, or be otherwise lawfully acting under authority for the advancement of the law, it is not extenuated, although such writ, warrant, or process, be not sufficient in law, or such command be unlawful, or such officer have no such au- thority as aforesaid, or the manner of executing such writ, warrant, process, com- mand, or other authority, be unlawful; provided such officer or other person be- lieved himself to be respectively lawfully executing such writ, warrant, or process, or lawfully acting in obedience to such command, or otherwise under authority for the advancement of the law; and provided the party killing had notice that such officer or other person proposed to act under the authority of such writ, warrant, or process, or in obedience to such command or otherwise for the advancement of the law."

I do not know whether it was designedly that the Commissioners wrapped up their most radical innovation in one of the wordiest articles of their Code; but on reading the above enactment, I am forcibly reminded of the saying of "speech being given for the concealment of thought." The meaning, however, for those who have the patience to seek for it, is undoubtedly this—that it is murder to kill an officer who professes to act under authority, however illegal may be his proceed- ; or in other words, that as against the officers of justice, the public is always to be in the wrong. When it is stated that such an act under the present law is not only neither murder nor manslaughter where the officer is in the wrong, but justifiable homicide, the legal magnitude of the innovation is obvious: of its po- litical consequences the Commissioners have taken no account whatsoever. - We owe a debt of deep gratitude to Mr. Starkie for the protest against these novelties, which is to be found in his separate report.

• " The subject is one requiring the utmost caution, lest the licence given to mere ministerial officers of law should be increased to an extent dangerous to personal safety and liberty; the more especially as officers who abuse their authority in the execution of process, or commit wrongs under colour of executing legal authority, are seldom of sufficient ability to render compensation in a civil action for damages. . . . An ignorant officer of a petty court may suppose that he is justified in arresting a party in a place beyond the limits of the cotuts jttris- diction; and, moreover, that he has a right to secure his person by putting hand- cuffs upon him in a public street; or a constable may suppose that he is entitled to break into a gentleman's house, and ransack his cabinets, chests, and most secret repositories, under a general search-warrant for libel; improvidently issued by a justice of the peace. Suppose, then, that the party, being fully aware that the con- duct of the bailiff or constable is altogether illegal, resists; that a conflict ensues, and that the party cannot otherwise preserve his valuable securities, liberty, or even his life," (and ?) " kills the assailant—such killing, as the law now stands, would be not merely regarded as extenuated, but justified. According to the articles above alluded to, the party so killing would not be justified; . . . the proposed alteration even excludes him from his plea of extenuation, and thus subjects him to capital punishment, although he has been provoked, it may be, beyond the power of self-control, by harsh and violent treatment which he knows to be illegal."

We are therefore, it seems, henceforth to be subject to any-amount of illegality, harshness, and insolence, at the hands of the most ignorant bailiff or policeman who believes—that is to say, pretends to believe—himself authorized, however cer- tain we may be of the contrary. If we kill him, we are murderers; if we submit, we have the remedy—ruinous itself to a poor man—of a civil action, against the judge, if the warrant itself were illegal; against the officer alone, a man of straw probably, if he exceeded his authority. • - Let us see, however, the statement and reasoning of the Commissioners. " It appears to us, that where the officer is acting under a process delivered to him to execute in consequence of a criminal charge, and where he is known to be so acting, he requires peculiar protection; and this, although person and pro- perty are illegally invaded, and although, in general cases, resistance to the il- legal invasion of person or property is justifiable, and ignorance of law is not excusable."

" It is to be considered that it is inexpedient to induce officers to question the process delivered to them by their superiors to execute."

Now this slyly implies that the present law does " induce officers to question the process delivered to them by their superiors to execute." For if it does not, this proposition affords no grounds for altering it. When the Commissioners have examined some fifty witnesses, Magistrates, Commissioners of Police, officers of the Constabulary, Sec., and have proved to the satisfaction of the public that crimes go daily unpunished by reason of the insubordination of policemen, consta- bles, &c.—that these gentlemen arc so suspicious of their superiors that they never accept a warrant without narrowly scrutinizing it, fee counsel liberally for easing them of their scruples, and always give the intended prisoner the benefit of a doubt, —then we shall be able to see the bearing of this proposition upon the intended alteration. At present, I for one confess myself wholly blind to any such effect; and consider that the power of dismissal which the superior almost always exerci- ses on the inferior officer, is quite sufficient check upon the insubordination of the latter.

Nay, more, I will ask whether really it be " inexpedient to induce officers to question the process delivered to them by their superiors"? Is it not, on the con- trary, the grand distinction between military and civil obedience, that the one is blind, the other open-eyed; the one irresponsible, the other responsible; the one based upon the two principles of war and despotism, the other on those of peace and freedom? The soldier obeys because he must; the civilian, because he ought to do so. To impose upon the police-officer the duty of blind obedience, is to turn him into a niece soldier. He has at all times quite sufficient inclination to be so. The Garde Municipale in France, and even the Constabulary Force of Ireland, are nothing more than permanent war-garrisons in time of peace.

But to continue. " It is to be considered, that where an arrest is by an officer of justice, the presumption is in favour of its legality." A most unexceptiomble position, but quite beside the question, which is that of actual illegality. No o.-e doubts but that every qfficer of justice ought primi facie to be obeyed. "That in the present condition of society and-state of the law speedy liberation and redress may be anticipated when an arrest is unlavrfuL"

"In the present condition of society"! Is this to be a mere fair-weather code? How many generations have elapsed amen the days of my Lords Castlereagh and Ellenborough? and who can look into the fatnre? or rather, who cannot dimly foresee what enormous powers are placed in the hands of an unscrupulous Minis- try, when any number of its opponents can be arrested on the most glaringly illegal warrants, to be resisted only at the risk of capital punishment if a deadly blow should be given ? "In the present state of the law "! Surely, at least in the hopes of its framers' a code should be "monumentum sere perennine!"

"Officers are exposed to imminent hazard in arresting the doss of persons who are charged with crimes. They are often compelled to act upon the information of others; they are liable to punishment or dismissal in case of escapes !irieing from excess of caution; and it ia -desirable that they should not be intimi- dated.

Not be intimidated ! Do you mean to say that they are? Do we hear of any instance of a policeman flinching from his duty? Do we not hear, on the con- trary—ay, and almost daily—of cases of the most heroic bravery on the part of the police, acting against what would seem to be overpowering numbers? I know, for my own part, of an instance in which a whole village in Warwickshire, with several families in it composed of individuals of the most desperate cha- racter, was completely kept in check for months by a single London policeman.

And what useless truisms are these about the "imminent hazard" of officers ! Will not a self-conscious murderer be always ready to kill the officer who arrests him, without a thought of asking whether his warrant be legal? . . . . "And it is 'desirable that they should not be intimidated, nor the persons opposed to them be encouraged by the consideration that an illegality in the frame of the process may possibly be discovered. The validity of process is moreover often a question of considerable legal difficulty. In the generality of cases on this subject, officers have believed they were acting in execution of the law, and the persons resisting them did not at the time suppose otherwise, but purposely intended to violate the law in a forcible manner; and yet, on account of some tech- nical objection to the validity of the process, the most malicious and barbarous attacks upon the officers have been extenuated or justified."

Were ever premises so narrow offered to justify so wide a conclusion? The-ob- vious answer to this is; Declare that no pleader's objection, no defect discovered ht trial only in the frame of process, shall serve to justify or extenuate an intention- al violation of the law. But to say that, because a pleader's subtlety has some- times justified a crime, therefore no warrant, however illegal—no excess of au- thority, however gross—can be resisted with security for the public welfare, is nothing less than a gross fallacy. The Commissioners then proceed to quote from Mr. Alison the rule of the Scotch law, which "reprobates the immedicite assumption of lethal weapons in resisting an illegal warrant, and will hold it as murder if death ensue by such immediate use of them, the more especially if the informality or error were not known to the party resisting." Without stopping to inquire whether the words in Italics do not sufficiently distinguish this doctrine from that of the Commission- ers, I may at once observe that the Scotch law, however superior in many respects to the law of England in matters of civil and commercial jurisprudence, is a most unsafe authority in all that relates to the liberty of the subject. A country which has exhibited almost within the present half century instances of judicial oppres- sion so glaring as those afforded by the trials of the Scotch Reformers—in which to the present day crimes may be created by the Court of Session--should not be our model in questions like these.

A BAREISTICE.