CRIMINAL LAW. CHAPTER XXVI. HISTORY OF THE LAW RELATING TO MURDER AND MANSLAUGHTER. HAVING in the preceding chapters given the history of offences against the tranquillity of the state, I pass to the history of offences against individuals. Most of these are punishable under the various provisions of the five consolidation acts of 1861, namely, 24 & 25 Vic. cc. 96, 97, 98, 99, and 100. These statutes define most of the crimes which they punish, and I shall have to notice both the history of the acts themselves, and the history of some of their detailed provisions; but they do not define, but assume the definitions. of the most important of those crimes; particularly homicide and theft. Each of these definitions has a history of its own, of considerable interest, quite distinct from the history of the act by the provisions of which the crime defined is punished. In the present chapter I propose to deal with the history of the definition of the offence of homicide in its two forms of murder and manslaughter. In the next chapter I shall examine, so far as I think it necessary to do so, the other provisions of the act relating to offences against the person. The manner in which and the occasions upon which people VOL. III. B CH. XXVI. CH. XXVI. may be killed, and the circumstances by which the moral character of the act of killing is determined vary little, in the times and countries with which I am concerned, and I will try to make a statement of them. The vast mass of cases which have at different times been decided about homicide have supplied the materials for this statement; but as my present object is to make the subject intelligible without dwelling on technicalities, I will not at present refer to them specifically. The subject obviously divides itself as follows: 1. What is homicide? 2. In what cases is homicide lawful, and in what cases is it unlawful? 3. What is the nature of the distinction between the two forms of unlawful homicide, murder and manslaughter? It is only by this preliminary analysis of the result that the process by which it was reached can be understood. First, then, What is homicide? Homicide obviously means the killing of a human being by a human being; but each member of this definition suggests a further question. When does a human being begin to be regarded as such for the purposes of the definition? What kind of act amounts to a killing? With regard to the first question the line must obviously be drawn either at the point at which the fœtus begins to live, or at the point at which it begins to have a life independent of its mother's life, or at the point when it has completely proceeded into the world from its mother's body. It is almost equally obvious that for the purposes of defining homicide the last of these three periods is the one which it is most convenient to choose. The practical importance of the distinction is that it draws the line between the offence of procuring abortion and the offences of murder or manslaughter, as the case may be. The conduct, the intentions, and the motives which usually lead to the one offence are so different from those which lead to the other, the effects of the two crimes are also so dissimilar, that it is well to draw a line which makes it practically impossible to confound them. The line has in fact been drawn at this point by the law of England; but one defect has resulted which certainly ought CH. XXVI. to be remedied. The specific offence of killing a child in the act of birth is not provided for, as it ought to be. It was proposed by the Criminal Code Commissioners to remove this defect' by making such an act a specific offence punishable with extreme severity, as it borders on murder, though the two should not be confounded. The question what amounts to killing is of greater difficulty and intricacy and it will, I think, be found to divide itself into several subordinate questions, all having reference to the extension to be given to an expression which in its obvious primary sense presents no difficulty. Where one man with his own hand stabs, strikes, or strangles another, and so causes his death, he obviously kills him, but the exact limits of the phrase are by no means obvious. The practical questions which arise are these. Killing may be defined as causing death directly, distinctly, and not too remotely; but several questions occur as to the limitations imposed upon the word "causing" by these qualifications. The following classification of the subject is, I think, sufficient for practical purposes. A man may be killed either by an act or by an omission. Killing by an act is the common case and shall be considered first. In order that a man may be killed by an act the connection between the act and the death must be direct and distinct, and though not necessarily immediate it must not be too remote. These conditions are not fulfilled (1) if the nature of the connection between the act and the death is in itself obscure, or (2) if it is obscured by the action of concurrent causes, or (3) if the connection is broken by the intervention of subsequent causes, or (4) if the interval of time between the death and the act which causes it is too long. Whether in particular cases these conditions are or are not fulfilled is always a question of degree dependent upon circumstances. The principle may be illustrated in a variety of ways, but no precise and completely definite statement of it can be made. 1 See section 212 of Draft Code. |