NOTE VIII.

(ARTICLE 244.)

DEFINITION OF MURDER AND MANSLAUGHTER.

This definition represents the solution at which I have arrived after much consideration of one of the most difficult problems presented by the criminal law-the problem of giving in a short compass the result of a great number of decisions and statements by authoritative writers upon the subject of murder.

I do not propose in this note to examine the history of the law on this subject, or to enter into any inquiry as to its merits and demerits. I propose simply to show that it is stated correctly in the text.1 It will be sufficient for this purpose to show that the definition which I have given coincides with the theory laid down by the authorities on the subject, which I shall try to establish by showing that my definition of murder and manslaughter respectively will be found upon examination to be equivalent to what is stated in Coke's 3rd Institute, Chapters VII. and VIII., 1 Hale's Pleas of the Crown, pp. 411-502 (Chapters XXXI.-XLII. both inclusive), and Foster's Discourse on Homicide (Crown Law, 255-337). The existing law on the subject is founded mainly upon these works, and the almost innumerable decisions bearing upon the subject are all applications of the theory which is there laid down. The decisions have been collected more or less fully, and arranged in a more or less satisfactory way, by various writers, but for every practical purpose the collection contained in Russell on Crimes is sufficient, though in point of arrangement it is, I think, inferior to the older work of East.2 It fills 212 pages (640-852) of the first volume of the 5th edition.

1 In former editions this note also showed in the words of the author "that all the points decided by the various cases relating to any form of homicide are comprehended in what I have said on the subject in the different Articles contained in Chapters XXI.—XXIV. both inclusive, for the various decisions in question range over all the subjects treated of in those chapters indiscriminately." This was done by a table proving that the text included the effect of all the cases, bearing on the subject mentioned in Russell on crimes, which is now omitted; but if any doubt is felt as to the fact of such inclusion, reference may be made to pp. 385390 of the edition of 1887.

2 Two modern decisions on the subject of the law of murder of

The intricacy, confusion, and uncertainty of this branch of the law may be traced to the statute 23 Hen. 8, c. 1, s. 3, which took away benefit of clergy in cases of "wilful murder of malice prepensed," and which thus created the necessity of preserving the expression "malice prepense," and at the same time explaining it away. Coke endeavoured to effect this by the doctrine of constructive or fictitious malice, of which, if not the author, he was the most conspicuous expounder, and he showed in his exposition of it that utter incapacity for anything like correct language or consecutive thought which was one of his great characteristics. Hale amplifies Coke, Foster rationalizes Hale, and the judges have, in an unsystematic occasional way, worked out, bit by bit, the result recorded in the text.

According to Coke, malice aforethought is the criterion by which murder is distinguished from manslaughter. Malice may be either expressed or implied.

1 "Malice prepensed is where one compasseth to kill, wound, or beat another and doth it sedato animo."

2" Malice implied is in three cases :—

"First, in respect of the manner of the deed, as if one killeth another without any provocation of the part of him that is slain, the law implieth malice.

"Second, in respect of the person slain. As if a magistrate or known officer, or any other that hath lawful warrant, and in doing or offering to do his office or to execute his warrant, is slain, this is murder by malice implied in law, as the" 3 person killed is "the minister of the king."

importance were given before 1876, when the 5th edition of Russell was published, but not having been reported in the ordinary law reports have not been noticed in that edition. They are the cases of R. v. Allen and Others, the Fenians, tried at Manchester for the murder of the policeman Brett, in 1867, and the case of R. v. Desmond and Others, for killing people by blowing up the wall of Clerkenwell Prison, in 1868. Neither of these cases is reported in the common reports. I have quoted what was said by Lord Chief Justice Cockburn in Desmond's Case in Art. 244, Illust. (8), and I have reprinted in the note next following from the Times, the correspondence which passed between the counsel for the prisoner and Lord (then Mr. Justice) Blackburn, in R. v. Allen and Others. Though not in form it constitutes in fact an argument and a written judgment on a very important point.

1 3rd Inst. 51.

2 Ibid. 52.

3 The sentence here is not even grammatical.

"Third, in respect of the person killing. If A. assaults B. to rob him, and in resisting A. killeth B. (i.e. if B. resists and A. kills him) this is murder by malice implied, albeit he" (A.) never saw or knew him " (B.) "before."

These passages, overloaded, as Coke's manner is, with a quantity of loose rambling gossip, form the essence of his account of murder.

1

Hale, who arranges his matter more systematically (though he also is exceedingly confused), adopts Coke's theory in slightly different language. "Such a malice, therefore, that makes the killing of a man to be murder is of two kinds : 1. Malice, in fact, or 2, malice in law, or ex præsumptione legis." "Malice in fact is a deliberate intention of doing some corporal harm to the person of another."

“Malice in law, or presumed malice, is of several kinds, viz., 1. In respect of the manner of the homicide, when without provocation. 2. In respect of the person killed, viz., a minister of justice in the execution of his office. 3. In respect of the person killing." (As to which he 2 afterwards repeats Coke in an abridged form.)

Manslaughter, Coke 3 tells us (in the middle of a bewildering chapter about homicide in general), is homicide, "not of malice forethought" [but] "upon some sudden falling out."

Manslaughter is treated by Hale in a manner so meagre and yet so confused that no notion of it can be obtained except by reading through Chapters XXXVIII.-XL., and trying to make sense of them. Hale's whole definition of the offence is in these words, "Manslaughter, or simple homicide, is the voluntary killing of another without malice express or implied."

These definitions are open to the remark that the definition of express malice includes all the three cases of implied malice.

Express malice means the deliberate intentional infliction of bodily harm. Malice is implied if the act is done without provocation, or in resisting an officer of justice, or in committing a crime. But in each of these cases the infliction of bodily harm must be intentional, and there is no reason why in each of them it should not be deliberate.

1 1 Hale, P. C. 451.

2 Page 465.

3 3rd Inst. 55.

Thus the distinction between express and implied malice is a distinction without a difference.

It has involved the whole subject in an obscurity from which it can never be rescued except by legislation, though I think the way in which it is stated in the text is correct, and may contribute to dispelling the confusion.

Coke's theory, however, and that of Hale may be exhibited in the following propositions :—

1. Unlawful killing by any sort of premeditated intentional personal violence is murder.

2. Premeditation is to be presumed if the violence is intentional and unprovoked.

3. Unlawful killing by unpremeditated intentional personal violence is murder if the violence is employed in the commission of a crime or in resistance to lawful authority.

4. Unlawful killing by unpremeditated intentional violence provoked is manslaughter.

These four propositions may be also stated thus so as to show their connection:

Unlawful killing by any sort of intentional personal violence is murder, unless such violence is used " upon a sudden falling out," constituting provocation to the offender, but neither the exercise of force by an officer of justice against an offender, nor resistance to the offender by a person against whom a crime is attempted, constitutes such a provocation, and killing in such cases is murder.

That this proposition is the equivalent of the four propositions given above is thus proved:

1 All intentional violence must be either provoked or unprovoked.

All intentional violence must be either premeditated or unpremeditated.

1 This may be expressed thus in a tabular form :