CHAPTER IV. PROTECTION OF THE BODY AGAINST MALICIOUS, WILFUL, AND NEGLIGENT ACTS, WHICH KILL OR WOUND. Murder the worst of human crimes.-Murder is the worst of all the crimes which one fellow subject can commit against another in a civilised community, being nothing less than the deliberate destruction of that life which it is one of the chief ends of the law to protect. Coke says that the life of man is of all things in the world the most precious.1 Life is to most men the best of all the gifts of God, for which they would gladly give the whole world, and though the cultivated intellect can see things greater even than life, yet in the general level of humanity it is the one priceless treasure. The law fixes its standard of excellence, its standard of conduct, and of happiness, not for the select few, but for the whole mass. It learns which is the irreparable wrong not from the lips of martyrs, of heroes and enthusiasts, but from the speech of common men. It is in the protection of human life, therefore, against murder, that all the resources of the law might be expected to be put forth, and all the most consummate safeguards arrayed which its ripest wisdom can devise. Yet, strange to say, the law may be said here to be all but powerless. It relies entirely, not on anything it can itself do, but rather on the habits of self-restraint and the moral sense of the community, in order to fence round the life of each with invisible ramparts. The life of every man may be said to lie open to the mercy of each and all his fellow creatures every hour of his existence; and yet such is the self-control and the far-reaching circumspection · 1 2 Inst. 30. manifested by his neighbours, that all the transports of passion, all the jarring conflicts of self-interest, that visit the human breast, yield but seldom an occasion for any one of them being tempted to the dire extremity of taking another's life. A few cases, nevertheless, occur, where all the motives of prudence and reflection, all the calculations of consequences are unavailing to stay the fatal blow, and when the deadliest crime known to the law, at least between subject and subject, is committed-that of one human being murdering another. If murder is the earliest crime recognised.-Though murder is the most serious of all crimes known to the law, yet it by no means follows, that it is the first to make its appearance in the code of semi-barbarous communities. It obviously involves a more abstract idea than some other crimes, as, for example, larceny, for the savage mind would no doubt be more vividly impressed by the loss of some article of property, a bow, or an arrow, or a head of game, than any attack on human life; and indeed one can scarcely suppose savages taking away each other's lives for the mere gratification of malice, which is probably a refinement of civilised life involving considerable reach of reflection. Larceny, and probably adultery and witchcraft, are the crimes which present themselves first to any tribe or community emerging from barbarism. But whether it be sooner or later in becoming a recognised crime, murder must at a very early stage of society take up its place, and it must always ultimately stand at the head of all the wrongs done between man and man. Even the untutored Indian admits that all have a right to live, and that murder is wrong.2 Definition of murder.-Murder may be defined to be "the malicious killing by one human being of another human being, by some external or other means satisfactorily traced; and a malicious killing is a killing not justified either by self-defence, or under colour of any lawful conduct or business of the killer." Judges have often expressed dissatisfaction with the definitions attempted of murder, because these necessarily 1 "The law of England allows no man to value himself at such a rate, as if the blood of his neighbour were a fit sacrifice to expiate every mean and slight affront."-6 St. Tr. 780. 2 2 Schooler. Ind. 195. refer to or assume knowledge of things extraneous, such as is implied when it is said to be a killing "without just cause or excuse," the chief difficulty then being as to what is a just cause or excuse. To know this requires, undoubtedly, long explanations and references to nearly all the lawful occupations of mankind. And yet all this must be known before anyone can comprehend fully what murder is, it being nothing else but the negation and antithesis of all these just causes and excuses for human conduct. Hence Foster, Hawkins, and Blackstone first treat of justifiable homicide and manslaughter, before beginning to explain what murder is; but even that arrangement little advances one's knowledge. The difficulty is inherent in the subject, and altogether ineradicable. Analysis of definition of murder.-The foregoing definition suggests various difficulties in the terms used; indeed, at every turn in the law the natural obscurity of language is the leading obstacle to an understanding of the things meant. It will accordingly be necessary, in further clearing up such ambiguities as are unavoidable, to discuss somewhat in detail the leading elements of the definition. This will be best done by explaining what is a human being—what is meant by malicious-what by killing-what by external means-what by self-defence-and what by lawful conduct or business. Each and all of these terms and phrases will be found to imply various distinctions and qualifications necessary to be borne in mind by those who would clearly comprehend the law of murder. It is true that the crime of murder bears the name of treason, when the object of the murderer is the person of the king or queen of the realm, or the eldest son and heir for the time being, or some high functionaries of the government. But the law, as regards these, will be more appropriately treated under the respective heads of Government and Judicature, of which they are a necessary part, and in reference to which alone they are of special importance. Murder means killing of a human being.-Murder is applied solely to the destruction of the life of a human being. And the crime is the same, whether the person murdered be rich or poor, male or female, old or young, a relative or a stranger, a wife or a husband, a parent or a child, the sick or the hale, a native or a foreigner, and, if slaves existed, a freeman or a slave. The circumstances of each case and the relationship between the parties do not affect the crime itself, though they may to some extent influence a court in fixing the quantum of the punishment. It may seem a truism to say that murder applies to all human beings, without distinction of person or race, and that the law guards human life from the first beginnings of infancy till the hour of natural death. But it is in this catholic and broad sense, that modern civilisation differs so widely from ancient and barbarous times. The law of civilisation tolerates no distinctions whateverallows no paltering or equivocation, no refinements of intention or motive, no calculations as to final causes, no speculations as to the worthlessness of the life sacrificed. It is enough that the object of the crime has the semblance of humanity. Yet here it is, that ancient nations and barbarous tribes show how obtuse is the perception they have of this ultimate principle and infallible axiom of modern law, that every human being has a right to live. They seem to have had a vague idea, that murder was wrong as regarded some persons, but saw no harm whatever, and sometimes saw much merit, in disposing in that way of many classes of people for various reasons, and perhaps oftener for the want of any reason at all. Murder of foreigners.-Barbarous nations, for example, are slow to see any harm in murdering foreigners and travellers, though they may be careful of their own people. With us all persons, whether foreigners1 or not, are equally within the protection of the law; and if killed under circumstances which would make the crime The Thugs of Hindostan were an organised community of men who believed they had a divine mission to murder and rob all mankind, and they practised every kind of cruelty and treachery on innocent travellers. They had no particular spite or animosity against any of their victims, and were models of decorum in their private and domestic relations. But while in their own circle they were blameless, yet, having this divine mission, they felt bound to strangle and murder every person out of that circle who fell in their way, and this for the good of themselves and their families. This fraternity lasted 200 years, and was put down between 1818 and 1853.-Hutton's Thugs. An Asiatic tribe, which has bequeathed to us their own name of Assassins, were said to have considered it their vocation to go and cut the throat of any person, if ordered by their chief to do so. murder as regards a natural born subject, it is equally a murder as regards an alien enemy' found in this country and not killed in the heat of war. And though outlaws and persons attainted of felony or in præmunire are subject to disabilities, and were once hunted and killed like wolves, they have long been entitled to the same protection against murder and all assaults as other persons.2 Origin of word murder.—It is to this barbarous notion as to the comparatively venial offence of slaying a foreigner, that we owe to some extent the very name of this crime. The word murder, "murdrum," has been generally explained to be the name given to a fine laid upon a township, in which a person unknown was found slain. The legal presumption then made was, that the unknown man was a Dane; but the fine was avoided by positive testimony that he was only an Englishman, the proceeding for that purpose being a presentment of Englishry. This jealous protection of the Dane, and afterwards extended to the Norman, was not finally removed till the 14 Edward III. But the old name of the fine was kept up as the name of the crime of murdering a human being. And though this practice of presentment of Englishry in case of murder, which was once attributed to Canute, is now generally regarded as one of the innovations of the Norman Conquest, and which went out after Magna Charta,* yet the principle or notion on which it was based was nothing else than this, that the life of one race was more jealously to be protected than that of another, and that other lives were of little or no consequence in comparison.5 Murder of infants.—Where the murder is of a very young child, there is now no distinction in point of law 1 1 Hale, 433. 2 Ibid. Before 5 Eliz. c. 1, persons attainted in præmunire had no protection against murder.-24 Hen. VIII. B. Coron. 197; 1 Hale, 497. So far back as 2 Ed. III. outlaws were protected against being kilied.-Co. Lit. 128 b. • 1 Hale, 447; 1 Stubbs, Const. H. 382; 14 Ed. III., St. 1, c. 4. 1 Stubbs, Const. Hist. 196, 382, 549; Laws, Hen. I., § 92; 14 Ed. III., St. 1 c. 4. 5 The Salic Law allowed less composition to be paid for killing a Roman than a Frank or barbarian; but the laws of the Burgundians and Visigoths were said to be impartial.—Montesq. b. xxviii. c. 3. |