CH. XXVI. is to be treated according to the ordinary rules as to wounding and killing. 1 "Challenge-bearers, who seriously try to prevent the duel, seconds, as well as witnesses brought to the duel, physicians, and surgeons are free from punishment." The effect which these provisions produce on an English reader is that the authors of the Strafgesetzbuch can hardly have disapproved of duels, and that it would have been more consistent with their real views to pass measures regulating the terms under which they were to be fought, than to impose punishments for duelling so light as to be sure not to deter. The following passage explains the view taken of the subject 2 by German lawyers :-"The offence of duelling presents itself neither as a breach of the public peace, nor as an usurpation by private violence of the public adminis"tration of justice, but as a punishable gambling with life "and limb. The existence of duelling is an unanswerable reproach to the treatment by modern legislation of insults. "to honour, which treatment does not satisfy our modern "sense of honour, which is exaggerated because it is thoroughly subjective. In a systematic view of the subject, duelling occupies in offences against life and limb the same place as "gambling in offences relating to property." 3 Suicide is by the law of England regarded as a murder committed by a man on himself, and the distinctions between murder and manslaughter apply to this (so far as they are applicable) as well as to the killing of others. There is, however, authority for saying that there is no such offence as selfmanslaughter, and the true definition of murder of one's self seems to be where a man kills himself intentionally, to which Hale would add," or accidentally," by an act amounting to felony, as in the case where A., striking at B. with a knife, intending to kill B., misses B. and kills himself. 5 Suicide is held to be murder so fully, that every one who aids or abets suicide is guilty of murder. If, for instance, two lovers try to drown themselves together, and one is drowned and the other escapes, the survivor is guilty of murder. 1 Art. 209. Das Deutsche Reichsstrafrecht, von Von Liszt, Berlin, 1881. For authorities, see my Digest, Art. 227, The history of the law relating to suicide has only one step. In Bracton's time, a person who committed suicide in order to avoid conviction for a crime, forfeited his lands. Other suicides forfeited their goods only. This distinction was forgotten before the time of 2 Staundforde. The law in other respects remained unaltered till 1870, when forfeitures for felony were abolished by 33 & 34 Vic. c. 23. A custom formerly prevailed of burying persons against whom a coroner's jury had found a verdict of felo de se at cross roads, with a stake driven through the body. I know of no legal authority for this custom. It is not mentioned by any of the authors cited as a consequence of such a verdict, nor does Blackstone refer to it. Probably, like the custom of gibbeting, which certainly existed long before the statute 25 Geo. 2, c. 37, it originated, without any legal warrant, in circumstances now forgotten. It was, however, abolished in 1823 by 4 Geo. 4, c. 52, which enacted that thenceforth it should not be lawful for any coroner to issue his warrant for the interment of a felo de se "in any public "highway." He was to order the body to be privately buried in a churchyard, or other burial-ground," without any "stake being driven through the body," between nine and twelve at night, and without any religious rites. This has been further altered by 45 & 46 Vic. c. 19 (1882), which provides that the body of a suicide may be buried in any way authorized by 43 & 44 Vic. c. 41, i.e., either silently or with such Christian and orderly religious service at the grave as the person having charge of the body thinks fit. The act is so worded as to lead any ordinary reader to suppose that till it passed suicides were buried at a cross road with a stake through their bodies. The French law upon this subject is remarkable. It is stated 1 "Si quis reus fuerit alicujus criminis, ita quod captus fuerit pro morte "hominis vel cum furto manifesto, et cum utlagatus fuerit, vel in aliquo scelere "et maleficio deprehensus et metu criminis imminentis mortem ibi consciverit "hæredem non habebit. Si quis autem tædio vitæ vel impatientia doloris "alicujus seipsum interfecerit, nunquam habere poterit, et talis non amittit "hæreditatem sed tantum bona ejus mobilia confiscentur."-Bracton, ii. 506. 2 Staundforde, 19 D.; and see Lambard, p. 247, Coke, Third Institute, 54, and 1 Hale, P. C. 411 et seq. CH. XXVI. CH. XXVI. as follows by M. Hélie :-" La loi n'a point incriminé le M. Hélie's personal opinion appears to be that this view of the law is strained. It no doubt suggests the conclusion that the Court of Cassation thought that the Penal Code was too favourable to suicide. The only article in the German Strafgesetzbuch which throws any light on the view taken of suicide by the German law is Article 216, which, in providing for the punishment of various cases of homicide, says: "If a person is induced to "kill another by the express and serious request of the person killed, he must be imprisoned for not less than three "years" (and by Article 16 not more than five). No mention is made of suicide proper. 1 Pratique Criminelle, ii. 299. 2 In French law "jurisprudence" answers to the expression "the autho"rities," as used by English lawyers, and means principally the result of decided cases. "Espèce" is exactly our case. The Draft Penal Code proposed to make the abetment of CH. XXVI. suicide a special offence, subject to penal servitude for life as a maximum punishment. The attempt to commit suicide. was to be punishable by two years' imprisonment and hard labour. The definition of homicide ("Homicide is the killing "of a human being by another") excluded suicide. The abetment of suicide may, under circumstances, be as great a moral offence as the abetment of murder. Suppose, for instance, the heir to a large property were to persuade the owner of it to kill himself by making him believe that a dog by which he had been bitten was mad, and that his choice was between suicide and a death of torture; or suppose the seducer of a girl on her becoming pregnant goaded her into suicide in order to rid himself of an incumbrance, such a person ought, I think, to be subjected to punishment of extreme severity. The difference between such offenders and accessories before the fact to murder is that their conduct involves much less public danger, though it may involve equal moral guilt. Suicide is the only offence which under no circumstances can produce alarm. It would, I think, be a pity if parliament were to enact any measure tending to alter the feeling with which it is and ought to be regarded. As an instance of popular feeling on the subject, I may mention a case I once tried at Norwich, in which a man-I think drunk at the time-tried to poison himself in a public house. When called on for his defence, he burst out with all the appearance of indignant innocence:-" I try to kill myself! I cannot answer for what I might do when drunk, but I was all through Central India with Sir Hugh Rose in 1857, I was "in so many general actions, and so many times under fire, "and can any one believe that if I knew what I was about "I could go and do a dirty, cowardly act like that?" He was acquitted. CH. XXVII. CHAPTER XXVII. OFFENCES AGAINST THE PERSON OTHER THAN HOMICIDE. I NOW come to the offences against the person other than homicide, which are punished by the law of England. Before the Conquest such offences formed an elaborate and extensive branch of the law, but the offences were treated rather as torts than as crimes. Some of the laws set forth with the utmost minuteness and particularity the compensation to be made for every sort of bodily injury. After the Conquest the offence of wounding seems to have been regarded as a crime rather than as a civil injury, but the notices of it are extremely scanty. Bracton gives an 2 elaborate definition of a maim. He mentions one kind of maim, castration, for which the 3 punishment was sometimes capital, sometimes perpetual exile and forfeiture of goods. He also mentions the appeal "de pace et plagis" of breach of the peace and wounding, but there is nothing to show that in his day such offences were punished otherwise than upon an appeal or private accusation. As I have already observed, the rule "voluntas pro facto" was considered at one time to apply to the case of attempts 1 Ethelbirht, 32-72, 1 Thorpe, pp. 13-21; Alfred, 44-77, 1 Thorpe, pp. 93-101. There are less elaborate provisions in the other laws. 66 66 66 2 46 Mahemium vero dici poterit ubi aliquis in aliquâ parte sui corporis effectus sit inutilis ad pugnandum, et maxime per illum quem appellat, ut si ossa extrahuntur a capite, et skerda" (scurf) "magna levetur ut prædictum est. Item si os frangatur, vel pes, vel manus, vel digitus, vel articulus pedis, vel manus, vel aliud membrum abscindatur, vel per plagam factam contracti sunt nervi, et membrum aliquod, vel quod digiti curvi reddantur, "vel si oculus effossus fuerit, vel aliud fiat in corpore hominis per quod minus habilis et utilis reddatur ad se defendendum," &c.-Bracton, ii. p. 468; De Cor. exxiv. 3, fo. 145b. 3 Fo. 1446 and fo. 155, p. 146. 66 |