United Kingdom. In the law of England the unlawful killing of a human being is either murder or manslaughter according as it is or is not accompanied by circumstances constituting the element of malice aforethought. That, according to the old definition of Coke, is the criterion by which murder is distinguished from manslaughter. [Footnote 52-1] In like manner Blackstone lays it down as a "general rule" that all homicide is in the eye of the law malicious, and therefore murder, unless it is either justified by the command or permission of the law, excused on account of accident or self-preservation, or alleviated into manslaughter by being the involuntary consequence of some act not strictly lawful, or occasioned by some sudden and sufficiently violent provocation. An exact account of these related offences can only be obtained by an examination of a vast number of judicial decisions, most of which are to be found in the ordinary text-books. (See, more particularly, Russell On Crimes and Misdemeanours.) The task of evolving exact definitions from this mass of material has been successfully undertaken by Mr Justice Stephen, and we cannot do better then present here the conclusions at which he has arrived. Art. 223 of his Digest of the Criminal Law is as follows:--"Man slaughter is unlawful homicide without malice aforethought. Murder is unlawful homicide with malice aforethought. Malice aforethought means any one or more of the following states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist when that act is unpremeditated: (a) intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) knowledged that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit any felony whatever; (d) an intent to oppose by force any officer of justice on his way to, on, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed." The expression "officer of justice" in this clause includes every person who has a legal right to do any of the acts mentioned, whether he is an officer or a private person. Notice may be given either by word, by the production of a warrant or other legal authority, by the known official character of the person killed, or by circumstances of the case. Art. 224 states that "homicide which would otherwise be murder is not murder but manslaughter if the act by which death is caused is done in the heat of passion, caused by provocation," the acts amounting to which are enumerated. But provocation does not extenuate the offence "unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or not the case regard must be had to the nature of the act by which the offender caused death, to the time which elapsed between the provocation and the act which caused death, to the offenders conduct during that interval, and to all other circumstances tending to show the state of his mind."
The law of the future is almost certainly to be found in the draft code presented by the Criminal Code Bill Commissioners of 1879, and founded on Mr Justice Stephens Digest above cited. The enactment of this measure being a mere question of time some of its provisions may usefully be stated here.
After defining homicide and culpable homicide, the code (sect. 74) declares culpable homicide to be murder in the following cases: (a) if the offender means to cause the death of the person killed; (b) if the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and if the offender, whether he does or does not mean to cause death, is reckless whether death ensues or not; (c) if the offender means to cause death or such bodily injury as aforesaid to one person, so that if that person be killed the offender would be guilty of murder, and by accident or mistake the offender kills another person though he does not mean to hurt the person killed; (d) if the offender for any unlawful object does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
Further (sect. 75), it is murder (whether the offender means or not death to ensure, or knows or not that death is likely to sense) in the following cases:--"(a) if he means to inflict grievous bodily injury for the purpose of facilitating the commission of the offences hereinafter mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from his violence; (b) if he administers any stupefying thing for either of the purpose aforesaid and death ensues from the effects thereof; (c) if he by any means wilfully stops the breath of any person for either of the purposes aforesaid and death ensues from such stopping of the breath." The following are the offences referred to: "high treason and other offences against the queens authority, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible, abduction, robbery burglary, arson." The code (sect.76) reduces culpable homicide to manslaughter if the person who caused death does so "in the heat of passion caused by sudden provocation;" and "any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool." Whether any particular wrongful act or insult amount to provocation and whether the offender was deprived of self-control shall be questions of fact; but no one shall be deemed to give provocation by doing that which he had a legal right to do, or which the offender incited him to do in order to provide an excuse for killing him or doing grievous bodily harm. Further, "an arrest shall not necessarily reduce the offence from murder to manslaughter because an arrest was illegal, but if the illegality was known to the offender it may be evidence of provocation." The "provocation" clause is not very happily expressed and will doubtless have to be recast.
America.The most notable difference between England and the United States in regard to the law on this subject is the recognition by recent State legislation of degrees in murder. English law treats all unlawful killing not reducible to manslaughter as of the same degree of guilt. American statutes seek to discriminate between the graver and the less serious forms of the crime. Thus an Act of the legislation of Pennsylvania (22d April 1794) declares all murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, or burglary shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder of the second degree. The statute, says Bishop (Commentaries on the Criminal Law, vol. ii. § 745), "is the parent of all the others." In Michigan it has been enacted in exact words; and in most of the body other States which have adopted this line of legislation the departure from the language of the Pennsylvania provision is not such as calls for the application of different principles of interpretation. It is pointed out by Bishop that the language used in these statutes to discriminate the degrees of murder is similar to that by which the common law distinction between murder and manslaughter is usually expressed. Thus in Massachusetts murder committed with "deliberately premeditated malice aforethought" is in the first degree. In Indiana the expression used is "purposely and of deliberate an premeditated malice." The technical interpretation of "malice aforethought" in English law is of course inapplicable to these phrases. There are also statutory degrees of manslaughter in the legislation of some of the States, but Bishop observes that "the books do not contain sufficient adjudications to direct us into a profitable discussion of this subject."
Historical Accounts of the Law on Murder and Manslaughter
For some historical account of the law reference should be made to Mr Justice Stephens History of the Criminal Law of England (London, 1883), vol. iii. c. 26. Stephen finds in the laws of Alfred the earliest and most important recognition of the properly criminal consequence of homicide as distinguished from the damages to be paid to the family of the deceased and the compensation to be made to the person whose peace had been broken, which are the prominent points of the early law of homicide. (E. R.)
52-1 "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the kings peace with malice aforethought either express or implied" (Coke, 3 Inst.).
The above article was written by: Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.