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Modernising the Law of Murder and Manslaughter: Part 1

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Modernising the Law of Murder and Manslaughter: Part 1 Journal of Politics and Law; Vol. 8, No. 4; 2015 ISSN 1913-9047 E-ISSN 1913-9055 Published by Canadian Center of Science and Education Modernising the Law of Murder and Manslaughter: Part 1 Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: October 17, 2015 Accepted: November 2, 2015 Online Published: November 19, 2015 doi:10.5539/jpl.v8n4p9 URL: http://dx.doi.org/10.5539/jpl.v8n4p9 Index 1. Introduction 31. Hawkins (1716-21) 2. Source Material 32. Blackstone (1765-9) 3. Legal Issues not Considered 33. Summary: Law to 1769 4. Meaning of Words 34. Foster (1776) 5. Benefit of Hindsight 35. East (1803) 6. Babylonian Code 36. Russell (1819) 7. Old Testament law 37. From 1819-1843 8. Roman law 38. Royal Commissions (1843-78) 9. Anglo-Saxon law 39. Stephen (1883) 10. Laws of Henry I (c.1113) 40. Kenny (1902) 11. Glanvill (c.1189) 41. Summary: Law to 1902 12. Summary: Law to 1189 42. Turner (1945) 13. Bracton (c.1240) 43. Royal Commission (1953) & Homicide Act 1957 14. Statute of Marlborough 1267 44. Smith & Hogan (1965) 15. Statute of Gloucester 1278 45. Criminal Law Revision Committee (1980) 16. Britton, Fleta & Mirror of Justices (c.1290) 46. Williams (1983) 17. Statute of Trespassers in Parks 1293 47. Law Commission Criminal Code (1989) 18. Edward III (1327-1377) 48. Carter & Harrison (1991) 19. Act of 1389 on Pardons 49. Justifiable Killing by 1998 20. From 1389-1551 50. LC Papers & Blom-Cooper (2004-5) 21. Summary: Law to 1551 51. CIJA 2008 22. Act of 1553 on Unlawful Assemblies 52. Coroners and Justice Act 2009 23. Staunford (1557) 53. Archbold 2015 24. Lambard (1581) 54. Summary: Law to 2015 25. Statute of Stabbing 1603 55. Homicide and Battery 26. Pulton (1609) 56. A Statutory Definition of Murder 27. Dalton (1618-1746) 57. A Statutory Definition of Manslaughter 28. Coke (1641) 58. Abortion and Infanticide 29. Summary: Law to 1641 59. Conclusion 30. Hale (c. 1670) Appendices A Anglo-Saxon Tariff B Murder (Cases) C Killing pursuant to Unlawful Act D Provocation (‘Hot Blood’) E Defences F Sports & Horseplay G Transferred Malice H Involuntary Manslaughter I Definitions of Murder & Manslaughter 1. Introduction At present, the English law of murder and manslaughter (together with the law on abortion and infanticide)1 is a mixture of the common law and various pieces of legislation. The two do not mesh well and this has resulted in endless problems and court cases - something which is neither conducive to justice nor to the benefit of the taxpayer. However, like many other common 1 When considering a legislative form for these crimes, regard will also be had to the present position on abortion and infanticide. It is not necessary to trace their history. 9 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 4; 2015 law crimes, part of the difficulty in putting murder and manslaughter into legislation is that its early history is little understood. Further, the chronological history of these crimes has not been laid out, in order to make it easier to see how various principles developed and - in many cases - were superceded. The purpose of this article is to trace the history of the law of murder and manslaughter, as well as various defences to the same. This is helped by more modern translations of the Old Testament and Anglo-Saxon law than legal writers such as Bracton, Dalton, Coke, Hale, Blackstone, Hawkins and Russell had.2 As a result, the evolution of these crimes can be comprehended more easily. Having traced the history, this article proposes legislative wording for murder and manslaughter. In tracing the historical development of these crimes the following 5 primary issues may be noted, since they run like a thread through the chronology: Homicide - Mens Rea. Pre-eminently, the history of the crimes of murder and manslaughter has seen an evolution in the mens rea required such that, today, it is recognised - in legal terms - that a person can kill another in four ways: (a) intentionally; (b) recklessly; (c) accidentally; and (d) negligently. The Old Testament recognised only (a) and (c) and it treated (d) as part of (c). Anglo-Saxon law - which was closely based on Old Testament law - did the same. 3 However, from Bracton (c. 1240) onwards, negligence, very slowly, emerged as a separate head of mens rea. Indeed, it was only really picked up by legal writers in the 19th century.4 As for (b), this was only developed in the 20th century. There is no doubt that the failure of the common law to separate the mens rea for homicide into these four categories caused endless cases and problems down the centuries - as well as strained interpretations and inappropriate categorisation, as we shall see; Premeditation. In respect of (a), intention, the Old Testament split it into two sub-categories, (i) premeditated; and (b) unpremeditated. They had good reason to. The basic principle in the Old Testament (and Anglo-Saxon law which closely followed it) was the lex talionis:5 a life for a life. God himself had declared it.6 However, to apply this divine statement in all its purity (rigour) in the Old Testament and Anglo-Saxon eras would likely have robbed society of much of its manpower 7 since those times were violent and men were endlessly fighting and brawling - the Anglo-Saxons especially so.8 Therefore, at least from the Book of Exodus onwards, the consequences of intentional killing were bi-furcated. o If the killing was premeditated - that is, planned - no mercy was to be shown to the killer. There was no right to sanctuary 9 and the payment of compensation (blood money) was not possible. The death penalty applied and it could be imposed by the elders (judges) or by the lawful avenger by way of private retaliation (also called private revenge, the vendetta or the blood feud); 10 o If the killing was unpremeditated - such as in a brawl 11 - mercy could be shown. There was a right to sanctuary and compensation could be substituted for the death penalty (providing the victim’s kin accepted this); o The exception in the case of brawling (quarrelling) contained within it elements of mitigation, viz: provocation and self-defence. Likely, these were taken into account (in practice) in Old Testament and Anglo-Saxon times - even though they did not comprise (it seems) separate legal principles. However, in 2 In the history of murder and manslaughter there is no doubt as to the great influence of the writings of: Bracton (c. 1240), Dalton (1618-1746), Coke (the third volume of his Institutes was published in 1641), Hale (his History of the Pleas of the Crown was in manuscript form until his death in 1676. The manuscript was only published in 1736), Blackstone (1765-9), Hawkins (1716-1824), Russell (1819-1964) and Kenny (1902-66). 3 To the modern mind, the failure to separate accidental and negligent killing is strange. However, to the Old Testament and Anglo-Saxon mind, both were ‘Acts of God’. Roman law did not have this pre-occupation and more clearly distinguished negligent, from accidental, killing. 4 Russell in the first edition of his work in 1819, see 36. Hale had referred to ‘debitam diligentiam’. However, his illustrations were mainly based on Roman law (and Bracton) and he never considered the concept of criminal negligence in any detail. 5 As JF Davis, Lex Talionis in Early Judaism and the Exhortation of Jesus in Matthew 5.38-42 (T & T Clark Int. 2005), p 1 noted, the term ‘lex talionis’ did not come from the Old Testament but from the Roman Twelve Tables (see 8), table 8 ‘When anyone breaks a member of another, and is unwilling to come to make a settlement [composition] with him, he shall be punished by the law of retaliation.’ (‘Si membrum rupsit, ni cum eo pacit, talio esto’). (underling supplied) 6 Compact NIV Study Bible (Hodder & Stoughton)(‘NIV’), Book of Genesis, ch 9 v 6 ‘Whoever sheds the blood of man, by man shall his blood be shed.’ This principle (leaving aside the possibility of divine ordinance) was also the prevailing principle under Babylonian law. That is, like for like; the punishment must reflect the crime. 7 It was the same for lesser physical injuries, such as ‘an eye for an eye, a tooth for a tooth’ etc. In practice, Old Testament - and Anglo-Saxon - law established a means of satisfying both God and man. The strict law was held to apply unless the injured party was prepared to accept compensation. Further, in the case of homicide, to prevent the population from being a collection of cripples (as well as to avoid endless retaliation) one suspects that, in practice, judges (and elders) placed heavy pressure on the victim’s kin to accept compensation, as opposed to killing in revenge. 8 Doubtless, Anglo-Saxons were like their Germanic stock. Tacitus on Britain and Germany (Penguin, 1954), pp 112-3: ‘The Germans have no taste for peace; renown is easier won among perils, and you cannot maintain a large body of companions except by violence and war…They love indolence but they hate peace.’ 9 Even if the pre-meditated killer sought sanctuary by an altar of God (in a temple) or in one of the 6 cities of refuge (in Old Testament times) he could be dragged out from the same. This may have also applied in early Anglo-Saxon times (in respect of churches).
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