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 2 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.v8n4p98 URL: http://dx.doi.org/10.5539/jpl.v8n4p98 Note: This is Part 2 of this Article, which continues the law from Russell’s text in 1819 up until modern times. For Part 1 see [http://dx.doi.org/10.5539/jpl.v8n4p9]. 36. Russell (1819) (a) Murder Russell - in the first edition of his Crimes and Misdemeanors (1819) - a text which continued until 1964896 - considered the law on homicide. In respect of murder, he stated: Murder is the killing of any person under the king’s peace, with malice prepense or aforethought, either express or implied by law. Of this description the malice prepense, malitia praecogitata, is the chief characteristic, the grand criterion by which murder is to be distinguished from any other species of homicide.897 In relation to malice aforethought, Russell noted that: in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also, in many other cases, such killing as is accompanied with circumstances that show the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. 898 Malice might be express899 or implied.900 Russell also noted: all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse or justification.901 Russell noted that murder could be committed on any person within the king’s peace 902 and that the killing must be by way of physical - not emotional - injury.903 Also, that the ‘probable consequence’ of an act could be murder. Thus, If a man however does an act, the probable consequence of which may be, and eventually is, death, such killing may be murder; although no stroke be struck by himself, and no killing may have been primarily intended…904 (b) Murder - Provocation Russell’s text was not well set out. Thus, unhelpfully, he dealt with provocation both under murder and under manslaughter.905 In respect of provocation, Russell stated: As the indulgence which is shown by law in some cases to the first transport of passion is a condescension to the 896 The last edition was edited by JWC Turner (see 42). 897 Russell, n 51, vol 1, p 613. Russell continued: ‘It should, however, be observed, that when the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact had been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief.’ 898 Ibid, pp 614-5. 899 Ibid, p 614 ‘Express malice is, when one person kills another with a sedate deliberate mind [cf. Coke, n 661] and formed design: such formed design being evidenced by external circumstances, discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm.’ 900 Ibid.‘And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden: thus where a man kills another suddenly without any, or without a considerable, provocation, the law implies malice for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause.’ Russell continued ‘So if a man willfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved. And where one is killed in consequence of such a willful act as shows the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to mischief.’ 901 Russell, n 51, vol 1, p 615. 902 Ibid, p 617 ‘Murder may be committed upon any person within the king’s peace. Therefore, to kill an alien enemy within the kingdom, unless it be in the heat and actual exercise of war, or to kill a Jew, an outlaw, one attainted of felony, or one in a praemunire, is as much murder as to kill the most regular born Englishman.’ 903 Ibid, p 619 ‘The killing may be effected by poisoning, striking, starving, drowning, and a thousand other forms of death by which human nature may be overcome. But there must be some external violence, or corporal damage, to the party; and therefore where a person, either by working upon the fancy of another; or by harsh and unkind usage, puts him into such a passion of grief or fear that he dies suddenly, or contracts some disease which causes his death, the killing is not such as the law can notice.’ 904 Russell cited the case of neglect in 1328, see n 432 as well as ones in 1559 and 1628, see App B(e). 905 Russell, n 51, vol 1, pp 614-5, 631-44,700-7, 714-22. 98 www.ccsenet.org/jpl Journal of Politics and Law Vol. 8, No. 4; 2015 frailty of the human frame, to the furor brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason, so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is committed. All the circumstances of the case must lead to the conclusion, that the act done, though intentional of death or great bodily harm, was not the result of a cool deliberate judgment and previous malignity of heart, but solely imputable to human infirmity. For there are many trivial, and some considerable, provocations, which are not permitted to extenuate an act of homicide, or rebut the conclusion of malice, to which the other circumstances of the case may lead.906 (wording divided for ease of reference) In respect of provocation, Russell noted that no words, or gestures, were sufficient to reduce killing from murder to manslaughter.907 As to an assault, he stated: Though an assault made with violence or circumstances of indignity upon a man’s person, and resented immediately by the party acting in the heat of the blood upon that provocation, and killing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood that the crime will be so extenuated by any trivial provocation which in point of law may amount to an assault; nor in all cases even by a blow. Violent acts of resentment, bearing no proportion to the provocation or insult, are barbarous, proceeding rather from brutal malignity than human frailty: and barbarity will often make malice. 908 In particular, Russell noted that: the response must be proportionate to the provocation;909 regard was to be had to the instrument used, especially when provocation was slight. 910 Also, that provocation was no defence if: there was express malice;911 sought by the party killing;912 there was cooling time.913 (c) Murder – Implied Malice Although set out in a rather discordant fashion, it seems clear that Russell also accepted Coke’s 7 categories of implied malice including poisoning (although Russell, illogically stated in respect poisoning: ‘It is a deliberate act, necessarily implying malice).’914 (a) unprovoked killing 915 (including random killing); 916 917 (b) killing a police officer in the execution of his duty; 906 Ibid, pp 631-2. 907 Ibid, p 632 ‘No breach of a man’s word or promise; no trespass, either to land or goods; no affront by bare words or gestures, however false and malicious, and aggravated with the most provoking circumstances, will free the party killing from the guilt of murder. And it is conceived that this rule will govern every case where the party killing upon such provocation makes use of a deadly weapon, or otherwise manifests an intention to kill, or to so some great bodily harm.’ 908 Ibid, pp 633-4. 909 Ibid, p 635 ‘An assault, though illegal, will not reduce the crime of the party killing the person assaulting him to manslaughter, where the revenge was disproportionate and barbarous, much less will such personal restraint and coercion as one man may lawfully use towards another form any ground of extenuation.’ 910 Ibid, p 636. ‘In cases of provocation of a slighter kind not amounting to an assault, as the ground of extenuation would be that the act of resentment, which has unhappily proved fatal did not proceed from malice, or a spirit of revenge, but was intended merely for correction; so the material inquiry will be, whether malice must be inferred from the sort of punishment inflicted, from the nature of the instrument used, and from the manner of the chastisement.’ 911 Ibid, p 639. Also, p 616. See also Mason (1756), App B(c). 912 Ibid, p 642 ‘where the provocation is sought by the party killing and induced by his own act, in order to afford him a pretence for wrecking his malice, it will in no case be of any avail.