Returning to the main line of thought it will be instructive to consider the relation of manslaughter to murder.One great difference between the two will be found to lie in the degree of danger attaching to the act in the given state of facts.If a man strikes another with a small stick which is not likely to kill, and which he has no reason to suppose will do more than slight bodily harm, but which does kill the other, he commits manslaughter, not murder. But if the blow is struck as hard as possible with an iron bar an inch thick, it is murder. So if, at the time of striking with a switch, the party knows an additional fact, by reason of which he foresees that death will be the consequence of a slight blow, as, for instance, that the other has heart disease, the offence is equally murder. To explode a barrel of gunpowder in a crowded street, and kill people, is murder, although the actor hopes that no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter. Perhaps, however, a case could be put where the riding was so manifestly dangerous that it would be murder.
To recur to an example which has been used already for another purpose: "When a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing, and gives no warning at all." The law of manslaughter contains another doctrine which should be referred to in order to complete the understanding of the general principles of the criminal law.This doctrine is, that provocation may reduce an offence which would otherwise have been murder to manslaughter.According to current morality, a man is not so much to blame for an act done under the disturbance of great excitement, caused by a wrong done to himself, as when he is calm.The law is made to govern men through their motives, and it must, therefore, take their mental constitution into account.
It might be urged, on the other side, that, if the object of punishment is prevention, the heaviest punishment should be threatened where the strongest motive is needed to restrain; and primitive legislation seems sometimes to have gone on that principle.But if any threat will restrain a man in a passion, a threat of less than death will be sufficient, and therefore the extreme penalty has been thought excessive.
At the same time the objective nature of legal standards is shown even here.The mitigation does not come from the fact that the defendant was beside himself with rage.It is not enough that he had grounds which would have had the same effect on every man of his standing and education.The most insulting words are not provocation, although to this day, and still more when the law was established, many people would rather die than suffer them without action.There must be provocation sufficient to justify the passion, and the law decides on general considerations what provocations are sufficient.
It is said that even what the law admits to be "provocation does not extenuate the guilt of homicide, unless the person provoked is at the time when he does the deed deprived of the power of self-control by the provocation which he has received." There are obvious reasons for taking the actual state of the defendant's consciousness into account to this extent.The only ground for not applying the general rule is, that the defendant was in such a state that he could not be expected to remember or be influenced by the fear of punishment; if he could be, the ground of exception disappears.Yet even here, rightly or wrongly, the law has gone far in the direction of adopting external tests.The courts seem to have decided between murder and manslaughter on such grounds as the nature of the weapon used, or the length of time between the provocation and the act. But in other cases the question whether the prisoner was deprived of self-control by passion has been left to the jury.
As the object of this Lecture is not to give an outline of the criminal law, but to explain its general theory, I shall only consider such offences as throw some special light upon the subject, and shall treat of those in such order as seems best fitted for that purpose.It will now be useful to take up malicious mischief, and to compare the malice required to constitute that offence with the malice aforethought of murder.
The charge of malice aforethought in an indictment for murder has been shown not to mean a state of the defendant's mind, as is often thought, except in the sense that he knew circumstances which did in fact make his conduct dangerous.It is, in truth, an allegation like that of negligence, which asserts that the party accused did not come up to the legal standard of action under the circumstances in which he found himself, and also that there was no exceptional fact or excuse present which took the case out of the general rule.It is an averment of a conclusion of law which is permitted to abridge the facts (positive and negative) on which it is founded.
When a statute punishes the "wilfully and maliciously" injuring another's property, it is arguable, if not clear, that something more is meant.The presumption that the second word was not added without some meaning is seconded by the unreasonableness of making every wilful trespass criminal. If this reasoning prevails, maliciously is here used in its popular sense, and imports that the motive for the defendant's act was a wish to harm the owner of the property, or the thing itself, if living, as an end, and for the sake of the harm.Malice in this sense has nothing in common with the malice of murder.
