is trying to apprehend him. There is only one other case in which a minimum punishment is now prescribed by law, and experience has shown that such punishments are exceedingly inconvenient, and perfectly useless when the judges can be trusted. Take away this slight difference, and murder in the second degree and manslaughter become identical. Each consists in culpable homicide, punishable in precisely the same way. Why, then, retain a difference in name which might frequently embarrass the administration of justice? If the proposal of the Commissioners is adopted we shall get the following strange result:

Manslaughter is wilful killing without malice.

Murder in the second degree is wilful killing with implied malice.

Murder in the first degree is wilful killing with express malice, or in the perpetration of certain crimes. N.B. The presence of implied malice makes no difference.

Is not this a strange way of simplifying and improving the law? The last objection I have to make to the suggestion of the Commissioners for the alteration of the law of murder is of a general character, yet I believe it to be quite as weighty as the others on which I have already enlarged. Men are to a great extent the creatures of words and names. When, therefore, it fortunately happens that the name of a crime is connected with terrible associations, and is regarded with universal horror, nothing can be more foolish than to weaken its effect. The word 'murder' at present is associated with all that is horrible, and exercises a powerful influence over the imaginations of

mankind.

This is because the popular conception of it is simple. Split the crime up into murder of the first degree, and murder of the second degree, and teach people that there are many murders which involve comparatively slight punishment, and the whole moral effect of the present association is destroyed. Conceive what an effect for evil it would have if, after receiving a sentence of seven years' penal servitude for murder, a man were to come back to his native place, and afford to its inhabitants a daily illustration of the fact that, owing to alterations in the law, the mysterious horror which used to surround the name of murder was now dispelled. The loss of such an association would do far more harm than would counterbalance the good to be ob tained by an alteration of the law.

Such are my objections to the change which it is proposed to make. I now proceed to consider the arguments which have induced the Commissioners to give it the preference over the other scheme which was proposed of abrogating the present law of murder, and starting afresh with a new definition. These arguments are three in number.

The first is, that the measure proposed by the Commissioners involves no disturbance of the present distinction between murder and manslaughter.'

This would be an excellent and indeed conclusive argument if the distinction in question were sound; but considering that the unsoundness of the distinction is the foundation of all the proposals of the Commissioners, it is difficult to understand the force of the argument. They observe that 'arbitrary

rules have been introduced into the law' (as to the distinction between murder and manslaughter) 'which most materially restrict its beneficial operation.' They refer to the 'nice and subtle distinctions which prevail upon the subject' of provocation. They declare that the practical effect of this state of things is most unsatisfactory.' They have 'unanimously arrived at the conclusion that this portion of the law requires revision and amendment;' and they conclude, not by recommending that the 'arbitrary rules' should be abolished, and the 'nice and subtle distinctions' taken away, but by treating the disturbance of the present distinction between murder and manslaughter' as a positive evil. Unless 'murder' and 'manslaughter' are something more than the names of crimes-unless they are real substantial entities, whose interests are to be carefully protected, and whose relations are on no account to be disturbed, I confess myself utterly unable to understand what this can possibly mean. I should have thought that if the present distinction between murder and manslaughter was arbitrary, intricate, and unreasonable, it ought to be disturbed' at once to any extent that might be necessary to make it natural, simple, and reasonable. On no account, say the Commissioners. To disturb' an existing distinction is unreasonable, and an evil in itself. The right way to get rid of its inconveniences is to set up a second absurd distinction, the effects of which will probably, or at least possibly, neutralise those of the first.

The second argument is, that the proposal in question does not make it necessary to remodel the statutes relating to attempts to murder.

This at least has the advantage of being an intelligible argument. No doubt a new definition of murder would imply an alteration in the law relating to attempts

to murder, and in this there would be a certain degree of trouble. In order to show the amount of trouble which the alteration would cause, and the importance of making the alteration, it will be necessary to say a few words on the law relating to attempts to murder. A very little attention to this matter will show that the argument put forward by the Commissioners as an objection to the scheme is in truth one of the strongest arguments in its favour.

If murder had been properly defined in the first instance, all attempts to murder might have been punished as crimes involving the same or a similar amount of guilt; but the extreme latitude of the definition of the offence itself led to one of the strangest and most characteristic results in the whole range of our criminal jurisprudence. In very early times it seems that the rule 'Voluntas pro facto' applied in this matter, and that an attempt to murder which failed by accident was punished as a murder. At some unknown period this rule fell into disuse, and attempts to commit murder fell back into the general class of misdemeanours. Some peculiarly atrocious crimes of the kind having attracted notice, particular Acts were passed-like the Coventry Act and the Black Act-which made certain forms of personal violence capital felonies, and these were slightly generalised and enlarged, until at last the law fell into its present shape, which is as follows. Attempts to murder fall under the provisions of ss. 11-15, both inclusive, of the 24 & 25 Vict. c. 100:—

S. 11 punishes with penal servitude for life or less, or imprisonment with or without hard labour for two years or under, the administration of poison, or wounding with intent to murder.

S. 12 inflicts the same punishment on those who, with the same

This is the statute which the Commissioners do not wish to remodel.' If there were not other instances of the same sort of ingenuity in the other Consolidation Acts, it might perhaps be a pity to abolish what would deserve to be considered as an unrivalled specimen of the art of botching. But it is only as a curiosity of clumsiness that the present law deserves any kind of respect. The way to remodel it is simply to repeal it altogether, and to substitute for it the following enactment:-'Whoever shall attempt to commit murder or manslaughter shall be guilty of felony, and shall,'&c. If murder were reasonably defined, there could be no objection to this. Whatever be the definition adopted, there can be no attempt to commit murder except in cases of premeditation and design. A man cannot attempt to do what he does not intend to do. He cannot try to kill a man unintentionally or negligently. If he tried to kill him under strong provocation, that would be an attempt to commit, not murder, but manslaughter. This crime at present, or under the alteration suggested by the Commissioners, would be punishable only as a misdemeanour; but surely an attempt to kill a man

under provocation is a most serious. matter, and if the law as to provocation is to be relaxed, it will become still more serious than it was before. It is very remarkable that the Commissioners object to the severity of the law of murder as it stands, and yet propose to leave the law as to attempts to murder unaltered. Thus a man, driven to frenzy by the grossest insults, shoots another dead. It is hard, say the Commissioners, that he should be hanged for this; nevertheless, let us continue to call the act itself murder, though we mitigate the punishment, in order that the attempt may be punished with sufficient severity.

The third argument is, that the proposed change will not interfere with the operation of those treaties with foreign powers which provide for the extradition of fugitives accused of that crime.'

It has been lately decided that the law which is to be applied in the case of extradition, is the law of the country which delivers up the criminal. Hence, if the Americans demanded the extradition of a person accused of murder, it would be necessary to consider whether he was a murderer by our law. As the law at present stands, they would have the power to claim extradition in thousands of cases to which it is morally certain that the treaties were never meant to apply. Suppose, for instance, a political refugee, in escaping from prison at New York, were to trip up and so kill a policeman who was in chase of him, this by our law as it stands would be murder, and the extradition of the offender could be claimed; yet such an act, though within the words of the treaty, would certainly not be within its spirit. This is not mere speculation. The case of John Anderson, the runaway slave, who was claimed by the Americans in 1861, was a case of constructive malice; and if the matter had not

been settled by the course of events without the necessity of a decision from our courts, the looseness and width of our definition of murder might have involved us in most serious difficulties. It cannot surely be seriously contended that the treaties with France and America bind us not to modify in any degree those parts of our municipal law to which the treaties refer. If this were so, by what right did we in 1861 recast the whole of our law of bankruptcy, and especially alter entirely all the provisions constituting offences against the bankruptcy law when we had a treaty with France for the extradition of 'fraudulent bankrupts'?

Such are my reasons for objecting to the change which the Commissioners propose to make in the present state of the law of murder, and for thinking that the arguments by which they support their proposal are unsatisfactory. I will now proceed to state my reasons for thinking that the other course suggested namely, the re-definition of the crime of murder-would be highly beneficial and perfectly easy. I have given elsewhere* at length an account of the common law definitions of crime, and have shown that by far the greater part of the intricacy and technicality with which the criminal law is justly chargeable arises from their insufficiency, and from the manner in which successive generations of judges have cobbled them up to make them meet, if possible, the requirements of successive generations. The great defect of the law, indeed, is that the great leading crimes have never been defined at all in an authoritative manner. There is, indeed, one exception to this statement. By far the best and most scientific Criminal Code that has ever been composed is little more than an abstract of the

criminal law of England, altered in some particulars, but preserving its principal outlines. I refer, of course, to the Indian Criminal Code, the practical success of which, I believe, has been fully equal to its theoretical merits. In the article which I published in this magazine in June 1864, I proposed the adoption of its provisions in this country; and in my evidence before the Commissioners I entered upon the subject more fully, and pointed out one or two modifications which I thought might be advantageously made in it. I still think that this course would be the best which could be taken; besides, it is one which is already sanctioned by experience, and by the authority of the eminent lawyers who prepared the code in question. Suppose, however, that for any reason the particular definition in question is objected to, still the importance of having some definition, and the general character of the definition to be adopted, admit of illustration. I will now discuss these subjects in their turn.

As to the importance of having a definition, there can, one would think, be no doubt of it. The many scores of reported cases which encumber our law books are, after all, only substitutes-and singularly clumsy and unserviceable substitutes they are for a regular and careful definition. When a certain number of them have been decided, the law upon the point to which they relate is said to be well settled, and to admit of no further discussion; and when matters have once been brought into this shape, the particular cases by which a given rule has been established, and the special facts on which the rule was founded, are for the most part forgotten. Thus, for instance, it is perfectly well settled that no pro

vocation except considerable personal violence, or the sight of the act of adultery by a wife, will reduce the guilt of murder to that of manslaughter. Indeed, if nothing else were required than to codify the existing law, it would be easy to throw the cases already decided into the shape of a series of propositions which would express all that they decide. That such a step would be an immense convenience in the administration of justice and in popularising the knowledge of the law, is a self-evident proposition. How anyone can doubt it who does not also doubt whether the Latin syntax ought not to consist entirely of an indefinite number of examples to the total exclusion of all rules, is to me incomprehensible. Whoever may object to definitions, the authors of the suggestions under examination cannot consistently do so, for they recommend that murder of the first degree should be defined. Hence the question is not between defining and not defining, but between one definition and another.

Since, then, it is obvious that, if the law is to be altered at all, there must of necessity be a new definition of some sort, what is it to be? The natural division of the subject is simple and obvious. All homicide is either criminal or not criminal. If it is not criminal, it is either accidental or justifiable. If it is criminal, the criminality must arise from the nature of the intention with which the act causing death was done, and this again will generally be inferred from the nature of the act itself. The cardinal points, therefore, are the intention with which the fatal act was done, and the nature of the act as evidence of that intention. As the question of evidence is exclusively for the jury, the only point with which the definition need be concerned is the intention. What, then, are the intentions with which acts which destroy life may be done?

They may be done either with or without an intention to kill. If done without an intention to kill, they may be done with or without an intention to inflict bodily injury likely to kill; and that intention, if it exists, may or may not be coupled with indifference as to the result. In either case they may be done with or without provocation. I will give a single illustration of each case.

1. A. cuts B.'s throat from ear to ear with a razor, B. being asleep in bed: A. robs the house. Here there is an intent to kill, shown by the character of the act and the subsequent conduct.

2. A. robbing B.'s room, B. wakes up and tries to arrest A.; A. strikes at B. with a knife and cuts B.'s throat. Here there is no intent to kill, but there is an intent to do personal injury likely to kill, and coupled with indifference whether death follows or not.

3. It would be possible to put a case of an intent to do personal injury likely to kill, coupled with a wish not to kill; but this is a mere speculative possibility. No jury which acted on the rule that a man intends the natural consequence of his actions would ever find the existence of such a state of facts.

Substitute for the motive assigned in these cases some gross outrage by B. against A., and you have the case of killing, or doing an act likely to kill, with provocation. The remaining cases of criminal homicide are killing by negligence, without any intention to inflict dangerous bodily injury; and killing by bodily injury intentionally inflicted, but not likely to kill. This is obviously very near the case of killing by negligence. I would therefore lay down the following propositions, not as definitions, but as illustrations of the ease with which a definition might be framed. A formal definition would require further explanations and provisos,