CHAPTER V.

CRIMINAL JURISPRUDENCE.

By English law Suicide is of the Felony of Murder, inasmuch as it is

the murder of one of the subjects of the sovereign: it is a murder

committed by a man on himself. There is authority for saying that there

is no such offence as self-manslaughter. Regina _v._ Burgess, Leigh and

Cave, 258. It is suicide, or “felo-de-se,” not only to kill oneself

with deliberation, when in right mind, and of years of discretion, but

also to kill oneself accidentally when performing a felonious act; such

as attempting to kill another. But if a man is killed at his express

desire by another, it is not suicide, because in law the request is

illegal and void, though the latter is a murderer. Yet if one persuade

another to kill himself, and he does so, it is suicide, and also murder

in the adviser: see R. _v._ Dyson.

So also if two persons agree to commit suicide together, and one

succeed and one fail, the survivor is guilty of murder, for aiding and

abetting a suicide. See R. _v._ Russell, and R. _v._ Alison.

To constitute felo-de-se, the deceased must die within a year and a day

of his self-inflicted injury, and must have been in his right mind, yet

in the interval he cannot in law purge his offence by repentance. See

1 Hale, P.C., 412. Persons obviously insane frequently kill themselves,

yet it cannot be denied that persons are frequently found self-slain,

who have never shown any sign of mental derangement.

To avoid a verdict of felo-de-se, it should be shown by the evidence

that the deceased had not arrived at years of discretion, or else was

suffering from unsoundness of mind; in the adult the consent of the

will to a self-inflicted action should not be denied until disproved.

The argument by which jurors are supposed to be influenced, viz., that

no one in his senses would commit that which is the very negation of a

law of nature is, in fact, an aggravation of the offence. If tenable

it would excuse every criminal from blame, and would apply the more

powerfully in proportion to the intensity of the crime.

To murder a mother, or a daughter, is as much repugnant to a sensible

man, as to murder himself; but if none but lunatics could commit such

crimes, no one would be culpable at all.

And, therefore, by the law of our land, if a lunatic even murder

himself in a lucid interval, he is felo-de-se, as much as any man, and

if he murder another man in a lucid interval he is as much a murderer

as any other man. See 1 Hawkins, P.C., cap. ix., ss. 2 and 3.

At the present time, the absence of a sound mind in cases of self

murder, is the constant presumption of jurymen, who by avoiding a

verdict of felo-de-se, commit an amiable perjury, to save, as they

say, the reputation of the deceased among his survivors.

Now at one time the English law prescribed for the suicide an

inglorious burial in the highway, with a stake driven through the body;

and the vicarious punishment of his friends by the forfeiture of his

goods and chattels to the Crown.

No definite legal authority can be given for this form of burial;

Blackstone does not mention it.

It was abolished in 1823 by 4 George IV., c. 52; by this statute no

Coroner should issue a warrant for the burial of a suicide in any

highway, but it was enacted that the corpse should be buried privately

in any churchyard or burying ground between 9 and 12 at night without

any religious rites.

This enactment has been further amended by Acts 43 and 44 Victoria c.

41, and 45 and 46 Victoria, c. 19 (1882), which provide that the body

of a suicide may be buried either silently, or with any such orderly,

or Christian religious service at the grave, as the person in charge of

the body thinks fit, or I would add, can procure.

There is of course no clause compelling any minister of religion to

perform any definite burial service.

But I have no doubt that in such cases there would be no difficulty

in finding some clergyman to use forms of prayer at the grave, which

would be satisfactory to the relatives. The law was formerly evaded

as follows: if it seemed likely that a verdict of felo-de-se would be

found, the inquiry was adjourned, and in the meantime the body was

buried under a warrant from the Coroner.

In the time of the legal author Bracton (1260), a person committing

suicide to avoid conviction for a felony, forfeited his lands and

goods; other suicides forfeited their goods only.

This distinction was lost sight of in the time of Staundforde, who

wrote in 1570.

The law of forfeitures in other respects remained the same until 1870,

when forfeitures for felony were abolished by 33 and 34 Victoria, c. 23.

Whilst such disabilities existed, it was perhaps a kindness of juries

to misrepresent the manner of death, and to find that all suicides were

of unsound mind; but now that these disabilities, both of forfeitures,

and usages of contempt to the corpse, have been taken away, there

does not seem to be any necessity to refrain from finding a verdict

“according to the evidence,” which a Coroner’s jury is sworn to do; at

least, more accurately, a Coroner’s jury is sworn to give a verdict

“according to the evidence, and the best of their knowledge and

belief,” thus giving a greater freedom in investigation than is given

to jurymen in a criminal court.

STEVENSON, in Taylor’s “Medical Jurisprudence,” remarks, “It is to be

hoped that these recent enactments of the Burial Laws will do away with

many absurd verdicts of ‘Temporary Insanity;’” and Chitty, J., 1834,

adds, “If juries were more often to find verdicts subjecting parties

to some ignominy, in cases where there is no pretence of insanity, the

apprehension of such a result would tend to prevent the frequency of

the act.” (Med. Jurisprudence, cap. ix. sec. v.)

There are still some authorities who think that evidence of insanity

could be found in all cases, if only sufficiently investigated. See

“Journal of Mental Science,” April 1861. I feel bound to say this is to

me only an amiable fallacy.

Several cases have come under my personal notice where deliberate

suicide has been committed by persons of the clearest intellect, who

have never shown any one symptom of mind failure, who were not even

eccentric, and yet who chose to sacrifice their life in this world and

risk their eternal future, just to avoid a passing annoyance. Such a

choice may show, if you like, a weakness of mind, but is not what our

Text Books teach us to understand by the expression Lunacy.

Gibbon, “Decline and Fall of the Roman Empire,” c. 14, remarks,

“Whenever an offence inspires less horror than the punishment awarded

to it, the rigour of penal law is obliged to give way to the _common_

feelings of mankind.” Jeremy Bentham remarks that jurors do not

hesitate to violate their oaths, and so meet the interference of law,

by finding suicides to be “non compos.”

The frequency with which Coroners’ juries return a verdict of “Suicide

whilst in a state of temporary insanity,” is less a proof of the

connection between suicide and lunacy, than a sign of the futility of

the existing laws relating to the crime of felo-de-se.

The commission of suicide does, no doubt, raise the question of

insanity, but in such cases the issue should be tried, not decided

offhand. The reports of the following criminal trials may be consulted

for further information on the subject of the association of suicide

with crime.

In Regina _v._ Gathercole, 1839, the prisoner attempted to drown

himself; another man jumped into the water to save him, but lost his

own life in the attempt; G. was convicted of Murder.

In Regina _v._ Fisher, 1865, a man and wife agreed to die together;

both took opium; the wife died, the man by vomiting was saved; he was

convicted of murder, although he had once been in an asylum.

In Regina _v._ May, 1872, a young man who had aided a youth to kill

himself was tried for the crime, and the same ruling was laid down by

the judge, that to aid or abet is murder.

In Regina _v._ Dyson (Russell and Ryan, Criminal Cases), two persons

agreed to kill themselves together; one survived, and was held to be

guilty of murder.

The true doctrine of the English criminal law would be perhaps, as

follows: If suicide affords any presumption of insanity, it is of

insanity at the moment only, and even then, if not supported by other

evidence, it is not enough to deprive the person of imputability. See

McAdam _v._ Walker, 1 Dow, Parly. Cases, 187. Felo-de-se is a crime,

and a person is innocent until found guilty.

SIR JAMES FITZJAMES STEPHEN writes: “Suicide may be wicked, and is

certainly injurious to society, but it is so in a much less degree

than murder. The injury to the person killed we cannot estimate; the

injury to survivors is generally small. It is a crime which produces no

(public) alarm, and which cannot be repeated.”

“It would therefore be better to cease to regard it as a crime, and to

provide that any one who attempted to kill himself, or who assisted any

other person to do so, should be liable to secondary punishment.”

Whether it be true that the injury to survivors is generally small is,

perhaps, open to question; especially in cases where the suicide is

the sole means for the maintenance of others, a wife and family, for

instance; in such a case, if suicide be not a crime, it is at least a

cowardly neglect of duty.

The modern French view of the disabilities of suicide is shown by M. J.

Tissot, in Le Droit Penal, 1860, vol. 2, p. 48; he discusses the aspect

from which suicide should be viewed by law: “the penalties should be

fixed with regard to justice, decency, and custom; they would not

fulfil the first condition if they injured innocent survivors, nor the

second if they tended to dishonour humanity by ill-treatment of the

remains.”

“It should suffice to refuse an honourable funeral, the customary

burial ceremonies; this punishment would be privative only. The citizen

who flees his country is not honoured in his departure.” And in “La

Manie du Suicide,” he says, “the funeral should be private, as if

society, religion, and family, were blushing at the disgrace.”

For ancient French laws on Suicide, see Laverdy, Code Penal, cxi., &c.

In the GERMAN Strafgesetzbuch, article 216, we find, “If a person

is induced to kill another by the express and serious request of the

person killed, he shall be imprisoned for not less than three years,

and not more than five years.”

No mention is made of suicide proper, in old German codes.

In the BAVARIAN and SAXON Codes suicide is not mentioned: but up to

1871, it was the Saxon law that the bodies of suicides should be sent

to the schools of anatomy for dissection.

In the AUSTRIAN Code, there is a proviso that the suicide shall be

buried by certain officials, but not in a churchyard.

The PRUSSIAN Code forbids any injury to the corpse; there are to be no

marks of respect at the funeral; if the suicide be committed to avoid

punishment, the executioner is to bury the body.

The FRENCH Law is very remarkable; M. Hélie states it thus: “La loi n’a

point incriminé le suicide. Le fait de complicité est il punissable? La

negative est evidente.”

In the UNITED STATES suicide has never been a crime against statute

law, nor have there ever been any burial barbarities in cases of

suicide; but any one accessory to a suicide is guilty of murder as a

principal.

The ENGLISH DRAFT PENAL Code proposed to make the abetment of suicide

a special offence, subject to penal servitude for life, as a maximum

punishment.

The attempt to commit suicide was to be punished by two years’

imprisonment with hard labour.

Suicide: Its History, Literature, Jurisprudence, Causation, and Prevention · 第 5 / 22 章