name is unknown, it is enough that he be described as "a person whose name is to the jurors unknown." And this kind of objection, though once treated with great favour, is no longer encouraged, for liberal powers of amendment may under the statutes be exercised by the judge.1

If an indictment for murder be laid before the grand jury, and they think it is a case of manslaughter only, the course is to present a separate bill, charging manslaughter only. If there be an indictment for murder or manslaughter, and a coroner's inquisition for manslaughter or murder against the same person at the same sessions of gaol delivery, the practice is to arraign and try the prisoner on both, in order to avoid the plea of autrefois acquit or convict, and to endorse his acquittal or conviction upon both presentments.3 Whenever a man has been acquitted generally upon an indictment for murder, he may plead autrefois acquit to an indictment for manslaughter of the same person, and vice versá, for if the facts are the same the inquiry and verdict are conclusive. And for the same reason a conviction on one indictment may be pleaded as autrefois convict to a second for the same facts.5 Where a defendant is indicted for murder, the jury may think, that, owing to the want of evidence of malice, the offence amounts only to manslaughter, in which case they may find the defendant guilty of manslaughter. And if two are indicted for murder, one may be acquitted and the other may be found guilty of aiding and abetting. If two are indicted, each for the murder, and each as an aider and abettor alternatively, the jury may find both guilty generally, if uncertain which of them acted as principal. In some cases there may be no alternative between convicting for murder and finding a verdict of acquittal according as certain evidence is or is not worthy of credit. And it is not competent for a person charged with murder to be found guilty of assault only.10 But the jury may find the

14 & 15 Vic. c. 100, § 1; 2 R. v Bubb, 4 Cox, C. C. 455. Smith, 8 C. & P. 160.

R. v Welton, 9 Cox, C. C. 297. 3 1 East, P. C. c. 5, § 134; R. v

4 R. v Holcroft, 4 Co. 46 b; 2 Hale, 246.

5 R. v Wigges, 4 Co. 45; 2 Hale, 246, 252; Fost. 329.

c. 47, § 5. Den. C. 52.

c. 100, § 10.

7 R. v Taylor, Leach, 360.

9 R. v Smith, Russ. Cr. 749.

8

6 2 Hawk.

R. v Downing,

10 14 & 15 Vic.

prisoner guilty of the lesser offences of manslaughter, or excusable homicide, or of an attempt to commit murder.1 If the facts show excusable homicide, a verdict of acquittal is entered.

The sentence on murderers.-Every person now convicted of murder shall suffer death as a felon. And the judge is imperatively required to pronounce such sentence on the conviction. The mode in which the sentence is carried out is by hanging, and though formerly this was done in public by way of making the example memorable, it was found that the occasion was perverted into a spectacle too demoralising for any possible good to be gathered from mere publicity. And in 1867 it was at last enacted, that judgment of death should be executed within the walls of a prison, in presence of the sheriff and a few officials only. The usual rule is, that the officer having the custody of the criminal is bound to execute him. In case of doubt, the Queen's Bench Division has jurisdiction to direct which of several ministerial officers shall carry out the sentence.5 The body of every person executed for murder is now to be buried within the precincts of the prison in which he shall have been last confined."

Suicide, how far included in murder.—Murder, as already seen, is the killing of one human being by another, and it is natural and inevitable that all laws should have something important to prescribe for this situation; for unless each individual is protected as well as laws can protect him. against all interference, pain, injury, or death at the hands of others, life and all its pursuits would be a constant

1 1 Hale, 449; 2 Hale, 302; Co. Lit. 282a. c. 100, § 1. 3 Ibid. § 2.

2 24 & 25 Vic.

4 31 & 32 Vic. c. 24, § 23. According to Britton, if a prisoner was found guilty of murder he was sentenced to death, and he forfeited his movable goods to the crown, and a year's use of the inheritance, and the heirs were incapable of succeeding to the estate, and the widow had no dower.-Britt. i. 6, 3. The consequences of sentence of death on the property of the prisoner belong to the subject of 'Security of Property."

5 R. v Garside, 2 A. & E. 266; 4 N. & M. 333; R. v Antrobus, 2 A. & E. 788.

6 24 & 25 Vic. c. 100, § 3. Before burial the body used to be hung in chains near the place of the crime. As to this, see post, Ch. viii. "Punishment."

struggle and warfare. But a new idea altogether arises when one reflects that each individual, being also the master of his own life, can do acts which injure, wound, and kill his own body as well as the bodies of others. This is a later problem, which is developed only after some power of reflection and sense of refinement have come over society. Savages are all but incapable of conceiving the very notion of destroying their own lives; suicide is too intricate and abstract a speculation to disquiet them; and when they begin at last to see a difficulty, they are much at a loss what to do or what to prescribe in a matter which seems to be so much beyond all the laws and commandments of man. What punishment indeed is possible, seeing that the person to be punished is already beyond the reach of punishment; and if he is not to be punished, who then is the person to be punished in his place to what extent, and under what circumstances and conditions, can this be justly done? These are difficulties which no legislature has been able to overcome, except after long experience and reflection.

It is the necessary effect of good laws to create a general sense of security, which, like the atmosphere each member of society breathes and lives upon, dilates his faculties and enjoyments without almost the trouble of thinking. And the more highly the lives of others are valued, one's own life, as a separable possession, is insensibly raised in value by a species of reflection and mutual reaction. Nevertheless it is easy to see, that no human laws can possibly do much to restrain suicide. If all that the law can do for the individual is so little attractive, that he has already made up his mind that life is not worth having, there is scarcely anything that the law can say further on the subject. It is obviously only by moral and religious considerations that the dignity of life can be maintained, vindicated, and enhanced, and no tests that the law can supply have more than an insignificant effect on the view taken of his own life by each human mind. Hence the perplexity and confessed inability of any municipal law to confront and overpower a tendency which can so easily elude it, and can so seldom be baffled. There is no binding one over to keep the peace against himself. As Beccaria observed, suicide is a crime which seems not to admit of punishment, properly speaking, 12 Grey's Australia, 248.

for it cannot be inflicted but on the innocent or upon an insensible dead body. It is idle to scourge a statue. Mankind love life too well to admit of suicide being common from its unavoidable impunity.1

Perplexity of the ancients as to suicide.-The ancients were not unanimous in the view they took of the lawfulness of suicide. Plato thought it justifiable when one was overwhelmed by calamity or poverty.2 Aristotle condemned it as an injury to the state. The Gymnosophists, on reaching a certain age, or when threatened with disease, burnt themselves, after inviting their friends to a feast.4 Cicero asserted the doctrine of Pythagoras, that it was unworthy to abandon one's post and leave life, without the order of Providence, yet praised the suicide of Cato, who resolved to die rather than look on the face of a tyrant.5 Virgil, Cæsar, Ovid, Seneca, Plotinus and Porphyry seemed to think suicide a shrinking from duty. But there was considerable vagueness in the view held. The Stoics generally viewed suicide as one of the ways of displaying their indifference to life and its troubles. The Stoical type of moral excellence, which was that aimed at by the educated classes of Rome, taught that death was not to be feared, and that rewards or punishments in the present or future life were not the true motives of virtue. Whatever views in the abstract may have been held, many distinguished ancients committed suicide. But no writer on this subject has

1 Beccaria, c. 32. A great writer has said, that though there are many crimes of a deeper dye than suicide, there is no other by which men appear so formally to renounce the protection of God.-Mad. de Staël, Reffex. sur le Suicide. St. Cyran, one of the founders of the Port Royal, in 1608, wrote a treatise, vindicating the right of a man to kill himself for the good of his prince, of his country, or of his parents. -Volt. Becc, c. 19.

2 Laws, lib. ix.

3 Ethics, v.

4 Q. Curt. b. viii. c. 9. The learned have remarked that there is nothing expressly stated in the law of Moses as to suicide, and that it has not generally been deemed to be included in the prohibitions of the sixth commandment.-Michaelis, Com. § 272. But if the learned have so settled this point, it only shows the absurdity of interpreting divine laws in the way that courts of law would interpret most municipal laws; for the subject matter, the object and effect of the two kinds of laws differ toto cœlo.-See ante, p. 113.

5 De Senect. c. 20; Tuscul. i.; De Offic. b. i. c. 31.

6 One Hegesius, mentioned by Cicero, was called the orator of death, from the persuasive manner in which he painted this final

surpassed Marcus Antoninus, who says, "it becomes a man of wisdom neither to be inconsiderate, impetuous, or ostentatiously contemptuous about death, but to await the season of it as of one of the operations of nature." 1

Influence of Christianity on views of suicide.—While suicide was in many instances applauded, and in a few instances faintly reproved in the civilisations of Greece and Rome, most of the barbarous tribes from Denmark to Spain also habitually followed the practice, until the influence of Christianity gradually superseded this pagan view, and vindicated the sacredness of life. And it has been said that, under the empire of Catholicism, seconded as it was in this respect by Mohammedanism, suicide during many centuries almost absolutely ceased in all the civilised, active, and progressive part of mankind.3

relief from care, and many voluntarily rushed to the tomb with enthusiasm.--Tusc. Quaes. lib. i.; 2 Lecky, Hist. Mor. Cocceius Nerva, a prosperous lawyer, is said to have committed suicide owing to the sad state of public affairs in the republic.—Tac. Ann. b. vi. c. 29.

1 M. Anton. b. ix. c. 3. The ancients record with what indifference the Indians of their time ascended a funeral pile and burnt themselves to death, it being, as they represented, an eastern custom. Calanus did so in presence of the whole army of Alexander the Great. And a venerable Brahmin in an embassy from Porus to Augustus did the same thing at Athens.-2 Maurice, Ind. Ant. 107. The Siamese, indeed, considered it a laudable act of piety.-3 Univ. Mod. Hist. 336. In India, so eager were men to join in drawing the car of Juggernaut, and so confident if they could only pull a rope, they would go to heaven, that in their excitement they fell beneath the wheels, not unwillingly.-Clarke, Ten Relig. 134.

The code of Ayeen Akberry enumerated five modes of meritorious suicide. These were starvation-burying oneself in snow-abandoning oneself to alligators in the Ganges-cutting one's throat at Allahabad-and covering oneself with cow-dung and setting fire to the heap.-2 Maurice, Ind. Ant. 47. It has been said that in China, at one time, a man would kill himself on the doorstep of one who had affronted him as a mode of vengeance.-Clarke, Ten Relig. 22.

2 2 Lecky, Hist. Mor. 56.

3 After the Reformation many unfortunate women accused of witchcraft resorted to suicide to avoid the malignant persecutions which dogged them.-2 Lecky, Hist. Mor. 38. Epidemics of suicide have also occurred in the middle ages.-Hecker, Epid. Mid. Ages, 121. Montaigne says there was at one time kept at Marseilles a