immunity to the offender than to leave any one liable to a prosecution for an act or omission which is not declared to be an offence by the Draft Code itself, or some other act of Parliament.

"But whilst we exclude from the category of indictable offences any culpable act or omission not provided for by this or some other act of Parliament, there is another branch of the unwritten law which introduces different considerations, namely, the principles which declare what circumstances amount to a justification or excuse for doing that which would be otherwise a crime, or at least would alter the quality of the crime. In the cases of ordinary occurrence, the decisions of the courts and the opinions of great lawyers enable us to say how the principles of law are to be applied. And so far the unwritten law may be digested without extreme difficulty and with practical advantage, and so far also it may be settled and rendered certain.

"In our opinion, the principles of the common law on such subjects, when rightly understood, are founded on sense and justice. There are few points on which we venture to suggest alterations, which we shall afterwards state in detail. At present we desire to state that in our opinion it is, if not absolutely impossible, at least not practicable to foresee all the combinations of circumstances which may happen, but which are of so infrequent occurrence that they have not hitherto been the subject of judicial consideration, although they might constitute a justification or excuse, and to use language at once so precise and clear and comprehensive as to include all cases that ought to be included, and not to include any case that ought to be excluded.".

I

Report, pp. 9, 10. The Draft Code provides that no act or omission not specified in it shall be indictable until made so by act of Parliament. At the same time it leaves definition, excuse, and justification to be determined by the courts. This was objected to by Chief Justice Cockburn, in a late pamphlet, as an inconsistency. To this we have the following reply by Sir J. Stephen in the Nineteenth Century for January, 1879: “It appears to me that the two proposed enactments stand on entirely different principles. After the experience of centuries, and with a Parliament sitting every year and keenly alive to all matters likely to endanger the public interests, we are surely in a position to say the power of declaring new offences shall henceforth be vested in Parliament only. The power which has at times been claimed for the judges of declaring new offences cannot be useful now, whatever may have been its value in earlier times. On the other hand, it is hardly possible to foresee all the circumstances which might possibly justify or excuse acts which might otherwise be crimes. A long series of authorities have settled certain rules which can be put into a distinct and convenient form, and it is of course desirable to take

In opposition to the conclusions above stated, my contention is that at common law wrongs are indictable whenever public policy, to be determined in accordance with the analogies of the law settled by prior rulings, requires that they should be redressed by public as distinguished from private suit. I have endeavored to sustain this conclusion by authority in the eighth edition of my work on Criminal Law, just published. At present I limit myself to showing that in the report before us, taken in connection with prior English legislation, we have abundant evidence to conclude that the task the commissioners undertook, that of pro

the opportunity of deciding by the way minor points which an examination of the authorities shows to be still open. In this manner rules can be laid down as to the effect of infancy, insanity, compulsion, and ignorance of law, and also as to the cases in which force may lawfully be employed against the person of another; but is it therefore wise or safe to go so far as to say that no other circumstances than those expressly enumerated shall operate by way of excuse or justification for what would otherwise be a crime? To do so would be to run a risk, the extent of which it is difficult to estimate, of producing a conflict between the Code and the moral feelings of the public. Such a conflict is upon all possible grounds to be avoided. It would, if it occurred, do more to discredit codification than any thing which could possibly happen, and it might cause serious evils of another kind. Cases sometimes occur in which public opinion is at once violently excited and greatly divided, so that conduct is regarded as criminal or praiseworthy according to the sympathies of excited partisans. If the Code provided that nothing should amount to an excuse or justification which was not within the express words of the Code, it would in such a case be vain to allege that the conduct of the accused person was morally justifiable; that but for the Code it would have been legally justifiable; that every legal analogy was in its favor; and that the omission of an express provision about it was probably an oversight. I think such a result would be eminently unsatisfactory. I think the public would feel that the allegations referred to ought to have been carefully examined and duly decided upon. To put the whole matter very shortly, the reason why the common-law definitions of offences should be taken away, whilst the common-law principles as to justification and excuse are kept alive, is like the reason why the benefit of a doubt should be given to a prisoner. The worst result that could arise from the abolition of the common-law offences would be the occasional escape of a person morally guilty. The only result which can follow from preserving the common law as to justification and excuse is, that a man morally innocent, not otherwise protected, may avoid punishment. In the one case you remove rusty spring-guns and man-traps from unfrequented plantations; in the other you decline to issue an order for the destruction of every old-fashioned drag or life-buoy which may be found on the banks of a dangerous river, but is not in the inventory of the Royal Humane Society."

ducing a complete and exhaustive code of crime, is one in which from the nature of things they could not succeed; and that we have to fall back upon the common law, if not to determine what are indictable offences, at least to determine what is the scope of offences which a code may make indictable.

Some portions of the code before us, in fact, amount to a tacit confession to this effect. Piracy, for instance, is a crime for which we peculiarly need a definition. Whether the transportation of negroes from a state of liberty to a state of freedom is piracy is still by the law of nations an open question. That it is piracy was affirmed by Judge Story; but when his opinion was overruled by the Supreme Court of the United States, and when with the latter tribunal concurred Lord Stowell, it was felt that the preponderance of authority was adverse to the position. Yet now, in turning to recent German expositors, we find "piracy by the law of nations" defined to be See-Raub, or sea-robbery; and that this term is held broad enough to include the robbery or kidnapping of men. It is also a subject of much dispute among writers on the law of nations whether robbery at sea to be piracy must be lucri causa; and it has been maintained by authority by no means contemptible, that if the object of the aggressor be destruction, and not gain, then piracy is not constituted. That privateering also is piracy by the law of nations, has been maintained in England with no little zeal; and though the great current of opinion goes to negative this assumption, yet we can scarcely say that the law of nations settles a point as to which the great maritime powers do not agree. Recollecting how innumerable are the offences at sea of which English courts take cognizance; recollecting also the distressing uncertainty as to what "piracy by the law of nations" really is; recollecting that the foundation on which the report rests is that every offence is to have an exact and perspicuous definition, and that without such a definition no offence is to be punished, it is not without surprise that we encounter the following clause in the report:"The bill contained a definition of 'piracy by the law of nations.' We have thought it better to leave this offence

undefined in Part VIII., as no definition of it would be satisfactory which is not recognized as such by other nations; and after careful consideration of the subject we have not been able to discover a definition fulfilling such a condition." So "piracy by the law of nations" is left without a definition; and a code which is proposed as furnishing a system of complete definitions for the guidance of English courts leaves it an open question whether piracy, a capital offence, requires the element of lucri causi to constitute it; whether it covers the robbery of men, or women, or children, as well as the robbery of ship-stores or of freight; whether it is to be stretched to include cases of freebooters with roving commissions from belligerents, and, if the latter view be negatived, whether insurgents, not recognized as belligerents, are entitled to issue such commissions. These are very important questions. They concern the interests, not merely of a large number of British subjects, but of all foreign states doing business on the seas. If a precise codification of the law, for the guidance of British courts and the instruction of foreign nations, is necessary in any case, it is necessary here. If there is a body of men capable of forming such a definition, the commission before us must be regarded as such a body. Yet they have deliberately abandoned, after an attempt by one of the most distinguished of their number, making the trial, and this abandonment has in it a striking lesson. It is this: that as to one of the most important branches of jurisprudence, codification is not practicable. And this is a lesson which our own legislation, which treats piracy in the same way, unites in teaching.

But it is not only by offences at sea that codification is defied. The same difficulty, though in a shape more subtle, pervades offences on shore. Of these homicide is the one which first attracts our attention; and to homicide the commissioners have given, as was proper, peculiar consideration, publishing in this connection many valuable observations. Of the common-law definition they thus justly speak:

"The common-law definition of murder is, 'unlawfully killing with malice aforethought.' Manslaughter may in effect be defined

as unlawful killing 'without malice aforethought.' The objection to these definitions is, the expression 'malice aforethought' is misleading. This expression, taken in a popular sense, would be understood to mean that in order that homicide may be murder, the act must be premeditated to a greater or less extent, the jury having in each case to determine whether such a degree of premeditation existed as deserved the name. This definition, if so understood, would be obviously too narrow; as, without what would commonly be called premeditation, homicide might be committed which would involve public danger and moral guilt in the highest possible degree. Of course it can be pointed out that every intentional act may be said to be done aforethought, for the intention must precede the action. But even with this explanation the expression is calculated to mislead any one but a trained lawyer. The inaccuracy of the definition is still more apparent when we find it laid down that a person may be guilty of murder who had no intention to kill or injure the deceased or any other person, but only to commit some other felony, and the injury to the individual was a pure accident. This conclusion was arrived at by means of the doctrine of constructive or implied malice. In this case, as in the case of other legal fictions, it is difficult to say how far the doctrine extended. We do not propose on the present occasion to enter upon a discussion of this subject. It was carefully considered before a committee of the House of Commons sitting on a bill for the definition of homicide, introduced by the late Mr. Russell Gurney in 1874. It was also considered by the Commission on Capital Punishments, which reported in 1866. Each of these bodies reported that the present condition of the law was unsatisfactory, though neither arrived at a definition which was considered satisfactory.

"The present law may, we think, be stated with sufficient exactness for our present purpose somewhat as follows: Murder is culpable homicide by any act done with malice aforethought. Malice aforethought is a common name for all the following states of mind: (a) an intent preceding the act to kill or to do serious bodily injury to the person killed or to any other person; (b) knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not; (c) an intent to commit any felony; (d) an intent to resist an officer of justice in the execution of his duty. Whether (c) is too broadly stated or not is a question open to doubt, but Sir