Изображения страниц
PDF
EPUB

kills himself must be non compos of course1: for it is said," he goes on, "to be impossible that a man in his senses should do a thing so contrary to nature and all sense and reason. If this argument be good, self-murder can be no crime, for a madman can be guilty of none; but it is wonderful that the repugnancy to nature and reason which is the highest aggravation of this offence should be thought to make it impossible to be any crime at all which cannot but be the necessary consequence of this position, that none but a madman can be guilty of it. May it not with as much reason be argued that the murder of a child or of a parent is against nature and reason, and consequently that no man in his senses can commit it? Has a man therefore no use of his reason because he acts against right and reason? Why may not the passions of grief and discontent tempt a man knowingly to act against the principles of nature and reason in this case as those of love, hatred, and revenge, and such like are too well known to do in others?" All this is quite true. What Hawkins did not see is that when coroners' juries treat the act of suicide as conclusive evidence of mental unsoundness, they are not bringing in a candid verdict, but are merely evading the artificial doctrine of constructive murder, and illustrating thereby how a law overstrained defeats itself.

The Draft Penal Code of 1879 in its definition of homicide excludes suicide. At the same time it makes attempts to commit suicide punishable with two years' imprisonment with hard labour, and abetment of suicide with penal servitude for life.

India. In India the Penal Code punishes abetment of suicide severely (Arts. 305 and 306), and attempts to commit suicide with simple imprisonment for a term which may extend to one year or with fine or both (Art. 309).2

France. In France the Revolution swept away the medieval law, and the would-be regenerators of society in their passion for liberty accorded every man the liberty-among other things-of taking his own life; and this liberty still exists in the France of the present day: the law does not punish suicide. Whether it ought to do so or not has been much debated by French criminalistes, "et l'on a soutenu que l'obligation de conserver son existence ne constitué pas seulement un devoir envers soi-même et envers Dieu qu'elle ne relève pas uniquement de la loi morale, mais qu'elle est socialement exigible, puisque d'une part le suicide blesse la justice absolue et que d'autre part la société a le plus grand interêt à ne pas perdre un de

1 "Boswell: 'Do you think, sir, that all who commit suicide are mad?' "Johnson: 'Sir, they are often not universally disordered in their intellects, but one passion presses so upon them that they yield to it and commit suicide as a passionate man will stab another.'"

2 It is said to be very common in India for native women of all ages to throw themselves into wells on the merest momentary impulse of passion, excited generally by the most trifling causes-such as an unexpected reprimand, a thwarted wish, the colic, etc The relatives of such persons are at times unjustly harassed by the police as the alleged instigators of the offence.

ses membres et à ce que cet effroyable exemple dont la contagion est particulièrement contagieuse ne sois pas suivi." The inclusion of suicide among delicts would have the advantage, these jurists argue, of inculcating a fine lesson-a moral avertissement for the people; and who knows but what such salutary branding of suicide might not deter some momentarily distracted spirits from committing it? The difficulty which presents itself to French -and to most modern jurists-is to know what punishment to pronounce against the author of suicide. A man who takes away his own life, "se derobe à la repression, et la loi doit s'arrêter devant un cadavre." On this principle modern French law forbids proceedings against the corpse or the memory, and it has justly put an end to the general confiscation of goods, which hurts the family rather than the culprit.

Germany. In Germany, in the Middle Ages, as in Christendom generally, ignominious burial was the regular punishment for suicide. A change in sentiment took place in the eighteenth century under the influence of Montesquieu and Voltaire; and since the Bavarian Statute of 1813 punishment for suicide has disappeared from the law books. Neither suicide nor attempted suicide constitutes a criminal offence. Instigation to or abetment of suicide stands on a different footing, and is punishable in Germany, as it is in Hungary, Holland, Russia, Japan, England, and America.

Italy. In Italy the same distinction obtains. Under the Criminal Code of 1889 no punishment is ordained for suicide or attempted suicide; but any one instigating another to commit suicide, or aiding and abetting suicide, is liable, if death ensues, to imprisonment from two to nine years.

America. In America suicide is not, practically, an offence. At common law, as in England, it is felony; but as no penalty other than the forfeiture of goods-which was the common law punishment-can be inflicted on him who has murdered himself, and as forfeitures for crime are not practised in any states, the offence is not punishable. "Yet we recognise it as criminal," says a well-known American jurist, "whenever the opportunity arises indirectly, as when one advises another to kill himself. The view that men are naturally entitled to end their own lives at pleasure accords neither with our instincts nor with our better reason." The special ground taken up in America seems to be that suicide is an offence against population. -against all who compose the State-since it deprives each of a support on which he is entitled to rest. For it is neither possible nor desirable that men should be independent of one another (Bishop, C.L., s. 510).

The Modern Sanction -To sum up: all civilised nations now condemn suicide on one ground or another, either as an act of moral cowardice, or of rebellion against God, or of disloyalty to State or sovereign, or as a desertion of a man's family. All feel, too, that a deterrent is needed; but the trend of modern sentiment and legislation is to trust for this deterrent not to such rude sanctions as forfeiture or ignominious burial, but to their modern

equivalent, the disapprobation of society-the "infamy" of the old Greeks -and to exclude simple suicide, as distinguished from attempts to commit or abetment, from the sphere of positive law; in other words, to concede it legal impunity. Such a quasi-sanction as the disapprobation of society, the reprobation of right-feeling men, may prove-is sure indeed to prove at times—inadequate to deter; but so did the older sanctions: for a man who is bent on suicide-in the French phrase, "se derobe à la repression "-no ordinary motives can weigh with him. Nevertheless, it seems the only deterrent consistent with modern sentiment which can be resorted to without inflicting injustice on the family and friends of the suicide. On the other hand, the treatment by Anglo-American law of suicide as a crime, albeit a crime practically without a sanction, has an educational value. Its prohibition speaks with all the authority that comes from the "voice of the recorded law."

It is curious to note how here as elsewhere the Penelope's web of positive law is being perpetually unravelled, while duties once of moral obligation only are being taken up and woven into the fabric.

SECRET COMMISSIONS ACCORDING TO THE

LAW OF GERMANY.

[Contributed by ERNEST SCHUSter, Esq.]

THERE are no general provisions about "secret commissions" in the German Criminal Code The following provisions relating to special cases

may, however, be of interest in this connection :

1. PROVISIONS RELATING TO OFFICIALS.

The acceptance of a secret commission on the part of an official in the service of the Empire or of any German state would constitute an offence under ss. 331, 332, and 333 of the Criminal Code. It is provided by these sections that :

(a) An official who, in consideration of any act done in the course

of his employment and not in itself constituting a violation of his duties, accepts, demands, or obtains the promise of any gift or other advantage is guilty of an offence punishable by a fine not exceeding three hundred marks or by imprisonment for a period not exceeding six months.

(b) Where the act in consideration of which a gift is made, demanded, or promised constitutes a violation of the official's duties, the maximum punishment is penal servitude for five years.

(c) The person making or offering the gift in case (a) is not guilty of any offence; in case (6) his maximum punishment is five years' imprisonment.

The expression "official" includes persons employed permanently or temporarily in the service of the Government, or of any local government authority. It does not include solicitors or advocates, but it includes public notaries (see s. 359).

As both the Empire and states and also municipal corporations in Germany carry on manifold and important trading enterprises—railways, banks, factories, gas, electrical and water works, etc., etc.,—these provisions cover a fairly large ground.

It is a matter of evidence in each case whether the gift was accepted or made with reference to any particular official act. Gifts made to an official in accordance with general custom (e.g., New Year's gifts, etc.), or in consideration of some act not forming part of the donee's official

duties, or in compliance with the usual forms of hospitality or from motives of personal friendship, are not subject to the above-mentioned provisions (see Liszt, Strafrecht, 6th edition, p. 519).

2. PROVISIONS RELATING TO AGENTS, TRUSTEES, ETC.

It is provided by s. 266 of the Criminal Code that persons belonging to any of the following classes, and doing any of the following things, are guilty of an offence punishable by imprisonment for a period not exceeding five years:

(a) Guardians, trustees, receivers, persons acting as trustees in any bankruptcy matter, executors and managers of charitable trusts, if by any act or omission they wilfully injure the interests of, or inflict any damage on, any person or thing committed to their care. (b) Persons having authority to collect debts or to realise any property, who in the course of such collection or realisation wilfully injure the interests of their principals.

(c) Surveyors, auctioneers, brokers, etc., and other persons carrying on their profession or trade under a government or municipal licence, who in the course of any transaction entrusted to their care wilfully injure the interests of the persons for whom they are acting.

In any of the three cases a fine not exceeding three thousand marks may be imposed, in addition to the imprisonment, if the offence was committed with the intention of obtaining a pecuniary benefit. In a similar way s. 249 of the German Mercantile Code (s. 312 of the New Mercantile Code, which will come into force on January 1st, 1900) provides that managers, directors, and liquidators of companies are guilty of an offence punishable with imprisonment for a period not exceeding five years and a fine not exceeding twenty thousand marks if by any act or omission they wilfully injure the interests of their company.

The expression "wilfully" (Absichtlich) in all these provisions does not necessarily imply that there must be an intention to injure. It is sufficient that the act or omission is done or caused with the knowledge that the person or company concerned will be injured thereby (see Liszt, ubi supra, p. 428, and the cases quoted in Rüdorff's edition of the Criminal Code, sub-s. 266).

It is therefore clear that in many cases the acceptance of secret commissions by trustees, brokers, directors, etc., would constitute a criminal offence under the above-mentioned sections.

With reference to both classes of provisions which I have mentioned, it may be useful to point out that German codes as a rule lay down general principles without enumerating individual instances. The fact that the sections which I have quoted show a marked departure from that rule tends to prove that it was found impossible or inexpedient to establish such a general principle with reference to the subject in question.

« ПредыдущаяПродолжить »