The Prohibition of Suicide

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VII
THE PROHIBITION OF SUICIDE
The normal person instinctively rejects the idea of

suicide in ordinary circumstances, and this makes the
subject a displeasing one to discuss. There is, however,
one fact that compels its discussion. When we send peo-
ple to prison for attempting suicide, or for aiding suicide,
or otherwise penalize its commission, it is morally im-
perative to inquire into the ethical basis of our social at-
titude. The subject has, indeed, been argued about for
more than two thousand years, and, as Albert Bayet
observed in his classical Le suicide et la morale, it is now
in pretty much the same state as when it began. This is
largely because it raises the marital disputes of order and
freedom, effort and indulgence, holiness and happiness,
authority and conscience, which have vexed philosophy
for as long as these problems have been thought of, and
are unable to achieve any permanent solution. Thus, there
is little hope of obtaining an agreed opinion on the
ethics of suicide itself. One can, however, detect an un-
mistakable trend of opinion against attaching penal sanc-
tions to the act of suicide. Substantial progress has been
achieved in making the law more humane, and this may
give sufficient encouragement to tread once again the old
disputed ground.
Two historical questions call for preliminary discus-
sion: how did Western communities come by their notion
that self-destruction is wrong, and how did this idea make
its way into the law?
248
The Prohibitionof Suicide
The non-Christianattitude
It seems to be impossible to generalize about the

attitude of primitive peoples towards this deed. Some
thought of it with superstitious horror; others, like the
Germanic tribes before the Christian era, accepted it
calmly.' The suicide of the impotent aged was sometimes
regarded as the natural complement of the infanticide of
unwanted children. It seems to be true to say, however,
that most primitive peoples of different times and places
have felt a superstitious fear of the body that has met a
violent death, whether by murder or suicide. The elab-
orate rituals that were performed to prevent its ghost
vexing the living may have been the origin of the idea
that suicide was itself, like murder, a wrongful act.
Religious philosophies are also lacking in complete ac-
cord. Eastern systems (Hinduism and Buddhism) do not
pronounce unequivocably and absolutely against suicide.
It came, however, to be forbidden by Jewish thought,
which was adopted in this respect, probably for certain
reasons of its own, by the Christian Church; and the
attitude of the latter in turn influenced Islam.
Although the prohibition of suicide is usually referred
to the Bible, it is easy to show the unauthenticity of this.
The Old Testament records four cases of suicide (Sam-
son, Saul, Abimelech, and Ahitophel), and gives no in-
dication that they were frowned upon. The last, Ahito-
phel, is recorded to have received due burial in the
sepulchre of his father (II Sam. xvii, 23). Later, both
Orthodox Jewish and Christian interpreters had to resort
'For a review of the literature see Louis I. Dublin and Bessie Bunzel:
To Be or Not to Be (New York, 1933)., pp. 13 8ff.
249
The Sanctity of Life and the CriminalLaw
to a strained interpretation of the Sixth Commandment
in order to stigmatize suicide as a sin.
The first Jewish writer to express the later view was
Josephus. He was the commander of an army which was
conquered by the Romans. His soldiers wished to kill
themselves to avoid surrender, whereas he himself wished
to live. It was on this occasion, in an address to his troops,
that Josephus expressed his philosophy of the matter.2
He employed two main arguments: (i) Suicide is a
crime remote from the common nature of all animals.
(2) The soul is, in the language of Roman law, a
depositum received from God, and a man therefore acts
wickedly in casting it from his body. The reasoning on
(2) is confused. One objection to it is that if the soul is a
depositum, the depositee can in accordance with ordinary
legal principles hand it back when he tires of his trust.
Yet does it make sense to speak of a man dealing with
his own soul? Also, we are told that the soul is immortal,
and yet the implication is that this immortal soul is some-
how injured by being cast out of the body. The first
argument, that suicide is contrary to the nature of ani-
mals, is also open to criticism. It is broadly true that
suicide is unknown among the lower animals, but the
reason obviously is that animals lack the mental ability to
argue with themselves that death may be preferable to
continued existence. It so happens that man is gifted
with this ability. Exceptionally, self-destruction has been
observed even in dogs, who may commit suicide, usually
by drowning or by refusing food, for a number of rea-
sons-generally when the animal is cast out from the
household, but also from regret or remorse or even from
sheer ennui.' Animal suicide of these kinds is capable of
being regarded as a manifestation of intelligence.
2 Josephus, BJ iii. 8, s. 5.
'Perlson and Karpman: "Psychopathologic and Psychopathetic Re-
action in Dogs," 4 Journal of Criminal Pyschopathology 504, at 514-15
(1943). For this reference I am indebted to Mr. Joseph Wallfield, of Co-
250
After Josephus, the condemnation of suicide is fre-
quently found in Rabbinic writings, and the part of the
Talmud known as the Mishnah provides that the person
who dies by his own hand is to be given no funeral
rites.'
It is convenient, before considering the Christian view,
to turn from the ancient Jews to the Greeks and Romans.!
There are traces of suicide-horror in the laws of ancient
Greece. In Athenian law the hand that committed the
suicide was cut off and buried apart from the rest of the
body, which was denied the usual solemnities. In Thebes,
too, the bodies of those who killed themselves were de-
prived of the accustomed funeral rites. These laws prob-
ably fell into disuse; at any rate, the balance of Greek
intellectual thought was not against suicide. Socrates,
who drank poison by judgment of the court, thought that
it did not become any one to end his own life before God
had imposed some necessity of doing it upon him. "Man,"
he said, "is situated in this life, as it were on a post or
station, which he must not quit without leave; because
the gods exert a providential care over us, on which ac-
count we are a part (as it were) of their property and
possessions; and because, we should think it unjust and
punishable (if it were in our power to punish) in any
slave of our own, to kill himself without our leave."
However, the leave of the Deity can be made manifest by
a "visible necessity of dying," as had been by the judg-
ment imposed upon himself. Plato, in the ninth book of
his Laws, reported these views of Socrates, and main-
tained the general condemnation of suicide; but he
largely destroyed its significance by admitting exceptions
lumbia University. See also W. Wynn Westcott: Suicide (London,

1885), Chap. 22.
'Dublin and Bunzel: op. cit., p. 176.
' See Charles Moore: A Full Inquiry into the Subject of Suicide
(London, 1790), Vol. i; Manson in i Journal of Comparative Legis-
lation (New Series) 311 (1899).
251
of the most elastic character. A man may quit life not
only when compelled to it by the judgment of the state,
but when afflicted by any extraordinary sorrow or in-
evitable turn of fortune, or any shame of extreme distress
and poverty.
Aristotle, by specious reasoning, concluded that sui-
cide was an offence against the state; he made no men-
tion of divine prohibition. His argument was that law
never commands a person to kill himself; but what it
does not command, it forbids; therefore, suicide is wrong.
The reasoning is demonstrably false, for there are liberties
which the law neither commands nor forbids. Another
reason given by Aristotle for condemning suicide was that
it was an act of cowardice.
Other philosophers admitted a large place for suicide
in their scheme of things. Epicurus, who thought that
man should live for pleasure alone, and denied the inter-
ference of the gods in human affairs, naturally drew the
conclusion that the free man was the arbiter of his own
life and death. If life ceased to be a pleasure, the remedy
was to make an exit. The Stoics, who professed them-
selves indifferent to pain, yet admitted self-destruction
whenever the circumstances might point to it, as in the
case of pain or disease. They regarded it as an essential
part of human freedom that we continue here by our
own consent.
Roman philosophy on the whole adopted the Stoic
view that suicide' was justified by circumstances. Seneca
(in his Epistles, and De Ira) has many striking pas-
sages to the effect that suicide is a last defence against
intolerable suffering. "To death alone it is due that life
is not a punishment, that, erect beneath the frowns of
' The word is not classical: someone remarked that if Cicero had
been confronted with such a formation 's suicida he would presumably
have thought it meant a pork butcher. "Suicide" first appeared in
1671, but more than a century later Johnson denied it admission to his
dictionary. See Dublin and Bunzel: op. cit., p. 250; H. Romilly Fedden:
Suicide (London, 1938), p. 29.
252
fortune, I can preserve my mind unshaken and master
of itself. . . . Slavery loses its bitterness when by a step
I can pass to liberty. Against all the injuries of life, I have
the refuge of death." "Wherever you look, there is the
end of evils. You see that yawning precipice-there you
may descend to liberty. You see that sea, that river, that
well-liberty sits at the bottom. . . . Do you seek the
way to freedom?-you may find it in every vein of your
body." "If I can choose between a death of torture, and
one that is simple and easy, why should I not select the
latter ? . . . Man should seek the approbation of others
in his life; his death concerns himself alone." Seneca's
argument was partly founded on a neat reversal of the
usual argument from nature: "The eternal law has done
nothing better than this, that it has given us only one
entrance into life, but a thousand ways of escape out of
it. Excellent is the condition of human life, since no-
body can be miserable, but by his own fault. Does life
please you? Live on. Does it not? Go from whence you
came." In particular, Seneca argued for suicide in old
age, when the body could not discharge its offices.
"When age once begins to shatter my understanding
and to impair my faculties, when it leaves me not life, but
breath only, I will leap in haste from the rotten and tot-
tering structure." Yet Seneca admitted the duty to live for
others, such as parent or wife.
Other writers, such as Cato, Epictetus, and Marcus
Aurelius might be cited for the same toleration of suicide.
Epictetus used the philodophy as a condemnation of
complaints. "Live as long as is agreeable; if the game
does not please you, go; if you stay, do not complain."
'
Partly as a result of these philosophies, suicide was a

frequent practice under the first Roman emperors. Per-
sons who were ill starved themselves to death; others,
for various reasons, serious or trivial, opened their veins
' See generally Charles Moore: A Full Inquiry into the Subject
of Suicide (London, 1790), I. Chap. 4.
253
or stabbed themselves; and this was frequently in pub-
lic, and by whole families at once. In the reigns of the
Casars, numbers of noble families under threat of prose-
cution for treason committed suicide in order to forestall
condemnation; the advantage of this course being that
they avoided forfeiture of property and obtained custom-
ary burial, which would have been withheld from those
executed for crime.
Notwithstanding these practices, Roman law never
came to include any general prohibition of suicide. How-
ever, in the particular case of those who committed sui-
cide in order to avoid forfeiture of property for crime it
was ordained that the property should be forfeit. In order
to prevent any possible injustice to the heirs, they were
enabled to try the guilt of the deceased, and if his in-
nocence of the crime charged could be proved, they were
entitled to his effects.' Thus there was no general forfei-
ture of property for suicide. Another special provision
was made for the soldier, who was punishable for at-
tempted suicide on the ground that this was a kind of
attempted desertion from his post, which was of value to
the state.
The origin of the Christianattitude
There is no condemnation of suicide in the New

Testament, and little to be found among the early Chris-
tians, who were, indeed, morbidly obsessed with death.
Those were the days when, instead of learning how to
live, men studied how to die. The Christian belief was
that life on earth was important only as a preparation
for the hereafter; the supreme duty was to avoid sin,
' Digest of Justinian 48.21.3.
'Digest of Justinian 48.19.38 and 49.16.6.
254
which would result in perpetual punishment. Since all
natural desires tended towards sin, the risk of failure was
great. Many Christians, therefore, committed suicide for
fear of falling before temptation. It was especially good
if the believer could commit suicide by provoking infidels
to martyr him, or by austerities so severe that they under-
mined the constitution, but in the last resort he might do
away with himself directly.' The sect whom St. Augus-
tine particularly noted for thi practice was the Circum-
celliones; these people not only sought out martyrdom,
profaning the temples of paganism in order to be ex-
ecuted, but, when all other expedients failed, cast them-
selves by the hundreds in ecstasy from lofty cliffs "till
the rocks below were reddened with their blood." "To
kill themselves," said Augustine, "out of respect for
martyrdom is their daily sport."
There seems to be little need to doubt that it was by
way of reaction from these religious excesses that
Augustine was led to condemn suicide in forthright
terms, and so to become the chief architect of the later
Christian view. In the first book of his City of God,
written in the first quarter of the fifth century, Augustine
came out strongly for the view that "suicide is a detestable
and damnable wickedness." He argued that suicide was
a sin greater than any that could be avoided by its com-
mission; it was "an escape from the ills of time by plung-
ing into those of eternity." His chief difficulty in support-
ing this conclusion was the precedent of the biblical
characters and the embarrassing number of saints who
had put an end to their own lives without previous disap-
probation. Augustine disposed of the case of Samson by
saying that he had acted under secret instructions from
God; and he speculated that the same might be true
of the other instances.
Augustine derived his own attitude in part from the
' See generally W.E.H. Lecky: History of European Morals, 3rd ed.
(London, 191), II, 4 3ff.
255
Sixth Commandment. To kill oneself is to kill a man;
therefore, suicide is homicide, and inexcusable. But this
is sophistry, for there are obvious differences between an
act of violent hostility to another and the act of a man
in voluntarily putting an end to his own life. For ex-
ample, it becomes a man to leave his life voluntarily for
a noble cause, when he would have no right to kill
others for that same cause. Thus the moral question of
suicide cannot be settled by simple logical deduction
from the prohibition of murder. The argument has, how-
ever, strongly influenced the legal view.
A second argument employed by Augustine was that
the suicide deprives himself of the opportunity for a heal-
ing penitence-referring to Judas. Yet Judas' suicide was
itself the expression of remorse.
Augustine's third argument was stoical in conception,
though he rejected the Stoics. The truly great mind, said
Augustine, will bear the ills of life. The argument reap-
pears from time to time in the proposition that suicide
is an act of cowardice. Now, the only line between
cowardice and caution (or wise retreat) is that the cow-
ard does not do what he ought to do. To brand the sui-
cide as a coward is, therefore, to beg the question
whether there is a duty to go on living.
The true reason for Augustine's stand against suicide
appears plainly enough from the historical events of his
age. These indicated that a prohibition of suicide was a
necessary corollary of the church's other teaching, which
would, without this corollary, have operated, and did in
fact operate, as an incitement to suicide. If death means
annihilation, there can be no point in suicide except as
an escape from suffering. But if man's life on earth is
merely a period of waiting for a divine glory to be re-
vealed, the true believer is naturally subject to the tempta-
tion to accelerate his eternal bliss, unless a new religious
rule is devised to forbid it. Augustine himself pointed
this out when he said that if suicide were permissible to
256
avoid sin, then suicide would become the logical course
for all those who were fresh from baptism. It is not sur-
prising that Augustine recoiled from this result, but he
could deny it, within the framework of his own beliefs,
only by postulating a divine prohibition of suicide.
The interdiction of suicide, as an inflexible principle, is,
then, part of a particular system of religious belief, and
need not be accepted by the positivist, or indeed by any-
one who does not accept the traditional eschatology.
The dishonouringof the corpse
The first Christian prohibition of suicide is some-

times attributed to the Council of Arles, A.D. 452. In fact,
however, this measure was directed only against the sui-
cide of servants (famuli). "Not the act, but dislike of its
repercussions as they affect the master and landowner,
provides the motive which makes the act criminal in
certain cases and envisages the suicide as diabolicus
repletus furore." 2 The earliest disapproval was expressed
by the second Council of Orleans, A.D. 533, which allowed
churches to receive the oblations (offerings) even of
those who were killed in the commission of a crime,
provided that they did not lay violent hands on them-
selves. This indicates that suicide was regarded as worse
than any other crime. The fifteenth canon of the Council
of Braga, A.D. 563, denied to suicides the usual funeral
rites with the eucharist and the singing of psalms. Canon
law was adopted into England by the Council of Here-
ford in 673, and the denial of burial rites was distinctly
reaffirmed by a canon of King Edgar in the year 967.'
2 Fedden: op. cit., p. 115, following Bayet: Le Suicide et la morale
(Paris, 1922), PP- 373 6.
James O'Dea: The Philosophy of Suicide (New York, 1882), p. 183-
257
The Synod of Nimes, 1284, refused suicides even the
right of quiet interment in holy ground.
This canonical development was undoubtedly in-
fluenced in part by the writings of St. Augustine; but he
had not demanded any punishment for the deed. In fact,
as has been seen, Augustine was prepared to justify some
historic suicides as specially commanded by God, and,
consistently with this theory, he felt himself constrained
to admit that even in his own day a person might rightly
make away with himself by special command of God:
"only let him be very sure that the divine command has
been signified." Such a theory is obviously inconsistent
with the anathematizing of the suicide's corpse by way
of punishment, for what ecclesiastic can say, after the
event, whether the divine command was signified or
not? There is another reason for absolving Augustine
from sole responsibility for these laws. The severe penalty
of depriving burial rites smacks of the pagan practice of
dishonouring the corpse, and Bayet consequently main-
tains, with much force, that it represents an irruption
into the church of the pre-Christian popular horror of
suicide. Like so much else in ecclesiastical practice and
belief, it is a pagan intrusion upon the simple philosophy
of the Gospels.
On this last point one can go much further. There is
nothing in the original Christian doctrine to justify
worldly punishment for any sin whatever. The teaching
of the New Testament is the other way. The Christian is
to judge not, to turn the other cheek, and to refuse to
defend even an unjust action at law. This may be an
impracticable ethic, but at least the opposite philosophy
of life cannot well be justified in the name of the Founder
of Christianity.
It will be convenient to continue the later history of
the question of burial. By the custom of many countries
the burial of a suicide was not only devoid of Christian
rites but accompanied by singular marks of ignominy.
258
Fulbecke, writing in England in 16oi, says that the sui-
cide "is drawn by a horse to the place of punishment
and shame, where he is hanged on a gibbet, and none
may take the body down but by the authority of a magis-
trate." Blackstone records that burial was "in the high-
way, with a stake driven through the body"; in practice
it was at the cross-roads, and a stone was placed over
the face of the suicide. Stake and stone were intended
to prevent the body from rising as a ghost or vampire.
(Even today this primitive superstition survives in the
many ghost stories which assume that the ghost belongs
to a person who has either been murdered or committed
suicide.) An obvious explanation of the choice of cross-
roads is that they also helped to lay the ghost by makin
the sign of the cross; but though this may have con-
tributed to the survival of the custom into the Christian
era, it has a much earlier ancestry. In early times and
among primitive peoples even honourable burial was
frequently performed at cross-roads, but this spot was also
chosen specifically for murderers and suicides. Among
the reasons that have been suggested for the practice are
that the constant traffic over the grave would help to keep
the ghost down; or that the number of roads would con-
fuse it and so prevent its finding its way home; or that
the cross would act as the disperser of the evil energy
concentrated in the body or the ghost; or that sacrificial
victims (these being frequently criminals) were formerly
slain on the altars at cross-roads, which were therefore re-
garded as fitting places for the execution and burial of
criminals, after the introduction of Christianity.! The last
person treated to cross-road burial in England was the
suicide Griffith, who was buried in 1823 at the cross-road
formed by Eaton Street, Grosvenor Place, and King's
' J. A. MacCulloch in Encyclopedia of Religion and Ethics, IV, 33;
cf. Dublin and Bunzel: op. cit., pp. 2o5-6; Radzinowicz: History of
the English Criminal Law (London, 1948), I, 196-7; Stephen: History
of the Criminal Law (London, 1883), III, 105.
259
Road, London. This appears to have been a sporadic
revival of a custom that had already lapsed,' and the fol-
lowing month a statute was passed to abolish it. In its
place, burial was to be privately in a churchyard, at
night,' and without religious rites. In 1882 suicides were
allowed to be buried at normal hours. There is a relic
of the earlier religious terrorism in that the service of the
Church of England still cannot be used for a felo de se,'
but the burial service of any other Protestant denomina-
tion (not, of course, the Roman Church) is available.
A verdict of mental unbalance by the coroner's jury dis-
places the legal consequence, because it is accepted by the
clergy as enabling them to officiate.'
It seems that the only importation of the practice of
unholy interment into the United States was in Mas-
sachusetts. In that state, in 166o, the legislature announced
that it "judgeth that God calls them to bear testimony
against such wicked and unnatural practices, that others
may be deterred therefrom," and, therefore, enacted that
every self-murderer "shall be denied the privilege of being
buried in the common burying place of Christians, but
shall be buried in some common highway where the
' Horace Walpole, writing in 1788 to Hannah More on the subject
of suicide, referred to "the absurd stake and highway of our ancestors"
(Fedden: op. cit., p. 227).
6 Burial of suicides at night was also an ancient Jewish custom
mentioned by Josephus.
' Halsbury: Laws of England, 2nd ed., III, 475; Cripps on Church
and Clergy, 8th ed., pp. 576-7.
According to statements made in the House of Laity on February
6, 1956, the question of Christian burial for repentant murderers and
persons who have committed suicide is to be reconsidered by the steer-
ing committees of the Church Assembly. Cf. the opinion of Lord
Dawson of Penn: "Not so long ago a suicide was made outcast in this
world and the next. Now opinion would wish to treat him with
consideration, but the law has unfortunately laid it down that his body
cannot have a burial service within the Church of England; and so
humanity compels a dispensation, and the verdict avers 'temporary
insanity' by way of escape. Such matters would have been far better
settled within the Church itself." Parliamentary Debates (House of
Lords), vol. 103, col. 484.
260
selectmen of the town where such person did inhabit
shall appoint, and a cartload of stones laid upon the
grave, as a brand of infamy, and as a warning to others
to beware of the like damnable practices."' Although
the statute fell into disuse, and was repealed in 1823, it
helped to shape a judicial attitude towards suicide which
will be studied later.
The forfeiture of property for suicide
Ecclesiastical censures and contemptuous burial

were in due course followed, in the various countries of
Europe, by secular laws enforcing the forfeiture of the
property of suicides. When this forfeiture was first in-
troduced into England is not precisely known. The prac-
tice of forfeiture of the goods of a suicide to his lord
was already known to the Danes before they came to
England, and would naturally have been brought with
them.' The canon of King Edgar, already referred to,
provides that the self-murderer is to be fined in all his
goods to his lord; already an exception is made for those
whom ill health and madness drove to the perpetration.
Bracton repeats the rule of forfeiture of movables, with-
out saying who takes them; the suicide's land, however,
is preserved to his heir. Where the reason for the act of
suicide is to avoid forfeiture for conviction of capital
crime, the suicide, says Bracton, shall have no heir (i.e.,
there is forfeiture even of land) because the killing of
himself is equivalent to a confession of guilt of the crime
of which he has been accused.2 It is not clear whether,
'Quoted in Commonwealth v. Mink, below, p. 289. For an instance
of such burial in 1707 see John Noble: A Glance at Suicide (Cambridge,
Mass., 1903), reprinted from Proc. Mass. Hist. Soc., December 1902.
1Wilkins: Leges Saxonicce, f. 90.
2 Bracton: f. i5oa.
261
in stating the latter rule, Bracton is not simply Romaniz-
ing; at any rate, this rule is not stated by Britton, who
gives only the rule that the chattels of the suicide "shall
be adjudged ours, as the chattels of a felon,"' and no
rule of forfeiture of land is found in later practice.! Brit-
ton's phrase shows that suicide was in his day regarded
as a felony, and it also implies that the forfeiture of goods
was not to the lord but to the Crown, a fact which is
confirmed by Cowell' and later authorities.'
During the eighteenth century it became the practice
for the Crown to waive the forfeiture in cases where the
suicide was not committed to avoid conviction of felony,
and later the forfeiture was waived even in this case.
Thus the provision in the Forfeiture Act, 1870, which
abolished forfeiture for suicide or other felony, did
no more than give legal effect to the established prac-
tice.
When forfeiture was enforced, it was common for
coroners' juries to avoid it by returning a verdict of in-
sanity instead of one of felo de se; this also had the effect
of entitling the deceased to a Christian burial. The in-
dulgence appears to have grown up during the eighteenth
* Book i, Chapter 8.
Coke, Institutes, III, Chap. 8. Suicide did not entail escheat because
that occurred only after conviction for felony, which ex hypothesi
was impossible in the case of suicide: Hales v. Petit, i Plowd., at
260, 261, 75 E.R., at 398, 400 (1562). Hales v. Petit arose out of the
(supposed) suicide by drowning of Mr. Justice Hales, and the argu-
ments relating to forfeiture that were advanced in that case have
become almost the locus classicus of sophistry. As is well known, they
inspired the colloquy of the gravediggers in Hamlet. See Wallace:
The Reporters, 4 th ed., pp. 14 7ff.
'Cowell (Institutiones Juris Anglicani [1630], Bk. 4, Tit. 18, s. 16;
cf. Bk. 2, Tit. 12, S. 4) says that the king distributes the suicide's goods
to pious uses, and that according to one opinion there is no forfeiture
if the deceased took his life through the weariness of any disease.
6 See generally Charles Moore: op. cit.; Stephen: History of the
Criminal Law, III, 104; Pollock and Maitland: II, 488; Holdsworth:
III, 315-16.
" Umfreville: Les Coronatoria (1761). Before that, waiver of forfei-
ture might depend upon influence: see Fedden, op. cit., p. 193.
262
century, and was criticized by writers of the period.! It
survived the abolition of forfeiture, and an investigation
of 4,846 inquests on suicide in the year 1928 showed that
the verdict of felo de se was returned in only 88.' At
that date the customary verdict was "suicide while tem-
porarily insane," but in the years following, out of con-
sideration for the relatives, this was changed to "suicide
while the balance of his mind was disturbed." The fre-
quency of the verdict prompted Joad's aphorism that in
England you must not commit suicide, on pain of being
regarded as a criminal if you fail and a lunatic if you
succeed. But in truth the coroner's jury has an unhappy
choice. Either it must return a verdict of mental unbal-
ance, which casts what may be an unmerited aspersion
upon the deceased's kindred, and perhaps lowers their
stock in the marriage market, or it must return a verdict
of felo de se, thus depriving the deceased of a Prayer
Book burial and helping to render his life-insurance pol-
icy void-which will mean that his family will have no
right to the return even of the premiums paid.
In order to end the fictitious verdict, the Committee
on Coroners' recommended that the verdict of felo de
se should be abolished, and instead there should be the
non-committal statement that the deceased died by his
own hand. This has not been generally acted upon, and
if it were adopted into law it would create difficulty for
the clergy, who would have themselves to decide upon
the state of mind of the deceased, in allowing or with-
holding burial according to Anglican rites. Recently,
however, some coroners have taken to adopting the new
verdict of their own authority, leaving the clergy to settle
their problem as best they can.
8 Hawkins: Pleas of the Crown (1724), Book I, Chap. 27; Blackstone:
Commentaries, IV, 189; Luke Owen Pike: A History of Crime in
England (London, 1876), II, 197; Fedden: op. cit., p. 227.
'W. Norwood East: Medical Aspects of Crime (London, 1936), p.
276.
1 Cmd 5070 of 1935, paras. 82-3.
263
Although, in theory, all civil penalties for successful
suicide have now been removed, there remains as a re-
minder of former ideas the coroner's inquest with its
distressing publicity for the sorrowing relatives.
Discussion of the ethics of suicide
To take up again the ethical problem, the next

Christian writer of outstanding importance after Augus-
tine was St. Thomas Aquinas. He adduced three further
arguments against suicide, two of them of a secular
character: 2 (i) Self-destruction is contrary to man's na-
tural inclinations, natural law, and charity-the charity
a man owes to himself. (2) Following Aristotle, St.
Thomas argued that a man has no right to deprive society
of his presence and activity by suicide. (3) Since we
are God's property, it is for God to decide on our life and
death.
The first argument is reminiscent of Josephus, and is
still sometimes heard. It is, in fact, an application of the
usual Catholic method of arguing from an assumed "na-
ture" to morals. Actually, the assumption here is wrong;
if suicide were always contrary to man's inclinations, it
would not occur. The moral question arises because the
individual is, in some circumstances, tempted to suicide.
It is true that the majority of mankind prefers to be
alive than dead; but this is a simple preference which
cannot be associated with morals. Not every disregard of
a fundamental instinct is wrong; otherwise, as Fedden
points out, a monk would be a sinner, for he denies the
fundamental instinct of sex.'
'Summa Theologica, Part II, Second Number, Question 59, Art.
3; Question 64, Art. 5; cf. Edward Westermarck: Origin and Develop-
ment of the Moral Ideas (London, 1908), II, 252-4-
'H. Romilly Fedden, Suicide (London, 1938), P. 282.
264
Aquinas's second argument, the social one, will be con-
sidered later. His third argument is again, in essence, an
illegitimate deduction of an "ought" from an assumed
"is." God has given us life, therefore we ought not to
commit suicide. A neat reply, certainly no less cogent,
was that of the elder Pliny: the existence of poisonous
herbs with which one may so easily kill oneself is a
benevolent gift from God.
The earliest full-scale attack upon the patristic attitude
came from the pen of John Donne, Dean of St. Paul's.
His Biathanatos, published posthumously in 1646, was
directed to the thesis "that self-murder is not so naturally
sin that it may never be otherwise." Donne went so far
as to express the opinion that the practical basis of the
law was to frighten the labouring man from suicide, it
being "thought necessary by lawes and by opinion of
Religion to take from those weary and macerated
wretches, their ordinary and open escape and ease, vol-
untary death." The work was not convincingly reasoned,
and did not have so much influence as the much
stronger attack made by Hume in his Essay on Suicide
(also posthumous). Hume thought that man's life was
of no more importance to the universe than that of an
oyster. If the disposal of human life were reserved to the
Almighty, almost any action would become an en-
croachment on his privilege. "If I turn aside a stone
which is falling on my head, I disturb the course of nature
and I invade the peculiar province of the Almighty by
lengthening out my life beyond the period, which, by the
general laws of matter and motion, He has assigned to
it." As to the social argument, Hume said: "A man who
retires from life does no harm to society; he only ceases
to do good; which, if it is an injury, is of the lowest
kind." Moral duties imply reciprocity; when I withdraw
myself altogether from society, I am no longer bound.
And where my life is a positive burden to society, my
withdrawal from it is not only innocent but laudable.
265
These views found little echo in other writers of the
time, and they were combated by Charles Moore in the
second volume of his monumental work on suicide,
published in 1790. The thesis of Moore's argument was
that man does not know the importance of his life; even
if his life appears to be useless so far, he can never be
certain that his life will always continue so, and he may
be "counteracting by his abrupt departure some design
of Providence."' This is, of course, an argument for never
taking any decision.
Before Donne, Montaigne had questioned the prevail-
ing attitude, but it was chiefly under the influence of
Montesquieu, Diderot, and Voltaire that France took the
lead in legalizing suicide by a statute of 1790. This re-
pealed all sanctions against the body and property of the
suicide. The French example was later copied by other
European countries.
No appreciable volume of opinion against the tradi-
tional attitude to suicide appeared in England or America
until the present century. It might have been thought
that the utilitarian philosophy of the Victorian era would
have resulted in a change of opinion, but even utilitarians
failed, in the matter of suicide, to face the logic of their
own beliefs. Thus Hastings Rashdall, in his exposition of
utilitarianism from the Christian angle, refused to absolve
the suicide from moral guilt.' More recently, however, a
growing number of English and American writers chal-
lenge the old theology. Most of them, such as the ad-
vocates of voluntary euthanasia, which is discussed in the
next chapter, are content to argue that suicide is justifi-
able in some circumstances. But others, such as Harry
Roberts and Romilly Fedden, seem to go back to the
Epicurean view that suicide is almost if not entirely a
matter of individual discretion. Dr. Roberts, after quoting
' Charles Moore: A Full Inquiry into the Subject of Suicide (London,
1790), I, 38-
*The Theory of Good and Evil (Oxford, 1907), I, 207-13.
266
admiringly from Seneca and Epictetus, wrote: "Than
these utterances, I know none more noble in the history
of philosophy or in that of religion." He went on:
Of how many of us is it true that the world or any part of
it would be the loser were we to end our citizenship of it?
In my opinion, of very few. Anyway, it seems to me a prob-
lem for each person to decide for himself, if any problem is
to be left for individual solution. It is well that we should
look upon other people's lives as their most sacred and their
most personal possession; but I doubt if it is nobility of mind
that drives us to attach some cosmic and sacred significance
to our own.6
Fedden, too, adopts the individualist approach, argu-
ing that suicide is not wrong in the abstract though it may
be irresponsible in particular circumstances. He has his
own explanation of why suicide is condemned, namely
that it is a form of le'se-majeste'.
Suicide shows a contempt for society. It is rude. As Kant
says, it is an insult to humanity in oneself. This most indi-
vidualistic of all actions disturbs society profoundly. Seeing
a man who appears not to care for the things which it prizes,
society is compelled to question all it has thought desirable.
The things which makes its own life worth living, the suicide
boldly jettisons. Society is troubled, and its natural and nerv-
ous reaction is to condemn the suicide. Thus it bolsters up
again its own values.
If suicide is capable of being morally rightful or at
least colourless, it may seem to follow that the provision
of agreeable means of suicide is a necessary social service.
A French writer, Binet-Sangle, actually goes as far as
this.' He proceeds from a suggestion in More's Utopia
to advocate the foundation of a euthanasia institute for
completely voluntary state-assisted suicide. Few would
'Harry Roberts: Euthanasia and Other Aspects of Life and Death
(London, 1936), pP. 31-2.
'H. Romilly Feeden: Suicide (London, 1938), P. 42.
L'art de mourir (Paris, 1919).
267
be prepared to travel this distance with him, though, as
will be shown in the next chapter, there is much sup-
port for voluntary euthanasia in the specific case of pain-
ful illness. Ruth Cavan, in her study of suicide, discovered
that most people have a suicidal impulse at some time. In
reply to a questionnaire answered by 201 American
students under 30 years of age (i.e., before the really
suicidal period of life had set in), fully four fifths said
that they had at some time wished for death.' Common
sense suggests the unwisdom of having an institutional-
ized means of gratifying such a passing fancy promptly
and painlessly. On the other hand, it might be found
that such a scientifically certain method of achieving self-
annihilation was not popular even among would-be sui-
cides, for complicated psychological reasons which will
be mentioned later.
The religious condemnation of suicide is, of course,
still maintained. Thus Paul-Louis Landsberg, a religious
writer with leanings towards Catholicism, after a full
study of the question, solved it to his own satisfaction by
saying that suicide as an escape from suffering is wrong
because it is God who makes us suffer for our own salva-
tion.' But may not even the most sadistic god be satisfied
if he has succeeded in driving a man to suicide?
The social argument and the definition of suicide
The present common sense of the suicide prob-

lem is that its rightfulness depends upon circumstances.
Aquinas's argument that suicide is antisocial is easily
refuted in the absolute form in which it is stated. One
' Ruth Cavan: Suicide (Chicago, 1928), p. 189.
'The Experience of Death. The Moral Problem of Suicide, trans.
by C. Rowland (London, 1953).
268
need only point to those instances where dying for fellow
men becomes, if not a moral duty, at least a superbly
honourable act, as in the classic case of Captain Oates,
who, with the words "I am just going outside; I may be
some time," walked into the Antarctic snow to die, be-
cause his illness made him a hindrance to Scott's party
and so a danger to his comrades' lives. Scott's comment-
"It was the act of a brave man and of an English gentle-
man"-is a just appraisal of conduct of which we would
all like to feel ourselves capable if faced with the agoniz-
ing challenge to such decision. No one can imagine that
it falls within any moral condemnation of suicide. In
general terms, as Sidney Hook expressed the matter:
Far from being a crime against society, suicide may actually
further the welfare of society. The logic of utilitarian ethics
leads inevitable to this position, to the surprise of a number
of its professed adherents. The greatest good or happiness of
the greatest number may sometimes be attained by personal
sacrifice, as the annals of heroism and martyrdom well at-
test.2
This reply is countered by some writers who escape
from the difficulty by defining suicide in such a way as
to exclude meritorious self-removal from the meaning of
the term. In Catholic doctrine this is achieved by the
principle of double effect.' Captain Oates, it is said, did
not commit "direct" suicide, because he did not wish to
die; he merely wished to disembarrass his comrades of
his presence. It may be doubted, however, whether
Oates, brave man that he was, would have welcomed a
protracted existence alone and unprotected in the polar
snow, even if this had been possible. Given the choice
that he made, death was a merciful release that he might
well have welcomed. It is only the emotive effect of the
2 "The Ethics of Suicide," 37 International Journal of Ethics 173,
at 178 (1927).
' Cf. Joseph B. McAllister: Ethics with Special Application to the
Medical and Nursing Professions, 2nd ed. (Philadelphia, 1955), p. 173.
269
word "suicide" that leads one to wish to withhold it from
situations of this type, where man, faced with the chal-
lenge to greatness, deliberately chooses to make the sacri-
fice of life.'
Aquinas's social argument was also rejected, for a dif-
ferent reason, by Landsberg, whose work has already
been mentioned. He commented that the argument
"would perhaps, have a certain value in an ideal society;
but, in reality, people often kill themselves because the
very imperfect societies in which they are condemned
to live prevent them from leading any form of creative
life. . . . The argument may be valid in certain cases,
where someone may in fact be abandoning an important
social duty, but it is clearly inadequate as a general argu-
ment against suicide as such."
The issue becomes more concrete when one thinks of
the emotional impact of a suicide upon those who come
to know of it. A suicide is nearly always a shocking
event, since it suddenly reveals to the rest of us the utter
despair of one of our fellows. The shock is greatest of all
for the immediate family. Landsberg belittled this con-
sideration, but in this I think he showed (if the criticism
may be allowed with profound respect) a certain lack of
imagination and limitation of experience. He wrote: "As
a general argument, this also fails to convince. First of
all, a lot of people have no families, or a shattered or
detestable family, and secondly, the question is really
/ It may be mentioned that Durkheim, the leading sociological writer
on the subject, defined suicide as "any cause of death which results
directly or indirectly from the positive or negative act of the victim
who knew that it was bound to produce this result" (Emile Durkheim:
Le Suicide [Paris, 1897], p. 5). This definition would cover altruistic
suicides. It would also cover those early Christian martyrs who offered
themselves up to a violent death, as Bayet points out.
In old English law, a person charged with felony who, refusing to
accept jury trial, was pressed to death (peine forte et dure), was not
regarded as committing suicide, so that he did not forfeit his property.
Here, however, the death was occasioned by the positive act of others;
and this act, being authorized by law, did not inculpate the accused
who suffered it.
270
far too personal to be decided by such arguments. Every-
one dies sooner or later, and society and the family get
over it." On the concluding words, one may say that it
is probably true that children will in large degree get
over the suicide of a parent; but the suicide of an only
son or daughter will almost infallibly destroy the
mother's happiness for the rest of her life. If a young
person who has parents living commits suicide, he does
so either when he is not morally responsible for his act,
or from the most utter selfishness and indifference to his
obligations to others.! Landsberg is, however, right in
saying that the family argument does not show all suicide
to be wrong, and, therefore, does not support the peremp-
tory religious condemnation. Fedden's views are similar.
In practice the abstract entity "society" is nothing but the

striving individuals which compose it. When such of these
individuals as are misfits voluntarily remove themselves and
their misery by suicide, society directly benefits by their ac-
tions. Suicide thus appears as a process by which society rids
itself of elements of misery and dissatisfaction. . .
.
That suicide may be harmful to a certain section of society,

the friends and relatives of the dead man, is sometimes true.
As often as not, however, the suicide of the businessman saves
his family, and that of the melancholy neurotic comes as a
secret relief to those around him. Moreover, those who have
others dependent on them do not often kill themselves. Re-
sponsibility interposes. Suicide is the act of the solitary. . .
.
In all cases where suicide merely forestalls the processes of

disease and old age, to speak of society's loss or gain is beside
the point. A man has done his work, and reason simply an-
ticipates death. . . . We cannot, in fact, say that suicide is a
danger to society, we can only say that sometimes (like mar-
' To characterize the conduct as (objectively) selfish is not neces-
sarily to subscribe to a philosophy of moral responsibility. Moral judg-
ment is particularly difficult in this instance. It is found that psycho-
pathic adolescents may at times kill themselves, out of spite against
their parents, on the most trivial pretexts. See Zilboorg in 92 American
Journal of Psychiatry, at 1356 (1936).
271
riage, or anything else) it may be irresponsible, ill-timed, and
thus anti-social.6
The strongest argument in favour of the popular con-
demnation of suicide is that it strengthens the will to live.
This was the contention of Wilbur Larremore, who, how-
ever, rejected the attempt to control suicide by means of
the criminal law.
In the vast majority of instances the apparent mountain of
anguish would seem but a molehill of temporary embarrass-
ment in the perspective of a long life. If the momentary im-
pulse be resisted, the unfortunate or discouraged one will
have many years of average felicity in which to congratulate
himself on his self-control. To the end of helping him to
bear the ills he has, a strong popular sentiment is of great
efficacy. It is of public as well as personal advantage to have
suicide in general regarded as immoral, cowardly, and dis-
graceful.!
However, in view of the very large number of suicides
and suicidal acts that occur each year, the efficacy of the
popular sentiment may be doubted. There are more
than 18,ooo suicides a year in the United States, and
probably an additional ioo,ooo make unsuccessful at-
tempts to kill themselves.' In England, in the year 1955,
there were 4,982 suicides and 5,220 attempted suicides
known to the police. The official number of attempted
suicides, in the sense of suicidal acts, certainly under-
estimates the actual position. According to a guess of the
Statistical Department of the Metropolitan Insurance
Company of New York, the number of "attempted sui-
cides" (i.e., suicidal acts) is about six or seven times as
great as that of suicides; Professor Stengel thinks that it
6 Fedden: op. cit., p. 283.
'Larremore in 17 Harvard Law Review 331 (1904).
841 New York State Journal of Medicine 1720 (1941). See
also
Frederick L. Hoffman: Suicide (Prudential Press, 1927); Harry Alpert:
"Suicides and Homicides," 15 American Sociological Review 673
(1950).
272
is probably much larger even than that. One reason why
so many suicidal attempts fail to reach the ears of the
English police is that it is against medical ethics for a
physician to report them.' Were he to do so, persons who
had unsuccessfully attempted suicide would be dis-
couraged from seeking medical advice and treatment,
and the only result would be an increase in the actual
number of suicides.
The punishment of attempted suicide in England
The long-vanished history recounted on previous

pages is of some legal interest because it helps to explain
how England obtained its law of attempted suicide. The
English courts punish this act on the reasoning that
every attempt to commit a crime is punishable; suicide
is a crime; therefore, attempted suicide is punishable.
How did the notion originate that suicide is a crime?
Although no written memorial now remains, it is fairly
easy to recapture the mental processes involved. It will
be remembered that the rule in Edgar's canon was that
forfeiture of goods was to the lord, whereas according
to the later rule it was to the king. The object of the
king's judges was to enrich their master, and their
readiest argument to this purpose was that suicide was
a felony. Since every felon forfeited his goods to the
king, it had only to be decided that suicide was a felony
to divert the forfeiture from the suicide's immediate
lord to the royal coffers. This step had been taken at
least by Britton's day. It was, of course, facilitated by the
ecclesiastical view of suicide as mortal sin.
The general law of attempts to commit crime is of
somewhat late development, and its particular applica-
* See (1952) i British Medical Journal 339.
273
tion to suicide did not occur until 1854.' The criminality
of attempted suicide was then ruled as a self-evident
truth, and it became firmly established by later decisions.2
There can be no doubt that incitement and conspiracy
to commit suicide are to be treated in the same way.
4f we are to find a substantial reason for the punish-
ment of attempted suicide, we must look back into the
old authorities which treated suicide as a felony in order
to work a forfeiture and for other incidental legal pur-
poses. The reasoning of these authorities naturally re-
flected the sentiments of their time. In Hales v. Petit
(1562),' when the question of forfeiture was in issue, Mr.
Justice Brown said that suicide was criminal as "an of-
fence against nature: because to destroy oneself is contrary
to nature, and a thing most horrible. Also against God,
because a breach of the commandment; and against the
king, in that thereby he has lost one of his mystical mem-
bers." The concluding reference is to the anthropomor-
phic theory of the state, with the king as head and the
subjects as limbs.
Blackstone, who always excelled himself at finding
reasons for legal rules, said that "the suicide is guilty of
a double offence: one spiritual, in evading the preroga-
tive of the Almighty, and rushing into his immediate
presence uncalled for: the other temporal, against the,
1 Regina
v. Doody, 23 L.T.O.S. 12, 6 Cox 463.
2 Regina v. Burgess, L. & C. 258, 169 E.R. 1387 (1862); Regina v.
Mann [1914] 2 K.B. 107 (C.C.A.) For the armed forces, the offence
was put on a statutory footing by the Army Act, 1881, s. 38.
Several legal problems remain undecided, and it is to be hoped that
they will continue so. Is it criminal for a person wishing to die (1) to
refuse to undergo a necessary operation; (2) to refrain from self-
preservation when her husband, having proposed a suicide pact, turns
on the gas; (3) to go on hunger-strike in prison? The sociological
definition of suicide as including omissions (above, p. 270, n. 4) may
not apply in law.
'Regina v. Leddington, 9 C. & P. 79, 173 E.R. 749 (1839), is fre-
quently misunderstood on this; it turned not on inchoate incitement
but on the law of accessories before the fact.
'Above, p. 262, n. 4.
274
king, who hath an interest in the preservation of all his
subjects." ' Commenting upon the first of these reasons,
Sir Ernest Barker said:
So far as that great and grave offence is concerned, it
would seem to rest between man and his Maker; nor is there
any obvious reason in the nature of things, why English law
should show a peculiar solicitude in vindicating the preroga-
tive of God. It ceased to burn heretics when the writ de
heretico comburendo was abolished in the reign. of
Charles II; and is not the punishing of suicide, if suicide be
regarded as a spiritual offence, on a par with the burning of
heretics? 6
Blackstone's theological justification of the law of
suicide becomes all the quainter when it is recollected
that English law has always assumed the right to send
persons convicted of murder to a premature and unnat-
ural death. If, as is sometimes supposed, suicide is a form
of self-murder, then, but for the accident that the culprit
is beyond the jurisdiction, he would be punished for his
wicked self-destruction by being destroyed.! One writer
poses this question: suppose the survivor of a suicide
pact is sentenced to death for murder in the usual way,
and then granted a pardon in the usual way on condi-
tion that he submits to life imprisonment: could he refuse
the pardon, thus compelling the Crown to enable him to
commit suicide rite ac sollenniter under the authority of
law and by its officers?
Blackstone's second and secular reason was a less meta-
physical form of Brown's remark, and meant in effect
that society is impoverished by being reduced in num-
bers. There may well have been a time, in the Middle
Ages and afterwards, when this was true. When the lord
5 Blackstone: Commentaries, IV, 189.
6 The Times (London), December 24, 1932.
7 Hawkins saw the difficulty: see his Pleas of the Crown, ii, Chap. 37
s. 9.
8
G. S. Wilkinson in 14 Modern Law Review, at 442.
275
had an interest in his man, and when plagues and wars
depopulated the country, the social importance of the
individual was manifest. But it was not manifest during
the Malthusian scare, and its validity must depend upon
the state of population at the time, as well as upon the
value of the particular individual to society. A man does
not attempt suicide unless he has lost a sense of purpose
in life, and feels himself unable to recapture it. Mercier
put the position thus:
Whether the presence in the community of a person whose
circumstances are such, or whose mental attitude is such, that
he contemplates suicide, is a source of strength or weakness
to the community, is arguable; and does not seem so certainly
determinable in the former sense, as to justify any very seri-
ous attempt, on the ground of the welfare of society, to pre-
vent him, or to deter others, from accomplishing this pur-
pose.9
Quite apart from the general debate on the ethics of
suicide, the punishment of attempted suicide has to meet
the twin objections that it is cruel and inefficacious. The
prime fact about suicide is that legal sanctions cannot
stop it. No country has ever succeeded in repressing
suicide by this method; the threat of punishment for
attempted suicide can only make the offender more
likely, if anything, to make sure of succeeding at the
first attempt. But for most persons the threat will have
no effect one way or the other, because people who are
bent on throwing their lives away are not likely to con-
sider the possibility of punishment on failure. These sim-
ple and obvious truths have often been pointed out. Dr.
Harry Roberts wrote:
It is hard to believe that anyone intent on suicide and with
resolution and means to carry it out is ever dissuaded from
his purpose by reason of its illegality. It is not unilluminating
' Charles Mercier: Crime and Insanity (Home University Library,
n.d.), p. 127.
276
The Prohibition of Suicide
that in England the annual number of suicides is seventy-
nine per million of the population, whereas in Scotland
[where the attempt is not an offence] the figure is forty-five
per million.'
The argument from humanitarianism is equally strong.
The girl stricken with infantile paralysis; the bachelor
living alone who suffers from periodic bouts of depres-
sion; the woman who has lost her husband and her
children in tragic circumstances; the business man over-
burdened with responsibilities who suddenly feels that
life is too much for him-the humanitarian will.- wish
to comfort and relieve them and persuade them that their
life still has value for others; but it is not for the criminal
lawto stand in judgment if they seek to put an end to
their misery. To quote Fedden again:
It seems a monstrous procedure to inflict further suffering
on even a single individual who has already found life so un-,
bearable, his chances of happiness so slender, that he has been
willing to face pain and death in order to cease living. That
those for whom life is altogether bitter, should be subjected to
further bitterness and degradation seems perverse legislation.
In England, as has just been pointed out, the law
of attempted suicide is the result not of deliberate penal
policy but of a mechanical legal logic working from a
premise developed by mediacval judges for the purposes
of enriching the royal treasury. Similar forces were at
work in other European countries, but a reform move-
ment arose which scored its earliest success in France.
As a result of the critical comments of Beccaria ' and
other writers of the Age of Enlightenment, the crime of
attempted suicide was abolished in France after the Revo-
1 Euthanasia
and Other Aspects of Life and Death (London, 1936),
pp. 15-17. Similar observations are made by Louis I. Dublin and Bessie
Bunzel: To Be or Not to Be (New York, 1933). Cf. Pike: A History of
Crime in England (London, 1876), II, 197; 36 Journal of Criminal
Law and Criminology 441.
2 Fedden; op. cit., p. 263.
' On Crimes and Punishments, Chap. 32.
277
The Sanctity of Life and the Criminal Law
lution. Other European countries, such as Germany,
Italy, Switzerland, and the Scandinavian countries, fol-
lowed suit. Even when Germany and Italy fell under
totalitarian governments, pursuing vigorous population
policies, they did not reintroduce an offence of attempted
suicide; and the same is true of the Soviet Union. Two
civil-law countries of the British Commonwealth, Scot-
land and South Africa, also refrain from punishing this
act."
Although English law on the subject has not been
altered, the new attitude towards suicide has brought
about a considerable change in practice. Before the First
World War, imprisonment was quite a regular punish-
ment for attempted suicide,' and for a second or subse-
quent attempt it might be as long as six months.' This
was sometimes rationalized as a measure "in the interests
of the defendant's health,"' the theory perhaps being
that in prison he would be prevented from repeating the
attempt. The change of approach was expressed in 1921,
when a Home Office circular to all police forces called
attention to the practice of the Metropolitan Police in
prosecuting for attempted suicide only where there was
some definite circumstance calling for punishment or the
order of the court constituted the only chance of refuge
and asylum for one too weak to stand alone. This formula
was commended for general adoption.! Undoubtedly it
now represents the general practice of the police, but
its interpretation, particularly the interpretation of "some
definite circumstance calling for punishment," varies.
Some Forces exclude the question of punishment alto-
gether, the Chief Constable refraining from prosecution
' Some writers make it at any rate a police offence in Scots law
(Erskine: Principles, 20th ed., p. 612; Anderson: Criminal Law of
Scotland, p. 148), but prosecutions are unknown. See below, p. 303.
'E.g., six weeks in Rex v. Crisp 7 C.A.R. 173 (1912).
6Rex v. Mann [1914] 2 K.B. 107.
'Rex v. Sanders 9 C.A.R. 119 (1913)-
'Sir Leonard Dunning in I Police Journal 46 (1928).
278
if the culprit has parents or friends or even the Salvation
Army to go to and is willing to be looked after; on the
other hand there will be prosecution if the culprit de-
clares that he is going to do it again. In the latter event,
the magistrate after hearing the case will usually put
the defendant on probation, and the probation officer
will often succeed in changing his outlook.
Two other statements of police practice are worth
quoting for the sake of the limitations expressed in them.
It is seldom that police take action in cases of attempted
suicide unless there is some outstanding feature only a prose-
cution might cure, or if there have been repeated attempts at
self-destruction. A severe lecture on their stupidity is mostly
delivered to the offenders by a senior officer who has already
satisfied himself he can hand over their future well-being to
relatives or friends willing to look after them. Lilian Wyles:
A Woman at Scotland Yard (London, 1952), p. 81.
Attempted suicide is a matter of which the police take
cognisance, but once the patient is in medical hands the case,
with rare exceptions, is dropped. One of these exceptions is
where the patient is not certifiable and refuses voluntary treat-
ment. Another instance is where repeated attempts have been
made, and it is evident that these are not genuine, but due to
sensation mongering: e.g. a girl several times threw herself
down into shallow water where she could not possibly
drown, but caused the authorities a lot of trouble by her acts.
W. Lindsey Neustatter: Psychological Disorder and Crime
(London, 1953), p. 68.
There is a legal misconception in the latter passage.

If an attempt is not seriously intended, it is not, in law,
an attempt, and neither a prosecution nor a conviction
is justified. There is no crime of attempted self-man-
slaughter by knowingly running a risk of death. An-
noyance to the authorities is not in itself a reason for
convicting of attempted suicide. It is by no means un-
likely, however, that a number of convictions for at-
tempted suicide take place where there is no legal founda-
279
tion for them in the evidence, properly considered. This
will be considered again in a moment.
The change of attitude towards attempted suicide is
further shown by a number of procedural rules. The
charge can be tried summarily by magistrates,' and the
accused may, on a finding of guilt, be discharged ab-
solutely, or conditionally upon his mere promise not to
do it again. Alternatively-and this is a frequent course
-he may be put on probation with a condition to submit
to mental treatment.'
These improvements in practice do not remove some
undesirable features. The would-be suicide, if charged,
is charged as for a crime.' He may be remanded in cus-
tody, that is to say, to prison, "for further inquiries," and
this is frequently ordered for the deliberate purpose of
"calming him down," or to teach him not to make a
nuisance of himself-the latter reason is, of course, not a
legal justification for remanding in custody before trial.
Even those offenders who are ultimately put on proba-
tion may have spent some weeks in prison in this way,
and the imprisonment will not appear in the criminal
statistics.! A kinder course is to remand the accused on
bail and allow him to become a voluntary patient in a
mental hospital during the period of his bail. The worst
feature of the present law, however, is the possibility that
the defendant may be sentenced upon conviction to a
,erm of imprisonment. This possibility still becomes an
ctuality in a small proportion of cases. On page 272 the
' This now rests on the Magistrates' Courts Act, 1952, s. 19.
xCriminal Justice Act, 1948, s. 4.
A recent case was reported in the English press under the heading
"Clergyman is accused." The report, after giving the defendant's name
and address, stated that the charge was of attempting to commit sui-
cide.
'Cf. Cecil Chapman: From the Bench (London, 1932), p. 38: "At
Wormwood Scrubbs, which is a prison used for first offenders, all pris-
oners have meals together, and a poor fellow who is remanded for at-
tempted suicide may find himself sitting next to a foul-mouthed criminal
who is not likely to do him any good."
280
figures were given of attempted suicides known to the
police in 1955. The following is the record of the pro-
ceedings taken. Six persons were tried on indictment for
attempted suicide. Four were placed on probation; one
was sentenced to imprisonment for eighteen months
or two years (the statistics do not make it clear which),
and one sentenced to imprisonment for four years. Five
hundred and thirty-five persons aged 21 and over were
tried summarily. Two were fined, four detained in a
police cell (probably for a day only), 41 imprisoned for
periods no higher than 6 months (17 were imprisoned
for between 3 and 6 months); the rest were treated in
the usual ways by being discharged, bound over, placed
on probation, or having a reception order made in re-
spect of them; only 28 charges were withdrawn or dis-
missed. No information is available on what happened to
the offenders who were not charged.
It would be interesting to know on what principle of
selection a small minority (43 out of 5,220) were se-
lected for incarceration in prison. Can it be that there
was no other principle than the idiosyncrasy of the judge
or magistrate?
Three illustrations may be given of actual cases, of
various dates, where a sentence of imprisonment was
imposed.
In 1938 a woman attempted to commit suicide by
swallowing spoons, and from that date until 1940, when
she was prosecuted, she was in hospital. The magistrates'
court sentenced her to six months' imprisonment, but
fortunately this sentence was reversed on appeal, the Re-
corder saying:
"When this woman left hospital she had rid herself
of her mental instability and was recovered. I cannot
imagine a more certain way of bringing about a return
of her mental condition than sentencing her to prison
for six months."'
45 Howard Journal 228 (1940)
.
281
In 1950 the Rochester Bench sent a woman to Hollo-
way for six months for a second attempt at suicide. Her
mother had died in a mental home, and she herself had
shown other symptoms of being unbalanced. In an-
nouncing the sentence the Chairman said: "You have
been here before and we gave you every opportunity to
go straight." No appeal was taken.'
In 1955 a man, after arrest on a charge of larceny,
attempted to commit suicide in his cell (or, at least,
gave the appearance of such an attempt, by cutting his
neck with glass, though as he then proceeded to call
the gaoler the seriousness of his intention was open to
doubt). The Recorder sentenced him to two years' im-
prisonment for the larceny and two years for the at-
tempted suicide, the two sentences to run consecutively.
On appeal the sentence for attempted suicide was re-
duced to what was called the "nominal" one of one
month. The Lord Chief Justice expressly disagreed with
the opinion expressed by the Recorder that "self-murder
is one of the most serious crimes on our calendar."'
These illustrations show how the law of attempted
suicide creates a standing danger of maladministration
of justice, especially when individual judges and magis-
trates may base their decisions upon religious opinions
that are no longer held by what may be called enlight-
ened opinion. They disprove the theory, advanced by
some apologists for the present law,' that people are
' Chatham Observer, Sept. 16, 1949; Jan. 20, 27, 1950.
6
Regina v. French, The Times (London), December 13, 1955.
' Sir W. Norwood East: Medical Aspects of Crime (London, 1936?,
p. 142; Cecil Binney: Crime and Abnormality (London, 1949),
pp. 132-3. The former says of imprisonment for attempted suicide:
"The patients have an opportunity to recover their normal emotional
level with the assistance of the rest, good food, quiet and medical at-
tention in the prison hospital." It would be interesting to know
whether the author would have liked, say, his wife or mother to have
this good treatment, made available to the "patient" as a sentence
upon conviction of crime. Contrast the comment of Dr. Hermann
Mannheim upon the criminal statistics of attempted suicide: "What a
waste of time and labour must have been involved even in this mod-
282
never sent to prison for attempted suicide except in the
fulness of Christian love.
The nature of attempted suicide
It was pointed out on a previous page that a

suicidal act is not punishable as an attempt unless it was
intended to result in suicide.
Much light has been shed upon this matter, which is
of great potential importance in the administration of the
criminal law, by a recent medical study made by Pro-
fessor E. Stengel and Miss Nancy Cook.' This study,
the result of work carried out at the Institute of Psy-
chiatry in London, indicates that the great majority of
so-called attempted suicides are not in fact single-
minded efforts at self-destruction. Most persons who com-
mit suicide do it at the first attempt; only about 13 per
cent have made a previous suicidal attempt. On the other
hand, the persons who unsuccessfully attempt suicide
rather seldom achieve it afterwards. Professor Stengel*
says: "In recent years, several follow-up studies of groups
of people who attempted suicide have been carried out,
some covering a period of up to ten years. In none of the
groups studied more than one in ten committed suicide."
Of 138 persons admitted to a London mental observa-
tion ward because of so-called attempted suicide, 35 died
erate proportion of prosecutions! Any kind of social, psychological, or
psychiatric diagnosis and treatment which was necessary might have
been much more effectively carried out without all the stigmatizing
paraphernalia of criminal procedure." See his Criminal Justice and
Social Reconstruction (London, 1946), p. ii; the whole discussion de-
serves study.
' "Recent Research into Suicide and Attempted Suicide," I Journal
of Forensic Medicine 252 (1954); cf. Stengel: "The Reactions of So-
ciety to Attempted Suicide," 9 Howard Journal 199 (1956).
'9 Howard Journal 199.
283
The Sanctity of Life and the Criminal Law
within the next five years; but of these 35 only one had
killed himself. It would seem reasonable to suppose that
this result cannot wholly be explained by reference to
the mental treatment given in hospital. Thus, there are
two populations which only rather slightly overlap each
other: the persons who actually commit suicide, and the
persons who demonstrate an unsuccessful attempt. The
conclusion is supported by various differences between
the two populations, e.g., that women are in the majority
among those who are said to attempt suicide, while men
prevail among the actual suicides.
What, then, is the precise character of the so-called
suicidal attempt? Stengel and Cook analyse it in the
following words:
If one views suicidal attempt as a behaviour pattern and

considers its social aspects, several interesting features emerge.
Firstly, in the majority of cases a warning of the suicidal in-
tention, which usually takes the form of an expressed threat
or a casual reference to suicide, had been given but had gone
unheeded. In many instances this could be established only
through careful enquiry. This observation proves that the
widely held belief that people who threaten suicide do not
attempt it, is erroneous. Secondly, in the suicidal attempt, by
which we always mean the unsuccessful one, the contact with
fellow beings is as a rule not given up, with the result that
they are in a position to intervene. There is reason for assum-
ing that most attempts have a hidden appeal character, i.e. in
the constellation of the patient's behaviour a call for help can
be discerned. But most attempts have the character of a gam-
ble, the outcome of which depends on chance. They seem un-
wittingly arranged in such a way that the prospects of sur-
vival are not inconsiderable. Such an outcome is almost in-
variably accepted for the time being and further attempts are
rarely made immediately, even if there is no lack of oppor-
tunity. The outcome of the attempt is accepted like that of a
trial by ordeal in medieval times. ...
One of the functions of the suicidal attempt is that of an
appeal to society. If that appeal, which is usually unconscious,
284
is heard and understood, the suicidal attempt has fulfilled
one of its functions. This appeal character has hitherto been
regarded as a feature in the suicidal attempts of hysterical
individuals only. Our investigations have demonstrated be-
yond doubt that it is inherent in most suicidal attempts ir-
respective of the mental state and the personality of the per-
son carrying it out.
It seems from this that what may be generically called
"suicidal acts" are of three kinds. First there are the
genuine attempts at suicide, which may or may not suc-
ceed, but usually-if they are genuine-do succeed. Sec-
ondly, there are the suicidal demonstrations, where what
is superficially an attempt at suicide is not seriously
meant, but is merely, in Dr. Neustatter's words, "a ges-
ture by a patient suffering from a bad depression, calling
upon the world to take notice of his misery." Thirdly,
and intermediate between the other two, are suicidal
acts that are consciously an attempt at suicide, but un-
consciously a gesture. It is in these that the patient
gambles his life, running perhaps grave risk of death
but unconsciously hoping that it will turn out to be
merely a successful gesture, resulting in an improvement
of his situation.
The three kinds of suicidal acts call for separate
consideration from a legal point of view. Genuine at-
tempts at suicide are offences under present English law.
Suicidal demonstrations are not, as such, offences. The
legal status of the third group is undetermined; indeed,
no court has yet had to pronounce upon unconscious
motivation in the criminal law. It seems probable, how-
ever, that such motivations, even if proved to the satis-
faction of the court, will be ignored, on the ground that
legal sanctions can deal only with the conscious mind.
If this is so, then the third group will be treated as
suicidal attempts.
There is a grave evidential difficulty in distinguishing
between the second and third groups. The distinction
285
lies in the conscious purpose of the accused, but this may
well be impossible to determine. Generally, in law, in-
tention is inferred from conduct, and so in the present
context the court would perhaps incline to go upon the
apparent seriousness of the attempt, i.e., upon the degree
of risk of death into which the defendant placed him-
self. Thus, superficial cuts on the neck or wrist might
be taken as a demonstration, and deep slashes as an
attempt. This criterion is, however, rejected by the medi-
cal study just referred to. The authors say:
It is often believed that suicidal acts carried out by patients
with a genuine, non-hysterical mental disorder are as a rule
more dangerous than those undertaken by hysterical individ-
uals and others. Our investigation did not bear this out. Fre-
quently suicidal attempts made by patients suffering from
severe psychotic depression were of such a nature that, had
they been carried out by notorious hysterics, they might have
been regarded as typical examples of insincere demonstra-
tions. The apparent degree of seriousness of a suicidal at-
tempt cannot, therefore, be taken as a diagnostic aid.
Suicide and transferredmalice in England
The punishment for what is essentially an at-

tempted suicide is increased if the would-be suicide ac-
cidentially kills another-the commonest case being an
attempt to commit suicide with a gun where the shot
kills a person who is endeavouring to interpose. Here,
by the legal fiction of "transferred malice," it is pre-
tended that the person attempting suicide intended to
kill his rescuer, and the killing technically becomes mur-
der.' This rule may have harsh consequences, which we are
'Rex v. Hopwood, 8 C.A.R. 143 (1913), where, however, the evi-
dence pointed to ordinary murder; Blackstone: Commentaries, IV, 189.
286
no longer ready to tolerate. Thus when a woman jumped
from a window, and accidentally killed another in her
fall, and also killed herself, the coroner refused to direct
the jury to return a verdict of murder against the de-
ceased woman.' When a woman struggling to shoot her-
self shot her lover instead, the judge allowed the jury to
bring in a verdict of manslaughter.!
It is convenient to mention here two other minor re-
sults of the common-law attitude towards suicide. Since
suicide is a felony, the conclusion was drawn by an
American judge that "everyone has the right and duty to
interpose" to prevent it." It is a freak result of present
legal principles if there is a duty to save a would-be
suicide from drowning, when there would be no such
duty if he did not wish to drown. In fact, however, the
validity of the rule is doubtful. An English judge said:
"If I saw a man, who was not under my charge, taking
up a tumbler of poison, I should not become guilty of
any crime by not stopping him." " In any case the duty
to prevent felony, if it ever existed, is no longer enforced.
There is a presumption against suicide (as against any
other crime) where such an issue arises in a civil case.
If, however, the fact of suicide and sanity is proved, no
recovery can be had in England under a life policy. This
rule applies, with remorseless logic, whatever the par-
ticular circumstances, as where a cancer patient commits
suicide to avoid a horrible end. If the coroner's jury
returns a verdict of "suicide while the balance of his
mind was disturbed," instead of a verdict of felo de se,
the policy moneys are in practice recoverable, for then
it must be taken that there is no crime.' Since juries pro-
ceed on no ascertainable principles in the form of their
2 Quoted by Fedden: op. cit., p. 263.
Rex v. Barney, The Times (London), July 7, 1932.
'Per Gray C.J. in Commonwealth v. Mink, 123 Mass. 422 (1877).
Per Hawkins J. in Regina v. Paine, The Times (London), Feb-
ruary 25, 188o.
6 Cf. Hale, Pleas of the Crown, I, 412.
287
verdicts, the right of recovery of insurance moneys de-
pends on a fortuitous circumstance.
Attempted suicide and transferred malice in the

United States
In America the question of suicide first came be-

fore the courts of Massachusetts, and it seemed in early
years that the English view would be fully adopted. Al-
though the English law of forfeiture had not been im-
ported into Massachusetts, the disapproval of suicide was
expressed in the law of burial (above, p. 260), and this
had an effect on the earlier decisions. In a case of 1816
suicide was pronounced a felony, so that a successful
counselling of suicide was murder.' However, in 1870 it
was held that attempted suicide was no offence, because
the statute law on the subject of attempt did not provide
for attempted suicide, and had to be taken as exhaustive.8
This was merely a decision on statutory construction,
and no pronouncement was made on the general atti-
tude towards suicide. Hence in 1877 the court felt itself
able to attach a partial sanction to attempted suicide.
It was held that a person who attempted suicide, and
who accidentally killed another in the attempt, was
guilty at the least of manslaughter if not murder. "Since
it has been provided by statute that 'any crime punishable
by death or imprisonment in a state prison is a felony,
and no other crime shall be so considered,' it may well
be that suicide is not technically a felony in this Com-
monwealth. . . . But being unlawful and criminal as
malum in se, any attempt to commit it is likewise un-
'Commonwealth v. Bowen, 13 Mass- 356, 7 Am. Dec. 154.
'Commonwealth v. Dennis, 105 Mass. 162.
288
lawful and criminal."' This decision rests not on the
law of transferred malice, but on the law of constructive
homicide, though the result is much the same either way.
A few states still approximate to the English position
on suicide. In South Carolina the court was prepared
to hold that suicide retained its character as a common-
law felony, and accordingly that the law of transferred
malice applied.' It is not clear whether attempted suicide
is a crime in that state. It is, however, a crime in New
Jersey.' This is distinctly a minority position. In New
York the Penal Code of 1882 (s. 178) punished attempted
suicide, and this was incorporated also into the law of
North and South Dakota. But the provision fell into
disuse in New York,' and was repealed in 1919. At-
tempted suicide is not an offence in Indiana,' Iowa,'
Maine,' or Pennsylvania,' and the decisions make it plain
that it is also unpunishable in Ohio, Illinois, and Texas
(below, pp. 300-).
The English rule that suicide prevents recovery under
a life policy is followed in the United States as a matter
'Commonwealth v. Mink, 123 Mass- 422, 25 Am. Rep. 1o9.

1
State v. Lovelle, 13 S.E. 319 (1891).
'State v. Carney, 55 Atl. 44 (1903). The reason given was that state
legislation punished all offences of an indictable nature at common
law, if not otherwise provided for by act of the legislature.
'See May v. Pennell, n. 6, below.
'Prudential Ins. Co. of America v. Rice, 52 N.E. (2d) 624 (1944).
Held that there were no common-law crimes in Indiana, and at-
tempted suicide was not made a crime by statute. The court saw noth-
ing against public policy in enforcing a policy of insurance where the
injury occurred through an attempted suicide.
' State v. Campbell, 251 N.W. 71l (1933). Held that there were no
common-law crimes in Iowa, and attempted suicide was not made un-
lawful by statute. If the accused shot the deceased while attempting
suicide, he was not doing an unlawful act, and hence was not guilty of
murder under the doctrine of killing in the course of an unlawful act.
It was left open whether he could be convicted of either murder or
manslaughter by the reckless use of deadly weapon.
'May v. Pennell, 64 Atl. 885 (1906).
* Commonwealth v. Wright, 26 Pa. Co. Ct. 666 (1902).
289
of common law, but several states have statutes providing
that suicide is no defence to the company if it occurs
after a specified period, unless the assured intended to
take his own life when he effected the insurance. Canada
also has certain legislation modifying the common law
on this subject.!
Legislative proposals for the treatment of attempted

suicide
Proposals for a change in the English law of

attempted suicide are sometimes resisted on the ground
that the police must have power to prevent a person
laying violent hands on himself. Even granted the con-
demnation of suicide implied in this argument, the ex-
perience of many countries, and indeed English experi-
ence itself, shows that the use of the criminal law is
unnecessary. When a case of attempted suicide comes to
the notice of an English physician, his professional code
forbids him to inform the police; but he has adequate
means of dealing with the situation without their aid.
He may send the patient into a general hospital, or per-
suade him to become a voluntary patient in a mental
hospital. If the patient refuses both courses and appears
to be still suicidal, there will often be sufficient indica-
tion of mental unbalance to warrant certification in order
to give the patient care and protection for his own safety.
If, however, the person attempting suicide is of sound
mind in every way, no case for interference, otherwise
than by persuasion, exists.
In some instances, the legal powers possessed by the
police are a positive hindrance to medical treatment.
'See Dublin and Bunzell: op. cit., Chap. i9; 17 Canadian Bar Re-
view 508 (1939).
290
Professor Stengel's comments upon the situation, based
on his medical experience, are as follows:
The fear that a suicidal attempt may lead to prosecution

tends to make some people lie to the doctor about it and
maintain that it was an accident, thus making psychiatric
treatment impossible and a repetition more likely. . .
.
Who decides whether or not a charge should be brought?
The local police officer, probably acting according to direc-
tions from his superiors. Those directions vary from place to
place, and from time to time, and so do their interpretations.
Often the police officer informs the doctors in hospital that
unless the patient is sent to a mental hospital, even against
his will, he will bring a charge for the purpose of having the
patient put on probation under the condition that he consents
to hospital treatment. I do not know of a case in which the
police officer had consulted the medical expert about the
treatment required, which, of course, he is not obliged to do
under the law. Some weeks ago I was called into a general
hospital to see a woman who had made a suicidal attempt
following the discovery of her husband's infidelity. I found
her quite calm and formed the opinion that there was no
need for her to enter a psychiatric hospital as an in-patient.
She was willing to attend an out-patient department. I then
learned that the local police inspector had sent a message ask-
ing to let him know when the patient was going to be dis-
charged as he intended to bring a charge against her so that
she would be bound over under the condition that she would
undergo hospital treatment. But there was no need for this
pressure at all. I wrote a letter to the police officer stating the
facts and pointing to the harmful effect which appearance in
court might have on the patient. No proceedings were taken,
but the case illustrates how the law is applied. Had I not in-
tervened, the poor woman, who had been punished enough,
might have had to suffer further humiliation. That her hus-
band would have suffered, too, would have been small com-
fort, and the chances of reconciliation would not have been
improved by court proceedings. In some areas, people who
are known to have made their second suicidal attempt are
charged indiscriminately. Sometimes the only way of pro-
291
tecting one's patients against this traumatic experience is to
keep them in hospital for a time.9
Even if some official powers are thought desirable in

the case of attempted suicide, this does not require the
use of the criminal law. Wilbur Larremore suggested that
one who attempts suicide should be classed not as a
criminal but as an unfortunate person amenable to tem-
porary deprivation of liberty. He should be made sub-
ject to restraint in the discretion of the magistrate not
exceeding a brief, definite period.' This suggestion has
not been adopted by any legislature, and, so far as is
known, no inconvenience has been felt to arise from the
absence of specific powers in those American jurisdic-
tions that do not punish attempted suicide. Theoretically,
however, the law should allow some right of interposi-
tion to prevent a suicide. Self-destruction is frequently
the outcome not of the settled philosophical determina-
tion of a balanced mind but of a passing impulse or
temporary depression. The natural and human thing to
do with a person who is suddenly discovered attempting
suicide is to interpose to prevent it. This interposition,
where only mild force is used, cannot be accounted a
battery upon the would-be suicide. Following the frus-
tration of the attempt, there may have to be some tem-
porary restraint or surveillance while it is considered
whether the attempter can be medically treated or dis-
suaded from the attempt. To justify this interference
with liberty, it may well be thought that there should
be the ultimate safeguard of a magistrate's order-
which leads back to Larremore's suggestion. However,
even if this suggestion is thought to have sufficient in its
99 Howard Journal 199 (1956).
1 17 Harvard Law Review 331, at 340 (1904). An approach to the
idea is seen in the legislation of six states (Montana, New York, North
and South Dakota, Oklahoma, and Washington) allowing any person
to restrain another person who is deprived of reason (even though
temporarily) from committing an act dangerous to himself or to an-
other.
292
favour to justify its enactment, there would be no need for
the hearing by the magistrate to take place in public;
and to allow the proceedings to be reported would be a
gratuitous invasion of the patient's privacy at a time
when he needs to be protected from unnecessary strain.
Further, there would be no need for a magistrate's order
unless the patient positively requires it. The magistrate
should presumably have a wide discretion as to the place
and conditions of detention and the person under whose
surveillance the patient is to be placed. It is probable
that legal provisions along these lines would in practice
remain in the background; it would probably be rare
for the machinery actually to be invoked.
A very short time limit should be placed on the de-
tention order, unless the patient is certified, and it should
be provided that no second detention order should be
made unless quite a substantial period has elapsed in the
meantime. Ultimately, society cannot stop a free man
from committing suicide, nor should it try. What can be
done is to make sure that the determination upon self-de-
struction is fixed and unalterable.
It may be expected that a proposal along these lines
would enjoy a large measure of support. It could be
supported by those who regard suicide as indifferent to
morals, and it could also be supported by those who
regard suicide as wrong but legal attempts at repression
as useless. In 1947 a special committee set up by the
Council of the British Medical Association contemplated
a scheme very much on these lines, recommending that
attempted suicide should cease to be a legal offence, but
tentatively suggesting that a guardianship procedure
might be devised for adults in need of care or protec-
tion.2 The committee pointed out, however, that legal
machinery was hardly ever required for making a patient
accept treatment. This authoritative statement raises
once again the doubt whether special legal provision of
any kind is worth while.
2 British Medical Journal, Supplement, May 17, 1947, p. 103*
293
Men who repeatedly attempt suicide when under the

influence of drink present a special problem, which is,
however, an aspect of the general problem of the treat-
ment of drunkenness rather than one calling for a law
of suicide.
Suicide is sometimes attempted in ways constituting
what is in fact, whether or not it is in law, a public
nuisance-for example, when a man repeatedly steps in
front of oncoming traffic and invites the drivers to run
him down. Often the circumstances of such conduct will
indicate that there was not a genuine attempt at suicide,
so that even the present law, if honestly and properly
applied, provides no solution. There is, however, no
penological reason for not punishing demonstrations of
this kind. To do so would require a specially devised
law, aimed not against attempted suicide but against
deliberate self-endangerment to the nuisance, annoyance,
or danger of others. Whether such self-endangerment
should be made a special offence depends upon how
frequent and serious a cause of annoyance it is found
to be. The guardianship procedure previously suggested
would certainly be preferable to the creation of a new
offence.
Studies of the causation of suicide
The statistics of suicide and attempted suicide

quoted previously indicate a social and medical problem
of large importance. Since the law of attempted suicide
purports to be a method of controlling suicide, it is of
some interest to consider the causes of suicide in order
to discover whether there are any other or more effective
methods of control. This subject can, however, be men-
tioned only briefly in the present work.
Many sociological studies have been made attempting
294
to correlate suicide with other social facts, such as eco-
nomic depression, murder rates, social status, insanity,
and the degree of integration of society. There are also
psychological studies of suicide as a release of aggres-
sion. Among the leading writers in the field are Durk-
heim in France, Masaryk in Austria, Morselli in Italy,
and Ruth Cavan and Messrs. Andrew F. Henry and
James F. Short in the United States. Gregory Zilboorg,
in a study of suicide among civilized and primitive races,
has exploded the notion that the suicide rate increases
with the development of civilization, and that it is neces-
sarily connected with mental disease.' Certainly the cor-
relation with insanity is much below that suggested by
coroners' verdicts. East's finding has already been re-
ported that out of 4,846 inquests on suicides in England
in the year 1928, the verdict of felo de se was returned
in only 88, the rest being attributed to temporary in-
sanity. His own opinion, based on an examination of
3,000 cases of attempted suicide, was that only a fifth
of all suicides were insane in fact.' This proposition
obviously depends upon a particular definition of insan-
ity, and if one were to look for mental abnormality in-
stead of insanity in the narrow sense the proportion
would become higher-amounting to a hundred per cent
if suicide were itself taken as a conclusive symptom of
derangement. Between these extremes, Sainsbury found
that of the cases that he studied, mental disorder ap-
peared to be the principal factor in 37 per cent, and in
an additional 17 per cent the personality appeared to
have been abnormal.' Tredgold expressed the opinion
that "compulsive obsessions are a much more frequent
cause of suicide, and perhaps even of homicide, than is
generally thought."
'
'92 American journal of Psychiatry 1347 (1936).

'W. Norwood East: Medical Aspects of Crime (London, r936),
p. 276; same in (193) 2 British Medical Journal 242.
' P. Sainsbury: The Ecology of Suicide in London (London, 1954).
a Mental Deficiency, 8th ed. (London,1952), PP. 327-8-
295
Many economic, social, and individual factors have
been found to be statistically associated with the suicide
rate; but according to Sainsbury's recent English study,
the most significant correlations are in respect of social
isolation (persons living alone and in boarding-houses
and hotels), social mobility (immigrants, etc.), and so-
cial disorganization (divorce, illegitimacy). The investi-
gation is of value in indicating the type of social remedy
that may usefully be tried.
The punishment of secondary parties in England
In the Middle Ages forfeiture was the only legal

consequence of suicide, apart from the special feature
of burial; but the development of the law of secondary
parties to a crime enabled an important step to be taken.
It came to be held by the English courts that the sur-
vivor of a suicide pact was guilty of murder by con-
struction of law, because he was a principal in the second
degree to the self-murder of the other. Thus if a man
and woman agreed to commit suicide together, and
the woman died but the man survived, he could (and
can) be charged with the murder of the woman. But
if the survivor were a wife, it seems that she could
not at common law be successfully charged with the
murder of her husband, because she was shielded by
the presumption of coercion.' The presumption was abol-
ished by Parliament in 1925. Although it was hardly
the intention of Parliament at that date to extend the
harsh rule relating to suicide pacts, such was the effect,
and the wife thenceforth became subject to the law.
' But the only case in point is imperfectly reported: Anon. (1604),
Moo. K.B. 754, 72 Eng. Rep. 884; Wallace: The Reporters, 4 th ed.
(Boston, 1882), p. 123-
296
There was formerly another beneficent technicality to
protect the accessory before the fact. If one man incited
another to commit suicide, and was absent when he did
it, the inciter was technically an accessory before the
fact to the other's self-murder, and so himself guilty of
murder; but he could not be convicted, because of the
rule that an accessory could not be convicted before the
conviction of the principal. Since, here, the principal
never could be convicted, the accessory was safe. The
general rule for accessories was altered by Parliament in
1861, but without accessories to suicide specially in mind;
and it was at first held that the statute did not intend
to alter the law for the particular case of the accessory
before to suicide, who thus remained unpunishable as
such.' Later, for no very clear reason, and indeed without
any discussion of the question, this view was reversed;
'
and the accessory before is now punishable as for murder.
These developments are good examples of the purely
mechanical manufacture of criminal law, with no ref-
erence to penal policy. No judge has ever considered
whether a secondary party to suicide ought to be treated
in the same way as a secondary party to the murder of
another. Policy is considered only in exercising executive
clemency, and here the Home Secretary has to work
with the legal presupposition that suicide pacts are in
principle punishable. The practical result is a compromise
between the postulate of punishment and considerations
of humanity. It has long been the custom to commute
the death sentence if the suicide pact was genuine, and
' Rex v. Russell, i Mood. 356, 168 Eng. Rep. 1302 (C.C.R. 1832);
Regina v. Leddington, 9 C. & P. 79, 173 Eng. Rep. 749 (1839).
'Regina v. Gaylor, D. & B. 288, 169 Eng. Rep. ioll (C.C.R. 1857);
Rex v. Croft [1944] K.B. 295 (C.C.A.). In the latter case, counsel for
the defence did not cite Rex v. Russell, last note; counsel for the
prosecution cited it, but only in a misleading quotation from Russell
on Crimes, which did not state the decision fully; apparently no one
engaged in the case looked up the report, and the court acted in ig-
norance of it.
297
not a mere device to get rid of an unwanted companion.
In such cases the period of detention varies; it may be
very short. If, however, it is doubtful whether there was
a genuine attempt or intention by the survivor to commit
suicide on his own part, it has sometimes been thought
right to let the law take its course.
It was said before that the secondary party is held
guilty of murder because he is a party to the self-murder
of the other. Although suicide was regarded as self-mur-
der by the older authorities, and is still self-murder for
this particular purpose, a contradictory conclusion on
the point of principle was reached in one case,' which
decided that an incitement to suicide is not an incite-
ment to murder within the meaning of a statute attach-
ing an increased penalty to this particular offence. Con-
sequently, English law says that suicide both is and is not
self-murder for different purposes.
There is a difference of legal analysis between what
may be called respectively the double-suicide pact and
the murder-suicide pact. In the first, each party agrees
to commit suicide, as by drinking poison. Here the sur-
vivor is, as already stated, a principal in the second de-
gree to the self-murder of the other. In the murder-
suicide pact, one party kills the other with the latter's
consent, under an agreement or understanding that he is
then to commit suicide. An example is where a husband,
by agreement, shoots his wife and then turns the gun
upon himself. If he kills his wife but survives himself,
he is guilty of ordinary murder as principal in the first
degree, since it was by his own hand that his wife met
her death, and her consent to be killed was neither an
excuse nor, in law, a circumstance of mitigation. This
consent may, however, result in the exercise of executive
'Royal Commission on Capital Punishment, Report, Cmd 8932 of
1953, para. 165; same: Minutes of Evidence (1949), 3-4.
2 Regina v. Burgess, L. & C. 258, 169 Eng. Rep. 1387 (1862); see
Mikell in 3 Columbia Law Review 379 (1903)*
298
clemency, just as in the case of the double-suicide pact.
The purely technical nature of the distinction between
the two kinds of pacts may be illustrated by an agree-
ment between spouses to "commit suicide" by gassing
themselves in a closed room. Let us suppose that after
all preparations have been made the husband turns on
the gas. If he survives, he is guilty of murdering his
wife as principal in the first degree, since it is his hand
that has killed her, and the case is one of a murder-
suicide pact. If the wife survives and the husband dies,
she is guilty as principal in the second degree to the
suicide of her husband, the case from her point of view
being the same as in the double-suicide pact. It would be
discreditable if any actual legal consequence were made
to hinge upon such distinctions.
The excessive severity of the common law in treating
homicide upon request or with consent as ordinary mur-
der has sometimes been remarked upon, and under
Macaulay's influence the Indian Penal Code adopted a
mitigated penalty for this crime.' The same is true of the
penal codes of several European countries.
The punishment of secondary parties in the United

States
American jurisdictions treat the instigator or con-

spirator in suicide in one or other of three ways. Some
punish him as a party to the suicide, or as a murderer
on his own account. Some regard him as not guilty of
crime. And some make him guilty of a special offence.
In those few states, such as South Carolina, which
appear to adopt the English rules on suicide, the instigator
'See Macaulay: Works (Lady Trevelyan, ed., 1866), Notes on the
Indian Penal Code, 1837, PP- 503-4-
299
or conspirator is presumably punishable as a principal
or accessory in murder.' With these states may be grouped
Ohio and Illinois, which furnish examples of how the
English doctrine may be rejected in words but accepted
in its practical consequences. It was held in 1872' that
suicide was not a crime in Ohio, and therefore there
could be no accessories or principals in the second degree
to suicide. However, the court proceeded to say that
administering poison to another was a crime, irrespective
of the consent of the other; and moreover that it was an
administering of poison (within the meaning of a statute)
merely to furnish poison to the other with intent that he
should with it commit suicide. This seems to be a
strained construction of the statute, and it goes far to
nullify the previous proposition that there can be no
accessory to suicide. The court further held that it was
a crime if the accused, without furnishing any poison,
was merely "present at the taking thereof by the de-
ceased, participating, by persuasion, force, threats, or
otherwise, in the taking thereof." In view of this ex-
tended notion of killing, the participant in a suicide pact
seems to be just as punishable as if suicide itself were
deemed criminal. It is not clear whether one who coun-
sels suicide but is absent from the evens is punishable.
The Ohio decision was cited with approval by an
Illinois court in 1903.' This court disapproved the early
Massachusetts view that suicide was a felony, explaining
the non-adoption of the English view by saying that
"as we have never had forfeiture of goods, or seen fit to
define what character of burial our citizens shall enjoy,
we have never regarded English law as to suicide as
applicable to the spirit of our institutions." But it was
held to be murder either to administer poison to another
'Cf. McMahan v. State, 53 So. 89 (1910); People v. Roberts, 178

N.W. 690 (1920).
'Blackburn v. State (1872) 230 Oh. St. 146.
'Burnett v. People, 68 N.E. 505.
300
(who intended to commit suicide) or to persuade or pro-
cure another to take poison for that purpose; and such a
person could be indicted for murder upon the death of
the victim. The court referred to the rule that it is a
crime to persuade a lunatic to commit a criminal act,
and seems, therefore, to have intended to base its de-
cision on the opinion that one who procures another to
commit suicide commits murder through an innocent
agent. This opinion, however, involves some rather subtle
metaphysics, for not only is the person who commits sui-
cide an innocent agent according to the law of the state,
but the consequence (viz., his own death) is, on the
reasoning of the court, legally innocent; hence it is diffi-
cult to see how the doctrine of innocent agency can in-
culpate the procurer.
Texas is a representative of the most lenient attitude
towards suicide found in the United States. In 1902,
Justice Davidson declared: "It is not a violation of any
law of Texas for a person to take his own life. What-
ever may have been the law of England . . . it does not
obtain in Texas. So far as the law is concerned, the
suicide is innocent; therefore the party who furnishes
the means to the suicide must also be innocent of violat-
ing the law." Consequently he held that where the ac-
cused merely prepared poison, and the deceased took it
freely with intent to commit suicide, this was not mur-
der.' The case was followed in 1908, the same judge
saying: "It may be a violation of morals, and reprehen-
sible, that a party may furnish another poison or pistols,
or any other means or agency for the purpose of the
suicide to take his own life, yet our law has not seen
proper to punish such persons or such acts." ' However,
a distinction was drawn between the mere supply of the
materials of suicide and a direct killing. If the accused
went so far in assisting the deceased as to shoot him,
Grace v. State, 69 S.W. 529-
'Sanders v. State, 112 S.W. 68.
301
or by his own hand to administer the poison, placing it
in the mouth of the deceased, this was murder, the
consent of the deceased being no defence.! Although this
is a distinction that occurs naturally to the legal mind,
it is too technical to be satisfactory.
Intermediate between the states that punish the in-
stigator as a murderer and those that acquit him are those
that convict him of another offence. Thus Missouri treats
the case as one of manslaughter.' New York, too, when
it did away with the offence of attempted suicide in
1919, retained the punishment of manslaughter for those
who assisted or encouraged another to take his life or
to attempt to do so.2
The punishment of secondary parties in other coun-

tries
Critics of the laws of suicide who argue that

suicide should not as such be regarded as a crime are
generally content to allow instigators and conspirators to
be punished as for a special offence-the solution
adopted, as has been seen, in states like New York. This
was proposed by the Draft Code of the English Criminal
Law Commissioners of 1879, s. 183, and again by the
Royal Commission on Capital Punishment in 1953, the
proposed punishment being imprisonment for life.
From the severity of the proposed maximum punish-
ment it will be seen that the offence was regarded by
both Commissions as potentially a serious one, though
* Sanders v. State, last note; Aven v. State, 277 S.W. o80 (1925).
'R.S. Mo. 1939 s. 4383.
2Penal Law, SS. 2304, 2305. See also Cal. Penal Code s. 401 (Deer-
ing, 1949); Minn. Stat. Ann. (945) s. 619.03; Wisc. Crim. Code
s. 940.12.
302
not heinous enough to justify the automatic death-
penalty carried by the conviction for murder. The sug-
gestion of 1879 has been generally adopted in the codes
of different parts of the Commonwealth.' The Indian
Penal Code, s. 306, is more lenient, reducing the punish-
ment of the abettor to ten years' imprisonment if the
person who committed suicide was eighteen years of
age and of sound mind; if these conditions are not satis-
fied the abettor is punishable with imprisonment for life.
This section applies also in Pakistan and Ceylon. The
survivor of a suicide pact seems not to be guilty of any of-
fence in these countries, provided that he did not instigate
the suicide or kill with his own hand.
Almost all countries outside the influence of the com-
mon law have legal rules or practices for according
leniency to suicide pacts, without having to invoke ex-
ecutive clemency after conviction for murder. In Scot-
land, prosecutions are unknown, and some deny that
suicide pacts are even technically punishable. Mr. Nor-
man D. Macdonald, joint author of Macdonald's Crim-
inal Law of Scotland, wrote:
If two agree to commit suicide together and jump into the

Tweed hand in hand from the south bank the survivor has
the terrible ordeal of a trial on the capital charge and may be
hanged. To do likewise from the north bank would not bring
him even to police-court, nor would he be arrested, for it is
not even a misdemeanour to attempt suicide in Scotland. He
has taken no life, not even his own, and would seem more a
subject for pity or for mental care than a hanging or even
prison.
I Report of the Royal Commission on Capital Punishment, Cmd

8932 of 1953, PP. 447-8.
' Letter to The Times (London), December 24, 1932. In the absence
of precise authority, however, there is always the possibility of the
survivor being held punishable. Cf. Royal Commission on Capital
Punishment, Minutes of Evidence, Memorandum by the Faculty of
Advocates of Scotland; Report, Cmd 8932 of z953, paras. 44, 167.
303
Similarly, in South Africa suicide is not regarded as

a crime and a suicide pact is not punished.' In countries
of the European continent the general solution is to pun-
ish instigation to suicide and abetment of suicide but to
make special provision for suicide pacts. French law at-
tempts to settle the problem by distinguishing between
suicide proper and homicide in pursuance of an agree-
ment. In the case of suicide proper, all the participants
are guiltless. In the case of homicide in pursuance of an
agreement, the survivor incurs the penalties of murder
because the consent of the victim is no justification fol
the killing. The choice between the two descriptions will
depend upon the facts, and particularly upon the degree
of initiative which can be imputed to the survivor. In
practice the difficulty is nearly always surmounted by the
constant indulgence of the jury.'
Switzerland has a more precise provision. According
to the federal criminal code of 1937, which came into
force in 1942, killing another with his consent is punish
able, but inciting to suicide or lending assistance with
view to suicide is punishable only if the inciter is iml
pelled by selfish motives; hence a physician who pro
vides poison for a patient suffering from fatal illness is
free from responsibility (Arts. 111-15). In the Soviet
Union suicide and attempted suicide are not crimes;
but for a person to influence another, who is in a posi-
tion of dependency upon him, to commit or attempt to
commit suicide is punishable by deprivation of liberty
for five years. "Influencing" includes criminal conduct
driving the other to suicide. The relation of dependency
may be between master and servant, official and subor-
dinate, husband and wife, and parent and child. Instigat-
ing the suicide of a person in a dependent position is
' Gardiner and Landsdown: South African Criminal Law and Pro-
cedure, 5 th ed., II, 1408.
'Professor Donnedieu de Vabres in Royal Commission on Capital
Punishment, Minutes of Evidence (1949), 816.
304
also punishable if that person is a minor or an adult
known to be incapable of understanding the nature or
significance of his acts.
Legislative proposals for the treatment of secondary

parties
A discussion of legislative policy on the subject

of abettors in suicide may start from the proposition,
now generally agreed by all save one or two writers who
defend the English practice, that attempted suicide
should not be punishable, if only because the punish-
ment of a genuine attempt can have no other effect than
to make the individual particularly careful to succeed.
If this is agreed, it seems necessarily to follow that the
survivor of a genuine suicide pact should not be punished.
Suicides in pursuance of a pact are merely cases of
double or multiple suicides. There can be no more justi-
fication for punishing an attempted double suicide than
for punishing an attempted individual suicide. As in the
case of an attempt at individual suicide, punishing the
survivor of a genuine pact can serve no deterrent pur-
pose, may hinder medical treatment, and is merely use-
less cruelty. It can do no more than strengthen the will
to succeed in the act of self-destruction.
The only trouble is in distinguishing the genuine
suicide pact from the case where the survivor pretended
to agree for the purpose of getting rid of his companion
and without any real intention to commit suicide him-
self. Perhaps it was this that weighed with the Royal
Commission on Capital Punishment, which refrained
' See Harold J. Berman: "Principles of Soviet Criminal Law," 56
Yale Law Journal 803, at 828 (1947). See generally also, on compara-
tive law, Yosef Nedova: "A Comparative Study of Suicide" (unpub-
lished thesis for the degree of Ph.D. in the University of London,
1955).
305
from recommending that the survivor should be exempt
from punishment.' Yet the Commission admitted that
no difficulty was shown to have been experienced in
Scotland, which does not punish suicide pacts, and that
the majority of English witnesses, including Judges, the
Director of Public Prosecutions, and several former
Home Secretaries, considered that it would be possible
to frame an amendment of the law which would not
open the door to abuse.' Difficulties of fact-finding must
always be faced in the application of legal rules, and
they must be faced at present in determining upon execu-
tive clemency.
If the reader has travelled so far in accord with these
proposals, he may be invited to take one additional step.
This is to assimilate the murder-suicide pact with the
double-suicide pact. Failure to make such an assimila-
tion is a point of criticism of those countries, such as
Switzerland, which generally refrain from punishing the
survivor of the suicide pact proper, but punish "homicide
upon request." The artificiality of this line has already
been indicated by the illustration of a couple's agreement
to commit suicide by gassing themselves. The most
that Continental countries do is to provide a reduced
punishment for homicide upon the request of the victim; 1
this is an improvement on the English position, where
no reduction is provided by law, but does not meet the
objection to providing any punishment at all in murder-
suicide cases.
Here, again, the present law is defended by those who
argue that the risk of fraud presents an insuperable
obstacle to change. The Royal Commission on Capital
Punishment thought that this risk was inevitably greater
for the murder-suicide pact than for the double-suicide
' See the Report, Cmd 8932 of 1953, para. 168.
9 Ibid., para. 169.
'See the same Report, pp. 449-51.
306
pact. 2 However, the Commission proceeded to forget this
objection when it recommended that the situation should
be left to the discretion of the Home Secretary in the
exercise of the prerogative of mercy. Evidently fraud, if
it exists, may impose upon the Home Secretary just as
it may upon a judge and jury. It is submitted that the
only question relates to the framing of the rule of ex-
emption; once this is done, there is no reason for pre-
ferring the fact-finding ability of the executive to that
of the ordinary courts of law, at any rate for the decision
in the first instance. In order to show that a workable rule
can be framed, and if so desired can be framed in narrow
terms, it might be provided that it shall be a defence to
a charge of murder to prove that the murder was com-
mitted upon the request of the victim and in pursuance
of an agreement that the defendant should afterwards
commit suicide himself, the defendant having at the time
a genuine intention to carry out his promise. This rule
would place the burden of proof upon the defendant,
who would always be subject to the risk of failing to
discharge the burden and so being convicted. It is hard
to imagine that a rule framed in these terms would be
of interest to the calculating murderer. Such possibility
of abuse as it affords exists also at present in the appeal
for executive clemency.
If so much be conceded with regard to the suicide
pact in its two forms, the next question is the proper
treatment of the abettor to suicide where there is no
suicide pact-i.e., where he does not agree to commit the
deed upon himself. At first sight an argument can be
constructed, from the material already proposed, for mak-
ing even such an abettor dispunishable. If X, under the
new rule for attempted suicide, commits no crime in
swallowing poison, it would seem to follow that Y should
commit no crime in furnishing the poison to X at his
2 Cmd 8932, para. 176.
307
request.' This should equally be so even though Y origi-
nally suggested the suicide to X. Y is not furnishing the
tools of crime, because X's act is not a crime. The case
would be precisely the same as supplying X with peroxide
to bleach his hair; it would be a crime for Y forcibly
to bleach X's hair, but not a crime for him to supply
X with the peroxide to do the bleaching himself, or
to suggest to X that X do it.
The conclusion is also supported by what has been
said on suicide pacts. If Y, by agreement, kills X and
then, in pursuance of the same agreement, attempts to
commit suicide himself, he is immune from punishment
under the rule suggested for the murder-suicide pact. But
why should it be essential to Y's immunity that he has
agreed to commit suicide himself, and tried to do so?
Is not the essential factor that X consented to be killed ?
It may be argued to the contrary that suicide is against
public policy, but that the person who attempts suicide
is exempt from punishment for a particular reason,
namely that the threat of punishment can only stiffen
his will to succeed at the first attempt. This reason, it
may be said, does not operate in favour of one who did
not himself intend to commit suicide, so that the insti-
gator to suicide may properly be punished in this case.
Between the extremes of these two views various in-
termediate positions may be taken. It will be universally
conceded that one who incites a young person to suicide,
for example, is properly punishable: while on the other
hand a physician who give his dying patient the oppor-
tunity of a merciful release may well be regarded as
outside the scope of any intelligently conceived prohibi-
tion. These sensible results could be achieved by a law
a This was held to be the case in Texas, where suicide is innocent at

common law: above, p. 301. It is not clear in present English law
whether the act described in the text involves the guilt of participa-
tion in the suicide, but apparently it does: see Williams: Criminal
Law: The General Part, p. 191.
308
framed on the lines of that adopted in Switzerland or
the Soviet Union (p. 304). Although the Swiss concept
of "selfish motives" has not hitherto found expression
in Anglo-American law, it seems to be a very good one
for the purpose. However, a situation of this kind seems
logically to require a further step which has not yet been
taken in any country. This is the assimilation of abetment
of suicide with homicide by consent. The previous argu-
ments against distinguishing between these two situa-
tions apply with equal force here. Suppose that a physi-
cian supplies his dying cancer patient with a poison, and
watches him take it. According to the Swiss and Soviet
rule, the physician is not guilty of a crime in thus abetting
the suicide of a non-dependent person for unselfish rea-
sons. Now suppose that the physician raises the poison
to the patient's lips so that he may voluntarily make the
motion of swallowing. Is this an abetment of suicide, or
a killing by consent? It would be absurd to distinguish
it from the first case. Finally, suppose that the physician
pours the poison down the patient's throat, or injects it
into his veins. Again there is no reason of penal policy
for distinguishing the case: either the physician should
be punishable in all cases, or he should be immune in all.
Here again there is a danger of false evidence. If a
husband is charged with the murder of his wife, it may
in some circumstances be temptingly easy for him to say
that his wife, being tired of life, asked to be put out of
the way. In the nature of things this is not an issue that
can easily be tried after the death of the alleged con-
senting party. The defence will be all the more likely
to succeed if the circumstances lend colour to it, as if
the wife is painfully ill at the time of her alleged re-
quest. Thus the proposed law, if it were passed, might
enable the relatives of invalids to dispatch them and then
plead their consent, safe in the knowledge that their vic-
tims cannot give evidence on the subject.
This objection will seem to many to be an insuperable
309
one. But the same reply may be made as before-the
danger of false evidence is one that the law has to meet
in almost all situations, and it is not in itself a sufficient
reason for opposing a change that is otherwise desirable.
Moreover, the danger can easily be exaggerated. If vol-
untary euthanasia were legalized, a person who proposed
to perform it upon another would have no reason for
secrecy, but rather the reverse. Thus if a sufferer de-
manded to be painlessly killed, the person carrying out
the order would obviously, for his own protection, call
witnesses to hear the request. If he did not, he would
often place himself under grave suspicion, and would
have himself to thank if he were subsequently the victim
of a miscarriage of justice. There are many situations in
criminal law in which the bona fides of an act is tested
by whether it is done furtively or in the open.
On the whole, then, it is submitted that the law might
well exempt from punishment the unselfish abetment
of suicide and the unselfish homicide upon request. This
rule would solve at a stroke the problem of voluntary
euthanasia in cases of fatal illness.' It would, of course,
go much beyond the legal change usually advocated by
supporters of euthanasia, because it would not be limited
to persons suffering from an incurable and painful illness.
Since it is probably too radical a change in the law for
present public opinion in the English-speaking countries,
more limited proposals for the legalization of euthanasia
will be canvassed in the next chapter.
It need hardly be added that whatever solution is found
for the problem of abetment to suicide should be applied
also to the inchoate crime of incitement to suicide where
the act of suicide is not carried out. This application of
the crime of incitement is such a rare one that there ap-
pears to be no reported instance of it.
4 It would also reach a satisfactory result for the suicide pact and
murder-suicide pact, except that it might be argued, for instance, that

a young man who persuades his girl-friend to commit suicide with
him does so from selfish motives. Hence a special exemption for the
suicide pact seems to be desirable.
310

The Prohibition of Suicide

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

The normal person instinctively rejects the idea of

It seems to be impossible to generalize about the

lumbia University. See also W. Wynn Westcott: Suicide (London,

Partly as a result of these philosophies, suicide was a

The origin of the Christianattitude

There is no condemnation of suicide in the New

The dishonouringof the corpse

The first Christian prohibition of suicide is some-

The forfeiture of property for suicide

Ecclesiastical censures and contemptuous burial

Discussion of the ethics of suicide

To take up again the ethical problem, the next

The social argument and the definition of suicide

The present common sense of the suicide prob-

In practice the abstract entity "society" is nothing but the

That suicide may be harmful to a certain section of society,

In all cases where suicide merely forestalls the processes of

The punishment of attempted suicide in England

The long-vanished history recounted on previous

There is a legal misconception in the latter passage.

The nature of attempted suicide

It was pointed out on a previous page that a

If one views suicidal attempt as a behaviour pattern and

Suicide and transferredmalice in England

The punishment for what is essentially an at-

Attempted suicide and transferred malice in the

In America the question of suicide first came be-

'Commonwealth v. Mink, 123 Mass- 422, 25 Am. Rep. 1o9.

Legislative proposals for the treatment of attempted

Proposals for a change in the English law of

The fear that a suicidal attempt may lead to prosecution

Even if some official powers are thought desirable in

Men who repeatedly attempt suicide when under the

Studies of the causation of suicide

The statistics of suicide and attempted suicide

'92 American journal of Psychiatry 1347 (1936).

The punishment of secondary parties in England

In the Middle Ages forfeiture was the only legal

The punishment of secondary parties in the United

American jurisdictions treat the instigator or con-

'Cf. McMahan v. State, 53 So. 89 (1910); People v. Roberts, 178

The punishment of secondary parties in other coun-

Critics of the laws of suicide who argue that

If two agree to commit suicide together and jump into the

I Report of the Royal Commission on Capital Punishment, Cmd

Similarly, in South Africa suicide is not regarded as

Legislative proposals for the treatment of secondary

A discussion of legislative policy on the subject

a This was held to be the case in Texas, where suicide is innocent at