The Will for the Deed
| Autor | Víctor Saucedo |
| Páginas | 142-191 |
Page 142
Before we move on to the rise of the modern law of conspiracy, we should stop to discuss the development of another doctrine that would play a critical role in this process. I am talking about the doctrine expressed by the apothegm of the will for the deed.
This apothegm was usually used to refer to the subjective conditions of criminal liability in relation to what we would call today an attempt. But we should be careful not to project the present onto the past. As it appears at the time, it cannot be considered to express a substantive offense, nor does it hint at a general theory of attempts. Rather, the use of this apothegm was highly contextualized. It normally occurred within the domain of homicide to refer to special forms of homicide that did not it within the core of this cat-egory. To put it in other words, contemporaries did not think of the attempt to commit homicide as a substantive offense, but rather, in distinguishing different forms of homicide, they talked about the homicide by attempt; what they would call the homicide in will.
This theory of the homicide in will is signiicant to the development of the law of conspiracy because a false accusation could be considered as such. And that view opened the gates to considering a failed false accusation as a homicide by attempt. But it is also relevant because the scholars that will be discussed in short prompted a curious form of conceptual blend by reframing the uncomfortable formulation of the irst form of high treason: compassing or imagining the death of the king. Under this interpretation, what this irst treason would punish would be a form of homicide by attempt. But this would mean bringing part of the category of treason within the periphery of the domain of homicide. It would be a homicide by attempting to kill the king. This intellectual operation may seem irrelevant, but reframing this treason as a form of homicide leads to think of the conduct less in exceptional terms and more in the same terms that would apply to the conviction of homicide; less like treason and more like regicide.
I should also mention that within the domain of treason, the expression the will for the deed itself is all but unambiguous. There are at least two main meanings that arose at the time. The hard version would be that intent in it-
Page 143
self is the punishable element in crime, and that the subsequent action is but evidence of it. The softer one would be that in considering the form of liability of a failed homicide, intent must be considered rather than the action itself.
Finally, the discussion of this reframing of high treason also implies attesting changes in the semantic structure of conspiracy. As it happens to be, the fraternizing agreement was one of the central parts of the political intrigue as these people bound themselves against their enemy, the king. By metonymic extension, it came to be used to mean stages of the meeting and plotting of it, if not political intrigue itself. This way, the term conspiracy would become linked to the frame of the homicide in will as well as that of wrongful prosecution. In this sense, I will also discuss other uses of the term conspiracy within the frame of treason which were consequential for the development of the law of conspiracy after the fall of the Star Chamber.
What follows is an analysis of the lexical and semantic structure that expressed these ideas among the main theorizers of high treason, with a focus on the term conspiracy.
According to Coke, the category of ‘homicide’ can be deined as “homi-nis caedium” or “hominis occisio ab homine facta,”1that is, the ‘killing of man by man’ or ‘death by man.’ Sometimes Coke uses to slay as a synonym for killing,2and both terms with the meaning of ‘to cause to die.’3This latter deinition entails an action and a consequence that can or cannot follow such action. In other words, to kill somebody is not to engage in a clearly deined action, but to produce or bring about the effect of the death of man. This can be effected by innumerable conducts, many of which need not bring about such effect.
The structure of this category which “comprehendeth petit treason, murder, and that which is commonly called manslaughter”4is primarily organized around several qualities that can be predicated of the agent or subject of the ‘killing’, and eventually, in the periphery, concerning the patient or victim of the killing. More speciically, these qualities refer to the state of mind of the
Page 144
person causing the death. But as we will also see, they also bear considerations as to the nature of the conduct of killing.
Given the genus of homicide as ‘killing,’ the structure would be organized respecting a series of subjective distinctions made concerning the defendants, that is, the agent of the killing, and another set concerning the circumstances surrounding the killing.
Of those subjective distinctive properties, the irst and most important el-ement structuring the category of homicide is that of malice aforethought, which Coke deines as “when one compasseth to kill, wound, or beat another, and doth it sedato animo.”5This expression works indeed as a compound noun in which the main element is the ‘malice,’ and the qualifying property is that of ‘being aforethought.’ Malice refers to this ‘intent to kill, wound, or beat another,’ that is, the intent ‘to cause the death of a man.’ What qualiies this intent is the fact of ‘being aforethought.’ This meaning is also referred to with terms as forethought, prepensed, and praecogitata, and most important of all, as compasseth.6In other words, all these words here come to express the idea that the ‘intent to kill somebody’ precedes the actual ‘killing of somebody,’ and therefore, it is not more or less simultaneous to this action; That is why this ‘malice aforethought’:
must be malice continuing untill the mortall wound, of the like be given. Albeit there had been malice between two, and after they are paciied and made friends, and after this upon a new occasion fall out, and the one killeth the other; this is homicide, but not murder, because the former malice continued not.7In other words, this intent to kill was decided beforehand, and the actual killing was thus planned action. Hence, the time at which the intent to kill was formed is going to be an important element in distinguishing the several kinds of homicides Coke considers. This precedence in time of the ‘intent to kill’ entails that the action or actual killing is caused not by overwhelming
Page 145
emotions or passions which had taken control of one’s will as in sudden occasion, when “the heat of the blood kindled by ire was never cooled,”8, but is done sedato animo, that is, in cold blood, in full control of one’s emotions. Thus, precedence in time of planned action, by contrast to the sudden occasion, hints at whether there were passions or emotions involved, or whether the criminal was being rational and able to control his emotions.
This continuity of the intent also applies to the solicitation of crime so that when “A command B to kill C, and before the act be done, A repenth and countermand his commndement, and charge B not to do it: if B after killeth him, A is not accessory to it: for the malicious minde of the accessory ought to continue to do...
Para continuar leyendo
Solicita tu prueba