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Active Euthanasia, Suicide - This Time, The Law Does Not Blink

The courageous June 15, 2012 decision of the Supreme Court of British Columbia (the Hon. Madam Justice Lynn Smith) in proposing a scheme of legalized active euthanasia (Carter v Canada), beckons a far cry from the common law's forays into this deeply emotional - if not spiritual area.

It is true that the issues are distinguishable; what faced Her Ladyship in 2012 was not the prosecution of a person who attempted suicide, but the prosecution of those that assisted the suicide.

But the one is the infant of the other and they share a common history. That history shows us that in matters related to suicide, or any topic which has such religious overtones, controversy reigns and change is slow.

Befuddling judges over the centuries are deep questions with irreconcilable answers:

  • Is suicide a crime against the state? Answer: yes;
  • Can a man commit murder on himself? Answer: first yes, then no; and
  • Are those that assist suicide guilty of murder? Answer: yes.

From Moses to Otto Lang

suicide [Belyaevskiy @ Fotolia]The Old Testament notes the suicide of the king Saul and also of another character, Eleazar, the latter suicide described as a "miserable necessity".

The Greeks would cut off the hand of any person who attempted suicide and buried it apart from the other human remains.

But a Roman, the great philosopher Seneca (who ended his own life by suicide), wrote:

"It is cowardly to die to escape suffering, it is stupid to live in order to suffer...

"Does life give you pleasure ? Live.

"Does it not? Go whence you came. No large wound is needed, a little prick will free you."

Whiton writes of other Greek initiatives:

"The Grecian Areopagus and the Magistrates of the Island of Ceos had discretionary power to permit suicide; and the council of an Ionian Colony at Marseilles kept a preparation of hemlock to administer to those who showed them good reasons for taking their own lives."

Lawrence Irwell wrote that the Greeks and Romans:

"... established courts for the purpose of hearing the applications of those persons who were desirous of quitting life, and of granting or refusing permission in each case as the court thought fit..... Insanity, serious bodily suffering or any great sorrow were considered sufficient excuse for the act, and the permission of the court to terminate life could be obtained upon proof of any calamity having happened to the petitioner."

But the reaction of human societies in legal history to suicide rang from one extreme to another. While the Japanese revered hara-kiri, a form of suicide, the French held it in contempt, dragging the corpse through city streets, hanging it by its feet and then feed the remains to wild dogs.

It seems that few topics have attracted the attention of the great philosophers more than suicide. Aristotle:

"Courage is the mean between fear and rashness, while suicide is the union of both."

And the mysterious Zoroaster:

"It is forbidden to quit a post without the permission of the Commander. Life is the post of man."

The Scottish philosopher David Hume (1711-1776) wrote:

"It would be no crime in me to divert the Nile or Danube from its course, if I could. Where, then, is the crime of turning a few ounces of blood out of its natural channel."

Roman law had a humane legal maxim not, apparently, shared by the English common law or by canon law:

"If anyone, sinking under the pressure of grief, or weariness of life, disease, madness or shame, shall prefer death, his conduct shall not be considered to the detriment of his character."1

In the great Corpus Juris of Justinian, suicide was no crime but the victim forfeited all his property to the state. That rule of law did make it to London.

In 1013, Henry III promulgated this statute:

"Let him who hath murdered himself be fined in all his goods to his Lord, let him find a place of burial neither in the church nor the church yard... He who kills himself through weariness of life or being impatient of pain and grief, shall forfeit all his movable or personal estate...."

Henri de Bracton, writing in 1259, spoke of the law as it then existed in England:

"Just as a man may commit felony by slaying another so may he do so by slaying himself....

"If a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . . his movable goods (are) confiscated."

Jack KervorkianIndeed, early legal commentaries had another name for suicide: self-murder. Shakespeare called it self-slaughter.

And the Latin app for that? Felo de se.

The common law considered suicide to be a crime against both God and King. The American colonies of Providence and Rhode Island had this law circa 1647:

"Self-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out of a premeditated hatred against his own life or other humor ... his goods and chattels are the king's custom, but not his debts nor lands. But in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing."

William Blackstone, in his 1759 Commentaries on the Laws of England, Book 4, pages 189-190, referred to:

"Self-murder, the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure.... The law has ... ranked (self-murder) among the highest crimes."

In Blackstone's time, the body of a successful suicide was was buried where he/she was found but not until a stake was driven into his/her body.

And he forfeited all his property to the Crown.

But the thoughts of many were expressed in the words of one:

"Suicide can never be punished but by making the penalty (whether it be forfeiture or disgrace) fall exclusively upon the innocent.

"The English mangle the remains of the dead. The inanimate body feels neither the ignominy nor pain. The mind of the innocent survivor alone, is lacerated by this useless and savage butchery ; and the disgrace of the execution is felt exclusively by
him, although it ought to fall on the laws which inflict it.

"The father, by a rash act of self-destruction, deprives his family of the support he ought to afford them; and the law completes the work of ruin, by harrowing up their feelings; covering them with disgrace ; and depriving them by forfeiture of their means of subsistence."2

The winds of change started in 1796 with these words of wisdom from Connecticut attorney Zephaniah Swift:

"There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting (of) a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender.

"(Self-murder) is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment."

But even in the 1892 edition of Canada's Criminal Code:

"§270. Everyone who attempts to commit suicide is guilty of an indictable offence and liable to two years imprisonment."

Though the efflux of time, society and its bridesmaid, law, have come to crossroads of discernment in regards to suicide, especially in repealing any financial penalty on the estate of the deceased. But no less importantly, as Boehm writes, was this epiphany:

"Suicide is frequently a consequence of a species of insanity ... but it is not necessarily a positive proof of a diseased mind."

Finally, in 1972, Canada repealed the crime of attempted suicide, with the then-Minister of Justice Otto Lang stating:

"This is not a matter which requires a legal remedy, that it has its roots and its solutions in sciences outside of the law and that certainly deterrent under the legal system is unnecessary."3

Still, the act of assisting suicide was severely deterred, and classified as murder, regardless of the circumstances. Dr. Jack Kervokian (pictured, above) was an American crusader who claimed to have discreetly helped 130 terminally-ill people take their lives. For one such claim, he spent from 1999 to 2007 in jail for murder (and died in 2011). He was either a deranged doctor or a savior, depending on who you talked to.

Back to the Future

With the road clear of the criminality of an individual attempting or completing suicide, the Supreme Court of BC was plunged into this residual and profound debate: assisting another in suicide.

The June 15, 2012 decision was a big deal in legal history; a rare quake on common law terrain only rarely disturbed.

There was a beaten path for the judgment although grown-over, not used for two thousand years, in judicially allowing suicide on a case-by-case basis.

And maybe that is a step towards a solution. After all, with the proper medical advice, is there a better institution more capable or appropriate of making profound and life-altering case-by-case decisions than our wise, judicial elders?

REFERENCES:

  • Boehm, Gustav, The Right to Commit Suicide, 16 Medico-Legal J. 79 (1898-1899)
  • Carter v Canada, 2012 BCSC 886 (NOTE 3, quoted from ¶105).
  • de Bracton, Henri, Bracton on Laws and Customs of England, Volume 2, page 423.
  • Irwell, Lawrence, Suicide and the Law, 10 Green Bag 141 (1898)
  • NOTE 1: Si quis impatientia doloris, aut taedio vitae, aut morbo, aut furore, aut pudore, mori maluit, non animadveratur in eum. 4 Bl. Comm. 189.
  • NOTE 2: 1 U.S. L.J. 266 (1822-1823).
  • Swift, Z., A System of the Laws of the State of Connecticut, Volume 2, (1796), page 304.
  • Whiton, L. C., The Penal Aspects of Suicide, 5 Medico-Legal J. 1939 (1887-1888), at page 42.

 

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