It might be urged, on the other side, that, if the object of punishment is prevention, the heaviest punishment should be threatened where the strongest motive is needed to restrain; and primitive legislation seems sometimes to have gone on that principle.  But if any threat will restrain a man in a passion, a threat of less than death will be sufficient, and therefore the extreme penalty has been thought excessive.

At the same time the objective nature of legal standards is shown even here.  The mitigation does not come from the fact that the defendant was beside himself with rage.  It is not enough that he had grounds which would have had the same effect on every man of his standing and education.  The most insulting words are not provocation, although to this day, and still more when the law was established, many people would rather die than suffer them without action.  There must be provocation sufficient to justify the passion, and the law decides on general considerations what provocations are sufficient.

It is said that even what the law admits to be “provocation does not extenuate the guilt of homicide, unless the person provoked is at the time when he does the deed [62] deprived of the power of self-control by the provocation which he has received.” 1 There are obvious reasons for taking the actual state of the defendant’s consciousness into account to this extent.  The only ground for not applying the general rule is, that the defendant was in such a state that he could not be expected to remember or be influenced by the fear of punishment; if he could be, the ground of exception disappears.  Yet even here, rightly or wrongly, the law has gone far in the direction of adopting external tests.  The courts seem to have decided between murder and manslaughter on such grounds as the nature of the weapon used, 2 or the length of time between the provocation and the act. 3 But in other cases the question whether the prisoner was deprived of self-control by passion has been left to the jury. 4

As the object of this Lecture is not to give an outline of the criminal law, but to explain its general theory, I shall only consider such offences as throw some special light upon the subject, and shall treat of those in such order as seems best fitted for that purpose.  It will now be useful to take up malicious mischief, and to compare the malice required to constitute that offence with the malice aforethought of murder.

The charge of malice aforethought in an indictment for murder has been shown not to mean a state of the defendant’s mind, as is often thought, except in the sense that he knew circumstances which did in fact make his conduct dangerous.  It is, in truth, an allegation like that of negligence, which asserts that the party accused did not [63] come up to the legal standard of action under the circumstances in which he found himself, and also that there was no exceptional fact or excuse present which took the case out of the general rule.  It is an averment of a conclusion of law which is permitted to abridge the facts (positive and negative) on which it is founded.