Homicide in Themiclesian law

Homicide in Themiclesian law (殺人, sryat-ning; lit. "killing of a person") was anciently held as crimen, that is, the act of killing another person was inherently criminal and exposes the person who does so to a range of justified retributions by the aggrieved family or the community, unless remedies first intervene. This is in contrast to other types of crimes that were conditional on some factor, only satisfying which would a crime exist. Owing to this special character of homicide, the arcane procedures governing reactions to it and punishment for the offender were distinct from those of other types of crimes.

Ancient practices

The fundamental law on homicide in ancient times does not survive as written law, and virtually all legal scholars agree the law was customary, rather than statutory. There were indeed addenda and amendments to the fundamental law that were made as statutes in later times, but the basic principles were unwritten. Thus, it should be kept in mind that the following discussion relies on inferrence from other laws that touch the homicide law, often permitting scholars to understand that an amendment points to some contrary situation prior to the amendment's passage.

The very first known statute regarding homicide was over the private taking of satisfaction and the prohibition of subsequent vengenace, dating to just before the start of the Classical Period. Interestingly, this law explicitly covered only some cases of satisfaction, indicating that the unwritten law included other cases. Before the end of Antiquity, there were six main statutes regarding homicide, later called the Six Homicide Statutes (殺人六灋).

Fundamental law

There seems to be two basic principles that were assumed in virtually ancient practices dating to Themiclesian Antiquity.

1. The homicide may be killed in retribution, but only by the victim's successor, guardian, or spouse. It is not lawful for other individuals to do so. The aggrieved person may appeal for assistance from the community, and reasonable assistance shall not be denied out of hand.
2. If the homicide has not been killed in retribution after a certain interval, they may be expelled from the community by its elders, subject to a public denunciation of the homicide.

In all cases, the homicide's next of kin shall pay all expenses relating to the pollution and infamy caused by the homicide. The pollution referred to the spiritual offence that transpired against the land and was anciently dealt with by ceremonies and offerings, paid for the offender's clan; this is often the best attested part of homicide processes. The infamy is a little more obscure in nature and was resolved by a minor ceremony (whose nature is lost) at each of the settlement's gates or symbolic entrance, if it had no walled gates.

It appears the fundamental law made no explicit provision for accidental homicides or cases where homicides certainly occurred (such as the battlefield) but were not (at least known to be) culpable. Opinions differ as to whether accidental homicides were met with the full force of the law just as intentional. On the one hand, the alleviation of the pollution and infamy (the spiritual element of the offence) were incumbent on the offender's family without regard for the intention of the offender, so it is conceivable that the offender was subject to vengeance regardless of intention as well. On the other hand, it may also have been the case that clearly unintentional cases of homicide were never subject to retribution. There is also little to preclude differing local customs on this matter. Thus, the fundamental law was hardly static but probably experienced a degree of evolution as to its remit and provisions, only such were not written down.

Private satisfaction nullifies vengeance

In a decree attributed to Met IV, it is decided that if the victim's next of kin shall go to the homicide's house and take any slave or goods, of whatever amount, the right to vengeance is extinguished. This applies even if the things taken are a result of a commercial transaction.

Nocturnal homicides

By a decree of an unknown ruler, a homicide committed at night and against a violent intruder shall not expose the homicide to vengeance, provided that the homicide has publicly confessed to the act by the following morning and will make offerings of contrition to the victim's next of kin.

But if the intruder is expected, or if entry has not been obtained by violence, the excuse above shall not be valid. If a wall, gate, locked gate, or window was broken down, then violence is present.

The nocturnal homicide rule was tested in the 1836 case of a man's bodyguard shooting a thief seen with silvers going out of the house. In this case, the court found that the premise was well-lit, and so the homicide was not noctural, even if the time had been at night.

Personal Offences Code of 1781

The law on homicides was not altered since the Code of 470, subsequent revisions largely restricted to restatement of the 470 statute verbatim.

Personal Offences Code of 1962

The Personal Offences Code compiled in 1962 has been described as a work as momentous as the initial codification of offences in 432 and of specifically personal offences in 1781. In the main, it merited this claim as it introduced judicial discretion to criminal cases of personal offences. Under the 1781 codification, judges could only apply the penalties stipulated by statute according to its own anticipations, no matter how subjectively unfair or unexpected the results were; the 1781 codification was, however, lauded in its own day for the fineness of its provisions, making it more likely to be fair in many situations.

One of the cases that seems to have accelerated the revision of the Personal Offences Code in the late 50s was the preceived unfairness of the decision in Lut-mar. In that case, a sergenat of the Themiclesian Marines fighting in Maverica against communist revolutionaries was convicted of murder because he participated in an execution by firing squad of a number of revolutionary saboteurs, at the demand of a Camian officer who was, according to Camian law, authorized to put non-uniformed enemy saboteurs to death. This event occurred in 1957, but Lut-mar was not prosecuted until 1960 largely because the event was undiscovered. Lut-mar approached the renowned criminal defence firm Ree Ree Ree and Partners, which defended a variety of unlikely cases, but they told him his case was "such that a vigorous defence would only make things worse".

Before stepping into the Chancery Palace, where he was questioned by the Imperial Prosecution Commission, Lut-mar was filmed repeatedly making kowtows on the pavement, as a gesture to confess his guilt. The gesture was designed by Ting & Co., Lut-mar's attorney, who correctly predicted that, because the execution was both photographed and filmed in colour, Lut-mar had no case at the law and had to rely on clemency. To make the latter more likely, the defendant should be portrayed as contrite and to have some claim of innocence such that the judgement would seem wrong. The case opened on February 2, 1960 at the Supreme Court, where Lut-mar confessed on the same day to obviate the prosecution's plan to show the film to a viewing public (a projector had been brought in to the court for the reel).

Ker and Nem CJJ. wrote in the judgement that they saw no doubt that Lut-mar was guilty of murder and thus sentenced him to the only punishment the law provided, life in prison plus a forfeiture amounting to remunerations during his entire public career. In the 50s, a life sentence was not eligible for parole for good conduct unless permission was granted by Parliament. Contrary to what Ting had anticipated, Ker and Nem did not recommend the case for clemency, indicating that they believed the punishment befitted the crime. But this did not completely work against Lut-mar because the matter was widely reported in the press, inviting the commentary of both professional and lay persons. Many of the latter were of the opinion that Lut-mar was not innocent but did not deserve the same punishment as murderers in more usual circumstances, and part of this sentiment could not be disassociated with the increasing public distaste at the tactics of the communist saboteurs behind lines.

On the contrary, most jurists and serving judges opined (after the judgment) that Lut-mar was an "open and shut case of murder" and there was little to merit clemency. Trips wrote for Nem CJ. that some foreign laws permit adulterers to be stoned to death and, were Lut-mar now to go free, that implied Themiclesians could "travel to such countries to stone adulterers and return free of guilt". Tam J. also wrote on the Kien-k'ang Morning Journal that Lut-mar was a "not anything of a case the law did not fully anticipate and unfairly punishes; on the contrary, it is the very definition of murder that is in the balance here. If Lut-mar were held innocent, then no murderer would ever be guilty of murder; if this be not murder, then what is?" Krai and Put JJ. also defended the judgment, saying that Lut-mar knew full well he would be a homicide the day he stood in the firing squad and that he had no lawful excuse for it, and that is exactly what murder is.

The Chancellor also lectured the Kien-k'ang Chamber of Barristers that Lut-mar could not claim to have been misled to think homicide is lawful; as citizen and as officer under the law, it is the most basic knowledge that homicide is forbidden, even if committed against foreigners of whatever background. Lut-mar may not maintain otherwise because, the Chancellor reminded his students, no rational person would ever be misled into thinking what Lut-mar did was lawful. If he in reality was misled into thinking it lawful, then the error would be monstrous, unconscionable, and completely unable to excuse his actions. The Chancellor emphatically stated that clemency was there only for omissions of the law, that is ameliorations that would be present considering those present in other laws; clemency is not to be offered simply because society finds one criminal more worthy of sympathy than another.

See also

• Themiclesia