Digitized by Microsoft® csr Maudsley, 250, 251. so Austin, Leot. 26, p. 507. » Austin, ib. p. 511. Bl. Coram. 4. 2, p. 24. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 29 idiot and a lunatic: which is rather a. medical than a legal distinction 32 ; the enquiry for law being merely, so far as we have got, Did the offender hnow what he was doing ? Drunkenness. In the cases hitherto mentioned, then, the ordinary inference or presumption, that a person willed to do what he did, is allowed to be met by proof of his being in such a state of unconsciousness at the time, that he could not know what he did. To this head of not knowing what one is doing, and consequent want of volition, belong, in fact, extreme cases of mad drunkenness* Not where the man has intentionally drunk, as it is said, to get pluck 33 , but where he does an act which he apparently neither intends nor wills nor likes, in an utterly aimless random fury. Blackstone 34 justly adverts to the parallel between this state and frenzy or fit of madness : and this, I think, rather shews that his reasoning is confined to, or at least suggested by, violent crimes. He is usually, however, taken to speak generally, and Austin says that in criminal cases drunkenness is, by English law, never an exemption. This statement will be examined directly. Another, made by the same author 33 as to the sweeping exemption allowed, in Roman law, to drunkards, is most questionable. Beyond a distinction between sudden and deliberate impulse in the punishment of battery or homicide 36 , and a commutation of the penalty of death in the case of soldiers 37 , 1 can find no authority for it. 32 See Stephen's Digest, note 1, p. 332. For the distinction as drawn by- Coke See 1 Inst. 247 a. 33 Austin, Leot. 26, p. 512. 34 Comm. 4. 2. 25, 26. 35 ib.-p. 512. 36 Dig. 49. 19 (De poenis), 11. 2. Delinquitur...aut proposito aut impetu aut easu.. .impetu. ..cum per ebrietatem ad manus aut ad ferrum venitur. Was Austin's 'Even in delict' due to the word 'delinquiturf 37 Dig. 49. 16. 6,7. ArriusMenanderderemilitari. PerYinumautlasciviam lapsis capit'alis poena rern^n£^J,/j#g$g/frgLUtatio irroganda. 30 ANALYSIS OF CRIMINAL LIABILITY. In the case of drinking "to get pluck'' -which Austin terms intentional drunkenness™, as in many other crimes com- mitted by drunken men, they do know what they are doing and wish to do it 39 . Hence the law may very justly, as Blackstone says our law does, look upon this drunkenness as rather an aggravation than a palliation of the offence 40 . In- voluntary drunkenness, if this expression 41 means drunkenness caused by the artifice of others, is to be classed with accident 41 . Disease caused by previous voluntary drunkenness 43 cannot, as far as I can see, be separated from mental derangement in general. In voluntary drunkenness, though it may not be what Austin seems to mean by intentional 44 , and though the drunk- ard did not know what he was doing, it appears that he is punishable by English law as if he had wished or willed the act in question or intended its consequences. The effect of this presumption, which is at any rate fictitious, even if it be quite desirable, is, as Markby 45 points out, to make drunken- ness itself an offence, which is punishable with a degree of punishment varying as the consequences of the act done. The rule has apparently been qualified in cases where a specific intention is essential to the crime, but I do not know that the qualification is very clearly established 46 . It is pos- sible, however, that where there is reason to presume some intention, drunkenness may be taken into account to modify the character of the intention presumed. Where there is no 38 Leot. 26, p. 512. sg See Markby, § 281, p. 144. 40 Comm. 4. 2, p. 25, adfinem. 41 Used by Stephen, Digest, Art. 20 (p. 17), note 2. 42 See below. 43 Stephen, 1. c. 44 i.e. contracted with a view to the commission of the crime. 45 § 281, p. 145. 46 See Stephen's Digest, Art. 29, IUust. 4, p. 17. Nothing corresponding in Code. The principal case is R. v. Cruse, 8 Carrington and Payne, 546. See also R. v. Carroll, 7 C. and P. 146. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 31 such reason — nor perhaps to presume volition either — will not the least culpable form of intention be presumed 47 -? Blackstone's reason for the alleged rule of English law about drunken criminals — that one crime shall not be allowed to privilege another 48 — falls, of course, before the objection that drunkenness per se is not a crime 49 . The true ground of liability in this case is, as Austin points out 60 , not volition, nor intention, but heedlessness. In childhood, the unconsciousness may apparently be sometimes actual, sometimes only what I shall call virtual. Under actual unconsciousness should probably be classed the state of a very young child, many of whose movements are, just like those of a person in sleep, purely involuntary 51 . This must not be confused with the case of older children, whose actions are not involuntary, but who either do not know the immediate and necessary consequences of those actions, or, if they do, do not know that they are wrong or punishable. In both these last cases there certainly is voli- tion, for the primary bodily movement is voluntary. In the first, however, the knowledge of those immediate conse- quences which all ordinary people would connect inseparably with the primary movement being wanting, volition should be treated as wanting for the whole act. In the baby the movement probably is actually involuntary, and it will naturally be treated as such in the child, who has never, e.g. seen or heard of a gun before, and so may reasonably be said not to know what he is doing when he pulls the trigger. This is therefore, in principle, a case of virtual unconsciousness. 47 This seems to have been the course followed by the jury in E. v. Monk- house, 4 Cox, 56. 48 Comm. 4. 2, p. 26. 49 Markby, § 279, p. 143, and note. Coke's (1 Instt. 247 a) is a case of laches by drunkard in a civil matter. See, however, Hale 1 P. C. 32. 60 Austin, Leet. 26, pp. 512, 513. 61 See contra, StephenP©/^.egjty9(W'croso«® 32 ANALYSIS OF CRIMINAL LIABILITY. Practically it is settled, in most countries, together with igno- rance of the wrongness of the action, by a general negative presumption juris et de jure, when the child is proved to be under a certain age. But the complicated grounds of exemp- tion, in the case of infants, will "be shortly treated all together in a later chapter. Inevitable ignorance of fact is also a case of virtual unconsciousness. The agent may wish to do, and believe that he does, one thing, which is lawful, when he is, as a matter of fact, doing another which is not lawful and which he has no wish to do 62 . This is the case where Blackstone says that the will and the deed act separately 63 , for which he receives his due, and perhaps rather more than his due, share of criticism 64 . In truth, the' presumption of volition is met hy proof that the party could not know what he was doing. If he could have known, had he employed due attention or advertence ; if his ignorance, that is, was not inevitable, but he had what is sometimes called a latent knowledge which he did not apply ; although there was no exercise of will as to what he actually did, yet the degree of virtual unconscious-, ness, from which his conduct arose, is reasonably not held ground for exemption, though it is for diminution of crimi^ nality and mitigation of punishment. He is, in fact, liable on the ground of negligence, heedlessness or temerity 60 . The amount of attention or advertence required, to make the ignorance inevitable, will vary according to the degree of suspicion with which the law looks upon the act itself. This suspicion accounts for those cases where, though the act is 62 For extra refinement, and, as it seems to me, unnecessary complication, on this subject, see Bentham's unadvised act, as to the existence of an im- portant circumstance, and the first part of the chapter on Consciousmsi generally (Introduction, eh. it. pp. 89—91). ss Blackstone, Comm. 4. 2, p. 27. 64 See particularly Markby, § 257, p. 132. 65 Austin, Lect. 25, p. 495. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY, 33 not a crime unless some independent fact coexists with it, courts have held that the person does the act "at his peril 66 ." Inevitable ignorance is the real ground on which an insane person is not held responsible for an ac.t which would be justified or excused by a state of things in which his delusion caused him to believe 67 . Virtual unconsciousness arising from inevitable ignorance characterizes also such accidental acts as the agent could nei- ther foresee nor prevent 68 . Austin, I must remark, lays it down generally, that an act of a party cannot be called an accident 69 . I have referred to his narrowing of the ordinary sense of act before : here, I should prefer to say that an act of a party may be an accident, in which case it is not a voluntary act. Where the party never knows what he is doing, to the moment of action, there is clearly an unconsciousness which precludes volition. In a large class, however, of " accidents," the party does know what he is doing but acts involuntarily. To use the popular language which I must employ as the best criterion of legal responsibility, he cannot help it. This brings me to the second class of involuntary actions, which I have roughly entitled constraint. B. Constraint may be actual, virtual or legal. To the first head obviously belongs physical compulsion, where there is absolutely no volition of the person by. whose body the act is done; as where another forcibly presses such person's finger against the trigger of a pistol. The primd facie agent is not really the agent at all, but the instrument or means. This case is referred by Austin to accident" , and I should be B6 Stephen, Dig. Art. 34, and the case of Prince there referred to (Law Eeports 2, Crown Cases Reserved, 151, especially Bramwell, B. pp. 174, 5). In the Code (§ 221) it is expressly provided that belief of the girl's being 16 shall be immaterial. 17 Stephen, Digest, Art. 34. Dl. 1. See Code, § 22. 68 Austin, Lect. 25, p. 493. See also below under 'constraint.' « 9 ib. 60 Austin, Lect. 25, pp. 514, 515. Digitized by Microsoft® o 34 ANALYSIS OF CRIMINAL LIABILITY. disposed, conversely, to class under actual constraint any other instances of accidental conduct which might have been foreseen but could not have been prevented 61 . Actual constraint becomes, it must be remembered, vir- tual voluntary action, if the party places himself voluntarily in a position where he must be subject to the constraint. A similar qualification •will be noticed shortly in duress per minas. The case here supposed is not one of accident, because it not only could have been prevented but was pre- concerted. Under actual constraint may be classed the case, roughly describable as omission, and barely conceivable now, -where a man is legally punishable for not doing something -which he could not do. Here Austin puts it that the party is not obliged or cannot be obliged by the original command of the legislator 62 . It would seem more correct to say that the legislator may impose such an obligation (for these will clearly be cases of direct despotic command), but will impose it ineffectually. Austin's dictum appears to me a confusion of legal obligation, as it ought to be and generally has been, with legal obligation as it may occasionally have been under a Cambyses or a Philip the Second. Virtual constraint is a general term which will conveni- ently cover self-defence, duress per minas and all other cases of Austin's extreme terror, together with the questionable one of irresistible impulse. To all, it appears to me that Austin's words apply: — "The sanction may operate on the desires of the party, may be present to his mind, and the performance of the duty may not be altogether independent of his desires; but the party is affected with an opposite* 61 See above ( Unconsciousness) for the remaining cases of accident in the original conduct : for accidental consequences, below, ch. iv. 62 Austin, Lect. 23, p. 468. Cf. 26, 515. Digitized by Microsoft® ESSENTIALS OP CRIMINAL LIABILITY. 35 desire, of a strength which no sanction can control, and the sanction therefore is ineffectual 63 ." Self-defence or, more properly, self-preservation is the overpowering motive in that hypothetical case of unavoidable necessity, which Blackstone recognizes as constituting, if not a legal involuntariness, at least an absolute excuse for homi- cide 84 . The term self-defence is more properly applicable to Blackstone's excusable homicide, se defendendo, upon a sudden affray" 5 . (I may remark that the passage quoted by him from the Digest 68 only refers to a civil action, though the principle is reasonable enough for general application.) The virtual constraint here is very strong, and, in the case where the slayer has not begun the fight, that 'intention of the law 1 which ' holds the survivor not entirely guiltless ' would per- haps at the present day be questioned 67 . The principle of self- preservation, extended to the case of others whom the agent was bound to protect, is generalized by Sir James Stephen, under the head of necessity, into an excuse of acts done, only in order to avoid consequences which could not otherwise be avoided, and which would have inflicted upon the agent, or such other persons, inevitable and irreparable evil, provided no more is done than was reasonably necessary for the pur- pose, and the evil inflicted is not disproportionate to the evil 63 Austin, Lect. 26, p. 515. Bentham "The mil is acted upon by an oppo- site superior force." Introduction, ch. xm. § xi. p. 174. 64 Conun. 4. 14. 186, where two persons, being shipwrecked and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. See Stephen, Digest, Art. 32, note 2, for an actual case. ■ 65 Comm. 4. 14, pp. 183, 4. 66 Digest, 9. 2. 45. 67 Blackstone, Comm. 4. 14. 184, adfinem, and 4. 14. 187. See, on the subject of private defence generally, and the necessary modifications in the law on this subject to suit the present day, Stephen, Digest, Art. 200 and note 1 on p. 125. Digitized by Microsoft® ,, ~ 36 ANALYSIS OF CRIMINAL LIABILITY. avoided 68 . This is at any rate good sense, and should be law 69 . Duress per minas is a special case of self-preservation, where the danger has been held out with the express inten- tion of .compelling the agent to commit a crime. Of course there is volition here — the act is distinctly that of the primd facie agent — the question is, whether, as a matter of policy, he is to be exempted from criminal liability 70 . In the dis- tinction drawn by Hale 71 between physical compulsion and moral force, he lays it down that even an assault on a man to the peril of his life in order to compel him to kill another is not a legal excuse. In treason, the mere joining with rebels may be excused, but only during continuance of actual force on the person and present fear of death 72 . It has in fact been laid down generally that the apprehension of per- . sonal danger does not furnish any excuse for assisting in doing any act which is illegal 73 . These dicta are harsh and per- haps scarcely established law. Duress per minas, as an ex- emption from criminal liability, is, however, certainly con- fined in England, to compulsion, by threats of immediate death or grievous bodily harm, from a person present at the commission of the offence. It is questionable whether it covers acts committed by a principal agent; and it seems 68 Stephen, Digest, Ait. 32. 69 The clause does not appear, in the same general form, in the Code (§§ 22 — 24). See, however, certain particular provisions, farther on {§§ 54-57). 70 See Markby, § 287, p. 148 : also Austin, Lect. 26, p. 515. It is surely incorrect here to say that " the sanction of the law is not operative, and therefore there is no obligation.'' It is rather true that the sanction does operate, but must, on all but the firmest minds, operate in vain, 71 Hale, 1 P, C. 434. " 1 East, P. C. p. 71 and M'Growther's case, 18 Howell's State Trials, 394. n Denman, C. J., in Reg. v. Tyler, 8 Carrington and Payne, 621. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 37 reasonable also to disqualify from this exemption any one who was a party to any association or conspiracy, being party to which rendered him subject to such compulsion 74 . I do not know whether the commission of crime under this influence merely of great physical pain, applied to com- pel such commission, would come under actual constraint or that difficult sub-division of virtual constraint, to be treated next, irresistible impulse. The case is not, at present, very likely to occur. Irresistible impulse belongs mainly to the subject of present mental derangement. It is not yet, I believe, ex- pressly recognized by our law, though often alleged by medical witnesses, and sometimes forming the ground of pardon or reprieve. Is it true, that a man may murder an- other, knowing what he is doing, knowing that it is morally wrong, knowing that it is legally punishable but yet unable to resist the impulse? Can it be reasonably said that he could not help it ? Experience, I believe, shews that there are such cases, and yet that the conduct of such a person is not traceable to any specific delusion 75 . Proof that this im- pulse was irresistible will vary according to the particular circumstances: but, if it be satisfactory to the minds of reasonable men, they ought perhaps to hold that the act was not voluntary and acquit the prisoner 76 . Certain medical authorities shew a disposition to extend this excuse to cases 74 Stephen, Digest, Art. 31, and Code, § 23. 75 See generally the cases in Maudsley, chaps, v. and vi. (Partial Insanity). 76 Stephen (G. V. p. 95) seems to admit this. In the Digest (Art. 27, C, and. Illustrations, pp. 15, 16) he treats the fact whether the principle here ad- vanced is part of our actual law as doubtful. It clearly does not eome within the words "incapable of appreciating the nature and quality of the act." See the remarks of Mellor, J., in E. v. Cockroft (Leeds Autumn Assizes, 1865), Taylor, 753; and, as against the admission of irresistible impulse, Parke, B., in E. v. Barton, 3 Cox, 276 and Bramwell, B., in E. v. Haynes, 1 Foster and Finlason, 667. Digitized by Microsoft® 38 ANALYSIS OF CRIMINAL LIABILITY. where the act has been done deliberately: but it seems reasonable to confine it to sudden fits or paroxysms 77 . With regard to the furious anger alleged by Austin as a ground of exemption in Roman law 78 , if there is any autho- rity for the doctrine, which I have been unable to find, its principle would probably be the same as in the case of irresistible impulse. Exemption on the ground of legal constraint can only occur in the case of criminal actions performed bond fide under the orders of a properly constituted superior. Whether such orders are per se a ground of direct exemption at all in English law appears to be doubtful 79 , except in the case of married women, to be noticed directly. Under defect of will, Blackstone refers to "compulsion and inevitable necessity 80 ," acts of a violent character per se which result from the "commandment of the law 81 " and acts " contrary to religion and sound morality," but done under the obligation of "civil subjection 82 ." With the first class may obviously be coupled what is justifiable "rather by the permission than by the absolute command of the law for the advancement of public justice or the prevention of atro- cious crime 83 ." None of these acts enumerated by Black- stone are criminal at all 84 . The exemption of a married woman from criminal liability, on the ground of presumed coercion by her husband, 77 Case of Dove. Stephen, G. V. pp. 401, 2. I think even Dr Maudsley (p. 149) would scarcely extend exemption to cases where the act was actually performed in cold blood. 78 Austin, Lect. 26, p. 513. "> Stephen, Digest, Art. 202. s° Comm. 4. 2, p. 27. 81 ib. 4. 2, p. 31. See Hale, 1 P. C. 43. <® Blackstone, Comm. i. 2, p. 28. 83 ib. 4. 14, p. 179. He is only speaking of homicide : but I do not 6ee why his remarks should not have application a fortiori to other acts. 84 For "Cases in which infliction of bodily injury is not criminal," see generally Stephen, Digest, Bh^zi^i^icrosoft® ESSENTIALS OF CRIMINAL LIABILITY. 39 only extended to minor cases 85 , was only a prmsumptio juris (not also de jure**) so that proof was admissible against it, and will probably be shortly abolished- 87 , though it would seem reasonable that less proof of constraint might be accepted as to the actions of a woman in her husband's presence than in other cases. Forbearances and omissions. I have now briefly con- sidered the cases where a person has done something, but yet the act, with the more immediate consequences included under the usual meaning of that term, either is involuntary or is reasonably treated as such, and the agent is therefore exempt from liability for what is virtually not his doing. I shall further have to treat ; on the external side, of the less immediate consequences of a man's voluntary act ; on the internal side, of mental condition preceding such an act, and lying behind the volition which causes it. It will be necessary, however, first to give a little con- sideration to the immediate circumstances of a non-act ; the case, that is, where criminal consequences are imputable to a person because he has not done something. In this case, his conduct must have been either a forbearance or an omission. The frequent confusion of the two is justly censured by Austin 88 , and the distinction which he has drawn between them is of considerable practical importance in criminal responsibility, A man, unacquainted with driving, takes in hand a team which he ' is assured is perfectly quiet : the horses bolt and kill a foot passenger. A nurse wilfully abstains from administering the stimulant ordered by the 86 See Russell, 1, p. 140, note o. Blackstone's distinction (Comm. 4. 2, pp. 28, 29) of mala in se and mala prohibita is not satisfactory here (or anywhere else). 8« See Hale, 1 P. C. 516. 87 Compare Stephen, Digest, Art. 30, with Code, § 23. 88 Austin, Lect. 14, V-gffltized by Microsoft® 40 ANALYSIS OF CBIMINAL LIABILITY. doctor as of vital consequence to the patient; and the patient dies. The first case will scarcely amount to man- slaughter, the second is very like murder. The subject of omission, properly so called, has been very much overlooked by our old common-law writers, who have consequently been driven to such legal hypotheses as malice against all mankind™. Forbearance would in general be indicated, with a nearer approach to truth, by such quasi- active words as wilfully abstaining, &c» But, even down to modern times, a clear distinction between the two is not easy to draw, because of a double use of the word omission, arising doubtless from the attractive antithesis between omission and cow/mission. Hence, omission has been extended to all non* doing, so as to include forbearance, or intentional non-doing, as well as omission proper, or unintentional non-doing 90 ; and to require division into malicious and negligent 91 . In the criminal code now under consideration omission clearly includes intentional conduct, which is specially called wilful omission 92 . It is probable, then, that this double and ambiguous use of the word omission will hold its own in English legal phraseology, partly because it is, as we see, pretty firmly established there, and partly on account of a special meaning popularly given to forbearance, which somewhat incapacitates that term for substitution in place of wilful omission. By forbearance is often meant, as Austin remarks 93 , the inten- tional non-doing of an act which we are bound not to do or justified in not doing. While, as he himself uses the word, 89 e.g. Blaokstone, Comm. 4. 14, p. 192. 90 Austin, Lect. 20, 439. si Markby, § 219, p. 107. 92 Code, § 172. "Act or omission," § 194, "wilful omission or neglect." See Stephen, Digest, Art. 212. Neglect is also used of intentional conduct in Code, §§ 185, 6. 93 Austin, Lect. 20, p. 438. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 41 it is not restricted to lawful forbearances, but applies to any act whatever. I must here follow Austin, in the teeth of established usage 94 , as to the meanings given to these two words, on account of their great clearness and convenience. Forbearance and omission are, then, both, as regards exter- nals, the not doing something which a person could have done. The difference lies entirely in his state of mind, and is very well drawn by Austin. The only obscurity in his account of the matter seems to arise from the introduction of his un- lucky particular volitions. Omission is the simpler case, and the simplest case of omission is, where a man does not do an act because he never thinks about it 93 , and of course never wills to do it. " The will," to use that popular abstraction, is perfectly dormant : there is no volition whatever. A less simple but more common form of omission is where something is done — there is an action — but, in the manner of doing it, the taking of certain precautions is omitted, from the same state of mind as leads to omission of an act alto- gether. It was stated above that forbearance and omission are both the not doing something which a person could have done. This presumption of the faculty of volition, the power of willing and doing, is essential. To use, as an illustration, Austin's favourite word advert ; there can be no inadvertence unless there is a mind (with the necessary knowledge), to advert; and so, a blind, or illiterate, person cannot omit to read a royal proclamation. Omission is often used only for culpable omissions ; when we unintentionally do not do something which we are bound to do 96 . There is no great objection to this narrowed meaning in the present subject, because these are the omissions with which we have mainly to deal in criminal law. Still, I sup- 94 Austin, Leot. 20, p. 439. 95 ' adverts to it.' ib. 438. 88 ib. Digitized by Microsoft® 42 ANALYSIS OF CRIMINAL LIABILITY. pose the word per se should mean the unintentional non- doing of anything. Forbearance, on the other hand, is a not doing " with an intention of not doing 97 ," where intention is obviously used by Austin rather in the ordinary meaning of purpose than in his peculiar meaning which will be considered hereafter. At present, I am confining myself to. the immediate circum- stances of not doing and, as much as possible, to the state of mind relating merely to the non-act. For which reason, I prefer another definition given by Austin of forbearance, where he says it is "the not doing some given external act, and the not doing it in consequence of a determination of the will 9 *." The difference between omission and forbearance lies in that exercise of volition, which enters into the latter, and about which Austin involves himself in what certainly appear very unnecessary difficulties. He sees and admits that there is an " act of the will " in forbearance : but, he says, the forbearance itself is not willed, because we cannot will nothing, the absence or negation of an act". He has, there- fore to assume that, in forbearance, as we do will something, we will an act other than the act forborne, and excluding it 100 . And, in the end, he is obliged to admit that a present for- bearance is not necessarily preceded or accompanied by a present volition to do another act : but may be preceded or accompanied by mere inaction 101 . The views of Hobbes and Locke are, I think, much clearer. Hobbes connects Deliberation directly with the doing or omitting the thing propounded, and the will (i. e. the act of willing) directly with the action or the omission thereof 108 . By omission he here obviously means what I have called, 97 Austin, Lect. 20, p. 439. ss &j. Leot. 14, p. 377. 99 id. Lects. 19, 20, pp. 437, 8. "° ib. 101 id. Leot. 21, p. 452. See also note 76 to page 438. 102 Leviathan, 1, ch. 6, p. 28. Digitized by Microsoft® ESSENTIALS Off CRIMINAL LIABILITY. 43 following Austin, forbearance : but the point to be remarked is that he places action and forbearance on the same footing, and feels no necessity for interposing a tertium quid, which is to be willed, inconsistent with the thing forborne. " To avoid multiplying of words," says Locke 103 , "I would, under the word action, comprehend the forbearance too of any action pro- posed : sitting still, or holding one's peace, when walking or speaking are proposed, though mere forbearance, requiring as much the determination of the will, and being as often weighty in their consequences as the contrary actions, may... well pass for actions too." Common experience, in fact, shews that in forbearance we do not will an act exclusive of the act forborne, but will to stay just as we are : the ordinary popular expressions in such cases point not so much to the notion of positive inconsistent action, as to the restraint of ourselves from action at all 104 . One thing is certain in forbearance, that, whether its modus operandi be a remaining at rest or an act excluding the act forborne, it is an exercise of volition, and therefore will in general involve a greater liability for consequences than omission, where the volition is dormant. On the one hand, however, exercise of volition cannot be so reasonably presumed in the case of non-act as in the case of act. If a man does something, we primd facie assume that he willed to do it. If he does not do something, we do not assume either that he willed not to do it or that he never thought about it, without going into his probable desires or inten- tions — his condition of mind, with reference to more remote consequences. On the other hand, even in the case of a clearly proved forbearance, although this is in all mental conditions exactly on a level with action, and may be preceded i°3 Essay 2. 21, § 28. 104 2x TJffux&Ss— siste — stop I all properly transitive verbs, but expressing action merely upon one's self. Digitized by Microsoft® 44 ANALYSIS OF CRIMINAL LIABILITY. by the strongest -wish, and even purpose, so far as the for- bearance is concerned, of consequences which would be crimi- nal when resulting from a positive act : yet, if the train of events which ends in these consequences is not due in any point to the person, who is merely a complacent spectator, he does not appear to be, in actual legal systems, criminally liable, whatever moral abhorrence his conduct would natu- rally excite ; unless the act from which he forbore was one which he was under a legal obligation to perform 105 . There is, however, little doubt that any such cases which became frequent, and so, capable of being dealt with generically, would lead to the speedy imposition of legal obligations to meet the emergency 108 . 105 See the very strong illustration, I presume hypothetical, in Stephen's Digest, p. 135, and the statement in the text (Art. 212). " It is not a crime to cause death or bodily injury, even intentionally, by any omission, other than those referred to in the last article." 108 Cf. the rules and cases in Stephen's Digest, ch. 22, and compare Part xv. of the Code, and below end of ch. rx. Digitized by Microsoft® CHAPTER IV, ESSENTIALS OF CRIMINAL LIABILITY, CONTINUED, Offender's knowledge as to the probable consequences of his conduct. Volition, including not merely the exercise but the power or capacity of will, has been sufficiently considered as con- nected with the offender's conduct, whether act, forbear- ance or omission, and the more immediate consequences which are generally coupled with that conduct under the word act, I proceed now to the remoter mental condition which causes or further characterizes the conduct, and so ren- ders the offender criminally liable for that conduct's results. At first sight such condition would appear to consist simply of desire, positive or negative — Hobbes' " Appetites and Aver- sions, Hopes and Fears." But it is obvious on a little thought that a more important essential, to which desire may or may not be superadded, is expectation, or rather the grounds of expectation. And here the use of the term knowledge, in the latter part of Chapter I. and the heading of this Chapter, must be explained. Expectation, when very strong and well founded, is often styled Knowledge — or, e converso, what is often styled knowledge, as to the future, is really only a strong expecta- tion. Thus Austin himself speaks of knowing that a thing Digitized by Microsoft® 46 ANALYSIS OF CRIMINAL LIABILITY. will happen 1 . This expression is, strictly and literally taken, incorrect : we can only know what is happening or has happened; as to future consequences, our so-called knowledge is' merely a strong expectation, which may amount to what we call moral certainty but is not certain in fact. If, however, we change the phrase to, knowledge that so and so is likely to happen, the word know has now a strictly proper meaning, though its object, in that meaning, is not very clearly expressed. As applied to our own conduct, the expression knowledge that such a result is likely, obviously means, our knowledge that similar results have followed, and do ordinarily follow from similar conduct. As applied to the conduct of others : — When I say to a fellow, who has thrown or fired a detonating ball so as to fall into a powder magazine — You knew it would blow up — I mean, I assume that you knew, either through you'r own experience or through the experience and information of others, what have been the results, what are the ordinary results, of such dealings with powder and detonating balls. I may make a wrong assumption, (or presumption as it is called when the courts make it,) but that is what I mean ; and this is correctly called knowledge. Such knowledge might of course be proved by entering into the previous life of the individual ; but common sense shews that such an enquiry would be in general not only troublesome but trivial and unnecessary. The mere fact that such speeches or impu- tations, as I have instanced, are made every day, in the practice both of courts and ordinary life, points to the existence of some general experience, common to those amongst whom a person lives, and an assumption that, as so living, he has that experience for a guide to the pro- bable results of his conduct. 1 Austin, Notes on Criminal Law, p. 1093. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 47 A special standard of experience exists, and may be rea- sonably assumed in individual cases, amongst professional men. An engineer for instance, would be presumed to know the results of certain conduct with reference to an engine — a gasman with reference to gas — a man who took any post or occupation with reference to the duties of that post — better than an ordinary person 2 . This special presumption is an important point, but it seems to me to come under the same general principle as the former. Broadly stated, the presumption is this — a man is taken to know, as to the probable consequences of his conduct, what most people in his position would know. In law, this is a prwsumptio juris, but not also de jure, for special cir- cumstances of ignorance may be shewn, to rebut it, in the case of individuals; and, in the case of some classes of per- sons, there is a counter presumption. The next essential, then, of criminal liability, besides those already considered, is the agent's knowledge, that is, his expectation or capacity of expectation, of the consequences of his conduct : " the party expects the consequences in- consistent with the objects of his duty," (more shortly the criminal consequences) — "or he might expect such conse- quences if he adverted or attended as he ought 8 ." His guilt or liability will materially vary in degree— the results pro- duced being the same — as his state of mind turns out to have been actual expectation, or the mere capability of it, and as his actual conduct was more or less likely to cause the results which it did cause, and therefore to suggest to him the expectation of them. But the capacity for such expectation must be there, or the party is, except in one anomalous case, noticed below, not liable at all. The experience, knowledge, or capacity of expectation, Of which I am now speaking, is, as I have said, presumed, 2 Markby, p. 108, §§ 220, 221. 3 Austin, Lect. 25, p. 484. Digitized by Microsoft® 48 ANALYSIS OF CRIMINAL LIABILITY. and reasonably presumed by law. The exemptions, therefore, or cases of non-liability, under this particular head, will be either where there is a counter presumption (the case of infants), or where it is proved that' the offender could not foresee the consequence of his conduct*. It is sometimes said that such a person ' does not know what he is doing,' but this phrase is best confined to the more immediate con- sequences of bodily movement. This want of knowledge has been, in our cases, often rather confusedly combined with want of know- ledge of the wrongness or punishability of the act and its consequences taken together; e.g. the question is put "whether the prisoner was labouring under that species of insanity which satisfies the jury that he was quite un- aware of the nature, character and consequences of the act he was committing — in other words was really unconscious, at the time he was committing the act, that it was a crime 1 ." The Solicitor-General speaks, in Lord Ferrers' case, of suf- ficient faculty " to distinguish the nature of actions, to dis- cern the difference between moral good and evil 6 ." The prisoner's being " insensible of the nature of the act he was about to commit" and " disabled from discerning that he was doing a wrong act," are apparently, from their con- nexion with the same phrase about illusion, spoken of as the same thing'. There is a like want of clearness, in the language of English practice, with regard to infants under 14 and over 7 years of age. Here, in felonies, it is left to the jury to say whether, at the time of committing the offence, the person had guilty knowledge that he was doing 4 Austin, Leot. 26, p. 506, "did not and could not." If the second negaT tive has to be proved, the first is clearly unnecessary. 6 Oxford's case, 9 Carrington and Payne, 547. " Howell's State Trials, 19. 947. 7 Bowler's case, Collinson on Lunacy, p. 673 (addendum), Digitized by Microsoft® ESSENTIALS OF CBIMINAL LIABILITY. 49 wrong*. It may be that a knowledge of the act's probable consequences does not enter into the question just quoted, but is presumed — a strong argument that such is a fortiori the general presumption in the case of adults. (The case of infants is taken all together hereafter.) Foresight of consequences, however, as a separate thing, is clearly alluded to by the judges in answers 2 and 3 to the questions put on the celebrated case of McNaghten. To establish a defence, it must be proved that at the time of committing the act the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing — or — if he did know it, that he did not know he was doing what was wrong 9 . On the whole, it is clear that, in English law, and in reason, all persons but very young children are presumed to have known the probable consequence of their conduct, (besides those more immediate consequences which are generally regarded as part of an act itself,) and are held criminally in some degree responsible for such consequences, unless it can be proved that they are incapable of such knowledge. There are three cases of such proof which practically occur. The first is that of incapacity from general defect of understanding or mental derangement. The second is the curious and difficult case of partial insanity and de- lusion, which often complicates the question of the present chapter with that raised in the preceding and in the follow- ing one. The third is pure accident. The first case does not call for much remark. It is described, in language more strong than coherent, by a judge in an early case. To be acquitted, on a charge for a great 8 B. v. Owen, 4 Carrington and Payne, 236. 9 10 Clark and FinneEy, p. 210. _ Digitized by Microsoft® A, 50 ANALYSIS OF CRIMINAL LIABILITY. offence (malicious shooting at a person), a man must be totally deprived of his understanding and memory and not know what he is doing, any more than an infant or brute or a wild beast 10 . Without pressing the curious classification of creatures contained in the last words, we may say that ' understanding and memory' indicate experience and fore- sight of consequences. A proved general incapacity to foresee the consequences of the offender's conduct would doubtless be now held sufficient to constitute this exemption". The difficulty of partial insanity is pointed out, but certainly not solved, by Hale 12 . In later times, ignorance of the nature and consequences of one's conduct has been here much confused with ignorance that the conduct was wrong. Against this, Erskine's famous argument in Had- field's case shews clearly that where the agent was under an entire delusion as to his act and its consequences, no jury could possibly convict him of murder, merely because he knew that he was acting wrong or contrary to law 13 . The case put by Erskine is hypothetical, but one cannot help feeling that a true principle is laid down in the question submitted by a test-writer of great eminence — whether the agent committed the act under the influence of any insane delusion, disguising from him its murderous character". It is difficult to lay down a general rule for these cases. " That the delusion must, for the purpose of the trial be 10 Arnold's case, 16 Howell's State Trials, 765, per Tracey, J. 11 The act and its consequences are generally coupled together in our law. "No act is a crime if the person who does it is at the time when it is done prevented [either by defective mental power or] by any disease affecting his mind (a) from knowing the nature and quality of his act, &c." Stephen, Dig. Art. 27, p. 15. The part bracketed is doubtful. 12 1 P. C. p. 30. 13 See Stephen, G. V. p. 92. Erskine's Speeches (Ridgeway) 4, pp. 133, 4. Collinson on Lunacy, p. 480, omits the details of Erskine's argument. 14 Stephen's Blackstone, yi. 2, p. 28, note x (7th ed.). Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 51 taken to be true 15 ," seems scarcely to supply a universal solution. If the consequences anticipated by the agent varied very slightly from the real ones, there would seem no great injustice in holding him liable for the latter : if very widely, the case approximates to that of purely acci- dental consequences. The case of purely accidental consequences differs from that of accident as to the act itself, in the fact of the original conduct being there involuntary and here voluntary. Black- stone is therefore not correct in speaking of a " deficiency of will" when the "want of foresight or intention" only applies to the consequences 16 . He is also somewhat un- satisfactory in his treatment of accidental mischief which follows from the performance of a lawful act, in which case he first states that, as a general rule, the party stands "excused from all guilt 17 :" but afterwards, that where the consequences amount to homicide (homicide per infortunium), " the word excusable imports some fault, some error or omis- sion: so trivial that the law excuses it from the guilt of felony, though, in strictness, it judges it deserving of some little degree of punishment 18 ." Here, in fact, the law, according to the same author, presumes a certain want of caution, implying that the consequences might have been foreseen, and therefore holds this a case rather for excuse than exemption 19 . Other authorities add the words "using proper caution to prevent danger" to their statement of the case in point, rendering it pure matter of accident, as to the consequences which could not have been expected to result 20 . This very 16 Stephen, G. V. p. 92. I am not, indeed, sure that Sir James Stephen means to lay it down as a general rule. 16 Comm. 4. 2, p. 26, adfinem. " ib. 4. 2, p. 27. 18 id. 4. 14, p. 182. M ib. 186, adfinem. 20 x East p - °- c - 5 - § %$Ay^M°- *• p - 258 - 4—2 52 ANALYSIS OF CRIMINAL LIABILITY. proper addition — the employment of diligence or precaution — is indicated by Coke a , and is as old as Bracton 22 . Austin appears to exclude from the class of accidents all mischief resulting from the act of a party 23 . This is too general, unless we add the words " and which could have been foreseen by him." Whatever mischief results from conduct which is dangerous, or from which such mischief might reasonably have been expected 2 *, is not, of course, pure accident. There is an anomalous case, to which reference has already been made, where neither expectation nor a ground for expectation of the actual consequences of conduct can reasonably be presumed, and yet the party has been, by English law, held liable for those consequences. This is the case in which the consequences result from an unlawful act, but are purely accidental : that is, the act is not done with the purpose of causing them, and their occurrence is not so probable that a person of ordinary prudence ought under the circumstances to take reasonable precautions against them 26 ; where, in fact, there is neither rashness, heedlessness, nor negligence. The unlawful act in this case may apparently, in English law, be nothing more than a private wrong™; but the principle has been most strongly 21 Instt. 3, cap. 9, p. 57. Yet he shall forfeit therefore all his goods or chattels to the intent that men should be wary so to direct their actions as they tend not to the effusion of man's blood. 22 Bracton, L. 3, c. 4, fol. 121. Casus. ..si licitae rei operam dabat...et adhibuit diligentiam. 23 Austin, Lect. 25, pp. 492, 3. 24 e. g. dangerous and unlawful sports or the use of weapons of an im- proper and deadly character in lawful sports. See Russell, i. 819, 820. 26 Prom Stephen, Digest, Art. 210. 28 ib. ii. "Aots constituting actionable wrongs." It must also be accord- ing to Hale (2 P. C. 476) and Poster (Disc. 2, p. 259) in its original nature wrong and mischievous, not merely malum prohibitum (Blaekstone, Comm.4. 2, p. 27, note 6). But this distinction is untenable (Stephen, Digest, Art, Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 53 developed in the more serious cases called felonies'. The extremely harsh dictum of Coke 27 , according to which the agent is to be held criminally liable to the fullest extent, and in the highest degree, for death accidentally resulting from an intentional act, unlawful but not necessarily danger- ous, has been somewhat modified by the merciful interpreta- tion of a later and more rational authority 28 , but appears, in its very slightly modified form, to be still English law 29 - And it is laid down, in general, by Blackstone, that if a man be doing anything unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for being guilty of one offence in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour 30 . In a minor degree it is perhaps not unreasonable that the accidental results of an unlawful act should be imputed to the author of that act, though he neither did nor could expect them. If, in a case mentioned above, inevitable ignorance as to an independent fact constituting his act un- lawful did not excuse the agent S1 , still more, it may be urged, 210, note 2, p. 131). In his text, Blackstone extends this doctrine to an original doing of anything unlawful. 27 If one shoot at any wild fowl upon a tree and the arrow killeth any reasonable creature afar off, without any evil intent in him, this is per infor- tunium, for it was not unlawful to shoot at the wild fowl : but if he had shot at a cock or hen, or any tame fowl of another man's, andthe arrow by mischance had killed a man, this had been murder, for the act was unlawful. Coke, Inst. 3. 8, p. 56. The dictum appears to be based on decided cases. 28 Foster, who (p. 258) requires that the intent must be feloniw. 29 Cockburn, L. C. J., in Barrett's case. Stephen, Dig. p. 146, note 4. See also Russell, I. 761, note (w). A more rational view is as old aa East, 1P.C. p. 257. 30 Blackstone, Comm. 4, cap. 2, p. 27. For the distinction of malum pro- hibitum or malum in se, see above, note 26. 31 Ch. m. note 56. Digitized by Microsoft® 54) ANALYSIS OF CRIMINAL LIABILITY. ought a man to do intrinsically unlawful acts at his peril. But for full legal liability, if the dictum be not yet law, it is at least common sense and justice that "a man is not answerable except for the natural or probable result of his own act 32 ." The legal presumption as to the possession of ordinary experience extends, it would seem, to the application of that experience, with regard to the probable results of a man's own conduct, in cases of act or forbearance. A defence, that is, would scarcely be admitted that the experience lay dormant, where there had been a volition. As it has been laid down, "a party who does an act wilfully, necessarily intends that which must be the consequence of the act 33 ; where intend certainly includes expect, whether it includes something more or not. In the case of pure omission, i.e. when the party does not merely neglect to take some precaution in connexion with some positive conduct, but, instead of doing what he should do, never thinks of it and does nothing at all, the last-men- tioned presumption evidently does not hold. He neither actually knows, nor is held to know, such a result of his con- duct to be likely: he is only presumed to have had the experience which would enable him to know it; and he is punishable for the non-application of that experience, which will be noticed hereafter as "negligence." 82 Bramwell, B., in Reg. v. Horsey. 3 Foster and Finlason, 287. It is pot certain, however, that the learned haron's dictum does not rather bear on remoteness of causality, from the intervention of another cause, than on the intrinsic naturalness and probability of the result. See the editors' notes. 33 Farrington's case. Bussell and Ryan, 209. The words which follow are applicable only to the particular case ; they do not appear to limit the general maxim. Digitized by Microsoft® CHAPTER V. ESSENTIALS OF CRIMINAL LIABILITY, CONTINUED. Offenders knowledge that his conduct was wrong. It is laid down by Blackstone that "a mistake in point of law which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris quod quisque tenetur scire neminem excusat is as well the maxim of our own law as it was of the Roman 1 ." About the Roman law on this subject I wish to make a few prefatory remarks, because the references to it by both Blackstone and Austin are very unsatisfactory. The quotation of Blackstone is stated to be Digest 22. 6. 9. It is really a compound 2 of the passage referred to (a dictum of Paulus) with another proceeding from the pen of Neratius Priscus, Trajan's favourite councillor, and at one time, per- haps, intended successor 3 . The singular weakness of the reason — that law both can and ought to be finite, whereas the interpretation oifact may deceive even the most skilful — is pointed out by Austin 4 . He might have added, too, how 1 Comm. 4. 2, p. 27. 2 Probably made by the author, whom Blackstone cites, Plowden, 343. 3 Dig. 22. 6. 9. pr. Paulus libro singulari de juris et faoti ignorantia. Eegula est juris quidem ignorantiam cuique noeere, facti vero ignorantiam non noeere. Dig. 22. 6. 2. Neratius. In omni parte error in jure non eodem loco quo facti ignorantia haberi debet, cum jus finitum et possit esse et debeat, facti interpretatio plerumque etiam prudentissimos fallat. 4 Austin, Lect. 25, p. 497. Digitized by Microsoft® 56 ANALYSIS OF CRIMINAL LIABILITY. completely the last words really apply to law; especially to judiciary or case-law, on which I shall shortly have to quote his own words. To return, however, to the Roman authorities : Paulus, in the passage above referred to (from his work de juris et facti ignorantia), after stating the general rule, juris ignorantiam cuique nocere facti vero ignorantiam non nocere, proceeds to say that, to minors of 25, jus ignorare permissum est, quod et in feminis in quibusdam causis propter sexus infir- mitaterri dicitur — instancing the case of a civil act in law. He quotes afterwards, with evident suspicion, a dictum of Labeo. Sed juris ignorantiam non prodesse Labeo ita accipiendum earistimat si jurisconsulti copiam haberet vel sua prudentia instructus sit; ut, cui facile sit scire ei detri- mento sit juris ignorantia (Mommsen supposes a converse clause to have fallen out here : — cui non facile sit scire ei detrimento non sit) : quod raro accipiendum est 5 . These are the passages which are very inadequately quoted by Austin in his 25th lecture 6 . The title in the Codex, De juris et facti ignorantia, adds nothing but the permission enjoyed by a soldier to amend his pleadings in a civil case, propter simpli- citatem armatae militiae 1 . In almost all cases treated under this head, the dicta appear to refer to civil, not criminal, law: nor can I, find any clear distinction as to jus gentium and naturalis ratio s . A few other passages relating specially to infants will be noticed at the end of this chapter. We may now leave the Roman law of Justinian on this subject, and consider certain maxims taken from it, with more or less garbling and more or less disregard of context, by our own older lawyers or judges, and made by them into « Dig. 22. 6. 9. 3. « pp. 497, 500, 501. 7 Codex, 1. 18. 1. 8 Laid down by Austin, p. 501. The strongest instance is in Dig. 48. 5. 88.2. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 57 English common law. Serjeant Man wood is, I believe, our first court authority, speaking as advocate, not judge, in a civil case under Elizabeth 9 . "It is to be presumed that no subject of this realm is misconversant of the law whereby he is governed. Ignorance of the law excuseth none 10 ." This dictum, adopted by Hale and applied by him to criminal cases 11 , is no doubt the original of Blackstone's 'bound and presumed to know;' the 'not only may 12 ' being probably due to Neratius. However, Blackstone's support of the rule comes to this : — a man may not allege ignorance of the law because he is juris et de jure presumed to know it. He is so presumed because he is bound to know it. Such circular reasoning 13 need scarcely detain us, nor is it much more worth the while to consider Blackstone's theory, about the enactment of our own statutes, that "every man in England is, in judgement of the law, party to the making of an act of parliament, being present thereat by his representatives"" so that promulgation is not needed. Assuming every person in England to be represented — assuming the copies of acts of parliament "printed at the King's press for the information of the' whole land 15 " to be a sufficient reminder to those persons of what they, not to say their ancestors, have enacted, through their representatives — we still have remaining the vast mass of case-law, which must occur in some form or other through all modern systems. Nor does the English theory, of judges merely declaring or interpreting what was law before, help 9 Plowden, 342 a. (10 Eliz.). 10 It is really a quotation by Manwood from the "Doctor and Student." 11 1 P. C. 42. u Above, note 3. m See Austin, Leot. 25, 498. Markby, p. 138, § 271. 14 Bl. Coram. 1. 2, p. 185. In its original this is a ruling of Thorpe, C. J., in 39 Edw. 3. Coke, 4 Inst. 1, p. 26. 16 ib. Proclamation by the Sheriff in each county, or at least the writs commanding such proclamation continued according to Coke (ib.) till the reign of Hen. VII. Digitized by Microsoft® 58 ANALYSIS OP CRIMINAL LIABILITY. us in the least : as the unlearned laity would have to inter- pret or discover by their own intuition that on which the greatest professional authorities occasionally differ, and the original publication of which is, as Blackstone himself admits, only a supposition 16 . Before leaving Blackstone's theory, as to the actual know- ledge of Statutes, I may mention that, where the ignorance was of a law very recently enacted, so that the offender could not have known of the act, notice of which could not have reached him before the offence was committed, it was con- sidered a case for pardon, but Lord Eldon held that such offender was in strict law bound, although he could not then know that the act had passed"! The assumption that the English law or any large and increasing body of laws 'might be known' by the laity, on which ground Blackstone bases the non-admission of ignor- ance as a legitimate excuse 18 , is an absurd one justly scouted by Austin 19 . The rule, however, that ignorance of law shall not be so admitted remains, and is justified by tbe latter author, relying, in a very characteristic passage, entirely upon con- siderations of necessity or convenience, and paying certainly very little regard to what ordinary people call justice or equity. I shall not reproduce this passage 20 , the reasoning of which appears to me to be conclusively answered by Markby 21 ; but would call attention rather to others, in which Austin admits that the presumption now under consideration 16 Int. § 2, 45. It (municipal law) may be notified by universal tradition and long practice whicb supposes a previous publication and is the case of the common law of England. 17 Eussell and Eyan, Cr. Ca. 1. Bl. 4. 2. 28, n. 7. 18 Blackstone, Int. § 2, p. 46. 19 Austin, Lect. 25, 498. 20 Austin, Lect. 25, pp. 498, 499. The only sufficient reason... insoluble and interminable. 21 MMkb r> §§ 272 > 3 ' mgW&hy Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 59 is really true in the majority of instances 22 , and might possi- bly be made so in a vast majority 23 . For the former fact I ■will here quote his remark on the most unfavourable instance — of case-law. "As to the bulk of the community they might as well be subject to the mere arbitrium of the tribunals, as to a system of law made by judicial decisions. A few of its rules or principles are extremely simple and are also exempli- fied practically in the ordinary course of affairs: such, for example, are the rules which relate to certain crimes and to contracts of frequent occurrence : and of these rules or prin- ciples the bulk of the community have some notion. But — " then he reverts to his first dictum, as to the more complex portions of judiciary law 24 . The remarks of the author whom I have cited, as justly objecting to Austin's reasoning on the rule "Ignorance of Law excuseth none," are, I think, confined to criminal law; on which he makes the enquiry — Will the defence of ignor- ance of criminal law be generally false or true, i.e. do people in general know the criminal law, or not? His answer is well worth reading. If this means a "particular and accurate ac- quaintance with the terms of the law," of course such know- ledge is possessed by scarcely any one. But if it means gener- ally that such and such an act (the term here including the criminal consequences of an act or forbearance), will expose him to some sort of criminal punishment, this knowledge is possessed by nearly every one above the age of infancy, as to nearly every act for which he is liable to be criminally punished 25 . It would seem to follow that in doubtful matters of con- duct, such as the resistance to a not very obvious right, or the obedience to a proper authority giving improper orders, this presumption of a general knowledge of criminal law must be 22 Austin, Lect. 26, p. 510. * id. Leot. 25, p. 499. 24 Austin, Leot. 39, ppd$fe& by M/cfife*tekby, §§ 274, 5, pp. 139, 140. 60 ANALYSIS OF CRIMINAL LIABILITY. considerably qualified. The hardships which occasionally occur have apparently been met, in practice, by a somewhat technical treatment 26 , for which a layman would prefer the general qualification or exception here suggested. A different and more difficult question arises, as to the rule under consideration, where it has been held to be no defence for a foreigner, that he did not know he was doing wrong, the act not being criminal in his own country 27 . In the case from which these words are quoted the act was one which would have been morally reprobated in both countries; and, in a similar one, though the act might not have been looked on with moral reprobation in the foreigner's own country 28 it was one of a violent and deadly character. These somewhat doubtful cases may, of course, be practi- cally settled by saying that a foreigner who comes to England must obey the laws of the country and be content to place himself in the same situation as native-born subjects 29 ; but they will at least serve to introduce a new and a very impor- tant consideration as to the rationale of liability. The presumption of knowledge of the law in criminal cases, which seems, taken in a general sense, to be just, has 26 Stephen, Digest, Act. 33. The fact that an offender is ignorant of the law is in no ease an excuse for his offence, but it may he relevant to the question whether an act which would be a crime if accompanied by a certain intention or other state of mind, and not otherwise, was in fact accompanied by that intention or state of mind or not. See the illustration (2) and note. In the very hard case of killing by a military subordinate being adjudged murder, which is alleged by Markby (§ 276, pp. 140, 141), Stephen (Dig. Art. 202, 111. 1), appears to treat the decision as good law, but introduces a quali- fication, as to knowledge of fact, into his digest of our case-law on this subject. 27 E. v. Esop, 7 Carrington and Payne, 446 (unnatural offence). 28 A fair dueL Barronet's case, 1 BlliB and Blackburn, 4. See too 1. 1. Dearsly, C. C. B. 58. 29 Campbell, C. J. , in the last case. The judges all relied on this ground, though one did advert to the gravity of the offence. Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 61 been hitherto considered rather as an assumption of know- ledge that certain conduct, or conduct leading to certain results, is in some way legally punishable. It is, however, in an important class of cases, usually put as a general know- ledge that certain acts are wrong, which is evidently the view taken by Hale and Blackstone, on the exemption of infants and lunatics, when they speak of discernment of good and evil 30 . It is in this more extended view of the legal pre- sumption in question that I come to consider the third essential to the offender's criminal liability and his third ground of exemption from it. The first of these grounds was, it will be remembered, a defect of volition, or power of will properly so called, because the prima facie agent either did not know what he was doing (in the strict sense of these words) or, could not help it. The second, where the agent had volition but could not foresee the (less immediate) consequences of his conduct. In this third and last case he has the volition, and can foresee the conse- quences, but does not know that his conduct, as leading to these consequences, is punishable or wrong. In defence of a moral distinction recognized in the latter alternative term, (to which I admit the natural objection of lawyers), I would first quote the unexceptionable testimony of Sir James Stephen in his remarks upon the meaning of the legal term malice. "It will be found in practice impossible to attach to< the words malice and malicious any other meaning than that, which properly belongs to them, of wickedness and wicked 31 ." Therefore "the presumption of malice is rebutted by proof that the person who did the act could not know that it was wrong or could not help doing it 32 ." The words could not help doing 30 Blackstone, Comm. 4. 2, p. 23. Hale, 1 P. C. 26, 27. Also the very able summary of Hale's views by the Solicitor-General in Lord Ferrers' case (19 Howell's State Trials, 947, 8). 81 G. V. 82. » G. V. 01. Digitized by Microsoft® 62 ANALYSIS OF CRIMINAL LIABILITY. it can only apply to the cases where volition fails; and have nothing to do with the point at present under consideration. But I shall devote the rest of this chapter to a consideration of what is the effect of replacing the Knowledge of Law, generally presumed, by that question, frequently put in the most serious charges, — "did he know it was wrong?" I must premise that we are only speaking of charges where the conduct is also, as a matter of fact, legally punish- able: that which is merely wrong not coming under criminal law, or law at all. Also, that, in this use of wrong, moral and not necessarily legal wrong must be intended, or the substi- tution of this question "did he know it was wrong?" for "did he know it was punishable or illegal ?" is unmeaning. The sense, therefore, which Austin gives to wrong 93 , certainly so far as it implies the command of a political superior, and probably so far as it implies command at all, is misleading. Wrong, in the judges' question above quoted, is a term of moral disapprobation. What is the direct meaning, original or developed, of the word and its cognates in other languages, I need not here consider, for etymologists and moralists ■will both agree that such words at least connote, or carry together with their direct meaning, the idea of general disapproval: that, when a man knows his conduct to be wrong, he in ninety-nine cases out of a hundred knows it to be disapproved by those amongst whom he lives — by his nation or com- munity, if not as a nation or community, yet as a number of individuals 34 . Just as "the system of morality tacitly referred to by the use of the word malice is that system or rather the aggregate of those moral sentiments which, as a fact, are generally entertained in the nation 35 ." 33 Austin, Leot. 18, pp. 421, 2. 34 And the hundredth -will not be, except in the abnormal case considered at the end of this chapter, very likely to offend against criminal law. 35 Stephen, G. V. 90. . ' Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 63 The case where an offender could neither know that his conduct was wrong, nor that it was legally punishable, will be obviously exempted from criminal liability under any but the most irrationally tyrannical government. This is possibly the case intended by the presumption juris et de jure, of want of mischievous discretion in infants under 7, and is no doubt the actual mental condition of many per- sons permanently or completely deranged, where a general incapacity to estimate either the morality or the punish- ability of their own conduct may be proved, very similar to the general incapacity considered in the last chapter. In the case of older persons, sane or only partially insane, the agent might know that his conduct was wrong but not that it was legally punishable, or know that it was legally punishable but not that it was wrong, and our present enquiry is — if one knowledge or capacity of know- ledge be wanting, is the other sufficient to constitute a crime ? When people state a particular thing to be wicked, says Sir James Stephen, they mean that it is in point of fact blamed, and under certain circumstances is punished 3 ". I question whether the very significant addition, in the words here italicized, is so much an actual part of, as an almost necessary inference from, the popular idea of wrongness. But if a man has capacity to know that his conduct will be generally disapproved of by the community amongst whom he lives 87 , he has certainly sufficient reasonable ground to put him on his enquiry whether the same con- duct may not be regarded as illegal by the same community, as a whole : and, further, whether it may not, being so re- cognized, be the subject of penal or criminal prosecution. That is, if a man knows that his conduct is wrong, and it as G. V. 82. 37 See above, p. 62. Digitized by Microsoft® 64 ANALYSIS OF CRIMINAL LIABILITY. is in fact punishable, he is reasonably presumed to know, that it is punishable also. On this point the judges consulted in cod sequence of McNaghten's case answered 89 : "If the accused was con- scious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable — the usual course therefore has been to leave the question to the jury, whether the accused had a sufficient degree of reason to know that he was doing an act that was wrong." This is surely a reasonable rule and a proper question. It is not that, as Markby appears to object 89 , the capacity of distinguishing right and wrong is set up as a general test of insanity. The point to be dis- covered is neither such a general test, nor even the insanity of the individual charged, but, whether that individual is reasonably to be held responsible. I have here taken the word wrong to have much the same general meaning as Sir James Stephen gives to wicked, and to depend upon the current morality of the time and place. To go farther, and define wrong by reference to natural or divine law, seems for legal purposes undesirable 40 . What is here stated of an insane agent is a fortiori true of a sane one. In the case of infants the different grounds of exemption are so much confused that I am obliged to put what little I have to say on their behalf all together at the end of this chapter. The converse hypothesis to that already considered, where a man may know his conduct to be illegal or pimish able, but not know it to be wrong, can scarcely apply to chil- dren or weak-minded persons. This needs a strong conviction that the conduct is right; the conviction of a patriot, s, as 10 Clark and Finnelly, 200. »> § 250, p. 129. 40 As Lord Lyndhurst does in B. v. Offord (5 Carrington and Payne, 168), "Committing an offence against the laws of God and nature." Digitized by Microsoft® ESSENTIALS OE CRIMINAL LIABILITY. 65 fanatic or a madman. It may be that the standard of right and wrong to which he refers his conduct is the popular or general one; it may be that he has a standard of his own" differing from the popular one, and due to what he conceives to be a superior intuition or a supernatural revelation. The first case is a matter of policy rather than of juris- prudence. The laws administered by a government may be entirely out of accord with the moral standard of the governed: but no one could say that the government is unreasonable or inconsistent in holding a man responsible for acts which he commits as the result of ordinary human motives, with a knowledge of the penal character of such acts, to counterbalance those motives. Particular views as to morality, or what would generally be styled a perversion of the moral sentiments, though by some medico-legal writers dignified with the name of moral insanity, yet, if unaccompanied by delusion, constitute no exemption from criminal liability 4 *. In the case of delusions, into which the supernatural enters, leading a man to believe that his conduct is right though illegal, Sir James Stephen appears to hold generally that such a person should not be punished **. So, in the original case of McNaghten, it was relied upon by L. C. J. Tindal, that " the prisoner could not be sensible that he was violating both the laws of God and man." This ruling was possibly one of the reasons why, the acquittal of McNaghten 41 This standard, as to wickedness, is included by the words of Sir James Stephen, where he represents "the precise meaning of the proposition that an act is wicked" to be "that it is condemned by some system of morality which the person using the word wicked affirms to be true." (G. V. 89.) But, as he shews on the next page, it is only with the moral sentiments generally entertained in a nation that law has to do. 42 See the excellent remarks in Taylor, pp. 692, 3. 43 G. V. 91, 93, 94. Digitized by Microsoft® c, 5 66 ANALYSIS OF CRIMINAL LIABILITY. being considered unsatisfactory, the questions were put to the judges afterwards, which elicited what appears to me the more reasonable view, although the supernatural element is not so clearly introduced as it was in the trial of Hadfield, to be next mentioned. " In the case of partial delusions, not- withstanding the accused did the act with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of procuring some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew that at the time of committing such crime he was acting contrary to law, i.e. the law of the land 44 ." In Hadfield's case, an obligation which he believed to be supernatural was the motive which, not so much over- powered the natural effect of knowledge that his conduct t was penal, as co-operated with that very knowledge to produce the conduct 45 . In the child murder cited by Sir, James Stephen as a strong instance of ignorance that the conduct was wrong, and in the incendiarism of Jonathan Marten, a supposed immediate revelation from heaven was the cause of the criminal act 46 . In these, and similar cases, the impulse of a supposed supernatural revelation, running counter to a knowledge of the illegality or punishability of the agent's conduct, might be not unreasonably, as in certain cases of overpowered volition 47 , treated as irresistible. Where the supposed supernatural element is wanting, the reason for 44 M'Naghten's case, 10 Clark and Finnelly, 202, 209. 45 Stephen, G. Y. 94. This seems to me the result of Sir James Stephen's remarks on the case. As it appears in Eussell (i. p. 120) and Collinson's Law of Lunatics (pp. 484—8), I scarcely see the connexion between the sup- posed supernatural appearances and the crime. Hadfield's condition, indeed, seems rather to have been one of general mania, at certain periods, than particular delusion. 46 ib. 91, and Taylor, P. and P. 2, 572. 47 Above, oh. in. On irresistible impulse, see Taylor 753, 4 and 764. Digitized by Microsofm ESSENTIALS OF CEIMINAL LIABILITY. 67 exemption is not so clear. A man who murders a child in the hope of being confined in a place where there are wind- mills 48 , ought to be hanged if any person of impaired intellect is ever hanged at all. Here I may refer to the very strong considerations urged in the third chapter of Sir James Stephen's General View 49 . They are directed against the indiscriminate exemption of madmen for any crime what- ever : still, they are not unsuitable to the case of a madman who knows an action to be criminal but thinks it to be right, except, as I have said, when the impulse to the action may be fairly called irresistible. " The great object of the cri- minal law is to induce people to control their impulses, and there is no reason why, if they can, they should not control insane impulses as well as sane ones 60 ." A fortiori do such considerations apply to cases where there is no conviction of Tightness or supernatural obligation, but merely the apparent absence of ordinary motives. Of the greatest importance, too, is the caution given by the same author 51 , that madness or sanity is, for legal pur- poses, a quality, not of the mind or body, to be classed in certain genera by physicians ; but of the individual's conduct, to be settled by lawyers, according to the presence or absence of the essentials of criminal liability. Criminal liability of infants. Will, understanding, moral discernment, and a wicked or mischievous disposition are so inextricably confused in Blackstone's account of the criminal liability of young persons 62 , that one must agree on the whole with Austin's sweeping censures. On one point, perhaps, Blackstone is right in asserting, and Austin wrong 48 Stephen, G. V. 94. Taylor, P. and P. 2, 574. The case is not repeated in the last edition of the Manual. 49 G. V. p. 96. 50 ib. 95. 61 Compare G. V. p. 87 and Digest Appendix, note 1, pp. 331, 2. 52 Bl. Comm. 4. 2, 22—24. Digitized by Microsoft® p. j> 68 ANALYSIS OF CRIMINAL LIABILITY. in denying, that there may be an absence of will in very young children 58 . The presumption juris et de jure against liability for capital crimes M under seven, was a rough and ready method adopted when a great number of crimes were capital, which are not so now, doubtless from a natural reluctance to inflict the sentence 55 . Between the ages of seven and fourteen English law pre- sumes infants doli incapaces K , this however being only a prce- sumptio juris, rebuttable by proof that the infant had a power of discernment between good and evil. These words appear to indicate knowledge that the conduct was wrong. In two instances, however, mentioned by Hale, of malice or doli capacitas, in young children, the subsequent acts of the accused rather shewed that they knew their conduct to be punishable 5 ''. According to Sir James Stephen's digest of the present English law, no act done by any person over seven and under fourteen years of age is a crime, unless it be shewn affirmatively that such person has sufficient capacity to know that the act was wrong 6 ". Whether he contemplates a difference between knowledge that an act is morally wrong, and illegal, here, is not clear : he does so in the case of insanity directly follow- ing 69 . The code combines "sufficient intelligence to know 63 Austin, Lect. 26, p. 511. 64 1 Hale, P. C. 26, 27. Blackstone, Comm. 4. 2, p. 23. " No act," ac- cording to Stephen (Digest, Art. 25) " done by any person under seven years of age is a crime. The Code (§ 20) enacts that no one whose age does not exceed seven years shall be convicted of any offence. 65 On which account Stephen seems to think the presumption now un- necessary. G. V. 86. » 6 Hale, 1 P. C. 25—27. Blackstone, Comm. 4. 2, pp. 23, 24. 57 The cases are No. 30 of 12 Bdw. HI. (Liber assisarum) and No. 4 Hil. 3 Hen. VII., (Reports des Cases). There is clear indication of the same knowledge in the case of William York, Foster (Report), pp. 70—72. 68 Stephen, Digest, Art. 26. » ib. Art. 27, note 5, Digitized by Microsoft® ESSENTIALS OF CRIMINAL LIABILITY. 69 the nature and consequence of conduct and to appreciate that it was wrong" ." And, as a matter of convenience, the two kinds of knowledge will probably continue to be taken toge- ther, in the case of infants. This chapter may be concluded with a few notes upon Roman law on the subject of the exemption of young per- sons from criminal liability. In Roman law the literal meaning of infans continually recurs, and somewhat obscures the legal definition of infancy as a period of life. Inability to speak was of course im- portant to the stipulation, which must be oral 61 . Want of intelligence, as to civil acts in law, is the ground on which both the infans and infanti proximus are put on much the same level with the madman by Gaius 62 . And the acquisi- tion of speech is distinctly disregarded by Arcadius and Honorius, who fix, for one civil purpose, the termination of infancy at seven 63 . This appears almost as a general defini- tion a little later 64 , though Theophilus in his Cpmmentary on Justinian's Institutes, while mentioning seven or eight as the time when a child begins to speak, plainly makes the entry upon the age known as next to infancy depend upon the latter fact 65 . Blackstone's general statement that children under ten and a half were at Roman law not punishable for any crime 66 has no support in the passage quoted by him 60 Code, § 21. 61 Ulpian, Digest, 45. 1. 1. pr. Stipulatio non potest confici nisi utroque loquente : et ideo neque mutus neque surdus neque infans stipulationem oon- trahere possunt. 62 Ga. 3. 106. Furiosus nullum negotinm gerere potest quia non in- telligit quid agat (cf. Just. Instt. 3. 19. 9, 10). Ga. 3. 109. Infans et infanti proximus non multum a furioso differt quia nullum intelleotum habent. 63 Codex Theodosianus 8. 18. 8. 64 In a constitution of Theodosius (2) and Valentinian a.d. 426. Infanti id est minori septem annis. Codex (Justiniani), 6. 30. 18 pr. 65 TheopMus, 3. 19. 9. m Blaokstone, Comm. 4. 2, p. 22. Digitized by Microsoft® 70 ANALYSIS OF CRIMINAL LIABILITY. from the Institutes 67 , a work confined almost exclusively to civil matters. The other references given by him, to the Digest, bear upon the civil liability for delict 68 and the criminal liability in general 69 , of a person not arrived at puberty, if he is culpce or doli capax or has rei intellectus. The cases apparently make out a prwsumptio juris of general incapacity to commit wrong, public or private, under pu- berty; rebuttable by evidence of capacity, at any rate in the age called next to puberty, the limits of which are not very clearly settled. Puberty itself was fixed by Justi- nian at completion of the 14th year for males and the 12th for females' . 67 The passage quoted as Inst. 3. 20. 10 is now numbered 3. 19. 10. 68 Dig. 50. 17. Ill pr. Pupillum qui proximus pubertati sit capaoem esse et furandi et injuriae faciendae. Dig. 47. 2. 23. Impuberem furtum faeere posse si jam doli capax sit Julianus...scripsit. Item posse cum im- pubere damni injuriae agi...in infantes id non cadere. See too Paul. Sent. 5. 4. 2. 69 Dig. 29. 5. 14. Ejus aetatis, quamquam nondum puberis, ut rei in- tellectum capere possent, his non magis in caede domini quam in ulla alia causa parci oportere. 7» Just. Instt. 1. 22. pr. Digitized by Microsoft® CHAPTER VI. DEGREES OF CRIMINAL LIABILITY. A. Major Criminality. Intention. The list of the essentials of criminal liability is now con- cluded. They fall, as has been seen, into two groups. First; an event, which is 'criminal' if a consequence of human con- duct, and a connexion, not too remote, of that event with the conduct of some person — henceforth called the offender. These are respectively matters of particular municipal law, and evidence. Second; certain mental conditions or capaci- ties of the offender, namely — volition, knowledge of the con- sequences of his conduct, and knowledge that his conduct was wrong. These last are recognized as essential to criminal liability, with more or less distinctness, in all civilized systems of justice. They are generally matters of legal presumption, to be rebutted by evidence, either that the offender belongs to a class in whose behalf a counter-presumption holds, or that one or more of the essentials is wanting in his particular case. If all the essentials are present, the offender must be in some degree criminally liable. The degree is often indi- cated by different' names for the crime, where the resulting consequence which gave rise to the whole procedure is the same. And, not only here, but where there is one simple degree of criminality attached to a particular class of criminal Digitized by Microsoft® 72 ANALYSIS OF CRIMINAL LIABILITY. consequences, the crime has, in all serious cases, acquired a specific lega]. definition, the points of which must be substan- tively proved. These points often combine, with some 'of the essentials above described, other facts of the offender's consciousness. In other words "the corpus delicti, or total of his offence 1 , in most cases includes some matter of motive or intention not hitherto noticed 2 . Motives. I do not know that the term motive is very largely used in practical law: but as it is often used in treatises of jurisprudence and that sometimes in a lax and sometimes in a strict signification, I may here quote some Useful dicta from the best authorities known to me on the subject. Strictly, according to Austin 3 a motive is a desire causing and preceding a 'volition' — it is a wish for some object not to be attained like an act proper (i.e. bodily movement) by the mere wishing for it (a 'volition') but by means, inter alia, of volitions. There may obviously be motives of motives—' the desire for a certain end will lead to the desire for the means to that end, and the latter to a volition 4 . In this case the desire for the ultimate end will generally, be what is understood as the motive par excellence; though perhaps this is more strictly true of the ultimate end for the time being 5 . The above is the strict and proper sense of motive 11 : it is however often used improperly for the end or object desired 7 , 1 See Austin, Leot. 24, pp. 479, 80, for this phrase. 2 For specific intention see the end of this chapter. 3 Austin, Leot. 18, 19, pp. 428, 432. * ib. " Markby, p. 101, § 207. 6 Cf. the words of Bramwell, B., in B. v. Haynes. 1 Foster and Fin- lason, 666. * How easily and naturally the term motive is transferred from a desire to the object of that desire, or even to the object of an aversion, may be seen from Austin's own expression "the sanction" (contingent evil) "cannot Digitized by Microsoft® DEGREES OF CRIMINAL LIABILITY. 73 in which case it generally means the ultimate end for the time heing. Intention. Passing, however, now from the term motive to the thing, I proceed to consider the desires or other mental condition, besides mere capacity, of a person to whom certain criminal consequences are in some degree imputable. First, these consequences may have been distinctly desired by him, either as end or means. This case excludes the idea of omission, or not doing a thing because we never think about it. It obviously includes the expectation of the conse- quences of our conduct, or the knowledge that such conse^ quences are likely to result from such conduct — and some- thing more. If we wish for a result, and we act so as to produce that result, we set ourselves to produce that result by our conduct. And this I cannot but believe to be the original meaning of Intentio : — the setting (literally aiming) of oneself and one's powers to bring about a certain result 3 . The meaning of intention in French 9 , from which lan- guage I suppose we received the word, of intent in the language of our old common law 10 , and of intention in its ordinary modern English use, is pretty nearly equivalent to operate as a motive," p. 505, and Bentham's very confused and loose chapter "Of Motives" (Introduction, ch. x.). 8 I put together a few instances : — (1) mere aim or direction: proficisci quo te dicis intendere. Cicero de Orat. 2. 42. 179 ; hence (2) attack: intentio ac depnlsio (in suits). Quinctilian, Inst. 3. 9. 11; or (3) design, purpose : intentio tua nt libertatem revoces. Pliny, Pa- negyr. 78 ; (4) intentio as part of the formula : qua actor desiderium suum concludit. Gaius, 4. 41. This appears to include both (2) and (3). This last is the commonest meaning in the Digest, passing sometimes into that of simple assertion or allegation ; e.g. Digest, 8. 33. 1. 9 From Jolnville downwards. See Littre 1 . 10 Stephen (G. V. 305) calls intent the end contemplated at the moment of action. Is it not rather the contemplation of the end? Digitized by Microsoft® 74 ANALYSIS OF CRIMINAL LIABILITY. .design,. purpose, and perfectly consistent with the original idea of setting oneself to attain a certain result. Such an intention may obviously be true either with reference to present or future conduct: the only difference being that the intention is sometimes hasty, sometimes deliberate. Austin's Intention. I must now consider in some detail the narrow sense given by Austin to the word intention — by which he certainly sometimes means merely strong expecta- tion — because it is an important divergence from the ordinary meaning of the word, and it is undoubtedly of weight and effect with many juristic authorities. 1. "With regard to a preset act. The act itself — in a strict sense — i.e. the bodily movement, is, we are told, intended because it is expected 11 . Surely the expectation that an 'act' will follow a 'volition' is scarcely ever consciously entertained? If not, it is an invention as gratuitous as The Will, according to Austin's view of the latter 12 . As to the consequences of a present act: to expect any of its consequences is to intend them 13 . It does not follow that they are desired, as they may be intended without heing desired 14 , with the exception of the present pleasure or satis- faction from the act 15 , which must be both intended (expected) and desired 16 . Here, I think, a distinction must be drawn between some of the consequences of a present act and others. There are, as I have shewn above", certain immediate consequences of bodily movement, popularly coupled with it under the name of act, and sometimes said to be willed, as to which there would be, with most people, the strongest pre- sumption, (only rebutted by a counter-presumption from very 11 Austin, Lect. 19, p. 434. " g ee a b ovei cn . ln> p . 26. 13 Austin, Leot. 19, p. 433.] " ib. 434. » ib. 435. m id-^i^p^S^soft® " Chapter in. pp. 23, 21. DEGREES OF CRIMINAL LIABILITY. 75 early age or by proof of weakness of mind or extraordinary inexperience), that they were both expected and wished to happen. Such consequences, therefore, are in all cases but the exceptional ones just indicated, assumed to be intended in the popular sense, as well as in that of Austin, and in the modified Austinian sense which I take Sir James Stephen to attach to the word. Accordingly, as there are very few bodily movements known as actions or acts, which do not carry with them some of these immediate consequences, the statement of the last-named author, that intention is essen- tial to an action 18 is generally true. As to more remote consequences, the presumption does not arise with equal strength, that they were expected at all, or, if expected, were also wished. It is of these remote con- sequences that Austin is speaking when he says that they may not be intended 19 , and may be intended but not wished 20 , of which last case he gives a strong illustration, meant for a future act, but applicable to a present one as well 21 , where the intending agent "intends a consequence from which he is averse™." 2. Intention as to & future act. But the strongest statement of Austin's intention is what he says about it with regard to & future act. Here, we desire certain consequences, we believe that they are attainable through our conduct, we believe that we shall do acts in the future for the purpose of attaining those consequences 23 : and this is, according to our author, all. "A present intention to 18 G. V. 81. w Austin, Leot. 19, p. 434. 20 ib. 435. sl id. Leet. 21, p. 453. " I intend to shoot at and Mil you... but knowing that you are always accompanied by friends... I belieye that I may kill or wound one of these in my intended attempt to kill you." Translated into the present tense and into real life ; Orsini, at the moment of his attempt, intends to kill the republican individuals who are as sure to be in the street about the Emperor, as the Emperor's friends to be about him. Itane veto ? 22 iJ >- Digitized /Mfoifflfe 21 > P" 449 - 76 ANALYSIS OF CRIMINAL LIABILITY. do a Future act is nothing but a present belief that we shall do an act in the future 24 ." Such expressions as "that we have resolved or determined on an act" only mean "that we have examined the object of the desire and have considered the means of attaining it, and that, since we think the object worthy of pursuit, we believe we shall resort to the means which will give us a chance of getting it 25 ." Consistently with the above views, Austin holds that forbearances are intended but not willed™, by which he means that, in a forbearance, there must necessarily be a contemplation of consequences which are to be prevented, though he cannot admit, according to his view of volition, that anything is willed". And, in pro- testing against Bentham's confusion of Will and Intention (which is certainly very inconvenient) he tells us that, though .will implies intention, intention does not imply will. Of which aphorism, and the passage wherein it is imbedded, I have- attempted a translation in a note 28 , for the benefit of those who may be puzzled with it, as I have been myself. Austin adds several expressions used in juristic language — the intention of legislators — of testators — of parties to a contract — and endeavours to shew how each may be reduced to one of the notions — present volition and act with expecta- tion of a consequence, or present belief that one will do an act in the future 29 . In the last case, his note materially varies 24 ib. p. 451. » ib. 26 id. Leot. 19, pp. 437, 8. 27 Above, chapter hi. p. 42. 28 Austin, Leet. 19, p. 434. "Will implies intention (or, the appropriate objects of volitions are intended as well as willed)," i.e. the primary bodily movements which are the objects of, and immediately follow, volitions, are not only willed, but also intended, i.e. expected (see above, p. 74). "In- tention does not imply will : or, the appropriate objects of certain intentions are not the appropriate objects of volitions." These certain intentions are all intentions, except the intentions (expectations) of primary bodily move- ments. The next words — " The agent may not intend a consequence of his act" — belong to a new subject and should begin a new paragraph. 28 Austin, Lect. 21, pp. 455, 6. Digitized by Microsoft® DEGREES OF CRIMINAL LIABILITY. 77 from his text, containing the truer Tiew that the intention of contracting parties is that of both the promiser and promisee jointly. In all three his explanation is filled with unneces- sary difficulties, from his resolution to substitute, for the meaning 'purpose or object,' that of mere expectation 30 . Some writers of eminence directly follow Austin in his meaning of intention" 1 : with others 82 that meaning is appa- rently coloured by reference to the derivation of the word : with others 33 by some consideration also of its popular mean- ing. The last contribution to the subject is obviously the most important for the purposes of the present work. Inten- tion is, according to Sir James Stephen 34 , "stretching to- wards" fixing the mind upon the act and thinking of it as one which will be performed when the time comes." These words apply more properly to deliberate than to hasty inten- tion but are evidently, from what he says afterwards 35 , meant for both. Again: — "Intention is the contemplation by the mind of the one common result to which many combined movements are directed 36 ." And as most so-called actions will be such "common results" — not simple bodily movements, or mere combinations of simple bodily movements : as, in fact, some of the immediate consequences of an act proper (in Austin's sense) are in almost all cases connected, in popular belief and language, with it: intention is, generally speaking, an element of action 37 . 30 Apart from the question, whose intention is meant by 'the intention of contracting parties,' the expression is a somewhat difficult One. It seems to me to have first indicated the purpose or object of the parties in making the contract ; then, the meaning of the words, as used by them, in which they endeavoured to express that purpose. 31 e.g. Markby, § 214, p. 105. M e.g. Poste, Gaius, p. 13. 33 e.g. as I think, Sir James Stephen. M G. V. p. 77. 35 ib. p. 78. This process... may be compressed into an innnitesimally small space of time. 36 G. V. pp. 77, 8. w ib. 81, and above, p. 75. Digitized by Microsoft® 78 ANALYSIS OF CRIMINAL LIABILITY. In this last account of intention, the author does not appear to me to make it perfectly clear when he is speaking of primary actions or primary results; and when, of the results or consequences which are ultimately desired or con- templated. He also does appear to be giving rather a mean- ing of ai-tentio "fixing the mind upon an object" — a meaning which is, I am aware, borne by intendere also — than the special meaning of intentio, "aiming or directing one's powers at a certain result." Consequently, though certainly more correct than Austin, who omits or does not state with any clearness the fixing the mind upon the act, he understates the original derivational sense of the word as well as that in which it is now popularly used. If, as would seem desirable in a practical matter like criminal law, we are to go by the general modern meaning of intention, we must absolutely discard Austin's use of the word as being too wide with regard to the objects of expectation which it includes— too narrow with regard to the feelings of the mind which it denotes. Does any one, in ordinary life, ever speak of 'intending' a consequence from which he is averse? Does any one, in ordinary life, ever mean by 'intention,' expectation without desire ? * Austin's was, probably, an attempt to include under the one term 'intention' conduct where intention really exists. and conduct which may be reasonably considered equally criminal as if intention existed. I refer, in the latter in- stance, mainly to the cases where the legal construction or presumption of malice has been employed — the chief principle of which cases appears to be, that the natural consequences of a man's act (including forbearance) are to be imputed to him. For the expulsion of this confused and misleading term malice I hope to shew some reason in, the next chapter: feu^|he y ^rjngy^e of my objection to DEGKEES OF CRIMINAL LIABILITY. 79 that word applies with equal strength in the case of Austin's intention. If the different states of criminal consciousness can be designated by different terms, there can be no benefit in con- fusing them by the misuse of a word clearly enough under- stood in ordinary parlance. Austin, himself, in fact, in the brief but very valuable notes on Criminal Law 38 , reverts to the natural meaning of intention, when he recognizes a sub- division of criminal knowledge into criminal design [intent or purpose] and criminal knowledge short of criminal design. The first is "where the production of the mischievous conse- quence which the law seeks to prevent is an end (or object) ultimate or mediate of the criminal ; and where, therefore, the criminal wishes (or wills) the production of it 39 ." Of the second I shall treat presently. On the subject of intention in general, enough has been said : but a few words must be added, first, on intention with reference to a future act ; in other words, deliberate as opposed to hasty intention; second, on what Sir James Stephen terms specific intention. With regard to the feelings of the mind in deliberate intention, we do, I believe, whether rightly or wrongly, include in our idea 'of it, not only expectation and desire, but even something else. Where a desire of consequences, believed by us to be attainable through our conduct, takes the form of intention, resolution or determination; is it not an incorrect use of lan- guage to talk of believing*" that we shall act in the necessary manner? If this is a belief, it is one like the American's believing he will take a cup of coffee, so different from other beliefs that it ought to have a distinctive name. 38 Austin, Noted on Criminal Law, p. 1093 (of the Jurisprudence). 39 ib. i0 Austin, above, notes 23, 24, 25. Digitized by Microsoft® 80 ANALYSI8 OF CRIMINAL LIABILITY. It is true, as Austin says, that even "resolutions" and "determinations" are not conclusive of the will but are ambu- latory or revocable": but I believe that when we use these terms, (and even when we speak generally of intention to do a, future act,) a certain bent given to the mind, a certain weaken- ing of the mental power to forbear when the time arrives, is rightly connected by us with the particular form of desire and expectation. In a morbid state of mind, this weakening of power to forbear may go so far that the bent may be inflecdble, or the propensity, to put the matter in another way, uncon- trollable — as in the suggested defence of Dove 42 . But this extreme case appears to be only different in degree, not in kind, from any determinate and deliberate intentipn. In the case of intention with reference to a present act, there is not time (if one may permissibly apply the language of the external world to the operations of the mind), for this bent of the mind to be formed: but there remain the elements of expectation and desire. The latter is the criterion of dif- ference between the hastiest intention and the most deliberate criminal knowledge. In heinousness or danger to the com- munity, the latter frame of mind may doubtless be often worse than the former; but it certainly seems both more intelligible and expedient to class all real intention together, recognizing hastiness, with provocation and other matter of excuse, rather as extenuating the first, than constituting a second degree of criminality. Specific intention. Sir James Stephen lays it down that for any action to be a crime it must not only be intentional, in the general sense which he explains as above stated 43 , but must also be accompanied by a specific intention forbidden by 41 Austin, Leot. 21, pp. 451, 2. 42 See Sir James Stephen's very valuable remarks, G. V. 401, 43 Above, notes 34—37. Digitized by Microsoft® DEGREES OF CRIMINAL LIABILITY. 81 the law iu that particular case 41 . And Austin, consistently with his view of the order of things, makes abstinence, from a set of such specific intentions coupled with certain actions, into a set of original legal duties* 5 . It is undoubtedly the case that, with most crimes, some special statement of the intention of the offender has become part of a legal definition of the crime. In what we English call common law, this evidently arises from the fact that judges must sooner or later find it unjust or inexpedient to place all people, who produce the same primA facie criminal result, on the same footing, even though they may have intended it not only in Austin's, but also in the ordinary sense of the word. That is, it is found that certain consequences, primd facie injurious to society, may be intentionally produced, from an ultimate motive to which no criminality at all or only a minor degree of criminality can be attached. Hence the animus furandi required in larceny**, the felonious intent in burglary", the malicious wilfulness in arson**. Later, the intent to defraud in forgery 49 , and the numerous cases of crime by statute 50 where some special form of intention enters into the enacted definition. In the dictum, however, that specific intention is essential to every criminal action, I cannot but think that the word specific is employed in an unusual sense, if we find that the specific intention "is more frequently denoted by the 44 G. V. 81. 45 Austin, 24, p. 479. It is, by the way, perfectly clear that intention is here used in the ordinary sense. 46 Blackstone, Comm. 4. 17, p. 232, n. 5. In Boman law, liability to the civil obligation of furtum is constituted by mere knowledge of the owner's non-consent, which is somewhat improperly called affectus furandi. Just. Ihstt. 4. 1. 6—8. 47 id. 4. 16. 227. * id. 4. 16, pp. 220, 222. 49 Blackstone, 4. 17, p. 248. Cf. Stephen, Digest, Art. 267. 60 e.g. wounding with intent, &c. See Stephen, G. V. 81. C. Digitized by Microsoft® 6 82 ANALYSIS OF CKIMINAL LIABILITY. general term malice"." For that most unsatisfactory of all legal expressions extends to intention so general and vague that in some cases it is doubtful whether we can retain the word at all with any propriety, and should not rather substi- tute, knowledge. Malice, however, is of sufficient interest and difficulty to require independent consideration. a ib. 81. Digitized by Microsoft® CHAPTER VII. DEGREES OF CRIMINAL LIABILITY, CONTINUED. A. Major Criminality. Malice. Austin is sometimes quoted as an authority for the state- ment that the English legal term Malice simply denotes intention. Although, however, one passage 1 rather gives colour to this view, it is not a fair one to the author, who points out, in a very good note 2 , that the term has been extended ' abusively ' to negligence (or criminal inattention), and to criminal knowledge short of criminal design. With Austin's objection to the use of the term few will disagree. All attempts at giving a clear and uniform meaning to this word malice, as used in English law, appear to fail. It may, however, be of some use to trace down, in historical order, so far as that is possible, its principal usages, to shew what essentials or degrees of criminality they indicate, and by what clearer expressions they might possibly be replaced. Malitia, with the Roman Jurists, occurs, like most of their terms which have descended to us, mainly in con- nexion with civil cases. Avoiding the name, which has become technical, and therefore artificial, of fraud, I should 1 Austin, Lect. 12, p. 355. 2 Notes on Criminal Law, p. 1093 (of Jurisprudence). Digitized by Microsoft® • „ ~ 84 ANALYSIS OF CRIMINAL LIABILITY. translate malitia almost everywhere where it occurs inde- pendently, in the Code or Digest, by trick or trickery. Such is clearly the sense in which a minor's malitia " makes up for his want of age 3 ." This well-known maxim, due in the first instance to the emperors Diocletian and Maximian, has been applied by, our English jurists to criminal law, as expressing the doctrine that a proved individual capacity of doing ill or contracting guilt will remove the prima facie non-liability of an infant for criminal actions 4 . Where malitia is opposed to error, in one of the few passages bearing upon criminal or penal cases in which we find the word, it may be rendered unlawful design as intention 6 . And in several instances malitia is used as directly equivalent to dolus". It is not, however, my in- tention to enter into an examination of the latter word (dolus) here. Suffice to say that dolus is of course short for dolus malus 7 , and on the whole means direct evil inten- tion, dolus indiractus being a purely modern phrase and idea 8 . One important meaning of the classical malitia yet 3 Dig. 44. 4. 4. 26. Julianus.. .soripsit doli pupillos qui prope pubertatem sunt capaces esse. Quid enim si debitor ex delegatu pupilli pecuuiam creditori eius solvit ? fingendus est, inquit, pubes esse, ne propter malitiae ignorantiam bis eandem peeuniam consequatur. Cod. 2. 43. 3. Si, altering circumveniendi causa, minor aetate majorem te probare aspectu laboraveris, cum malitia suppleat aetatem, restitutionis auxilium...denegari statutum eBt. See also siglorum malitias, Cod. 1. 17. 2. 22, by the side of siglorum captiones. id. 1. 17. 1. 13. 4 1 Hale, P. C. 26, quoting Fitz-Herbert's Eeporte Corone, 118. The original is No. 30 Trin : 12 Edw. HI. 6 Codex 9. 23. 5. Sed secutus tenorem indulgentiae meae poenam legis Corneliae tibi remitto, in quam credo te magis errore quam malitia incidisse. « Digest, 44. 4. 4. 26 (note 3). Ci. 44. 4. 4. 1, 3. 7 The general signification of calliditas, covering also dolus iorvm or 'pious fraud,' with which we have nothing to do. See Austin, pp. 480, 1 and 445. 8 Austin, 11. co. _. ... . . ... „„ ' Digitized by Microsoft® DEGREES OF CRIMINAL LIABILITY. 85 remains. The plural, at least, is used in the evident sense of spite", the sense most often attached to the word in modern times. It is to the introduction of the word malice. in this last meaning, into the definition of murder — and subsequent recurrence to the derivation from malus, which arose from the necessity of extending that meaning, in that definition — that the inextricable confusions of our English malice are mainly due. Malice in murder. Homicide is left by Glanville, as he very well might leave it, without definition : murder is, with him, merely clandestine homicide 10 ; the name and the special procedure being possibly due to the times when a subject people resorted to assassination of their alien oppressors 11 . Bracton follows Glanville as to the special characteristic of murder, making it, however, a subdivision of such homi- cide as is voluntary, distinguished from that which is iu the course of justice, by necessity, or by accident™. Homicide is according to bim voluntary, if it is committed of certain knowledge, in a premeditated assault, from anger or hatred, or for the sake of gain, wickedly and feloniously, and against the king's peace 13 . If we compare this with another defini- 9 Dig. 6. 1. 38. Neque malitiis indulgendum est, si teotorium puta, quod induxeris, picturesque eorradere velis, nihil laturus nisi ut officias. 10 De Legibus, &o. 14. 3. Duo autem sunt genera homioidii : unum est quod dicitur murdrum, quod, nullo vidente, nullo seiente, clam perpetrator, praeter solum interfectorem et ejus complices, ib. § 223, p. 110. 31 Ch. in. ad finem. 3S Stephen, Digest, eh. 22. Code, Pt. 15. 33 ib. Arts. 213—5, §§ 159—161. See also Code, §§ 223—226 (Pt. 22), (corre- sponding to Digest, Arts. 26^2g6j^ig-h^eh,^jgl^pparently come in Part 15. 108 ANALYSIS OF CRIMINAL LIABILITY. and those most clearly stating the principle in point, are in- cumbent upon all persons having or undertaking any charge where either act or omission may endanger human life 34 '. Here the employment of reasonable knowledge and skill, of reason- able precautions and care, is made a legal duty; and the corresponding negligence, whether coupled with positive acts or not, a criminal offence 35 . Neglect in respect of public offices, and neglect to assist in the preservation of public order, are exceptional cases which, however, do not present any difficulty 36 . Bentham 37 would extend the application of criminal sanctions to the " refusal or omission of a service of hu- manity when it would be easy to render it, and some distinct ill results from the refusal." He certainly gives some very strong instances of forbearance or omission 88 . How far * it is advisable to transfer the " rules of beneficence'' from the domain of morals to that of legislation is doubtful. But such a transfer is at any rate, as yet, rather matter for the reformer and politician than the jurist or practical lawyer, 34 For the present law, Stephen, Digest, Arts. 216, 217. Several im- portant points are added or more clearly stated in Code, §§ 162 — i. 35 In both classes of cases it would seem that a positive legal duty must be alleged in the indictment. See E. v. Edwards, 8 Carrington and Payne, 612, and E. v. Barrett, 2 Carrington and Kirwan, 345. I do not see that this point is overruled in Hughes' case (Dearsley and Bell, 250) as Eussell seems (i. 833, note k) to intimate ; though perhaps, in the case of what may he called a natural duty, it might he sufficiently expressed by a mere state- ment of the relation of the parties. 38 Stephen, Digest, Arts. 122, 123 { Code, §§ 117, 118. 37 Introduction, p. 323. Principles, Dumont, tr. p. 65. 38 Note to Int. p. 323, There could not be a very much stronger instance than the conduct of certain bargemen, as stated in a letter to the Times (July 23, 1880), while these sheets were in preparation for the press. Digitized by Microsoft® CHAPTER X. GENERAL REMARKS. The principles, which I have endeavoured to make out in the preceding chapters, are as I conceive, axioms or prelimi- nary matter to criminal law in general, which are admitted by the practice of most civilized countries. There must be an injurious event reasonably connected with the conduct of some human being and not justified or excused by law; otherwise there is no offence and no offender. The offender must have been "able to help" his conduct; able to foresee the consequences of that conduct; able to know that that conduct was wrong : otherwise he will be, generally speaking, totally exempt from criminal liability. Of his criminal liability, again, there may clearly be two degrees: a major degree, when he either directly intended the criminal consequences or must have expected them to result: a minor degree, when he probably did not expect, but might fiave expected, the same consequences to result. In this minor degree of liability, resulting from inadvert- ence, there will be various classes of cases ; as the conduct is positive or negative or both combined, the inadvertence pre- sent or remote, the state of things more or less likely to have suggested the actual result : but I do not think any general rule as to the relative amount of criminality can be laid down between them. Axioms such as these are, like the geometrical axioms, no a priori assumptions, but rules found necessary in actual Digitized by Microsoft® 110 ANALYSIS OF CRIMINAL LIABILITY. experience: they are, in fact, generalizations from judicial observation. A time may, it is hoped, be coming, when such legal rules may be brought into a form as exhaustive as we believe their mathematical congeners to be ; and when crimi- nal law generally will receive little, if any, addition from later cases, because a new point can scarcely arise. Such is the hopeful view which has led Sir James Stephen to regard the English criminal law as now ripe for codifica- tion, and, in particular, to prepare that admirable Digest which has rendered codification actually possible 1 . Yet, however near we are to the day, which so many generations of law- reformers have desired to see — and have not seen — there may be some little doubt whether the generalia or preliminary matter, considered in this work, can be quite satisfactorily concluded within the limits of an ordinary English statute. It is not that they are rather matter for courts than for private individuals — that is true of all modern law. It is rather that they must require, however well-drawn, continual illustration by both actual and hypothetical cases. This desideratum is very clearly expressed by Sir James Stephen himself, where he speaks of the possibility of giving a literary form to Acts of Parliament 3 . In the Indian Evidence Act, drawn by the same author, such a system of illustration was adopted: but it is question- able whether this form of statute would be likely to be passed by a British Parliament. In order, therefore, to attain the highest practicable utility, such a work as the Digest, if it could not, as it probably could not, be enacted en bloc, ought to accompany the statute, which does enact its substantive " provisions, on as nearly equal a footing as possible. This reasoning applies, more or less, to the whole of a code; but I think most strongly to its general and preliminary matter. When, therefore, our criminal code finally emerges from 1 Digest, Int. xiv. xv. 2 ib. xx. Digitized by Microsoft® GENERAL REMARKS. Ill the crucible — perhaps one should rather say the battle-field — of Parliament, its surviving clauses might be furnished with a most valuable comment, in a rearrangement of the contents of the Digest, under those clauses. If recognized by our tribunals as a fair statement of "common law" old and new, such a comment would have practically the same authority as the text. It would also afford a rationally arranged receptacle for such additions as future cases might necessitate. The evil of unnecessary reporting 3 must continue to some extent, unless the judges could find time to select, very shortly after decision, those cases which appeared to them to contain anything worth record, and to throw aside the rest. But it would be possible for yearly compilers, whether official or not, to reduce and generalize, under intel- ligible divisions, the matter which has not always met with such treatment hitherto in our reports and text-books. 3 ib. xv. Digitized by Microsoft® Digitized by Microsoft® INDEX. Accessories 99 Accidental acts 33 — consequences 51 — — resulting from unlawful act 52—4 Acts 21—24 — Austin's definition of 23 — as popularly understood 23 — of the will or internal acts 21, 22 Attempts 15 — 17 Austin v. — vii. Beneficence, how far a matter for law 108 Childhood, actual or virtual uncon- sciousness of 31 Civil subjection 38 Commandment of the law 38 Compulsion, physical 33 Consequences, immediate, included under act 23, 24 — nearness or remoteness of 16, 17 Conspiracy 16, 37 Constraint 33—39 — actual and virtual 34 — legal 38 C, Digitized by Crime, definition of 2 — and guilt 18, 19 Criminal knowledge ch. vii. — expressed or inferred 97 Corpus delicti 72 Correction, cruel and unusual 98 Culpa 18, 19 Degrees of criminal liability chaps, vi. — ix. — — resumfi of 109 Delusion as to consequences of con- duct 50, 51 — as to wrongness of conduct 65—67 Determination 76, 80 Disablement of offender 6 Drunkenness 29 — intentional, involuntary, vo- luntary 30 — English rule as to, and Black- stone's reason for it 30, 31 — true ground for liability in 31, 104 Dwess per minas 36 Essentials of criminal liability chaps, ii. — v. — resume of 71, 109 Microsoft® 8 114 INDEX. Events 12 — external or sensible 13 Exemption, propriety of the term 8 Experience, a general standard of, assumed 46 — a special standard among pro- fessional men 47 Forbearance and omission 39 — 44 — — both presume volition 41 — narrow meaning of 40 — Austin's difficulty as to 42 — Hobbes and Locke on 42, 3 — presumption in 43 — when criminal. 43, 107 Furious anger 38 Guilt 18, 19 Heedlessness 102, 103 — true ground of liability in drunkenness 31 Homicide se defendendo 35 — per infortunium 51, 52 Ignorance (inevitable) of fact 32 — of law, Roman rule as to 55, 56 — — English rule as to 56—59 Imagining and compassing 15 Imperitia 104 — 6 Imputability 18 Inadvertence 41, chap. is. Incitement 16 Infant 69, 70 Infant 63, 69—70 Insanity, general 49, 50, 63 — partial 50, 51, 63 — a matter of conduct 67 Intentio 73 Intention chap. vi. — according to Austin 74 — 79 Digitized by Intention, deliberate 79, 80 — specific 80 — in attempts 15 Irresistible impulse 37, 66 Judex litem suam faciens 105, 6 Judiciary law, Austin on 59 Justification and excuse 14 Knowledge, when meaning expecta- tion 45, 46 — criminal chap. viii. — of the consequences of conduct chap. iv. — that conduct was wrong chap, v. — of law, general or particular 59 Law, Austin's definition of 1 — in its practical form 9 Liability 18 Lunatics, deficiency of will 28 — or idiots 29 Malice, chap. vii. — identified with wickedness 61 — in young children 68 — in murder 85 — 90 — arson 90, 91 — mischief 91, 92 — libel 92, 93 — general meaning of, in law, and objections to its use 93—95 — prepense 86, 87 — against all mankind 89, 98 Malitia 83—85 Married woman, exemption of 38 Medical practitioner, his positive duty 105 — — unqualified 105 Moral insanity 65 Microsoft® INDEX. 115 Motive, absence of 67 — definition of 72 Negligence 103—8 — professional 104 — criminal 107 Omission, ambiguous uses of word 40,41 Overt act, evidencing intention 15 Peril, doing a thing at a man's 33, 54 Physical compulsion 33 Presumptions, legal 19, 20 Preventive end of criminal sanction 8 Professional experience 47 — negligence or incompetence 104—6 — extension or explanation of the principle 107, 108 Promulgation, why not necessary, ac- cording to Blackstone 57 Publicity of procedure and punish- ment 10 Punishable or wrong? 61 Punishment, what 2 — vicarious 2 — as derived from poena 4 — ex post facto operates not as a warning 7 Purification, an obsolete end of pun- ishment 4 Eashness 101, 102 Eemote inadvertence 104, 106 Eevenge and resentment 5 Eoman law and Jurisprudence v. Sanction, criminal ch. i. — magisterial 1 — different sorts of 1 — an evil 2, 4 — ■ procedure as to 3 — • ends of civil and criminal 3 — ■ vindicatory 4, 5 — paramount end of criminal, prevention 6 — Blackstone's statement of 6 Self-preservation 35 Sleep 27 Somnambulism 28 Specific intention 80 — 82 Unavoidable necessity 35 Unconsciousness, actual 27—31 — virtual 31, 32 Vindictive satisfaction 4, 5 Virtual constraint 34 — unconsciousness 31 — 33 — intention chap. viii. Volition of offender, chap. hi. — what 25—27 — and volitions 26, 27 Voluntary 25 Will, deficiency of, according to Blackstone 25, 38 — in lunatics and infants 28 — The 26, 27 Wrong or punishable? 62, 63 — meaning of 62, 64 cambeidge: printed THE UNIVERSITY PEESS. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®