NOTES ON CRIMINAL LAW.
INCONVENIENCES OF THE PRESENT STATE OF THE CRIMINAL LAW.
Inconveniences of the Present Common Law.
Insufficiency, bulk, dispersedness, and general uncertainty of the authorities from which the Law must be gathered.
1°. As to Reports:
2°. As to Records:
3°. As to the Treatises which are commonly deemed more or less authoritative.
These various authorities are extremely numerous, and also lie dispersed; insomuch, that no lawyer has a complete collection of reports and treatises.
Much of the law contained in these reports and treatises has been repealed by statute or overruled by decisions. Great research is therefore requisite to distinguish living from dead law.
Hence, uncertainty.
Generally, there is no mark or test by which authoritative decisions and authoritative opinions of text-writers can be sufficiently distinguished from the unauthoritative.
Uncertainty arising from the higher and lower authority of the judge or writer; nature of the report; circumstances under which the treatise was published; &c.
Remarkable,—that, in practice, the decisions of Quarter Sessions are not authoritative.
Same as to Irish decisions.
Yet, in theory, these decisions (Quarter Sessions and Irish) are authority: and, consequently, decisions of the kind, conflicting with decisions resorted to practically, might be hunted out and produced.
Although the authorities from which the law must be gathered, were not bulky, dispersed, insufficient, and uncertain, still the law itself would be obscure and difficult of access, by reason of its being latent in judicial decision [and opinions analogous to them].
Difficulty of extracting principles from decided cases: especi1041ally where the grounds of decision are not sufficiently apparent from Report and Record.
Owing to this difficulty, principles are applied by judges timidly and capriciously.
It often happens, that a principle is not applied to a case clearly within it, because the decided cases establishing the principle do not tally with the pending case in immaterial facts and circumstances.
Hence, doubts thrown upon the principles themselves.
Immaterial facts are not unfrequently rendered part of the ground of decision. Decided cases are not treated as mere indices to the principles. (Que.)
Difference between the construction and application of Statute Law, and the extraction and application of rules of law latent in judicial decisions. (Que.)
Criminal Statutes are construed strictly. Hence the discrepance between statute and common law is more striking in criminal law.
The shape of a statute differs essentially from that of a judiciary rule.
As a whole, a judicial decision is not a precedent, or has not the effect of a law.
Difference between Interpretation and Induction.
Judiciary law lies in concreto. Difficulty of extracting it. Nicety and uncertainty of the process.
The ratio decidendi is often conceived and expressed by the judge too narrowly or too broadly. Hence the law, as expressed (for the ratio itself ought to be deemed the law, independently of the expression of it), is often too narrow (immaterial circumstances being expressed as part of the reason), and sometimes too broad.
Much of present law is founded on antiquated notions:
E.g. With regard to the subjects of theft. Looking at the offence as conceived at present, there is no reason why things which are parcel of the soil should not be deemed subjects of the offence (if capable of a clandestine removal).
[Maraudage. Prussian Code.]
The same remark applies to the rule as to domestic animals; as to choses in action; and as to value of subject: as to goods of which there is no apparent owner or party entitled to possession; and to the absurd reason given for absolving the wife from criminal liability.
1042Obscurity arising from partial adherence to, and partial departure from, these antiquated notions. Hence, Law, not a law founded on uniform principles, but a patchwork of laws formed on inconsistent principles:
E.g. Common Law rule as to choses in action only partially abrogated by statutes (and decisions).
Rule about value exchangeable (or intrinsic), still retained as to certain animals. Generally overruled, but yet retained capriciously in certain cases.
Partial and capricious extension of the definition of Larceny to cases of swindling and embezzlement. Larceny, if the thing be let out to hire and stolen by the hirer. Not Larceny, if the property, as well as the possession, be parted with.
Partial conversions of taking of things affixed to freehold into thefts, by statutes.
Hence, not only inconsistency and consequent obscurity, but needless multiplication of rules. A principle, admitted to be irrational, is maintained with exceptions, instead of substituting one uniform rule.
In so far as law is judiciary, this partial abandonment and partial retention of antiquated notions is natural, or nearly necessary. From the position wherein he is, the judicial legislator naturally legislates by analogy to the old law, in so far as the preservation of the old law is consistent with inevitable change. And hence, antiquated principles are perpetuated in laws after the grounds for them have ceased.
Circuitous and obscuring modes by which rules founded on antiquated notions have been often abrogated, wholly or partially.
By distinctions founded on immaterial differences:
E.g. The interval between taking and severance makes taking of an immovable, theft.
Obscurity arising from the frequent extension of definitions (through fictitious assumptions) to cases which are not properly within them, but are only related to cases within them by close or remote analogies:
E.g. Swindlings, breaches of trust, and other offences not properly thefts, are brought within the category of thefts by the fiction of a constructive possession.
Legislation by Extension of Old Rules to Cases not within them.
According to the original and rational notion of theft, a taking possession, without the consent of the injured party (from the possession of the injured party), knowing, etc., and with intent to deprive, is of its essence.
But it is extended to cases in which the injurer obtains possession with consent of the injured, but with consent obtained by fraud.
In order to bring this last offence (properly swindling, or filouterie) within the definition of theft, a possession is feigned in the injured party, although he has parted with it.
It is also extended to cases in which the injured party has given up possession with consent not obtained by fraud.
Also, to cases of finding and misappropriation.
Also, to cases of embezzlement, where there is no delivery by the injured party.
Inconsistency, as well as obscurity, arising from the cause in question. Since, if the definition ought to be extended by reason of some analogies, it ought to be extended by reason of others. Insomuch, that any offence of any class might be thrust with propriety into any other class: since all offences are related by analogies more or less remote.
It ought to be remarked, in justice to the authors of the English Law, that this inconvenience is almost inseparable from a law formed gradually by Courts of Justice, etc.
The same obscurity, from the same cause, in the Roman Law. [Pandects, Book xlviii. passim.]
Has not been avoided by the compilers of the French and Prussian Codes: though they, as formers of a system created at once, had none of the difficulties with which the English Courts of Justice were embarrassed. (Que.)
Origin of fictions. Necessity of observing analogy.49
49 See Lecture XXXVIII. ante.
Definitions and rules (owing to preceding and other causes) are not uufrequently conflicting, or, at least, indeterminate:
E.g. Several and inconsistent definitions of theft or larceny:
Uncertainty as to what shall amount to special ownership.
Uncertainty as to the nature of the intention which is of the essence of theft. The word felonious (like unlawful or criminal) does not define it, but merely indicates that it is of the essence of the offence:
1044Nature of the criminal intention (or knowledge) which is of the essence of theft.
[Felonious—Animus furandi. Malitia.]
Materiality or immateriality of lucri causâ.
What motive is a lucri causâ.
Indifference of motive. Larceny is the taking without consent, knowing, etc. And unless this definition be abided by, this offence cannot be distinguished from various other offences: as malicious damage, embezzlement, etc.
Indifference of motive, shewn by rule as to exchange, etc.
Uncertainty of this rule.
Theft or Larceny is properly an offence against right of possession.50 If not, an owner could not steal his own goods.
50 In Scotland the style of Indictment for Theft explicitly describes the goods as ‘the property, or in the lawful possession of C. D.’—R. C.
Consequently, any right of possession as against the taker ought to suffice; yet there are doubts as to whether such right of possession resides in certain custodees, etc. [or whether, in the language of the law, they can be deemed special owners].
No right of possession in owner (as against thief) where the goods are hired; though there is when they are bartered.
Inconsistency of holding taking goods not to be an offence, where the purpose is merely to apply them to some temporary use.
Same confusion of inducement and criminal intention as noted above in case of lucri causâ.
Uncertainty of rule as to finding and misappropriation.
Inconsistency of holding bailee generally not answerable criminally, and yet custodee answerable; and of holding bailee answerable where bailment is determined.
Principles obscured by being often couched in Latin terms not generally understood and not unfrequently misapplied; E.g. Lucri causâ. Larceny, instead of the familiar and more precise theft.
Larceny, or latrocinium, not theft.
Inconveniences of the Present Statute Law.
The Statute Law is not of itself a substantive and intelligible whole, but a mass of partial supplements, and partial correctives, made, pro re natâ, to the Common Law. (The latter, the nucleus.)
Hence, often inconsistent. It lies dispersedly through many statutes and decisions upon them.
1045Hence, bulk, inaccessibility, etc.
And, generally, it is productive of most of the inconveniences before pointed out in the Common Law.
Wherever the basis or nucleus of statute law is a judiciary law, the former is irregular, fragmentitious, etc.
Inconveniences from the Existence of Two distinct Bodies of Law; one Common and the other Statute.
As the Law actually stands, the law relating to any given offence commonly or frequently lies through many dispersed statutes and many dispersed reports or treatises.
Supposing that the Common and Statute Law were each systematised separately, the law relating to any given offence would often lie in two bodies of law; instead of lying in one department of one body of law.
By the incorporation of the two statutes, great benefit will result, for the following reasons:—
The present statute law consists partly of definitions of offences, with their punishments: and partly of the punishments of offences, leaving the definition of them to the common law: and it were expedient either that it should not be necessary to look after the definition of an offence in one statute, and its punishment in another; or that this should prevail in every case, and not in one only. The like observations apply to process.
The two statutes when separate must be often obscure and prolix, where the union of the two would tend to brevity and intelligibility.
The advantage would be gained of treating the generalia (of law or procedure) apart from those portions of the special part to which they are applicable indifferently: E.g. Misapprehension of right; accident; mistake; felonious intent; principals and accessories.
Many of these generalia (in existing treatises) are either omitted, or are stated under some head devoted to some particular class of offences (thus wearing the appearance of particular provisions). E.g. Malice, Negligence.
The advantages which would ensue from such an arrangement cannot be shewn fully without a scheme. Such scheme, pursued considerably into detail and backed by reasons, ought to precede the process of consolidating and combining.
As remarked above, Codification, and Innovation on substance or effect, are distinct. The codification here recom1046mended would not necessarily touch substance or effect; but would be no more (necessarily) than a re-expression of definitions, and an arrangement of offences under apt kinds and sorts, etc. But though the refount of form, now recommended, would not touch necessarily the substance or effect, still it might not perhaps be possible to render it altogether so good as desirable without small changes in substance. E.g. Reduction of rule in larceny as to right of possession.
Advantages of combining Common and Statute Law into one Statute or Code.
One source substituted for two.
Rules stated once for all, instead of being stated partly in one statute and partly in another.
Hence, more compendious.
If common law were reduced into one statute, and statute law consolidated in another, they might often conflict. If combined, no such conflict.
If common and statute law were to be united into one statute, a refount of the present form of the law would be expedient.
Necessity of considering every part in relation to the rest, and not as detached.
Also, of defining broad principles, subordinating narrow principles under them, and elucidating by examples. The actual law is a rich mine of such examples; and indeed, generally, is more objectionable in respect of its form than in respect of its substance and effect.
If the two statutes were incorporated, or even if they were kept separate, it would be expedient to diminish their size, and at the same time to render their contents more accessible, by reducing under one head such matters as are constantly recurring and are separated under different heads.
E.g. Principal and accessory: attempts to commit offences, etc. etc.
If the two statutes were incorporated, or even if they were kept distinct, it would be necessary to settle with great attention the arrangement according to which existing statutes and existing common law upon particular subjects should be put together.
E.g. Whether, in the general statute of statute law, larceny should come next to forgery, or not? Whether jury process 1047and bail should be near each other? What the statute should begin with, what end with?
Inconveniences of the Present Law, in respect to the Administration of Justice.
In respect to the administration of justice by the judges on circuits, etc.
Owing to causes mentioned in preceding paragraphs, rules and principles are applied timidly and capriciously.
In fact, judges, as well as advocates, are guided by modern and unauthoritative treatises.
Opinions of judges on doubtful points gotten slowly.
In respect to the Administration of Justice by Justices of the Peace.
As they are not generally professional lawyers, they need compendious and perspicuous rules. [Importance of proceedings prior to commitment.]
They are necessarily incompetent to the delicate task of extracting principles from decided cases.
Difficulties which they experience from the multitude and dispersedness of statutory provisions; from the language and form of statutes; from the obscurity of rules of construction, etc.
Though they were competent to the administration of the law, they have not access to the host of statutes and authorities through which it lies.
In fact, therefore, they are guided by modem and unauthoritative treatises.
Vast extent of their jurisdiction.
Tendency of the present age to administration of justice by local or district courts.
Impossible that the administration of justice by such courts should be passable, unless the law be rendered more compendious and clear than it is at present
Inconveniences of the Present Law, in respect to Legislation.
Owing to the bulk and dispersedness of statutes and authorities, innovations on existing law are seldom guided at present by an adequate consideration of the entire legal system. Hence, 1048for the sake of obviating some particular evil, greater evil is often done.
For the same reason, there is much needless legislation. For it often happens that the object of the change is sufficiently accomplished by actual law unknown to the legislature: or might be accomplished sufficiently by some slight alteration of the actual law.
Inconveniences of the Present Law, in respect, generally, to the Community who are bound by it.
If the foregoing difficulties are experienced by the Courts and Legislature, à fortiori, by the community at large.
In fact, not one in a thousand knows the laws which bind him.
If such are the difficulties in the way of lawyers, etc., the same are insurmountable to private persons.
Accordingly, scarce any but professional lawyers have any knowledge of the criminal law, although of necessity they must be bound by it.
Practicability of reducing Common Law into Statute Law, and of consolidating Statute Law.
If it be possible to extract principles pro re natâ, it is possible to extract them once for all, and to put them in the form of rules.
The difficulty of the process is not disputed.
The practicability of consolidating statute law is admitted in practice. Indeed, it is little more than an affair of arrangement.
Advantages that would follow such Reduction and Consolidation.
Advantage of having the law relating to any given offence collected under one or two heads, from numerous sources, through which it now lies dispersed:
Of having it in a cheap (as well as a compendious) volume.
Of separating living from dead law.
Indeed, a mere republication of actual sources (assigning respective weights) marking the law abolished, would be of itself no inconsiderable good.
1049No desire to exaggerate the extent to which Law may be made generally intelligible. But criminal law, for the most part, might be made intelligible to any man of average capacity. And this is the most important advantage.
It does not enter, generally, into the detail of rights:
(E.g. Larceny; which is properly an offence against the right of possession.)
Possibility of defining in criminal law the rights and duties of which crimes are violations, in so far as criminal law is concerned with them, without going into any such detail:
E.g. Without going into any detail of rights of property, an adequate definition of the right of possession as affected by theft (which is properly an offence against the right of possession), malicious mischief, etc., might perhaps be given.
Advantages of its being made perfectly intelligible to lawyers, which it might be.
As being more accessible, it would be more obvious to the legislature; and therefore much crude and inconsistent legislation would be avoided.
Advantages that have arisen from Peel’s Consolidations.
Such Reduction and Consolidation would, at least, be harmless.
Doubts would arise on application of law thus reduced and consolidated: But probably fewer than on application of the present law.
Pre-existing law would furnish ample means of construction, and interpretative decisions might, from time to time, be incorporated with text.
[Rules of construction to be framed, and to be considered as peculiarly applicable to the Criminal Code.]
By submitting the statute or statutes to the public or the profession before they were passed into a law, many of the causes of doubts might be obviated.
Such reduction, etc., would not amount to a change in the substance and effect of the existing law, but would simply be a re-statement of the existing law, in an orderly, compendious and accessible volume; with the determination of points confessedly uncertain.
It would not, necessarily, have any retroactive effect.
In fact, it would be a substitution of an authoritative 1050body of law, for the unauthoritative (and often defective) treatises, which (as we have already remarked) are practically the guides of the tribunals in the great majority of their decisions.
Imperfections of these.
Though never so perfect, they are unauthoritative.
Expediency of Codification admitted practically by such treatises, etc.
FRAGMENTS OF A SCHEME OF A CRIMINAL CODE.
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The Criminal for Penal] Code [or the law of Crimes and punishments]. |
The Code [or Law] of Criminal Process [or Procedure] and Preventive Police. |
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General Part [or Part I.]: Comprising the matters (definitions, distinctions, rules, principles, etc.) which apply universally or generally: i.e. which have no exclusive or special regard to crimes of a given class, but regard indifferently all or the generality of the crimes embraced by the intended Code [or, particularised (or specified) in the Particular (or Special) part]. |
Particular (or Special) Part, or Part II. Particularising (or specifying) the various crimes embraced by the intended Code; and assigning respectively to those various crimes, their respective punishments and other penal consequences. |
[Each part to be divided into Chapters, Sections, Subsections, etc.; or into Books, Chapters, Sections, Subsections, etc.]
Note.
‘Punishment’ (and ‘penal’) are broader expressions than ‘crime’ (and ‘criminal’). Punishment (or pœna) is necessarily annexed to an injury considered as a crime or public wrong: i.e. as the possible ground of a criminal or public action; and the infliction of punishment is necessarily the scope or object of every such action or pursuit.
But punishment, moreover, is sometimes annexed to an injury considered as a civil or private wrong: i.e. as the possible ground of a civil or private action. And the infliction of punishment is sometimes the scope or object of such an action or pursuit. Consequently, the nature of ‘crime’ (and ‘criminal’) cannot be determined sufficiently by merely determining the nature of ‘punishment’ (and ‘penal’).
GENERAL PART OF THE CRIMINAL CODE.
CHAPTER I.
The definition of a crime; with distinctions (or divisions) of
Crimes into certain of their principal classes,
CHAPTER II.
Of the territory embraced by the intended Code; and of the persons amenable to, and the crimes cognisable by, the Criminal Tribunals having jurisdiction therein.
Reference to the subsequent Chapter, on Punishments; and to those parts of the Code of Procedure which determine the respective jurisdictions of the several Criminal Tribunals.
[This distinction or division can hardly serve as a basis for the Arrangement of Crimes.]
CHAPTER III.
Of such essentials of a crime (or of such conditions necessary to render an act or omission a crime) as may be treated of generally: i.e. without restriction to a crime of a given or specified class.
Here, particularly, of those universal essentials which are styled emphatically ‘the grounds of imputation.’
CHAPTER IV.
Of consummate crimes and criminal attempts.
CHAPTER V.
Of principals and accessories.
CHAPTER VI.
Of punishments (including the penal consequences which are not punishments nominally, but which are punishments in effect).
THE GENERAL PART OF THE CRIMINAL CODE.
CHAPTER I.
Containing the definition of a Crime; with distinctions (or divisions) of Crimes into certain of their principal classes.
1. The definition of a Crime, [or, Crimes distinguished from Civil Injuries;] [or, Public Injuries (or Wrongs) distinguished from Private.]
The definition of a Crime implies the definition of Punishment, and also the distinction between Civil and Criminal Actions. But the complete statement of this distinction, and of its numerous and intricate consequences, belongs to the Code of Criminal Proccess.
2. Of such distinctions (or divisions) of crimes as are founded on differences between their respective punishments; [between the criminal tribunals to which they are respectively attributed; and between the criminal processes by which they are respectively pursuable.]
Note.
The distinction between Crimes in respect of tribunals and processes, supposes a reference to the Code of Criminal Process: in which the competence of the various tribunals must of course be determined; and in which the regular process, with the processes deviating from the regular, are particularised or detailed.
The distinction between Felonies and Misdemesnors supposes a reference to the Chapter (contained in a subsequent portion of the General Part of the Criminal Code) on Punishments and other Penal Consequences.
Quære. The use of retaining the distinction between Felonies and Misdemesnors? It is founded on differences between their respective punishments and other penal consequences. And to every crime particularised in the Particular Part of the Criminal Code, its punishment (and other penal consequence) will of course be assigned.
The distinction in the French Penal Code between Crimes, Delicts, and Contraventions, is perhaps of some use. For offences of those different classes are attributed systematically and exclusively to differently constituted tribunals: They also are pursuable respectively by different processes.
1054Method of Arrangement in the French Penal Code.
Crimes attributed to the Courts of Assize, and pursuable by a process which is more solemn (and regular):
Called, emphatically, Crimes.
Crimes attributed to the Tribunals of Police, and pursuable by processes which are more summary (and irregular).
Pursuable before the Tribunals of Correctional Police.
Pursuable before the Tribunals of Simple Police (or Tribunals of Police).
Called Delicts.
Called Contraventions, or Crimes of Simple Police.
[The 1st and 2d Books, with the ‘Preliminary Dispositions,’ constitute the General Part: The 3d and 4th books, the Particular Part.]
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Crimes attributed (generally1) to the ordinary (or regular) tribunals,2* and pursuable (generally3*) by the ordinary or regular process.4* * Notes 2, 3, 4, on following page [in the printed edition—here, see below]. |
Crimes attributed to extraordinary (or exceptional) tribunals, and pursuable by extraordinary (or exceptional) processes. |
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Felonies.
Misdemesnors.
Distinguished by differences between the punishments (and the other penal consequences) which are respectively annexed to them.
[1 Not universally: For treason by a peer (for example) is cognisable by the House of Lords, although it is a felony.] [Que. Whether the House of Lords can now be deemed an ordinary criminal tribunal? 2 E.g. The King’s Bench; the temporary tribunals formed by the ordinary commissions, etc. etc. 3 Not universally; though cognisable by the regular tribunals. E.g. Peculiarities of process in case of treason. 4 Indictment.] |
E.g. Crimes pursuable summarily before Justices of the Peace, or before Commissioners of the Excise. Crimes pursuable before the Ecclesiastical Courts. Crimes by military persons considered as such, and punishable before Courts Martial, etc. etc. [Que. Whether the term misdemesnor is applicable to any of the crimes here contemplated? And whether there be any distinction be1055tween such crimes, or any of them, analogous to the distinction between Felonies and Misdemesnors? The simple ‘police crimes’ of the French Penal Code comprise only a part of the crimes here contemplated.] |
Note.
Qe. The extent of the intended Code in respect of the Classes of Crimes which it is meant to embrace.
Is it to embrace all crimes (crimes pursuable before the extra ordinary, as well as before the ordinary tribunals)? Or are any, and which, of the crimes. pursuable before the extraordinary tribunals, to be excluded from it? Difficulty of such an exclusion, in respect of such of the excluded crimes as owe their creation to unwritten law. See the last article of the French Penal Code, which shews that the code extends only to a part of the field embraced by the Criminal Law obtaining in France.
3. Distinction (or division) of crimes into Public Crimes and Private Crimes [or Private Crimes and Public Crimes].
[The arrangement of the Particular Part of the Criminal Code is founded on the distinction between Private and Public Crimes. But perhaps the nature of the distinction ought to be stated or indicated at the outset of the General Part.]
4. Distinction (or division) of crimes into crimes by commission and crimes by omission [or, positive crimes and negative crimes:—‘crimes faciendo’ and ‘crimes non faciendo’].
Distinction of crimes by omission into crimes by omission accompanied with criminal knowledge, and crimes by omission from negligence (or criminal inattention). [Refer to Chapter III.]
[Crimes by omission accompanied with criminal knowledge might be styled commodiously criminal forbearance; crimes by omission from negligence, criminal omissions or omissions (simply).—But established language would hardly admit of this.]
Note.
Criminal knowledge and negligence are often styled emphatically ‘the grounds of imputation;’ inasmuch as the one or the other of them is of the essence (or corpus) of every delict (or crime). Properly, 1056however, every essential of a given crime (or every constituent of its essence or corpus) is one of the grounds or reasons for imputing the fact to the party. (See Table II. post.)
CHAPTER II.
Of the Territory which the intended Code is meant to embrace; and of the persons amenable to, and the crimes cognisable by, the Criminal Tribunals or Courts having jurisdiction therein.
1. Que. The extent of the intended Code in respect of territory.
Is it to extend to all those parts of the United Kingdom and its Dependencies in which the Criminal Law of England now obtains?
If any of those parts are not to be embraced by it, how is their exclusion to be marked?
In respect to any of those parts embraced by it, in which anomalies or singularities now obtain,—how are such anomalies to be treated? Is the Code to supersede them? and, if so, how is the abrogation of them to be accomplished? If the Code is not to supersede them, are they also to be codified or systematised? (Provincial law, derogating from the General or Common Law, has been codified or systematised in Prussia with respect to one of the Provinces.)
2. Persons amenable to the Criminal Tribunals having jurisdiction within the intended territory.
A statement of the general rule, or general principle.
Exceptions from the general rule: e.g. the King, corporate bodies in their corporate capacity, Ambassadors from foreign States, etc. etc.
3. Crimes cognisable by such tribunals.
A statement of the general rule or principle.
Exceptions from the general rule:
E.g. Crimes committed by British subjects in foreign parts.
1057CHAPTER III.
Of such essentials of a crime [or, of such conditions necessary to render an act or omission a crime] as may be treated of generally: i.e. without restriction to a crime of a given or specified class. Here, particularly, of these universal essentials which are styled emphatically ‘the grounds of imputation.’
Principle 1. An act or omission is not a crime (or is not imputable to the party), unless the party knew, or, with due attention, might have known, that, under the circumstances of the fact, it was a crime; [or, an act or omission is not a crime, (or is not imputable to the party,) unless the party subsumed the fact, or, with due attention, might have subsumed the fact, under the law.]
Every crime, therefore, supposes, on the part of the criminal, criminal knowledge [criminal consciousness] or negligence [criminal inattention, criminal inadvertence].—Vel scienter, vel negligenter.
Note.
Scheme of the Roman law—language in regard to the grounds of imputation: i.e. Criminal knowledge and Negligence.
Dolus or dolus malus, when used as the name of a genus, is equivalent to malice or criminal design. When used as the name of a species, it is restricted to criminal design consummated or attempted by fraud: dolus with simulatio.
Culpa (which generally, though not always, is opposed to dolus) has three significations. 1°. Taken with its large signification, culpa is equivalent to the English guilt. 2°. Taken with its narrower signification, it denotes generally the ground of imputation: i.e. criminal knowledge or negligence. It therefore includes dolus. 3°. Taken with its narrowest signification, it denotes criminal knowledge short of criminal design, or negligence. It therefore excludes, and is opposed to, dolus.
The Roman law-language in regard to the grounds of imputation may therefore be presented thus:
Dolus, or dolus malus, as signifying generically criminal design.
Culpa, as opposed to dolus in its generic signification.
Criminal knowledge short of Criminal design.
Negligence in any of its modes.
Criminal knowledge or consciousness.
Negligence or criminal inattention.
(See Lect. XX., Vol. I., and Tables I. and II. post.)
1058Inconveniences of ‘malice’ as a name for criminal design.
1. It having been assumed inconsiderately that malice or criminal design is of the essence of every crime, the term is extended abusively to negligence (or criminal inattention), and to criminal knowledge short of criminal design. E.g. Murder is styled malicious, or the law (it is said) implies it to be malicious, although, in truth, it proceeded from negligence: i.e. from negligence, evincing, on the part of the criminal, extraordinary inhumanity. Case of master killing apprentice, without designing his death, by a cruel excess of punishment.
2. Malice as signifying criminal design (and as used with its technical and proper import), is often confounded with malice as denoting malevolence; insomuch that malevolence (though the motive or inducement of the party is foreign to the question of his guilt or innocence) is supposed to be essential to the crime. E.g. The law (it is said) implies malice, wherever the fact was premeditated; although the crime is complete by virtue of the criminal design, and any implication is superfluous. (Bellingham’s argument.)
Similar ambiguity, and consequent confusion, in regard to dolus.
3. Though ‘malice’ denotes properly criminal design or intent, it sometimes signifies criminal knowledge short of criminal design. It seems, at least, that ‘maliciously’ is sometimes equivalent to ‘scienter.’ (Sed que.)
[(a) Criminal knowledge [or consciousness].
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Criminal [unlawful, or evil] design [intent, or purpose]. [Equivalent to the malice of the English Law; to the dolus or dolus malus (used generically) of the Roman; and also to the malum propositum, the malum consilium, and the voluntas nocendi of the Roman.] |
Criminal knowledge short of criminal design. [Scientia, but without the ‘voluntas nocendi.’ Not dolus, although it is prope dolum.] |
|
Where the production of the mischievous consequence 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: E.g. Murder, or arson, out of malevolence; murdering to rob; theft. In each of these cases, the production of the mischievous consequence is the very end of the criminal, or, at least, is a mean to its attainment. [Where an act or omission is of itself a crime (or is a crime without respect to a consequence), such act or omission (supposing that the omission is accompanied with criminal knowledge) imports necessarily a criminal design.] |
Where the production of the mischievous consequence which the law seeks to prevent, is not an end, ultimate or mediate, of the criminal; but where he knows that such mischievous consequence (though he does not wish the production of it) will follow, necessarily or probably, his act or omission. E.g. Arson of a house adjoining his own, through his setting fire to his own, 1059with intent to defraud his insurers. The destruction of his neighbour’s house will not subserve his end; but he knows that the destruction of his neighbour’s house will follow, necessarily or probably, the firing of his own. |
[(b) Negligence [or, Criminal inattention or inadvertence].
Negligence non faciendo.
Negligence in faciendo.
Negligence
or
Heedlessness.
Imprudence: which, when it is gross, is styled Temerity or Rashness.
(See Table II. post, and Lecture XX. ante.)
Negligence, or criminal inattention, may be divided into proximate and remote: proximate, where it accompanies (or is the immediate cause of) the criminal omission or act; remote, where it has caused an inability, on the part of the criminal, to do or forbear as he ought.
Amount (or measure) of the attention which the criminal law exacts; with the various degrees of negligence (or criminal inattention). Culpa lata, etc. Impossible to fix a measure, or to distinguish degrees, by rules binding the tribunals: but principles (with examples), serving as guides to their discretion, may be stated or indicated in the law.
(c) Of the cases in which a party committing or attempting a crime, produces casually or negligently an extrinsic mischief. Peculiarity (and seeming unreasonableness) of the English Criminal Law in respect of extrinsic mischief produced casually.
Culpa dolo determinata. But, properly, the original crime or attempt is one crime, and the extrinsic mischief proceeding from the negligence of the party is another and distinct crime.
(d) Justifications deducible from principle 1, viz.
Ignorance (including mistake) in regard to matter of fact.
1060[Ignorance of law is neither a justification nor an excuse, as considered substantively or per se; although it is implied by some of the justifications and excuses which are adverted to hereafter. Why a knowledge of the law, on the part of the accused, is and must be presumed juris et de jure. Inasmuch as the presumption in question often conflicts with the fact, and the accused might be ignorant of the law without a default of his own, the presumption is seemingly unreasonable, and demands a short explanation.51]
51 See Lecture XXV. ante.
Infancy: When a justification. When, and in what degree, an excuse.
Insanity: (in its various modes of idiocy, imbecility, lunacy, partial madness, &c.)
[Drunkenness: Never a justification. When, and in what degree, an excuse.—Ground for imputing the fact to the drunken party, where the drunkenness was not resorted to as a mean of accomplishing or concealing a criminal design.]
Principle 2. An act or omission is not a crime, if it be purely involuntary; i.e., if the not doing the act52 done, or the doing the act omitted, did not depend anywise on the wishes (or will) of the party.
52 Inasmuch as the party is mentally passive, it cannot be said, with perfect propriety, that he acts.
Justifications deducible from principle 2, viz.:
Misfortune. [Mishap, chance, accident, casus, damnum fatale, etc.]
Compulsion or restraint merely physical: i.e. not applied to the wishes (or will) of the party.
Principle 3. Generally, an act or omission is not a crime, or is more or less excusable, if it proceeded from an instant and well-grounded fear stronger than the fear naturally inspired by the law.
(a) Statement and explanation of principle 3.
(b) Justifications deducible from principle 3.
Fear of harm not impending from the will of man.
Fear of (unlawful) harm impending from the will of man. E.g. Joining a foreign enemy through fear of instant death. Wife joining in a crime in consequence of threats from husband. [The English Criminal Law in respect of coercion of wife by husband, is seemingly full of inconsistencies.]
1061Note.—Principles 1, 2, and 3, are all of them deducible from the following simple truth. Owing to the plight in which the party was, fear of the punishment could not have acted upon him; or, if fear of the punishment could have acted upon him, it could not, or probably would not, have deterred him from the act or omission. Consequently, the infliction of the punishment on the party could not operate as an example, or could not produce the effect of deterring others from crime.
Principle 4. An act or omission pursuant to a legal duty is not a crime:
E.g. Arrest of a criminal. Execution of a judgment.
Principle 5. An act or omission pursuant to a legal right, or to a permission or licence granted or authorised by the law, is not a crime.
(a) Of self-defence, with its various grounds and limits.
Also, generally, of self-assistance (or of righting one’s self
without a resort to justice). (Sed que.)
(b) Of the cases in which the fact concurs with the wishes of the party who is immediately its object.
Where the party acting or omitting is also the immediate object of the act or omission: E.g. Suicide.
Where the party acting or omitting is not the immediate object of the act or omission. ‘Volenti non, fit injuria.’ When the maxim holds. When it does not.
(c) Of the cases in which the party who is the immediate object of the act or omission is ‘out of the protection of the law.’
Que. Whether there be any such case according to the criminal law now in force?
Principle 6. An overt act (or such an act, other than a confession of the party, as indicates his criminal knowledge) is of the essence of a crime by commission; also of a crime by omission accompanied with criminal knowledge.
[An overt act is an act indicating criminal knowledge, and is not any act indicating a foregone crime. Consequently, it is not of the essence of a crime by omission, where the omission is the effect of negligence. But such a crime by omission may be indicated by an overt act as meaning any act indicating a foregone crime.]
Why criminal knowledge without an overt act (or merely disclosed by the confession of the party) is not imputable.
1062Note.—Perhaps the term ‘overt act’ is restricted to such an act as indicates a criminal design; or even to such an act as accomplishes or subserves the design.
Unless the act were a mean to the accomplishment of a criminal design (or were an effect or consequence of a foregone criminal design) it hardly could shew the existence of the requisite ground of imputation: viz. the criminal knowledge of the party. (Sed que.) For a design may be merely criminal in respect to a probable consequence not wished by the party. And, in this case, an act indicating his knowledge of the probable mischievous consequence is not of necessity an act accomplishing or subserving the design.
It would seem that the overt act which is requisite in the case of an attempt, is necessarily an act consequent on a criminal design, or serving as a mean or step to the accomplishment of a criminal design. (Sed que.)
It is held by the Court of Cassation, in cases of an attempt, that ‘overt or exterior act’ and ‘commencement of execution’ are equivalent expreesions.—(See Feuerbach and other German Criminalists.)
CHAPTER IV.
Of consummate Crimes, and of Crimes consisting in attempts to commit crimes [or, criminal attempts].
1. Generally, an attempt to commit a crime is of itself a crime. (Exceptions from the rule.)
2. Essentials of a criminal attempt.
No criminal attempt without criminal knowledge.
[Or, No criminal attempt without a criminal design: i.e. unless the consummation of a crime be the end or object of the party, or be a mean or step towards his end or object. (Sed que.) For though a design be innocent independently of a probable mischief not wished by the party, his attempt may perhaps be criminal if he be conscious of the danger.]
No criminal attempt without an overt act: i.e. an act (other than a confession) indicating criminal knowledge.
[Or, No criminal attempt without an overt act: i.e. an act which is the natural effect of a foregone criminal design, or which serves as a mean or step to the accomplishment of a criminal design. (Sed que.)]
3. Grounds for punishing a criminal attempt less severely than the corresponding consummate crime.
1063[In some cases, the consummation of the crime is not more mischievous than the attempt to commit it. E.g. Theft consummated by the merest amotion of the subject from the place which it occupied, is not a whit more mischievous than an abortive attempt to amove it.]
Expediency of leaving to the party a locus pænitentiæ, wherever the consummation of the crime would be more mischievous than the attempt, etc. etc.
[Departures from this principle in the English Criminal law. They are not only inexpedient, but are out of analogy or harmony with the body of the system. Coventry Act, Lord Ellenborough’s Act, etc.—Absurdity of the Roman and French Law in this respect.]
4. Distinction between a remote or merely incipient attempt [i.e. where the acts of the party would not naturally consummate the crime] and a proximate or perfect attempt [i.e. where the acts of the party would naturally consummate the crime, but the consummation is prevented by the intervention of an extrinsic cause.] (Que.)
Note.—Case of an omission not followed by the probable mischief which renders it criminal; but where the omitting party intended the mischief, or, at least, was conscious of the danger.
Cannot be called an attempt: for an attempt imports an act pursuant to a criminal design, or, at least indicating criminal knowledge.
Is there any case (in the English Criminal Law) in which a party so omitting would be held liable as for an attempt?
[Note.—Would it be expedient to define generally Corpus delicti: i.e. the sum (or aggregate) of the properties (or characters) which constitute the essence (or definition) of a crime of a given class? If so, the general definition and explanation would be placed appositely in Chapter III. For the expression ‘corpus delicti,’ an equivalent English expression (such, for example, as ‘essence of the crime’) might easily be devised.] (See Table II. post.)
5. Distinction between criminal attempts in respect of differences between the causes which prevent their consummation.
Where the consummation is prevented by the penitence of the party.
Where the consummation is prevented, not by the penitence of the party, but by the intervention of an extrinsic cause.53
53 R. v. Taylor 1 F. and F. 5.
10646. Incitements to crime. [Sed que. Would perhaps be placed more appositely in the Chapter on Principals and Accessories.]
CHAPTER V.
Of Principals and Accessories.
[Que. Can a so-called ‘accessory after the fact’ be deemed an accessory: i.e. a person who aided the given crime, and who therefore must have been party to it before its conclusion? Ought not the offence of the so-called Accessory to be placed in a Chapter of the Department relating to Public Crimes?]
CHAPTER VI.
Of Punishments (including those consequences of crimes which are not punishments nominally, but which are punishments in effect).
1. Enumeration and description of the punishments (and other penal consequences) which are annexed to Crimes by the English Criminal Law: (or by the portion of the English Criminal law which is embraced by the intended Code.)
E.g. Death.
Transportation.
Imprisonment.
Fine, etc.
|
General Forfeiture Corruption of blood (with Escheat). Incapacity to give testimony, etc. |
⎫ ⎪ ⎬ ⎪ ⎭ |
Que. As to the expediency of these sweeping and indiscriminating punishments. |
2. Rules (or Instructions) for the application of Punishments.
(a) Where the nature of the punishment is not determined by the Law; or where the degree of the punishment is indeterminate altogether; or where the degree of the punishment, though not indeterminate altogether, is determined imperfectly or proximately by the assignment of a maximum and minimum.
Specimens of the various considerations which are grounds for the Rules or Instructions, viz.
1065Magnitude of the mischief which the crime has a tendency to produce.
Difficulty or ease with which it may usually be committed.
Consummation or Attempt; If attempt, nature of the cause which rendered it abortive.
Criminal Knowledge or Negligence; If negligence, the degree of it.
Motive or inducement to the crime; which, though it commonly is foreign to the question of guilt or innocence, is often a good reason for aggravating or mitigating the punishment.
Disposition of the criminal, as evinced by the fact in question, or by extrinsic testimony to his general character, etc. etc.
(b) In the case of a repetition of the crime.
(c) In the case of concurrent crimes (or, rather, concurrent convictions).
3. Extinction of liability to punishment (or to a criminal action or pursuit).
By sufferance of the punishment.
By Death.
By Prescription, or limitation of time.
By Pardon, etc. etc.
THE PARTICULAR PART OF THE CRIMINAL CODE (1.)
Private Crimes;
i.e.
Public Crimes.
Crimes by private persons (i.e. merely private persons, or public persons in private characters), which affect directly and specially the rights of private persons (i.e. merely private persons, or public persons in private characters).
Crimes affecting directly and specially public or political persons in their public or political characters; with crimes by such persons in the same characters.
Crimes not affecting (or not affecting directly and specially) any determinate person, public or private. Crimes against the public (or community), as considered generally and indeterminately.
[Subjects of Police Law in one of the senses of the term.]
E.g.
Usury;—Forestalling, regrating; obtaining an unlawful monopoly:—Combinations amongst workmen or masters:—Gambling:—Setting up bubbles, etc.
Offences against the public peace. Going unlawfully armed:—Common affrays:—Libel (as considered by the English Criminal Law), etc.
Common Nuisances.
Breach of Quarantine: selling unwholesome provisions: etc.
Offences against Religion (not amounting to offences against ministers of religion, or against religious societies).
Offences contra bonos mores. Self-regarding offences; such as suicide, etc.
Crimes which affect directly and specially the State or Sovereign Government: i.e. the entire state, or any of its constituent and necessary parts.
Crimes which affect directly and specially the rights or powers of subordinate public persons.
Crimes by subordinate public persons in their public characters.
A classification of the departments into which the subordinate government of the country is most commodiously devisable; (or, a classification of the persons who may be deemed political subordinates;) with the crimes by and against the various individuals and bodies who are members of those departments respectively.
Crimes of which the purpose is the subversion of the State; or which tend to such subversion (although it be not their purpose), by necessary or probable consequence.
[High Treason, Porduellio.]
Crimes short of High Treason.
[Crimina læsæ Majestatis.]
CODE (OR LAW) OF CRIMINAL PROCEDURE AND PREVENTIVE POLICE.54
54 Different meanings of the word Police:—
1. Preventive Police.—2. Laws which prevent mediately.—3. Laws administered by inferior tribunals.—4. Laws which impose duties, regarding the community generally. A mixture of all these.
Criminal Procedure.
[Search for and pursuit of crimes already committed.
End, prevention of crimes through the infliction of punishment on past crimes.]
1. Ordinary and Extraordinary Tribunals, with their respective competence, and jurisdiction.
2. Ordinary Procedure.
Up to accusation (by indictment or information).
[Police judiciaire.]
After accusation.
[La justice.]
3. Extraordinary modes of Procedure [marking only the anomalies; and referring, for the general rules, to the ordinary Procedure].
Preventive Police.
[End, prevention of crimes, but not through the infliction of punishment. Embracing such means of preventing crimes as are not comprised in criminal process.]
Rules for regulation of prisons (penal, or prisons of detention), of transport vessels, etc. [Que.]
Generalia.
Distinction between civil and criminal actions.
Where they concur.
Where the one excludes the other.
Where they are pursuable jointly.
Where they are pursuable separately.
Rules of evidence peculiar to criminal cases.
TABLE I.
(1) Culpa, sensu lato.
Equivalent to the English Guilt; and therefore comprising all the elements which constitute the Corpus (or essence) of the given delict (or crime).
(2) Culpa, sensu medio.
Comprising criminal intention; criminal knowledge short of criminal intention, or negligence. [Which three, together with dependence on wishes of party of the forbearance or performance due, are sometimes called emphatically ‘the grounds of imputation.’]
All the constituents of the given Corpus delicti, excepting criminal intention, crimmal knowledge short of criminal intention, or negligence. [Sometimes deemed the Corpus delicti; being the difference, though not the whole essence, of the given crime.]
(a) Dolus (in specie): i.e. criminal intention consummated or attempted by fraud: dolus with simulatio.
(b) Dolus (in genere). Equivalent to criminal intention: [Scientia, with the voluntas nocendi.]
(3) Culpa, sensu stricto.
Criminal knowledge short of Criminal Intention : [Scientia, but without the voluntas nocendi: Prope dolum, but not dolus.]
Negligence.
Criminal knowledge in genere.
Non faciendo.
In faciendo.
Heedlessness.
Imprudence: a mode of which is Temerity.
Note.—Generally, an act, forbearance, or omission, which is merely culpose (or not dolose), is not a crime or public delict: i.e. the possible ground of a criminal or public action. It is merely a civil or private injury, or is merely the possible ground of a civil or private action. Hence probably, the frequency of the assumption that criminal intention is of the essence of a crime.
TABLE II.
Criminal Knowledge (or Consciousness) In regard to a present act or forbearance,
or to a necessary or probable mischief consequent on such act or forbearance.
Negligence (or Criminal Inattention).
In regard to the act or forbearance; which is always intended: i.e. known and wished (as an end or a mean). But which may be
In regard to the necessary or probable mischief.
Non faciendo; Omission.
In faciendo.
Criminal per se, or independently of a mischief necessarily or probably consequent upon it.
[Necessarily accompanied by a criminal intention.]
Criminal not per se but by reason of a mischief necessarily, etc.
[Not necessarily accompanied by a criminal intention.]
Criminal intention: i.e. knowledge of necessity or probability of the mischief, and wish of the mischief (as an end or a mean).
Criminal Knowledge short of criminal intention: i.e. knowledge of necessity or probability of the mischief, but without a wish of the mischief; the mischief not being an end of act or forbearance, nor subservient to the end.
[Called erroneously, ‘oblique intention,’ or dolus indirectus.]
Heedlessness:
or inattention to necessity or probability of the mischief.
Advertence to necessity, etc.; false supposition of a preventive; and inattention to the grounds of supposition.
Criminal Intention.
Imprudence:
where the inattention is not gross.
Temerity:
where the inattention is gross.
Preme ditated.
Unpre medi tated
Determinate, in respect of mischief intended.
Indeteminate, in respect of, etc.
Where the knowledge is accompanied with a criminal intention: i.e. of doing or forbearing: where act or forbearance is criminal per se; or of producing by an act or forbearance, criminal or innocent per se, a mischief other than the one in question.
Where the knowledge is not so accompanied; act or forbearance being innocent, independently of the mischief in question.
[Criminal intention not of essence of an attempt.]
In case of future act presently intended, mischievous consequences may be intended; or may be merely known: and if merely known, may be known as consequence of criminal or innocent intention.
Intention may be determinate or indeterminate in regard to means, as well as to mischief.
TABLE III.
(Division, p. 201-294. Remarks on the grounds of the division, p. 295. Characters of the Five Classes of Crimes, p. 300.)
I. Private Crimes.
[pp. 203, 4, 5, 240.]
Public Crimes.
V. Crimes by Falsehood.
and
Crimes against (or by breach or) Trust.* [See pp. 204-205, 218.]
[A similar class (either complete or forming a negative member of a higher or larger class) might be built on any of the means (being of the essence of the crime) through which any crime is consummated or attempted. E.g. Vis, conspiracy, effraction, etc.]
* Feuerbach, p. 323. Rosshirt, p. 198.
1. Against Person.
[241]
2. Against Reputation.
[244]
3. Against Property.
[245]
6. Against Condition.
[253]
4. Against person and reputation. [251]
5. Against person and Property. [252]
Forgets breaches of contract and quasi-contract ; unless every obligatio is to be deemed a condition (p. 207); or unless every obligatio is included in property; or unless every breach of an obligatio is included in Crimes against Trust.
IV. Against and by public persons in their public characters.
[210-283]
[203-4]
Against the Public or Community, as considered generally and indeterminately.
Against the Sovereign.
[9]
Against political subordinates.
Extra-regarding.
III. Self-regarding [209-244, et post, passim].
IV. Public [210-283].
II. Semi-Public [208-243, et post, passim].
Against External security.
(l.)
Against Justice
(2.)
Against Preventive Police.
(3.)
Against Beneficent Police.
(5.)
Against Military force.
(4.)
Against the Revenue of the State.
(6.)
Against Population.
(7.)
Against the National Wealth
(8.)
Against Religion.
(10.)
Against the National Interests in general (11).
All the figures in this Table refer to Bentham’s Principles of Morals and Legislation, 4to Edition 1789.—S. A.