CHAPTER X.

GENERAL REMARKS.

THE principles, which I have endeavoured to make out in the preceding chapters, are as I conceive, axioms or preliminary 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 have expected, the same consequences to result.

In this minor degree of liability, resulting from inadvertence, there will be various classes of cases; as the conduct is positive or negative or both combined, the inadvertence present 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

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 criminal 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 codification, and, in particular, to prepare that admirable Digest which has rendered codification actually possible'. Yet, however near we are to the day, which so many generations of lawreformers 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.

In the Indian Evidence Act, drawn by the same author, such a system of illustration was adopted: but it is questionable 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

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 reporting3 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 intelligible divisions, the matter which has not always met with such treatment hitherto in our reports and text-books.

3 ib. xv.