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In speaking, as I have now come to speak, upon the practical operation of sanctions to produce the paramount end of all human punishments, I may with advantage glance for a moment at the actual form and working of law in general, as distinguished from the distinct command by the sovereign, which is still rather theoretical than historical.
In theory 24 then, law expressly prohibits or commands, thus creating certain duties negative or positive. In practice the language of law, even as known to the lawyer, is very frequently no more than this-if a man, by his conduct bring about a certain result, he shall undergo some evil contingent on such conduct. That is, the language is very frequently not an express but an implied prohibition or command. Indeed, the first laws formally enacted are often merely regulations of punishment which has been in practice inflicted, by a varying custom, for violation of a customary rule never declared at all. Such direct commands as "thou shalt," and "thou shalt not," are sometimes matter of comparatively late codification.
But, it being supposed that the stage of direct commands or prohibitions has been reached, and those commands or prohibitions placed on permanent record, the language of Austinian theory must be, except for a very brief time and in a very small community, equally untrue. When we hear of the original sanction operating upon the desires of men and affecting their volitions: so that, by punishments inflicted, men are "reminded of the evil threatened by the law, and convinced that its menaces are not idle and vain 25," we must see, if we think for a moment, that any specific knowledge of the original sanction will be possessed by few persons in a community, and those few from among the rich and well
24 Austin, Lect. 1, pp. 94, 95. Lect. 5, p. 183 and passim (Ohe, jam satis!).
25 Austin, Lect. 27, p. 520.
informed, not the needy and ignorant, who, by their circumstances, are a priori most likely to break the law. From what source, then, will the majority of the population get their practical knowledge, if they have any, of criminal law? I believe they have a good deal of such knowledge, and I believe, without any wish to be cynical, that they get it mainly from what they see and hear of criminal procedure and particularly criminal punishment. It is, therefore, of the first importance that such procedure and punishment be made generally known. Public trial and sentence does this to a great extent, where the courts are numerous and accessible, or reports cheap and widely disseminated. And on the old principle-segnius irritant animos demissa per aurem, quam quae sunt oculis subjecta fidelibus—I must admit that public execution, of such sentences as are capable of it, has still something in its favour, though nothing to what it had when it was the only practicable report to the public of criminal justice. The strongest objection to public execution is, to my mind, not so much the opportunity given by it for petty crimes (which is common to all assemblies of the needy and ignorant), as the very prejudicial kind of hero-worship which it fosters. This is true also of sensational printed reports about the demeanour of a criminal on trial, under sentence, or when undergoing any painful punishment: and the only correction which I can suggest, to these apparently necessary evils, is a brief official statement publicly posted up.
In speaking of the operation of punishment as what I believe it to be the practical instructor of the great majority, as to the specific rules and sanctions of criminal law, I hope not to be understood as defending any principle of ex post facto punishment. A general knowledge, even of the most
26 Bentham's requisite of 'exemplarity' clearly implies public execution of criminal sentences. Introduction, ch. xv. § ix. p. 193. See too Theory, Princ. P. C., Pt. 3, ch. 6, p. 337 tr.
ignorant majority, that certain conduct is wrong, and probably in some way punishable, before they receive more accurate information from sentences inflicted on themselves or others, is an essential to the justice of punishment, and is, as I shall shew more at length hereafter, true in point of fact. This, with the other necessary constituents of criminal liability, will constitute the subject of the next four chapters.
ESSENTIALS OF CRIMINAL LIABILITY.
Injurious event and offender.
CRIMINAL procedure, as I have said, regards mainly the consequences resulting from the conduct of an offender, as injurious to the community; and endeavours to prevent such consequences from recurring, by suffering imposed upon him. The basis, therefore, of enquiry is the occurrence of a certain event and the referribility of that event to some human being. I am here deviating from the order generally observed by Austin in the excellent lectures forming the latter part of his Analysis of Pervading Notions'. He proceeds from the consciousness of the agent to the external results. In my point of view (which I have ventured to think the more practical one), we look first at the injurious events, with the prevention of which law is concerned, and then trace them back, if possible, to the conduct and consciousness of some individual responsible for them.
With regard to 'events' generally, I gladly imitate the reserve, as to 'metaphysic,' which Austin inculcates but scarcely follows, and leave them rather indicated than defined. It is advisable, perhaps, as the same author observes3, to avoid the ambiguous term facts, which might, from 2 id. Lect. 13, p. 369.
1 Austin, Lectt. 18-27.
3 id. Lect. 14, p. 376.
its derivation, be restricted to events immediately referrible to a human being, though it is generally used in a much wider and vaguer sense.
I must remark, however, that the events, of which I am now speaking, as forming the ground of criminal procedure, do not include a class of objects which Austin* does include under the name, namely, mere internal determinations of the will or affections of the mind. Our events, whether we choose to define them as transient arrangements of permanent sensible objects, or to leave them undefined, are all sensible or external matters-such as the burning of a house, the killing of a man, the removal of silver spoons to a servant's room. These may or may not have to do with human agency, but of course only concern us if they have. It follows that, in legal definitions of such events as do ground criminal procedure, the event is generally connected expressly with human agency. But the question of connexion must sometimes be independently considered, where it is doubtful or remote". What events, if referrible to human agency, ground criminal procedure, is a matter which depends, of course, upon the law of each particular community. To meet the infinite variety of cases which may arise, there is usually some rule or definition expressed in very general terms; and it appears to be the reasonable doctrine of English Law that, in the case of acts deemed expressly injurious to the public, analogy jus
4 id. Lect. 14, p. 375.
5 A slight modification of Austin, Lect. 13, pp. 368, 9.
in the case of lightning, an avalanche, the magpie of the story. e. g. Stephen, Digest, Art. 219, and see below.
8 Stephen (Digest, Art. 176) defines a common nuisance as 'an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience to the public in the exercise of rights common to all Her Majesty's subjects.'
9 See Stephen's very important article and note, Digest, No. 160. Also his Introduction, p. xxxiv.