tifies the operation of courts upon cases similar to those which have been previously provided for or decided upon. Justification and excuse. There is an important exception in the case of certain events primâ facie criminal, as injurious to the community, and clearly referrible to the conduct of a human being. Such a person may be justified or at least protected from criminal responsibility, in respect of the consequences of conduct which would otherwise be criminal, under circumstances recognized by the particular system of municipal law. The proper place for this subject, in an enquiry like the present, is by no means easy to fix. The circumstances in question sometimes embrace matters relating to the consciousness of the person (knowledge that his conduct was wrong or otherwise), a subject which naturally comes later on. But, on the whole, as the conduct under these circumstances is not criminal at all, and the circumstances are mostly of an external character, justification and excuse should rightly be mentioned here. This subject should, apparently, come in the preliminary matter at the beginning of a criminal code, although, as it relates mainly to force affecting the person, it might perhaps be connected specially with that department. For the main heads of justification and excuse, in English Law, I would refer to the passages quoted in the note1o. There is again another exceptional class of events, ex vi termini referrible to a human being, and which do ground criminal proceedings although not directly injurious either to any individual or the community, but only so in their ten 10 Stephen, Digest, Pt. v. ch. 21, Artt. 196–210. 'Cases in which the infliction of bodily injury is not criminal,' classed under 'offences against the person, &c.' Code, §§ 25-70, contains similar provisions, classed with what I should call grounds of exemption (20—24), as ‘justification and excuse for acts which would otherwise be offences,' among the 'Introductory Provisions.* . dency. I refer to such attempts, or inchoate acts, as are criminally prosecuted. Here Austin" holds that the offender is punished in respect of his intention, i.e. a particular state of mind, which is evidenced by some overt, i.e. external, act or acts. 13 It does not seem to me a matter of great importance whether we here, with Mr Campbell 12, call the intention an act, or confine that term, as Austin on the whole prefers 13, to external events. As a matter of fact, in all punishable attempts the overt act is now1 so invariably essential, that it seems practically unobjectionable to regard the punishable matter rather as that overt act, when connected with the agent's state of mind, than as the state of mind when proved by the overt act. And, if we examine the extreme doctrine of pure intention which appears in the "imagining" or "compassing" of our own law of treason15, we shall see that, except in cases of admitted gross injustice and tyranny, such as the monstrous judgment related by Hale as delivered under Edward IV., and the later trials of Peachum and Sydney 16, the overt act required by statute" has usually been not merely matter evidencing intention, but a step, however slight, 11 Austin, Lect. 21, pp. 454, 5: 27, p. 523. 12 Notes to Austin, pp. 427, 455. 13 Cf. Austin, Lect. 14, p. 376, and Lect. 19, p. 433. 14 Austin I think admits this in the text, Lect. 21, 455. I do not know the case referred to in the note (88), of a man punished for confessed intention (without overt act) to kill Henry III. of France. 15 Where Foster (Discourse 1, pp. 194, 5), with a truer insight than Blackstone shews (Comm. 4. 6. 78, 79), speaks of the overt act as "the means made use of to effectuate the intentions of the heart," "The law," he says, "considereth the wicked imaginations of the heart in the same degree of guilt as if carried into actual execution, from the moment measures appear to have been taken to render them effectual." 16 See Blackstone on these cases. Comm. 4. 6, p. 81. towards performance1. The relative importance as between the constituents of an attempt is correctly given by Sir James Stephen, when he defines an attempt as an act done with intent to commit a crime and forming part of a series of acts which would constitute its actual commission if not interrupted 19. The point at which such a series begins must naturally vary with different cases 20; but, until the point is reached, law takes no account whatever of the preceding intention. Incitement and conspiracy to commit a crime are clearly to be classed with attempts strictly so called11. I pass now, however, to events which, unlike attempts, are actually and directly injurious. Whether such events are legally imputable to a person depends upon their connexion with his conduct, and his state of mind with reference to that conduct. There are then, in crime, first of all two things to be established. 1. An event-perhaps only one in a series of connected events—which will ground criminal procedure, i.e. procedure at the discretion and in the interest of the public, provided it be a consequence of human conduct. 2. A connexion between that event and the conduct of some human being. Consequences may be either ultimate or mediate, but must be, in some appreciable degree, connected with that to 18 Such as publication of a treasonable document. Blackstone 1. c. Coke admits mere setting down in writing. 3 Instt. 1, p. 5 (fait compasser) and p. 14 (per overt fait). See too Hale, 1 P. C. 115. 19 Stephen, Digest, Art. 49. See note iv. p. 337. Code, § 74. For treason, he admits writing to be a sufficient overt act in the existing law (Digest, Art. 57), but does not insert a corresponding provision in the Code. 20 ib. 21 As by Stephen in Digest, ch. 5, "Degrees in the commission of Crime.” Incitement (Art. 47), Conspiracy (Art. 48), Attempts (Artt. 49, 50). In the Code, as a matter of arrangement, might not the majority of the clauses in Pt. 36 go together with Pt. 4? which they are referred. In stating this, or in saying that the connexion with the conduct of the party must not be too remote, I am laying down a condition which the least reflection will shew to be just, but which cannot possibly be reduced to rule. Innumerable cases may be imagined, ranging from the clearest non-responsibility to the clearest responsibility, accordingly as the connexion of the actual result with the conduct of the party is or is not sufficiently near". It is a question of degree, dependent upon the circumstances of each particular case; and is much the same question as decides whether certain conduct amounts or not to an attempt. Generally, we should say that an actual event was the consequence of a person's conduct, or that his conduct was an attempt to produce an event (which did not actually happen), when the event was one which most people would consider likely to follow from the conduct. Should this homely criterion be followed, the question would seem to me, in English law, one for a jury. Sir James Stephen, however, if I understand him rightly 24, would leave it to the judge "whether an act done or omitted with intent to commit an offence is, or is not, only preparation for the commission of that offence, and too remote to constitute an attempt to commit it." Terms employed. A connexion, not too remote, being established, between the conduct of some person, and an 22 Instances of over-remoteness occur frequently in Russell, on Manslaughter (Crimes and Misdemeanours, 1. 810-842). For instance. Evidence was too slight to convict for manslaughter, where the prisoner had struck a light and lighted a candle, contrary to ship's regulations, and thrown down the lighted match, but six hours elapsed without sign of fire by sight or smell. p. 841. 23 Stephen, Digest, Art. 219, on the question "whether a given act or omission is directly and immediately connected with the death of any person." But the notes and illustrations (pp. 138, 9) have a clear bearing on 'causal connexion' generally. 24 Code, § 74. The question, &c. (as in text) is a question of law. event which, if the consequence of such conduct is, in the particular system of law, a ground for criminal procedure25; he is prima facie liable, and the consequence and his conduct together constitute his offence or crime". Where that prima facie liability is removed, it is sometimes laid down 28 that the act was not a crime, sometimes29 that there shall be no conviction for it. Where that liability is not removed, the consequence and conduct together are properly said to be imputable to the person. Imputability is sometimes, but incorrectly, predicated of the wrong doer himself 31; who is properly said to be, as above, liable, or guilty. This last word, which apparently first expressed liability to money payment, is now, beside the meaning of general criminal liability, sometimes used to describe the state of a person's mind considered as the cause of certain criminal conduct. Hence Austin's statement that guilt sometimes denotes the state of mind and only connotes the positive or negative consequences of that state, like culpa, when used by the Roman lawyers in a stricter sense, like the reatus of modern philoso 25 These words exclude cases of justification and excuse. 26 Ligabilis. In this word, the introduction of which into our language is not very easy to trace, the ligamen is generally taken to be metaphorical= obligation. Is it impossible that liable may have originally meant subject to physical bonds? But see Skeat sub voce. 27 For the distinction of civil or criminal sanctions see above. Crime, the substantive, is scarcely used in the wide sense tallying with that distinction: but either means indictable offences as distinguished from those punishable on summary conviction (Stephen, Digest, Int. vIII.), or (popularly) the more serious indictable offences. Offence is the more general term, and I have hereafter called the person inculpated the offender. 28 Stephen, Digest, Artt. 25, 26, 27. 29 Proposed in Code. See §§ 20-22. 30 A metaphor from accounts. Putare to clear, i.e. balance; in, against a person. 31 Austin, Lect. 24, p. 473, and note 95. 32 Skeat sub voce. 33 Austin, Lect. 24, p. 476, |