phical jurisprudence, and like the verschulden of German law 34. I mention these refinements merely to prevent misapprehension. Reatus and verschulden I willingly leave to Austin's explanation: but culpa is here, it must be remarked, used in an intermediate sense between that which is almost exactly equivalent to the ordinary meaning of guilt and the still narrower one in which it is opposed to dolus or wrongful intention 36.

In its ordinary sense, guilt, I think, denotes both the state of mind and the consequences of that state of mind3⁄4: it differs from crime, in that guilt has reference primarily to the conduct and consciousness of the offender, while crime has reference primarily to the consequences of such conduct.

Presumptions. This is perhaps the best place for considering another technical phrase, which I have hitherto endeavoured to avoid. Legal Presumption is a matter of evidence or rather of dispensing with evidence. On the term, Austin has one of his somewhat quibbling objections. It is absurd, he says, to style conclusive inferences presumptions. That is, where it is not allowable that any evidence to the contrary shall be admitted, there is nothing for the assumption to precede. Strictly speaking, a presumption is only an inference which is not conclusive, i. e. which may be disproved by proofs, to the contrary, following it. Practically, as every one knows, the term is applied to inferences which are legally conclusive, no such proof being admitted.

The same author also somewhat unnecessarily introduces the subject of præsumptio hominis. Whether this means an 34 ib. pp. 477, 8.

35 ib. p. 478. Cf. Lect. 20, p. 445. Generatim culpa dicitur quaevis injuria ita admissa ut jure imputari possit ejus auctori. I do not know the source of this quotation.

36 ib. p. 445.

37 So Austin, ultimately, Lect. 24, p. 478.

38 Austin, Lect. 26, p. 507.

inference as alleged by the suitor or as left to the judge”, it does not concern us, who have only to deal with præsumptiones juris, inferences which the law instructs the judge to draw from certain facts"0. For instance, if a man acts in a way which would naturally, i.e. ordinarily, lead to certain consequences, the law presumes, or directs the judge to infer, that he intended those consequences.

In a simple præsumptio juris, as in the case just instanced, proof to the contrary is admissible, but, until such proof is produced, the inference holds". Where the presumption is also de jure (which additional phrase apparently means by intrinsic right), the admission of counter evidence is forbidden, or the inference is conclusive13. An instance adduced by Austin is the incapacity for unlawful intention or culpable inadvertence, of an infant under seven".

In most of the cases of presumed capacity or incapacity the inference is a true one, and the presumption reasonable. It is, I think, rather in defective property law, that legal presumptions obviously fictitious are made, as a means, Austin points out, of indirect legislation. With these lastnamed presumptions we are not here concerned.

39 The latter is Austin's view, p. 507: the former seems to me the more natural meaning.

40 Austin, ib.

41 Austin, p. 508.

42 Compare, at any rate, the antithesis, elsewhere, of de jure and de facto. 43 Austin, ib.

CHAPTER III.

ESSENTIALS OF CRIMINAL LIABILITY, CONTINUED.

Volition of the offender.

FOLLOWING What seems the more practical order of things -from the injurious event to the consciousness of the person responsible for it-we have arrived at the fact, now supposed to be established, that such event is connected, not too remotely, with the conduct of some person; is, primâ facie, his offence or crime. That person I shall henceforth, for convenience, call the offender, and shall proceed to analyse his conduct, or enquire of what facts it consists. An obvious primary division of these facts must be that he has either done something or not done something; his conduct may have been, on the one hand, an act; on the other, a forbearance or omission; of which cases I shall take the act first.

Acts. By something I here mean, as was stated in the case of events generally, above, something sensible, external, or, according to technical legal phraseology, overt. I do not include what is sometimes termed an act of the will, i.e. a state of things within a man's breast, which we have to infer or presume. It is as well, in fact, for the purposes of the present enquiry, to discard altogether the expression acts of the will and Bentham's internal acts', which Austin

1 Bentham, Introduction, ch. vII. § xi. p. 73.

The simple

originally accepts but ultimately abandons2. word act is the most convenient to employ for the something which has been done, being used in its ordinary and popular meaning.

First, then, we shall, as has been intimated, exclude from such meaning Bentham's internal acts and Austin's determinations of the will altogether. Consequently, we take the act prima facie as an external state of things produced by the agent, or, if you will, by his body, whether voluntarily or involuntarily. Voluntariness is, by Austin and by many other authorities, who I think here step beyond the ordinary sense of the word, included in the definition of acts or actions themselves. "External acts are such movements of the body as are consequent upon determinations of the will." "Acts" are “in strictness," "those bodily movements which immediately follow volition*." "An action is a set of bodily voluntary movements combined by the mind in reference to a common object." And Austin's instance-falling into water-in favour of at once discarding certain bodily movements as not acts at all, is strong. Still, cases may occur and have occurred, where the line between the clear he could not help it' and 'he did not choose to help it' is very difficult to draw. The attached servant of a prince, accompanying his master in a tour through the Alps, in an epileptic fit throws out his arm and pushes that master over a precipice. Here only the most barbarous government would punish the man for what is doubtless in strictness, as Austin holds, not an act at all. But in such a case as that of Dove', whom most men consider to have been justly hanged, one line of defence was practically, that he could not help the act of

2 Austin, Lect. 14, p. 376, and Lect. 19, p. 433. See Campbell's notes. 3 Austin, ib. p. 376.

5 Stephen, G. V. p. 75.

7 Stephen, G. V. p. 401.

4 Markby, § 208, p. 102.

6 Austin, ib. p. 376.

poisoning. Other similar cases may be conceived, and have occurred.

We shall do well therefore, at first, to keep apart from our consideration even that amount of mental state which determines the voluntariness of the mere bodily movement, viewing the state of things simply ab extra, which I believe is the view taken by most ordinary people when they speak

of an act.

In this point of view then, first of all, we leave out of Austin's definition of acts the internal 'desires of them.' But it must be remarked, in the second place, that, if the popular use of the word acts leaves out part of Austin's definition, it also takes in something which he does not include. Speaking of that popular use, he remarks", with a practical good sense which underlies all his apparent dogmatism, that we cannot discard established forms of speech, and so, in this case, we must either substitute new expressions for ordinary language or include under 'acts' some of the more immediate and obvious consequences of them. In ordinary language, for instance, no line would be drawn between my grasping a rapier, extending my arm, and the rapier entering your breast; between my taking up a gun, pulling the trigger, and by that means igniting the charge and lodging the bullet in you. Consequences very near, and what would be considered, in the judgment of all ordinary men, very certain, are taken as "parts of the act;" more correctly speaking, as inseparably connected with the first bodily movement 10.

To digress for one moment into consideration of the

8 Austin, Lect. 19, p. 432. "The bodily movements which immediately follow our desires of them."

9 ib. and 433.

10 Markby, p. 102, § 208, goes much further-"any one of a series of events which are regarded as the result of our bodily movements is called an act," &c.