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by the strongest wish, and even purpose, so far as the forbearance is concerned, of consequences which would be criminal when resulting from a positive act: yet, if the train of events which ends in these consequences is not due in any point to the person, who is merely a complacent spectator, he does not appear to be, in actual legal systems, criminally liable, whatever moral abhorrence his conduct would naturally excite; unless the act from which he forbore was one which he was under a legal obligation to perform 105. There is, however, little doubt that any such cases which became frequent, and so, capable of being dealt with generically, would lead to the speedy imposition of legal obligations to meet the emergency 108

105 See the very strong illustration, I presume hypothetical, in Stephen's Digest, p. 135, and the statement in the text (Art. 212). “It is not a crime to cause death or bodily injury, even intentionally, by any omission, other than those referred to in the last article."

106 Cf. the rules and cases in Stephen's Digest, ch. 22, and compare Part XV. of the Code, and below end of ch. Ix.



Offender's knowledge as to the probable consequences of his conduct.

VOLITION, including not merely the exercise but the power or capacity of will, has been sufficiently considered as connected with the offender's conduct, whether act, forbearance or omission, and the more immediate consequences which are generally coupled with that conduct under the word act.

I proceed now to the remoter mental condition which causes or further characterizes the conduct, and so renders the offender criminally liable for that conduct's results. At first sight such condition would appear to consist simply of desire, positive or negative-Hobbes' " Appetites and Aversions, Hopes and Fears." But it is obvious on a little thought that a more important essential, to which desire may or may not be superadded, is expectation, or rather the grounds of expectation. And here the use of the term knowledge, in the latter part of Chapter I. and the heading of this Chapter, must be explained.

Expectation, when very strong and well founded, is often styled Knowledge—or, e converso, what is often styled knowledge, as to the future, is really only a strong expectation. Thus Austin himself speaks of knowing that a thing

will happen1. This expression is, strictly and literally taken, incorrect: we can only know what is happening or has happened; as to future consequences, our so-called knowledge is merely a strong expectation, which may amount to what we call moral certainty but is not certain in fact.

If, however, we change the phrase to, knowledge that so and so is likely to happen, the word know has now a strictly proper meaning, though its object, in that meaning, is not very clearly expressed. As applied to our own conduct, the expression knowledge that such a result is likely, obviously means, our knowledge that similar results have followed, and do ordinarily follow from similar conduct. As applied to the conduct of others:-When I say to a fellow, who has thrown or fired a detonating ball so as to fall into a powder magazine-You knew it would blow up-I mean, I assume that you knew, either through your own experience or through the experience and information of others, what have been the results, what are the ordinary results, of such dealings with powder and detonating balls. I may make a wrong assumption, (or presumption as it is called when the courts make it,) but that is what I mean; and this is correctly called knowledge. Such knowledge might of course be proved by entering into the previous life of the individual; but common sense shews that such an enquiry would be in general not only troublesome but trivial and unnecessary. The mere fact that such speeches or imputations, as I have instanced, are made every day, in the practice both of courts and ordinary life, points to the existence of some general experience, common to those amongst whom a person lives, and an assumption that, as so living, he has that experience for a guide to the probable results of his conduct.

1 Austin, Notes on Criminal Law, p. 1093.


A special standard of experience exists, and may be reasonably assumed in individual cases, amongst professional An engineer for instance, would be presumed to know the results of certain conduct with reference to an engine a gasman with reference to gas-a man who took any post or occupation with reference to the duties. of that post-better than an ordinary person. This special presumption is an important point, but it seems to me to come under the same general principle as the former.

Broadly stated, the presumption is this—a man is taken to know, as to the probable consequences of his conduct, what most people in his position would know. In law, this is a præsumptio juris, but not also de jure, for special circumstances of ignorance may be shewn, to rebut it, in the case of individuals; and, in the case of some classes of persons, there is a counter presumption.

The next essential, then, of criminal liability, besides those already considered, is the agent's knowledge, that is, his expectation or capacity of expectation, of the consequences of his conduct: "the party expects the consequences inconsistent with the objects of his duty," (more shortly the criminal consequences)—“ or he might expect such consequences if he adverted or attended as he ought." His guilt or liability will materially vary in degree-the results produced being the same-as his state of mind turns out to have been actual expectation, or the mere capability of it, and as his actual conduct was more or less likely to cause the results which it did cause, and therefore to suggest to him the expectation of them. But the capacity for such expectation must be there, or the party is, except in one anomalous case, noticed below, not liable at all.

The experience, knowledge, or capacity of expectation, of which I am now speaking, is, as I have said, presumed, 2 Markby, p. 108, §§ 220, 221. 3 Austin, Lect. 25, p. 481.

and reasonably presumed by law. The exemptions, therefore, or cases of non-liability, under this particular head, will be either where there is a counter presumption (the case of infants), or where it is proved that the offender could not foresee the consequence of his conduct. It is sometimes said that such a person 'does not know what he is doing,' but this phrase is best confined to the more immediate consequences of bodily movement.

This want of knowledge has been, in our cases, often rather confusedly combined with want of knowledge of the wrongness or punishability of the act and its consequences taken together; e.g. the question is put "whether the prisoner was labouring under that species of insanity which satisfies the jury that he was quite unaware of the nature, character and consequences of the act he was committing-in other words was really unconscious, at the time he was committing the act, that it was a crime.” The Solicitor-General speaks, in Lord Ferrers' case, of sufficient faculty "to distinguish the nature of actions, to discern the difference between moral good and evil.” The prisoner's being “insensible of the nature of the act he was about to commit" and "disabled from discerning that he was doing a wrong act," are apparently, from their connexion with the same phrase about illusion, spoken of as the same thing'. There is a like want of clearness, in the language of English practice, with regard to infants under 14 and over 7 years of age. Here, in felonies, it is left to the jury to say whether, at the time of committing the offence, the person had guilty knowledge that he was doing

4 Austin, Lect. 26, p. 506, “did not and could not." If the second negative has to be proved, the first is clearly unnecessary.

5 Oxford's case, 9 Carrington and Payne, 547.

6 Howell's State Trials, 19. 947.

7 Bowler's case, Collinson on Lunacy, p. 673 (addendum).

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