general rule. The absence of legal justification appears to be essential, and therefore we may perhaps say that what is intended, must be what the party knew or might have known to be wrong. Sir James Stephen treats this as knowledge that the conduct is wicked. That rendering exactly represents the language of our old jurists, whose theological bent must not be forgotten. I question whether it comes so near the result of later decisions as the word wrong. I have spoken above of wrongness and the legal presumption of knowledge concerning it. If malice means nothing more than this, that presumption would render the use of the term unnecessary, and we might always replace maliciously by wilfully or intentionally.

762

There is, however, undoubtedly the vague feeling, both in text-writers, judges and juries, that malice, except when qualified by some term shewing that it does not mean malice, always signifies either spite against a definite individual or the general desire to do injury to some one, which Austin styles malevolence 6. This is the natural, i.e. the ordinary use of the word: and the legal use of a common word in a non-natural sense is, to say the least of it, undesirable.

63

The consequence of making malice in general terms a necessary element of crime is, says Sir James Stephen, that certain acts are declared to be primâ facie wicked actions, though circumstances may exist by which their wickedness is either removed or diminished. In practice, this means a declaration that whosoever intentionally or knowingly

59 G. V. 84, 85.

60 Nequiter, corrupto animo, de sua malitia, mala conscientia, &c.

61 Chapter v. pp. 61, 62.

62 Which Austin, Lect. 12, p. 355, and 20, p. 446, holds to be its "original and proper meaning."

63 ib.

64 Stephen, G. V. 83.

produces certain results is criminally liable for them, unless he can prove one or other of the justifications and excuses recognized by law.

65"

I do not quite understand the argument of the lastnamed author for retaining the word, " that new cases might arise in which it would be necessary to use it in its natural sense It would be apparently as easy to apply to a new case the principle of previously recognized justifications as of previously recognized malice. Moreover the 'natural' sense of the word somewhat wavers between localized spite and general malevolence; while the legal sense has been held to be that purely negative one, which is perfectly satisfied by tabulating the recognized justifications and

excuses.

But a far stronger argument, than any that I can allege, against the retention of this confused and confusing term, is its omission from our projected criminal code by the jurist and legislator whom I have just quoted. In murder, and mischief-the latter covering arson-the actual intention or other culpable frame of mind is set forth under its proper and intelligible name: in libel, the special design or, where that is not necessary, the nature of the matter published, are clearly expressed. It seems perhaps a question whether common essentials or degrees of criminal liability, might not be rather more separated, as general preliminary matter, from the particular offences, than they are proposed to be in this Bill. But its great merits disarm criticism, especially from those who have not had practical experience in judicature or legislation: and not the least of those merits appears to be the extirpation of "legal malice."

65 ib.

66 Code, § 227. Designed to insult...or calculated to injure the reputation. Should not calculated be tending?

CHAPTER VIII.

DEGREES OF CRIMINAL LIABILITY, CONTINUED.

A. Major Criminality.

Criminal Knowledge or Virtual Intention.

AUSTIN'S second subdivision of criminal knowledge-criminal knowledge short of criminal design—which was referred to in a previous chapter1, is "where the production of the mischievous consequence which the law seeks to prevent is not the end, ultimate or mediate, of the criminal, but where he knows that such mischievous consequence (though he does not wish the production of it) will follow necessarily or probably his act or omission"."

Direct intention, in the ordinary sense of the word, will obviously be of the essence of many, if not most, crimes. These will, I think, be the cases where a specific intention really exists. What we have now to consider are, such criminal consequences as may reasonably be believed not to have been directly intended, though there may have been "knowledge" that they would ensue. I believe, though it is

1 Chapter vi. p. 79.

2 Austin, Notes on Criminal Law, pp. 1093, 4. As here, and in the [bracketed] paragraph opposite, Austin speaks of omission being accompanied by criminal knowledge, I think he must use the former word in its loose and general sense of non-act. See above ch. III., and Austin, 20, p. 438. 3 End of chapter VI.

hazardous to draw a hard and fast line, that this can only be the case where the conduct of the offender is of a violent, mischievous, or dangerous tendency*.

I have spoken above of that capacity to expect the consequences of our conduct which is presumed, as the result of ordinary experience.

It was there stated that the guilt or liability of the offender would vary materially in degree-the results produced being the same--as his state of mind turned out to have been actual expectation or the mere capability of it. Such an actual expectation, which is what I am now considering, will sometimes, conveniently for the purposes of justice, be expressed, i.e. evinced by words or clearly construable conduct of the offender. This might be called express criminal knowledge. More often, it has to be inferred from such conduct, and, in particular, from the character of what was intended. For the state of mind, now under consideration, must almost necessarily coexist with an intention proper, of consequences very nearly approaching to those that actually occur, so that the latter are as justly imputed to the agent as if he had directly intended them. For practical purposes this state of mind, including the case of express criminal knowledge, might be called indirect or virtual intention. The former phrase is Bentham's, and either is certainly preferable to our 'implied malice.' The reasonableness of such an imputation as the above scarcely requires illustration.

For instance, the example given by Austin of criminal knowledge, 1. c. Arson of a house adjoining his (the criminal's) own, through his setting fire to his own with intent to defraud his insurers. The destruction of his neighbour's house will not subserve his end; but he knows that the destruction of his neighbour's house will follow, necessarily or probably, the firing of his own. 5 Ch. IV.

6 Austin, Lect. 24, p. 480. Bentham's own word appears to be "oblique." Introduction, ch. vIII. pp. 84, 86.

The man who lays a mine of dynamite, to destroy the Emperor of Russia at dinner, may have friends, amongst those at the party who actually perish, for whom he would lay down his own life: but, as to the imputability of their deaths to that man, there surely could be no hesitation.

Under this principle of virtual intention seem to come most of the murder cases where the malice required by law has received a free interpretation'. E.g. where an act not justifiable or excusable, and resulting in death, was done under circumstances shewing an intent to do serious injury to the individual. Where the same result followed an act, in the abstract legal, but done with the intention of great bodily harm. For an act, not unlawful in itself, may be performed in a manner so criminal and improper as to make the party performing it, and in the prosecution of his purpose causing the death of another, guilty of murder1o. Such are the cases of cruel or unusual correction in foro domestico, laid by Blackstone" on express malice; where it must be remarked that if the instrument employed, though improper, was not likely to kill the offence was only manslaughter1.

Again, there are rarer cases, where the intention is apparently not to injure any definite individual but to produce indiscriminate mischief-where, if death ensues, the English law speaks of malice against all mankind or universal malice13. It would seem here to depend upon the degree of danger in such acts whether their character is in itself sufficient to presume the 'evil design' which is technically required by English law, for murder, or only to constitute the minor 7 See last chapter.

8 See Fenton's case, 1 Lewin, 179. 1 Russell, 762.

91 East, P. C. c. 5, § 36.

10 Russell, 1. pp. 767--780.

11 Blackstone, Comm. 4. 14, p. 199.

12 Foster, Disc. 2, p. 262. 1 East, P. C. c. 5, § 37. See Russell (1. p. 774) on R. v. Wiggs, 1 Leach, C. C. 379.

13 Blackstone, Comm. 4. 14, pp. 192, 200. See too Foster, Disc. 2, p. 261.