THE ENGLISH PUNISHMENT FOR CRIMES OF OMISSION.
.CIIHE difficulty of punishing crimes of omission, of bringing the j1. moral and civil law into accord in cases of evil negligence, has long been the opprobrium of jurists. If a man who can swim sees a child drowning, and could save it but does not, he is morally guilty though not of murder, still of a very serious offence. No law, however, can punish his quiescence, for no legislation could obtain evidence as to the mental progress going on in his mind. He may have been merely unready, watching the exact moment at which to save the child, or may have doubted its danger, or may not have fully satisfied himself that it was alive, or may be simply afraid— and cowardice is not.an offence definable by civil law. Jurists are powerless to fill up what is, nevertheless, a breach in the chain of compulsory enactments, and a breach in a most important link. One of the first objects and ends of punishment is to re-tone the moral sense of society, to keep up by external force the impulses good men should usually feel from within. The tendency to crimes of omission, being fostered in addition to all other temptations by in- dolence and fear, specially needs this repression, which, nevertheless, the wisest legislators have always refused to secure. The mischief which would arise from punishing upon moral evidence, according, that is, to the prejudices, or ideas, or convictions of the judge, is felt to be greater than the gain arising from the new energy imparted to benevolence, and men may watch a fire with folded hands, or see their friends commit suicide, or stand apart while their wives are tortured—that occurred in Devon the other day,—without any punishment beyond the one which opinion can inflict.
Oddly enough, however, English lawyers, always illogical, but usually effective, have invented in the regular, blundering, purpose- less, sensible English way, a device which remedies moat of the failures of the criminal law. They do not, indeed, attempt to touch the individual for not fulfilling his moral duty. A neighbour
may see a neighbour's child burn itself to death without being punished, except by the hoot the crowd would probably raise. Nor do they attempt to visit penally even those who, being bound by promise or position not to show negligence, still grievously fail in their natural or self-imposed obligation. A mother may see her child go too near a well, or a nurse leave her. charge dangerously near the track of racing omnibuses, without being sentenced by a magistrate to any term of imprisonment. But they have invented, or elucidated, the theory that every office involving gain involves also a tacit contract, and that if by the officeholder's negligence any damage arise to any other person, there is a right, not of pun- ishment, but simply of compensation for the loss so sustained. If an omnibus-driver under instructions to " nurse" other omnibuses runs over a passenger, that passengers children have no power to bring his employers before a magistrate, but they have power to bring them into a civil court. His death usually injures their prospects, and in the few cases in which it does not, the jury, re- cognizing the natural equity of the claim, are very lenient indeed in their view as to the amount of proof required. The result is to establish the power of the courts to inflict very serious fines upon all persons who, being in any way responsible for the safety of life and property, refuse or neglect to fulfil their implied or promised engagements. Everybody is forced from without to do his duty, provided that he has acknowledged openly or tacitly his obligation to do it. It is a very curious device, but on the whole it works, like most English devices, very fairly well. It really makes the corporate bodies who carry us, and manufacture for us, and collect water for us, and build houses for us, feel a respon- sibility as much as any alteration in the criminal law could do while it dispenses with the need of impossible evidence as to a man's mental state. If we were to hang a railway company because one of its guards in a drunken fit ran over a harmless passenger, we should have to prove that every shareholder meant to kill that passenger, or if directors were to be held responsible, that each director knew death would be the consequence of his act, which, of course, could never be done. But it is easy to prove that the guard was drunk, that the passenger was run over, that the guard was employed by the company, that the company had contracted to employ sober guards, and that consequently the children of the killed man are sufferers by breach of contract. They get punished in a roundabout way quite enough to make them more careful, and in a manner not at all inconsistent with natural justice, or calcu- lated to excite a demoralizing pity for them.
There seems some risk that this system, which, we take it, really protects English life and property as much as any single law, may be subjected to some very hard strains. The railway interest does not like it at all, and the railway interest is very powerful, and has struck once or twice very audaciously at the law. It is not very popular, indeed, with any holders of property, for the chance of somebody else benefiting by damages inflicted for injury done to you is very much less than the chance of paying for damage you have unconsciously done to others. Propertied persons are beginning to talk very audibly about the injustice of juries, and their tendency tiexceeeisitudveyafwallards,of and the min.willfreffelmoforeoaccvumer,ulaliadtinbgeendam:sirenes for one and the same act. We should not wonder if the disaster of Saturdaylast, the breaking out of the Bradfield Reservoir, brought this discontent to a head. A catastrophe so great has seldom been followed by a punishment so tremendous. It is asserted that the reservoir was originally weak, that the dam, 100 feet high, was built too cheaply, was insufficiently sloped, insufficiently puddled, and built upon a foundation known to engineers to be of the insecure state of the dam, and that warning was not attended to with sufficient speed. There seems to be prima facie evidence of neglect, and the catastrophe, whatever its excuse, caused the deaths of three hundred persons, the destruction of whole villages, and in short, one of those awful scenes of helpless misery and terror which we usually associate only with the terrible side of the great laws of nature. But if the negligence is proved, the punishment will be as tremendous as the catastrophe. The whole property of the company will be instantly swept away. Their capital cannot meet the demands for compensation, and we do not feel absolutely certain that limited liability, though it extends to all debts, extends also to infractions of law. Avoiding that question, never yet, we think, decided, then comes the point sure to be angrily debated—is such an infliction just ? Would legislators consciously arrange that for a defect of care a man should be fined in everything he possessed ? For, will property- holders argue, "Look how little connection there is between our real offence and its penalty? Admit that we ought to have built that dam better, and should be fined for not having done BD) surely the amount of fine should be regulated in some degree by the motive proved ? Suppose the reservoir had burst over a valley almost un- inhabited, we should have been liable only for a few score thousand pounds. But because it burst over a valley filled with houses, and with a great city jutting into its neck, therefore the accumulation of individual claims is to ruin us utterly. Is that just ? Ought we not rather to lose a sum bearing some proportion to a year's or two years' profits, a heavy sum if you will, but still a sum fixed, not regulated by accidents over which we have not the slightest control ? Suppose the Koh-i-noor had been in the way, and been swept into the sea ?" Prima facie there is justice in that argument, but the answer, we fear, unfortunately for the proprietors of the waterworks, is, nevertheless, too clear. It is simply that every offence is punished and must be punished on an estimate of motive and effect conjointly. A man stabs another, not meaning to kill him, but to lay him up for a twelvemonth. If the victim survives the stabber has secured his end, and,—except in London, where he will probably receive a re- primand and a fortnight's imprisonment,—he is punished accord- ingly. But if the victim dies the ruffian is, even in London, punished much more heavily, though the motive was in both cases one and the same. So in cases of theft, though all theft has the same motive, the value of the loss regulates in part the punishment, and the whole theory of damage rests not on the act alone, but on the injury which the act has caused. The killing of a labourer and the killing of a peer is, to the criminal law, one and the same act, but if a railway company does it the damages will be widely different. The injury done is part of the offence, and in cases of vast injury the doers of it must accept vast penalty, as they would any other misfortune. Otherwise, the first object of the law, to secure among the very rich an external and powerful motive for extra care, would be entirely defeated. That Sheffield lay in the way of their water is a very great misfortune for the company, but then it was also a very great reason•for that unusual caution and prudence it is the object of the system of compensations to inculcate. Had the sea flowed by the dam its weakness would hardly have been matter of blame, rather a question of pecuniary prudence, for the sea is not hurt by any number of cubic feet of addition ; but as Sheffield stood at its foot, the guilt of carelessness is that of neglecting precautions which involve the imminent and visible fate of thousands. Of course, if there was no negligence there was also no guilt, but if there was, then the extent of injury done is not an adequate reason for reducing the fine.
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