SUMMARY.
| Liability | Civil | Remedial. | |
| Criminal | Penal. | ||
| Remedial liability: | |||
| Specific enforcement the general rule. | |||
| Exceptions: | |||
| 1. Non-actionable wrongs. | |||
| 2. Transitory wrongs. | |||
| 3. Continuing wrongs in which sanctional enforcement is more expedient than specific. | |||
| Penal liability | Its conditions. | ||
| Its incidence. | |||
| Its measure. | |||
| Conditions of penal liability | Material—Actus. | ||
| Formal—Mens rea. | |||
| The nature of an act: | |||
| 1. Positive and negative acts. | |||
| 2. Internal and external acts. | |||
| 3. Intentional and unintentional acts. | |||
| The circumstances and consequences of acts. | |||
| The relation between injuria and damnum. | |||
| 1. All wrongs are mischievous acts. | |||
| Wrongs | In which proof of damage is required. | ||
| In which such proof is not required. | |||
| 2. All mischievous acts are not wrongs. | |||
| Damnum sine injuria. | |||
| (a) Loss of individual a gain to society at large. | |||
| (b) Legal remedy inexpedient. | |||
| The place and time of an act. | |||
| The formal condition of penal liability. | |||
| Mens rea | Intention. | ||
| Negligence. | |||
| Wrongs | 1. Of Intention. | ||
| 2. Of Negligence. | |||
| 3. Of Absolute Liability (exceptions to the requirement of mens rea). | |||
CHAPTER XVIII
INTENTION AND NEGLIGENCE.
§ 133. The Nature of Intention.
Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfil themselves through the operation of the will. An act is intentional if, and in so far as, it exists in idea before it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied.[[340]]
An act may be wholly unintentional, or wholly intentional, or intentional in part only. It is wholly unintentional if no part of it is the outcome of any conscious purpose or design, no part of it having existed in idea before it became realised in fact. I may omit to pay a debt, because I have completely forgotten that it exists; or I may, through careless handling, accidentally press the trigger of a pistol in my hand and so wound a bystander. An act is wholly intentional, on the other hand, when every part of it corresponds to the precedent idea of it, which was present in the actor’s mind, and of which it is the outcome and realisation. The issue falls completely within the boundaries of the intent. Finally an act may be in part intentional and in part unintentional. The idea and the fact, the will and the deed, the design and the issue, may be only partially coincident. If I throw stones, I may intend to break a window but not to do personal harm to any one; yet in the result I may do both of these things.
An act, and therefore a wrong, which is intended only in part, must be classed as unintended, just as a thing which is completed only in part is incomplete. If any constituent element or essential factor of the complete wrong falls outside the limits of the doer’s intent he cannot be dealt with on the footing of wilful wrongdoing. If liability in such a case exists at all, it must be either absolute or based on negligence.[[341]]
A wrong is intentional, only when the intention extends to all the elements of the wrong, and therefore to its circumstances no less than to its origin and its consequences. We cannot say, indeed, that the circumstances are intended or intentional; but the act is intentional with respect to the circumstances, inasmuch as they are included in that precedent idea which constitutes the intention of the act. So far, therefore, as the knowledge of the doer does not extend to any material circumstance, the wrong is, as to that circumstance, unintentional. To trespass on A.’s land believing it to be one’s own is not a wilful wrong. The trespasser intended, indeed, to enter upon the land, but he did not intend to enter upon land belonging to A. His act was unintentional as to the circumstance that the land belonged to A. So if a woman marries again during the lifetime of her former husband, but believing him to be dead, she does not wilfully commit the crime of bigamy, for one of the material circumstances lies outside her intention. With respect to that circumstance the will and the deed are not coincident.
Intention does not necessarily involve expectation. I may intend a result which I well know to be extremely improbable. So an act may be intentional with respect to a particular circumstance, although the chance of the existence of that circumstance is known to be exceedingly small. Intention is the foresight of a desired issue, however improbable—not the foresight of an undesired issue, however probable. If I fire a rifle in the direction of a man half a mile away, I may know perfectly well that the chance of hitting him is not one in a thousand; I may fully expect to miss him; nevertheless I intend to hit him if I desire to do so. He who steals a letter containing a cheque, intentionally steals the cheque also, if he hopes that the letter may contain one, even though he well knows that the odds against the existence of such a circumstance are very great.
Conversely, expectation does not in itself amount to intention. An operating surgeon may know very well that his patient will probably die of the operation; yet he does not intend the fatal consequence which he expects. He intends the recovery which he hopes for but does not expect.
Although nothing can be intended which is not desired, it must be carefully noticed that a thing may be desired, and therefore intended, not in itself or for its own sake, but for the sake of something else with which it is necessarily connected. If I desire and intend a certain end, I also desire and intend the means by which this end is to be obtained, even though in themselves those means may be indifferent, or even objects of aversion. If I kill a man in order to rob him, I desire and intend his death, even though I deeply regret, in his interests or in my own, the necessity of it. In the same way, the desire and intention of an end extend not merely to the means by which it is obtained, but to all necessary concomitants without which it cannot be obtained. If an anarchist, desiring to kill the emperor, throws a bomb into his carriage, knowing that if it explodes and kills him it will also kill others who are riding with him, the assassin both desires and intends to kill those others. This additional slaughter may in itself be in no way desired by him; he may be genuinely sorry for it; yet it falls within the boundaries of his desire and of his intent, since it is believed by him to be a necessary concomitant of the end which he primarily seeks. The deaths of the emperor and of the members of his suite are inseparably connected, and they constitute, therefore, a single issue which must be desired and intended as a unity or not at all. When I know or believe that A. cannot be had without B., I cannot say that I intend A. but not B. If I desire A. sufficiently to overcome my aversion to B., then I desire the total issue of which A. and B. are the two inseparable factors. With respect to all circumstances which I know or believe to exist, and with respect to all consequences which I know or believe to be inevitable, my act is intentional, however undesirable those circumstances or consequences may be in themselves. I choose them deliberately and consciously as necessary incidents of that which I desire and intend for its own sake.
Any genuine belief, however, that an event may not happen, coupled with a genuine desire that it shall not, is sufficient to prevent it from being intended. So any genuine doubt as to the existence of a circumstance, coupled with a genuine hope that it does not exist, is enough to prevent the act from being intentional as to that circumstance. The act may be grossly negligent, it may be absolutely reckless, but it is not intentional. If I fire a rifle at A., knowing that I may very probably hit B. who is standing close to him, I do not for that reason intend to hit B. I genuinely intend and desire not to hit him. An intention to hit B. would be inconsistent with my admitted intention to hit A.[[342]]
§ 134. Intention and Motive.
A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior object which he desires to obtain by means of it. The evil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. He intends the attainment of this ulterior object, no less than he intends the wrongful act itself. His intent, therefore, is twofold, and is divisible into two distinct portions, which we may distinguish as his immediate and his ulterior intent. The former is that which relates to the wrongful act itself; the latter is that which passes beyond the wrongful act, and relates to the object or series of objects for the sake of which the act is done. The immediate intent of the thief is to appropriate another person’s money, while his ulterior intent may be to buy food with it or to pay a debt. The ulterior intent is called the motive of the act.
The immediate intent is that part of the total intent which is coincident with the wrongful act itself; the ulterior intent or motive is that part of the total intent which lies outside the boundaries of the wrongful act. For just as the act is not necessarily confined within the limits of the intent, so the intent is not necessarily confined within the limits of the act. The wrongdoer’s immediate intent, if he has one, is his purpose to commit the wrong; his ulterior intent, or motive, is his purpose in committing it. Every wrongful act may raise two distinct questions with respect to the intent of the doer. The first of these is: How did he do the act—intentionally or accidentally? The second is: If he did it intentionally, why did he do it? The first is an inquiry into his immediate intent; the second is concerned with his ulterior intent, or motive.
The ulterior intention of one wrongful act may be the commission of another. I may make a die with intent to coin bad money; I may coin bad money with intent to utter it; I may utter it with intent to defraud. Each of these acts is or may be a distinct criminal offence, and the intention of any one of them is immediate with respect to that act itself, but ulterior with respect to all that go before it in the series.
A person’s ulterior intent may be complex instead of simple; he may act from two or more concurrent motives instead of from one only. He may institute a prosecution, partly from a desire to see justice done, but partly also from ill-will towards the defendant. He may pay one of his creditors preferentially on the eve of bankruptcy, partly from a desire to benefit him at the expense of the others, and partly from a desire to gain some advantage for himself. Now the law, as we shall see later, sometimes makes liability for an act depend upon the motive with which it is done. The Bankruptcy Act, for example, regards as fraudulent any payment made by a debtor immediately before his bankruptcy with intent to prefer one of his creditors to the others. In all such cases the presence of mixed or concurrent motives raises a difficulty of interpretation. The phrase “with intent to,” or its equivalents, may mean any one of at least four different things:—(1) That the intent referred to must be the sole or exclusive intent; (2) that it is sufficient if it is one of several concurrent intents; (3) that it must be the chief or dominant intent, any others being subordinate or incidental; (4) that it must be a determining intent, that is to say, an intent in the absence of which the act would not have been done, the remaining purposes being insufficient motives by themselves. It is a question of construction which of those meanings is the true one in the particular case.[[343]]
§ 135. Malice.
Closely connected with the law and theory of intentional wrongdoing is the legal use of the word malice. In a narrow and popular sense this term means ill-will, spite, or malevolence; but its legal signification is much wider. Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia[[344]] means badness, physical or moral—wickedness in disposition or in conduct—not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.
We have seen, however, that intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. In the phrases malicious homicide and malicious injury to property, malicious is merely equivalent to wilful or intentional. I burn down a house maliciously if I burn it on purpose, but not if I burn it negligently. There is here no reference to any ulterior purpose or motive. But on the other hand malicious prosecution does not mean intentional prosecution; it means a prosecution inspired by some motive of which the law disapproves. A prosecution is malicious, for example, if its ulterior intent is the extortion of money from the accused. So also with the malice which is needed to make a man liable for defamation on a privileged occasion; I do not utter defamatory statements maliciously, simply because I utter them intentionally.[[345]]
Although the word malitia is not unknown to the Roman lawyers, the usual and technical name for wrongful intent is dolus, or more specifically dolus malus. Dolus and culpa are the two forms of mens rea. In a narrower sense, however, dolus includes merely that particular variety of wrongful intent which we term fraud—that is to say, the intent to deceive.[[346]] From this limited sense it was extended to cover all forms of wilful wrongdoing. The English term fraud has never received an equally wide extension. It resembles dolus, however, in having a double use. In its narrow sense it means deceit, as we have just said, and is commonly opposed to force. In a wider sense it includes all forms of dishonesty, that is to say, all wrongful conduct inspired by a desire to derive profit from the injury of others. In this sense fraud is commonly opposed to malice in its popular sense. I act fraudulently when the motive of my wrongdoing is to derive some material gain for myself, whether by way of deception, force, or otherwise. But I act maliciously when my motive is the pleasure of doing harm to another, rather than the acquisition of any advantage for myself. To steal property is fraudulent; to damage or destroy it is malicious.
§ 136. Relevance and Irrelevance of Motives.
We have already seen in what way and to what extent a man’s immediate intent is material in a question of liability. As a general rule no act is a sufficient basis of responsibility unless it is done either wilfully or negligently. Intention and negligence are the two alternative formal conditions of penal liability.
We have now to consider the relevance or materiality, not of the immediate, but of the ulterior intent. To what extent does the law take into account the motives of a wrongdoer? To what extent will it inquire not merely what the defendant has done, but why he has done it? To what extent is malice, in the sense of improper motive, an element in legal wrongdoing?
In answer to this question we may say generally (subject however, to very important qualifications) that in law a man’s motives are irrelevant. As a general rule no act otherwise lawful becomes unlawful because done with a bad motive; and conversely no act otherwise unlawful is excused or justified because of the motives of the doer, however good. The law will judge a man by what he does, not by the reasons for which he does it.
“It is certainly,” says Lord Herschell,[[347]] “a general rule of our law that an act prima facie lawful is not unlawful and actionable on account of the motives which dictated it.” So it has been said:[[348]] “No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious.” “Much more harm than good,” says Lord Macnaghten,[[349]] “would be done by encouraging or permitting inquiries into motives when the immediate act alleged to have caused the loss for which redress is sought is in itself innocent or neutral in character and one which anybody may do or leave undone without fear of legal consequences. Such an inquisition would I think be intolerable.”
An illustration of this irrelevance of motives is the right of a landowner to do harm to adjoining proprietors in certain defined ways by acts done on his own land. He may intercept the access of light to his neighbour’s windows, or withdraw by means of excavation the support which his land affords to his neighbour’s house, or drain away the water which would otherwise supply his neighbour’s well. His right to do all these things depends in no way on the motive with which he does them. The law cares nothing whether his acts are inspired by an honest desire to improve his own property, or by a malevolent impulse to damage that of others. He may do as he pleases with his own.[[350]]
To this rule as to the irrelevance of motives there are, however, very important exceptions, more especially in the criminal law. The chief of these are the following.
§ 137. Criminal Attempts.
An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is of the essence of the attempt. The act in itself may be perfectly innocent, but is deemed criminal by reason of the purpose with which it is done. To mix arsenic in food is in itself a perfectly lawful act, for it may be that the mixture is designed for the poisoning of rats. But if the purpose is to kill a human being, the act becomes by reason of this purpose the crime of attempted murder. In such cases a rational system of law cannot avoid considering the motive as material, for it is from the motive alone that the act derives all its mischievous tendency, and therefore its wrongful nature.
Although every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt. To intend to commit a crime is one thing; to get ready to commit it is another; to try to commit it is a third. We may say, indeed, that every intentional crime involves four distinct stages—Intention, Preparation, Attempt, and Completion. The two former are commonly innocent. An unacted intent is no more a ground of liability than is an unintended act. The will and the deed must go together. Even action in pursuance of the intent is not commonly criminal if it goes no further than the stage of preparation. I may buy a pistol with felonious purpose, and yet remain free from legal guilt. There is still a locus poenitentiae. But the two last stages in the offence, namely attempt and completion, are grounds of legal liability. How, then, are we to draw the line which thus separates innocence from guilt? What is the distinction between preparing to commit a crime and attempting to commit it? How far may a man go along the path of his criminal intent, and yet turn back in safety if his heart or the occasion fails him? This is a question to which English law gives no definite or sufficient answer. “An attempt to commit a crime,” says Sir James Stephen in his Digest of the Criminal Law,[[351]] “is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission, if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” This, however, affords no adequate guidance, and lays down no principle which would prevent a conviction for attempted forgery on proof of the purchase of ink and paper.
The German Criminal Code,[[352]] on the other hand, defines an attempt as an act done with intent to commit a crime, and amounting to the commencement of the execution of it. That is to say, an act is not an attempt unless it forms a constituent part of the completed crime. Otherwise it is merely preparatory. It may be doubted, however, whether this is a sufficient solution of the problem. We know when a crime is completed, but at what stage in the long series of preliminary acts does it begin? Not later, it would seem, than the earliest act done with the requisite criminal intent; yet this act may be far too remote to constitute an attempt.
What, then, is the true principle? The question is a difficult one, but the following answer may be suggested. An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. Res ipsa loquitur. An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence aliunde as to the purpose with which it was done. To buy matches with intent to commit arson is not attempted arson, because the act is innocent on its face, there being many lawful reasons for the purchase of matches. But to buy dies with intent to coin money is attempted forgery, for the act speaks for itself.[[353]] For the same reason, to buy or load a gun with murderous intent is not in ordinary circumstances attempted murder; but to lie in wait with the loaded weapon, or to present it, or discharge it, is an act which itself proclaims the criminal purpose with which it is done, and it is punishable accordingly. If this is the correct explanation of the matter, the ground of the distinction between preparation and attempt is evidential merely. The reason for holding a man innocent, who does an act with intent to commit a crime, is the danger involved in the admission of evidence upon which persons may be punished for acts which in themselves and in appearance are perfectly innocent. Cogitationis poenam nemo patitur. No man can be safely punished for his guilty purposes, save so far as they have manifested themselves in overt acts which themselves proclaim his guilt.
There is yet another difficulty in the theory of attempts. What shall be said if the act done with intent to commit a crime is of such a nature that the completion of the crime by such means is impossible: as if I attempt to steal by putting my hand into an empty pocket, or to poison by administering sugar which I believe to be arsenic? It was long supposed to be the law of England that there could be no conviction for an attempt in such cases. It was considered that an attempt must be part of a series of acts and events which, in its completeness, would actually constitute the offence attempted.[[354]] Recent decisions have determined the law otherwise.[[355]] The possibility of a successful issue is not a necessary element in an attempt, and this conclusion seems sound in principle. The matter, however, is not free from difficulty, since it may be argued on the other side that acts which in their nature cannot result in any harm are not mischievous either in their tendency or in their results, and therefore should not be treated as crimes. Shall an attempt to procure the death of one’s enemy by means of witchcraft be punished as attempted murder?
§ 138. Other Exceptions to the Irrelevance of Motives.
Criminal attempts constitute, as we have seen, the first of the exceptions to the rule that a person’s ulterior intent or motive is irrelevant in law. A second exception comprises all those cases in which a particular intent forms part of the definition of a criminal offence. Burglary, for example, consists in breaking and entering a dwelling-house by night with intent to commit a felony therein. So forgery consists in making a false document with intent to defraud. In all such instances the ulterior intent is the source, in whole or in part, of the mischievous tendency of the act, and is therefore material in law.
In civil as opposed to criminal liability the ulterior intent is very seldom relevant. In almost all cases the law looks to the act alone, and makes no inquiries into the motives from which it proceeds. There are, however, certain exceptions even in the civil law, and the chief, if not all, of these fall within the principle that a harmful act may be damnum sine injuria if done from a proper motive and without malice, but loses this protection so soon as it proceeds from some motive of which the law does not approve. It may be expedient in the public interest to allow certain specified kinds of harm to be done to individuals, so long as they are done for some good and sufficient reason; but the ground of this privilege falls away so soon as it is abused for bad ends. In such cases, therefore, malice is an essential element in the cause of action. Examples of wrongs of this class are defamation (in cases of privilege) and malicious prosecution. In these instances the plaintiff must prove malice, because in all of them the defendant’s act is one which falls under the head of damnum sine injuria so long, but so long only, as it is done with good intent.
§ 139. Jus necessitatis.
We shall conclude our examination of the theory of wilful wrongdoing by considering a special case in which, although intention is present, the mens rea is nevertheless absent. This is the case of the jus necessitatis. So far as the abstract theory of responsibility is concerned, an act which is necessary is not wrongful, even though done with full and deliberate intention. It is a familiar proverb that necessity knows no law: Necessitas non habet legem. By necessity is here meant the presence of some motive adverse to the law, and of such exceeding strength as to overcome any fear that can be inspired by the threat of legal penalties. The jus necessitatis is the right of a man to do that from which he cannot be dissuaded by any terror of legal punishment. Where threats are necessarily ineffective, they should not be made, and their fulfilment is the infliction of needless and uncompensated evil.
The common illustration of this right of necessity is the case of two drowning men clinging to a plank that will not support more than one of them. It may be the moral duty of him who has no one dependent on him to sacrifice himself for the other who is a husband or a father; it may be the moral duty of the old to give way to the young. But it is idle for the law to lay down any other rule save this, that it is the right of the stronger to use his strength for his own preservation. Another familiar case of necessity is that in which shipwrecked sailors are driven to choose between death by starvation on the one side and murder and cannibalism on the other. A third case is that of crime committed under the pressure of illegal threats of death or grievous bodily harm. “If,” says Hobbes,[[356]] “a man by the terror of present death be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation.”
It is to be noticed that the test of necessity is not the powerlessness of any possible, but that of any reasonable punishment. It is enough if the lawless motives to an act will necessarily countervail the fear of any penalty which it is just and expedient that the law should threaten. If burning alive were a fit and proper punishment for petty theft, the fear of it would probably prevent a starving wretch from stealing a crust of bread; and the jus necessitatis would have no place. But we cannot place the rights of property at so high a level. There are cases, therefore, in which the motives to crime cannot be controlled by any reasonable punishment. In such cases an essential element of the mens rea, namely freedom of choice, is absent; and so far as abstract theory is concerned, there is no sufficient basis of legal liability.
As a matter of practice, however, evidential difficulties prevent any but the most limited scope being permitted to the jus necessitatis. In how few cases can we say with any approach to certainty that the possibility of self-control is really absent, that there is no true choice between good and evil, and that the deed is one for which the doer is rightly irresponsible. In this conflict between the requirements of theory and the difficulties of practice the law has resorted to compromise. While in some few instances necessity is admitted as a ground of excuse, it is in most cases regarded as relevant to the measure rather than to the existence of liability. It is acknowledged as a reason for the reduction of the penalty, even to a nominal amount, but not for its total remission. Homicide in the blind fury of irresistible passion is not innocent, but neither is it murder; it is reduced to the lower level of manslaughter. Shipwrecked sailors who kill and eat their comrades to save their own lives are in law guilty of murder itself; but the clemency of the Crown will commute the capital sentence to a short term of imprisonment.[[357]]
§ 140. Negligence.
We have considered the first of the three classes into which injuries are divisible, namely those which are intentional or wilful, and we have now to deal with the second, namely wrongs of negligence.
The term negligence has two uses, for it signifies sometimes a particular state of mind, and at other times conduct resulting therefrom. In the former or subjective sense, negligence is opposed to wrongful intention, these being the two forms assumed by that mens rea which is a condition of penal responsibility. In the latter or objective sense, it is opposed not to wrongful intention, but to intentional wrongdoing. A similar double signification is observable in other words. Cruelty, for example, means subjectively a certain disposition and objectively conduct resulting from it. The ambiguity can scarcely lead to any confusion, for the two forms of negligence are necessarily coincident. Objective negligence is merely subjective negligence realised in conduct; and subjective negligence is of no account in the law, until and unless it is manifested in act. We shall commonly use the term in the subjective sense, and shall speak objectively not of negligence, but of negligent conduct or negligent wrongdoing.[[358]]
Negligence is culpable carelessness. “It is,” says Willes, J.,[[359]] “the absence of such care as it was the duty of the defendant to use.” What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful intention. These are two contrasted and mutually inconsistent mental attitudes of a person towards his acts and their consequences. No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.[[360]]
It is to be observed, in the second place, that carelessness or negligence does not necessarily consist in thoughtlessness or inadvertence. This is doubtless the commonest form of it, but it is not the only form. If I do harm, not because I intended it, but because I was thoughtless and did not advert to the dangerous nature of my act, or foolishly believed that there was no danger, I am certainly guilty of negligence. But there is another form of negligence, in which there is no thoughtlessness or inadvertence whatever. If I drive furiously down a crowded street, I may be fully conscious of the serious risk to which I expose other persons. I may not intend to injure any of them, but I knowingly and intentionally expose them to the danger. Yet if a fatal accident happens, I am liable, at the most, not for wilful, but for negligent homicide. When I consciously expose another to the risk of wrongful harm, but without any wish to harm him, and harm actually ensues, it is inflicted not wilfully, since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but nevertheless negligently.
If, then, negligence or carelessness is not to be identified with thoughtlessness or inadvertence, what is its essential nature? The correct answer seems to be that a careless person is a person who does not care. The essence of negligence is not inadvertence but indifference. Indifference is exceedingly apt to produce thoughtlessness or inadvertence; but it is not the same thing, and may exist without it, as we have seen from the example already given. If I am careless, that is to say indifferent, as to the results of my conduct, I shall very probably fail to acquire adequate foresight and consciousness of them; but I may, on the contrary, make a very accurate estimate of them, and yet remain equally indifferent with respect to them, and therefore equally negligent.
Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.[[361]]
This being so, the distinction between intention and negligence becomes clear. The wilful wrongdoer desires the harmful consequences, and therefore does the act in order that they may ensue. The negligent wrongdoer is careless (if not wholly, yet unduly) whether they ensue or not, and therefore does the act not withstanding the risk that they may ensue. The wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: Perhaps you did not, but at all events you might have avoided it, if you had sufficiently desired so to do; and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensued or not.
Negligence, as so defined, is rightly treated as a form of mens rea, standing side by side with wrongful intention as a formal ground of responsibility. For these are the two mental attitudes which alone justify the discipline of penal justice. The law may rightly punish wilful wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment will supply him for the future with a good reason for desiring the opposite. So, also, the law may justly punish negligent wrongdoing, for since the wrongdoer is careless as to the interests of others, punishment will cure this defect by making those interests for the future coincident with his own. In no other case than these two can punishment be effective, and therefore in no other case is it justifiable. So far as abstract theory is concerned, every man is exempt from penal responsibility who can truly say: The harm which I have done is not the outcome of any desire of mine to do it; neither does it proceed from any carelessness or indifference as to my acts and the results of them; I did not mean it, neither could I have avoided it by care.
It follows from the foregoing analysis that negligence is of two kinds, according as it is or is not accompanied by inadvertence. Advertent negligence is commonly termed wilful negligence or recklessness. Inadvertent negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable, but it is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, that is to say, indifference as to consequences, is present; but in the former case this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific experiment, with full recognition of the dangers so incurred, his negligence is wilful.[[362]]
This distinction is of little practical importance, but demands recognition here, partly because of the false opinion that all negligence is inadvertent, and partly because of the puzzling nature of the expression wilful negligence. In view of the fundamental opposition between intention and negligence, this expression looks at first sight self-contradictory, but it is not so. He who does a dangerous act, well knowing that he is exposing others to a serious risk of injury, and thereby causes a fatal accident, is guilty of negligent, not of wilful homicide. But the negligence is wilful, though the homicide is not. He is not merely negligent, but consciously, wilfully, and intentionally negligent; for he knows at the time the true nature of the act which he is doing. It is intentional with respect to the fact that his mental attitude towards the consequences is one of culpable indifference.
§ 141. Objection Considered.
By way of objection to the foregoing analysis it may be said: “It is not true that in all cases negligence amounts to carelessness in the sense of indifference. A drunken man is liable for negligence if he stumbles as he walks along the street, and breaks a shop window, but he may have been exceedingly anxious to walk in a straight line and to avoid any such accident. He may have been conscientiously using his best endeavours, but they will not serve to justify him on a charge of negligence. So an unskilful physician may devote to the treatment and cure of his patient an amount of anxious attention and strenuous endeavour, far in excess of that which one more skilful would consider necessary; yet if his treatment is wrong, he is guilty of negligence.”
The answer to this objection is that in these and all similar cases carelessness in the sense of indifference is really present, though it is remote instead of immediate. The drunken man may be anxious and careful now not to break other persons’ windows, but if he had been sufficiently anxious and careful on the point some time ago, he would have remained sober, and the accident would not have happened. So with the unskilful physician. It is a settled principle of law that want of skill or of professional competence amounts to negligence. Imperitia culpae adnumeratur.[[363]] He who will exercise any trade or profession must bring to the exercise of it such a measure of skill and knowledge as will suffice for reasonable efficiency, and he who has less than this practises at his own risk. The ignorant physician who kills his patient, or the unskilful blacksmith who lames the horse shod by him, is legally responsible, not because he is ignorant or unskilful—for skill and knowledge may be beyond his reach—but because, being unskilful or ignorant, he ventures to undertake a business which calls for qualities which he does not possess. No man is bound in law to be a good surgeon or a capable attorney, but all men are bound not to act as surgeons or attorneys until and unless they are good and capable as such.
The unskilful physician, therefore, is liable not because he is now careless of the health of his patient, but because he was formerly careless in undertaking work calling for greater skill than he possessed. If he then knew that he had not the requisite skill, his carelessness is obvious. Possibly, however, he believed himself to be sufficiently qualified. In this case we must go one step further back in the search for that mental attitude of indifference which is the essential element in all cases of negligence. He was careless in forming his beliefs; he formed them without that anxious consideration which the law requires from those who form beliefs on which they act to the injury of others. A man may be called upon by the law to answer to-day for the carelessness with which he formed an opinion years ago.
§ 142. The Standard of Care.
Carelessness is not culpable, or a ground of legal liability, save in those cases in which the law has imposed a duty of carefulness. In all other cases complete indifference as to the interests of others is allowable. No general principle can be laid down, however, with regard to the existence of this duty, for this is a matter pertaining to the details of the concrete legal system, and not to abstract theory. Carelessness is lawful or unlawful, as the law sees fit to provide. In the criminal law liability for negligence is quite exceptional. Speaking generally, crimes are wilful wrongs, the alternative form of mens rea being deemed an insufficient ground for the rigour of criminal justice. This, however, is not invariably the case, negligent homicide, for example, being a criminal offence. In the civil law, on the other hand, no such distinction is commonly drawn between the two forms of mens rea. In general we may say that whenever an act would be a civil wrong if done intentionally, it is also a civil wrong if done negligently. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. To this rule, however, there are certain exceptions—instances in which wrongful intent is the necessary basis even of civil liability. In these cases a person is civilly responsible for doing harm wilfully, but is not bound to take any care not to do it. He must not, for example, deceive another by any wilful falsehood, but unless there is some special ground of obligation in the case, he is not answerable for false statements which he honestly believes to be true, however negligent he may be in making them.[[364]] Other instances of the same sort are based upon the express or implied agreement or understanding of the persons concerned. Thus the gratuitous lender of a chattel is bound to disclose any dangerous defects which he actually knows of, but is not bound to take any care whatever to see that it is safe, or to discover and disclose defects of which he is ignorant. For he who borrows a thing gratuitously agrees impliedly to take it as it is, and to run all risks. But he who hires a thing for money is entitled to the exercise of due care for his safety on the part of the owner.[[365]]
Carelessness may exist in any degree, and in this respect it differs from the other form of mens rea. Intention either exists or it does not; there can be no question of the degree in which it is present. The degree of carelessness varies directly with the risk to which other persons are exposed by the act in question. He is careless, who, without intending evil, nevertheless exposes others to the danger of it, and the greater the danger the greater the carelessness. The risk depends, in its turn, on two things: first, the magnitude of the threatened evil, and second, the probability of it. The greater the evil is, and the nearer it is, the greater is the indifference or carelessness of him who creates the danger.
Inasmuch, therefore, as carelessness varies in degree, it is necessary to know what degree of it is requisite to constitute culpable negligence. What measure of care does the law demand? What amount of anxious consideration for the interests of others is a legal duty, and within what limits is indifference lawful?
We have first to notice a possible standard of care which the law might have adopted but has not. It does not demand the highest degree of care of which human nature is capable. I am not liable for harm ignorantly done by me, merely because by some conceivable exercise of prudential foresight I might have anticipated the event and so avoided it. Nor am I liable because, knowing the possibility of harm, I fail to take every possible precaution against it. The law demands not that which is possible, but that which is reasonable in view of the magnitude of the risk. Were men to act on any other principle than this, excess of caution would paralyse the business of the world. The law, therefore, allows every man to expose his fellows to a certain measure of risk, and to do so even with full knowledge. If an explosion occurs in my powder mill, I am not liable for negligence, even though I established and carried on the industry with full knowledge of its dangerous character. This is a degree of indifference to the safety of other men’s lives and property which the law deems permissible because not excessive. Inasmuch as the carrying of firearms and the driving of horses are known to be the occasions of frequent harm, extreme care and the most scrupulous anxiety as to the interests of others would prompt a man to abstain from those dangerous forms of activity. Yet it is expedient in the public interest that those activities should go on, and therefore that men should be exposed to the incidental risks of them. Consequently the law does not insist on any standard of care which would include them within the limits of culpable negligence. It is for the law to draw the line as best it can, so that while prohibiting unreasonable carelessness, it does not at the same time demand unreasonable care.
What standard, then, does the law actually adopt? It demands the amount of care which would be shown in the circumstances of the particular case by an ordinarily careful man. It is content to adopt the standard which is customary for the time being in the community. It is satisfied with conduct which in point of carefulness conforms to the moral standard and the ordinary practice of mankind. Less than this is not sufficient, and more than this is not required. A jury in determining the question of negligence will decide whether in their opinion the defendant acted with reasonable care; and in so doing they represent and express the current opinion and practice of the community as to the risks to which one man is justified in exposing others, and as to the degree of consideration for the welfare of others which the community exacts and commonly receives from its members.
The standard thus adopted by the law is of necessity somewhat vague and indeterminate. It is not practicable to any great extent to lay down any more definite and detailed rules as to what classes of acts are negligent and what are not. Too much depends upon the circumstances of the individual case, and the standard of due care is too liable to alter with the advance of knowledge and the changes of social life and manners. Risks which were once deemed excessive may become permissible in view of the increasing stress and hurry of modern life, and conversely conduct which to-day is beyond reproach may in the future become grossly negligent by reason of the growth of skill or knowledge.
Nevertheless, here as elsewhere, the law seeks for definite and specific principles. It dislikes the licence of the arbitrium judicis. So far as practicable and justifiable it desires to make negligence a matter not of fact but of legal rule and definition. It seeks to supersede the vague principle that that is negligence which a jury considers such, by substituting for it a body of legal doctrine determining the boundaries of negligence in specific instances. This, however, is possible only to a very limited extent. It would seem, indeed, that all legal rules on this matter are merely negative, determining what does not amount to negligence, and never positive, determining that certain acts are negligent in law. It has been decided as a matter of law, for example, that it is not negligent to drive cattle through the streets of a town loose instead of leading them with halters.[[366]] Nor is it negligent to allow a dog to run at large, if the owner has no actual knowledge of its vicious temper. Nor is it negligent to try a horse for the first time in a frequented thoroughfare.[[367]] Nor is there any negligence in the usual practice of railway servants in violently shutting the doors of railway carriages without warning,[[368]] notwithstanding the risk of injury to the hands of passengers.[[369]]
As has been already indicated, there seem to be no corresponding rules to the effect that certain kinds of conduct are negligent in law. The law never goes further in this direction than to say that certain facts are sufficient evidence of negligence, that is to say, are sufficient to entitle the jury to find negligence as a matter of fact if they think fit. The reason for this cautious attitude of the law is obvious. No facts can be such cogent proof of negligence that the law may safely and wisely take them as conclusive. For they may be capable of explanation by other facts, and that which is apparently due to the most culpable negligence may be due in reality to inevitable mistake or accident. Thus the law does not contain any rule to the effect that driving on the wrong side of the road amounts to negligence. The rule is merely that such conduct is evidence of negligence.[[370]] Nor is the act of leaving a horse and cart unattended in the street an act of negligence in law; it is merely one from which a jury is at liberty to infer negligence in fact.[[371]]
§ 143. Degrees of Negligence.
We have said that English law recognises only one standard of care and therefore only one degree of negligence. Whenever a person is under a duty to take any care at all, he is bound to take that amount of it which is deemed reasonable under the circumstances, having regard to the ordinary practice of mankind; and the absence of this care is culpable negligence. Although this is probably a correct statement of English law, attempts have been made to establish two or even three distinct standards of care and degrees of negligence. Some authorities, for example, distinguish between gross negligence (culpa lata) and slight negligence (culpa levis), holding that a person is sometimes liable for the former only, and at other times even for the latter. In some cases we find even a threefold distinction maintained, negligence being either gross, ordinary, or slight.[[372]] These distinctions are based partly upon Roman law, and partly upon a misunderstanding of it, and notwithstanding some judicial dicta to the contrary we may say with some confidence that no such doctrine is known to the law of England.[[373]] These distinctions so drawn are hopelessly indeterminate and impracticable. On what principle are we to draw the line between gross negligence and slight? How can we thus elevate a distinction of degree into one of kind? Even were it possible to establish two or more standards, there seems no reason of justice or expediency for doing so. The single standard of English law is sufficient for all cases. Why should any man be required to show more care than is reasonable under the circumstances, or excused if he shows less?
In connection with this alleged distinction between gross and slight negligence it is necessary to consider the celebrated doctrine of Roman law to the effect that the former (culpa lata) is equivalent to wrongful intention (dolus)—a principle which receives occasional expression and recognition in English law also. Magna culpa dolus est,[[374]] said the Romans. In its literal interpretation, indeed, this is untrue, for we have already seen that the two forms of mens rea are wholly inconsistent with each other, and that no degree of carelessness can amount to design or purpose. Yet the proposition, though inaccurately expressed, has a true signification. Although real negligence, however gross, cannot amount to intention, alleged negligence may. Alleged negligence which, if real, would be exceedingly gross, is probably not negligence at all, but wrongful purpose. Its grossness raises a presumption against its reality. For we have seen that carelessness is measured by the magnitude and imminence of the threatened mischief. Now the greater and more imminent the mischief, the more probable is it that it is intended. Genuine indifference and carelessness is very unusual and unlikely in extreme cases. Men are often enough indifferent as to remote or unimportant dangers to which they expose others, but serious risks are commonly avoided by care unless the mischief is desired and intended. The probability of a result tends to prove intention and therefore to disprove negligence. If a new-born child is left to die from want of medical attention or nursing, it may be that its death is due to negligence only, but it is more probable that it is due to wrongful purpose and malice aforethought. He who strikes another on the head with an iron bar may have meant only to wound or stun, and not to kill him, but the probabilities are the other way. Every man is presumed to intend the natural and probable consequences of his acts,[[375]] and the more natural and probable the consequences, the greater the strength of the presumption.[[376]]
In certain cases this presumption of intent has hardened into a positive rule of law, and has become irrebuttable. In those cases that which is negligence in fact may be deemed wrongful intent in law. It is constructive, though not actual intent. The law of homicide supplies us with an illustration. Murder is wilful homicide, and manslaughter is negligent homicide, but the boundary line as drawn by the law is not fully coincident with that which exists in fact. Much that is merely negligent in fact is treated as wilful homicide in law. An intent to cause grievous bodily harm is imputed as an intent to kill, if death ensues, and an act done with knowledge that it will probably cause death is in law an act done with intent to cause it.[[377]] The justification of such conclusive presumptions of intent is twofold. In the first place, as already indicated, very gross negligence is probably in truth not negligence at all, but wrongful purpose; and in the second place, even if it is truly negligence, yet by reason of its grossness it is as bad as intent, in point of moral deserts, and therefore may justly be treated and punished as if it were intent. The law, accordingly, will sometimes say to a defendant: “Perhaps, as you allege, you were merely negligent, and had no actual wrongful purpose; nevertheless you will be dealt with just as if you had, and it will be conclusively presumed against you that your act was wilful. For your deserts are no better than if you had in truth intended the mischief which you have so recklessly caused. Moreover it is exceedingly probable, notwithstanding your disclaimer, that you did indeed intend it; therefore no endeavour will be made on your behalf to discover whether you did or not.”
§ 144. Other Theories of Negligence.
The analysis of the conception of negligence is a matter of some considerable difficulty, and it is advisable to take account of certain theories which differ more or less seriously from that which has been here accepted by us.
It is held by some, that negligence consists essentially in inadvertence. It consists, that is to say, in a failure to be alert, circumspect, or vigilant, whereby the true nature, circumstances, and consequences of a man’s acts are prevented from being present in his consciousness. The wilful wrongdoer is lie who knows that his act is wrong; the negligent wrongdoer is he who does not know it, but would have known it, were it not for his mental indolence.[[378]]
This explanation contains an important element of the truth, but it is inadequate. For in the first place, as has been already pointed out, all negligence is not inadvertent. There is such a thing as wilful or advertent negligence, in which the wrongdoer knows perfectly well the true nature, circumstances, and probable consequences of his act. He foresees those consequences, and yet does not intend them, and therefore cannot be charged with wilful wrongdoing in respect of them. His mental attitude with regard to them is not intention, but a genuine form of negligence, of which the theory of inadvertence can give no explanation.
In the second place, all inadvertence is not negligence. A failure to appreciate the nature of one’s act, and to foresee its consequences, is not in itself culpable. It is no ground of responsibility, unless it is due to carelessness in the sense of undue indifference. He who is ignorant or forgetful, notwithstanding a genuine desire to attain knowledge or remembrance, is not negligent. The signalman who sleeps at his post is negligent, not because he falls asleep, but because he is not sufficiently anxious to remain awake. If his sleep is the unavoidable result of illness or excessive labour, he is free from blame. The essence of negligence, therefore, is not inadvertence—which may or may not be due to carelessness—but carelessness—which may or may not result in inadvertence.
It may be suggested in defence of the theory of inadvertence that there are in reality three forms of the mens rea, and not two only: namely, (1) intention, when the consequences are foreseen and intended, (2) recklessness, when they are foreseen but not intended, and (3) negligence, when they are neither foreseen nor intended. The law, however, rightly classes the second and third of these together under the head of negligence, for they are identical in their essential nature, each of them being blameworthy only so far as it is the outcome of carelessness.
We have now to consider another explanation which may be termed the objective theory of negligence. It is held by some that negligence is not a subjective, but an objective fact. It is not a particular state of mind or form of the mens rea at all, but a particular kind of conduct. It is a breach of the duty of taking care, and to take care means to take precautions against the harmful results of one’s actions, and to refrain from unreasonably dangerous kinds of conduct.[[379]] To drive at night without lights is negligence, because to carry lights is a precaution taken by all reasonable and prudent men for the avoidance of accidents. To take care, therefore, is no more a mental attitude or state of mind than to take cold is. This, however, is not a correct analysis. Carelessness may result in a failure to take necessary precautions, or to refrain from dangerous activities, but it is not the same thing, just as it may result in inadvertence but is not the same thing. The neglect of needful precautions or the doing of unreasonably dangerous acts is not necessarily wrongful at all, for it may be due to inevitable mistake or accident. And on the other hand, even when it is wrongful, it may be wilful instead of negligent. A trap door may be left unbolted, in order that one’s enemy may fall through it and so die. Poison may be left unlabelled, with intent that some one may drink it by mistake. A ship captain may wilfully cast away his ship by the neglect of the ordinary rules of good seamanship. A father who neglects to provide medicine for his sick child may be guilty of wilful murder, rather than of mere negligence. In none of these cases, nor indeed in any others, can we distinguish between intentional and negligent wrongdoing, save by looking into the mind of the offender, and observing his subjective attitude towards his act and its consequences. Externally and objectively, the two classes of offences are indistinguishable. Negligence is the opposite of wrongful intention, and since the latter is a subjective fact the former must be such also.