SUMMARY.
The nature of Intention:
Foresight accompanied by desire.
Intention distinguished from expectation.
Intended consequences not always expected.
Expected consequences not always intended.
Intention extends to the means and necessary concomitants as well as
to the end.
| Intention | Immediate. |
| Ulterior—Motive. |
Malice—wrongful intention.
Ambiguity of the term malice, which relates either to the immediate
or remote intention.
Concurrent motives.
The irrelevance of motives in law.
Exceptions to this principle.
The theory of criminal attempts.
The four stages of a completed crime: Intention, preparation,
attempt, completion.
Distinction between preparation and attempt.
Attempts by impossible means.
The jus necessitatis.
Its theory.
Its partial allowance in practice.
The nature of Negligence.
Subjective and objective uses of the term.
Negligence and intention opposed and inconsistent.
Negligence not necessarily inadvertence.
Negligence essentially indifference.
Negligence and intention the two alternative grounds of penal
liability.
| Negligence | Wilful or inadvertent. |
| Simple or inadvertent. |
Negligence immediate and remote.
Negligence and want of skill.
The duty of carefulness:
The necessary basis of liability for negligence.
When it exists in the criminal and civil law.
The standard of care:
Not the highest possible.
That of the ordinarily careful man.
Negligence in law and in fact.
Degree’s of negligence.
Distinction between gross and slight negligence not recognised by
English law.
Culpa lata dolus est.
Significance of this proposition.
Negligence and constructive intent.
Criticism of other theories of negligence:
(1) That negligence is inadvertence.
(2) The objective theory.
CHAPTER XIX.
LIABILITY (Continued).
§ 145. Wrongs of Absolute Liability.
We now proceed to consider the third class of wrongs, namely those of absolute liability. These are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are the exceptions to the rule, Actus non facit reum nisi mens sit rea. It may be thought, indeed, that in the civil as opposed to the criminal law, absolute liability should be the rule rather than the exception. It may be said: “It is clear that in the criminal law liability should in all ordinary cases be based upon the existence of mens rea. No man should be punished criminally unless he knew that he was doing wrong, or might have known it by taking care. Inevitable mistake or accident should be a good defence for him. But why should the same principle apply to civil liability? If I do another man harm, why should I not be made to pay for it? What does it matter to him whether I did it wilfully, or negligently, or by inevitable accident? In either case I have actually done the harm, and therefore should be bound to undo it by paying compensation. For the essential aim of civil proceedings is redress for harm suffered by the plaintiff, not punishment for wrong done by the defendant; therefore the rule of mens rea should be deemed inapplicable.”
It is clear, however, that this is not the law of England, and it seems equally clear that there is no sufficient reason why it should be. In all those judicial proceedings which fall under the head of penal redress, the determining purpose of the law is not redress, but punishment. Redress is in those cases merely the instrument of punishment. In itself it is not a sufficient ground or justification for such proceedings at all. Unless damages are at the same time a deserved penalty inflicted upon the defendant, they are not to be justified as being a deserved recompense awarded to the plaintiff. For they in no way undo the wrong or restore the former state of things. The wrong is done and cannot be undone. If by accident I burn down another man’s house, the only result of enforcing compensation is that the loss has been transferred from him to me; but it remains as great as ever for all that. The mischief done has been in no degree abated. If I am not in fault, there is no more reason why I should insure other persons against the harmful issues of my own activity, than why I should insure them against lightning or earthquakes. Unless some definite gain is to be derived by transferring loss from one head to another, sound reason, as well as the law, requires that the loss should lie where it falls.[[380]]
Although the requirement of mens rea is general throughout the civil and criminal law, there are numerous exceptions to it. The considerations on which these are based are various, but the most important is the difficulty of procuring adequate proof of intention or negligence. In the majority of instances, indeed, justice requires that this difficulty be honestly faced; but in certain special cases it is allowable to circumvent it by means of a conclusive presumption of the presence of this condition of liability. In this way we shall certainly punish some who are innocent, but in the case of civil liability this is not a very serious matter—since men know that in such cases they act at their peril, and are content to take the risk—while in respect of criminal liability such a presumption is seldom resorted to, and only in the case of comparatively trivial offences.[[381]] Whenever, therefore, the strict doctrine of mens rea would too seriously interfere with the administration of justice by reason of the evidential difficulties involved in it, the law tends to establish a form of absolute liability.
In proceeding to consider the chief instances of this kind of liability we find that the matter falls into three divisions, namely—(1) Mistake of Law, (2) Mistake of Fact, and (3) Accident.
§ 146. Mistake of Law.
It is a principle recognised not only by our own but by other legal systems that ignorance of the law is no excuse for breaking it. Ignorantia juris neminem excusat. The rule is also expressed in the form of a legal presumption that every one knows the law. The rule is absolute, and the presumption irrebuttable. No diligence of inquiry will avail against it; no inevitable ignorance or error will serve for justification. Whenever a man is thus held accountable for breaking a law which he did not know, and which he could not by due care have acquired a knowledge of, the case is one of absolute liability.
The reasons rendered for this somewhat rigorous principle are three in number. In the first place the law is in legal theory definite and knowable; it is the duty of every man to know that part of it which concerns him; therefore innocent and inevitable ignorance of the law is impossible. Men are conclusively presumed to know the law, and are dealt with as if they did know it, because they can and ought to know it.
In the second place, even if invincible ignorance of the law is in fact possible, the evidential difficulties in the way of the judicial recognition of such ignorance are insuperable, and for the sake of any benefit derivable therefrom it is not advisable to weaken the administration of justice by making liability dependent on well-nigh inscrutable conditions touching knowledge or means of knowledge of the law. Who can say of any man whether he knew the law, or whether during the course of his past life he had an opportunity of acquiring a knowledge of it by the exercise of due diligence?
Thirdly and lastly, the law is in most instances derived from and in harmony with the rules of natural justice. It is a public declaration by the state of its intention to maintain by force those principles of right and wrong which have already a secure place in the moral consciousness of men. The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right. If not to his knowledge lawless, he is at least dishonest and unjust. He has little ground of complaint, therefore, if the law refuses to recognise his ignorance as an excuse, and deals with him according to his moral deserts. He who goes about to harm others when he believes that he can do so within the limits of the law, may justly be required by the law to know those limits at his peril. This is not a form of activity that need be encouraged by any scrupulous insistence on the formal conditions of legal responsibility.
It must be admitted, however, that while each of these considerations is valid and weighty, they do not constitute an altogether sufficient basis for so stringent and severe a rule.[[382]] None of them goes the full length of the rule. That the law is knowable throughout by all whom it concerns is an ideal rather than a fact in any system as indefinite and mutable as our own. That it is impossible to distinguish invincible from negligent ignorance of the law is by no means wholly true. It may be doubted whether this inquiry is materially more difficult than many which courts of justice undertake without hesitation. That he who breaks the law of the land disregards at the same time the principles of justice and honesty is in many instances far from the truth. In a complex legal system a man requires other guidance than that of common sense and a good conscience. The fact seems to be that the rule in question, while in general sound, does not in its full extent and uncompromising rigidity admit of any sufficient justification.
§ 147. Mistake of Fact.
In respect of the influence of ignorance or error upon legal liability we have inherited from Roman law a familiar distinction between law and fact. By reason of his ignorance of the law no man will be excused, but it is commonly said that inevitable ignorance of fact is a good defence.[[383]] This, however, is far from an accurate statement of English law. It is much more nearly correct to say that mistake of fact is an excuse only within the sphere of the criminal law, while in the civil law responsibility is commonly absolute in this respect. So far as civil liability is concerned, it is a general principle of our law that he who intentionally interferes with the person, property, reputation, or other rightful interests of another does so at his peril, and will not be heard to allege that he believed in good faith and on reasonable grounds in the existence of some circumstance which justified his act. If I trespass upon another man’s land, it is no defence to me that I believed it on good grounds to be my own. If in absolute innocence and under an inevitable mistake of fact I meddle with another’s goods, I am liable for all loss incurred by the true owner.[[384]] If, intending to arrest A., I arrest B. by mistake instead, I am absolutely liable to him notwithstanding the greatest care taken by me to ascertain his identity. If I falsely but innocently make a defamatory statement about another, I am liable to him however careful I may have been to ascertain the truth. There are, indeed, exceptions to this rule of absolute civil liability for mistake of fact, but they are not of such number or importance as to cast any doubt on the validity of the general principle.
In the criminal law, on the other hand, the matter is otherwise, and it is here that the contrast between mistake of law and mistake of fact finds its true application. Absolute criminal responsibility for a mistake of fact is quite exceptional. An instance of it is the liability of him who abducts a girl under the legal age of consent. Inevitable mistake as to her age is no defence; he must take the risk.[[385]]
A word may be said as to the historical origin of this failure of English law to recognise inevitable mistake as a ground of exemption from civil liability. Ancient modes of procedure and proof were not adapted for inquiries into mental conditions. By the practical difficulties of proof early law was driven to attach exclusive importance to overt acts. The subjective elements of wrongdoing were largely beyond proof or knowledge, and were therefore disregarded as far as possible. It was a rule of our law that intent and knowledge were not matters that could be proved or put in issue. “It is common learning,” said one of the judges of King Edward IV., “that the intent of a man will not be tried, for the devil himself knoweth not the intent of a man.”[[386]] The sole question which the courts would entertain was whether the defendant did the act complained of. Whether he did it ignorantly or with guilty knowledge was entirely immaterial. This rule, however, was restricted to civil liability. It was early recognised that criminal responsibility was too serious a thing to be imposed upon an innocent man simply for the sake of avoiding a difficult inquiry into his knowledge and intention. In the case of civil liability, on the other hand, the rule was general. The success with which it has maintained itself in modern law is due in part to its undeniable utility in obviating inconvenient or even impracticable inquiries, and in part to the influence of the conception of redress in minimising the importance of the formal condition of penal liability.
§ 148. Accident.
Unlike mistake, inevitable accident is commonly recognised by our law as a ground of exemption from liability. It is needful, therefore, to distinguish accurately between these two things, for they are near of kin. Every act which is not done intentionally is done either accidentally or by mistake. It is done accidentally, when it is unintentional in respect of its consequences. It is done by mistake, when it is intentional in respect of its consequences, but unintentional in respect of some material circumstance. If I drive over a man in the dark because I do not know that he is in the road, I injure him accidentally; but if I procure his arrest, because I mistake him for some one who is liable to arrest, I injure him not accidentally but by mistake. In the former case I did not intend the harm at all, while in the latter case I fully intended it, but falsely believed in the existence of a circumstance which would have served to justify it. So if by insufficient care I allow my cattle to escape into my neighbour’s field, their presence there is due to accident; but if I put them there because I wrongly believe that the field is mine, their presence is due to mistake. In neither case did I intend to wrong my neighbour, but in the one case my intention failed as to the consequence, and in the other as to the circumstance.
Accident, like mistake, is either culpable or inevitable. It is culpable when due to negligence, but inevitable when the avoidance of it would have required a degree of care exceeding the standard demanded by the law. Culpable accident is no defence, save in those exceptional cases in which wrongful intent is the exclusive and necessary ground of liability. Inevitable accident is commonly a good defence, both in the civil and in the criminal law.
To this rule, however, there are, at least in the civil law, important exceptions. These are cases in which the law insists that a man shall act at his peril, and shall take his chance of accidents happening. If he desires to keep wild beasts,[[387]] or to light fires,[[388]] or to construct a reservoir of water,[[389]] or to accumulate upon his land any substance which will do damage to his neighbours if it escapes,[[390]] or to erect dangerous structures by which passengers in the highway may come to harm,[[390]] he will do all these things suo periculo (though none of them are per se wrongful) and will answer for all ensuing damage notwithstanding consummate care.
There is one case of absolute liability for accident which deserves special notice by reason of its historical origin. Every man is absolutely responsible for the trespasses of his cattle. If my horse or my ox escapes from my land to that of another man, I am answerable for it without any proof of negligence.[[391]] Such a rule may probably be justified as based on a reasonable presumption of law that all such trespasses are the outcome of negligent keeping. Viewed historically, however, the rule is worth notice as one of the last relics of the ancient principle that a man is answerable for all damage done by his property. In the theory of ancient law I am liable for the trespasses of my cattle, not because of my negligent keeping of them, but because of my ownership of them. For the same reason in Roman law a master was liable for the offences of his slaves. The case is really, in its historical origin, one of vicarious liability. In early law and custom vengeance, and its products responsibility and punishment, were not conceived as necessarily limited to human beings, but were in certain cases extended to dumb animals and even inanimate objects. We have already cited in another connection the provision of the Mosaic law that “If an ox gore a man or a woman that they die, then the ox shall be surely stoned and his flesh shall not be eaten.”[[392]] In the Laws of Plato it is said:[[393]] “If a beast of burden or other animal cause the death of any one ... the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country ... shall try the cause; and let the beast when condemned be slain by them, and cast beyond the borders.” So in the Laws of King Alfred:[[394]] “If at their common work,” (of wood cutting) “one man slay another unwilfully, let the tree be given to the kindred.” And by English law until the year 1846 the weapon or other thing which “moved to the death of a man” was forfeited to the King as guilty and accursed.[[395]] Here we have the ground of a rule of absolute liability. If a man’s cattle or his slaves do damage, they are thereby exposed to the vengeance of the injured person. But to take destructive vengeance upon them is to impose a penalty upon their owner. The liability thence resulting probably passed through three stages: first, that of unconditional forfeiture or surrender of the property to the vengeance of the injured person; secondly, that of an option given to the owner between forfeiture and redemption—the actiones noxales of Roman law;[[396]] and thirdly, that of compulsory redemption, or in other words, unconditional compensation.
§ 149. Vicarious Responsibility.
Hitherto we have dealt exclusively with the conditions of liability, and it is needful now to consider its incidence. Normally and naturally the person who is liable for a wrong is he who does it. Yet both ancient and modern law admit instances of vicarious liability in which one man is made answerable for the acts of another. Criminal responsibility, indeed, is never vicarious at the present day, except in very special circumstances and in certain of its less serious forms.[[397]] In more primitive systems, however, the impulse to extend vicariously the incidence of liability receives free scope in a manner altogether alien to modern notions of justice. It is in barbarous times considered a very natural thing to make every man answerable for those who are of kin to him. In the Mosaic legislation it is deemed necessary to lay down the express rule that “The fathers shall not be put to death for the children; neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.”[[398]] Plato in his Laws does not deem it needless to emphasise the same principle.[[399]] Furthermore, so long as punishment is conceived rather as expiative, retributive, and vindictive, than as deterrent and reformative, there seems no reason why the incidence of liability should not be determined by consent, and therefore why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law. Guilt must be wiped out by punishment, but there is no reason why the victim should be one person rather than another. Such modes of thought have long since ceased to pervert the law; but that they were at one time natural is rendered sufficiently evident by their survival in popular theology.
Modern civil law recognises vicarious liability in two chief classes of cases. In the first place, masters are responsible for the acts of their servants done in the course of their employment. In the second place, representatives of dead men are liable for deeds done in the flesh by those whom they represent. We shall briefly consider each of these two forms.
It has been sometimes said that the responsibility of a master for his servant has its historical source in the responsibility of an owner for his slave. This, however, is certainly not the case. The English doctrine of employer’s liability is of comparatively recent growth. It has its origin in the legal presumption, gradually become conclusive, that all acts done by a servant in and about his master’s business are done by his master’s express or implied authority, and are therefore in truth the acts of the master for which he may be justly held responsible.[[400]] No employer will be allowed to say that he did not authorise the act complained of, or even that it was done against his express injunctions, for he is liable none the less. This conclusive presumption of authority has now, after the manner of such presumptions, disappeared from the law, after having permanently modified it by establishing the principle of employer’s liability. Historically, as we have said, this is a fictitious extension of the principle, Qui facit per alium facit per se. Formally, it has been reduced to the laconic maxim, Respondeat superior.
The rational basis of this form of vicarious liability is in the first place evidential. There are such immense difficulties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it. A word, a gesture, or a tone may be a sufficient indication from a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service. Yet who could prove such a measure of complicity? Who could establish liability in such a case, were evidence of authority required, or evidence of the want of it admitted?
A further reason for the vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil liability. It is felt, probably with justice, that a man who is able to make compensation for the hurtful results of his activities should not be enabled to escape from the duty of doing so by delegating the exercise of these activities to servants or agents from whom no redress can be obtained. Such delegation confers upon impecunious persons means and opportunities of mischief which would otherwise be confined to those who are financially competent. It disturbs the correspondence which would otherwise exist between the capacity of doing harm and the capacity of paying for it. It is requisite for the efficacy of civil justice that this delegation of powers and functions should be permitted only on the condition that he who delegates them shall remain answerable for the acts of his servants, as he would be for his own.
A second form of vicarious responsibility is that of living representatives for the acts of dead men. There is no doubt that criminal responsibility must die with the wrongdoer himself, but with respect to penal redress the question is not free from difficulty. For in this form of liability there is a conflict between the requirements of the two competing principles of punishment and compensation. The former demands the termination of liability with the life of the wrongdoer, while the latter demands its survival. In this dispute the older common law approved the first of those alternatives. The received maxim was: Actio personalis moritur cum persona. A man cannot be punished in his grave; therefore it was held that all actions for penal redress, being in their true nature instruments of punishment, must be brought against the living offender and must die with him. Modern opinion rejects this conclusion, and by various statutory provisions the old rule has been in great part abrogated. It is considered that although liability to afford redress ought to depend in point of origin upon the requirements of punishment, it should depend in point of continuance upon those of compensation. For when this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient that such rights should be held upon a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death of the offender. There is no sufficient reason for drawing any distinction in point of survival between the right of a creditor to recover his debt and the right of a man who has been injured by assault or defamation to recover compensation for the loss so suffered by him.
As a further argument in the same sense, it is to be observed that it is not strictly true that a man cannot be punished after his death. Punishment is effective not at the time it is inflicted, but at the time it is threatened. A threat of evil to be inflicted upon a man’s descendants at the expense of his estate will undoubtedly exercise a certain deterrent influence upon him; and the apparent injustice of so punishing his descendants for the offences of their predecessor is in most cases no more than apparent. The right of succession is merely the right to acquire the dead man’s estate, subject to all charges which, on any grounds, and apart altogether from the interests of the successors themselves, may justly be imposed upon it.
There is a second application of the maxim, Actio personalis moritur cum persona, which seems equally destitute of justification. According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinary cases, if it is right to punish a person at all, his liability should not cease simply by reason of the death of him against whom his offence was committed. The right of the person injured to receive redress should descend to his representatives like any other proprietary interest.
§ 150. The Measure of Criminal Liability.
We have now considered the conditions and the incidence of penal liability. It remains to deal with the measure of it, and here we must distinguish between criminal and civil wrongs, for the principles involved are fundamentally different in the two cases.
In considering the measure of criminal liability it will be convenient to bestow exclusive attention upon the deterrent purpose of the criminal law, remembering, however, that the conclusions so obtained are subject to possible modification by reference to those subordinate and incidental purposes of punishment which we thus provisionally disregard.
Were men perfectly rational, so as to act invariably in accordance with an enlightened estimate of consequences, the question of the measure of punishment would present no difficulty. A draconian simplicity and severity would be perfectly just and perfectly effective. It would be possible to act on the Stoic paradox that all offences involve equal guilt, and to visit with the utmost rigour of the law every deviation, however slight, from the appointed way. In other words, if the deterrent effect of severity were certain and complete, the best law would be that which by the most extreme and undiscriminating severity effectually extinguished crime. Were human nature so constituted that a threat of burning all offenders alive would with certainty prevent all breaches of the law, then this would be the just and fitting penalty for all offences from high treason to petty larceny. So greatly, however, are men moved by the impulse of the moment, rather than by a rational estimate of future good and evil, and so ready are they to face any future evil which falls short of the inevitable, that the utmost rigour is sufficient only for the diminution of crime, not for the extinction of it. It is needful, therefore, in judging the merits of the law, to subtract from the sum of good which results from the partial prevention of offences, the sum of evil which results from the partial failure of prevention and the consequent necessity of fulfilling those threats of evil by which the law had hoped to effect its purpose. The perfect law is that in which the difference between the good and the evil is at a maximum in favour of the good, and the rules as to the measure of criminal liability are the rules for the attainment of this maximum. It is obvious that it is not attainable by an indefinite increase of severity. To substitute hanging for imprisonment as the punishment for petty theft would doubtless diminish the frequency of this offence, but it is certain that the evil so prevented would be far outweighed by that which the law would be called on to inflict in the cases in which its threats proved unavailing.
In every crime there are three elements to be taken into account in determining the appropriate measure of punishment. These are (1) the motives to the commission of the offence, (2) the magnitude of the offence, and (3) the character of the offender.
1. The motive of the offence. Other things being equal, the greater the temptation to commit a crime the greater should be the punishment. This is an obvious deduction from the first principles of criminal liability. The object of punishment is to counteract by the establishment of contrary and artificial motives the natural motives which lead to crime. The stronger these natural motives the stronger must be the counteractives which the law supplies. If the profit to be derived from an act is great, or the passions which lead men to it are violent, a corresponding strength or violence is an essential condition of the efficacy of repressive discipline. We shall see later, however, that this principle is subject to a very important limitation, and that there are many cases in which extreme temptation is a ground of extenuation rather than of increased severity of punishment.
2. The magnitude of the offence. Other things being equal, the greater the offence, that is to say the greater the sum of its evil consequences or tendencies, the greater should be its punishment. At first sight, indeed, it would seem that this consideration is irrelevant. Punishment, it may be thought, should be measured solely by the profit derived by the offender, not by the evils caused to other persons; if two crimes are equal in point of motive, they should be equal in point of punishment, notwithstanding the fact that one of them maybe many times more mischievous than the other. This, however, is not so, and the reason is twofold.
(a) The greater the mischief of any offence the greater is the punishment which it is profitable to inflict with the hope of preventing it. For the greater this mischief the less is the proportion which the evil of punishment bears to the good of prevention, and therefore the greater is the punishment which can be inflicted before the balance of good over evil attains its maximum. Assuming the motives of larceny and of homicide to be equal, it may be profitable to inflict capital punishment for the latter offence, although it is certainly unprofitable to inflict it for the former. The increased measure of prevention that would be obtained by such severity would, in view of the comparatively trivial nature of the offence, be obtained at too great a cost.
(b) A second and subordinate reason for making punishment vary with the magnitude of the offence is that, in those cases in which different offences offer themselves as alternatives to the offender, an inducement is thereby given for the preference of the least serious. If the punishment of burglary is the same as that of murder, the burglar has obvious motives for not stopping at the lesser crime. If an attempt is punished as severely as a completed offence, why should any man repent of his half-executed purposes?
3. The character of the offender. The worse the character or disposition of the offender the more severe should be his punishment. Badness of disposition is constituted either by the strength of the impulses to crime, or by the weakness of the impulses towards law-abiding conduct. One man may be worse than another because of the greater strength and prevalence within him of such anti-social passions as anger, covetousness, or malice; or his badness may lie in a deficiency of those social impulses and instincts which are the springs of right conduct in normally constituted men. In respect of all the graver forms of law-breaking, for one man who abstains from them for fear of the law there are thousands who abstain by reason of quite other influences. Their sympathetic instincts, their natural affections, their religious beliefs, their love of the approbation of others, their pride and self-respect, render superfluous the threatenings of the law. In the degree in which these impulses are dominant and operative, the disposition of a man is good; in the degree in which they are wanting or inefficient, it is bad.
In both its kinds badness of disposition is a ground for severity of punishment. If a man’s emotional constitution is such that normal temptation acts upon him with abnormal force, it is for the law to supply in double measure the counteractive of penal discipline. If he is so made that the natural influences towards well-doing fall below the level of average humanity, the law must supplement them by artificial influences of a strength that is needless in ordinary cases.
Any fact, therefore, which indicates depravity of disposition is a circumstance of aggravation, and calls for a penalty in excess of that which would otherwise be appropriate to the offence. One of the most important of these facts is the repetition of crime by one who has been already punished. The law rightly imposes upon habitual offenders penalties which bear no relation either to the magnitude or to the profit of the offence. A punishment adapted for normal men is not appropriate for those who, by their repeated defiance of it, prove their possession of abnormal natures. A second case in which the same principle is applicable is that in which the mischief of an offence is altogether disproportionate to any profit to be derived from it by the offender. To kill a man from mere wantonness, or merely in order to facilitate the picking of his pocket, is a proof of extraordinary depravity beyond anything that is imputable to him who commits homicide only through the stress of passionate indignation or under the influence of great temptation. A third case is that of offences from which normal humanity is adequately dissuaded by such influences as those of natural affection. To kill one’s father is in point of magnitude no worse a crime than any other homicide, but it has at all times been viewed with greater abhorrence, and by some laws punished with greater severity, by reason of the depth of depravity which it indicates in the offender. Lastly it is on the same principle that wilful offences are punished with greater rigour than those which are due merely to negligence.
An additional and subordinate reason for making the measure of liability depend upon the character of the offender is that badness of disposition is commonly accompanied by deficiency of sensibility. Punishment must increase as sensibility diminishes. The more depraved the offender the less he feels the shame of punishment; therefore the more he must be made to feel the pain of it. A certain degree of even physical insensibility is said to characterise the more degraded orders of criminals; and the indifference with which death itself is faced by those who in the callousness of their hearts have not scrupled to inflict it upon others is a matter of amazement to normally constituted men.
We are now in a position to deal with a question which we have already touched upon but deferred for fuller consideration, namely the apparent paradox involved in the rule that punishment must increase with the temptation to the offence. As a general rule this proposition is true; but it is subject to a very important qualification. For in certain cases the temptation to which a man succumbs may be of such a nature as to rebut that presumption of a bad disposition which would in ordinary circumstances arise from the commission of the offence. He may, for example, be driven to the act not by the strength of any bad or self-regarding motives, but by that of his social or sympathetic impulses. In such a case the greatness of the temptation, considered in itself, demands severity of punishment, but when considered as a disproof of the degraded disposition which usually accompanies wrongdoing it demands leniency; and the latter of these two conflicting considerations may be of sufficient importance to outweigh the other. If a man remains honest until he is driven in despair to steal food for his starving children, it is perfectly consistent with the deterrent theory of punishment to deal with him less severely than with him who steals from no other motive than cupidity. He who commits homicide from motives of petty gain, or to attain some trivial purpose, deserves to be treated with the utmost severity, as a man thoroughly callous and depraved. But he who kills another in retaliation for some intolerable insult or injury need not be dealt with according to the measure of his temptations, but should rather be excused on account of them.
§ 151. The Measure of Civil Liability.
Penal redress is that form of penal liability in which the law uses the compulsory compensation of the person injured as an instrument for the punishment of the offender. It is characteristic of this form of punishment that it takes account of one only of the three considerations which, as we have seen, rightly determine the measure of penal responsibility. It is measured exclusively by the magnitude of the offence, that is to say, by the amount of loss inflicted by it. It takes no account of the character of the offender, and so visits him who does harm through some trivial want of care with as severe a penalty as if his act had been prompted by deliberate malice. Similarly it takes no account of the motives of the offence; he who has everything and he who has nothing to gain are equally punished, if the damage done by them is equal. Finally it takes no account of probable or intended consequences, but solely of those which actually ensue; wherefore the measure of a wrongdoer’s liability is not the evil which he meant to do, but that which he has succeeded in doing; and his punishment is determined not by his fault, but by the accident of the result. If one man is dealt with more severely than another, it is not because he is more guilty, but because he has had the misfortune to be more successful in his wrongful purposes, or less successful in the avoidance of unintended issues.
Serious as are these lapses from the due standard of penal discipline, it is not to be suggested that this form of civil liability is unjustifiable. The use of redress as an instrument of punishment possesses advantages more than sufficient to counterbalance any such objections to it. More especially it possesses this, that while other forms of punishment, such as imprisonment, are uncompensated evil, penal redress is the gain of him who is wronged as well as the loss of the wrongdoer. Further, this form of remedy gives to the persons injured a direct interest in the efficient administration of justice—an interest which is almost absent in the case of the criminal law. It is true, however, that the law of penal redress, taken by itself, falls so far short of the requirements of a rational scheme of punishment that it would by itself be totally insufficient. In all modern and developed bodies of law its operation is supplemented, and its deficiencies made good, by a co-ordinate system of criminal liability. These two together, combined in due proportions, constitute a very efficient instrument for the maintenance of justice.