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]]