[356]. Leviathan, ch. 27. Eng. Works III. 288.
[357]. Reg. v. Dudley 14 Q. B. D. 273. The law as to compulsion and necessity is discussed in Stephen’s History of the Criminal Law, vol. ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I. 51. See also the German Criminal Code, sect. 54, in which the jus necessitatis receives express recognition.
[358]. In Roman law negligence is signified by the terms culpa and negligentia, as contrasted with dolus or wrongful intention. Care, or the absence of negligentia, is diligentia. The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction. In ordinary usage, diligence is opposed to idleness, not to carelessness.
[359]. Grill v. General Iron Screw Colliery Co., L. R. 1 C. P. at p. 612.
[360]. Kettlewell v. Watson, 21 Ch. D. at p. 706: “Fraud imports design and purpose; negligence imports that you are acting carelessly and without that design.”
[361]. An excellent analysis of the conception of negligence is to be found in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See especially sect. 32 (1): “negligent wrongdoing is that which is not intentional, but results from culpable inadvertence (Unaufmerksamkeit) or indifference (Gleichgultigkeit). The mental attitude of the wrongdoer consists not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The law is not satisfied with the mere absence of any intention to inflict injury, but demands a positive direction of the will towards the avoidance of it.”
[362]. The distinction between these two forms of negligence is well explained by Merkel, Strafrecht, sect. 33 (3).
[363]. Inst. Just. 4. 3. 7.
[364]. Derry v. Peek, 14 A. C. 337; Le Lievre v. Gould, (1893) 1 Q. B. 491.
[365]. Macarthy v. Young, 6 H. & N. 329; Coughlin v. Gillison, (1899) 1 Q. B. 145. For the same reason the occupier of dangerous premises owes a duty of care to him who comes there on business, but none towards a bare licensee. Gautret v. Egerton, L. R. 2 C. P. 371. Similarly an arbitrator is liable for fraud, but not for negligence or want of skill. Tharsis Sulphur and Copper Co. v. Loftus, L. R. 8 C. P. 1.