LECTURE II.
THE CRIMINAL LAW.
In the beginning of the first Lecture it was shown that the
appeals of the early law were directed only to intentional
wrongs. The appeal was a far older form of procedure than the
indictment, and may be said to have had a criminal as well as a
civil aspect. It had the double object of satisfying the private
party for his loss, and the king for the breach of his peace. On
its civil side it was rooted in vengeance. It was a proceeding to
recover those compositions, at first optional, afterwards
compulsory, by which a wrong-doer bought the spear from his side.
Whether, so far as concerned the king, it had the same object of
vengeance, or was more particularly directed to revenue, does not
matter, since the claim of the king did not enlarge the scope of
the action.
It would seem to be a fair inference that indictable offences
were originally limited in the same way as those which gave rise
to an appeal. For whether the indictment arose by a splitting up
of the appeal, or in some other way, the two were closely
connected.
An acquittal of the appellee on the merits was a bar to an
indictment; and, on the other hand, when an appeal was fairly
started, although the appellor might fail to prosecute, or might
be defeated by plea, the cause might still be proceeded with on
behalf of the king. /1/
[40] The presentment, which is the other parent of our criminal
procedure, had an origin distinct from the appeal. If, as has
been thought, it was merely the successor of fresh suit and lynch
law, /1/ this also is the child of vengeance, even more clearly
than the other.
The desire for vengeance imports an opinion that its object is
actually and personally to blame. It takes an internal standard,
not an objective or external one, and condemns its victim by
that. The question is whether such a standard is still accepted
either in this primitive form, or in some more refined
development, as is commonly supposed, and as seems not
impossible, considering the relative slowness with which the
criminal law has improved.
It certainly may be argued, with some force, that it has never
ceased to be one object of punishment to satisfy the desire for
vengeance. The argument will be made plain by considering those
instances in which, for one reason or another, compensation for a
wrong is out of the question.
Thus an act may be of such a kind as to make indemnity impossible
by putting an end to the principal sufferer, as in the case of
murder or manslaughter.
Again, these and other crimes, like forgery, although directed
against an individual, tend to make others feel unsafe, and this
general insecurity does not admit of being paid for.
Again, there are cases where there are no means of enforcing
indemnity. In Macaulay's draft of the Indian Penal Code, breaches
of contract for the carriage of passengers, were made criminal.
The palanquin-bearers of India were too poor to pay damages, and
yet had to be [41] trusted to carry unprotected women and
children through wild and desolate tracts, where their desertion
would have placed those under their charge in great danger.
In all these cases punishment remains as an alternative. A pain
can be inflicted upon the wrong-doer, of a sort which does not
restore the injured party to his former situation, or to another
equally good, but which is inflicted for the very purpose of
causing pain. And so far as this punishment takes the place of
compensation, whether on account of the death of the person to
whom the wrong was done, the indefinite number of persons
affected, the impossibility of estimating the worth of the
suffering in money, or the poverty of the criminal, it may be
said that one of its objects is to gratify the desire for
vengeance. The prisoner pays with his body.
The statement may be made stronger still, and it may be said, not
only that the law does, but that it ought to, make the
gratification of revenge an object. This is the opinion, at any
rate, of two authorities so great, and so opposed in other views,
as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says,
"The criminal law stands to the passion of revenge in much the
same relation as marriage to the sexual appetite." /2/
The first requirement of a sound body of law is, that it should
correspond with the actual feelings and demands of the community,
whether right or wrong. If people would gratify the passion of
revenge outside of the law, if the law did not help them, the law
has no choice but to satisfy the craving itself, and thus avoid
the greater evil of private [42] retribution. At the same time,
this passion is not one which we encourage, either as private
individuals or as lawmakers. Moreover, it does not cover the
whole ground. There are crimes which do not excite it, and we
should naturally expect that the most important purposes of
punishment would be coextensive with the whole field of its
application. It remains to be discovered whether such a general
purpose exists, and if so what it is. Different theories still
divide opinion upon the subject.
It has been thought that the purpose of punishment is to reform
the criminal; that it is to deter the criminal and others from
committing similar crimes; and that it is retribution. Few would
now maintain that the first of these purposes was the only one.
If it were, every prisoner should be released as soon as it
appears clear that he will never repeat his offence, and if he is
incurable he should not be punished at all. Of course it would be
hard to reconcile the punishment of death with this doctrine.
The main struggle lies between the other two. On the one side is
the notion that there is a mystic bond between wrong and
punishment; on the other, that the infliction of pain is only a
means to an end. Hegel, one of the great expounders of the former
view, puts it, in his quasi mathematical form, that, wrong being
the negation of right, punishment is the negation of that
negation, or retribution. Thus the punishment must be equal, in
the sense of proportionate to the crime, because its only
function is to destroy it. Others, without this logical
apparatus, are content to rely upon a felt necessity that
suffering should follow wrong-doing.
It is objected that the preventive theory is immoral, because it
overlooks the ill-desert of wrong-doing, and furnishes [43] no
measure of the amount of punishment, except the lawgiver's
subjective opinion in regard to the sufficiency of the amount of
preventive suffering. /1/ In the language of Kant, it treats man
as a thing, not as a person; as a means, not as an end in
himself. It is said to conflict with the sense of justice, and to
violate the fundamental principle of all free communities, that
the members of such communities have equal rights to life,
liberty, and personal security. /2/
In spite of all this, probably most English-speaking lawyers
would accept the preventive theory without hesitation. As to the
violation of equal rights which is charged, it may be replied
that the dogma of equality makes an equation between individuals
only, not between an individual and the community. No society has
ever admitted that it could not sacrifice individual welfare to
its own existence. If conscripts are necessary for its army, it
seizes them, and marches them, with bayonets in their rear, to
death. It runs highways and railroads through old family places
in spite of the owner's protest, paying in this instance the
market value, to be sure, because no civilized government
sacrifices the citizen more than it can help, but still
sacrificing his will and his welfare to that of the rest. /3/
If it were necessary to trench further upon the field of morals,
it might be suggested that the dogma of equality applied even to
individuals only within the limits of ordinary dealings in the
common run of affairs. You cannot argue with your neighbor,
except on the admission for the [44] moment that he is as wise as
you, although you may by no means believe it. In the same way,
you cannot deal with him, where both are free to choose, except
on the footing of equal treatment, and the same rules for both.
The ever-growing value set upon peace and the social relations
tends to give the law of social being the appearance of the law
of all being. But it seems to me clear that the ultima ratio, not
only regum, but of private persons, is force, and that at the
bottom of all private relations, however tempered by sympathy and
all the social feelings, is a justifiable self-preference. If a
man is on a plank in the deep sea which will only float one, and
a stranger lays hold of it, he will thrust him off if he can.
When the state finds itself in a similar position, it does the
same thing.
The considerations which answer the argument of equal rights also
answer the objections to treating man as a thing, and the like.
If a man lives in society, he is liable to find himself so
treated. The degree of civilization which a people has reached,
no doubt, is marked by their anxiety to do as they would be done
by. It may be the destiny of man that the social instincts shall
grow to control his actions absolutely, even in anti-social
situations. But they have not yet done so, and as the rules of
law are or should be based upon a morality which is generally
accepted, no rule founded on a theory of absolute unselfishness
can be laid down without a breach between law and working
beliefs.
If it be true, as I shall presently try to show, that the general
principles of criminal and civil liability are the same, it will
follow from that alone that theory and fact agree in frequently
punishing those who have been guilty [45] of no moral wrong, and
who could not be condemned by any standard that did not avowedly
disregard the personal peculiarities of the individuals
concerned. If punishment stood on the moral grounds which are
proposed for it, the first thing to be considered would be those
limitations in the capacity for choosing rightly which arise from
abnormal instincts, want of education, lack of intelligence, and
all the other defects which are most marked in the criminal
classes. I do not say that they should not be, or at least I do
not need to for my argument. I do not say that the criminal law
does more good than harm. I only say that it is not enacted or
administered on that theory.
There remains to be mentioned the affirmative argument in favor
of the theory of retribution, to the effect that the fitness of
punishment following wrong-doing is axiomatic, and is
instinctively recognized by unperverted minds. I think that it
will be seen, on self-inspection, that this feeling of fitness is
absolute and unconditional only in the case of our neighbors. It
does not seem to me that any one who has satisfied himself that
an act of his was wrong, and that he will never do it again,
would feel the least need or propriety, as between himself and an
earthly punishing power alone, of his being made to suffer for
what he had done, although, when third persons were introduced,
he might, as a philosopher, admit the necessity of hurting him to
frighten others. But when our neighbors do wrong, we sometimes
feel the fitness of making them smart for it, whether they have
repented or not. The feeling of fitness seems to me to be only
vengeance in disguise, and I have already admitted that vengeance
was an element, though not the chief element, of punishment.
[46] But, again, the supposed intuition of fitness does not seem
to me to be coextensive with the thing to be accounted for. The
lesser punishments are just as fit for the lesser crimes as the
greater for the greater. The demand that crime should be followed
by its punishment should therefore be equal and absolute in both.
Again, a malum prohibitum is just as much a crime as a malum in
se. If there is any general ground for punishment, it must apply
to one case as much as to the other. But it will hardly be said
that, if the wrong in the case just supposed consisted of a
breach of the revenue laws, and the government had been
indemnified for the loss, we should feel any internal necessity
that a man who had thoroughly repented of his wrong should be
punished for it, except on the ground that his act was known to
others. If it was known, the law would have to verify its threats
in order that others might believe and tremble. But if the fact
was a secret between the sovereign and the subject, the
sovereign, if wholly free from passion, would undoubtedly see
that punishment in such a case was wholly without justification.
On the other hand, there can be no case in which the law-maker
makes certain conduct criminal without his thereby showing a wish
and purpose to prevent that conduct. Prevention would accordingly
seem to be the chief and only universal purpose of punishment.
The law threatens certain pains if you do certain things,
intending thereby to give you a new motive for not doing them. If
you persist in doing them, it has to inflict the pains in order
that its threats may continue to be believed.
If this is a true account of the law as it stands, the law does
undoubtedly treat the individual as a means to an [47] end, and
uses him as a tool to increase the general welfare at his own
expense. It has been suggested above, that this course is
perfectly proper; but even if it is wrong, our criminal law
follows it, and the theory of our criminal law must be shaped
accordingly.
Further evidence that our law exceeds the limits of retribution,
and subordinates consideration of the individual to that of the
public well-being, will be found in some doctrines which cannot
be satisfactorily explained on any other ground.
The first of these is, that even the deliberate taking of life
will not be punished when it is the only way of saving one's own.
This principle is not so clearly established as that next to be
mentioned; but it has the support of very great authority. /1/ If
that is the law, it must go on one of two grounds, either that
self-preference is proper in the case supposed, or that, even if
it is improper, the law cannot prevent it by punishment, because
a threat of death at some future time can never be a sufficiently
powerful motive to make a man choose death now in order to avoid
the threat. If the former ground is adopted, it admits that a
single person may sacrifice another to himself, and a fortiori
that a people may. If the latter view is taken, by abandoning
punishment when it can no longer be expected to prevent an act,
the law abandons the retributive and adopts the preventive
theory.
The next doctrine leads to still clearer conclusions. Ignorance
of the law is no excuse for breaking it. This substantive
principle is sometimes put in the form of a rule of evidence,
that every one is presumed to know the [48] law. It has
accordingly been defended by Austin and others, on the ground of
difficulty of proof. If justice requires the fact to be
ascertained, the difficulty of doing so is no ground for refusing
to try. But every one must feel that ignorance of the law could
never be admitted as an excuse, even if the fact could be proved
by sight and hearing in every case. Furthermore, now that parties
can testify, it may be doubted whether a man's knowledge of the
law is any harder to investigate than many questions which are
gone into. The difficulty, such as it is, would be met by
throwing the burden of proving ignorance on the lawbreaker.
The principle cannot be explained by saying that we are not only
commanded to abstain from certain acts, but also to find out that
we are commanded. For if there were such a second command, it is
very clear that the guilt of failing to obey it would bear no
proportion to that of disobeying the principal command if known,
yet the failure to know would receive the same punishment as the
failure to obey the principal law.
The true explanation of the rule is the same as that which
accounts for the law's indifference to a man's particular
temperament, faculties, and so forth. Public policy sacrifices
the individual to the general good. It is desirable that the
burden of all should be equal, but it is still more desirable to
put an end to robbery and murder. It is no doubt true that there
are many cases in which the criminal could not have known that he
was breaking the law, but to admit the excuse at all would be to
encourage ignorance where the law-maker has determined to make
men know and obey, and justice to the individual is rightly
outweighed by the larger interests on the other side of the
scales.
[49] If the foregoing arguments are sound, it is already manifest
that liability to punishment cannot be finally and absolutely
determined by considering the actual personal unworthiness of the
criminal alone. That consideration will govern only so far as the
public welfare permits or demands. And if we take into account
the general result which the criminal law is intended to bring
about, we shall see that the actual state of mind accompanying a
criminal act plays a different part from what is commonly
supposed.
For the most part, the purpose of the criminal law is only to
induce external conformity to rule. All law is directed to
conditions of things manifest to the senses. And whether it
brings those conditions to pass immediately by the use of force,
as when it protects a house from a mob by soldiers, or
appropriates private property to public use, or hangs a man in
pursuance of a judicial sentence, or whether it brings them about
mediately through men's fears, its object is equally an external
result. In directing itself against robbery or murder, for
instance, its purpose is to put a stop to the actual physical
taking and keeping of other men's goods, or the actual poisoning,
shooting, stabbing, and otherwise putting to death of other men.
If those things are not done, the law forbidding them is equally
satisfied, whatever the motive.
Considering this purely external purpose of the law together with
the fact that it is ready to sacrifice the individual so far as
necessary in order to accomplish that purpose, we can see more
readily than before that the actual degree of personal guilt
involved in any particular transgression cannot be the only
element, if it is an element at all, in the liability incurred.
So far from its [50] being true, as is often assumed, that the
condition of a man's heart or conscience ought to be more
considered in determining criminal than civil liability, it might
almost be said that it is the very opposite of truth. For civil
liability, in its immediate working, is simply a redistribution
of an existing loss between two individuals; and it will be
argued in the next Lecture that sound policy lets losses lie
where they fall, except where a special reason can be shown for
interference. The most frequent of such reasons is, that the
party who is charged has been to blame.
It is not intended to deny that criminal liability, as well as
civil, is founded on blameworthiness. Such a denial would shock
the moral sense of any civilized community; or, to put it another
way, a law which punished conduct which would not be blameworthy
in the average member of the community would be too severe for
that community to bear. It is only intended to point out that,
when we are dealing with that part of the law which aims more
directly than any other at establishing standards of conduct, we
should expect there more than elsewhere to find that the tests of
liability are external, and independent of the degree of evil in
the particular person's motives or intentions. The conclusion
follows directly from the nature of the standards to which
conformity is required. These are not only external, as was shown
above, but they are of general application. They do not merely
require that every man should get as near as he can to the best
conduct possible for him. They require him at his own peril to
come up to a certain height. They take no account of
incapacities, unless the weakness is so marked as to fall into
well-known exceptions, such as infancy or madness. [51] They
assume that every man is as able as every other to behave as they
command. If they fall on any one class harder than on another, it
is on the weakest. For it is precisely to those who are most
likely to err by temperament, ignorance, or folly, that the
threats of the law are the most dangerous.
The reconciliation of the doctrine that liability is founded on
blameworthiness with the existence of liability where the party
is not to blame, will be worked out more fully in the next
Lecture. It is found in the conception of the average man, the
man of ordinary intelligence and reasonable prudence. Liability
is said to arise out of such conduct as would be blameworthy in
him. But he is an ideal being, represented by the jury when they
are appealed to, and his conduct is an external or objective
standard when applied to any given individual. That individual
may be morally without stain, because he has less than ordinary
intelligence or prudence. But he is required to have those
qualities at his peril. If he has them, he will not, as a general
rule, incur liability without blameworthiness.
The next step is to take up some crimes in detail, and to
discover what analysis will teach with regard to them.
I will begin with murder. Murder is defined by Sir James Stephen,
in his Digest of Criminal Law, /1/ as unlawful homicide with
malice aforethought. In his earlier work, /2/ he explained that
malice meant wickedness, and that the law had determined what
states of mind were wicked in the necessary degree. Without the
same preliminary he continues in his Digest as follows:--
[52] "Malice aforethought means any one or more of the following
states of mind ..... "(a.) An intention to cause the death of, or
grievous bodily harm to, any person, whether such person is the
person actually killed or not; "(b.) Knowledge that the act which
causes death will probably cause the death of, or grievous bodily
harm to, some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may not be caused; "(c.) An intent to
commit any felony whatever; "(d.) An intent to oppose by force
any officer of justice on his way to, in, or returning from the
execution of the duty of arresting, keeping in custody, or
imprisoning any person whom he is lawfully entitled to arrest,
keep in custody, or imprison, or the duty of keeping the peace or
dispersing an unlawful assembly, provided that the offender has
notice that the person killed is such an officer so employed."
Malice, as used in common speech, includes intent, and something
more. When an act is said to be done with an intent to do harm,
it is meant that a wish for the harm is the motive of the act.
Intent, however, is perfectly consistent with the harm being
regretted as such, and being wished only as a means to something
else. But when an act is said to be done maliciously, it is
meant, not only that a wish for the harmful effect is the motive,
but also that the harm is wished for its own sake, or, as Austin
would say with more accuracy, for the sake of the pleasurable
feeling which knowledge of the suffering caused by the act would
excite. Now it is apparent from Sir James [53] Stephen's
enumeration, that of these two elements of malice the intent
alone is material to murder. It is just as much murder to shoot a
sentry for the purpose of releasing a friend, as to shoot him
because you hate him. Malice, in the definition of murder, has
not the same meaning as in common speech, and, in view of the
considerations just mentioned, it has been thought to mean
criminal intention. /1/
But intent again will be found to resolve itself into two things;
foresight that certain consequences will follow from an act, and
the wish for those consequences working as a motive which induces
the act. The question then is, whether intent, in its turn,
cannot be reduced to a lower term. Sir James Stephen's statement
shows that it can be, and that knowledge that the act will
probably cause death, that is, foresight of the consequences of
the act, is enough in murder as in tort.
For instance, a newly born child is laid naked out of doors,
where it must perish as a matter of course. This is none the less
murder, that the guilty party would have been very glad to have a
stranger find the child and save it. /2/
But again, What is foresight of consequences? It is a picture of
a future state of things called up by knowledge of the present
state of things, the future being viewed as standing to the
present in the relation of effect to cause. Again, we must seek a
reduction to lower terms. If the known present state of things is
such that the act done will very certainly cause death, and the
probability is a matter of common knowledge, one who does the
act, [54] knowing the present state of things, is guilty of
murder, and the law will not inquire whether he did actually
foresee the consequences or not. The test of foresight is not
what this very criminal foresaw, but what a man of reasonable
prudence would have foreseen.
On the other hand, there must be actual present knowledge of the
present facts which make an act dangerous. The act is not enough
by itself. An act, it is true, imports intention in a certain
sense. It is a muscular contraction, and something more. A spasm
is not an act. The contraction of the muscles must be willed. And
as an adult who is master of himself foresees with mysterious
accuracy the outward adjustment which will follow his inward
effort, that adjustment may be said to be intended. But the
intent necessarily accompanying the act ends there. Nothing would
follow from the act except for the environment. All acts, taken
apart from their surrounding circumstances, are indifferent to
the law. For instance, to crook the forefinger with a certain
force is the same act whether the trigger of a pistol is next to
it or not. It is only the surrounding circumstances of a pistol
loaded and cocked, and of a human being in such relation to it,
as to be manifestly likely to be hit, that make the act a wrong.
Hence, it is no sufficient foundation for liability, on any sound
principle, that the proximate cause of loss was an act.
The reason for requiring an act is, that an act implies a choice,
and that it is felt to be impolitic and unjust to make a man
answerable for harm, unless he might have chosen otherwise. But
the choice must be made with a chance of contemplating the
consequence complained of, or else it has no bearing on
responsibility for that consequence. [55] If this were not true,
a man might be held answerable for everything which would not
have happened but for his choice at some past time. For instance,
for having in a fit fallen on a man, which he would not have done
had he not chosen to come to the city where he was taken ill.
All foresight of the future, all choice with regard to any
possible consequence of action, depends on what is known at the
moment of choosing. An act cannot be wrong, even when done under
circumstances in which it will be hurtful, unless those
circumstances are or ought to be known. A fear of punishment for
causing harm cannot work as a motive, unless the possibility of
harm may be foreseen. So far, then, as criminal liability is
founded upon wrong-doing in any sense, and so far as the threats
and punishments of the law are intended to deter men from
bringing about various harmful results, they must be confined to
cases where circumstances making the conduct dangerous were
known.
Still, in a more limited way, the same principle applies to
knowledge that applies to foresight. It is enough that such
circumstances were actually known as would have led a man of
common understanding to infer from them the rest of the group
making up the present state of things. For instance, if a workman
on a house-top at mid-day knows that the space below him is a
street in a great city, he knows facts from which a man of common
understanding would infer that there were people passing below.
He is therefore bound to draw that inference, or, in other words,
is chargeable with knowledge of that fact also, whether he draws
the inference or not. If then, he throws down a heavy beam into
the street, he does an act [56] which a person of ordinary
prudence would foresee is likely to cause death, or grievous
bodily harm, and he is dealt with as if he foresaw it, whether he
does so in fact or not. If a death is caused by the act, he is
guilty of murder. /1/ But if the workman has reasonable cause to
believe that the space below is a private yard from which every
one is excluded, and which is used as a rubbish heap, his act is
not blameworthy, and the homicide is a mere misadventure.
To make an act which causes death murder, then, the actor ought,
on principle, to know, or have notice of the facts which make the
act dangerous. There are certain exceptions to this principle
which will be stated presently, but they have less application to
murder than to some smaller statutory crimes. The general rule
prevails for the most part in murder.
But furthermore, on the same principle, the danger which in fact
exists under the known circumstances ought to be of a class which
a man of reasonable prudence could foresee. Ignorance of a fact
and inability to foresee a consequence have the same effect on
blameworthiness. If a consequence cannot be foreseen, it cannot
be avoided. But there is this practical difference, that whereas,
in most cases, the question of knowledge is a question of the
actual condition of the defendant's consciousness, the question
of what he might have foreseen is determined by the standard of
the prudent man, that is, by general experience. For it is to be
remembered that the object of the law is to prevent human life
being endangered or taken; and that, although it so far considers
blameworthiness in punishing as not to hold a man responsible for
consequences which [57] no one, or only some exceptional
specialist, could have foreseen, still the reason for this
limitation is simply to make a rule which is not too hard for the
average member of the community. As the purpose is to compel men
to abstain from dangerous conduct, and not merely to restrain
them from evil inclinations, the law requires them at their peril
to know the teachings of common experience, just as it requires
them to know the law. Subject to these explanations, it may be
said that the test of murder is the degree of danger to life
attending the act under the known circumstances of the case. /1/
It needs no further explanation to show that, when the particular
defendant does for any reason foresee what an ordinary man of
reasonable prudence would not have foreseen, the ground of
exemption no longer applies. A harmful act is only excused on the
ground that the party neither did foresee, nor could with proper
care have foreseen harm.
It would seem, at first sight, that the above analysis ought to
exhaust the whole subject of murder. But it does not without some
further explanation. If a man forcibly resists an officer
lawfully making an arrest, and kills him, knowing him to be an
officer, it may be murder, although no act is done which, but for
his official function, would be criminal at all. So, if a man
does an act with intent to commit a felony, and thereby
accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the
owner, whom he does not see. Such a case as this last seems
hardly to be reconcilable with the general principles which have
been laid down. It has been argued somewhat as [58] follows:--The
only blameworthy act is firing at the chickens, knowing them to
belong to another. It is neither more nor less so because an
accident happens afterwards; and hitting a man, whose presence
could not have been suspected, is an accident. The fact that the
shooting is felonious does not make it any more likely to kill
people. If the object of the rule is to prevent such accidents,
it should make accidental killing with firearms murder, not
accidental killing in the effort to steal; while, if its object
is to prevent stealing, it would do better to hang one thief in
every thousand by lot.
Still, the law is intelligible as it stands. The general test of
murder is the degree of danger attending the acts under the known
state of facts. If certain acts are regarded as peculiarly
dangerous under certain circumstances, a legislator may make them
punishable if done under these circumstances, although the danger
was not generally known. The law often takes this step, although
it does not nowadays often inflict death in such cases. It
sometimes goes even further, and requires a man to find out
present facts, as well as to foresee future harm, at his peril,
although they are not such as would necessarily be inferred from
the facts known.
Thus it is a statutory offence in England to abduct a girl under
sixteen from the possession of the person having lawful charge of
her. If a man does acts which induce a girl under sixteen to
leave her parents, he is not chargeable, if he had no reason to
know that she was under the lawful charge of her parents, /1/ and
it may be presumed that he would not be, if he had reasonable
cause to believe that she was a boy. But if he knowingly abducts
a girl from [59] her parents, he must find out her age at his
peril. It is no defence that he had every reason to think her
over sixteen. /1/ So, under a prohibitory liquor law, it has been
held that, if a man sells "Plantation Bitters," it is no defence
that he does not know them to be intoxicating. /2/ And there are
other examples of the same kind.
Now, if experience shows, or is deemed by the law-maker to show,
that somehow or other deaths which the evidence makes accidental
happen disproportionately often in connection with other
felonies, or with resistance to officers, or if on any other
ground of policy it is deemed desirable to make special efforts
for the prevention of such deaths, the lawmaker may consistently
treat acts which, under the known circumstances, are felonious,
or constitute resistance to officers, as having a sufficiently
dangerous tendency to be put under a special ban. The law may,
therefore, throw on the actor the peril, not only of the
consequences foreseen by him, but also of consequences which,
although not predicted by common experience, the legislator
apprehends. I do not, however, mean to argue that the rules under
discussion arose on the above reasoning, any more than that they
are right, or would be generally applied in this country.
Returning to the main line of thought it will be instructive to
consider the relation of manslaughter to murder. One great
difference between the two will be found to lie in the degree of
danger attaching to the act in the given state of facts. If a man
strikes another with a small stick which is not likely to kill,
and which he has no reason to suppose will do more than slight
bodily harm, but which [60] does kill the other, he commits
manslaughter, not murder. /1/ But if the blow is struck as hard
as possible with an iron bar an inch thick, it is murder. /2/ So
if, at the time of striking with a switch, the party knows an
additional fact, by reason of which he foresees that death will
be the consequence of a slight blow, as, for instance, that the
other has heart disease, the offence is equally murder. /3/ To
explode a barrel of gunpowder in a crowded street, and kill
people, is murder, although the actor hopes that no such harm
will be done. /4/ But to kill a man by careless riding in the
same street would commonly be manslaughter. /5/ Perhaps, however,
a case could be put where the riding was so manifestly dangerous
that it would be murder.
To recur to an example which has been used already for another
purpose: "When a workman flings down a stone or piece of timber
into the street, and kills a man; this may be either
misadventure, manslaughter, or murder, according to the
circumstances under which the original act was done: if it were
in a country village, where few passengers are, and he calls out
to all people to have a care, it is misadventure only; but if it
were in London, or other populous town, where people are
continually passing, it is manslaughter, though he gives loud
warning; and murder, if he knows of their passing, and gives no
warning at all." /6/
The law of manslaughter contains another doctrine [61] which
should be referred to in order to complete the understanding of
the general principles of the criminal law. This doctrine is,
that provocation may reduce an offence which would otherwise have
been murder to manslaughter. According to current morality, a man
is not so much to blame for an act done under the disturbance of
great excitement, caused by a wrong done to himself, as when he
is calm. The law is made to govern men through their motives, and
it must, therefore, take their mental constitution into account.
It might be urged, on the other side, that, if the object of
punishment is prevention, the heaviest punishment should be
threatened where the strongest motive is needed to restrain; and
primitive legislation seems sometimes to have gone on that
principle. But if any threat will restrain a man in a passion, a
threat of less than death will be sufficient, and therefore the
extreme penalty has been thought excessive.
At the same time the objective nature of legal standards is shown
even here. The mitigation does not come from the fact that the
defendant was beside himself with rage. It is not enough that he
had grounds which would have had the same effect on every man of
his standing and education. The most insulting words are not
provocation, although to this day, and still more when the law
was established, many people would rather die than suffer them
without action. There must be provocation sufficient to justify
the passion, and the law decides on general considerations what
provocations are sufficient.
It is said that even what the law admits to be "provocation does
not extenuate the guilt of homicide, unless the person provoked
is at the time when he does the deed [62] deprived of the power
of self-control by the provocation which he has received." /1/
There are obvious reasons for taking the actual state of the
defendant's consciousness into account to this extent. The only
ground for not applying the general rule is, that the defendant
was in such a state that he could not be expected to remember or
be influenced by the fear of punishment; if he could be, the
ground of exception disappears. Yet even here, rightly or
wrongly, the law has gone far in the direction of adopting
external tests. The courts seem to have decided between murder
and manslaughter on such grounds as the nature of the weapon
used, /2/ or the length of time between the provocation and the
act. /3/ But in other cases the question whether the prisoner was
deprived of self-control by passion has been left to the jury.
/4/
As the object of this Lecture is not to give an outline of the
criminal law, but to explain its general theory, I shall only
consider such offences as throw some special light upon the
subject, and shall treat of those in such order as seems best
fitted for that purpose. It will now be useful to take up
malicious mischief, and to compare the malice required to
constitute that offence with the malice aforethought of murder.
The charge of malice aforethought in an indictment for murder has
been shown not to mean a state of the defendant's mind, as is
often thought, except in the sense that he knew circumstances
which did in fact make his conduct dangerous. It is, in truth, an
allegation like that of negligence, which asserts that the party
accused did not [63] come up to the legal standard of action
under the circumstances in which he found himself, and also that
there was no exceptional fact or excuse present which took the
case out of the general rule. It is an averment of a conclusion
of law which is permitted to abridge the facts (positive and
negative) on which it is founded.
When a statute punishes the "wilfully and maliciously" injuring
another's property, it is arguable, if not clear, that something
more is meant. The presumption that the second word was not added
without some meaning is seconded by the unreasonableness of
making every wilful trespass criminal. /1/ If this reasoning
prevails, maliciously is here used in its popular sense, and
imports that the motive for the defendant's act was a wish to
harm the owner of the property, or the thing itself, if living,
as an end, and for the sake of the harm. Malice in this sense has
nothing in common with the malice of murder.
Statutory law need not profess to be consistent with itself, or
with the theory adopted by judicial decisions. Hence there is
strictly no need to reconcile such a statute with the principles
which have been explained. But there is no inconsistency.
Although punishment must be confined to compelling external
conformity to a rule of conduct, so far that it can always be
avoided by avoiding or doing certain acts as required, with
whatever intent or for whatever motive, still the prohibited
conduct may not be hurtful unless it is accompanied by a
particular state of feeling.
Common disputes about property are satisfactorily settled by
compensation. But every one knows that sometimes secret harm is
done by neighbor to neighbor out of [64] pure malice and spite.
The damage can be paid for, but the malignity calls for revenge,
and the difficulty of detecting the authors of such wrongs, which
are always done secretly, affords a ground for punishment, even
if revenge is thought insufficient.
How far the law will go in this direction it is hard to say. The
crime of arson is defined to be the malicious and wilful burning
of the house of another man, and is generally discussed in close
connection with malicious mischief. It has been thought that the
burning was not malicious where a prisoner set fire to his
prison, not from a desire to consume the building, but solely to
effect his escape. But it seems to be the better opinion that
this is arson, /1/ in which case an intentional burning is
malicious within the meaning of the rule. When we remember that
arson was the subject of one of the old appeals which take us far
back into the early law, /2/ we may readily understand that only
intentional burnings were redressed in that way. /3/ The appeal
of arson was brother to the appeal de pace et plagis. As the
latter was founded on a warlike assault, the former supposed a
house-firing for robbery or revenge, /4/ such as that by which
Njal perished in the Icelandic Saga. But this crime seems to have
had the same history as others. As soon as intent is admitted to
be sufficient, the law is on the high-road to an external
standard. A man who intentionally sets fire to his own house,
which is so near to other houses that the fire will manifestly
endanger them, is guilty of arson if one of the other houses is
burned in consequence. /5/ In this case, an act which would not
[65] have been arson, taking only its immediate consequences into
account, becomes arson by reason of more remote consequences
which were manifestly likely to follow, whether they were
actually intended or not. If that may be the effect of setting
fire to things which a man has a right to burn, so far as they
alone are concerned, why, on principle, should it not be the
effect of any other act which is equally likely under the
surrounding circumstances to cause the same harm. /1/ Cases may
easily be imagined where firing a gun, or making a chemical
mixture, or piling up oiled rags, or twenty other things, might
be manifestly dangerous in the highest degree and actually lead
to a conflagration. If, in such cases, the crime is held to have
been committed, an external standard is reached, and the analysis
which has been made of murder applies here.
There is another class of cases in which intent plays an
important part, for quite different reasons from those which have
been offered to account for the law of malicious mischief. The
most obvious examples of this class are criminal attempts.
Attempt and intent, of course, are two distinct things. Intent to
commit a crime is not itself criminal. There is no law against a
man's intending to commit a murder the day after tomorrow. The
law only deals with conduct. An attempt is an overt act. It
differs from the attempted crime in this, that the act has failed
to bring about the result which would have given it the character
of the principal crime. If an attempt to murder results in death
within a year and a day, it is murder. If an attempt to steal
results in carrying off the owner's goods, it is larceny.
If an act is done of which the natural and probable [66] effect
under the circumstances is the accomplishment of a substantive
crime, the criminal law, while it may properly enough moderate
the severity of punishment if the act has not that effect in the
particular case, can hardly abstain altogether from punishing it,
on any theory. It has been argued that an actual intent is all
that can give the act a criminal character in such instances. /1/
But if the views which I have advanced as to murder and
manslaughter are sound, the same principles ought logically to
determine the criminality of acts in general. Acts should be
judged by their tendency under the known circumstances, not by
the actual intent which accompanies them.
It may be true that in the region of attempts, as elsewhere, the
law began with cases of actual intent, as those cases are the
most obvious ones. But it cannot stop with them, unless it
attaches more importance to the etymological meaning of the word
attempt than to the general principles of punishment. Accordingly
there is at least color of authority for the proposition that an
act is punishable as an attempt, if, supposing it to have
produced its natural and probable effect, it would have amounted
to a substantive crime. /2/
But such acts are not the only punishable attempts. There is
another class in which actual intent is clearly necessary, and
the existence of this class as well as the name (attempt) no
doubt tends to affect the whole doctrine. Some acts may be
attempts or misdemeanors which [67] could not have effected the
crime unless followed by other acts on the part of the
wrong-doer. For instance, lighting a match with intent to set
fire to a haystack has been held to amount to a criminal attempt
to burn it, although the defendant blew out the match on seeing
that he was watched. /1/ So the purchase of dies for making
counterfeit coin is a misdemeanor, although of course the coin
would not be counterfeited unless the dies were used. /2/
In such cases the law goes on a new principle, different from
that governing most substantive crimes. The reason for punishing
any act must generally be to prevent some harm which is foreseen
as likely to follow that act under the circumstances in which it
is done. In most substantive crimes the ground on which that
likelihood stands is the common working of natural causes as
shown by experience. But when an act is punished the natural
effect of which is not harmful under the circumstances, that
ground alone will not suffice. The probability does not exist
unless there are grounds for expecting that the act done will be
followed by other acts in connection with which its effect will
be harmful, although not so otherwise. But as in fact no such
acts have followed, it cannot, in general, be assumed, from the
mere doing of what has been done, that they would have followed
if the actor had not been interrupted. They would not have
followed it unless the actor had chosen, and the only way
generally available to show that he would have chosen to do them
is by showing that he intended to do them when he did what he
did. The accompanying intent in that case renders the otherwise
[68] innocent act harmful, because it raises a probability that
it will be followed by such other acts and events as will all
together result in harm. The importance of the intent is not to
show that the act was wicked, but to show that it was likely to
be followed by hurtful consequences.
It will be readily seen that there are limits to this kind of
liability. The law does not punish every act which is done with
the intent to bring about a crime. If a man starts from Boston to
Cambridge for the purpose of committing a murder when he gets
there, but is stopped by the draw and goes home, he is no more
punishable than if he had sat in his chair and resolved to shoot
somebody, but on second thoughts had given up the notion. On the
other hand, a slave who ran after a white woman, but desisted
before he caught her, has been convicted of an attempt to commit
rape. /1/ We have seen what amounts to an attempt to burn a
haystack; but it was said in the same case, that, if the
defendant had gone no further than to buy a box of matches for
the purpose, he would not have been liable.
Eminent judges have been puzzled where to draw the line, or even
to state the principle on which it should be drawn, between the
two sets of cases. But the principle is believed to be similar to
that on which all other lines are drawn by the law. Public
policy, that is to say, legislative considerations, are at the
bottom of the matter; the considerations being, in this case, the
nearness of the danger, the greatness of the harm, and the degree
of apprehension felt. When a man buys matches to fire a haystack,
or starts on a journey meaning to murder at the end of it, there
is still a considerable chance that he will [69] change his mind
before he comes to the point. But when he has struck the match,
or cocked and aimed the pistol, there is very little chance that
he will not persist to the end, and the danger becomes so great
that the law steps in. With an object which could not be used
innocently, the point of intervention might be put further back,
as in the case of the purchase of a die for coining.
The degree of apprehension may affect the decision, as well as
the degree of probability that the crime will be accomplished. No
doubt the fears peculiar to a slaveowning community had their
share in the conviction which has just been mentioned.
There is one doubtful point which should not be passed over. It
has been thought that to shoot at a block of wood thinking it to
be a man is not an attempt to murder, /1/ and that to put a hand
into an empty pocket, intending to pick it, is not an attempt to
commit larceny, although on the latter question there is a
difference of opinion. /2/ The reason given is, that an act which
could not have effected the crime if the actor had been allowed
to follow it up to all results to which in the nature of things
it could have led, cannot be an attempt to commit that crime when
interrupted. At some point or other, of course, the law must
adopt this conclusion, unless it goes on the theory of
retribution for guilt, and not of prevention of harm.
But even to prevent harm effectually it will not do to be too
exact. I do not suppose that firing a pistol at a man with intent
to kill him is any the less an attempt to murder because the
bullet misses its aim. Yet there the act has produced the whole
effect possible to it in the [70] course of nature. It is just as
impossible that that bullet under those circumstances should hit
that man, as to pick an empty pocket. But there is no difficulty
in saying that such an act under such circumstances is so
dangerous, so far as the possibility of human foresight is
concerned, that it should be punished. No one can absolutely
know, though many would be pretty sure, exactly where the bullet
will strike; and if the harm is done, it is a very great harm. If
a man fires at a block, no harm can possibly ensue, and no theft
can be committed in an empty pocket, besides that the harm of
successful theft is less than that of murder. Yet it might be
said that even such things as these should be punished, in order
to make discouragement broad enough and easy to understand.
There remain to be considered certain substantive crimes, which
differ in very important ways from murder and the like, and for
the explanation of which the foregoing analysis of intent in
criminal attempts and analogous misdemeanors will be found of
service.
The type of these is larceny. Under this name acts are punished
which of themselves would not be sufficient to accomplish the
evil which the law seeks to prevent, and which are treated as
equally criminal, whether the evil has been accomplished or not.
Murder, manslaughter, and arson, on the other hand, are not
committed unless the evil is accomplished, and they all consist
of acts the tendency of which under the surrounding circumstances
is to hurt or destroy person or property by the mere working of
natural laws.
In larceny the consequences immediately flowing from the act are
generally exhausted with little or no harm to the owner. Goods
are removed from his possession by [71] trespass, and that is
all, when the crime is complete. But they must be permanently
kept from him before the harm is done which the law seeks to
prevent. A momentary loss of possession is not what has been
guarded against with such severe penalties. What the law means to
prevent is the loss of it wholly and forever, as is shown by the
fact that it is not larceny to take for a temporary use without
intending to deprive the owner of his property. If then the law
punishes the mere act of taking, it punishes an act which will
not of itself produce the evil effect sought to be prevented, and
punishes it before that effect has in any way come to pass.
The reason is plain enough. The law cannot wait until the
property has been used up or destroyed in other hands than the
owner's, or until the owner has died, in order to make sure that
the harm which it seeks to prevent has been done. And for the
same reason it cannot confine itself to acts likely to do that
harm. For the harm of permanent loss of property will not follow
from the act of taking, but only from the series of acts which
constitute removing and keeping the property after it has been
taken. After these preliminaries, the bearing of intent upon the
crime is easily seen.
According to Mr. Bishop, larceny is "the taking and removing, by
trespass, of personal property which the trespasser knows to
belong either generally or specially to another, with the intent
to deprive such owner of his ownership therein; and perhaps it
should be added, for the sake of some advantage to the
trespasser, a proposition on which the decisions are not
harmonious." /1/
There must be an intent to deprive such owner of his [72]
ownership therein, it is said. But why? Is it because the law is
more anxious not to put a man in prison for stealing unless he is
actually wicked, than it is not to hang him for killing another?
That can hardly be. The true answer is, that the intent is an
index to the external event which probably would have happened,
and that, if the law is to punish at all, it must, in this case,
go on probabilities, not on accomplished facts. The analogy to
the manner of dealing with attempts is plain. Theft may be called
an attempt to permanently deprive a man of his property, which is
punished with the same severity whether successful or not. If
theft can rightly be considered in this way, intent must play the
same part as in other attempts. An act which does not fully
accomplish the prohibited result may be made wrongful by evidence
that but for some interference it would have been followed by
other acts co-ordinated with it to produce that result. This can
only be shown by showing intent. In theft the intent to deprive
the owner of his property establishes that the thief would have
retained, or would not have taken steps to restore, the stolen
goods. Nor would it matter that the thief afterwards changed his
mind and returned the goods. From the point of view of attempt,
the crime was already complete when the property was carried off.
It may be objected to this view, that, if intent is only a
makeshift which from a practical necessity takes the place of
actual deprivation, it ought not to be required where the actual
deprivation is wholly accomplished, provided the same criminal
act produces the whole effect. Suppose, for instance, that by one
and the same motion a man seizes and backs another's horse over a
precipice. The whole evil which the law seeks to prevent is the
natural and manifestly [73] certain consequence of the act under
the known circumstances. In such a case, if the law of larceny is
consistent with the theories here maintained, the act should be
passed upon according to its tendency, and the actual intent of
the wrong-doer not in any way considered. Yet it is possible, to
say the least, that even in such a case the intent would make all
the difference. I assume that the act was without excuse and
wrongful, and that it would have amounted to larceny, if done for
the purpose of depriving the owner of his horse. Nevertheless, if
it was done for the sake of an experiment, and without actual
foresight of the destruction, or evil design against the owner,
the trespasser might not be held a thief.
The inconsistency, if there is one, seems to be explained by the
way in which the law has grown. The distinctions of the common
law as to theft are not those of a broad theory of legislation;
they are highly technical, and very largely dependent upon
history for explanation. /1/
The type of theft is taking to one's own user It used to be, and
sometimes still is, thought that the taking must be lucri catesa,
for the sake of some advantage to the thief. In such cases the
owner is deprived of his property by the thief's keeping it, not
by its destruction, and the permanence of his loss can only be
judged of beforehand by the intent to keep. The intent is
therefore always necessary, and it is naturally stated in the
form of a self-regarding intent. It was an advance on the old
precedents when it was decided that the intent to deprive the
owner of his property was sufficient. As late as 1815 the English
judges stood only six to five in favor of the proposition [74]
that it was larceny to take a horse intending to kill it for no
other purpose than to destroy evidence against a friend. /1/ Even
that case, however, did not do away with the universality of
intent as a test, for the destruction followed the taking, and it
is an ancient rule that the criminality of the act must be
determined by the state of things at the time of the taking, and
not afterwards. Whether the law of larceny would follow what
seems to be the general principle of criminal law, or would be
held back by tradition, could only be decided by a case like that
supposed above, where the same act accomplishes both taking and
destruction. As has been suggested already, tradition might very
possibly prevail.
Another crime in which the peculiarities noticed in larceny are
still more clearly marked, and at the same time more easily
explained, is burglary. It is defined as breaking and entering
any dwelling-house by night with intent to commit a felony
therein. /2/ The object of punishing such a breaking and entering
is not to prevent trespasses, even when committed by night, but
only such trespasses as are the first step to wrongs of a greater
magnitude, like robbery or murder. /3/ In this case the function
of intent when proved appears more clearly than in theft, but it
is precisely similar. It is an index to the probability of
certain future acts which the law seeks to prevent. And here the
law gives evidence that this is the true explanation. For if the
apprehended act did follow, then it is no longer necessary to
allege that the breaking and entering was with that intent. An
indictment for burglary which charges that [75] the defendant
broke into a dwelling-house and stole certain property, is just
as good as one which alleges that he broke in with intent to
steal. /1/
It is believed that enough has now been said to explain the
general theory of criminal liability, as it stands at common law.
The result may be summed up as follows. All acts are indifferent
per se.
In the characteristic type of substantive crime acts are rendered
criminal because they are done finder circumstances in which they
will probably cause some harm which the law seeks to prevent.
The test of criminality in such cases is the degree of danger
shown by experience to attend that act under those circumstances.
In such cases the mens rea, or actual wickedness of the party, is
wholly unnecessary, and all reference to the state of his
consciousness is misleading if it means anything more than that
the circumstances in connection with which the tendency of his
act is judged are the circumstances known to him. Even the
requirement of knowledge is subject to certain limitations. A man
must find out at his peril things which a reasonable and prudent
man would have inferred from the things actually known. In some
cases, especially of statutory crimes, he must go even further,
and, when he knows certain facts, must find out at his peril
whether the other facts are present which would make the act
criminal. A man who abducts a girl from her parents in England
must find out at his peril whether she is under sixteen.
[76] In some cases it may be that the consequence of the act,
under the circumstances, must be actually foreseen, if it is a
consequence which a prudent man would not have foreseen. The
reference to the prudent man, as a standard, is the only form in
which blameworthiness as such is an element of crime, and what
would be blameworthy in such a man is an element;--first, as a
survival of true moral standards; second, because to punish what
would not be blameworthy in an average member of the community
would be to enforce a standard which was indefensible
theoretically, and which practically was too high for that
community.
In some cases, actual malice or intent, in the common meaning of
those words, is an element in crime. But it will be found that,
when it is so, it is because the act when done maliciously is
followed by harm which would not have followed the act alone, or
because the intent raises a strong probability that an act,
innocent in itself, will be followed by other acts or events in
connection with which it will accomplish the result sought to be
prevented by the law.