 CHAPTER 27 LIIBILITY Section 125. THE NATURE AND KINDS OF LIIBILITY He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation. It pertains not to the sphere of ought, but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man's liability consists in those things which he must do or suffer because he has already failed in doing what he ought. It is the ultimatum of the law. The purpose of this chapter, and of the two which follow, is to consider the general theory of liability. We shall investigate the leading principles which determine the existence, the incidence, and the measure of responsibility for wrong-doing. The special rules which relate exclusively to particular kinds of wrongs will be disregarded as irrelevant to the purpose of our inquiry. A liability is in the first place either civil or criminal and in the second place either remedial or penal. The nature of these distinctions has already been sufficiently considered in a previous chapter on the administration of justice. We there saw that civil liability is liability to civil proceedings and that civil proceeding is one whose direct purpose is the enforcement of a right vested in the plaintiff. Criminal liability, on the other hand, is liability to criminal proceedings and a proceeding of this nature is one whose direct purpose is the punishment of a wrong committed by the defendant. We also saw that the law often punishes a wrong by creating and enforcing against the wrongdoer a new obligation, for example, that of paying a pecuniary penalty or damages. In such a case the direct purpose of the proceeding is the enforcement of the sanctioning right thus created, though its ulterior purpose is the punishment of the wrong in which this right has its source. Hence the necessity of the further distinction between penal and remedial liability. The former is that in which the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer, the latter is that in which the law has no set purpose at all, its sole intent being the enforcement of the plaintiff's right and the idea of punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by him is remedial. That of the publisher of a libel to be imprisoned or to pay damages to the person injured by him is penal. All criminal liability is penal. Civil liability, on the other hand, is sometimes penal and sometimes remedial. Section 126. The Theory of Remedial Liability The theory of remedial liability presents little difficulty. It may be laid down as a general principle that, whenever the law creates a duty, it should enforce the specific fulfillment of it. The sole condition of the existence of remedial liability is the existence of illegal duty binding upon the defendant and unfulfilled by him. What a man ought to do by a rule of law, he ought to be made to do by the force of law. In law ought is normally equivalent to must, and obligation and remedial liability are in general coexistent. To this general principle, however, there are the following exceptions. 1. In the first place, there are duties of imperfect obligation, duties the breach of which gives no cause of action and creates no liability at all, either civil or criminal, penal or remedial. A debt barred by the statute of limitations, or due by the crown, is a legal debt, but the payment of it cannot be compelled by any legal proceedings. 2. Secondly, there are many duties which, from their nature, cannot be specifically enforced after having once been broken. When a liable has already been published, or an assault has already been committed, it is too late to compel the wrongdoer to perform his duty of refraining from such acts. Wrongs of this description may be termed transitory. Once committed, they belong to the irrevocable past. Others, however, are continuing, for example, the non-payment of a debt, the commission of a nuisance, or the detention of another's property. In such cases, the duty violated is in its nature capable of specific enforcement, notwithstanding the violation of it. 3. In the third place, even when the specific enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with it solely through the criminal law, or through the creation and enforcement of a substituted, sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the law will compel the specific performance of a contract instead of the payment of damages for the breach of it. 4. Section 127. The Theory of Penal Liability We now proceed to the main subject of our inquiry, namely the general principles of penal liability. We have to consider the legal theory of punishment in its application both to the criminal law and to those portions of the civil law in which the idea of punishment is relevant and operative. We have already, in a former chapter, dealt with the purposes of punishment, and we there saw that its end is fourfold, being deterrent, disabling, retributive, and reformative. The first of these purposes, however, is primary and essential, the others being merely secondary. In our present investigation, therefore, we shall confine our attention to punishment as deterrent. The inquiry will fall into three divisions, relating, one, to the conditions, two, to the incidents, and three, to the measure of penal liability. The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim, Actus non facet reum, the act alone does not amount to guilt, it must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed, and we may conveniently distinguish these as the material and the formal conditions of liability. The material condition is the doing of some act but the person to be held liable. A man is to be accounted responsible only for what he himself does, not for what other persons do, or for events independent of human activity altogether. The formal condition, on the other hand, is the mens rea, or guilty mind with which the act is done. It is not enough that a man has done some act, which on account of its mischievous results, the law prohibits. Before the law can justly punish the act, an inquiry must be made into the mental attitude of the doer, for although the act may have been maturely or objectively wrongful, the mind and will of the doer may have been innocent. We shall see later that the mens rea, or guilty mind, includes two and only two distinct mental attitudes of the doer towards the deed. These are intention and negligence. Generally speaking, a man is painally responsible only for those wrongful acts which he does either willfully or negligently. Then and only then is the actus accompanied by the mens rea. Then and only then do the two conditions of liability, the material and the formal, coexist. In this case only is punishment justifiable, for it is in this case alone that it can be effective. Inevitable accident or mistake, the absence both of wrongful intention and of culpable negligence, is in general a sufficient ground of exemption from penal responsibility. Impunitis est, said the Romans, cuisina culpa et dolo malo cosu quodum dannum comitit. We shall consider separately these two conditions of liability, analyzing first the conception of an act and secondly that of mens rea in its two forms of intention and negligence. Section 128. Acts. The term act is one of ambiguous import being used in various senses of different degrees of generality. When it is said, however, that an act is one of the essential conditions of liability, we use the term in the widest sense of which it is capable. We mean by it any event which is subject to the control of the human will. Such a definition is, indeed, not ultimate, but it is sufficient for the purpose of the law. As to the nature of the will and of the control exercised by it, it is not for lawyers to dispute, this being a problem of psychology or physiology, not of jurisprudence. 1. Positive and negative acts. Of acts as so defined there are various species. In the first place they are either positive or negative, either acts of commission or acts of omission. A wrongdoer either does that which he ought not to do or leaves undone that which he ought to do. The term act is often used in a narrow sense to include merely positive acts and is then opposed to omissions or forbearances instead of including them. This restriction, however, is inconvenient. Adopting the generic sense we can easily distinguish the two species as positive and negative, but if we restrict the term to acts of commission we leave ourselves without a name for the genus and are compelled to resort to an enumeration of the species. 2. Internal and external acts. In the second place acts are either internal or external. The former are acts of the mind while the latter are acts of the body. In each case the act may be either positive or negative, lying either in bodily activity or passivity or mental activity or passivity. To think is an internal act. To speak is an external act. To work out an arithmetical problem in one's head is an act of the mind. To work it out on paper is an act of the body. Every external act involves an internal act which is related to it, but the converse is not true for there are many acts of the mind which never realize themselves in acts of the body. The term act is very commonly restricted to external acts, but this is inconvenient for the reason already given in respect of the distinction between positive and negative acts. 3. Intentional and unintentional acts. Acts are further distinguishable as being either intentional or unintentional. The nature of intention is a matter to which particular attention will be devoted later, and it is sufficient to say here that an act is intended or intentional when it is the outcome of a determination of the actor's will directed to that end. In other words, it is intentional when it was foreseen and desired by the doer, and this foresight and desire realized themselves in the act through the operation of the will. It is unintentional, on the other hand, when and insofar as it is not the result of any determination of the will towards a desired issue. In both cases, the act may be either internal or external, positive or negative. The term omission, while often used in a wide sense to include all negative acts, is also used in a narrower signification to include merely unintentional negative acts. It is then opposed to a forbearance, which is an intentional negative act. If I fail to keep an appointment through forgetfulness, my act is unintentional and negative, that is to say, an omission. But if I remember the appointment and resolve not to keep it, my act is intentional and negative, that is to say, a forbearance. The term act is very commonly restricted to intentional acts, but this restriction is inadmissible in law. Intention is not a necessary condition of legal liability, and therefore cannot be an essential element in those acts which produce such liability. An act is an event subject to the control of the will, but it is not essential that this control should be actually exercised. There need be no actual determination of the will, for it is enough that such control or determination is possible. If the control of the will is actually exercised, the act is intentional. If the will is dormant, the act is unintentional. But in each case, by virtue of the existence of the power of control, the event is equally an act. The movement of a man's limbs are acts, those of his heart are not. Not to move his arms is an act, not to move his ears is not. To meditate is an act, to dream is not. It is the power possessed by me of determining the issue otherwise which makes any event my act and is the ground of my responsibility for it. Every act is made up of three distinct factors or constituent parts. These are one, its origin in some mental or bodily activity or passivity of the doer, two, its circumstances, and three, its consequences. Let us suppose that in practicing with a rifle, I shoot some person by accident. The material elements of my act are the following, its origin or primary stage, namely a series of muscular contractions by which the rifle is raised and the trigger pulled. Secondly, the circumstances, the chief of which are the facts that the rifle is loaded and in working order, and that the person killed is in the line of fire. Thirdly, the consequences, the chief of which are the fall of the trigger, the explosion of the powder, the discharge of the bullet, its passage through the body of the man killed and his death. A similar analysis will apply to all acts for which a man is legally responsible. Whatever act the law prohibits as being wrongful is so prohibited in respect of its origin, its circumstances and its consequences. For unless it has its origin in some mental or physical activity or passivity of the defendant, it is not his act at all, and apart from its circumstances and results, it cannot be wrongful. All acts are, in respect of their origin, indifferent. No bodily motion is in itself illegal. To crook one's finger may be a crime if the finger is in contact with the trigger of a loaded pistol, but in itself it is not a matter which the law is in any way concerned to take notice of. Circumstances and consequences are of two kinds, according as they are relevant or irrelevant to the question of liability. Out of the infinite array of circumstances and the endless chain of consequences, the law selects some few as material. They and they alone are constituent parts of the wrongful act. All the others are irrelevant and without legal significance. They have no bearing or influence on the guilt of the doer. It is for the law, at its own good pleasure, to select and define the relevant and material facts in each particular species of wrong. In theft, the hour of the day is irrelevant. In burglary, it is material. An act has no natural boundaries, any more than an event or place has. Its limits must be artificially defined for the purpose in hand for the time being. It is for the law to determine, in each particular case, what circumstances and what consequences shall be counted within the compass of the act with which it is concerned. To ask what act a man has done is like asking in what place he lives. By some writers, the term act is limited to that part of the act which we have distinguished as its origin. According to this opinion, the only acts, properly so called, are movements of the body. An act, it has been said, is always a voluntary muscular contraction and nothing else. That is to say, the circumstances and consequences of an act are not part of it but are wholly external to it. This limitation, however, seems no less inadmissible in law than contrary to the common usage of speech. We habitually, and rightly, include all material and relevant circumstances and consequences under the name of the act. The act of the murderer is the shooting or poisoning of his victim, not merely the muscular contractions by which this result is affected. To trespass on another man's land is a wrongful act, but the act includes the circumstances that the land belongs to another man, no less than the bodily movements by which the trespasser enters upon it. It may be suggested that although an act must be taken to include some of its consequences, it does not include all of them but only those which are direct or immediate. Any such distinction, however, between direct and indirect, proximate and remote consequences, is nothing more than an indeterminate difference of degree and cannot be made at the basis of any logical definition. The distinction between an act and its consequences between doing a thing and causing a thing is merely a verbal one. It is a matter of convenience of speech and not the product of any scientific analysis of the conceptions involved. There's no logical distinction between the act of killing a man and the act of doing something which results, however remotely, in his death, section 129, two classes of wrongful acts. Every wrong is an act which is mischievous in the eye of the law, an act to which the law attributes harmful consequences. These consequences, however, are of two kinds, being either actual or merely anticipated. In other words, an act may be mischievous in two ways, either in its actual result or in its tendencies. Hence it is that legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of accomplished harm which in fact ensues from it. The second consists of those in which the act is wrongful by reason of mischievous tendencies as recognized by the law, irrespective of the actual issue. In the first case there is no wrong or cause of action without proof of actual damage. In the second case it is sufficient to prove the act itself even though in the event no harm has followed it. For example, if A breaks his contract with B, it is not necessary for B to prove that he was thereby disappointed in his reasonable expectations or otherwise suffered actual loss, for the law takes notice of the fact that breach of contract is an act of mischievous tendency and therefore treats it as wrongful, irrespective of the actual issue. The loss, if any, incurred by B is relevant to the measure of damages, but not to the existence of a cause of action. So if I walk across another man's field, or publish a libel upon him, I am responsible for the act without any proof of actual harm resulting from it. For trespass and libel belong to the class of acts which are judged wrongful in respect of their tendencies and not merely in respect of their results. In other cases, on the contrary, actual damage is essential to the cause of action. Slander, for example, is in general not actionable without proof of some loss sustained by the plaintiff, although libel is actionable per se. So if by negligent driving I expose others to the risk of being run over, I'm not deemed guilty of any wrong until an accident actually happens. The dangerous tendency of the act is not, in this case, considered a sufficient ground of liability. With respect to this distinction between wrongs which do and those which do not require proof of actual damage, it is to be noticed that criminal wrongs commonly belong to the latter class. Criminal liability is usually sufficiently established by proof of some act which the law deems dangerous in its tendencies, even though the issue is in fact harmless. The formula of the criminal law is usually, if you do this, you will be held libel in all events, and not, if you do this, you will be held libel of any harm ensues. An unsuccessful attempt is a ground of criminal liability no less than a completed offense. This, however, is not invariably so, for criminal responsibility, like civil, sometimes depends on the accident of the event. If I am negligent in the use of firearms and kill someone in consequence I am criminally libel for manslaughter, but if by good luck my negligence results in no accomplished mischief I am free from all responsibility. As to civil liability, no corresponding general principle can be laid down. In some cases proof of actual damage is required, while in other cases there is no such necessity, and the matter pertains to the detailed exposition of a law rather than to legal theory. It is to be noted, however, that whenever this requirement exists it imports into the administration of civil justice an element of capriciousness from which the criminal law is commonly free. In point of criminal responsibility men are judged by their acts, and by the mischievous tendencies of them, but at point of civil liability they are often judged by the actual event. If I attempt to execute a wrongful purpose I am criminally responsible whether I succeed or not, my civil liability will often depend upon the accident of the result. Failure in a guilty endeavor amounts to innocence. Instead of saying, do this and you will be held accountable for it, the civil law often says, do this if you wish, but remember you do it at your peril, and if evil consequences chance to follow you will be answerable for them. Section 130. Dhamnam Sina, Injurya Although all wrongs are, in fact or in legal theory, mischievous acts, the converse is not true. All damage done is not wrongful. There are cases in which the law will suffer a man knowingly and willfully to inflict harm upon another and will not hold him accountable for it. Harm of this description, mischief that is not wrongful because it does not fulfill even the material conditions of responsibility, is called Dhamnam Sina, Injurya, the term Injurya being here used in its true sense of an act contrary to law in juice, not in its modern and corrupt sense of harm. Cases of Dhamnam Sina, Injurya fall into two heads. There are, in the first place, instances in which the harm done to the individual is nevertheless a gain to society at large. The wrongs of individuals are such only, because, and so far as, they are at the same time the wrongs of the whole community. And so far as this coincidence is imperfect, the harm done to an individual is Dhamnam Sina, Injurya. The special result of competition and trade may be ruined to many, but the general result is, or is deemed to be, a gain to society as a whole. Competitors, therefore, do each other harm but not injury. So a landowner may do many things on his own land, which are detrimental to the interests of adjoining proprietors. He may so excavate his land as to withdraw the support required by the buildings on the adjoining property. He may prevent the access of light to the windows of those buildings. He may drain away the water which supplies his neighbors well. These things are harmful to individuals, but it is held to serve the public interest to allow a man with him wide limits to do as he pleases with his own. The second head of Dhamnam Sina, Injurya, includes all those cases in which, although real harm is done to the community, yet owing to its triviality, or to the difficulty of proof, or to any other reason, it is considered inexpedient to attempt its prevention by the law. The mischief is of such a nature that the legal remedy would be worse than the disease. Section 131, The Place and Time of an Act. Chiefly, though not exclusively, in consequence of the territorial limits of the jurisdiction of courts, it is often material to determine the place in which an act is done. In general, this inquiry presents no difficulty, but there are two cases which require special consideration. The first is that in which the act is done partly in one place and partly in another. If a man standing on the English side at the border fires at and kills a man on the Scottish side, has he committed murder in England or in Scotland? If a contract is made by correspondence between a merchant in London and another in Paris, is the contract made in England or in France? If by false representations made in Melbourne a man obtains goods in Sydney, is the offence of obtaining goods by false pretenses committed in Victoria or in New South Wales? As a matter of fact and of strict logic, the correct answer in all these cases is that the act is not done either in the one place or the other. He who in England chooses a man in Scotland commits murder in Great Britain, regarded as a unity, but not in either of its parts taken in isolation. But no such answer is allowable in law. Four, so long as distinct territorial areas of jurisdiction are recognized, the law must assume that it is possible to determine with respect to every act the particular area within which it is committed. What locality, therefore, does the law attribute to acts which thus fall partly within one territorial division and partly within another? There are three possible answers. It may be said that the act is committed in both places or solely in that in which it has its commencement or solely in that in which it is completed. The law is free to choose such one of these three alternatives as it thinks fit for the particular case. The last of them seems to be that which is adopted for most purposes. It has been held that murder is committed in the place in which the death occurs and not also in the place in which the act causing the death is done, but the law on these points is not free from doubt. A contract is made in the place where it is completed that is to say where the offer is accepted or the last necessary signature to the document is affixed. The offense of obtaining goods by false pretenses is committed in the place in which the goods are obtained and not in the place where the false pretence is made. A second case in which the determination of the locality of an act gives rise to difficulty is that of negative acts. In what place does a man omit to pay a debt or to perform a contract? The true answer is apparently that a negative act takes place where the corresponding positive act ought to have taken place. An omission to pay a debt occurs in the place where the debt is payable. If I make in England a contract to be performed in France, my failure to perform it takes place in France and not in England. The presence of a negative act is the absence of the corresponding positive act and the positive act is absent from the place in which it ought to have been present. The time of an act. The position of an act in time is determined by the same considerations as its position in space. An act which begins today and is completed tomorrow is in truth done neither today nor tomorrow but in that space of time which includes both. But if necessary the law may date it from its commencement or from its completion or may regard it as continuing through both periods. For most purposes the date of the act is the date of its completion just as its place is the place of its completion. A negative act is done at the time at which the corresponding positive act ought to have been done. The date of the nonpayment of a debt is the day on which it becomes payable. Section 132 Men's Rea We have seen that the conditions of penal liability are sufficiently indicated by the maxim Actus non facetrium Nisi men's citrea A man is responsible not for his acts in themselves but for his acts coupled with the men's rea or guilty mind with which he does them. Before imposing punishment whether civilly or criminally the law must be satisfied of two things. First that an act has been done which by reason of its harmful tendencies or results is fit to be repressed by way of penal discipline and secondly that the mental attitude of the doer towards his deed was such as to render punishment effective as a deterrent for the future and therefore just. The first is the material the second is the formal condition of liability. The men's rea may assume one or other of two distinct forms namely wrongful intention or culpable negligence. The offender may either have done the wrongful act on purpose or he may have done it carelessly and in each case the mental attitude of the doer is such as to make punishment effective. If he intentionally chose the wrong penal discipline will furnish him with a sufficient motive to choose the right instead for the future. If on the other hand he committed the forbidden act without wrongful intent but yet for want of sufficient care devoted to the avoidance of it punishment will be an effective inducement to carefulness in the future. But if his act is neither intentional nor negligent if he not only did not intend it but did his best as a reasonable man to avoid it there can be no good purpose fulfilled in ordinary cases by holding him liable for it. Yet there are exceptional cases in which for sufficient or insufficient reasons the law sees fit to break through the rule as to mens rea. It disregards the formal condition of liability and is satisfied with the material condition alone. It holds a man responsible for his acts independently altogether of any wrongful intention or culpable negligence. Wrongs which are thus independent of mens rea may be distinguished as wrongs of absolute liability. It follows that in respect of the requirement of mens rea wrongs there are three kinds. One intentional or willful wrongs in which the mens rea amounts to intention purpose or design. Two wrongs of negligence in which the mens rea assumes the less serious form of mere carelessness as opposed to wrongful intent. Three wrongs of absolute liability in which the mens rea is not required neither wrongful intent nor culpable negligence being recognized as a necessary condition of responsibility. We shall deal with these three classes of wrongs and these three forms of liability in the order mentioned. Summary. Liability is civil and criminal, remedial and penal, remedial liability, specific enforcement of the general rule, exceptions, one non-actionable wrongs, two transitory wrongs, three continuing wrongs in which sanctional enforcement is more expedient than specific, penal liability, its conditions, its incidence, its measure, conditions of penal liability, material, actus, formal mens rea, the nature of an act, one positive and negative acts, two internal and external acts, three intentional and unintentional acts, the circumstances and consequences of acts, the relation between injuria and denim, one all wrongs are mischievous acts, wrongs in which proof of damage is required and in which such proof is not required, two all mischievous acts are not wrongs, denim sena injuria, a loss of individual again to society at large, b legal remedy inexpedient, the place and time of an act, the formal condition of penal liability, mens rea, intention and negligence, wrongs, one of intention, two of negligence, three of absolute liability, exceptions to the requirement of mens rea, and of section 26, section 27 of juris prudence, this is a LibriVox recording, all LibriVox recordings are in the public domain, for more information or to volunteer please visit LibriVox.org recording by Miriam juris prudence by John Salmond Chapter 18 Intention and Negligence Part 1 Section 133 The Nature of Intention Intention is the purpose or design with which an act is done, it is the foreknowledge of the act coupled with the desire of it, such foreknowledge and desire being the cause of the act in as much as they fulfill themselves through the operation of the will, an act is intentional if, and in so far as, it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied, an act may be wholly unintentional or wholly intentional or intentional in part only, it is wholly unintentional if no part of it is the outcome of any conscious purpose or design no part of it having existed in idea before it became realized in fact. I may omit to pay a debt because I have completely forgotten that it exists or I may, through careless handling, accidentally press the trigger of a pistol in my hand and so wound a bystander an act is wholly intentional on the other hand when every part of it corresponds to the precedent idea of it which was present in the actor's mind and of which it is the outcome in realization the issue falls completely within the boundaries of the intent finally an act may be in part intentional and in part unintentional the idea and the fact the will and the deed the design and the issue may be only partially coincident if I throw stones I may intend to break a window but not to do personal harm to anyone yet in the result I may do both of these things an act and therefore a wrong which is intended only in part must be classed as unintended just as a thing which is completed only in part is incomplete if any constituent element or essential factor of the complete wrong falls outside the limits of the doer's intent he cannot be dealt with on the footing of willful wrongdoing if liability in such a case exists at all it must be either absolute or based on negligence a wrong is intentional only when the intention extends to all the elements of the wrong and therefore to its circumstances no less than to its origin and its consequences we cannot say indeed that the circumstances are intended or intentional but the act is intentional with respect to the circumstances in as much as they are included in that precedent idea which constitutes the intention of the act so far therefore as the knowledge of the doer does not extend to any material circumstance the wrong is as to that circumstance unintentional to trespass on a's land believing it to be one's own is not a willful wrong the trespasser intended indeed to enter upon the land but he did not intend to enter upon land belonging to a his act was unintentional as to the circumstance that the land belonged to a so if a woman marries again during the lifetime of her former husband but believing him to be dead she does not willfully commit the crime of bigamy for one of the material circumstances lies outside her intention with respect to that circumstance the will and the deed are not coincident intention does not necessarily involve expectation I may intend a result which I well know to be extremely improbable so an act may be intentional with respect to a particular circumstance although the chance of the existence of that circumstance is known to be exceedingly small intention is the foresight of a desired issue however improbable not the foresight of an undesired issue however probable if I fire a rifle in the direction of a man half a mile away I may know perfectly well that the chance of hitting him is not one in a thousand I may fully expect to miss him nevertheless I intend to hit him if I desire to do so he who steals a letter containing a check intentionally steals the check also if he hopes that the letter may contain one even though he well knows that the odds against the existence of such a circumstance are very great conversely expectation does not in itself amount to intention an operating surgeon may know very well that his patient will probably die in the operation yet he doesn't intend the fatal consequence which he expects he intends the recovery which he hopes for but does not expect although nothing can be intended which is not desired it must be carefully noticed that the thing may be desired and therefore intended not in itself or for its own sake but for the sake of something else with which it is necessarily connected if I desire and intend a certain end I also desire and intend the means by which this end is to be obtained even though in themselves those means may be indifferent or even objects of aversion if I kill a man in order to rob him I desire and intend his death even though I deeply regret in his interests or in my own the necessity of it in the same way the desire and intention of an end extend not merely to the means by which it is obtained but to all necessary concomitance without which it cannot be obtained if an anarchist desiring to kill the emperor throws a bomb into his carriage knowing that if it explodes and kills him it will also kill others who are riding with him the assassin both desires and intends to kill those others this additional slaughter may in itself be in no way desired by him he may be genuinely sorry for it yet it falls within the boundaries of his desire and of his intent since it is believed by him to be a necessary concomitant of the end which he primarily seeks the deaths of the emperor and the members of his suite are inseparably connected and they constitute therefore a single issue which must be desired and intended as a unity or not at all when I know or believe that A cannot be had without B I cannot say that I intend A but not B if I desire A sufficiently to overcome my aversion to B then I desire the total issue to which A and B are the two inseparable factors with respect to all circumstances which I know or believe to exist and with respect to all consequences which I know or believe to be inevitable my act is intentional however undesirable those circumstances or consequences may be in themselves I choose them deliberately and consciously as necessary incidents of that which I desire and intend for its own sake any genuine belief however that an event may not happen coupled with a genuine desire that it shall not is sufficient to prevent it from being intended so any genuine doubt as to the existence of a circumstance coupled with a genuine hope that it does not exist is enough to prevent the act from being intentional as to that circumstance the act may be grossly negligent it may be absolutely reckless but it is not intentional if I fire a rifle at A knowing that I may very probably hit B who is standing close to him I do not for that reason intend to hit B I genuinely intend and desire not to hit him an intention to hit B would be inconsistent with my admitted intention to hit A section 134 intention and motive a wrongful act is seldom intended and desired for its own sake the wrongdoer has in view some ulterior object which he desires to obtain by means of it the evil which he does to another he does and desires only for the sake of some resulting good which he will obtain for himself he intends the attainment of this ulterior object no less than he intends the wrongful act itself his intent therefore is twofold and is divisible into two distinct portions which we may distinguish as his immediate and his ulterior intent the former is that which relates to the wrongful act itself the latter is that which passes beyond the wrongful act and relates to the object or series of objects for the sake of which the act is done the immediate intent of the thief is to appropriate another person's money while his ulterior intent may be to buy food with it or to pay a debt the ulterior intent is called the motive for the act the immediate intent is that part of the total intent which is coincident with the wrongful act itself the ulterior intent or motive is that part of the total intent which lies outside the boundaries of the wrongful act for just as the act is not necessarily confined within the limits of the intent the intent is not necessarily confined within the limits of the act the wrongdoer's immediate intent if he has one is his purpose to commit the wrong his ulterior intent or motive is his purpose in committing it every wrongful act may raise two distinct questions with respect to the intent of the doer the first of these is how did he do the act intentionally or accidentally the second is if he did it intentionally why did he do it the first is an inquiry into his immediate intent the second is concerned with his ulterior intent or motive the ulterior intention of one wrongful act may be the commission of another I may make a die with intent to coin bad money I may coin bad money with the intent to utter it I may utter it with the intent to defraud these acts is or may be a distinct criminal offence and the intention of any one of them is immediate with respect to that act itself but ulterior with respect to all that goes before it in the series a person's ulterior intent may be complex instead of simple he may act from two or more concurrent motives instead of from only one he may institute a prosecution partly from a desire to see justice done but partly also from ill will towards the defendant he may pay one of his creditors preferentially on the eve of bankruptcy partly from a desire to benefit him at the expense of the others and partly from a desire to gain some advantage for himself now the law as we shall see later sometimes makes liability for an act depend upon the motive with which it is done the bankruptcy act for example, regards as fraudulent any payment made by a debtor immediately before his bankruptcy and to prefer one of his creditors to the others in all such cases the presence of mixed or concurrent motives raises a difficulty of interpretation the phrase with intent to or its equivalents may mean any one of at least four different things one that the intent referred to must be the sole or exclusive intent two that it is sufficient if it is one of several concurrent intents three that it must be the chief or dominant intent any others being subordinate or incidental four that it must be a determining intent that is to say an intent in the absence of which the act would not have been done the remaining purposes being insufficient motives by themselves it is a question of construction which of these meanings is the true one in the particular case section 135 closely connected with the law and theory of intentional wrongdoing is the legal use of the word malice in a narrow and popular sense this term means ill-will spite or benevolence but its legal signification is much wider malice means in law wrongful intention it includes any intent which the law deems wrongful and which therefore serves as a ground of liability any act done with such an intent is in the language of the law malicious and this legal usage has etymology in its favor the Latin malitia means badness, physical or moral wickedness in disposition or conduct not specifically or exclusively ill-will or benevolence hence the malice of English law including all forms of evil purpose design, intent or motive we have seen however that intent is of two kinds being either immediate or ulterior the ulterior intent being commonly distinguished as the motive the term malice is applied in law to both these forms of intent and the result is a somewhat puzzling ambiguity which requires careful notice when we say that an act is done maliciously we mean one of two distinct things we mean either that it is done intentionally or that it is done with some wrongful motive and the phrase is malicious homicide and malicious injury to property malicious is merely equivalent to willful or intentional I burned down a house maliciously if I burn it on purpose but not if I burn it negligently there is here no reference to any ulterior purpose or motive but on the other hand malicious prosecution does not mean intentional prosecution it means a prosecution inspired by some motive of which the law disapproves a prosecution is malicious for example if its ulterior intent is the extortion of money from the accused so also with the malice which is needed to make a man liable for defamation on a privileged occasion I do not utter defamatory statements maliciously simply because I utter them intentionally although the word malitia is not unknown to Roman lawyers the usual and technical name for a wrongful intent is dolus or more specifically dolus malice dolus and culpa are the two forms of mens rea in a narrower sense however dolus includes merely that particular variety of a wrongful intent which we term fraud that is to say the intent to deceive from this limited sense it was extended to cover all forms of willful wrongdoing the English term fraud has never received an equally wide extension it resembles dolus however in having a double use in its narrow sense it means deceit as we have just said and is commonly opposed to force in a wider sense it includes all forms of dishonesty that is to say all wrongful conduct inspired by a desire to derive profit from the injury of others in this sense fraud is commonly opposed to malice in its popular sense I act fraudulently when the motive of my wrongdoing is to derive some material gain for myself whether by way of deception, force or otherwise but I act maliciously when my motive is the pleasure of doing harm to another rather than the acquisition of any advantage for myself to steal property is fraudulent to damage or destroy it is malicious section 136 relevance and irrelevance of motives seen in what way and to what extent a man's immediate intent is material in a question of liability as a general rule no act is a sufficient basis of responsibility unless it is done either willfully or negligently intention and negligence are the two alternative formal conditions of penal liability we have now to consider the relevance or materiality not of the immediate but of the ulterior intent to what extent does the law take into account the motives of a wrongdoer to what extent will it inquire not merely what the defendant has done but why he has done it to what extent is malice in the sense of improper motive an element in legal wrongdoing in answer to this question we may say generally subject however to very important qualifications that in law a man's motives are irrelevant as a general rule no act otherwise lawful becomes unlawful because done with the bad motive and conversely no act otherwise unlawful is excused or justified because of the motives of the doer however good the law will judge a man by what he does not by the reasons for which he does it it is certainly, says Lord Herschel a general rule of our law that an act prima facie lawful is not unlawful and actionable on account of the motives which dictated it so it has been said no use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious much more harm than good says Lord McNaughton would be done by encouraging or permitting inquiries into motives when the immediate act alleged to have caused the loss for which Redress is sought is in itself innocent or neutral in character and one which anybody may do or leave undone without fear of legal consequences such an inquisition would I think be intolerable an illustration of this irrelevance of motives is the right of a landowner to do harm to adjoining proprietors in certain defined ways by acts done on his own land he may intercept the access of light to his neighbor's windows or withdraw by means of excavation the support which his land affords to his neighbor's house or drain away the water which would otherwise supply his neighbor's well his right to do all these things depends in no way on the motive with which he does them the law cares nothing whether his acts are inspired by an honest desire to improve his own property or by a malevolent impulse to damage that of others he may do as he pleases with his own to this rule as to the irrelevance of motives there are however very important exceptions more especially in the criminal law the chief of these are the following section 137 criminal attempts an attempt to commit an indictable offence is itself a crime every attempt is an act done with intent to commit the offence so attempted the existence of this ulterior intent or motive is of the essence of the attempt the act in itself may be perfectly innocent but is deemed criminal by reason of the purpose with which it is done to mix arsenic and food is in itself a perfectly lawful act for it may be that the mixture is designed for the poisoning of rats but if the purpose is to kill a human being the act becomes by reason of this purpose the crime of attempted murder in such cases a rational system of law cannot avoid considering the motive as material for it is from the motive alone that the act derives all its mischievous tendency and therefore it's a wrongful nature although every attempt is an act done with intent to commit a crime the converse is not true every act done with this intent is not an attempt for it may be too remote from the completed offence to give rise to criminal liability notwithstanding the criminal purpose of the doer I may by matches with the intent to burn a haystack and yet be clear of attempted arson but if I go to the stack and there light one of the matches my intent has developed into a criminal attempt to intend to commit a crime is one thing to get ready to commit it is another to try to commit it is a third we may say indeed that every intentional crime involves four distinct stages intention preparation attempt and completion the two former are commonly innocent an unacted intent is no more a ground of liability than is an unintended act the will and the deed must go together even action in pursuance of the intent is not commonly criminal if it goes no further than the stage of preparation I may by a pistol with a felonist purpose and yet remain free from legal guilt there is still a locus poinitentie but the two last stages in the offence namely attempt and completion are grounds of legal liability how then are we to draw the line which thus separates innocence from guilt what is the distinction between preparing to commit a crime and attempting to commit it how far may a man go along the path of his criminal intent and yet turn back in safety if his heart or the occasion fails him this is a question to which English law gives no definite or sufficient answer an attempt to commit a crime says Sir James Stevens in his digest of the criminal law is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted the point at which such a series of acts begins cannot be defined but depends upon the circumstances of each particular case this however affords no adequate guidance and lays down no principle which would be a conviction for attempted forgery on proof of the purchase of ink and paper the German criminal code on the other hand defines an attempt as an act done with intent to commit a crime and amounting to the commencement of the execution of it that is to say an act is not an attempt unless it forms a constituent part of the completed crime otherwise it is merely preparatory it may be doubted however whether this is a sufficient solution to the problem we know what a crime is completed but at what stage in the long series of preliminary acts does it begin not later it would seem than the earliest act done with a requisite criminal intent yet this act may be too far remote to constitute an attempt what then is the true principle the question is a difficult one but the following answer may be suggested an attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done a criminal attempt bears criminal intent on its face rest it's a locator an act on the other hand which is in itself and on the face of it innocent is not a criminal attempt and cannot be made punishable by evidence as to the purpose with which it was done to buy matches with intent to commit arson is not attempted arson because the act is innocent on its face there being many lawful reasons for the purchase of matches but to buy dies with the intent to coin money is attempted forgery for the act speaks for itself for the same reason to buy or load a gun with murder's intent is not in ordinary circumstances attempted murder but to lie in wait with the loaded weapon or to present it or discharge it is an act which itself proclaims the purpose with which it is done and it is punishable accordingly if this is the correct explanation of the matter the ground of the distinction between preparation and attempt is evidential merely the reason for holding a man innocent who does not act with intent to commit a crime is the danger involved in the admission of evidence upon which persons may be punished for acts which in themselves and in appearance are perfectly innocent cogitationes of the tour no man can be safely punished for his guilty purposes save so far as they have manifested themselves in overt acts which themselves proclaim his guilt there is yet another difficulty in the theory of attempts what shall be said if the act done with intent to commit a crime is of such a nature that the completion of the crime by such means is impossible as if I attempt to steal by putting my hand into an empty pocket and 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 offense attempted recent decisions have determined the law otherwise 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 section 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 the law a second exception comprises all those cases in which a particular intent forms part of the definition of a criminal offense burglary for example consists in breaking and entering a dwelling house by night with intent to commit a felony thereon 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 the chief, if not all of these fall within the principle that a harmful act may be damnem 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 as 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 defendants act is one which falls under the head of damnem sine injuria so long but only so long as it is done with good intent section 139 juice nasotatus we shall conclude our examination of the theory of willful wrongdoing by considering a special case in which although intention is present the mens rea is nevertheless absent this is the case of the juice nasotatus so far as the abstract theory of responsibility is concerned an act which is necessary is not wrongful even though done it is not wrongful and deliberate intention it is a familiar proverb that necessity knows no law necessitas non habit legum 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 juice nasotatus 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 fulfillment 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 father it may be the moral duty of the old to give way to the young but it is idle for the law down any other rule say 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 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 act will necessarily counter veil 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 just Nesotatus 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 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 just Nesotatus 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 grounds 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 shorter term of imprisonment end of section 27 section 28 of jurisprudence this is a LibriVox recording all LibriVox recordings in the public domain for more information or to volunteer please visit LibriVox.org recording by Mirian jurisprudence by John Salmond chapter 18 intention and negligence part 2 section 140 negligence we have considered the first of the three classes into which injuries are divisible namely those which are intentional or willful and we now have to deal with the second namely wrongs of negligence the term negligence is two uses for it signifies sometimes a particular state of mind and other times conduct resulting therefrom in the former or subjective sense negligence is opposed to wrongful intention these being the two forms assumed by that mens rea which is a condition of penal responsibility in the latter or objective sense it is opposed not to wrongful intention but to intentional wrongdoing a similar double signification is observable in other words cruelty for example means subjectively a certain disposition and objectively conduct resulting from it the ambiguity can scarcely lead to any confusion for the two forms of negligence are necessarily coincident objective negligence is merely subjective negligence realized in conduct and subjective negligence is of no account in the law until and unless manifested in act we shall commonly use the term in the subjective sense and shall speak objectively not of negligence but of negligent conduct or negligent wrongdoing negligence is culpable carelessness it is says willis j the absence of such care as it was the duty of defendant to use what then is meant by carelessness it is clear in the first place that it excuses wrongful intention these are two contrasted and mutually inconsistent mental attitudes of a person towards his act and their consequences no result which is due to carelessness can have also been intended nothing which was intended can have been due to carelessness it is to be observed in the second place that carelessness or negligence does not necessarily consist in thoughtlessness or in avertence this is doubtless the commonest form of it but it is not the only form if I do harm not because I intended it but because I was thoughtless and did not advert to the dangerous nature of my act or foolishly believed that there was no danger I am certainly guilty of negligence but there is another form of negligence in which there is no thoughtlessness or invertence whatever if I drive furiously down a crowded street I may be fully conscious of the serious risk to which I expose other persons I may not intend to injure any of them but I knowingly and intentionally expose them to the danger yet if a fatal accident happens I am liable at the most not for willful but for negligent homicide when I consciously expose another to the risk of wrongful harm but without any wish to harm him and harm actually ensues it is inflicted not willfully nor inadvertently since it was foreseen as possible or even probable but nevertheless negligently if then negligence or carelessness is not to be identified with thoughtlessness or invertence what is its essential nature the correct answer seems to be that a careless person is a person who does not care the essence of negligence not inadvertence but indifference indifference is exceedingly apt to produce thoughtlessness or inadvertence but it is not the same thing and may exist without it as we have seen from the example already given if I am careless that is to say indifferent as to the result of my conduct I shall very probably fail to acquire adequate foresight and consciousness of them but I may on the contrary make a very accurate estimate of them and yet remain equally indifferent with respect to them and therefore equally negligent negligence therefore essentially consists in the mental attitude of undue indifference with respect to one's conduct and its consequences this being so the distinction between intention and negligence becomes clear the willful wrongdoer desires the harmful consequences and therefore does the act in order that they may ensue the negligent wrongdoer is careless if not wholly yet unduly whether they ensue or not and therefore does the act notwithstanding the risk that they may ensue the willful wrongdoer is liable because he desires to do the harm the negligent wrongdoer is liable because he does not sufficiently desire to avoid it he who will excuse himself on the ground that he meant no evil is still open to the reply perhaps she did not but at all events you might have avoided it if you had sufficiently desired to do so and you are held liable not because you desired the mischief but because you were careless and indifferent whether it ensued or not negligence as so defined is rightly treated as a form of mens rea standing side by side with wrongful intention as a formal ground of responsibility for these are the two mental attitudes which alone justify the discipline of penal justice the law may rightly punish willful wrongdoing because since the wrongdoer desired the outcome of his act punishment will supply him for the future with a good reason for desiring the opposite so also the law may justly punish negligent wrongdoing for since the wrongdoer is careless as to the interests of others punishment will cure this defect by making those interests for the future coincident with his own in no other case than these two can punishment be effective and therefore in no other case is it justifiable so far as abstract theory is concerned every man is exempt from penal responsibility who can truly say the harm which I have done is not the outcome of any desire of mine to do it neither does it proceed from any carelessness or indifference as to my acts and the result of them I did not mean it neither could I have avoided it by care it follows from the foregoing analysis that negligence is of two kinds according as it is or is not accompanied by inadvertence inadvertent negligence is commonly termed willful negligence or recklessness inadvertent negligence may be distinguished as simple in the former the harm done is foreseen as possible or probable but it is not willed in the latter it is neither foreseen nor willed in each case carelessness that is to say indifference as to consequences is present but in the former case this indifference does not while in the latter it does prevent those consequences from being foreseen the physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence but if he does the same in order to save himself trouble or by way of a scientific experiment with full recognition of the dangers so incurred his negligence is willful this distinction is of little practical importance but demands recognition here partly because of the false opinion that all negligence is inadvertent and partly because of the puzzling nature of the expression willful negligence in view of the fundamental opposition between intention and negligence this expression looks at first sight self contradictory but it is not so he who does a dangerous act well knowing that he is exposing others to a serious risk of injury and thereby causes a fatal accident is guilty of negligence not of willful homicide is willful though the homicide is not he is not merely negligent but consciously willfully and intentionally negligent for he knows at the time the true nature of the act which he is doing it is intentional with respect to the fact that his mental attitude towards the consequences is one of culpable indifference section 141 objection considered by way of objection to the foregoing analysis it may be said it is not true that in all cases negligence amounts to carelessness in the sense of indifference a drunken man is liable for negligence if he stumbles as he walks along the street and breaks a shop window but he may have been exceedingly anxious to walk in a straight line and to avoid any such accident he may have been conscientiously using his best endeavors but they will not serve to justify him on a charge of negligence so an unskilled physician has a treatment and cure of his patient an amount of anxious attention and strenuous endeavor far in excess of that which one more skillful would consider necessary yet if his treatment is wrong he is guilty of negligence the answer to this objection is that in these and all similar cases carelessness in the case of indifference is really present though it is remote instead of immediate the drunken man may be anxious and careful now not to break the other person's windows but if he had been sufficiently anxious and careful on the point some time ago he would have remained sober and the accident would not have happened so with the unskillful physician it is a settled principle of law that want of skill or of professional competence amounts to negligence Impericia colpe ad numerator he who will exercise any trade or profession must bring to the exercise of it such a measure of skill and knowledge as will suffice for reasonable efficiency and he who has less than this practices at his own risk the ignorant physician who kills his patient or the unskillful blacksmith who lames the horse shod by him is legally responsible not because he is ignorant or unskillful for skill and knowledge may be beyond his reach but because being unskillful or ignorant he ventures to undertake a business which calls for qualities which he does not possess no man is bound in law to be a good surgeon or capable attorney but all men are bound not to act as surgeons or attorneys until and unless they are good and capable as such the unskillful physician therefore is liable not because he is now careless of the health of his patient but because he was formerly careless in undertaking work calling for greater skill than he possessed if he then knew not the requisite skill his carelessness is obvious possibly however he believed himself to be sufficiently qualified in this case we must go one step further back in the search for that mental attitude of indifference which is the essential element in all cases of negligence he was careless informing his beliefs he formed them without that anxious consideration which the law requires from those who form beliefs on which they act to the injury of others a man may be called upon by the law to answer today for the carelessness with which he formed an opinion years ago section 142 the standard of care carelessness is not culpable or a ground of legal liability saving those cases in which the law has imposed a duty of carefulness in all other cases complete indifference as the interests of others is allowable no general principle can be laid down however with regard to the existence of this duty for this is a matter pertaining to the details of the concrete legal system and not to abstract theory carelessness is lawful or unlawful as the law sees fit to provide in the criminal law liability for negligence is quite exceptional speaking generally crimes are willful wrongs the alternative form of mens rea being deemed an insufficient ground for the rigor of criminal justice this however is not invariably the case negligent homicide for example being a criminal offense in the civil law on the other hand no such distinction is commonly drawn between the two forms of mens rea in general we may say that whenever an act would be a civil wrong if done intentionally it is also a civil wrong if done negligently when there is a legal duty not to do a thing on purpose there is commonly a legal duty to take care not to do it accidentally to this rule however there are certain exceptions instances in which wrongful intent is the necessary basis even of civil liability in these cases a person is civilly responsible for doing harm willfully but is not bound to take any care not to do it he must not for example deceive another by any willful falsehood but unless there is some special ground of obligation in the case he is not answerable for false statements which he honestly believes to be true however negligent he may be other instances of the same sort are based upon the express or implied agreement or understanding of the person's concerned thus a gratuitous lender of chattel is bound to disclose any dangerous defects which he actually knows of but is not bound to take any care whatever to see that it is safe or to discover and disclose defects of which he is ignorant for he who borrows a thing gratuitously agrees impliedly to take it as it is and to run all risks but he who hires a thing for money is entitled to the exercise of due care for his safety on the part of the owner carelessness may exist in any degree and in this respect it differs from the other form of mens rea intention either exists or it does not there can be no question of the degree in which it is present the degree of carelessness varies directly with the risk to which the other persons are exposed by the acting question he is careless who without intending evil nevertheless exposes others to the danger of it and the greater the danger the greater the carelessness the risk depends in its turn on two things first the magnitude of the threatened evil and second the probability of it the greater the evil is and the nearer it is the greater is the indifference or carelessness of him who creates the danger in as much therefore as carelessness varies in degree it is necessary to know what degree of it is requisite to constitute culpable negligence what measure of care does the law demand what amount of anxious consideration for the interest of others is illegal duty and within what limits is indifference lawful we have first to notice a possible standard of care which the law might have adopted but has not it does not demand the highest degree of care of which human nature is capable I'm not liable for harm ignorantly done by me merely because by some conceivable exercise of prudential foresight I might have anticipated the event and so avoided it nor am I liable because knowing the possibility of harm I fail to take every possible precaution against it the law demands not that which is possible but that which is reasonable in view of the magnitude of the risk we're meant to act on any other principle than this excess of caution would paralyze the business world the law therefore allows every man to expose his fellows to a certain measure of risk and to do so even with full knowledge if an explosion occurs in my powder mill I'm not liable for negligence even though I established and carried on the industry with full knowledge of its dangerous character this is a degree of indifference to the safety of other men's lives and property which the law deems permissible because not excessive in as much as the carrying of firearms and the driving of horses are known to be the occasions of frequent harm extreme care and the most scrupulous anxiety as to the interests of others would prompt a man to abstain from these dangerous forms of activities yet it is expedient in the public interest that those activities should go on and therefore that man should be exposed to the incidental risks of them consequently the law does not insist on any standard of care which would include them within the limits of culpable negligence it is for the law to draw the line as best then so that while prohibiting unreasonable carelessness it does not at the same time demand unreasonable care what standard then does the law actually adopt it demands the amount of care which would be shown in the circumstances of the particular case by an ordinarily careful man it is content to adopt the standard which is customary for the time being in the community it is satisfied with conduct which in point of carefulness conforms to the moral standard and the ordinary practice of mankind less than this is not sufficient and more than this is not required a jury in determining the question of negligence will decide whether in their opinion the defendant acted with reasonable care and in so doing they represent and express the current opinion and practice of the community as to the risks to which one man is justified in exposing others and as to the degree of consideration for the welfare of others which the community exacts and commonly receives from its members the standard thus adopted by the law is of necessity somewhat vague and indeterminate it is not practicable to any great extent to lay down any more definite and detailed rules as to what classes of acts are negligent and what are not too much depends upon the circumstances of the individual case and the standard of do care is too liable to alter with the advance of knowledge and the changes of social life and manners risks which were once deemed excessive may become permissible in view of the increasing stress and hurry of modern life and conversely conduct which today is beyond reproach may in the future become grossly negligent by reason of the growth of skill or knowledge nevertheless here as elsewhere the law seeks for definite and specific principles it dislikes the license of the arbitrium judicious so far as practicable and justifiable it desires to make negligence a matter not a fact but of legal rule and definition it seeks to supersede the vague principle that it is negligence which a jury considers such by substituting for it a body of legal doctrine determining the boundaries of negligence in special instances this however is possible only to a very limited extent it would seem indeed that all legal rules on this matter are merely negative determining what does not amount to negligence and never positive determining that certain acts are negligent in law it has been decided as a matter of law for example that it is not negligent to drive cattle through the streets of a town loose instead of leading them with halters nor is it negligent to allow a dog to run at large if the owner has no actual knowledge of its vicious temper nor is it negligent to try a horse for the first time in a frequented thoroughfare nor is there any negligence in the usual of railway servants in violently shutting the doors of railway carriages without warning notwithstanding the risk of injury to the hands of passengers as has been already indicated there seem to be no corresponding rules to the effect that certain kinds of conduct are negligent in law the law never goes further in this direction than to say that certain facts are sufficient evidence of negligence that is to say are sufficient to entitle a jury to find negligence as a matter of fact if they think fit the reason for this cautious attitude of the law is obvious no facts can be such cogent proof of negligence that the law may safely and wisely take them as conclusive for they may be capable of explanation by other facts and that which is apparently due to the most culpable negligence may be due in reality to inevitable mistake or accident thus the law does not contain any rule to the effect that driving on the wrong side of the road amounts to negligence the law is merely that such conduct is evidence of negligence nor is the act of leaving a horse and cart unattended in the street an act of negligence in law it is merely one from which a jury is at liberty to infer negligence in fact section 143 degrees of negligence we have said that English law recognizes only one standard of care and therefore only one degree of negligence whenever a person is under a duty of care at all he is bound to take that amount of it which is deemed reasonable under the circumstances having regard to the ordinary practice of mankind and the absence of this care is culpable negligence although this is probably a correct statement of English law attempts have been made to establish two or even three distinct standards of care and degrees of negligence some authorities for example distinguish between gross negligence kelpa lata and slight negligence kelpa levis holding that a person is sometimes liable for the former only and at other times even for the latter in some cases we find even a threefold distinction maintained negligence being either gross, ordinary or slight these distinctions are based partly upon Roman law and partly upon a misunderstanding of it and not withstanding some judicial dicta to the contrary we may say with some confidence that no such doctrine is known to the law of England the distinctions so drawn are hopelessly indeterminate and impracticable on what principle are we to draw the line between gross negligence and slight how can we thus elevate a distinction of degree into one of kind even were it possible to establish two or more standards there seems no reason of justice or expediency for doing so the single standard of English law is sufficient for all cases why should any man be required to show more care than is reasonable under the circumstances or excused if he shows less in connection with this alleged distinction between gross and slight negligence it is necessary to consider the celebrated doctrine of Roman law to the effect that the former is equivalent to wrongful intention, Dolis a principle which receives occasional expression and recognition in English law also in its literal interpretation indeed this is untrue for we have already seen that the two forms of mens rea are wholly inconsistent with each other and that no degree of carelessness can amount to design or purpose yet the proposition though inaccurately expressed has a true signification although real negligence however gross cannot amount to intention alleged negligence may alleged negligence which if real would be exceedingly gross is probably not negligence at all but wrongful purpose its grossness raises a presumption against its reality for we have seen that carelessness is measured by the magnitude and imminence of the threatened mischief now the greater and more imminent the mischief the more probable is it that it is intended genuine indifference and carelessness unusual and unlikely in extreme cases men are often enough indifferent as to remote or unimportant dangers to which they expose others but serious risks are commonly avoided by care unless the mischief is desired and intended the probability of a result tends to prove intention and therefore to disprove negligence if a newborn child is left to die from want of medical attention or nursing it may be that it's death is due to negligence only but it is more probable that it is due to wrongful purpose and malice of forethought he who strikes another on the head with an iron bar may have only meant to wound or stun and not to kill him but the probabilities are the other way every man is presumed to intend the natural and probable consequences of his acts and the more natural and probable the consequences the greater the strength of the presumption in certain cases this presumption of intent has hardened into a positive rule of law and has become irrebotable in those cases that which is negligence in fact may be deemed wrongful intent in the law it is constructive though not actual intent the law of homicide supplies us with an illustration murder is willful homicide and manslaughter is negligent homicide but the boundary line as drawn by the law is not fully coincident with that which exists in fact much that is merely negligent in fact is treated as willful homicide in law an intent to cause grievous bodily harm is imputed as an intent to kill if death ensues and an act done with knowledge that it will probably cause death is in law an act done with intent to cause it the justification of such conclusive presumptions of intent is twofold in the first place as already indicated very gross negligence is probably in truth not negligence at all and in the second place even if it is truly negligence yet by reason of its grossness it is as bad as intent in point of moral deserts and therefore may justly be treated and punished as if it were intent the law accordingly will sometimes say to a defendant perhaps as you allege you were merely negligent and had no actual wrongful purpose nevertheless you will be dealt with just as if you had you will be conclusively presumed against you that your act was willful for your deserts are no better than if you had in truth intended the mischief which you have so recklessly caused moreover it is exceedingly probable notwithstanding your disclaimer that you did intend it therefore no endeavor will be made on your behalf to discover whether you did or not section 144 other theories of negligence the analysis of the conception of negligence is a matter of some considerable difficulty and it is advisable to take count of certain theories which differ more or less seriously from that which has here been accepted by us it is held by some that negligence consists essentially in inadvertence it consists that is to say in a failure to be alert circumspect or vigilant whereby the true nature, circumstances and consequences of a man's acts are prevented from being present the willful wrongdoer is he who knows that his act is wrong the negligent wrongdoer is he who does not know it but would have known it were it not for his mental indolence this explanation contains an important element of the truth but it is inadequate for in the first place as has been already pointed out all negligence is not inadvertent there is such a thing as willful or advertent negligence is perfectly well the true nature, circumstances and probable consequences of his act he foresees those consequences and yet does not intend them and therefore cannot be charged with willful wrongdoing in respect of them his mental attitude with regard to them is not intention but a genuine form of negligence of which the theory of inadvertence can give no explanation in the second place all inadvertence is not negligence a failure to appreciate the nature of one's act and to foresee its consequences is not in itself culpable it is no ground of responsibility unless it is due to carelessness in the sense of undue indifference he who is ignorant or forgetful not withstanding a genuine desire to attain knowledge or remembrance is not negligent the signal man who sleeps at his post is negligent not because he falls asleep but because he is not sufficiently anxious to remain awake if his sleep is the unavoidable result of illness or excessive labor he is free from blame the essence of negligence therefore is not inadvertence which may or may not be due to carelessness but carelessness which may or may not result in inadvertence it may be suggested in defense of the theory of inadvertence that there are in reality three forms of the mens rea and not two only namely one intention when they are foreseen and intended two recklessness when they are foreseen but not intended and three negligence when they are neither foreseen nor intended the law however rightly classes the second and third of these together under the head of negligence for they are identical in their essential nature each of them being blameworthy only so far as it is the outcome of carelessness we have now to consider another explanation which may be termed the objective theory of negligence it is held by some that negligence is not a subjective but an objective fact it is not a particular state of mind or form of the mens rea at all but a particular kind of conduct it is a breach of the duty of taking care and to take care means to take precautions against the harmful results of one's actions and to refrain from unreasonably dangerous kinds of conduct to drive at night without lights is negligence because to carry lights is a precaution to all reasonable and prudent men for the avoidance of accidents to take care therefore is no more a mental attitude or state of mind than to take cold is this however is not a correct analysis carelessness may result in a failure to take necessary precautions or to refrain from dangerous activities but it is not the same thing just as it may result in inadvertence but is not the same thing the neglect of needful precautions or the doing of unreasonably dangerous acts is not necessarily wrongful at all for it may be due to inevitable mistake or accident and on the other hand even when it is wrongful it may be willful instead of negligent a trap door may be left unbolted in order that one's enemy may fall through it and so die poison may be left unlabeled with the intent that someone may drink it by mistake a ship captain may willfully cast away his ship by the neglect of the ordinary rules of good seamanship a father who neglects to provide medicine for his sick child may be guilty of willful murder rather than of mere negligence in none of these cases nor indeed in any others can we distinguish between intentional and negligent wrongdoing safe by looking into the mind of the offender and observing his subjective attitude towards his act and its consequences externally and objectively the two classes of offenses are indistinguishable negligence is the opposite of wrongful intention and since the latter is a subjective fact the former must be such also 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 con commitments as well as to the end intention is divided into immediate and 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 juice necessitatus its theory its partial allowance in practice the nature of negligence subjective and objective uses of the term negligence and intention opposed and inconsistent the nature of negligence opposed and inconsistent negligence not necessarily inadvertence negligence essentially indifference negligence and intention the two alternate grounds of penal liability negligence is divided into willful or avertent simple or inadvertent negligence immediate and remote negligence and want of skill the duty of carefulness the 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 degrees of negligence distinction between gross and slight negligence not recognized by English law significance of this proposition negligence and constructive intent criticism of other theories of negligence one that negligence is inadvertence two the objective theory end of section 28