LIABILITY.
§ 125. =The Nature and Kinds of Liability.=
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 wrongdoer 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.[322]
The purpose of this chapter and of the two which follow it 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 wrongdoing. The special rules which relate
exclusively to particular kinds of wrongs will be disregarded as
irrelevant to the purpose of our inquiry.
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 been already sufficiently considered in a previous chapter on the
Administration of Justice. We there saw that civil liability is
liability to civil proceedings, and that a 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.[323]
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
such 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.[324]
§ 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 fulfilment of it. The sole condition of
the existence of remedial liability is the existence of a legal 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.[325]
2. Secondly, there are many duties which from their nature cannot be
specifically enforced after having once been broken. When a libel 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.
§ 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 (1) to the conditions, (2) to the incidence, and (3)
to the measure of penal liability.
The general conditions of penal liability are indicated with sufficient
accuracy in the legal maxim, _Actus non facit reum, nisi mens sit
rea_—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_ by 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
materially 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 penally
responsible only for those wrongful acts which he does either wilfully
or negligently. Then and only then is the _actus_ accompanied by the
_mens rea_. Then and then only 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. _Impunitus est_, said the Romans,
_qui sine culpa et dolo malo casu quodam damnum committit_.[326]
We shall consider separately these two conditions of liability,
analysing first the conception of an act, and secondly that of _mens
rea_ in its two forms of intention and negligence.[327]
§ 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 in 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
realise 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 realised
themselves in the act through the operation of the will. It is
unintentional, on the other hand, when, and in so far 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 movements 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 (1) its _origin_ in some mental or bodily activity or
passivity of the doer, (2) its _circumstances_, and (3) its
_consequences_. Let us suppose that in practising 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 a 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,[328] “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 effected. To trespass on
another man’s land is a wrongful act; but the act includes the
circumstance that the land belongs to another man, no less than the
bodily movements by which the trespasser enters upon it.[329]
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 the basis
of any logical definition. The distinction between an act and its
consequences, between doing a thing and causing a thing, is a merely
verbal one; it is a matter of convenience of speech, and not the product
of any scientific analysis of the conceptions involved. There is no
logical distinction between the act of killing a man and the act of
doing something which results (however remotely) in his death.[330]
§ 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
results 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 its
mischievous tendencies, as recognised 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 am 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 liable in all events,” and not: “If you do this you
will be held liable if any harm ensues.” An unsuccessful attempt is a
ground of criminal liability, no less than a completed offence. 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 some one in consequence, I am criminally
liable 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 the 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 in 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; but my civil
liability will often depend upon the accident of the result. Failure in
a guilty endeavour 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 that you do it at your peril, and if evil
consequences chance to follow, you will be answerable for them.”
§ 130. =Damnum sine Injuria.=
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 wilfully 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 fulfil even the material conditions of responsibility—is called
_damnum sine injuria_, the term _injuria_ being here used in its true
sense of an act contrary to law (_in jus_), not in its modern and
corrupt sense of harm.
Cases of _damnum sine injuria_ fall under 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 only 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 _damnum sine injuria_. The
special result of competition in trade may be ruin 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 neighbour’s
well. These things are harmful to individuals; but it is held to serve
the public interest to allow a man, within wide limits, to do as he
pleases with his own.
The second head of _damnum sine injuria_ 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.
§ 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
of 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 pretences 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 in the other. He who in England shoots 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; for, so long as distinct territorial areas of
jurisdiction are recognised, 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
in 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,[331] and not also in the place
in which the act causing the death is done,[332] but the law on these
points is not free from doubt.[333] A contract is made in the place
where it is completed, that is to say, where the offer is
accepted[334] or the last necessary signature to the document is
affixed.[335] The offence of obtaining goods by false pretences is
committed in the place in which the goods are obtained[336] and not in
the place where the false pretence is made.[337]
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.[338] 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
to-day and is completed to-morrow is in truth done neither to-day nor
to-morrow, 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 an act is the date of its completion, just
as its place is the place of its completion.[339]
A negative act is done at the time at which the corresponding positive
act ought to have been done. The date of the non-payment of a debt is
the day on which it becomes payable.
§ 132. =Mens Rea.=
We have seen that the conditions of penal liability are sufficiently
indicated by the maxim, _Actus non facit reum, nisi mens sit rea_. A man
is responsible not for his acts in themselves, but for his acts coupled
with the _mens 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 _mens 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 are
of three kinds:
(1) Intentional or Wilful Wrongs, in which the _mens rea_ amounts to
intention, purpose, or design.
(2) Wrongs of Negligence, in which the _mens rea_ assumes the less
serious form of mere carelessness, as opposed to wrongful intent.
(3) Wrongs of Absolute Liability, in which the _mens rea_ is not
required, neither wrongful intent not culpable negligence being
recognised 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 { Civil { Remedial.
{ Criminal { Penal.
Remedial liability:
Specific enforcement the general rule.
Exceptions:
{ 1. Non-actionable wrongs.
{ 2. Transitory wrongs.
{ 3. Continuing wrongs in which sanctional enforcement is
{ more expedient than specific.
{ Its conditions.
Penal liability { Its incidence.
{ Its measure.
Conditions of penal liability { Material—_Actus_.
{ Formal—_Mens rea_.
The nature of an act:
1. Positive and negative acts.
2. Internal and external acts.
3. Intentional and unintentional acts.
The circumstances and consequences of acts.
The relation between _injuria_ and _damnum_.
1. All wrongs are mischievous acts.
Wrongs { In which proof of damage is required.
{ In which such proof is not required.
2. All mischievous acts are not wrongs.
_Damnum sine injuria._
(_a_) Loss of individual a gain to society at large.
(_b_) Legal remedy inexpedient.
The place and time of an act.
The formal condition of penal liability.
_Mens rea_ { Intention.
{ Negligence.
{ 1. Of Intention.
Wrongs { 2. Of Negligence.
{ 3. Of Absolute Liability (exceptions to the requirement of
_mens rea_).