INTENTION AND NEGLIGENCE.
§ 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, inasmuch as they
fulfil 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 realising itself in the fact because of the desire by
which it is accompanied.[340]
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 realised 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 and realisation. 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
any one; 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 wilful wrongdoing. If liability in such
a case exists at all, it must be either absolute or based on
negligence.[341]
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, inasmuch 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 wilful
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 wilfully 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 cheque,
intentionally steals the cheque 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
of the operation; yet he does not 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 a 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 concomitants 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 of 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 of 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.[342]
§ 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_ of 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, so 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 intent to utter it; I may utter it with intent to defraud.
Each of 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 go 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 one only. 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 with intent 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:—(1)
That the intent referred to must be the sole or exclusive intent; (2)
that it is sufficient if it is one of several concurrent intents; (3)
that it must be the chief or dominant intent, any others being
subordinate or incidental; (4) 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 those meanings
is the true one in the particular case.[343]
§ 135. =Malice.=
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 malevolence; 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 favour. The Latin _malitia_[344] means badness, physical or
moral—wickedness in disposition or in conduct—not specifically or
exclusively ill-will or malevolence; 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. In the phrases malicious
homicide and malicious injury to property, malicious is merely
equivalent to wilful or intentional. I burn 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.[345]
Although the word _malitia_ is not unknown to the Roman lawyers, the
usual and technical name for wrongful intent is _dolus_, or more
specifically _dolus malus_. _Dolus_ and _culpa_ are the two forms of
_mens rea_. In a narrower sense, however, _dolus_ includes merely that
particular variety of wrongful intent which we term fraud—that is to
say, the intent to deceive.[346] From this limited sense it was
extended to cover all forms of wilful 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.
§ 136. =Relevance and Irrelevance of Motives.=
We have already 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
wilfully 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 a 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 Herschell,[347] “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:[348]
“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
Macnaghten,[349] “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
neighbour’s windows, or withdraw by means of excavation the support
which his land affords to his neighbour’s house, or drain away the water
which would otherwise supply his neighbour’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.[350]
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.
§ 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
in 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 its 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 buy matches with 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 buy a pistol with felonious purpose, and yet remain free from legal
guilt. There is still a _locus poenitentiae_. 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 Stephen in his Digest of the Criminal Law,[351] “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 prevent a conviction for attempted forgery on proof of the
purchase of ink and paper.
The German Criminal Code,[352] 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 of the problem. We know when 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 the
requisite criminal intent; yet this act may be far too 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 upon its face. _Res
ipsa loquitur._ 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 _aliunde_ 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 intent to coin money
is attempted forgery, for the act speaks for itself.[353] For the same
reason, to buy or load a gun with murderous 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 criminal 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 an
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. _Cogitationis
poenam nemo patitur._ 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, or
to poison by administering sugar which I believe to be arsenic? It was
long supposed to be the law of England that there could be no
conviction for an attempt in such cases. It was considered that an
attempt must be part of a series of acts and events which, in its
completeness, would actually constitute the offence attempted.[354]
Recent decisions have determined the law otherwise.[355] The
possibility of a successful issue is not a necessary element in an
attempt, and this conclusion seems sound in principle. The matter,
however, is not free from difficulty, since it may be argued on the
other side that acts which in their nature cannot result in any harm
are not mischievous either in their tendency or in their results, and
therefore should not be treated as crimes. Shall an attempt to procure
the death of one’s enemy by means of witchcraft be punished as
attempted murder?
§ 138. =Other Exceptions to the Irrelevance of Motives.=
Criminal attempts constitute, as we have seen, the first of the
exceptions to the rule that a person’s ulterior intent or motive is
irrelevant in law. A second exception comprises all those cases in which
a particular intent forms part of the definition of a criminal offence.
Burglary, for example, consists in breaking and entering a
dwelling-house by night with intent to commit a felony therein. So
forgery consists in making a false document with intent to defraud. In
all such instances the ulterior intent is the source, in whole or in
part, of the mischievous tendency of the act, and is therefore material
in law.
In civil as opposed to criminal liability the ulterior intent is very
seldom relevant. In almost all cases the law looks to the act alone, and
makes no inquiries into the motives from which it proceeds. There are,
however, certain exceptions even in the civil law, and the chief, if not
all, of these fall within the principle that a harmful act may be
_damnum sine injuria_ if done from a proper motive and without malice,
but loses this protection so soon as it proceeds from some motive of
which the law does not approve. It may be expedient in the public
interest to allow certain specified kinds of harm to be done to
individuals, so long as they are done for some good and sufficient
reason; but the ground of this privilege falls away so soon as it is
abused for bad ends. In such cases, therefore, malice is an essential
element in the cause of action. Examples of wrongs of this class are
defamation (in cases of privilege) and malicious prosecution. In these
instances the plaintiff must prove malice, because in all of them the
defendant’s act is one which falls under the head of _damnum sine
injuria_ so long, but so long only, as it is done with good intent.
§ 139. =Jus necessitatis.=
We shall conclude our examination of the theory of wilful wrongdoing by
considering a special case in which, although intention is present, the
_mens rea_ is nevertheless absent. This is the case of the _jus
necessitatis_. So far as the abstract theory of responsibility is
concerned, an act which is necessary is not wrongful, even though done
with full and deliberate intention. It is a familiar proverb that
necessity knows no law: _Necessitas non habet legem_. By necessity is
here meant the presence of some motive adverse to the law, and of such
exceeding strength as to overcome any fear that can be inspired by the
threat of legal penalties. The _jus necessitatis_ is the right of a man
to do that from which he cannot be dissuaded by any terror of legal
punishment. Where threats are necessarily ineffective, they should not
be made, and their fulfilment is the infliction of needless and
uncompensated evil.
The common illustration of this right of necessity is the case of two
drowning men clinging to a plank that will not support more than one of
them. It may be the moral duty of him who has no one dependent on him to
sacrifice himself for the other who is a husband or a father; it may be
the moral duty of the old to give way to the young. But it is idle for
the law to lay down any other rule save this, that it is the right of
the stronger to use his strength for his own preservation. Another
familiar case of necessity is that in which shipwrecked sailors are
driven to choose between death by starvation on the one side and murder
and cannibalism on the other. A third case is that of crime committed
under the pressure of illegal threats of death or grievous bodily harm.
“If,” says Hobbes,[356] “a man by the terror of present death be
compelled to do a fact against the law, he is totally excused; because
no law can oblige a man to abandon his own preservation.”
It is to be noticed that the test of necessity is not the powerlessness
of any possible, but that of any reasonable punishment. It is enough if
the lawless motives to an act will necessarily countervail the fear of
any penalty which it is just and expedient that the law should threaten.
If burning alive were a fit and proper punishment for petty theft, the
fear of it would probably prevent a starving wretch from stealing a
crust of bread; and the _jus necessitatis_ would have no place. But we
cannot place the rights of property at so high a level. There are cases,
therefore, in which the motives to crime cannot be controlled by any
reasonable punishment. In such cases an essential element of the _mens
rea_, namely freedom of choice, is absent; and so far as abstract theory
is concerned, there is no sufficient basis of legal liability.
As a matter of practice, however, evidential difficulties prevent any
but the most limited scope being permitted to the _jus necessitatis_. In
how few cases can we say with any approach to certainty that the
possibility of self-control is really absent, that there is no true
choice between good and evil, and that the deed is one for which the
doer is rightly irresponsible. In this conflict between the requirements
of theory and the difficulties of practice the law has resorted to
compromise. While in some few instances necessity is admitted as a
ground of excuse, it is in most cases regarded as relevant to the
measure rather than to the existence of liability. It is acknowledged as
a reason for the reduction of the penalty, even to a nominal amount, but
not for its total remission. Homicide in the blind fury of irresistible
passion is not innocent, but neither is it murder; it is reduced to the
lower level of manslaughter. Shipwrecked sailors who kill and eat their
comrades to save their own lives are in law guilty of murder itself; but
the clemency of the Crown will commute the capital sentence to a short
term of imprisonment.[357]
§ 140. =Negligence.=
We have considered the first of the three classes into which injuries
are divisible, namely those which are intentional or wilful, and we have
now to deal with the second, namely wrongs of negligence.
The term negligence has two uses, for it signifies sometimes a
particular state of mind, and at 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
realised in conduct; and subjective negligence is of no account in the
law, until and unless it is 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.[358]
Negligence is culpable carelessness. “It is,” says Willes, J.,[359] “the
absence of such care as it was the duty of the defendant to use.” What
then is meant by carelessness? It is clear, in the first place, that it
excludes wrongful intention. These are two contrasted and mutually
inconsistent mental attitudes of a person towards his acts and their
consequences. No result which is due to carelessness can have been also
intended. Nothing which was intended can have been due to
carelessness.[360]
It is to be observed, in the second place, that carelessness or
negligence does not necessarily consist in thoughtlessness or
inadvertence. 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 inadvertence 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 wilful, 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 wilfully, since it was not desired, 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 inadvertence, 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 is 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 results 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_.[361]
This being so, the distinction between intention and negligence becomes
clear. The wilful 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 not withstanding the risk that they may
ensue. The wilful 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 you did not, but at
all events you might have avoided it, if you had sufficiently desired so
to do; 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
wilful 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
results 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. Advertent
negligence is commonly termed wilful 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 these 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 wilful.[362]
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 wilful 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 negligent, not of wilful
homicide. But the negligence is wilful, though the homicide is not. He
is not merely negligent, but consciously, wilfully, 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.
§ 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
endeavours, but they will not serve to justify him on a charge of
negligence. So an unskilful physician may devote to the treatment and
cure of his patient an amount of anxious attention and strenuous
endeavour, far in excess of that which one more skilful 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 sense of indifference is really present, though it
is remote instead of immediate. The drunken man may be anxious and
careful _now_ not to break other persons’ 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 unskilful physician. It is a settled principle of law that want of
skill or of professional competence amounts to negligence. _Imperitia
culpae adnumeratur._[363] 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
practises at his own risk. The ignorant physician who kills his patient,
or the unskilful blacksmith who lames the horse shod by him, is legally
responsible, not because he is ignorant or unskilful—for skill and
knowledge may be beyond his reach—but because, being unskilful 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 a 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 unskilful 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 that he had 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 in forming
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 to-day for the
carelessness with which he formed an opinion years ago.
§ 142. =The Standard of Care.=
Carelessness is not culpable, or a ground of legal liability, save in
those cases in which the law has imposed a duty of carefulness. In all
other cases complete indifference as to 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 wilful wrongs, the alternative form of _mens rea_
being deemed an insufficient ground for the rigour of criminal justice.
This, however, is not invariably the case, negligent homicide, for
example, being a criminal offence. 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 wilfully, but is not bound
to take any care not to do it. He must not, for example, deceive another
by any wilful 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 in making
them.[364] Other instances of the same sort are based upon the express
or implied agreement or understanding of the persons concerned. Thus the
gratuitous lender of a 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.[365]
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 other
persons are exposed by the act in 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.
Inasmuch, 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 interests of others is a legal 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 am 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. Were men to act on any other principle than this, excess of
caution would paralyse the business of the 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 am 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. Inasmuch
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
those dangerous forms of activity. Yet it is expedient in the public
interest that those activities should go on, and therefore that men
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 it can, 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 due 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 to-day 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 licence of the _arbitrium judicis_. So far
as practicable and justifiable it desires to make negligence a matter
not of fact but of legal rule and definition. It seeks to supersede the
vague principle that that is negligence which a jury considers such, by
substituting for it a body of legal doctrine determining the boundaries
of negligence in specific 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.[366] 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.[367] Nor is there any negligence in the usual
practice of railway servants in violently shutting the doors of railway
carriages without warning,[368] notwithstanding the risk of injury to
the hands of passengers.[369]
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 the 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 rule is merely that
such conduct is evidence of negligence.[370] 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.[371]
§ 143. =Degrees of Negligence.=
We have said that English law recognises only one standard of care and
therefore only one degree of negligence. Whenever a person is under a
duty to take any 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 (_culpa lata_) and slight
negligence (_culpa 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.[372] These distinctions are based
partly upon Roman law, and partly upon a misunderstanding of it, and
notwithstanding some judicial dicta to the contrary we may say with some
confidence that no such doctrine is known to the law of England.[373]
These 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 (_culpa lata_) is equivalent to
wrongful intention (_dolus_)—a principle which receives occasional
expression and recognition in English law also. _Magna culpa dolus
est_,[374] said the Romans. 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 is very 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
new-born child is left to die from want of medical attention or nursing,
it _may_ be that its death is due to negligence only, but it is more
probable that it is due to wrongful purpose and malice aforethought. He
who strikes another on the head with an iron bar _may_ have meant only
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,[375] and the more natural and probable the
consequences, the greater the strength of the presumption.[376]
In certain cases this presumption of intent has hardened into a positive
rule of law, and has become irrebuttable. In those cases that which is
negligence in fact may be deemed wrongful intent in law. It is
constructive, though not actual intent. The law of homicide supplies us
with an illustration. Murder is wilful 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 wilful 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.[377] 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, but wrongful purpose; 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, and it will be conclusively presumed
against you that your act was wilful. 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 indeed intend it; therefore no endeavour
will be made on your behalf to discover whether you did or not.”
§ 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 account of certain
theories which differ more or less seriously from that which has been
here 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 in his
consciousness. The wilful wrongdoer is lie 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.[378]
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 wilful or
advertent negligence, in which the wrongdoer knows 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 wilful 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, notwithstanding a genuine desire to attain
knowledge or remembrance, is not negligent. The signalman 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 labour, 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 defence of the theory of inadvertence that there
are in reality three forms of the _mens rea_, and not two only: namely,
(1) intention, when the consequences are foreseen and intended, (2)
recklessness, when they are foreseen but not intended, and (3)
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.[379] To drive at
night without lights is negligence, because to carry lights is a
precaution taken by 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 wilful 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 unlabelled, with intent that some one may drink it by
mistake. A ship captain may wilfully 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 wilful murder,
rather than of mere negligence. In none of these cases, nor indeed in
any others, can we distinguish between intentional and negligent
wrongdoing, save 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 offences 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 concomitants as well as
to the end.
Intention │Immediate.
│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 jus necessitatis.
Its theory.
Its partial allowance in practice.
The nature of Negligence.
Subjective and objective uses of the term.
Negligence and intention opposed and inconsistent.
Negligence not necessarily inadvertence.
Negligence essentially indifference.
Negligence and intention the two alternative grounds of penal
liability.
Negligence│Wilful or inadvertent.
│Simple or inadvertent.
Negligence immediate and remote.
Negligence and want of skill.
The duty of carefulness:
The necessary 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.
Degree’s of negligence.
Distinction between gross and slight negligence not recognised by
English law.
Culpa lata dolus est.
Significance of this proposition.
Negligence and constructive intent.
Criticism of other theories of negligence:
(1) That negligence is inadvertence.
(2) The objective theory.