LIABILITY (CONTINUED).
§ 145. =Wrongs of Absolute Liability.=
We now proceed to consider the third class of wrongs, namely those of
absolute liability. These are the acts for which a man is responsible
irrespective of the existence of either wrongful intent or negligence.
They are the exceptions to the rule, _Actus non facit reum nisi mens sit
rea_. It may be thought, indeed, that in the civil as opposed to the
criminal law, absolute liability should be the rule rather than the
exception. It may be said: “It is clear that in the criminal law
liability should in all ordinary cases be based upon the existence of
_mens rea_. No man should be punished criminally unless he knew that he
was doing wrong, or might have known it by taking care. Inevitable
mistake or accident should be a good defence for him. But why should the
same principle apply to civil liability? If I do another man harm, why
should I not be made to pay for it? What does it matter to him whether I
did it wilfully, or negligently, or by inevitable accident? In either
case I have actually done the harm, and therefore should be bound to
_undo_ it by paying compensation. For the essential aim of civil
proceedings is redress for harm suffered by the plaintiff, not
punishment for wrong done by the defendant; therefore the rule of _mens
rea_ should be deemed inapplicable.”
It is clear, however, that this is not the law of England, and it seems
equally clear that there is no sufficient reason why it should be. In
all those judicial proceedings which fall under the head of penal
redress, the determining purpose of the law is not redress, but
punishment. Redress is in those cases merely the instrument of
punishment. In itself it is not a sufficient ground or justification for
such proceedings at all. Unless damages are at the same time a deserved
penalty inflicted upon the defendant, they are not to be justified as
being a deserved recompense awarded to the plaintiff. For they in no way
undo the wrong or restore the former state of things. The wrong is done
and cannot be undone. If by accident I burn down another man’s house,
the only result of enforcing compensation is that the loss has been
transferred from him to me; but it remains as great as ever for all
that. The mischief done has been in no degree abated. If I am not in
fault, there is no more reason why I should insure other persons against
the harmful issues of my own activity, than why I should insure them
against lightning or earthquakes. Unless some definite gain is to be
derived by transferring loss from one head to another, sound reason, as
well as the law, requires that the loss should lie where it falls.[380]
Although the requirement of _mens rea_ is general throughout the civil
and criminal law, there are numerous exceptions to it. The
considerations on which these are based are various, but the most
important is the difficulty of procuring adequate proof of intention or
negligence. In the majority of instances, indeed, justice requires that
this difficulty be honestly faced; but in certain special cases it is
allowable to circumvent it by means of a conclusive presumption of the
presence of this condition of liability. In this way we shall certainly
punish some who are innocent, but in the case of civil liability this is
not a very serious matter—since men know that in such cases they act at
their peril, and are content to take the risk—while in respect of
criminal liability such a presumption is seldom resorted to, and only in
the case of comparatively trivial offences.[381] Whenever, therefore,
the strict doctrine of _mens rea_ would too seriously interfere with the
administration of justice by reason of the evidential difficulties
involved in it, the law tends to establish a form of absolute liability.
In proceeding to consider the chief instances of this kind of liability
we find that the matter falls into three divisions, namely—(1) Mistake
of Law, (2) Mistake of Fact, and (3) Accident.
§ 146. =Mistake of Law.=
It is a principle recognised not only by our own but by other legal
systems that ignorance of the law is no excuse for breaking it.
_Ignorantia juris neminem excusat._ The rule is also expressed in the
form of a legal presumption that every one knows the law. The rule is
absolute, and the presumption irrebuttable. No diligence of inquiry will
avail against it; no inevitable ignorance or error will serve for
justification. Whenever a man is thus held accountable for breaking a
law which he did not know, and which he could not by due care have
acquired a knowledge of, the case is one of absolute liability.
The reasons rendered for this somewhat rigorous principle are three in
number. In the first place the law is in legal theory definite and
knowable; it is the duty of every man to know that part of it which
concerns him; therefore innocent and inevitable ignorance of the law is
impossible. Men are conclusively presumed to know the law, and are dealt
with as if they did know it, because they can and ought to know it.
In the second place, even if invincible ignorance of the law is in fact
possible, the evidential difficulties in the way of the judicial
recognition of such ignorance are insuperable, and for the sake of any
benefit derivable therefrom it is not advisable to weaken the
administration of justice by making liability dependent on well-nigh
inscrutable conditions touching knowledge or means of knowledge of the
law. Who can say of any man whether he knew the law, or whether during
the course of his past life he had an opportunity of acquiring a
knowledge of it by the exercise of due diligence?
Thirdly and lastly, the law is in most instances derived from and in
harmony with the rules of natural justice. It is a public declaration by
the state of its intention to maintain by force those principles of
right and wrong which have already a secure place in the moral
consciousness of men. The common law is in great part nothing more than
common honesty and common sense. Therefore although a man may be
ignorant that he is breaking the law, he knows very well in most cases
that he is breaking the rule of right. If not to his knowledge lawless,
he is at least dishonest and unjust. He has little ground of complaint,
therefore, if the law refuses to recognise his ignorance as an excuse,
and deals with him according to his moral deserts. He who goes about to
harm others when he believes that he can do so within the limits of the
law, may justly be required by the law to know those limits at his
peril. This is not a form of activity that need be encouraged by any
scrupulous insistence on the formal conditions of legal responsibility.
It must be admitted, however, that while each of these considerations is
valid and weighty, they do not constitute an altogether sufficient basis
for so stringent and severe a rule.[382] None of them goes the full
length of the rule. That the law is knowable throughout by all whom it
concerns is an ideal rather than a fact in any system as indefinite and
mutable as our own. That it is impossible to distinguish invincible from
negligent ignorance of the law is by no means wholly true. It may be
doubted whether this inquiry is materially more difficult than many
which courts of justice undertake without hesitation. That he who breaks
the law of the land disregards at the same time the principles of
justice and honesty is in many instances far from the truth. In a
complex legal system a man requires other guidance than that of common
sense and a good conscience. The fact seems to be that the rule in
question, while in general sound, does not in its full extent and
uncompromising rigidity admit of any sufficient justification.
§ 147. =Mistake of Fact.=
In respect of the influence of ignorance or error upon legal liability
we have inherited from Roman law a familiar distinction between law and
fact. By reason of his ignorance of the law no man will be excused, but
it is commonly said that inevitable ignorance of fact is a good
defence.[383] This, however, is far from an accurate statement of
English law. It is much more nearly correct to say that mistake of fact
is an excuse only within the sphere of the criminal law, while in the
civil law responsibility is commonly absolute in this respect. So far as
civil liability is concerned, it is a general principle of our law that
he who intentionally interferes with the person, property, reputation,
or other rightful interests of another does so at his peril, and will
not be heard to allege that he believed in good faith and on reasonable
grounds in the existence of some circumstance which justified his act.
If I trespass upon another man’s land, it is no defence to me that I
believed it on good grounds to be my own. If in absolute innocence and
under an inevitable mistake of fact I meddle with another’s goods, I am
liable for all loss incurred by the true owner.[384] If, intending to
arrest A., I arrest B. by mistake instead, I am absolutely liable to him
notwithstanding the greatest care taken by me to ascertain his identity.
If I falsely but innocently make a defamatory statement about another, I
am liable to him however careful I may have been to ascertain the truth.
There are, indeed, exceptions to this rule of absolute civil liability
for mistake of fact, but they are not of such number or importance as to
cast any doubt on the validity of the general principle.
In the criminal law, on the other hand, the matter is otherwise, and it
is here that the contrast between mistake of law and mistake of fact
finds its true application. Absolute criminal responsibility for a
mistake of fact is quite exceptional. An instance of it is the liability
of him who abducts a girl under the legal age of consent. Inevitable
mistake as to her age is no defence; he must take the risk.[385]
A word may be said as to the historical origin of this failure of
English law to recognise inevitable mistake as a ground of exemption
from civil liability. Ancient modes of procedure and proof were not
adapted for inquiries into mental conditions. By the practical
difficulties of proof early law was driven to attach exclusive
importance to overt acts. The subjective elements of wrongdoing were
largely beyond proof or knowledge, and were therefore disregarded as
far as possible. It was a rule of our law that intent and knowledge
were not matters that could be proved or put in issue. “It is common
learning,” said one of the judges of King Edward IV., “that the intent
of a man will not be tried, for the devil himself knoweth not the
intent of a man.”[386] The sole question which the courts would
entertain was whether the defendant did the act complained of. Whether
he did it ignorantly or with guilty knowledge was entirely immaterial.
This rule, however, was restricted to civil liability. It was early
recognised that criminal responsibility was too serious a thing to be
imposed upon an innocent man simply for the sake of avoiding a
difficult inquiry into his knowledge and intention. In the case of
civil liability, on the other hand, the rule was general. The success
with which it has maintained itself in modern law is due in part to
its undeniable utility in obviating inconvenient or even impracticable
inquiries, and in part to the influence of the conception of redress
in minimising the importance of the formal condition of penal
liability.
§ 148. =Accident.=
Unlike mistake, inevitable accident is commonly recognised by our law as
a ground of exemption from liability. It is needful, therefore, to
distinguish accurately between these two things, for they are near of
kin. Every act which is not done intentionally is done either
accidentally or by mistake. It is done accidentally, when it is
unintentional in respect of its _consequences_. It is done by mistake,
when it is intentional in respect of its consequences, but unintentional
in respect of some material _circumstance_. If I drive over a man in the
dark because I do not know that he is in the road, I injure him
accidentally; but if I procure his arrest, because I mistake him for
some one who is liable to arrest, I injure him not accidentally but by
mistake. In the former case I did not intend the harm at all, while in
the latter case I fully intended it, but falsely believed in the
existence of a circumstance which would have served to justify it. So if
by insufficient care I allow my cattle to escape into my neighbour’s
field, their presence there is due to accident; but if I put them there
because I wrongly believe that the field is mine, their presence is due
to mistake. In neither case did I intend to wrong my neighbour, but in
the one case my intention failed as to the consequence, and in the other
as to the circumstance.
Accident, like mistake, is either culpable or inevitable. It is culpable
when due to negligence, but inevitable when the avoidance of it would
have required a degree of care exceeding the standard demanded by the
law. Culpable accident is no defence, save in those exceptional cases in
which wrongful intent is the exclusive and necessary ground of
liability. Inevitable accident is commonly a good defence, both in the
civil and in the criminal law.
To this rule, however, there are, at least in the civil law, important
exceptions. These are cases in which the law insists that a man shall
act at his peril, and shall take his chance of accidents happening. If
he desires to keep wild beasts,[387] or to light fires,[388] or to
construct a reservoir of water,[389] or to accumulate upon his land any
substance which will do damage to his neighbours if it escapes,[390] or
to erect dangerous structures by which passengers in the highway may
come to harm,[390] he will do all these things _suo periculo_ (though
none of them are _per se_ wrongful) and will answer for all ensuing
damage notwithstanding consummate care.
There is one case of absolute liability for accident which deserves
special notice by reason of its historical origin. Every man is
absolutely responsible for the trespasses of his cattle. If my horse or
my ox escapes from my land to that of another man, I am answerable for
it without any proof of negligence.[391] Such a rule may probably be
justified as based on a reasonable presumption of law that all such
trespasses are the outcome of negligent keeping. Viewed historically,
however, the rule is worth notice as one of the last relics of the
ancient principle that a man is answerable for all damage done by his
property. In the theory of ancient law I am liable for the trespasses of
my cattle, not because of my negligent keeping of them, but because of
my ownership of them. For the same reason in Roman law a master was
liable for the offences of his slaves. The case is really, in its
historical origin, one of vicarious liability. In early law and custom
vengeance, and its products responsibility and punishment, were not
conceived as necessarily limited to human beings, but were in certain
cases extended to dumb animals and even inanimate objects. We have
already cited in another connection the provision of the Mosaic law that
“If an ox gore a man or a woman that they die, then the ox shall be
surely stoned and his flesh shall not be eaten.”[392] In the _Laws_ of
Plato it is said:[393] “If a beast of burden or other animal cause the
death of any one ... the kinsman of the deceased shall prosecute the
slayer for murder, and the wardens of the country ... shall try the
cause; and let the beast when condemned be slain by them, and cast
beyond the borders.” So in the Laws of King Alfred:[394] “If at their
common work,” (of wood cutting) “one man slay another unwilfully, let
the tree be given to the kindred.” And by English law until the year
1846 the weapon or other thing which “moved to the death of a man” was
forfeited to the King as guilty and accursed.[395] Here we have the
ground of a rule of absolute liability. If a man’s cattle or his slaves
do damage, they are thereby exposed to the vengeance of the injured
person. But to take destructive vengeance upon _them_ is to impose a
penalty upon their _owner_. The liability thence resulting probably
passed through three stages: first, that of unconditional forfeiture or
surrender of the property to the vengeance of the injured person;
secondly, that of an option given to the owner between forfeiture and
redemption—the _actiones noxales_ of Roman law;[396] and thirdly, that
of compulsory redemption, or in other words, unconditional compensation.
§ 149. =Vicarious Responsibility.=
Hitherto we have dealt exclusively with the conditions of liability, and
it is needful now to consider its incidence. Normally and naturally the
person who is liable for a wrong is he who does it. Yet both ancient and
modern law admit instances of vicarious liability in which one man is
made answerable for the acts of another. Criminal responsibility,
indeed, is never vicarious at the present day, except in very special
circumstances and in certain of its less serious forms.[397] In more
primitive systems, however, the impulse to extend vicariously the
incidence of liability receives free scope in a manner altogether alien
to modern notions of justice. It is in barbarous times considered a very
natural thing to make every man answerable for those who are of kin to
him. In the Mosaic legislation it is deemed necessary to lay down the
express rule that “The fathers shall not be put to death for the
children; neither shall the children be put to death for the fathers;
every man shall be put to death for his own sin.”[398] Plato in his
_Laws_ does not deem it needless to emphasise the same principle.[399]
Furthermore, so long as punishment is conceived rather as expiative,
retributive, and vindictive, than as deterrent and reformative, there
seems no reason why the incidence of liability should not be determined
by _consent_, and therefore why a guilty man should not provide a
substitute to bear his penalty and to provide the needful satisfaction
to the law. Guilt must be wiped out by punishment, but there is no
reason why the victim should be one person rather than another. Such
modes of thought have long since ceased to pervert the law; but that
they were at one time natural is rendered sufficiently evident by their
survival in popular theology.
Modern civil law recognises vicarious liability in two chief classes of
cases. In the first place, masters are responsible for the acts of their
servants done in the course of their employment. In the second place,
representatives of dead men are liable for deeds done in the flesh by
those whom they represent. We shall briefly consider each of these two
forms.
It has been sometimes said that the responsibility of a master for his
servant has its historical source in the responsibility of an owner for
his slave. This, however, is certainly not the case. The English
doctrine of employer’s liability is of comparatively recent growth. It
has its origin in the legal presumption, gradually become conclusive,
that all acts done by a servant in and about his master’s business are
done by his master’s express or implied authority, and are therefore in
truth the acts of the master for which he may be justly held
responsible.[400] No employer will be allowed to say that he did not
authorise the act complained of, or even that it was done against his
express injunctions, for he is liable none the less. This conclusive
presumption of authority has now, after the manner of such presumptions,
disappeared from the law, after having permanently modified it by
establishing the principle of employer’s liability. Historically, as we
have said, this is a fictitious extension of the principle, _Qui facit
per alium facit per se_. Formally, it has been reduced to the laconic
maxim, _Respondeat superior_.
The rational basis of this form of vicarious liability is in the first
place evidential. There are such immense difficulties in the way of
proving actual authority, that it is necessary to establish a conclusive
presumption of it. A word, a gesture, or a tone may be a sufficient
indication from a master to his servant that some lapse from the legal
standard of care or honesty will be deemed acceptable service. Yet who
could prove such a measure of complicity? Who could establish liability
in such a case, were evidence of authority required, or evidence of the
want of it admitted?
A further reason for the vicarious responsibility of employers is that
employers usually are, while their servants usually are not, financially
capable of the burden of civil liability. It is felt, probably with
justice, that a man who is able to make compensation for the hurtful
results of his activities should not be enabled to escape from the duty
of doing so by delegating the exercise of these activities to servants
or agents from whom no redress can be obtained. Such delegation confers
upon impecunious persons means and opportunities of mischief which would
otherwise be confined to those who are financially competent. It
disturbs the correspondence which would otherwise exist between the
capacity of doing harm and the capacity of paying for it. It is
requisite for the efficacy of civil justice that this delegation of
powers and functions should be permitted only on the condition that he
who delegates them shall remain answerable for the acts of his servants,
as he would be for his own.
A second form of vicarious responsibility is that of living
representatives for the acts of dead men. There is no doubt that
criminal responsibility must die with the wrongdoer himself, but with
respect to penal redress the question is not free from difficulty. For
in this form of liability there is a conflict between the requirements
of the two competing principles of punishment and compensation. The
former demands the termination of liability with the life of the
wrongdoer, while the latter demands its survival. In this dispute the
older common law approved the first of those alternatives. The received
maxim was: _Actio personalis moritur cum persona_. A man cannot be
punished in his grave; therefore it was held that all actions for penal
redress, being in their true nature instruments of punishment, must be
brought against the living offender and must die with him. Modern
opinion rejects this conclusion, and by various statutory provisions the
old rule has been in great part abrogated. It is considered that
although liability to afford redress ought to depend in point of
_origin_ upon the requirements of punishment, it should depend in point
of _continuance_ upon those of compensation. For when this form of
liability has once come into existence, it is a valuable right of the
person wronged; and it is expedient that such rights should be held upon
a secure tenure, and should not be subject to extinction by a mere
irrelevant accident such as the death of the offender. There is no
sufficient reason for drawing any distinction in point of survival
between the right of a creditor to recover his debt and the right of a
man who has been injured by assault or defamation to recover
compensation for the loss so suffered by him.
As a further argument in the same sense, it is to be observed that it is
not strictly true that a man cannot be punished after his death.
Punishment is effective not at the time it is inflicted, but at the time
it is threatened. A threat of evil to be inflicted upon a man’s
descendants at the expense of his estate will undoubtedly exercise a
certain deterrent influence upon him; and the apparent injustice of so
punishing his descendants for the offences of their predecessor is in
most cases no more than apparent. The right of succession is merely the
right to acquire the dead man’s estate, subject to all charges which, on
any grounds, and apart altogether from the interests of the successors
themselves, may justly be imposed upon it.
There is a second application of the maxim, _Actio personalis moritur
cum persona_, which seems equally destitute of justification.
According to the common law an action for penal redress died not
merely with the wrongdoer but also with the person wronged. This rule
has been abrogated by statute in part only. There can, however, be
little doubt that in all ordinary cases, if it is right to punish a
person at all, his liability should not cease simply by reason of the
death of him against whom his offence was committed. The right of the
person injured to receive redress should descend to his
representatives like any other proprietary interest.
§ 150. =The Measure of Criminal Liability.=
We have now considered the conditions and the incidence of penal
liability. It remains to deal with the measure of it, and here we must
distinguish between criminal and civil wrongs, for the principles
involved are fundamentally different in the two cases.
In considering the measure of criminal liability it will be convenient
to bestow exclusive attention upon the deterrent purpose of the criminal
law, remembering, however, that the conclusions so obtained are subject
to possible modification by reference to those subordinate and
incidental purposes of punishment which we thus provisionally disregard.
Were men perfectly rational, so as to act invariably in accordance with
an enlightened estimate of consequences, the question of the measure of
punishment would present no difficulty. A draconian simplicity and
severity would be perfectly just and perfectly effective. It would be
possible to act on the Stoic paradox that all offences involve equal
guilt, and to visit with the utmost rigour of the law every deviation,
however slight, from the appointed way. In other words, if the deterrent
effect of severity were certain and complete, the best law would be that
which by the most extreme and undiscriminating severity effectually
extinguished crime. Were human nature so constituted that a threat of
burning all offenders alive would with certainty prevent all breaches of
the law, then this would be the just and fitting penalty for all
offences from high treason to petty larceny. So greatly, however, are
men moved by the impulse of the moment, rather than by a rational
estimate of future good and evil, and so ready are they to face any
future evil which falls short of the inevitable, that the utmost rigour
is sufficient only for the diminution of crime, not for the extinction
of it. It is needful, therefore, in judging the merits of the law, to
subtract from the sum of good which results from the partial prevention
of offences, the sum of evil which results from the partial failure of
prevention and the consequent necessity of fulfilling those threats of
evil by which the law had hoped to effect its purpose. The perfect law
is that in which the difference between the good and the evil is at a
maximum in favour of the good, and the rules as to the measure of
criminal liability are the rules for the attainment of this maximum. It
is obvious that it is not attainable by an indefinite increase of
severity. To substitute hanging for imprisonment as the punishment for
petty theft would doubtless diminish the frequency of this offence, but
it is certain that the evil so prevented would be far outweighed by that
which the law would be called on to inflict in the cases in which its
threats proved unavailing.
In every crime there are three elements to be taken into account in
determining the appropriate measure of punishment. These are (1) the
motives to the commission of the offence, (2) the magnitude of the
offence, and (3) the character of the offender.
1. _The motive of the offence._ Other things being equal, the greater
the temptation to commit a crime the greater should be the punishment.
This is an obvious deduction from the first principles of criminal
liability. The object of punishment is to counteract by the
establishment of contrary and artificial motives the natural motives
which lead to crime. The stronger these natural motives the stronger
must be the counteractives which the law supplies. If the profit to be
derived from an act is great, or the passions which lead men to it are
violent, a corresponding strength or violence is an essential condition
of the efficacy of repressive discipline. We shall see later, however,
that this principle is subject to a very important limitation, and that
there are many cases in which extreme temptation is a ground of
extenuation rather than of increased severity of punishment.
2. _The magnitude of the offence._ Other things being equal, the greater
the offence, that is to say the greater the sum of its evil consequences
or tendencies, the greater should be its punishment. At first sight,
indeed, it would seem that this consideration is irrelevant. Punishment,
it may be thought, should be measured solely by the profit derived by
the offender, not by the evils caused to other persons; if two crimes
are equal in point of motive, they should be equal in point of
punishment, notwithstanding the fact that one of them maybe many times
more mischievous than the other. This, however, is not so, and the
reason is twofold.
(_a_) The greater the mischief of any offence the greater is the
punishment which it is profitable to inflict with the hope of preventing
it. For the greater this mischief the less is the proportion which the
evil of punishment bears to the good of prevention, and therefore the
greater is the punishment which can be inflicted before the balance of
good over evil attains its maximum. Assuming the motives of larceny and
of homicide to be equal, it may be profitable to inflict capital
punishment for the latter offence, although it is certainly unprofitable
to inflict it for the former. The increased measure of prevention that
would be obtained by such severity would, in view of the comparatively
trivial nature of the offence, be obtained at too great a cost.
(_b_) A second and subordinate reason for making punishment vary with
the magnitude of the offence is that, in those cases in which different
offences offer themselves as alternatives to the offender, an inducement
is thereby given for the preference of the least serious. If the
punishment of burglary is the same as that of murder, the burglar has
obvious motives for not stopping at the lesser crime. If an attempt is
punished as severely as a completed offence, why should any man repent
of his half-executed purposes?
3. _The character of the offender._ The worse the character or
disposition of the offender the more severe should be his punishment.
Badness of disposition is constituted either by the strength of the
impulses to crime, or by the weakness of the impulses towards
law-abiding conduct. One man may be worse than another because of the
greater strength and prevalence within him of such anti-social passions
as anger, covetousness, or malice; or his badness may lie in a
deficiency of those social impulses and instincts which are the springs
of right conduct in normally constituted men. In respect of all the
graver forms of law-breaking, for one man who abstains from them for
fear of the law there are thousands who abstain by reason of quite other
influences. Their sympathetic instincts, their natural affections, their
religious beliefs, their love of the approbation of others, their pride
and self-respect, render superfluous the threatenings of the law. In the
degree in which these impulses are dominant and operative, the
disposition of a man is good; in the degree in which they are wanting or
inefficient, it is bad.
In both its kinds badness of disposition is a ground for severity of
punishment. If a man’s emotional constitution is such that normal
temptation acts upon him with abnormal force, it is for the law to
supply in double measure the counteractive of penal discipline. If he is
so made that the natural influences towards well-doing fall below the
level of average humanity, the law must supplement them by artificial
influences of a strength that is needless in ordinary cases.
Any fact, therefore, which indicates depravity of disposition is a
circumstance of aggravation, and calls for a penalty in excess of that
which would otherwise be appropriate to the offence. One of the most
important of these facts is the repetition of crime by one who has been
already punished. The law rightly imposes upon habitual offenders
penalties which bear no relation either to the magnitude or to the
profit of the offence. A punishment adapted for normal men is not
appropriate for those who, by their repeated defiance of it, prove their
possession of abnormal natures. A second case in which the same
principle is applicable is that in which the mischief of an offence is
altogether disproportionate to any profit to be derived from it by the
offender. To kill a man from mere wantonness, or merely in order to
facilitate the picking of his pocket, is a proof of extraordinary
depravity beyond anything that is imputable to him who commits homicide
only through the stress of passionate indignation or under the influence
of great temptation. A third case is that of offences from which normal
humanity is adequately dissuaded by such influences as those of natural
affection. To kill one’s father is in point of magnitude no worse a
crime than any other homicide, but it has at all times been viewed with
greater abhorrence, and by some laws punished with greater severity, by
reason of the depth of depravity which it indicates in the offender.
Lastly it is on the same principle that wilful offences are punished
with greater rigour than those which are due merely to negligence.
An additional and subordinate reason for making the measure of liability
depend upon the character of the offender is that badness of disposition
is commonly accompanied by deficiency of sensibility. Punishment must
increase as sensibility diminishes. The more depraved the offender the
less he feels the shame of punishment; therefore the more he must be
made to feel the pain of it. A certain degree of even physical
insensibility is said to characterise the more degraded orders of
criminals; and the indifference with which death itself is faced by
those who in the callousness of their hearts have not scrupled to
inflict it upon others is a matter of amazement to normally constituted
men.
We are now in a position to deal with a question which we have already
touched upon but deferred for fuller consideration, namely the apparent
paradox involved in the rule that punishment must increase with the
temptation to the offence. As a general rule this proposition is true;
but it is subject to a very important qualification. For in certain
cases the temptation to which a man succumbs may be of such a nature as
to rebut that presumption of a bad disposition which would in ordinary
circumstances arise from the commission of the offence. He may, for
example, be driven to the act not by the strength of any bad or
self-regarding motives, but by that of his social or sympathetic
impulses. In such a case the greatness of the temptation, considered in
itself, demands severity of punishment, but when considered as a
disproof of the degraded disposition which usually accompanies
wrongdoing it demands leniency; and the latter of these two conflicting
considerations may be of sufficient importance to outweigh the other. If
a man remains honest until he is driven in despair to steal food for his
starving children, it is perfectly consistent with the deterrent theory
of punishment to deal with him less severely than with him who steals
from no other motive than cupidity. He who commits homicide from motives
of petty gain, or to attain some trivial purpose, deserves to be treated
with the utmost severity, as a man thoroughly callous and depraved. But
he who kills another in retaliation for some intolerable insult or
injury need not be dealt with according to the measure of his
temptations, but should rather be excused on account of them.
§ 151. =The Measure of Civil Liability.=
Penal redress is that form of penal liability in which the law uses the
compulsory compensation of the person injured as an instrument for the
punishment of the offender. It is characteristic of this form of
punishment that it takes account of one only of the three considerations
which, as we have seen, rightly determine the measure of penal
responsibility. It is measured exclusively by the magnitude of the
offence, that is to say, by the amount of loss inflicted by it. It takes
no account of the character of the offender, and so visits him who does
harm through some trivial want of care with as severe a penalty as if
his act had been prompted by deliberate malice. Similarly it takes no
account of the motives of the offence; he who has everything and he who
has nothing to gain are equally punished, if the damage done by them is
equal. Finally it takes no account of probable or intended consequences,
but solely of those which actually ensue; wherefore the measure of a
wrongdoer’s liability is not the evil which he meant to do, but that
which he has succeeded in doing; and his punishment is determined not by
his fault, but by the accident of the result. If one man is dealt with
more severely than another, it is not because he is more guilty, but
because he has had the misfortune to be more successful in his wrongful
purposes, or less successful in the avoidance of unintended issues.
Serious as are these lapses from the due standard of penal discipline,
it is not to be suggested that this form of civil liability is
unjustifiable. The use of redress as an instrument of punishment
possesses advantages more than sufficient to counterbalance any such
objections to it. More especially it possesses this, that while other
forms of punishment, such as imprisonment, are uncompensated evil, penal
redress is the gain of him who is wronged as well as the loss of the
wrongdoer. Further, this form of remedy gives to the persons injured a
direct interest in the efficient administration of justice—an interest
which is almost absent in the case of the criminal law. It is true,
however, that the law of penal redress, taken by itself, falls so far
short of the requirements of a rational scheme of punishment that it
would by itself be totally insufficient. In all modern and developed
bodies of law its operation is supplemented, and its deficiencies made
good, by a co-ordinate system of criminal liability. These two together,
combined in due proportions, constitute a very efficient instrument for
the maintenance of justice.
SUMMARY.
Wrongs of absolute liability—_Mens rea_ not required.
Exceptional nature of such wrongs.
Penal redress justified not as redress but as punishment.
Mistake of law.
Commonly no defence.
Reasons for the rule.
Criticism of it.
Mistake of fact.
A defence in criminal but commonly not in civil cases.
Accident.
Distinction between accident and mistake.
Accident │
and │Culpable.
mistake│
│Inevitable.
Inevitable accident commonly a defence.
Exceptions.
The Incidence of Penal Liability.
Vicarious liability.
1. Employer’s liability.
Its rational basis.
2. Liability of representatives of dead men.
Its rational basis.
The Measure of Penal Liability.
1. Criminal liability.
Reasons against indiscriminate severity.
The end to be attained.
The considerations to be taken account of.
(_a_) The motive of the offence.
(_b_) The magnitude of the offence.
(_c_) The character of the offender.
2. Civil liability.
Merits and demerits of the use of compulsory compensation
as an instrument of punishment.