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The Common Law by Oliver Wendell Holmes, Jr.

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Scanned and proofread by Stuart E. Thiel, Chicago, January 2000

Conventions:

Numbers in square brackets (e.g. [245]) refer to original page
numbers. Original footnotes were numbered page-by-page, and are
collected at the end of the text. In the text, numbers in slashes
(e.g./1/) refer to original footnote numbers. In the footnote
section, a number such as 245/1 refers to (original) page 245,
footnote 1. The footnotes are mostly citations to old English law
reporters and to commentaries by writers such as Ihering, Bracton
and Blackstone. I cannot give a source for decrypting the
notation.

There is quite a little Latin and some Greek in the original
text. I have reproduced the Latin. The Greek text is omitted; its
place is marked by the expression [Greek characters]. Italics and
diacritical marks such as accents and cedillas are omitted and
unmarked.

Lecture X has two subheads - Successions After Death and
Successions Inter Vivos. Lecture XI is also titled Successions
Inter Vivos. This conforms to the original.

THE COMMON LAW

OLIVER WENDELL HOLMES, JR.

LECTURE I.

EARLY FORMS OF LIABILITY.

[1] The object of this book is to present a general view of the
Common Law. To accomplish the task, other tools are needed
besides logic. It is something to show that the consistency of a
system requires a particular result, but it is not all. The life
of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in determining
the rules by which men should be governed. The law embodies the
story of a nation's development through many centuries, and it
cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what it
is, we must know what it has been, and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand
the combination of the two into new products at every stage. The
substance of the law at any given time pretty nearly [2]
corresponds, so far as it goes, with what is then understood to
be convenient; but its form and machinery, and the degree to
which it is able to work out desired results, depend very much
upon its past.

In Massachusetts today, while, on the one hand, there are a great
many rules which are quite sufficiently accounted for by their
manifest good sense, on the other, there are some which can only
be understood by reference to the infancy of procedure among the
German tribes, or to the social condition of Rome under the
Decemvirs.

I shall use the history of our law so far as it is necessary to
explain a conception or to interpret a rule, but no further. In
doing so there are two errors equally to be avoided both by
writer and reader. One is that of supposing, because an idea
seems very familiar and natural to us, that it has always been
so. Many things which we take for granted have had to be
laboriously fought out or thought out in past times. The other
mistake is the opposite one of asking too much of history. We
start with man full grown. It may be assumed that the earliest
barbarian whose practices are to be considered, had a good many
of the same feelings and passions as ourselves.

The first subject to be discussed is the general theory of
liability civil and criminal. The Common Law has changed a good
deal since the beginning of our series of reports, and the search
after a theory which may now be said to prevail is very much a
study of tendencies. I believe that it will be instructive to go
back to the early forms of liability, and to start from them.

It is commonly known that the early forms of legal procedure were
grounded in vengeance. Modern writers [3] have thought that the
Roman law started from the blood feud, and all the authorities
agree that the German law begun in that way. The feud led to the
composition, at first optional, then compulsory, by which the
feud was bought off. The gradual encroachment of the composition
may be traced in the Anglo-Saxon laws, /1/ and the feud was
pretty well broken up, though not extinguished, by the time of
William the Conqueror. The killings and house-burnings of an
earlier day became the appeals of mayhem and arson. The appeals
de pace et plagis and of mayhem became, or rather were in
substance, the action of trespass which is still familiar to
lawyers. /2/ But as the compensation recovered in the appeal was
the alternative of vengeance, we might expect to find its scope
limited to the scope of vengeance. Vengeance imports a feeling of
blame, and an opinion, however distorted by passion, that a wrong
has been done. It can hardly go very far beyond the case of a
harm intentionally inflicted: even a dog distinguishes between
being stumbled over and being kicked.

Whether for this cause or another, the early English appeals for
personal violence seem to have been confined to intentional
wrongs. Glanvill /3/ mentions melees, blows, and wounds,--all
forms of intentional violence. In the fuller description of such
appeals given by Bracton /4/ it is made quite clear that they
were based on intentional assaults. The appeal de pace et plagis
laid an intentional assault, described the nature of the arms
used, and the length and depth of the wound. The appellor also
had [4] to show that he immediately raised the hue and cry. So
when Bracton speaks of the lesser offences, which were not sued
by way of appeal, he instances only intentional wrongs, such as
blows with the fist, flogging, wounding, insults, and so forth.
/1/ The cause of action in the cases of trespass reported in the
earlier Year Books and in the Abbreviatio Plaeitorum is always an
intentional wrong. It was only at a later day, and after
argument, that trespass was extended so as to embrace harms which
were foreseen, but which were not the intended consequence of the
defendant's act. /2/ Thence again it extended to unforeseen
injuries. /3/

It will be seen that this order of development is not quite
consistent with an opinion which has been held, that it was a
characteristic of early law not to penetrate beyond the external
visible fact, the damnum corpore corpori datum. It has been
thought that an inquiry into the internal condition of the
defendant, his culpability or innocence, implies a refinement of
juridical conception equally foreign to Rome before the Lex
Aquilia, and to England when trespass took its shape. I do not
know any very satisfactory evidence that a man was generally held
liable either in Rome /4/ or England for the accidental
consequences even of his own act. But whatever may have been the
early law, the foregoing account shows the starting-point of the
system with which we have to deal. Our system of private
liability for the consequences of a man's own acts, that is, for
his trespasses, started from the notion of actual intent and
actual personal culpability.

The original principles of liability for harm inflicted by [5]
another person or thing have been less carefully considered
hitherto than those which governed trespass, and I shall
therefore devote the rest of this Lecture to discussing them. I
shall try to show that this liability also had its root in the
passion of revenge, and to point out the changes by which it
reached its present form. But I shall not confine myself strictly
to what is needful for that purpose, because it is not only most
interesting to trace the transformation throughout its whole
extent, but the story will also afford an instructive example of
the mode in which the law has grown, without a break, from
barbarism to civilization. Furthermore, it will throw much light
upon some important and peculiar doctrines which cannot be
returned to later.

A very common phenomenon, and one very familiar to the student of
history, is this. The customs, beliefs, or needs of a primitive
time establish a rule or a formula. In the course of centuries
the custom, belief, or necessity disappears, but the rule
remains. The reason which gave rise to the rule has been
forgotten, and ingenious minds set themselves to inquire how it
is to be accounted for. Some ground of policy is thought of,
which seems to explain it and to reconcile it with the present
state of things; and then the rule adapts itself to the new
reasons which have been found for it, and enters on a new career.
The old form receives a new content, and in time even the form
modifies itself to fit the meaning which it has received. The
subject under consideration illustrates this course of events
very clearly.

I will begin by taking a medley of examples embodying as many
distinct rules, each with its plausible and seemingly sufficient
ground of policy to explain it.

[6] A man has an animal of known ferocious habits, which escapes
and does his neighbor damage. He can prove that the animal
escaped through no negligence of his, but still he is held
liable. Why? It is, says the analytical jurist, because, although
he was not negligent at the moment of escape, he was guilty of
remote heedlessness, or negligence, or fault, in having such a
creature at all. And one by whose fault damage is done ought to
pay for it.

A baker's man, while driving his master's cart to deliver hot
rolls of a morning, runs another man down. The master has to pay
for it. And when he has asked why he should have to pay for the
wrongful act of an independent and responsible being, he has been
answered from the time of Ulpian to that of Austin, that it is
because he was to blame for employing an improper person. If he
answers, that he used the greatest possible care in choosing his
driver, he is told that that is no excuse; and then perhaps the
reason is shifted, and it is said that there ought to be a remedy
against some one who can pay the damages, or that such wrongful
acts as by ordinary human laws are likely to happen in the course
of the service are imputable to the service.

Next, take a case where a limit has been set to liability which
had previously been unlimited. In 1851, Congress passed a law,
which is still in force, and by which the owners of ships in all
the more common cases of maritime loss can surrender the vessel
and her freight then pending to the losers; and it is provided
that, thereupon, further proceedings against the owners shall
cease. The legislators to whom we owe this act argued that, if a
merchant embark a portion of his property upon a hazardous
venture, it is reasonable that his stake should be confined to
what [7] he puts at risk,--a principle similar to that on which
corporations have been so largely created in America during the
last fifty years.

It has been a rule of criminal pleading in England down into the
present century, that an indictment for homicide must set forth
the value of the instrument causing the death, in order that the
king or his grantee might claim forfeiture of the deodand, "as an
accursed thing," in the language of Blackstone.

I might go on multiplying examples; but these are enough to show
the remoteness of the points to be brought together.-- As a first
step towards a generalization, it will be necessary to consider
what is to be found in ancient and independent systems of law.

There is a well-known passage in Exodus, /1/ which we shall have
to remember later: "If an ox gore a man or a woman, that they
die: then the ox shall be surely stoned, and his flesh shah not
be eaten; but the owner of the ox shall be quit." When we turn
from the Jews to the Greeks, we find the principle of the passage
just quoted erected into a system. Plutarch, in his Solon, tells
us that a dog that had bitten a man was to be delivered up bound
to a log four cubits long. Plato made elaborate provisions in his
Laws for many such cases. If a slave killed a man, he was to be
given up to the relatives of the deceased. /2/ If he wounded a
man, he was to be given up to the injured party to use him as he
pleased. /3/ So if he did damage to which the injured party did
not contribute as a joint cause. In either case, if the owner [8]
failed to surrender the slave, he was bound to make good the
loss. /1/ If a beast killed a man, it was to be slain and cast
beyond the borders. If an inanimate thing caused death, it was to
be cast beyond the borders in like manner, and expiation was to
be made. /2/ Nor was all this an ideal creation of merely
imagined law, for it was said in one of the speeches of
Aeschines, that "we banish beyond our borders stocks and stones
and steel, voiceless and mindless things, if they chance to kill
a man; and if a man commits suicide, bury the hand that struck
the blow afar from its body." This is mentioned quite as an
every-day matter, evidently without thinking it at all
extraordinary, only to point an antithesis to the honors heaped
upon Demosthenes. /3/ As late as the second century after Christ
the traveller Pausanias observed with some surprise that they
still sat in judgment on inanimate things in the Prytaneum. /4/
Plutarch attributes the institution to Draco. /5/

In the Roman law we find the similar principles of the noxoe
deditio gradually leading to further results. The Twelve Tables
(451 B.C.) provided that, if an animal had done damage, either
the animal was to be surrendered or the damage paid for. /6/ We
learn from Gains that the same rule was applied to the torts of
children or slaves, /7/ and there is some trace of it with regard
to inanimate things.

The Roman lawyers, not looking beyond their own [9] system or
their own time, drew on their wits for an explanation which would
show that the law as they found it was reasonable. Gaius said
that it was unjust that the fault of children or slaves should be
a source of loss to their parents or owners beyond their own
bodies, and Ulpian reasoned that a fortiori this was true of
things devoid of life, and therefore incapable of fault. /1/ This
way of approaching the question seems to deal with the right of
surrender as if it were a limitation of a liability incurred by a
parent or owner, which would naturally and in the first instance
be unlimited. But if that is what was meant, it puts the cart
before the horse. The right of surrender was not introduced as a
limitation of liability, but, in Rome and Greece alike, payment
was introduced as the alternative of a failure to surrender.

The action was not based, as it would be nowadays, on the fault
of the parent or owner. If it had been, it would always have been
brought against the person who had control of the slave or animal
at the time it did the harm complained of, and who, if any one,
was to blame for not preventing the injury. So far from this
being the course, the person to be sued was the owner at the time
of suing. The action followed the guilty thing into whosesoever
hands it came. /2/ And in curious contrast with the principle as
inverted to meet still more modern views of public policy, if the
animal was of a wild nature, that is, in the very case of the
most ferocious animals, the owner ceased to be liable the moment
it escaped, because at that moment he ceased to be owner. /3/
There [10] seems to have been no other or more extensive
liability by the old law, even where a slave was guilty with his
master's knowledge, unless perhaps he was a mere tool in his
master's hands. /1/ Gains and Ulpian showed an inclination to cut
the noxoe deditio down to a privilege of the owner in case of
misdeeds committed without his knowledge; but Ulpian is obliged
to admit, that by the ancient law, according to Celsus, the
action was noxal where a slave was guilty even with the privity
of his master. /2/

All this shows very clearly that the liability of the owner was
merely a way of getting at the slave or animal which was the
immediate cause of offence. In other words, vengeance on the
immediate offender was the object of the Greek and early Roman
process, not indemnity from the master or owner. The liability of
the owner was simply a liability of the offending thing. In the
primitive customs of Greece it was enforced by a judicial process
expressly directed against the object, animate or inanimate. The
Roman Twelve Tables made the owner, instead of the thing itself,
the defendant, but did not in any way change the ground of
liability, or affect its limit. The change was simply a device to
allow the owner to protect his interest. /3/

But it may be asked how inanimate objects came to be [11] pursued
in this way, if the object of the procedure was to gratify the
passion of revenge. Learned men have been ready to find a reason
in the personification of inanimate nature common to savages and
children, and there is much to confirm this view. Without such a
personification, anger towards lifeless things would have been
transitory, at most. It is noticeable that the commonest example
in the most primitive customs and laws is that of a tree which
falls upon a man, or from which he falls and is killed. We can
conceive with comparative ease how a tree might have been put on
the same footing with animals. It certainly was treated like
them, and was delivered to the relatives, or chopped to pieces
for the gratification of a real or simulated passion. /1/

In the Athenian process there is also, no doubt, to be traced a
different thought. Expiation is one of the ends most insisted on
by Plato, and appears to have been the purpose of the procedure
mentioned by Aeschines. Some passages in the Roman historians
which will be mentioned again seem to point in the same
direction. /2/

Another peculiarity to be noticed is, that the liability seems to
have been regarded as attached to the body doing the damage, in
an almost physical sense. An untrained intelligence only
imperfectly performs the analysis by which jurists carry
responsibility back to the beginning of a chain of causation. The
hatred for anything giving us pain, which wreaks itself on the
manifest cause, and which leads even civilized man to kick a door
when it pinches his finger, is embodied in the noxoe deditio and
[12] other kindred doctrines of early Roman law. There is a
defective passage in Gaius, which seems to say that liability may
sometimes be escaped by giving up even the dead body of the
offender. /1/ So Livy relates that, Brutulus Papins having caused
a breach of truce with the Romans, the Samnites determined to
surrender him, and that, upon his avoiding disgrace and
punishment by suicide, they sent his lifeless body. It is
noticeable that the surrender seems to be regarded as the natural
expiation for the breach of treaty, /2/ and that it is equally a
matter of course to send the body when the wrong-doer has
perished. /3/

The most curious examples of this sort occur in the region of
what we should now call contract. Livy again furnishes an
example, if, indeed, the last is not one. The Roman Consul
Postumius concluded the disgraceful peace of the Caudine Forks
(per sponsionem, as Livy says, denying the common story that it
was per feedus), and he was sent to Rome to obtain the sanction
of the people. When there however, he proposed that the persons
who had made the [13] contract, including himself, should be
given up in satisfaction of it. For, he said, the Roman people
not having sanctioned the agreement, who is so ignorant of the
jus fetialium as not to know that they are released from
obligation by surrendering us? The formula of surrender seems to
bring the case within the noxoe deditio. /1/ Cicero narrates a
similar surrender of Mancinus by the pater-patratus to the
Numantines, who, however, like the Samnites in the former case,
refused to receive him. /2/

It might be asked what analogy could have been found between a
breach of contract and those wrongs which excite the desire for
vengeance. But it must be remembered that the distinction between
tort and breaches of contract, and especially between the
remedies for the two, is not found ready made. It is conceivable
that a procedure adapted to redress for violence was extended to
other cases as they arose. Slaves were surrendered for theft as
well as [14] for assault; /1/ and it is said that a debtor who
did not pay his debts, or a seller who failed to deliver an
article for which he had been paid, was dealt with on the same
footing as a thief. /2/ This line of thought, together with the
quasi material conception of legal obligations as binding the
offending body, which has been noticed, would perhaps explain the
well-known law of the Twelve Tables as to insolvent debtors.
According to that law, if a man was indebted to several creditors
and insolvent, after certain formalities they might cut up his
body and divide it among them. If there was a single creditor, he
might put his debtor to death or sell him as a slave. /3/

If no other right were given but to reduce a debtor to slavery,
the law might be taken to look only to compensation, and to be
modelled on the natural working of self-redress. /4/ The
principle of our own law, that taking a man's body on execution
satisfies the debt, although he is not detained an hour, seems to
be explained in that way. But the right to put to death looks
like vengeance, and the division of the body shows that the debt
was conceived very literally to inhere in or bind the body with a
vinculum juris.

Whatever may be the true explanation of surrender in connection
with contracts, for the present purpose we need not go further
than the common case of noxoe deditio for wrongs. Neither is the
seeming adhesion of liability to the very body which did the harm
of the first importance. [15] The Roman law dealt mainly with
living creatures,-- with animals and slaves. If a man was run
over, it did not surrender the wagon which crushed him, but the
ox which drew the wagon. /1/ At this stage the notion is easy to
understand. The desire for vengeance may be felt as strongly
against a slave as against a freeman, and it is not without
example nowadays that a like passion should be felt against an
animal. The surrender of the slave or beast empowered the injured
party to do his will upon them. Payment by the owner was merely a
privilege in case he wanted to buy the vengeance off.

It will readily be imagined that such a system as has been
described could not last when civilization had advanced to any
considerable height. What had been the privilege of buying off
vengeance by agreement, of paying the damage instead of
surrendering the body of the offender, no doubt became a general
custom. The Aquilian law, passed about a couple of centuries
later than the date of the Twelve Tables, enlarged the sphere of
compensation for bodily injuries. Interpretation enlarged the
Aquilian law. Masters became personally liable for certain wrongs
committed by their slaves with their knowledge, where previously
they were only bound to surrender the slave. /2/ If a pack-mule
threw off his burden upon a passer-by because he had been
improperly overloaded, or a dog which might have been restrained
escaped from his master and bit any one, the old noxal action, as
it was called, gave way to an action under the new law to enforce
a general personal liability. /3/ Still later, ship-owners and
innkeepers were made liable [16] as if they were wrong-doers for
wrongs committed by those in their employ on board ship or in the
tavern, although of course committed without their knowledge. The
true reason for this exceptional responsibility was the
exceptional confidence which was necessarily reposed in carriers
and innkeepers. /1/ But some of the jurists, who regarded the
surrender of children and slaves as a privilege intended to limit
liability, explained this new liability on the ground that the
innkeeper or ship-owner was to a certain degree guilty of
negligence in having employed the services of bad men? This was
the first instance of a master being made unconditionally liable
for the wrongs of his servant. The reason given for it was of
general application, and the principle expanded to the scope of
the reason.

The law as to ship-owners and innkeepers introduced another and
more startling innovation. It made them responsible when those
whom they employed were free, as well as when they were slaves.
/3/ For the first time one man was made answerable for the wrongs
of another who was also answerable himself, and who had a
standing before the law. This was a great change from the bare
permission to ransom one's slave as a privilege. But here we have
the history of the whole modern doctrine of master and servant,
and principal and agent. All servants are now as free and as
liable to a suit as their masters. Yet the principle introduced
on special grounds in a special case, when servants were slaves,
is now the general law of this country and England, and under it
men daily have to pay large sums for other people's acts, in
which they had no part and [17] for which they are in no sense to
blame. And to this day the reason offered by the Roman jurists
for an exceptional rule is made to justify this universal and
unlimited responsibility. /1/

So much for one of the parents of our common law. Now let us turn
for a moment to the Teutonic side. The Salic Law embodies usages
which in all probability are of too early a date to have been
influenced either by Rome or the Old Testament. The thirty-sixth
chapter of the ancient text provides that, if a man is killed by
a domestic animal, the owner of the animal shall pay half the
composition (which he would have had to pay to buy off the blood
feud had he killed the man himself), and for the other half give
up the beast to the complainant. /2/ So, by chapter thirty-five,
if a slave killed a freeman, he was to be surrendered for one
half of the composition to the relatives of the slain man, and
the master was to pay the other half. But according to the gloss,
if the slave or his master had been maltreated by the slain man
or his relatives, the master had only to surrender the slave. /3/
It is interesting to notice that those Northern sources which
Wilda takes to represent a more primitive stage of German law
confine liability for animals to surrender alone. /4/ There is
also a trace of the master's having been able to free himself in
some cases, at a later date, by showing that the slave was no
longer in [18] his possession. /1/ There are later provisions
making a master liable for the wrongs committed by his slave by
his command. /2/ In the laws adapted by the Thuringians from the
earlier sources, it is provided in terms that the master is to
pay for all damage done by his slaves. /4/

In short, so far as I am able to trace the order of development
in the customs of the German tribes, it seems to have been
entirely similar to that which we have already followed in the
growth of Roman law. The earlier liability for slaves and animals
was mainly confined to surrender; the later became personal, as
at Rome.

The reader may begin to ask for the proof that all this has any
bearing on our law of today. So far as concerns the influence of
the Roman law upon our own, especially the Roman law of master
and servant, the evidence of it is to be found in every book
which has been written for the last five hundred years. It has
been stated already that we still repeat the reasoning of the
Roman lawyers, empty as it is, to the present day. It will be
seen directly whether the German folk-laws can also be followed
into England.

In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it
is said, "If any one's slave slay a freeman, whoever it be, let
the owner pay with a hundred shillings, give up the slayer," &c.
/1/ There are several other similar provisions. In the nearly
contemporaneous laws of Ine, the surrender and payment are simple
alternatives. "If a Wessex slave slay an Englishman, then shall
he who owns him deliver him up to the lord and the kindred, or
give sixty shillings for his life." /2/ Alfred's laws (A.D.
871-901) have a like provision as to cattle. "If a neat wound a
man, let the neat be delivered up or compounded for." /3/ And
Alfred, although two hundred years later than the first English
lawgivers who have been quoted, seems to have gone back to more
primitive notions than we find before his time. For the same
principle is extended to the case of a tree by which a man is
killed. "If, at their common work, one man slay another
unwilfully, let the tree be given to the kindred, and let them
have it off the land within thirty nights. Or let him take
possession of it who owns the wood." /4/

It is not inapposite to compare what Mr. Tylor has mentioned
concerning the rude Kukis of Southern Asia. "If a tiger killed a
Kuki, his family were in disgrace till they had retaliated by
killing and eating this tiger, or another; but further, if a man
was killed by a fall from a tree, his relatives would take their
revenge by cutting the tree down, and scattering it in chips."
/5/

To return to the English, the later laws, from about a hundred
years after Alfred down to the collection known as the laws of
Henry I, compiled long after the Conquest, [20] increase the
lord's liability for his household, and make him surety for his
men's good conduct. If they incur a fine to the king and run
away, the lord has to pay it unless he can clear himself of
complicity. But I cannot say that I find until a later period the
unlimited liability of master for servant which was worked out on
the Continent, both by the German tribes and at Rome. Whether the
principle when established was an indigenous growth, or whether
the last step was taken under the influence of the Roman law, of
which Bracton made great use, I cannot say. It is enough that the
soil was ready for it, and that it took root at an early day. /1/
This is all that need be said here with regard to the liability
of a master for the misdeeds of his servants.

It is next to be shown what became of the principle as applied to
animals. Nowadays a man is bound at his peril to keep his cattle
from trespassing, and he is liable for damage done by his dog or
by any fierce animal, if he has notice of a tendency in the brute
to do the harm complained of. The question is whether any
connection can be established between these very sensible and
intelligible rules of modern law and the surrender directed by
King Alfred.

Let us turn to one of the old books of the Scotch law, where the
old principle still appears in full force and is stated with its
reasons as then understood, /2/

"Gif ane wylde or head-strang horse, carries ane man [21] against
his will over an craig, or heuch, or to the water, and the man
happin to drowne, the horse sall perteine to the king as escheit.

"Bot it is otherwise of ane tame and dantoned horse; gif any man
fulishlie rides, and be sharp spurres compelles his horse to take
the water, and the man drownes, the horse sould not be escheit,
for that comes be the mans fault or trespasse, and not of the
horse, and the man has receaved his punishment, in sa farre as he
is perished and dead; and the horse quha did na fault, sould not
be escheit.

"The like reason is of all other beastes, quhilk slayes anie man,
[it is added in a later work, "of the quhilk slaughter they haue
gilt,"] for all these beasts sould be escheit." /1/

"The Forme and Maner of Baron Courts" continues as follows: --

"It is to witt, that this question is asked in the law, Gif ane
lord hes ane milne, and any man fall in the damne, and be borne
down with the water quhill he comes to the quheill, and there be
slaine to death with the quheill; quhither aught the milne to be
eseheir or not? The law sayes thereto nay, and be this reason,
For it is ane dead thing, and ane dead thing may do na fellony,
nor be made escheit throw their gilt. Swa the milne in this case
is not culpable, and in the law it is lawfull to the lord of the
land to haue ane mylne on his awin water quhere best likes him."
/2/

The reader will see in this passage, as has been remarked already
of the Roman law, that a distinction is taken between things
which are capable of guilt and those which [22] are not,--between
living and dead things; but he will also see that no difficulty
was felt in treating animals as guilty.

Take next an early passage of the English law, a report of what
was laid down by one of the English judges. In 1333 it was stated
for law, that, "if my dog kills your sheep, and I, freshly after
the fact, tender you the dog, you are without recovery against
me." /l / More than three centuries later, in 1676, it was said
by Twisden, J. that, "if one hath kept a tame fox, which gets
loose and grows wild, he that hath kept him before shall not
answer for the damage the fox doth after he hath lost him, and he
hath resumed his wild nature." /2/ It is at least doubtful
whether that sentence ever would have been written but for the
lingering influence of the notion that the ground of the owner's
liability was his ownership of the offending: thing and his
failure to surrender it. When the fox escaped, by another
principle of law the ownership was at an end. In fact, that very
consideration was seriously pressed in England as late as 1846,
with regard to a monkey which escaped and bit the plaintiff, /3/
So it seems to be a reasonable conjecture, that it was this way
of thinking which 1ed Lord Holt, near the beginning of the last
century, to intimate that one ground on which a man is bound at
his peril to restrain cattle from trespassing is that he has
valuable property in such animals, whereas he has not dogs, for
which his responsibility is less. /4/ To this day, in fact,
cautious judges state the law as to cattle to be, that, "if I am
the owner of an animal in which by law the [23] right of property
can exist, I am bound to take care that it does not stray into
the land of my neighbor." /1/

I do not mean that our modern law on this subject is only a
survival, and that the only change from primitive notions was to
substitute the owner for the offending animal. For although it is
probable that the early law was one of the causes which led to
the modern doctrine, there has been too much good sense in every
stage of our law to adopt any such sweeping consequences as would
follow from the wholesale transfer of liability supposed. An
owner is not bound at his peril to keep his cattle from harming
his neighbor's person. /2/ And in some of the earliest instances
of personal liability, even for trespass on a neighbor's land,
the ground seems to have been the owner's negligence. /3/

It is the nature of those animals which the common law recognizes
as the subject of ownership to stray, and when straying to do
damage by trampling down and eating crops. At the same time it is
usual and easy to restrain them. On the other hand, a dog, which
is not the subject of property, does no harm by simply crossing
the land of others than its owner. Hence to this extent the new
law might have followed the old. The right of property in the
[24] offending animal, which was the ancient ground of
responsibility, might have been adopted safely enough as the test
of a liability based on the fault of the owner. But the
responsibility for damage of a kind not to be expected from such
animals is determined on grounds of policy comparatively little
disturbed by tradition. The development of personal liability for
fierce wild animals at Rome has been explained. Our law seems to
have followed the Roman.

We will now follow the history of that branch of the primitive
notion which was least likely to survive,--the liability of
inanimate things.

It will be remembered that King Alfred ordained the surrender of
a tree, but that the later Scotch law refused it because a dead
thing could not have guilt. It will be remembered, also, that the
animals which the Scotch law forfeited were escheat to the king.
The same thing has remained true in England until well into this
century, with regard even to inanimate objects. As long ago as
Bracton, /1/ in case a man was slain, the coroner was to value
the object causing the death, and that was to be forfeited sa
deodand "pro rege." It was to be given to God, that is to say to
the Church, for the king, to be expended for the good of his
soul. A man's death had ceased to be the private affair of his
friends as in the time of the barbarian folk-laws. The king, who
furnished the court, now sued for the penalty. He supplanted the
family in the claim on the guilty thing, and the Church
supplanted him.

In Edward the First's time some of the cases remind of the
barbarian laws at their rudest stage. If a man fell from a tree,
the tree was deodand. /2/ If he drowned in a [25] well, the well
was to be filled up. /1/ It did not matter that the forfeited
instrument belonged to an innocent person." Where a man killeth
another with the sword of John at Stile, the sword shall be
forfeit as deodand, and yet no default is in the owner." /2/ That
is from a book written in the reign of Henry VIII., about 1530.
And it has been repeated from Queen Elizabeth's time /3/ to
within one hundred years, /4/ that if my horse strikes a man, and
afterwards I sell my horse, and after that the man dies, the
horse shall be forfeited. Hence it is, that, in all indictments
for homicide, until very lately it has been necessary to state
the instrument causing the death and its value, as that the
stroke was given by a certain penknife, value sixpence, so as to
secure the forfeiture. It is said that a steam-engine has been
forfeited in this way.

I now come to what I regard as the most remarkable transformation
of this principle, and one which is a most important factor in
our law as it is today. I must for the moment leave the common
law and take up the doctrines of the Admiralty. In the early
books which have just been referred to, and long afterwards, the
fact of motion is adverted to as of much importance. A maxim of
Henry Spigurnel, a judge in the time of Edward I., is reported,
that "where a man is killed by a cart, or by the fall of a house,
or in other like manner, and the thing in motion is the cause of
the death, it shall be deodand." /5/ So it was [26] said in the
next reign that "oinne illud quod mover cum eo quod occidit
homines deodandum domino Regi erit, vel feodo clerici." /l / The
reader sees how motion gives life to the object forfeited.

The most striking example of this sort is a ship. And accordingly
the old books say that, if a man falls from a ship and is
drowned, the motion of the ship must be taken to cause the death,
and the ship is forfeited, -- provided, however, that this
happens in fresh water. /2/ For if the death took place on the
high seas, that was outside the ordinary jurisdiction. This
proviso has been supposed to mean that ships at sea were not
forfeited; /3/ but there is a long series of petitions to the
king in Parliament that such forfeitures may be done away with,
which tell a different story. /4/ The truth seems to be that the
forfeiture took place, but in a different court. A manuscript of
the reign of Henry VI., only recently printed, discloses the fact
that, if a man was killed or drowned at sea by the motion of the
ship, the vessel was forfeited to the admiral upon a proceeding
in the admiral's court, and subject to release by favor of the
admiral or the king. /5/

A ship is the most living of inanimate things. Servants sometimes
say "she" of a clock, but every one gives a gender to vessels.
And we need not be surprised, therefore, to find a mode of
dealing which has shown such extraordinary vitality in the
criminal law applied with even more striking thoroughness in the
Admiralty. It is only by supposing [27] the ship to have been
treated as if endowed with personality, that the arbitrary
seeming peculiarities of the maritime law can be made
intelligible, and on that supposition they at once become
consistent and logical.

By way of seeing what those peculiarities are, take first a case
of collision at sea. A collision takes place between two vessels,
the Ticonderoga and the Melampus, through the fault of the
Ticonderoga alone. That ship is under a lease at the time, the
lessee has his own master in charge, and the owner of the vessel
has no manner of control over it. The owner, therefore, is not to
blame, and he cannot even be charged on the ground that the
damage was done by his servants. He is free from personal
liability on elementary principles. Yet it is perfectly settled
that there is a lien on his vessel for the amount of the damage
done, /1/ and this means that that vessel may be arrested and
sold to pay the loss in any admiralty court whose process will
reach her. If a livery-stable keeper lets a horse and wagon to a
customer, who runs a man down by careless driving, no one would
think of claiming a right to seize the horse and wagon. It would
be seen that the only property which could be sold to pay for a
wrong was the property of the wrong-doer.

But, again, suppose that the vessel, instead of being under
lease, is in charge of a pilot whose employment is made
compulsory by the laws of the port which she is just entering.
The Supreme Court of the United States holds the ship liable in
this instance also. /2/ The English courts would probably have
decided otherwise, and the matter is settled in England by
legislation. But there the court of appeal, the Privy Council,
has been largely composed of common-law [28]lawyers, and it has
shown a marked tendency to assimilate common-law doctrine. At
common law one who could not impose a personal liability on the
owner could not bind a particular chattel to answer for a wrong
of which it had been the instrument. But our Supreme Court has
long recognized that a person may bind a ship, when he could not
bind the owners personally, because he was not the agent.

It may be admitted that, if this doctrine were not supported by
an appearance of good sense, it would not have survived. The ship
is the only security available in dealing with foreigners, and
rather than send one's own citizens to search for a remedy abroad
in strange courts, it is easy to seize the vessel and satisfy the
claim at home, leaving the foreign owners to get their indemnity
as they may be able. I dare say some such thought has helped to
keep the practice alive, but I believe the true historic
foundation is elsewhere. The ship no doubt, like a sword would
have been forfeited for causing death, in whosesoever hands it
might have been. So, if the master and mariners of a ship,
furnished with letters of reprisal, committed piracy against a
friend of the king, the owner lost his ship by the admiralty law,
although the crime was committed without his knowledge or assent.
/2/ It seems most likely that the principle by which the ship was
forfeited to the king for causing death, or for piracy, was the
same as that by which it was bound to private sufferers for other
damage, in whose hands soever it might have been when it did the
harm.

If we should say to an uneducated man today, "She did it and she
ought to pay for it," it may be doubted [29] whether he would see
the fallacy, or be ready to explain that the ship was only
property, and that to say, "The ship has to pay for it," /1/ was
simply a dramatic way of saying that somebody's property was to
be sold, and the proceeds applied to pay for a wrong committed by
somebody else.

It would seem that a similar form of words has been enough to
satisfy the minds of great lawyers. The following is a passage
from a judgment by Chief Justice Marshall, which is quoted with
approval by Judge Story in giving the opinion of the Supreme
Court of the United States: "This is not a proceeding against the
owner; it is a proceeding against the vessel for an offence
committed by the vessel; which is not the less an offence, and
does not the less subject her to forfeiture, because it was
committed without the authority and against the will of the
owner. It is true that inanimate matter can commit no offence.
But this body is animated and put in action by the crew, who are
guided by the master. The vessel acts and speaks by the master.
She reports herself by the master. It is, therefore, not
unreasonable that the vessel should be affected by this report."
And again Judge Story quotes from another case: "The thing is
here primarily considered as the offender, or rather the offence
is primarily attached to the thing." /2/

In other words, those great judges, although of course aware that
a ship is no more alive than a mill-wheel, thought that not only
the law did in fact deal with it as if it were alive, but that it
was reasonable that the law should do so. The reader will observe
that they do not say simply that it is reasonable on grounds of
policy to [30] sacrifice justice to the owner to security for
somebody else but that it is reasonable to deal with the vessel
as an offending thing. Whatever the hidden ground of policy may
be, their thought still clothes itself in personifying language.

Let us now go on to follow the peculiarities of the maritime law
in other directions. For the cases which have been stated are
only parts of a larger whole.

By the maritime law of the Middle Ages the ship was not only the
source, but the limit, of liability. The rule already prevailed,
which has been borrowed and adopted by the English statutes and
by our own act of Congress of 1851, according to which the owner
is discharged from responsibility for wrongful acts of a master
appointed by himself upon surrendering his interest in the vessel
and the freight which she had earned. By the doctrines of agency
he would be personally liable for the whole damage. If the origin
of the system of limited liability which is believed to be so
essential to modern commerce is be attributed to those
considerations of public policy on which it would now be
sustained, that system has nothing to do with the law of
collision. But if the limit of liability here stands on the same
ground as the noxoe deditio, confirms the explanation already
given of the liability of the ship for wrongs done by it while
out of the owner's hands, and conversely existence of that
liability confirms the argument here.

Let us now take another rule, for which, as usual, there is a
plausible explanation of policy. Freight, it is said, the mother
of wages; for, we are told, "if the ship perished, [31] if the
mariners were to have their wages in such cases, they would not
use their endeavors, nor hazard their lives, for the safety of
the ship." /1/ The best commentary on this reasoning is, that the
law has recently been changed by statute. But even by the old law
there was an exception inconsistent with the supposed reason. In
case of shipwreck, which was the usual case of a failure to earn
freight, so long as any portion of the ship was saved, the lien
of the mariners remained. I suppose it would have been said,
because it was sound policy to encourage them to save all they
could. If we consider that the sailors were regarded as employed
by the ship, we shall under- stand very readily both the rule and
the exception. "The ship is the debtor," as was said in arguing a
case decided in the time of William III. /2/ If the debtor
perished, there was an end of the matter. If a part came ashore,
that might be proceeded against.

Even the rule in its modern form, that freight is the mother of
wages, is shown by the explanation commonly given to have
reference to the question whether the ship is lost or arrive
safe. In the most ancient source of the maritime law now extant,
which has anything about the matter, so far as I have been able
to discover, the statement is that the mariners will lose their
wages when the ship is lost. /3/ In like manner, in what is said
by its English [32] editor, Sir Travers Twiss, to be the oldest
part of the Consulate of the Sea, /1/ we read that "whoever the
freighter may be who runs away or dies, the ship is bound to pay:
the mariners." /2/ I think we may assume that the vessel was
bound by the contract with the sailors, much in the same way as
it was by the wrongs for which it was answerable, just as the
debtor's body was answerable for his debts, as well as for his
crimes, under the ancient law of Rome.

The same thing is true of other maritime dealings with the
vessel, whether by way of contract or otherwise. If salvage
service is rendered to a vessel, the admiralty court will hold
the vessel, although it has been doubted whether an action of
contract would lie, if the owners were sued at law. So the ship
is bound by the master's contract to carry cargo, just as in case
of collision, although she was under lease at the time. In such
cases, also, according to our Supreme Court, the master may bind
the vessel when he cannot bind the general owners. /4/ "By custom
the ship is bound to the merchandise, and the merchandise to the
ship." /5/ "By the maritime law every contract of the master
implies an hypothecation." /6/ It might be urged, no doubt, with
force, that, so far as the usual maritime contracts are
concerned, the dealing must be on the security of the ship or
merchandise in many cases, and therefore [33] that it is policy
to give this security in all cases; that the risk to which it
subjects ship-owners is calculable, and that they must take it
into account when they let their vessels. Again, in many cases,
when a party asserts a maritime lien by way of contract, he has
improved the condition of the thing upon which the lien is
claimed, and this has been recognized as a ground for such a lien
in some systems. But this is not true universally, nor in the
most important cases. It must be left to the reader to decide
whether ground has not been shown for believing that the same
metaphysical confusion which naturally arose as to the ship's
wrongful acts, affected the way of thinking as to her contracts.
The whole manner of dealing with vessels obviously took the form
which prevailed in the eases first mentioned. Pardessus, a high
authority, says that the lien for freight prevails even against
the owner of stolen goods, "as the master deals less with the
person than the thing." /2/ So it was said in the argument of a
famous English case, that "the ship is instead of the owner, and
therefore is answerable." /3/ In many cases of contract, as well
as tort, the vessel was not only the security for the debt, but
the limit of the owner's liability.

The principles of the admiralty are embodied in its form of
procedure. A suit may be brought there against a vessel by name,
any person interested in it being at liberty to come in and
defend, but the suit, if successful, ending in a sale of the
vessel and a payment of the plaintiff's claim out of the
proceeds. As long ago as the time of James I. it was said that
"the libel ought to be only [34] against the ship and goods, and
not against the party." /1/ And authority for the statement was
cited from the reign of Henry VI., the same reign when, as we
have seen, the Admiral claimed a forfeiture of ships for causing
death. I am bound to say, however, that I cannot find such an
authority of that date.

We have now followed the development of the chief forms of
liability in modern law for anything other than the immediate and
manifest consequences of a man's own acts. We have seen the
parallel course of events in the two parents,--the Roman law and
the German customs, and in the offspring of those two on English
soil with regard to servants, animals, and inanimate things. We
have seen a single germ multiplying and branching into products
as different from each other as the flower from the root. It
hardly remains to ask what that germ was. We have seen that it
was the desire of retaliation against the offending thing itself.
Undoubtedly, it might be argued that many of the rules stated
were derived from a seizure of the offending thing as security
for reparation, at first, perhaps, outside the law. That
explanation, as well as the one offered here; would show that
modern views of responsibility had not yet been attained, as the
owner of the thing might very well not have been the person in
fault. But such has not been the view of those most competent to
judge. A consideration of the earliest instances will show, as
might have been expected, that vengeance, not compensation, and
vengeance on the offending thing, was the original object. The ox
in Exodus was to be stoned. The axe in the Athenian law was to be
banished. The tree, in Mr. Tylor's instance, was to be chopped to
pieces. The [35] slave under all the systems was to be
surrendered to the relatives of the slain man, that they might do
with him what they liked. /1/ The deodand was an accursed thing.
The original limitation of liability to surrender, when the owner
was before the court, could not be accounted for if it was his
liability, and not that of his property, which was in question.
Even where, as in some of the cases, expiation seems to be
intended rather than vengeance, the object is equally remote from
an extrajudicial distress.

The foregoing history, apart from the purposes for which it has
been given, well illustrates the paradox of form and substance in
the development of law. In form its growth is logical. The
official theory is that each new decision follows syllogistically
from existing precedents. But just as the clavicle in the cat
only tells of the existence of some earlier creature to which a
collar-bone was useful, precedents survive in the law long after
the use they once served is at an end and the reason for them has
been forgotten. The result of following them must often be
failure and confusion from the merely logical point of view.

On the other hand, in substance the growth of the law is
legislative. And this in a deeper sense than that what the courts
declare to have always been the law is in fact new. It is
legislative in its grounds. The very considerations which judges
most rarely mention, and always with an apology, are the secret
root from which the law draws all the juices of life. I mean, of
course, considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy; most generally, to
be sure, [36] under our practice and traditions, the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the last
analysis. And as the law is administered by able and experienced
men, who know too much to sacrifice good sense to a syllogism, it
will be found that, when ancient rules maintain themselves in the
way that has been and will be shown in this book, new reasons
more fitted to the time have been found for them, and that they
gradually receive a new content, and at last a new form, from the
grounds to which they have been transplanted.

But hitherto this process has been largely unconscious. It is
important, on that account, to bring to mind what the actual
course of events has been. If it were only to insist on a more
conscious recognition of the legislative function of the courts,
as just explained, it would be useful, as we shall see more
clearly further on. /1/

What has been said will explain the failure of all theories which
consider the law only from its formal side; whether they attempt
to deduce the corpus from a priori postulates, or fall into the
humbler error of supposing the science of the law to reside in
the elegantia juris, or logical cohesion of part with part. The
truth is, that the law always approaching, and never reaching,
consistency. It is forever adopting new principles from life at
one end, and it always retains old ones from history at the
other, which have not yet been absorbed or sloughed off. It will
be come entirely consistent only when it ceases to grow.

The study upon which we have been engaged is necessary both for
the knowledge and for the revision of the law. [37] However much
we may codify the law into a series of seemingly self-sufficient
propositions, those propositions will be but a phase in a
continuous growth. To understand their scope fully, to know how
they will be dealt with by judges trained in the past which the
law embodies, we must ourselves know something of that past. The
history of what the law has been is necessary to the knowledge of
what the law is.

Again, the process which I have described has involved the
attempt to follow precedents, as well as to give a good reason
for them. When we find that in large and important branches of
the law the various grounds of policy on which the various rules
have been justified are later inventions to account for what are
in fact survivals from more primitive times, we have a right to
reconsider the popular reasons, and, taking a broader view of the
field, to decide anew whether those reasons are satisfactory.
They may be, notwithstanding the manner of their appearance. If
truth were not often suggested by error, if old implements could
not be adjusted to new uses, human progress would be slow. But
scrutiny and revision are justified.

But none of the foregoing considerations, nor the purpose of
showing the materials for anthropology contained in the history
of the law, are the immediate object here. My aim and purpose
have been to show that the various forms of liability known to
modern law spring from the common ground of revenge. In the
sphere of contract the fact will hardly be material outside the
cases which have been stated in this Lecture. But in the criminal
law and the law of torts it is of the first importance. It shows
that they have started from a moral basis, from the thought that
some one was to blame.

[38] It remains to be proved that, while the terminology of
morals is still retained, and while the law does still and
always, in a certain sense, measure legal liability by moral
standards, it nevertheless, by the very necessity of its nature,
is continually transmuting those moral standards into external or
objective ones, from which the actual guilt of the party
concerned is wholly eliminated.

LECTURE II.

THE CRIMINAL LAW.

In the beginning of the first Lecture it was shown that the
appeals of the early law were directed only to intentional
wrongs. The appeal was a far older form of procedure than the
indictment, and may be said to have had a criminal as well as a
civil aspect. It had the double object of satisfying the private
party for his loss, and the king for the breach of his peace. On
its civil side it was rooted in vengeance. It was a proceeding to
recover those compositions, at first optional, afterwards
compulsory, by which a wrong-doer bought the spear from his side.
Whether, so far as concerned the king, it had the same object of
vengeance, or was more particularly directed to revenue, does not
matter, since the claim of the king did not enlarge the scope of
the action.

It would seem to be a fair inference that indictable offences
were originally limited in the same way as those which gave rise
to an appeal. For whether the indictment arose by a splitting up
of the appeal, or in some other way, the two were closely
connected.

An acquittal of the appellee on the merits was a bar to an
indictment; and, on the other hand, when an appeal was fairly
started, although the appellor might fail to prosecute, or might
be defeated by plea, the cause might still be proceeded with on
behalf of the king. /1/

[40] The presentment, which is the other parent of our criminal
procedure, had an origin distinct from the appeal. If, as has
been thought, it was merely the successor of fresh suit and lynch
law, /1/ this also is the child of vengeance, even more clearly
than the other.

The desire for vengeance imports an opinion that its object is
actually and personally to blame. It takes an internal standard,
not an objective or external one, and condemns its victim by
that. The question is whether such a standard is still accepted
either in this primitive form, or in some more refined
development, as is commonly supposed, and as seems not
impossible, considering the relative slowness with which the
criminal law has improved.

It certainly may be argued, with some force, that it has never
ceased to be one object of punishment to satisfy the desire for
vengeance. The argument will be made plain by considering those
instances in which, for one reason or another, compensation for a
wrong is out of the question.

Thus an act may be of such a kind as to make indemnity impossible
by putting an end to the principal sufferer, as in the case of
murder or manslaughter.

Again, these and other crimes, like forgery, although directed
against an individual, tend to make others feel unsafe, and this
general insecurity does not admit of being paid for.

Again, there are cases where there are no means of enforcing
indemnity. In Macaulay's draft of the Indian Penal Code, breaches
of contract for the carriage of passengers, were made criminal.
The palanquin-bearers of India were too poor to pay damages, and
yet had to be [41] trusted to carry unprotected women and
children through wild and desolate tracts, where their desertion
would have placed those under their charge in great danger.

In all these cases punishment remains as an alternative. A pain
can be inflicted upon the wrong-doer, of a sort which does not
restore the injured party to his former situation, or to another
equally good, but which is inflicted for the very purpose of
causing pain. And so far as this punishment takes the place of
compensation, whether on account of the death of the person to
whom the wrong was done, the indefinite number of persons
affected, the impossibility of estimating the worth of the
suffering in money, or the poverty of the criminal, it may be
said that one of its objects is to gratify the desire for
vengeance. The prisoner pays with his body.

The statement may be made stronger still, and it may be said, not
only that the law does, but that it ought to, make the
gratification of revenge an object. This is the opinion, at any
rate, of two authorities so great, and so opposed in other views,
as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says,
"The criminal law stands to the passion of revenge in much the
same relation as marriage to the sexual appetite." /2/

The first requirement of a sound body of law is, that it should
correspond with the actual feelings and demands of the community,
whether right or wrong. If people would gratify the passion of
revenge outside of the law, if the law did not help them, the law
has no choice but to satisfy the craving itself, and thus avoid
the greater evil of private [42] retribution. At the same time,
this passion is not one which we encourage, either as private
individuals or as lawmakers. Moreover, it does not cover the
whole ground. There are crimes which do not excite it, and we
should naturally expect that the most important purposes of
punishment would be coextensive with the whole field of its
application. It remains to be discovered whether such a general
purpose exists, and if so what it is. Different theories still
divide opinion upon the subject.

It has been thought that the purpose of punishment is to reform
the criminal; that it is to deter the criminal and others from
committing similar crimes; and that it is retribution. Few would
now maintain that the first of these purposes was the only one.
If it were, every prisoner should be released as soon as it
appears clear that he will never repeat his offence, and if he is
incurable he should not be punished at all. Of course it would be
hard to reconcile the punishment of death with this doctrine.

The main struggle lies between the other two. On the one side is
the notion that there is a mystic bond between wrong and
punishment; on the other, that the infliction of pain is only a
means to an end. Hegel, one of the great expounders of the former
view, puts it, in his quasi mathematical form, that, wrong being
the negation of right, punishment is the negation of that
negation, or retribution. Thus the punishment must be equal, in
the sense of proportionate to the crime, because its only
function is to destroy it. Others, without this logical
apparatus, are content to rely upon a felt necessity that
suffering should follow wrong-doing.

It is objected that the preventive theory is immoral, because it
overlooks the ill-desert of wrong-doing, and furnishes [43] no
measure of the amount of punishment, except the lawgiver's
subjective opinion in regard to the sufficiency of the amount of
preventive suffering. /1/ In the language of Kant, it treats man
as a thing, not as a person; as a means, not as an end in
himself. It is said to conflict with the sense of justice, and to
violate the fundamental principle of all free communities, that
the members of such communities have equal rights to life,
liberty, and personal security. /2/

In spite of all this, probably most English-speaking lawyers
would accept the preventive theory without hesitation. As to the
violation of equal rights which is charged, it may be replied
that the dogma of equality makes an equation between individuals
only, not between an individual and the community. No society has
ever admitted that it could not sacrifice individual welfare to
its own existence. If conscripts are necessary for its army, it
seizes them, and marches them, with bayonets in their rear, to
death. It runs highways and railroads through old family places
in spite of the owner's protest, paying in this instance the
market value, to be sure, because no civilized government
sacrifices the citizen more than it can help, but still
sacrificing his will and his welfare to that of the rest. /3/

If it were necessary to trench further upon the field of morals,
it might be suggested that the dogma of equality applied even to
individuals only within the limits of ordinary dealings in the
common run of affairs. You cannot argue with your neighbor,
except on the admission for the [44] moment that he is as wise as
you, although you may by no means believe it. In the same way,
you cannot deal with him, where both are free to choose, except
on the footing of equal treatment, and the same rules for both.
The ever-growing value set upon peace and the social relations
tends to give the law of social being the appearance of the law
of all being. But it seems to me clear that the ultima ratio, not
only regum, but of private persons, is force, and that at the
bottom of all private relations, however tempered by sympathy and
all the social feelings, is a justifiable self-preference. If a
man is on a plank in the deep sea which will only float one, and
a stranger lays hold of it, he will thrust him off if he can.
When the state finds itself in a similar position, it does the
same thing.

The considerations which answer the argument of equal rights also
answer the objections to treating man as a thing, and the like.
If a man lives in society, he is liable to find himself so
treated. The degree of civilization which a people has reached,
no doubt, is marked by their anxiety to do as they would be done
by. It may be the destiny of man that the social instincts shall
grow to control his actions absolutely, even in anti-social
situations. But they have not yet done so, and as the rules of
law are or should be based upon a morality which is generally
accepted, no rule founded on a theory of absolute unselfishness
can be laid down without a breach between law and working
beliefs.

If it be true, as I shall presently try to show, that the general
principles of criminal and civil liability are the same, it will
follow from that alone that theory and fact agree in frequently
punishing those who have been guilty [45] of no moral wrong, and
who could not be condemned by any standard that did not avowedly
disregard the personal peculiarities of the individuals
concerned. If punishment stood on the moral grounds which are
proposed for it, the first thing to be considered would be those
limitations in the capacity for choosing rightly which arise from
abnormal instincts, want of education, lack of intelligence, and
all the other defects which are most marked in the criminal
classes. I do not say that they should not be, or at least I do
not need to for my argument. I do not say that the criminal law
does more good than harm. I only say that it is not enacted or
administered on that theory.

There remains to be mentioned the affirmative argument in favor
of the theory of retribution, to the effect that the fitness of
punishment following wrong-doing is axiomatic, and is
instinctively recognized by unperverted minds. I think that it
will be seen, on self-inspection, that this feeling of fitness is
absolute and unconditional only in the case of our neighbors. It
docs not seem to me that any one who has satisfied himself that
an act of his was wrong, and that he will never do it again,
would feel the least need or propriety, as between himself and an
earthly punishing power alone, of his being made to suffer for
what he had done, although, when third persons were introduced,
he might, as a philosopher, admit the necessity of hurting him to
frighten others. But when our neighbors do wrong, we sometimes
feel the fitness of making them smart for it, whether they have
repented or not. The feeling of fitness seems to me to be only
vengeance in disguise, and I have already admitted that vengeance
was an element, though not the chief element, of punishment.

[46] But, again, the supposed intuition of fitness does not seem
to me to be coextensive with the thing to be accounted for. The
lesser punishments are just as fit for the lesser crimes as the
greater for the greater. The demand that crime should be followed
by its punishment should therefore be equal and absolute in both.
Again, a malum prohibitum is just as much a crime as a malum in
se. If there is any general ground for punishment, it must apply
to one case as much as to the other. But it will hardly be said
that, if the wrong in the case just supposed consisted of a
breach of the revenue laws, and the government had been
indemnified for the loss, we should feel any internal necessity
that a man who had thoroughly repented of his wrong should be
punished for it, except on the ground that his act was known to
others. If it was known, the law would have to verify its threats
in order that others might believe and tremble. But if the fact
was a secret between the sovereign and the subject, the
sovereign, if wholly free from passion, would undoubtedly see
that punishment in such a case was wholly without justification.

On the other hand, there can be no case in which the law-maker
makes certain conduct criminal without his thereby showing a wish
and purpose to prevent that conduct. Prevention would accordingly
seem to be the chief and only universal purpose of punishment.
The law threatens certain pains if you do certain things,
intending thereby to give you a new motive for not doing them. If
you persist in doing them, it has to inflict the pains in order
that its threats may continue to be believed.

If this is a true account of the law as it stands, the law does
undoubtedly treat the individual as a means to an [47] end, and
uses him as a tool to increase the general welfare at his own
expense. It has been suggested above, that this course is
perfectly proper; but even if it is wrong, our criminal law
follows it, and the theory of our criminal law must be shaped
accordingly.

Further evidence that our law exceeds the limits of retribution,
and subordinates consideration of the individual to that of the
public well-being, will be found in some doctrines which cannot
be satisfactorily explained on any other ground.

The first of these is, that even the deliberate taking of life
will not be punished when it is the only way of saving one's own.
This principle is not so clearly established as that next to be
mentioned; but it has the support of very great authority. /1/ If
that is the law, it must go on one of two grounds, either that
self-preference is proper in the case supposed, or that, even if
it is improper, the law cannot prevent it by punishment, because
a threat of death at some future time can never be a sufficiently
powerful motive to make a man choose death now in order to avoid
the threat. If the former ground is adopted, it admits that a
single person may sacrifice another to himself, and a fortiori
that a people may. If the latter view is taken, by abandoning
punishment when it can no longer be expected to prevent an act,
the law abandons the retributive and adopts the preventive
theory.

The next doctrine leads to still clearer conclusions. Ignorance
of the law is no excuse for breaking it. This substantive
principle is sometimes put in the form of a rule of evidence,
that every one is presumed to know the [48] law. It has
accordingly been defended by Austin and others, on the ground of
difficulty of proof. If justice requires the fact to be
ascertained, the difficulty of doing so is no ground for refusing
to try. But every one must feel that ignorance of the law could
never be admitted as an excuse, even if the fact could be proved
by sight and hearing in every case. Furthermore, now that parties
can testify, it may be doubted whether a man's knowledge of the
law is any harder to investigate than many questions which are
gone into. The difficulty, such as it is, would be met by
throwing the burden of proving ignorance on the lawbreaker.

The principle cannot be explained by saying that we are not only
commanded to abstain from certain acts, but also to find out that
we are commanded. For if there were such a second command, it is
very clear that the guilt of failing to obey it would bear no
proportion to that of disobeying the principal command if known,
yet the failure to know would receive the same punishment as the
failure to obey the principal law.

The true explanation of the rule is the same as that which
accounts for the law's indifference to a man's particular
temperament, faculties, and so forth. Public policy sacrifices
the individual to the general good. It is desirable that the
burden of all should be equal, but it is still more desirable to
put an end to robbery and murder. It is no doubt true that there
are many cases in which the criminal could not have known that he
was breaking the law, but to admit the excuse at all would be to
encourage ignorance where the law-maker has determined to make
men know and obey, and justice to the individual is rightly
outweighed by the larger interests on the other side of the
scales.

[49] If the foregoing arguments are sound, it is already manifest
that liability to punishment cannot be finally and absolutely
determined by considering the actual personal unworthiness of the
criminal alone. That consideration will govern only so far as the
public welfare permits or demands. And if we take into account
the general result which the criminal law is intended to bring
about, we shall see that the actual state of mind accompanying a
criminal act plays a different part from what is commonly
supposed.

For the most part, the purpose of the criminal law is only to
induce external conformity to rule. All law is directed to
conditions of things manifest to the senses. And whether it
brings those conditions to pass immediately by the use of force,
as when it protects a house from a mob by soldiers, or
appropriates private property to public use, or hangs a man in
pursuance of a judicial sentence, or whether it brings them about
mediately through men's fears, its object is equally an external
result. In directing itself against robbery or murder, for
instance, its purpose is to put a stop to the actual physical
taking and keeping of other men's goods, or the actual poisoning,
shooting, stabbing, and otherwise putting to death of other men.
If those things are not done, the law forbidding them is equally
satisfied, whatever the motive.

Considering this purely external purpose of the law together with
the fact that it is ready to sacrifice the individual so far as
necessary in order to accomplish that purpose, we can see more
readily than before that the actual degree of personal guilt
involved in any particular transgression cannot be the only
element, if it is an element at all, in the liability incurred.
So far from its [5O] being true, as is often assumed, that the
condition of a man's heart or conscience ought to be more
considered in determining criminal than civil liability, it might
almost be said that it is the very opposite of truth. For civil
liability, in its immediate working, is simply a redistribution
of an existing loss between two individuals; and it will be
argued in the next Lecture that sound policy lets losses lie
where they fall, except where a special reason can be shown for
interference. The most frequent of such reasons is, that the
party who is charged has been to blame.

It is not intended to deny that criminal liability, as well as
civil, is founded on blameworthiness. Such a denial would shock
the moral sense of any civilized community; or, to put it another
way, a law which punished conduct which would not be blameworthy
in the average member of the community would be too severe for
that community to bear. It is only intended to point out that,
when we are dealing with that part of the law which aims more
directly than any other at establishing standards of conduct, we
should expect there more than elsewhere to find that the tests of
liability are external, and independent of the degree of evil in
the particular person's motives or intentions. The conclusion
follows directly from the nature of the standards to which
conformity is required. These are not only external, as was shown
above, but they are of general application. They do not merely
require that every man should get as near as he can to the best
conduct possible for him. They require him at his own peril to
come up to a certain height. They take no account of
incapacities, unless the weakness is so marked as to fall into
well-known exceptions, such as infancy or madness. [51] They
assume that every man is as able as every other to behave as they
command. If they fall on any one class harder than on another, it
is on the weakest. For it is precisely to those who are most
likely to err by temperament, ignorance, or folly, that the
threats of the law are the most dangerous.

The reconciliation of the doctrine that liability is founded on
blameworthiness with the existence of liability where the party
is not to blame, will be worked out more fully in the next
Lecture. It is found in the conception of the average man, the
man of ordinary intelligence and reasonable prudence. Liability
is said to arise out of such conduct as would be blameworthy in
him. But he is an ideal being, represented by the jury when they
are appealed to, and his conduct is an external or objective
standard when applied to any given individual. That individual
may be morally without stain, because he has less than ordinary
intelligence or prudence. But he is required to have those
qualities at his peril. If he has them, he will not, as a general
rule, incur liability without blameworthiness.

The next step is to take up some crimes in detail, and to
discover what analysis will teach with regard to them.

I will begin with murder. Murder is defined by Sir James Stephen,
in his Digest of Criminal Law, /1/ as unlawful homicide with
malice aforethought. In his earlier work, /2/ he explained that
malice meant wickedness, and that the law had determined what
states of mind were wicked in the necessary degree. Without the
same preliminary he continues in his Digest as follows :--

[52] "Malice aforethought means any one or more of the following
states of mind ..... "(a.) An intention to cause the death of, or
grievous bodily harm to, any person, whether such person is the
person actually killed or not; "(b.) Knowledge that the act which
causes death will probably cause the death of, or grievous bodily
harm to, some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may not be caused; "(c.) An intent to
commit any felony whatever; "(d.) An intent to oppose by force
any officer of justice on his way to, in, or returning from the
execution of the duty of arresting, keeping in custody, or
imprisoning any person whom he is lawfully entitled to arrest,
keep in custody, or imprison, or the duty of keeping the peace or
dispersing an unlawful assembly, provided that the offender has
notice that the person killed is such an officer so employed."

Malice, as used in common speech, includes intent, and something
more. When an act is said to be done with an intent to do harm,
it is meant that a wish for the harm is the motive of the act.
Intent, however, is perfectly consistent with the harm being
regretted as such, and being wished only as a means to something
else. But when an act is said to be done maliciously, it is
meant, not only that a wish for the harmful effect is the motive,
but also that the harm is wished for its own sake, or, as Austin
would say with more accuracy, for the sake of the pleasurable
feeling which knowledge of the suffering caused by the act would
excite. Now it is apparent from Sir James [53] Stephen's
enumeration, that of these two elements of malice the intent
alone is material to murder. It is just as much murder to shoot a
sentry for the purpose of releasing a friend, as to shoot him
because you hate him. Malice, in the definition of murder, has
not the same meaning as in common speech, and, in view of the
considerations just mentioned, it has been thought to mean
criminal intention. /1/

But intent again will be found to resolve itself into two things;
foresight that certain consequences will follow from an act, and
the wish for those consequences working as a motive which induces
the act. The question then is, whether intent, in its turn,
cannot be reduced to a lower term. Sir James Stephen's statement
shows that it can be, and that knowledge that the act will
probably cause death, that is, foresight of the consequences of
the act, is enough in murder as in tort.

For instance, a newly born child is laid naked out of doors,
where it must perish as a matter of course. This is none the less
murder, that the guilty party would have been very glad to have a
stranger find the child and save it. /2/

But again, What is foresight of consequences? It is a picture of
a future state of things called up by knowledge of the present
state of things, the future being viewed as standing to the
present in the relation of effect to cause. Again, we must seek a
reduction to lower terms. If the known present state of things is
such that the act done will very certainly cause death, and the
probability is a matter of common knowledge, one who does the
act, [54] knowing the present state of things, is guilty of
murder, and the law will not inquire whether he did actually
foresee the consequences or not. The test of foresight is not
what this very criminal foresaw, but what a man of reasonable
prudence would have foreseen.

On the other hand, there must be actual present knowledge of the
present facts which make an act dangerous. The act is not enough
by itself. An act, it is true, imports intention in a certain
sense. It is a muscular contraction, and something more. A spasm
is not an act. The contraction of the muscles must be willed. And
as an adult who is master of himself foresees with mysterious
accuracy the outward adjustment which will follow his inward
effort, that adjustment may be said to be intended. But the
intent necessarily accompanying the act ends there. Nothing would
follow from the act except for the environment. All acts, taken
apart from their surrounding circumstances, are indifferent to
the law. For instance, to crook the forefinger with a certain
force is the same act whether the trigger of a pistol is next to
it or not. It is only the surrounding circumstances of a pistol
loaded and cocked, and of a human being in such relation to it,
as to be manifestly likely to be hit, that make the act a wrong.
Hence, it is no sufficient foundation for liability, on any sound
principle, that the proximate cause of loss was an act.

The reason for requiring an act is, that an act implies a choice,
and that it is felt to be impolitic and unjust to make a man
answerable for harm, unless he might have chosen otherwise. But
the choice must be made with a chance of contemplating the
consequence complained of, or else it has no bearing on
responsibility for that consequence. [55] If this were not true,
a man might be held answerable for everything which would not
have happened but for his choice at some past time. For instance,
for having in a fit fallen on a man, which he would not have done
had he not chosen to come to the city where he was taken ill.

All foresight of the future, all choice with regard to any
possible consequence of action, depends on what is known at the
moment of choosing. An act cannot be wrong, even when done under
circumstances in which it will be hurtful, unless those
circumstances are or ought to be known. A fear of punishment for
causing harm cannot work as a motive, unless the possibility of
harm may be foreseen. So far, then, as criminal liability is
founded upon wrong-doing in any sense, and so far as the threats
and punishments of the law are intended to deter men from
bringing about various harmful results, they must be confined to
cases where circumstances making the conduct dangerous were
known.

Still, in a more limited way, the same principle applies to
knowledge that applies to foresight. It is enough that such
circumstances were actually known as would have led a man of
common understanding to infer from them the rest of the group
making up the present state of things. For instance, if a workman
on a house-top at mid-day knows that the space below him is a
street in a great city, he knows facts from which a man of common
understanding would infer that there were people passing below.
He is therefore bound to draw that inference, or, in other words,
is chargeable with knowledge of that fact also, whether he draws
the inference or not. If then, he throws down a heavy beam into
the street, he does an act [56] which a person of ordinary
prudence would foresee is likely to cause death, or grievous
bodily harm, and he is dealt with as if he foresaw it, whether he
does so in fact or not. If a death is caused by the act, he is
guilty of murder. /1/ But if the workman has reasonable cause to
believe that the space below is a private yard from which every
one is excluded, and which is used as a rubbish heap, his act is
not blameworthy, and the homicide is a mere misadventure.

To make an act which causes death murder, then, the actor ought,
on principle, to know, or have notice of the facts which make the
act dangerous. There are certain exceptions to this principle
which will be stated presently, but they have less application to
murder than to some smaller statutory crimes. The general rule
prevails for the most part in murder.

But furthermore, on the same principle, the danger which in fact
exists under the known circumstances ought to be of a class which
a man of reasonable prudence could foresee. Ignorance of a fact
and inability to foresee a consequence have the same effect on
blameworthiness. If a consequence cannot be foreseen, it cannot
be avoided. But there is this practical difference, that whereas,
in most cases, the question of knowledge is a question of the
actual condition of the defendant's consciousness, the question
of what he might have foreseen is determined by the standard of
the prudent man, that is, by general experience. For it is to be
remembered that the object of the law is to prevent human life
being endangered or taken; and that, although it so far considers
blameworthiness in punishing as not to hold a man responsible for
consequences which [57] no one, or only some exceptional
specialist, could have foreseen, still the reason for this
limitation is simply to make a rule which is not too hard for the
average member of the community. As the purpose is to compel men
to abstain from dangerous conduct, and not merely to restrain
them from evil inclinations, the law requires them at their peril
to know the teachings of common experience, just as it requires
them to know the law. Subject to these explanations, it may be
said that the test of murder is the degree of danger to life
attending the act under the known circumstances of the case. /1/

It needs no further explanation to show that, when the particular
defendant does for any reason foresee what an ordinary man of
reasonable prudence would not have foreseen, the ground of
exemption no longer applies. A harmful act is only excused on the
ground that the party neither did foresee, nor could with proper
care have foreseen harm.

It would seem, at first sight, that the above analysis ought to
exhaust the whole subject of murder. But it does not without some
further explanation. If a man forcibly resists an officer
lawfully making an arrest, and kills him, knowing him to be an
officer, it may be murder, although no act is done which, but for
his official function, would be criminal at all. So, if a man
does an act with intent to commit a felony, and thereby
accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the
owner, whom he does not see. Such a case as this last seems
hardly to be reconcilable with the general principles which have
been laid down. It has been argued somewhat as [58] follows:--The
only blameworthy act is firing at the chickens, knowing them to
belong to another. It is neither more nor less so because an
accident happens afterwards; and hitting a man, whose presence
could not have been suspected, is an accident. The fact that the
shooting is felonious docs not make it any more likely to kill
people. If the object of the rule is to prevent such accidents,
it should make accidental killing with firearms murder, not
accidental killing in the effort to steal; while, if its object
is to prevent stealing, it would do better to hang one thief in
every thousand by lot.

Still, the law is intelligible as it stands. The general test of
murder is the degree of danger attending the acts under the known
state of facts. If certain acts are regarded as peculiarly
dangerous under certain circumstances, a legislator may make them
punishable if done under these circumstances, although the danger
was not generally known. The law often takes this step, although
it does not nowadays often inflict death in such cases. It
sometimes goes even further, and requires a man to find out
present facts, as well as to foresee future harm, at his peril,
although they are not such as would necessarily be inferred from
the facts known.

Thus it is a statutory offence in England to abduct a girl under
sixteen from the possession of the person having lawful charge of
her. If a man docs acts which induce a girl under sixteen to
leave her parents, he is not chargeable, if he had no reason to
know that she was under the lawful charge of her parents, /1/ and
it may be presumed that he would not be, if he had reasonable
cause to believe that she was a boy. But if he knowingly abducts
a girl from [59] her parents, he must find out her age at his
peril. It is no defence that he had every reason to think her
over sixteen. /1/ So, under a prohibitory liquor law, it has been
held that, if a man sells "Plantation Bitters," it is no defence
that he does not know them to be intoxicating. /2/ And there are
other examples of the same kind.

Now, if experience shows, or is deemed by the law-maker to show,
that somehow or other deaths which the evidence makes accidental
happen disproportionately often in connection with other
felonies, or with resistance to officers, or if on any other
ground of policy it is deemed desirable to make special efforts
for the prevention of such deaths, the lawmaker may consistently
treat acts which, under the known circumstances, are felonious,
or constitute resistance to officers, as having a sufficiently
dangerous tendency to be put under a special ban. The law may,
therefore, throw on the actor the peril, not only of the
consequences foreseen by him, but also of consequences which,
although not predicted by common experience, the legislator
apprehends. I do not, however, mean to argue that the rules under
discussion arose on the above reasoning, any more than that they
are right, or would be generally applied in this country.

Returning to the main line of thought it will be instructive to
consider the relation of manslaughter to murder. One great
difference between the two will be found to lie in the degree of
danger attaching to the act in the given state of facts. If a man
strikes another with a small stick which is not likely to kill,
and which he has no reason to suppose will do more than slight
bodily harm, but which [6O] does kill the other, he commits
manslaughter, not murder. /1/ But if the blow is struck as hard
as possible with an iron bar an inch thick, it is murder. /2/ So
if, at the time of striking with a switch, the party knows an
additional fact, by reason of which he foresees that death will
be the consequence of a slight blow, as, for instance, that the
other has heart disease, the offence is equally murder. /3/ To
explode a barrel of gunpowder in a crowded street, and kill
people, is murder, although the actor hopes that no such harm
will be done. /4/ But to kill a man by careless riding in the
same street would commonly be manslaughter. /5/ Perhaps, however,
a case could be put where the riding was so manifestly dangerous
that it would be murder.

To recur to an example which has been used already for another
purpose: "When a workman flings down a stone or piece of timber
into the street, and kills a man; this may be either
misadventure, manslaughter, or murder, according to the
circumstances under which the original act was done: if it were
in a country village, where few passengers are, and he calls out
to all people to have a care, it is misadventure only; but if it
were in London, or other populous town, where people are
continually passing, it is manslaughter, though he gives loud
warning; and murder, if he knows of their passing, and gives no
warning at all." /6/

The law of manslaughter contains another doctrine [61] which
should be referred to in order to complete the understanding of
the general principles of the criminal law. This doctrine is,
that provocation may reduce an offence which would otherwise have
been murder to manslaughter. According to current morality, a man
is not so much to blame for an act done under the disturbance of
great excitement, caused by a wrong done to himself, as when he
is calm. The law is made to govern men through their motives, and
it must, therefore, take their mental constitution into account.

It might be urged, on the other side, that, if the object of
punishment is prevention, the heaviest punishment should be
threatened where the strongest motive is needed to restrain; and
primitive legislation seems sometimes to have gone on that
principle. But if any threat will restrain a man in a passion, a
threat of less than death will be sufficient, and therefore the
extreme penalty has been thought excessive.

At the same time the objective nature of legal standards is shown
even here. The mitigation does not come from the fact that the
defendant was beside himself with rage. It is not enough that he
had grounds which would have had the same effect on every man of
his standing and education. The most insulting words are not
provocation, although to this day, and still more when the law
was established, many people would rather die than suffer them
without action. There must be provocation sufficient to justify
the passion, and the law decides on general considerations what
provocations are sufficient.

It is said that even what the law admits to be "provocation does
not extenuate the guilt of homicide, unless the person provoked
is at the time when he does the deed [62] deprived of the power
of self-control by the provocation which he has received." /1/
There are obvious reasons for taking the actual state of the
defendant's consciousness into account to this extent. The only
ground for not applying the general rule is, that the defendant
was in such a state that he could not be expected to remember or
be influenced by the fear of punishment; if he could be, the
ground of exception disappears. Yet even here, rightly or
wrongly, the law has gone far in the direction of adopting
external tests. The courts seem to have decided between murder
and manslaughter on such grounds as the nature of the weapon
used, /2/ or the length of time between the provocation and the
act. /3/ But in other cases the question whether the prisoner was
deprived of self-control by passion has been left to the jury.
/4/

As the object of this Lecture is not to give an outline of the
criminal law, but to explain its general theory, I shall only
consider such offences as throw some special light upon the
subject, and shall treat of those in such order as seems best
fitted for that purpose. It will now be useful to take up
malicious mischief, and to compare the malice required to
constitute that offence with the malice aforethought of murder.

The charge of malice aforethought in an indictment for murder has
been shown not to mean a state of the defendant's mind, as is
often thought, except in the sense that he knew circumstances
which did in fact make his conduct dangerous. It is, in truth, an
allegation like that of negligence, which asserts that the party
accused did not [63] come up to the legal standard of action
under the circumstances in which he found himself, and also that
there was no exceptional fact or excuse present which took the
case out of the general rule. It is an averment of a conclusion
of law which is permitted to abridge the facts (positive and
negative) on which it is founded.

When a statute punishes the "wilfully and maliciously" injuring
another's property, it is arguable, if not clear, that something
more is meant. The presumption that the second word was not added
without some meaning is seconded by the unreasonableness of
making every wilful trespass criminal. /1/ If this reasoning
prevails, maliciously is here used in its popular sense, and
imports that the motive for the defendant's act was a wish to
harm the owner of the property, or the thing itself, if living,
as an end, and for the sake of the harm. Malice in this sense has
nothing in common with the malice of murder.

Statutory law need not profess to be consistent with itself, or
with the theory adopted by judicial decisions. Hence there is
strictly no need to reconcile such a statute with the principles
which have been explained. But there is no inconsistency.
Although punishment must be confined to compelling external
conformity to a rule of conduct, so far that it can always be
avoided by avoiding or doing certain acts as required, with
whatever intent or for whatever motive, still the prohibited
conduct may not be hurtful unless it is accompanied by a
particular state of feeling.

Common disputes about property are satisfactorily settled by
compensation. But every one knows that sometimes secret harm is
done by neighbor to neighbor out of [64] pure malice and spite.
The damage can be paid for, but the malignity calls for revenge,
and the difficulty of detecting the authors of such wrongs, which
are always done secretly, affords a ground for punishment, even
if revenge is thought insufficient.

How far the law will go in this direction it is hard to say. The
crime of arson is defined to be the malicious and wilful burning
of the house of another man, and is generally discussed in close
connection with malicious mischief. It has been thought that the
burning was not malicious where a prisoner set fire to his
prison, not from a desire to consume the building, but solely to
effect his escape. But it seems to be the better opinion that
this is arson, /1/ in which case an intentional burning is
malicious within the meaning of the rule. When we remember that
arson was the subject of one of the old appeals which take us far
back into the early law, /2/ we may readily understand that only
intentional burnings were redressed in that way. /3/ The appeal
of arson was brother to the appeal de pace et plagis. As the
latter was founded on a warlike assault, the former supposed a
house-firing for robbery or revenge, /4/ such as that by which
Njal perished in the Icelandic Saga. But this crime seems to have
had the same history as others. As soon as intent is admitted to
be sufficient, the law is on the high-road to an external
standard. A man who intentionally sets fire to his own house,
which is so near to other houses that the fire will manifestly
endanger them, is guilty of arson if one of the other houses is
burned in consequence. /5/ In this case, an act which would not
[65] have been arson, taking only its immediate consequences into
account, becomes arson by reason of more remote consequences
which were manifestly likely to follow, whether they were
actually intended or not. If that may be the effect of setting
fire to things which a man has a right to burn, so far as they
alone are concerned, why, on principle, should it not be the
effect of any other act which is equally likely under the
surrounding circumstances to cause the same harm. /1/ Cases may
easily be imagined where firing a gun, or making a chemical
mixture, or piling up oiled rags, or twenty other things, might
be manifestly dangerous in the highest degree and actually lead
to a conflagration. If, in such cases, the crime is held to have
been committed, an external standard is reached, and the analysis
which has been made of murder applies here.

There is another class of cases in which intent plays an
important part, for quite different reasons from those which have
been offered to account for the law of malicious mischief. The
most obvious examples of this class are criminal attempts.
Attempt and intent, of course, are two distinct things. Intent to
commit a crime is not itself criminal. There is no law against a
man's intending to commit a murder the day after tomorrow. The
law only deals with conduct. An attempt is an overt act. It
differs from the attempted crime in this, that the act has failed
to bring about the result which would have given it the character
of the principal crime. If an attempt to murder results in death
within a year and a day, it is murder. If an attempt to steal
results in carrying off the owner's goods, it is larceny.

If an act is done of which the natural and probable [66] effect
under the circumstances is the accomplishment of a substantive
crime, the criminal law, while it may properly enough moderate
the severity of punishment if the act has not that effect in the
particular case, can hardly abstain altogether from punishing it,
on any theory. It has been argued that an actual intent is all
that can give the act a criminal character in such instances. /1/
But if the views which I have advanced as to murder and
manslaughter are sound, the same principles ought logically to
determine the criminality of acts in general. Acts should be
judged by their tendency under the known circumstances, not by
the actual intent which accompanies them.

It may be true that in the region of attempts, as elsewhere, the
law began with cases of actual intent, as those cases are the
most obvious ones. But it cannot stop with them, unless it
attaches more importance to the etymological meaning of the word
attempt than to the general principles of punishment. Accordingly
there is at least color of authority for the proposition that an
act is punishable as an attempt, if, supposing it to have
produced its natural and probable effect, it would have amounted
to a substantive crime. /2/

But such acts are not the only punishable attempts. There is
another class in which actual intent is clearly necessary, and
the existence of this class as well as the name (attempt) no
doubt tends to affect the whole doctrine. Some acts may be
attempts or misdemeanors which [67] could not have effected the
crime unless followed by other acts on the part of the
wrong-doer. For instance, lighting a match with intent to set
fire to a haystack has been held to amount to a criminal attempt
to burn it, although the defendant blew out the match on seeing
that he was watched. /1/ So the purchase of dies for making
counterfeit coin is a misdemeanor, although of course the coin
would not be counterfeited unless the dies were used. /2/

In such cases the law goes on a new principle, different from
that governing most substantive crimes. The reason for punishing
any act must generally be to prevent some harm which is foreseen
as likely to follow that act under the circumstances in which it
is done. In most substantive crimes the ground on which that
likelihood stands is the common working of natural causes as
shown by experience. But when an act is punished the natural
effect of which is not harmful under the circumstances, that
ground alone will not suffice. The probability does not exist
unless there are grounds for expecting that the act done will be
followed by other acts in connection with which its effect will
be harmful, although not so otherwise. But as in fact no such
acts have followed, it cannot, in general, be assumed, from the
mere doing of what has been done, that they would have followed
if the actor had not been interrupted. They would not have
followed it unless the actor had chosen, and the only way
generally available to show that he would have chosen to do them
is by showing that he intended to do them when he did what he
did. The accompanying intent in that case renders the otherwise
[68] innocent act harmful, because it raises a probability that
it will be followed by such other acts and events as will all
together result in harm. The importance of the intent is not to
show that the act was wicked, but to show that it was likely to
be followed by hurtful consequences.

It will be readily seen that there are limits to this kind of
liability. The law does not punish every act which is done with
the intent to bring about a crime. If a man starts from Boston to
Cambridge for the purpose of committing a murder when he gets
there, but is stopped by the draw and goes home, he is no more
punishable than if he had sat in his chair and resolved to shoot
somebody, but on second thoughts had given up the notion. On the
other hand, a slave who ran after a white woman, but desisted
before he caught her, has been convicted of an attempt to commit
rape. /1/ We have seen what amounts to an attempt to burn a
haystack; but it was said in the same case, that, if the
defendant had gone no further than to buy a box of matches for
the purpose, he would not have been liable.

Eminent judges have been puzzled where to draw the line, or even
to state the principle on which it should be drawn, between the
two sets of cases. But the principle is believed to be similar to
that on which all other lines are drawn by the law. Public
policy, that is to say, legislative considerations, are at the
bottom of the matter; the considerations being, in this case, the
nearness of the danger, the greatness of the harm, and the degree
of apprehension felt. When a man buys matches to fire a haystack,
or starts on a journey meaning to murder at the end of it, there
is still a considerable chance that he will [69] change his mind
before he comes to the point. But when he has struck the match,
or cocked and aimed the pistol, there is very little chance that
he will not persist to the end, and the danger becomes so great
that the law steps in. With an object which could not be used
innocently, the point of intervention might be put further back,
as in the case of the purchase of a die for coining.

The degree of apprehension may affect the decision, as well as
the degree of probability that the crime will be accomplished. No
doubt the fears peculiar to a slaveowning community had their
share in the conviction which has just been mentioned.

There is one doubtful point which should not be passed over. It
has been thought that to shoot at a block of wood thinking it to
be a man is not an attempt to murder, /1/ and that to put a hand
into an empty pocket, intending to pick it, is not an attempt to
commit larceny, although on the latter question there is a
difference of opinion. /2/ The reason given is, that an act which
could not have effected the crime if the actor had been allowed
to follow it up to all results to which in the nature of things
it could have led, cannot be an attempt to commit that crime when
interrupted. At some point or other, of course, the law must
adopt this conclusion, unless it goes on the theory of
retribution for guilt, and not of prevention of harm.

But even to prevent harm effectually it will not do to be too
exact. I do not suppose that firing a pistol at a man with intent
to kill him is any the less an attempt to murder because the
bullet misses its aim. Yet there the act has produced the whole
effect possible to it in the [7O] course of nature. It is just as
impossible that that bullet under those circumstances should hit
that man, as to pick an empty pocket. But there is no difficulty
in saying that such an act under such circumstances is so
dangerous, so far as the possibility of human foresight is
concerned, that it should be punished. No one can absolutely
know, though many would be pretty sure, exactly where the bullet
will strike; and if the harm is done, it is a very great harm. If
a man fires at a block, no harm can possibly ensue, and no theft
can be committed in an empty pocket, besides that the harm of
successful theft is less than that of murder. Yet it might be
said that even such things as these should be punished, in order
to make discouragement broad enough and easy to understand.

There remain to be considered certain substantive crimes, which
differ in very important ways from murder and the like, and for
the explanation of which the foregoing analysis of intent in
criminal attempts and analogous misdemeanors will be found of
service.

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