02 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
Lecture two or the Common Law by Oliver Wendell Holmes Junior.
This LibriVox recording is in the public domain 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

(00:22):
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 rocks 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,

(00:45):
optional afterwards compulsory by which wrong dua brought 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.

(01:06):
It would seem to be a fair inference that indictable
offenses were originally limited in the same way as those
which gave rise to an appeal. For Whether the indictment
rose by splitting up of the appeal or in some
other way, the two were closely connected. An acquittal of
the appelle on the merits was a bar to an indictment,

(01:27):
and on the other hand, when an appeal was fairly started,
although the appelleur might fail to prosecute, or might be
defeated by plea, the cause might still be preceeded with
on behalf of the king. The presentment, which is the
other parent of our criminal procedure, had an origin distinct
from the appeal. If, as has been a sort, it

(01:49):
was merely the successor of fresh suit and lynch law.
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,

(02:10):
and condemns its victim by that. The question is whether
such a standard is that 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

(02:31):
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 plaim 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

(02:53):
by putting an end to the principle of 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

(03:15):
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 trusted to carry unpredicted women and children

(03:35):
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 afflicted upon the wrong duer of a sort which
does not restore the injured party to its former situation
or to another equally good, but which is inflicted for

(03:58):
the very purpose of causing, and so far as this
punishment takes the place of compensation, whether on account of
the deaths of the person to whom the wrong was done,
the indefinite number of persons affected, the impossibility of estimating
the worse of the suffering in money, or the poverty
of the criminal. It may be said that one of

(04:19):
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.

(04:42):
In other views, as Bishop Butler and Jeremy Benson. Sir
James Stephen says the criminal law stands to the passion
of revenge in much the same relation as marriage to
the sexual appetite. The first requirement of a sound body
of law is that it should correspond with the actual

(05:02):
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 retribution. At
the same time, this passion is not one which we encourage,

(05:26):
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 co extensive with
the whole field of its application. It remains to be
discovered whether such a general purpose exists, and if so,

(05:50):
what it is. Different theories still divide opinion upon the subject.
It has been thought that the purpose of punishment is
to refer for the criminal, that it is to deter
the criminal and others from committing similar crimes, and that
it is retribution. View would now maintain that the first

(06:11):
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 offense, and if
he is incurable, he should not be punished at all.
Of course, it would be hard to reconcile the punishment
of deaths with this doctrine. The main struggle lies between
the other two. On the one side is a notion

(06:34):
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
ext founders of the former view, puts it in its
quasi mathematical form that wrong being the negation of right,
punishment is a negation of that negation or attribution. Thus

(06:57):
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 wrongdoing. It is
objected that the preventive theory is a moral because it

(07:18):
overlooks the ill desert of wrongdoing and furnishes no measure
of the amount of punishment except the law givers subjective
opinion in regard to the sufficiency of the amount of
preventive suffering. In the language of Kant, it treats man
as a sing not as a person, as a means,
not as an end in himself. It is said to

(07:40):
conflict with the sense of justice and violate the fundamental
principle of all free communities that the members of such
communities have equal rights to life, liberty, and personal security.
In spite of all this, probably most English speaking lawyers
would accept the preventive sory without hesitation. As to the

(08:00):
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 conuscripts are necessary for
its army, it seizes them and marches them was bayonets

(08:24):
in their rear to deaths. It runs highways and railroads
through old family places in spite of the owner's protests 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. If it were necessary to trench further

(08:47):
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 name except on the admission
for the moment that he is as wise as you,
although you may by no means believe it, in the

(09:07):
same way you cannot deal with him. Where boats are
free to choose, except on the footing of equal treatment,
and the same rules for boats. They are a 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

(09:28):
that the ultimate ratio, not only reagum but of private persons,
is forced, 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

(09:50):
him off if he can. When the state finds itself
in a similar position, it does the same thing. The
considerations which are the argument of equal rights also answer
the objections to treating man as a sing and the like.
If a man lives in society, he is liable to

(10:11):
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 antisocial situations,
but they have not yet done so. And as the

(10:32):
rules of law are or should be based upon a
morality which is generally accepted, no rule founded on a
sery 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

(10:54):
will follow from that alone that sery and fact agree
in frequently punishing those who have been guilty of no
more 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

(11:16):
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

(11:37):
the criminal law does more good than harm. I only
say that it is not enacted or administered on that sory.
There remains to be mentioned the affirmative argument in favor
of the theory of retribution, to the effect that the
fitness of punishment following wrongdoing is axiomatic and is instinctively
recognized by unperverted minds. I think that it will be

(12:01):
seen on self inspection that this feeling of fitness is
absolute and unconditional only in the case of our neighbors.
It does 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

(12:25):
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

(12:46):
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. But again, the supposed
intuition of fitness is not seem to me to be
co extensive with the sing to be accounted for. The
lesser punishments are just as fit for the lesser crimes

(13:08):
as the greater for the greater. The demand that crime
should be followed by its punishment should therefore be equal
and absolute in boats. Again, a malum prohibitum is just
as much a crime as a malamin. Say, if there
is any general ground for punishment, it must apply to
one case as much as to the other. But it

(13:31):
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
sorely repented of his wrong should be punished for it,
except on the ground that his act was known to others.

(13:51):
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

(14:12):
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

(14:33):
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 end, and uses him as a

(14:54):
tool to increase the general welfare at his own expense.
It has been suggested above that this cause 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,

(15:14):
and a 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

(15:37):
has a support of very great authority. 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

(15:58):
to make Amanchu's 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 they thought
to you or I 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

(16:19):
abandons the retributive and adopts the preventive sury. 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 everyone is presumed to know the law. It has

(16:39):
accordingly been defended by Austin and others on the ground
of difficulty of proof. If justice requires a fact to
be ascertained, the difficulty of doing so is a no
ground for refusing to try. But everyone must feel that
ignorance of the law could never be admitted as an excuse,
even if the fact could be proved by sight and

(17:01):
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 srowing the burden of proving ignorance on
the law breaker. The principle cannot be explained by saying

(17:24):
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 a failure to obey the principal law.

(17:48):
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 force. Public policy sacrifices the
individual to the general good. It is desirable that the
burden of all should be equal, but it is still

(18:08):
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. Whether the lawmaker has
determined to make men know and obey, and justice to
the individual is rightly outweighed by the larger interests on

(18:31):
the other side of the scales. If the foregoing arguments
are sound, it is already manifest the 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

(18:53):
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

(19:14):
is directed to conditions of sings 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 immediately through

(19:36):
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

(19:58):
things are not die, the law forbidding them is equally satisfied,
whatever the motive. Considering this purely external purpose of the
law together was 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

(20:19):
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 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

(20:40):
also be said that it is the very opposite of truce,
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

(21:01):
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

(21:25):
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,

(21:47):
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

(22:08):
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 pellm, to come up to a certain height. They
take no account of incapacities, unless a weakness is so
marked as to fall into well known exceptions, such as

(22:30):
infancy or madness. They assume that every man is as
able as every other to behave as a 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

(22:52):
most dangerous. The reconciliation of the doctrine that liability is
founded on blameworthiness. With the existence of liability, whether 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

(23:16):
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 stained because he has less than
ordinary intelligence or prudence, but he is required to have

(23:40):
those qualities at his power. If he has, then 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. Murders defined by

(24:01):
Sir James Stephen in his Digest of Criminal Law as
a lawful homicide was malice of foresought. In his earlier work,
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

(24:22):
digest as follows. Malice of foresought 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

(24:45):
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 deaths or grievous bodily harmed is caused or not,
or by a wish that it may not be caused. S.

(25:06):
An intent to commit any felony, whatever d An intent
to oppose by force any officer of justice on his
way too 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,

(25:28):
or imprison or the duty of keeping the peace, or
dispersing an unlawful assembly, provided that the offender has a
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

(25:50):
intent to do harm, it is meant that a wish
for the harm is the motive of the act. Intent, however,
is perfectly insistent, 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

(26:12):
harmful effect is the motive, but also that the harm
is wished for its own sake, or, as Austin would say,
was 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 Stephens's enumeration that
of these two elements of malice, the intent alone is

(26:35):
material to murder. It is just as much murder to
shoot a century 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 sought to mean criminal intention But intent

(26:57):
again will be found to resolve itself into two sings,
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

(27:17):
James Stephens'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 Talt for instance, a newly born child is
laid naked out of doors where it must perish. As
a matter of course, this is nonetheless murder. That the

(27:40):
guilty party would have been very glad to have a
stranger find the child and save it. But again, what
is foresight of consequences? It is a picture of a
future state of sings called up by knowledge of the
present state of sings, the future being viewed as standing
to the present in the relation of effect to cause. Again,

(28:02):
we must seek a reduction to lower terms. If the
known present state of sings 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
knowing the present state of sings is guilty of murder,
and the law will not inquire whether he did actually

(28:23):
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

(28:47):
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 we master
himself foresees with mysterious accuracy the outward adjustment which will
follow his inward effort. That adjustment may be said to

(29:09):
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 cook the forefinger with
a certain force is the same act, whether the trigger

(29:30):
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

(29:52):
of loss was an act. The reason for acquiring an
act is that an act implies a choice, and that
it is 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

(30:13):
bearing on responsibility for that consequence. If this were not true,
a man might be held answerable for everthing which would
not have happened but of 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.

(30:33):
All foresight of the future or 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 though circumstances are or ought to be known. A
fear of punishment for causing harm cannot work as a

(30:55):
motive unless the possibility of harm may be foreseen. So
far then as criminal liability is founded upon wrongdoing 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

(31:20):
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 housetop at midday knows that

(31:41):
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 influence or not. If then he throws down

(32:01):
a heavy beam into the street, he does an act
which a person of ordinary prudence would foresee is likely
to cause deaths 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. But if
the workman has reasonable cause to believe that the space

(32:23):
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

(32:45):
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, or to
be of a class which a man of reasonable prudence

(33:08):
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

(33:28):
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

(33:49):
a man responsible for consequences which no one or only
some exceptional specialist could have foreseen. Still the reason for
this limitation is simply to make 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

(34:12):
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. It needs no further explanation to show that

(34:34):
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

(34:57):
or to exhaust the whole subject of murder, but it
is 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

(35:19):
an act with intent to commit a felony and thereby
accidentally kills another, for instance, if he fires at chickens
intending to still 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 follows,

(35:41):
the only blameworthy act is filing of 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 does not make
it any more like to kill people. If the object

(36:02):
of the rule is to prevent such accidents, it should
have made 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
seat in every thousand by loot. Still, the law is
intelligible as it stands. The general test of murder is

(36:24):
a 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 debt, although it

(36:45):
does not nowadays often inflict deaths. 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 so much as
would necessarily be inferred from the facts known. Thus, it
is a statutory offense in England to abduct a girl

(37:08):
under sixteen from the possession of the person having lawful
charge of her. If a man does acts which induced
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, And
it may be presumed that he would not be if
he had reasonable cause to believe that she was a boy.

(37:29):
But if he knowingly abducts a girl from her parents,
he must find out her age. It is pell it
is no defense that he had every reason to think
her over sixteen. So under prohibitary liquor law, it has
been held that if a man sells plantation bitters, it
is no defense that he does not know them to
be intoxicating, And there are other examples of the same kind. Now,

(37:54):
if experienced shows was deemed by the lawmaker 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

(38:16):
the prevention of such deaths. The law maker 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 sow on the act of the pell not only

(38:37):
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.

(38:58):
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,

(39:18):
and which has no reason to suppose will do more
than slight bodily harm, but which does kill the other
he commits manslaughter, not murder. But if the blow is
struck as hard as possible with an iron bar, and
each sick, it is murder. So if at the time
of striking with a switch, the party knows an additional

(39:39):
fact by reason of which he foresees the deaths will
be the consequence of a slight blow, as for instance,
that the other has heart disease, the offense is equally murder.
To explode a vowl of gunpowder in a crowd its
treat and kill people is murder, although the actor hopes
that no such harm will be done till a man

(40:00):
by carelessly riding in the same street would commonly be manslaughter. Perhaps, however,
a case could be put where the riding was so
manifestly dangerous that it would be murder. To occur 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

(40:22):
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 a 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

(40:44):
is manslaughter though he gives loud warning, and murder if
he knows of their passing and gives no warning at all.
The law of manslaughter contains another doctrine which should be
referred to in order to complete the understanding of the
general prince Us of the criminal law. This doctrine is
that provocation may reduce an offense which would otherwise have

(41:07):
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

(41:29):
be urged on the other side, that if the object
of punishment is prevention, the heaviest punishment should be threatened
whether the strongest motive is needed to restrain, and primitive
legislation seems sometimes to have gone on that principle. But
if any seat will restrain a man in a passion,
a seat of lessoned deaths will be sufficient, and therefore

(41:51):
the extreme penalty has been sought 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

(42:13):
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

(42:34):
said that even what the law admits to be provocation
does not extenuate the guilt of homicide unless a person
provoked is at the time when he does a deed
deprived of the power of self control by the provocation
which he has received. There are obvious reasons for taking
the actual state of the defendant's consciousness into account. To

(42:56):
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

(43:17):
external tests. The court seemed to have decided between murder
and manslaughter on such grounds as the nature of the
weapon used, or the length of time between the provocation
and the act. But in other cases the question whether
the prisoner was deprived of self control by passion has
been left to the jury. As the object of this

(43:38):
lecture is not to give an outline of the criminal law,
but to explain its general theory, I shall only consider
such offenses as through 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

(43:59):
required to constitute that offense was the malice of foresought
of murder. The charge of malice of foresought in an
indictment for murder has been shown not to mean a
state of the defendant's mind, as is often sought, except
in the sense that he knew circumstances which did in
fact make his conduct dangerous. It is in truce an

(44:21):
allegation like that of negligence, which asserts that the party
accused did not 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

(44:45):
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 s some meaning is seconded
by the unreasonableness of making every willful trespass criminal if

(45:06):
this reasoning prevails. Maliciously is here used in its popular sense,
and in pause that the motive for the defendants act
was the 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

(45:27):
law need not profess to be consistent with itself or
with the sery 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

(45:51):
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

(46:11):
satisfactorily settled by compensation, but everyone knows that sometimes secret
harm is done by neighbour to neighbour out of pure
mannice and spite. The damage can be paid for, but
the malignity calls for revenge, and the difficulty of detecting
the ausers of such wrongs, which are always done secretly,

(46:32):
affords a ground for punishment even if revenge is sought. 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

(46:56):
was not malicious, where prisoners set fire to his prison
not from a desire to consume the building, but solely
to affect his escape. But it seems to be the
better opinion that this is arson, in which case an
intentional burning is malicious within the meaning of the rule.
When we remember that arson was the subject of one

(47:17):
of the old appeals, which take us far back into
the early law, we may readily understand that only intentional
burnings were addressed in that way. The appeal of arson
was brother to the appeal deperchae et plagis, as the
latter was founded on a warlike assault. The former supposed
a house firing for robbery or revenge, such as that

(47:41):
by Nyan 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 us houses that the fire will

(48:01):
manifestly endanger them, is guilty of arson if one of
the other houses is burned in consequence. In this case,
an act which would not have been arsen. Taking only
its immediate consequences into account becomes arsen by reason of
more remote consequences which were manifestly likely to follow, whether

(48:23):
they were actually intended or not. If that may be
the effect of setting fire to sings 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. Cases may

(48:45):
easily be imagined where firing a gun, or making a
chemical mixture, or piling up oil drags, or twenty other
sings 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

(49:07):
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

(49:29):
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

(49:50):
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 larstning.
If an act is done of which the natural and

(50:11):
probable 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

(50:34):
act a criminal character in such instances. 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

(50:54):
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

(51:19):
is at least colour of a soorty 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. But such acts
are not the only punishable attempts. There is another class
in which actual intent is clearly necessary, and the existence

(51:42):
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 could not have affected the
crime unless followed by other acts on the part of
the wrong da. For instance, lighting a match with intent
to set fire to a haystack has been held to

(52:03):
amount to a criminal attempt to burn it, although the
defendant blew out the match on seeing that he was watched.
So the purchase of dies for making counterfeit coin is
a misdemeanor, although of course the coin would not have
been counterfeited unless the dies were used. In such cases,

(52:23):
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 a common working of

(52:46):
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

(53:06):
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,

(53:28):
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 innocent
act harmful, because it raises a probability that it will
be followed by such other acts and events as will

(53:49):
altogether 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

(54:09):
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, is
no more punishable than if he had sat in his
chair and resolved to shoot somebody, but on second sorts,
had given up the notion. On the other hand, a

(54:31):
slave who ran after a white woman but desisted before
he caught her has been convicted of an attempt to
commit rape. 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

(54:54):
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

(55:15):
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 change his mind before he comes to the point.

(55:36):
But when he has truck the match or cock, to
name 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

(55:57):
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 slave owning 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

(56:18):
of wood, sinking it to be a man, is not
an attempt to murder, and that to put a hand
into an empty pocket intending to picket is not an
attempt to commit larcening, although on the latter question there
is a difference of opinion. The reason given is that
an act which could not have affected the crime if
the actor had been allowed to follow it up to

(56:39):
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 a
prevention of harm. But even to prevent harm effectually. It

(57:00):
will not do to be too exact. I do not
suppose that firing a pistol at a man was 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 course of nature. It is just as impossible that

(57:21):
that bullet, under those circumstances should hit that man as
a big 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

(57:44):
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
seft can be committed in an empty pocket. Besides that,
the harm of a successful seft is less than that
of murder. It might be said that even such sins

(58:04):
as these should be punished, in order to make discouragement
broad enough and easy to understand. They remain to be
considered certain substantive crimes which differ in very important ways
for 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. The type of

(58:28):
these is larceny. Under this name, acts are punished which
of themselves would not be sufficient to accomplish the evil
which the law seeks to prevent, and which are treated
as equally criminal whether the evil has been accomplished or not. Murder, manslaughter,
and arson, on the other hand, are not committed unless
the evil is accomplished, and they all consist of acts

(58:51):
the tendency of which, under the surrounding circumstances, is to
hurt or destroy person or property by the mere working
natural laws. In a larceny, the consequences immediately flowing from
the act are generally exhausted with little or no harm
to the owner. Goods are removed from his possession by trespass,

(59:14):
and that is all when the crime is complete, but
they must be permanently kept from him before the harm
is done which the law seeks to prevent. A momentary
loss of possession is not what has been guarded against
with such severe penalties. What the law means to prevent
is the loss of it wholly and forever, as is
shown by the fact that it is not larceny to

(59:37):
take for a temporary use without intending to deprive the
owner of his property. If then the law punishes the
mere act of taking, it punishes an act which will
not of itself produce the evil effect sought to be prevented,
and punishes it before that effect has in any way
come to pass. The reason is plain enough. The law

(01:00:00):
or cannot wait until the property has been used up
or destroyed in other hands than the owners, or until
the owner has died, in order to make sure that
the harm which it seeks to prevent has been done,
And for the same reason it cannot confine itself to
acts likely to do that harm. For the harm of
permanent loss of property will not follow from the act

(01:00:22):
of taking, but only from the series of acts which
constitute removing and keeping the property after it has been taken.
After these preliminaries, the bearing of intent upon the crime
is easily seen. According to mister Bishop, larceny is the
taking and removing by trespass of personal property which the

(01:00:45):
trespasser knows to belong either generally or specially to another,
with the intent to deprive such owner of his ownership therein,
and perhaps it should be added, for the sake of
some advantage to the trespasser, a proposition on which the
decisions are not harmonious. There must be an intent to

(01:01:06):
deprive such owner of his ownership therein, it is said,
But why is it because the law is more anxious
not to put a man in prison for stealing unless
he is actually wicked, than it is not to hang
him for killing another, That can hardly be. The true
answer is that the intent is an index to the

(01:01:27):
external event which probably would have happened, and that if
the law is to punish at all, it must in
this case go on probabilities, not on accomplished facts. The
analogy to the manner of dealing with attempts is plain.
Ceft may be called an attempt to permanently deprive a
man of his poverty, which is punished with the same severity,

(01:01:48):
whether successful or not. If seft can widely be considered
in this way, intent must play the same part as
in other attempts. An act which does not fully accomplish
the privoted result may be made wrongful by evidence that,
but for some interference, it would have been followed by
other acts coordinated with it to produce that result. This

(01:02:12):
can only be shown by showing intent inceft. The intent
to deprive the owner of his property establishes that the
thief would have retained or would not have taken steps
to restore the stolen goods. Nor would it matter that
the sief afterwards changed his mind and return the goods.
From the point of view of attempt, the crime was

(01:02:34):
already complete when the property was carried off. It may
be objected to this view that if intent is only
a makeshift which from a practical necessity takes the place
of actual deprivation, it or not to be required where
the actual deprivation is wholly accomplished, provided the same criminal
act produces the whole effect. Suppose, for instance, that by

(01:02:59):
one and the same motion, a man sees and backs
another's horse over a precipice. The whole evil which the
law seeks to prevent is an actual and manifestly certain
consequence of the act under the known circumstances. In such
a case, if the law of larceny is consistent with
the series here maintained, the act should be passed upon

(01:03:22):
according to its tendency, and the actual intent of the
wrong dua not in any way considered. Yet it is
possible to say the least that even in such a case,
the intent would make all the difference. I assume that
the act was without excuse and wrongful, and that it
would have amounted to larceny if done for the purpose
of depriving the owner of his horse. Nevertheless, if it

(01:03:45):
was done for the sake of an experiment, and without
actual foresight of the destruction or evil design against the owner,
the trespasser might not be held acief. The inconsistency, if
there is one, seems to be explained by the way
in which the law has grown. The distinctions of the
common law as to seft are not those of a

(01:04:07):
broad theory of legislation. They are highly technical and very
largely dependent upon history for explanation. The type of theft
is taking to one's own user. It used to be,
and sometimes still is sought that the taking must be
lucre ktssa for the sake of some advantage to the
Sif in such cases the owner is deprived of his

(01:04:30):
property by the siefs keeping it, not by its destruction,
and the permanence of his loss can only be judged
of beforehand by the intent to keep. The intent is
therefore always necessary, and it is naturally stated in the
form of a self regarding intent. It was an advance
on the old presidents when it was decided that the

(01:04:51):
intent to deprive the owner of his poverty was sufficient.
As late as eighteen fifteen, the English judges stood only
six to five in favor of the poplicace that it
was larceny to take a horse intending to kill it
for no other purpose than to destroy evidence against a friend.
Even that case, however, did not do away with the
universality of intent as a test for the destruction followed

(01:05:15):
the taking, and it is an ancient rule that the
criminality of the act must be determined by the state
of things at the time of the taking, and not afterwards.
Whether the law of larceny would follow what seems to
be the general principle of criminal law or would be
held back by tradition, could only be decided by a

(01:05:35):
case like that supposed above, where the same act accomplishes
both taking and destruction. As has been suggested already, tradition
might very possibly prevail. Another crime in which the peculiarities
noticed in larceny are still more clearly marked and at
the same time more easily explained, is burglary. It is

(01:05:57):
divined as breaking and entering a dwelling house by night
with intent to commit a felony therein, the object of
punishing such a breaking and entering is not to prevent trespasses,
even when committed by night, but only such trespasses as
are the first step to wrongs of a greater magnitude,
like robbery or murder. In this case, the function of intent,

(01:06:20):
when proved, appears more clearly than in SFT, but it
is precisely similar. It is an index to the probability
of certain future acts which the law seeks to prevent,
and here the law gives evidence that this is the
true explanation, for if the apprehended act did follow, then
it is no longer necessary to allege that the breaking

(01:06:42):
and entering was with that intent. An indictment for burglary
which charges that the defendant broke into a dwelling house
and stole certain property is just as good as one
which alleges that he broke in with intent to steal.
It is believed that enough has now been said to
explain the jail theory of criminal liability as it stands

(01:07:03):
at common law. The result may be summed up as follows.
All acts are indifferent per se in the characteristic type
of substantive crime. Acts are ended criminal because they are
done under circumstances in which they will probably cause some
harm which the law seeks to prevent. The test of
criminality in such cases is the degree of danger shown

(01:07:26):
by experience to attend that act under those circumstances. In
such cases, the men's rea or actual wickedness of the
party is wholly unnecessary, and all reference to the state
of his consciousness is misleading if it means anything more
than that the circumstances in connection with which the tendency
of his act is judged are the circumstances known to him.

(01:07:50):
Even the requirement of knowledge is subject to certain limitations.
A man must find out at his perroll things which
a reasonable and prudent man would have inferred from the
sings actually known. In some cases, especially if statutory crimes,
he must go even further, And when he knows certain facts,
must find out at his pell whether the other facts

(01:08:12):
are present which would make the act criminal. A man
who abducts a girl from her parents in England must
find out at his pell whether she is under sixteen.
In some cases, it may be that the consequence of
the act under the circumstances must be actually foreseen, if
it is a consequence which a prudent man would not

(01:08:32):
have foreseen. The reference to the prudent man as a
standard is the only form in which blameworthiness as such
is an element of crime, and what would be blameworthy
in such a man is an element, first as a
survival of true or standards. Second, because to punish what
would not be blameworthy and an average member of the

(01:08:53):
community would be to enforce a standard which was indefensible
soretically and which practically too high for that community. In
some cases, actual malice or intent in the common meaning
of those words, is an element in crime. But it
will be found that when it is so, it is
because the act, when done maliciously, is followed by harm

(01:09:15):
which would not have followed the act alone, or because
the intent raises a strong probability that an act innocent
in itself will be followed by other acts or events
in a connection with which it will accomplish the results
sought to be prevented by law. End of a lecture
two