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
