LECTURE XX.
NEGLIGENCE, HEEDLESSNESS, AND RASHNESS.
Acts are willed and intended: Consequences are intended.
In my last Lecture, I endeavoured to distinguish acts (properly so called) from the events which are consequences of acts; to shew that acts are intended as well as willed; but that their consequences are never willed, although they are often intended. Forbearances are intended. In short, every forbearance is intended, but no forbearance is willed: the party wills a something inconsistent with the act forborne, conscious that the something which he presently wills, excludes (for the time being) that from which he forbears.
Motives to Forbearances.
The motives to forbearances (or, rather, to the acts which exclude the acts forborne), are different in different cases.
Disliking the consequences of the act from which I forbear, I forbear from the act because I dislike those consequences. Or without disliking (or positively liking) those consequences, I prefer the consequences of the act which I presently will, and which I could not perform unless I forbore from the other.
In the first of these cases, my motive to the act which I presently will, is styled aversion: aversion from the act forborne, or (rather) from its probable consequences. But whether the act which I will be promoted by preference or aversion, the act which I will, and not the forbearance, is the object of the volition itself. ‘To will nothing,’ is a flat contradiction in terms.77
77 It is not perhaps rigidly true that every forbearance is preceded or accompanied by an act.
Forbearances distinguished from Omissions.
Forbearances must be distinguished from Omissions.
A forbearance (taking the word in its large signification) is the not doing a given act with an intention of not doing it. The party wills something else, knowing that that which he wills excludes the given act.
An omission (taking the word in its large signification) is the not doing a given act, without adverting (at the time) to the act which is not done.
Ambiguities of the terms ‘Forbearance and Omission;’ ‘Commit and Omit.’
The term ‘forbearance’ (as it is often used) is restricted to lawful forbearances:—to such as are exacted by duties, or are not inconsistent with duties.
The term ‘omission’ (as it is often used) is restricted to unlawful or culpable omissions:—to such as are breaches of duties.
426 And, taking the terms in those restricted senses, we have no names for unlawful or culpable forbearances, or for lawful omissions. Not unfrequently, the term ‘omission’ is extended to all omissions, and also to all forbearances. Or the term ‘omission’ denotes such omissions and forbearances as are unlawful or culpable. And, in either of those cases, the not doing, which is unintentional, is confounded with the not doing, which is intentional.
‘Omit’ (as opposed to ‘commit’) is also defective or ambiguous. To ‘commit,’ is to do an act inconsistent with a duty. ‘To omit,’ is to omit unlawfully; or to omit (or forbear) unlawfully. In the first case, culpable forbearance is dropped. In the last case, culpable forbearance is confounded with culpable omission.
I think that the usage of numerous and good writers authorises the large significations which I attach to the terms in question. At all events, those significations are so clear, precise, and commodious, that I should venture to annex them to the terms, in the teeth of established usage.
Those significations I will repeat.
‘To forbear’ is not to do, with an intention of not doing.
‘A forbearance,’ is a not doing, with a like intention.
‘To omit,’ is not to do, but without thought of the act which is not done.
‘An omission,’ is a not doing, with a similar absence of consciousness.
If we would denote ‘that a forbearance or omission is a breach of duty,’ we can easily accomplish the purpose by express restriction. We can style it ‘injurious’ or ‘unlawful,’ or we can call it ‘culpable.’ Injurious or culpable omissions are frequently styled ‘negligent.’ Negligence. The party who omits is said to ‘neglect’ his duty. The omission is ascribed to his ‘negligence.’ The state of his mind at the time of the omission, is styled ‘negligence.’
These (I think) are the meanings usually attached to these terms; although the Roman Lawyers (as I shall shew immediately) have given them a larger signification.
Taking them in the meanings which (I believe) are usual, the term ‘negligent’ applies exclusively to injurious omissions:—to breaches by omission of positive duties. The party omits an act to which he is obliged (in the sense of the Roman Lawyers). He performs not an act to which he is obliged, because the act and the obligation are absent from his mind.
Heedlessness.
427‘Heedlessness’ differs from negligence, although they are closely allied.78
78 Bentham, ‘Principles,’ etc. pp. 86, 161.
The party who is negligent omits an act, and breaks a positive duty:
The party who is heedless does an act, and breaks a negative
duty.
Acts (properly so called) are not injuries or wrongs, independently of their consequences. Where an act is forbidden, the duty and the sanction are pointed at consequences which constantly or usually follow it. And (as I shall shew hereafter) the guilt or innocence of a given actor, depends upon the state of his consciousness, with regard to those consequences, in the given instance or case.
If he intend or expect them, he is guilty of the wrong at which the sanction is aimed. And, though he expect them not, they are rationally imputed to him, provided he would have expected them, if he had thought of them and of his duty. Where he does the act without adverting to those consequences, he is clear of intending those consequences, but he produces them by his heedlessness.
I endeavoured in my last Lecture to illustrate my meaning, by an example to which I now refer you.79 In the case supposed, I did not advert to the probable consequence of my act. And, since it was my duty to advert to it, I am guilty of heedlessness, although I am clear of intentional injury.
79 See p. 421, ante.
Negligence and Heedlessness compared.
The states of mind which are styled ‘Negligence’ and ‘Heedlessness’ are precisely alike. In either case the party is inadvertent. In the first case, he does not an act which he was bound to do, because he adverts not to it In the second case he does an act from which he was bound to forbear, because he adverts not to certain of its probable consequences. Absence of a thought which one’s duty would naturally suggest, is the main ingredient in each of the complex notions which are styled negligence’ and ‘heedlessness.’
Rashness.
The party who is guilty of Temerity or Rashness, like the party who is guilty of heedlessness, does an act, and breaks a positive duty. But the party who is guilty of heedlessness, thinks not of the probable mischief. The party who is guilty of rashness thinks of the probable mischief; but, in consequence of a missupposition begotten by insufficient advertence, he assumes that the mischief will not ensue in the given instance or case. Such (I think) is the meaning invariably attached to the 428expressions, ‘Rashness,’ ‘Temerity,’ ‘Foolhardiness,’ and the like. The radical idea denoted is always this. The party runs a risk of which he is conscious; but he thinks (for a reason which he examines insufficiently) that the mischief will probably be averted in the given instance.
I will again illustrate my meaning, by recurring to the example to which I have just alluded.
When I fire at the mark chalked upon the fence, it occurs to my mind that a shot may pierce the fence, and may chance to hit a passenger. But without examining carefully the ground of my conclusion I conclude that the fence is sufficiently thick to prevent a shot from passing to the road. Or, without giving myself the trouble to look into the road, I assume that a passenger is not there, because the road is seldom passed. In either cases, my confidence is rash; and, through my rashness or temerity, I am the author of the mischief. My assumption is founded upon evidence which the event shews to be worthless, and of which I should discover the worthlessness if I scrutinised it as I ought.
By the Roman Lawyers, Rashness, Heedlessness, or Negligence is, in certain cases, considered equivalent to ‘Dolus:’ that is to say, to intention. ‘Dolo comparatur.’ ‘ Vix est ut a certo nocendi proposito discerni possit.’ Changing the expression, they suppose that rashness, heedlessness, or negligence can hardly be distinguished, in certain cases, from intention.
Now this (it appears to me) is a mistake. Intention (it seems to me) is a precise state of the mind, and cannot coalesce or commingle with a different state of the mind. ‘To intend,’ is to believe that a given act will follow a given volition, or that a given consequence will follow a given act. The chance of the sequence may be rated higher or lower; but the party conceives the future event, and believes that there is a chance of its following his volition or act. Intention, therefore, is a state of consciousness.
But negligence and heedlessness suppose unconsciousness. In the first case, the party does not think of a given act. In the second case, the party does not think of a given consequence.
Now a state of mind between consciousness and unconsciousness—between intention on the one side and negligence or heedlessness on the other—seems to be impossible. The party thinks, or the party does not think, of the act or consequence. If he think of it, he intends. If he do not think of 429it, he is negligent or heedless. To say that a negligence or heedlessness may run into intention, is to say that a thought may be absent from the mind, and yet (after a fashion) present to the mind.
Nor is it possible to conceive that supposed mongrel or monster, which is neither temerity nor intention, but partakes of both:—A state of mind lying on the confines of each, without belonging precisely to the territory of either.
The party who is guilty of Rashness thinks of a given consequence: but, by reason of a missupposition arising from insufficient advertence, he concludes that the given consequence will not follow the act in the given instance. Now if he surmise (though never so hastily and faintly), that his missupposition is unfounded, he intends the consequence. For he thinks of that consequence; he believes that his missupposition may be a missupposition; and he, therefore, believes that the consequence may follow his act.
I will again revert to the example which I have already cited repeatedly.
When I fire at the mark chalked upon the fence, it occurs to my mind that the shot may pierce the fence, and may chance to hit a passenger. But I assume that the fence is sufficiently thick to intercept a pistol-shot. Or, without going to the road in order that I may be sure of the fact, I assume that a passenger cannot be there because the road is seldom passed.
Now if my missupposition be absolutely confident and sincere, I am guilty of rashness only.
But, instead of assuming confidently that the fence will intercept the ball, or that no passenger is then on the road, I may surmise that the assumption upon which I act is not altogether just. I think that a passenger may chance to be there, though I think the presence of a passenger somewhat improbable. Or, though I judge the fence a stout and thick paling, I tacitly admit that a brick wail would intercept a pistol-shot more certainly. Consequently, I intend the hurt of the passenger who is actually hit and wounded. I think of the mischief, when I will the act; I believe that my missupposition may be a missupposition; and I, therefore, believe there is a chance that the mischief to which I advert may follow my volition.
The proposition of the Roman Lawyers is, therefore, false.
The mistake (I have no doubt) arose from a confusion of ideas which is not unfrequent:—from the confusion of pro430bandum and probans:—of the subject of an inquiry into a matter of fact, with the evidence.
The state of a man’s mind can only be known by others through his acts: through his own declarations, or through other conduct of his own. Consequently, it must often be difficult to determine whether a party intended, or whether he was merely negligent, heedless, or rash. The acts to which we must resort as evidence of the state of his mind, may be ambiguous: insomuch that they lead us to one conclusion as naturally as to the other. Judging from his conduct, the man may have intended, or he may have been negligent, heedless, or rash. Either hypothesis would fit the appearances which are open to our observation.
But the difficulty which belongs to the evidence is transferred to the subject of the inquiry. Because we are unable to determine what was the state of his mind, we fancy that the state of his mind was itself indeterminate: that it lay between the confines of consciousness and unconsciousness, without belonging exactly to either. We forget that these are antagonist notions, incapable of blending.
When it was said by the Roman Lawyers, ‘that Negligence, Heedlessness, or Rashness, is equivalent, in certain cases, to Dolus or Intention,’ their meaning (I believe) was this:—
Judging from the conduct of the party, it is impossible to determine whether he intended, or whether he was negligent, heedless, or rash. And, such being the case, it shall be presumed that he intended, and his liability shall be adjusted accordingly, provided that the question arise in a civil action. If the question had arisen in the course of a criminal proceeding, then the presumption would have gone in favour of the party, and not against him.
Such (I think) is the meaning which floated before their minds: Although we must infer (if we take their expressions literally) that they believed in the possibility of a state of mind lying between consciousness and unconsciousness.
If I attempted to explain the matter fully, I should enter upon certain distinctions between civil and criminal liability, and upon the nature of præsumptiones juris or legal presumptions.
It is, therefore, clear to me, that Intention is always separated from Negligence, Heedlessness, or Rashness, by a precise line of demarcation. The state of the party’s mind is always determined, although it may be difficult (judging from his conduct) to ascertain the state of his mind.
431Before I quit this subject, I may observe that hasty intention is frequently styled rashness. For instance, an intentional manslaughter is often styled rash, because the act is not premeditated, or has not been preceded by deliberate intention. Before we can distinguish hasty from deliberate intention, we must determine the nature of intention as it regards future acts. But it is easy to see that sudden or hasty intention is utterly different from rashness. When the act is done, the party contemplates the consequence, although he has not premeditated the consequence or the act.
To resume:
Negligence, Heedlessness, and Rashness, likened and distinguished.
It is manifest that Negligence, Heedlessness, and Rashness, are closely allied. Want of the advertence which one’s duty would naturally suggest, is the fundamental or radical idea in each of the complex notions. But though they are closely allied, or are modes of the same notion, they are broadly distinguished by differences.
In cases of Negligence, the party performs not an act to which he is obliged. He breaks a positive duty.
In cases of Heedlessness or Rashness, the party does an act from which he is bound to forbear. He breaks a negative duty.
In cases of Negligence, he adverts not to the act, which it is his duty to do.
In cases of Heedlessness, he adverts not to consequences of the act which he does.
In cases of Rashness, he adverts to those consequences of the act; but, by reason of some assumption which he examines insufficiently, he concludes that those consequences will not follow the act in the instance before him.
And, since the notions are so closely allied, they are (as might be expected) often confounded. Heedlessness is frequently denoted by the term ‘negligence’; and the same term has even been extended to rashness or temerity. But the three states of mind are nevertheless distinct; and, in respect of differences between their consequences, should be distinguished.
Having tried to analyse intention (where it is coupled with will), and to settle the notions of negligence, heedlessness, and rashness, I will now trouble you with a few remarks upon certain established terms.
Dolus.
Dolus denotes, strictly, fraud80:—‘Calliditas, fallacia, machinatio, ad circumveniendum, decipiendum, fallendum alterum, adhibita.’
80 Bentham, Pr. 91.
432By a transference of its meaning which is not very explicable, it also signifies intention,81 or intentional wrong:—‘Injuria qualiscunque scienter admissa:’—‘lnjuria quam quis sciens volensque commisit.’
81 But for a modification of this statement see p. 465, post.
The use of the term dolus for the purpose of signifying intention, may, perhaps, be explained thus:
Fraud imports intention: For he who contrives or machinates ad decipiendum alterum, pursues a given purpose. For want, therefore, of a name which would denote Intention generally, the Roman Lawyers expressed it (as well as they could) by the name of a something which necessarily implied it.
It is an instance of those generalizations which are so common in language of the extension of a term denoting a species, to the genus which includes that species. [e.g. Virtue.]
Culpa.
Culpa (when opposed to Dolus) imports negligence, heedlessness, or temerity; or any injury consequent upon any of these: ‘Omnis protervitas, temeritas, inconsiderantia, desidia, negligentia, imperitia, quibus citra dolum, cui nocitum est.’ But (used in a larger sense), Culpa is equivalent to the English ‘Guilt.’ It denotes that the party has broken a duty, intentionally, negligently, heedlessly, or rashly. ‘Generatim, culpa dicitur quævis injuria ita admissa, ut jure imputari possit ejus auctori.’ In order that a given mischief may be imputed to another, ‘necesse est, ut culpâ ejus id acciderit.’ That is to say, through his intention; or through his negligence, heedlessness, or temerity (as I have explained them above).
Culpa, therefore, is sometimes opposed to Dolus; and it sometimes comprises Dolus.
Again: the term Culpa is sometimes opposed to Negligentia. In which case, these words have a very peculiar meaning.
Culpa is restricted to delicts (stricto sensu). Negligence denotes breaches of obligations (s. s.).
The injuries done through Culpa (in this sense) ‘faciendo semper admittantur.’
The injuries done ‘Negligentiâ’ (in this sense) are committed ‘faciendo aut non faciendo.’
Obligations (stricto sensu) are positive or negative.
Here then Negligentia includes, Intention, Negligence (properly so called), Heedlessness, and Temerity.
Origin of this application. Negligentia opposed to Diligentia: i.e. that care which (ex obligatione) the obliged party82 is often obliged to employ about the interests of another.
82 Trustees, Bailees etc,
Malice.
433I have already remarked upon the extension of Dolus to Intention generally. In the English law (in certain cases) we have employed the word ‘Malice’ for a similar purpose. As malice (stricto sensu) implies intention, it has been extended to cases in which there is no malice. As I have already shewn, it does not in this extended sense denote the motive. And it is manifest that the motive to a criminal action may be laudable.83 The intention of an action suggested by a blamable motive, lawful.
83 Bentham, ‘Principles,’ etc. pp. 89, 115, 132, 142.
Dolus and Culpa. Roman law.
A few words for the purpose of applying what has been said to the Roman Law. Unintentionality, and innocence of intention, seem both to be included in the case of infortunium, where there is neither dolus nor culpa. Unadvisedness coupled with heedlessness, and misadvisedness coupled with rashness, correspond to the culpa sine dolo. Direct intentionality corresponds to dolus. Oblique intentionality seems hardly to have been distinguished from direct; were it to occur, it would probably be deemed also to correspond to dolus.84
84 It is included in culpa. [Scientia, but without the voluntas nocendi. Prope dolum, but not dolus.] Nothing can be more accurate.
Meanings of Dolus, etc.
Dolus bonus et malus.—Mühlenbruch, vol. i. pp. 191, 332.
Dolus = Voluntas nocendi. Consequently it neither includes indirect, nor sudden intention—Mühl. 190, 330 et seq. Feuerbach,85 51-2, 58. Rosshirt, 37-9, 43. Bentham’s Princ.
85 Imputation, Imputability, and Guilt. Conditions of imputation:
1. Knowledge, actual or possible, on the part of the accused, of the criminality of his act or omission:
2. Dependence on his own wishes, of the forbearance or performance due.—Marginal Note.
Dolus indeterminatus.—Feuerb. 56. Rossh. 39.
Culpa = Crimen, Delictum, Injuria—Rosshirt, 42.
Culpa = Guilt: Dolus et Negligentia (in any of its modifications).—Feuerb. 78-9. Rossh. 35, 42. Mühl. 326, 330 et seq.
Culpa as opposed to Dolus. Includes indirect and hasty intention, with negligence in all its modifications.—Feuerb. 51-3, 54-5; 80. Rossh. 42-3-4. Mühl. 330 et seq.
Culpa dolo determinatta.—Feuerb. 47. Rossh. 39.
Negligentia ob obligationis vinculum, præstanda.—Mühl. 333. Mackeldey, ii. 160.
Injuria, Delictum, Crimen.—Mühl. 325-6, 185. Feuerb. 24. Rossh. 2.
Injuria (generaliter) = ‘Omne quod non jure fit.’—Justinian.
The obvious division is into 1°, Wrongful Intention with its various modifications, 2°, Wrongful inadvertence with, etc.
Inconsistencies consequent upon putting indirect and sudden intention into culpa, and excluding them from dolus.—Feuerb. 80. Rossh. 86.