Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 24

I now proceed to consider the import of ‘guilt’ or ‘imputability:’ which it is necessary to determine in order that we may fully apprehend the nature of injury or wrong.

Every act and every forbearance derives its importance or interest from its positive or negative consequences: that is to say, from certain events by which it is followed; or from its preventing events which would or might have happened, if the act done had not been done, or if the act forborne had been done.

458Consequently, Although acts and forbearances are the immediate objects of duties, the positive and negative consequences of the acts and forbearances enjoined, are the objects which they regard remotely.

That an act or acts may be done, is the immediate purpose of a positive duty. But the production of events by which the act may be followed, or the prevention of events which may happen if the act be not done, is the more remote purpose for which the duty is imposed.

That an act or acts may be forborne, is the immediate purpose of a negative duty. But the prevention of events which may happen in case the act be done, or the production of events which the act might prevent, is the more remote purpose for which the duty is imposed.

Forbearances, Omissions, or Acts, which are inconsistent ent with the remote purposes of duties.

If the act enjoined be forborne or omitted, or if the act forbidden be done, the positive or negative consequences, which it is the purpose of the duty to produce, are certainly or probably not produced: Whilst the opposite or contrary consequences, which it is the purpose of the duty to avert, certainly or probably follow the forbearance, omission, or act.

The persons who have forborne, omitted, or acted, are guilty. Or the persons who have forborne, omitted, or acted, are in that plight or predicament which is styled ‘guilt.’

The forbearances, omissions, or acts, together with such of their consequences as it was the purpose of the duties to avert, are imputable to the persons who have forborne, omitted, or acted. Or the plight or predicament of the persons who have forborne, omitted, or acted, is styled ‘imputability.’⁹⁶

⁹⁶ (‘lmputability’ is properly applicable to the culpable act, forbearance, or omission. It is, however, applied to the plight or predicament of the party to whom such act, forbearance, or omission, is imputable.)

All these expressions, it appears to me, are equivalent. They all of them denote this, and nothing but this: ‘that the persons, who have forborne, omitted, or acted, have thereby violated or broken duties or obligations.’

A wrong, or injury, is an act, forbearance, or omission, of such a character, that the party is guilty:

And, To be guilty, is to have acted, forborne, or omitted, in such wise, that the act, forbearance, or omission, is an injury or wrong.

If the act forbearance, or omission, be an injury or wrong, 459and if the party be therefore guilty, the act, forbearance, or omission, together with such of its consequences, as it was the purpose of the duty to avert, are imputable to the party. And if the act, forbearance, or omission, together with such of its consequences as it was the purpose of the duty to avert, be imputable to the party, the party has broken or violated a duty or obligation.

Intention, negligence, heedlessness, or rashness, is of the essence of injury, guilt, imputability, or breach of duty.

As I shall shew hereafter, intention, negligence, heedlessness, or rashness, is an essentially component part of injury or wrong; of guilt or imputability; of breach or violation of duty or obligation.

Whether the act, forbearance, or omission, constitute an injury or wrong; or whether the party be placed by it in the predicament of guilt or imputability; or whether it constitute a breach of duty or obligation; partly depends upon his consciousness, with regard to it, or its consequences, at and before the time of the act, forbearance, or omission. Unless the party intended, or was negligent, heedless, or rash, the act, forbearance, or omission, is not an injury or wrong; the party is not placed by it in the predicament of guilt or irnputability; nor is it a breach or violation of duty or obligation.

But a necessary ingredient is not the compound into which that ingredient must enter before the compound can exist. An essential part is not the complex whole of which it is an essential part.

Intention, negligence, heedlessness, or rashness, is of the essence of injury or wrong; is of the essence of breach of duty; is a necessary condition precedent to the existence of that plight or predicament which is styled guilt or imputability.

But intention, negligence, heedlessness, or rashness, is not of itself injury or wrong; is not of itself breach of duty; will not of itself place the party in the plight or predicament of guilt or imputability. Intention, negligence, heedlessness, or rashness, will not place the party in the plight of guilt or imputability, unless it be followed or accompanied by an act, forbearance, or omission: by an act, forbearance, or omission which amounts to an injury or wrong, provided it be preceded and accompanied by that state of the mind. Action, forbearance, or omission, is as necessary an ingredient in the notion of injury, guilt, or imputability, as the intention, negligence, heedlessness, or rashness, by which the action, forbearance, or omission, is preceded or accompanied. The notion of injury, guilt, or imputability, does not consist of either considered alone, but is compounded of both taken in conjunction.

Brief analysis of Negligence and its modes; of Intention regarding the present and Intention regarding the future.

If I am negligent, I advert not to a given act: And, by reason of that inadvertence, I omit the act.

If I am heedless, I will and do an act, not adverting to its probable consequences: And, by reason of that inadvertence, I will and do the act.

If I am rash, I will and do an act, adverting to its probable consequences; but, by reason of a missupposition which I examine inadvertently, I think that those probable consequences will not ensue. And, by reason of my insufficient advertence to the ground of the missupposition, I will and do the act.

Consequently, negligence, heedlessness, or rashness, supposes an omission or act, which is the result of inadvertence. To that inadvertence, as taken or considered in conjunction with the omission or act, we give the name of negligence, heedlessness, or rashness. But none of those names has the shadow of a meaning, unless the inadvertence, to which it is applied, be considered in conjunction with the omission or act of which the inadvertence is the cause.

If I intend, my intention regards the present, or my intention regards the future. If my intention regards the present, I presently do an act, expecting consequences: Or I presently do an act, or am presently inactive, knowing that the act which I do, or the inaction wherein I am, excludes for the present the performance of another act. In the former case, I presently do an act, intending consequences. In the latter case, I presently forbear from an act.

In either case, my intention is necessarily coupled with a present act or[5^th ed.: of] forbearance: And the word ‘intention’ has no meaning, unless the consciousness or belief to which it is applied be considered in conjunction with that act or forbearance.

If my intention regard the future, I presently expect or believe that I shall act or forbear hereafter.

Whether an intention, neither consummate nor followed by an attempt, could be made the object of a negative obligation? (see p. 432, ante.)

And, in this single case, it is (I think) possible to imagine, that mere consciousness might be treated as a wrong: might be imputed to the party: or might place the party in the plight or predicament which is styled imputability or guilt.

We might (I incline to think) be obliged to forbear from intentions, which regard future acts, or future forbearances from action: Or, at least, to forbear from such of those intentions, as are settled, deliberate, or frequently recurring to the mind. The fear of punishment might prevent the frequent recurrence; and might, therefore, prevent the pernicious acts or forbearances, to 461which intentions (when they recur frequently) certainly or probably lead.

Be this as it may, I am not aware of a positive system of Law, wherein an intention, without an act or forbearance, places the party in the predicament which is styled imputability. In every positive system of which I have any knowledge, a mere intention to forbear in future is innocent. And an intention to act in future is not imputed to the party, unless it be followed by an act;⁹⁷ unless it be followed by an act which accomplishes his ultimate purpose, or by an act which is an attempt or endeavour to accomplish that ultimate purpose. In either case, the party is guilty, because the intention is coupled with an act; and with an act from which he is obliged to forbear or abstain. For, though he is not obliged to forbear from the intention, he is obliged to forbear from endeavours to accomplish that intention, as well as from such acts as might accomplish his intention directly.

⁹⁷ See Feuerbach, ‘Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts,’ pp. 33, 41, 42, 43. Rosshirt; ‘Lehrbnch des Criminal-Rechts,’ p. 73.

Restriction of [‘Guilt’ or] ‘Culpa’ to Intention, Negligence, Heedlessness, or Rashness, as the cause of Action, Forbearance, or Omission.

Without, then, staying to inquire, whether we might be obliged to forbear from naked intentions, I assume, for the present, the following conclusion: a conclusion which accords with general or universal practice.

Intention, negligence, heedlessness, or rashness, is not of itself wrong, or breach of duty or obligation; nor does it of itself place the party in the predicament of guilt or imputability. In order that the party may be placed in that predicament, his intention, negligence, heedlessness, or rashness, must be referred to an act, forbearance, or omission, of which it was the cause.

Accordingly, the term ‘Injury’ (or ‘Wrong’) and the term ‘Breach of Duty,’ is invariably applied to a compound of action, forbearance, or omission, and of intention, negligence, heedlessness, or rashness. The term ‘imputability’ is also applied invariably in a similar sense. It denotes that the party has broken a duty, by some act, forbearance, or omission which was the effect of an intention he had conceived, or of his negligence, heedlessness, or rashness.

But, in the language of lawyers, and especially of criminal lawyers, ‘guilt’ or ‘culpa’ is frequently restricted to the state of the party’s mind. It denotes the intention of the party, or his negligence, heedlessness, or rashness; although it necessarily connotes (or signifies indirectly) the act or forbearance which was 462the effect of his intention, or the omission or act which was the effect of his negligence, or of his heedlessness or temerity.

In order that I may shew the meaning which is commonly annexed to ‘guilt,’ I will read a few passages from two treatises on German Criminal Law.

One of them is the work of Feuerbach, the most celebrated Criminal Lawyer now living:⁹⁸ formerly professor of Roman and German Jurisprudence, and now president of a Court of Appeal in the Kingdom of Bavaria.

⁹⁸ He died in 1833. The passage quoted is at pages 78, 79 of his work.

Feuerbach’s book is entitled, ‘Institutes of the Penal Law which obtains generally in Germany.’

The title of Dr. Rosshirt’s book may be translated as follows: ‘Institutes of the Criminal Law which obtains generally in Germany: Including a particular Exposition of Roman Criminal Law, in so far as the German is derived from it.’

‘The application (says Feuerbach) of a penal Law, supposes that the will of the party was determined positively or negatively: that this determination of the will was contrary or adverse to the duty imposed by the Law: and that this determination of the will was the cause of the criminal fact.’ ‘The reference of the fact as effect to the determination of the will as cause, constitutes that which is styled imputation. And a party who is placed in such a predicament, that a criminal fact may be imputed to a determination of his will, is said to be in a state or condition of imputability.’

‘The reference of the fact as effect to the determination of the will as cause, settles or fixes the legal character of the latter.

‘In consequence of that reference (or by reason of the imputation of the fact) the determination of the will is held or adjudged to be guilt: Which guilt is the ground of the punishment applied to the party.’

He adds, in a note, ‘that the “culpa” of the Roman Lawyers (as taken in its largest signification), and also the “reatus” of more recent writers upon jurisprudence, answers to the “Schuld” or “das Verschulden” of the German Law.’

‘Culpa’ (as taken in its largest signification), reatus, and ‘Schuld’ (or ‘das Verschulden’) may (I apprehend) be translated by the English ‘Guilt.’

The language of Dr. Rosshirt accords with that of Feuerbach.⁹⁹ ‘In order (says he) to the existence of a Crime, the 463will of the party must have been in such a predicament, that the criminal fact may be imputed: that is to say; that the criminal fact may be imputed as effect to the state of his will as cause.’

‘The term “Culpa” as used by the Roman Lawyers, is frequently synonymous with Crime or Delict, or with Injury generally. But, when they employ it in a stricter sense, it is equivalent to the reatus of modern philosophical jurisprudence, to the Verschulden of the German Law. It denotes the state of the party’s will, considered as the cause of the criminal fact. It denotes the dolus, or the negligentia, of which the criminal fact is the ascertained consequence or effect.’

In translating these passages I have thrown overboard certain terms borrowed from the Kantian Philosophy. For the modem German Jurists (like the Classical Jurists of old) are prone to shew off their knowledge of Philosophy, though actually occupied with the exposition of municipal and positive Law.

These impertinent terms being duly ejected, the meaning of the passages is clear and simple.

It merely amounts to this. ‘Culpa’ denotes the state of the party’s mind: although it connotes (or embraces by implication) the positive or negative consequence of the state of his mind.

But I think that the term ‘Guilt,’ as used by English lawyers, not only denotes the state of the party’s mind, but also the act, forbearance, or omission, which was the consequence. It imports generally ‘that the party has broken a duty.’ It embraces all the ingredients which enter into the composition of the wrong; and is not restricted to one of those necessary ingredients. We say that a man is guilty of an injury, or is guilty of a breach of duty: expressions which would not be applicable, unless the term ‘guilt’ imported the whole offence, instead of being limited (like the term ‘culpa’) to an essentially component part.

And this extended meaning of the word ‘guilt’ is likewise (I think) the meaning which convenience prescribes. A general expression for culpable intention, and for the various modifications of negligence, tends to confusion and obscurity rather than to order and clearness. I am not aware of a single instance, in which it can be necessary to talk of them collectively. But it is necessary to distinguish them in numberless instances.

Before I conclude this subject, I will remark that the term ‘Injury,’ and also the term ‘Guilt,’ is merely the contradictory of the term ‘Duty’ or ‘Obligation.’

464If I am bound or obliged to do, I am bound or obliged not to prætermit the act intentionally or negligently.

If I am bound or obliged to forbear, I am bound or obliged not to do the act intending certain consequences, or not to do the act heedlessly or rashly.

I am not absolutely obliged to do or forbear, but to do or forbear with those various modifications.

If I do an act intending certain consequences, or if I do an act heedlessly or rashly, I break a negative duty.

An injury, or breach of duty, is therefore the contradictory of that which the Law imposing the duty enjoins or forbids:—‘Omne id quod non jure fit.’

Accordingly, that may be an injury to one purpose which is not an injury to another purpose. Or (changing the expression) that may be a breach of one duty, which is not a breach of another duty.

Each of these is a distinct duty; and the compound whole, which constitutes the corresponding injury, consists, in each case, of a distinct set of ingredients.

But if I kill on a sudden provocation, I am guilty of Voluntary Manslaughter. With reference to the Law which forbids murder, I am not guilty, or have not committed a wrong. To adopt the current phrase, there is not the corpus delicti which will sustain a charge of Murder. There is not deliberate intention or gross heedlessness.

For corpus delicti (a phrase introduced by certain modern civilians) is a collective name for the sum or aggregate of the various ingredients which make a given fact a breach of a given Law.¹ Corpus is used by the Roman lawyers (like universitas) to express every whole composed of parts, as in the phrase corpus juris, which with the Roman lawyers stood for the aggregate of the laws, though by the moderns it is applied to the particular volumes which contain Justinian’s collections.

¹ For Corpus Delicti, see Feuerbach, 75, 76; Rosshirt, 79.

Before I conclude I must correct certain mistakes which I committed in stating the import of dolus and culpa. I said, that dolus is exactly equivalent to intention, except when dolus 465is used in its original and narrow sense, to signify fraud.² But this is not precisely the case. Dolus comprises in its meaning, intention, but it must be direct intention: the mischief done must not only be intended but desired; it must be the very end for which the party does the act. Dolus does not include what has been called by some modem civilians dolus indirectus, and by Mr. Bentham indirect intentionality; i.e. intention to do an act which is not desired; as, for example, when I shoot at one person while another is standing so near that I think it probable I shall kill him in endeavouring to kill the other. Nor does dolus include hasty or sudden intention, as contradistinguished from deliberate intention. This is included in culpa as opposed to dolus: it would probably be included in temerity, in consequence of a confusion of ideas to which I formerly adverted. Dolus, therefore, denotes all intention, except indirect and sudden intention. These are comprised in culpa as opposed to dolus. Culpa, therefore, includes negligence, heedlessness, rashness, and indirect and sudden intention. This, at least, is the meaning of culpa as opposed to dolus. As used in another sense, to which I adverted in a former part of this lecture, it denotes intention of any kind, or negligence, heedlessness, or rashness; in short, the mental state which is the cause of any effect that can be imputed to the party. Negligentia, in the case of obligatio in the strict sense, includes intention of all species, together with negligence, heedlessness, and temerity, particularly in the position of parties who are bound to diligentia, by reason of fiduciary situations; of some trust or other with which they are invested. These are generally the cases in which intention or negligence are brought in question. In most other cases they are necessarily implied in the breach of the obligatio.

² See p. 431, ante.

The word malus is often coupled with dolus by the Roman lawyers. The reason is that there is a dolus bonus, a machinatio which is innocent or laudable; artifice, for example, which is made use of to prevent an impending crime. All other dolus is dolus malus: and this is the only meaning of the word malus when attached to dolus.

An example occurs to me which shews the importance of this classification of the various states of consciousness. It is laid down that there cannot be a culpose attempt. Now this would be true if culpa only included negligence, heedlessness, or rashness; because an attempt is of course intentional; but if 466dolus indirectus, or sudden intention, be included in culpa, it is clear that there may be a culpose attempt.

Damage corpore to things belonging to another: amounts to a breach of Lex Aquilia.³

³ ‘Et placuit ita demum ex ista lege actionem esse, si quis corpore suo damnum dederit atqui alio modo damno dato, utiles actiones dantur,’ etc.—Gaius, iii. § 219.

Damage done by the bodily might of the offender was the proper subject of the Aquilian Law; which was however extended per utiles actiones to other damage within its Equity.—Marg. Note.

Damage non corpore amounts to a breach not of Lex Aquilia, but of a duty imposed by the Prætorian Edicts and for which an actio utilis lay.

⁴ ‘Delictum consummatum. Conatus delinquendi.’ Consummate Crimes and Criminal Attempts. Feuerbach, pp. 41, 42, 43.

‘Eine Handlung, welche die Hervorbringung eines Verbrechens zum Zwecke hat, ohne den bezweckten verbrecherischen Thatbestand wirklich zu machen, ist ein Versuch.’ Rosshirt, p. 58.

For want of the consequence there is not the Corpus of the principal delict. But the intention coupled with an act tending to the consequence constitutes the corpus of the secondary delict styled an ‘attempt.’

I remarked in a former Lecture that ‘jus,’ ‘recht,’ or ‘right,’ frequently denotes the duty incumbent upon the party obliged, as well as the right residing in the opposite party; and that the ‘Obligatio’ of the Roman Lawyers denotes the jus in personam residing in the party entitled, as well as the obligation incumbent upon the party obliged.

The German ‘Schuld’ (or das ‘Verschulden’) reminds me of a similar ambiguity. ‘Schuld’ signifies properly ‘liability.’ To impute to a person ‘Schuld,’ is to say that he has broken a duty, and is now liable to the sanction.

Accordingly, ‘Schuldner’ is synonymous with the Roman ‘Debitor;’ which applies to any person lying under any obligation: that is to say, an obligation (stricto sensu), or in the sense of the Roman Lawyers.

‘Creditor,’ is the correlative of ‘Debitor,’ and applies to any person who has jus in personam. The French ‘Débiteur’ and ‘Créancier’ have precisely the same meanings. The English ‘Obligor’ and ‘Obligee’ ought to bear the same significations. But, in the technical language of our Law, the term ‘obligation’ or ‘bond’ has been miserably mutilated. Instead of denoting obligatio (as correlating with jus in personam), it is applied exclusively to certain unilateral contracts evidenced by writing under seal. Or, rather, it is applied to the writing under seal by which the unilateral contract is evidenced. 467That is to say, it is not the name of an obligation, but of an instrument evidencing a contract from which an obligation arises. And, in consequence of this absurd application of the term Obligation or bond, the well-constructed expressions Obligor and Obligee are also completely spoiled. If it were used properly, the term ‘Obligee’ would apply to any person invested with jus in personam: And the term ‘Obligor’ (as the correlative of ‘Obligee’) would apply to the party lying under the corresponding duty. But in consequence of the narrow application of ‘bond’ or ‘obligation,’ the term ‘obligee,’ with its correlative ‘obligor,’ exclusively applies to persons who are parties to certain contracts: namely, such unilateral contracts as are evidenced by writing under seal, and are couched in a peculiar form: That peculiar form being not less absurd than the absurd application of ‘bond’ or ‘obligation’ to which I have pointed your attention.

In the strict technical import which it bears in the English Law, the meaning of ‘debt’ is not less narrow and inconvenient than the meaning of ‘bond’ or ‘obligation.’

In the Roman Law, the term ‘debitum’ is exactly co-extensive with the related or paronymous expression ‘debitor.’ As ‘debitor’ signifies generally a person lying under an obligation, ‘debitum’ denotes (with the same generality) every act or forbearance to which a person is obliged. It denotes universally the positive or negative something which is due by virtue of an obligation: ‘id quod ex obligatione præstandum est.’

But in the strict technical import which it bears in the English Law, ‘debt’ is restricted to a definite sum of money, due or owing from one party to another party. And, accordingly, the action of debt does not in strictness lie, unless the object of the action be the recovery of a sum certain.

In later times, indeed, this strictness has been relaxed: Insomuch that debt upon simple contract is not substantially different from an action of assumpsit: whilst debt upon bond differs from an action of covenant in form rather than in effect.

As is usual in English legislation (whether it be direct or judicial) a mischievous absurdity of the old Law has been cured by a mischievous remedy. Instead of extirping pernicious rules and distinctions, English Legislators are content to palliate the mischief by the introduction of exceptions: exceptions, which aggravate the bulk of the Corpus Juris, and (what is an evil of still greater magnitude) which reduce the body of the Law to a chaos of incoherent details.⁵

⁵ It may be scarcely necessary to observe that the terms in which the author speaks of English actions at law, are directly applicable to the forms in use before the C.L.P. Acts, 1852 and 1854. The anomalies here deprecated were somewhat mitigated, though by no means removed, by those Acts.—R. C.

I will venture to affirm, that no other body of Law, obtaining in a civilized community, has so little of consistency and symmetry as our own. Hence its enormous bulk; and (what is infinitely worse than its mere bulk) the utter impossibility of conceiving it with distinctness and precision. If you would know the English Law, you must know all the details which make up the mess. For it has 468none of those large coherent principles which are a sure index to details. And, since details are infinite, it is manifest that no man (let his industry be what it may) can compass the whole system.

Consequently, the knowledge of an English Lawyer, is nothing but a beggarly account of scraps and fragments. His memory may be stored with numerous particulars, but of the Law as a whole, and of the mutual relations of its parts, he has not a conception.

Compare the best of our English treatises with the writings of the Classical Jurists and of the Modern Civilians, and you will instantly admit that there is no exaggeration in what I have ventured to state.

Returning to the subject from which I have digressed, it is remarkable that ‘Schuldner’ (in the older German Law) applied to the Creditor, as well as to the Debitor: Just as jus sometimes signifies duty, as well as right; and just as obligatio denotes jus in personam, as well as the duty to which the right corresponds.

The Reus of the Roman Lawyers is in the same predicament. As opposed to ‘Actor’ it signifies the defendant in a civil proceeding, or the party who is the object of accusation in a criminal proceeding. And, taken in this sense, it is not ambiguous.

But reus also signifies a party to a stipulation: that is to say, a unilateral contract accompanied by peculiar solemnities. And, taken in this sense, it applies to the promisee or obligee, as well as to the promisor or obligor. Both are rei. The party who makes the promise, is styled reus promittendi: The party to whom it is made, and by whom it is accepted, is styled reus stipulandi. Correi promittendi are joint promissors: Correi stipulandi, joint promisees.