468
[end of lecture 24]

LECTURE XXV.

ANALYSIS OF INJURY OR WRONG CONTINUED.

Intention or inadvertence is of the essence of injury.

I assumed, in my last Lecture, that Intention or Inadvertence is a necessary ingredient in injury or wrong.

A short analysis will shew the truth of the assumption.

In case the duty be positive, the prætermission of the act which the duty requires, is the result of forbearance, or the result of omission.

If the prætermission of the act be the result of forbearance, the party, at the time of the forbearance, is conscious of his duty, and knows that the duty of which he is presently conscious, requires the performance of the act from which he forbears.

If the prætermission of the act be the result of omission, the party is conscious generally of the duty incumbent upon him, but adverts not to his duty, or to the act which his duty requires, at the moment of the omission.

469In either case, he is guilty of injury or wrong, unless some special reason exempt him from liability.

In case the duty be negative, the party does an act from which he is bound to forbear, expecting consequences which it is the object of the duty to prevent. Or the party does the act without adverting to those consequences, or assuming inadvertently that those consequences will not ensue. And, on any of these suppositions, he is guilty of Injury or Wrong, unless some special reason exempt him from liability.

Now, in all these various cases of forbearance, omission, and action, the party expects consequences inconsistent with the objects of his duty, or, in case he adverted or attended in the manner which his duty requires, he might perceive that such consequences would certainly or probably ensue. In other words, he forbears or acts with an intention adverse to his duty, or else he omits or acts negligently, heedlessly, or rashly.

Unless he expected consequences inconsistent with the objects of his duty, or might expect such consequences if he adverted or attended as he ought, he would not and could not know, that the forbearance, omission, or act would conflict with his duty. And, by consequence, the sanction would not and could not operate as a motive to the fulfilment of the duty. In short, men are held to their duties by the sanctions annexed to those duties. But sanctions operate upon the obliged in a twofold manner: that is to say, They counteract the motives or desires which prompt to a breach of duty, and they tend to excite the attention which the fulfilment of duty requires. Consequently, injury or wrong supposes unlawful intention, or one of those modes of unlawful inadvertence which are styled negligence, heedlessness, and rashness. For unless the party knew that he was violating his duty, or unless he might have known that he was violating his duty, the sanction could not operate, at the moment of the wrong, to the end of impelling him to the act which the Law enjoins, or of deterring him from the act which the Law forbids.

An absurdity in English Law from inattention to this principle.

The only instance wherein intention or inadvertence is not an ingredient in breach of duty, is furnished by the Law of England. By that law, in cases of Obligation arising directly from contract, it frequently happens that the performance of the obligation is due from the very instant at which the obligation arises. Or (speaking more accurately) the time for performance is not determined by the contract, and performance is due so soon as the obligee shall desire it.

470For example:

If a moveable be deposited with me in order that I may keep it in safety, I am bound, from the moment of the deposit, to restore it to the bailor.

If I buy goods, and no time be fixed for the payment of the price, I am bound, from the moment of the delivery, to pay the price to the seller.

Now, in these, and in similar cases, it is impossible that the obligation should be broken, through intention or inadvertence, until the obligee desire performance, and until the obligor be informed of the desire. For, strictly speaking, he is bound to perform the given act, so soon as the obligee shall wish the performance, and so soon as he himself shall be duly apprised of the wish. But, according to the rule which obtains in the Courts of Common Law, the creditor may sue the debtor, as for a breach of the obligation, without a previous demand: The debtor being liable in the action for damages and costs, just as he would be liable if performance had been required, and the obligation had then been broken through his own intention or negligence.

Now as every right of action is founded on an injury, here is a case of injury without intention or inadvertence. For, without a previous demand, or without some notice or intimation that the creditor desires performance, the debtor cannot know that he is breaking his obligation, by not performing the act to which he is obliged.

This monstrous rule of the Common Law Courts, is justified by a reason which is not less monstrous. For it is said that a previous demand were superfluous and needless, inasmuch as the action is itself a demand.

The reason forgets, that a right of action is founded on an injury; that unlawful intention or inadvertence is of the essence of injury; and that, in all the cases which I am now considering, there is no room for unlawful intention or inadvertence, until the creditor desire performance, and until the debtor be apprised of the desire.

Where an injury has been actually committed, it is not necessary (although it may be expedient) that the action founded on the injury should be preceded by a demand. For, here, the right of action has already accrued, and the use of the previous demand would merely amount to this: that it would give the debtor an opportunity of redressing the wrong, and might therefore save the parties from the evils which accompany a suit.

471But in cases of the class which I am now considering, there is no injury (intentional or by negligence), until the creditor demand performance, and until the debtor (intentionally or by negligence) comply not with the demand.

Strictly speaking, the case stands thus. Looking at the essentials of injury, the party obliged is not guilty of injury. But he is considered by the Courts as if he had broken his obligation, and is accordingly liable in an action for damages and costs.

In certain cases of the class which I am now considering, it is, indeed, expedient that the creditor should be permitted to sue, although no demand has been made upon the debtor. But why? Because the debtor has actually broken the obligation; or because the debtor intends to break the obligation, and the delay occasioned by a formal demand might facilitate the execution of his unlawful design.

For example:

If the debtor withdraw himself from his home or from his usual places of resort, in order that he may evade a demand, he is placed in the position in which he would have been placed if the demand had actually been made. Or, speaking more strictly, a demand is made on the part of the creditor: and it may fairly be presumed from the conduct of the debtor, that he has notice of the demand. He is fairly liable to an action, and to the costs occasioned by the action. For he is conscious that the obligee requires performance; he withholds performance notwithstanding; and he is therefore guilty of an actual injury.

Again: If there be reason to suppose that he means to withdraw himself from the jurisdiction, or to place his goods beyond the reach of process, it is reasonable that the creditor should be permitted to sue, without a previous demand. For, here, the debtor presently intends to commit an injury; and the delay occasioned by a previous demand, might enable him to defeat the action by withdrawing his person or property.

In this case, the action is instituted for the purpose of prevention; and it operates like an injunction, or a ne exeat regno.

But where there is nothing in the conduct of the debtor, indicating an intention to frustrate the creditor of his right, it is clear that a demand of performance, with subsequent non-performance, ought to precede the action: And that if an action be brought without this important preliminary, the creditor should be liable for the costs of the needless proceeding, and bound to make satisfaction for the gratuitous vexation which he occasions.

472On looking over Evans’s Digest of the Statutes for another purpose, I have had great pleasure in observing that so judicious a writer takes the same view of this question which I have just stated. He says (vol iii. p. 289): ‘There is another Rule in Courts of Equity which may deserve a different consideration, as applied to legal demands, viz. that length of time is no bar in case of a trust. Where a man deposits money in the hands of another, to be kept for his use, the possession of the custodee ought to be deemed the possession of the owner, until an application and refusal, or other denial of the right; for, until then, there is nothing adverse; and I conceive that upon principle, no action should be allowed in these cases, without a previous demand; consequently, that no limitation should be computed further back than such demand. And I think it probable that, under these circumstances, the limitation would not be allowed to attach, though the other part of the observation would be as probably disallowed.⁶ For a sweeping rule has been by some means introduced into practice, that an action is a demand; whereas every action in its nature supposes a preceding default; where money is improperly received, or goods are bought without any specific credit, or even where money is borrowed generally, there is held to be an immediate duty, and it is a perfectly legitimate conclusion that no demand can be necessary, in addition to the duty itself. But wherever there is a loan in the nature of a deposit, or any other confidential duty is contracted, the mere creation of that duty, unaccompanied with the absolute breach of it, by denial or inconsistent conduct, ought not to be considered as a ground of action.’

I perfectly agree with this reasoning as applied to the case of the deposit. It is only on breach of the obligation, that a right of action should accrue to the bailor. And it is only by refusal or neglect to return the subject on demand, that the obligation is broken.

But similar reasoning is also applicable to the case of goods sold without specific credit; of money lent generally; and of money paid and received by mistake.

In the case of money paid and received by mistake, it is necessary to distinguish.

If the money was received bonâ fide, it surely is expedient that a demand should precede the action. For until the debtor 473is apprised of the mistake, it is impossible to say that he has broken intentionally or by negligence his obligation to return the

money.

If the money was received malâ fide, the act of receiving the money was in itself an injury: an injury analogous to unlawful taking. The only difference between the cases lies in the means. In the one case, I take the goods of another without the consent of the owner. In the other case, I take the goods with his consent, but by reason of an error in which he is, and of which I avail myself by suppressing the truth. Here, therefore, the debtor is guilty of an injury from the very outset; and no demand is necessary as a basis for the action.

I shall here remark generally, a distinction which exists between obligations arising from the possession of res alienæ, or things which are the property of another person. The party entitled has always a right to the restitution of the goods or to satisfaction for their loss, and the party in possession is always bound to restore or satisfy.

But the nature of the obligation depends upon the consciousness of the party in possession: If he possess the subject malâ fide, his possession is itself a wrong. His obligation to restore or satisfy, arises from an injury; and, inasmuch as the right which is violated is jus in rem, the obligation is ex delicto (in the strict signification of the term).

If he possess the subject bonâ fide, his possession is not a wrong. His obligation to restore or satisfy is quasi ex contractu: That is to say, It arises from a fact which is neither an injury nor a convention. But so soon as he is apprised of the right which resides in the party entitled, the obligation alters its nature. It may either be considered as arising from a breach of the quasi-contract; or from a violation of the jus in rem which resides in the party entitled. And, on either supposition, it arises from an injury. The only difference is, that it arises, on the former, from a breach of quasi-contract; whilst it arises, on the latter, from a delict (strictly so called).

474The allegation in bills, ‘that the plaintiff has requested the defendant to perform the object of the suit, but that the defendant has refused or neglected to comply with that request,’ is (I should suppose) merely formal: i.e. it is not incumbent on the plaintiff to prove it. At least, a demand is not necessary, where the defendant has actually committed an injury. But where notice must be given, before the defendant can commit an injury, there (I apprehend) a demand on the part of the plaintiff, with subsequent refusal or neglect on the part of the defendant, is a necessary preliminary to the institution of the suit. E.g.: If you are seized in fee in trust for me, you are bound to convey the legal estate as I shall direct. But if I filed a bill for the purpose of compelling a conveyance without previous demand and consequent refusal or neglect, I think that Equity (who, let men traduce her as they may, is far more rational than her sister and rival Law) would compel me to pay the costs of the wanton and vexatious suit.

The Roman Law, in regard to the matter in question, is perfectly rational and consistent. In all cases, the institution of an action must be preceded by a notice to the debtor, provided the debtor can be found. In case the debtor has not broken the obligation, the notice is necessary as a basis to the action. In case the debtor has actually broken the obligation, the notice gives him an opportunity of redressing the injury, and of saving himself and the creditor from the evils of a suit.

Whether or not a demand must precede an action, is, therefore, a question which can never arise. As a demand must precede an action in every case whatever, the only question which can arise is this: namely, whether a demand of performance must be made by the creditor, in order that the debtor may be in morâ, and may incur the liabilities which are incident to that predicament. This I will endeavour to explain with all possible brevity.

Morâ.

The non-performance of an obligation is in the Roman Law styled morâ:⁷ for the debtor delays performance; or, in consequence of the non-performance, the creditor is delayed. Not unfrequently, it is styled frustratio, or dilatio.

But the predicament in which the debtor is placed in consequence of his non-performance, is also styled morâ. Debitor qui moram fecit in morâ dicitur. Being in morâ, he incurs liabilities from which he were exempt if he were not in morâ.

475For example: If a moveable has been deposited with the debtor in order that he might keep it safely, he is not liable for accidental damage, unless he be in morâ. But if he refuse to return it on demand made by the creditor, he is in morâ; and he is thenceforth liable for accidental damage, as well as for damage occasioned by his intention or negligence.

If he owe money payable on demand, and after demand decline or neglect payment, he is in morâ. And being in morâ, he is bound to pay interest on the money which he detains, though no interest was previously payable.

Now, if no time be fixed for the performance of the obligation, the debtor is not in morâ, and does not incur the liabilities incident to that predicament, unless a demand of performance be made by the creditor, and unless the debtor comply not with the demand. The rule is ‘Interpellandus est debitor loco et tempore opportuno.’ The authors of the rule justly considered, that intention or inadvertence is of the essence of wrong; and that the obligation could not be broken, either through intention or inadvertence, until the creditor required performance.

If a specific terminus or time be fixed for the performance, the debtor is in morâ, unless he perform at that time, although no demand be made by the creditor. ‘Dies interpellat pro homine.’ (N.B. Interpellatio signifies making a demand.) For, here, the debtor breaks the obligation, intentionally or by negligence, whether a demand be made or not by the opposite party. He knows generally that he ought to perform at the time; and a demand of performance on the part of the creditor were, therefore, superfluous.

Whether a demand of performance ought to precede an action, and whether a demand should be made in order that the debtor may be in morâ, are distinct questions. But it is manifest that the solution of either question must be sought for in the same source: namely, in the state of the debtor’s consciousness. If he know that the performance is due, and yet do not perform, it is reasonable to presume that the non-performance is the consequence of intention or negligence. He is actually guilty of injury. Consequently, a demand of performance is not an essential preliminary to the institution of an action. And, further, it is not unreasonable that he should be subjected to certain liabilities, which he would not have incurred, if he had been clear of unlawful intention or unlawful inadvertence. On this, as on almost all other subjects relating to contracts, the depth and consistency of the Roman 476lawyers is truly admirable, and is only equalled by their plain and manly manner of expressing their meaning.

Before I dismiss this subject, I may make this general remark. In most cases of breach of contract, the intention or negligence of the debtor is so manifest, that the question is not agitated or even adverted to. And from hence we might incline to infer, that intention or negligence is not of the essence of the wrong. If we look into the detail, we immediately perceive that breach of contract as necessarily supposes intention or negligence as any other injury whatever.

For instance: whether a demand be an essential preliminary to an action, or whether the debtor be in morâ without a demand, entirely depends upon the presence or absence of intention or negligence. If without demand he could not know that he was breaking his obligation, it is manifestly necessary that a demand should be made, before the action is instituted by the creditor, or before the debtor is placed in the predicament which is styled morâ. In all cases in which the contract binds him to diligentia (as in cases of bailment), the question of ‘negligence or not,’ also frequently arises. In ordinary cases the question does not arise, because the intention or negligence is manifest and indisputable. I make this remark because, owing to the arrangement adopted by the Roman institutional writers, one is liable to suppose that breaches of contract are not similar to other breaches of obligation, and are not even injuries at all; not being ranked with delicts or injuries, nor bearing the same name. In the arrangement of the Roman law, not only the primary obligations arising from contracts and quasi-contracts, are called obligations, but likewise the obligations arising from breaches of these primary obligations are called obligationes simply and are said to arise not from delicts, but from the contracts or quasi-contracts. And in our own law we talk of actions ex contractu, and distinguish them from actions ex delicto. It is, however, undeniable that actions ex contractu are just as much founded on injury, as the actions which are said to be ex delicto.

Resume the principle, that intention or inadvertence is of the essence of injury.

Unlawful intention or unlawful inadvertence, is, therefore, of the essence of injury, and for this reason, that the sanction could not have operated upon the party as a motive to the fulfilment of the duty, unless at the moment immediately preceding the wrong he had been conscious that he was violating his duty, or unless he would have been conscious that he was violating his duty, if he had adverted or attended as he ought.

Grounds of exemption from liability, mostly reducible to the principle last stated.

477If we examine the grounds of the various exemptions from liability, we shall find that most (though not all) of them are reducible to the principles which I have now stated. We shall find (generally speaking) that the party is clear of liability, because he is clear of intention or inadvertence: or (what, in effect, comes to the same thing), because it is presumed that he is clear of intention or inadvertence.

1. Casus or Accident.⁸

Thus: No one is liable for a mischief resulting from accident or chance (casus). That is to say, from some event (other than act of his own), which he was unable to foresee, or, foreseeing, was unable to prevent. Whether the event happen through the intervention of man, or whether it happen without the intervention of man, is not important. The essence of casus, chance, or accident, lies in this: that the event was not an act done by the given party, and could not have been foreseen or prevented by that given party. This (I think) is the meaning of casus or accident in the Roman, of chance or accident in our own Law.

‘By the Common Law’ (says Lord Mansfield) ‘a carrier is an insurer. It is laid down, that he is liable for every accident, except by the act of God or the king’s enemies.’ Here, the term accident includes the acts of men: namely, of the king’s enemies. And, in the Digest, it is expressly said, ‘fortuitis casibus solet etiam adnumerari aggressura latronum.’

It would seem then, that casus or accident includes the act of man. But (I think) it is never extended to the act of the party himself. An act of his own is hardly called an accident, although the act be not imputable, inasmuch as it is not accompanied by unlawful intention or inadvertence, or, is excusable for other reasons.

In the language of the English Law, an event which happens without the intervention of man, is styled ‘the Act of God.’ The language of the Roman Law is nearly the same. Mischiefs arising from such events are styled damna fatalia, or detrimenta fatalia. They are ascribed to vis divina, or to a certain personage styled fatum. Or the casus or accident takes a specific name, and is called fatalitas.

The language of either system is absurd. For the act of man is as much the act of God as any event which arises without the intervention of man. And if we choose to suppose a certain fate or destiny, we must suppose that she or it determines the acts of men, as well as the events which are not acts of men.

478In the language of the Roman Law, events which happen without the intervention of man, are sometimes distinguished from the others by the term natural. Or (what comes to the same thing) they are ascribed to vis naturalis.

Returning to the legal effect of casus, chance, or accident, no man is liable, civilly or criminally, for a purely accidental mischief. For, as he could not foresee the event from which the mischief arose, or was utterly unable to obviate the event or its consequences, the mischief is not imputable to his intention or negligence.

For example, If I am in possession of a house, or of a moveable belonging to another, and the subject whilst in my possession is destroyed by an accidental fire, I am not liable to the owner in respect of the damage. ‘Damnum ex casu sentit dominus.’

But when I say, ‘that no man is liable in respect of an accidental mischief,’ I mean, ‘that he is not liable as for an injury or wrong.’ For, by virtue of an obligation arising aliunde, he may be liable.

To revert to the instance which I have just cited:—I am liable to the owner for the damage done by the fire, in case I contracted with him to that effect. I am also liable in case I am a carrier, and the subject has come into my possession in the course of my calling. If the subject was deposited with me in order that I might keep it safely, I am also liable (according to the Roman Law) if I am in morâ: that is to say, if the owner has requested me to return the subject, and I have nevertheless kept possession of it.

But in these and similar cases, I am not liable as for an injury, but by virtue of an obligation ex contractu or quasi ex contractu. The mischief done by the fire, is not the consequence of an injury done by me; although I shall be answerable, as for an injury, in case I perform not my special obligation to make good the loss arising from the accident.

The carrier is a person on whom the law imposes a particular obligation, and all persons are supposed to deal with the carrier on the terms which the law predetermines, unless they specially provide otherwise. This is the case of what are termed dispositive laws. A particular arrangement is determined by a provision of the law, subject to be altered by a special convention between the parties. Thus, although as a carrier I am liable for all damage suffered by goods under my charge, except from the act of God, or the king’s enemies, I am 479at liberty to relieve myself from this liability, by sticking up in my shop a notice to that effect. In either case, the obligation arises from a contract; in the one case, the parties enter into a contract, tacitly adopting the provisions of the dispositive law; in the other case, they enter into a more special contract, modifying those provisions. In the case of morâ, also, the obligation to answer for damage by fire or other accident, does not arise from the fire, but is consequent on a previous injury. If this obligation be violated, a new injury is committed and a consequent obligation incurred.⁹

2. Ignorance or Error.¹⁰

Another ground of exemption is, ignorance or error with regard to matter of fact.

Now, here, although the proximate ground is ignorance or error, the ultimate ground is the absence of unlawful intention or unlawful inadvertence. For unless the ignorance or error was inevitable or invincible (or, in other words, unless it could not have been removed by due attention or advertence), the act, forbearance, or omission, which was the consequence of the ignorance or error, is imputable to negligence, heedlessness, or temerity.

I will touch briefly upon a few cases, wherein the party is exempt from civil and criminal liability, by reason of ignorance or error.

‘Si quis’ (says Ulpian) ‘hominem liberum ceciderit, dum putat servum suum, in eâ causâ est, ne injuriarum teneatur.’

Here the party whose conduct is in question beats a freeman. But he is not liable as for an assault and battery, because he believes at the time of the beating that the man is his slave. In consequence of ignorance or error, he thinks that he is exercising his indisputable right of using and abusing his own.

Another case, closely resembling the last, is the following. If the party possess bonâ fide a thing belonging to another, and if the thing be damaged by his abuse or carelessness, he is not liable to the owner in respect of the damage; although he would have been liable, if he had possessed the thing malâ fide. ‘Rem enim quasi suam neglexit.’

480The foregoing examples are taken from the Roman: the following, from the English Law.

If I hire your servant, knowing that he is your servant, I am guilty of an offence against your right in the servant, and am liable to an action on the Case. But if I hire your servant, not knowing that he is your servant, I am not guilty of a wrong, and am not liable to an action, until I receive notice of his previous contract with you.

If I keep a dog given to worry cattle, and if I am apprised of that his mischievous inclination, I am liable for damage done by the dog to my neighbour’s cow or sheep. But unless I am apprised of his vicious disposition, I am not guilty of an injury, and am not liable to make good the damage.¹¹ For the damage is not imputable to my intention or inadvertence.

If, intending to kill a burglar who has broken into my house, I strike in the dark and kill my own servant, I am not guilty of murder, nor even of manslaughter. For the mischief is not imputable to intention or inadvertence, but to inevitable error. That is to say, to error which could not have been prevented by any attention or advertence, practicable under the circumstances.

And so much for ignorance or error, with regard to matter of fact.

Before I dismiss the subject, I will briefly advert to ignorance or error, with regard to the state of the law.

In order that an obligation may be effectual (or, in other words, in order that the sanction may operate as a motive to fulfilment), two conditions must concur. 1st. It is necessary that the party should know the law, by which the Obligation is imposed, and to which the Sanction is annexed. 2ndly. It is necessary that he should actually know (or, by due attention or advertence, might actually know), that the given act, or the given forbearance or omission, would violate the law, or amount to a breach of the obligation. Unless these conditions concur, 481it is impossible that the sanction should operate upon his desires. Or (changing the expression) the given act, or the given forbearance or omission, cannot be imputed to an unlawful intention, or to any of those modes of unlawful inadvertence which are styled negligence, heedlessness, or rashness.

Accordingly, inevitable ignorance or error in respect to matter of fact, is considered, in every system, as a ground of exemption.

With regard to ignorance or error in respect to the state of the law, the provisions of different systems appear to differ considerably; although they all concur in assuming generally, that it shall not be a ground of exemption. ‘Regula est, juris ignorantiam cuique nocere,’ is the language of the Pandects. And per Manwood, as reported by Plowden, ‘It is to be presumed that no subject of this realm is misconusant of the Law whereby he is governed. Ignorance of the Law excuseth none.’

I have no doubt that this rule is expedient, or, rather, is absolutely necessary. But the reasons assigned for the rule, which I have happened to meet with, are not satisfactory.

The reason given in the Pandects is this: ‘In omni parte, error in jure non eodem loco quo facti ignorantia haberi debebit, quum jus finitum et possit esse et debeat: facti interpretatio plerumque etiam prudentissimos fallat.’¹²

Which reasoning may be expressed thus:

‘Ignorance or error with regard to matter of fact, is often inevitable: that is to say, no attention or advertence could prevent it. But ignorance or error with regard to the state of the law, is never inevitable. For the law is definite and knowable, or might or ought to be so. Consequently, ignorance or error with regard to the law is no ground for exemption. If the conduct of the party be imputable to ignorance of law, it is not imputable directly to unlawful intention or inadvertence. But as the ignorance to which it is imputable is the consequence of unlawful inadvertence, his conduct, in the last result, is caused by his negligence.’

The reasoning involves the small mistake of confounding ‘is’ with ‘might be’ and ‘ought to be.’ That Law might be knowable by all who are bound to obey it, or that Law ought to be knowable by all who are bound to obey it—‘finitum et possit esse et debeat,’ is, I incline to think, true. That any actual system is so knowable, or that any actual system has 482ever been so knowable, is so notoriously and ridiculously false that I shall not occupy your time with proof of the contrary.

Blackstone produces the same pretiosa ratio, flavoured with a spice of that circular argumentation wherein he delights. ‘A mistake (says he) in point of Law, which every person of discretion, not only may, but is bound and presumed to know, is in criminal cases no sort of defence.’

Now to affirm ‘that every person may know the law,’ is to affirm the thing which is not. And to say ‘that his ignorance should not excuse him because he is bound to know,’ is simply to assign the rule as a reason for itself. Being bound to know the law, he cannot effectually allege his ignorance of the law as a ground of exemption from the law. But why is he bound to know the law? or why is it presumed, juris et de jure, that he knew the law?

The only sufficient reason for the rule in question, seems to be this: that if ignorance of law were admitted as a ground of exemption, the Courts would be involved in questions which it were scarcely possible to solve, and which would render the administration of justice next to impracticable. If ignorance of law were admitted as a ground of exemption, ignorance of law would always be alleged by the party, and the Court, in every case, would be bound to decide the point.

But, in order that the Court might decide the point, it were incumbent upon the Court to examine the following questions of fact: 1st, Was the party ignorant of the law at the time of the alleged wrong? 2ndly, Assuming that he was ignorant of the law at the time of the wrong alleged, was his ignorance of the law inevitable ignorance, or had he been previously placed in such a position that he might have known the law, if he had duly tried?

It is manifest that the latter question is not less material than the former. If he might have known the law in case he had duly tried, the reasoning which I have produced from the Pandects would apply to his case. That is to say; Inasmuch as the conduct in question were directly imputable to his ignorance, it were not imputable directly to unlawful intention or inadvertence. But, inasmuch as his ignorance of the law were imputable to unlawful inadvertence, the conduct in question were imputable, in the last result, to his negligence.

Now either of these questions were next to insoluble. Whether the party was really ignorant of the law, and was so ignorant of the law that he had no surmise of its provisions, 483could scarcely be determined by any evidence accessible to others. And for the purpose of determining the cause of his ignorance (its reality being ascertained), it were incumbent upon the tribunal to unravel his previous history, and to search his whole life for the elements of a just solution.

The reason for the rule in question would, therefore, seem to be this:—It not unfrequently happens that the party, is ignorant of the law, and that his ignorance of the law is inevitable. But if ignorance of law were a ground of exemption, the administration of justice would be arrested. For, in almost every case, ignorance of law would be alleged. And, for the purpose of determining the reality and ascertaining the cause of the ignorance, the Court were compelled to enter upon questions of fact, insoluble and interminable.

That the party shall be presumed peremptorily conusant of the law, or (changing the shape of the expression) that his ignorance shall not exempt him, seems to be a rule so necessary, that law would become ineffectual if it were not applied by the Courts generally. And if due pains were taken to promulge the law, and to clear it of needless complexity, the presumption would accord with the truth in the vast majority of instances. The party (generally speaking) would actually know the law. Or the party, at least, might so surmise its provisions, that he could shape his conduct safely. The reasoning in the, Pandects would then be just. The law would be in fact as ‘finitum’ and knowable, as ‘possit esse, et debeat.’

The admission of ignorance of fact as a ground of exemption, is not attended with those inconveniences which would seem to be the reason for rejecting ignorance of law as a valid excuse. Whether the ignorance really existed, and whether it was imputable or not to the inadvertence of the party, is a question which may be solved by looking at the circumstances of the case. The inquiry is limited to a given incident, and to the circumstances attending that incident, and is, therefore, not interminable.

I have said that the provisions of different systems seem to differ considerably with regard to the principle which I am now considering.

In our own law, ‘ignorantia juris non excusat’ seems to obtain without exception. I am not aware of a single instance in which ignorance of law (considered per se) exempts or discharges the party, civilly or criminally. In the case of infancy, and in certain other cases to which I shall advert directly, the 484presumed incapacity of the party to know the law would seem to be one of the grounds upon which the exemption rests. But his presumed incapacity to know the law is only one of those grounds. His exemption rests generally, upon his general incapacity (real or presumed) to judge sanely of law or fact.

From an opinion thrown out by Lord Eldon, in the case of Stockley v. Stockley, I inclined to think (at the first blush) that a party would be relieved, in certain instances, from a contract into which he had entered in ignorance of law.¹³ But, admitting the justness of Lord Eldon’s conclusion, the agreement (I conceive) would be void, not because the party was ignorant of the law, but because there is no consideration to support the promise.

According to the Roman Law, there are certain classes of persons, ‘quibus permissum est jus ignorare.’ They are exempt from liability (at least for certain purposes), not by reason of their general imbecility, but because it is presumed that their capacity is not adequate to a knowledge of the law. Such are women, soldiers, and persons who have not reached the age of twenty-five. Here, ignorance of law (considered per se) is a ground of exemption. For women, soldiers, and multitudes of persons under twenty-five are not in that state of general imbecility, which is the ground of exemption in case of insanity, or in case of extreme youth.¹⁴ But ignorance of law (as a specific ground of exemption) is only admissible in favour of persons who belong to certain classes.

And this (I apprehend) shews distinctly, that the exclusion of ignorantia juris, as a ground of exemption, is deducible from the reason which I have already assigned. In ordinary cases, the admission of ignorantia juris as a ground of exemption would lead to interminable inquiry. But, in these excepted cases, it is presumed from the sex, or from the age, or from the profession of the party, that the party was ignorant of the law, and that the ignorance was inevitable. The inquiry into the matter of fact is limited to a given point: namely, the sex, age, or profession of the party who insists upon the exemption. That obvious fact being ascertained, the legal presumption or inference is drawn by the tribunal without further investigation.

Whether the legal presumption ought to obtain, or whether in most cases it do not conflict with the truth, is a distinct question. What I advance is this: that in ordinary cases, the inquiry were impracticable, because the facts upon which the solution depends are not to be ascertained.

485In these excepted cases the inquiry is practicable, because it is predetermined by a general rule, that certain facts which may be ascertained shall be received by the Courts as evidence of the facts in question. There is a presumptio juris et de jure, and evidence is not admissible to rebut it. Nor would the case be materially altered, assuming that the presumption may be rebutted. For the counter evidence must necessarily consist of a specific fact or facts. The large and vague inquiry is shut out by the legal presumption.

Before I quit this subject, I will advert to a curious distinction made by the Roman Law.

The persons, quibus permissum est jus ignorare, cannot allege with effect their ignorance of the law, in case they have violated those parts of it which are founded upon the ‘jus gentium.’¹⁵ For the persons in question are not generally imbecile, and the jus gentium is knowable naturali ratione. With regard to the jus civile, or to those parts of the Roman Law which are peculiar to the system, they may allege with effect their ignorance of the law.

This coincides with our distinction between malum prohibitum and malum in se; and the distinction is reasonable. For some laws are so obviously suggested by utility, that any person not insane would naturally surmise or guess their existence; which they could not be expected to do, where the utility of the law is not so obvious. And most men’s knowledge of the law is mostly of this kind. They see that a particular act would be mischievous, and they conclude that it must be prohibited. The conduct of nineteen men out of twenty, in nineteen cases out of twenty, is rather guided by a surmise as to the law, than by a knowledge of it. Even lawyers have no other knowledge than this, of any branch of law but that which they have peculiarly studied. A Common Law lawyer, if he were making a will or a settlement of real property, would, if he acted rationally, surmise that there must be provisions of the law of real property which were not known to him, and would accordingly have recourse to a conveyancer, rather than foolishly attempt to draw the instrument for himself.

The objection to ex post facto laws, deducible from the same principle.

Before I conclude, I must observe that the objection to laws ex post facto, is deducible from the general principle already ex486plained, namely, that intention or inadvertence is necessary to constitute an injury. The law was not in existence at the time of the given act, forbearance, or omission: consequently the party did not, and could not know that he was violating a law. The sanction could not operate as a motive to obedience, inasmuch as there was nothing to obey.

I am provoked to make this remark by a silly and flippant attempt in the ‘Edinburgh Review’ to justify or palliate ex post facto legislation. Speaking of Lord Strafford’s attainder, the writer talks to the following effect.

‘It is commonly objected to punishment inflicted ex post facto, that it operates not as a warning. But this is a fallacy Punishment inflicted ex post facto does operate as a warning. The punishment inflicted upon Lord Strafford operated as a warning to succeeding statesmen.’ The ‘writer mistakes the objection (simple and obvious as it is) which is commonly urged against punishment inflicted ex post facto. It is not objected to such punishment, that it may not operate as a warning. But it is objected, and is truly objected, to such punishment, that the party upon whom it is inflicted was not warned. He confounds the application of a law to cases which precede it, with the application of the same law to cases which follow it. With regard to cases which precede it, the law (if it extend to those cases) is an ex post facto law. With regard to cases which follow it, it is not.

That is to say, the writer answers the objection to ex post facto legislation, by shewing that the objection does not apply to other legislation.

I have treated this nonsense with great indulgence; for I have assumed that the punishment inflicted upon Lord Strafford might at least operate as a warning to succeeding statesmen.

But even this is false. For the law by which he suffered was not only ex post facto, but was what is styled in the Roman Law a privilegium. It was a law inflicting punishment upon Strafford specifically, and not declaring in general expressions, ‘that those who might do thereafter as Strafford had done should be visited with Strafford’s fate.’

If the punishment had been inflicted by virtue of a judicial decision, then also it might have operated as a warning. For one judicial decision being commonly the basis of others, a judicial decision is tantamount to a law conceived in general expressions.

But from an arbitrary command nothing can be concluded. 487Although the supreme Legislature punished Strafford, it could not be inferred (looking at the nature of its proceeding) that it would punish future statesmen walking in Strafford’s steps.

It must be observed that a judicial decision primæ impressionis, or a judgment by which a new point of law is for the first time decided, is always an ex post facto law with respect to the particular case on which the point first arose, and on which the decision was given.

Notes.

The subjoined Tables are copied from the margins of Mühlenbruch and Mackeldey at the pages referred to in the footnotes, pp. 477, 479 ante.—S. A.