488 

LECTURE XXVI.

THE SAME SUBJECT CONTINUED.

Recapitulation.

Having in the Lecture which immediately preceded the last, assumed that intention or unlawful inadvertence is a necessary ingredient in injury or wrong, I endeavoured in my last Lecture to prove this assumption by a brief analysis of the various classes of injuries. Having demonstrated by general reasoning, that unlawful intention or inadvertence is of the essence of injury, I then adverted to certain cases in which an act, forbearance, or omission seems to be an injury, although its author neither was conscious, nor could he be conscious, that he was violating an obligation. A creditor, for example, by English law, may sue without previous demand, although the obligation on the part of the debtor is merely to pay the debt on demand. These cases, I observed, are anomalies, and the rule of the Common Law Courts which admits such suits, conflicts, not only with general principles, but with the practice which prevails in analogous cases in the Courts of Equity, as well as with the rules of the Roman law.

I next observed that if we examined the ground of most of the exemptions from liability, we should find that they ultimately rest on the principle that intention or inadvertence is necessary to constitute wrong. A party is exempt, either because he is clear in fact from unlawful intention or inadvertence, or because (which generally amounts to the same thing) he is presumed to be clear of both. In order to confirm this remark, I examined at some length two of the principal grounds of exemption from liability, namely, 1st, casus, chance or accident, and 2ndly, ignorance or error; this last being either with relation to a matter of fact, or with relation to the state of the law.

Having explained the import of casus or accident, I endeavoured to shew that the exemption on account of casus rests on the broad principle already laid down. As the party could not foresee the mischievous event, or, foreseeing, could not prevent it, the mischief was not the consequence of his unlawful intention or inadvertence, and therefore is not imputed to him. Obligations to answer for mischance arise, when they do arise, not from injuries, but from contracts and quasi-contracts.

In the case of ignorance or error also, the ground of the exemption is the absence of unlawful intention and of unlawful inadvertence. For if the ignorance or error be not invincible 489and inevitable, but might have been cured or prevented by due attention, the mischievous consequence is imputed to the party.

With respect to ignorance or error regarding the state of the law, I put a difficulty which naturally suggests itself; it is this. In order that the obligation may be effectual, or in order that the sanction may determine the party from the wrong, it is necessary, 1st, that the party should know or surmise the law which imposes the obligation and to which the sanction is annexed; and 2ndly, that he should know, or might know by due attention or advertence, that the specific act, forbearance, or omission would conflict with the ends of the law and of the duty. Unless both these conditions concur, the sanction cannot operate as a motive, and the act, forbearance, or omission, is not imputable to unlawful intention, or to negligence, heedlessness, or rashness. But although to render the sanction efficacious, it is necessary that the party should know the law, it is assumed generally or universally, in every system of law, that ignorance or error as to the state of the law shall not exempt the party from liability. This inflexible or nearly inflexible maxim would seem to conflict with the necessary principle, which I have so often stated, respecting the constituents of injury or wrong. For ignorance of the law is often inevitable, and where the injury or wrong is the consequence of that inevitable ignorance, it is not even remotely the effect of unlawful intention or of unlawful inadvertence.

The solution of this difficulty is to be found in the principles of judicial evidence. The admission of ignorance of law as a specific ground of exemption, would lead to interminable investigation of insoluble questions of fact, and would, in effect nullify the law by hindering the administration of justice. This rule, therefore, is one which it is necessary to maintain, although it occasionally wounds the important principle, that unlawful intention or inadvertence is a necessary ingredient of injury.

I then adverted to certain exceptions to this rule permitted by the Roman law, and shewed that those exceptions consist with the reason of the general maxim, and also serve to indicate what that reason is. Lastly, I observed that these exceptions ultimately rest on the principle which it was the main purpose of my Lecture to explain and illustrate:—and shewed that wherever ignorance of law exempts from liability, the ignorance is presumed to be inevitable, and the party, therefore, to be clear from unlawful intention and inadvertence.

Consideration of the exemptions from liability resumed.

If I were to examine all the exemptions which ultimately 490rest upon this principle, the present inquiry would run to unconscionable length. But I shall briefly touch upon a few, to which I did not advert in my last Lecture.

3. Infancy and insanity.

And, first, an infant or a person insane is exempted from liability, not because he is an infant or because he is insane, but because it is inferred from his infancy or insanity, that at the time of the alleged wrong he was not capable of unlawful intention or inadvertence. It is inferred from his infancy or insanity, that, at the time of the alleged wrong, he was ignorant of the law; or (what in effect is the same thing) was unable to remember the law. Or (assuming that he had known, and. was unable to remember the law) it is inferred that he was unable to apply the law, and to govern his conduct accordingly: that he did not and could not foresee the consequences of his conduct; and, therefore, did not and could not foresee that his conduct tended to the consequences which it was the end of the law to avert.

For, in order that I may adjust my conduct to the command or prohibition of the law, I must know and remember what the law is; I must distinctly apprehend the nature of the conduct which I contemplate; and (in the language of lawyers and logicians) I must correctly subsume the specific case as falling within the law. In other words, I must compare the conduct which I contemplate with the purpose or end of the law, and must be able to perceive that it agrees or conflicts with that purpose or end. Every application of the law to a fact or case, is a syllogism of which the minor premise and the conclusion are singular propositions. Unless I am competent to this intellectual process, the sanction cannot operate as a motive to the fulfilment of the obligation, or (changing the expression) the obligation is necessarily ineffectual.

That the ultimate basis of the exemption of infants and lunatics is the presumed absence of unlawful intention or inadvertence, will appear from the following consideration.

For if the infant was doli capax (or was conscious that his conduct conflicted with the law), his infancy does not excuse him. Certain evidence of his capacity of unlawful intention, or even the specific and precise evidence afforded by the fact or its circumstances, rebuts the general and uncertain presumption which arises from his age. And if the alleged wrong was done in a lucid interval, the fact is imputed to the madman. There are, indeed, cases, wherein the præsumptio juris founded on infancy is ‘juris et de jure.’ That is to say, the inference which 491the law preappoints, is conclusive as well as preappointed. The tribunal is not only bound to draw the inference, but to reject counter-evidence.

Digression on different kinds of præsumptiones juris.

While I am on the subject of legal presumptions, I shall perhaps be excused for digressing from the main subject of the Lecture, for the purpose of giving some explanations for which no other occasion may arise.

It is absurd to style conclusive inferences, presumptions. For a presumption, ex vi termini, is an inference or conclusion which may be disproved. Till proof to the contrary be got, the inference may hold. On proof to the contrary, it can hold no longer.

But according to the language of the Civilians (language which has been adopted by some of our writers on evidence), presumptions are divisible in the following manner.

Presumptions are præsumptiones juris, or præsumptiones hominis. Præsumptiones juris are inferences drawn in pursuance of the preappointment of the law. The law predetermines the probative effect of the fact, or instructs the judge to draw a certain inference from a fact of a certain sort. For example, the presumption already stated in favour of infants is præsumptio juris. The law predetermines that from the fact of infancy, the incapacity of unlawful intention and of unlawful inadvertence shall be inferred. Præsumptiones hominis, or presumptions simply so called, are drawn from facts of which the law has left the probative force to the discretion of the judge. In other words, he is not instructed to draw a given inference from a fact of the sort. Præsumptiones juris, are again divisible into præsumptiones juris (simply so called) and præsumptiones juris et de jure.

There are therefore three classes of presumptions: præsumptiones hominis, præsumptiones juris, and præsumptiones juris et de jure.

Where the presumption is a præsumptio hominis, not only is proof to the contrary admissible, but the presumption is not necessarily conclusive, though no proof to the contrary be adduced. For instance: I sue you for goods sold and delivered, and I produce a fact leading to a presumption that the goods were delivered. Not only is it competent to the judge to admit counter-evidence, but to reject the presumption as insufficient, though no counter-evidence be adduced. For, here, the judge is at liberty to determine without restriction the exact worth of the fact as an article of evidence.

492Actions frequently fail; not because the evidence produced by the Actor, is met by counter-evidence, nor because the evidence which he produces is altogether worthless; but because the inference or presumption founded upon the facts produced, is too feeble to sustain the case. The inference drawn from testimony to the truth of the fact attested is also in truth of this kind.

Where the presumption is præsumptio juris simply, proof to the contrary is admissable, but, till it be produced, the presumption necessarily holds. For, here, the law has predetermined the probative force of the fact, although it permits the judge to receive counter-evidence. The law, or the maker of the law, says to the Courts, ‘Receive counter-evidence if it be produced, and weigh the effect of that evidence against the worth of the presumption. But till such counter-evidence be produced, draw from the given fact the inference which I predetermine.’ For example: Where an infant has attained a certain age, proof of his doli capacitas is admissible. But until such proof be produced, it is inferred from the fact of his infancy, that he is not doli capax.

Where the præsumptio juris is juris et de jure, the law predetermines the probative force of the fact, and also forbids the admission of counter-evidence. The inference (for it is absurd to call it a presumption) is conclusive. That is to say, proof to the contrary is not admissible. For, all that is meant by a conclusive proof, is a proof which the law has made so. Independently of predetermination that it shall be conclusive, no inference from one fact to another can be more than probable: Although, in loose language, we style the proof conclusive, wherever the probability appears to be great.

As an instance of a presumption juris et de jure, I may mention the case of an infant under a certain age; for example, seven years. Here, according to the Roman Law, and (semble) according to our own, the infant is presumed juris et de jure incapable of unlawful intention or culpable inadvertence. His incapacity is inferred or presumed from the age wherein he is; and proof to the contrary of that preappointed inference is not admissible by the tribunals.

In numerous cases, presumptions juris et de jure are purely fictitious. They are resorted to by the Courts as a means of legislating indirectly. For example, a grant of an easement is inferred from the fact of its having been enjoyed, or a surrender of a trust term is presumed by the Courts of Law 493because the trust has been performed. In the first case (which is the simpler and more intelligible of the two) a certain legal consequence is annexed to length of enjoyment by means of a fictitious presumption. It is not believed that there ever was a grant; but the jury are instructed by the judge to infer that there was from the fact of the enjoyment.

In other words, acquisitive prescription is unknown to the English Law in its direct form.¹⁶ Directly and avowedly, length of enjoyment is not a mode of acquisition, or (in the language of our own law) a title. But a grant is a title directly and avowedly: And, by feigning a grant from length of enjoyment, length of enjoyment becomes a title in effect, or that mode of acquisition which is styled acquisitive prescription is introduced indirectly.

The number of rights and obligations, which (in our own law and in the Roman also) are created and imposed obliquely by means of these fictitious presumptions, is truly astonishing. Probably one-third of the rights conferred by the Roman Law, and a very great proportion in our own, are conferred in this absurd manner. The various statutes of limitations do not give a titulus on which the party can positively insist, but are merely opposed as a bar to a right of action residing in a determinate party. All prescription known to the English Law is, I believe, in theory, merely negative or extinctive.¹⁸

It is evident, that unless these fictitious presumptions were 494juris et de jure, they could not answer their purpose. But presumptions juris et de jure are not always fictitious. Some of them are really founded on probability, and counter-evidence is excluded for a special reason. Such, for instance, is the presumption that the party knows the law. This presumption is really true in the majority of instances; and is made conclusive for the reason which I have before stated, namely, that a judicial inquiry into its truth must otherwise be resorted to in every instance, and the administration of justice be rendered impossible.

Reverting to the subject from which I have digressed,—the presumption juris et de jure ‘that the infant under seven is not doli capax,’ is probably well founded in almost every instance. It is probably made conclusive in all instances, on account of the little advantage which could arise from the punishment of a child in any instance whatever. His punishment would rather revolt, than serve as a useful example, and it is therefore expedient to extinguish inquiry at once by a conclusive presumption of innocence. It cannot, then, be inferred from this case, that the exemption from liability by reason of infancy does not rest upon the broad principle which I am endeavouring to explain.

I observe that Mr. Bentham ascribes this exemption, and also the exemption in case of insanity and drunkenness, to a different principle: namely, ‘that the prospect of evils so distant as those which are held forth by the Law, cannot have the effect of influencing the conduct of the party.’

But this (I think) will not hold. In case the party, at the moment of the alleged wrong, were conscious of the law, and could foresee the consequences of his conduct, it is manifest that the sanction would inspire him with some desire of avoiding it. And an inquiry into the strength or steadiness of that desire, would seem to be idle; because it must necessarily be different in every different person, whether he be infant or adult, mad or sane, drunk or sober.

There are indeed cases, to which I shall advert directly, wherein the party is held exempt, because he is moved to the alleged wrong by a desire so strong and imperious that no sanction could get the better of it. Such are the cases in which a party is exempted because he was compelled metu: that is, by some apprehension which it is supposed that no will, however strong, can resist.

495The reason assigned by Blackstone, and by various other writers, is hardly worth powder and shot.

He tells us that a wrong is the effect of a wicked will. And (says he) infants and madmen are exempted, because the act goes not with their will, or is not imputable to a wicked will.

Now, in case the alleged wrong be wrought by action, it is clear that there must be a will going with the act, although the party may not be conscious of a wrong. In case it be wrought negatively, it is true that the forbearance or omission does not go with volition, or is not directly the consequence of a volition. But what would that matter, if the forbearance were accompanied by an unlawful intention, or the omission could be ascribed to culpable negligence?

By dint of much explanation, it is true that this jargon may be made intelligible. By the will of the party, Blackstone means (so far as he means anything) the state of the party’s consciousness. By a wicked will, he means unlawful intention or unlawful inadvertence. And he means that the alleged wrong is not imputable to either, when he says that it cannot be ascribed to a wicked will. And when he affirms, that the ground of every exemption is a want or defect of will, he means that the ground of every exemption is inevitable ignorance: inevitable ignorance of the law; or of the certain or probable consequences of the alleged wrong; or of the relation or connection between that alleged wrong and the law. He cannot mean to affirm that an infant or madman has not as much will as the adult or the sane.

Nor is his position, thus translated, true. For, in certain cases (as I shall shew immediately), the party is exempt, although he is conscious of the law; of the nature and consequences of his own conduct; and of the relation or connection between his conduct and the law.

I have stated that infancy or insanity is a ground of exemption, partly because the party was ignorant of the law, or is presumed to have been ignorant of the law. This does not contradict what I before said, that ignorance of the law is never in our own system a ground of exemption. For in the case of insanity or infancy, it is not a specific or distinct ground of exemption: infants and lunatics are not exempted distinctly and solely on that account. It may, however, be considered as one ground of the exemption in company with other grounds from which it is impossible to sever it in the particular cases.

4. Drunkenness (in some systems of law).

496In the English Law, drunkenness is not an exemption. In criminal cases, never: nor in civil cases when the ground of the liability is of the nature of a delict; but a party is at times released from a contract which he entered into when drunk. In the Roman Law, drunkenness was an exemption even in the case of a delict; provided the drunkenness itself was not the consequence of unlawful intention: if, for instance, I resolve to kill you, and drink in order to get pluck, according to the vulgar expression, the mischief, although committed in drunkenness, is ultimately imputable to my intention. In all other cases, drunkenness was a ground of exemption in the Roman Law.

The ultimate ground of this exemption is the same as in the case of insanity or infancy. The party is unable to remember the law if he knew it, or to appreciate distinctly the fact he is about, or to subsume it as falling under the law.

Where unintentional drunkenness, that is, drunkenness which is not itself the consequence of unlawful intention, is not a ground of exemption, the party, it is evident, is liable in respect of heedlessness. There is no unlawful consciousness at the time of the offence, but he might have known before he got drunk, that he was likely when drunk to commit acts inconsistent with the ends of his duties. He has heedlessly placed himself in a position, of which the probable consequence will be the commission of a wrong.

This remote inadvertence is very often a ground of liability. Remote inadvertence is what I have just explained. The party is guilty of remote inadvertence, where the alleged wrong is not imputable directly to unlawful intention or inadvertence, but is a natural consequence of a position in which he has placed himself from inadvertence, and is therefore a remote effect of inadvertence. When the party commits the wrong in consequence of his ignorance of the law, the ground of liability might be referred to remote inadvertence. Were it not for the legal presumption, that he knows the law, the fact would be imputable to him, if at all, from his having previously neglected to make himself acquainted with the law.

5. Sudden and furious anger (in some systems).

Another ground of exemption is sudden and furious anger. In English law, this is never a ground of exemption: in Roman Law it is, for the same reason as drunkenness and insanity.

Where the party is answerable for an alleged wrong done in furious anger, the reasoning is the same as in the case of drunkenness. He is guilty, not in respect of what he has done 497in furious anger, but in respect of his having neglected that self-discipline, which would have prevented such furious fits of anger.

There are many cases of liability on similar grounds. Imperitia, for instance, or want of skill, is the source of a common case of liability both in our own and in the Roman Law. In this case the ground of the obligation is the same as in the case last specified. Pretending to practise as a physician or as a surgeon, I do harm to some person: in the particular case I attend with all my skill, and the mischief is not imputable to unlawful intention or inadvertence at that time, but to neglect of the previous duty of qualifying myself by study for the profession I affect to exercise.

Liability for injuries done by third parties, is ascribed justly by Mr. Bentham to the same cause. I am liable for injuries done by persons whom I employ, because it is generally in my power not to employ persons of such a character, or to form them by discipline and education so as to be incapable of the commission of wrong. The first reason applies to a man’s servants, the last to his children. The obligation is peculiarly strong in the Roman Law, because of the great extent of the patria potestas: by reason of which it probably was in the power of the father not only to form the character of his child by previous discipline, but in most cases to prevent the specific mischief by specific care.¹⁹

An illogical distinction in Roman Law between delicts and quasi-delicts.

Before I quit the subject, I shall remark on a distinction which is made by the Roman lawyers, and which appears to me illogical and absurd (a rare and surprising thing in the Roman Law). I mean the distinction between delicts and quasi-delicts. I cannot discover any ground for this distinction from the capricious way in which they arrange offences under these two heads.

The imperitia for instance of a physician is a delict; but the imprudentia of a judge, who is liable in certain cases for erroneous decisions, is a quasi-delict. The ground of the liability in these two cases is precisely the same. The guilt of the party in both cases consists in taking upon himself the 498exercise of a function, without duly qualifying himself by previous preparation. And as the right violated is in both cases a right in rem, the offence is properly a delict. This distinction, therefore, appears to me to be groundless; though I draw such a conclusion with diffidence, when it refers to any distinction drawn by the Roman lawyers, whose distinctions I have found in almost every other case to rest on a solid foundation.

All the exemptions, which have now been examined, may be referred to the same principle. The party neither was conscious nor could he be conscious that he was violating his duty, and consequently the sanction could not operate on his desires. And this principle will account for the greater number of exemptions, but not for all.

Grounds of exemption not depending on the foregoing principle. 1. Physical compulsion.

The party is exempted in some cases in which the sanction might act on his desires, but in which the fact does not depend on his desires.

Such is the case of physical compulsion. A person is not liable for what he is forced to do by physical constraint; in which he is not an agent, but an instrument or means. In this case, he may be conscious of the obligation, and fear the sanction: but the sanction would not be effectual if applied, because it is impossible for him to perform the obligation.²⁰

2. Extreme terror.

There is still another case which is distinguishable from this; in which the sanction might operate on the desires of the party, might be present to his mind, and the performance of the duty might not be altogether independent of his desires; but the party is affected with an opposite desire, of a strength which no sanction can control, and the sanction therefore would be ineffectual. Such for instance is the case in which a party is compelled by menaces of instant death to commit what would otherwise be a crime. For example, if I am compelled by the king’s enemies to join their ranks and fight against the king, I am not liable for treason, provided that I take the earliest opportunity of making my escape. The reason is that I am urged to a breach of the duty by a motive more proximate and more imperious than any sanction which the law could hold out: and as the sanction therefore would not be operative, its infliction would be gratuitous cruelty.

I believe that all these exemptions, except the two last 499mentioned, may be explained on the principle so often referred to.

The so-called exemptions not properly exemptions, but cases to which the idea of obligation does not apply.

In conformity with usage, I have talked of these various circumstances as cases of exemption from liability: but it would be more correct to say, that they are cases in which the parties are not obliged; cases to which the notion of obligation cannot apply, because the sanction could not be operative. Injury is co-extensive with obligation. Now we are not bound absolutely to do or forbear; we are bound (strictly speaking) not to omit negligently, or to forbear with unlawful intention or unlawful inadvertence. Therefore, where no unlawful intention or inadvertence exists, the party has not broken any obligation, nor consequently incurred any liability from which he can be exempted. The sanction would be ineffectual, either as not operating on the desires, as in the five first-mentioned cases, or as operating upon them in vain, as in the two cases last mentioned.

It may be remarked that the first of these cases, ‘namely, that of physical compulsion, falls within casus or accident, since, as I have already observed, the act of man as aggressura latronum falls within the notion of casus.

[beginning of lecture 27]