of public justice.

If man were responsible to no power above the government under which he lives, still the doctrine of the criminal intent would be the same as now.

see how it stands in reason and authority combined.

Let us

§ 227. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow, that a man should be deemed guilty unless his mind were so. It is therefore a principle of our legal system, as probably of every other, that the essence of an offence is the wrongful intent, without which it cannot exist. We find this doctrine laid down not only in the adjudged cases, but in various ancient maxims; such as,— Actus non facit reum nisi mens sit rea, "the act itself does not make a man guilty unless his intention were so; "2 Ac

1 The William Gray, Paine, 16; United States v. Pearce, 2 McLean, 14, 19; Weaver v. Ward, Hob. 134; Ex parte Rodgers, Amb. 307; Rex v. Fell, 1 Salk. 272; Rex v. Martin, Russ. & Ry. 196; Lancaster's case, 1 Leon. 208, 209; The State v. Nicholas, 2 Strob. 278; Rex v. Holden, Russ. & Ry. 154, 2 Leach, 4th ed. 1019, 2 Taunt. 334; Rex v. Harris, 7 Car. & P. 428; Rex v. Dannelly, Russ. & Ry. 310; Reg. v. Allday, 8 Car. & P. 136; Reg. v. Thurborn, 1 Den. C. C. 387; Rex v. Friar, 1 Chit. 702; Riley v. The State, 16 Conn. 47; Rex v. Gascoigne, 1 Leach, 4th ed. 280, 284; The State v. Berkshire, 2 Cart. Ind. 207; The State v. Bartlett, 30 Maine, 132; Commonwealth v. Ridgway, 2 Ashm. 247; The State v. Bohles, Rice, 145, 147; United States v. Fourteen Packages, Gilpin, 235, 244; Rex v. O'Brian, 7 Mod. 378; Sturges v. Maitland, Anthon, 153; Cummins v. Spruance, 4 Harring. Del. 315; Reg. v. Phillips, 2 Moody, 252; The State v. Carland, 3 Dev. 114; Case of Le Tigre, 3 Wash. C. C. 567, 572; The State v. Hawkins, 8 Port. 461; Rex v. Heath, Russ. & Ry. 184. And see Smith v. Kinne, 19 Vt. 564. 66 By reference to the intention, we inculpate or exculpate others or ourselves, without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty, simply on the ground of intention; or, on the same ground, we hold him innocent." Wayland Moral Science, 12.

Broom Leg. Max. 2d ed. 226, 232, 239, 275, 633, note; Burrill Law Dict.

tus e invito factus non est meus actus, "an act done by me against my will is not my act;" and the like. In this particular, criminal jurisprudence differs, as already intimated, from civil.2

§ 227 a. The doctrine of the intent, to be discussed in the several chapters of the present book, comprehends one of the two great divisions of our criminal law. The doctrine of the act, to be discussed in the next book of this volume, comprehends the other division. And though, in our arrangement of the matter, much lies beyond the next book, yet properly the whole subject belongs under these two heads. Let us proceed, then, with the doctrine of the intent.

§ 228. The object of punishing criminals is often stated to be to deter others from crime, and so protect the community; as well as, when the life is not taken, to reform the offender.3 Some writers have doubted the propriety of the first part of this proposition; suggesting, that the government has no right to impose suffering on one of its subjects for the good of the rest. This suggestion is clearly founded on a correct principle; yet it appears quite harmonious with the other branch of the proposition, when both branches are rightly viewed. The courts, as we have seen, do not take cognizance of all crime. Therefore, on the one hand, no man is to be punished unless he deserves punishment as a matter of pure retributive justice, aside from all extraneous considerations; while, on the other hand, though a penalty be merited, it will not be inflicted by the governmental powers, which do not assume the full corrective functions of the Deity, unless a

1 Bouv. Law Diet.; Burrill Law Dict.

Rex v. Fell, 1 Salk. 272; Weaver v. Ward, Hob. 134; James v. Campbell, 5 Car. & P. 372; Miller v. Lockwood, 5 Harris, Pa. 248.

3

Beccaria on Crimes, c. 12; Eden Penal Law, 3d ed. 6; 4 Bl. Com. 16; Wayland Moral Science, 10; Paley Moral Philosophy, book 6, c. 9; Ruth. Inst. b. 1, c. 18, § 3, 16.

1 Ante, § 5.

in

public good may thereby be done.1 But these several considerations only lend strength to the general rule concerning the intent. It could never restrain a human being from doing wrong, to kindle torments we cannot say punishment another who meant no wrong; it could not reform the offender, there being no offence, and no admonition against intending to do evil having power to prevent unintentional acts; but, even if it could accomplish both these objects, still it would not be tolerated, because unjust.

§ 228 a. In further confirmation of the general doctrine of the intent, may be mentioned the fact, that no man deems in his heart another man guilty, or deserving of punishment, unless the other has intended evil. Another fact to be mentioned is, that, whenever an individual suffers a punishment which the community deems him not to deserve, so far from its placing on him the mark of contempt, it elevates him to be a sort of martyr. Another fact is, that infancy itself spontaneously pleads the want of intent in justification of what appears to be a wrong, with the utmost confidence that the plea, if the truth of it is credited, will be received as good. Now these facts are only the voice of nature uttering one of her immutable truths. This, then, is the doctrine of the law, superior to all other doctrines because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. To estabblish this doctrine requires not judicial authority; to overthrow it can never be the work of any right-minded power of earth.

§ 229. Further on in the present volume we consider the question of what act must concur with the criminal intent. Sufficient here is it to say, that there must be an evil act, which, combined with the evil intent, constitutes the crime; though

1 "State punishments are to be considered as founded on, and limited by, first, natural justice; secondly, public utility." Eden Penal Law, 3d

ed. 6.

the act need be evil only because of its proceeding from an evil mind. But act and intent must in all cases combine.1

§ 229 a. These views will appear more plain in the light of the following chapters, to which they are intended to introduce the reader.

1 Rex v. Scofield, Cald. 397, 403; 1 East P. C. 58, 225; 2 East P. C. 1028, 1030; Commonwealth v. Morse, 2 Mass. 138, 139; Ross v. Commonwealth, 2 B. Monr. 417; Respublica, v. Malin, 1 Dall. 33; The State v. Will, 1 Dev. & Bat. 121, 170; Rex v. Warne, 1 Stra. 644; Rex v. Heath, Russ. & Ry. 184; Rex v. Stewart, Russ. & Ry. 288; Yoes v. The State, 4 Eng. 42; Torrey v. Field, 10 Vt. 358, 409; United States v. Twenty-eight Packages, Gilpin, 306; Respublica v. Roberts, 1 Dall. 39; Gore's case, 9 Co. 81 a; Dugdale v. Reg. 16 Eng. L. & Eq. 880, 1 Ellis & B. 485; United States v. Riddle, 5 Cranch, 311; Gates v. Lounsbury, 20 Johns. 427; post, § 312,

[263]

CHAPTER XV.

CARELESSNESS.

§ 230. THERE is little distinction, except in degree, between a positive will to do wrong, and an indifference whether wrong is done or not. On this ground carelessness is criminal; and, within limits, supplies the place of the direct criminal intent.1 This proposition is illustrated in many ways. One illustration is seen in the law of felonious homicide; namely, that every act of gross carelessness, even in the performance of what is lawful, and, a fortiori, of what is not lawful, and every negligent omission of a legal duty, whereby death ensues, is indictable either as murder or manslaughter. a man," says Archbold, "take upon himself an office or duty requiring skill or care, if, by his ignorance, carelessness, or negligence, he cause the death of another, he will be guilty of manslaughter: as, if a person by careless or furious driving unintentionally run over another and kill him, it will

3

"If

1 Sturges v. Maitland, Anthon, 153; Commonwealth v. Rodes, 6 B. Monr.

171.

2 Rex v. Carr, 8 Car. & P. 163; Reg. v. Haines, 2 Car. & K. 368; Rex v. Sullivan, 7 Car. & P. 641; Errington's case, 2 Lewin, 217; Reg. v. Edwards, 8 Car. & P. 611; Ann v. The State, 11 Humph. 159; United States v. Freeman, 4 Mason, 505; Castell v. Bambridge, 2 Stra. 854, 856; Rex v. Fray, 1 East P. C. 236; Reg. v. Marriott, 8 Car. & P. 425; United States v. Warner, 4 McLean, 463; Rex v. Smith, 2 Car. & P. 449; 1 East P. C. 264, 331; Hilton's case, 2 Lewin, 214; Reg. v. Barrett, 2 Car. & K. 343; The State v. Hoover, 4 Dev. & Bat. 365; Reg. v. Ellis, 2 Car. & K. 470. And see also the cases cited in the remaining notes to this section. In accordance with the text is the Scotch law. 1 Alison Crim. Law, 113.

Archb. New Crim. Proced. 9.