LECT. XXIII the mean or instrument by which suffering is inflicted, suffering may be inflicted without it. For instance, certain obligations are sanctioned by nullities; others again are sanctioned by penalties which are purely infamising: by a declaration, pronounced by competent authority, that the party shall be held infamous or merits infamy. In these and in other cases, the sanction is applied without the consent of the party, and without physical compulsion or restraint (or, at least, without such compulsion or restraint applied to the body). In other cases, the suffering is inflicted by physical compulsion or restraint: Or at least physical compulsion or restraint may be necessary (e. g. Punishments which affect the body). In most of the cases, in which it may be necessary to inflict suffering by physical compulsion or restraint, the physical compulsion or restraint is, in fact, needless: because the party, knowing it may be applied, submits voluntarily. LECT. XXIV Immediate and remote objects of duties. LECTURE XXIV. INJURY OR WRONG, GUILT, IMPUTABILITY. 6 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. Consequently, 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 foreborne, 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. LECT. XXIV ances, which are If the act enjoined be forborne or omitted, or if the act Forbearforbidden be done, the positive or negative consequences, Omissions, which it is the purpose of the duty to produce, are certainly or Acts, or probably not produced: Whilst the opposite or contrary inconsisconsequences, which it is the purpose of the duty to avert, the remote certainly or probably follow the forbearance, omission or purposes of act. tent with duties. Certain of such forbearances, omissions, and acts, are Import of injuries or wrongs. 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.'95 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, and 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. 95 (Imputability' is properly applicable to the culpable act, forbearance, or omission. It is, however, applied to the plight or predicament of the party to the cognate expressions, Wrong, Guilt, Im putability of Duty. =Breach LECT. XXIV As I shall shew hereafter, intention, negligence, heedlessness or rashness, is an essentially component part of injury or Intention, wrong; of guilt or imputability; of breach or violation of negligence, duty or obligation. heedless ness, or rashness, is of the essence of injury, guilt, im 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 putability, consciousness, with regard to it, or its consequences, at and before the time of the act, forbearance, or omission. or breach of duty. But is not of itself injury, guilt, etc. Brief analysis of negligence and its modes; of 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 imputability; 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. This may be made manifest by a short analysis. 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, LECT. I will and do the act. XXIV tion re If I am rash, I will and do an act, adverting to its probable Intention regarding consequences; but, by reason of a missupposition which I the present, examine inadvertently, I think that those probable conse- and Intenquences will not ensue. And, by reason of my insufficient garding the 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 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. future. Whether an neither consummate intention, nor followed by an attempt, could be made the object of a 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 in- negative tentions, as are settled, deliberate, or frequently recurring obligation? to the mind. The fear of punishment might prevent the ante.) frequent recurrence; and might, therefore, prevent the pernicious acts or forbearances, to which intentions (when they recur frequently) certainly or probably lead. Be this as it may, I am not aware of a positive system of LECT. XXIV Restriction of [Guilt' or Culpa to Intention, Negligence, Heedlessness, or Rashness, as the cause of Action, Forbearance, or Omission. 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 ;96 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. 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 the effect of his intention, or the omission 96 See Feuerbach, 'Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts,' pp. 33, 41, 42, 43. Rosshirt, Lehrbuch des Criminal- |