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he criminal could not have known that he was breaking the law； but to admit the excuse at all would be to encourage ignorance where the law…maker has determined to make men know and obey； and justice to the individual is rightly outweighed by the larger interests on the other side of the scales。
＇49＇ If the foregoing arguments are sound； it is already manifest that liability to punishment cannot be finally and absolutely determined by considering the actual personal unworthiness of the criminal alone。 That consideration will govern only so far as the public welfare permits or demands。 And if we take into account the general result which the criminal law is intended to bring about； we shall see that the actual state of mind accompanying a criminal act plays a different part from what is commonly supposed。
For the most part； the purpose of the criminal law is only to induce external conformity to rule。 All law is directed to conditions of things manifest to the senses。 And whether it brings those conditions to pass immediately by the use of force； as when it protects a house from a mob by soldiers； or appropriates private property to public use； or hangs a man in pursuance of a judicial sentence； or whether it brings them about mediately through men's fears； its object is equally an external result。 In directing itself against robbery or murder； for instance； its purpose is to put a stop to the actual physical taking and keeping of other men's goods； or the actual poisoning； shooting； stabbing； and otherwise putting to death of other men。 If those things are not done； the law forbidding them is equally satisfied； whatever the motive。
Considering this purely external purpose of the law together with the fact that it is ready to sacrifice the individual so far as necessary in order to accomplish that purpose； we can see more readily than before that the actual degree of personal guilt involved in any particular transgression cannot be the only element； if it is an element at all； in the liability incurred。 So far from its ＇5O＇ being true； as is often assumed； that the condition of a man's heart or conscience ought to be more considered in determining criminal than civil liability； it might almost be said that it is the very opposite of truth。 For civil liability； in its immediate working； is simply a redistribution of an existing loss between two individuals； and it will be argued in the next Lecture that sound policy lets losses lie where they fall； except where a special reason can be shown for interference。 The most frequent of such reasons is； that the party who is charged has been to blame。
It is not intended to deny that criminal liability； as well as civil； is founded on blameworthiness。 Such a denial would shock the moral sense of any civilized community； or； to put it another way； a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear。 It is only intended to point out that； when we are dealing with that part of the law which aims more directly than any other at establishing standards of conduct； we should expect there more than elsewhere to find that the tests of liability are external； and independent of the degree of evil in the particular person's motives or intentions。 The conclusion follows directly from the nature of the standards to which conformity is required。 These are not only external； as was shown above； but they are of general application。 They do not merely require that every man should get as near as he can to the best conduct possible for him。 They require him at his own peril to come up to a certain height。 They take no account of incapacities； unless the weakness is so marked as to fall into well…known exceptions； such as infancy or madness。 ＇51＇ They assume that every man is as able as every other to behave as they command。 If they fall on any one class harder than on another； it is on the weakest。 For it is precisely to those who are most likely to err by temperament； ignorance； or folly； that the threats of the law are the most dangerous。
The reconciliation of the doctrine that liability is founded on blameworthiness with the existence of liability where the party is not to blame； will be worked out more fully in the next Lecture。 It is found in the conception of the average man； the man of ordinary intelligence and reasonable prudence。 Liability is said to arise out of such conduct as would be blameworthy in him。 But he is an ideal being； represented by the jury when they are appealed to； and his conduct is an external or objective standard when applied to any given individual。 That individual may be morally without stain； because he has less than ordinary intelligence or prudence。 But he is required to have those qualities at his peril。 If he has them； he will not； as a general rule； incur liability without blameworthiness。
The next step is to take up some crimes in detail； and to discover what analysis will teach with regard to them。
I will begin with murder。 Murder is defined by Sir James Stephen； in his Digest of Criminal Law； /1/ as unlawful homicide with malice aforethought。 In his earlier work； /2/ he explained that malice meant wickedness； and that the law had determined what states of mind were wicked in the necessary degree。 Without the same preliminary he continues in his Digest as follows ：
＇52＇ 〃Malice aforethought means any one or more of the following states of mind 。。。。。 〃（a。） An intention to cause the death of； or grievous bodily harm to； any person； whether such person is the person actually killed or not； 〃（b。） Knowledge that the act which causes death will probably cause the death of； or grievous bodily harm to； some person； whether such person is the person actually killed or not； although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not； or by a wish that it may not be caused； 〃（c。） An intent to commit any felony whatever； 〃（d。） An intent to oppose by force any officer of justice on his way to； in； or returning from the execution of the duty of arresting； keeping in custody； or imprisoning any person whom he is lawfully entitled to arrest； keep in custody； or imprison； or the duty of keeping the peace or dispersing an unlawful assembly； provided that the offender has notice that the person killed is such an officer so employed。〃
Malice； as used in common speech； includes intent； and something more。 When an act is said to be done with an intent to do harm； it is meant that a wish for the harm is the motive of the act。 Intent； however； is perfectly consistent with the harm being regretted as such； and being wished only as a means to something else。 But when an act is said to be done maliciously； it is meant； not only that a wish for the harmful effect is the motive； but also that the harm is wished for its own sake； or； as Austin would say with more accuracy； for the sake of the pleasurable feeling which knowledge of the suffering caused by the act would excite。 Now it is apparent from Sir James ＇53＇ Stephen's enumeration； that of these two elements of malice the intent alone is material to murder。 It is just as much murder to shoot a sentry for the purpose of releasing a friend； as to shoot him because you hate him。 Malice； in the definition of murder； has not the same meaning as in common speech； and； in view of the considerations just mentioned； it has been thought to mean criminal intention。 /1/
But intent again will be found to resolve itself into two things； foresight that certain consequences will follow from an act； and the wish for those consequences working as a motive which induces the act。 The question then is； whether intent； in its turn； cannot be reduced to a lower term。 Sir James Stephen's statement shows that it can be； and that knowledge that the act will probably cause death； that is； foresight of the consequences of the act； is enough in murder as in tort。
For instance； a newly born child is laid naked out of doors； where it must perish as a matter of course。 This is none the less murder； that the guilty party would have been very glad to have a stranger find the child and save it。 /2/
But again； What is foresight of consequences？ It is a picture of a future state of things called up by knowledge of the present state of things； the future being viewed as standing to the present in the relation of effect to cause。 Again； we must seek a reduction to lower terms。 If the known present state of things is such that the act done will very certainly cause death； and the probability is a matter of common knowledge； one who does the act； ＇54＇ knowing the present state of things； is guilty of murder； and the law will not inquire whether he did actually foresee the consequences or not。 The test of foresight is not what this very criminal foresaw； but what a man of reasonable prudence would have foreseen。
On the other hand； there must be actual present knowledge of the present facts which make an act dangerous。 The act is not enough by itself。 An act； it is true； imports intention in a certain sense。 It is a muscular contraction； and something more。 A spasm is not an act。 The contraction of the muscles mus