§2. Let us now turn to consider cases where, in the common view, what is judicially enforced is compensation to the individual wronged, and not punishment on the wrongdoer. Here, too, we shall find that, though reparation is undoubtedly a part of the aim of law, the prevention of future mischief is also an important consideration:---and, generally speaking, the most decisive consideration in determining doubtful points.
Let us first observe that blameworthiness, in some degree, is normally characteristic of mischief for which reparation ought to be legally enforced as well as of that for which punishment is inflicted as punishment. This is not, perhaps, clear at first sight; it may be thought that the need of reparation arises from the mere fact that mischief, such as law aims at preventing, has been inflicted by A on B, without any consideration of the blameworthiness of A: that if A has caused, even quite accidentally, mischief or loss which must ultimately fall on somebody, it is more reasonable that the burden of the loss should be borne by A, who did, in a physical sense, act, than by B, who is innocent of any action whatever. But reflection will, I think, show that, from a utilitarian point of view, it would be wrong to hold men responsible for all results to which they physically contributed, however impossible it may have been to foresee such results. It is fundamentally important for the general happiness of any society that its members should be acting strenuously and energetically in some way or other: and it would too seriously interfere with this to lay down the broad rule ``that every man acts at his peril'', and is responsible for any mischief that may result. I hold, therefore, that damages for unintentional mischief should only be legally enforced, as a general rule, when the man who has physically caused the mischief has not taken due and proper care: i.e. has not taken such care as would be taken by an ordinary person desirous of avoiding injury to others, as completely as this can be done without serious interference with his normal functions, unless his normal industry is of a dangerous kind, in which case special care may reasonably be required. The line, of course, is a difficult one to draw exactly: it must to a great extent be left to be decided by common sense and experience applied to particular circumstances. As will be seen from the language that I have just used, I by no means assume that in every case where a man is rightly held legally responsible for the consequences of his act, there must have been something morally blameworthy in the state of mind that preceded the act in question. As Mr. Holmes says: ``The law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that: if a man is born hasty and awkward his neighbours require him at his proper peril to come up to their standard.'' But it remains true that, so far as responsibility be thus determined, the object of the law in enforcing damages is not merely reparative, but partly also preventive; it aims at maintaining a certain average standard of carefulness by providing that those who fall short of this standard shall act at their peril.
In laying down as a general principle that reparation should only be due where there has been at least negligence, if not culpable intention, I do not mean to affirm that there may not be important exceptions. We cannot even say that every act known by the agent to be mischievous, and for which reparation should be exacted, is an act from which the agent ought to have abstained; since in exceptional circumstances it may sometimes be right to choose such an act as the lesser of two evils. Again, where protection from a particular kind of mischief is of great importance, and where it is specially difficult to prove mischievous intention or neglect of others' rights on the part of persons who contribute in a secondary way to the mischief, it may be on the whole best to make the burden fall on these contributories, though innocent not only of harmful intention, but even of negligence. This is perhaps the case where damage has been innocently done to the property of another by a man who had good reason for regarding it as his own. Suppose (e.g.) that a man has innocently purchased stolen goods, under circumstances which gave no occasion whatever for suspicion. It seems hard that he should have to compensate for any damage done to the goods: but considering the great importance of protecting property, the great difficulty of tracing it when stolen, the ease with which trade in stolen goods may be carried on undetected, it is perhaps needful, for adequate repression of this trade, and adequate determent to possible purchasers of other men's goods, to adopt the broad principle that no seller can give a better title than he has got: so that not only restoration of such goods, but also reparation for any damage done to them, will be due to the rightful owner from the most innocent and diligent purchaser. And other exceptions may have to be admitted on similar grounds. Still, I conceive it will remain generally true that the enforcement of damages no less than the infliction of punishment (in the narrower sense) should be regarded as implying, in the broad sense above explained, some degree of culpability in the person on whom reparation is imposed.
How then shall we distinguish the kind of wrongs for which the enforcement of damages is the appropriate penalty, from the kind of wrongs for which punishment proper is required? An answer often given to this question is that damages are the appropriate remedy for private wrongs, or encroachments on the rights of individuals considered as such; whereas punishment is required to repress public wrongs, or offences against the community. This answer, no doubt, corresponds to the historical origin of the distinction, but it is unsuitable to a fully-developed system of jurisprudence so far as it maintains a distinction in kind between the mischief of crimes and the mischief of civil injuries: we cannot really get beyond a distinction in degree. The graver mischiefs that we chiefly speak of as criminal are primarily inflicted on individuals, no less than the slighter injuries which only give a claim for damages: and what Bentham calls the ``secondary evil'' of alarm and danger, which unpunished crime tends to cause to the community at large, exists to some extent in the case of almost all violations of rights,---indeed it is less obvious and palpable in the case of many crimes than it is in the case of the unintended mischiefs which a modern system of law would treat merely as civil injuries. If A has wounded my neighbour to-day by firing a pistol carelessly in his garden, he is not unlikely to wound me before Ion long in the same way if he is not made to suffer for his carelessness: but if he has wounded him in a duel, my alarm is at any rate more indirect and remote, since he cannot fight a duel with me without my consent.
On the whole, then, it seems to me that the distinction between wrongs that give occasion for damages only, and wrongs that give occasion for punishment proper, is a subordinate one, which experience alone can enable us to draw in the best way, in establishing an actual system of legal sanctions. All governmental interference caused by proved violation of rights ought to aim, so far as possible, at repairing the past mischief as well as preventing future mischief of the same kind. In some cases the enforcement of adequate compensation---not only for the original wrong, but also for any trouble and expense entailed in the process of obtaining redress for it---is sufficiently onerous to the person who has violated another's right to render unnecessary any further, purely penal, intervention of government; and so far as this is the case, it is advantageous in all ways to avoid inflicting punishment as such for offences that cannot excite the clear and decided moral disapprobation which is commonly reserved for intentional misdeeds. In the case, however, of mortal injuries, where reparation is impossible to the person primarily injured, and prevention specially important owing to the gravity of the mischief, there seem to be overwhelming reasons for treating even mere negligence as criminal. And, on the other hand, there are minor injuries which, even though intentional, may be adequately repressed by the enforcement of damages;---as (e.g.) malicious slander is held to be in English law.
I think, therefore, that in a theoretical discussion of remedies for wrongs, Damages should be treated as one form of legal penalty, having, generally speaking, A preventive as well as a reparative function. It should be assumed (1) that the law will secure adequate reparation to the person wronged, so far as this is possible; and (2) that certain classes of wrongs---which experience alone can enable us to define---may be adequately repressed by the mere enforcement of damages: while in other cases, either from the gravity of the offence, or because, though socially dangerous, it causes no definite harm to assignable individuals, or because nothing like adequate reparation is likely to be obtained, punishment proper is the indispensable means of determent.
At the same time, I do not wish to underrate the practical importance of the distinction between punishments and damages as appropriate respectively to crimes and civil injuries. A clear distinction between the procedures belonging to the two kinds of remedies respectively is a necessary element of a civilised system of law. For where it is an adequate means of preventing wrongs to fix the burden of reparation on the wrongdoer, there is obviously no absolute necessity for any intervention of government: the required reparation may as well be made privately between the parties, so that it may properly be left to the option of the individual wronged to invoke the aid of government if necessary. On the other hand, where punishment---as distinct from reparation---is needed in the interest of the community at large, it must be the business of government to secure that it shall be inflicted whenever it is deserved: to secure, therefore, that persons harmed by the crime shall come forward and give evidence, and shall not make peace with the criminal. And to attain this result, it is found more and more necessary, as civilisation advances, that government should make the prosecution of crimes its own business. Thus, though the ultimate end of both civil and criminal procedure is to a great extent the same---prevention of mischief---the regulations of the two systems are necessarily different; and historically they have shown a marked tendency to diverge more and more.
On this subject I shall have something more to say in the part of my treatise that deals with the structure of government. At present I shall confine myself to a brief discussion of the kinds and amounts of reparation that law-courts should enforce, and the kinds and degrees of punishment that they should inflict.[Back to:] [Elempol, Chapter 8, Section 1]