Frederick Pollock.

A first book of jurisprudence for students of the common law online

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as part of to all appearance they are intended and follow as
intended, as part of the act itself, and we speak
of intention only with reference to the farther
consequences. In the act of shooting, for example,
the man's own act stops, if we are to speak with
strict precision, at pulling the trigger, but the
discharge of the gun in the direction given to
the barrel by the man's aim is counted as part


of the act. This is well illustrated in an early
passage of that curious and discursive book,
Abraham Tucker's Liglit of Nature.

In speaking of action, besides the several co-existent
motions and several successive volitions before-mentioned,
we ordinarily comprehend several operations of other agents
acting in a series towards compleating the purpose we had
in view, provided ^^•e conceive them necessarily consequent
upon our volition. Thus when Eoger shot the hawk hover-
ing over his master's dove-house, he only jiulled the trigger,
the action of the spring drove down the flint, the action of
the flint struck fire into the pan, the action of the fire set
the powder in a blaze, that of the powder forced out the
shot, that of the shot wounded the bird, and that of gra^^ity
brought her to the ground. But all this we ascribe to Roger,
for we say he brought down the felon ; and if we think the
shot a nice one, applaud him for having done a clever feat.
So likewise we claim the actions of other persons for our
own, whenever we expect they will certainly follow as we
shall direct. When Squire Peremptory distrained his
tenant for rent, perhaps he did no more than write his
orders in a letter, this his servant carried to the post, the
postman conveyed it into ' the country, where it was
delivered to the steward, who sent his clerk to make the
distress. Yet we ascribe the whole to the Squire's own
doing, for we say he distrained his tenant, and call it a
prudent or a cruel act, according as we think of the circum-
stances of the case.

Hence the law maxini, lie that does a thing by another,
does it hiiiisilf ; which though A^alid in Westminster Hall
will nut hold good in the schools of metaphysics, for there
we shall find nothing an act of the mind that is not the
immediate product of her volition. But for the uses of


prudence and morality we must recur back again to the
common language, because we cannot judge of the merits of
men's doings without taking the consequences into our idea
of the action. Pulling a trigger or drawing characters upon
paper are neither good nor bad, right or wrong, considered
in themselves ; but as the trigger so pulled shall occasion
the slaughter of a man, or of some vermin, or only a bounce
in the air ; as the characters so drawn shall tend to the
necessary security of our property, or to bring a hardship
upon our neighbour, or shall carry no meaning at all, we
pronounce the action prudent or idle, moral or wicked.^

Hence, as Tucker discerned more plainly than
some later writers, it is useless for lawyers to
consider voluntary acts as if they stopped at
the surface of the human body, or to distinguish
between will and intention by reference to nervous
and muscular motions. We take the notion of
Will as we find it in common - sense morality,
resisting temptations to digress on the right hand
into speculative ethics or on the left hand into
psycho-physiology. So taking it, we can use the
extension of will to natural and intended external
consequences as a mere harmless convenience of
language and of compendious thinking.
Remote When wc comc to remoter consequences of

quences as acts they rapidly become complex, so that at
with fii'st sight it is by no means clear which of


1 The Light of Nature Pursued, ch. ii. ad fin.


them were intended or foreseen and which not,
and then we may have to fall back on other
evidence of what the person acting did at the
outset intend and desire. A man comes out of
his house carrying a stick ; after walking a few
steps he turns back, opens the door, goes in,
and comes out again with an umbrella. We
may guess that he returned to fetch an umbrella
because he thought the sky looked rainy. But
this is only one guess and may not be the right
one. He may not have had any thought of being
rained upon or any intention of protecting himself
from rain. Perhaps he thought he would take the
umbrella to be mended. Perhaps he went back
for something quite different, and tlien took up
the umbrella rather than the stick by distraction
or mere accident. The connection of act and
intent is already remote and precarious, even in
so simple a case, unless we have some independent
guidance for our judgment.

Even manifest intention is hardly treated as a Archaic
possible or proper subject-matter of judicial proof regards

1 • ft -iTT-i ji 1 • ,• intention.

Ill archaic systems or law. Where the analysis ot
general conceptions, if any there be, is of a crude
and rudimentary kind, and the methods of proof
are cumbrous and of intiexible formality, there are


no means of apportioning liability for acts with
regard to the actor's intent. Early law fastens
on some particular external quality of an act, and
makes that the decisive test. Thus in the modern
Common Law the difference between murder, the
; capital or more culpable degree of homicide, and

1 manslaughter, the less culpable, involves not only
the notion of intention but considerable refinements
on it. But originally " murder " meant nothing but
secret killing, especially by poison or witchcraft.
Unin- It is common knowledge that consequences of

tended con- o ^ •

sequences an act whicli are manifestly intended often do not
without follow, and unintended consequences do ; as where
one throws a cricket ball at the wicket, or a stone
at some object chosen at random, and misses ;
where a soldier roused in camp by a night alarm
seizes his pistol and, firing in haste, shoots his own
toes instead of the supposed enemy ; where a man
trying to open a locked door with the proper key
finds that the pipe of the key is choked or the lock
is out of order, and the like. We must by no
means suppose that ineffectual intentions are of no
importance in law, for such intentions may well be
the ground of liability for more than one reason.
Attempts to commit offences are commonly punish-
able, and the menace of bodily violence in act is a



complete civil injury by our law, though it may
stop short of the actual application of force ; or,
as we say in technical language, assault without
battery is actionable. The highest crime known to
the law, that of high treason, is singularly enough
defined in its first branch, namely, that of compass-
ing or imagining the death of the king, his consort,
or their son and heir -apparent, as consisting in
intention ; so that even complete execution of the
design is_onJy evidence of Jhe intention which
constitutes the offence. But this appears to be a
historical curiosity of the law not fitted to illustrate
any general principle.

We may now take a summary view of the ways Acts as


in which acts can produce responsibility, in other duties.
words create duties and corresponding rights. A
great numljer of acts are in themselves merely
indifferent to the law, that is to say, do not work
any change in existing duties or rights. We say
" in themselves " because not every act which can
be done with innnediate impunity is rightful or
approved, and the distinction between acts allowed
as rightful and acts and conduct barely tolerated
can be and is applied in the administration of
justice in various indirect ways.

Acts w hich do ^ create or modify rights do so



Acts either with or without the inteution of the parties.


intention If the legal consequences are designed and intended

or consent.

by the parties, the act is an act in the law in the
sense before explained. In abnormal cases there
may be the appearance of an act in the law with-
out the reality, as where a party, by reason of
fraud or otherwise, wholly misconceives the nature
and proper effect of the act he purports to do.
It is important to bear in mind that such cases are
exceptional, and the ordinary inferences from acts of
apparently normal persons are not to be displaced
except by clear proof. Particular transactions, again,
may be forbidden or restrained by positive rules of
law, so that acts disregarding those rules (a cere-
mony of marriage within the prohibited degrees, for
. example) have no legal effect. Many acts in the
law require the concurrent intention of two or more
parties, which is called consent. Consent must be
both real and lawful for the act to be valid. But, in
the absence of anything tending to show the con-
trary, the party relying on an act of consent is not
bound to show more than the outward signs by which
consent is commonly signified. Parties acting in
good faith are entitled to accept these signs in their
usual meaning. Attention to this principle will be
found to solve many of the perplexities with which


old-fashioued text-books have surrounded the word
Mistake, which, as I have said elsewhere, is not a
substantive head of jurisprudence or legaljgracti^,e
at alU

No general proposition can be framed as to the Mistake

... , and

ertect oi a party to a legal transaction having acted ignorance,
under a wrong belief, or in ignorance of some matter
of fact or law which might have changed his mind
if he had known it. There may be such error as to
prevent the formation of consent in a transaction for
which consent is required ; there may be such error
as another party ought not to profit by, because he
has caused or contributed to it ; there may be in
other ways, in consequence of error, a failure of the
conditions required for the transaction to hold good.
But there is no general rule that even mistake of
fact is an excuse, much less that ignorance of law
will relieve a man from liability. Sometimes it is
said that every man is presumed to know the law, but
this is only a slovenly way of stating the truth that
ignorance of the law is not in general an excuse.^

^ Tlie Law of Fraud, etc., in British India (Tagore Law Lectures,
1894), p. 108. The subject is discussed at large in my Principles
of Contract, ch. ix.

- "There is no presumption in this country that every person
knowsthe law : it would be contrary to common sense and reason
if it were so " : Maule, J., in Mariindale v. Falkaer (1846), 2 C.B.
706, 719, 69 R.R. 602, 611.


Imperfect Agaiu, conseiit ought to be full and free ; it

consent. . ^ i ^ •

IS not enough that there is any sort oi consent.
Quite real consent may be brought about by
compulsion or fraud, and the act, though not a
nullity, may be liable to be deprived of its effect if
disputed in the interest of the party who has been
coerced or deceived. Similar rules ap[)ly, to some
extent, to those acts where only the intention of
one person is in question, of whicli dispositions by
will are the most important. We do not enlarge
on these matters, for we are now considering only
what are the possible effects of acts, not examining
the conditions that determine what effect particular
kinds of acts are to have. But there is one dis-
tinction to be mentioned which is of great import-
ance in almost every brancli of private law.

Void and All act that is incapable of taking effect accord-

voidable . . • • 1 1 . 1 1

acts. mg to its apparent purport is said to be void.^

One which may take effect, but is liable to be

deprived of effect at the option of some or one of

the parties, is said to be voidable. A _void able act

can be objected to only by the party specially

entitled to dispute it, or some one standing in his

place, and, so far and so long as no such objection

' It does not follow tliat an act void in its primary intention
may not have some eli'ect in some other capacity. \


has been made, it must be Jreated as valid and
effectual. Moreover, the ])o\ver of objectiug is
limited in certain ways out of regard for the
interests which other persons may have acquired in
good faith on the strength of an apparently valid
act. In this manner acts of disposal or consent
wliicli were not binding in the first instance as
between the parties may be completely binding as
between a party whose consent has been induced
by fraud, or the like, and an innocent third

We must be careful not to say that a void act '*,
can have no legal effect at all. It cannot produce
its intended or apparent effect, but it may have
serious effects which were not intended. A
ceremony of marriage between two persons of
whom one is already married to a living wife
or husband is a nullity so far as concerns the
pretended marriage, but it will generally constitute
the offence of bigamy.

The law generally aims at giving effect, so far as Formal

•11 1 1 /> 1 1 • • f ■ conditions

possible, to the lawful acts and intentions of parties, ofvaii-uiy.
But it is needful for security's and certainty's sake
that intentions of altering existing rights and
making dispositions for the future be sufficiently
manifested, and, with this object in view, the laws


of all countries require particular forms to be
observed in particular kinds of acts. These re-
quirements are not so much restraints upon in-
dividual freedom as safeguards for its full and
deliberate exercise. To some extent, however,
official records of acts may be ordained, and
registration made directly or indirectly compulsory,
in the paramount interest of the State. Among the
possible objects of such regulation are the securing
of duties payable to the public revenue, the super-
vision of the property and affairs of corpora-
tions, and the certainty and publicity of titles to
Liabilities Acts and events may produce liability without

not in- . . .

tended. the intcntiou of any party in various ways. Among
such acts are, of course, crimes and active wrongs :
but involuntary liability has a much wider scope,
for it likewise occurs in many cases where there is
only a technical default or no default at all. A
man to whom a payment is made by mistake incurs
the duty of repaying the money, but he has done
no wrong and has not broken any duty unless and
until, on being informed of the facts, he refuses to
repay. Persons in certain situations, again, have
to answer for accidental damage caused by things
under their control even if the accident was inevit-


able. Here there may be said to be a breach of
duty, but only because the law, for special reasons,^
has in these cases imposed an absolute and unquali-
fied duty of preventing one's property from doing
harm. Thus a man, if he keeps a wild animal, does
so at his peril, and persons dealing with other
things which are accounted especially dangerous
are under the like rule. In the case of breach of
contract the duty broken or not performed has been
imposed on the party by his own consent and will,
and therefore the question is generally not whether
he was to blame, but only what he undertook and
whether he failed ; and if he did fail, from what-
ever cause, to fulfil his undertaking, he is liable.
Here, however, the liability, although not exactly
intended, was contemplated, and, in the event of
failure to perform the promise, accepted beforehand.
If the scope of a promiser's undertaking, or any part
of it, is limited to using due diligence for a specified
purpose, then we have questions identical with those
which arise out of similar duties imposed by the
general law. The two kinds of duty may even

^ In many eases the historical origin of exceptional rules of law
has very little to do with the reasons that can be assigned for
upholding them in modern times. But where an archaic rule has
continued in force to our own time without any serious opposition,
we must presume that at least plausible modern reasons exist. -


coincide, in our law, in some kinds of cases, but
the grounds of such cases are very special and
Degrees of We may take together the cases of responsibility


tary mentioned in the last paragraph, Avliich arise i'rom

liability. ■,■ n i

an unqualined promise or an absolute legal duty, as
differing much in other respects, but having this
much in common, that the liability does not depend
on any ethical judgment of the party's conduct. So
taking them, we may reckon them as comprising
the most positive and artificial grounds of liability.
The next degree is where the party has come under
some duty of using diligence, and has brought about
damage to a fellow-citizen by falling short of the
measure of diligence, " due care and caution " as it
is often called, which the circumstances are deemed
to require of a reasonable man. This ground of
liability is what the Common Law calls Negligence
and the Eoman law Culpa. We have to develop
and apply this idea, partly in criminal law, and to a
considerable extent in the law of contract, since
many kinds of contracts involve an undertaking to
' use due diligence or caution, but its chief importance
is in the law of civil wrongs.

The n we have the cruder and simpl er forms o f
wrong-doing where there is not merely failure in


a positive duty, or culpable shortcouiing, but a
distinctly wrongful intention. Here the liability
may be said to rest on obvious principles of natural
as well as positive law. The common sense of
justice would be shocked if the law did not give
effect to it. AVhether this sludl be done in the
region of civil or criminal law, or peradventure
in both, can be determined only with regard to
tlie civilisation and institutions of each particular

It lias been found a matter of no small difficulty, Liai)iiity

tor con-
both in principle and in the application of the .sequences.

principles to particular cases as they occur, to de-
termine how far a man shall be held answerable for
the less obvious and direct consequences of his acts.
Questions of this kind are referred by English-
speaking lawyers to the head of " remoteness of
damage." It is held that the actor, where he is j'
liable at all, must answer for consequences, whether 1;
intended or not, so far as they are " natural and
probable," that is, according to the opinion now
generally accepted and applied, so far as a reason-
able man in his jilace and with his means of know-
ledge would liave foreseen them. I'hus the ultimate '
appeal is to lay common sense, and the standard
of the law is the standard, so far as it can be


ascertained, of what right - minded and prudent
men look for at one another's hands. The subject
can be profitably studied or expounded only by
going into much more detail (including criticism of
authorities and learned opinions on various points
not yet fully settled) than would be convenient here.



We have now surveyed in the rough the materials General

notion of

on which law has to work, that is to say, persons and property.
things, and the medium by which they are brought
into intelligible relations, that is to say, events and
acts. The relations of persons to things in law have
to be determined in accordance with the facts of
life ; and in daily life the importance of things is
that they can be used and enjoyed. What we call
the law of Property is, in the first place, the
systematic expression of the degrees and forms of
control, use, and enjoyment, that are recognised and
protected by law. Possibly it may turn out to
cover more, if we give the widest acceptable sense
to the word Property ; but it is this at the very

As a matter of fact, one may have the benefits


Control of use and enjoyment in many degrees. So far

and enjoy- . T

ment. as we take only the present into account, exclusive

and effective control of a thing is the highest degree
possible, for this includes power to deal with the
thing, within the bounds of what its nature allows,
at one's will and pleasure. In the notion of
effectiveness we must include such continuance as
will give time (though very little time may be
enough) for the choice and execution of what
shall be done. And we must further include
some practical freedom in these respects. The
man who fields a ball at cricket and instantly
throws it up to the wicket has, for a second or
two, control of the ball which is physically both
exclusive and effective ; but as soon as we look
beyond the bare physical facts, we see that he
has no use of it for himself and little or no
discretion as to what he shall do with it, and
does not think of having any. Nobody would
think of saying that the ball belongs to him.
He holds or detains the ball for a few moments,
but not as his owii or for his own benefit ; to
use the proper " word of art," as English lawyers
say, he does not possess it. The question to whom
it does belong, or, to put it in the manner most
appropriate in our law, wlio would be the right


person to prosecute for a theft of it, may be left
for the reader's amusement. Different things are
capable of very different kinds and degrees of
physical control, and the question whether effective
and exclusive control is shown in a particular case
must be considered with regard to the qualities of
the thing and the manner in which such things are
habitually used and enjoyed. It may be a question
of some difficulty. When it is so, the fault
is not with the law but with the nature of

There are also many modes of enjoyment which Enjoyment


are not exclusive, or not continuous, or partial in control,
extent, or which fall short of general control in
more than one of these ways. One may turn
one's beasts out on a common ; here the en-
joyment is or may be continuous, but it is
not exclusive; One may have the sole use of
shooting or fishing over some other person's land
or water; here the enjoyment is exclusive but
not continuous. One may be accustomed to take
water from a certain well in common with other
persons ; this is a benefit neither exclusive (save
as to the use of the tackle during the actual
operation of drawing water) nor continuous. One
may be accustomed to pass and repass over a


neighbour's land ; this is a partial enjoyment of
the uses of his land. It is not a continuous
enjoyment by its own nature, and it is not
exclusive if other persons or the neighbouring
landowner himself also make use of the path.
We have said nothing yet about legal rights.
All this can be observed as matter of fact
without considering wdiat the law has to say to
it, if anything. All these greater and lesser
conveniences might exist with a certain amount
of customary uniformity and even with a certain
amount of practical security if there were no
law of property at all. What the law has to
do is to confirm and protect, so far as is thought
proper, the relations of control, use, and enjoy-
ment, which exist or may exist in fact. That
a man who is peaceably enjoying land or goods
shall not be disturbed by mere wanton greed or
spite may be taken as an elementary need of
society. What more the law can and should
do may stand over. Possession — actual and
peaceable use of things as one's own — must be
protected to some extent.
Powers of But this is not all. Present enjoyment and


power of enjoyment are not the sum of man's
power over things, either of what he has or of


what he desires. Animals may generally not
see beyond the present; savages may sometimes
not look farther. Man, as a member of a family
and a commonwealth, looks forward and outward.
He wants not only to use and enjoy, but to put
or leave others in his place, and himself to take
the place of others, in a regular and orderly
manner. He must be able to traffic as a seller
or as a buyer, to give or to receive bounty, to

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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 10 of 22)