Statutory law need not profess to be consistent with itself, or with the theory adopted by judicial decisions.Hence there is strictly no need to reconcile such a statute with the principles which have been explained.But there is no inconsistency.
Although punishment must be confined to compelling external conformity to a rule of conduct, so far that it can always be avoided by avoiding or doing certain acts as required, with whatever intent or for whatever motive, still the prohibited conduct may not be hurtful unless it is accompanied by a particular state of feeling.
Common disputes about property are satisfactorily settled by compensation.But every one knows that sometimes secret harm is done by neighbor to neighbor out of pure malice and spite.
The damage can be paid for, but the malignity calls for revenge, and the difficulty of detecting the authors of such wrongs, which are always done secretly, affords a ground for punishment, even if revenge is thought insufficient.
How far the law will go in this direction it is hard to say.The crime of arson is defined to be the malicious and wilful burning of the house of another man, and is generally discussed in close connection with malicious mischief.It has been thought that the burning was not malicious where a prisoner set fire to his prison, not from a desire to consume the building, but solely to effect his escape.But it seems to be the better opinion that this is arson, in which case an intentional burning is malicious within the meaning of the rule.When we remember that arson was the subject of one of the old appeals which take us far back into the early law, we may readily understand that only intentional burnings were redressed in that way. The appeal of arson was brother to the appeal de pace et plagis.As the latter was founded on a warlike assault, the former supposed a house-firing for robbery or revenge, such as that by which Njal perished in the Icelandic Saga.But this crime seems to have had the same history as others.As soon as intent is admitted to be sufficient, the law is on the high-road to an external standard.A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned in consequence. In this case, an act which would not have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not.If that may be the effect of setting fire to things which a man has a right to burn, so far as they alone are concerned, why, on principle, should it not be the effect of any other act which is equally likely under the surrounding circumstances to cause the same harm. Cases may easily be imagined where firing a gun, or making a chemical mixture, or piling up oiled rags, or twenty other things, might be manifestly dangerous in the highest degree and actually lead to a conflagration.If, in such cases, the crime is held to have been committed, an external standard is reached, and the analysis which has been made of murder applies here.
There is another class of cases in which intent plays an important part, for quite different reasons from those which have been offered to account for the law of malicious mischief.The most obvious examples of this class are criminal attempts.
Attempt and intent, of course, are two distinct things.Intent to commit a crime is not itself criminal.There is no law against a man's intending to commit a murder the day after tomorrow.The law only deals with conduct.An attempt is an overt act.It differs from the attempted crime in this, that the act has failed to bring about the result which would have given it the character of the principal crime.If an attempt to murder results in death within a year and a day, it is murder.If an attempt to steal results in carrying off the owner's goods, it is larceny.
If an act is done of which the natural and probable effect under the circumstances is the accomplishment of a substantive crime, the criminal law, while it may properly enough moderate the severity of punishment if the act has not that effect in the particular case, can hardly abstain altogether from punishing it, on any theory.It has been argued that an actual intent is all that can give the act a criminal character in such instances. But if the views which I have advanced as to murder and manslaughter are sound, the same principles ought logically to determine the criminality of acts in general.Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them.
