FRAUD, MALICE, AND INTENT.- THE THEORY OF TORTS.
The next subjects to be considered are fraud, malice, and intent.In the discussion of unintentional wrongs, the greatest difficulty to be overcome was found to be the doctrine that a man acts always at his peril.In what follows, on the other hand, the difficulty will be to prove that actual wickedness of the kind described by the several words just mentioned is not an element in the civil wrongs to which those words are applied.
It has been shown, in dealing with the criminal law, that, when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself.For the purposes of the criminal law, however, intent alone was found to be important, and to have the same consequences as intent with malevolence superadded.Pursuing the analysis, intent was found to be made up of foresight of the harm as a consequence, coupled with a desire to bring it about, the latter being conceived as the motive for the act in question.Of these, again, foresight only seemed material.As a last step, foresight was reduced to its lowest term, and it was concluded that, subject to exceptions which were explained, the general basis of criminal liability was knowledge, at the time of action, of facts from which common experience showed that certain harmful results were likely to follow.
It remains to be seen whether a similar reduction is possible on the civil side of the law, and whether thus fraudulent, malicious, intentional, and negligent wrongs can be brought into a philosophically continuous series.
A word of preliminary explanation will be useful.It has been shown in the Lecture just referred to that an act, although always importing intent, is per se indifferent to the law.It is a willed, and therefore an intended coordination of muscular contractions.But the intent necessarily imported by the act ends there.And all muscular motions or co-ordinations of them are harmless apart from concomitant circumstances, the presence of which is not necessarily implied by the act itself.To strike out with the fist is the same act, whether done in a desert or in a crowd.
The same considerations which have been urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least frequently, to a series of acts, or to conduct, although the series shows a further co-ordination and a further intent.For instance, it is the same series of acts to utter a sentence falsely stating that a certain barrel contains No.1 Mackerel, whether the sentence is uttered in the secrecy of the closet, or to another man in the course of a bargain.There is, to be sure, in either case, the further intent, beyond the co-ordination of muscles for a single sound, to allege that a certain barrel has certain contents,--an intent necessarily shown by the ordering of the words.But both the series of acts and the intent are per se indifferent.They are innocent when spoken in solitude, and are only a ground of liability when certain concomitant circumstances are shown.
The intent which is meant when spoken of as an element of legal liability is an intent directed toward the harm complained of, or at least toward harm.It is not necessary in every case to carry the analysis back to the simple muscular contractions out of which a course of conduct is made up.On the same principle that requires something more than an act followed by damage to make a man liable, we constantly find ourselves at liberty to assume a co-ordinated series of acts as a proximately simple element, per se indifferent, in considering what further circumstances or facts must be present before the conduct in question is at the actor's peril.It will save confusion and the need of repetition if this is borne in mind in the following discussion.
The chief forms of liability in which fraud, malice, and intent are said to be necessary elements, are deceit, slander and libel, malicious prosecution, and conspiracy, to which, perhaps, may be added trover.
Deceit is a notion drawn from the moral world, and in its popular sense distinctly imports wickedness.The doctrine of the common law with regard to it is generally stated in terms which are only consistent with actual guilt, and all actual guilty intent.It is said that a man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it, if the person addressed believes it, and is thereby persuaded to act to his own harm.This is no doubt the typical case, and it is a case of intentional moral wrong.Now, what is the party's conduct here.It consists in uttering certain words, so ordered that the utterance of them imports a knowledge of the meaning which they would convey if heard.But that conduct with only that knowledge is neither moral nor immoral.Go one step further, and add the knowledge of another's presence within hearing, still the act has no determinate character.The elements which make it immoral are the knowledge that the statement is false, and the intent that it shall be acted on.
