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327. The distinction between material and formal wrongdoing has long been familiar in moral philosophy. The material badness of an act depends on the actual nature, circumstances, and consequences of it. Its formal badness depends on the state of mind or will of the actor. The madman who kills his keeper offends materially but not formally; so also with him who in invincible ignorance breaks the rule of right. Material without formal wrongdoing is no ground of culpability.

328. Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements which immediately follow our desires of them are the only human acts, strictly and properly so called.”

329. It is unfortunate that there is no recognised name for the origin or initial stage of the act, as contrasted with the totality of it. Bentham calls the former the act and the latter the action. Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these two terms are synonymous, and to use them in this special sense would only lead to confusion.

330. See Salmond on Torts, p. 165, 3rd ed.

331. Reg. v. Coombes, 1 Lea. Cr. C. 388.

332. United States v. Davis, 2 Sumner, 482.

333. Reg. v. Armstrong, 13 Cox, C. C. 184; Reg. v. Keyn, 2 Ex. D. 63.

334. Cowan v. O’Connor, 20 Q. B. D. 640.

335. Muller & Co’s Margarine, Limited v. Inland Revenue Commissioners, (1900) 1 Q. B. 310; (1901) A. C. 217.

336. Reg. v. Ellis, (1899) 1 Q. B. 230.

337. The question is fully discussed in the case of Reg. v. Keyn, 2 Ex. D. 63, in which the captain of a German steamer was tried in England for manslaughter by negligently sinking an English ship in the Channel and drowning one of the passengers. One of the minor questions in the case was that of the place in which the offence was committed. Was it on board the English ship, or on board the German steamer, or on board neither of them? Four of the judges of the Court for Crown Cases Reserved, namely, Denman, J., Bramwell, B., Coleridge, C.J., and Cockburn, C.J., agreed that if the offence had been wilful homicide it would have been committed on the English ship. Denman, J., and Coleridge, C.J., applied the same rule to negligent homicide. Cockburn, C.J., doubted as to negligent homicide. Bramwell, B., said (p. 150): “If the act was wilful, it is done where the will intends it should take effect; aliter when it is negligent.” For a further discussion of the matter, see Stephen’s History of Criminal Law, II. pp. 9–12, and Oppenhoff’s annotated edition of the German Criminal Code (13th ed. 1896), p. 28. The German doctrine is that an act is committed in the place where it is begun. See also Terry, Principles of Anglo-American Law, pp. 598–606, and Edmundson v. Render, (1905) 2 Ch. 320.

338. Northey Stone Co. v. Gidney, (1894) 1 Q. B. 99.

339. If the law dates the commission of a wrong from the completion of it, it follows that there are cases in which a man may commit a wrong after his death. If A. excavates his own land so as to cause, after an interval, the subsidence of the adjoining land of B., there is no wrong done until the subsidence happens; Backhouse v. Bonomi, 9 H. L. C. 503; Darley Main Colliery Co. v. Mitchell, 11 A. C. 127. What shall be said, then, if A. is dead in the meantime? The wrong, it seems, is not done by his successors in title: Hall v. Duke of Norfolk, (1900) 2 Ch. 493; Greenwell v. Low Beechburn Colliery, (1897) 2 Q. B. 165. The law, therefore, must hold either that there is no wrong at all, or that it is committed by a man who is dead at the date of its commission.

340. Holmes, Common Law, p. 53: “Intent 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.”

341. It is to be noticed, however, that the part which was intended may constitute in itself an independent intentional wrong included in the larger and unintentional wrong of which it forms a part. Intentionally to discharge firearms in a public street is a wilful wrong, if such an act is prohibited by law. But accidentally to kill a person by the intentional discharge of firearms in a public street is a wrong of negligence.

342. See however § 143, infra, as to constructive intent. Wrongful intent is sometimes imputed in law when there is none in fact.

343. For a discussion of this matter, see Ex parte Hill, 23 Ch. D. 695, per Bowen, L. J., at p. 704; also Ex parte Taylor, 18 Q. B. D. 295.

344. See for example D. 4. 3. 1. pr.

345. It is to malice in one only of these two uses that the well-known definition given in Bromage v. Prosser (4 Barn & C. 247; 28 R. R. 241) is applicable: “Malice in common acceptation means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.” See, to the same effect, Mogul Steamship Co. v. McGregor Gow & Co., 23 Q. B. D. at p. 612, per Bowen, L. J.; and Allen v. Flood, (1898) A. C. at p. 94, per Lord Watson.

347. Allen v. Flood, (1898) A. C. at p. 123.

348. Corporation of Bradford v. Pickles, (1895) A. C. 587 at p. 598.

349. Allen v. Flood, (1898) A. C. 92 at p. 152.

350. The Roman law as to the rights of adjoining proprietors was different. Harm done animo nocendi, that is to say, with a malicious motive, was actionable. D. 39. 3. 1. 12. The German Civil Code, sect. 226, provides quite generally that the exercise of a right is unlawful when its only motive is to harm another person.

351. Art. 50, 5th ed.

352. Strafgesetzbuch, sect. 43. Cf. the French Code Pénal, Art. 2.

353. Roberts’ Case, Dearsly C. C. 539. Per Parke, B., at p. 551: “An attempt at committing a misdemeanour is not an indictable attempt unless it is an act directly approximating to the commission of an offence, and I think this act is a sufficient approximation. I do not see for what lawful purpose the dies of a foreign coin can be used in England, or for what purpose they could have been procured except to use them for coining.” Per Wightman, J., at p. 551: “It is an act immediately connected with the commission of the offence, and in truth the prisoner could have no other object than to commit the offence.” Per Jervis, C. J., at p. 550: “The prisoner was in possession of machinery necessarily connected with the offence, for the express purpose of committing it, and which was obtained and could be used for no other purpose.”

354. Reg. v. Collins, L. & C. 471.

355. Reg. v. Ring, 61 L. J. M. C. 116; Reg. v. Brown, 24 Q. B. D. 357.

356. Leviathan, ch. 27. Eng. Works III. 288.

357. Reg. v. Dudley 14 Q. B. D. 273. The law as to compulsion and necessity is discussed in Stephen’s History of the Criminal Law, vol. ii. ch. 18, and in an Article on Homicide by Necessity, in L. Q. R. I. 51. See also the German Criminal Code, sect. 54, in which the jus necessitatis receives express recognition.

358. In Roman law negligence is signified by the terms culpa and negligentia, as contrasted with dolus or wrongful intention. Care, or the absence of negligentia, is diligentia. The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction. In ordinary usage, diligence is opposed to idleness, not to carelessness.

359. Grill v. General Iron Screw Colliery Co., L. R. 1 C. P. at p. 612.

360. Kettlewell v. Watson, 21 Ch. D. at p. 706: “Fraud imports design and purpose; negligence imports that you are acting carelessly and without that design.”

361. An excellent analysis of the conception of negligence is to be found in Merkel’s Lehrbuch des deutschen Strafrechts, sects. 32 and 33. See especially sect. 32 (1): “negligent wrongdoing is that which is not intentional, but results from culpable inadvertence (Unaufmerksamkeit) or indifference (Gleichgultigkeit). The mental attitude of the wrongdoer consists not in any desire to do harm, but in the absence of a sufficient desire to avoid it. The law is not satisfied with the mere absence of any intention to inflict injury, but demands a positive direction of the will towards the avoidance of it.”

362. The distinction between these two forms of negligence is well explained by Merkel, Strafrecht, sect. 33 (3).

363. Inst. Just. 4. 3. 7.

364. Derry v. Peek, 14 A. C. 337; Le Lievre v. Gould, (1893) 1 Q. B. 491.

365. Macarthy v. Young, 6 H. & N. 329; Coughlin v. Gillison, (1899) 1 Q. B. 145. For the same reason the occupier of dangerous premises owes a duty of care to him who comes there on business, but none towards a bare licensee. Gautret v. Egerton, L. R. 2 C. P. 371. Similarly an arbitrator is liable for fraud, but not for negligence or want of skill. Tharsis Sulphur and Copper Co. v. Loftus, L. R. 8 C. P. 1.

366. Tillett v. Ward, 10 Q. B. D. 17.

367. Hammack v. White, 11 C. B. N. S. 588.

368. Metropolitan R. Co. v. Jackson, 3 A. C. 193.

369. These negative rules as to negligence commonly assume the form of rules of evidence to the effect that there is no evidence of negligence to go to the jury. But to withdraw a case from the jury on this ground is clearly equivalent to the establishment of a rule of substantive law that the facts proved do not amount to negligence.

370. Pluckwell v. Wilson, 5 C. & P. 375.

371. As to negligence in law, see Holmes, Common Law, p. 111 sqq.

372. See. for example, Smith’s Leading Cases I. 228, 10th ed. (Notes to Coggs v. Bernard.)

373. See Hinton v. Dibbin, 2 Q. B. at p. 661, per Denman, C. J.: “It may well be doubted whether between gross negligence and negligence merely any intelligible distinction exists.” Wilson v. Brett, 11 M. & W. at p. 113, per Rolfe, B.: “I said I could see no difference between negligence and gross negligence, that it was the same thing with the addition of a vituperative epithet.” Grill v. General Iron Screw Colliery Co., L. R. 1 C. P. at p. 612, per Willes, J.: “No information has been given us as to the meaning to be attached to gross negligence in this case, and I quite agree with the dictum of Lord Cranworth in Wilson v. Brett that gross negligence is ordinary negligence with a vituperative epithet, a view held by the Exchequer Chamber in Beal v. South Devon Ry. Co.” Doorman v. Jenkins, 2 Ad. and El. at p. 265, per Denman, C. J.: “I thought and I still think it impossible for a judge to take upon himself to say whether negligence is gross or not.” Pollock’s Torts, p. 441, 8th ed. Street’s Foundation of Legal Liability, I. p. 28. See, however, for a full discussion of the matter, and an expression of the contrary opinion, Beven on Negligence, Book I. ch. II.

374. D. 50. 16. 226. See also D. 17. 1. 29. pr. D. 47. 4. 1. 2. D. 11. 6. 1. 1.; Lata culpa plane dolo comparabitur.

375. R. v. Harvey, 2 B. & C. at p. 264, 26 R. R. at p. 343: “A party must be considered in point of law to intend that which is the necessary or natural consequence of that which he does.” Cf. Freeman v. Pope, 5 Ch. Ap. at p. 540; Ex parte Mercer, 17 Q. B. D. at p. 298.

376. In Le Lievre v. Gould, (1893) 1 Q. B. at p. 500, it is said by Lord Justice Bowen: “If the case had been tried with a jury, the judge would have pointed out to them that gross negligence might amount to evidence of fraud, if it were so gross as to be incompatible with the idea of honesty, but that even gross negligence, in the absence of dishonesty, did not of itself amount to fraud.” Literally read, this implies that, though gross negligence cannot be fraud, it may be evidence of it, but this of course is impossible. If two things are inconsistent with each other, one of them cannot be evidence of the other. The true meaning is that alleged or admitted negligence may be so gross as to be a ground for the inference that it is in reality fraud and not negligence at all; see also Kettlewell v. Watson, 21 Ch. D. at p. 706 per Fry, J.

377. Stephen, Digest of the Criminal Law, Art. 244, 5th ed.

378. Austin, Lecture XX.; Birkmeyer, Strafrecht, sect. 17; Clark, Analysis of Criminal Liability, ch. 9.

379. Clerk and Lindsell, Torts, p. 457, 4th ed.: “Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea, and has nothing to do with a state of mind.” Cf. Pollock, Torts, pp. 437–439, 8th ed.

380. The question is discussed in Holmes’s Common Law, pp. 81–96 and in Pollock’s Law of Torts, pp. 136–148, 8th ed.

381. As to mens rea in criminal responsibility see Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Prince, L. R. 2 C. C. 154; Chisholm v. Doulton, 22 Q. B. D. 736.

382. The rule is not limited to civil and criminal liability, but extends to all other departments of the law. It prevents, for example, the recovery of money paid under a mistake of law, though that which is paid under a mistake of fact may be reclaimed.

383. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. D. 22. 6. 9. pr.

384. Hollins v. Fowler, L. R. 7 H. L. 757; Consolidated Coy. v. Curtis, (1892) 1 Q. B. 495.

385. Reg. v. Prince, L. R. 2 C. C. 154.

386. Y. B. 17 Edw. IV. 2.

387. Filburn v. Aquarium Co., 25 Q. B. D. 258.

388. Black v. Christchurch Finance Co., (1894) A. C. 48.

389. Rylands v. Fletcher, L. R. 3 H. L. 330.

390. Pickard v. Smith, 10 C. B. N. S. 470.

391. Ellis v. Loftus Iron Co., L. R. 10 C. P. 10.

392. Exodus xxi. 28.

394. Thorpe, Ancient Laws and Institutes of England, I. p. 71, sect. 13.

395. 9 & 10 Vict. c. 62; Blackstone, I. 300.

396. Inst. Just. 4. 8. and 4. 9.

397. Chisholm v. Doulton, 22 Q. B. D. 736. Parker v. Alder, (1899) 1 Q. B. 20.

398. Deut. xxiv. 16.

399. Laws, 856. On the vicarious responsibility of the kindred in early law, see Lea, Superstition and Force, pp. 13–20, 4th ed., and Tarde, La Philosophie Pénale, pp. 136–140.

400. Salmond, Essays in Jurisprudence and Legal History, pp. 161–163; Wigmore, Responsibility for Tortious Acts, Select Essays in Anglo-American Legal History, III. pp. 520–537; Street, Foundations of Legal Liability, II. ch. 41–43.

401. Substantive law, as opposed to the law of procedure; civil law, as opposed to criminal.

402. Blackstone III. 143. “The child hath no property in his father or guardian as they have in him.” Ibid.

403. Leviathan, ch. xxx.; Eng. Wks. III. 329.

404. Treatise on Civil Government, II. ch. v. sect. 27.

405. Ibid. ch. vii. sect. 87.

406. D. 9. 2. 13. pr.

407. Droit Naturel, II. sect. 55.

408. Principles, p. 231; Works, I. 108. So Puchta, sect. 231: Nur an ... körperlichen Gegenständen ist Eigenthum möglich.

410. The full power of alienation and disposition is an almost invariable element in the right of ownership, but cannot be regarded as essential, or included in the definition of it. A married woman subject to a restraint on anticipation is none the less the owner of her property, though she cannot alienate or encumber it.

Austin (II. p. 790) defines the right of ownership as a “right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing.”

412. On this question see Pollock’s Torts, p. 347, 8th ed.; Clerk & Lindsell’s Torts, pp. 337–339, 4th ed.; Salmond’s Torts, § 53 (9); Hazeltine’s Law of the Air; Pickering v. Rudd, 4 Camp. 219; 16 R. R. 777; Fay v. Prentice, 1 C. B. 828; Wandsworth Board of Works v. United Telegraph Coy., 13 Q. B. D. 904; Ellis v. Loftus Iron Coy., L. R. 10 C. P. 10.

414. Inst. Just. 2. 1. 29. See also Gaius 2. 73: Superficies solo cedit.

415. Monti v. Barnes, (1901) 1 K. B. 205.

416. It is only by slow degrees and with imperfect consistency that our law has worked out an intelligible principle on this matter. The older law seems to have recognised mere physical attachment as necessary and sufficient, subject to exceptions so numerous and important, as to deprive the principle itself of any rational basis. See, for the modern law on the point, Holland v. Hodgson, L. R. 7 C. P. 328; Monti v. Barnes, (1901) 1 K. B. 205; In re De Falbe, (1901) 1 Ch. 523; (1902) A. C. 157; Elwes v. Brigg Gas Coy., 33 Ch. D. 502. Similar law is contained in Article 95 of the German Civil Code: “Things are not part of the land which are attached to it simply for a temporary purpose.” The case of Reynolds v. Ashby & Son, (1904) A. C. 466, shows, however, that English law has not yet succeeded in adopting with consistency any single and intelligible rule.

417. Unlike a chattel, a piece of land has no natural boundaries. Its separation from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that may be desired. The lines of subdivision are usually vertical, but may be horizontal. The surface of land, for example, may belong to one man and the substrata to another. Each story of a house may have a different owner. In The Midland Railway Coy. v. Wright, (1901) 1 Ch. 738, it was held that a right had been acquired by prescription to the surface of land belonging to a railway company, although a tunnel beneath the surface remained the property of the company as having been continuously in its occupation.

418. Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights, regarded as incorporeal things, are properly speaking neither movables nor immovables. But by a fiction the law classes them as one or the other according to the nature of their subject-matter.” See also Dernburg’s Pandekten, I. sect. 74.

419. For example, the jurisdiction of English courts in the administration of deceased persons’ estates depends on the deceased having left property in England. Portions of revenue law and of private international law are also based on the assumption that all proprietary rights possess a local situation.

420. Inland Revenue Commissioners v. Muller & Co.’s Margarine, Limited, (1901) A. C. at p. 230.

422. Dicey, Conflict of Laws, p. 310, 2nd ed.

423. There are certain cases, however, which have been decided on the assumption that incorporeal property possesses no local situation at all. For this reason it was held in The Smelting Company of Australia v. Commissioners of Inland Revenue, (1897) 1 Q. B. 172, that a share of a New South Wales patent, together with the exclusive right of using it within a certain district of that colony, was not property “locally situated out of the United Kingdom” within the meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a licence to use a patent, which is not a visible or tangible thing, can be said to be locally situate anywhere.” See, however, as to this case, the observations of Vaughan Williams, L.J., in Muller & Co.’s Margarine, Limited, v. Inland Revenue Commissioners, (1900) 1 Q. B. at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901) A. C. at p. 237. See further, as to the local situation of incorporeal property. Danubian Sugar Factories v. Commissioners of Inland Revenue, (1901) 1 K.B. 545; Commissioner of Stamps v. Hope, (1891) A. C. 476; Att.-Gen. v. Dimond, 1 C. & J. 356; 35 R. R. 732; In re Clark, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp. 309–314, 2nd ed.

424. The matter has been well discussed by Mr. T. C. Williams in L. Q. R. IV. 394.

425. Under the head of material things we must class the qualities of matter, so far as they are capable in law of being in themselves the objects of rights. The qualities which thus admit of separate legal appropriation are two in number, namely force and space. Electricity is in law a chattel, which can be owned, sold, stolen, and otherwise rightfully and wrongfully dealt with. 45 & 46 Vict. c. 56, s. 23. Definite portions of empty space are capable of appropriation and ownership, no less than the material objects with which other portions of space are filled. The interior of my house is as much mine as are the walls and the roof. It is commonly said that the owner of land owns also the space above the surface usque ad coelum. Whether this is truly so is a doubtful point as the law stands, but there is no theoretical difficulty in allowing the validity of such a claim to the ownership of empty space.

426. The distinction formerly noticed by us (§ 88) between corporeal and incorporeal things must not be confounded with the present distinction between material and immaterial things. The latter is a logical distinction, but the former is a mere artifice of speech. An incorporeal thing is a kind of right, namely any right which is not identified with some material thing which is its subject-matter. An immaterial thing is not a right but the subject-matter of one. It is any subject-matter of a right except a material object.

429. Encumbrances are not confined to the law of property, but pertain to the law of obligations also. Choses in action may be mortgaged, settled in trust, or otherwise made the subject-matter of jura in re aliena, no less than land and chattels. Much, therefore, of what is to be said here touching the nature of the different forms of encumbrance is equally applicable to the law of rights in personam.

430. Possession by way of security only, e.g., a pledge, is differentiated by its purpose, however, and falls within the class of securities, not within that of leases.

431. Beardman v. Wilson, L. R. 4 C. P. 57.

432. An example of a lease in perpetuity is the emphyteusis of Roman law. In consequence of its perpetuity the Roman lawyers were divided in opinion as to the true position of the tenant or emphyteuta, some regarding him as an owner and others as an encumbrancer. The law was finally settled in the latter sense. Just. Inst. III. 24. 3.

433. The term servitude (servitus) is derived from Roman law, and has scarcely succeeded in obtaining recognition as a technical term of English law. It is better, however, than the English easement, inasmuch as easements are in the strict sense only one class of servitudes as above defined.

434. It is only over land that servitudes can exist. Land is of such a nature as to admit readily of non-possessory uses, whereas the use of a chattel usually involves the possession of it for the time being, however brief that time may be. The non-possessory use of chattels, even when it exists, is not recognised by the law as an encumbrance of the ownership, so as to run with it into the hands of assignees.

435. An easement, in the strictest sense, means a particular kind of servitude, namely a private and appurtenant servitude which is not a right to take any profit from the servient land. A right of way or of light or of support is an easement; but a right to pasture cattle or to dig for minerals is in English law a distinct form of servitude known as a profit. This distinction is unknown in other systems, and it has no significance in juridical theory. Its practical importance lies in the rule that an easement must (it seems) be appurtenant, while a profit may be either appurtenant or in gross.

436. The term security is also used in a wider sense to include not only securities over property, but also the contract of suretyship or guarantee—a mode of ensuring the payment of a debt by the addition of a second and accessory debtor, from whom payment may be obtained on default of the principal debtor. With this form of security we are not here concerned, since it pertains not to the law of property, but to that of obligations.

437. The word lien has not succeeded in attaining any fixed application as a technical term of English law. Its use is capricious and uncertain, and we are at liberty, therefore, to appropriate it for the purpose mentioned in the text, i.e., to include all forms of security except mortgages.

438. As we shall see, a mortgage by way of transfer is none the less an encumbrance also—an encumbrance, that is to say, of the beneficial ownership which remains vested in the mortgagor.

439. It is not essential to a mortgage that the right vested in the mortgagee should in actual fact survive the right secured by it, so as to remain outstanding and redeemable. It is sufficient that in its nature it should be capable of doing so, and therefore requires to be artificially restricted by an obligation or condition of re-assignment or surrender. This re-assignment or surrender may be effected by act of the law, no less than by the act of the mortgagee. The conveyance of the fee simple of land by way of security is necessarily a mortgage and not a lien, whether it revests in the mortgagor ipso jure on the payment of the debt, or does not revest until the mortgagee has executed a deed of reconveyance.