Tort

“ I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts—to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. ”

“ Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. ”

“ By means of torture an innocent man may suffer to the uttermost without making any avowal—in such a case what a crime for the judge! Or a person may be subdued by pain, and acknowledge himself guilty, though he be innocent—which throws an equally great sin upon the tribunal. ”

“ But these authorities, which regard the word as the tortious act, certainly should not, in analogy with the other law of torts, be supposed to mean that a man should be responsible for the remote results of his words. ”

“ Whether we force the man's property from him by pinching his stomach, or pinching his fingers, makes some difference anatomically;— morally, none whatsoever: we use a form of torture of some sort in order to make him give up his property; ”

“ If in addition we torture the man, we turn his grief into anger, and the humiliation he would otherwise feel for his wrong-doing is swallowed up by a hope of revenge for our wrong-doing to him. He has paid the legal penalty, and can 'go and sin again' with comfort. ”

“ The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. ”

“ Judges must beware of hard constructions, and strained inferences; for there is no worse torture, than the torture of laws. Specially in case of laws penal, they ought to have care, that that which was meant for terror, be not turned into rigor; and that they bring not upon the people, that shower whereof the Scripture speaketh, Pluet super eos laqueos; for penal laws pressed, are a shower of snares upon the people. ”

“ Io, I have not only broken God’s law, but the laws of my country. Justice demands a victim. My cross is to let the world know my guilt, publicly to confess my crime and accept its penalty, even should it be a death of shame. ”

“ As we are apt to be mistaken in our judgment with regard to the general character of persons, so are we equally so with regard to their evil intentions. An offence is taken from something that has been said or done to us. Now what has been said or done, may not have been the result of either ill-will or malice. It may have been the result of a wrong judgment they had hastily formed, or from some excited state of mind they may have been led to say, or act as they did. ”

“ Is all the wickedness, then, that I am doomed to witness, nothing but a personal affront? When a rascal threatens to blow out my neighbor's brains, or to blast his character by infamous accusations, am I in a position to forbear and pardon? Must I not own myself under a solemn trust, to see the right done and the guilty punished? Nay, would not the injured man himself greatly mistake the nature of the crime, and measure it by a paltry standard, if he took it for a mere private offence which it was his prerogative to punish or to overlook? ”

“ Would you charge any one as a thief? you must be clear from any suspicion of even desiring another man's property. Have you brought a man up for malice or cruelty? take care that you be not found hard-hearted. Have you called a man a seducer or an adulterer? be sure that your own life shows no trace of such vices. Whatever you would punish in another, that you must avoid yourself. A public accuser would be intolerable, or even a caviller, who should inveigh against sins for which he himself is called in question. ”

“ Eudocia
If thou art guilty, own thy crime at once; A poor defence will make thee doubly so. If the least guilt contaminates thy soul, My own would share by hearing thy excuse; I see thee not till time restore thy fame ”

“ And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? ”

“ Yet here, even here, to the very last, no touch of remorse has shaken you,--no shame has found place in your bosom. When proofs, as clear as day, have established rights of another and your own guilt, you have resisted, with base and dishonourable subterfuges, the restitution of that to which you had no claim; and have striven to murder, with words, him whom your steel was impotent to reach. ”

“ Hardened and impenitent sinner! the measure of your iniquity is full: the 321 price of crime has been paid: here shall your spirit dwell for ever, and for ever. You have dreamed away life’s joyous hour, nor made atonement for error, nor denied yourself aught that the fair earth presented you. ”

“ One chief outlet for the malevolent impulses is the avenging of wrong, whether private or public. A convicted wrong-doer is punished by the law, and the indignation roused by the crime turns to gratification at the punishment. ”

“ Hegel: “Penalty is the other half of crime.” R. W. Emerson: “Punishment not follows, but accompanies, crime.”Sagebeer, The Bible in Court, 59—“Corruption is destruction, and the sinner is a suicide; penalty corresponds with transgression and is the outcome of it; sin is death in the making; death is sin in the final infliction.” ”

“ If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are; if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. ”

“ Then they will ask of us, Why, if there are no evils, do you refrain from certain deeds and actions? Why do you not do all that eager lust has required or demanded? Why, finally, do you establish punishments by terrible laws for the guilty? For what more monstrous [5] act of folly can be found than to assert that there are no evils, and at the same time to kill and condemn the erring as though they were evil? ”

“ And yet less, my lords, can I suspect, that those by whom he is accused, act from any motive that may influence them to desire a sentence not supported by evidence, or conformable to truth; or that they can wish the ruin of any man whose crimes are not notorious and flagrant, that they persecute from private malice, or endeavour to exalt themselves by the fall of another. ”

“ Trust me, none can drink of the cup of vice with impunity. But you will say, that there are qualities of so mean or so horrible a nature, as to place the man that is governed by 31them out of the pale of communion with the virtuous. Malice, cruelty, deceit, ingratitude—crimes such as these, should you think, draw down upon those convicted of them no feelings more mild than abhorrence, execration, and scorn. ”

“ Can any crime, tremendous as is the history of human wickedness, compare in turpitude with this?—No, the immutable difference, the heaven-wide distinction which God has established between that being whom he has made a little lower than the angels, and all the other works of this wonderful creation, cannot be annihilated without incurring a weight of guilt beyond expression terrible. ”

“ But the birds resting upon the thorn are the devils, who incline man to vice, so that he becomes their servant. Therefore they will exclaim, in the last day, "Cast this man to us, O righteous judge! for since he would not be thine in all virtue, he is our's in all malice." ”

“ You shall be punished, then, they say, 'since you dare to disapprove of our deed.' Unheard of arrogance, that some men glory in their crime, that others may not even sorrow over it without punishment! ”

“ When found out disgrace the name of man;
Let those who steal, repent and sin no more,
Ere Law decrees, it’s vengeance on them pour:
From trifling things, we greater ills pursue,
Till the Law’s fangs are brought within our view ”

“ You have gone on for a long time in your nefarious course, unchecked by any consideration for those innocent beings against whom your evil practices have been directed, and undeterred either by the pangs of that remorse, which must at times have overshadowed even such a hardened soul as yours, or by the fear of that punishment which, though long deferred, was certain to arrive at last. ”

“ Whereas it is said all malice, all guile, learn, That one sin, not laid aside, will hinder our spiritual profit and everlasting welfare. (4.) Malice, envy, hatred, hypocrisy, and evil-speaking, generally go together. Evil-speaking is a sign that malice and guile lie in the heart ”

“ We shall reply to the accusation of all the various crimes we are said to be guilty of in secret, such as we find them committing in the light of day, and as being guilty of which we are held to be wicked, senseless, worthy of punishment, deserving of ridicule. ”

“ Do you think, my Lord, that Greatness gives a Sanction to Wickedness? Or that it is the Prerogative of Lords to be unjust and inhumane? You remember the Sentence which yourself pronounc'd upon this innocent Man; you cannot think it hard that it should pass on you who are guilty. ”

“ It is to be observed, then, that as there are express determinate acts of wickedness, such as murder, adultery, theft; so, on the other hand, there are numberless cases in which the vice and wickedness cannot be exactly defined, but consists in a certain general temper and course of action, or in the neglect of some duty, suppose charity or any other, whose bounds and degrees are not fixed. ”

“ If the accused were found guilty, judgment must be given against him: "Thou shalt condemn the wicked;" for to justify the wicked is as much an abomination to the Lord as it is to condemn the righteous, Prov. xvii. 15. 4. If the crime were not made capital by the law, then the criminal must be beaten. ”

“ For when it becomes necessary to choose between these three predicaments, either to do wrong without retribution, or to do wrong with retribution, or to do no wrong at all, it is best to do wrong with impunity; next, neither to do wrong nor to suffer for it; but nothing is more wretched than to struggle incessantly between the wrong we inflict and that we receive. ”

“ It is to say that we must resign our conduct and our consciences to the will of others, and act wickedly, or well, as their good or evil may preponderate, without merit for virtue or responsibility for crime. ”

“ Perhaps we have done acts, that, in proportion to the temptation or provocation, were less excusable than his great crime. Silent pity and sorrow for the victim should mingle with our detestation of the guilt. ”

“ If there be punishment after death, surely, the creator and disseminator of scandal will come to know the anger and contempt of a righteous God. The good and the bad are all of a kind to them. Their putrid minds see something vile in every action, and they leave the drippings of their evil tongues wherever they go. ”

“ But it is forgotten that if the person punished is supposed to be innocent, or even if there be any doubt of his guilt, the spectator will reflect that his own danger, whatever it may be, is not contingent on his guiltiness, but threatens him equally if he remains innocent, and how, therefore, is he deterred from guilt by the apprehension of such punishment? ”

“ Do you think that you are able (and this is especially necessary against a defendant of this sort) to cause the things which he has done licentiously, or wickedly, or tyrannically, to appear just as bitter and scandalous to those who hear of them, as they did appear to those who felt them? ”

“ On the contrary, a conscientious persistence in what is manifestly wrong should be an aggravation of the crime, for it gives an appearance of respectability to atrocity, and, when punishment overtakes the wrong-doers, makes the Thug an honoured martyr to his opinions, instead of a convicted felon for his misdeeds. ”

“ The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed. ”

“ Do ye not suppose that the wicked themselves laugh at those who are of like characters to themselves, and condemn them? For since God has placed within us a tribunal which cannot be bribed nor ever utterly destroyed, even though we come to the very lowest depth of vice; therefore even the wicked themselves give sentence against themselves, and if one call them that which they are, they are ashamed, they are angry, they say that it is an insult. ”

“ It has been well observed that it would be dangerous to the peace of society to admit the doctrine that any lawful act can be transformed prima facie into an actionable wrong by a simple allegation that the act was inspired by malice or ill will, or by an improper motive. ”

“ By the help of this magic, we may extract the sting of guilt from every known sin; and, if we have but wit enough, may be as wicked as we please with a safe conscience. 239
If the features of this corrupt casuistry have not been overcharged; or, indeed, if there be any such thing in the world as a corrupt casuistry, it may concern us to reflect, that this pest of society could not have arisen but from a contempt of the Apostle’s rule, of being simple concerning evil. ”