felonious or criminal act. 18 [AJIl questions of intention and malice are closed by the finding of the jury, that the prisoner committed the act with which he was charged whilst engaged in the commission of a substantive felony.. irrespective of all refinements as to recklessness"and"wilfulness.19 --The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female with a good motive. Nevertheless, although there may be such cases, which are not immoral in one sense, I say that the act forbidden is wrong. 20 Mens rea] exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offence within a more serious class of crime... 1 In their legalistic fussing over criteria of culpability, the English judges are struggling to define the relevant features of the modern individual. How much ethical frailty do we allow this individual? Does she owe her allegiance to positive law or common morals? Must she take care to heed the signals she receives from the world of experience? To obey 18Regina v. Faulkner, 13 Cox's Cases Res 550(1877)(Fitzgerald, J) 19Id (Keogh, J) 20Regina v Prince, L.R. 2, Crown Cases. Res. 154(1875)(Bramwell, B 21ld. (Brett, J)
10 felonious or criminal act.18 --[A]ll questions of intention and malice are closed by the finding of the jury, that the prisoner committed the act with which he was charged whilst engaged in the commission of a substantive felony.. . . irrespective of all refinements as to "recklessness" and "wilfulness. . . . 19 --The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female with a good motive. Nevertheless, although there may be such cases, which are not immoral in one sense, I say that the act forbidden is wrong.20 -- [Mens rea] exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offence within a more serious class of crime. . . ..21 In their legalistic fussing over criteria of culpability, the English judges are struggling to define the relevant features of the modern individual. How much ethical frailty do we allow this individual? Does she owe her allegiance to positive law or common morals? Must she take care to heed the signals she receives from the world of experience? To obey 18Regina v. Faulkner, 13 Cox's Cases Res. 550 (1877) (Fitzgerald, J.). 19Id. (Keogh, J.) 20Regina v. Prince, L.R. 2, Crown Cases. Res. 154 (1875) (Bramwell, B.). 21Id. (Brett, J.)
the legislature? Do her legal duties set the minimum or the maximum of her social duties? It takes not a subversive re-reading, but a change in vocabulary, to view these cases as inventing " the subjects of their jurisprudence Now return to blackstone for a moment to note that the dilemma between desert and utility creates one other great mysterious problem for the substantive criminal law the problem of cause And yet, generally, a design to transgress is not so flagrant an enormity as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking; so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse even till the last stage of any crime that it is never too late to retract; and that if a man stops even here, it is better for him than if he proceeds. 22 The key to that mystery, however, does not lie in the question of what it means to cause a result. On that score, the familiar vagaries of actual and proximate cause plague the criminal law as they do tort law. Rather, the mystery more peculiar to the matter of criminal punishment is that of why cause matters at all. Hence we face the problem of distinguishing attempts from both completed crimes and from actions or mental phenomena that fall short of crime. And then we face the even subtler difficulties of determining the reach of complicity and conspiracy law No one text easily comprehends the problem, but no student or scholar can fully 2Blackstone, supra note 1, at 12
11 the legislature? Do her legal duties set the minimum or the maximum of her social duties? It takes not a subversive re-reading, but a change in vocabulary, to view these cases as “inventing” the subjects of their jurisprudence. Now return to Blackstone for a moment to note that the dilemma between desert and utility creates one other great mysterious problem for the substantive criminal law: the problem of cause: And yet, generally, a design to transgress is not so flagrant an enormity as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking; so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse even till the last stage of any crime, that it is never too late to retract; and that if a man stops even here, it is better for him than if he proceeds....22 The key to that mystery, however, does not lie in the question of what it means to cause a result. On that score, the familiar vagaries of actual and proximate cause plague the criminal law as they do tort law. Rather, the mystery more peculiar to the matter of criminal punishment is that of why cause matters at all. Hence we face the problem of distinguishing attempts from both completed crimes and from actions or mental phenomena that fall short of crime. And then we face the even subtler difficulties of determining the reach of complicity and conspiracy law. No one text easily comprehends the problem, but no student or scholar can fully 22Blackstone, supra note 1, at 12
appreciate the criminal law without spending an hour with one of the great common law cases, State v. Tally, 23 which explores the mystery with literary elegance and philosophical candor beyond anything we will find in modern jurisprudence. Here is the raw plot of this late Victorian novel-in-an-appellate-opinion: Ross, the seducer of Tallys sister in law, flees Scottsboro for Stevenson, with Tally s kinsmen in pursuit. Ross's kinsman sends a telegram of warning to Ross at Stevenson. Tally sends a telegram to the telegraph operator at Stevenson, urging him to prevent Ross from escaping. The Stevenson telegraph operator ends up not delivering the warning to Ross, who is killed There is really one key problem in Tally: As exquisitely analyzed by the court, it is impossible to determine for sure whether Tally's actions played any causal role in Ross's death It is quite enough if the aid merely rendered it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life which but for it he would have had, he who furnishes such aid is guilty, though it cannot be known or shown that the dead man in the absence thereof would have availed himself of that chance, as, where one counsels murder, he is guilty as an accessory before the fact, though it appears probable that murder would have been done without his counsel; and as, where one being present by concert to aid if necessary is guilty as a principal in the second degree, though, had he been absent murder would have been committed so where he who facilitates murder even by so much as destroying a single chance of life the assailed 23102Ala.25,15So.722(1894)
12 appreciate the criminal law without spending an hour with one of the great common law cases, State v. Tally,23 which explores the mystery with literary elegance and philosophical candor beyond anything we will find in modern jurisprudence. Here is the raw plot of this late Victorian novel-in-an-appellate-opinion: Ross, the seducer of Tally's sister in law, flees Scottsboro for Stevenson, with Tally's kinsmen in pursuit. Ross's kinsman sends a telegram of warning to Ross at Stevenson. Tally sends a telegram to the telegraph operator at Stevenson, urging him to prevent Ross from escaping. The Stevenson telegraph operator ends up not delivering the warning to Ross, who is killed. There is really one key problem in Tally: As exquisitely analyzed by the court, it is impossible to determine for sure whether Tally's actions played any causal role in Ross's death. It is quite enough if the aid merely rendered it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life which but for it he would have had, he who furnishes such aid is guilty, though it cannot be known or shown that the dead man, in the absence thereof, would have availed himself of that chance; as, where one counsels murder, he is guilty as an accessory before the fact, though it appears probable that murder would have been done without his counsel; and as, where one being present by concert to aid if necessary is guilty as a principal in the second degree, though, had he been absent murder would have been committed, so where he who facilitates murder even by so much as destroying a single chance of life the assailed 23102 Ala. 25, 15 So. 722 (1894)