EDITORIAL DEPARTMENT the midst of a particular set of circumstances, would produce, or tend to produce, any result which the law declares to be a crime and which as such it prohibits with a penalty. "Nevertheless, it is a fundamental maxim of the Common Law that every man is sup posed to intend the natural and probable consequence of his acts; and the question which now confronts us is, whether we can reconcile this maxim with the statement that the law does not attempt to look into a man's mind, and that it takes notice of only outward and visible acts. The reconciliation is found in the fact that the law presumes every man to possess an average amount of intelligence and an average capability of foresight. The subject-matter of the law's observation and control is human conduct, and all human •conduct necessarily involves intelligence and intention, or foresight, as the conditions of its normal operation. Therefore, when the law says that a particular act done in the midst of a certain set of circumstances is a crime, it includes the presumption that the doer of the act has sufficient intelligence and capability of foresight to foresee that his act would pro duce the particular result which the law prohibits. But this presumption may be rebutted by sufficient evidence of mental disease or deficiency; and if a man is devoid of the average intelligence and capability of foresight, which the law presumes him to possess, to such a degree that he is removed out of the normal and natural relations of the human mind to the world around him and cannot be properly said to know what he does, an act committed by him in the midst of circumstances which would make it a crime in a man in the full possession of his faculties is not a crime, because the necessary conditions of average intelligence and normal mental relations to the surrounding circumstances which the law ascribes to every man, until it is proved that he does not possess them, are absent. "The type, therefore, of a criminal act at Common Law is an act done in a set of circum stances which would enable, or permit, or tend, or assist to produce, any direct and forcible interference with the person or prop erty of another which the law did not author ize or excuse, and for which it prescribed a
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penalty. By a forcible interference is meant any interference against the will or consent of the person against whom or against whose property the act of interference is directed. The crime of forgery at Common Law may at first sight appear to have been an exception to this description of a criminal act. But it seems to be tolerably certain that all the forgeries that were brought under the cogni zance of the Courts of Common Law and which were punished by them, previous to any statutory provisions on the subject, were forgeries of deeds and other documents which were made for the purpose of being directly used to deprive a person of the possession of some real or personal property under com pulsion of legal forms or process, and the element of trespass was therefore involved in the purport of the offense. "The growth of the statutory law of England in regard to crimes has been produced by three distinct causes. First, the necessity to pro vide for the punishment of frauds which were not accompanied by trespass and which were, therefore, not punishable at Common Law. Secondly, the desire which possessed the Legislature in the seventeenth and eighteenth centuries to increase the severity of the punish ments of crimes. Thirdly, the amelioration of the severity of the Criminal Law which took place in the middle and latter portion of last century- Under the combined operation of these causes, and the process of consolidation which successive alterations of the law have periodically made necessary, in order to make the knowledge and administration of it practicable, something like a code of a very large part of the Criminal Law has been pro duced. But it is a code which would be largely incapable of being consistently applied to the concrete experiences of men, and, in some aspects of it, would be almost unintel ligible without a knowledge of the law which preceded it and which still exists alongside of it as lex non scripta or Common Law." TORTS (Affirmative Obligation, Theory of) Ix the American Laiv Register for June (V. Ixiii, p. 337) Francis H. Bohlen concludes his series of articles on "The Basis of Affirmative Obligations in the Law of Tort" by discussing the "American cases upon the liability of man
