It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness.  Such a denial would shock the moral sense of any civilized community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.  It is only intended to point out that, when we are dealing with that part of the law which aims more directly than any other at establishing standards of conduct, we should expect there more than elsewhere to find that the tests of liability are external, and independent of the degree of evil in the particular person’s motives or intentions.  The conclusion follows directly from the nature of the standards to which conformity is required.  These are not only external, as was shown above, but they are of general application.  They do not merely require that every man should get as near as he can to the best conduct possible for him.  They require him at his own peril to come up to a certain height.  They take no account of incapacities, unless the weakness is so marked as to fall into well-known exceptions, such as infancy or madness. [51] They assume that every man is as able as every other to behave as they command.  If they fall on any one class harder than on another, it is on the weakest.  For it is precisely to those who are most likely to err by temperament, ignorance, or folly, that the threats of the law are the most dangerous.

The reconciliation of the doctrine that liability is founded on blameworthiness with the existence of liability where the party is not to blame, will be worked out more fully in the next Lecture.  It is found in the conception of the average man, the man of ordinary intelligence and reasonable prudence.  Liability is said to arise out of such conduct as would be blameworthy in him.  But he is an ideal being, represented by the jury when they are appealed to, and his conduct is an external or objective standard when applied to any given individual.  That individual may be morally without stain, because he has less than ordinary intelligence or prudence.  But he is required to have those qualities at his peril.  If he has them, he will not, as a general rule, incur liability without blameworthiness.

The next step is to take up some crimes in detail, and to discover what analysis will teach with regard to them.

I will begin with murder.  Murder is defined by Sir James Stephen, in his Digest of Criminal Law, 1 as unlawful homicide with malice aforethought.  In his earlier work, 2 he explained that malice meant wickedness, and that the law had determined what states of mind were wicked in the necessary degree.  Without the same preliminary he continues in his Digest as follows:—­