I. So far with regard to the ways in which the will or
intention may be concerned in the production of any incident: we come now to
consider the part which the understanding or perceptive faculty may have borne,
with relation to such incident.
II. A certain act has been done, and that
intentionally: that act was attended with certain circumstances: upon these
circumstances depended certain of its consequences; and amongst the rest, all
those which were of a nature purely physical. Now then, take any one of these
circumstances, it is plain, that a man, at the time of doing the act from
whence such consequences ensued, may have been either conscious, with respect
to this circumstance, or unconscious. In other words, he may either have been
aware of the circumstance, or not aware: it may either have been present to his
mind, or not present. In the first case, the act may be said to have been an
advised act, with respect to that circumstance: in the other case, an
III. There are two points, with regard to which an act
may have been advised or unadvised: 1. The existence of the circumstance
itself. 2. The materiality of it.
IV. It is manifest, that with reference to the time of
the act, such circumstance may have been either present, past, or
V. An act which is unadvised, is either
heedless, or not heedless. It is termed heedless, when the case is
thought to be such, that a person of ordinary prudence, if prompted by an ordinary share of benevolence,
would have been likely to have bestowed such and so much attention and
reflection upon the material circumstances, as would have effectually disposed
him to prevent the mischievous incident from taking place: not heedless, when
the case is not thought to be such as above mentioned.
VI. Again. Whether a man did or did not suppose the
existence or materiality of a given circumstance, it may be that he did
suppose the existence and materiality of some circumstance, which either did
not exist, or which, though existing, was not material. In such case the act
may be said to be mis-advised, with respect to such imagined
circumstance: and it maybe said, that there has been an erroneous supposition,
or a mis-supposal in the case.
VII. Now a circumstance, the existence of which is thus
erroneously supposed, may be material either, 1. In the way of prevention: or,
2. In that of compensation. It may be said to be material in the way of
prevention, when its effect or tendency, had it existed, would have been to
prevent the obnoxious consequences: in the way of compensation, when that
effect or tendency would have been to produce other consequences, the
beneficialness of which would have out-weighed the mischievousness of the
VIII. It is manifest that, with reference to the time
of the act, such imaginary circumstance may in either case have been supposed
either to be present, past, or future.
IX. To return to the example exhibited in the
10. Tyrrel intended to shoot in the direction in which he shot;
but he did not know that the king was riding so near that way. In this case the
act he performed in shooting, the act of shooting, was unadvised, with
respect to the existence of the circumstance of the king's being so near riding
11. He knew that the king was riding that way: but at the distance at which
the king was, he knew not of the probability there was that the arrow would
reach him. In this case the act was unadvised, with respect to the
materiality of the circumstance.
12. Somebody had dipped the arrow in poison, without Tyrrel's knowing of it.
In this case the act was unadvised, with respect to the existence of a
13. At the very instant that Tyrrel drew the bow, the king being screened
from his view by the foliage of some bushes, was riding furiously, in such
manner as to meet the arrow in a direct line: which circumstance was also more
than Tyrrel knew of. In this case the act was unadvised, with respect to the
existence of a present circumstance.
14. The king being at a distance from court, could get nobody to dress his
wound till the next day; of which circumstance Tyrrel was not aware. In this
case the act was unadvised, with respect to what was then future
15. Tyrrel knew of the king's being riding that way, of his being so near,
and so forth; but being deceived by the foliage of the bushes, he thought he
saw a bank between the spot from which he shot, and that to which the king was
riding. In this case the act was mis-advised, proceeding on the
mis-supposal of a preventive circumstance.
16. Tyrrel knew that every thing was as above, nor was he deceived by the
supposition of any preventive circumstance. But he believed the king to be an
usurper: and supposed he was coming up to attack a person whom Tyrrel believed
to be the rightful king, and who was riding by Tyrrel's side. In this case the
act was also mis-advised, but proceeded on the mis-supposal of a
X. Let us observe the connexion there is between
intentionality and consciousness. When the act itself is intentional, and with
respect to the existence of all the circumstances advised, as also with
respect to the materiality of those circumstances, in relation to a given
consequence, and there is no mis-supposal with regard to any preventive
circumstance, that consequence must also be intentional: in other words;
advisedness, with respect to the circumstances, if clear from the mis-supposal
of any preventive circumstance, extends the intentionality from the act to the
consequences. Those consequences may be either directly intentional, or only
obliquely so: but at any rate they cannot but be intentional.
XI. To go on with the example. If Tyrrel intended to
shoot in the direction in which the king was riding up, and knew that the king
was coming to meet the arrow, and knew the probability there was of his being
shot in that same part in which he was shot, or in another as dangerous, and
with that same degree of force, and so forth, and was not misled by the
erroneous supposition of a circumstance by which the shot would have been
prevented from taking place, or any such other preventive circumstance, it is
plain he could not but have intended the king's death. Perhaps he did not
positively wish it; but for all that, in a certain sense he intended it.
XII. What heedlessness is in the case of an unadvised
act, rashness is in the case of a misadvised one. A misadvised act then may be
either rash or not rash. It may be termed rash, when the case is thought to be
such, that a person of ordinary prudence, if prompted by an ordinary share of
benevolence, would have employed such and so much attention and reflection to
the imagined circumstance, as, by discovering to him the nonexistence,
improbability, or immateriality of it, would have effectually disposed him to
prevent the mischievous incident from taking place.
XIII. In ordinary discourse, when a man does an act of
which the consequences prove mischievous, it is a common thing to speak of him
as having acted with a good intention or, with a bad intention, of his
intention's being a good one or a bad one. The epithets good and bad are all
this while applied, we see, to the intention: but the application of them is
most commonly governed by a supposition formed with regard to the nature of the
motive. The act, though eventually it prove mischievous, is said to be done
with a good intention, when it is supposed to issue from a motive which is
looked upon as a good motive: with a bad intention, when it is supposed to be
the result of a motive which is looked upon as a bad motive. But the nature of
the consequences intended, and the nature of the motive which gave birth to the
intention, are objects which, though intimately connected, are perfectly
distinguishable. The intention might therefore with perfect propriety be styled
a good one, whatever were the motive. It might be styled a good one, when not
only the consequences of the act prove mischievous, but the motive which
gave birth to it was what is called a bad one. To warrant the speaking
of the intention as being a good one, it is sufficient if the consequences of
the act, had they proved what to the agent they seemed likely to be,
would have been of a beneficial nature. And in the same manner the
intention may be bad, when not only the consequences of the act prove
beneficial, but the motive which gave birth to it was a good one.
XIV. Now, when a man has a mind to speak of your
intention as being good or bad, with reference to the consequences, if he
speaks of it at all he must use the word intention, for there is no other. But
if a man means to speak of the motive from which your intention
originated, as being a good or a bad one, he is certainly not obliged to use
the word intention: it is at least as well to use the word motive. By the
supposition he means the motive; and very likely he may not mean the
intention. For what is true of the one is very often not true of the other. The
motive may be good when the intention is bad: the intention may be good when
the motive is bad: whether they are both good or both bad, or the one good and
the other bad, makes, as we shall see hereafter, a very essential difference
with regard to the consequences. It is
therefore much better, when motive is meant, never to say intention.
XV. An example will make this clear. Out of malice a
man prosecutes you for a crime of which he believes you to be guilty, but of
which in fact you are not guilty. Here the consequences of his conduct
are mischievous: for they are mischievous to you at any rate, in virtue of the
shame and anxiety which you are made to suffer while the prosecution is
depending: to which is to be added, in case of your being convicted, the evil
of the punishment. To you therefore they are mischievous; nor is there any one
to whom they are beneficial. The man's motive was also what is called a
bad one: for malice will be allowed by every body to be a bad motive. However,
the consequences of his conduct, had they proved such as he believed
them likely to be, would have been good: for in them would have been included
the punishment of a criminal, which is a benefit to all who are exposed to
suffer by a crime of the like nature. The Intention therefore, in this
case, though not in a common way of speaking the motive, might be styled a
good one. But of motives more particularly in the next chapter.
XVI. In the same sense the intention, whether it be
positively good or no, so long as it is not bad, may be termed innocent.
Accordingly, let the consequences have proved mischievous, and let the motive
have been what it will, the intention may be termed innocent in either of two
cases: 1. In the case of un-advisedness with respect to any of the
circumstances on which the mischievousness of the consequences depended: 2. In
the case of mis-advisedness with respect to any circumstance, which, had
it been what it appeared to be, would have served either to prevent or to
outweigh the mischief.
XVII. A few words for the purpose of applying what has
been said to the Roman law. Unintentionality, and innocence of intention, seem
both to be included in the case of infortunium, where there is neither
dolus nor culpa. Unadvisedness coupled with heedlessness, and
mis-advisedness coupled with rashness, correspond to the culpa sine
dolo. Direct intentionality corresponds to dolus. Oblique
intentionality seems hardly to have been distinguished from direct; were it to
occur, it would probably be deemed also to correspond to dolus. The
division into culpa, lata, levis, and levissima, is
such as nothing certain can correspond to. What is it that it expresses? A
distinction, not in the case itself, but only in the sentiments which any
person (a judge, for instance) may find himself disposed to entertain with
relation to it: supposing it already distinguished into three subordinate cases
by other means.
The word dolus seems ill enough contrived: the word culpa as
indifferently. Dolus, upon any other occasion, would be understood to
imply deceit, concealment,
clandestinity: but here it is extended to
open force. Culpa, upon any other occasion, would be understood to
extend to blame of every kind. It would therefore include dolus.
XVIII. The above-mentioned definitions and distinctions
are far from being mere matters of speculation. They are capable of the most
extensive and constant application, as well to moral discourse as to
legislative practice. Upon the degree and bias of a man's intention, upon the
absence or presence of consciousness or mis-supposal, depend a great part of
the good and bad, more especially of the bad consequences of an act; and on
this, as well as other grounds, a great part of the demand for
punishment. The presence of intention with
regard to such or such a consequence, and of consciousness with regard to such
or such a circumstance, of the act, will form so many criminative
circumstances, or essential ingredients in
the composition of this or that offence: applied to other circumstances,
consciousness will form a ground of aggravation, annexable to the like
offence. In almost all cases, the absence
of intention with regard to certain consequences and the absence of
consciousness, or the presence of mis-supposal, with regard to certain
circumstances, will constitute so many grounds of extenuation.
1. See ch. vii. [Actions], par. 3.
2. See ch. vi. [Sensibility], par. 12.
3. See B. I. tit. [Extenuations].
4. See ch. vii. [Consequences].
5. See B. I. tit. [Theft] verbo [amenable].
6. Dolus, an virtus quis in hoste requirit? —
— doloi ehe kai amphadon — Homer.
7. I pretend not here to give any determinate
explanation of a set of words, of which the great misfortune is, that the
import of them is confused and indeterminate. I speak only by approximation. To
attempt to determine the precise import that has been given them by a hundredth
pant of the authors that have used them, would be an endless task. Would any
one talk intelligibly on this subject in Latin? let him throw out dolus
altogether: let him keep culpa, for the purpose of expressing not the
case itself, but the sentiment that is entertained concerning a case described
by other means. For intentionality, let him coin a word boldly, and say
intentionalitas: for unintentionality, non-intentionalitas. For
unadvisedness, he has already the word inscitia; though the words
imprudentia, inobservantia, were it not for the other senses they
are used in, would do better: for unadvisedness coupled with heedlessness, let
him say inscitia culpabilis for unadvisedness without heedlessness,
inscitia inculpabilis: for mis-advisedness coupled with rashness,
error culpabilis, error temerarius, or error cum
temeritate: for mis-advisedness without rashness, error
inculpabilis, error non-temerarius, or error sine temeritate.
It is not unfrequent likewise to meet with the phrase, malo animo: a
phrase still more indeterminate, if possible, than any of the former. It seems
to have reference either to intentionality, or to consciousness, or to the
motive, or to the disposition, or to any two or more of these taken together;
nobody can tell; which these being objects which seem to have never hitherto
been properly distinguished and defined.
8. See ch. xiii. [Cases unmeet].
9. See B. I. tit. [Circumstances influencing].
10. See B. I. tit. [Aggravations].
11. See B. I. tit. [Extenuations].
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