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.
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 unadvised one.
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.*
* See ch. vii. [Actions], par. 3.
It is manifest, that with reference to the time of the act, such circumstance may have been either present, past, or future.
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.‡
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 misadvised, with respect to such imagined circumstance: and it may be said, that there has been an erroneous supposition, or a mis-supposal in the case.
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 others.
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.
To return to the example exhibited in the preceding chapter.
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 that way.
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 past circumstance.
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 a future circumstance.
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 misadvised, 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 misadvised, but proceeded on the mis-supposal of a compensative circumstance.
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.
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.
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 non-existence, improbability, or immateriality of it, would have effectually disposed him to prevent the mischievous incident from taking place.
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 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.
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.
* See ch. xii. [Consequences.]
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.
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.
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.∥
† See B. I. tit. [Theft], verbo [amenable.]
Dolus, an virtus, quis in hoste requirat?
—δολῳ ηε ϰαι αμφαδον.
∥ 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 part 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 property distinguished and defined.
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.§
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