agent's consciousness, I may remark that the assumption practically made by this popular inclusion, under a man's act, of those immediate consequences, which are sometimes said to be willed", becomes an important presumption of law in its application to those remoter consequences which are only said to be intended.

What would be the enquiry of any ordinary people into my state of mind with regard to the injury done you in the cases above supposed? With regard to the second, there would be a question as to my knowledge that the gun was loaded: but, in the first and clearer case, scarcely any one would either, to repeat the expression used above, draw any line, between my will to grasp the rapier and the rapier entering your breast, or question my wish to stab you. That is where consequences are so closely connected with the first bodily movement of the agent, that they would generally be classed with it as his 'act,' the principle seems admitted by the ordinary use of words, that a man is, for criminal purposes, assumed to know, what ordinary people know is likely to result from his bodily movements, and to wish that result to happen.

Of course, the whole consideration of these consequences inseparably connected with bodily movement, has no place where there is no bodily movement, i. e. in forbearances and omissions. This digression has been on what is popularly understood by acts; and there, there are no acts in the popular sense.

Voluntary. Will. Volition. Acts, then, are, I believe, in the ordinary popular sense of the word, movements of the body coupled with the more immediate consequences of those movements. Upon the question whether the acts are voluntary or involuntary depends in the first instance, with all civilized legal systems, the question whether the conse11 Austin, Lect. 19, p. 432.

quences of these bodily movements are imputable or not to the persons whose bodies have moved.

Blackstone, in a well-known chapter 12, attributes all exemption from criminal liability to deficiency of will or the will, under which general term he certainly includes very heterogeneous mental conditions, and is taken to task by Austin with due severity13. It seems better, on the whole, to recognize more than one genus of mental conditions. which constitute such exemption, or more than one essential to criminality in the agent's consciousness, and to confine the word will to the question of voluntary or involuntary conduct.

It is important to remember at the outset in the use of this word voluntary, that the volitions intended are merely choices or preferences, but do not involve any liking for what we do. Voluntary has here, therefore, nothing to do with the ultimate motives determining the desire to perform the bodily movement; merely with the fact that there is that desire or volition.

Volition is, says Locke, an act of the mind knowingly exerting that dominion it takes itself to have over any part of the man, by employing it in, or withholding it from, any particular action1. So Austin defines the individual volitions, which are essential to voluntary actions, as desires of a special kind"; such as are immediately (i.e. without inter

12 Comm. IV. ch. 2. Persons capable of crimes.

13 Austin, Lect. 26, p. 511.

14 See Locke, Essay, Bk. 2, ch. 21, §§ 15, 30. He is much more clear throughout this chapter than Austin (p. 429) gives him credit for being.

15 Austin, Lect. 18, p. 430, quoting Bentham, Introduction, ch. vIII. note 1, p. 82.

16 Essay, Bk. 2, ch. 21, § 15, 'any part of the man' is possibly objected to by Austin, where he speaks (p. 423) of certain parts of the body, not others (p. 426), nor the mind (pp. 426 and 469).

17 Austin, Lect. 18, p. 422: Lect. 23 (ad init.), p. 467.

vention of means) followed by their objects, those objects being bodily movements 18.

These individual volitions Austin refuses to refer to any supposed power or faculty, called The Will, behind them, and inveighs, with his usual acrimony where popular morality is concerned, against the supposition that The Will can control the desires 20. The Will has been, with other 'powers,' 'expelled from the region of entities' by Brown in his Analysis of Cause and Effect 21" To many minds the conception of the last named relation will still be something more than one of mere habitual or unconditional sequence: many moral natures will still recognize a conscious supremacy of some of their internal feelings (to use the most general term possible) over others: with neither of these controversies am I concerned. But I do not think Austin is exactly correct in his view of what people generally mean by The Will, and I am convinced of the practical convenience of some abstract term to express what they do mean. What is styled The Will is not a fancied something which comes between the wish and the bodily movement 22. That would be, no doubt, a pure invention, like the old 'occult qualities' in inanimate matter, or Austin's own 'intention in acts,' i.e. expectation that bodily movement will follow the particular volition of which it is the immediate result 23. What is meant by the emphasis of a definite article in The Will, or by the use of volition as an abstract term, is a distinction between the resultant or balance of many different desires which ultimately determines our conduct in an individual instance 24,

18 ib. pp. 425, 426.

20 id. Lect. 22, p. 462.

21 id. Lect. 18, p. 425.

19 Austin, Lect. 18, p. 424.

22 id. Lect. 19, p. 431.

23 ib. 434. See below, ch. VI. 'Intention.'

24 Hobbes' 'last appetite or aversion.' Leviathan, c. 6, p. 28.

and the power of drawing that balance or judging between those desires 25. In the presumptions and counter proofs of legal practice, particularly, as we shall see, in the case of omission, the faculty or power of willing must be recognized as something distinct from its exercise, and it is to that faculty or power that I should venture to give the name of volition, meaning volition in the abstract.

On his individual volitions Austin has a great deal of what appears to be rather psychological than legal reasoning. Law scarcely enters into them, any more than it does into the conditions of brain, which cause them, or the external impressions which may cause that. Being internal, and not perceptible by sense, the desires in question have to be inferred, and, as a matter of fact, they are conclusively inferred, except in certain recognized cases, in which an inference, or the admission of proof, to the contrary, is clearly reasonable.

An agent is presumed to will what he does, or, his action is presumed to be voluntary, unless he be in one of the predicaments hereafter considered; which may be roughly classed under the two heads of Unconsciousness or Constraint; suggested by the two homely questions:-(A) Did he know what he was doing? (B) Could he help it?

A. Unconsciousness. There is an actual unconsciousness, or what generally goes by that name, in sleep, and those cases of mental derangement where the person may be said, probably as to the primary motion itself, certainly, as to the most immediate consequences of that motion, not to know what he is doing, and therefore, of course, not to do it in consequence of a wish or voluntarily. With sleep

25 See Locke, Essay, Bk. 2, ch. 21, § 5. Hobbes too (1. c.) admits a faculty of willing, although it is to the exercise of the faculty rather than the faculty itself that he gives the name of The Will.

26 See for objections to the term, Maudsley, p. 239.

must obviously be ranked that condition intermediate between sleeping and waking in which the ideas and hallucinations of a dream persist for a time, and in which actions have been committed of the nature of which their agents are on all hands considered unconscious". Sir J. Stephen apparently gives the name of voluntary to the actions of somnambulists 28: but he would not, it is presumed, hold that such persons know what they are doing, or are responsible for it. It is quite possible that acts of a highly criminal character per se might be committed in this state of the agent, which is by some thought akin to epilepsy; the practical danger to be guarded against is the ease with which it may be feigned".

In the case of lunatics generally (as well as infants) the ground of exemption is based by Austin upon presumed absence of unlawful intention or inadvertence 30, and he takes Blackstone to task for saying that the act goes not with their will, &c. If there is a positive act there must, he says, be a will going with the act. This follows from Austin's narrowing down the popular meaning (above, p. 22) of act, by insisting upon voluntariness. The injurious movement of the madman. is not his act at all, in Austin's strict sense, if he does ndt know what he is doing. If he does, and is yet held exempt, the exemption has of course, nothing to do with will. But where there is a present mental derangement, which prevents the agent from knowing what he is doing, Blackstone seems to be more correct than Austin, in attributing a deficiency of will, though he is wrong in taking such deficiency to be the ground of all exemptions on the score of lunacy. His words, defective or vitiated understanding, do not, as I once thought they did, point to any alternative of moral discernment, but merely to the difference as generally conceived between an 28 G. V. p. 79.

27 ib. 251-3. See however R. v. Milligan, Taylor, 763. 29 Maudsley, 250, 251.

31 Austin, ib. p. 511. Bl. Comm. 4. 2,

p. 24.

30 Austin, Lect. 26, p. 507.