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the nature and consequence of conduct and to appreciate that it was wrong" And, as a matter of convenience, the two kinds of knowledge will probably continue to be taken together, in the case of infants.

This chapter may be concluded with a few notes upon Roman law on the subject of the exemption of young persons from criminal liability.


In Roman law the literal meaning of infans continually recurs, and somewhat obscures the legal definition of infancy as a period of life. Inability to speak was of course important to the stipulation, which must be oral 1. Want of intelligence, as to civil acts in law, is the ground on which both the infans and infanti proximus are put on much the same level with the madman by Gaius 2. And the acquisition of speech is distinctly disregarded by Arcadius and Honorius, who fix, for one civil purpose, the termination of infancy at seven. This appears almost as a general definition a little later, though Theophilus in his Commentary on Justinian's Institutes, while mentioning seven or eight as the time when a child begins to speak, plainly makes the entry upon the age known as next to infancy depend upon the latter fact 65. Blackstone's general statement that children under ten and a half were at Roman law not punishable for any crime has no support in the passage quoted by him

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60 Code, § 21.

61 Ulpian, Digest, 45. 1. 1. pr. Stipulatio non potest confici nisi utroque loquente: et ideo neque mutus neque surdus neque infans stipulationem contrahere possunt.

62 Ga. 3. 106. Furiosus nullum negotium gerere potest quia non intelligit quid agat (cf. Just. Instt. 3. 19. 9, 10). Ga. 3. 109. Infans et infanti proximus non multum a furioso differt quia nullum intellectum habent.

63 Codex Theodosianus 8. 18. 8.

64 In a constitution of Theodosius (2) and Valentinian A.D. 426. Infanti id est minori septem annis. Codex (Justiniani), 6. 30. 18 pr.

65 Theophilus, 3. 19. 9.

66 Blackstone, Comm. 4. 2, p. 22.


from the Institutes, a work confined almost exclusively to civil matters. The other references given by him, to the Digest, bear upon the civil liability for delict and the criminal liability in general" of a person not arrived at puberty, if he is culpæ or doli capax or has rei intellectus. The cases apparently make out a præsumptio juris of general incapacity to commit wrong, public or private, under puberty; rebuttable by evidence of capacity, at any rate in the age called next to puberty, the limits of which are not very clearly settled. Puberty itself was fixed by Justinian at completion of the 14th year for males and the 12th for females 70

67 The passage quoted as Inst. 3. 20. 10 is now numbered 3. 19. 10.

68 Dig. 50. 17. 111 pr. Pupillum qui proximus pubertati sit capacem esse et furandi et injuriae faciendae. Dig. 47. 2. 23. Impuberem furtum facere posse si jam doli capax sit Julianus...scripsit. Item posse cum impubere damni injuriae infantes id non cadere. See too Paul. Sent. 5. 4. 2.

69 Dig. 29. 5. 14. Ejus aetatis, quamquam nondum puberis, ut rei intellectum capere possent, his non magis in caede domini quam in ulla alia causa parci oportere.

70 Just. Instt. 1. 22. pr.



A. Major Criminality.


THE list of the essentials of criminal liability is now concluded. They fall, as has been seen, into two groups. First; an event, which is 'criminal' if a consequence of human conduct, and a connexion, not too remote, of that event with the conduct of some person-henceforth called the offender. These are respectively matters of particular municipal law, and evidence. Second; certain mental conditions or capacities of the offender, namely-volition, knowledge of the consequences of his conduct, and knowledge that his conduct was wrong. These last are recognized as essential to criminal liability, with more or less distinctness, in all civilized systems of justice. They are generally matters of legal presumption, to be rebutted by evidence, either that the offender belongs to a class in whose behalf a counter-presumption holds, or that one or more of the essentials is wanting in his particular If all the essentials are present, the offender must be in some degree criminally liable. The degree is often indicated by different names for the crime, where the resulting consequence which gave rise to the whole procedure is the same. And, not only here, but where there is one simple degree of criminality attached to a particular class of criminal


consequences, the crime has, in all serious cases, acquired a specific legal definition, the points of which must be substantively proved. These points often combine, with some 'of the essentials above described, other facts of the offender's consciousness. In other words the corpus delicti, or total of his offence1, in most cases includes some matter of motive or intention not hitherto noticed2.

Motives. I do not know that the term motive is very largely used in practical law: but as it is often used in treatises of jurisprudence and that sometimes in a lax and sometimes in a strict signification, I may here quote some useful dicta from the best authorities known to me on the subject.

Strictly, according to Austin3 a motive is a desire causing and preceding a ‘volition'—it is a wish for some object not to be attained like an act proper (i.e. bodily movement) by the mere wishing for it (a 'volition') but by means, inter alia, of volitions. There may obviously be motives of motivesthe desire for a certain end will lead to the desire for the means to that end, and the latter to a volition. In this case the desire for the ultimate end will generally be what is understood as the motive par excellence; though perhaps this is more strictly true of the ultimate end for the time beings.

The above is the strict and proper sense of motive®: it is however often used improperly for the end or object desired',

1 See Austin, Lect. 24, pp. 479, 80, for this phrase.

2 For specific intention see the end of this chapter.

3 Austin, Lect. 18, 19, pp. 428, 432.

5 Markby, p. 101, § 207.

4 ib.

6 Cf. the words of Bramwell, B., in R. v. Haynes. 1 Foster and Finlason, 666.

7 How easily and naturally the term motive is transferred from a desire to the object of that desire, or even to the object of an aversion, may be seen from Austin's own expression "the sanction" (contingent evil) "cannot

in which case it generally means the ultimate end for the time being.

Intention. Passing, however, now from the term motive to the thing, I proceed to consider the desires or other mental condition, besides mere capacity, of a person to whom certain criminal consequences are in some degree imputable.

First, these consequences may have been distinctly desired by him, either as end or means. This case excludes the idea of omission, or not doing a thing because we never think about it. It obviously includes the expectation of the consequences of our conduct, or the knowledge that such consequences are likely to result from such conduct and something more. If we wish for a result, and we act so as to produce that result, we set ourselves to produce that result by our conduct. And this I cannot but believe to be the original meaning of Intentio :—the setting (literally aiming) of oneself and one's powers to bring about a certain result3.

The meaning of intention in French, from which language I suppose we received the word, of intent in the language of our old common law 10, and of intention in its ordinary modern English use, is pretty nearly equivalent to

operate as a motive," p. 505, and Bentham's very confused and loose chapter "Of Motives" (Introduction, ch. x.).

8 I put together a few instances:

(1) mere aim or direction: proficisci quo te dicis intendere. Cicero de Orat. 2. 42. 179;

hence (2) attack: intentio ac depulsio (in suits). Quinctilian, Inst. 3. 9. 11; or (3) design, purpose: intentio tua ut libertatem revoces. Pliny, Panegyr. 78;

(4) intentio as part of the formula: qua actor desiderium suum concludit. Gaius, 4. 41. This appears to include both (2) and (3).

This last is the commonest meaning in the Digest, passing sometimes into that of simple assertion or allegation; e.g. Digest, 8. 33. 1.

9 From Joinville downwards. See Littré.

10 Stephen (G. V. 305) calls intent the end contemplated at the moment of action. Is it not rather the contemplation of the end?

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