A wrongful act is seldom intended and desired for its own sake. The wrongdoer has in view some ulterior object which he desires to obtain by means of it. The evil which he does to another, he does and desires only for the sake of some resulting good which he will obtain for himself. He intends the attainment of this ulterior object, no less than he intends the wrongful act itself. His intent, therefore, is twofold, and is divisible into two distinct portions, which we may distinguish as his immediate and his ulterior intent. The former is that which relates to the wrongful act itself; the latter is that which passes beyond the wrongful act, and relates to the object or series of objects for the sake of which the act is done. The immediate intent of the thief is to appropriate another person’s money, while his ulterior intent may be to buy food with it or to pay a debt. The ulterior intent is called the motive of the act.
The immediate intent is that part of the total intent which is coincident with the wrongful act itself; the ulterior intent or motive is that part of the total intent which lies outside the boundaries of the wrongful act. For just as the act is not necessarily confined within the limits of the intent, so the intent is not necessarily confined within the limits of the act. The wrongdoer’s immediate intent, if he has one, is his purpose to commit the wrong; his ulterior intent, or motive, is his purpose in committing it. Every wrongful act may raise two distinct questions with respect to the intent of the doer. The first of these is: How did he do the act—intentionally or accidentally? The second is: If he did it intentionally, why did he do it? The first is an inquiry into his immediate intent; the second is concerned with his ulterior intent, or motive.
The ulterior intention of one wrongful act may be the commission of another. I may make a die with intent to coin bad money; I may coin bad money with intent to utter it; I may utter it with intent to defraud. Each of these acts is or may be a distinct criminal offence, and the intention of any one of them is immediate with respect to that act itself, but ulterior with respect to all that go before it in the series.
A person’s ulterior intent may be complex instead of simple; he may act from two or more concurrent motives instead of from one only. He may institute a prosecution, partly from a desire to see justice done, but partly also from ill-will towards the defendant. He may pay one of his creditors preferentially on the eve of bankruptcy, partly from a desire to benefit him at the expense of the others, and partly from a desire to gain some advantage for himself. Now the law, as we shall see later, sometimes makes liability for an act depend upon the motive with which it is done. The Bankruptcy Act, for example, regards as fraudulent any payment made by a debtor immediately before his bankruptcy with intent to prefer one of his creditors to the others. In all such cases the presence of mixed or concurrent motives raises a difficulty of interpretation. The phrase “with intent to,” or its equivalents, may mean any one of at least four different things:—(1) That the intent referred to must be the sole or exclusive intent; (2) that it is sufficient if it is one of several concurrent intents; (3) that it must be the chief or dominant intent, any others being subordinate or incidental; (4) that it must be a determining intent, that is to say, an intent in the absence of which the act would not have been done, the remaining purposes being insufficient motives by themselves. It is a question of construction which of those meanings is the true one in the particular case.[[343]]
§ 135. Malice.
Closely connected with the law and theory of intentional wrongdoing is the legal use of the word malice. In a narrow and popular sense this term means ill-will, spite, or malevolence; but its legal signification is much wider. Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia[[344]] means badness, physical or moral—wickedness in disposition or in conduct—not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.
We have seen, however, that intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. In the phrases malicious homicide and malicious injury to property, malicious is merely equivalent to wilful or intentional. I burn down a house maliciously if I burn it on purpose, but not if I burn it negligently. There is here no reference to any ulterior purpose or motive. But on the other hand malicious prosecution does not mean intentional prosecution; it means a prosecution inspired by some motive of which the law disapproves. A prosecution is malicious, for example, if its ulterior intent is the extortion of money from the accused. So also with the malice which is needed to make a man liable for defamation on a privileged occasion; I do not utter defamatory statements maliciously, simply because I utter them intentionally.[[345]]
Although the word malitia is not unknown to the Roman lawyers, the usual and technical name for wrongful intent is dolus, or more specifically dolus malus. Dolus and culpa are the two forms of mens rea. In a narrower sense, however, dolus includes merely that particular variety of wrongful intent which we term fraud—that is to say, the intent to deceive.[[346]] From this limited sense it was extended to cover all forms of wilful wrongdoing. The English term fraud has never received an equally wide extension. It resembles dolus, however, in having a double use. In its narrow sense it means deceit, as we have just said, and is commonly opposed to force. In a wider sense it includes all forms of dishonesty, that is to say, all wrongful conduct inspired by a desire to derive profit from the injury of others. In this sense fraud is commonly opposed to malice in its popular sense. I act fraudulently when the motive of my wrongdoing is to derive some material gain for myself, whether by way of deception, force, or otherwise. But I act maliciously when my motive is the pleasure of doing harm to another, rather than the acquisition of any advantage for myself. To steal property is fraudulent; to damage or destroy it is malicious.
§ 136. Relevance and Irrelevance of Motives.
We have already seen in what way and to what extent a man’s immediate intent is material in a question of liability. As a general rule no act is a sufficient basis of responsibility unless it is done either wilfully or negligently. Intention and negligence are the two alternative formal conditions of penal liability.