[326]. Gaius, III. 211.
[327]. The distinction between material and formal wrongdoing has long been familiar in moral philosophy. The material badness of an act depends on the actual nature, circumstances, and consequences of it. Its formal badness depends on the state of mind or will of the actor. The madman who kills his keeper offends materially but not formally; so also with him who in invincible ignorance breaks the rule of right. Material without formal wrongdoing is no ground of culpability.
[328]. Holmes, Common Law, p. 91. So Austin, p. 419: “The bodily movements which immediately follow our desires of them are the only human acts, strictly and properly so called.”
[329]. It is unfortunate that there is no recognised name for the origin or initial stage of the act, as contrasted with the totality of it. Bentham calls the former the act and the latter the action. Principles, ch. 8, sect. 2. Works, I. p. 40. But in common usage these two terms are synonymous, and to use them in this special sense would only lead to confusion.
[330]. See Salmond on Torts, p. 165, 3rd ed.
[331]. Reg. v. Coombes, 1 Lea. Cr. C. 388.
[332]. United States v. Davis, 2 Sumner, 482.
[333]. Reg. v. Armstrong, 13 Cox, C. C. 184; Reg. v. Keyn, 2 Ex. D. 63.
[334]. Cowan v. O’Connor, 20 Q. B. D. 640.
[335]. Muller & Co’s Margarine, Limited v. Inland Revenue Commissioners, (1900) 1 Q. B. 310; (1901) A. C. 217.