Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 21

The intentions which I considered in my last Lecture, are coupled with present volitions, and with present acts.

The party wishes or wills certain of the bodily movements which immediately follow our desires of them: He expects or believes, at the moment of the volition, that the bodily movements which he wills will certainly and immediately follow it: and he also expects or believes, at the moment of the volition, that some given event or events will certainly or probably follow those bodily movements.

In other words, he presently wills some given act; intending the act (as the consequence of the volition), and intending some further event (as the consequence of the volition and the act).

Present intention to do a future act, distinguished from an act with a present volition and intention.

But a present intention to do a future act, is neither coupled with the performance of the act, nor with a present will to do it. The present intention is not coupled with the present performance of the act. For the intention, though present, regards the future. Nor is it coupled with the present will to do the act intended. For to will an act is to do the act, provided that the bodily organ, which is the instrument of the volition and the act, be in a sound or healthy state.

Consequently, to do an act with a present intention, is widely different from a present intention to do a future act. In the first case, the act is willed and done. In the second case, it is neither willed nor done, although it is intended.

A present intention to do a future act, may (I think) be resolved into the following elements.

First, The party desires a given object, either as an end, or as a mean to an end.

Secondly, He believes that the object is attainable through acts of his own: Or (speaking more properly) he believes that acts of his own would give him a chance of attaining it.

Thirdly, He presently believes that he shall do acts in future, for the purpose of attaining the object.

A belief ‘that the desired object is attainable through acts of our own,’ and ‘that we shall do acts thereafter for the purpose of attaining it,’ are necessary constituents of the 436complex notion which is styled ‘a present intention to do a future act.’

Unless I believe that the object be attainable through acts of my own, I cannot presently believe that I shall do acts hereafter for the purpose of attaining the object. I cannot believe that I shall try to attain an object, knowing that my efforts to attain it are utterly ineffectual.⁸⁶

⁸⁶ E.g. Desire to be King. But no man in a private station (unless he be a madman) can intend to aim at the Kingly Office; i.e. to pursue a course of conduct leading him to the throne.

Intention supposes that the object is attainable through conduct of our own. Or (as it is commonly said) that the attainment of the object depends upon our will. And though I believe that the object be attainable through acts of my own, I simply desire or barely wish the object, unless I presently believe that I shall do acts hereafter for the purpose of attaining it.

For example, if I wish for a watch hanging in a watchmaker’s window, but without believing that I shall try to take it from the owner, I am perfectly clear of intending to steal the watch, although I am guilty of coveting my neighbour’s goods (provided that the wish recur frequently).

The belief ‘that the desired object is attainable through acts of our own,’ is necessarily implied in the belief ‘that we shall do acts hereafter for the purpose of attaining it.’

Consequently, a present intention to do a future act may be defined to be: ‘A present desire of an object (either as an end or a mean), coupled with a present belief that we shall do acts hereafter for the purpose of attaining the object.’

It may also be distinguished briefly from a present volition and intention, in the following manner:

In the latter case, we presently will, and presently act, expecting a given consequence. In the former case, we neither presently will nor presently act, but we presently expect or believe that we shall will hereafter.

When we will a present act, intending a given consequence, it is frequently said ‘that we will the consequence as well as the act.’ And when we intend a future act, it is frequently said ‘that we will the act now, although we postpone the execution to a future time.’ In either case, will is confounded with intention.

When we intend a future act, it is also commonly said 437‘that we resolve or determine to do it;’ or ‘that we make up our minds to do it.’ Frequently, too, a verbal distinction is taken between a strong and a weak intention; that is to say, between a strong or a weak belief that we shall do the act in future. Where the belief is strong, we are more apt to say ‘that we intend the act.’ Where the belief is weak, we are more apt to say ‘that we believe we shall do it.’

Such being the forms of language, it is somewhat difficult to admit, at first hearing, ‘that a present intention to do a future act is nothing but a present belief that we shall do an act in future.’ But that nothing but this really passes in the mind any man may convince himself by examining the state of his mind when he intends a future act.

When we speak of willing a future act, we are not speaking of our intention to do the future act, but of our wish for the object which we believe may be attained through the act. Or, rather, our wish for the object, and our intention of resorting to the mean, are blended and confounded. And as every volition is a desire, and is also coupled with an intention, the compound of desire and intention is naturally styled a volition, although it is impossible (from the nature of the case) that we can will an act of which we defer the execution.

When we say ‘that we have resolved or determined on an act,’ or ‘that we have made up our minds to do an act,’ we merely mean this: ‘that we have examined the object of the desire, and have considered the means of attaining it, and that, since we think the object worthy of pursuit, we believe we shall resort to the means which will give us a chance of getting it.’

Here also, the desire of the object is confounded with the belief which properly constitutes the intention. Every genuine volition being a desire, and every genuine volition being coupled with an intention, we naturally extend the terms which are proper to volitions to every desire which is combined with an intention.

It is clear that such expressions as ‘determining,’ ‘resolving,’ ‘making up one’s mind,’ can only apply in strictness to ‘volitions’: that is to say, to those desires which are instantly followed by their objects, and by which it may be said that we are concluded, from the moment at which we conceive them. He who wills necessarily acts as he wills, and cannot will (with effect) that he will retract or recall the volition. He has ‘determined:’ he has ‘resolved:’ He has ‘made up his mind.’ 438He is concluded by his own volition. He cannot un-will that which he has willed.

But when such expressions as ‘resolving’ and ‘determining’ are applied to a present intention to do a future act, they simply denote that we desire the object intensely, and that we believe (with corresponding confidence) we shall resort to means of attaining it.

And this perfectly accords with common apprehension, although it may sound (at first hearing) as if it were a paradox. For, every intention (or every so-styled will), which regards the future, is ambulatory or revocable. That is to say, the present desire of the object may cease hereafter; and the present belief that we shall resort to the means of attaining it, will, of course, cease with the wish for it. We cannot believe that we shall try to get that, for which we know that we care not.

It is clear that we may presently intend a future forbearance as well as a future act.

We may either desire an object inconsistent with the act to be forborne, or we may positively dislike the probable consequences of the act. In the first case, we may presently believe that we shall forbear from the act hereafter, in order that we may attain the object which we wish or desire. In the latter case, we may presently believe that we shall forbear from the act hereafter, in order that we may avoid the consequences from which we are averse.

[Every present forbearance from a given act, is not preceded or accompanied by a present volition to do another act.

It may be preceded or accompanied by mere inaction; e.g. I may lie perfectly still, intending not to rise.

But, still, it is generally true, that every present forbearance is preceded or accompanied by a volition. In our waking hours, our lives are a series (nearly unbroken) of volitions and acts. And, when we forbear, we commonly do a something inconsistent with the act forborne, and which we are conscious is inconsistent with it.]

Where a forbearance is preceded or accompanied by inaction, the desire leading to the forbearance is not to be compared to a volition. The forbearance is not like the act, the direct and appropriate object of the wish.

All that can be said (in generals) of intentions to act in future, may be applied (with slight modifications) to intentions to forbear in future. I confine myself to intentions to act in future, in order that my expressions may be less complex, and, by consequence, more intelligible.

439When we intend a future act, we also intend certain of its consequences. In other words, we believe that certain consequences will follow that future act, which we presently believe we shall hereafter will. This is necessarily implied in every intention of the sort. For our present wish or desire of some probable consequence of the act, is our reason for believing presently that we shall do the act in future.

But we may also intend or expect that the act may be followed by consequences, which we do not desire, or from which we are averse. For example; I may intend to shoot at and kill you, so soon as I can find an opportunity. But knowing that you are always accompanied by friends or other companions, I believe that I may kill or wound one of these in my intended attempt to kill you.

Here, the object which I wish or desire is your death. I intend the act, or I believe that I shall will it, because I desire your death. But I also believe that the act will be followed by a consequence from which I am averse:—by a consequence which is not the ground of my present intention, although I intend in spite of it. I intend a future act. I intend a consequence which I desire. And I also intend a consequence from which I am averse.

The execution of every intention to do a future act, is necessarily postponed to a future time.

Every intention to do a future act, is also revocable or ambulatory. That is to say, Before the intention be carried into execution, the desire which is the ground of the intention may cease or be extinguished, or, although it continue, may be outweighed by inconsistent desires.

But though the execution of the intention be always contingent, the intention itself may be certain or uncertain. I may regard the intended act as one which I shall certainly will; or I may regard it as one which I shall will, on the happening of a given contingency. Are matured or undigested.In either case, I may either intend a precise and definite act, or I may merely intend some act for the purpose of attaining my object.

For example; I may intend to kill you by shooting, at a given place and time. Or (though I intend to kill you) I may neither have determined the mode by which I shall attain my object, nor the time or place for executing the murderous design. In cases of the first class, the intention, design, or purpose, is settled, determinate, or matured. In cases of the latter class, it is unsettled, indeterminate, or undigested.

440It not unfrequently happens, that a long and complex series of acts and means is a necessary condition to the attainment of the desired object (supposing it can be attained). To determine these means, or to deliberate on the choice of them, is commonly styled ‘a compassing of the desired object.’ Or, when the intended means are thus complicated, the intention is frequently styled consilium. Either of the terms denotes the deliberation or pondering, which necessarily attends the intention before it becomes precise.

Such (I think) are the proper meanings of compassing and consilium. Where the intended means are few and simple, there is no necessity for that long and laborious deliberation, which seems to give to the intention (in the cases in question) the names of ‘compassing’ or consilium.

It must, however, be confessed, that the terms are frequently applied loosely. In the language of the English Law, you would compass and imagine the death of the King, although you intended to slay him by the shortest and simplest means. For instance, by shooting him with a rifle in a theatre. And, in various books, I have seen the word ‘consilium’ used for ‘propositum’ or intention.

It is only by the complexity of the means, that a compassing or consilium is distinguished from another intention. In all other respects, the two states of mind are exactly alike. There is a present desire of a given object, with a belief that we shall resort to means (precise or indeterminate) for the accomplishment of the desire.

It frequently happens that the desired object is not accomplished by the intended act. For example, I point a gun, and pull the trigger, intending to shoot you. But the gun misses fire, or the shot misses its mark. In this case, the act is styled an attempt: an attempt to accomplish the desired object. It also frequently happens, that several acts must be done in succession before the desired object can be accomplished. And the doing any of the acts which precede the last, is also an attempt to accomplish the desired object, or is rather an endeavour towards the accomplishment of the object. For example; to buy poison for the purpose of killing another, or to provide arms for the purpose of attacking the king, are attempts or endeavours towards murder or treason. Attempts are evidence 441of the party’s intention; and, considered in that light, are styled in the English Law, ‘overt acts.’

⁸⁷ ‘Delictum consummatum. Conatus delinquendi.’ Consummate Crimes and Criminal Attempts.—Feuerbach, p. 41.

‘Eine Handlung, welche die Hervorbringung eines Verbrechens zum Zwecke hat, ohne den bezweckten verbrecherischen Thatbestand wirklich zu machen, ist ein Versuch.—Rosshirt, p. 85.

Where a criminal intention is evidenced by an attempt, the party is punished in respect of the criminal intention.⁸⁸ Sometimes he is punished as severely as if he had accomplished the object. But more commonly, with less severity.

⁸⁸ I venture to think, in accordance with my remarks in the note on p. 414 ante, that the ratio of this punishment is more simple, and that the consilium or cogitatio for which the party is punished is an act evidenced by the overt act.—R. C.

Why the party should be punished in respect of a mere intention, I will try to explain hereafter.

The reason for requiring an attempt, is probably the danger of admitting a mere confession.⁸⁹ When coupled with an overt act, the confession is illustrated and supported by the latter. When not, it may proceed from insanity, or may be invented by the witness to it.

⁸⁹ Example of man punished for confessed intention (without overt act) to kill Henry III. of France.

I have considered the import of the term ‘Intention,’ in order that I might elucidate the general nature of Injuries and Political Sanctions.

But the word ‘intention’ is often employed, without reference to wrongs. [441a]We speak of the intention of the legislator, in passing a law; of the intention of testators; of the intention of parties to contracts, and so on. In each of these cases, the notion signified by the term ‘Intention’ may be reduced to one of the notions which I have already endeavoured to explain: namely, a present volition and act, with the expectation of a consequence; or a present belief, on the part of the person in question, that he will do an act in future.

When we speak of the intention of the legislator, we either advert to the purpose with which he made the law; or we advert to the sense which he annexed to his own expressions, and in which he wished and expected that others would understand them.

If we advert to the purpose with which he made the law, we mean that he willed and performed a given act, expecting a given consequence. In order that he might attain the purpose, he made and published the law. And when he made and promulged it, he intended the purpose: that is to say, he expected or believed that the purpose which moved him to make and promulge it, would follow the making and promulgation as a consequence.

If we advert to the sense which he attached to his own expressions, we also mean that he willed and performed an act, 442expecting a consequence. We mean that he used expressions with a certain sense, expecting that those to whom he addressed them would receive them in the same sense.

The intention of the testator regards the purpose of the provision, or the sense which he attached to his words. In either case, we mean by ‘his intention,’ that he did a certain act expecting a certain consequence: That he made the provision, expecting the purpose would follow it; or that he used his words with a certain sense, expecting that others would understand them in the same sense. When we say, that ‘the will or intention of the testator is ambulatory,’ we mean that ‘he may will and intend anew.’

When we speak of the intention of contracting parties, we mean the intention of the promisor, or the intention of the promisee.⁹⁰ If we mean the intention of the promisor, we mean his intention as it regards the performance of his promise, or we mean his intention as it regards the nature or extent of it. In the first case, we mean that he intends (when he makes the 443promise) to do or forbear in future. In the second case, we mean that he makes a certain promise, expecting that the promisee will understand it in a certain sense. In the first case, we mean that he believes he shall do or forbear in future. In the second case, we mean that he does a present act, expecting a given consequence.

⁹⁰ Or rather, the sense in which it is to be inferred from the words used, or from the transaction, or from both, that the one party gave and the other received it. Paley’s rule would lead to this: that a mistaken apprehension of the apprehension in which the promisee received, would exonerate the promisor. This would be to disappoint the promisee. If the apprehension of the promisee did not extend to so much as the promisor apprehends that it did, it is true that the promisor is not surprised by a more onerous obligation than he expected; but then there is no reason for giving the promisee an advantage which he did not expect: pain of loss being greater than the mere pleasure of gain; which this advantage would be: there being, by the supposition, no expectation and therefore no engagement in consequence.

If, on the other hand, the promisor underrates the expectation of the promisee he disappoints an expectation.

The true rule is the understanding of both parties. The very use of Paley’s rule shows that it embraces both. In the example, Paley seems to confound the sense which the promisor, in common with all, must have put on his promise, with his secret intention of breaking it.

(See ‘Intention,’ regarding future.)

The sense of the promise, i.e. the meaning which each party apprehends that the words or transaction must denote, is a totally different thing from the intention with which it is made. The one uses, and he knows he uses, words of such an import; the other hears words which he knows to be of the same import; from these words ensue an obligation, the extent of which each knows, and the compulsory performance of which in terminis would not disappoint the expectations of the parties, whatever might be their intentions.

‘Where the terms of a promise admit of more senses than one, the promise is to be performed “in that sense which the promisor apprehended, at the time that the promisee received it.”

‘It is not the sense in which the promisor actually intended it, that always governs the interpretation of an equivocal promise; because, at that rate, you might excite expectations which you never meant, nor would be obliged, to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements you never designed to undertake. It must therefore be the sense (for there is no other remaining) in which the promisor believed that the promisee accepted his promise.—Paley, Moral and Polit. Philosophy, vol. i. chap. v.

If we mean the intention of the promisee, we mean that he accepts the promise, understanding it in a certain sense, and expecting a future consequence: namely, that the promisor will perform it.