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13 March 1807
In the use of these epithets a sort of division classification is implied,
which if my humble conception of the matter should
happen to be right will turn out to be illusory, and productive
of much practical error upon a very extensive
scale. I will first submitt to Your Lordship
the classification which presents has presented itself to be me as the one
suitable fit for use, from whence and from that should it really appear
fit, any other, the one here in question included, will appear be seen
not to be so.
When a man's conduct on any occasion it happens
to a man's conduct to be blameworthy unlawful in any other respect, either it appears
to himself so to be, or it does not. The truth of this
distinction and at the same time to its importance in a view
to practice, all men have been more of less sensible, and in
particular, all legislators. Among the Romanists the sense of
it may be seen to have proceeded with more or less consistency
the whole body of their jurisprudence, in particular the
criminal branch in which the occasions for calling it into
action are most frequent. Where the individual in question
is is regarded as being conscious of the impropriety illegality
blame-worthiness, impropriety – of the conduct any one of these
and divers other names terms may alike serve, they speak of him
as being in malâ fide – they of his conduct as being nurtured
with mala fides – or to use a word in still more frequent
use with among the lawyers of that school with dolus.
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