Similarly Professor Hoffding: "Everything which is really to have power over us, must manifest itself as emotion or passion. Mere 'reason' has no power in actual mental life; there the struggle is always between feelings. The frequent talk of the conflict of reason with the passions is consequently psychologically incorrect. No such conflict can take place directly. A thought can suppress a feeling only by exciting another feeling which is in a position to set aside the first." . . . That conduct is guided really by emotion and not by knowledge or understanding, and that intellect is not a power but an instrument which is moved and worked by forces behind it, viz. the passions, is insisted on by Herbert Spencer, who concludes that it is only by awakening appropriate emotions that character can be changed. . .

Motives, however, are not mere feelings: they are combinations of ideas and feelings. "Every motive may be divided into an ideational and an affective component. The first we may call the moving reason, the second the impelling feeling of action. . . . The reason for a criminal murder may be theft, removal of an enemy or some such idea, the impelling feeling, the feeling of want, hate, revenge or envy. When the emotions are of a composite character, the reasons and impelling feelings are mixed, often to so great an extent that it would be difficult for the author of the act himself to decide which was the leading motive. . . . In the combinations of ideas and feelings which we call motives, the final weight of importance in preparing for the act of will belongs to the feelings, that is, to the impelling feelings rather than to the ideas. This follows from the very fact that feelings are integral components of the volitional process itself, while the ideas are of influence only indirectly, through their connections with the feelings."

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Of course if you choose to confuse the various meanings of "cause,” "motives" among other things may be termed causes, but no good in our opinion comes of confusing the Final with the Efficient Cause. . . Motive in the sense of that which moves the mind is the idea of physical force contained in Efficient Cause, but "inducing" cause and "influencing" is the idea of purpose contained in Final Cause; and while it is true that no action can be done without an agent to produce it, it is not equally true, if indeed it is true at all, that every act must have a purpose, nor yet does every purpose produce an action. "Between Cause and Motive," says Wundt, there is a very great difference. A cause necessarily produces its effect: not so a motive. A cause may, it is true, be rendered ineffective, or its effect be changed by the presence of a second and contrary cause, but even then the result shows the traces of it, and that in measurable form. But a motive may either determine volition or may not determine it; and if the latter is the case, then exerts no demonstrable effect."2 The fact is that, though motives are of the nature of causes, they are a class of causes that will not admit of the mathematical or mechanical treatment which is applicable to the scientific and popular conceptions of the term. It is the principle of sufficient reason rather than of causation which explains the relation between motive and conduct.

On the whole, we should say that the comparison of motives and acts

1 W. Wundt, Outlines of Psychology, 2d ed., p. 204.

2 Wundt, Human and Animal Psychology, pp. 432–433.

with cause and effect above quoted contains more falsehood than truth. It is true that every effect must have a cause, but it is most certainly untrue that overt act must have a conscious motive, which is the sense in which "motive" is there used. Apart from the fact that mere reflex actions have clearly no motives there are many acts which once had a motive but have now become mechanical in the course of evolution, e.g. twitching the ears, etc. Again, "in every asylum," writes Professor James, "we find examples of absolutely unmotived fear, anger, melancholy or conceit; and others of an equally unmotived apathy which persists in spite of the best of outward reasons why it should give way."1 Nor does it assist to say that "there must exist a motive for every voluntary act," for if any real meaning is to be given to "voluntary," such acts must be distinguished from impulsive ones: as Professor Stout says, "voluntary action is to be sharply distinguished from impulsive action and deliberation from conflict of impulsive tendencies," and a very large part of our actions are impulsive. While if "voluntary" is understood to imply an idea of the end in which the self is realized, then it is little better than tautology to say that every voluntary act implies a motive, for motive is simply such an idea of an end exciting our feeling. It is really the thinking of the end that makes it a motive, and, when this is realized, all analogy at all events to Efficient cause is gone, and with it the necessary connection between antecedent and consequent on which the argument relies.

(1913.) It

103. JOHN H. WIGMORE. Principles of Judicial Proof. has been noted (ante, No. 29) that the term "motive," as commonly used, does not serve to discriminate the two different processes to which it may be applied. (1) It may be attempted, first, to infer, from the existence in A of a desire or inclination to do act X, that this desire, urging him on, probably resulted in the doing of the act; as when it is argued that, because A desired and wished to get rid of B, he probably did do something towards getting rid of B. (2) Secondly, in proceeding in turn to evidence this desire or other emotion, certain circumstances may be offered as tending to show its existence; as when the argument is to the existence of this desire in A (a) from an injury which B has done to A, or (b) from A's outward conduct expressing such a desire, or (c) from the prior or subsequent existence of such a desire. The former inference involves the evidencing of a Human Act. The latter inference involves the evidencing of a Human Quality or Condition.

Both inferences can best be studied together; but they are affected by different experiences of human nature, and by different opportunities for erroneous inference.

1. Evidence to prove the Existence of an Emotion. The modes of inference circumstantially to a human quality or condition, as already pointed out (ante, No. 3), may be of three kinds, all of which come into use in the present subject: (a) From circumstances tending to excite, stimulate, or bring into play the emotion in question; (b) From outward conduct expressing and resulting from the emotion in question; (c) From the prior or the subsequent

1 W. James, Principles of Psychology, Vol. II, p. 459.

2 Adapted from the same author's Treatise on Evidence (1905, Vol. I, §§ 385-395, 118).

existence of the emotion in question, as indicating its existence at the time in issue. The first of these is a Prospectant indication; the second is a Retrospectant indication; the third is of both sorts. Each sort of inference has its own dangers and difficulties.

a. Circumstances tending to excite an Emotion. It must be remembered that this mode of argument is equally available in civil as well as in criminal cases. One is perhaps apt to think of "motive" as a matter involved in criminal cases only. But a recollection of the process involved that of inferring the existence of some emotion, from which in turn the doing of an act is to be inferred shows that this process may be equally a feature of proof in civil cases, though not as frequently as in criminal cases.

The general inquiry is, What circumstances tend probably to excite a given emotion? Obviously, the whole range of human affairs is here involved. It would be idle to attempt to catalogue the various facts of human life with reference to their potency in exciting a given emotion. Such an attempt would exhibit two defects. It would be pedantic, because it is impossible to suppose that the operation of human emotions can be reduced to fixed rules, and that a given fact can have an unvarying quantity of emotional potency. It would be useless, because the emotional effect of any fact must depend so often on the surrounding circumstances that no general formula could provide for the infinite combinations of circumstances. Courts have therefore always been agreed that in general no fixed negative rules can be made; that no circumstance can be said beforehand to be without the power of exciting a given emotion; and that, in general, any fact may be conceived as tending with others towards the emotion in question. A few of the commoner illustrations may here be noted.

Motives for Murder. The circumstances which might excite a desire to kill are innumerable. Circumstances involving the sexual passion, in one aspect or another, and usually operating through the emotion of jealousy; the expediency of preventing the discovery of a former crime, or of evading an arrest or a prosecution for it; the conduct of the deceased in opposing or injuring or trying to injure the defendant; the defendant's relations with a third person having a desire to kill the deceased may induce him to cooperate, through the sympathy either of friendship or of domestic ties, or by reason of pecuniary hire or of fraternal pledges; finally, and a most common circumstance, the deceased's possession of money or property as leading to the accused's desire to kill.

Motive for Other Deeds. The circumstances that may serve as motives for other deeds are innumerable. A few will be noted which serve to show the various discriminations that may arise in using the pecuniary circumstances, of one or another person or thing, as tending to excite a motive in some person. (1) (a) The possession of money by A may tend to show that B desired to rob or to kill him. (b) The lack of money by A may tend to show that B would be unwilling to trust his promises, and therefore probably did not trust him; in particular, that B would be unwilling to lend A money, or to sell goods to A, or to sell to him as principal, or to sell to him absolutely or to sell to him in good faith. (2) (a) The lack of money by A might be relevant enough to show the probability of A's desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much suspicion and at such

a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence. (b) On the other hand, the fact that a person was in possession of money tends to negative a desire to obtain it by crime or by borrowing, and is always admissible, the foregoing objection not being here applicable.

Two inferences, involving other principles, must be here distinguished: (a) The inference that A probably did not lend money to B because A had no money to lend; this is inferring that A did not do an act because he had not the Means or Capacity to do it (ante, No. 73); (b) the inference that A probably took money because after the time alleged he had large sums while before it he had little or none; this is inferring an act from the Traces of it (post, No. 139). (3) The market value of an article bought may be received to show the probable price agreed upon; because the actual value would move the buyer to wish to obtain it for not more than that amount, and hence a serious difference between the actual value and the price alleged by the vendor would throw discredit on the latter's claim. In the same way, where the price is not in issue, but the specific article is, a serious difference between the value of the article in question and the concededly agreed price tends to support an allegation that the article in question is not the one agreed upon. b. Conduct Exhibiting an Emotion. Every one of the human qualities or conditions with which the foregoing passages have been concerned may be evidenced by conduct exhibiting it. The interpretation of that conduct proceeds always from experience as to the inferences to be drawn from particular kinds of conduct. But the questions that arise in connection with conduct involve usually the principles of the ensuing inference; i.e. prior or subsequent conduct is offered as showing the emotion at that prior or subsequent time, and the then emotion is thus offered as showing emotion at the time in issue; the doubt or objection being not as to the first of the two inferences, but as to the second.

c. Prior and Subsequent Emotion. Where an Emotion is offered as evidencing an Act (ante, No. 101), it is offered as existing at the time of the act; but its then existence may be proved by its prior or later existence. The nature of the inference, it will be seen, is distinct from those of the two preceding sorts (i.e. from extraneous circumstances tending to the excitement of the emotion, and from conduct exhibiting the inward inspiration for the conduct). Here the argument is from an emotional condition once existing to its subsequent or prior prolongation. The peculiar opportunity for error here is that the prior existing emotion may have been brought to an end before the time in issue, and that the subsequent existing emotion may have been first produced since the time in issue. Practically this inference is of course usually associated with two others in a way which may obscure the real evidential question. For example, to show that A struck his wife, the fact is offered that he beat her five years before; here three steps of inference are involved: (1) the beating five years before evidences a then violent emotion towards her; (2) the violent emotion five years ago evidences a continuance of the emotion to the time in issue; (3) the violent emotion at the time in issue evidences the realization of the emotion in the act of striking as charged.

2. The Emotion as evidence of the Doing of an Act. Assuming that an emotion exists, the following aspects of it are important.

a. Kind of Emotion as related to the Act. The probative value of the emotion depends much on how closely that specific emotion is related to the doing of the act in issue. This varies according to general experience of human nature and to the moral and mental constitution of the individual.

b. Explanation. On the principle of Explanation (ante, No. 2), numerous hypotheses may serve to destroy the probability of the inference, even when it is certain that an emotion towards doing the specific act did exist. E.g. outward events may have physically prevented the action impelled by the motive, or the force of the emotion may have been spent before the time of the act; or a counter emotion may have been stronger.

c. An emotion may impel against as well as towards an act. Thus, a defendant's strong feelings of affection for a deceased person would work against the doing of violence upon him, and would thus be relevant to show the not-doing. This is also the significance of evidence that there was no apparent motive" for a murder; for a state of emotional indifference i.e. the absence of any anger, jealousy, or the like is almost equally powerful in its operation against a deed of violence. Sometimes, of course, such evidence merely negatives an alleged murderous emotion, or negatives the tacit possibility of it; but there is also this affirmative aspect to the argument, namely, that emotional indifference makes against

crimes.

d. It is sometimes popularly supposed that in order to establish a charge of crime, the prosecution must show a possible motive. But this notion is without foundation. Assuming for purposes of argument that "every act must have a motive," i.e. an impelling emotion (which is not strictly correct), yet it is always possible that this necessary emotion may be undiscoverable, and thus the failure to discover it does not signify its non-existence. The kinds of evidence to prove an act vary in probative strength, and the absence of one kind may be more significant than the absence of another; but the mere absence of any one kind cannot be fatal. There must have been a plan to do the act (we may assume); the accused must have been present (assuming it was done by manual action); but there may be no evidence of preparation; or there may be no evidence of presence; yet the remaining facts may furnish ample proof. The failure to produce evidence of some appropriate motive may be a great weakness in the whole body of proof, but it is not a fatal one, as a matter of law. In other words, there is no more necessity, in the law of evidence, to discover and establish the particular exciting emotion, or some possible one, than to use any other particular kind of evidential fact.

104. ALEXANDER M. BURRILL. A Treatise on Circumstantial Evidence. (1868. p. 314.)

Emotion as Evidence of the Doing of an Act. The defense, on behalf of the accused, may be founded on the alleged non-existence of any motive to the particular crime charged, or the insufficiency of the particular motive assigned, to have led to it.

1. The absence of all evidence of an inducing cause to guilt always affording, in such cases, a strong presumption of innocence. But it will avail nothing for the defense that no motive appears or has been affirmatively shown by the evidence adduced. Admitting, as a general truth, that every act must have its motive, it is an obviously necessary inference (independ