There are obvious reasons for taking the actual state of the
defendant's consciousness into account to this extent. The only
ground for not applying the general rule is, that the defendant
was in such a state that he could not be expected to remember or
be influenced by the fear of punishment; if he could be, the
ground of exception disappears. Yet even here, rightly or
wrongly, the law has gone far in the direction of adopting
external tests. The courts seem to have decided between murder
and manslaughter on such grounds as the nature of the weapon
used, /2/ or the length of time between the provocation and the
act. /3/ But in other cases the question whether the prisoner was
deprived of self-control by passion has been left to the jury.
/4/

As the object of this Lecture is not to give an outline of the
criminal law, but to explain its general theory, I shall only
consider such offences as throw some special light upon the
subject, and shall treat of those in such order as seems best
fitted for that purpose. It will now be useful to take up
malicious mischief, and to compare the malice required to
constitute that offence with the malice aforethought of murder.

The charge of malice aforethought in an indictment for murder has
been shown not to mean a state of the defendant's mind, as is
often thought, except in the sense that he knew circumstances
which did in fact make his conduct dangerous. It is, in truth, an
allegation like that of negligence, which asserts that the party
accused did not [63] come up to the legal standard of action
under the circumstances in which he found himself, and also that
there was no exceptional fact or excuse present which took the