in consequence. 5 In this case, an act which would not [65] have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not.  If that may be the effect of setting fire to things which a man has a right to burn, so far as they alone are concerned, why, on principle, should it not be the effect of any other act which is equally likely under the surrounding circumstances to cause the same harm. 1 Cases may easily be imagined where firing a gun, or making a chemical mixture, or piling up oiled rags, or twenty other things, might be manifestly dangerous in the highest degree and actually lead to a conflagration.  If, in such cases, the crime is held to have been committed, an external standard is reached, and the analysis which has been made of murder applies here.

There is another class of cases in which intent plays an important part, for quite different reasons from those which have been offered to account for the law of malicious mischief.  The most obvious examples of this class are criminal attempts.  Attempt and intent, of course, are two distinct things.  Intent to commit a crime is not itself criminal.  There is no law against a man’s intending to commit a murder the day after tomorrow.  The law only deals with conduct.  An attempt is an overt act.  It differs from the attempted crime in this, that the act has failed to bring about the result which would have given it the character of the principal crime.  If an attempt to murder results in death within a year and a day, it is murder.  If an attempt to steal results in carrying off the owner’s goods, it is larceny.

If an act is done of which the natural and probable [66] effect under the circumstances is the accomplishment of a substantive crime, the criminal law, while it may properly enough moderate the severity of punishment if the act has not that effect in the particular case, can hardly abstain altogether from punishing it, on any theory.  It has been argued that an actual intent is all that can give the act a criminal character in such instances. 1 But if the views which I have advanced as to murder and manslaughter are sound, the same principles ought logically to determine the criminality of acts in general.  Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them.

It may be true that in the region of attempts, as elsewhere, the law began with cases of actual intent, as those cases are the most obvious ones.  But it cannot stop with them, unless it attaches more importance to the etymological meaning of the word attempt than to the general principles of punishment.  Accordingly there is at least color of authority for the proposition that an act is punishable as an attempt, if, supposing it to have produced its natural and probable effect, it would have amounted to a substantive crime. 2