E. M. Cope, Commentary on the Rhetoric of Aristotle

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‘(The first of these), the kinds of actions which are suitable objects of equity are such as these. Cases which ought to be treated with indulgence, and mistakes or errors (implying ignorance in particulars, Eth. Nic. III 2, on involuntary ignorance) and mere misfortunes, accidental, which should be carefully distinguished from actual crimes, and not visited with equal penalties: the latter of the two, accidental misfortunes, are such acts as are sudden and unexpected, or beyond calculation, and do not spring from a vicious habit or evil intention; errors are such as are not accidental, in the sense of unexpected and beyond calculation, and yet do not proceed from vice (in the same sense as before); but crimes are acts that are not without calculation (i.e. deliberate), and are prompted by a vicious habit or inclination, because all wrong acts that are due to desire, proceed from this depraved will and moral judgment’. This is the usual classification of the degrees of criminality in actions; for acts, of which the mischievous consequences are purely accidental, and therefore altogether beyond our own control, and for mischievous acts committed under some mistake as to the particular circumstances of the case (not of general moral principles, for which we are responsible), as when a man is killed with a gun that was not known to be loaded, we are not responsible: what makes us responsible for an act is not only the harm or injury that is its consequence, but the deliberate intention or purpose with which it was done (and in all cases where the wrong was prompted by desire, this is sure to be an evil one, τὰ γὰρ δἰ ἐπιθυμίαν ἀπὸ πονηρίας) and full knowledge of all the circumstances of the case. In the treatment of this subject in Eth. Nic. V 10, a fourth degree is introduced between the error and the crime. This is the case of a wrong act, as a homicide, done in a fit of passion ὁ θυμῷ ποιῶν, ὁ ὀργίσας: this being done by a spontaneous impulse, and not after deliberation with malice prepense (οὐκ ἐκ προνοίας), is only an ἀδίκημα, a wrong no doubt, and a thing which ought not to have been done, but not punishable like the deliberate act; a homicide not a murder. Compare the treatment of this topic in Rhet. ad Alex. 4 (5). 9—11. It seems to have been one of the stock topics of the rhetorical books. The degrees of criminality are there, as here, only three.