Definition
Instigation is the act of inciting, urging, or soliciting another person to do something — most commonly to commit a crime, injure a third party, or commence legal proceedings. It describes the conduct of the party who prompts action in another, rather than the party who ultimately acts.
In criminal law contexts, instigation functions as a theory of secondary liability: the instigator sets another in motion toward a wrongful act, typically with intent that the act occur. In civil contexts, the term has appeared in connection with malicious prosecution and abuse of process, where one party is said to have instigated a prosecution or suit brought by another.
Common Language
Modern common usage (Wiktionary): "The act of instigating, or the state of being instigated; incitement; especially to evil or wickedness."
Historical common usage (Webster's 1913): "The act of instigating, or the state of being instigated; incitement; esp. to evil or wickedness."
The common and legal meanings are closely aligned, but the legal term carries structural weight that ordinary usage does not. In law, instigation is not merely moral encouragement — it describes a specific participatory relationship that can attach legal consequences to the instigator independently of the principal actor. The everyday sense of the word captures the flavor but misses the liability dimension.
Common Confusion
Instigation is frequently treated as interchangeable with incitement, solicitation, and abetting, but these terms have distinct technical meanings in modern criminal law. Solicitation has become the dominant term in American criminal codes for the offense of asking or encouraging another to commit a crime, and it carries specific statutory definitions. Incitement, in constitutional contexts, has taken on a separate First Amendment dimension through the Brandenburg line of doctrine. Abetting implies active assistance or encouragement during commission of the act. Instigation historically encompassed all of these but has retreated from statutory use; researchers encountering the term in older sources should resist mapping it automatically onto any single modern category without examining context.
Why It Matters in Research
Instigation is a term that dominated older criminal law vocabulary but has largely been displaced in modern American statutes and case law, where solicitation, incitement, and aiding and abetting each now occupy specific and bounded roles. Researchers working in nineteenth- and early twentieth-century materials will encounter instigation used broadly — sometimes to describe what we would now call solicitation, sometimes abetting, sometimes procurement. The term is not a reliable signal of any single modern offense category in historical sources.
In the civil context, instigation appears with some frequency in malicious prosecution cases, where liability could attach to a person who instigated a prosecution carried out nominally by another. This usage persists in some jurisdictions and in older treatise literature. Researchers should watch for the term in this context as a distinct doctrinal thread.
The partial Bouvier's entry in the source material references a cross-reference ("See Ac-") that almost certainly continues to Accomplice or Accessory — a connection worth pursuing in the corpus, as those entries will illuminate how instigation mapped onto the older accessorial liability framework.
Jurisdictional variation also matters: instigation has been retained as a formal legal term in some civil law-influenced systems and in international criminal law, where it appears explicitly in instruments governing individual criminal responsibility. Researchers using Law Mind materials that touch on comparative or international sources should be alert to the term carrying precise operative meaning in those contexts even where it has become archaic in domestic American law.
Historical Dictionary Support
The four historical sources are notably consistent. Black's (both editions), Rapalje & Lawrence, and Bouvier's all converge on the same core formulation: the act of inciting or urging another to do something — to commit a crime, injure a third party, or commence a suit. The alignment across these sources suggests instigation was well-settled in its general meaning, even if it functioned more as a descriptive category than a precise term of art.
Black's second edition adds the citation to State v. Fraker, which is the only case reference among the four sources and provides a concrete anchor for the criminal law application. The Bouvier's entry is more expansive than the others in enumerating examples — injury to a third person, commission of a crime or misdemeanor, commencing a suit, or prosecuting a criminal — which usefully reflects how broadly the term was applied across civil and criminal contexts.
What the historical dictionaries collectively do not address is the question of intent: whether instigation required knowledge that the act instigated was wrongful, or whether mere urging sufficed. That gap reflects a broader imprecision in nineteenth-century secondary liability doctrine that researchers should not expect these sources to resolve.
Jurisdictional Note
In American jurisdictions, instigation as a standalone term has largely disappeared from criminal codes in favor of solicitation, incitement, or specific aiding-and-abetting statutes. In international criminal law — including the Rome Statute framework — instigation retains formal status as a recognized mode of individual criminal responsibility. Researchers should not assume the term is obsolete when working with non-domestic or comparative materials.