Mens Rea Sayres

Mens Rea
Author(s): Francis Bowes Sayre

Source: Harvard Law Review, Vol. 45, No. 6 (Apr., 1932), pp. 974-1026
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1332142 .
Accessed: 07/06/2014 04:10
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to
Harvard Law Review.
http://www.jstor.org
This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

All use subject to JSTOR Terms and Conditions
974 HARVARD LAW REVIEW
MENS REA
NO problem of criminal law is of more fundamental impor-

tance or has proved more bafflingthrough the centuries than
the determination of the precise mental element or mens rea '
necessary for crime. For hundreds of years the books have re-
peated with unbrokencadence that Actus non facit reum nisi mens
sit rea.2 "There can be no crime, large or small, without an evil
mind," says Bishop. "It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an
offence is the wrongful intent, without which it cannot exist." 3
But when it comes to attaching a precise meaning to mens rea,
courts and writers are in hopeless disagreement. Some define it
in the broadest and most general terms; others define it with more
precision, but with greatly varying meanings. It becomes impor-
tant, therefore, to examine with some particularity the mental
requisites of criminality and for this purpose to understand some-
thing of the historical development which has made the law what
it is today. Such a study may be divided into the following some-
what arbitrarydivisions: ( i ) The mental requisites for criminality
in the early law up to the thirteenth century. (2) The begin-
nings of the conception of mens rea. (3) The subsequent de-
1 The term mens rea is used throughout this paper as signifying the mental
element necessary to convict for any crime. The discussion is restricted to crimes
not based upon negligence.
2 "The general rule of English law is, that no crime can be committed unless
there is mens rea." Williamson v. Norris, [i899] I Q. B. 7, I4, per Lord Russell,
C. J. " It is a sacred principle of criminal jurisprudence, that the intention to com-
mit the crime, is of the essence of the crime, and to hold, that a man shall be held
criminally responsible for an offense, of the commission of which he was ignorant
at the time, would be intolerable tyranny." Duncan v. State, 7 Humph. I48, I50
(Tenn. i846).
3 I BISHOP, CRIMINAL LAW (gth ed. I930) ? 287. " There are two conditions to
be fulfilled before penal responsibility can rightly be imposed. . . ," says Salmond,
after quoting the above maxim. One " is the doing of some act by the person to
be held liable. . . [The other] is the mens rea or guilty mind with which the act
is done. It is not enough that a man has done some act which on account of its
mischievous results the law prohibits; before the law can justly punish the act, an
inquiry must be made into the mental attitude of the doer." SALMOND, JURIS-
PRUDENCE (3d ed. I9IO) ? I27.

MENS REA 975
velopment of a general mens rea as a requisite for criminality.

(4) The growing particularizationof this general mens rea with
respect to specific felonies. (5) The growing particularizationof
this general mens rea with respect to specific defenses, such as
insanity, infancy, compulsion, coverture, mistake of fact, etc.
(6) Generalconclusions as to the meaning of mens rea in the pres-
ent law. It is perhaps unnecessary to add that although some
such arbitrary divisions are necessary for purposes of exposition,
in fact, the gradual growth and development of the mental fac-
tors in criminality was and is a continuous evolution, unmarked
by any sudden or abrupt transitions.
I. THE MENTAL REQUISITES FOR CRIMINALITY IN THE

EARLY LAW
What was the place of intent in primitive criminal law? More

specifically, did the law at the outset undertake to punish only the
gross injuries committed with intent to harm, leaving all unin-
tended or negligent injuries to be dealt with through other means,
or did the law begin by imposing responsibility for all harmful
acts, both intended and unintended, and later gradually except
from punishment accidental and unintended injuries? One
might suppose that the former would be the starting point for
criminal liability. It is clear that early criminal law developed
out of the blood feud and rested upon the desire for vengeance.
Criminal law would naturally concern itself, therefore, with
those injuries which are highly provocative; and the most highly
provocative injuries are intentional ones. Vengeance seeks a
blameworthy victim; and blameworthiness rests upon fault or
evil design.4 This also would reflect the view of the church,
which made blameworthiness dependent upon the evil intent of
the actor.
4 This seems to be the view expressed by Mr. Justice Holmes. " Vengeance im-
ports a feeling of blame and an opinion, however distorted by passion, that a
wrong has been done. It can hardly go very far beyond the case of a harm inten-
tionally inflicted; even a dog distinguishes between being stumbled over and being
kicked. . . . The early English appeals for personal violence seem to have been
confined to intentional wrongs." THE COMMONLAW (i88I) 3. " I do not know
any very satisfactory evidence that a man was generally held liable either in Rome
or England for the accidental consequences even of his own act." Id. at 4. Com-

On the other hand, in view of the crudity of the early forms

of trial, it would be impossible to draw fine distinctions based on
factors which were not apparent to all. Blood feuds are based
on galling injuries; they do not hang upon nice considerations
of the mental factors which prompted the injury. In trial by
battle the issues must be framed in the large; if the defendant
can not readily satisfy the judges that he is above suspicion, he
may be ordered to settle the dispute by his body, and there is an
end of the matter. Innocence or guilt in trial by battle can not
very well hang upon refined questions of intent but rather upon
the defendant's ability to fight. Similar considerations apply to
trial by ordeal. What went on behind the scenes we do not know.
We suspect that, at least in later days, if the defendant was " a
lawful man and of good repute " ' and could show beyond dispute
or reasonable suspicion that the injury was accidental or in no
way due to his fault, judges or priests would generally contrive
matters so that he would not actually have to go to battle or to
the ordeal. But if he was by general report a law-breakingman,
he would probably have to take his chances. Society could well
afford to be rid of such in that day, regardless of his blameworthi-
ness for the particular crime charged.
The truth is that the surviving records relating to the adminis-
tration of justice in early days are so scanty that no one knows
exactly what was the law in action. So far as the law in the an-
cient books is concerned, there are numerous isolated passages
pointing to criminality in certain cases without criminal intent.
But one has to remember that there was no distinction in those
days between crime and tort. From such records as remain
some of our ablest legal students have concluded that primitive
pare, however, Wigmore, Responsibility for Tortious Acts (I894) 7 HARv. L. REV.
3I5, 383, 44I1
It is quite true that, as Mr. Justice Holmes points out, the underlying object of
criminal law must be to enforce external conformity to rule - to prevent injurious
action quite apart from the intent of the actor. THE COMMONLAW 50. Never-
theless, to punish one who commits the prohibited act through accident or without
the will to do so would be quite ineffective in securing conformity, since the whole
underlying object of criminal administration must be to make men choose to
conform.
5 " Homo legalis et boni testimonii." Compare SELDEN SOCIETr, SELECT PLEAS
OF THE CROWN (I887) No. IO9.

MENS REA 977
English law started from a basis bordering on absolute liability.6

The law, which was seeking to supplant the blood feud by induc-
ing the victim or his kin to accept money payments in place of
taking violent revenge, seemed to concentrate its gaze rather upon
the outraged victims or would-be avengers who must be brought
under control than upon the actual blameworthiness of the ac-
cused. The wer varied according to the rank of the former; 7
the latter may be liable even for purely accidental injuries, once
causation is proved.8
It is worth looking at a few of the early fragments bearing on
the mental requisites for criminality; for whatever the law in
action may have been, they show that at least in the recorded law
prior to the twelfth century, a criminal intent was not recognized
as an indispensable requisite for criminality.
"Whoever shall have killed a man," runs the old Westgothic
Law, "whether he committed the homicide intending to or not
intending to (volens aut nolens), . . . let him be handed over
into the potestas of the parents or next of kin of the deceased."9
6 " Law in its earliest days tries to make men answer for all the
ills of an
obvious kind that their deeds bring upon their fellows." 2 POLLOCK ANDMAITLAND,
HISTORY OF ENGLISH LAW (2d ed. I923) 470. See also 2 HOLDSWORTH,HISTORY
OF ENGLISH LAW (3d ed. I927) 50-54. "The doer of a deed was responsible
whether he acted innocently or inadvertently, because he was the doer; the owner
of an instrument which caused harm was responsible because he was the owner,
though the instrument had been wielded by a thief; the owner of an animal, the
master of a slave, was responsible because he was associated with it as owner, as
master; the master was liable to his servant's relatives for the death, even acci-
dental, of the servant, where his business had been the occasion of the evil; the
rachimburgius, or popular judge, was responsible for a wrong judgment, without
regard to his knowledge or his good faith; the oath-helper who swore in support
of the party's oath was responsible, without regard to his belief or his good faith;
one who merely attempted an evil was not liable because there was no evil result
to attribute to him; a mere counsellor or instigator of a wrong was not liable, be-
cause the evil was sufficiently avenged by taking the prime actor, and where several
co-operated equally, a lot (frequently) was cast to select which one should be
held amenable; while the one who harbored or assisted the wrong-doer, even unwit-
tingly, was guilty, because he had associated himself with one tainted by the evil
result." Wigmore, supra note 4, at 3I7-I8.
7 " We must have regard to the rank of the injured person or his kin, because,
if his or their rank is distinguished, a larger bribe is needed to keep them quiet."
2 HOLDSWORTII, op. cit. supra note 6, at 5I.
8 See the excellent article by Wigmore, supra note 4.
9 I WALTER, CORPUS JURIS GERMANICA668. Quoted in Wigmore, supra note 4,
at 321. Numerous instances of the same strict liability are to be found in early

The so-called Leges Henrici Primi,` compiled about the year

III8, containing a jumble of mixed rules from many sources but
seeking to state a body of true English law that was neither Ro-
man nor canon law, contains several survivals of this same rough
and ready justice. " If some one in the sport of archery or other
form of exercise kill another with a missile or by some such acci-
dent, let him repay; for the law is that he who commits evil un-
knowingly must pay for it knowingly." "' This phrase, qui in-
scienter peccat scienter emendet, seems to the compiler of the
Leges Henrici so apt a statement of the rigors of the early law
that it is repeated more than once.'2 The Leges also contain a
striking passage representing the law of an earlier day apparently
imposing liability in numerous instances without wrongful intent.
" There are also various kinds of misfortunes taking place by accident
rather than by design, and to be treated with mercy rather than strict
justice; for the law is qui inscienter peccat scienter emendet. . . . And
wherevera man cannot truly swear that [he had done nothing whereby]
another was further from life or nearer to death,13he ought properly to
pay for whatever was done. Of such cases are: if someone on a journey
for another should meet death while engaged in the mission (si quis alii
missione in missatico causa mortis sit); if a man should send for someone
and the latter should be killed while on the way; if someone should meet
Anglo-Saxon literature. In the chronicles of Beowulf, when King Hredel's second

son, Haedcyn, unfortunately kills his brother by an arrow which goes wide of the
mark, the death of the slayer was required in expiation. The king so mourned the
death of his two sons that he took his own life. BEOWULF (Chronicles) v. 2436
(Heyne ed.). For other instances of this early absolute liability, see Wigmore,
supra note 4.
10 As to the LEGES HENRICI PRIMI, see I POLLOCK AND MAITLAND, op. cit. supra
note 6, at 99-101; 2 HOLDSWORTH, op. cit. supra note 6, at 152-53.
11 LEGES HENRICI PRIMI c. 88, ? 6. "Si quis in ludo sagittandi vel alicujus
exercicii, jaculo vel hujusmodi casu aliquem occidat, reddat eum; legis enim est,
qui inscienter peccat scienter emendet."
12 "Sunt eciam infortuniorum genera quamplurima casu magis quam consilio
contigencia, et misericordie pocius quam judicio committenda; legis enim est, qui
inscienter peccat scienter emendet." LEGES HENRICI PRIMI c. 90, ? ii. Again, in
setting forth the law of Wessex the author shows that the law required the payment
of the wer for an unintentional as well as for an intentional killing. " Sive autem
sponte aut non sponte fiant hec," he says, "nichilominus tamen emendetur; que
enim per inscienciam peccamus, per industriam corrigamus." Id. c. 70, ? 12.
13 See 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at 470-71; BRACTON,DE
LEGIBUS14Ib.

MENS REA 979
death when summonedby another; if someone'sweapons placed there by

their owner should kill another; if one, whether the deceased or an-
other, should throw them down and they do injury; if one who is sum-
moned should be pierced by anyone's weapons, placed anywhere; if
someone should terrify or push another so that falling from his horse
or from any other place, he should come to evil; if someone should be
brought [to see] the show of a wild beast or a lunatic, and should suffer
any harm from them; if someone should lend a horse or anything to
another from which evil should befall him; if someone's horse, goaded
or struck in the rear by someone, injures a person; in these and similar
cases, where a man intends one thing and another thing happens, where
the act is blameworthy and not the intent, the judges should rather de-
cree a less severe punishment by way of honorariumin proportionto the
injury (venialem pocius emendacionemet honorificenciamjudices statu-
ant, sicut acciderit)." 14
The law thus set forth smacks strongly of liability without

fault and certainly without criminal intent. But one must be
hesitant about accepting it as a literal picture of what was actu-
ally going on. It is scarcely credible, for instance, that one who
sent for another was ever criminally liable in the case where
robbers killed the latter on the journey, if there were really no
suspicion of complicity."5 At best the passage quoted in the
Leges of Henry is a mere remnant of an earlier law set forth in the
vaguest generalities.
The clearest indication of criminal liability imposed by the
early law without blameworthy intent is perhaps to be found
in the cases of killing through misadventure and in self-defense.
In early times, with the exception of killings under the king's
14 LEGESHENRICIPRIMI C. 90, ? II. Compare also id. c. 88, ? 9: " Whoever

asks anyone to go with him to his work, and meanwhile is killed by his own or the
other's enemies, let him pay by whose urging and for whose sake he came to the
place of death and let him acquit himself of design or consent in the matter if he
should be accused and so [have to make compurgation]." A contrary result fol-
lows " if he can prove that the other came with him unasked."
15 On the other hand, where complicity was suspected but could not readily be
proved, the law in the books pointing to liability in such cases without proof of the
evil intent must have been highly convenient. One is reminded of our modern
speed laws, which often make speeding in excess of fifteen or twenty miles an hour
criminal merely in order to make convictions possible in cases where the evidence
of excessive speeding is difficult or impossible to obtain. Such laws in the books
give no indication of what actually goes on.

warrant or in the pursuit of justice, which had always been justi-

fiable,"6so far as we know the killer seems to have been held
liable for every death which he caused, whether intentionally or
accidentally. This law survived down into the twelfth century.
By that time, however, the influence of the church law was be-
coming dominant. The canonists had long insisted that the
mental element was the real criterion of guilt and under their
influence the conception of subjective blameworthiness as the
foundation of legal guilt was making itself strongly felt. Al-
though the man who unwittingly caused another's death through
pure misadventure may have been criminally liable under the
early Anglo-Saxon law, to punish him with death violated the
ideas of moral guilt derived from the canonists. Early judges
struggled with the difficulty. A solution was found, character-
istically enough, not through a change in the substantive law of
criminal liability but through a procedural device made possible
by the growing power of the king. The judges must convict of
felony as the old law required,but the king might pardon and thus
save the felon's life. This was beginning to be established custom
by the thirteenth century.17 Cases of killing in self-defense pre-
sented the same difficulty."8 The killer was clearly guilty under
the old law; yet he could not be said to be blameworthy. If his
life was to be spared, he similarly must secure a pardon."9 Such
16 This would include, of course, the killing of an outlaw or hand-having thief
or other manifest felon who resists capture.
17 " Roger of Stainton
was arrested because in throwing a stone he by mis-
adventure killed a girl. And it is testified that this was not by felony. And this
was shown to the king, and the king moved by pity pardoned him the death. So
let him be set free." SELDEN SOCIETY,SELECTPLEAS OF THE CROWN No. 114. This
was in 1212. Another case, decided in 1225, involves a question of causation.
" Mabel, Derwin's daughter, was playing with a stone at Yeovil, and the stone fell
on the head of Walter Critele, but he had no harm from the blow, and a month
after this he died of an infirmity, and she fled to church for fear, but [the jurors]
say positively that he did not die of the blow. Therefore let her be in custody until
the king be consulted." Id. No. i88. See also id. Nos. 132, 156.
18 In I203, "Robert of Herthale, arrested for having in self-defense slain
Roger, Swein's son, who had slain five men in a fit of madness, is committed to the
sheriff that he may be in custody as before, for the king must be consulted about
this matter." Id. No. 70.
19 THE STATUTE OF GLOUCESTER (6 EDW. I, C. 9.) in 1278 regulates the procedure
for such cases. One who kills another by misadventure or in his own defense is to
be put into prison and subjected to trial; and if it be found that the killing was by
misadventure or in self-defense, the king shall be informed, and shall take the

MENS REA 98i
pardons, however, did not prevent a forfeiture of the felon's

goods, nor did they free the accused from liability to proceedings
by way of appeal.20 Criminal liability in such cases was founded
on the mere fact of killing, for the modern conception of criminal
negligence as a basis of guilt had not yet been born.2' Unintended
killings might be treated as homicides by misadventure, and if
the negligence were only slight, the king might see fit to pardon.
But if the negligence were gross, the king would doubtless refuse,
and the killer would suffer the ordinary felon's death. Since this
was a matter lying entirely within the conscience of the king, no
legal formuloeof negligence are to be expected. The modern
division of homicide into murder and manslaughter had not yet
come into being.22
The foregoing study of the early law seems to show that up to
the twelfth century the conception of mens rea in anything like
its modern sense was non-existent. In certain cases at least
criminal liability might attach irrespective of the actor's state of
mind. But because the old records fail to set forth a mens rea as a
general requisite of criminality one must not reach the conclusion
that even in very early times the mental element was entirely
disregarded. The very nature of the majority of the early of-
fenses renderedthem impossible of commissionwithout a criminal
intent. Waylaying and robbery are impossible without it; so is
rape; and the same is roughly true of housebreaking. House-
burning, the ancient bcrnet,23 might be the result of intent or
negligence, but it is significant that from the earliest times of
which we have any record the felony of arson depended upon
proof of an intent to burn.24
Furthermore, the intent of the defendant seems to have been
a material factor, even from the very earliest times, in determining
the extent of punishment. It was manifestly unjust that the man
who accidentally killed with no intention of doing harm should
accused into his grace " if it pleases him." See also 2 POLLOCK AND MAITLAND, op.
cit. supra note 6, at 48i, n.I, 589, n.2.
20 Id. at 482; 3 HOLDSWORTH, op. cit. supra note 6, at
3I2.
21 See Wigmore, supra note 4, at 442; 2
HOLDSWORTH, op. cit. supra note 6, at
5I-52; 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at 484.
22 See id. at 485. 23 See id. at 492.
24 Even in early Anglo-Saxon times distinctions were drawn
between inten-
tional and unintentional burnings. 2 BRUNNER, D. R. G. 545-46, 654.

suffer the extreme penalty of death. True, he might have to pay

the wer, the fixed price to buy off the vengeance of the victim's
kin, but beyond that he should not be punished.25 He should not
be liable for the wite. " It is moreoverdecreed," run the Laws of
Alfred, " if a man have a spear over his shoulder, and any man
stake himself upon it, that he pay the wer without the wite. If he
be accused of wilfulness in the deed, let him clear himself accord-
ing to the wite; and with that let the wite abate." 26
In seeking to determine the part played by intent in the early
criminal law, therefore, one must guard against drawing too
sweeping conclusions from evidence which is admittedly extremely
meager. What the recorded fragments of early law seem to show
is that a criminal intent was not always essential for criminality
and many malefactors were convicted on proof of causation with-
out proof of any intent to harm. But it also appears that even in
the very earliest times the intent element could not be entirely
disregarded,and, at least with respect to some crimes, was of im-
portance in determining criminality as well. as in fixing the
punishment.
II. BEGINNINGS OF THE CONCEPTION OF MENS REA
By the end of the twelfth century two influences were making

themselves strongly felt. One was the Roman law which, re-
suscitated in the universities in the eleventh and twelfth centuries,
was sweeping over Europe with new power. Scholars and legal
writers were kindled with burning enthusiasm for old Roman
25 See 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at 47I.
26 LAWS OF ALFRED c. 36 in I THORPE, ANCIENT LAWS AND INSTITUTES OF ENG-
LAND (I840) 85. Another law of Alfred provides: " Let the man who slayeth
another wilfully perish by death. Let him who slayeth another of necessity or
unwillingly, or unwilfully, as God may have sent him into his hands, and for whom
he has not lain in wait, be worthy of his life and of lawful bot if he seek an
asylum. If, however, any one presumptuously and wilfully slay his neighbor
through guile, pluck thou him from my altar to the end that he may perish by
death." Id. at 47. The passage is a part of the Mosaic law transplanted to Eng-
land. See EXODUS XXI, I2-I4.
Another somewhat obscure passage provides that "if at their common work
one man slay another unwilfully, let the tree be given to the kindred, and let
them have it off the land within thirty days; or let him take possession of it who
owns the wood." LAWS OF ALFRED c. I3 in i THORPE, op. cit. supra, at 7I.

MENS REA 983
law texts. The Roman notions of dolus and culpa were taken up
with fresh interest, and in some cases the attempt was made to
graft these onto English law. Here and there we find Bracton
borrowing ideas and legal terms and maxims directly from the
Code and Digest.27 This comparative study of law necessitated
fresh examination of underlying legal concepts; and the Roman
law conceptions of dolus and culpa required careful consideration
of the mental element in crime.28
A second influence, even more powerful, was the canon law,
whose insistence upon moral guilt emphasized still further the
mental element in crime. In the determination of sin the mental
element must be scrutinized quite as closely as the physical act.
"Whosoever looketh on a woman to lust after her hath com-
mitted adultery with her already in his heart," said Christ; and
following this teaching the penitential books naturally made the
measure of penance for various sins very largely dependent upon
the state of mind.29 There was constant interaction and reaction
between church and state law. It was the priests of the church
who conducted the trials by ordeal and monks or priests who were
the educators of the day. Small wonder then that our earliest
reference to mens rea in an English law book is a scrap copied
in from the teachings of the church. The book of Leges of
Henry I, which, as we have seen, contains passages strongly im-
pregnated with the surviving notion of absolute liability irre-
spective of evil intent, nevertheless in discussing perjury recites
that reum non facit nisi mens rea.30
27 As to the extent to which Bracton was influenced by the Roman law, see
2 HOLDSWORTH,op. cit. supra note 6, at 267-86.
28 As to the relation of dolus and culpa of the Roman law and mens rea, see
Bodenstein, Phases in the Development of Criminal Mens Rea (I9I9) 36 So.
AFRICAN L. J. 323, 327-33.
29 " If one has committed in his heart," says Vinnian, " a sin of thought and
immediately repents of it, let him smite his breast and pray God for forgiveness
and perform satisfaction because he has sinned. . If he has thought on a sin
and determines to commit it, but is prevented in the execution so is the sin the
same, but not the penance." AYER, SOURCE BOOK FOR ANCIENT CHURCH HISTORY
(I9I3) 626. Vinnian goes on to say, " If a cleric has planned in his heart to smite
or kill his neighbor, he shall do penance half a year on bread and water according
to the prescribed amount, and for a whole year abstain from wine and the eating
of meat, and then may he be permitted to approach the altar." See also PLUCKNETT,
A CONCISE HISTORY OF THE COMMON LAW (I929) 220.
30 LEGES HENRICI PRIMI c. 5, ?
28. As has been pointed out this goes back to

During this period the common law became more and more
strongly marked with the canonists' influence. It was at this
time that the court of chancery was growing into power31 and
the chancellor, a churchman of high dignity, was continually
tempering the rigors of the strict law with equity. Bracton,
whose book,32written in the middle of the thirteenth century,
powerfully influenced the later shaping of the common law, was
strongly tinged with the canonists' ideas. Indeed, as Maitland
has pointed out,33in writing on homicide Bracton actually has
transplanteda discourse from the distinguished canonist, Bernard
of Pavia, which he sets forth as part of the common law. Thus,
we read in Bracton that there are two types of homicide-" the
one spiritual and the other corporeal." Corporealhomicide may
be committed
"by act in fourways, i.e. by [the administration of] justice,by neces-
sity, by misadventureor by desire.34By justice,as whenthe judgeor
justiciar or his officerkills a criminaljustly condemned. But it is
homicide,if it be done from malignityor throughdelight in shedding
humanblood; althoughthe criminalbe justly killed, neverthelessbe-
causeof the corrupt intent the judgecommitsmortalsin (peccat mor-
taliter)." 35
Killing by misadventure Bracton divides into cases where one

is employed upon a lawful or an unlawful work.36 In the latter
St. Augustine, who in a sermon on James 5:I2 ("swear not neither by heaven
neither by the earth, neither by any other oath ") declared that if a man believing
that no rain fell in a certain spot, nevertheless for self-interest testifies that it did
rain there, even though in fact it did rain he is a perjurer in the eyes of God. See
2 POLLOCK ANDMAITLAND, op. cit. supra note 6, at 476, n.5; Levitt, The Originof
the Doctrineof Mens Rea (I922) i7 ILL. L. REv. II7, n.i.
31 See i SPENCE, EQUITABLE JURISDICTION OF THE COURT OF CHANCERY (I846)
334.
32 DE LEGIBUS ET CONSUETUDINIBus ANGLIAE.
33 See 2 POLLOCKAND MAITLAND,op. cit. supra note 6, at 477, n.4. See further
2 BRACTON, DE LEGIBUS (Twiss transl. I879) Introduction lviii et seq. For the
date of Bracton's book, see 2 HOLDSWORTH, op. cit. supra note 6, at 237.
34 These distinctions were familiar to the canonists of the twelfth and thirteenth
centuries, for the crime of homicide was intimately connected with the sin of
homicide.
35 BRACTON, DE LEGIBUS I2ob. Compare the comments of 2 POLLOCK AND
MAITLAND, loc. cit. supra note 33; 2 HOLDSWORTH,op. cit. supra note 6, at 259,
n.5.
36 Here again Bracton is following the distinctions of the canonists. As to

MENS REA 985
case the killer is liable; in the former, blame is not imputable

to him (non imputatur ei). " But if he is engaged in work of a
lawful kind and has not used due diligence (diligentiam debitam),
blame shall be imputable to him." 3
Although the greater part of Bracton's book is a statement of

the actual English practice, in some passages it is very evident
that he is merely pouring into English common-law molds ideas
gained from the canonists or Romanists. In another place he
says,
" we must consider with what mind (animo) or with what intent
(voluntate) a thing is done, in fact or in judgment, in order that it
may be determined accordingly what action should follow and what
punishment. For take away the will and every act will be indifferent,
because your state of mind gives meaning to your act, and a crime is
not committed unless the intent to injure (nocendi voluntas) inter-
vene, nor is a theft committed except with the intent to steal." 38
Further along, speaking of homicide by misadventure, after giving

various examples, some of which are taken directly over from
Roman texts,39 Bracton says that he who kills by misadventure
"but without an intent to kill, ought to be acquitted, because a crime

is not committed unless the intent to injure (voluntas nocendi) inter-
vene; and the desire and purpose distinguish evil-doing, and no theft is
committed without an intent to steal. And this is in accordance with
what might be said of the infant or the madman, since the innocence
of design protects the one 40 and the lack of reason in committing the
the canon law doctrine of versari in re illicita, see Bodenstein, supra note 28, at
335 et seq.
37 BRACTON, DE LEGIBUS I20b. Of course, as pointed out above, the idea of
negligence was as yet non-existent in English law. Bracton takes this idea over
from the canonists. See DECRETAL V, tit. xii (I234). De homicidio voluntario vel
casuali. Wigmore,supra note 4, at 323, n.4.
38 BRACTON,DE LEGIBUS ioib.
39 For instance, one of Bracton's examples is of a person playing with a ball
which accidentally hits the hand of a barber shaving and thus causes the barber
to cut the throat of his customer. DE LEGIBUS I36b. This, as Brunner points
out, is taken from DIG. 48, 8, I4. See Wigmore, loc. cit. supra note 37.
40 In contrast to this passage, compare Fitzherbert's statement of the actual
English law: "It was presented that a certain lunatic wounded himself with a
knife, and, after he recovered from his infirmity and received the rites of the
church he died of his wounds; his chattels were confiscated." ABRIDGEMENT,
CORONE (I5i6) 4I2. In other words, in I3I5 the lunatic was still adjudged a

986 HARVARDLAW REVIEW
act excusesthe other. But in evil-doingit is the intent (voluntas) which

is regardedand not the event, and it makesno differencewho does the
actualkillingor furnishesthe causeof death."41
One feels the strong contrast between Romanesque passages

such as these and the inconsistent statements of law drawn from
actual English legal practice. In speaking of criminal actions
Bracton admits that
" it appertainsto the lord the king and his crownto take cognizance
of . . . the crime of homicide, whether by misadventure or by design,
althoughthese do not entail the same punishment,becausein the one
case rigor obtains and in the other mercy."42
Bracton here, of course, refers to the existing practice of seeking

a pardon from the king after the felon's guilt has been deter-
mined. In another passage the reference to the existing practice
is even more explicit. The king, says Bracton, " must sometimes
as a favor (de gratia) concede to a man life and limb, as where
one has killed a man through misadventure or in self-defense." 43
In felonies44 other than homicide, Bracton is also fond of
emphasizing the mental element. In writing of arson, Bracton
says,
" But if any one in a violent seditionhas madea fire wrongfullyand
feloniouslyor from enmity or for plunder,let him be punishedwith
capital punishmentand a sentence. I say wrongfully,becausefires
whichare accidentalor set throughnegligence(negligentia),and not
with evil design (mala conscientia)are not so punished,becausein
such cases civil actions may be brought."45
Here Bracton is expressing the unquestioned law as it existed in

his time and for centuries before. But in defining larceny his
felon. In I330 a lunatic who killed is given a king's charter of pardon. Id. at 35I;
see Wigmore, supra note 4, at 446.
41 BRACTON,DE LEGIBUS I36b.
42 Id. at I04b.
43 Id. at I34.
44 The felonies of Bracton's day included homicide, arson, rape, robbery,
burglary, and larceny. Wounding and mayhem about this time dropped out of
the list of felonies, since the growth of the action of trespass during the thirteenth
century afforded a preferable and far more popular mode of procedure.
45 Id. at I46b.

MENS REA 987
leanings toward Roman law betray him into a departure from the
current English law of his day and lead him to overemphasizethe
mental element. The old appeal of larceny was the early ordinary
method of recoveringstolen goods in another'spossession, and this
ancient procedure was not yet obsolete in the thirteenth century.
It lay against anyone, even though not the thief or wrongful
taker,46who might be in possession of stolen goods not retaken
on immediate pursuit. Consequently, the appeal could be suc-
cessfully waged without proof of any mental element on the
part of the appellee; and, the English actio furti, closely linked
to the appeal for larceny, "can be effectually used against
one who is no thief, but an honest man." 47 Bracton, however,
defining larceny, borrows from the Roman law definition of the
ancient actio furti, and makes much of the mental element, the
animus furandi. "Theft," he says, " is according to the law
the fraudulent taking of another's property with an animus
furandi against the will of the owner. I say with intent, because
without an animus furandi the crime is not committed."48 Other
contemporaryaccounts and reports of cases are not so clear on the
necessity of the animus furandi.49
It is evident that Bracton, writing under strong Roman and
canonist influence, emphasized, often beyond the actual law of
his day, the mental requisites of criminality. It remains to be
seen how far this growing sense that criminality should depend
upon moral guilt became the accepted law of a later day.
46 See 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at i6i-62. See the
interesting case of Moor v. Piggun, SELDEN SOCIETY, SELECT PLEAS OF THE CROWN
No. I92.
47 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at I62.
48 BRACTON,DE LEGIBUS I5ob.
The definition of furtum is taken from INSTI-
TUTES 4, I, I. See 2 POLLOCKAND MAITLAND, op. cit. supra note 6, at 498, n.4;
3 HOLDSWORTH,op. cit. supra note 6, at 360, n.5.
49 Y. B. 33-35 Edw. I. (R. S. 502 (I3o4-o6). Mallore, J., says, " I saw a case
. . .where one R., because his rent was in arrear, took his farmer's corn and
carried it off, and disposed of it at his pleasure, and he was hung for that deed."
Malbersthorpe: " It is not to be wondered at." Ibid. See 2 HOLDSWORTH,op. cit.
supra note 6, at 359.
A manuscript note in Britton (I290), in defining a thief, omits any mention
of a required mental element. BRITTON (Nichols transl. I901) 47, n.i. "A thief
is he who carries off or steals another's goods in the absence of the owner, or in
his presence but without his knowledge."

III. DEVELOPMENT OF A GENERAL MENS REA AS A

REQUISITE FOR CRIMINALITY
It is, in the last analysis, underlying ethical concepts which

shape and give direction to the growth of criminal law. It was
almost inevitable, therefore, that the emphasis placed by Bracton
upon the mental element in criminality should take permanent
root and become part of the established law. Under the perva-
sive influence of the Church, the teaching of the penitential books
that punishmentshould be dependent upon moral guilt gave pow-
erful impetus to this growth, for the very essence of moral guilt
is a mental element. Henceforth, the criminal law of England,
developing in the general direction of moral blameworthiness,
begins to insist upon a mens rea as an essential of crimi-
nality. Scholars, newly inspired with Roman texts and maxims,
searched the books afresh in their efforts to formulate and sys-
tematize these developing ideas. The formula found in the Leges
of Henry I that " reum non facit nisi mens rea" 50 was seized upon
and used as a convenient label for the newer ideas, finally to
evolve in Coke's Third Institute as " actus non facit reum nisi
mens sit.rea." 51
Mens rea, in the period following Bracton, thus smacked
strongly of general moral blameworthiness. The transition from
the more primitive concept of liability was all the easier because,
as has already been suggested,52most of the thirteenth century
felonies from their very nature already involved an intentional
element. Robbery and rape necessitate a design; 5 they can not
possibly be committed through mischance. Burglary had not
yet developed the requirement of an accompanying felonious in-
tent, but a breaking into a house was of itself an act necessitating
a design. Although the appeal of larceny might be brought
50 See note 30, supra.
51 COKE, THIRD INSTITUTE (I641) 6, IO7. By Coke's time the maxim is ap-
parently so well established that he repeats it in more than one connection as
accepted law. 52 See p. 98I, supra.
53 In early appeals for robbery, however, the modern requisite of an animus
furandi was not required to be proved. Often enough the motive was not " desire
for dishonest gain, but vengeance or the prosecution of a feud, and the horse or
sword or cloak was seized in a scuffle." See 2 POLLOCK AND MAITLAND, op. cit.
supra note 6, at 494.

MENS REA 989
against one in possession of stolen goods not himself a thief, the

penal element of the action was based upon an original theft,
a taking by design. Arson was not felonious unless intentional.
Homicide included negligent and accidental, as well as inten-
tional, killings; but already by the thirteenth century, the killer
in self-defense or by misadventure, though strictly a felon and
liable to forfeiture of goods, was being relieved from the ordi-
nary felon's punishment of death.
That the thirteenth century felonies did thus involve an in-
tentional element is perhaps only another illustration of the fact
that crime in general always has depended and always will depend
upon deep-lying ethico-psychological concepts.54 The early felo-
nies were roughly the external manifestations of the heinous sins
of the day. The point is not that morality first began to make
its appearance in the law, but that an increasing and now con-
scious emphasis upon morality necessitated a new insistence
upon psychical elements in determining criminality. Perhaps it
is more correct to say that the newer concept of criminal liability
involved, not so much a transition of thought, as a shift of em-
phasis and change in the angle of approach, which resulted in
the recognition of new legal doctrines and attitudes.
We can trace the changed attitude in new generalizations con-
cerning the necessity of an evil intent which are found scattered
through the Year Books in the remarks of judges and counsel and
which later make their appearance as settled doctrines in the
writings of Coke and Hale during the seventeenth century. We
sense it in the growing insistence upon more and more sharply
defined mental requisites as essentials of the common-law felo-
nies. We find it fermenting in the form of new defenses which
show the absence of an evil mind and therefore of criminal lia-
bility - defenses such as infancy or insanity or compulsion.
During the centuries following Bracton's day this growing
consciousness of a blameworthy mind or felonious intent as the
basis of criminality is sometimes seized upon to mark the line
of increasing differentiation between the crime and the tort, for
54 Reference is made here, of course, to the common-law felonies - not to
so-called mala prohibita. Garofalo maintains the thesis that " natural crimes "
throughout the ages are offenses " against the fundamental altruistic sentiments of
pity and probity in the average measure possessed by a given social group." See
GAROFALO, CRIMINOLOGY (I885).

the allowance of damages continued in the main independent of

considerations of moral blameworthiness.55 We begin to find in
the Year Books generalizations revealing the accepted law of
the time about the necessity of an evil intent to prove felony.
For instance, in I466 in a case of trespass quare clausum in which
the defendant contended that he was not liable because the dam-
age was occasioned by something which had happened against
his will, Catesby, arguing for the defense, said,
"And, sir, I put a case that I am cutting my trees, and the boughs fall
upon a man and kill him; in this case I shall not be attainted as of
felony, for my cutting was lawful, and the falling upon the man was
against my will, and no more here, etc."
But Fairfax, for the plaintiff, summarizing the existing law, re-
plied,
" It seems to me just the other way; and I say that there is a diversity
between an act resulting in a felony and one resulting in trespass, for
in the case put by Catesby there was no felony, for felony is of malice
prepense, and when it was against his will, it was not animo felonico,
etc.; but if one is cutting trees, and the boughs fall on a man and
wound him, in this case he shall have an action of trespass, etc.; and,
also, sir, if one is shooting at butts, and his bow shakes in his hands,
and kills a man, ipso invito, it is no felony, as has been said, etc.; but
if he wounds one by shooting, he shall have a good action of trespass
against him, and yet the shooting was lawful, etc., and the wrong which
the other received was against his will, etc. and so here, etc."
On demurrer judgment was given for the plaintiff.56

A few years later in the famous Carrier's case,57 where a car-
rier was charged with the larceny of certain bales which he had
See 3 HOLDSWORTH,op. cit. supra note 6, at 375-77. "The general rule is

that a man is liable for the harm which he has inflicted upon another by his acts,
if what he has done comes within some one of the forms of action provided by
the law, whether that harm has been inflicted intentionally, negligently or ac-
cidentally. In adjudicating upon questions of civil liability the law makes no
attempt to try the intent of a man, and the conception of negligence has as yet
hardly arisen. A man acts at his peril." Id. at 375. See also HOLMES, THE COM-
MON LAW 85-87.
56 Y. B. Mich. 6 Edw. IV, f. 7, pl. I7 (I466). The case is discussed in HOLMES,
THE COMMON LAW 85-87.
57 Y. B. Pasch. I3 Edw. IV, f. 9, pl. 5 (I473), translated in SAYRE, CASES ON
CRIMINAL LAW (I927) 924.

MENS REA 99I
been intrusted to carry and which he had broken open, Hussey,

the king's attorney, in answer to the objection that a bailee
could not do violence to his own possession, argued, " Felony is
to claim feloniously the property without cause to the intent to
defraud him in whom the property is, animo furandi." The
chancellor agreed, saying, " Felony is according to the intent;
and his intent may be felonious as well here as if he had not the
possession." Molineux in his argumentgoes on to say, " A matter
lawfully done may be called felony or trespass according to the
intent."
In a Reporter's Note of I498 58 the generalization concerning
evil intent was extended to cover a case of mayhem.
"Hussey said that a question had been put to him, which was this: A
clerk of a church being in a chamber struck another with the keys of
the church; which with the force of the blow flew out of his hand and
through a window, and put out the eye of a woman. The question was,
whether it should be called mayhem or not. And it seems that it was,
because he had a bad intent at the beginning...
A few years later Rede, J., adopting the argument of Fairfax

in the case of forty years before, says that in trespass " the intent
cannot be construed, but in felony it shall be. As when a man is
shooting at the butts, and kills a man, it is not felony; and this
will be so, as he had no intent to kill him; and thus of a tiler on
a house, who unwittingly with a stone kills a man, it is not
felony 5
But although English judges, strongly swayed by canonist
influence, might lay it down that " felony is according to the
intent," they never allowed themselves to be pushed to the ex-
treme of the penitential books. At times the pendulum swung
far. One can find in the reports stray statements of the doc-
trine that criminality may rest upon evil intent alone without
any criminal act - echoes from the canonists' writings that " the
will may be taken for the deed." Staunford, writing in the middle
of the sixteenth century, asserts that " in the time of Edward III
58 y. B. Hil. I3 Hen. VII, f. I4, pl. 5 (I498); SAYRE, op. cit. supra note 57, at
265.
59 Y. B. Trin. 2I Hen. VII, f. 28, pI. 5 (I506). Compare BRACTON,DE LEGIBUS
I36b.

' Voluntas reputabaturpro facto' as well in this crime [robbery]

as in other crimes ; 60 and to prove his assertion he cites several
references to fourteenth century Year Book cases or notes. As
has been pointed out,6' the references by no means prove the
sweeping assertion which Staunford makes, and which in turn
was copied from Staunford by Coke,62Hale,63and Hawkins; 64 the
truth is that in a day when there was no general law of criminal
attempts, a doctrine which allowed dangerous characters who
failed in their attempts to be punished and which at the same
time embodied the newer conceptions surging over into the com-
mon law from the canonists' writings must have been of strong
appeal, and gained at least sufficient foothold to be quoted and
repeated in early cases and to afford some kind of justification
for the hanging of robbers who lay in wait and assaulted but
obtained no property.65 No such extreme general doctrine that
the will may be taken for the deed could, however, exist in any
practicable system of criminal law. Apart from the difficulty of
proving crime based on intent alone, it would be entirely too
dangerous to give to judges the power to convict where no overt
act was committed; and English common-lawjudges had too much
practical sense ever to allow such a doctrine to become an es-
tablished part of the law.66 Even Staunford, publishing his Pleas
of the Crown in I557, admits that such was not the law in his
day.67 Nevertheless, the persistent recurrence of the maxim in
the early reports and the belief of later writers that such a doc-
60 STAUNFORD, PLEAS OF THE CROWN (I557) 27. Compare BRACTON, DE
LEGIBUS I36b: " In maleficiis autem spectatur voluntas et non exitus; et nihil
interest occidat quis an causam mortis praebeat."
61 See Sayre, Criminal Attempts
(I928) 4I HARV. L. REV. 82I-27.
62 THiRD INSTITUTE 5, 69, i6i.
63 PLEAS OF THE CROWN 425-26, 532.
64 PLEAS OF THE CROWN (Ist ed. I7I6)
65, (8th ed. I824) 72.
65 See FITZHERBERT,ABRDGEMENT, CORONE202; 27 Ass. pl.
38; Y. B. Mich. I3
Hen. IV, p1. 20 (4I I); Y. B. Trin. 9 Edw. IV, f. 26b, pl. 36 (I469).
66 " The imagination of the mind to do wrong,
without an act done, is not
punishable in our law, neither is the resolution to do that wrong, which he does
not, punishable, but the doing of the act is the only point which the law regards;
for until the act is done it cannot be an offense to the world, and when the act is
done it is punishable." Hales v. Petit, Plowd. 253, 259a (1563).
47 See STAUNFORD, PLEAS OF THE CROWN I7. Staunford refers to the doc-
trine as law "in the ancient times," (p. I7) or, in another passage, "in the time
of Edward III" (p. 2 7).

MENS REA 993
trine was once in actual existence shows how strong was the
drift following the thirteenth century toward making the intent
element a factor of prime and decisive importance in the deter-
mination of criminal responsibility.
Generalizations about the necessity of an evil intent for felony
crept from the Year Books into the legal treatises and texts sum-
marizing the established law of the day. Bacon, stating the law
as it existed in Queen Elizabeth's time, says in his Maxims, " All
crimes have their conception in a corrupt intent, and have their
consummation and issuing in some particular fact." 68 Elsewhere
he says,
"l capital cases in favorem vitae the law will not punish in so high a
degree, except the malice of the will and intention appear; but in civil
trespasses and injuries that are of an inferior nature, the law doth
rather consider the damage of the party wronged, than the malice of
him who was the wrongdoer. . . . So, if a man be killed by misad-
venture, as by an arrow at butts, this hath a pardon of course; but if
a man be hurt or maimed only, an action of trespass lieth, though it
be done against the party's mind and will; and he shall be punished
in the law, as deeply as if he had done it of malice. . . . So, if an
infant within years of discretion, or a madman kill another, he shall not
be impeached thereof; but if they put out a man's eye, or do him like
corporal hurt, he shall be punished in trespass."69
By the second half of the seventeenth century, it was univer-

sally accepted law that an evil intent was as necessary for felony.
as the act itself. Hale, in discussing death through " casualty
and misfortune," writes that
" as to criminal proceedings, if the act that is committed be simply
casual and per infortunium, regularly that act, which, were it done
ex animi intentione, were punishable with death, is not by the laws of
England to undergo that punishment; for it is the will and intention,
that regularly is required, as well as the act and event, to make the
offense capital." 70
Similarly, in discussing larceny, Hale says, as the indictment

requires
68 MAXIMS, Reg. I5. In criminalibus sufficit generalis malitia intentionis cum
facto paris gradus.
69 BACON, MAXIMS, Reg. 7. 70 I HALE, PLEAS OF TIIE CROWN 38.

" cepit and asportavit, so it must be felonice or animo furandi; other-

wise, it is not felony, for it is the mind that makesthe taking of an-
other'sgoods to be a felony or a bare trespassonly. But becausethe
intentionand mind are secret, the intentionmust be judged by the
circumstancesof the fact."71
IV. GROWING PARTICULARIZATION OF THE GENERAL MENS

REA WITH RESPECT TO SPECIFIC FELONIES
While the conception of a general mens rea as a requisite for

felony was thus coming into prominence, the exigencies of the
developing law made necessary at the same time a more and more
clear cut conception of exactly what constituted this evil or felo-
nious intent. At the outset when the mens rea necessary for
criminality was based on general moral blameworthiness,the con-
ception was an exceedingly vague one. As a result of the slow
judicial process of discriminating one case from another and
"taking of diversities," much sharper and more precise lines
gradually came to be drawn as to the exact mental requisites for
various crimes. Since each felony involved different social and
public interests, the mental requisites for one almost inevitably
came to differ from those of another.72 One must therefore ex-
amine separately the developing and slowly changing mental ele-
ments required for homicide, for larceny, for burglary, for arson,
and for other offenses.
Homicide. The law of homicide during the thirteenth, four-
teenth, and fifteenth centuries was undergoing considerable
change. As has been seen,73at the beginning of the thirteenth
century criminal responsibility attached to all homicides except
those in execution of a warrant or in the pursuit of justice, but
men who killed in self-defense or by misadventure were seeking
and often obtaining pardon from the king. The line between
murder and manslaughterwas unknown; there was no legal dis-
tinction between voluntary and involuntary homicide. The men-
tal element, in other words, was of minimum importance. The
71 Id. at 508.
72 It is interesting to compare the somewhat similar differentiation and par-
ticularization which was taking place in the law of torts - various specific torts
growing out of the old action of trespass and each developing its own peculiarities.
73 See pp. 979-80, supra.

MENS REA 995
history of homicide during the next few centuries is the story of

the emergence of the mental element as a factor of prime im-
portance, the gradual freeing from criminal responsibility of those
who killed without guilty intent, and the separation of different
kinds of homicide into more and less serious offenses dependent
upon the psychical element.
The most serious form of homicide, called " murder," meant,
at the end of the twelfth century when Glanville wrote, "homicide
which is committed in secret, no one seeing or knowing of it," 74
for which the vill or the hundred was liable to a heavy amerce-
ment,75which itself was called the murdrum. It is clear, there-
fore, that murder in those days was not distinguished from other
felonious homicides by any mental element.
By the fourteenth century when there were practically no
foreign born Normans left the presentment of Englishry had be-
come a pure formality, and the practice was definitely abolished
in 1340.76 Henceforth the term " murder" lived on in the popu-
lar imagination as the worst kind of homicide, but was bereft of
its former legal signification. The only remaininglegal classifica-
tion of homicides was (I) justifiable homicide, i.e., killing in the
pursuit of justice, which resulted in an acquittal; (2) homicide
by misadventure or in self-defense, which involved imprisonment
until trial, the expense of getting a pardon, forfeiture of goods and
continuing liability to an appeal; and (3) all other kinds of
homicide which involved liability to a felon's punishment. The
Statute of Gloucester,passed in I278, regulated the procedurein
the pardon cases. No writ was to be granted out of chancery to
inquire whether the killing was " by misadventure or in self-
defence, or in other manner by felony," but if this were found at
the trial by the jury, " the king shall pardon him if it pleases him."
74 GLANVILLE(II87-89) lib. I4, C. 3.

75 Bracton asserts that this practice was introduced into England by King
Cnute to prevent his countrymen, the Danes, from being secretly murdered by the
English. DE LEGIBUS 134b. It was continued by William the Conqueror to pro-
tect the Normans. If, however, it could be proved that the man slain was an
Englishman, this so-called " presentment of Englishry " would relieve the hundred
from liability to pay the murdrum. See 2 POLLOCKAND MAITLAND, op. cit. supra
note 6, at 487.
76 I4 EDW. III, st. I, C. 4.
77 6 EDW. I, C. 9.

Henceforth, to secure a pardon in such cases it was necessary that

the jury find that the killing was by misadventure or in self-
defense and, in the words of the old findings, " not by felony or of
malice aforethought." In course of time, as pardons after such
findings became a matter of course, the more expedient method
was adopted of allowing juries directly to return verdicts of not
guilty. The forfeiture of goods 78 in such cases lived on but gradu-
ally fell into disuse.79 Homicide which was neither justifiable nor
pardonable as a matter of course was felonious. But the times
called for a separation of different kinds of felonious homicides
in accordance with moral guilt. The decree of I3 Richard JJ 80
in I389, restraining the too free use of king's pardons in certain
crimes, promises that " no charter of pardon shall be henceforth
allowed before any justice for murder, the death of a man killed
by making assault or malice prepense (ou malice purpense)."
This seems to be the first statutory recognition of the expression
" malice aforethought." 81
During the end of the fifteenth and firsthalf of the sixteenth cen-
turies a series of statutes were passed excluding the worst kind
of homicides from benefit of clergy.82 In these statutes such homi-
cides are defined as " wilful prepensed murders," " prepensedly
murder," "murder upon malice prepensed," " wilful murder of
malice prepensed," and " murder of malice prepensed." Thus,
felonious homicide was finally divided into two main divisions-
that with and that without malice aforethought, and the first was
designated as murder. The two classes of homicide were punished
very differently. The first, from which benefit of clergy was ex-
cluded, was punishable by death; and the second, which was
78 Hale writes that if the " killing can by no means be attributed to the act of
the person, but to the act of him that is killed, there, it seems, though the instru-
ment of the death is forfeited as a deodand, there follows no forfeiture of the
goods of the person." i HALE, PLEAS OF THE CROWN 492. But Hale writes that
he who kills another by accident (per infortunium) still forfeits his goods. See
id. at 477, 492.
79 Liability to forfeiture was not formally abolished until I828. 9 GEO. IV,
C. 3I, ? io. As to this matter, see 3 STEPHEN, HISTORY OF CRIMINAL LAW (I883)
76-77; 3 HOLDSWORTII, op. cit. supra note 6, at 3I3.
80 St. II, c. I.
81 See 3 STEPHEN, op. cit. supra note 79, at 43.
82 I2 HEN. VII, c. 7 (1496); 4 HEN. VIII, C. 2 (I5I2); 23 HEN. VIII, C. I, ?? 3-4
(I53I); I EDW. VI, C. I2, ? IO (547).

MENS REA 997
clergyable, came to be practically punishable only by a year's

imprisonmentand branding on the brawn of the thumb.
The distinction between the capital crime of murder and the
less serious form of felonious homicide, which later came to be
called manslaughter, depended therefore upon the presence or
absence of " malice aforethought." The subsequent history of
homicide is largely the story of the shifting meanings attached to
the term " malice aforethought." At the beginning, and at least
until the early seventeenth century, the term designated a purely
psychical element. " Malice " was construed in its popular sense
as meaning general malevolence or cold-blooded desire to injure,
and referred to the underlying motive rather than to the immedi-
ate intent of the actor. As shown by the Act of 2 James J,83 an
intentional killing, whether from rage, drunkenness,or hidden dis-
pleasure, if committed " on the sudden," is considered at the
opening of the seventeenth century to be without malice afore-
thought; and this even though there was no provocation for the
killing. Lambard, who wrote in i6io, assumes that the phrase
bears its natural and obvious sense of premeditation, but shows
the unsatisfactory nature of this interpretation.84 The actual
meaning of the term is gradually shifted by the use of legal
fictions. Coke, whose Third Institute was completed in 1628,
found it impossible to restrict the meaning of malice prepense to
its popular, purely psychical sense. He defines murder as an
unlawful killing " with malice aforethought, either expressed by
the party or implied by law." 85 After describing express malice
he sets forth three cases where malice is implied by the law: (i) a
killing in the absence of provocation, or a killing by poison, (2)
killing an officer or one engaged in executing a warrant in re-
sistance to such execution, and (3) (apparently) killing while
engaged in the commission of an unlawful act.86 Although Coke's
three examples of malice implied by law smack of an actual intent
to kill, if not of actual malevolence, his suggestion of implied
83 C. 8 (I604); see 3 STEPHEN, op. cit. supra note 79, at 47.
84 See 3 STEPIIEN, op. cit. supra note 79, at 50.
85 See COKE, THIRD INSTITUTE 47.
86 See id. at 52. Coke in his third class lays down no such generalization as this,
but gives three examples-killing by one engaged in robbery, by a jailer through
unlawful cruelty, and by a sheriff who " of his own wrong " unlawfully burns or
beheads one whom he has been ordered to hang.

malice was potent with wide possibilities. The floodgates were

open and later courts through the fiction of implied malice found
an easy way to enlarge the meaning of malice aforethought and
thus to widen the actual boundaries of murder. A term used at
the beginning to designate a purely psychical element was thus
given a tortured and artificial meaning in order to enable courts
to visit with a severe penalty killers who, in the public opinion of
the day, ought not to be let off with the comparatively slight pun-
ishment attaching to clergyable offenses.87 So it came about that
the mental requisites for murder changed according to the ex-
igencies of the time, and under the present law, which has been
gradually reared upon Coke's groundwork,under certain circum-
stances one who kills without any form of malevolence or with-
out even intent to kill 88 may be convicted of murder. The present
very complex and highly technical legal definition of malice afore-
thought89 has shifted far from the simple psychical meaning at-
tached to it by sixteenth century courts; it has lost practically all
resemblanceto the thirteenth century conception of mens rea de-
rived from the canonists.0
87 That is, one year's imprisonment and a branding on the thumb.
88 As, for instance, when one resisting lawful arrest strikes an officer not in-
tending to injure him, and the blow unforeseeably results in death.
89 Stephen, in his DIGEST OF THE CRIMINAL LAW
(7th ed. I926) 225, defines
malice aforethought as follows: " Malice aforethought means any one or more of
the following states of mind preceding or co-existing with the act or omission by
which death is caused, and it may exist where that act is unpremeditated.
(a) An intention to cause the death of, or grievous bodily harm to, any
person, whether such person is the person actually killed or not;
(b) knowledge that the act which causes death will probably cause the death
of, or grievous bodily harm to, some person, whether such person is the person
actually killed or not, although such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by a wish that it may
not be caused;
(c) an intent to commit any felony whatever;
(d) an intent to oppose by force any officer of justice on his way to, in, or
returning from the execution of the duty of arresting, keeping in custody, or im-
prisoning any person whom he is lawfully entitled to arrest, keep in custody, or im-
prison, or the duty of keeping the peace or dispersing an unlawful assembly, pro-
vided that the offender has notice that the person killed is such an officer so
employed."
90 Of course, it must not be forgotten that malice aforethought is not, strictly
speaking, mens rea in the sense of the underlying mental element upon which
criminality in general is based, but rather that which distinguishes the more seri-
ous from the less serious felonious homicides. Nevertheless, if by mens rea we

MENS REA 999
Larceny. Of the other felonies the story is much the same. The
general concept of moral blameworthiness becomes lost in tech-
nical developmentswhich differ with the separate felonies. With
regard to larceny, as has been already seen,9' the early actio furti
lay against one in possession of stolen goods even though not the
thief, and required,therefore, no proof of a wrongful intent. But
Bracton, borrowinglargely from Roman law sources, laid down as
one of the requisites of the felony of larceny an animus furandi.92
His influencewas strong; and when judges were later pricking out
the line between felony and tort, they resorted to the matter of
intent to distinguish larceny from trespass. The Carrier'scase 9
shows what a prominent part the intent was already playing in
larceny cases in the fifteenth century. The case went so far as to
decide that larceny might be grounded on a corrupt intent even
where there was no taking of possession vi et armis. Vavisour,
arguendo, said that the carrier's "demeanor after shows that he
took [the bales] as felon and to another intent than to carry them,
in which case . . . it is felony." This was the view reached by
the majority of the court.
Coke, writing a century and a half later, after quoting the
language of Bracton about the necessity of an animus furandi,
says,
" First, it must be felonious,id est cum animofurandi,as hath been
said, Actus non facit reum nisi mens sit rea. And this intent to steal
must be when it cometh to his hands or possessions;for if he hath
the possessionof it once lawfully, though he hath animumfurandi
afterward,and carryethit away, it is no larceny."94
In this interesting comment Coke shows that by the seventeenth
century the term mens rea had already undergonea revolutionary
change in meaning since the time of its adoption from the peniten-
mean whatever mental requisite is necessary for any particular crime, malice
aforethought may constitute one form of mens rea.
91 See p. 987, supra.
92 DE LEGIBUS I5ob. The definition of theft contained in the MIRROR, as in
Bracton, requires proof of a mental element. It defines larceny as a " treacherous
taking away from another"; and adds, "It is said treacherously because that if
the taker of them conceive the goods to be his own, and that he may well take
them, in such case it is no offense, nor in case where one conceives that it pleases
the owner of the goods." See 3 STEPHEN, op. cit. supra note 79, at I34.
93 Supra note 57. 94 THiRDINSTITUTE I07.

IOOO HARVARD LAW REVIEW
tial books. It is used, not with its old connotation of moral guilt,
but with reference to a precise intent at a given time. Evidently
the term was being employed in a general way during the seven-
teenth century to denote the mental requirement for any given
crime, and this of course differed vastly in respect to different
offenses.
Later decisions develop Coke's statements of the law and define
with growing precision the exact mental element necessary for
larceny. The old animus furandi of Bracton comes to mean an
" intention to deprive the owner of his property permanently,
fraudulently, and without claim of right." 9 Even today courts
are still busy elaborating and delimiting the meaning of this
animus furandi - determining whether it exists where there has
been a borrowing without consent96 or where after a borrowing
without consent the res is injured-or destroyed,97or where there
has been a taking with the intent to repay the value,98or a taking
for a temporary use and a later abandonment of the goods,"9or
a pledging of another'sgoods with intent to redeem,'00or a taking
with intent to returnso as to gain a reward,'0'or a taking of letters
or goods to open out of curiosity,'02or a taking without intending
any personal gain thereby.'03 Only a study of the growing mass
of decisions will show how highly technical and complex the
mental requirementfor larceny has now become, and how vastly
it differs, for instance, from the mental requirement for murder.
Burglary. The felony of burglary developed an even more
technical mental requirement. The offense of housebreaking of
its very nature requires design; but no mention is made of any
95 2 STEPHEN, op. cit. supra note 79, at 95.

96 Compare Rex v. Crump, i C. & P. 658 (I825).
97 Hartford Fire Ins. Co. v. Wimbish, I2 Ga. App. 7I2, 78 S. E. 265 (I913);
Smith v. State, 66 Tex. Cr. Rep. 246, I46 S. W. 547 (I9I2).
98 Fletcher v. Commonwealth, ii8 KY. 35I, 8o S. W. IO89 (I904); Pylee v.
State, 62 Tex. Cr. Rep. 49, I36 S. W. 464 (i9ii); Beach v. State, 85 Tex. Cr. Rep.
64, 2IO S. W. 540 (I9I9).
99 State v. Davis, 38 N. J. L. i76 (i875).
100 Regina v. Phetheon, 9 C. & P. 552 (I840); People ex rel. Perkins v. Moss,
i87 N. Y. 41O, 8o N. E. 383 (i907); Nelson v. Rex, [I902] A. C. 250.
101 Commonwealth v. Mason, I05 Mass. I63 (i870); Regina v. Gardner, 9 Cox
C. C. 253 (I862).- 102 Regina v. Godfrey, 8 C. & P. 563 (I838).
103 Hamilton v. State, 35 Miss. 214 (i858) (theft of slave for purpose of free-
ing him); Rex v. Morfit, Russ. & R. C. C. 307 (i8I6).

MENS REA IOOI
specific mental requirement in the early presentments104 or by

the early text writers.105 The present hard and fast technical
requisite of an intent to commit a felony within the house in-
vaded seems to have come to the front when judges were wrestling
with the difficultproblem of drawing the line between felony and
tort. In I4II it was decided that an indictment for merely break-
ing another's close would not be held a felony, but that an indict-
ment for feloniously breaking another's dwelling house would
be."06 And the question of whether or not the breaking was a
" felonious " one the judges made to depend upon the defendant's
state of mind. Fitzherbert in his Abridgement gives an interest-
ing summary of the case, evidently somewhat varied to meet the
more clearly formulated law of his time.
" By Hankford. One was indicted quod clausum J. S. felonice fregit ad
ipsum inefficiendum. This is not felony. But quod domum as above,
it is felony, for it is burglary. But if it were domumad ipsum ver-
berandum, this is only trespass. 107
In I469 we find the court again stressing the question of intent in

burglary. Moile, J., exclaims, " In burglary one has to discuss
the intent." 108
104 See, e.g., SELDEN
SOCIETY,SELECT PLEAS OF THE CROWN Nos. 6, 8.
105 According to Britton, who wrote at the end of the thirteenth century,
burglars are " all those who feloniously in time of peace break churches, or the
houses of others or the walls or gates of our cities or boroughs." Lib. I, c. xi, f. i7.
The crime probably represents the older Anglo-Saxon hamsoken. Britton makes
no mention of any specific mental requirement for burglary; but after excepting
"infants under age, and poor people who through hunger enter the house for
victuals under the value of twelve pence," he goes on to say that "those who
enter into any tenement of seisin in respect of some right which they think they
have, are not held to be burglars." Ibid. Such a mistake would deprive one of a
general mens rea.
106 Y. B. Mich. I3 Hen. IV, f. 7, pI. 20 (I4II). "Cokeyn, C. B., asked the jus-
tices in the Exchequer Chamber nigh the Exchequer whether it should be adjudged
felony or not if a man were indicted quod clausum J. B. fregit, as it would be in
the case of quod domum J. B. felonice fregit? Hankford, J., and Hulls, J. It
will be hard to adjudge such a breaking of the close felony. Cokeyn, C. B. How
would you wish to adjudge it if he were indicted Quod clausum J. B. felonice fregit,
et in ipsum insultum fecit? Hankford, J. Then it will not be adjudged anything
except trespass; for assault is only trespass and through the assault his intent to
break becomes known...."
107 FITZHERBERT, ABRIDGEMENT, CORONE 229.
108 Y. B. Trin. 9 Edw. IV, f. 26b, pl. 36 (1469). For a translation of this
case, see Sayre, supra note 6i, at 824, n.I2.

I002 HARVARD LAW REVIEW
Coke, writing in the seventeenth century, takes his law of

burglary, so far as the mental requirement is concerned, directly
out of Fitzherbert's Abridgement. He defines a burglar as " a
felon that in the night breaketh and entereth into a mansion house
of another,of intent to kill some reasonablecreature, or to commit
some other felony within the same, whether his felonious intent
be executed or not." 109 In discussing the requisite mental ele-
ment Coke repeats the case as set forth in Fitzherbert, and adds,
" The intent must be to commit felony, and not trespass, or other
thing that is not felony, the words of the appeal or indictment
being Quod felonice et burgiariter fregit, et intravit, etc., so as
there must be a felonious and burglarious intent." 110 Coke's
statement solidified the law in its present mold. The mental ele-
ment necessary for burglary, i.e., to commit a felony within the
house entered, thus came to be far different from that required
for murder or larceny.
Arson. Of arson little need be said.. From very earliest times
the malicious burning of another's buildings was a crime of pecul-
iar gravity. We find provisions against arson in the Laws of
Aethelstan,'1'and in those of King Cnute,112both making the of-
fense punishable by death, and in those of Henry J,113 making
arson unemendable."'4 This crime, as already indicated 115 was
one of the earliest felonies in which the mental element was
stressed. By Bracton's day it seems to have been well settled that
to convict for arson proof must be,had that the burning was with
evil design (mala conscientia); 116 a burning caused by negligence
was not arson. Early decisions repeat the requirement that the
burning must be ex malitia praecogitata. Coke, after repeating
Bracton's language, recites that the necessity of proving " ma-
liciously and voluntarily " is shown " by the words of the indict-
109 COKE, THIRD INSTITUTE 63.

110 Id. at 65.
111 See i THORPE, op. cit. supra note 26, at 225. King Aethelstan is said to have
come to the throne in 924.
112 See id. at 4II. King Cnute is said to have come to the throne in
IOI7.
113 See id. at 519, 522, 546.
114 See id. at 522.
115 See p. 98I, supra.
116 BRACTON, DE LEGIBUS I46b, quoted at p. 986, supra. See also BRITTON,
lib. i, C. IO.

MENS REA I003
ment, which be voluntarie, ex malitia sua praecogitata, et felonice.

For if it be done by mischance, or negligence, it is no felony." 117
Ever since Coke's time the law has remained unchanged that to
convict for arson the burning must be "ex malitia." But the
meaning of malitia has changed considerably. The mental re-
quirement is no longer a motive of malevolence, desire to injure,
or general ungodliness, as it was in early days, but a narrow
specific intent to burn a building, irrespective of the underlying
motive or purpose.118
Misdemeanors. In crimes less than felony - what in later
days came to be called misdemeanors-the law followed much
the same development. Before Bracton's day numerous offenses
less than felony were being tried in civil actions or upon present-
ment before the king's justices or in local courts,119and punished
by amercement or by corporal punishment less than death. In
general, for the punishment of such offenses no particular mental
requirementseems to have been suggested. After Bracton's day,
when the action of trespass was " stealing slowly to the front . . .
against those who to a plaintiff's damage have broken the king's
peace with force and arms,"120 judges were often at a loss to draw
the line between the criminal and the civil aspects of trespass
to separate what in later times came to be called misdemeanors
from torts. Maitland calls the action of trespass an " attenuated
appeal," the charge being that the defendant did wrong to the
plaintiff " by force and arms and against the king's peace." 121 As
time went on and criminal liability in the case of felonies came to
depend more and more upon a moral basis, it was only natural
that this same development should be reflected in the criminal
aspect of trespass. The newer feeling that punishment should be
dependent upon moral blameworthiness whereas wrongdoers
should as of old pay innocent victims the cost of the damage ir-
117 COKE, THIRD INSTITUTE 67.
118 Thus, a prisoner who sets a jail on fire in order to escape would seem
under the modern view guilty of arson, even though his motive was not to in-
jure but solely to escape. Cf. Lockett v. State, 63 Ala. 5 (i879); Crow v. State,
I36 Tenn. 333, i89 S. W. 687 (i9i6); Smith v. State, 23 Tex. Cr. App. 357, 363
(i887). But compare Washington v. State, 87 Ga. I2, 99 So. 245 (i891).
119 See 2 POLLOCK AND MAITLAND, op. cit. supra note 6, at 5I2.
120 See id. at 525.
121 See id. at 526.

respective of blameworthiness often helped the judges to draw

the difficultline between crime and tort.122
V. GROWING PARTICULARIZATION OF THE GENERAL MENS REA

WITH RESPECT TO SPECIFIC DEFENSES
The growing insistence after Bracton's day upon moral blame-

worthiness as one of the factors underlying criminality resulted
not only in the development of various technical mental requisites
for different felonies but also in the slow formulation of recog-
nized general defenses to criminal liability. The conception of
blameworthinessor moral guilt is necessarily based upon a free
mind voluntarily choosing evil rather than good; there can be no
criminality in the sense of moral shortcoming if there is no free-
dom of choice or normality of will capable of exercising a free
choice. After the twelfth century new general defenses begin to
take shape such as insanity, infancy, compulsionor the like, based
upon tfie lack of a guilty mind and thus negativing moral blame-
worthiness.
Insanity. Insanity, which r9bs one of the power to make intel-
ligent choice between good and evil, must negative criminal re-
sponsibility if criminality rests upon moral blameworthiness. Be-
fore the twelfth century there are indications that mental disease
as such constituted no general legal defense.123 Gradually, how-
ever, insanity, like self-defense or misadventure,124 became not a
122 Hale,
mentioning certain defenses such as infancy, dementia (lunacy),
ignorance, etc., says, "Ordinarily none of these do excuse those persons that are
under them, from civil actions to have a pecuniary recompense for injuries done,
as trespasses, batteries, woundings; because such a recompense is not by way of
penalty, but a satisfaction for damage done to the party; but in cases of crimes
and misdemeanors, where the proceedings against them is ad paenam, the law in
some cases and under certain temperaments takes notice of these defects, and in
respect of them relaxeth or abateth the severity of their punishments." I HALE,
PLEAS OF THE CROWN I5-I6.
123 Compare 2 STEPHEN, op. cit. supra note 79, at I5I. Coke writes that
"the ancient law was, that if a mad man had killed or offered to kill the king, it
was holden for treason; and so it appeareth by King Alfred's law before the con-
quest." THIRD INSTITUTE 6.
124 See 2 POLLOCK AND
MAITLAND, op. cit. supra note 6, at 480, citing an.ex-
ample of a pardon granted by Henry III on the ground that the inquest showed
" that Maud who is in prison for slaying her two sons killed them in a fit of mad-

MENS REA I005
bar to criminality, but a recognized ground for the granting of

royal pardon.125In early times such a pardon, it seems, would not
relieve against forfeiture of goods.'26 But gradually forfeitures
came to be no longer enforced.127In time insanity becomes a well
recognized defense.128 At first it is only insanity of the grossest
form which relieves against criminal responsibility. Bracton's
conception of a madman was one who does not know what he is
doing, who is lacking in mind and reason, and who is not far re-
moved from the brutes.'29 Fitzherbert, writing in the sixteenth
century, defines the sot or idiot as one " who cannot account or
numbertwenty pence, nor can tell who was his father or mother or
ness and not by felony or malice aforethought." See also 2 STEPHEN, op. cit. supra
note 79, at I5I.
125 In I ROT. PAR. 443b, 3 EDW. II (1310), the king promises that he will
pardon felony only in cases where pardon was anciently granted, "if a man kill
another through misadventure or in self-defense or in madness." In FITZHERBERT,
ABRIDGEMENT, CORONE 351 it is said, "It was found by inquest that a lunatic man
killed a man, etc. whereupon the king granted him a charter of pardon." 3 EDW.
III (1330). See also 26 Lib. Ass. f. I23, pI. 27 (350).
126 "It was presented that a woman, while in a frenzy, had drowned herself
of her own accord. The jury were asked whether the malady took her from
day to day, or only at times, and it was said that it was only at times, where-
fore her chattels were forfeited." FITZHERBERT, ABRIDGEMENT, CORONE 324, 3 Edw.
III (1330). See also id. at 412, 8 Edw. II (13W4).
127 "Presentment was made that one being insane stabbed himself with his own
knife. Recovering his sanity, he received the rites of the Church, and then died
by reason of his self-inflicted wound. There is no confiscation of his chattels."
I SELDEN SOCIETY, EYRE OF KENT, 6 & 7 EDW. II (I313-I4) 8i. See also FITz-
HERBERT, ABRIDGEMENT, FORFEITURE, 33, I2 Hen. III (I228); id., CORONE 244, 22
Edw. III.
128 Y. B. Mich. 2I Hen. VII, pl. I6 (I505). "A man was arraigned for the
murder of an infant. And it was found that at the time of the murder the felon
was of unsound memory (de non saine memoire). Wherefore it was adjudged
that he go free." Fitzherbert says, " He who is of unsound memory hath not any
manner of discretion; for if he kill a man it shall not be felony, nor murder, nor
he shall not forfeit his lands or goods for the same, because it appeareth that he
hath not discretion; for if he had discretion he should be hanged for the same, as
an infant who is of the age of discretion, who committeth murder or felony shall
be hanged for the same." NATURA BREVIUM (I534) 202.
129 Coke repeats Bracton's definition in Beverley's Case, 4 Co. I24b (I603), in
the following language: " The punishment of a man who is deprived of reason and
understanding cannot be an example to others. No felony or murder can be com-
mitted without a felonious intent and purpose; . . . but furiosus non intelligit quid
agit, et animo et ratione caret, et non multum distat a brutis as Bracton saith, and
therefore he cannot have a felonious intent." This definition is really compounded
from two separate statements made by Bracton. See DE LEGIBUS I00, 420b.

ioo6 HARVARD LAW REVIEW
how old he is." 13' Hale, evidently seeking to assimilate the de-
fense of insanity to that of infancy on the basis of lack of mens rea,
writes, " Such a person as labouring under melancholy distempers
hath yet ordinarilyas great understanding,as ordinarily a child of
fourteen years hath, is such a person as may be guilty of treason or
felony." 131 Hale thus assumes that the criminal irresponsibility
of the insane person can be gauged by the same measuring rod as
the criminal irresponsibilityof the child. But the attempt breaks
down in practice; for in reality the sane immature mind is quite
incommensurablewith the insane mature mind.132 Consequently,
Hale's test fails to take foothold in the developing law.'33 The
eighteenth century harks back strongly to the old ethical basis of
criminalresponsibilityand makes the test one of capacity to intend
evil. Could the defendant at the time of the offense " distinguish
good from evil "? 134
Under the influence of the answers of the Judges to the House
of Lords in M'Naghten's Case135 in I843, the eighteenth century
good-and-evil test passes into the nineteenth century right-and-
wrong test, to which some American states have added the irre-
sistible impulse test.'36
Curiously enough, with the recent development of intelligence
130 NATURA BREVIUM (I534) 233b. It should be noted, however, that this
definition is for the purpose of determining, not criminal responsibility, but when
the king may take over an idiot's goods.
131 I HALE, PLEAS OF THE CROWN 30.
132 " The one is healthy immaturity, the other diseased maturity and between
these there is no sort of resemblance." 2 STEPHEN, op. cit. supra note 79, at
I50-51.
133 But individual courts still sometimes seek to apply the child-of-fourteen
test and echo Hale's words. See, e.g., Tracy, J., in Arnold's Case, i6 How. St. Tr.
695, 764 (I724); Seymour, J., in State v. Richards, 39 Conn. 59I, 594 (i873),
where he says, " I am inclined to recommend Lord Hale's rule to your adoption."
134 See Arnold's Case, supra note I33; Earl Ferrers' Case, i9 How. St. Tr.
885, 948 (I760); Bellingham's Case in i COLLINSON, LUNACY (I8I2) 636. In the
latter case Mansfield, C. J., said (p. 673), " The single question was whether
when he committed the offense charged upon him, he had sufficient understanding
to distinguish good from evil, right from wrong, and that murder was a crime
not only against the law of God, but against the law of his country."
135 io Clark & Fin. 200 (I843).
136 Did " the accused at the time of doing the act know the difference between
right and wrong"? Id. at 2io. As to which states adopt and which reject the
irresistible impulse test, see GLUECK, MENTAL DIsORDER AND THE CRIMINAL LAW
(I925) 267-73.

MENS REA 1007
tests and the vogue for ascertaining mental age as distinct from
years of life, some have even in modern times fallen into the error
of Lord Hale, seeking to use the same measuring rod for insanity
as for infancy.137 Fortunately the courts have generally rejected
any such test.138 As was said in Commonwealth v. Stewart,
" Criminal responsibility [under the defense of insanity] does not de-
pend upon the mental age of the defendant nor upon the question
whether the mind of the prisoner is above or below that of the ideal or
of the average or of the normal man, but upon the question, whether the
defendant knows the difference between right and wrong, can under-
stand the relation which he bears to others and which others bear to him,
and has knowledge of the nature of his act so as to be able to perceive
its true character and consequences to himself and to others." 139
In other words, modern courts squarely hold that the guilty mind
which must be proved to convict one suffering with mental disease
is quite different from the guilty mind which must be proved to
convict a child under fourteen.
Infancy. Although the criminal mind of a child differs in
kind from the criminal mind of one mentally diseased, tender
years may serve equally with mental disease to negative blame-
worthiness. However harsh the ancient law regarding infancy
may have been,140 tender years had become recognized by the
137 See, e.g., State v. Kelsie, 93 Vt. 450, io8 Atl. 39I (I9I9) (defendant, nearly
thirty-four years of age, shown to have the mentality of a child of only eight);
State v. Richards, 39 Conn. 59I (I873) (where Lord Hale's test is adopted with
modifications).
138 See Commonwealth v. Stewart, 255 Mass. 9, I5I N. E. 74 (I926); State v.
Schilling, 95 N. J. L. I45, II2 Atl. 400 (I920); Clark v. State, I56 N. E. 2I9 (Ohio
App. I926); Commonwealth v. Trippi, 268 Mass. 227, I67 N. E. 354 (I929) (mental
age of thirteen held no defense). 139 Supra note I38, at I3, I5I N. E. at 74-75.
140 During the early eleventh century the laws of King Cnute recited that
"it was ere this, that the child which lay in the cradle, though it had never
tasted meat, was held by the covetous to be equally guilty, as if it had discretion.
But henceforth I most strenuously forbid it, and also very many things that are
very hateful to God." LAWSOF KING CNUTE c. 77 in I THORPE, op. cit. supra note
26, at 4I9. An earlier law of King Ine, who reigned in the seventh century, provides
that if a man steal " with the knowledge of all his household, let them all go
into slavery. A boy of ten years may be privy to a theft." LAWS OF INE C. 7 in
I THORPE, op. cit. supra note 26, at I07. Compare the NORTHUMBERLAND ASSIZE
ROLLS 323, where it is stated that " Reginald aged four by misadventure slew
Robert aged two; the justices granted that he might have his life and members
because of his tender age."

i oo8 HARVARD LAW REVIEW
beginning of the fourteenth century as a valid defense, and the

basis of the defense seems to have been the lack of a guilty mind.
Children under seven were freed from criminal responsibility
because courts presumed them incapable of exercising an under-
standing discretion and hence unable to possess a criminal in-
tent."'4 In the cases of greatest difficulty, however, where the
defendant stood between childhood and maturity, judges even
this early were making criminal liability depend upon whether
or not the defendant in fact possessed a guilty state of mind. We
catch a glimpse of what was going on in an interesting case de-
cided in I3I3-I4, when Spigurnel,J., sentencing as guilty a lad of
eighteen arraigned for felony, said,
" A lad of eleven was once found guilty before me of having stolen
certain chattels and of having killed a child. Now he carried the dead
body of the child into a close and hid it under some cabbages; and the
fact that, after having killed the child, he also hid its body was taken
as evidence of his heinous malice, and he was condemned. So in this
case, this lad has committed this felony entirely of his own conception,
without any suggestion from his parents; and he must suffer judg-
ment." 142
In other words, the guilt of an infant was made dependent upon

a mental element; malitia supplet aetatem.'43
141 " An infant under the age of seven years, though he be convicted of felony,
shall go free of judgment, because he knoweth not of good and evil; but after
that said age, he shall have, etc." I SELDENSOCIETY, EYREOF KENT, 6 & 7 EDW.
II, I09 (I3I3-I4). In I302 in a trial for homicide one of the defendants was said
to be not twelve years old. Spigurnel, J., thereupon declared, " If he had done
the deed before his age of seven years, he should not suffer judgment; but if before
his age of twelve years, he had done any other deed not involving the loss of life
or limb and against the peace, he should not answer, because before that age he is
not with the peace. . . ." Y. B. 30 & 3i Edw. I (Horwood transl. i863) 5IO. Be-
fore the age of twelve a boy would not be a member of a tithing. There is, never-
theless, in the Register of Writs, f. 30sb, a precedent of a pardon granted to a child
under seven, indicted for homicide. See i HALE,PLEASOF TIIE CROWN27 n.(e).
142 I SELDEN SOCIETY, EYREOF KENT, 6 & 7 Edw. II, I48 (I3I3-I4). See also
FITZHERBERT, ABRIDGEMENT CORONE I I8.
143 See also I2 Lib. Ass. f. 37, pl. 30. "Alice de W. who was of the age of
thirteen years was burned by judgment because she had killed her mistress, and
therefore this was adjudged treason, etc. And it was said that according to the
ancient law no one within age will be hung, nor suffer a judgment of life nor of
member, etc. But before Spigurnel, J., it was found that a child within age killed
his companion, and afterwards hid himself, and he was presently hanged; for he

MENS REA IOO9
By the sixteenth century the law of infancy had taken definite

form. An infant's guilt depended upon his mental state; but in
a day when the defendant accused of felony was not allowed to
take the stand, the determinationof his mental capacity and dis-
cretion was naturally sought through legal presumptions and
through the consequent drawing of somewhat arbitrary age lines
when infants would be conclusively presumed to possess or to
lack the necessary " discretion." Fitzherbert in his Natura Bre-
vium, published in I534, declared that " an infant of the age of
fourteen years hath discretion, as hath been adjudged at such age,
and if he at such age commit felony, he shall be hanged for the
same." 144 Conversely, in the case of Reniger v. Fogossa, it is
said, " If an infant of tender age kills a man, it shall not be
felony, because he has not discretion nor understanding; for
which reason the law imputes it to his ignorance, which is natural
to every one at that age and so there is no fault in him. . . 14
said that because [the child] hid himself he could distinguish between good and
evil. Quia malicia supplet aetatem, etc." Ibid. The same case will be found in
FITZHERBERT, ABRIDGEMENT, CORONE pI. I70.
What the fifteenth century judges meant when they talked about the guilty mind
or " discretion " which must be proved to convict an infant is illustrated by a case
decided in I487. " Another matter was that an infant within the age of nine
years killed an infant of nine years and confesses the felony; and also it was found
that after he had killed him, he hid the body and also the blood which had been
shed on him, and he excused [the blood on his clothes] and said that it was from
his nose. And they held that he should be hung, etc. And Fairfax, said that it
had been said by Sir John Fortescue, that the reason why one is hanged for murder
is for an example to other men, that they should avoid [such misdeeds]; but if
an infant or man lacking discretion kill a man, he should not be hung, for no person
of their discretion would take an example from him." Y. B. Hil. 3 Hen. VII, f. i,
pl. 4 (0488). The following note in Fitzherbert's Abridgement doubtless refers to
the same case: " that an infant of nine years killed another; and it was adjudged
that he be hung because. malitia supplet aetatem; but later they respited the execu-
tion so that he might have his pardon. ..." CORONE57. See also Y. B. Mich.
3 Hen. VII, pl. 8 (0488), CORONE5I, where it is stated that " the Recorder of Lon-
don showed how an infant between the age of ten and twelve years was indicted
for murder, and he was questioned about this; and he said that he kept sheep with
him who is dead, and a quarrel arose between them, wherefor he struck him on the
head, and then in the chest and then on different parts of the body until he was
dead; and then he dragged the body into the corn. And the justices because of his
tender age and because he told of the matter in full, respited the judgment; and
several of the justices said he was worthy of death." Compare also the Note in
Y. B. Pasch. 25 Edw. III, f. 85, pI. 28 (I350), and Y. B. Mich. 35 Hen. VI, f. ii, pl.
I8 (I456). 144 See NATURA BREVIUM (7th ed. I730) 202, 466D.
145 Plowd. I, I9 (1550).

IoiO HARVARDLAW REVIEW
In I629 a boy of eight was found guilty of burning two barns

"and it appearing upon examination that he had malice, revenge,
craft, and cunning, he had judgment to be hanged, and was
hanged accordingly."146
Finally, by the second half of the seventeenth century when
Hale wrote his Pleas of the Crown, the precise age lines known to
modern law when " discretion " will be conclusively presumed
to be present or absent were well established.
"If an infant within age be infra ctatem infantic, viz. seven years old,
he cannot be guilty of felony, whatever circumstances proving discre-
tion may appear; for ex presumptione juris he cannot have discretion
and no averment shall be received against that presumption."147 "It
is clear that an infant above fourteen and under twenty-one is equally
subject to capital punishments, as well as others of full age; for it is
prcsumptio juris that after fourteen years they are doli capaces, and
can discern between good and evil." 148
As to infants between seven and fourteen, although such are

" not prima facie presumed to be doli capax, . . . if it appear to the
court and jury that he was doli capax, and could discern between good
and evil at the time of the offense committed, he may be con-
victed...." 149 " But in cases of this nature it is necessary that very
strong and pregnant evidence ought to be to convict one of that age, and
to make it appear that he understood what he did." 150
Since Hale's day the law has not departed from these age lines.
Most of the later developments have concerned the problem of
exactly what mental state must be proved to convict a child be-
tween seven and fourteen years old.
146 See i HALE, PLEAS OF THE CROWN 25 n.(u).

147 Id. at 27-28.
148 Id. at 25. Hale goes on to say, " Experience makes us know that every day
murders, bloodsheds, burglaries, larcenies, burning of houses, rapes, clipping and
counterfeiting of money are committed by youths above fourteen and under twenty-
one; and if they should have impunity by the privilege of such their minority, no
man's life or estate could be safe." Ibid.
149 Id. at 26. Hale divides those between seven and fourteen into
two groups
separated by the age line of twelve. Little real distinction seems to attach to his
division, however, except that in the younger group conviction shall be only upon
" very strong and pregnant evidence."
150
Id. at 27.

MENS REA IO I
Compulsion. The growing emphasis on the mental element

in crime was also manifested by another class of cases where a
free exercise of a normal intelligence could not be shown. If
the defendant could prove that he acted under duress, he could
not be said to have a mens rea; thus compulsion came to be a
well-recognizeddefense. As early as the fourteenth century the
fact that criminal acts had been committed under fear of death
at the command of rebels seems to have been recognized as a
good defense against treason."5' During the reign of Henry V,
those who had furnished victuals to Sir John Oldcastle and his
accomplices, then in rebellion, were acquitted by judgment of the
court because it was found to be done pro timore mortis et quod
recesserunt quam cito potuerunt.'52 Bacon in his Maxims sets
forth necessitas as a recognized defense.'53 The law concerning
compulsionhas lived on with little change down to our own day.'54
It is a defense rarely used 155 and its outlines are not yet settled
with precision. It rests essentially upon the lack of any guilty
mind; for if a defendant through fear of death or grievous bodily
harm is forced to choose a given course of conduct not involving
the taking of life he can not be said to have a blameworthymind.
But the defendant who chooses to take an innocent life to save
his own does manifest a guilty mind, and the courts hold that
such a man can be convicted.'56
Coercion. Similarly, although in Bracton's day the wife act-
ing under the command of her husband and stealing with him
151 See i HALE, PLEAS OF THE CROWN 49, citing 2I Edw. III, Mich. Coram Rege
Rot. IOI, Linc. See also I4 Edw. II, Mich. B. R. Rot. 6o, cited in i HALE, op. cit.
supra, at 56-58.
152 See Mich. 7 Hen. V, Coram Rege Rot. 20, Heref., cited in i HALE, PLEAS OF
THE CROWN 50.
153 See MAXIMS, Reg. 5. " The law chargeth no man with default where the
act is compulsory, and not voluntary, and where there is not a consent and election;
and therefore if either there be an impossibility for a man to do otherwise, or so
great a perturbation of the judgment and reason as in presumption of law man's
nature cannot overcome, such necessity carrieth a privilege in itself." Ibid.
154 See M'Growther's Case, Fost. C. L. I3 (I746); Rex v. Crutchley, 5 C. & P.
I33 (1831); People v. Merhige, 2I2 Mich. 6oi, i8o N. W. 4I8 (I920).
155 See 2 STEPHEN, op. cit. supra note 79, at io6.
156 Arp v. State, 97 Ala. 5, I2 SO. 30I (I892); People v. Martin, I3 Cal. App. 96,
io8 Pac. I034 (I9IO); State v. Nargashian, 26 R. I. 299, 58 Atl. 953 (I904); Queen
v. Dudley & Stephens, I4 Q. B. D. 273 (1884).

was equally liable with him,"' it was held as early as the time of
Edward III, that a wife who acted under the coercion of her
husband could avoid criminal responsibility by proving the coer-
cion.158 The law concerning this defense had rather a curious
development, due doubtless to the fact that as time went on an
ever-growing circle of men could avoid the death penalty for
clergyable felonies by pleading benefit of clergy, whereas women
until the end of the seventeenth century had no such defense.159
As a result courts allowed the defense of coercion in the case of
married women with far greater indulgence than the defense of
compulsion in cases of rebellion or duress; no threat of death
or serious bodily harm need be shown, and the mere acting in
the presence of the husband of itself raised a presumption of
coercion. The defense assumed such generous outlines in various
prosecutions for larcenies that it could not be allowed in cases
of treason or murder (which were non-clergyable offenses), and
probably not in cases of robbery. In I664 it was extended to a
case of burglary."60 Today the married woman's defense of co-
157 BRACTON, DE LEGIBUS I5ib. "Likewise, what will it be if the wife be an
accomplice with the husband or has confessed that she has given counsel and aid to
her husband. Shall they not both be liable? . . . The woman ought not therefore
in every case to be set free, on account of her counsel, aid and consent; just as they
share in the crime, so they will share in the punishment. And although she is
bound to obey her husband, nevertheless in the more violent acts or robberies she
ought not to obey him." Ibid.
158 27 Lib. Ass. f. I37, P1. 40 (I353). "A woman was arraigned for that she
had feloniously stolen two shillings' worth of bread; and she said that she did it
by the command of him who was her husband at that time. And the Justices did
not wish to hang (the prendre of later editions is a mistake for pendre: see the
J. Rastell edition of I529) her on her confession out of pity, but took an inquest;
by which it was found that she did it under coercion from her husband in spite
of herself (maugre le soe) ; wherefore she was then acquitted; and it was said that
[what was done] under the command of the husband without other coercion would
be no sort of felony." In Brooke's Abridgement, the report of the case adds:
" the reason being that the law takes it for granted that the woman who is under
the potestas of the man, does not dare to speak against her husband." BROOKE,
ABRIDGEMENT, CORONE (I568) io8. The case is also briefly reported in FITZHER-
BERT, ABRIDGEMENT, CORONE I99. See also id. I60; STAUNFORD, PLEAS OF THE
CROWN 2 6.
159 See i HALE, PLEAS OF THE CROWN 46; 2 STEPHEN, op. cit. supra note 79,
at io6; Kidd's note to 4 BL. COMM. *28 (Jones ed. 2I95, n.7.)
160 Kelyng 3I. " If a man and his wife go both together to commit a burglary,
and both of them break a house in the night, and enter and steal goods . . . it is
no felony in the wife; for the wife being together with the husband in the act, the

MENS REA 11OI3
ercion bears little relationship to the defense of compulsion,

although both were originally evolved from the same general
principle that without a free exercise of choice one can not be
said to have a guilty mind. As modern decisions make very clear,
the circumstances required to prove a guilty mind on the part of
a married woman are vastly different from those necessary to
prove a guilty mind,on the part of one acting under duress."6'
Intoxication. In the case of drunkenness conflicting principles
come into play. Intoxication may be sufficiently gross to nega-
tive the existence of a guilty mind and, as such, to excuse from
moral blameworthiness. But, on the other hand, the act of get-
ting drunk may of itself be considered morally blameworthy.
It was for this reason that, in a day when criminal liability
strongly connoted moral delinquency, the absence of an evil in-
tent caused by intoxication was not allowed as a defense against
criminal liability.162 Only after criminality had lost something
of its strong, early flavor of moral delinquency did intoxication
come to be recognized as a possible defense because it nega-
tived some requisite mental element, and then only under ex-
ceptional circumstances.
" If a mad man commit a felony," writes Bacon,163" he shall
not lose his life for it, because his infirmity came by the act of
God; but if a drunken man commit a felony, he shall not be ex-
cused because his imperfectioncame by his own default." 164 Coke
law supposeth the wife doth it by coercion of the husband, and so it is in all
larcenies; but as to murder, if husband and wife both join in it, they are both
equally guilty." Ibid.
161 In the former case any sort of actual duress seems to be sufficient, and the
mere presence of the husband raises a legal presumption of such duress. In the
latter, apparently no duress will be sufficient except " a well-grounded apprehension
of death or serious bodily harm." People v. Merhige, 2I2 Mich. 6oi, i8o N. W.
4I8 (I920).
162 Theold reason still lives on. " The reason why ordinary drunkenness is no
excuse for crime is that the offender did wrong in getting drunk." 2 STEPHEN,
op. cit. supra note 79, at I65.
163 Loc. cit. supra note I53.
164 The sixteenth century law will also be found stated in the case of Reniger v.
Fogossa, Plowd. i, I9 (I550): " But where a man breaks the words of the law by
voluntary ignorance, there he shall not be excused. As if a person that is drunk
kills another, this shall be felony, and he shall be hanged for it, and yet he did it
through ignorance, for when he was drunk he had no understanding nor memory;
but inasmuch as that ignorance was occasioned by his own act and folly, and he

in his report of Beverley's Case 165 says, " Although he who is

drunk is for the time non compos mentis, yet his drunkennessdoes
not extenuate his act or offense, nor turn to his avail; but it is
a great offense in itself, and therefore aggravates his offense, and
doth not derogate from the act which he did during that time,
and that as well in cases touching his life, his lands, his goods, as
any other thing that concerns him." Hale166 and Hawkins167
repeat the same doctrine, which continues as the law down to
the present day. It is only within fairly modern times, with the
growing realization that criminal liability is to be sharply dif-
ferentiated from moral delinquency, that intoxication has been
allowed as an indirect defense insofar as it negatives the exist-
ence of a specific intent required for certain crimes.168
Mistake of fact. The necessity of a mens rea to establish
criminal responsibility is perhaps most clearly emphasized by
cases where the defendant acts under a reasonable mistake of
fact in such a way that, had his erroneous supposition been true,
he would be guilty of no crime. Courts do not seem to have
formulated mistake of fact as a recognized general defense until
well into the seventeenth century. But long before that - in fact
ever since the days when criminal responsibility became linked
with moral delinquency- cases arose where the defendant, acting
quite innocently upon some reasonable or unavoidable mistake
of fact, caused death and yet escaped conviction.169 As early as
might have avoided it, he shall not be privileged thereby. And Aristotle says that
such a man deserves double punishment because he has doubly offended, viz. in
being drunk to the evil example of others and in committing the crime of homicide."
Double punishment is advocated by some of the civilians, such as Bartholinus and
others. Compare i HALE, PLEAS OF THE CROWN 32, n.(h).
165 CO. I25a. See also Coke's gossiping remarks about drunkenness in THIRD
INSTITUTE 200.
166 See i HALE, PLEAS OF THE CROWN 32: "By the laws of England such a
person i.e., one intoxicated, shall have no privilege by this voluntary contracted
madness, but shall have the same judgment as if he were in his right senses."
167 See i HAWKrINS, PLEAS OF THE CROWN 3: "And he who is guilty of any
crime whatever through his voluntary drunkenness, shall be punished for it as much
as if he had been sober."
168 See, e.g., Hopt v. People, IO4 U. S. 63I (i88i) (murder); State v. Johnson,
40 Conn. I36 (I873) (murder); Simpson v. State, 8i Fla. 292, 87 SO. 920 (I92I)
(breaking and entering with intent to commit rape); People v. Jones, 263 Ill. 564,
I05 N. E. 744 (I9I4) (burglary); People v. Walker, 38 Mich. I56 (I878) (larceny);
Regina v. Doody, 6 COx C. C. 463 (I854) (attempt).
169 Indeed, with respect to those felonies inherently involving a mental element,

MENS REA IOI5
the time of Edward IV, we have the record of the case of Sir
William Hawksworth, who, weary of his own life, commanded
his parker to shoot the next trespasser he met in his park who
would not stand nor speak. In the night he entered his park,
and upon refusing to stand or speak he was shot and killed by the
parker. Although the latter was acquitted, it was not upon the
ground of a reasonable mistake of fact, but under the statute of
Malefactores in parcis 170 which authorized parkers to kill tres-
passers in parks refusing to yield or stand.17' A similar case is
cited by Hale, where a master seeking to guard his cornfield
against the depradations of deer set his servant to watch in the
night with a charged gun, ordering him to shoot whenever he
heard anything rush into the standing corn. The master stand-
ing in another corner of the field rushed into the corn and the
servant
"accordingto his master'sdirectionshot and killedhis master.. It
was agreedon all hands,this was neitherpetit treason,nor murder,but
whetherit were simplehomicide,or per infortunium,was a great diffi-
culty: First, the shootingwas lawful when the deer came into the
corn; . . . again the error of the servant was caused by the master's
direction,and his own act; but if it had been a strangerthat had been
killed, it had been homicide,and not misadventure;on the other side,
the servantwas to have taken morecare . . .; and thereforefor the
omissionof due diligence,and better inspection,beforehe adventured
to shoot, it might amount to manslaughter,and so be capital; and
this seemsto be the trueropinion."172
The case is interesting, not only as an early recognition of the
modern doctrine of criminal negligence, but also because of the
dictum that had there been no negligence the servant would have
been guilty in spite of his innocent mistake unless the mistake
were caused by the victim. There seems to have been at that
time no well-recognized general doctrine that a reasonable mis-
mistake goes back to very early days. Britton excepts from liability for burglary
" those who enter into any tenement, of seisin in respect of some right which they
think they have." BRITTON, IcC. cit. supra note I05. This would seem, however,
to refer to a mistake of law. Compare BRACTON,NOTE BooK (Maitland's ed. i887)
P1. 496.
170 2I EDW. I (I293).
171 The case is set forth in i HALF, PLEAS OF THIECROWN 40.
172 Ibid.; cf. also id. at 476.

ioi6 HARVARD LAW REVIEW
take of fact, by negativing the existence of the requisite mens rea,

frees the defendant from criminal responsibility.173 Hale classi-
fies the defense in both the foregoing cases under a killing by
"casualty and misfortune."
The modern doctrine of mistake or ignorance of fact is built
largely upon Levett's Case,"74 decided in I638. In this case the
defendant, reasonably but erroneously supposing that Frances
Freeman, an intruder in his house in the night, was a burglar,
killed her with a thrust of his rapier. The court resolved it was
not manslaughter,for the defendant " did it ignorantly without in-
tention of hurt to the said Frances." After this decision courts
evolved the important well-recognized doctrine that one acting
under a reasonable mistake of fact is not criminally liable if, had
his erroneoussuppositionbeen true, he would not have been liable.
VI. GENERAL CONCLUSIONS

A study of the historical development of the mental requisites
of crime leads to certain inescapable conclusions. In the first
place, it seems clear that mens rea, the mental factor necessary to
prove criminality, has no fixed continuing meaning. The concep-
tion of mens rea has varied with the changing underlying concep-
tions and objectives of criminal justice. At the beginning when
the object of criminal administrationwas to restrict and supplant
the blood feud, the mental factor was of importance insofar as it
determined the provocative nature of the offense; a malicious
burning of another's dwelling house being far more provocative
than an accidental one, judges must distinguish between mali-
cious and accidental burnings. Under the dominating influence
of the canon law and the penitential books the underlying ob-
173 But compare the Doctor and Student Dialogues, published in I5I8, where it
is said, " Ignorance of the law (though it be invincible) doth not excuse as to the
law but in few cases; for every man is bound at his peril to take knowledge what
the law of the realm is, as well the law made by statute as the common law. But
ignorance of the deed, which may be called the ignorance of the truth of the deed,
may excuse in many cases." Dialogue II, c. 46.
174 Cro. Car. 538. The case is recited by Jones, J., rendering the opinion in
Cook's Case, id. 537. It is repeated by Hale in his chapter " concerning Ignorance,
and how far it prevails to excuse," and in his chapter on " chance-medley or
killing per inf ortunium." i HALE, PLEAS OF THE CROWN 42, 474. It is also re-
peated in i EAST, PLEAS OF THE CROWN (I803) 274.

MENS REA IOI7
jective of criminal justice gradually came to be the punishment

of evil-doing; as a result the mental factors necessary for criminal-
ity were based upon a mind bent on evil-doing in the sense of
moral wrong. Our modern objective tends more and more in the
direction, not of awarding adequate punishment for moral wrong-
doing, but of protecting social and public interests. To the extent
that this objective prevails, the mental element requisite for
criminality, if not altogether dispensed with,175is coming to mean,
not so much a mind bent on evil-doing as an intent to do that
which unduly endangers social or public interests.176 As the
underlyingobjective of criminal administrationhas almost uncon-
sciously shifted, and is shifting, the basis of the requisite mens rea
has imperceptibly shifted, lending a change to the flavor, if nbt
to the actual content, of the criminal state of mind which must be
proved to convict.
Of course, established legal formulkeand recognized doctrines
continue. No abrupt changes are discernible. We still con-
vict for cases of malicious houseburningand not for purely acci-
dental ones. But every change in the underlying objective colors
the application of the old doctrines and leads to gradual modifi-
cation. Although we convict for " malicious " burnings, " mal-
ice " in such cases no longer means the intent to injure in a feud-
provoking way, nor does it any longer mean general malevolence
or a mind bent upon evil. It has acquired a technical signification.
Today it means simply a narrowspecific intent to burn a house oc-
cupied as a dwelling; the motive may be entirely free from malevo-
lence or desire to injure.177
But although courts do not, because of a changed objective in
the law, throw over old precedents and former lines of decisions
175 We are moving so fast in this direction that for an increasing number of
modern statutory offenses courts are today convicting without proof of any mens
rea at all. This subject is to be dealt with in a later paper.
176 Although this is the modern tendency, it is not meant to suggest that we
have reached a point where the mental element necessary for conviction is or can
be completely divorced from ethical concepts. In the last analysis criminality
always has been and always will be inseparably connected with and dependent upon
ethical concepts. Illustrations lie on every hand. The common setting off of first
degree from second degree murder often depends upon proof of acts which reveal
a thoroughly depraved state of mind and the same is true of other felonies. What
is meant is, that in the formulation of new doctrines there is noticeable a shift of
emphasis and a changed direction. 177 See p. I003, SUpra.

ioi8 HARVARD LAW REVIEW
wholesale, something of the altered flavor in the meaning of mens

rea can be sensed in certain decisions betraying new trends of
thought. For instance, under the older view, when the object of
criminal administrationwas conceived to be the awarding of pun-
ishment in accordance with moral deserts, it seemed clear to
English judges that the parent who refused to summon medical
help for his dying child because he honestly and sincerely believed
that prayer or other form of treatment was more efficaciousshould
not be convicted.178 With the growing sense that the object of
criminal administration is to protect social and public interests,
however, certain courts confronted for the first time with this
situation are beginning to reach a directly opposite conclusion,
holding such parents guilty of manslaughter.179Social and pub-
lic interests require protection from those with dangerous and
peculiar idiosyncrasies as well as from those with evil designs.
The tide of law seems to be distinctly setting in this latter direc-
tion.180 The Indian who is posted as a sentry to guard an en-
178 Regina v. Wagstaffe, Io Cox C. C. 530 (i868); Regina v. Hines, I3 COx

C. C. II4n.
179 Commonwealth v. Breth, 44 Pa. Co. Ct. 56 (19I5); Rex v. Brooks, 9 B. C.
I3, I B. R. C. 725 (1902). See also People v. Pierson, I76 N. Y. 20I, 68 N. E. 243
(I903).
It is clear that mens rea means something quite distinct from mere immorality of
motive. An act performed for a laudable or even religious motive may constitute
a crime, just as an act performed for a depraved or immoral purpose may not con-
stitute a crime. The. Mormon who marries a second wife during the lifetime of
his first (Reynolds v. United States, 98 U. S. I45 (I878)), or the devout believer who
opens the grave of his mother buried in a dissenter's burying ground so that he
may have her buried in holy ground (Regina v. Sharpe, 7 COXC. C. 2I4 (I857))
may be actuated by the highest religious or ethical motives; certainly neither intends
to commit any moral wrong. But as they intend acts which unduly endanger social
interests they have a mens rea and should be convicted. See also Davis v. Beason,
I33 U. S. 333 (I890); Long v. State, I92 Ind. 524, I37 N. E. 49 (I922)
(defendant in entering into second marriage believed he was obeying command of a
higher power); State v. White, 64 N. H. 48, 5 Atl. 828 (i886) (Salvation Army
beating drums in street); United States v. Harmon, 45 Fed. 4I4 (D. Kan. I89I)
(mailing obscene publications for purpose of correcting certain sexual abuses);
Commonwealth v. Has, I22 Mass. 40 (I877) (violation of Sunday law by one who
conscientiously believed that the seventh day should be observed as the Sabbath).
180 England has now reached this result by statute. See 3I & 32 VICT. c. I37,
? 37 (I869), which was repealed and re-nacted by 57 & 58 VICT. c. 4I (I894).
Under this legislation English courts now convict for manslaughter. See Queen v.
Downes, L. R. I Q. B. D. 25, I3 Cox C. C. III (I875); Regina v. Senior, I9 Cox
C. C. 2I9 (I898).

MENS REA IOI9
campment and who shoots at an escaping figure which he honestly

supposes to be an evil spirit seeking to do harm, and thereby kills
a man, would probably not have been convicted a hundred years
ago when the conception of mens rea was based largely on moral
blameworthiness; today he is held liable for manslaughter.'8' In-
deed, the strong current of modern decisions toward applying in
the criminal law an objective standard, to which all must measure
up at their peril,'82in place of the older subjective standard, under
which defendants are punishable only for failing to measure up to
their own capacities, is only another manifestation of the same
trend of the criminal law.'83 Certain it is that in modern times
we have moved far from the old fourteenth century conception of
mens rea as a mind bent on moral wrongdoing.
In the second place, it is equally clear that whatever the early
conception of mens rea may have been, as the law grew the requi-
site mental elements of the various felonies developed along dif-
ferent lines to meet exigencies and social needs which varied with
each felony. The original requirement of an underlying evil
motive derived from the canonists' conception of moral guilt came
to be supplanted by the requirement of specific forms of intent
evolved separately for each particular felony. In this way the
criminal law seems to have progressed from motive to intent.184
181 Regina v. Machekequonabe, 28 Ont.

Rep. 309 (I897).
182 See, e.g., Commonwealth v. Pierce, I38 Mass. I65 (I884).
5o-5I: " [The standards enforced by the
183 See HOLMES, THE COMMON LAW
criminal law] are not only external, . . . but they are of general application. They
do not merely require that every man should get as near as he can to the best con-
duct possible for him. They require him at his own peril to come up to a certain
height. They take no account of incapacities, unless the weakness is so marked as to
fall into well-known exceptions, such as infancy or madness. They assume that
every man is as able as every other to behave as they command. If they fall on
any one class harder than on another, it is on the weakest. For it is precisely to
those who are most likely to err by temperament, ignorance, or folly, that the
threats of the law are the most dangerous."
184 For instance, as suggested above, the malitia
required for arson in the early
days referred clearly to the malevolence of the motive; today the mental require-
ment has narrowed down to the intent to burn another's house unlawfully, ir-
respective of the motive. Similarly, the underlying evil design which first set off
non-clergyable killings from clergyable ones, known as " malice," originally meant
little more than general malevolence. But the meaning attached to " malice afore-
thought " today is no longer an underlying evil motive, but the specific immediate
intent, it may be to kill, or it may be not to kill or even to injure, but to do some

As a result the mental requisites for each felony came to differ

widely from those of the others. Constant and never-ending dif-
ferentiation of apparently similar but essentially dissimilar situa-
tions is inherent in the growth of law. Insofar as the more precise
defining of the mental element required for each felony followed
this constant effort to differentiate right from wrong, it was a
healthy movement and made for a more predictable and therefQre
less arbitrary law. On the other hand, as law grows to maturity
there comes a sound tendency to generalize and group together
highly particularized forms of wrongdoing, a trend strongly
marked today in the law of torts and rather less so in the law of
crimes. Effective criminal administration may be greatly ham-
pered by undue particularization of closely allied crimes. The
combination of common-law larceny, embezzlement, and false
pretenses into a single statutory larceny185has proved highly
advantageous. The slow progression of the criminal law from
motive to intent has constituted, therefore, a healthy growth;
but one must guard against a too minute particularizationwhich
runs counter to the modern movement for generalizing and group-
ing together crimes of the same general nature.
Since crimes involving a specific intent vary as widely with
regard to the requisite intent as with the requisite act, it is hardly
necessary to add that a study of the specific intent required for
one such crime is of but little assistance in determiningthe precise
mental element necessary for another.186It is hopeless to find any
general universal concept of mens rea applicable to all such crimes
alike. Generalizationsin this field are dangerous. Even though
the statutory requirementsfor a specific intent are laid down for
two crimes in the same words, not infrequently the meanings to be
attached to the same word formulkediffer vastly.
act with cause to know that it unwarrantably endangers human life, or to commit
some felony of a kind which is customarily dangerous, or to resist lawful arrest.
185 See, e.g., MASS. GEN. LAWS (I92I) C. 266, ? 30; NEW YORK PENAL LAW
? I290.
186 The " malice "
required for murder in modern law is not even commensurable
with the " malice " required, for instance, for arson. So, the highly technical and
complex meaning evolved for the animus furandi of larceny bears no relation what-
ever to the mental requisite of burglary, i.e., a specific intent to commit some felony
within the domus entered. Most common-law felonies have now been defined by
statutory enactments which often make the divergencies in mental requisites still
more pronounced. The same is true of common-law and statutory misdemeanors.

MENS REA I02 I
In the third place, the strong tendency of the early days to

link criminal liability with moral guilt made it necessary to
free from punishment those who perhaps satisfied the require-
ments of specific intent for particular crimes but who, because
of some personal mental defect or restraint, should not be con-
victed of any crime. The person who lacked a normal intelli-
gence because of mental disease, or who lacked discretion because
of tender years, or who through fear of death lacked the power to
choose his conduct- all these must escape punishment if crim-
inality was to be based upon moral guilt. Thus, there developed
certain well-recognized defenses in criminal law, affecting one's
general capacity to commit crime, originally based upon and
springing from the same lack of a blameworthy mind but, as the
law developed to meet new needs, becoming more and more dif-
ferentiated and fixed in arbitrary molds. Hidden mental phe-
nomena are difficult to prove at best; and in a day when those
being tried for felony were not allowed to take the stand in their
own defense, courts were almost compelled to evolve rough and
ready rules and external tests to determine capacity for criminal
liability. Thus, in cases of infancy, resort was had to arbitrary
age lines to assist in the determination of the question of discre-
tion; in cases of married women, resort was had to a rebuttable
presumption of law which, if not disproved, allowed an acquittal
even where no benefit of clergy could be pleaded; in cases of
insanity an arbitary fixed formula was developed under which the
task of determining criminal capacity could in effect be handed
over bodily to a jury, who might be expected to apply to the
determination rough common sense. The presumptions and ar-
bitrary rules applicable in cases of infancy would clearly not be
useful in cases of coverture or insanity, and vice versa. Conse-
quently there grew up in time very divergent defenses, constitut-
ing totally unrelated rules and doctrines of substantive law. Each
of these substantive defenses 187 has its own doctrines and prin-
ciples; it is quite futile to seek to discover the meaning of mens
187 The term " substantive defense " is used to designate a defense afforded by
the substantive law, now well recognized as such and crystallized as a fixed, inde-
pendent doctrine, no longer resting upon general principles of " mens rea." It is
not meant to suggest thereby any procedural implications as to burden of proof, or
the like.

rea by any common principle of universal application running

alike through all the cases.
In the fourth place, there remains, after subtracting the cases
involving specific intent as constituent elements of particular
crimes and the cases involving the mental capacity of particular
persons, a certain residuum of cases where criminality is absent
by reason of the general lack of a law-breaking or criminal mind.
Two distinct groups are clearly recognizable-cases where the
defendant acts under a reasonable mistake of fact,188 and cases
where the defendant intends an act constituting only a trivial in-
fraction of the law which without the defendant's negligence re-
sults in death or some serious unintended criminal consequence.189
The lack of mens rea in these cases developed as a recognized
defense considerably later than in the specific intent and general
personal incapacity cases and the law relating to them is still in a
formative and somewhat unsettled state. In these, as in the other
cases, the law is slowly building up divergent substantive defenses
based on mistake of fact, or lack of foreseeability of consequences;
and hence, in these cases also, it is futile to draw conclusions about
the general character of mens rea from one defense which will be
necessarily applicable to the other.
" In these various ways the law, starting from the idea that a
mens rea or elementof moralguilt is a necessaryfoundationof criminal
liability,has so definedand elaboratedthat idea in referenceto vari-
ous sorts of crimes,that it has come to connotevery many different
shades of guilt in differentconnections. But, though mens rea has
thus come to be a very technical conception with different technical
meaningsin differentcontexts, it has never wholly lost its natural mean-
ing; and, because its natural meaning has never been wholly lost sight
of, the necessity for its presence, in some form, has supplied the prin-
ciple upon which many of the circumstances,which will negative crimi-
nal liability, are based. These, in their turn, have been so developed
that they have become the foundation of different bodies of technical
doctrine; and in these ways a large part of our modern criminal law
has been developed."190
188 See Levetts Case, Cro. Car. 538 (I638), discussed p. ioi6, supra.
189 See, e.g., Potter v. State, I62 Ind. 213, 70 N. E. 129 (1904); Dixon v. State,
104 Miss. 4IO, 6i SO. 423 (1913); State v. Horton, 139 N. C. 588, 5I S. E. 945
(1905) ; State v. Trollinger, I62 N. C. 6I8, 77 S. E. 957 (19I3).
190 8 HOLDSWORTII, op. cit. supra note 6, at 446.

MENS REA I023
We have now reached a point where we can understand some-

thing of the realities of the underlying problem of mens rea. In
view of the long development and widely differing forms of the
mental element requiredfor conviction in differentgroups of cases,
it is manifestly futile to seek to attach to that much abused term
any single precise meaning. Neither general moral blameworthi.-
ness, nor the intent to do that which provokes general social dis-
approval, nor the intent to commit some breach of contract or tort
or crime, nor any other single form of intent will fit all cases.
Yet the great majority of the leading writers on criminal law
have sought to analyze mens rea into some single intent or state
of mind. Blackstone defines it as a " vicious will." 191 Just what
constitutes a " vicious will," however, no one can say. Bishop,
so far as one can judge from his strikingly vague statements,
makes mens rea mean the intent to do what is morally wrong.192
Bouvier, on the other hand, defines mens rea as the " intention to
commit a crime."193 May leaves one somewhat uncertainwhether
191 " To make a complete crime, cognizable by human laws, there must be both
a will and an act. . . . As a vicious will without a vicious act is no civil crime, so,
on the other hand, an unwarrantable act without a vicious will is no crime at all. So
that to constitute a crime against human laws, there must be, first, a vicious will,
and secondly, an unlawful act consequent upon such vicious will." 4 BL.
COMM. *2I
192 "There can be no crime, large or small, without an evil mind. In other
words, punishment is the sequence of wickedness. . . It is therefore a principle of
our legal system, as probably it is of every other, that the essence of an offense is
the wrongful intent, without which it cannot exist. . . . It will be seen that the
law for its universal rule simply requires the intent to be evil." i BISHOP, op. cit.
supra note 3, ?? 287, 2gIa. Bishop continues in the same vein: " In the sponta-
neous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. . . . It is, further, the doctrine of the law, superior to all
others that no man is to be punished as a criminal unless his intent is wrong."
? 290. " We shall find that some of the specific offences call for a corresponding
form of evil in the intent, others demand only evil in general, and still others are
constituted only when two different evil intents combine." ? 2gIa. " Since an
evil intent is an inseparable element in every crime, any such mistake of facts as,
happening to one honestly endeavoring to discharge all legal and social duties, shows
the act to have proceeded from no sort of evil in the mind, takes from it its in-
dictable quality." ? 303.
193 I LAW DICTIONARY (ioth ed. i86o) sub Intention, ? 3, 647: " Every crime
must have necessarily two constituent parts, namely, an act forbidden by law, and
an intention. The act is innocent or guilty just as there was or was not an intention
to commit a crime."

I024 HARVARDLAW REVIEW
mens rea means anything or nothing.194 Wharton is equally

vague."95Even as careful a writer as Kenny, after attempting to
analyze the meaning of " the usual mens rea," is beguiled into a
discussion of degrees of mens rea, saying, " A more complex and
special (and therefore more guilty) state of mind than the usual
mens rea is required for some particular crimes." And again,
" Some less complex and less guilty state of mind than the usual
mens rea is sometimes by statutory enactment . . . made suffi-
cient for the mental element in criminalguilt." 196 Exactly what is
meant by a " more guilty " and a " less guilty " state of mind,
Professor Kenny does not make clear.
Courts and judges are in even worse quagmires of thought.
The two leading cases in England on the subject are Regina v.
Prince 197 and Regina v. Tolson."98
In Regina v. Prince, Brett, J. (later Lord Esher, M. R.) held
that mens rea means an intent to commit some criminal offense;
194 " Aside from cases of negligence it is ordinarily necessary, in order to render
a man criminally responsible, that there should be a voluntary act by him that
the law of crimes forbids. This is often expressed in the proposition that when a
man does an act that the law thus forbids, the law will presume the existence of
a criminal intent and so punish him. . . . But the unlawfulness of the act is a
sufficient ground upon which to raise the presumption of criminal intent." MAY,
LAW OF CRIMES (3d ed. I905) ? 27. " The criminal intent need not be an intent to
commit the exact offence actually complained of. . . The offence he intended to
do must at least be one which in itself was sinful. Whether a sinful or immoral
intent alone would be sufficient does not seem clear. Strictly speaking, there is no
criminal intent to carry over to the unexpected result, and it would seem, therefore,
that the mental element necessary to make the crime could not be found." Id. ? 28.
195 Wharton defines the criminal state of mind (which he terms " malice ") as
consisting " in any unlawful act, wilfully done, without just excuse or legal occasion,
to the injury of another person." I CRIMINAL LAW (iith ed. 1912) ? I46. He
goes on to say, " It may properly be said not to be a thing or entity, but rather a
mental state or condition prompting the doing of an overt act without legal excuse
or justification, from which act another suffers injury. Where the act is done with
the deliberate intention of doing bodily harm to another, it is called express malice;
otherwise the malice is inferred or presumed from the act. Evil intent is legal
malice; so also is gross and culpable negligence whereby another suffers injury."
Ibid. Wharton speaks of malice as " having the same meaning as dolus " (id.
? I37); and then enters upon various classifications such as dolus determinatus and
dolus alternativus, which seem empty of result and leave one considerably mystified
as to the mental requisites of crime in English law. Id. ?? 140-42.
196 See KENNY, OUTLINES OF CRIMINAL LAW (12th ed. 1926) 42-43.
197 L. R. 2 C. C. R. I54 (i875).
198 23 Q. B. D. i68 (I889).

MENS REA I025
other judges held it to mean an intent to do anything which

is wrong legally (including tort); eight judges even went so far
as to hold it to mean an intent to do anything that is wrong morally
-a view which was strongly supported by at least two of the
judges in the important case of Regina v. Tolson."99Although this
last doctrine has been approved by numerous judges and text-
writers, it inescapably leads to fresh confusion and endless uncer-
tainty. No two judges have the same standards of morals. To
make the test of criminality dependent upon the line which sepa-
rates morality from immorality is to confuse conscience, which
must always be a matter of individual, internal standards, with
law. The case of Regina v. Prince instead of clearing up the diffi-
culties, undoubtedly did more to confuse and unsettle the law
than any recent case upon the subject.
It is obvious that the wide variations in the foregoing defini-
tions are due, in part at least, to varying conceptions of the scope
covered by the term mens rea. There is only one way out. Either
the term must be discarded altogether, or its scope must be care-
fully defined. Mere definitions of themselves solve nothing. But
they may help immeasurably in clarifying thought. What too
many have failed to realize is that the exact nature of mens rea
can not be determineduntil one has a clear understandingof just
what the term covers. If mens rea is used in contrast with " spe-
cific intent " and its scope is narrowedso as to exclude questions of
personal incapacity,200crimes requiringspecific intent, and crimes
based upon negligence, it becomes possible to find in it a fairly
precise single constituent element, as, for example, the intent to
commit that which constitutes a crime other than a light police
offense.20' On the other hand, if the term mens rea is given a
199 See id. at 172: "The guilty intent is not necessarily that of intending the
very act or thing done and prohibited by common or statute law, but it must
at least be the intention to do something wrong. That intention may belong to one
or other of two classes. It may be to do a thing wrong in itself and apart from
positive law, or it may be to do a thing merely prohibited by statute or by com-
mon law, or both elements of intention may co-exist with respect to the same
deed. There are many things prohibited by no statute - fornication or seduction,
for instance -which nevertheless no one would hesitate to call wrong; and the
intention to do an act wrong in this sense at the least must as a general rule exist
before the act done can be considered a crime." (per Wills, J.)
200 Such as questions of
insanity, infancy, coverture, compulsion, etc.
201 That is, the intent to commit
some act which would constitute a crime re-

broader meaning to designate whatever mental element is neces-

sary to convict for any crime, thus including specific intent and
questions raised by personal incapacities, it becomes at once clear
that mens rea can never be analyzed into any single constituent
element or group of elements because no single state of mind com-
mon to all crimes exists. Some of the most careful writers on
criminallaw have used the term to cover whatever mental element
is necessary to convict for any particular crime; 202 and to avoid
the endless confusion which more restricted, ill-defined meanings
are likely to produce, this seems sound.
The conclusion to which one is thus driven is by no means a
negative one. It focuses our thinking upon the important fact
that there is no single precise requisite state of mind common to
all crime. The criminal state of mind of the child differs mate-
rially from that of the insane person. These both differ from that
of the sane adult acting under a mistake of fact. All three differ
from the state of mind which must be proved to convict for mur-
der. An intensive study of the substantive law covering each
separate group becomes necessary to reach an adequate under-
standing of the various states of mind requisite for criminality.
The old conception of mens rea must be discarded, and in its
place must be substituted the new conception of mentes reae.
Francis Bowes Sayre.
HARVARDLAW SCHOOL.
quiring criminal intent if all the facts which the defendant reasonably supposed to
be true were actually true.
202 "The maxim 'Actus non facit reum nisi mens sit rea,'"' says Justice
Stephen, "is sometimes said to be the fundamental maxim of the whole criminal
law. . . It suggests the notion that there is some state of mind called a ' mens
rea,' the absence of which, on any particular occasion, deprives what would other-
wise be a crime of its criminal character. This is untrue. There is no one such
state of mind, as any one may convince himself by considering the definitions of
dissimilar crimes. . . The truth is that the maxim about ' mens rea ' means no
more than that the definition of all or nearly all crimes contains not only an out-
ward and visible element, but a mental element, varying according to the different
nature of different crimes. . . Hence the only means of arriving at a full com-
prehension of the expression ' mens rea' is by a detailed examination of the defi-
nitions of particular crimes, and therefore the expression itself is unmeaning."
2 STEPHEN, op. cit. supra note 79, at 94-95. See also the language of Stephen, J., in
Regina v. Tolson, 23 Q. B. D. i68, I85-87 (i889). Holdsworth similarly under-
stands mens rea. See 8 HOLDSWORTH, op. cit. supra note 6, at 434-35, 446.


Mens Rea Sayres

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Mens Rea Sayres

Uploaded by

Copyright:

Available Formats

Mens Rea

Author(s): Francis Bowes Sayre

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

NO problem of criminal law is of more fundamental impor-

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

velopment of a general mens rea as a requisite for criminality.

I. THE MENTAL REQUISITES FOR CRIMINALITY IN THE

What was the place of intent in primitive criminal law? More

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

On the other hand, in view of the crudity of the early forms

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

English law started from a basis bordering on absolute liability.6

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

The so-called Leges Henrici Primi,` compiled about the year

Anglo-Saxon literature. In the chronicles of Beowulf, when King Hredel's second

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

death when summonedby another; if someone'sweapons placed there by

The law thus set forth smacks strongly of liability without

14 LEGESHENRICIPRIMI C. 90, ? II. Compare also id. c. 88, ? 9: " Whoever

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

warrant or in the pursuit of justice, which had always been justi-

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

pardons, however, did not prevent a forfeiture of the felon's

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

suffer the extreme penalty of death. True, he might have to pay

II. BEGINNINGS OF THE CONCEPTION OF MENS REA

By the end of the twelfth century two influences were making

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

Killing by misadventure Bracton divides into cases where one

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

case the killer is liable; in the former, blame is not imputable

Although the greater part of Bracton's book is a statement of

Further along, speaking of homicide by misadventure, after giving

"but without an intent to kill, ought to be acquitted, because a crime

39 For instance, one of Bracton's examples is of a person playing with a ball

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

act excusesthe other. But in evil-doingit is the intent (voluntas) which

One feels the strong contrast between Romanesque passages

Bracton here, of course, refers to the existing practice of seeking

Here Bracton is expressing the unquestioned law as it existed in

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

III. DEVELOPMENT OF A GENERAL MENS REA AS A

It is, in the last analysis, underlying ethical concepts which

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

against one in possession of stolen goods not himself a thief, the

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

the allowance of damages continued in the main independent of

On demurrer judgment was given for the plaintiff.56

See 3 HOLDSWORTH,op. cit. supra note 6, at 375-77. "The general rule is

CRIMINAL LAW (I927) 924.

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

been intrusted to carry and which he had broken open, Hussey,

A few years later Rede, J., adopting the argument of Fairfax

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

' Voluntas reputabaturpro facto' as well in this crime [robbery]

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

By the second half of the seventeenth century, it was univer-

Similarly, in discussing larceny, Hale says, as the indictment

This content downloaded from 14.139.86.166 on Sat, 7 Jun 2014 04:10:06 AM

" cepit and asportavit, so it must be felonice or animo furandi; other-

IV. GROWING PARTICULARIZATION OF THE GENERAL MENS