Professional Documents
Culture Documents
Mens Rea Sayres
Mens Rea Sayres
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
MENS REA
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.
" 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
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.
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.
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.
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
" 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
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
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."
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."
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
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).
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.
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.
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
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-
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.
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.
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."
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
"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
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.
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
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
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.
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.
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.
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
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.
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."
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).
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.