Historical Evolution of the Doctrine of Mens rea

Interpretation of Professor Francis Sayre

It is clear that early criminal law developed out of the blood feud and rested upon the desire
for vengeance. Primitive English law started from a basis bordering on absolute liability.
Whatever the law in action may have been, at least in the recorded law prior to the twelfth
century, a criminal intent was not recognized as an indispensable requisite for criminality.

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 warrant or in the pursuit of
justice, which had always been justifiable, so far as we know the killer seems to have been
held liable for every death which he caused, whether intentionally or accidentally. 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 early times the mental element was entirely
disregarded. The very majority of the early offenses rendered them impossible of commission
without a criminal intent. 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.

By the end of the twelfth century two influences were making themselves strongly felt. One
was the Roman law which, resuscitated 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 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. A second influence, even more powerful, was the canon law, whose
insistence upon moral guilt emphasized still further the mental element in crime. 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. Although 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, characteristically enough,
not through a change in the substantive law but through a procedural device made possible by
the growing power of the King. Thus, the judges were to convict the accused of felony but
the king might pardon and thus save the felons life. Such 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. During the said period 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
power and the chancellor, a churchman of high dignity, was continually tempering the rigors
of the strict law with equity. Bracton, whose book De Legibus Et Consuetudinibus Angliae
powerfully influenced the later shaping of the common law was strongly tinged with the
canonists’ ideas. He emphasized often beyond the actual law of his day, the mental requisites
of criminality. 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. Thus, the criminal law of England developing in the general direction of
moral blameworthiness began to insist upon mens rea as an essential of criminality. Scholars,
newly inspired with Roman texts and maxims, searched the books afresh in their efforts to
formulate and systematize these developing ideas. The formula found in the Leges of Henry I
that “reum non facit nisi mens rea” was seized upon and used as a convenient label for the
newer ideas, finally to evolve in Coke’s Third Instituite as “actus non facit reum nisi mens sit
rea”. Mens rea in the period following Bracton , thus smacked strongly of general
blameworthiness . The transition from the primitive concept of liability was all the easier
because most of the thirteenth century felonies from their very nature already involved an
intentional element. The changed attitude could be traced in the new generalizations
concerning the necessity of an evil intent which are found scattered through the Year Books,
in the marks of the Judges and counsel and which later made their made their appearance as
settled doctrines in the writings of Coke and Hale during the seventeenth century. This was
found to be reflected in the growing insistence upon more and more sharply defined mental
requisites as essentials of the common law felonies. It also fermented in the form of new
defenses which show the absence of an evil mind and therefore of criminal liability. During
the centuries following Bracton’s day this growing consciousness of a blameworthy mind or
felonious intent as the basis of criminality was seized upon to mark the line of increasing
differentiation between crime and tort.

Generalizations about the necessity of an evil intent for felony crept from the Year Books into
the legal treatises and texts summarizing the established law of the day. By the second half of
the seventeenth century, it was universally accepted law that an evil intent was as necessary
for felony as the act itself.

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 a more and more clear-cut
conception of exactly what constituted this evil or felonious intent. As a result of the slow
judicial process of discriminating one case from another, 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.

Interpretation of Professor Gardner

To a large extent, the ambiguities surrounding the mens rea concept are the product of an
ongoing historical process of accommodating within a single system of criminal law the
virtues of two sometimes conflicting philosophical traditions-retributivism and utilitarianism.
Prof. Gardner sketches the historical relationship between mens rea and punishment,
suggesting that the systematic emergence of the principle of mens rea was casually related to
the systematic emergence of the punitive sanction.

Understanding mens rea begins with the realization that the concept’s meaning has evolved
and been modified over centuries of legal experience. This evolution according to Gardner
can be divided into 5 general stages. According to Gradner the historical relationship between
the emergence of the systematic employment of the punitive sanction and the almost
simultaneous advent of a general principle of mens rea has not been clearly documented.

The historical origins of the mental element in crime extend to the earliest known legal
systems. (Ancient Hebrew Law, Roman Law of the Twelve Tables, Early English Law –
Laws of Alfred.). Notwithstanding the various allusions to a mental element in early Anglo-
Saxon law, commentators generally agree that no systematic mens rea requirement existed
until at least the early 13th Century. Prior to that time the law was essentially grounded in
strict liability. The law was also essentially compensatory in its remedial thrust.
Historical sources reveal that punishment may have been haphazardly imposed under English
law from the earliest of times. However, it was only by the 12th Century that the systematic
use of punishment emerged as the sanction for certain harmful acts. Prior to that time law
relied on an elaborate system of compensation which operated both against and in
conjunction with the practice of private vengeance and the occasional imposition of
punishment. The earliest evidence gathered from Aethelberts writings near the end of the 6th
Century suggests that offenders were made to make money payments according to an
elaborate system of tariffs consisting of 3 elements Wer, Wite and Bot. Wer was a sum of
money paid to the family of a homicide victim, increasing in amount with the victim’s social
rank. Wite was a public fine payable to the Lord or King. Bot was the compensation for
injuries less than death. Another response to the harmful conduct took the form of the blood
feud where the law left offenders unprotected against the vengeance of those who suffered by
the offender’s misdeeds. Still another response to harmful conduct was outlawry which
authorized, even obliged, all within the social order to “make war” upon the outlaw , to
ravage his land, and to burn down his domicile.

At the end of the 6th Century a gradual transition from a tribal society to a state structure
began. Tribal chiefs eventually became Kings, exercising ruling authority over designated
territories and settled populations. Members of the most powerful families emerged as a
separate nobility class and aided by the adoption of christianity, the feudal system replaced
the earlier tribal social order. With the emergence of centralized power criminal conduct
increasingly became treated not merely as a violation of the interests of the victim and the
family group, but also as an offense against the sovereign. Certain offences came to be seen
as breaches of King’s Peace, to be dealt with through “Pleas of the Crown” within the
jurisdiction of the Kings Court.

Although, initially, only a few crimes offered the offender the opportunity to buy himself out
of further accountability for his offense, in due course all offences including regicide became
subject to the money payment system. By the time of Alfred the Great at the end of the 9th
Century, the blood feud was unlawful if the proper tariff were tendered to the victim or in the
case of his death to his kinfolk. While resort to outlawry remained a possibility throughout
the Anglo- Saxon period it, like the blood feud, was discouraged by use of the tariff system.
The punitive sanction was also increasing in its significance.
By the time of Henry II in the Twelfth Century, the offences of homicide, mayhem, robbery,
arson and rape belonged exclusively within the domain of the King’s Courts. Henry’s reign
also marked the end of the compensatory remedy and the emergence of systematic
employment of the punitive sanction as the sole response to certain criminal conduct. Wer
and Wite were suddenly abolished in cases of willful homicide, which, along with other
serious offences, became punishable by death or corporal punishment, subject only to
discretionary exercises of mercy by the king. No compensation of any kind remained under
the criminal law to the kinfolk of the victim. Punishment became the sole sanction for certain
harmful acts. Others were dealt with through discretionary money penalties, which took the
place of the old predetermined wites, and through case- by case assessments of damages, in
lieu of the earlier system of predetermined bot.

To sum up, since the early law focused so heavily on the perceived interests of the outraged
victims and would – be avengers in hopes of dissuading them from pursuing private
vendettas, it likely paid little attention to niceties of culpability once it was shown that the
accused caused harm to the victim. To the extent that the law was aimed at compensating and
buying off the feud, it hardly mattered that the offender acted inadvertently or otherwise in a
non-culpable manner. However, in the 12th Century, with the emergence of the systematic
use of the punitive sanction, the criminal law, which permitted conviction without fault , was
suddenly in a moral quandary – a quandary now more apparent than in the earlier era which
relied on a mixture of punishment , compensation and other non-punitive sanctions. Could
punishment, the purposeful infliction of suffering, justifiably be imposed upon offenders
merely upon proof of their harmful acts? It was in response to this quandary that the principle
of mens rea came to be developed.