Page:Harvard Law Review Volume 9.djvu/47

19 THE USE OF MAXIMS IN JURISPRUDENCE. 1 9 ing the maxim itself. Lex sequitiir equitatem would apply about as often as Eqiiitas sequitur legem. Many doctrines of the modern common law " seem grounded on the fact that similar decisions had previously been made in courts of equity." It is impossible to deny " the constant progress of law in the direction of equity under the superior attractive force of the latter ; " ^ a tendency the exist- ence and justice of which found recognition in the provision of the English Judicature Act of 1873: That when equity and common law conflict, equity shall prevail.^ Indeed, the adoption by the common law of many doctrines which were originally purely equi- table, has been so complete that it has often been seriously, though unsuccessfully, contended that the jurisdiction originally exer- cised by courts of equity in Hke cases should now be regarded as abrogated.^ If there is one maxim cited more frequently than another as being both fundamental in its nature and universal in its applica- bility, it is the phrase, Actus non facit reum^ nisi mens sit rea ; or, as it is sometimes expressed, Non est rens, nisi mens sit rea. No less a personage than the late Chief-Justice Cockburn affirmed that this maxim " is the foundation of all criminal justice." * Yet even this phrase has been severely criticised by a judge who had made a specialty of criminal law. And his comments from the bench cannot be regarded as mere sparks struck off in the heat of discussion ; for the substance of his views had already been given in an elaborate work, published six years before his judicial utter- ance. In Regina v. Tolson, decided in 1889,^ Mr. Justice Stephen said : " Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually mislead- ing, on the following grounds: It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a cation involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. * Mens rea ' means, in the case of murder, malice aforethought ; in the case of theft, an intention to steal ; in the case of rape, an intention 1 Jickling on the Analogy between Legal and Equitable Estates and Modes of Alienation, Preface, x. xi. ; Phelps' Juridical Equity, ss. 239, 167, i68. 2 36 and 37 Victoria, chap. Ixvi. s. 25. 8 I Pomeroy's Equity Jurisprudence, ist ed. ss. 276-278, 182. 6 L. R. 23 Q. B. D. 168, p. 185, 186.
 * mens rea' or * guilty mind,* which is always expressly or by impli-
 * Reg. V. Sleep, 8 Cox Cr. Cas. 472, p. 477.