Page:Harvard Law Review Volume 9.djvu/48

20 20 HARVARD LAW REVIEW, to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. It seems contradic- tory, indeed, to describe a mere absence of mind as a * meiis real or guilty mind. The expression, again, is Hkely to, and often does, mislead. To an unlegal mind it suggests that, by the law of Eng- land, no act is a crime which is done from laudable motives ; in other words, that immorality is essential to crime. . . . to me to be too short and antithetical to be of much practical value. It is, indeed, more like the title of a treatise than a practi- cal rule." 1 In Sir J. F. Stephen's *' History of the Criminal Law of Eng- land," published in 1883, it is said: ^ — " 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 outward 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 comprehension of the expression ticular crimes, and therefore the expression itself is unmeaning." ^ Bacon's celebrated maxim relative to ambiguitas latens has already been sufficiently discussed in this journal. The maxim " figured as the chief commonplace of the subject for many years. It still performs a great and confusing function in our legal discus- sions." But Professor Thayer (who does not stand alone in this view) pronounces it " an unprofitable subtlety; " " inadequate and uninstructive."* A maxim which is really true, and useful in its place, may be overestimated ; and the result is to stifle inquiry upon important points. Thus the phrase. In jure^ causa proxima^ non remota^ 1 In the same case, p. 181, Cave, J., speaks of this maxim as "somewhat uncouth," and Manisty, J., p. 201, expresses his concurrence with portions of the criticisms of Stephen, J. ^ Vol. ii. p. 95. 8 But compare Mr. Endlich*s article on "The Doctrine of Mens Rea,'* 13 Criminal Law Magazine, 831 ; and i Bishop's New Criminal Law, ss. 287, 288, 303 a, note 6, paragraph 2.
 * ' Like most legal Latin maxims, the maxim on mens rea appears
 * mens rea 'is by a detailed examination of the definitions of par-
 * 6 Harvard Law Review, 417-440; especially 424, 436, 437, 438.