Page:The Green Bag (1889–1914), Volume 19.pdf/32

 THE MODERN CONCEPTION OF ANIMUS ceive them to be open to criticism. I ap prehend that the law is always primarily engaged with the state of the parties' minds, and only secondarily with acts which are but the effects of volition, and therefore no more than evidence of the mind's action, which is the matter in issue. It is the animus which controls human actions, and it is therefore the animus which limits legal responsibility. Accordingly proof of the animus is the crucial point in most litigation, and it is toward controlling this proof that courts have directed their attention. To this end judges have laid down rules of evidence and imagined defi nitions, for according as words such as malice, motive, and intent are explained to juries, and as evidence is admitted or ex cluded, so must debtors pay or escape from payment, and criminals be acquitted or con demned. Lastly, it is needless to insist further on the obvious fact that, in making their rulings, courts must, from the very necessity of their being, conform to the be hests of that power without whose support their decrees would be as impotent as are the protests of the prisoners at their bar when the judiciary serves as the mouthpiece of resistless physical force. Occasionally when a class is strong to wantonness it repudiates responsibility for a certain animus toward those in its power, while admitting responsibility for the same animus toward others who can resist. In the early middle ages the gentry seem to have declined to compensate their villeins for most torts, and very recently, in Priest ley v. Fowler 3 M. & W. r, capitalists in Great Britain disclaimed responsibility to their servants for the negligence of their fellow servants, though they admitted re sponsibility toward the public for due care on the part of those they employed. Lord Abinger stated the reason for this decision with an almost brutal frankness. He thought this claim of labor "alarming" be cause it might prove very costly to the em ployer. Ordinarily, however, a dominant

13

class does not proceed thus directly to its end because of fear of consequences. It prefers indirection, reorganizing courts, modifying rules of evidence, and twisting definitions. Perhaps of all methods the exclusion of evidence is the easiest and subtlest. As Bentham pointed out nearly a century ago, "Evidence is the basis of justice; exclude evidence and you exclude justice." Rationale of Judicial Evidence, Book IX, Pt. 3, Chap. I. And obviously this is sound, for the whole truth can only be known when all the facts which may have influenced the minds of the parties are known. Man's ideal of pure justice has always been, and still is, an absolute sovereign exercising universal juris diction, before whose tribunal all evidence is competent. Such is the divinity. Nevertheless, in practice men object to disclose what it is their interest to hide, and therefore the effort of every dominant class is so to shape the rules of evidence as to suit their own ends. In order to explain to you this process I shall begin with early times and touch on some of the more con spicuous social fluctuations, noting the legal changes which have accompanied them. We speak of the middle ages as barbarous, but when I read mediaeval philosophy or contemplate mediaeval law, I sometimes ponder on the meaning of the word civiliza tion. At least this much is clear, if the ideal of justice is a perfect jurisdiction, Rome or the middle ages approached that ideal more closely than we. The Roman emperor, sitting as a judge, exercised a very perfect jurisdiction, for he inquired directly into the condition of the mind, not restricting himself to secondary or circumstantial evidence of the mind's content. He would examine the accused concerning a thought, and, if he found the mind corrupt, he would inflict punishment. Heresy was one form of criminal thinking, treason was another, and when the State needed his evidence the accused had no more privileges than any other witness.