Page:The Green Bag (1889–1914), Volume 19.pdf/34

 THE MODERN CONCEPTION OF ANIMUS legal system of the Church was based on confession and on discovery. Take, for example, homicide. The peni tential canons recognized three classes of homicide. First, the voluntary, or as we should say, homicide with malice afore thought. Second, the involuntary, or ac cidental, but where guilt could be imputed to the defendant through negligence, or because the killing followed as the conse quence of some unlawful act. Third, where the killing was inevitable, as in necessary self-defense or the defense of another. These penitential canons were very an cient but they were commented upon by Bernard of Pavia, the most celebrated canonist of the twelfth century, and from Bernard Bracton took this definition of the felonious mind. "But that is homicide, if it be done from malignity or the delight of shedding human blood, although he be justly slain, nevertheless he sins mortally on account of his corrupt intention." Bracton, De Corona, C. 4 §2. Thus Church and State agreed as to what constituted crime. They differed as to the procedure by which crime should be proved. They agreed that an act can never intrin sically constitute either a crime, a tort, or a contract. An act can only be evidence from which a criminal, a tortious, or a con tracting mind can be inferred. So much being admitted, it follows that the value of the law as a weapon by which victory may be won in the struggle for supremacy, hinges largely on the methods employed first, to obtain evidence, and secondly, to admit or exclude evidence after it is ob tained. Each dominant class, during its ascendancy, uses such methods as conduce to its success. Consider the attitude of Church and State toward crime. In last analysis the power of a priesthood rests on popular faith in the cogency of their curse, and in the efficacy of their intercession. Hence incredulity is the greatest danger to a hierarcy, and therefore heresy is to it the blackest crime.

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But incredulity is an intellectual condition which may yield no outward trace, and accordingly it followed that, during the period of crisis as the Reformation ap proached, evidence to prove incredulity had to be extorted by inquisition under coercion. The effect of these conditions was that the Church, when strong, began its system of inquiry with the confessional, and ended with the Holy Office. Ecclesiastical punishments followed the same -sequence of cause and effect. Murder, while condemned by the Church, did not menace its existence. Therefore a priest who committed murder was only imprisoned, according to the canon law; but a priest who became a heretic struck at the vitals of sacerdotal power. The heretic was de livered to the secular arm to be burned alive. He who was suspected of heresy might be examined under torture. The State, on the other hand, resting on physical force and not on faith, has always been relatively indifferent to incredulity, but sensitive to attacks on order. As I have said, the Church viewed murder and felony somewhat leniently. A clerk, during the middle ages, convicted of a crime for which a layman would have been hanged was returned to the ordinary to be im prisoned. These diocesan prisons were always a grievance to the laity who vehemently dis trusted the good faith of the bishops in the punishment of clerical delinquents. Conversely, where the State felt alarm, a thought became a capital offense, precisely as a thought became a capital offense under ecclesiastical law where the Church ap prehended peril. For centuries the com mon law punished the mere ''imagining" the King's death by hanging with torture, and the King, where he found it convenient to do so, investigated the function of" imagi nation " by methods as coercive as those employed by the Church to discover heresy. Even in our own day, although the State no longer extracts evidence from conspira tors by the methods used to obtain avowals