charge a public duty, by bringing his private interests in aid of its performance, which would be wholly lost if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding. In answer to the arguments put in defense of an action to recover a large sum of money fraudulently abstracted from the ticket office of a railroad company, without first prosecuting the offender criminally for his act, the supreme court of Massachusetts, speaking through Mr. Justice Bigelow, said: "The whole system of the administration of criminal justice in England is thus made to depend very much on the vigilance and efforts of private individuals. There is no public officer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases, and take charge of the prosecution, trial, and conviction of offenders against the law. It is quite obvious that, to render such a system efficacious, it is essential to use means to secure the aid and co-operation of those injured by the commission of crime, which are not requisite with us. On the other hand, in the absence of any reasons, founded on public policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal prosecution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and compound with the felon. Nor can it contribute to the purity of the administration of justice, or tend to promote private morality, to suffer a party to set up and maintain, in a court of law, a defense founded

solely on his own criminal act. The right of every citizen, under our constitution, to obtain justice promptly and without delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of opinion that it ought not to be engrafted into our jurisprudence. We are strengthened in this conclusion by the weight of American authority, and by the fact that in some of the states where the rule has been established by decisions of the courts, it has been abrogated by legislative enactment" (21).

(21) Boston & W. Ry. Co. v. Dana, 1 Gray 83

CHAPTER III.

THE CRIMINAL INTENT.

SECTION 1. IN GENERAL.

§ 27. The mens rea or guilty mind. From what was said in the preceding topic, the reader has observed that a crime consists of two elements, the intention and the act. This essential intention has frequently been expressed in the maxim "Actus non facit reum, nisi mens sit rea." The general idea embodied in this maxim is excellently expressed in the language of Mr. Justice Stephen in a case that came before all the judges of England for consideration; and the idea cannot be better expounded than by quoting from his language, which has been so often and generally quoted, that it may fairly be said to be a classic expression of it. His statement was made in discussing a prosecution for violation of an English statute declaring it a felony and punishable with penal servitude for any person having a former husband or wife living to marry another; but with a proviso that "nothing in this act shall extend to any person marrying a second time whose husband or wife shall have been continuously absent from such person for a space of seven years, last past, and shall not have been known by such person to be living within that time." The woman being prosecuted in the case under consideration had been deserted by her husband nearly seven years before her second mar

riage, and upon diligent inquiry had been informed that he had sailed for America on a vessel which had gone down with all hands. The statement of the doctrine by Mr. Justice Stephens was in the following language:

"My view of the subject is based on a particular application of the doctrine, usually, though I think not happily, described by the phrase 'non est reus, nisi mens sit rea'. Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds: It naturally suggests that apart from all particular definitions of crimes, such a thing exists as a 'mens rea', or 'guilty mind', which is always expressly or by implication 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 to have forcible connection with the 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 contradictory, indeed, to describe a mere absence of mind as a 'mens rea', or 'guilty mind'. The expression again is likely to, and often does, mislead. To an unlegal mind it suggests that by the law of England, no act is a crime which is done from laudable motives; in other words, that immorality is

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essential to crime. It is a topic frequently insisted upon in reference to political offenses, and it was urged in a recent notorious case of abduction, in which it was contended that motives said to be laudable were an excuse for the abduction of a child from its parents. Like most Latin maxims the maxim of 'mens rea' appears 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 practical rule.

"The principal involved appears to me, when fully considered, to amount to no more than this: The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Crimes are in the present day much more accurately defined by statute or otherwise, than they formerly were. The mental element of most crimes is marked by the words 'maliciously', 'fraudulently', 'negligently', or 'knowingly', but it is the general -I might, I think, say, the invariable-practice of the legislature, to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion, are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. The meaning of the words 'malice', 'negligence,' and 'fraud' in relation to