"Qui inscienter peccat, scienter emendet," harks back, I think, to the Hebrew law which compels the one who is unwittingly guilty of sin to go to the priest who is to make atonement for him, and smacks of the rule of the Christian church, which imposed public penance and punished for thoughts as well as deeds. Once the principle that the guilty mind is to be punished has been established, the application of the principle to varying sets of fact is a simple process. Lord Coke applied it to a statute in the same way that a priest might apply it to the drunkenness of a cleric or a murder by a layman. The phrase, “Et actus non facit reum nisi mens rea," is very little removed from "Reum non facit nisi mens rea" in words and not at all removed in spirit. One thing more I wish to emphasize for later reference. The purpose for which it is sought to establish the guilty mind is a punitive one. If the mind of the criminal or sinner is guilty, the punishment is greater than if his mind is not guilty. Mens rea is an index to the extent of the punishment to be imposed. The injury done to the victim is the same whether mens rea is present or absent. Compensation must be made in either case. But the amount of 'bot,' or 'wite,' or 'busse' depends upon how guilty the mind of the criminal or sinner was. To summarize, then, I think the genesis of the modern doctrine of mens rea is not to be found in the Roman law, in spite of the evident influence of the Roman law upon Ecclesiastical law, because the Roman law did not have the idea of mens rea in it, and because there was very little, if anything, left of the Roman law in England after the fourth century A. D., and the Norman Conquest was too late to affect the doctrine which already was strongly entrenched in the eighth century and spread from England to the Continent from the eighth century on. I think it is to be found in the mutual influences and reactions of Christian theology and Anglo-Saxon law. The church, with its background of Hebrew law, Patristic writings, philosophical speculations of Augustine, and practical sagacity of Gregory the Great, adapted its teachings to the social conditions of Anglo-Saxon England, and this adaptation was of such practical efficacy that in the course of time the criminal law acquired both ecclesiastical and secular elements. Not only was compensation to be made for the evil deed, but punishment must be borne for the evil thought that accompanied the deed. The criminal must be reconciled to his vic 87. See notes 60-65 supra. tim's family, hence the weregild; to his king, therefore the wite, and to his God, so penance is set and enforced. As the evildoer is at one and the same time criminal and sinner he must make all compensations at once. When the state takes over all the punitive functions of the church, in the victory of the king's courts over the church courts, the threefold element remains and is enforced by the state alone, until such time as blood-vengeance is abolished and only the offense against the king and against God remain. The latter element is gradually ignored in theory, but remains in practice to this day. Actus non facit reum, nisi mens rea. ILLINOIS LAW REVIEW Published monthly except July to October, inclusive, by Nathan William MacChesney, President. PER YEAR Frederic B. Crossley, Secretary and Treasurer Subscribers who wish to discontinue their subscriptions at the end of the subscription period should notify the business office of the REVIEW; otherwise it will be assumed that a continuation of the subscription is desired. Ex-Officio, R. Allan Stephens, Secretary, Illinois State Bar Association To promote free expression of view on the part of contributors, the Editorial Board, collectively, assumes no responsibility for any statement in the columns of the REVIEW. Each article or communication, including editorial notes, comments on cases, and book reviews, is identified by the name or the initials of the writer. CONTRIBUTORS NOBLE BRANDON JUDAH is a member of the Chicago bar. CHARLES GROVE HAINES is professor of political science in the University of Texas. ALBERT LEVITT is professor of law in the University of North Dakota. COMMENT ON RECENT CASES CORPORATIONS-STOCKHOLDERS-VOTING POWERS-Preferred STOCK-CONSTITUTIONAL LAW.-People v. Emmerson 302 Ill. 300, 134 N. E. 707, is a warning to constitution makers to maintain a proper perspective. To attempt to correct transitory evils by con stitutional prohibition, instead of trusting to legislative wisdom, will inevitably incorporate into basic law future anachronisms. That section 3 of Article 11 of the Illinois constitution of 1870 should in 1922 prevent restrictions upon the voting rights of preferred stockholders is such an anachronism. (See State v. Swanger 190 Mo. 561 for exactly the opposite conclusion under an almost identical constitutional provision, and note in this connection that the two conclusions are reached by different methods of interpretation.) "The General Assembly," reads the section, "shall provide, by law, that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner." The contention of the petitioner seeking a writ of mandamus against the secretary of state to issue a certificate of incorporation in which preferred stock had no voting rights was that the purpose of the section in question was not to invest every stockholder with an absolute voting right, but merely to provide that such voting right as he had could be cumulatively exercised. To support this it argued: (1) That the word or must be given the effect of the word and, if the constitution gives two rights, i. e., an absolute right to vote and a right to vote cumulatively; (2) that a resort to extrinsic matters, particularly the debate in the constitutional convention, indicates that the object sought to be achieved was simply cumulative voting. The reply of Mr. Justice Carter to this contention is not entirely convincing. After quoting from the cases the rules which shall govern in cases of constitutional construction, he argues as if the petitioner was insisting upon substituting the word and for the word or. Thus he says: "While courts of justice will transpose a clause and use the word 'and' for 'or' or 'or' for 'and' in cases where it is absolutely necessary so to do ("Words and Phrases" VI 5006, 5007, and cases there cited; id. III 2d series 762, 763;) we can say in this case, as we said in Krome v. Halbert 263 Ill 172, that it is unreasonable to argue that the convention intended the word 'and' instead of 'or.' The petitioner was arguing that if the legislature was conferring an absolute right to vote and not merely an alternative right to vote cumulatively it would have used the word and and not or. This, of course, raises an interesting question of construction. A precise grammarian in drafting the section, if he had intended to convey the meaning contended for by the petitioner, would have said, "Every shareholder either may vote for the number of shares owned by him for as many persons as there are directors to be elected, or he may cumulate his votes." The drafter of this section, however, used the more imperative shall and also omitted the word either. To the grammarian, the language in question is sufficiently ambiguous to justify resort to extrinsic matters in explanation. But Mr. Justice Carter is apparently not troubled by the grammarian's difficulty, for he says that "giving to the language its ordinary and natural meaning, as we understand it, in which it was used by the members of the convention and by the people who voted on the constitution." But is this not too easy an escape from a dilemma? Has the language an ordinary and natural meaning? If I should say, "You shall have the right to select this book of verse or you shall have the right to select that book of prose," I am justly subject to criticism for my inaccurate speech. I should say, "I give you the right to select (or you may select) either this book of verse or that book of prose. The words then convey two ideas, one that I am conferring a right which you do not already possess, the other that it is a right of alternative selection. Now the section of the constitution under consideration certainly conveys the idea of alternative rights, i. e., either to vote the number of shares owned for each director or to cumulate the number of votes for one or more directors, but this does not exclude the further idea that the legislature must confer these alternative rights upon all shareholders in every Illinois corporation. In fact, it may be argued that it not only does not exclude the idea, but, in fact, imperatively points to its inclusion. If the words were "every stockholder may, etc.," then it might be argued with considerable persuasiveness that the privilege of cumulative voting is being conferred, nothing more, but the words are "every stockholder shall have the right to vote." It may, therefore, well be that their natural interpretation leads to the conclusion that the subject matter of the section is not only that of cumulative voting but also of conferring an absolute voting privilege. Is the solution so simple? Do words in a constitution or statute having no context which may aid in their interpretation in themselves have an ordinary and natural meaning? One of the things we often ignore in dealing with problems of interpretation is that there are very few ideas so complete in themselves that they make themselves understood without their association with other ideas. Sometimes the more simple the idea the more necessary it is in its interpretation to call to our assistance the aid of other associated ideas. When we have a large context the problem is relatively simple because of the association of several ideas. But words standing all alone may mean one thing or another according as we agree upon the ideas with which they are to be associated. The first four sections of Article XI of the constitution are the only ones dealing with corporations generally, and section 4 is the only one which refers to the voting rights of stockholders, so that there is no aid to its interpretation in the other sections. Suppose we ask ourselves, as Mr. Justice Carter impliedly invites us to, what would one voting for or against the adoption of the constitution (assuming that one man in a thousand either read section 4 or |
