For the purposes of the
Church and the uses of confession it was more convenient to regard crime
or tort, as did the Romans; as a mental condition, dependent altogether
upon the state of the mind or "animus." Malice in the eye of the Church
was the virus which poisoned the otherwise innocent act, and made the
thought alone punishable. Indeed, this conception is one which has not yet
been completely established even in the modern law. The first signs of
such a revolution in jurisprudence only began to appear in England some
seven centuries ago. As Mr. Maitland has observed in his _History of
English Law_, [Footnote: Vol. II, 476.] "We receive a shock of surprise
when we meet with a maxim which has troubled our modern lawyers, namely,
_Reum nonfacit nisi mens rea_, in the middle of the _Leges Henrici_." That
is to say somewhere about the year 1118 A.D. This maxim was taken bodily
out of a sermon of Saint Augustine, which accounts for it, but at that
time the Church had another process to suggest by which she asserted her
authority. She threw the responsibility for detecting guilt, in cases of
doubt, upon God. By the ordeal, if a homicide, for example, were
committed, and the accused denied his guilt, he was summoned to appear,
and then, after a solemn reference to God by the ecclesiastics in charge,
he was caused either to carry a red-hot iron bar a certain distance or to
plunge his arms in boiling water.
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