Download PDF - Robson Hall Faculty of Law

A Tough Pill to Swallow 159
was most responsible for this as he held that “[w]e must consider with what mind
… a thing is done … in order that it may be determined accordingly what action
should follow and what punishment. … [Y]our state of mind gives meaning to
your act, and a crime is not committed unless an intent to injure …
intervene[s].” 47 De Bracton did not originate the idea of mens rea, however much
his act of composing and amalgamating decades of disparate common law on the
subject and placing an emphasis on the requirement for mens rea did serve to
solidify it. 48 As the presence of mens rea became a necessity for criminal offences,
the mentally disordered were necessarily disqualified from committing such
offences in virtue of their lack of an operating mind, and thus the incapacity of
the mentally disordered was codified as part of the common law.
B. The 17 th Century and Coke’s Institutes
In 17 th century England, there were several distinct classes of legal incapacity
which would render a mentally disordered person immune from prosecution for
his acts. Edward Coke had penned the Institutes of the Laws of England, 49 a series of
legally instructive books based on actual cases. Simply dubbed “The Reports”, it
was subsequently regarded as a corner stone in the development of the modern
common law, and in that respect, has been regarded as “perhaps the single most
influential series of named reports.” 50 Coke surveyed case law and synthesized
four classes of non compos mentis, the state of being not of sound mind, which may
be paraphrased thusly: 51
i) A person who has been perpetually mentally infirm from birth.
ii) A person who, due to illness, grief, or accident, loses memory and
understanding.
iii) A person who has periods of understanding and competence and
periods without understanding and competence, where such person
is only non compos mentis during the periods where he loses
understanding and competence.
iv)
A person who by his own act deprives himself of his memory and
understanding, similarly to the situation of intoxicating one’s self.
This kind of non compos mentis shall not give the person a privilege.
47
48
49
50
51
Henry de Bracton, De Legibus Consuetudinibus Angliae, reprinted in FB Sayre, “Mens Rea” (1932)
45 Harv L Rev 974 at 985.
Jacques M Quen, “Anglo-American Concepts of Criminal Responsibility: A Brief History” in SJ
Hucker et al, eds, Mental Disorder and Criminal Responsibility (Toronto: Butterworth & Co
(Canada) Ltd, 1981) at 1.
A vast number of versions of Coke exist, far too many to cite here. Quen used Edward Coke,
Institutes of the Laws of England, vol 3 (Philadelphia: Robert H Small, 1853).
J H Baker, An Introduction to English Legal History, 4th ed (London: Butterworths, 2002), at 183.
Quen, supra note 48 at 2.