WE have seen that natural or common law does not pretend to know

It is not unknown for the criterion of malum in se, in itself unlawful, to be discounted by contemporary jurists, on the ground that in a republic there is no "unwritten law;" the critics suppose that natural and common law are no longer relevant. In truth, however, the crime malum in se provides a veritable touchstone for criminal law.

We have seen that the common-law crime has the nature that the intent, as evidenced by the act, is wrongful. The intent is not shown wrongful if the act was done unintentionally ¾ but it would also not be shown wrongful if the intent was rightful. The law recognizes not only excuses, but also justifications, such as self-defense.

The common-law crime has three constituents. It comprises, (A) an attempt, (B) to violate the right of an equal, or equals, (C) without justification. The necessity for (A), an attempt (that is, a "joint operation of act and intention") follows from the fact that nothing less can prove that there was an intent, planning to do something is not the same as acting to do the thing. The necessity for (B), a violation of a right, follows from the very nature of criminal law: the question to be answered is, does D uphold the rights of his equals? The necessity for (C), a defense of justification, is that a crime is necessarily against an equal (or, rather, against the rights of an equal) so that it may well be that the supposedly-wronged party has consented.

The existence of these three elements means logically that there can be, not one kind, but seven other kinds of crime. There can be three kinds with (A) or (B) or (C) absent; another three with (A + B) or (B + C) or (C + A) absent; and one with (A + B + C) all absent. (See Table 8.1.) These crimes are popularly called statutory crimes, because they are crimes against the state rather than against some or all of one’s equals (in some States they are denominated "public offenses.")

Examples of all seven kinds can be found.

(A) Absence of Attempt

Retrospective crimes, such as statutory murder (i.e. a felony that results in death within 366, or 1096, days) or driving-faster-than-reasonable-or-prudent.

"General intent" crimes, where the same crime can be evidenced by different actions, e.g. breach of the peace.

(B) Absence of Violation

"Specific intent" crimes, where the same act can be done innocently or otherwise (e.g. statutory burglary, which does not require breaking into the premises.)

Statutory rape, when the "victim" did not consent but seemed to be immature.

(C) Absence of without Justification

"Organized crime," where the actions of the "victim" imply consent. (Because a prostitute must presume himself infected, it would indeed be a crime for him to have intercourse with someone who did not agree to pay him ¾ but one who has paid him must then be aware that he sells his services, and thus has accepted the risk of becoming infected.)

Statutory rape, when the "victim" was in fact mature but gave consent.

(A + B) Without Justification alone present.

Status crimes (e.g. driving "under the influence" of drugs, alcohol, etc.)

Anti-trust offenses, where acts "may . . . substantially lessen competition or tend to create a monopoly."

(B + C) Attempt alone present.

"Opposition to will of the people" by one of the people (e.g. violation of zoning law by land-owner.)

Statutory rape, when the "victim" gave consent and seemed to be immature.

(C + A) Violation alone present.

Public torts (damaging public property, even negligently ¾ e.g. by exceeding maximum weight limit on public highway.)

(A + B + C) "Soft Core" Crimes

Maximum speed limits: this is a status crime (a driver using a cruise control could drive from one State through another into a third without any act) and in se justifiable, for one who shares in the ownership of the highway ¾ it is driving slower than the minimum speed that calls for justification or excuse. (A driver might perhaps have agreed with the owner of the vehicle not to drive faster than X, but a breach of contract is not a crime ¾ one can contract to do or refrain from doing only what one has the right to do.)

Here, then, we see that the concept of self-evident truth is crucial to a civilized society. If an act is wrong in itself, then one can indeed hold that whosoever does such as action (that is, intentionally) differs from all reasonable men. But if the action is lacking in one, or two, or all three, of the elements of wrongfulness, then merely to show that someone did the act does not show (even presuming, as we may, that he acted intentionally) that he was

The courts of common law indeed understood the distinction between crimes which were mala in se and those which were not. An opinion by Lord Mansfield is cited in Greenleaf’s Evidence [at 13]: "When the act is proved to have been done by the accused, if it be an act in itelf unlawful, the law . . . presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption." In California it was held:

. . . when the defendant relies upon no distinct, separate, or independent fact, such as insanity, but confines his defense to the original transaction on which the charge is founded, the burden of proof never shifts, but rests upon the people throughout the whole case to prove the act committed a criminal one beyond a reasonable doubt. [Citations omitted.] To declare otherwise would be to say that the mere proof of taking away the horse of another from a pasture, without the permission of the owner, ¾ a mere trespass, ¾ would throw upon a party doing that act, if charged with larceny, the burden of proving that he did not take the horse and carry it away with intent to steal . . . .

People of the State of California v. Ribolsi, 1891, 89 Cal. 492, 26 Pac. 1082, 1084.

Similarly, the Supreme Court of Nevada unanimously held that not even a judge can be convicted in the criminal court for failing to pay into the public funds the monies received by his court, and nothing more (that is, without the intent to misappropriate the monies.) [State v. Robey, 1980, 96 Nevada 459.]

The doctrine that, where the act is not in itself unlawful, the intent must be proved by evidence additional to the evidence that the accused did the act has been denominated "independent mens rea " by G. O. W. Mueller ("On Common Law and Mens Rea," 42 Minnesota Law Review 1043, 1064: 1958.)

Today, the popular theory is that there are adequate or even excessive populations of citizens, so that discrimination is at most optional or even undesirable; defendants are convicted ¾ even by juries! ¾ despite evidence that they were drunk or drugged. However, the popular belief is not justified. What is happening is that tax-payers are far from being the whole of the voting population (the States, unlike the U. S., allow officers to vote in elections) and the denial to them (the tax-payers) of the protection of law is delivering the society over to the officers.

Indeed, it is plain to see that criminal legislation today, when victimless crimes ¾ "No Turn on Red," "School Zone", "Stop" signs ¾ are ubiquitous, has precisely the same purpose as when criminal law was invented in England by King Henry II, viz. to seize for the state the damages that were due to the victim (or, in the case of Congressional legislation, to seize for the U. S. property that would have gone to one or more States.)

As a result of the predominance of statutory crimes, where malice is not necessarily evident, it has come to be believed that a crime is aggravated if it is motivated by "hate." (In truth, motives ¾ looking toward outcomes ¾ are hidden in the mind and not to be proved; they are irrelevant to criminal law, which condemns only intentions.) The fact is that "hate," if it means the intent to wrong one or more equals, is necessary to conviction in every case; if the act was done without hatred, the remedy is an action in tort for damages ¾ which does indeed help to make whole the victim.

It is widely believed that there is no essential difference between civil and criminal proceedings, only that in the latter the plaintiff is the collective ¾ the State or even the U. S. It is supposed that the "aims" of the criminal law are to collect a "debt to society," and that negligence or drunkenness or even insanity is no defense.

The classical criminal procedure ¾ proof beyond a reasonable doubt, all presumptions in favor of defense, unanimous jury ¾ reflects the proper relationship, that the collective is less than equal to the individual. The "debt" theory implies that the collective, equally with the individual, is competent, is capable of entering into contracts. If, in a civil suit, some damages are awarded to P at the expense of D, then presumably the assets are not destroyed or degraded; the society as a whole is no worse off. But in a criminal case, any sentence ¾ other than restitution ¾ makes the convict worse off without making anyone else better off (except the crime interest ¾ the police and prison guards and probation officers.)