THE MODERN CONCEPTION OF ANIMUS Company, the intent to injure was admitted by the three papers, and injury was proved by the Journal Company. The only ques tion at issue, therefore, was the motive which underlay this intent to injure. The judges seem to have been agreed that, if the motive which led the three papers to combine were an honest desire to make money for themselves by fair competition in trade, the drawing away the customers of the Journal Company to its injury, or even to its ruin, was a justifiable, if not, from a public standpoint, a praiseworthy act. If, on the contrary, the motive which was the cause of the forming of the intent to injure in the minds of the combination, was malev olent, and not the hope of bettering their own condition, then these same acts which otherwise would be innocent, were guilty. State v. Durner, no Wisconsin 189. Aikens v. Wisconsin, 195 U.S. 194. I wish to make my meaning clear. The act, which is popularly called the crime, I apprehend to be only evidence from which the malicious animus may be inferred which makes the act criminal. The act taken alone, being only an effect and not a cause, is neutral, its guilt or innocence must depend upon the character of an antecedent volition. I take the act to be only the point at which society has found it, as a business speculation, profitable ordinarily to inter fere with trains of thought. Before the thought has acquired the energy to find expression in an act, experience has proved that repression does not justify its cost. In fine, this is a matter of administration. Adapting themselves to circumstances, law yers, like Blackstone, have denned crimes by the acts which prove that malicious thinking has culminated in a certain phen omenon; and they have adjusted punish ments, roughly speaking, in proportion to the amount of trouble which any particular form of malice gives the public at any particular time. Depravity has little to do with the question. For instance, a starving
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thief may, through terror, if interrupted, commit a homicide; while a ruffian who intends to kill in cold blood may be stopped by arrest before he can complete his murder. Evidently the latter is the worse, and yet, as between the two, he would probably be punished most who had caused most trouble. All this is true, and yet the fundamental conception of crime remains the same. The crime is malicious thinking. With out malice there can be, in theory, no crime, and Church and State have always agreed in their right to punish malice when dangerous, whether the malice be open or secret, and to apportion punishment to its energy. The Church branded heresy as a mortal sin, and punished it capitally. Yet though she always insisted upon her right to examine into the condition of the corrupt mind, she usually dealt leniently with doubters who made no scandal. Similarly the State will to-day punish the bare avowal of a belief in so-called anarchy, because anarchy is dangerous; and every State has always inquired, on occasion, into the traitorous mind, by tendering oaths of allegiance and the like, and punishing non jurors if expedient, although it may not usually object to condoning passive dis loyalty. Nothing can be clearer, therefore, than that abstract principles of eternal justice, and tenderness for the rights of freemen, have had little to do with the development of our legal principles or our procedure. The law ' has been moulded by more prosaic causes, and these causes have been the selfinterest of successive dominant classes of the population as they have risen to power. These dominant classes have named the judges who have manipulated evidence, who have defined crimes, and who have made and interpreted precedents. They also have controlled legislatures and have passed statutes to effect their purpose when the courts could not do their bidding. On the whole these rulers of England have preferred not to expose their own
