with the inclination toward the truth (for to the Platonists the good, the true and the beautiful were one) is guilty of no sin, even though he is mistaken in what he says; and he who speaks with an inclination to falsehood is guilty of sin even if he describes accurately what has occurred. "Reum linguam non facit, nisi mens rea." Therefore, know the motive and you know the will, and you know whether the doer is of the elect by his works. The works become the outward manifestation of the will.

It would seem, from this summary presentation of Augustine's views, that he would leave no room for the Catholic Church in his system. Salvation is a matter resting between God and man. But Augustine was too good a churchman not to be inconsistent with his own views. He believed wholeheartedly in the power of the church. The church was meant to bring forgiveness of all sins. It was a means of grace and salvation. Even as there were degrees of sins, so there were degrees of bliss. These degrees of bliss could be added to. The dead, who were not yet perfected, but were in a state of bliss, to some degree, could be helped by the saying of masses, by the giving of alms, and by prayers for their souls. Furthermore, Christ is a mediator between sinning humanity and God. And the way to Christ is through the church. Within the church also is stored up the merits of those elect of God who have already attained to salvation. And these merits are acquired by the individual through the sacraments of the church. In this way, although he separated nature and grace, Augustine brought together morality and religion; and though he made religion a matter of an inner spiritual experience, he connected the outer manifestations of that experience with the sacraments of the church.

For nearly two hundred years after the death of Augustine his system was attacked and defended. But finally they triumphed when Gregory the Great was made pope.74 Gregory, though by no means a metaphysician or dialectitian, brought the ideas of Augustine to their fullness and popularized them. With great administrative skill he unified the church and made Augustine's system a part of the church with some slight modifications of his own.

Gregory accepts the idea that man is sinful and that God forgives inherited sin through baptism. But he adds that God leaves no sin thereafter unpunished, and that blessedness comes, by the aid of grace, to be sure, but through penance and good works. Grace itself, he says, consists of three things: conversio mentis, confesso oris, and vindicata peccati. Here we have the sacrament of penance

74. Schaff "History of the Christian Church" Vol. IV p. 211 et seq.

which was to play its large part later on in the Anglo-Saxon Church. For Gregory laid special stress upon the last. To be penitent means that good works must be done, that satisfaction to God must be made. So that the good works, which originally were an attestation of repentance and of a contrite heart (the contritio cordis of the later church doctrine), the emergence of the inclination toward the good, as Augustine put it, became that which acted as a satisfaction for the sin which had been committed. They are means to avoid eternal punishment. The good works become compensation for an injury done to God. It is the "bot" of the Anglo-Saxon law, as applied by the church to spiritual things.

The teachings of Gregory came to England in 596.75 At that time Austin, who later was canonized as St. Augustine for his good works, was sent to England as a missionary. He was eminently successful. In the course of a few years the Christian church began to regain the position it had occupied prior to the invasion by the Angles and Saxons. In the course of time contacts were also made with the Irish church, which had been the nursery of Christianity during the Anglo-Saxon pagan occupation of greater England. It is from the Irish church that we get one of the earliest of the penitential books.76 These books are concerned with regulating the order of penitence." They prescribe specific punishments for various sins, such as drunkenness, avarice, perjury, homicide, etc. The basis of these books are the patristic writings. Some material is also derived from the "synodical canons of Ancyra (314), Neocæsarea (314), Nicæ (325), Gangra (362), and the North African, Frankish and Spanish Councils down to the seventh century.' But the most influential of the penitential books is that of Vinnian,” of the Irish church, and of Theodore of Tarsus, Archbishop of Canterbury 80 and a native of Greece. The common purpose of these penitential books was to enforce practical morality and to curb, if possible, lawless and immoral activities. A consideration of some of the provisions in the penitential books will show that the absence or presence of a guilty mind was of supreme importance. It cannot, of course, be said definitely that the penitential book of Vinnian exhibits the influence of the metaphysics of Augustine, but there can be no question that the idea of the guilty mind was known

75. Bede "Ecclesiastical History" 34 (Bohn ed.).

76. Ayer "Source Book for Ancient Church History" p. 626.

77. Schaff "Hist. Ch. Church" IV 372.

78. Ibid.

79. See note 76.

80. Ibid.

to the Irish church as well as to Irish law, as we have shown above.81 Nor can it be doubted that Theodore's penitential writings were definitely colored by Augustine and Gregory the Great.

In the Penitential of Vinnian, we read:

"1. If one has committed in his heart a sin of thought and immediately repents of it, let him smite his breast and pray God for forgiveness and perform satisfaction because he has sinned.

"2. If one has often thought of the sins and thinks of committing them, and is then victor over the thought or is overcome by it, let him pray God and fast day and night until the wicked thought disappears and he is sound again.

"3. If he has thought on a sin and determines to commit it, but is prevented in the execution, so is the sin the same, but not the penance.

“4. If a cleric has planned in his heart to smite or kill his neighbor, he shall do penance half a year on bread and water according to the prescribed amount, and for a whole year abstain from wine and the eating of meat, and then may he be permitted to approach the altar. "5. If it is a layman, he shall do penance for a whole week; for he is a man of the world and his guilt is lighter in this world and his punishment in the future is less.

"6. If a cleric has smitten his brother or his neighbor and drawn blood-he shall do penance a whole year on bread and water; he may not fill any clerical office, but must with tears pray to God for himself.

"7. If he is a layman, he shall do penance for forty days, and according to the judgment of the priest or some other righteous man may pay a determined sum of money."

"82

The first three sections are of a general nature and deal with the mind of the sinner. The evil thought is the sin, whether it is overcome or succumbed to. It is the same whether a deed issues from the thought or not; whether there is simply an attempt or a completed overt act. "As a man thinketh in his heart, so is he." There seems to be a literal acceptance of the words of Jesus, "He that looketh upon a woman to lust after her, hath already committed adultery with her in his heart." Penance must follow such thoughts.

The other sections lay down the extent of the penance to be done. Here a distinction is made between those pledged to be pure in heart, the clergy, and the laymen. The practical aspects of the problem are seen and considered. You cannot interfere with the ordinary transactions of life too much. The Anglo-Saxon is accustomed to make good any damage he may have done, but it must be a reasonable amount that is demanded of him. He is willing to do a fair share of penance along clerical lines. But he prefers to make a cash payment and let the matter drop there. That is the way his

81. See notes 21 and 22 supra.

82. Ayer page 626. Cf. Schaff p. 374-76.

secular law operates, and he thinks it is good law. The last section shows that the church recognized this propensity and adapted itself to it. Tears and prayers are the proper ingredients of penance, but, lacking those, compensation will be accepted in money equivalents. Money becomes a substitute for fasting and is given an atoning efficacy. Here we have another beginning of the theory of indulgences, and the remission of venial sin by a money payment, accompanied by contrition and prayer. The secular idea of 'bot' is taken up by the church and modifies the ecclesiastical idea of repentance.

The Penitential of Theodore is of the same general character as that of Vinnian. One section dealing with drunkenness and the chapter dealing with homicide are of interest in the present inquiry.

In the section on drunkenness we read: "Whoever out of malice makes another drunk, let him do penance 40 days"; and in the chapter on homicide we find the following:

"1. If any one out of vengeance for a relative kill a man, let him do penance as for homicide, 7 or 10 years. If, however, he is willing to return to relatives the money of valuation, the penance will be lighter by one-half the length.

"2. He who kills a man for vengeance for his brother, let him do penance for three years.

"3. If a layman kills another man with thoughts of hatred, if he does not wish to relinquish his arms, let him do penance for 7 years, without flesh or wine for 3 years.

"4. He who by command of his lord kills a man, let him keep away from the church 48 days; and he who kills a man in public war, let him do penance forty days.

"5. If out of wrath, 3 years; if by chance, 1 year; if by drink or any contrivance, 4 years; if by strife, let him do penance for 10 years."

In these sections we find that the evil deed must be compensated for both to the secular law and to the ecclesiastical law. The Anglo-Saxon demand for money compensation is recognized and met by the substitution of the weregild for penance. Malice and hatred are punished more severely than open warfare, blood-revenge and obedience to a superior. Here, again, we see that the guilty mind is punished more severely than the non-guilty mind, and penances are modified to meet the existing social situations.

"Among the Teutonic nations, respect was necessarily had to their ingrained feelings and legal customs. Penances had to be modified. The Germanic peoples were accustomed to the payment of money as a composition for even the gravest crimes. Certain exceptional cases were, therefore, recognized, in which the usual penance could be commuted to a pecuniary fine. Side by side with the government of the state was a spiritual government, weighing the demerits of all, and

as the agent of the Almighty, meting out punishments or dispensations of grace. The very word 'penitence' (poenitentia) was translated by a word (Busse) which meant a compensation or fine. The equivalent for 'to repent' (poenitere) in the penitential rules was 'to fast' (jejunare)."83

1984

The influence of the penitential books, of which there were many, and all of which were modeled more or less upon the AngloSaxon books, was fostered by the church and spread throughout Christendom. Wherever the church exercised any authority the penitential books were used, both as a means of control and for the purpose of securing revenues for the church. In England the power of the church after the time of Theodore increased, and with the Norman Conquest there was no diminution of the power of the church, for the Norman kings were strongly swayed by their ecclesiastical advisers. Church and state, though still separate, were closely allied. The church influenced legislation in England after the conquest as much as it had before. The penitential books influenced the tariff of "wite" and "bot" and were influenced by them. It is, therefore, no cause for surprise that we find in the Leges Henrici the legal maxim, "Reum non facit nisi mens rea.' Even if Augustine's sermon on "Perjury"s had been unknown to the author of the Leges Henrici, the principle of mens rea as a necessary ingredient of sin, and as an intensifier of punishment, would not have been unfamiliar to him. Men must pay for all the evil they do. That is the outcome of the speculations of Augustine and the legal system of the Anglo-Saxons. The two meet at this point. But the punishment to be imposed, the penance to be done, depends upon the presence or absence of mens rea. That is the effect of Augustine upon the secular law, through the medium of the penitential books. Nor is it to be wondered at that increasingly the reported cases present declarations using the phrases "wickedly and feloniously," "with malice aforethought," "premeditated assault." The plaintiff wants his opponent punished. The greater his wickedness the greater the punishment. The more the malice and hatred the greater the indemnity to be secured. And the maxim, 83. Fisher page 208.

84. Leges Henrici 5 No. 28.

85. See note 1 supra. Cf. Pollock and Maitland II 476. It is with considerable diffidence that one feels called upon to disagree with Prof. Maitland. But the man concerning whom Augustine is preaching thought it had not rained, but said that it had. He could not therefore be one "who swore to what he believed to be true."

86. P. & M. II 468-69; Selden Society "Select Pleas of the Crown" (many cases).