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68 Yale L.J. 405 (1958-1959)
Conspiracy to Defraud the United States

handle is hein.journals/ylr68 and id is 419 raw text is: CONSPIRACY TO DEFRAUD THE UNITED STATES
IT has long been our boast that we class as crimes only those acts that are
recognizably dangerous to the community. Never, the maxim has it, do we
punish an evil intent alone.' Though much of contemporary theory would strip
act of any significance beyond that of muscular contraction and would
focus instead upon the state of mind of the accused, the traditional conception of
act continues its hold upon the imagination of men and upon legal doctrine. It
expresses today, as it did three centuries ago, the feeling that the individual
thinking evil thoughts must be protected from a state which may class him as
a threat to its security. Rooted in skepticism about the ability either to know
what passes through the minds of men or to predict whether antisocial behavior
will follow from antisocial thoughts, the act requirement serves a number of close-
ly-related objectives: it seeks to assure that the evil intent of the man branded
a criminal has been expressed in a manner signifying harm to society; that
tAssociate Professor of Law, Yale Law School. The author is indebted to Thomas
Schwab of the District of Columbia Bar and to Peter C. Alegi of the third-year class of
the Yale Law School for research done by them in connection with portions of this Article.
1. [T]he imagination of the mind to do wrong, without an act done, is not punishable
in our law. Hales v. Petit, 1 Plow. 253, 259, 75 Eng. Rep. 387, 397 (C.B. 1562). See
Hitchler, The Physical Element of Crime, 39 DIcic. L. Rav. 95, 95-97 (1934) (collecting
statements and authorities) ; 1 Bisaop, CRIMINAL LAW § 204 (9th ed. 1923) ; 4 BLACK-
sToNE, CoMMENTARIEs *21 ([A]s no temporal tribunal can search the heart, or fathom
the intentions of the mind, otherwise than as they are demonstrated by outward actions,
it therefore cannot punish for what it cannot know.) ; Perkins, A Rationale of Mens Rea,
52 HaRv. L. Ray. 905, 907 (1939).
It was not always so. To compass or imagine the death of the king, for example,
was treason under 21 Rich. 2, c. 3. (1397) and subsequent statutes. But the dangers to
security threatened b y such laws brought about their repeal and the requirement that
thoughts be classed as treason only if they were evidenced by some overt act. But the
overt act need not have operated in the least to effectuate the harm sought' HALT,
CRIMINAL LAw 69-71 (1947).
Act has ordinarily been taken to mean the infliction of the social harm at Which
the statute creating the crime is directed, as distinguished from the mental state or intent
of the actor. Both act and intent are necessary parts of conventional crimes, though
borderline crimes exist in which social harm is held to stem from omissions or words
or possession, and in which use of the word act may be misleading. See generally,
concerning the act-intent distinction, id. at 13-14; WILIAMs, CRIMINAl. LAW §§ 1-8
(1953); MODEL PENAL CODE §§ 2.01-.03, comments (Tent. Draft No. 4, 1955). On
the other hand, the public welfare offenses are so predominantly concerned with
the act part of the formula that little or no attention is paid to the mental state
of the actor. See Morissette v. United States, 342 U.S. 246, 252-63 (1952). An interesting
comparison may be found in the almost exclusive concern with mental processes illustrated
by sexual psychopath commitment statutes, under which persons may be incarcerated for
extended periods, albeit as patients rather than as criminals. See, e.g., ILL. REv.
STAT. ch. 38, §§ 820.01-825g (1957).

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