officer acting criminally in behalf of the corporation will incur criminal liability."

For the purpose of this discussion it must suffice to refer to these few civil law countries. But it is noteworthy that the laws of all other civil law countries do not differ materially. This holds true even for the "peoples

69a

69. People v. Campos (C.A.) 40 O.G. (125) No. 18, 7.

69a. (A) (1) Austria: I HORROW, GRUNDRISS DES OESTERREICHISCHEN STRAFRECHTS, ALLGEMEINER TEIL 91 (1947); Gampp und Kimmel, LEHRBUCH DES OESTERREICHISCHEN STRAFRECHTS 7 (6th ed. 1945); I MALANIUK, Lehrbuch des StrafrECHTS 83 (1947).

(2) Italy: Article 27 of the Italian constitution provides: "La responsabilità penale é personale." This quite clearly excludes corporate criminal liability and has been so interpreted. See BETTIOL, DIRITTO PENALE, PARTE GENERALE 172 et seq. (2nd ed. 1950).

(3) Latin American Countries: For the law of Latin American countries see Kielwein's study in Mitteilungsblatt der Fachgruppe Strafrecht in der Gesellschaft fuer Rechtsvergleichung, Heft 4, 89 et seq. (1952). Cuban and Mexican law know sanctions against corporations but likewise do not employ criminal penalties.

(4) Scandinavian Countries: The 5th Criminal Law Conference of Scandinavian Countries, 1951, rejected the introduction of any corporate criminal liability. Unfortunately, the proceedings of this conference were not printed at the usual place, the Nordisk Tidskrift for Kriminalvidenskab and, thus, are not publicly available.

(5) Spain: See section 14 of the Penal Code of 1945, and compare secs. 15 and 265. See I Cuello, Derecho Penal 257-269 (8th ed. 1947).

(6) Switzerland: HAFTER, LEHRBUCH DES SCHWEIZERISCHEN STRAFRECHTS, ALLGEMEINER TEIL 172 et seq. (2nd ed. 1946). Subsidiary monetary liability of corporations for criminal acts of corporate officers may be found in the area of fiscal and economic penal law. PFENNINGER, DAS SCHWEIZERISCHE Strafrecht, in 2 MEZGER-SCHOENKE-JESCHECK, DAS AUSLAENDISCHE STRAFRECHht der Gegenwart 149, 214 (1957).

(B) (1) The 6th International Penal Law Conference, Rome 1953, recommended an expansion of sanctions against corporations in the area of economic violations, following Dutch and Swiss examples. See Heinitz, Bericht ueber den 6. Internationalen STRAFRECHTSKONGRESS, Rom, 1953. 66 Z.Str.W. 22, 24-25 (1954). “III ème Question, 3o (b) La répression des infractions demande une certaine extension de la notion d'auteur et des formes de participation, ainsi que la faculté d'appliquer des sanctions pénales à des personnes morales."

(2) The Second Congress of the Society for Comparative Law, Berlin, 1952, took a firm stand against any corporate criminal liability.

Consult the following articles or monographs with comparative references:

(C) (1) Jescheck, Zur Frage der Straftaten von Personenverbaenden, 6 Oeff. Verw. 539 (1953). (2) BUSCH, GRUNDLAGEN DER STRAFRECHTLICHEN VERANTWORTLICHKEIT DER PERSONENVERBAENDE (1953).

(3) Heinitz, "Empfiehlt es sich die Strafbarkeit der juristischen Personenverbaende gesetzlich vorzusehen?", Gutachten fuer den 40. Deutschen Juristentag, Tuebingen, 1953. 40. DEUTSCHER Juristentag, Verhandlungen 65 (1953). And see the addresses and debates of the 40th Deutsche Juristentag, id., El-E88.

(4) Siegert, Haftung fuer fremde Schuld im Steuer- und Wirtschaftsstrafrecht, 6 N. J. W. 527 (1953).

(5) Blau, Zur kriminellen Strafbarkeit juristischer Personen, 8 M. D. R. 466 (1954). Von Weber seems to be the only European scholar who currently gives serious consideration to an introduction of corporate criminal liability. See his articles Die Sonderstrafe, 29 D. Ri. Z. 153 (1951); Zum S.R,R. Urteil des Bundesverfassungsgerichtes, 8 J. Z. 293 (1953); Ueber die Strafbarkeit juristischer Personen (1954), Goltd. Arch. 237.

republics," all of which now operate under new penal codes. Two examples will indicate this:

Yugoslavia:

Yugoslav law adheres to the maxim societas delinquere non potest for virtually all offenses, including the large number of economic crimes of part XIX of the Penal Code of 1951. Only "a responsible person within a state-owned co-operative or other corporate enterprise or in an association" who is competent for the execution of the business can become a criminal defendant." An exception exists in the Law of Violations of 1951 which in section 7 introduced fines as corporate penalties for foreign exchange, customs, tax and similar violations." The jurisdiction for such violations rests in administrative agencies. Thus, corporate liability appears not as criminal but as an administrative liability.

Czechoslovakia:

Czechoslovakian law is marked by a rigorous adherence to the principle of corporate criminal immunity. Section 136 of the Penal Code of 1950 provides that only natural persons can become guilty of crime. Not even the finance, foreign exchange and other regulatory penal laws contain any exception to the principle."2

It would be as naive to conclude upon the futility of corporate criminal liability because the civilians do not have it, as it would be to conclude upon its utility because we have it. The point I wish to make is simply this: We are not dealing with a subject on which the laws of all countries are in agreement. A substantial portion of the world rejects corporate criminal liability after more thought and contemplation than has ever been given to the subject in this country. That is a noteworthy fact. On principle it can make no difference that the U.S.A. have more corporate bodies than, e.g., Germany or France. I doubt whether England has more corporations than Germany, yet, the former operates with corporate criminal liability, the latter without it. Thus, before we leap again, we ought to ascertain the economic effects ensuing from either rule of law and then make our decision. Truly, such an inquiry would require much expenditure of time and money. Ad hoc, therefore, the least we can do is to analyze the wholesome rationale of criminal liability of our law in the hope that it may shed some light on the utility or futility of subjecting corporations to criminal liability.

70. Munda, Das Strafrecht Jugoslaviens, in 1 MEZGER-SCHOENKE-JESCHECK, DAS AUSLAENDISCHE STRAFRECHT DER GEGENWART 367, 430 (1955).

71. Id., at 457.

72. Schmied, Das tschechoslovakische Strafrecht, in 2 MEZGER-Schoenke-JesCHECK, DAS AUSLAENDISCHE Strafrecht der GegenWART 359, 413 (1957).

PRINCIPLES OF ANGLO-AMERICAN CRIMINAL LIABILITY

The common law is a creation by individuals for individuals. Organized aggregations of private individuals had little influence on its making. They were neither subjects nor objects of the law to any material extent. In fact, when centuries after the incept the private body corporate made its appearance on the scene, the machinery of the common law was perplexed. The common law of crimes addressed itself just as much to the individual personality as did the common law of private wrongs and rights. As said by Hale:

"Man is naturally endowed with these two great faculties, understanding and liberty of will, and therefore is a subject properly capable of a law properly so called, and consequently obnoxious to guilt and punishment for the violation of that law, which in respect of these two great faculties he hath a capacity to obey: The consent of the will is that, which renders human actions either commendable or culpable; as where there is no law, there is no transgression, so regularly where there is no will to commit an offence, there can be no transgression, or just reason to incur the penalty or sanction of that law instituted for the punishment of crimes or offences."7

Hawkins began his TREATISE OF THE PLEAS OF THE CROWN with these words:

"The guilt of offending against any law whatsoever, necessarily supposing a wilfull disobedience, can never justly be imputed to those who are either incapable of understanding it, or of conforming themselves to it."74

But it was Coke who phrased the now famous maxim expressive of what always had been the rule of the common law of crimes:

"Actus non facit reum nisi mens sit rea.”7

It is clear, then, that the common law-as it then was and still is in the restricted sphere of its application-after connecting an individual with a harmful result by the application of ordinary rules of causation, inquires into the factum of this individual's responsibility by attempting to establish whether the harm attributable to the individual rested on his conduct. Such conduct can be active or omissive, but in any event, its primary ingredient is the outward appearance of conduct, i.e., the physical movement where the law commanded physical rest, or the physical rest, where the law commanded physical movement. However, the early common law judges were sophisticated enough to perceive that the mere outward ap

73. 1 HALE, PLEAS OF THE CROWN 14-15 (1736, of mss. composed prior to 1680). 74. 1 HAWKINS, PLEAS OF THE CROWN 1 (1787).

75. 3 COKE, INSTITUTES 107 (1797).

pearance of conduct is not indicative of true conduct. The physical movement of an epileptic during a fit is an appearance of conduct, but no true conduct, since conduct is willed by the exercise of the mind. Thus, conduct consists of mental self-direction and physical movement.

But Coke, Hale and Hawkins had more than that in mind when they talked of "guilt," "capacity to obey," "wilfull disobedience" and "actus reus" and "mens rea." Mental self-direction and physical movement do not tell us whether a defendant meant to be wilfully disobedient, whether he had the capacity to obey, whether his mind was tainted with guilt for an act which in fact amounts to a violation of the legal mandate, whether his mind was evil, etc. The conduct consisting of mental self-direction and physical movement could well be the product of a diseased or otherwise incapacitated mind, in which case no rational law would stamp the offender guilty. Moreover, it would be utterly futile to practice deterrence on such an offender, since the insane or blank mind is not perceptive to threats and does not react rationally to pains. And certainly the threat of punishment for an insane mind can hardly be justified as an inducement to all citizens to practice mental hygiene-even if the potential lunatic knew how to ward off the evil forces which might lead him to insanity which, in turn, might lead him to unlawful conduct. Thus, even where a diseased mind is capable of entertaining mental self-direction-and in many instances a diseased mind may well not be so capable-conduct often falls short of being unlawful, despite technical breach of the law, namely because of a lack of capacity to entertain a mens rea.

But even the person not laboring under any of the recognized incapacities may well bring about a proscribed harm without incurring guilt. Conduct attributable to superior force, duress and coercion, while imputable to the defendant by the application of colorless rules of causation, nevertheless will not subject the actor to criminal liability because, although the actor willed the harmful result (in the sense of mental self-direction), there was little, too little, room for choice in his decision. Thus, while the actor willed his conduct, he did not will any wrongdoing. And so where an innocent mistake of fact has induced a defendant to conduct himself in a proscribed manner, the common law judges and lawyers realized that the infliction of punishment upon the actor who acted without moral guilt-not having chosen to do any harm or being ignorant of any harm-would be as inequitable as futile.

Such, in brief, was the state of the common law prior to the date on which the private corporation made its entry into the history of the common law. It was a law nicely adjusted to deal with the individual culprit, both actual and potential. It was a law both just and utilitarian. It was a rational law because it recognized that only the just can also be utilitarian.

The sole objective of the criminal law was and is to promote peaceful existence by coercing the actual or potential wrongdoer to compliance with the set standards of society through the threat or application of sanctions

which are actual deterrent influences acting upon the minds of potential or actual wrongdoers.

The common law of torts, in part-a very small part-has the same objective. But the primary function of tort law is different. It is not to deter, but to compensate. Tort law distributes the loss of a harmful occurrence. The loss must be borne by the person to whom the harmful occurrence is attributable. Causation, thus, is the primary means for imputing liability in tort, while mens rea plays only a minor and steadily diminishing role.

"Moral culpability is of secondary importance in tort law-immoral conduct is simply one of various ways by which individuals suffer economic damage. But in penal law . . . the immorality of the actor's conduct is essential-whereas pecuniary damage is entirely irrelevant.""76

RECONCILING CORPORATE CRIMINAL LIABILITY AND MENS REA Corporate criminal liability managed to sandwich itself into these juridical doctrines and considerations. Several difficulties had to be overcome. Some of these were procedural and were overcome with comparative ease, as already mentioned. Others were substantive, and some of these have not been overcome to this day. Among these are the two most important (1), the conceptual question whether a corporation can engage in conduct at all, i.e., whether it is capable of mental self-direction and physical movement, and (2), the more difficult question, whether its activities can at all be tainted by moral-legal wrongfulness, i.e., whether it can entertain a mens rea. Since mens rea presupposes mental self-direction (actually evidenced by physical movement), the answers to the two questions must be identical: part. The second answer is the more difficult since it must embe ethico-legal element. Preliminarily, suffice it to say that a corpor of course be able to act (mental self-direction and physical me the whole theory of incorporation would make no sense wh as the corporation appoints "its" primary agents, the "it" acts. When "it" hires "its" operatives, "it" acts tures, "it" acts, and when "it" ships "its" products to again. But the answer is not quite so simple. Si ciling the imposition of psycho-ethical legal guil brainless, soulless entity with the mandate o liability must rest on personal conscious wro more difficult question, and since, if properl

76. HALL, PRINCIPLES OF CRIMINAL LAW 203 (1 the father of this thought within the sphere of t MENTARIES 5. Blackstone's analysis, though rath the severe attacks of Bentham, Austin and late belongs the credit of not only salvaging but al future constructive use. See Hall, op. cit. supra,