Mens rea inside the law goes back centuries. See generally Paul H. Robinson, A History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 815-853 (1979-1980). This information will briefly address the historic periods and also the common law processes involved with developing these distinctions between culpable mental states.
Robinson tracked the legal trends during a period of about 13 centuries:
sixth Century: Crimes defined with no culpable mental element
tenth~eleventh Century: Crimes differed as “wilful” and “accidental” conduct
twelfth Century: Crimes differed as “wilful,” “careless” and “perfect” conduct
17th~1700s: Crimes differed as “intentional,” “reckless,” “negligent,” and “perfect”
Late 1800s: Crimes differed as “purposeful,” “knowing,” “reckless,” and “negligent”
Id. at 822, 851.
Robinson also described the most popular law processes over these centuries. Initially individual courts recognized new groups of culpable mental states. Subsequently, individual courts selectively worked out discretion in using the burgeoning concepts particularly cases. As each new idea spread, more courts applied it with growing frequency, resulting in entrenchment and institutionalization until common law adopted the concepts for general application in every case. Id. at 822.
With what may appear counterproductive, common law depended and simultaneously progressed based on precedent. What the law states grouped crimes using the above described characteristics as Specific Intent crimes. Crimes that didn’t possess these traits were General Intent crimes.
“Crimes involving a particular intent var[ied] as broadly regarding the requisite intent just like the requisite act… [so] the particular intent needed for just one such crime is of but little assistance in figuring out the actual mental element essential for another. It’s hopeless to locate any universal idea of mens rea relevant to any or all such crimes alike.”
[Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV. 974, 1020 (1931-1932).]
The list below illustrates this issue:
Crime: Murder.Mens rea: “malice aforethought”
Crime: Arson.Mens rea: “specific intent to lose a structure” (“malitia”)
Crime: Burglary.Mens rea: “specific intent to commit a legal”
Crime: Larceny.Mens rea “specific intent to permanently and fraudulently deny the owner of his property with no claim of right.”
Id. at 994-1004.