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instruct the jury to acquit the prisoner, or to direct an acquittal, and enforce the direction, nor why it is not the duty of the court to do 50. This results from the rule, that the jury must take the law as adjudged by the court, and I think it is a necessary result."

In these cases the question, in each instance, was, whether the court had power to direct a verdict of not guilty to be rendered. But the counsel for defendant expressly admits that the authority which justifies a direction to acquit, will, in a proper case, justify a direction to convict; that it is a question of power; and that, if the power may be exercised in favor of the defendant, it may be exercised against him. As I now state this proposition, the counsel again signifies his assent. The reason given by Chief Justice Church in the case just cited, shows that there is no distinction between the cases in this respect. He says the rule results from the principle, that the jury must take the law from the court. The duty of the jury to take the law from the court is the same, whether it is favorable to the defendant, or unfavorable to him.

It is laid down in Colby on Criminal Law, chap. 12, § 125, that no jury shall in any case be compelled to give a general verdict, so that they find the facts and require the court to give judgment thereon. 2 R. S. 421, § 68. "A special verdict is given when the jury find certain facts to exist, and leave the court to determine whether, according to law, the prisoner is guilty." "It is not necessary that the jury should, after stating the facts, draw any legal conclusion. If they do so, the court will reject the conclusion as superfluous, and pronounce such judgment as they think warranted by the facts." Colby, chap. 12, § 125.

All the authorities tend to the same result. It is the duty of the jury to act upon the facts. It is the duty of the court to decide the law. The facts being specially found by the jury, it is the duty of the court, and not of the jury, to pronounce the judgment of guilty or not guilty. The facts being fully conceded, it is the duty of the court to announce and direct what the verdict shall be, whether guilty or not guilty. Therefore, I cannot doubt the power and the duty of the court to direct a verdict of guilty, whenever the facts constituting guilt are undisputed.

In the present case, the court had decided, as matter of law, that Miss Anthony was not a legal voter. It had also decided, as matter of law, that, knowing every fact in the case, and intending to do just what she did, she had knowingly voted, not having a right to vote, and that her belief did not affect the question. Every fact in the case was undisputed. There was no inference to be drawn or point made on the facts, that could, by possibility, alter the result. It was, therefore, not only the right, but it seems to me, upon the authorities, the plain duty of the judge to direct a verdict of guilty. The motion for a new trial is denied.

The defendant was thereupon sentenced to pay a fine of $100 and the costs of the prosecution.

One of the authors of the Port Royal Logic says, "Maxims are to be distrusted, for there are few general truths; all have

their exceptions and their limits, and very false applications of them may be made, because the mind, being taken up with the ver

ity of the maxim, examines with little care the subject to which it is applied." Pensees de Nicole, "Des abus de la prévention."

This caution is particularly applicable to the use of the maxims, "Ignorance of the law excuses no one," and "Every person is presumed to intend the necessary effects of his own acts," neither of which maxims are applicable to the case in the text.

What are the exceptions and limits to the maxim, Ignorantia juris, quod quisque

tenetur scire neminem excusat?

In the archives of Lambeth palace is registered a dispensation, absolving Sir Edward Coke, who was then attorney general, from the penalty of excommunication, which he had incurred for marrying his wife privately, at an uncanonical hour, and without proclamation of bans, which dispensation alleges his ignorance of ecclesiastical law as the excuse for his misconduct. 1 Campbell's Lives of the Chief Justices, ch. 7. Lord Hale says, 1 P. C. 42: Ignorance of the municipal law of the kingdom, or of the penalty thereby inflicted upon the offenders, doth not excuse any that is, of the age of discretion and compos mentis — from the penalty of the breach of it, because every person of the age of discretion and compos mentis is bound to know the law, and is presumed to do so: Ignorantia corum, quæ quis scire tenetur non excusat."

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The case most often referred to in the text-books upon criminal law, to show that unavoidable ignorance even is no excuse, is the case of Rex v. Bailey, Rus. & Ry. 1, which was decided in 1800. The prisoner was tried and convicted upon an indictment for wilfully and maliciously shooting. The offence was committed at sea, 130 leagues from the English coast, on the 27th June, 1799. Malicious shooting at sea was made an offence punishable and triable as if committed on land, by St. 39 Geo. 3, c. 37, which statute had received the royal assent on the 10th of May, 1799, so that the prisoner could not know that any such act existed, his ship being at that time on the coast of Africa. "All the judges (except Mr. Justice Buller) met at Lord Kenyon's chambers, and were of opinion that it would be proper to apply for a pardon on the ground of the fact having been committed so short a time after the act 39 Geo. 3, c. 37, was passed, that the prisoner could not have known it." The prisoner was accordingly pardoned.

In The Charlotta, 1 Dods. Admr. 387 (1814), the question was whether certain goods were forfeited because the owner, a British subject, was trading with the enemy. An act of Parliament was relied upon as legalizing such trade. Having decided that it did not, Sir. W. Scott continues: "The subjects of this country are bound to construe rightly the statute law of the land; it is not competent to them to aver, in a court of justice, that they have mistaken the law; it is a plea which no court of justice is at liberty to receive."

In Rex v. Esop, 7 C. & P. 456 (1336): "The prisoner was indicted for an unnatural offence, committed on board of an East India ship, lying in St. Katherine's Docks. It appeared that he was a native of Bagdad.' Chambers, for the prisoner: "In the country from which the prisoner comes it is not considered an offence; and a person who comes into this country and does an act, believing that it is a perfectly innocent one, cannot be convicted, according to the law of England. A party must know that what he does is a crime." BOSANQUET, J.: "I am clearly of opinion that this is no legal defence." VAUGHAN, J.: "Where is the evidence that it is not a crime in the prisoner's own country? But if it is not a crime there, that does not amount to a defence here. Numbers have been most improperly executed if it is a defence." The prisoner was afterward acquitted upon the evidence.

In McNaghten's case, 10 Clark & F. 200, 210 (1843), the question being as to the proper direction to be given to the jury when the defence was that the prisoner was insane, Tindal, C. J., says: "If the question were to be put as to the knowledge of the accused solely and exclusively, with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable."

The Matter of Barronet, 1 El. & B. 1, 8 Dearsl. C. C. 51 (1852), was a motion to the Court of Queen's Bench for a writ of habeas corpus, to bring up the bodies of two persons, for the purpose of admitting them to bail. It appeared that they were committed, on the coroner's inquest and by the warrant of justices, to take their trial for murder committed in a duel. When before the committing magistrates, they avowed that they had acted as seconds to the deceased, and maintained that in doing so they had acted as men of honor. The prisoners made affidavit that they were Frenchmen, who had, for political reasons, taken refuge in the country, and were ignorant of its laws; that acting as seconds in a fair duel was not punishable in France, and that they had believed that it was not punishable in England. The application was refused.

It will be observed that, according to Lord Hale and Chief Justice Tindal, the ignorance of the law which does not excuse in matters of crime is ignorance of the law which is broken, of the law which creates the offence and prescribes the punishment. The cases heretofore given including Lord Coke's case are cases of its proper application. It would have been applicable in the case in the text had the defendant there set

up as an excuse that she was ignorant, that it was a punishable offence to cast a fraudu

lent vote.

In The King v. Dobson & al. 7 East, 218 (1806), it appeared that the defendants had heen appointed collectors of duties by the proper authorities, and that they had fraudulently collected and misapplied money. They were indicted for exacting this money "by color and pretence of their said office." Af ter conviction a new trial was granted. Lord Ellenborough, C. J., saying: "Now, by color and pretence must be understood what the parties knew at the time of the receipt to be color and pretence; but that does not apply to the situation of the defendants who were in fact appointed by the constituted authorities, though in an informal manner, to act as collectors in the receipt of the duties. . . The commissioners thought they were proper officers, and the defendants thought themselves such. The imputation therefore of color and pretence does not apply to them."

No suggestion was made that the defendants were bound to know the law, and therefore knew they were not collectors, and therefore received the money by color and pretence. Although they had committed an indictable offence, their ignorance of law, their ignorance of the illegality of their appointment, protected them from being held guilty of this particular offence.

The case of Rider, Appellant, v. Wood, 2 EL & El. 337 (1859), is as follows: It is enacted by Stat. 4 G. 4, § 3, "That if any artificer. .. shall contract with any person or persons whomsoever to serve him," and "having entered into such service, shall absent himself . . . . from his

service before the term of his . . contract .. shall be completed," he may be committed by a justice to the house of correction for three months' imprisonment with hard labor. It appeared that the appellant left the respondent's employment, after a notice to leave had been given, which the respondent contended was not a valid notice to terminate the contract of service. The question submitted to the Court of Queen's Bench was whether the notice was sufficient to justify the appellant in leaving the respondent's service PER CURIAM [Cockburn, C. J., Hill and Blackburn, JJ.]. We must remit the case to the justices, with the expression of our opinion that they ought not to convict the appellant unless they find that he absented himself from the service without lawful excuse, knowing at the time that he had not such an excuse. We give no opinion, whether or not the notice of 23d July was a good notice. Even if it was bad, the justices ought not to conviet if it was given bonâ fide." That is if the notice were a notice invalid in law, an illegal notice, still ignorance of its illegality, the notice being a collateral matter would excuse the appellant.

In Cooper v. Phipps, L. R. 2 H. L. 149 (1867), which was a proceeding in equity

for the cancellation of an agreement for hiring, the case turned upon the legal construction of a clause in an act of settlement, and it being objected that the mistake in respect of which the agreement was asked to be set aside, was a mistake in matter of law. Lord Westbury said (p. 170): "It is said Ignorantia juris haud excusat; but in that maxim the word 'jus' is used in the sense of denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake. Now, that was the case with these parties - the respondents believed them selves to be entitled to the property, the petitioner believed that he was a stranger to it, the mistake is discovered, and the agreement cannot stand." And it was set aside. In the sense in which Lord Westbury says, that "private right of ownership is a matter of fact, it may be the result, also, of matter of law;" in that sense the right of any particular person to vote is a matter of fact, although it may be the result also of, although it may depend upon, matter of law. The rule that ignorance of law does not excuse, and the division made of mistakes into mistakes of law and of fact, is adopted into the English from the Roman law. It may be worth while therefore to observe that the distinction here made by Lord Westbury is precisely the distinction made in the Roman law as explained by Savigny. Treatise upon the Roman Law, vol. 3, Appendix 8. It is shown in § 20 of this appendix that according to the Roman law, if the defendant in the case in the text was mistaken as to her right to vote, it was a mistake of fact and not of law. the agent knows the law which inflicts the penalty, but by a mistake of law is deceived as to the culpability of his act," it is a mistake of fact. And this is, at least as far as regards crimes, the distinction between mistakes of law and mistakes of fact in the English law.

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The case of The Queen v. The Mayor, &c., of Tewkesbury, L. R. 3 Q. B. 629 (1868), was this: At the election of town councillors in Tewkesbury, there were four vacancies and five candidates. One Blizzard was a candidate and was one of the four who had a majority of votes, but he was at the same time the mayor and returning officer and was therefore legally disqualified as a candidate. The question before the court was, were the votes given for him to be considered as mere nullities, the law having been settled by previous decisions that votes given for an incapacitated person with knowledge of the incapacity are to be treated as not having been given at all. The knowl

edge that Blizzard was the mayor and re turning officer was clearly brought home to every voter and it was contended that "therefore every one was bound to know that in law he was disqualified Ignorantia juris quod quisque sci è tenetur, neminem excusat." But the court held the contrary Blackburn, J., saying: "It is therefore necessary to decide whether the mere knowledge of the fact that Blizzard was the mayor and returning officer must be taken to involve knowledge of his being disqualified for election. [Did the mere knowledge of the defendant in this case in the text, that she was a woman involve the knowledge that she was disqualified to vote.] Every elector in the borough must have known that Blizzard was the mayor, and every elector who saw him presiding at the election must have known as a fact that he was the returning officer, and every elector who was a lawyer, and who had read the case of leg. v. Owens, 2 El. & El. 86, would know that he was disqualified. From the knowledge of the fact that Blizzard was mayor and returning officer, was every elector bound to know as matter of law that he was disqualified? I agree that ignorance of law does not excuse. But I think that in Martindale v. Falkner, 2 C. B. 719, Maule, J., correctly explains the rule of law. He says: There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so.' In Jones v. Randall, Cowp. 38, 40. Dunning, arquendo, says: The laws of this country are clear, evident, and certain; all the judges know the laws, and knowing them administer justice with uprightness and integrity.' But Lord Mansfield, in delivering the judgment of the court, says: As to the certainty of the law mentioned by Mr. Dunning, it would be very hard upon the profession if the law was so certain that everybody knew it; the misfortune is that it is so uncertain that it costs much money to know what it is even in the last resort' It was a necessary ground of the decision in that case, that a party may be ignorant of the law. The rule is that ignorance of the law shall not excuse a man, or relieve him from the consequences of a crime, or from liability upon a contract.' In Reg. v. Coaks, 3 El. & B. pp. 253, 254, Lord Campbell, C. J., says: 'Blake was, in fact, a candidate, but he was an alderman, and therefore ineligible, and that fact was known to the electors. Now, it is the law, both the common law and the parliamentary law, and it seems to me also common sense, that if an elector will vote for a man who he knows is ineligible, it is as if he did not vote at all, or voted for a non-existent person; as it has been said, as if he gave his vote for the man in the moon.' It seems to me that Lord Campbell's opinion was this: The reason why the vote given for a dead man is not to be counted is that the voter know ingly votes for a person whom he knows

to be incapable of election, and therefore the result is the same as if he had not voted at all.'

Voting for a dead man, or for the man in the moon, are expressions showing that, in order to make the vote a nullity, there must be wilful persistence against actual knowledge. But it does not seem to me consistent with either justice, or common sense, or common law, to say that because these voters were aware of a certain circumstance, they were necessarily aware of the the disqualification arising from that circumstance, and that therefore their votes are to be considered as mere nullities." Lush, J., in the same case said: "A maxim has been cited which, it has been urged, imputes to every person a knowledge of the law. The maxim is ignorantia legis neminem excusat, but there is no maxim which says that, for all intents and purposes a person must be taken to know the legal consequences of his acts."

As to the limits of the maxim, "A man must be held to intend the natural consequences of his acts," see note to U. S. v. Taintor, post, 241.

The maxim of the widest application in the criminal law is the maxim Actus non facit reum nisi mens sit rea.

Barbarous nations distinguish feebly between the physical evil and the moral wrong of an act, and therefore in matter of punishment regard rather the act than the intent. This confusion is well marked in the earlier laws of the Anglo-Saxons, especially in regard to theft, wounding, and homicide, which crimes, indeed, made up the chief part of their criminal codes. The making a morally wrong intent a prerequisite to punishment was the effect of Christianity. That it was the work of the clergy appears clearly by the later AngloSaxon and early English laws. church punished pro salute anima. "Ea enim pecata nos condemnant," says St. Chrysostom, quæ scientes et voluntarii facimus." The spirit if not the words of the maxim we are considering is of ecclesiastical origin.

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A morally wrong intent is a necessary ingredient of all common law crimes unless it be the crimes of manslaughter, libel, and nuisance. Most writers on criminal law appear unwilling to admit that even these offences are exceptions. For in manslaughter, it is said, there must be, if not a bad intent, at least criminal negligence, which amounts to the same thing; in libel there must be malice, though the malice is often implied; while indictments for what are strictly called nuisances are said to be criminal prosecutions in nothing but in form.

How far a bad intent is necessary in the case of statutory offences will best appear from an examination of the decided cases.

In Fowler v. Padget, 7 Term, 509 (1798), the question was whether the plaintiff had committed an act of bankruptcy under 1

Jac. 1, c. 15, which person depart from his

....

provides that "Every who. . . . shall... dwelling-house to the intent or whereby his creditors may be defeated or delayed. shall be accounted and adjudged a bankrupt." It appeared that the plaintiff left Manchester, where he lived, and went to London and was absent ten days, "during which time several creditors called at his house at Manchester for payment of their respective debts, which were not satisfied, the bankrupt not having made any provision for them, nor left any person in charge to conduct his business during his absence. Amongst these creditors were the holders of several bills which became due on the day after his departure, and whom he expected to call on him for payment. After his return to Manchester some of his creditors compounded with him and received 10s. in the pound." The jury said that "they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors; but that delay did actually happen to some creditors." Lord Kenyon, C. J., said, “Bankruptcy is considered as a crime, and the bankrupt in the old laws is called an offender; but it is a principle of natural justice, and of our law, that actus non facit reum nisi mens sit rea. The intent and the act must both concur to constitute the crime." And the whole court, Kenyon, Ashurst, Grose, and Lawrence, held that "or" in the phrase "to the intent or whereby his creditors may be defeated must be read "and."

Reg. v. Woodrow, 15 M. & W. 404 (1846), was an appeal to the Quarter Sessions from the judgment of two justices, upon an information based upon 5 & 6 Viet c. 93, § 3, which enacts" That every manufacturer of, dealer in, or retailer of tobacco, who shall receive or take into or have in his possession, or who shall sell, send out, or deliver any tobacco or snuff which shall have been manufactured with, or shall have added thereto or mixed therewith, or into or among which there shall have been put, either before or after being manufactured, or in which there shall be found on examination thereof, any other material, liquid, substance, matter, or thing, than, as respects tobacco, water only," shall forfeit £200." Upon the merits being heard before the Quarter Sessions, "the court found that the respondent was a licensed dealer in tobacco by retail, and that he kept a shop in Great Yarmouth; and that, upon the 28th September, 1844, an officer of excise had seized in the respondent's shop, in a drawer where he kept his tobacco for the purposes of sale, fifty-four and a half pounds of manufactured tobacco, which, on being subjected to the usual tests, was found to have added thereto and mixed therewith four per cent. of saccharine matter; that the adulteration had been made in the course of the manufacture and not after

wards; and that the respondent had purchased the tobacco of a manufacturer as genuine tobacco, and believed that the tobacco seized was genuine, and that he had no knowledge nor cause to suspect that the tobacco he so purchased, and which was seized, had any saccharine matter added to or mixed therewith, or that it had been manufactured in any other way than as directed by law. The Court of Quarter Sessions dismissed the appeal, subject to a case for the opinion of the Court of Exchequer, upon two points. 2d. Whether the respondent had been guilty of the offence charged in the information."

Crompton (arguendo). First, as to the question whether this case amounts to an offence within the statute. It is clear that this defendant is morally innocent, and he has been pronounced to be so by two several tribunals. Then the question is, whether there must not be some limitation put upon the general words of this act, in order to exclude such a case, viz.: that the tobacco shall be in some way or other unlawfully in the possession of the party. The principle is familiar that in all criminal and penal cases, unless the party be guilty, unless there be something wrong in the transaction, there is no offence or crime. Is the party to be liable to this heavy penalty if he have in his possession an ounce of tobacco, which, by any carelessness, may have a grain of saccharine matter in it, which may even have been poured upon it by the informer himself, or by a shopman, or apprentice, from malicious motives? The word "unlawfully" may reasonably be imported into the statute, in order to prevent so monstrous an interpretation. [POLLOCK, C. B. There can be no doubt that every stringent law, which is made for the purpose of working some great public good, will be attended with frequent cases of hardship, and sometimes with cases of apparently great injustice. That, however, is a matter for the consideration, either of those who make the laws, or of those who call for the execution of them. Suppose it a case, not of protecting the revenue, but of protecting the public health, as where the beer act forbids persons to have things in their possession at all. So, you are not allowed to have bank paper in your possession; it is so dangerous that any person should be allowed to have it, that it is absolutely prohibited.] Then the parties are wilfully disobeying the act of Parliament.

[POLLOCK C. B. So you are here wilfully disobeying the act of Parliament, if you do not take due pains to examine the article in which you deal, and to ascertain, before you receive it, that it is of a character which the law permits you to have.] That might require a nice chemical analysis. [PARKE, B. You must get some one to make that nice chemical analysis, or you must rely upon the manufacturer or dealer who sells to you, and take your remedy against him. You may take a warranty

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