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against persons accused. It seems to have been laid down, that a mere omission to do an act will not render a person liable for manslaughter, if death follows the omission,1-a proposition which is usually, perhaps universally, true where there is not a legal duty;2 but not where there is. The dif ference between omitting and doing is not so much in principle as in degree.1

§ 236. We have seen, that a man may be so careless in the employment of a servant, as to become liable criminally

1 Rex v. Green, 7 Car. & P. 156.

* Rex v. Allen, 7 Car. & P. 153; Rex v. Smith, 2 Car. & P. 449; Reg. v. Barrett, 2 Car. & K. 342; Rex v. Squire, 1 Russ. Crimes, Grea. Ed. 19; Reg. v. Edwards, 8 Car. & P. 611; Rex v. Saunders, 7 Car. & P: 277; Reg. v. Vann, 8 Eng. L. & Eq. 596, 2 Den. C. C. 325, 5 Cox C. C. 379; ante, § 230, 231.

Rex v. Friend, Russ. & Ry. 20; Reg, v. Lowe, 3 Car. & K. 123, 4 Cox C. C. 449, 7 Law Reporter, N. s., 375, and note, 1 Ben. & H. Lead. Cas. 49; ante, § 231.

On this point, the observations of a Scotch law writer may not be uninteresting: "The general principle," says Alison, "is, that in acts, either of duty or amusement, all persons are bound to take due care that no injury is done to any of the lieges; and that, if death ensue from the want of such care, they must be answerable for the consequences. Of course the degree of care which the law requires, varies with the degree of peril which the lieges sustain from its want. It is greatest where the peril is most serious, and diminishes with the decrease in the danger incurred by negligence or inattention. Thus the masters of steamboats, who are intrusted with the guidance of floating vessels of immense size, and moving with the greatest velocity, are bound to exercise the highest degree of vigilance: the drivers of stage-coaches are answerable for the next degree of diligence, then drivers of ordinary carriages and riders on horseback. This arises from the different degrees of peril which the lieges sustain from such negligence, and the greater degree of skill expected from those who are intrusted with the direction of the higher species of vehicles." 1 Alison Crim. Law, 113, and see several of the succeeding pages in this author. The Scotch law would seem to require rather less carelessness in degree to constitute what it terms culpable homicide, than the English, to constitute the corresponding offence of manslaughter. Mr. Bennett has discussed the distinction between negligent omission and commission, in a note to Reg. v. Lowe, 1 Ben. & H. Lead. Cas. 49, reported, as above mentioned.

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for acts done by him in his service. So it appears from some of the older books, that a sheriff may be indicted for a mere negligent escape,2 suffered by a deputy, as his jailer; because he "ought to put in such a jailer as for whom he will be answerable." But there is doubt, whether this doctrine concerning the sheriff would now be acknowledged, in the absence of some special circumstances, even to this extent; and the general principle seems to be settled, that he cannot be held criminally for the conduct of his deputy; though he may be liable in proceedings of a nature quasi criminal, for the enforcement of civil rights. We have already seen such to be the general doctrine, in respect to the responsibility of persons for what is done by their servants and other agents. Thus, under the various statutes forbidding the sale of intoxicating drinks without license, and the sale of goods to slaves without authority from their masters, it is a sufficient answer to an indictment, that the sale was made by the defendant's clerk, unauthorized, either absolutely or impliedly by the defendant. Even where the words of an enactment were, " by an agent or otherwise," the Connecticut court held, two judges dissenting, that the want of authority in the servant to make the sale was an adequate defence for the master; and Ellsworth, J., in delivering the opinion of the majority, observed: "The master is never liable criminally for acts of his servant, done without his consent, and against

1 Ante, § 231.

2 See ante, § 231, 234.

* Rex v. Fell, 1 Ld. Raym. 424, 5 Mod. 414, 416; 1 Hawk. P. C. Curw. Ed. p. 198, § 29. But see the report of Rex v. Fell, in 1 Salk. 272. See also Rex v. Lenthall, 3 Mod. 143, 146; Reg. v. Belwood, 11 Mod. 80.

* Commonwealth v. Lewis, 4 Leigh, 664; The State v. Berkshire, 2 Cart. Ind. 207; Overholtzer v. McMichael, 10 Barr, 139; East P. C. 331.

• Matter of Stephens, 1 Kelly, 584; Overholtzer v. McMichael, 10 Barr, 139. And see Miller v. Lockwood, 5 Harris, Pa. 248.

• Ante, § 231.

Hipp v. The State, 5 Blackf. 149; The State v. Dawson, 2 Bay, 360; Barnes v. The State, 19 Conn. 398. And see Ewing v. Thompson, 13 Misso. 132; Caldwell v. Sacra, Litt. Sel. Cas. 118.

his express orders. The liability of a bookseller to be in dicted for a libel sold from his store, by his clerk, is nearest to it. But the character of these cases has not always been understood. If carefully examined, they will be found to contain no new doctrine. The leading case is Rex v. Almon.1 Other cases followed, as may be seen.2 But, having examined these cases, we speak with confidence that they contain no new doctrine. They make a sale in the master's store high, and unexplained, decisive evidence of his assent and coöperation; but they will not bear out the claim, that a bookseller is liable at all events for à sale by his general clerk. Lord Mansfield said, in Rex v. Almon, 'the master may avoid the effect of the sale, by showing he was not privy nor assenting to it, nor encouraging it.' So in Starkie it is said, that the defendant in such cases may rebut the presumption by showing that the libel was sold contrary to his orders, or under circumstances negativing all privity on his part." 3

§ 237. Whatever apologies may be offered for the rule laid down in the law of libel, clearly the doctrine which holds the employer liable criminally for what the employed does, has been there carried to an extent not witnessed under most other titles of the criminal law. Difficulties attend the proof of a defendant's participation in a libel published by his genral agent or clerk, if a particular consent is required to be shown, sufficient to justify the very strong rule, that he shall be prima facie held to have commanded the publication. So far, at least, the rule very properly extends on the authorities. And the doctrine, on the other hand, is wisely laid down, that cases may exist, in which a proprietor of a newspaper will not be answerable criminally for what appears in

1 Rex v. Almon, 5 Bur. 2686.

22 Stark. Slander, 2d ed. 34; 2 Hawk. P. C. 7th ed. c. 73, § 10; Rex v. Walter, 3 Esp. 21; Rex v. Gutch, Moody & M. 433, 437; Attorney-General v. Siddon, 1 Cromp. & J. 220, 1 Tyrw. 41; Attorney-General v. Riddle, 2 Cromp. & J. 493, 2 Tyrw. 523.

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his paper.1 Still the authorities seem further to go even to the extreme point, that such proprietor is generally answerable, though the paper is conducted by his servants, he having no knowledge of the matter in it, which, on its coming to his notice, he disapproves. The case of a nuisance, considered a few sections back,3 may occupy perhaps somewhat peculiar ground; for here there is in the public a quasi civil right to be established; and we shall have occasion in later pages of this volume to see, that, in some criminal matters, the thing complained of is really no more than that a kind of public tort, rather than a pure crime, has been committed.

1 Rex v. Gutch, Moody & M. 433; 3 Greenl. Ev. § 178. In Rex v. Holt, 5 T. R. 436, 444, Kenyon, C. J., observed: "If the defendant could have shown, that he published the paper in question without knowing its contents, as that he could not read, and was not informed of its tendency until afterwards, that argument might have been pressed upon the jury."

* Rex v. Williams, Lofft, 759; Anonymous, Lofft, 544, 780; Rex v. Gutch, Moody & M. 433, 437; Rex v. Walter, 1 Esp. 21.

Ante, § 231.


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252, 253.

Conclusions as to Law and Fact concerning the Intent.

§ 238. Ir is a general principle, that every man is presumed to know the laws of the country in which he dwells;1 or in which, if resident abroad, he transacts business.2 And within limits not defined, this presumption is conclusive. Its conclusive character rests on considerations of public policy, and it cannot extend beyond this foundation, though we may not easily say, on the authorities, precisely how far the foundation of policy goes. Yet we may safely lay down the doctrine, that in no case can one enter a court of justice to which he has been summoned in either a civil or a criminal proceeding, with the sole and naked defence, that when he did the thing complained of he did not know of the existence of the law

1 Broom Leg. Max. 2d ed. 190 et seq.; Kent, Ch., in Lyon v. Richmond, 2 Johns. Ch. 51, 60. A foreigner in this country is held to know our laws, the same as if he were a native subject. Reg. v. Barronet, Dears, 51.

2 Cambisco v. Maffet, 2 Wash. C. C. 98. But ignorance of the laws of a foreign country is, except as is noticed in the text, ignorance of fact, persons not being held to know facts. Haven v. Foster, 9 Pick. 112; 1 Story Eq. Jurisp. § 140.

See 1 Story Eq. Jurisp. § 110 et seq.; also an article in 23 Am. Jur. 146, 371.

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