he violated. Ignorantia juris non excusat, is therefore a rule of our jurisprudence, as of the Roman, from which it is derived. This rule, so essential to the orderly administration of justice, cannot be deemed severe in criminal cases generally; because most indictable wrongs are mala in se, and so if offenders do not know that the law of the land forbids their acts, they are still conscious of violating the "law written in their hearts." And they have little cause to complain when unexpectedly called to receive, in this world, some of the merited punishment they had hoped to postpone to the next.4

§ 239. We have already seen an illustration of this rule in the doctrine, that, when statutes take effect, they are immediately operative throughout the country, even in localities so remote as to render any knowledge of their existence impossible. Thus a vessel having sailed, in disobedience to an embargo act, so soon after its passage that the master could not have been informed of the act, he was still holden to have violated it, without legal excuse. This is a strong case; because the thing done was not malum in se, but only malum prohibitum. In another case, where the court considered the transaction to be malum in se, it decided, that, if a new penalty is imposed for a breach of the laws of impost

1 1 Hale P. C. 42; 1 Russ. Crimes, Grea. Ed. 25; Wilson v. The Mary, Gilpin, 31; Reg. v. Price, 3 Per. & D. 421, 11 A. & E. 727; Rex v. Esop, 7 Car. & P. 456; Commonwealth v. Bagley, 7 Pick. 279; Reg. v. Good, 1 Car. & K. 185; Rex v. Soleguard, Andr. 231; Rex v. Thomas, 1 Russ. Crimes, Grea. Ed. 614; Rex v. Collier, 5 Car. & P. 160; Shattuck v. Woods, 1 Pick. 171; Lincoln v. Shaw, 17 Mass. 410; The Joseph, 8 Cranch, 451; Hurt v. The State, 19 Ala. 19; Reg. v. Hoatson, 2 Car. & K. 777; Walker v. The State, 2 Swan, Tenn. 287.

Broom Leg. Max. 2d ed. 190; 4 Bl. Com. 27; 1 Spence Eq. Jurisd. 632, 633.

Rom. ii. 15. And see ante, § 5, 6, 227, 228.

And see observations in The State v. Boyett, 10 Ired. 336, 343, 344; and United States v. Fourteen Packages, Gilpin, 235, 249, 250.

Ante, § 59; Heard v. Heard, 8 Ga. 380.

The Ann, 1 Gallis. 62.

previously existing, the penalty may be recovered, though the party had no knowledge of the statute when he committed the wrong. Yet when courts are called to pass sentence on the prisoner, they sometimes take into consideration his ignorance of the law. And, in England, where one was convicted of a malicious shooting on the high seas, under a statute the existence of which could not have come to his knowledge, the judges recommended a pardon; yet it does not appear that this was done from any doubt as to the correctness of the conviction in matter of law.3

§ 240. But the doctrine, that every man is conclusively presumed to know the law, cannot, as respects criminal cases, be carried much, if at all, further than is stated in the last two sections. In civil causes it would seem, that, if law and fact are blended as a mixed question, or if one's ignorance of fact is produced by ignorance of law, the whole may be regarded as ignorance of fact, of which the party is at liberty to take advantage. So in criminal jurisprudence, if the guilt or innocence of the prisoner depends on the fact, to be found by the jury, of his having been or not, when he did the act, in some precise mental condition, which mental condition is the gist of the offence, the jury, in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law. Thus, to constitute larceny there must be an intent to steal, which involves the knowledge that the property taken belongs not to the taker; yet, if all the facts concerning the title are known to the accused, and so the question is one merely of law whether the property is his or not, still he may show that he honestly believed it his, through a misapprehension of

1 United States v. Fourteen Packages, Gilpin, 235, 249.

2 Rex v. Lynn, 2 T. R. 733.

Rex v. Bailey, Russ. & Ry. 1. See Rex v. Thomas, 1 Russ. Crimes, Grea. Ed. 614.

* See 1 Story Eq. Jurisp. c. 5; and the article in 23 Am. Jur. 147, 371.

law.1 And there are other cases involving the same principle.2 Likewise in proceedings against magistrates and other quasi judicial and sometimes ministerial officers, for acting corruptly in their office, their misapprehensions of the law may be set up in answer to the charge of corruption;3 unless, perhaps, the mistake were induced by gross carelessness or ignorance, partaking of the criminal quality.

§ 241. But ignorance of fact stands, in both civil and criminal jurisprudence, on an entirely different ground from ignorance of law. The rule is, ignorantia facti excusat. "Ignorance or mistake in point of fact is," therefore, in the language of Gould, J., " in all cases of supposed offence, a sufficient excuse." In questions of private right between individuals, that is, in civil causes, this rule is not universal. For

1 Rex v. Hall, 3 Car. & P. 409; Reg. v. Reed, Car. & M. 306; Commonwealth v. Doane, 1 Cush. 5; The State v. Homes, 17 Misso. 379.

2 Jackson v. Andrews, 7 Wend. 152; United States v. Conner, 3 McLean, 573; Reg. v. Langford, Car. & M. 602; Dye v. Commonwealth, Grat. 662; Goforth v. The State, 8 Humph. 37; Commonwealth v. Weld, Thacher Crim. Cas. 157. But see Reg. v. Hoatson, 2 Car. & K. 777. And see Reg. v. Good, 1 Car. & K. 185. Contra and query, as to illegal voting, McGuire v. The State, 7 Humph. 54; and on which see the State v. Boyett, 10 Ired. 336; Commonwealth v. Bradford, 9 Met. 268; Reg. v. Lucy, Car. & M. 511, and The State v. McDonald, 4 Harring. Del. 555.

Rex v. Jackson, 1 T. R. 653; Rex v. Barrat, 2 Doug. 465; Rex v. Cope, 7 Car. & P. 720; Rex v. Corbett, Say. 267; Linford v. Fitzroy, 13 Q. B. 240; Reg. v. Badger, 6 Jur. 994; Rex v. Fielding, 2 Bur. 719; Commonwealth v. Jacob, 2 Leigh, 709; The State v. McDonald, 4 Harring. Del. 555; The State v. Porter, 4 Harring. Del. 556; Hoggatt v. Bigley, 6 Humph. 236; Lining v. Bentham, 2 Bay, 1; The State v. Johnson, 2 Bay, 385; Commonwealth v. Shedd, 1 Mass. 227; The State v. Porter, 2 Const. 694; The State v. Johnson, 1 Brev. 155; In Re 14 Eng. L. & Eq. 151. See The State v. McDonald, 3 Dev. 468; Mungear v. Wheatley, 1 Eng. L. & Eq. 516.

6

Rex v. Stukely, 12 Mod. 493; ante, § 230-237.

Broom Leg. Max. 2d ed. 190; 1 Story Eq. Jurisp. § 140.

Myers v. The State, 1 Conn. 502,

See 4 Bl. Com. 27; Hawk. P. C. Curw. Ed. p. 5, § 14, note; Common-wealth v. Drew, 19 Pick. 179, 184.

here, as observed by the same authority, "the end proposed by the law is not the punishment of an offender, but the mere reparation of a private loss or injury, to which the plaintiff has been subjected by the act of the defendant; and it is deemed just and reasonable, independently of any question of intent, that he by whose act a civil injury has been occasioned, should ultimately sustain the loss which has accrued, rather than another." 1

§ 241 a. On this distinction between error of law and of fact, offered in excuse for crime, rest many rules pertaining to this department of our jurisprudence. We shall mention a few of them here, and mention other of them in their order, elsewhere in these volumes.

§ 242. The wrongful intent being the essence of every crime, the doctrine necessarily follows, that, whenever a man is misled, without his own fault or carelessness, concerning facts; and, so misled, acts as he would be justified in doing were the facts what he believes them to be, he is legally innocent, the same as he is innocent morally. The rule in morals is stated by Dr. Wayland to be, that, if a man "know not the relations in which he stands to others, and have not the means of knowing them, he is guiltless. If he know them, or have the means of knowing them, and have not improved these means, he is guilty."5 The legal rule is neatly

1

1 Myers v. The State, 1 Conn. 502. And see post, § 244.

2 Ante, § 227.

4

Ante, § 230-237.

Myers v. The State, 1 Conn. 502; Reg. v. Allday, 8 Car. & P. 136; McNaughten's case, 10 Cl. & F. 200; Anonymous, Foster, 265; Rex v. Levett, cited Cro. Car. 538; Commonwealth v. Rogers, 7 Met. 500; Tom v. The State, 8 Humph. 86; 1 East P. C. 334; Reg. v. Parish, 8 Car. & P. 94; Rex v. Forbes, 7 Car. & P. 224; Reg. v. Leggett, 8 Car. & P. 191; Commonwealth v. Power, 7 Met. 596; Rex v. Rickets, 3 Camp. 68; Reg. v. James, 8 Car. & P. 131; Commonwealth v. Kirby, 2 Cush. 577; United States v. Pearce, 2 McLean, 14, and the cases cited in the next five şections.

• Wayland Moral Science, 81.

enunciated by Baron Parke, thus: "The guilt of the accused must depend on the circumstances as they appear to him."1 The doctrine prevails likewise in the Scotch law,2 as it neces sarily must in every system of Christian and cultivated law.

§ 243. This doctrine is often illustrated in those cases wherein the taking of life is held to be justifiable, either in self-defence, or to prevent the person killed from committing a felony. Here the rule is, that if, in the language of the books, one has reasonable cause to believe the existence of the facts which excuse the homicide, or, to express the idea accurately, if, without his fault or carelessness, he does believe them, he is legally innocent; though it turns out that he was mistaken, and so the life of another innocent person is unfortunately extinguished. And when the erroneous belief is of facts which, if true, would reduce the killing to manslaughter, the offence is in law only manslaughter.5

§ 244. In like manner, since the vessels of all nations may capture pirates on the high seas, if an innocent merchant vessel conducts in a way to create the belief of her being piratical, another vessel, capturing her under this belief in her commander, is not subject to forfeiture. So a reasonable suspicion,

1 Reg. v. Thurborn, 1 Den. C. C. 387.

21 Alison Crim. Law, 565; 1 Hume Crim. Law, 2d ed. 449; McDonald's case, 1 Broun, 238.

For a discussion of the right of self-defence, see Vol. II. § 543-583.

The State v. Scott, 4 Ired. 409; Rex v. Scully, 1 Car. & P. 319; The State v. Field, 14 Maine, 244; Grainger v. The State, 5 Yerg. 459; The State v. Rutherford, 1 Hawks, 457; The State v. Roane, 2 Dev. 58; Rex v. Holloway, 5 Car. & P. 524; 1 East P. C. 273-277; 1 Hale P. C. 42; Broom Leg. Max. 2d ed. 200, 201; 1 Gab. Crim. Law, 13; Oliver v. The State, 17 Ala. 587; United States v. Wiltberger, 3 Wash. C. C. 515. Contra, majority of the court, in People v. Shorter, 4 Barb. 460. And see McDaniel v. The State, Sm. & M. 401; Vol. II. § 583.

1 East P. C. 251, 273, 292, 315, 316, 318; Rex v. Woolmer, 1 Moody, 334; Reg. v. Walters, Car. & M. 164; Stanley's case, J. Kel. 86. • The Marianna Flora, 11 Wheat. 1. With regard to the principle in this