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§ 292. Importance Difficulties. In the entire criminal law, there is no subject superior in importance to this, or on which judicial decision is more apt to go blind or stumble. The doctrines are of themselves simple, but they connect and combine. with many other doctrines, and at the points of union complications are created embarrassing and sometimes misleading to minds habituated to a narrow vision. The writer will be pardoned, therefore, if he enters more minutely into explanations in this chapter, particularly in the parts of it which relate to mistake of fact, than on most other of the topics of these volumes.

§ 293. How Chapter divided. —We shall consider, I. Ignorance of Law; II. Mistake of Fact; III. Ignorance and Mistake both of Law and Fact.

§ 294. 1. Arbitrary. The rule under this sub-title, unlike the next, is arbitrary, — compelled by necessity, the great master of all things.1 Without it justice could not be administered in our tribunals. It is that,

2. Knowledge presumed. In general, every person is presumed to know the laws of the country wherein he dwells; 2 or wherein, if residing abroad, he transacts business. And within

1 Crim. Pro. I. § 7, 493-498; post, § 346 et seq.

2 Broom Leg. Max. 2d ed. 190 et seq.; Kent, Ch. in Lyon v. Richmond, 2 Johns. Ch. 51, 60. A foreigner personally here is held to know our laws, like a native subject. Reg. v. Barronet, Dears. 51.

8 Cambioso v. Maffet, 2 Wash. C. C. 98. But ignorance of the laws of a foreign country, by one not in it, is ignorance of fact, within the rule that men are not conclusively presumed to know facts. Haven v. Foster, 9 Pick. 112, 19 Am. D. 353; 1 Story Eq. Jur. § 140.

limits not well defined, this presumption is conclusive. Its conclusiveness comes from necessity, as just said; or, as it is sometimes laid down, from considerations of public policy, beyond which it cannot extend, though the authorities do not show precisely how broad is this foundation of policy. Yet it is safe

3. Ignorance no Defence. In neither a criminal nor civil cause, in any circumstances, can one justify his act by the naked showing that when he did it he did not know the existence of the law he violated.2 Not even, in general, is the excuse valid that he endeavored to ascertain the law and was misled by advising counsel. 3 Ignorantia juris non excusat is, therefore, a rule in our jurisprudence, as in the Roman whence it is derived.4

§ 295. Severity of Rule (Malum in Se-Malum Prohibitum). -This rule, thus essential to the orderly administration of justice, is practically harsh when applied to what is only malum prohibitum. But generally in the criminal law it is not specially so; because most indictable wrongs are mala in se, so that 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." 5 And they have little ground to complain when unexpectedly called to receive, in this world, some of the merited punishment which they hoped only to postpone to the next. An illustration of the severity of the rule is

§ 296. 1. Statutes impossible to be known.

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

2 1 Hale P. C. 42; 1 Russ. Crimes, 3d Eng. 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; C. v. Bagley, 7 Pick. 279; Reg. v. Good, 1 Car. & K. 185; Rex v. Soleguard, Andr. 231; Rex v. Thomas, 1 Russ. Crimes, 3d Eng 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. S. 19 Ala. 19; Reg. v. Hoatson, 2 Car. & K. 777; Walker v. S. 2 Swan, Tenn. 287; Whitton v. S. 37 Missis. 379; Winehart v. S.

Ind. 30; McConico v. S. 49 Ala. 6, 8; Derixson v. S. 65 Ind. 385; U. S. v. Cargo of Sugar, 3 Saw. 46; Davis v. C. 13 Bush, 318; S. v. Bryson, 81 N. C. 595; P. v.

- Statutes, in

Cook, 39 Mich. 236, 33 Am. R. 380; Thompson v. S. 26 Tex. Ap. 94; Grumbine v. S. 60 Md. 355; S. v. Welch, 73 Mo. 284, 39 Am. R. 515. And see Webster v. Sanborn, 47 Me. 471.

8 Forwood v. S. 49 Md. 531; Hoover v. S. 59 Ala. 57; Green v. S. 59 Ala. 68; P. v. Weed, 29 Hun, 628; Weston v. C. 111 Pa. 251. See Stat. Crimes, § 805, 820-825; post, § 298; Chaplin v. S. 7 Tex. Ap. 87; Schuster v. S. 48 Ala. 199; S. v. Goodenow, 65 Me. 30.

Broom Leg. Max. 2d ed. 190; 4 Bl. Com. 27; 1 Spence Eq. Jur. 632, 633. 5 Rom. ii. 15. And see ante, § 10, 11, 210, 287, 288.

6 And see observations in S. v. Boyett, 10 Ire. 336, 343, 344; and U. S. v. Fourteen Packages, Gilpin, 235, 249, 250.

the absence of any provision to the contrary, take effect throughout the country on the first moment of the day of their enactment;1 and thereon they are operative in localities so remote as to render any knowledge of their existence impossible.2 Thus, — 2. Embargo Penalty. A vessel having sailed in disobedience of an embargo act, so soon after its passage that the master could not know of it, he was still held to have violated it without legal excuse. This is a strong case; because the thing done was only malum prohibitum. In another case, where the court deemed the transaction malum in se, it decided that a newly imposed penalty for a breach of prior impost laws may be recovered though the party was not informed of the statute when he did the wrong. Yet

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3. Mitigation of Punishment.

The court will sometimes make

its sentence less by reason of the prisoner's ignorance of the law. And5

4. Pardon. -In England, where one was convicted of a malicious shooting on the high seas, under a statute he could not have known of, the judges recommended a pardon. But it does not appear that this was from any doubt of the lawfulness of the conviction. 6

To the foregoing doctrines there are some

§ 297. Apparent Exceptions, not Real:

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1. Condition of Mind. There are crimes which cannot be committed of general malevolence, but they require a particular

1 Stat. Crimes, § 27 et seq.

2 The Ann, 1 Gallis. 62; Branch Bank of Mobile v. Murphy, 8 Ala. 119; Heard v. Heard, 8 Ga. 380. And see Oakland v. Carpentier, 21 Cal. 642.

8 The Ann, 1 Gallis. 62. Contra, Ship Cotton Planter, 1 Paine, 23, Livingston, J. admitting that ignorance of a law does not excuse its breach. But, When Statutes take effect. He deems that statutes should not be treated as of force until there has been time to promulgate them. (As to which see Stat. Crimes, § 28-32.) Concerning the question in controversy he says: "As it regards laws of trade, . . . the court thinks it cannot greatly err in saying that such laws should begin to operate in the different districts only from the times they are respectively received, from the proper department, by the collector of customs, unless notice of

them be brought home in some other way to the person charged with their violation." p. 27. Accidentally this case was omitted from the early editions of this work; and an eminent judicial person, calling my attention to it, observes that he has "always regarded it as a very sensible decision." On the other hand, the hardships resulting from the more common doctrine are not greater than occur in many other instances of actual ignorance of the law; and it is not quite plain how a judge, who expounds the laws and does not make them, can bend the strict rule in these cases when he cannot in the others.

U. S. v. Fourteen Packages, Gilpin, 235, 249.

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

6 Rex". Bailey, Russ. & Ry. 1. See Rex v. Thomas, 1 Russ. Crimes, 3d Eng. ed. 614.

evil condition of the mind, existing in actual fact.And ignorance of the law, the same as any other cause, if it renders the special state of mind impossible, takes away the offence. Thus,

2. Larceny exists only where there is an intent to steal. And an indispensable element in this intent is the knowledge that the property taken does not belong to the taker. Therefore if all the facts concerning the title are known to him, and so the question is simply of law whether or not the property is his, still he may show, and it will be adequate in defence, that he honestly believed it his through misapprehending the law.1 And → § 298.

1. Malicious Mischief is the same. 2 Thus, 2. Pulling down House. - On a trial under the English statute to punish those who in a riot "pull down, &c., any house," it was ruled that the offence was not committed by defendants who truly believed, though erroneously, understanding the facts, but not the law in its application to them, that the house belonged to one of them.3 So,

3. "Maliciously," &c. - In Tennessee, it being made punishable "wilfully or maliciously" to "throw down any fence," one who in good faith throws down his neighbor's, believing it to be his own, where the title under which he claims is really not sufficient in law, is not indictable. Again,

4. Perjury (False Oath under Advice). —If, as held under the early Bankrupt Act of the United States, a bankrupt submits the facts concerning his property fairly and honestly to counsel, through whose advice he withholds from his schedule items. which truly in law ought to be on it, still, in swearing to the schedule, he does not commit perjury. Likewise,

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§ 299. Official Corruption. In proceedings against magistrates and other quasi judicial and sometimes ministerial officers,

1 Rex v. Hall, 3 Car. & P. 409; Reg. v. Reed, Car. & M. 306; C. v. Doane, 1 Cush. 5; S. v. Homes, 17 Mo. 379, 57 Am. D. 269; P. v. Husband, 36 Mich. 306; Evans v. S. 15 Tex. Ap. 31; Vol. II. § 851. A mere pretence of claim set up by one who does not himself believe it to be valid does not prevent his act of taking from being a larceny. S. v. Bond, 8 Iowa, 540.

2 Vol. II. § 998.

5 U. S. v. Conner, 3 McLean, 573. And see Vol. II. § 1047. Further Points.For further matter relating to the subject of this section, see Hendricks v. Andrews, 7 Wend. 152; C. 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. S. 7 Humph. 54; and on which see S. v. Boyett, 10 Ire. 336;

8 Stat. 7 & 8 Geo. 4, c. 30, § 8; Reg. v. C. v. Bradford, 9 Met. 268; Reg. v. Lucy, Langford, Car. & M. 602, 605.

Goforth v. S. 8 Humph. 37; to the same effect, Dye v. C. 7 Grat. 662.

Car. & M. 511; S. v. McDonald, 4 Harring. Del. 555; and S. v. Hart, 6 Jones, N. C. 389.

for acting corruptly in their office,1 their misapprehensions of the law may be set up in answer to the charge of corruption; 2 unless, perhaps, the mistake was induced by gross carelessness or ignorance, partaking of the criminal quality. In conclusion, —

§ 300. The Doctrine of this Sub-title is not a real departure from the law's fundamental principle that crime exists only where the mind is in fault. The evil purpose need not be to break the law; it suffices if it is simply to do the thing which the law in fact forbids. As to those crimes which require special form of the evil intent, any ignorance of the law which precludes the entertaining of it has the effect to excuse the doer, but not an ignorance that the law punishes the wrong.

II. Mistake of Fact.

§ 301. 1. Distinguished. There is no necessity or technical rule, like that applicable to ignorance of law, requiring mistake of fact to be dealt with contrary to abstract justice. Hence,

2. Excuses. In crime, the maxim for it is Ignorantia facti excusat,5-expressed by Gould, J.:6 "Ignorance or mistake in point of fact is, in all cases of supposed offence, a sufficient excuse." 7 How the law qualifies this general truth we shall see as we proceed.

3. In Civil Jurisprudence, where "the end proposed by the law is not the punishment of an offender but the mere reparation of a private loss or injury," the rule is often otherwise, being just "that he by whose act a civil injury has been occa

1 Vol. II. § 972, 976.

2 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; C. v. Jacobs, 2 Leigh, 709; S. v. McDonald, 4 Harring. Del. 555; S. v. Porter, 4 Harring. Del. 556; Hoggatt v. Bigley, 6 Humph. 236; Lining v. Bentham, 2 Bay, 1; S. v. Johnson, 2 Bay, 385; C. v. Shedd, 1 Mass. 227; S. v. Porter, 2 Tread. 694; S. v. Johnson, 1 Brev. 155; In re

14 Eng. L. & Eq. 151; P. v. Powell, 63 N. Y. 88; Green v. Talbot, 36 Iowa, 499; S. v. Powers, 75 N. C. 281. See S. v. McDonald, 3 Dev. 468; Mungeam v Wheatley, 1 Eng. L. & Eq. 516; P. v.

-it

Calhoun, 3 Wend. 420; Cutter v. S. 7 Vroom, 125; Leeman v. S. 35 Ark. 438, 37 Am. R. 44.

8 Rex v. Stukely, 12 Mod. 493; post, § 313 et seq.

4 Post, § 309; S. v. Voight, 90 N. C. 741 ; S. v. King, 86 N. C. 603; Davis v. Beason, 133 U. S. 333; Mullens v. S. 82 Ala. 42, 60 Am. R. 731; McKibbin v. S. 40 Ark. 480; Green . Griffin, 95 N. C. 50; U. S. v. Leathers, 6 Saw. 17.

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

Myers v. S. 1 Conn. 502.

7 See 4 Bl. Com. 27; 1 Hawk. P. C. Curw. ed. p. 5, § 14, note; C. v. Drew, 19 Pick. 179, 184