particular crimes, has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the malicious mischief act, and a third in relation to libel, and so of fraud and negligence. With regard to knowledge of fact, the law, perhaps, is not quite so clear, but it may, I think, be maintained that in every case knowledge of fact is to some extent an element of criminality, as much as competent age and sanity. To take an extreme illustration, can anyone doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime, in a state of somnambulism, would be entitled to be acquitted? Why is this? Simply because he would not know what he was doing. A multitude of illustrations of the same sort might be given. A bona fide claim of right excuses lar ceny, and many of the offenses against the malicious mischief act. Apart, indeed, from the present case, I think it may be laid down as a general rule, that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offense. I am unable to suggest any real exception to this rule, nor has one ever been suggested to me. A very learned person suggested to me the following case: A constable reasonably believing a man to have committed murder, is justified in killing him to prevent his escape; but, if he had not been a constable, he would not have been so justified, but would have been guilty of manslaughter. This is quite true, but the mistake in the second case would be not only a mistake of fact, but a mistake of law, on the part

of the homicide in supposing that he, a private person, was justified in using as much violence as a public officer whose duty is to arrest, if possible, a person reasonably suspected of murder. The supposed homicide would be in the same position as if his mistake of fact had been true; that is, he would be guilty, not of murder, but of manslaughter. I think, therefore, that the cases reserved fall under the general rule as to mistakes of fact, and that the convictions ought to be quashed.

"I will now proceed to deal with the arguments which are supposed to lead to the opposite result. In the first place, I will observe upon the absolute character of the section. It appears to me to resemble most of the enactments contained in the consolidation acts of 1861, in passing over the general mental elements of crime which are presupposed in every case. Age, sanity, and more or less freedom from compulsion, are always presumed, and I think it would be impossible to quote any statute which in any case specifies these elements of criminality in the definition of any crime. It will be found that either by using the words 'wilfully and maliciously' or by specifying some special intent as an element of particular crimes, knowledge of fact is implicity made part of the statutory definition of most modern definitions of crimes. But there are some cases in which this cannot be said. Such are section 55 on which Queen v. Prince, (1) was decided; Sec. 56, which punishes the stealing of 'any child under the age of fourteen years'; Sec. 49, as to pro

(1) L. R. 2 C. C. 154.

curing the defilement of any woman or girl under the age of 21-in each of which the same question might arise as in Queen v. Prince. It was the case of a man abducting a girl under 16 believing on good grounds that she was above that age. Lord Esher, then Brett, J., was against the conviction. His judgment establishes at much length, and it seems to me, unanswerably, the principle above explained, which he states as follows: "That a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no offense at all, is an excuse, and that such an excuse is implied in every criminal charge and every criminal enactment in England.' Lord Blackburn, with whom nine other judges agreed, and Lord Bramwell, with whom seven others agreed, do not appear to me to have dissented from this principle, speaking generally; but they held that it did not apply fully to each part of every section to which I have referred. Some of the prohibited acts, they thought, the legislature intended to be done at the peril of the person who did them, but not all. Lord Bramwell's judgment proceeds upon this principle: "The legislature has enacted that if anyone does this wrong act, he does it at the risk of her turning out to be under sixteen. This opinion gives full scope to the doctrine of 'mens rea'.

"The application of this to the present case appears to me to be as follows: The general principle is clearly in favor of the prisoners, but how does the intention of the legislature appear to have been against them? It could not be the object of parliament to treat the mar

riage of widows as an act to be, if possible, prevented, as presumably immoral. The conduct of the woman convicted was not in the smallest degree immoral; it was perfectly natural and legitimate. Assuming the facts to be as she supposed, the infliction of more than nominal punishment, on her, would have been a scandal. Why, then, should the legislature be held to have wished to subject her to punishment at all? It is argued that

the proviso that a remarriage after seven years' separation shall not be punishable, operates as tacit exclusion of all other exceptions to the penal part of the section. It appears to me that it only applies a rule of evidence which is useful in many cases, in the absence of explicit proof of death." The conviction was quashed (1a).

§ 28. Motive distinguished.-Intent to do wrong. The reader should be cautioned against a common error. It is often supposed that the criminal intent consists in, or includes, an intent to do wrong, or an intent to violate the law. It involves nothing of the kind. The fallacy of this supposition is well illustrated by a case and opinion in the Supreme Court of the United States. A Mormon was prosecuted for bigamy and set up his religious belief that it was right, and the constitutional provisions guaranteeing the freedom of religion, as a defense. This defense not being allowed, he appealed, and his conviction was affirmed in the following language by Chief Justice Waite:

"Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of

(1a) Queen v. Tolson, L. R. 23 Q. B. Div. 168.

religion. The first amendment to the constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is; whether the law under consideration comes within this prohibition. Congress was deprived of legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

In

our opinion the statute immediately under consideration is within the legislative power of congress. It is constitutional and valid as prescribing the rule of action for all those residing in the territory, and in places over which the United States have exclusive control.

"This being so, the only question which remains, is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would introduce a new element into criminal law. Laws are made for the government of actions, and while they can not interfere with mere religious beliefs and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship. Would it be seriously contended that the civil government under which he lived could not interfere to prevent such a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil gov