might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all. In either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, them who killed him. Under these circumstances the jury say they are ignorant whether those who killed him were guilty of murder, and have referred it to this court.

"There remains to be considered the real question of the case, whether killing under the circumstances as set forth in the verdict, be or be not murder. The contention that it could be anything else was to the minds of us all, both new and strange; and we stopped the attorney general in his negative argument that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before it, and we are now to consider and determine what it amounts to. First, it is said that it follows from various definitions of murder in the books of authority-which definitions imply, if they do not state, the doctrine-that, in order to save your own life, you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever, towards you or anyone else. But, if these definitions be looked at, they will not be found to sustain the contention.

The real authority of former times is Lord Bacon, who, in his commentary on the maxim 'Necessitas inducti privilegium quoad jura privata' lays down the law as follows: 'Necessity carrieth a privilege in itself. Necessity is of three sorts: Necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of conservation of life. If a man steals viands to satisfy his present hunger, this is no felony or larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side, to keep himself above water, and another to save his life, thrust him from it, whereby he is drowned, it is neither se defendendo nor by misadventure, but justifiable.' If Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day. Now, it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some wellrecognized excuse, admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called 'necessity.' Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality, would be of fatal consequence, and such divorce would follow if the temptation to murder in this

own.

case were to be held by law an absolute defense of it. It is not so. To preserve one's life is, generally speaking, a duty, but it may be the plainest and highest duty to sacrifice it. It is enough in a Christian country to remind ourselves of the Great Example which we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his There is no path safe for judges to tread, but to ascertain the law to the best of their ability, and to declare it according to their judgment; and if, in any case, the law appears to be too severe on individuals, to leave it to the sovereign to exercise that prerogative of mercy which the constitution has intrusted to the hands fittest to dispense it. It must not be supposed that, in refusing to admit temptation to be excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we ourselves would not satisfy" (18).

§ 44. Inability to perform legal duty. The law does not require the impossible. If a man, seeing his legal

(18) Queen v. Dudley, 15 Cox Crim. Cases 625.

duty, has, to the best of his physical ability, endeavored to perform it, the law will not visit punishment upon his failure from inability. Thus, in a prosecution for standing with horse and wagon in one place on a public street more than 20 minutes, in violation of a city ordinance, it was held a defense that the defendant was hemmed in by other vehicles and was unable to move on as the law required (19).

§ 45. Mistake as to the facts, as a defense. As a general proposition men are held liable criminally for their conduct according to the facts known to them at the time they did the act of which they are charged, or which by reasonable diligence they might have known; and if, without negligence on their part, they are mistaken as to the facts, and do an act which would be a crime if done with knowledge of the facts, they are held only according to the facts they knew. For instance, one Levet being indicted for the death of his servant, it appeared on the trial that while he was in bed at night, about 12 o'clock, a servant hearing a noise at the door, gave alarm to him that burglars were breaking into the house; whereon he, rising suddenly and taking his sword, ran down, and, hearing someone in the buttery, and supposing the burglar to be there, thrust his sword in and hit and mortally wounded his servant, who was there hiding; this was resolved to be neither murder nor manslaughter but misadventure (20). Of course this rule does not apply to the cases of those statutory crimes in which the legislature

has deemed it best to require all persons to act at their peril

§ 46. Mistake as to the law, as a defense. As a general proposition, mistake or ignorance as to the law, is no defense to a criminal charge; and this is a rule of necessity, for if a man were allowed to allege his ignorance of the law to excuse his criminal act, it would be impossible to convict any one of crime; for few, if any, know the law perfectly, and most men are grossly ignorant of it; and if ignorance were a defense a temptation would be held out to the worst portion of the community to ignore the law and regard only their own desires. When Susan B. Anthony alleged in defense of a prosecution for voting contrary to law that she believed she had a right to vote, and at all events desired to have the question settled by the courts, and had deposited her ballot for that purpose; the fact that she had deliberated on the question and taken good legal counsel before voting was held to be no excuse or justification (21). So strict is this rule that a sailor who was at sea when the law was passed and committed a crime on board the vessel before there was any possible opportunity for him to have learned of the statute, was held liable to punishment for violating it (22).

But, where the crime consists of three elements-act, intention to do it, and criminal purpose to be accomplished thereby-and knowledge of the law constitutes an essential part of that specific intent, ignorance of the

(21) United States v. Anthony, 11 Blatchf. 200. (22) Rex v. Bailey, Russell & R. 1.