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Liability for Crime

Published online by Cambridge University Press:  16 January 2009

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The Penal Code of the Russian Socialist Federal Soviet Republic: ‘Article 10. Persons who commit socially dangerous acts shall be liable to the application of measures of social defence of a judicial-correctional character only—

(a) if they acted deliberately, i.e., if they foresaw the socially dangerous consequences of their acts, or desired those consequences, or knowingly permitted them to happen, or

(b) if they acted carelessly, i.e., if they did not foresee the consequences of their acts although they ought to have foreseen them, or if they light-mindedly hoped to avert auch consequences.’

Type
Research Article
Copyright
Copyright © Cambridge Law Journal and Contributors 1946

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References

1 Analytically, it is very easy to find fault with Article 10: for example, it appears to adopt Austin's definition of Intention (Lecture 19, p. 434); but, ‘if they foresaw the socially dangerous consequences of their acts’ and ‘or if they light-mindedly hoped to avert such consequences’ leave us wondering whether an act, plus foresight, but with no desire, is classified as Intention or Negligence. But this is mere academic quibbling; the Article furnishes a sound practical working rule.

2 ‘The case where an offender could neither know that his conduct was wrong, nor that it was legally punishable, will be obviously exempted from criminal liability under any but the most irrationally tyrannical government’: Clark, , Analysis of Criminal Liability, 63.Google Scholar

3 One reads of severe treatment of political offenders, e.g., Times, 13 11, 1931.Google Scholar This indicates exceptional punishments rather than exceptions to the operation of Article 10. Where political education is very thorough, it is hardly possible that a citizen who expresses disagreement with the prevailing ideology should do so unintentionally.

4 Murphy, , Russian Prisons, 1, 8Google Scholar; McConnell, , Criminal Responsibility and Social Constraint, 82Google Scholar; Sen, , From Punishment to Prevention, 27Google Scholar; Morris, , Criminology, 492Google Scholar; Calvert, , The Lawbreaker, 9.Google Scholar

5 One would have expected some such section in this Code, considering its philosophical and legal origin: 11, Holdsworth, , History of English Law, 225.Google Scholar

6 Gour, , Penal Code of India, 177.Google Scholar A very salutary rule, but not always followed in English cases: Hewart L.C.J. in Chajutin v. Whitehead (1938) Times, 13 Jan.Google Scholar

7 Gour, , 888.Google Scholar

8 Gour, , 177, and notes 6, 7 and 8.Google Scholar Canada, Baldwin v. Snook (1918) 40 D. L. R. 333.Google Scholar Australia, Moffat v. Hassett (1907) V. L. R. 515.Google Scholar

9 SirRussell, Alison, The Magistrate, 10.Google Scholar

10 Archbold, Stone, Roscoe, Halsbury, Russell, and the older books.

11 Analysis of Criminal Liability.

12 Mens Rea.

13 Outlines of Criminal Law, 14th edition, Chapter III.

14 Some of the more recent articles are by Stallybrass, , 52 L. Q. R. 205.Google ScholarTurner, . 5 C. L. J. 61Google Scholar; 6 C. L. J. 31. Jackson, , 6 C. L. J. 83.Google ScholarLevitt, , 17 Illinois L. R. 578.Google ScholarSayre, , 45 Harvard L. R. 974.Google ScholarPerkins, , 52 Harvard L. R. 905.Google ScholarBorchard, , 52 Yale L. J. 477.Google Scholar

15 Holmes, , Common Law, 36.Google Scholar (Not necessarily so. Soviet Law seems to have reached consistency, and has provided for growth.)

16 This is not meant to be controversial, but to discuss various viewpoints which the student can follow up.

17 ‘If the different states of criminal consciousness can be designated by different terms, there can be no benefit in confusing them by the misuse of a word clearly enough understood in ordinary parlance.’ Clark, , 79.Google Scholar Probably no one will agree with my use of terms, but I like them. They are simple and convey the idea simply. Compare Stroud, 6: ‘Full Intention’ and ‘Imperfect Intention’: and Austin, Lecture 19.

18 ‘Imagining’ the death of the king was not successfully established as a crime by the Statute of Treasons, 1351. Intention, even though known, is not criminal, London (1913) 29 T. L. R. 375.Google Scholar We all have mens rea, but most of us get a grip on ourselves. Only those who let themselves go are criminals.

19 Austin, , Lecture 21, p. 454.Google Scholar

20 Holmes, , C. L. 54.Google Scholar

21 2 St. Hist. 100. Sleepwalking case, 1 Journal of Criminal Law, 46. Many writers use ‘Involuntary’ and ‘Voluntary’ to express Volition; I prefer Volition as Clark uses it: Clark, , 22.Google Scholar

22 8 Hold. H. 434; 2 St Hist. 94; Sayre, , 45 H. L. R. 1025Google Scholar; 1 Blake Odgers, Common Law, 120.

23 2 St. Hist. 110.

24 Stephen, , General View of the Criminal Law, 77.Google Scholar

25 Clark, , 73.Google Scholar Whether or not Intention could include an intent to commit a legal wrong, and the wrong turns out to be a crime, as Kenny, Stroud, and many judges, have thought, I shall discuss later when dealing with Prince (1875).Google Scholar It is said in the 4 Report Criminal Law Commissioners, 15, ‘the intention to do the act exists for all criminal purposes where it is wilfully done, although the act itself was merely intended as a means of obtaining some ulterior object.’

26 E.g., Assault, Battery, Mayhem, Rape: Burglary, Larceny, Receiving, all the Fraud group of crimes: Malicious Damage: Attempt at any crime: probably all crimes of an infant between 8 and 14 years.

27 E.g., Burglary: Larceny: the felony of Wounding. Clark, , 81 to 93.Google Scholar

28 Gour calls it ‘culpable rashness’: Gour, , 888.Google Scholar

29 Markby, , Elements of Law, 119.Google Scholar

30 Vaughan v. Menlove (1837) 3 Bing. N. Cas. 468.Google Scholar

31 Child (1871) 1 C. C. R. 307Google Scholar; Naltrass (1882) 15 Cox, 73Google Scholar; Harris and Atkins (1882) 15 Cox, 75Google Scholar; Faulkner (1876) 11 I. R. C. L. 8.Google Scholar

32 Stroud, , 11.Google Scholar

33 Perhaps I should mention here that ‘for purposes of the Criminal Law there are degrees of Negligence’: Lord Atkin, in Andrews (1938) 26 C. A. R. at p. 47.Google Scholar

34 Turner, , 5 C. L. J. 6465Google Scholar: 6 C. L. J. 32, 36. 38, 39, 42, 45, 46, 50. These seem to conflict with 5 C. L. J. 61, ‘that he clearly did foresee or that any ordinary person in the circumstances could not, in the opinion of the jury, fail to foresee’; and on p. 69 and p. 72, ‘must be deemed to have realized.’

35 I prefer the view taken by Austin that where there is foresight it is not negligence at all. Also Ewing, The Morality of Punishment, 54, ‘Carelessness is more dangerous to society than criminal propensities (being much more widespread) and ought to be punished accordingly.’ See Clark, , 54Google Scholar and Findlay J. in Davis & Wife (1937)Google ScholarTimes, 4, 5, 6 May, a conviction for manslaughter by gross negligence, but there was no foresight.

36 E.g., Food and Drugs Act, 1938, s. 9, (3): ‘or he did not know, and could not with reasonable diligence have ascertained.’ There are many recent statutes so worded; the effect is to put on the defence the burden of proving that there was no negligence.

37 Bromage. v. Prosser (1825) 4 B. & C. 247.Google Scholar

38 Gen, St.. View, 81.Google Scholar

39 Ward (1872) 1 C. C. R. at p. 360.Google Scholar

40 Pembliton (1874) 2 C. C. R. 119.Google Scholar

41 Martin (1882) 8 Q. B. D. 54.Google Scholar

42 Brett, L. J. in Clark v. Molyneux (1877) 3 Q. B. D. at p. 247.Google Scholar

43 Roper v. Knott [1898] 1 Q. B. 871.Google Scholar ‘Wilful’ and ‘Intentional’ are synonymous: Rudd v. Elder Dempster & Co., Ltd. [1933] 1 K. B. 566.Google Scholar

44 1 Odgers, Common Law, 123.

45 As was done in Tolson (1889) 23 Q. B. D. 168.Google Scholar

46 Chajutin v. Whitehead [1938] 1 K. B. 500Google Scholar; 31 Cox, 28; 107 L. J. K. B. 270; 158 L. T. 277; 54 T. L. R. 327; 102 J. P. 117; 1 All E. R. 159; 82 Sol. J. 175; 36 L. G. R. 187, and Sorsky & others (1944) 30 C. A. R. 84.Google Scholar I particularly give all these references because I want it to be seen how notorious these appealed Quasi-crime cases are; it is rare that they are reported in less than seven reports.

47 Jenks, , Book of English Law, 195Google Scholar; Wood & Waite, Crime and its Treatment, 306.Google Scholar

48 Channell, J. in Pearks, Gunston & Tee, Ltd. v. Ward [1902] 2 K. B. at p. 11Google Scholar; cited by Lord Reading C.J. in Mousell Bros. Ltd. v. L. & N. W. R. Co. [1917] at p. 845Google Scholar; 9 Hals. 11; 8 Hals. Stat. 843; Stroud, , 11, 39, 224.Google Scholar

49 Perkins, , 52 H. L. J. 905.Google Scholar

50 Borchard, , 52 Yale L. J. 493.Google Scholar

51 It would hardly be applicable to Mistake of Law in England, where some types of bigamy may be in the Quasi-crime group.

52 Winfield, , Tort, 8, 699Google Scholar; Province of the Law of Tort, 119Google Scholar; Jackson, , History of Quasi-Contract; Cheshire and Fifoot, Contract, 413Google Scholar; Salmond, , Torts, 12.Google Scholar

53 Jackson, , 6 C. L. J. 83.Google Scholar

54 Stallybrass, , 52 L. Q. R. 6667.Google Scholar

55 E. g., a very notorious case will not happen again; Laird v. Dobell [1906] 1 K. B. 131Google Scholar; for the Act of 1893 is repealed, and the Fertilisers and Feeding Stuffs Act, 1926, s. 7 (1), enacts, ‘unless he proves that he did not know and could not with reasonable care have known that the article contained,’ etc. The same applies to Bishop (1880) 5 Q. B. D. 259Google Scholar, tried by Stephen J.; the Act was repealed and re-enacted with safeguards. As to the cases on food and drugs, ‘selling to the prejudice of the purchaser,’ this is now the law in the Food and Drugs Act, 1938, s. 3, and six defences are set out in s. 4. A large number of cases against publicans are wiped out by the Licensing Act, 1910, s. 75 (3), ‘it shall lie on the holder of the licence to prove … took all reasonable steps for preventing drunkenness’; and s. 78 (a), ‘knowingly harbour or knowingly suffer to remain’; (b) ‘supply any liquor or refreshment’; the burden of proof in (a) is on the prosecution, in (b) on the defence; see 9 Hals. Stat. 1029.

Once in a while it goes the other way: the Food and Drugs Act, 1938, s. 1, leaves out the words ‘that he did not know and could not with reasonable care have known’ that were in sect. 1 of the Food and Drugs Act, 1928.

56 Common Law, 3.

57 Ward, , Psychology Applied to Education, 135Google Scholar; McDougall, , Social Psychology, 140.Google Scholar

58 Maine, , Ancient Law, 389Google Scholar; Ruxton, , Maliki Law, 311Google Scholar: a fine example—

‘Blood for blood, and blow for blow,

Thou shalt reap as thon didst sow.’

59 Holmes, , Common Law, 3.Google Scholar

60 Strahan-Davidson, , I, Problems of the Roman Criminal Law, 102Google Scholar; Poste, , Gaius, 16.Google Scholar

61 Maine, , Ancient Law, 390.Google Scholar

62 Rhetoric, , I, xiii, 16.Google Scholar

63 Vinogradoff, , 2 Historical Jurisprudence, 182188.Google Scholar

64 Manu, , c. 8, v. 128.Google Scholar

65 Manu, , c. 7, v. 16.Google Scholar

66 Thorpe, Ancient Laws and Institutes of England.

67 1 Thorpe, 85.

68 Perhaps those who condemn these old methods of trial are crediting men of Saxon England with their own sceptical lack of faith: they disregard God's judgment, and suggest an unfair trial. Apart from the psychology side, I prefer to think that Englishmen believed in their methods of trial, and carried them through with their accustomed judicial fairness. I should have liked to have seen Mile. Larsonneur tried by ordeal, 24 C. A. R. 74.

69 Assize of Clarendon, 1166, 2 P. & M. 454.

70 I am afraid this is pure speculation; I have no authority for it.

71 Tolson (1889) 23 Q. B. D. 185187.Google Scholar

72 2 P. & M. 476.

73 2 Holds. Hist., 43–54.

74 Bracton, , f. 136.Google Scholar

75 Holmes, , Common Law, 38.Google Scholar

76 3 Holds., 374.

77 8 Holds. 434.

78 Foster, , Crown Law, 262.Google Scholar

79 2 P. & M. 477.

80 E.g., Clark, Stephen, Kenny, Stroud; Odgers, Pound, Wood and Waite.

81 See North Carolina State Constitution, 1862, ‘To know the right but still the wrong to pursue proceeds from a perverse will brought about by the seductions of the evil one.’

82 2 St. Hist. 94 et seq.; and Tolson (1889) 23 Q. B. D. 185187.Google Scholar

83 Wood, and Waite, : (1941) Crime and its Treatment, 365.Google Scholar

84 Tobacco Act, 1843, s. 3; and Woodrow (1846) 15 M. & W. 404.Google Scholar

85 4 Bl. Comm. is a good example of the thought of the time; every crime involved moral guilt. See 12 Holds. 734, on Blackstone; he praises him very highly.

86 Compare the indices to Statutes; Archbold (indictable offences), 34 double-column pages of fine print; Stone, 143double-column; Clerk and Lindsell, Torts, 10 pages; Addison, Contract, 13 pages.

87 Bassey (1931) 22 C. A. R. 160Google Scholar; Manley(1933) 24 C. A. R. 25Google Scholar; Joyce [1946] 1 All E.R. 186.Google Scholar

88 Some of us reluctantly; see Hewart, New Despotism.

89 Sayre, , 45 Har. L. R. 1019: he says at p. 1025Google Scholar, ‘mens rea can never be analyzed into any single constituent element.’ See Sharman, J. in 21 C. A. R. at p. 135Google Scholar; Stallybrass, , 52 L. Q. R. 64Google Scholar; Perkins, , 52 Har. L. R. 908.Google Scholar Perkins suggests that all crimes require mens rea, the common ingredient in all is ‘X’; and some crimes require X plus some other element; but he does not explain what ‘X’ is. See also Turner, , 6 C. L. J. 35Google Scholar; Jackson, , 6 C. L. J. 92Google Scholar; citing Avory J.

90 And I prefer to take it in all crime that accused not only intended to break the law, but knew or ought to have known that he was breaking the law: that is, I include Mistakes of Law under the heading of Quasi-crime.

90a See note 45, ante, p. 214.Google Scholar

91 Kenny, Outlines of Criminal Law; I rather regret the learned editor's alterations. Bight or wrong, Kenny's very well argued analysis of liability was that of a great moralist; and it is worthy of an undisturbed place in legal literature.

92 Archbold, , 20, 21, 882Google Scholar; Stone, , 206207Google Scholar; and he makes a generalization on Quasi-crime from only four cases; 9 Halsbury, , 10, 11, 15, 16, 441445Google Scholar; Russell, , 44, 1332Google Scholar; Moriarty, , Police Law, 3, 4Google Scholar; Wigram, , Justice's Note Book, 228, 383Google Scholar; Harris, , 1822Google Scholar; 1 Bishop, , Criminal Law, 187.Google Scholar I have not found that practitioners afe given to much speculation, they stick to the text-books.

93 3 Holds. 375; 2 P. & M. 475. See argument for plaintiff in Stanley v. Powell [1891] 1 Q. B. 86.Google Scholar

94 Y. B. 6 Ed. IV. Mich. pl. 18.

95 Hollins v. Fowler (1875) 7 H. L. 757.Google Scholar

96 (1868) 3 H. L. 330.

97 Ames, , Lectures on Legal History, 131.Google Scholar

98 8 Holds. 450.

99 l Rolle Abr. 105, pl. 12. Also similar case, 1674, 1 Vent. 264; 8 Holds. 452.

100 Mitchil v. Aleatree (1686) 1 Vent. 295.Google Scholar

101 2 Ld. Raym. 909.

102 Sir Wm. Jones, Bailment, 2nd ed.; Story, , Bailments, § 23Google Scholar; Street, 1 Foundation of Legal Liability, 98 (this very excellent book gives much of the history of negligence in detail).

103 Winfield, , Tort, 426.Google Scholar

103a Buckland, , in Reflections on Jurisprudence, 110115Google Scholar, cogently argues that the alleged duty to take care in the law of tort is non-existent.

104 Donoghue v. Stevenson [1932] A. C. 562Google Scholar; Companies Act, 11139, s. 37. See Winfield, , Tort, 424Google Scholaret seq., for a thorough discussion of the subject.

105 8 Holds. 458.

106 See Crim, Canadian. Code, ss. 284, 285.Google Scholar

107 11 Holds. 325–326.

108 E.g., see Radzinowicz, , The Waltham Black Act, 9 C. L. J. 56.Google Scholar

109 Beven, Negligence, 5, where a lot is made of the Criminal Law only intervening where life or limb (?) is endangered, and other negligent acts are left to actions by the injured party. I might comment that very many negligent people are not worth suing.

110 Crowden (1911) 6 C. A. R. 190.Google Scholar

111 See Clark, , Analysis, 54Google Scholar, where he describes negligence very well.

111a See note 33, ante, p. 213.Google Scholar

112 Kingham v. Seager [1938] 1 K. B. 397.Google Scholar

113 Howell (1938) 27 C. A. R. 5.Google Scholar

114 Bosley v. Davies (1876) 1 Q. B. at p. 87.Google Scholar

115 Town Police Clauses Act, 1847, s. 31. The Food Standards (General Provisions) Older, 1944, s. 4, ‘proves that he has used all due diligence to secure that the provisions in question were complied with, he shall be acquitted of the offence.’ A good example of the type of clause frequently met with in recent Statutes and Orders.

116 Swindall & Osbarne (1846) 2 C. & K. 230.Google Scholar

117 Stubbs (1913) 8 C. A. R. 238.Google Scholar

118 Lord Hewart, C. J., ‘The underlying basis of the doctrine or theory is, on the one hand, duty, on the other hand, the supposed behaviour of the reasonable man’: 1 Journal of Criminal Law, 544.Google Scholar

119 In Paine (1880)Google ScholarTimes, 25 Feb., Hawkins J. said there was no duty to prevent a stranger accidentally taking poison; Smith (1826) 2 C. & P. 499Google Scholar; Shepherd (1862) 31 L. J. M. C. 102.Google Scholar

120 Studies in Polish and Comparative Law, 18.

121 Gibbins & Proctor (1918) 13 C. A. R. 134: murder through negligence.Google Scholar

122 Markuss (1864) 4 F. & F. 356.Google Scholar

123 As in Coggs v. Bernard (1703) 2 Lord Raym. 909.Google Scholar

124 Tolson (1889) 23 Q. B. D. 168.Google Scholar

125 Clark, , 32.Google Scholar

125a See note 33, ante, p. 213.Google Scholar

126 To coin a word.

127 Motoring offences were 59·2 of all offences in 1936, nearly half a million convictions.

128 See Turner, , 5 C. L. J. 61.Google Scholar

129 Charlesworth, , Negligence, 5.Google Scholar

130 Austin, , Lee. 20, 438et seq.Google Scholar

131 Pollock, , Torts, 350Google Scholar; Morse, , Psychology of Negligence, 41 Can. L. J. 233.Google Scholar

132 Donoghue v. Stevenson [1932] A. C. at p. 618.Google Scholar

133 Wilson v. Brett (1843) 11 M. & W. 113.Google Scholar

134 Pound, , Law and Morals, 76.Google Scholar

135 Rash, heedless, careless, foolhardy, thoughtless, reckless, etc.

136 And the Soviet Criminal Code, Article 10, does not suggest degrees of negligence.

137 Emblen v. Myers (1860) 6 H. & N. 54.Google Scholar

138 (1664) Kelyng, 40.

139 3 Inst. 67.

140 At p. 902. Also 1 East, P. C. 231; Hale, , 431Google Scholar; 1 Hawk. c. 29 s. 9; and c. 31, ss. 5–6. The test was whether the probable danger to life was great and apparent. See Brett, J. in Handley (1874) 13 Cox, 79.Google Scholar

141 Rigmaidon (1833) 1 Lewin, 180.Google Scholar

142 Story, , Bailments, § 23Google Scholar, and Lush J. in Finney (1874) 12 Cox, 625Google Scholar, suggest tests for particular eases. Hewart, C. J. in Bateman (1925) 19 C. A. R. 8Google Scholar, and Atkin, Lord in Andrews [1937] A. C. 576Google Scholar, talk much of degrees of negligence, but suggest no test. Apart from motor-manslaughter, there is not much difficulty with juries. They agree easily enough for instance, on gross negligence in using firearms, or in practical jokes, or games. Jurymen have very definite ideas on standards of conduct, and sound ones.

143 Stroud, , 173Google Scholar; Turner, , 6 C. L. J. 52.Google Scholar

144 3 Coke Inst. 47.

145 1 Hale, 451; Taylor (1834) 2 Lewin, 215.Google Scholar

146 Outlines, 136 et seq.

147 Saunders & Archer (1576) Plowd, 473Google Scholar; Hopwood (1912) 8 C. A. R. 143Google Scholar; attempted suicide. Cf. Gross (1913) 23 Cox, 455.Google Scholar

148 Kel, . 27; 4 Bl. Comm. 200Google Scholar; Fretwell (1864) 9 Cox, 471.Google Scholar

149 Tapner & others (1749) Newgate CalendarGoogle Scholar; Broumrigg (1767) New Cal.Google Scholar; Halloway (1628) Croke Car. 131Google Scholar; Grey (1666) Kelyng, 64.Google Scholar Cf. Greenwood (1857) 7 Cox, 404.Google Scholar Was the summing up of Wightman J. in this case intended as a general principle or only to apply to the facts of the case?

150 Hull (1664) Kelyng, 40.Google Scholar

151 3 Co. Inst. 52; 1 Hale, 428; Foster, , Crown Law, 259Google Scholar; 1 Odgers, , Common Law, 281Google Scholar; Turner, , 6 C. L. J. 55Google Scholar; Lad (1773) 1 Leach, 96Google Scholar; no proper averment; Horsey (1862) 3 F. & F. 287Google Scholar; read the footnote; Cockburn C.J. in Desmond & others (18) Times, 28 April; Serné & Goldfinch (1887) 16 Cox, 311Google Scholar; Beard [1920] A. C. 479.Google Scholar

151 See previous page.

152 Betts & Ridley (1930) 22 C. A. R. 148Google Scholar; Chilcott (1940)Google Scholar Newcastle Assizes, 2 Feb.; Larkin (1943) 29 C. A. R. 18Google Scholar; Jarmain [1946] 1 K. B. 74.Google Scholar

153 1 Hale, 457, 460; Foster, , 270, 308Google Scholar; Archbold, , 911.Google Scholar Discussed in Woolmer & another (1832) 1 Mood. 334Google Scholar; McMullen [1925] 2 I. R. 9: convicted.Google Scholar

154 I collected for one period of ten years, all the Homicides, England, 2, 174; equivalent area of the U.S. of A., 19, 775.

155 Turner, , 6 C. L. J. 52.Google Scholar

156 In Fenton (1830) 1 Lewin, 179.Google Scholar

157 Wild (1837) 2 Lewin, 214Google Scholar; Driscoll (1841) C. & Mar. 214Google Scholar; Morne (1910) 4 C. A. R. 50Google Scholar; Murphy (1944)Google Scholar Lancaster Assizes, 19 Jan.: Hit police constable, not heavy blow, head hit pavement, killed. A practical joke case is Sullivan (1836) 7 C. & P. 641.Google Scholar

158 Discussed in Martin (1827) 3 C. & P. 211.Google Scholar

159 Holmes (1941) Leeds Assizes, 19 05; Daily Express.Google Scholar

160 Franklin (1883) 15 Cox, 163.Google Scholar

161 Had Bruce (1847) 2 Cox, 262Google Scholar, been taken on negligence, the result might have been different.

162 (1037) 26 C. A. R. 34.

163 See 26 C. A. R. at p. 36. See also Turner, 5 C. L. J. 71, to the same effect.

164 E.g., Cohen (1937)Google ScholarTimes: bought old car; bad brakes; drove through city Several miles; then ran into crowd at tramway stop; killed two, injured five; not guilty manslaughter, guilty dangerous driving; thirteen months' imprisonment, and lose licence for ten years. This case is typical.

165 Winfield, , Tort, 222Google Scholar; Winfield, and Goodhart, , 49 L. Q. R. 359Google Scholar; Gayler and Pope v. Davies [1924] 2 K. B. 82.Google Scholar An interesting solution would be to turn Dangerous Driving under sect. 11 into a felony, and try to bring the cases under the (vi) type of Malice Aforethought, and Murder.

166 For: Kenny, Outlines, 14th ed., 41 et seq.; Stroud, , 16, 34et seq.Google Scholar; bold, Arch, 21Google Scholar; 9 Hals. 16. Against: Stallybrass, , 52 L. Q. R. 64Google Scholar; Jackson, , 6 C. L. J. 86.Google Scholar

167 Forbes and Webb (1865) 10 Cox, 362Google Scholar; Prince (1875) 2 C. C. R. 154.Google Scholar I shall discuss this case under Mistake of Fact.

168 Pembliton (1874) 2 C. C. R. 119.Google Scholar

169 Latimar (1886) 17 Q. B. D. 359.Google Scholar

170 Kenny, Outlines, Cap. IV.

171 Kenny, c. IV.

172 8 C. L. J. 300; Journal of Comparative Legislation (1934), 36Google Scholar; 13 Medico-Legal Review, 93.

173 Kenny, c. IV; Beard [1920] A. C. 479.Google Scholar

174 Kenny, c. IV.

175 Griffiths v. Studebaker, Ltd. [1924] 1 K. B. 102Google Scholar; 27 Cox, 565: a very important case.

176 Huggins (1730) 2 Ld. Raym. 1574.Google Scholar

177 Cave J. in Chisholm v. Doulton (1889) 22 Q. B. D. 736.Google Scholar

178 Lord Coleridge C.J. in Somerset v. Hart (1884) 12 Q. B. D. 360.Google Scholar

179 Cockburn C.J. in Bosley v. Davies (1875) 1 Q. B; at p. 887.Google Scholar

180 Allen v. Whitehead [1930] 1 K. B. 211.Google Scholar

181 Bailey (1800) R. & R. 1.Google ScholarCf. Hall (1828) 3 C. & P. 409.Google Scholar

182 Moral wrong ia too undefined to be included.

183 Reasonable: Levett (1638) Cro. Car. 538.Google Scholar Unreasonable: Senior (1899) 1 Q. B. 283Google Scholar; Jones (1874) 12 Cox, 628.Google Scholar

184 Times newspaper: 25 03, 1875, p. 12Google Scholar; 26 April, p. 13; 31 May, p. 13; 28 June, p. 6.

185 Kenny, , 43Google Scholar; Stroud, , 37.Google Scholar

186 Kenny very kindly gave me many of his books, and often his marginal notes are enlightening. He noted beside Brett's judgment, ‘There is an actionable tort of abduction.’

187 See Winfield, , Tort, 250Google Scholar; Salmond, , Torts, 380.Google Scholar

188 2 St. Hist. 117.

189 (1889) 16 Cox, 629.

190 16 Cox, 652.

191 I suggest adding the words ‘after due enquiry made.’

191a (1921) 16 C. A. R. 134.

192 This has not been approved in two of the Dominions: Thomas v. The King, 59 Comm. L. R. 279Google Scholar; and Carswell (1926) N. Z. L. R. 321Google Scholar; and see Paton, G. W., Bigamy and Mena Rea, 2 J. of C. L. 601.Google Scholar

193 But the same direction to the jury as in Thompson was given by Horridge J. at Manchester Assizes, 19 Feb., 1913: The principle was also approved by the Canadian Court of Appeal, 9 Can. Cro. Cas. 163.

194 Comm. v. Mash (1844) 7 Met. 472.Google Scholar

195 Squire v. The State (1874) 46 Indiana, 459.Google Scholar

196 It is not very helpful to explain belief in death as Mistake of Fact, and belief in a divorce as a Mistake of Law. See also on Bigamy: Kircaldy (1928) 167 L. T. Jo. 4446Google Scholar; Connatty (1919) 83 J. P. 292Google Scholar; Thompson (1905) 70 J. P. 6.Google Scholar

197 Kenny, c. IV.

198 2 St. Hist. 105; Tyler and Price (1838) 8 C. & P. 616Google Scholar; McGrowther (1746) Foster, 13Google Scholar; Crutchley (1831) 5 C. & P. 131.Google Scholar

199 Archbold, , 20.Google Scholar

200 See 2 St. Hist. 108; St. Dig. Art. 43; Stroud, , 258Google Scholar; Kenny, c. IV; Stratton (1780) 21 S. T, 1045Google Scholar, There is not an analogy from cases in Tort.

200a See note 25, ante, p. 213.Google Scholar

201 Turner (1849) 3 Cox, 304Google Scholar; Mulcahy (1868) 3 H. L. at p. 317Google Scholar; Wilson (1856) D. & B. 157.Google Scholar

202 Street, , Foundations, 5.Google ScholarBeard [1920] A. C. 479Google Scholar; Scott v. Shepherd (1773) 2 W. Bl. 892.Google Scholar

203 [1936] A. C. 462.

204 Jackson (1936) 80 S. J. 977.Google Scholar

205 Carr Briant (1943) 29 C. A. R. 76.Google Scholar

206 Willshire (1881) 6 Q. B, D, 366.Google Scholar

207 E.g., Larceny Act, 1916, s 28 (2).Google Scholar

207a Mayor, etc. Of Tewkesbury (1868) 3 Q. B. 629.Google Scholar

208 Winfield, , 59 L. Q. R. 328.Google Scholar

209 Cooper v. Simmons (1862) 31 L. J. 138Google Scholar; State v. Stiggles (1927) 202 Ohio, 1318.Google Scholar

210 Clark, , 11Google Scholar; Stroud, , 59Google Scholar; Ewing, , The Morality of Punishment, 202.Google Scholar

211 This is seen by the furtive way in which acta such as trade restriction arrangements, or salea to a black-marketer, of which the public would disapprove, are carried out.

212 See Mannheim, H. on Trade Laws, 7 Mod. Law Review, 12.Google Scholar

213 Jackson, , 6 C. L. J. 90.Google Scholar

214 True, Divisional Courts frequently send cases back to the Justices with an intimation about easy punishments; but I believe it is more an expression of contempt for the legislation than an instruction.

214a Sorsky & others (1944) 30 C. A. R. 84.Google Scholar

215 Best, , Evidence, 274Google Scholar: and as to precautions taken that unusual laws should reach the public ear, 300.

216 But recent legislation inclines to putting in words like ‘knowingly’ or ‘with due diligence’ which indicate the mens rea, or by tabulating possible defences.

217 No negligence: Tolson (1889) 23 Q. B. D. 168Google Scholar; Boeley v. Dovies (1875) 1 Q. B. 87Google Scholar; Derbyshire v. Houliston [1897] 1 Q. B. 772Google Scholar; Dickinson v. Ead (1914) 111 L. T. 378Google Scholar; Sherras v. de Rutzen [1895] 1 Q. B. 918Google Scholar; Newell v. Cross (1936) 52 T. L. R. 489Google Scholar, a very good example, and see 2 J. of C. L. 148. Negligence: Thompson (1905) 70 J. P. 6Google Scholar; Korten v. West Sussex C. C. (1903) 72 L. J. K. B. 514.Google Scholar

218 Stroud, , 31.Google Scholar

219 9 Halsbury, 11.

219a Evans v. Dell [1937] 1 All E. R. 349; 101 J. P. 149.Google Scholar

220 Mahmoud v. Ispahani [1921] 2 K. B. 716.Google Scholar

221 Brett, M. R.: A. G. v. Bradlaugh (1884) 14 Q. B. D. at p. 689Google Scholar; Stephen, J.: Tolson (1889) 23 Q. B. D. 189Google Scholar; Field, J. and Cave, J.: Chisholm v. Doulton (1889) 22 Q. B. D. 736Google Scholar; Wright, J.: Sherras v. de Rutzen [1895] 1 Q. B. 918Google Scholar, Hawkins, J.: Derbyshire v. Houliston [1897] 1 Q. B. 772Google Scholar; Lord, Russel C.J.: Williamson v. Norris [1899] 1 Q. B. 7Google Scholar; Channell, J.: Pearks, etc. v. Ward [1902] 2 K. B. 11Google Scholar; Lord Alveatone, C. J.: Paul v. Hargreaves [1908] 2 K. B. 289Google Scholar; Lord Reading, C. J.: Mousell Bros. v. L. & N. W. R. [1917] 2 K. B. 845Google Scholar, and in this same case Atkin J. laid down a rule for interpreting statutes; Lord Cooper: Duguid v. Fraser (1940) 6 J. of C. L. 337.Google Scholar

222 London Passenger Transport Board v. Sumner (1936) 52 T. L. R. 13.Google Scholar

223 As in Woolmington (1935) 25 C. A. R. at p. 76.Google Scholar See also Maugham, Lord in London Passenger Transport Board v. Moscrop [1942] A. C. at p. 342Google Scholar, on strict interpretation of penal statutes.

224 [1899] 1 Q. B. 20.

225 (1917) 87 L. J. X. B. 507.

226 First offence fine up to £50; second offence, six months' imprisonment.

227 [1938] 1 K. B. 506.

228 Cases of Quasi-crime: Woodrow (1846) 15 M. & W. 404Google Scholar; Prince (1875) 2 C. C. R. 154Google Scholar; Wheat & Stocks [1921] 2 K. B. 118Google Scholar; Horton v. Gwynne [1921] 2 K. B. 661Google Scholar; Leinster (1924) 17 C. A. R. 176Google Scholar; Lartonneur (1933) 24 C. A. R. 74Google Scholar; Board of Trade v. Woods (1944) 8 J. C. L. 85Google Scholar; Jacobs & others (1944) 30 C. A. R. 1Google Scholar, conspiracy; I. C. R. Haulage Co. Ltd. (1944) 30 C. A. R. 31Google Scholar, but in a common law conspiracy mens rea is necessary; People v. Hatinger (1913) 174 Mich. 333Google Scholar; Mitchell v. Morrison (1938) J. C. 64Google Scholar, by majority, three strongly dissenting: Scots law case.

229 One wonders what M. Chajutin, having paid his £40 fine, his £5 5s. 0d. costs, his lawyers' fees, and having been deported, would find to say of British justice when he got back to Budapest.

230 Turner, , 6 C. L. J. 65.Google Scholar

231 Russell, , 45Google Scholar; 9 Halsbury, 11; Stroud, , 34Google Scholar; Wigram, , 383Google Scholar; Lawson, , Leading Cases, 54Google Scholar; Jackson, , 6 C. L. J. 83Google Scholar; Stephen, Gour, Wood & Waite.

232 Stallybrass, , 52 L. Q. R. 60.Google Scholar Kenny has gone too far, and practically ignores it, Outlines 39, 45, 46, 49.

233 9 Holds. Hist. 411.

234 Farwell, L. J. in Conway v. Wade [1908] 2 K. B. at p. 856.Google Scholar