the care or charge of anyone. I am asked where I draw the line; I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. 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 the mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea; so if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute-an act which, if he knew she was in possession and in care or charge of anyone, he would know was a crime or not, according as she was under sixteen or not. He would not know he was doing an act wrong in itself, whatever was his intention, if done without lawful cause.

In addition to these considerations, one may add that the statute does use the word "unlawfully," and does not use the word "knowingly" or "not believing to the contrary." If the question was whether his act was unlawful, there would be no difficulty, as it clearly was not lawful.

This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Sect. 50 makes it a felony to unlawfully and carnally know a girl under the age of ten. Sect. 51 enacts when she is above ten and under twelve to unlawfully and carnally know her is a misdemeanour. Can it be supposed that in the former case a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour; or that he believed her over twelve, and so had committed no offence at all; or that in a case under s. 51 he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong; for the statute says if "unlawfully" done. The act done with a mens rea is unlawfully and carnally knowing the girl, and the man doing the act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So s. 56, by which whoever shall take away any child under fourteen with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say, "I did take away the child to steal its clothes, but I believed it to be over fourteen"? If not, then

neither could he say, "I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen." Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where the intent is to take the child out of the possession of the parent. But if those words cannot be introduced in s. 56, why can they be in s. 55?

The same principle applies in other cases. A man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer'. Why? because the act was wrong in itself. So, also, in the case of burglary, could a person charged claim an acquittal on the ground that he believed it was past six when he entered, or in housebreaking, that he did not know the place broken into was a house? Take, also, the case of libel, published when the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong; he could not be entitled to be acquitted because there was no mens rea. Why? because the act of publishing written defamation is wrong where there is no lawful cause.

As to the case of the marine stores, it was held properly that there was no mens rea where the person charged with the possession of naval stores with the Admiralty mark did not know the stores he had bore the mark: Reg. v. Sleep; because there is nothing primâ facie wrong or immoral in having naval stores unless they are so marked. But suppose his servant had told him that there was a mark, and he had said he would chance whether or not it was the Admiralty mark? So in the case of the carrier with game in his possession; unless he knew he had it, there would be nothing done or permitted by him, no intentional act or omission. So of the vitriol senders; there was nothing wrong in sending such packages as were sent unless they contained vitriol.

Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute in doubt, bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty; and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed.

DENMAN, J. ...In the present case the jury find the defendant believed the girl to be eighteen years of age; even if she had been of 1 10 Cox, Cr. C. 362.

28 Cox, Cr. C. 472.

that age, she would have been in the lawful care and charge of her father, as her guardian by nature: see Co. Litt. 88, b, n. 12, 19th ed., recognized in Reg. v. Howes'. Her father had a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will, whose right to her personal custody would have extended up to the same age. The belief that she was eighteen would be no justification to the defendant for taking her out of his possession, and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act, viz. in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen, and therefore unable to allege that what he has done was not unlawfully done, within the meaning of the clause. In other words, having knowingly done a wrongful act, viz. in taking the girl away from the lawful possession of her father against his will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature: he had wrongfully and knowingly violated the father's rights against the father's will. And he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.

Conviction affirmed2.

[Mistake of fact.]

REX v. LEVETT.

NEWGATE SESSIONS. 1638.

CRO. CAR. 538.

JONES, J., said that there was resolved by the Chief Justice and himself and the Recorder of London, at the last Sessions at Newgate, the case of one William Levett, who was indicted of the homicide of a woman called Frances Freeman. There it was found by special

13 E. and E. 332.

2 All the sixteen judges, except Brett, J., concurred, though not for identical reasons, in affirming the conviction.

verdict, That the said Levett and his wife being in the night in bed and asleep, one Martha Stapleton, their servant, having procured the said Frances Freeman to help her about the house-business, about twelve of the clock at night going to the doors to let out the said Frances Freeman, conceived she heard thieves at the doors offering to break them open. Whereupon she, in fear, ran to her master and mistress, and informed them that she was in doubt that thieves were

breaking open the house door. Upon that he arose suddenly and fetched a drawn rapier. And the said Martha Stapleton, lest her master and mistress should see the said Frances Freeman, hid her in the buttery. And the said Levett and Helen his wife, coming down, he with his sword searched the entry for the thieves. And she the said Helen, espying in the buttery the said Frances Freeman, whom she knew not, conceiving she had been a thief, crying to her husband in great fear, said unto him, "Here they be that would undo us." Thereupon the said William Levett, not knowing the said Frances to be there in the buttery, hastily entered therein with his drawn rapier, and being in the dark and thrusting with his rapier before him, thrust the said Frances under the left breast, giving unto her a mortal wound, whereof she instantly died: and whether it were manslaughter, they prayed the discretion of the Court. And it was resolved that it was not; for he did it ignorantly, without intention of hurt to the said Frances.

[Mens rea may be excluded by Ignorance of Fact.]

ASSIZES.

1745-63.

ANONYMOUS.

FOSTER'S CROWN LAW 265.

I once upon the circuit tried a man for the death of his wife by the like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbours to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way; but before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbours, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of

the way. He taking it up touched the trigger, and the gun went off and killed his wife, whom he dearly loved. It came out in evidence, that, while the man was at church, a person belonging to the family privately took the gun, charged it and went after some game; but before the service at church was ended returned it loaded to the place whence he took it, and where the defendant, who was ignorant of all that had passed, found it, to all appearance as he left it. I did not inquire, whether the poor man had examined the gun before he carried it home; but being of opinion upon the whole evidence, that he had reasonable grounds to believe that it was not loaded, I directed the jury, that if they were of the same opinion they should acquit him. And he was acquitted.

[But Ignorance of Fact does not excuse if it be careless and

unreasonable.]

REG. v. JOHN JONES.

SHREWSBURY ASSIZES. 1874.

12 Cox 628.

Prisoner was indicted before Mr Justice Lush for the manslaughter of Benjamin Jones.

The mother of the deceased said that he was eight years old; that she went upstairs leaving the prisoner downstairs and after a short time she heard the explosion of a gun. On coming down she saw that the boy's brains had been blown out. She said, "O Jack, you have shot the child." The prisoner did not speak. On a police constable arriving she repeated the expression, and the prisoner said, "He shot himself." The prisoner was always very kind to the boy. Another witness said that on the morning in question he (the witness) loaded the gun and went out with it, but did not discharge it, and on his return took off the cap and put it in a cap box in the cupboard in the house. He put the gun in a corner of the room. Being cross-examined, he said that he could not swear that he took the cap off. A police constable stated that the prisoner, when charged in his presence with shooting the boy, said, "Do you think I have no more sense? he did it himself"; but on the road to the police station said, "The boy was playing with it and I told him to put it down, and he did so, and