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. 64–65Google 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. 66–67.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, 182–188.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. 185–187.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. 185–187.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, , 206–207Google Scholar; and he makes a generalization on Quasi-crime from only four cases; 9 Halsbury, , 10, 11, 15, 16, 441–445Google Scholar; Russell, , 44, 1332Google Scholar; Moriarty, , Police Law, 3, 4Google Scholar; Wigram, , Justice's Note Book, 228, 383Google Scholar; Harris, , 18–22Google 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, 110–115Google 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

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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. 44–46Google 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

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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