fit to take, they succeeded in effecting what may fairly be regarded as a demonstration. When the evidence for the government was all in, the case was substantially concluded. The guilt of the accused was not made so probable that they could not expect any benefit from a doubt: it was proved. The defence had substantially nothing to say: no really valuable testimony to present, no really strong argument to advance. Again, the doctrine that the jury cannot carry the evidence clearly and critically in their minds receives a remarkable contradiction from the verdict in the latter of these two trials. Clarke was acquitted. Now, the guilt of Clarke was just as much a matter of demonstration as the guilt of any of the other detectives, save only for one important fact. The evidence given by the convicts against Meiklejohn, Druscovich, and Palmer, in itself conclusive, if it could be believed, was at various points corroborated by other circumstances. The evidence against Clarke, no less conclusive, if it also could be believed, received no material corroboration. The jury drew a nice distinction; they were trying five men together; they kept the evidence against each one separately in their minds, and required corroboration in respect of each individually, as if at an independent trial; they refused to argue that the convicts, appearing by corroborative facts to testify truly as against four, might therefore be assumed to testify truly as against the fifth; they refused to find Clarke guilty, unless the evidence as to him, individually and separately, quite independent of an inference of truthfulness to be drawn from the presumable truth of the evidence given against his co-defendants, could receive sufficient corroboration. It did not; and it showed no small degree of nice observation and careful memory on the part of the jurors, that they could observe and act upon this fact, since the evidence against all the defendants went in together in the shape of a connected story, so interwoven and so consistent in itself that the process of dissection which the jury had to perform was very difficult, even though they enjoyed the aid of the counsel for the defence. The action of the jury in refusing to give credence to the evidence of co-conspirators, unless independently corroborated, was claimed in the Tichborne case to be the law of the land. No such claim was made in this case. But substantially the same result was reached by reason of the fact that counsel upon both sides admitted that at least by the traditional and very proper practice of the criminal courts conviction should not follow the uncorroborated testimony of an accomplice. It was only by Statute of 6 & 7 Vict. that the previously existing disability of felons to give evidence in a criminal cause was done away with. Prior to that legislation, Benson and Kurr could not have taken the stand at all. The course of the trial is strong evidence in favor of the wisdom of such legislation. But the course of both trials shows with much force the gross injustice of the rule which shuts the mouth of the accused man. It was a cruel sight, at least upon the supposition of the possible innocence of the accused, to see the detectives obliged to sit by in profound silence while such clever intriguers and utter villains as Benson, Kurr, and the rest were giving their odious testimony. The very elaboration with which the government is wont now to prepare such a case makes it all the more impossible for the defendant to secure justice save by his own testimony: he alone can meet and explain the innumerable petty details; and it is seldom that one can rest satisfied with the result of a trial where this opportunity is not furnished. Especially is one struck with this in a trial like that of the detectives, where four or five men are set on one side against four or five upon the other; and the first party, although known to be villains, are allowed to say all they will, and the second party, though presumably honest men, are not permitted to utter a word. Nor are these reflections weakened in their force by the knowledge that the witnesses naturally expect to gain a remission of severe penal sentences, provided their evidence or rather the result of their evidence, for by its result they may expect its value to be determined-shall seem worth such a reward. JOHN T. MORSE, Jr. CRIMINAL LAW. IGNORANCE OF FACT. MENS REA. IN this country, at least, it is still an open question, whether a person who honestly does that which appears to him to be lawful, right, and proper, but which, in point of fact, is in violation of a law which punishes the act as a crime, can properly be convicted. Perhaps the point cannot be better stated than by reference to two opposing cases, both recent, both occurring in tribunals of great respectability, — appearing to be decided with equal deliberation, and upon facts so nearly identical that it will be difficult to point out any substantial difference. - By the 71st section of the General Statutes of Massachusetts, chapter 88, it is provided that "the keeper of a billiard room or table . . . who admits a minor thereto, without the written consent of his parent or guardian, . . . shall forfeit ten dollars for the first, and twenty dollars for each subsequent offence." The case of Commonwealth v. Emmons was a prosecution under this statute, in which "it appeared that, at the time of the alleged offence, the supposed minor was almost twenty years. old, and fully grown, and did business independent of his parents; and the defendant offered evidence, which the judge excluded, that when the alleged minor came to the room the defendant asked him whether or not he was a minor, saying that if he was so he must not enter, and he replied that he was of full age." Exceptions to the rule excluding the evidence offered were overruled by the Supreme Court. "The evidence excluded was immaterial," said the court. "It did not tend to prove or disprove any essential fact. It did not show, or have any tendency to show, either that the alleged minor was of age, or that the defendant did not admit him to the billiard room kept by him. Nor was it material to show that the defendant did not know, or have reason to believe, that the alleged minor was under age. The prohibition of the statute is absolute. The defendant admitted him to the room at his peril, and is liable to 1 98 Mass. 6 (1867). the penalty, whether he knew him to be a minor or not. The offence is of that class where knowledge or guilty intent is not an essential ingredient in its commission, and need not be proved." The court cites its own prior decisions in Commonwealth v. Boynton, where a defendant charged with selling intoxicating liquor in violation of the statute replied that he had no reason to suppose, and did not believe, the liquor sold to be intoxicating; in Commonwealth v. Farren2 and Commonwealth v. Waite, where parties charged with selling adulterated milk in violation of the statute, and setting up the same defence, were nevertheless held to be guilty. In Boynton's Case, Judge Hoar, in reply to the argument of hardship, said: "The salutary rule that every man is conclusively presumed to know the law is sometimes productive of hardship in particular cases. And the hardship is no greater when the law imposes the duty to ascertain a fact. It could hardly be doubted that it would constitute no defence to an indictment for obstructing a highway, if the defendant could show that he mistook the boundaries of the way, and honestly supposed that he was placing the obstruction upon his own land." In Waite's Case, in answer to the suggestion that such a statute so interpreted is unconstitutional, because it is in derogation of common right, Chapman, C. J., said: "The substance of the argument is this: it is innocent and lawful to sell pure milk, and it is innocent and lawful to sell pure water; therefore the legislature has no power to make the sale of milk and water, when mixed, a penal offence, unless it is done with fraudulent intent. But it is notorious that the sale of milk adulterated with water is extensively practised with a fraudulent intent. It is for the legislature to judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of the case. They have seen fit to require that every man who sells milk shall take the risk of selling a pure article. No man is obliged to go into the business; and, by using proper precautions, any dealer can ascertain whether the milk he offers for sale has been watered. The court can see no ground for pronouncing the law unreasonable, and has no authority to judge of its expediency." It had been held previously in the same court, in Commonwealth v. Elwell, that a single man 1 2 Allen, 160. 8 11 Allen, 264. 2 9 Allen, 489. 42 Met. 190. may be convicted of adultery, on proof that he had connection with a married woman, without allegation or proof that he knew the woman to be married; and in Commonwealth v. Marsh,1 that a woman may be convicted of bigamy 2 who takes a second husband while the first is living, although she makes diligent inquiry, and, after reasonable efforts to inform herself, does believe that he is dead. In this case, Shaw, C. J., in reply to the suggestion, that where there is no criminal intent there can be no guilt, says: "The proposition stated is undoubtedly correct in a general sense; but the conclusion drawn from it, in this case, by no means follows. Whatever one voluntarily does, he of course intends to do. If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent to do it." The same rule was subsequently applied by the same court, in Commonwealth v. Raymond, where the party was charged with killing a calf under a certain age, for the purpose of sale; and in Commonwealth v. Wentworth, where the party was charged with selling naphtha under an assumed name. The rule, therefore, may be said to be established in Massachusetts; the only question with the court being whether, from the language of the statute, or for other reasons, the legislature intends that the legality or illegality of the act shall depend upon the ignorance or knowledge of the party charged." This rule has been approved and followed in Rhode Island, in State v. Smith, which was a prosecution for the sale of adulterated milk, in violation of a statute substantially similar to that of Massachusetts. The Supreme Court of Wisconsin, without reference to decisions elsewhere, came to the same conclusion in State v. Herthel, in a case under a statute prohibiting the sale of intoxicating liquor to minors; so, also, did the Supreme Court of Kentucky, in Ulrick v. Commonwealth. In the last case the pith of the opinion is as follows: "It is as incumbent on the vender of liquors to know that his customer labors under no disability, as it is for him to know the law; and his ignorance of either will not excuse him." 1 7 Met. 472. ? This point is still an open one in England. See Stephen's Dig. Criminal Law, p. 21, art. 34, notes. 8 97 Mass. 567. 610 R. I. 258. 5 Commonwealth v. Marsh, ubi supra. 4 118 Mass. 441. 7 24 Wis. 60. 8 6 Bush (Ky.), 400. |