By s. 55 of the Offences against the Person Act, 1861: "Whosoever shall unlawfully take ... any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour ... "
Notes. Section 55 of the Offences against the Person Act, 1861, has been replaced by s. 20 of the Sexual Offences Act, 1956 (36 HALSBURY'S STATUTES (2nd Edn.) 227), the words "without lawful authority" being substituted for "unlawfully" in the earlier Act.
Case Reserved for the opinion of the court by DENMAN, J.
At the assizes for Surrey held at Kingston-on-Thames on Mar. 24, 1875, Henry Prince was tried before DENMAN, J., on the charge of having unlawfully taken one Annie Phillips, an unmarried girl being under the age of sixteen years, out of the possession, and against the will of her father, contrary to s. 55 of the Offences against the Person Act, 1861. He was found guilty, but judgment was respited in order that the opinion of the Court for Crown Cases Reserved might be taken. All the facts necessary prima facie to support a conviction existed and were found by the jury to have existed, but the defendant pleaded in defence that the girl Annie Phillips, though proved by her father to be fourteen years old on April 6, 1875, looked very much older than sixteen, and the jury found upon reasonable evidence that before the defendant took her away she had told him that she was eighteen, that the defendant bona fide believed that statement, and that such belief was reasonable. If the court were of the opinion that under those circumstances a conviction was right, the defendant was to appear for judgment at the next assizes for Surrey; otherwise the conviction was to be quashed . . . .
No counsel appeared for the prisoner.
Lilley for the prosecution.
June 12, 1875.
BRAMWELL, B., read the following judgment, to which KELLY, C.B., CLEASBY, B., GROVE, J., POLLOCK, B., and AMPHLETT, B., assented.-- The question in the case depends on the construction of the statute under which the prisoner is indicted. Section 55 of the Offences against the Person Act, 1861, enacts that:
"Whosoever shall unlawfully take ... any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour ... "
The word "unlawfully" means "not lawfully," "otherwise than lawfully" "without lawful cause"--such as would exist for instance on a taking by a police officer on a charge of felony or a taking by a father of his child from her school. The statute, therefore, may be read thus: "Whosoever shall take etc. without lawful cause." The prisoner had no such cause, and consequently except in so far as it helps the construction of the statute, the word "unlawfully" may, in the present case, be left out, and then the question is: Has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father? In fact he has; but it is said not within the meaning of the statute, and that that must be read as though the word "knowingly" or some equivalent word was in.
The reason given is that as a rule mens rea is necessary to make any act a crime or offence, and that, if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea. I have used the word "knowingly," but it will perhaps be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself: "I do not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen; and that though, if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when he believes he knows that she is over sixteen. It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within the statute unless he, the taker, knows she is under sixteen--that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that mens rea is necessary to make an act a crime.
I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl--it does not say a woman, but a girl something between a child and a woman--it supposes she is in the possession of her father or mother, or other person having lawful care and charge of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is, then, a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that the legislature meant it should be at the risk of the taker, whether or not the girl was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself; she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of anyone. If 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, and 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 the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of 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 the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong 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 words "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. Section 50 makes it a felony unlawfully and carnally to know a girl under the age of ten. Section 51 enacts (when she is above ten and under twelve) that unlawfully and carnally to know her is a misdemeanour. Can it be supposed 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 mens rea is unlawfully and carnally knowing the girl, and the man doing that 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 intent is to take the child out of the possession of the parent. If these words cannot be introduced in s. 56, why can they be in s. 55?
The same principle applies in these cases. In R. v. Forbes and Webb 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 6 a.m. when he entered, or in housebreaking that he did not know the place broken into was a house. As to the case of 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: R. v. Sleep; because there is nothing prima facie wrong or immoral in having naval stores unless they are so marked. But suppose someone told him 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: Hearne v. Garton. Take also the case of libel where the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong. He would 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. 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 no doubt brining 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.
BLACKBURN, J., read the following judgment to which COCKBURN, C.J., MELLOR, QUAIN, LUSH, ARCHIBALD, FIELD and LINDLEY, JJ., assented.--In this case we must take it as found by the jury that the prisoner took an unmarried girl out of the possession, and against the will of her father, and that the girl was in fact under the age of sixteen, but that the prisoner bona fide, and on reasonable grounds, believed that she was above sixteen, viz., eighteen years old. No question arises as to what constitutes a taking out of the possession of her father, nor as to what circumstances might justify such taking as not being unlawful, nor as to how far an honest though mistaken belief that such circumstances as would justify the taking existed, might form an excuse, for as the Case is reserved we must take it as proved that the prisoner knew that the girl was in the possession of her father, and that he took her knowing that he trespassed on the father's rights and had no colour of excuse or for so doing.
The question, therefore, is reduced to whether the words in s. 55 of the Offences against the Person Act, 1861, that whosoever shall unlawfully take "any unmarried girl being under the age of sixteen, out of the possession of her father" are to be read as if they were "being under the age of sixteen, and he knowing she was under that age." No such words are contained in the statute, nor is there the word "maliciously," "knowingly," or any other word used that can be said to involve a similar meaning. The argument in favour of the prisoner must, therefore, entirely proceed on the ground that in general a guilty mind is an essential ingredient in a crime, and that where a statute creates a crime the intention of the legislature should be presumed to be to include "knowingly" in the definition of the crime, and the statute should be read as if that word were inserted, unless the contrary intention appears. We need not inquire at present whether the canon of construction goes quite so far as above stated, for we are of opinion that the intention of the legislature sufficiently appears to have been to punish the abductor unless the girl, in fact, was of such an age as to make her consent an excuse irrespective of whether he knew her to be too young to give an effectual consent, and to fix that age at sixteen.
The section in question is one of a series of enactments beginning with s. 50 forming a code for the protection of women and the guardians of young women. These enactments are taken with scarcely any alteration from the repealed statute. the Offences against the Person Act, 1828, which had collected them into a code from a variety of old statutes all repealed by it. Section 50 enacts that:
"Whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be guilty of felony."
By s. 51:
"Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve yeas, shall be guilty of a misdemeanour. "
It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl in reality not quite ten yeas old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour because she was, in fact, not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was, in fact, old enough to give a valid consent. The man who has connection with a child relying on her consent does it at his peril if she is below the statutable age.
Section 55, on which the present case arises, uses precisely the same words as those in ss. 50 and 51, and must be construed in the same way, and if we refer to the repealed statute 4 & 5 Phil.& Mary, c. 8 [Abduction Act, 1557], from s. 3 of which the words in s. 55 are taken with very little alteration, it strengthens the inference that such was the intention of the legislature. The preamble states as the mischief aimed at, that female children, heiresses, and others having expectations, were, unawares of their friends, brought to contract marriages of disparagement "to the great heaviness of their friends," and then to remedy this enacts by the first section that it shall not be lawful for anyone to take an unmarried girl being under sixteen out of the custody of her father or the person to whom he either, by will or by act in his lifetime, gives the custody, unless it be bona fide done by or for the master or mistress of such child, or the guardian in chivalry or in socage of such child. This recognises a legal right to the possession of the child depending on the real age of the child, and not on what appears. The object of the legislature, being as it appears by the preamble to protect this legal right to the possession, would be baffled if it was an excuse that the person guilty of the taking thought the child above sixteen. The words "unlawfully take" as used in s. 3 of 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557], mean without the authority of the master, or mistress, or guardian mentioned in the immediately preceding section.
* * *
BRETT, J.--In this case the prisoner was indicted under s. 55 of the Offences against the Person Act, 1861, for that he did unlawfully take an unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father. According to the statement of the Case, we are to assume that it was proved on the trial that he did take an unmarried girl out of the possession and against the will of her father, and that when he did so the girl was under the age of sixteen years. But the jury found that the girl went with the prisoner willingly, that she told the prisoner that she was eighteen years of age, that he believed that she was eighteen years of age, and that he had reasonable grounds for so believing.
The question is whether upon such proof and such findings of the jury, the prisoner ought or ought not, in point of law, to be pronounced guilty of the offence with which he was charged. He, in fact, did each and everything which is enumerated in the statute as constituting the offence to be punished, if what he did was done unlawfully within the meaning of the statute. If what he did was not unlawful within the meaning of the statute, it seems impossible to say that he ought to be convicted. The question, therefore, is whether the findings of the jury, which are in favour of the prisoner, prevent what he is proved to have done from being unlawful within the meaning of the statute. It cannot, as it seems to me, properly be assumed that what he did was unlawful within the meaning of the statute, for that is the very question to be determined. On the one side it is said that the prisoner is proved to have done every particular thing which is enumerated in the Act as constituting the offence to be punished, and that there is no legal justification for what he did, and, therefore, that it must be held, as matter of law, that what he did was unlawful within the meaning of the statute, and that the statute was, therefore, satisfied, and the crime completed. On the other side, it is urged, that if the facts had been as the prisoner believed them to be, and as by the findings of the jury he might reasonably believe them to be, and he was deceived into believing them to be, he would have been guilty of no criminal offence at all, and, therefore, that what he did was not criminally unlawful within the meaning of the criminal statute under which he was indicted.
It has been said that, even if the facts had been as the prisoner believed them to be, he would still have been doing a wrongful act. The first point, therefore, to be considered would seem to be what would have been the legal position of the prisoner, if the facts had been, as he believed them to be, that is to say: What is the legal position of a man who, without force, takes a girl of more than sixteen years of age, but less than twenty-one years of age, out of the possession of her father, and against his will? The statutes 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557] has been said to recognise the legal right of a father to the possession of an unmarried daughter up to the age of sixteen. The statute 12 Car. 2, c.24 [Tenures Abolition Act, 1660], seems to recognise the right of a father to such possession up to the age of twenty-one. MR. HARGRAVE in notes 12 and 15 to CO. LITT. 88 b, seems to deduce a right in the father to possession up to the age of twenty-one from those two statutes, and that such right is to be called in law a right jure naturæ. If the father's right be infringed, he may apply for a habeas corpus. When the child is produced in obedience to such writ, issued upon the application of a father, if the child be under twenty-one, the general rule is that
"if [the child] be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of discretion would only expose him to dangers or seductions, the court must make an order for his being placed in the proper custody ... and that undoubtedly is the custody of the father": LORD DENMAN, C.J., in R. v. Greenhill (7), 4 Ad. & El. at p. 640.
But if the child be a female under sixteen, the court will order it to be handed over to the father, in the absence of certain objections to his custody, even though the child object to return to the father. If the child be between sixteen and twenty-one, and refuse to return to the father, the court, even though the child be a female, gives to the child the election as to the custody in which it will be.
In R. v. Howes COCKBURN, C.J., says (3 E. & E. at pp. 336, 337):
"Now the cases which have been decided on this subject show that, although a father is entitled to the custody of his children till they attain the age of twenty-one, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that an intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion, for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide which we may safely follow in pointing out sixteen as the age up to which the father's right to the custody of his female child is to continue, and short of which such a child has no discretion to consent to leaving him."
But if a man takes out of her father's possession without force, and with her consent, a daughter between sixteen and twenty-one, the father would seem to have no legal remedy for such taking. It may be that the father, if present at the taking, might resist such taking by necessary force, so that to an action for assault by the man he might plead a justification. But for a mere taking, without seduction, there is no action which the father could maintain. There never was a writ applicable to such a cause of action. The writ of "ravishment of ward" was only to such as had the right to the marriage of the infant, and was, therefore, only applicable where the infant was an heir to property, whose marriage was, therefore, valuable to the guardian: see Ratcliff's Case (9). No such action now exists, and if it did, it would not be applicable to any female child, at all events, not to any who was heir apparent. Neither can a man who, with her consent, and without force, takes a daughter, who is more than sixteen years old, but less than twenty-one, out of her father's possession or custody, be indicted for such taking. There never has been such an indictment.
The statute 3 Hen. 7, c. 2 [Abduction of Women Act, 1487], was enacted against
"the taking any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, etc., be felony."
It was held in Lady Fulwood's Case, that the indictment must further charge that the defendant carried away the woman with intent to marry or defile her. Two things, therefore, were necessary which are not applicable to the point now under discussion, namely, that the taking should be against the will of the person taken, and that there should be the intent to marry or defile. The statute 4 & 5 Phil. & Mary, c.8 [Abduction Act, 1557], deals with the taking out of or from the possession, custody, or government of the father, etc., any maid or woman child, unmarried, being under the age of sixteen years. For a mere unlawful taking the punishment is imprisonment for two years; for a taking and marriage five years, and the girl if she be more than twelve years old, and consents to the marriage, forfeits her inheritance. The Offences against the Person Act, 1861, s. 19, is enacted against "the taking of a woman against her will with intent to marry or defile her," etc. The same statute, s. 20, is as to an unmarried girl being under the age of sixteen years. It follows from this review that if the facts had been as the prisoner, according to the finding of the jury believed them to be, he would have done no act which has ever been a criminal offence in England; he would have done no act in respect of which an civil action could have ever been maintained against him; he would have done no act for which, if done in the absence of the father, and done with the continuing consent of the girl, the father could have had any legal remedy.
We have, then, next to consider the terms of the statute, and what is the meaning in it of the word "unlawfully." The usual system of framing criminal Acts has been to specify each and every act intended to be subjected to any punishment (CRIMINAL LAW CONSOLIDATION ACTS, by GREAVES, Introduction, p. xli), and then in some way to declare whether the offence is to be considered as a felony or as a misdemeanour, and then to enact the punishment. It seems obvious that it is the prohibited acts which constitute the offence, and that the phraseology which indicates the class of the offence does not alter or affect the facts, or the necessary proof of those facts, which constitute the offence. There are several usual forms of criminal enactment. "If anyone shall, with such or such an intent, do such and such acts, he shall be guilty of felony, or misdemeanour, as the case may be." Whether the offence is declared to be a felony or a misdemeanour depends upon the view of the legislature as to its heinousness. But the class in which it is placed does not alter the proof requisite to support a charge of being guilty of it. Under such a form of enactment there must be proof that the acts were done, and done with the specified intent. Other forms are: "If anyone shall feloniously do such and such acts, he shall be liable to penal servitude," etc., or "if anyone shall unlawfully do such and such acts, he shall be liable to imprisonment," etc. The first of these forms makes the offence a felony by the use of the word "feloniously"; the second makes the offence a misdemeanour by the use of the word "unlawfully." The words are used to declare the class of the offence; but they denote also a part of that which constitutes the offence. They denote that which is equivalent to, though not the same as, the specific intent mentioned in the first form to which allusion has been made. Besides denoting the class of the offence, they denote that something more must be proved than merely that the prisoner did the prohibited acts. They do not necessarily denote that evidence need in the first instance be given of more than that the prisoner did the prohibited acts; but they do denote that the jury must find, as matter of ultimate proof, more than that the prisoner did the prohibited acts.
What is it that the jury must be satisfied is proved beyond merely that the prisoner did the prohibited acts? It is suggested that they must be satisfied that the prisoner did the acts "with a criminal mind"; that there was mens rea. The true meaning of that phrase is to be discussed hereafter. If it be true that this must be proved, the only difference between the second form and the first form of enactment is that in the first the intent is specified, but in the second it is left generally as a criminal state of mind. As between the two second forms the evidence either direct or inferential to prove the criminal state of mind must be the same. The proof of the state of mind is not altered or affected by the class in which the offence is placed.
Another common form of enactment is: "If any person knowingly, wilfully, and maliciously do such or such acts, he shall be guilty of felony"; or "If any person knowingly and wilfully do such or such acts he shall be guilty of misdemeanour"; or "if any person knowingly, wilfully, and feloniously do such or such acts, he shall be liable," etc.; or "if he knowingly and unlawfully do such and such acts, he shall be liable," etc. The same explanation is to be given of all these forms as between each other as before. They are mere differences in form. And though they be all, or though several of them be in one consolidating statute, they are not to be construed by contrast.
"If any question should arise in which any comparison may be instituted between different sections of any one or several of these Acts, it must be carefully borne in mind in what manner these Acts were framed. None of them was re-written; on the contrary, each contains enactments taken from different Acts passed at different times, and with different views, and frequently varying from each other in phraseology, and for the reasons stated in the introduction, these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can on]y apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout": GREAVES ON CRIMINAL LAW CONSOLIDATION ACTS, p. 3.
I have said that as between each other the same explanation is to be given of these latter forms of enactments as of the former mentioned in this judgment. But as between these latter and the former forms there is the introduction in the latter of such words as knowingly, wilfully, maliciously. Wilfully is more generally applied when the prohibited acts are in their natural consequences, not necessarily or very probably, noxious to the public interest, or to individuals, so that an evil mind is not the natural inference or consequence to be drawn from the doing of acts. The presence of the word requires somewhat more evidence on the part of the prosecution to make out a prima facie case, than evidence that the prisoner did the prohibited acts. So as to the word "maliciously." It is used where the prohibited acts may or may not be such as in themselves import, prima facie, a malicious mind. In the same way the word "knowingly" is used where the noxious character of the prohibited acts depends upon a knowledge in the prisoner of their noxious effect, other than the mere knowledge that he is doing the acts; the presence of the word calls for more evidence on the part of the prosecution. But the absence of the word does not prevent the prisoner from proving to the satisfaction of the jury, that the mens rea to be prima facie inferred from his doing the prohibited acts, did not in fact exist.
In R. v. Marsh the measure of the effect of the presence in the enactment of the word "knowingly," is explained. The information and conviction were against a carrier for having game in his possession, contrary to the statute 5 Anne, c. 14, which declared
"that any carrier having game in his possession is guilty of an offence, unless it be sent by a qualified person. "
The only evidence given was that the defendant was a carrier, and that
he had game in his wagon on the road. It was objected that there was no
evidence that the defendant knew of the presence of the game, or that the
person who sent it was not a qualified person. The judges held that there
was sufficient prima facie evidence, and that it was not rebutted by the
defendant by sufficient proof on his part of the ignorance suggested on
his behalf. The judgments clearly import that if the defendant could have
satisfied the jury of his ignorance, it would have been a defence, though
the word "knowingly" was not in the statute. In other words, that its presence
or absence in the statute, only alters the burden of proof.
BAYLEY, J., said (2 B. & C. at p. 722):
"Then, as to knowledge, the clause itself says nothing about it. If that had been introduced, evidence to establish knowledge must have been given on the part of the prosecution; but under this enactment the party charged must show a degree of ignorance sufficient to excuse him. Here there was prima facie evidence that the game was in his possession as carrier. Then it lay on the defendant to rebut that evidence."
LITTLEDALE, J., said (ibid, at pp. 723, 724):
"The game was found in his wagon employed in the course of his business as a carrier. That raises a presumption prima facie that he knew it, and that is not rebutted by the evidence given on the part of the defendant."
From these considerations of the forms of criminal enactments, it would seem that the ultimate proof necessary to authorise a conviction is not altered by the presence or absence of the word "knowingly," though by its presence or absence the burden of proof is altered; and it would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind or mens rea in every offence really charged as a crime. In some enactments, or common law maxims of crime, and, therefore, in the indictments charging the committal of those crimes, the name of the crime imports that a mens rea must be proved, as in murder, burglary, etc. In some the mens rea is contained in the specific enactment as to the intent, which is made a part of the crime. In some the word "feloniously" is used, and in such cases it has never been doubted but that a felonious mind must ultimately be found by the jury. In enactments in a similar form, but in which the prohibited acts are to be classed as a misdemeanour, the word "unlawfully" is used, instead of the word "feloniously." What reason is there why in like manner a criminal mind or mens rea must not ultimately be found by the jury in order to justify a conviction, the distinction always being observed that in some cases the proof of the committal of the acts may prima facie, either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea. But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if in the end the jury are satisfied that there was no criminal mind or mens rea there cannot be a conviction in England for that which is by the law considered to be a crime.
There are enactments which by their form seem to constitute the prohibited acts into crimes, and yet by virtue of which enactments the defendants charged with the committal of the prohibited acts have been convicted in the absence of the knowledge or intention supposed necessary to constitute a mens rea. Such are the cases of trespass in pursuit of game, or of piracy of literary or dramatic works, or of the statutes passed to protect the revenue. But the decisions have been based upon the judicial declaration that the enactments do not constitute the prohibited acts into crime, or offences against the Crown, but only prohibit them for the purpose of protecting the individual interests of individual persons, or of the revenue. Thus in Lee v. Simpson, in an action for penalties for the representation of a dramatic piece, it was held that it was not necessary to show that the defendant knowingly invaded the plaintiff's right. But the reason of the decision given by WILDE, C.J. (3 C.B. at p. 883), is:
"The object of the legislature was to protect authors against the piratical invasion of their rights. In the sense of having committed an offence against the Act, of having done a thing that is prohibited, the defendant is an offender. But the plaintiff's rights do not depend upon the innocence or guilt of the defendant."
So the decision in Morden v. Porter seems to be made to turn upon the view that the statute was passed in order to protect the individual property of the landlord in game reserved to him by his lease against that which is made a statutory trespass against him, although his land is in the occupation of his tenant. There are other cases in which the ground of decision is that specific evidence of knowledge or intention need not be given, because the nature of the prohibited acts is such that, if done, they must draw with them the inference that they were done with the criminal mind or intent, which is a part of every crime. Such is the case of the possession and distribution of obscene books. If a man possesses them and distributes them, it is a necessary inference that he must have intended that their first effect must be that which is prohibited by statute, and that he cannot protect himself by showing that his ultimate object or secondary intent was not immoral: R. v. Hicklin (14). This and similar decisions go rather to show what is mens rea than to show whether there can or cannot be a conviction for crime proper without mens rea.
As to that last question, it has become very necessary to examine the authorities. In BLACKSTONE'S COMMENTARIES, by STEPHEN (2nd Edn.), vol. 4, book vi., OF CRIMES, p. 98, it is said:
"And as a vicious will, without a vicious act, is no civil crime, so, on the other hand, an unwarrantable act without a vicious will, is no crime at all. So that to constitute a crime against human laws there must be--first, a vicious will, and secondly, an unlawful act, consequent upon such vicious will. Now, there are three cases in which the will does not join with the act--first, where there is a defect of understanding, etc.; secondly, where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done, which is the case of all offences committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it."
And at p. 105:
"Ignorance or mistake is another defect of will, when a man intending to do a lawful act does that which is unlawful. For here the deed and the will, acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his family, this is no criminal action; but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so, this is wilful murder."
In Fowler v. Padget, the jury found that they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors; but that delay did actually happen to some creditors. LORD KENYON said (7 Term Rep. at p. 514):
"Bankruptcy is considered as a crime, and the bankrupt in the old laws is called an offender, but it is a principle of natural justice and of our law, that actus non facit reum, nisi mens sit rea. The interest and the act must both concur to constitute the crime."
"I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for."
In Hearne v. Garton, the respondents were charged upon an information for having sent oil of vitriol by the Great Western Railway without marking or stating the nature of the goods. By the Great Western Railway Act, 1835 [a private Act], s. 168, every person who shall send, or cause to be sent by railway any oil of vitriol, shall distinctly mark or state the nature of such goods on penalty of being fined or imprisoned. By s. 206, such penalty is recoverable in a summary way before justices, with power to imprison, etc. The respondents had sent oil of vitriol unmarked, but the justices found that there was no guilty knowledge, but, on the contrary the respondents acted under the full belief that the goods were correctly described, and had previously used all proper diligence to inform themselves of the fact. They refused to convict. It must be observed in that case, as in the present, the respondents did the prohibited acts, and that in that case as in this, it was found as the ultimate proof that they were deceived into the belief of a different and non-criminal state of facts, and had used all proper diligence. The case is stronger perhaps than the present by reason of the word "unlawfully" being absent from that statute. The court upheld the decision of the magistrates, holding that the statute made the doing of the prohibited acts a crime, and, therefore, that there must be a criminal mind, which there was not. LORD CAMPBELL, C.J., said (2 E. & E. at p. 74):
"As to the latter reason, I think the justices were perfectly right; actus non facit reum, nisi mens sit rea. The act with which the respondents were charged is an offence created by statute, for which the person committing it is liable to a penalty or to imprisonment. Not only was there no proof of guilty knowledge on the part of the respondents, but the presumption of a guilty knowledge on their part, if any could be raised, was rebutted by the proof that a fraud had been practised on them ... I am inclined to think they were civilly liable ... "
ERLE, J., said (ibid. at pp. 75, 76):
"I was inclined to think, at first, that the provision was merely protective, but if it create a criminal offence, which I am not prepared to deny, then the mere sending by the respondents, without a guilty knowledge on their part, would not render them criminally liable; although as they took Nicholas's word for the contents of the parcels ... they would be civilly liable ..."
In Taylor v. Newman the information was under s. 23 of the Larceny Act, 1861, which provides: "Whosoever shall unlawfully and wilfully kill ... any pigeon," etc. The appellant shot on his farm pigeons belonging to a neighbour. The justices convicted on the ground that the appellant was not justified by law in killing the pigeons, and, therefore, that the killing was unlawful. In other words, they held that the only meaning of "unlawful," in the statute, was without legal justification. The court set aside the conviction, MELLOR, J., saying (4 B. & S. at p.94):
"I think that [the statute] was not intended to apply to a case in which there was no guilty mind, and where the act was done by a person under the honest belief that he was exercising a right."
In Buckmaster v. Reynolds, an information was laid for unlawfully, by a certain contrivance, attempting to obstruct or prevent the purposes of an election of a vestry. The evidence was that the defendant did obstruct the election because he forced himself and others into the room before eight o'clock, believing that eight o'clock was past. The question asked was whether an intentional obstruction by actual violence was an offence, etc. This question the court answered in the affirmative, so that there, as here, the defendant had done the prohibited acts.
But ERLE, J., continued:
"I accompany this statement [i.e., the answer to the question] by a statement that upon the facts set forth, I am unable to see that the magistrate has come to a wrong conclusion. A man cannot be said to be guilty of a delict unless, to some extent, his mind goes with the act. Here it seems that the respondent acted on the belief that he had a right to enter the room, and that he had no intention to do a wrongful act."
In R. v. Hibbert the prisoner was indicted under the section now in question. The girl, who lived with her father and mother, left her home in company with another girl to go to a Sunday school. The prisoner met the two girls, and induced them to go to Manchester. At Manchester he took them to a public house, and there seduced the girl in question, who was under sixteen. The prisoner made no inquiry, and did not know who the girl was or whether she had a father or mother living or not, but he had no reason to, and did not believe, that she was a girl of the town. The jury found the prisoner guilty, and LUSH, J., reserved the case. In the Court for Crown Cases Reserved, BOVILL, C.J., CHANNEL and PIGOTT, BB., BYLES and LUSH, JJ., quashed the conviction. BOVILL, C.J., said (L.R. 1 C.C.R. at p. 185):
"In the present case there is no statement of any finding of fact that the prisoner knew, or had reason to believe, that the girl was under the lawful care or charge of her father or mother, or any other person. In the absence of any finding of fact on this point the conviction cannot be supported."
This case was founded on R. v. Green before MARTIN, B. The girl there was under fourteen, and lived with her father, a fisherman, at Southend. The prisoners saw her in the street by herself, and induced her to go with them; they took her to a lonely house, and there Green had criminal intercourse with her. MARTIN, B., directed an acquittal. He said (3 F. & F. at pp. 274, 275):
"There must be a taking out of the possession of the father. Here the prisoners picked up the girl in the streets, and for anything that appeared they might not have known that the girl had a father. The girl was not taken out of the possession of anyone. The prisoners no doubt had done a very immoral, but the question was whether they had committed an illegal, act. The criminal law ought not to be strained to meet a case which did not come within it. The act of the prisoners was scandalous, but it was not any legal offence."
In each of these cases the girl was surely in the legal possession of her father. The mere fact of her being in the street at the time could not possibly prevent her from being in the possession of her father. Everything, therefore, prohibited was done by the prisoner in fact. But in each case the ignorance of facts was held to prevent the case from being the crime to be punished.
In R. v. Tinkler, in a case under this section, COCKBURN, C.J., charged the jury thus (1 F.& F. at p. 514):
"It was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes's custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise, which he alleged he had made to her father, and that he did not suppose that he was breaking the law when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal."
The jury found the prisoner Not Guilty. In R. v. Sleep, the prisoner had possession of government stores, some of which were marked with the broad arrow. The jury, in answer to a question whether the prisoner knew that the copper, or any part of it, was marked, answered: "We have not sufficient evidence before us to show that he knew it." The Court for Crown Cases Reserved held that the prisoner could not be convicted. COCKBURN, C.J., said (8 Cox, C.C. at pp. 477, 478):
"Actus non facit reum, nisi mens sit rea, is the foundation of all criminal justice ... The ordinary principle that there must be a guilty mind to constitute a guilty act, applies to this case, and must be imported into this statute, as it was held in R. v. Cohen, where the conclusion of the law was stated by HILL, J., with his usual clearness and power. It is true that the statute says nothing about knowledge, but this must be imported into statute."
POILOCK, C.B., MARTIN, CROMPTON, and WILLES, JJ., agreed. In R. v. Robin, and R. v. Olifier, there was hardly such evidence as was given in this case as to the prisoner being deceived as to the age of the girl and having reasonable ground to believe the deception, and there certainly were no findings by the jury equivalent to the findings in this case. In R. v. Forbes and Webb, where the charge was one of assaulting a police constable in the execution of his duty, although the policeman was in plain clothes, the prisoner certainly had strong ground to suspect, if not to believe, that he was a policeman, for the Case states that persons repeatedly called out to rescue the boy and pitch into the constable.
Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end in bringing the offence within a more serious class of crime. As if a man strike with a dangerous weapon with intent to do grievous bodily harm and kills. The result makes the crime murder; the prisoner has run the risk. So, if a prisoner do the prohibited acts without caring to consider what the truth is as to facts, as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk. So, if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve, if the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal offence at all. It may be true to say that the meaning of the word "unlawfully" is without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime, but, I come to the conclusion that a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with LORD KENYON that "such is our law," and with COCKBURN, C.J., that "such is the foundation of all criminal justice."
DENMAN, J.--The defendant was indicted under s. 55 of the Offences against the Person Act, 1861. I cannot hold that the word "unlawfully" is an immaterial word in an indictment framed upon this section. I think that it must be taken to have a meaning, and an important meaning, and to be capable of being either supported or negatived by evidence upon the trial: see R. v. Turner and Reader; R. v. Ryan and Connor. In the present case the jury found that the defendant had done everything requisite to bring himself within the section as a misdemeanant, unless the fact that he bona fide and reasonably believed the girl taken by him to be eighteen years old constituted a defence. That is, in other words, unless such bona fide reasonable belief prevented them from saying that the defendant, in what he did, acted unlawfully within the meaning of the section.
The question, therefore, is whether upon this finding of the jury the defendant did "unlawfully," etc., the things which they found him to have done. The solution of this question depends upon the meaning of the word unlawfully in s. 55. If it means "with a knowledge or belief that every single thing mentioned in the section existed at the moment of the taking," undoubtedly the defendant would be entitled to an acquittal, because he did not believe that a girl under sixteen was being taken by him at all. If it only means without lawful excuse or justification, then a further question arises, viz., whether the defendant had any lawful excuse or justification for doing all the acts mentioned in the section as constituting the offence, by reason merely that he bona fide and reasonably believed the girl to be older than the age limited by the section. Bearing in mind the previous enactments relating to the abduction of girls under sixteen, the Abduction Act, 1557, s. 2, and the general decisions upon those enactments and upon the present statute, looking at the mischief intended to be guarded against, and for the reasons given in the judgments of BRAMWELL, B., and BLACKBURN, J., it appears to me reasonably clear that the word "unlawfully" in the true sense in which it was used, is fully satisfied by holding that it is equivalent to the words "without lawful excuse," using those words as equivalent to without such an excuse as, being proved, would be a complete legal justification for the act, even where all the facts constituting the offence exist. Cases may easily be suggested where such a defence might be made out; as, for instance, if it were proved that the prisoner had the authority of a court of competent jurisdiction, or of some legal warrant, or that he acted to prevent some illegal violence, not justified by the relation of parent and child, or schoolmistress or other custodian, and requiring forcible interference by way of protection.
In the present case the jury find that the defendant believed the girl to be eighteen year of age. Even if she had been of that age she would have been in the lawful care and charge of her father as her guardian by nature: see Co. LITT. 88b, n. 12, 19th Edn., recognised in R. 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 had done was not unlawfully done within the meaning of the section. In other words, having knowingly done a wrongful act, viz., in taking the girl away from the lawful possession of her father against her 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.