wrong basket in his hand. He would by his own act have brought himself within the very words of the statute. Who would think of convicting him? And yet, what defence could there be, except that his mind was innocent and that he had not intended to do the thing forbidden by the statute?

"These decisions of Foster, J., and Lord Kenyon have been repeatedly acted upon. (1)

Now, in the present instance, one consequence of holding that the offence is complete, if the husband or wife is de facto alive at the time of the second marriage, although the defendant had, at that time, every reason to belieye the contrary, would be that, though the evidence of death should be sufficient to induce the Court of Probate to grant probate of the will or administration of the goods of the man supposed to be dead. the latter's wife, who had married six years and eleven months after the last time that she had known him to be alive, would be guilty of felony, in case he should turn up twenty years afterwards. It would be scarcely less unreasonable to enact that those who had, in the meantime distributed his personal estate, under letters of administration, should be guilty of larceny.

"I am well aware that the mischief which may result from bigamous marriages, however innocently contracted, are great; but I cannot think that the appropriate way of preventing them is to expose, to the danger of a cruel injustice, persons whose only error may be that of acting upon the same evidence as has appeared perfectly satisfactory to a Court of Probate, a tribunal emphatically difficult to satisfy in such matters, and certain only to act upon what appears to be the most cogent evidence of death.

"It is said, in respect of the offence now under discussion, that the proviso in 24 and 25 Vict, ch. 150, 57, that nothing in the section shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for seven years last past, and shall not have been known by such person to be living within that time,' points out the sole excuse which the act allows. I cannot see what necessity there is for drawing any such inference. It seems to me that it merely specifies one particular case, and indicates what in that case shall be sufficient to exempt the party without any further inquiry from criminal liability; and I think it is an argument of considerable weight, in this connection, that under 9 and 10 Wm. III., ch. 41, 22, where a similar contention was founded upon the specification of one particular circumstance under which the possession of government stores should be justified, successive judges and courts have refused to accede to the reasoning, and have treated it, to use the words of Lord Kenyon, as a matter that, could bear no question,' that the defendant might shew, in other ways. that his possession was without fraud." (2)

46

After reviewing critically the conflicting decisions, upon the point in question. Mr. Justice Wills continued. There is nothing, in the state of the authorities, directly bearing upon the question, to prevent one from deciding it upon the grounds of principle. It is, however, suggested that the important decision of the court of fifteen judges, in Regina v. Prince, (3) is an authority in favor of a conviction in this case. I do not think so.

.

"In Regina v. Prince, the defendant was indicted under 24-25 Vict., c, 100. sec. 55 for unlawfully taking an unmarried girl, then being under the age of sixteen years, out of the possession and against the will of her father.' The jury found that the prisoner bona fide believed upon reasonable grounds that she was eighteen. The court upheld the conviction. Two judgments were delivered by a majority of the court, in each of which several judges concurred, whilst three

(1) See Reg. v. Wilmett, 3 Cox C. C. 281; Reg. v. Cohen, 8 Cox C. C. 41; Reg. v. O'Brien, 15 L T. (N. S.) 419.

(2) Rex. v. Banks, supra.

(3) Reg. v. Prince, L. R., 2 C. C. R. 154, 175.

of them, Denman, J., Pollock, B, and Quain, J., concurred in both. The first of the two, being the judgment of nine judges, upheld the conviction upon the ground that, looking to the subject-matter of the enactment, to the group of sections amongst which it is found, and to the history of legislation on the subject, the intention of the legislature was that, if a man took an unmarried girl under sixteen out of the possession of her father, against his will, he must take his chance of whether any belief he might have about her age was right or wrong, and if he make a mistake upon this point so much the worse for him; he must bear the consequences. The second of the two judgments gives a number of other reasons for arriving at the same conclusion, some of them founded upon the policy of the legislature, as illustrated by other associated sections of the same act. This judgment contains an emphatic recognition of the doctrine of the guilty mind,' as an element, in general, of a criminal act, and supports the conviction upon the ground that the defendant, who believed the girl to be eighteen and not sixteen, even then, in taking her out of the possession of the father, against his will, was doing an act wrong in itself. 'This opinion,' says the judgment, gives full scope to the doctrine of the mens rea.'

"The case of Regina v. Prince, therefore, is a direct and cogent authority for saying that the intention of the legislature cannot be decided upon simple prohibitory words, without reference to other considerations. The considerations relied upon in that case are wanting in the present case, whilst, as it seems to me, those which point to the application of the principle underlying a vast area of criminal enactment, that there can be no crime without a tainted mind, preponderate greatly over any that point to its exclusion.

*

In my opinion, therefore, this conviction ought to be quashed."

Mr. Justice Cave, in the course of his remarks, said:

At common law, an honest and reasonable belief in the existence of circum stances which, if true, would make the act, for which a prisoner is indicted, an innocent act has always been held a good defence. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty,-as, in infancy, or perversion of that faculty,-as in lunacy; and it has never been suggested that these exceptions do not equally apply in the case of statutory offences, unless they are excluded, expressly or by necessary implication.

"In Regina v. Prince, in which the principle of mistake underwent much discussion, it was not suggested by any of the judges that the exception of honest and reasonable mistake was not applicable to all offences, whether existing at common law or created by statute. The difference of opinion in that case was as to the exact extent of the exception, Brett, J., the dissenting judge, holding that it applied wherever the accused honestly and reasonably believed in the existence of circumstances which, if true, would have made his act not criminal, while the majority of the judges seem to have held that, in order to make the defence available in that case, the accused must have proved the existence in his mind of an honest and reasonable belief in the existence of circumstances which, if they had really existed, would have made his act not only not criminal, but also not immoral.

In the present case, the jury have found that the accused honestly and reasonably believed in the existence of a state of circumstances, namely,―in her first husband's death,-which, had it really existed, would have rendered her act, in marrying again, not only not criminal, but also not immoral.

**

It is argued, however, that assuming the general exception to be as stated, yet the language of the act is such that that exception is necessarily excluded in this case. Now, it is undoubtedly within the competence of the legislature to enact that a man shall be branded as a felon and punished for doing an act which he honestly and reasonably believes to be lawful and right; just as the legislature may enact that a child or a lunatic shall be punished criminally for an act which he has been led to commit by the immaturity or perversion of his reasoning faculty. But such a result seems so revolting to the moral sense that we ought to require the clearest and most indisputable evidence that such is

really the meaning of the act. It is said that this inference necessarily arises from the language of the section in question, and particularly of the proviso. The section (omitting immaterial parts) is in these words: Whosoever being married shall marry any other person during the life of the former husband or wife shall be guilty of felony; provided, that nothing in this section contained shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time. It is argued that the first part is expressed absolutely; but surely it is not contended that the language admits of no exception, and therefore that a lunatic who, under the influence of a delusion, marries again, must be convicted; and, if an exception is to be admitted where the reasoning faculty is perverted by disease, why is not an exception equally to be admitted where the reasoning faculty, although honestly and reasonably exercised, is deceived? But it is said that the proviso is inconsistent with the exception contended for: and, undoubtedly, if the proviso covers less ground or only the same ground as the exception, it follows that the legislature has expressed an intention that the exception shall not operate until after seven years from the disappearance of the first husband. But if, on the other hand, the proviso covers more ground than the general exception, surely it is no argument to say that the legislature must have intended that the more limited defence shall not operate within the seven years because it has provided that a less limited defence shall only come into operation at the expiration of those years.

(6

What must the accused prove to bring herself within the general exception? She must prove facts from which the jury may reasonably infer that she honestly and on reasonable grounds believed her first husband to be dead before she married again. What must she prove to bring herself within the proviso? Simply that her hushand has been continually absent for seven years; and if she can do that it will be no answer to prove that she had no reasonable grounds for believing him to be dead, or that she did not honestly believe it. Unless the prosecution can prove that she knew her husband to be living within the seven years she must be acquitted. The honesty or reasonableness of her belief is no longer in issue. Even if it could be proved that she believed him to be alive all the time, as distinct from knowing him to be so, the prosecution must fail. The proviso, therefore, is far wider than the general exception; and the inten tion of the legislature, that a wider and more easily established defence should be open after seven years from the disappearance of the husband, is not necessarily inconsistent with the intention that a different defence, less extensive and more difficult of proof, should be open within the seven years.

For these reasons I am of opinion that the conviction cannot be supported.” In the course of an elaborate declaration of his concurrence in the judgment quashing the conviction, Stephen, J. said :

For

The mental elements of different crimes differ widely. Mens rea' means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods knowledge that the goods were stolen. In some cases it denotes mere inattention. instance, in the case of manslaughter by negligence, it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. It seems contradictory, indeed to describe a mere absence of mind as a mens rea,' or guilty mind. The expression again is likely to and often does mislead. To an unlegal mind it suggests that by the law of England no act is a crime which is done from laudable motives; in other words, that immorality is essential to crime.

"Like most Latin maxims, the maxim on mens rea appears to me to be too short and antithetical to be of much practical value. I have tried to ascertain its origin, but have not succeeded in doing so.

The principle involved appears to me, when fully considered, to amount to no more than this. The full definition of every crime contains, expressly or by implication, a proposition as to a state of mind. Therefore if the mental element

of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed. The mental element of most crimes is marked by one of the words 'maliciously, fraudulently,' negligently' or knowingly, but it is the general—I might, I think, say the invariable practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined.

4

"The meanings of the words malice, negligence' and fraud,' in relation to particular crimes, has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the Malicious Mischief act, and a third in relation to libel, and so of fraud and negligence.

44

With regard to knowledge of fact, the law, perhaps, is not quite so clear, but it may, I think, be maintained that in every case knowledge of fact is, to some extent, an element of criminality as much as competent age and sanity. Levitt's case, (1) decides that a man who, making a thrust with a sword at a place where, upon reasonable grounds, he supposed a burglar to be, killed a person who was not a burglar, was held not to be a felon, but in the same situation, in regard to the homicide, as if he had killed a burglar.

"Apart, indeed, from the present case, I think it may be laid down as a general rule, that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believe to exist when he did the act alleged to be an offence.

“I think that the case reserved falls under the general rule as to mistakes of fact, and that the conviction ought to be quashed."

After discussing the arguments supposed to lead to the opposite conclusion and after reviewing the case of Regina v. Prince, Stephen, J., added :—

66

It appears to me that every argument which showed, in the opinion of the judges in Regina v. Prince, that the legislature meant seducers and abductors to act at their peril, shows that the legislature did not mean to hamper- with a liability to seven years' penal servitude,- what is not only intended, but naturally and reasonably supposed by the parties, to be a valid and honorable marriage. "It is argued that the proviso that a remarriage, after seven years' separation, shall not be punishable, operates as a tacit exclusion of all other exceptions to the penal part of the section. It appears to me that it only supplies a rule of evidence which is useful in many cases, in the absence of explicit proof of death. But it seems to me to show, not that belief in the death of one married person excuses the marriage of the other only after seven years' separation, but that mere separation for that period has the effect which reasonable belief of death caused by other evidence would have at any time. It would, to my mind, be monstrous to say that seven years' separation should have a greater effect in excusing a bigamous marriage than positive evidence of death, sufficient for the purpose of recovering a policy of assurance or obtaining probate of a will."

The remarks of Manisty, J., one of the dissenting judges, were, briefly stated, as follows:

64

In view of the plain language of the statute it is, in my opinion, the imperative duty of the court to give effect to it, and to leave it to the legislature to alter the law, if it thinks it ought to be altered.

"No doubt, in construing a statute, the intention of the legislature is what the court has to ascertain but the intention must be collected from the language used, and where that language is plain and explicit and free from all ambiguity, as it is in the present case, I have always understeod that it is the imperative duty of judges to give effect to it.

The cases of insanity, etc., on which reliance is placed, stand on a totally different principle, viz., that of an absence of mens. Ignorance of the law is no excuse for the violation of it, and if a person choose to run the risk of commiting

(1) R. v. Levett, Cro. Car. 538; 4 Bl. Com. 27; Fost. 274.

a felony, he or she must take the consequences, if it turn out that a felony has been committed."

After discussing the statute and its different clauses, in connection with the case of Regina v. Prince, the learned judge continued:

6

"I rely very much upon the fifth section of the act passed in 1885 for the better protection of women and girls (48 and 49 Vict., c. 69), by which it was enacted that any person who unlawfully and carnally knows any girl above thirteen and under sixteen years shall be guilty of a misdemeanor,' but to that is added a proviso that, it shall be a sufficient defence if it be made to appear to the court or jury before whom the charge shall be brought that the person charged had reasonable cause to believe and did believe that the girl was of or above the age of sixteen.' It is to be observed that, notwithstanding that the word unlawfully' appears in this section, it was considered necessary to add the proviso, without which it would have been no defence that the accused had reasonable cause to believe and did believe that the girl was of or above the age of sixteen. Those who hold that the conviction, in the present case, should be quashed really import into the fifty-seventh section of the 24 and 25 Vict., ch. 100, the proviso which is in the fifth section of the 48 and 49 Vict., ch. 69, contrary, as it seems to me, to the decision in Regina v. Prince, and to the hitherto undisputed canons for construing a statute.

6

"So far as I am aware, in none of the cases cited by my learned brothers was the interest of third parties, such as the fact of there being children of the second marriage, involved. I have listened with attention to the judgments which have been delivered, and I have not heard a single observation with reference to this, to my mind, important and essential point. I am absolutely unable to distinguish Regina v. Prince from the present case, and looking to the names of the eminent judges who constituted the majority in that case, and to the reasons given in their judgments, I am of opinion, upon authority as well as principle, that the conviction should be affirmed.” (1)

Other grounds of defence to a prosecution for bigamy are that, before the second marriage the party indicted was divorced from the bond of the first marriage; or that the first marriage has been declared void by a court of competent jurisdiction.

It was formerly considered that no sentence or act of a foreign country or state could dissolve, a vinculo matrimonii, an English marriage, for grounds on which it was not liable to be so dissolved in England.

This rule seems to have been adopted in the case of R. v. Lolley, in which a Scotch divorce, a vinculo matrimonii, for the husband's adultery,-the marriage having been solemnized in England,-was held to be invalid in England, the husband's adultery alone, unaccompanied with cruelty or desertion not being, under English law, a sufficient ground for a divorce, a vinculo matrimonii : but there was in this case an additional question of domicile involved for not only was the marriage solemnized in England, but the parties were, at the time of the granting of the divorce, domiciled there; and this alone, would have been a good ground for holding the divorce granted by a Scotch Court, invalid, in England, independently of and without reference to the rule above alluded to. (2) In fact that rule has by the English Court of Appeal, been since denied to be law, in a later case, in which the marriage was also solemnized in English, the parties being a Scotchman and an English woman. In this case, also, the decree of divorce a vinculo, was granted by a Scotch Court and the ground of divorce was one for which a divorce is not obtainable in England, but there was this difference, that the husband's domicile was in Scotland; and the Scotch divorce, in this case, was held to be valid in England, on the ground that although the marriage had been solemnized in ngland, the question of divorce was not an incident of the marriage contract to be governed by the lex loci contractus, but an incident of status to be disposed of by the law of the domicil of the parties,-that is to say, the domicil of

(1) Reg. v. Tolson, 23 Q. B. D. 168; 58 L. J. (M. C.) 97. (2) R. v. Lolley, R. & R. 238.