and being subsequently prosecuted under this statute, pleaded this as an excuse. But the court said it made no difference. "It was not 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 the penalty whether he knew him to be a minor or not. The offense is of that class where knowledge or guilty intent is not an essential ingredient in its commission and need not be proved." Com. v. Emmons, 98 Mass. 6.

Another statute provided that whoever sells, or keeps, or offers for sale adulterated milk, or milk to which water or any foreign substance has been added, should be punished. Now Patrick Farren sold Bridget Donnigan several quarts of milk which knew more of the pump than of the cow, and though Patrick called the saints to witness that he knew not that this was so, he had to pay the fine. "It is of the greatest importance," said the court, "that the community shall be protected against the frauds now practiced so extensively and skillfully in the adulteration of articles of diet by those who deal in them, and if the Legislature deem it important that those who sell them shall be held absolutely liable, notwithstanding their ignorance of the adulteration, we can see nothing unreasonable in throwing this risk upon them. It is the same risk which every man takes who sells intoxicating drinks, the law making him liable to the penalty although it is not proved that he knew that the liquors were intoxicating." Com. v. Farren, 9 Allen, 489. And in a case where another milkman had been following Patrick's example the court said: "The defendant in this case contends that the statute is unconstitutional because it is in derogation of common right. 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 offense unless it is done with a fraudulent intent. But it is notorious that the sale of milk adulterated with water is extensively practiced 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 that 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." Com. v. Waite, 11 Allen, 264; State v. Smith, 10 R. I. 258.

So where a statute makes it an offense to sell liquor to a minor or a common drunkard, a person selling liquor to one who he believes at the time not to be, but who turns out to be, one or the other, is punishable. Ulrich v. Com., 6 Bush, 400; Barnes v. State, 19 Conn. 398. And where a penalty was given against a magistrate for marrying minors without the consent of their parents, it was held that the magistrate was liable, notwithstanding he honestly believed, after diligent inquiry, that the persons married were of lawful age. Beckham v. Nacke, 56 Mo. 546.

It is assumed in all these cases that the Legislature in passing such laws knew that it was generally impracticable to prove the knowledge, and regarded the protection of the community from the practices it prohibited as more important than the occasional injustice of punishing an innocent wrong-doer. For the evil to the community is the same whether the unlawful intent is present or not. Therefore, the true rule on this point seems to be that the court must decide whether it was the intention of the Legislature that the person doing the forbidden act should do it at his peril or that his ignorance as to the existence of the fact or his mistaken belief, in good faith and on reasonable grounds that it did not exist, should excuse. Steph. Dig. Ev., Art. 34.

IGNORANCE OR MISTAKE OF LAW NO EXCUSE.

WHITTON v. STATE.

[37 Miss. 379.]

Whitton and Ford, who were partners in the grocery business in a Mississippi town, had a license to sell spirituous liquors. One day a man "half seas over," as the phrase is, staggered into the store and asked for whiskey. The bottle was set before him; he paid for and tossed down a dram, "Some says three fingers, some says two, I leave the choice to you," as the poet laureate of England has remarked.1 Now, as it was against the law to sell intoxicating liquors to an intoxicated person, the firm were speedily indicted. When brought into court they did not deny the fact; all they had to say was that they did not know they were doing anything wrong; they had no idea that there was such a law on the books.

But they were told that this was no excuse. "A person," said the court, "is bound to know the law; he is held to the consequences of a wilful violation of it, whether he knew of its existence or not. Otherwise it would be difficult to punish any man for a violation of law, because it might be impossible to prove that he had knowledge of the law. Hence, the legal

1 Or perhaps it was John Hay.

presumption that every man knows the law and that his violations of it are willful."

"All men are presumed to know the law." This is an old maxim, and its wisdom is sufficiently obvious. If any other rule was to be permitted, the most ignorant and unlearned, who are apt to be the most brutal and criminal, would go unpunished. A couple of illustrations will show how strictly this principle is applied. M. Barronet, a Frenchman, fought a duel in England, killing his man. Monsieur derived all his views of dueling from his training and residence in France, where at that time (and probably yet) killing in this manner is no murder. Nevertheless his ignorance that to kill a person in a duel was murder by the laws of England was held no defense. Barronet's Case, 1 El. & Bl. 1.

A sailor was once indicted for violating a statute which was passed while he was at sea, and could not by any possibility have heard of its existence. The judges held him guilty, but thought it such a hard case that they, with praiseworthy unanimity, recommended the king to pardon him. Rex v. Bailey, R. & R. 1.

MAY

MISTAKE OF FACT MAY NEGATIVE INTENT.

COMMONWEALTH v. PRESBY.

[14 Gray, 65.]

"Taking one consideration with another
The policeman's lot is not a happy one,"

Said Officer Presby, as he stepped into the dock to an-
swer a charge of assault and battery. Walking his beat
one night in the city of Lowell, he saw in the gutter the
form of a man. He tried to raise the man on his feet
but could not, and the atmosphere within a radius of
half a block was decidedly alcoholic. "Dead drunk,"
said the officer; and intending to follow his orders to
arrest all intoxicated persons found in the street, he con-
ducted the man to the station-house.
On the way
there the man revived and wanted to go home, explain-
ing [that he had fallen down in a fit, and that his
friends after applying whisky as a stimulant, had
gone for assistance. But the policeman thought this
a ruse, and the man had to spend a night in a cell.
When he was discharged the next morning he lost no
time in having the policeman indicted.

As the policeman had no authority to arrest a person not intoxicated, and as it was admitted that the man told the truth, the question was whether the fact that the policeman had made an honest mistake was any defense. The jury thought not and convicted him. But in the Supreme Court the law was laid down in