Implied li cense. With respect to the second proposition laid down in the Six Carpenters' case, viz. that the abuse of authority or license given by the party will not make a person a trespasser ab initio, it should be observed, that such a license to do an act which per se would be a trespass, is, in some cases, implied by law. Thus, all the old authorities say, that, where a party places upon his own close the goods of another, he, by so doing, gives to the owner of them an implied license to enter for the purpose of recaption (s); if a man takes my goods and carries them into his own land, I may justify my entry into the said land to take my goods again, for they came there by his own act (t). So, a man may sometimes justify an entry on his neighbour's land to retake his own property, which has by accident been removed thither; as in the instance of fruit falling into the ground of another, or in that of a tree which is blown down, or, through decay, falls into the ground of a neighbour: in these cases, the owner of the fruit or of the tree may, by his plea, shew the nature of the accident, and that he was not responsible for it, and thus justify the entry (u). This distinction must, however, be remarked, that, if the fruit or tree had fallen in the particular direction in consequence of the owner's act or negligence, he could not justify the entry (x). Another case also occurs, in which the law presumes a license. Thus, if A. wrongfully place goods in B.'s building, B. may lawfully go upon A's close adjoining the building, for the purpose of removing and depositing the goods there for A.'s use, that is to say, the law allows a person to (8) Per Parke, B., Patrick v. Colerick, 3 M. & W. 485. (t) Vin. Abr." Trespass,"(1), a.; cited M. & W. 485. (u) Per Tindal, C. J., Anthony v. Haney, 8 Bing. 192. (x) Millen v. Hawery, Latch. 13; Vin. Abr. "Trespass," H. a. 2, L. a.; per Tindal, C. J., 8 Bing. 192. enter into a plaintiff's own close, for the purpose of depositing there the plaintiff's own goods, which he had wrongfully placed on the premises of the defendant (y). So, also, if a man finds cattle trespassing on his land, he may chase them out, and is not bound to distrain them damage feasant (z). Where, however, the goods are placed on the ground or premises of a third party, the law is different; for, if individuals were allowed to use private force as a remedy for private injuries, the public peace would be endangered, and, therefore, the right of recaption shall never be exerted where such exertion must occasion strife and bodily contention. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, unless he be feloniously stolen, but must have recourse to an action at law (a). pleading. Lastly, it was further resolved, in the principal case Mode of above referred to, that, in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied, where it is such as renders the defendant who has pleaded the authority which he has abused a trespasser ab initio ; but that a mere non-feasance does not amount to such an abuse (6). The proper course is to reply the abuse specially; the replication de injuriâ would, in such a case, be bad (c). (y) Vin. Abr. "Trespass," 516, pl. 17, (I. a.); Roll. Abr. I., pl. 17, p. 566; cited Judgment, Rea v. Sheward, 2 M. & W. 426. (z) Tyrringham's case, 4 Rep. 38, cited 2 M. & W. 426. (a) 3 Bla. Com. 4; per Parke, B., 3 M. & W. 485; per Tindal, C. J., and Park, J., 8 Bing. 192, 193; 3 Steph. Com. 359; 2 Rolle, R. 55, (b) 8 Rep. 290; Gargrave v. (c) 1 Smith, L. C. 66. See Price v. Peek, 1 B. N. C. 380. Intentionwhen mate implied. ACTUS NON FACIT REUM NISI MENS SIT REA. (3 Inst. 107). -It is a principle of natural justice, and of our law, that the intent and the act must both concur to constitute the crime (d). Having just seen that the law will, in some cases, imply the nature of a previous intention from an act done subsequently, it is proposed to consider the above maxim with reference exclusively to the criminal law, and to civil proceedings for slander and libel; and although the principle involved in it applies also to actions in form ex contractu, and has been frequently examined and illustrated, especially in several important cases of very recent occurrence, yet, since this principle is also enunciated by several maxims, which are collected and arranged in the Chapter on Contracts, it was thought better to defer for the present all consideration of its meaning and applicability when employed peculiarly with reference to transactions founded on contract. In the pages immediately following, we shall, therefore, treat the above maxim solely as it bears on the important doctrine of criminal intention. The first observation to be made in connexion with this rial and when subject is, that, when the law forbids a thing to be done, it becomes ipso facto illegal to do it wilfully, and consequently the doing it will be the subject-matter of an indictment simpliciter, and without the addition of any corrupt motive (e). But the intention of the party at the time of committing an act charged as an offence is frequently as necessary to be proved as any other fact laid in the indict (d) Per Lord Kenyon, C. J., 7 T. R. 514. (e) Per Ashhurst, J., Rex v. Sainsbury, 4 T. R. 457; cited 2 A. & E. 612; Rex v. Jones, Stra. 1146; per Ld. Mansfield, C. J., Rex v. Woodfall, 5 Burr. 2667. ment, and such proof may consist in shewing overt acts only, and the reason is, that every man is primâ facie supposed to intend the necessary consequences of his own acts. Thus, a prisoner was indicted for setting fire to a mill, with intent to injure and defraud the occupiers; and it was held, that, as such injury was a necessary consequence of setting fire to the mill, the intent to injure might be inferred (g). So, in order to constitute the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is not necessary to shew that the prisoner had any enmity to the deceased; nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justification or excusable cause (h). And it is, as a general proposition, true, that, if an act manifestly unlawful and dangerous be done deliberately, the mischievous intent will be presumed, unless the contrary be shewn (i). tion. It is also a rule laid down by Lord Mansfield, and which Bare intenhas been said to comprise all the principles of previous decisions (k), that, so long as an act rests in bare intention, it is not punishable by our law; but, when an act is done, the law judges not only of the act itself, but of the intent with which it was done; and if the act be coupled with an unlawful and malicious intent, though in itself the act would otherwise have been innocent, yet, the intent being criminal, the act likewise becomes criminal and punishable (7). In the case of treason, however, the old rule, that volun- Treason. tas reputatur pro facto (m)—the will is taken for the deed, (y) Rex v. Farrington, Russ. & Ry. Cr. Cas. 207; per Bayley, J., Rex v. Harvey, 2 B. & C. 264. (h) Per Best, J., 2 B. & C. 268. (i) 1 East, P. C. 231. (k) Per Lawrence, J., Rex v. Higgins, 2 East, 21. (1) Rex v. Scofield, cited 2 East, P. C. 1028. (m) 3 Inst. 5, 69. L Misdemean our. applies in its full extent. A mere imagination of the heart, if any open or overt act be done towards effectuating the design, (without which, however, it cannot, according to the rule just stated, fall within legal cognisance), is deemed the same degree of guilt as if carried into actual execution; but still the compassing and imagining the death is the substantive treason, and this must be strictly charged in the indictment, which must then set forth the several overt acts relied on, as the means and evidence by which the intention may be manifested (n). Thus, although mere words spoken by an individual, not relating to any treasonable act or design then in agitation, do not amount to treason, since nothing can be more equivocal and ambiguous than words (o), yet words of advice and persuasion, and all consultations for the furtherance of traitorous plans, are certainly overt acts of treason; and if the words be set down in writing, this writing, as arguing more deliberate intention, has been held to be an overt act of treason, on the principle that scribere est agere (p); but even in this case the bare words are not the treason, but the deliberate act of writing them: the compassing and imagination, which is the purpose and intent of the heart, is manifested by the specific overt act (0). Likewise, with respect to misdemeanours, the rule is, that a bare criminal intent is not in itself indictable if merely expressed in words, gestures, or otherwise, without further proceeding to the crime to which it points (q). In conspiracy, however, the conspiracy itself is the offence; (n) 1 East, P. C. 58; stat. 7 & 8 Will. 3, c. 3, s. 8. (0) 4 Bla. Com., by Stewart, 80; 1 Hawk. P. C., by Curwood, p. 14, n. (6). (p) 2 Rolle, R. 89. (q) Dick. Quart. Sess., by Serjt. Talfourd, 5th ed., 286. See per Ld. Abinger, C. B., Rex v. Meredith, 8 C. & P. 590. |