may escape from the obligation by forfeiting the earnest, or returning double the amount; but in the former there is no escape, the contract is binding, and, the earnest being admitted or proven, oral evidence may be introduced to prove what the contract was. It is. obvious that the great difficulty here is to decide to which class of earnest the payment belongs. The weight of French authority is in favour of considering the relative amount of the payment. If the earnest is so small and insignificant in comparison with the total price of the goods sold, it must be considered as establishing the irrevocable existence of the contract, from which neither party can escape; but should it be an amount which neither would willingly lose or abandon it is considered as a forfeit which will relieve them from the obligation: Pothier, Vente, s. 138; Durvergier, Vo. Arrhes, No. 16; Sirey, C. N., 1590. Of the second class, article 1235 makes no mention, and the earnest there referred to is evidence of the definite character of the sale.

Although there may be technically a distinction between earnest and part payment, in practice they amount to the same thing, for as Blackstone says (II. 447): "If any part of the price is paid down, if it be but a penny, the contract is binding." Something must be actually paid, however, and the obsolete custom of crossing the seller's hand with a shilling will not open the door to oral proof: Benjamin, p. 162. It must not be supposed that the earnest is proof of the completion of the sale, of the passing of the property from the seller to the buyer; its only legal effect is to afford conclusive evidence that a bargain was actually completed with the mutual intention that it should be binding on both parties.

The part payment in order to make the sale good need not be made in money, but anything of value which by mutual agreement is given by the buyer and accepted by the seller "on account" or in part satisfaction of the price, will satisfy the requirements of

our article: Benjamin, p. 165. The American jurisprudence has decided that where a sale is made on an agreement that the price shall be applied on the payment of a precedent debt, such price must be actually applied by a receipt or otherwise, to bring it within the exception of the Statute of Frauds.

Whether the giving of earnest may itself be proved by parol cannot be said to be definitely settled, although it is probable that the weight of authority . would be in favour of following the analogy of proof of acceptance or receipt as decided by the Supreme Court: Munn v. Berger, supra. In Metivier v. Livinson,30 the late Mr. Justice Pagneulo decided that such parol evidence was inadmissible, but Mr. Mignault (Droit Civil Canadien VI., p. 95), expresses the opinion that the giving of earnest may be proved by parol.

While our jurisprudence has, since the promulgation of the Code, done much to analyze and explain the rules contained in Article 1235, and the comments of two generations of learned and able jurists have compared these with, and distinguished them from, those contained in the Statute of Frauds, there are many points on which our law cannot be said to be finally and definitely settled. What are commercial matters? will an admission, even partial, replace the memorandum in writing? is a partial payment an acknowledgment under the article? These and other questions still provide scope for the lawyer's ingenuity, and call for the careful consideration of the judge. A. RIVES HALL.

MENS REA.

"Obedience to law is liberty."-Inscription over the portal of the Court House, at Worcester, Mass.

"Obedience is the essence of law."-Coke.

"The law alone can give us freedom."-Goethe.
"To obey (obedience) is better than sacrifice."

First Samuel, xv.-22.

"Apart from the element of force, obedience to the laws of our country is a moral duty binding on the conscience."-Lord Mackenzie.

Lord Coke made it a subject of comment that great questions had often arisen, "upon Acts of Parliament, overladen with provisos and additions, and many times on a sudden penned or corrected by men of none, or of very little judgment in law, which led to uncertainty and conflicting decisions." The difficulty is generally found to arise in the case of statutory penalties. The principle was settled nearly a century ago, that a statutory prohibition is equally efficacious, and the illegality of a breach of the statute the same, whether a thing be prohibited absolutely or only under a penalty. The authority cited in support of this view is that of Bensley v. Bignold. This case, which was decided in 1822, supersedes the distinction formerly drawn between statutory of fences, which are mala prohibita, only, and mala in se. In this case, it was held a printer could not recover for labour or materials used in printing any work, unless he affixes his name to it pursuant to 39 Geo. 3, ch. 79, for neglect of which by sec. 27, rendered the printer liable to pay a fine of £20. In an action to recover by plaintiffs the sum of £92 for printing a pamphlet, it was held they could not recover. Abbott, C.J., directed the jury to find a verdict for plaintiffs, with liberty to the defendant to move to

15 B. & A. 335.

enter a non-suit. The full Court unanimously held the rule for entering a non-suit must be made absolute. The judgment of Best, J., reads as follows:

"The distinction between mala prohibita and mala in se has been long since exploded. It was not founded upon any sound principle, for it is equally unfit that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited because it is against good morals, or whether it be prohibited because it is against the interest of the state. The object of the 39 G. 3, was to provide the most effectual means of discovering the authors of every publication, in order that they might be made answerable for the contents, and for that purpose it has directed that all the parties concerned in bringing the publication into the world, whether printers or publishers, shall be made known. Here, the printer's name has not been printed upon the publication as required by the Act of Parliament, and that being so, there is no legal contract on which an action can be founded, inasmuch as the thing was done in direct violation of the law. The case of Merchant v. Evans is precisely in point. I am of opinion, therefore, that this pamphlet having been sent out without the name of the printer, he cannot recover for the labour, or for the materials used in printing it. The rule must therefore be made absolute.

Abbott, C.J., said:—

"I am of opinion that the rule for entering a non-suit must be made absolute.

Rule Absolute.

66

The act itself does not make a man guilty unless his intention were so."

The application to English cases of the civil law maxim, Actus non facit reum nisi sit mens rea, has been traced in English jurisprudence as far back as the times of the first Henry, in the twelfth century. It had, however, been a guiding principle in our criminal law from the earliest times, that in order to fasten the penalty of criminal offence upon one, a guilty mind must have formed an essential ingredient.

Lord Chief Justice Kenyon says: "It is a principle of natural justice and of our laws, that the intent and the act must both concur to constitute crime." To the like effect are the words of Chief Justice Earle: "A man cannot be said to be guilty of a delict, unless to some extent his mind goes with the act."

The introduction of this phrase into our criminal jurisprudence has been the fruitful source of conflicting opinions amongst our ablest judges. This has arisen partly from the want of a proper application of the maxim under the varying phases of facts and statutory enactments in our law. The phrase originally was made to apply to criminal offences mala in se; but it has been as frequently invoked in offences mala prohibita, for the doing or not doing of certain acts which, apart from the statute, are naturally and per se indifferent.

Cave, J., designates it as a "somewhat uncouth maxim." Nor does Stephen, J., regard it with greater favour. This eminent judge calls it " a most unfortunate phrase." He thinks it "not only likely to mislead, but actually misleading.". "That it is more like the title of a treatise than a practical rule."

The difficulty in the proper application of the maxim has been greatly increased by the carelessness of the Legislature in framing penal acts. In many cases, the scope of the Act, a careful consideration of the object sought to be attained, as well as its phraseology, are all to be carefully weighed in determining whether it was intended to fix criminal responsibility upon the infringement of its provisions, whether intentional or unintentional. If such in fact were its object, the presence or absence of mens rea could not enter as a determining factor of innocence or guilt. Once the infraction of the law is proved, the penalty as a necessary consequence follows. This much, however, may be said, that in all cases when the Legislature chooses to dispense with the necessity of the mens rea, and constitutes an act a crime itself, irrespective of the mental element, it should be expressed in the clearest possible language.

The following rule was laid down by the great Lord Chief Justice Mansfield:

"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