The doctrines elsewhere enunciated by him, show with great
clearness, that in such cases _the state of the mind constitutes the
essence of the offence_, and if the state of the mind which the law
condemns does not exist, in connection with the act, there is no
offence. It is immaterial whether its non-existence be owing to
ignorance of law or ignorance of fact, in either case the fact which the
law condemns, the criminal intent, is wanting. It is not, therefore, in
an "indirect way," that ignorance of the law in such cases constitutes a
defence, but in the most direct way possible. It is not a fact which
jurors "may take into consideration," or not, at their pleasure, but
which they must take into consideration, because, in case the ignorance
exists, no matter from what cause, _the offence which the statute
describes is not committed_. In such case, ignorance of the law is not
interposed as a shield to one committing a criminal act, but merely to
show, as it does show, that no criminal act has been committed.
I quote from Sir Mathew Hale on the subject. Speaking of larceny, the
learned author says: "As it is _cepit_ and _asportavit_, so it must be
_felonice_, or _animo furandi_, otherwise it is not felony, for _it is
the mind_ that makes the taking of another's goods to be a felony, or a
bare trespass only; but because the intention and mind are secret, the
intention must be judged of by the circumstances of the fact, and these
circumstances are various, and may sometimes deceive, yet regularly and
ordinarily these circumstances following direct in the case.
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