The reason almost invariably assigned for the rule is that given by Lord Ellen-borough in the leading case: "Every man must be taken to be cognizant of the law." This appears to be generally regarded (as it appears to have been regarded by Lord Ellenborough) as nothing more than a free translation of the maxim, Ignorantia juris non excused. But this maxim clearly implies a charge of delinquency - the commission of a crime, the breach of a contract, or the commission of a tort, "and therefore assumes the existence of a defendant seeking to justify an act, in the doing of which it is claimed he has violated some right ":l
Lansdown v. Lansdown, 1730, Mosely 364: King, Ld. Ch. (p. 365): "That maxim of law, Ignorantia juris non excusat, was in regard to the public, that ignorance cannot be pleaded in excuse of crimes, but did not hold in civil cases."
Queen v. Mayor of Tewkesbury, 1868, L. R. 3 Q. B. 629: Blackburn, J. (p. 635): "The rule is that ignorance of the law shall not excuse a man, or relieve him from the consequences of a crime, or from liability on contract."
Culbreath v. Culbreath, 1849, 7 Ga. 64; 50 Am. Dec. 375: Nisbet, J. (p. 71): "The idea of excuse, implies delinquency. No man can be excused upon a plea of ignorance of the law, for disobeying its injunctions, or violating its provisions, or abiding his just contracts. He is presumed to know the law, and if he does not know it, he is equally presumed to be delinquent. I remark, to avoid" misconstruction, that it is of universal application in criminal cases. In civil matters, it ought not to be used to effectuate a wrong."
The maxim has no proper application, either in law or in policy, to the case of one who has done no wrong and who seeks not to inflict a loss upon another, but to save himself from a loss.
Its identity with the recognized maxim Ignorantia juris non excusat being disproved, the proposition that a man is presumed to know the law is found to be of decidedly questionable character. Said Lord Mansfield,2 " as to the certainty of the law ... it would be very hard upon the profession, if the law was so certain, that everybody knew it." Said Chief Justice Abbott,1 "God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law." Said Justice Maule,2 "There is no presumption in this country that every person knows the law: it would be contrary to common sense." And there are not a few cases in the books in which ignorance of the law has been permitted to be proved.3
1 Keener, " Quasi-Contracts," p. 90.
2 Jones v. Randall, 1774, Cowp. 37, 40.
It has been contended also that to permit a recovery would lead to the greatest uncertainty as to one's rights. "There is no saying to what extent the excuse of ignorance might not be carried." 4 But the courts both in England and America have long conceded that money paid under mistake of fact, in circumstances which make its retention inequitable, may be recovered; and there appears to be no reason to fear that the excuse of ignorance of law would prove a greater temptation to the unscrupulous or a more effective weapon of injustice. Moreover, in the few jurisdictions which have made the experiment of permitting a recovery in case of mistake of law, there where it is said that "If ignorance of the law were generally allowed to be pleaded, there could be no security in legal rights, no certainty in judicial investigations, no finality in litigations." appears to be no abuse of the right nor dissatisfaction with the working of the rule.
1 Montriou v. Jefferys, 1825, 2 Car. & P. 113, 116.
2 Martindale v. Falkner, 1846, 2. C. B. 706, 719.
3Lansdown v. Lansdown, 1730, Mosely 364, (equity ordered the surrender of a bond given by the plaintiff to secure defendant's father in quiet enjoyment under a mistake as to the law of inheritance); Rex v. Hall, 1828, 3 Car. & P. 409, (indictment for robbery; defendant allowed to show he thought property taken his own); Queen v. Mayor, etc., of Tewkesbury, 1868, L. R. 3 Q. B. 629, 635, (voters knew B., one of the candidates for town council, was mayor, but were allowed to show ignorance that he was thereby disqualified as candidate); Regina v. Twose, 1879, 14 Cox Cr. Cas. 327, (defendant set fire to furze on common, thinking she did it of right). And see Commonwealth v. Stebbins, 1857, 8 Gray (Mass.) 492, (larceny); State v. Pullen, 1901, 3 Penne-will (Del.) 184, 50 Atl. 538, (larceny); Triplett v. Commonwealth, 1906, 122 Ky. 35; 28 Ky. Law Rep. 974; 91 S. W. 281, (robbery).
4 Lord Ellenborough in Bilbie v. Lumley, 1802, 2 East 469, 472. See also opinion by Mitchell, J., in Erkins v. Nicolin, 1888, 39 Minn. 461; 40 N. W. 567, and Pomeroy on "Equity Jurisprudence," Vol. 2, Sec. 842,
Assuming then that it is not true that one is presumed to know the law, and further assuming that the danger of the abuse of the right is not a grave one, is there any other ground, any reason in justice or public policy, which justifies the rule of no recovery? It is believed that there is not. On the contrary, it is believed that to permit a recovery, with limitations the same or similar to those with which the right to recover in cases of mistake of fact is hedged about, would sensibly diminish the area of human rights at present beyond the reach of the law.