An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗

Statutes Were So

Plainly Innocent In Their Nature,  That Even The Government Itself

Had Not The Face To Allege That The Commission Of Them Implied Or

Indicated Any Criminal Intent.

 

To Get Rid Of The Necessity Of Showing A Criminal Intent,  And

Thereby Further To Enslave The People,  By Reducing Them To The

Necessity Of A Blind,  Unreasoning Submission To The Arbitrary

Will Of The Government,  And Of A Surrender Of All Right,  On Their

Chapter 9 (The Criminal Intent) Pg 153

Own Part,  To Judge What Are Their Constitutional And Natural

Rights And Liberties,  Courts Have Invented Another Idea,  Which

They Have Incorporated Among The Pretended Maxims,  Upon Which

They Act In Criminal Trials,  Viz.,  That "Ignorance Of The Law

Excuses No One." As If It Were In The Nature Of Things Possible

That There Could Be An Excuse More Absolute And Complete. What

Else Than Ignorance Of The Law Is It That Excuses Persons Under

The Years Of Discretion,  And Men Of Imbecile Minds? What Else

Than Ignorance Of The Law Is It That Excuses Judges Themselves

For All Their Erroneous Decisions? Nothing. They Are Every Day

Committing Errors,  Which Would Be Crimes,  But For Their Ignorance

Of The Law. And Yet These Same Judges,  Who Claim To Be Learned In

The Law,  And Who Yet Could Not Hold Their Offices For A Day,  But

For The Allowance Which The Law Makes For Their Ignorance,  Are

Continually Asserting It To Be A "Maxim" That "Ignorance Of The

Law Excuses No One;" (By Which,  Of Course,  They Really Mean That

It Excuses No One But Themselves; And Especially That It Excuses

No Unlearned Man,  Who Comes Before Them Charged With Crime.)

 

This Preposterous Doctrine,  That "Ignorance Of The Law Excuses No

One," Is Asserted By Courts Because It Is An Indispensable One To

The Maintenance Of Absolute Power In The Government. It Is

Indispensable For This Purpose,  Because,  If It Be Once Admitted

That The People Have Any Rights And Liberties Which The

Government Cannot Lawfully Take From Them,  Then The Question

Arises In Regard To Every Statute Of The Government,  Whether It

Be Law,  Or Not; That Is,  Whether It Infringe,  Or Not,  The Rights

And Liberties Of The People. Of This Question Every Man Must Of

Course Judge According To The Light In His Own Mind. And No Man

Can Be Convicted Unless The Jury Find,  Not Only That The Statute

Is Law,    That It Does Not Infringe The Rights And Liberties Of

The People,    But Also That It Was So Clearly Law,  So Clearly

Consistent With The Rights And Liberties Of The People,  As That

The Individual Himself,  Who Transgressed It,  Knew It To Be So,

And Therefore Had No Moral Excuse For Transgressing It.

Governments See That If Ignorance Of The Law Were Allowed To

Excuse A Man For Any Act Whatever,  It Must Excuse Him For

Transgressing All Statutes Whatsoever,  Which He Himself Thinks

Inconsistent With His Rights And Liberties. But Such A Doctrine

Would Of Course Be Inconsistent With The Maintenance Of Arbitrary

Power By The Government; And Hence Governments Will Not Allow

The Plea,  Although They Will Not Confess Their True Reasons For

Disallowing It.

 

The Only Reasons,  (If They Deserve The Name Of Reasons),  That I

Ever Knew Given For The Doctrine That Ignorance Of The Law

Excuses No One,  Are These:

 

1. "The Reason For The Maxim Is That Of Necessity. It Prevails,

'Not That All Men Know The Law,  But Because It Is An Excuse Which

Every Man Will Make,  And No Man Can Tell How To Confute Him.' 

Selden,  (As Quoted In The 2d Edition Of Starkie On Slander,

Prelim. Disc.,  P. 140,  Note.)"   Law Magazine,  (London,) Vol. 27,

P. 97.

Chapter 9 (The Criminal Intent) Pg 154

 

This Reason Impliedly Admits That Ignorance Of The Law Is,

Intrinsically,  An Ample And Sufficient Excuse For A Crime; And

That The Excuse Ought To Be Allowed,  If The Fact Of Ignorance

Could But Be Ascertained. But It Asserts That This Fact Is

Incapable Of Being Ascertained,  And That Therefore There Is A

Necessity For Punishing The Ignorant And The Knowing   That Is,

The Innocent And The Guilty   Without Discrimination.

This Reason Is Worthy Of The Doctrine It Is Used To Uphold; As If

A Plea Of Ignorance,  Any More Than Any Other Plea,  Must

Necessarily Be Believed Simply Because It Is Urged; And As If It

Were Not A Common And Every-Day Practice Of Courts And Juries,  In

Both Civil And Criminal Cases,  To Determine The Mental Capacity

Of Individuals; As,  For Example,  To Determine Whether They Are Of

Sufficient Mental Capacity To Make Reasonable Contracts; Whether

They Are Lunatic; Whether They Are Compotes Mentis,  "Of Sound

Mind And Memory," &. &. And There Is Obviously No More

Difficulty In A Jury's Determining Whether An Accused Person Knew

The Law In A Criminal Case,  Than There Is In Determining Any Of These

Other Questions That Are Continually Determined In Regard To A

Man's Mental Capacity. For The Question To Be Settled By The Jury

Is Not Whether The Accused Person Knew The Particular Penalty

Attached To His Act,  (For At Common Law No One Knew What Penalty

A Jury Would Attach To An Offence,) But Whether He Knew That His

Act Was Intrinsically Criminal. If It Were Intrinsically Criminal, 

It Was Criminal At Common Law. If It Was Not Intrinsically Criminal, 

It Was Not Criminal At Common Law. (At Least,  Such Was The General

Principle Of The Common Law. There May Have Been Exceptions In

Practice,  Owing To The Fact That The Opinions Of Men,  As To What Was

Intrinsically. Criminal,  May Not Have Been In All Cases Correct.)

 

A Jury,  Then,  In Judging Whether An Accused Person Knew His Act

To Be Illegal,  Were Bound First To Use Their Own Judgments,  As To

Whether The Act Were Intrinsically Criminal. If Their Own Judgments

Told Them The Act Was Intrinsically And Clearlycriminal,  They Would

Naturally And Reasonably Infer That The Accused Also Understood That

It Was Intrinsically Criminal,  (And Consequently Illegal,) Unless It

Should Appear That He Was Either Below Themselves In The Scale Of

Intellect,  Or Had Had Less Opportunities Of Knowing What Acts Were

Criminal. In Short,  They Would Judge,  From Any And Every Means They

Might Have Of Judging; And If They Had Any Reasonable Doubt That He

Knew His Act To Be Criminal In Itself,  They Would Be Bound To Acquit

Him.

 

The Second Reason That Has Been Offered For The Doctrine That

Ignorance Of The Law Excuses No One,  Is This:

 

"Ignorance Of The Municipal Law Of The Kingdom,  Or Of The Penalty

Thereby Inflicted On Offenders,  Doth Not Excuse Any That Is Of

The Age Of Discretion And Compos Mentis,  From The Penalty Of The

Breach Of It; Because Every Person,  Of The Age Of Discretion And

Compos Mentis,  Is Bound To Know The Law,  And Presumed To Do So.

"Ignorantia Eorum,,  Quae Quis Scire Tenetur Non Excusat."

(Ignorance Of Those Things Which Every One Is Bound To Know,  Does

Chapter 9 (The Criminal Intent) Pg 155

Not Excuse.)   1 Hale's Pleas Of The Crown,  42. Doctor And

Student,  Dialog. 2,  Ch. 46. Law Magazine,  (London,) Vol. 27,  P.

97.

 

The Sum Of This Reason Is,  That Ignorance Of The Law Excuses No

One,  (Who Is Of The Age Of Discretion And Is Compos Mentis,)

Because Every Such Person "Is Bound To Know The Law." But This Is

Giving No Reason At All For The Doctrine,  Since Saying That A Man

"Is Bound To Know The Law," Is Only Saying,  In Another Form,  That

"Ignorance Of The Law Does Not Excuse Him." There Is No

Difference At All In The Two Ideas. To Say,  Therefore,  That

"Ignorance Of The Law Excuses No One,  Because Every One Is Bound

To Know The Law," Is Only Equivalent To Saying That "Ignorance Of

The Law Excuses No One,  Because Ignorance Of The Law Excuses No

One." It Is Merely Reasserting The Doctrine,  Without Giving Any

Reason At All.

 

And Yet These Reasons,  Which Are Really No Reasons At All,  Are

The Only Ones,  So Far As I Know,  That Have Ever Been Offered For

This Absurd And Brutal Doctrine.

 

The Idea Suggested,  That " The Age Of Discretion" Determines The

Guilt Of A Person,    That There Is A Particular Age,  Prior To Which

All Persons Alike Should Be Held Incapable Of Knowing Any Crime, 

And Subsequent To Which All Persons Alike Should Be Held

Capable Of Knowing All Crimes,   Is Another Of This Most

Ridiculous Nest Of Ideas. All Mankind Acquire Their Knowledge Of

Crimes,  As They Do Of Other Things,  Gradually. Some They Learn At

An Early Age; Others Not Till A Later One. One Individual

Acquires A Knowledge Of Crimes,  As He Does Of Arithmetic,  At An

Earlier Age Than Others Do. And To Apply The Same Presumption To

All,  On The Ground Of Age Alone,  Is Not Only Gross Injustice,  But

Gross Folly. A Universal Presumption Might,  With Nearly Or Quite

As Much Reason,  Be Founded Upon Weight,  Or Height,  As Upon Age.

[1]

 

This Doctrine,  That "Ignorance Of The Law Excuses No One," Is

Constantly Repeated In The Form That "Every One Is Bound To Know

The Law." The Doctrine Is True In Civil Matters,  Especially In

Contracts,  So Far As This: That No Man,  Who Has The Ordinary Capacity

To Make Reasonable Contracts,  Can Escape The Consequences Of

His Own Agreement,  On The Ground That He Did Not Know The Law

Applicable To It. When A Man Makes A Contract,  He Gives The Other

Party Rights; And He Must Of Necessity Judge For Himself,  And Take

His Own Risk,  As To What Those Rights Are,   Otherwise The Contract

Would Not Be Binding,  And Men Could Not Make Contracts That

Would Convey Rights To Each Other. Besides,  The Capacity To Make

Reasonable Contracts, 

 

Implies And Includes A Capacity To Form A Reasonable Judgment As

To The Law Applicable To Them. But In Criminal Matters,  Where The

Question Is One Of Punishment,  Or Not; Where No Second Party Has

Acquired Any Right To Have The Crime Punished,  Unless It Were

Committed With Criminal Intent,  (But Only To Have It Compensated

For By Damages In A Civil Suit,") And When The Criminal Intent Is

The Only Moral Justification For The Punishment,  The Principle

Does Not Apply,  And A Man Is Bound To Know The Law Only As Well

As He Reasonably May. The Criminal Law Requires Neither

Impossibilities Nor Extraordinaries Of Any One. It Requires Only

Thoughtfulness And A Good Conscience. It Requires Only That A Man

Fairly And Properly Use The Judgment He Possesses,  And The Means

He Has Of Learning His Duty. It Requires Of