An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

Progress,  &C;.,  114.

 

[4] Among The Necessary Expenses Of Suits,  Should Be Reckoned

Reasonable Compensation To Counsel,  For They Are Nearly Or Quite

As Important To The Administration Of Justice,  As Are Judges,

Jurors,  Or Witnesses; And The Universal Practice Of Employing

Them,  Both On The Part Of Governments And Of Private Persons,

Shows That Their Importance Is Generally Understood. As A Mere

Matter Of Economy,  Too,  It Would Be Wise For The Government To

Pay Them,  Rather Than They Should Not Be Employed; Because They

Collect And Arrange The Testimony And The Law Beforehand,  So As

To Be Able To Present The Whole Case To The Court And Jury

Intelligibly,  And In a Short Space Of Time. Whereas,  If They Were

Not Employed,  The Court And Jury Would Be Under The Necessity

Either Of Spending much More Time Than Now In the Investigation

Of Causes,  Or Of Despatching them In haste,  And With Little

Regard To Justice. They Would Be Very Likely To Do The Latter,

Thus Defeating the Whole Object Of The People In establishing

Courts.

 

To Prevent The Abuse Of This Right,  It Should Perhaps Be Left

Discretionary With The Jury In each Case To Determine Whether The

Counsel Should Receive Any Pay   And,  If Any,  How Much   From The

Government.

 

 

Chapter 9 (The Criminal Intent) Pg 173

 

It Is A Maxim Of The Common Law That There Can Be No Crime

Without A Criminal Intent. And It Is A Perfectly Clear Principle,

Although One Which Judges Have In a Great Measure Overthrown In

Practice,  That Jurors Are To Judge Of The Moral Intent Of An

Accused person,  And Hold Him Guiltless,  Whatever His Act,  Unless

They Find Him To Have Acted with A Criminal Intent; That Is,  With

A Design To Do What He Knew To Be Criminal.

 

This Principle Is Clear,  Because The Question For A Jury To

Determine Is,  Whether The Accused be Guilty,  Or Not Guilty. Guiltis A

Personal Quality Of The Actor,   Not Necessarily Involved in

The Act,  But Depending also Upon The Intent Or Motive With Which

The Act Was Done. Consequently,  The Jury Must Find That He Acted

From A Criminal Motive,  Before They Can Declare Him Guilty.

 

There Is No Moral Justice In,  Nor Any Political Necessity For,

Punishing a Man For Any Act Whatever That He May Have Committed,

Chapter 9 (The Criminal Intent) Pg 174

If He Have Done It Without Any Criminal Intent. There Can Be No

Moral Justice In punishing for Such An Act,  Because,  There Having

Been No Criminal Motive,  There Can Have Been No Other Motive

Which Justice Can Take Cognizance Of,  As Demanding or Justifying

Punishment. There Can Be No Political Necessity For Punishing,  To

Warn Against Similar Acts In future,  Because,  If One Man Have

Injured another,  However Unintentionally,  He Is Liable,  And

Justly Liable,  To A Civil Suit For Damages; And In this Suit He

Will Be Compelled to Make Compensation For The Injury,

Notwithstanding his Innocence Of Any Intention To Injure. He Must

Bear The Consequences Of His Own Act,  Instead Of Throwing them

Upon Another,  However Innocent He May Have Been Of Any Intention

To Do Wrong. And The Damages He Will Have To Pay Will Be A

Sufficient Warning to Him Not To Do The Like Act Again.

 

If It Be Alleged that There Are Crimes Against The Public,  (As

Treason,  For Example,  Or Any Other Resistance To Government,) For

Which Private Persons Can Recover No Damages,  And That There Is A

Political Necessity For Punishing for Such Offences,  Even Though

The Party Acted conscientiously,  The Answer Is,    The Government

Must Bear With All Resistance That Is Not So Clearly Wrong As To

Give Evidence Of Criminal Intent. In other Words,  The Government,

In All Its Acts,  Must Keep Itself So Clearly Within The Limits Of

Justice,  As That Twelve Men,  Taken At Random,  Will All Agree That

It Is In the Right,  Or It Must Incur The Risk Of Resistance,

Without Any Power To Punish It. This Is The Mode In which The

Trial By Jury Operates To Prevent The Government From Falling

Into The Hands Of A Party,  Or A Faction,  And To Keep It Within

Such Limits As All,  Or Substantially All,  The People Are Agreed

That It May Occupy.

 

This Necessity For A Criminal Intent,  To Justify Conviction,  Is

Proved by The Issue Which The Jury Are To Try,  And The Verdict

They Are To Pronounce. The "Issue" They Are To Try Is,  "Guilty,"Or

"Not Guilty." And Those Are The Terms They Are Required to Use

In Rendering their Verdicts. But It Is A Plain Falsehood To Say

That A Man Is "Guilty," Unless He Have Done An Act Which He Knew

To Be Criminal.

 

This Necessity For A Criminal Intent   In other Words,  For Guilt 

As A Preliminary To Conviction,  Makes It Impossible That A Man

Can Be Rightfully Convicted for An Act That Is Intrinsically

Innocent,  Though Forbidden By The Government; Because Guilt Is An

Intrinsic Quality Of Actions And Motives,  And Not One That Can Be

Imparted to Them By Arbitrary Legislation. All The Efforts Of The

Government,  Therefore,  To "Make Offences By Statute," Out Of Acts

That Are Not Criminal By Nature,  Must Necessarily Be Ineffectual,

Unless A Jury Will Declare A Man "Guilty" For An Act That Is

Really Innocent.

 

The Corruption Of Judges,  In their Attempts To Uphold The

Arbitrary Authority Of The Government,  By Procuring the

Conviction Of Individuals For Acts Innocent In themselves,  And

Forbidden Only By Some Tyrannical Statute,  And The Commission Of

Chapter 9 (The Criminal Intent) Pg 175

Which Therefore Indicates No Criminal Intent,  Is Very Apparent.

 

To Accomplish This Object,  They Have In modern Times Held It To

Be Unnecessary That Indictments Should Charge,  As By The Common

Law They Were Required to Do,  That An Act Was Done "Wickedly,"

"Feloniously," "With Malice Aforethought," Or In any Other Manner

That Implied a Criminal Intent,  Without Which There Can Be No

Criminality; But That It Is Sufficient To Charge Simply That It

Was Done " Contrary To The Form Of The Statute In such Case Made

And Provided." This Form Of Indictment Proceeds Plainly Upon The

Assumption That The Government Is Absolute,  And That It Has

Authority To Prohibit Any Act It Pleases,  However Innocent In its

Nature The Act May Be. Judges Have Been Driven To The Alternative

Of Either Sanctioning this New Form Of Indictment,  (Which They

Never Had Any Constitutional Right To Sanction,) Or Of Seeing the

Authority Of Many Of The Statutes Of The Government Fall To The

Ground; Because The Acts Forbidden By The 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

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

Chapter 9 (The Criminal Intent) Pg 176

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