2023-08-03 21:50:47 +00:00
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# THE CRIMINAL INTENT
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It is a maxim of the common law that there can be no crime without a
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criminal intent. And it is a perfectly clear principle, although one
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which judges have in a great measure overthrown in practice, that
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_jurors_ are to judge of the moral intent of an accused person, and hold
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him guiltless, whatever his act, unless they find him to have acted with
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a criminal intent; that is, with a design to do what he knew to be
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criminal.
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This principle is clear, because the question for a jury to determine
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is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a
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personal quality of the actor,—not _necessarily_ involved in the act,
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but depending also upon the intent or motive with which the act was
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done. Consequently, the jury must find that he acted from a criminal
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motive, before they can declare him _guilty_.
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There is no moral justice in, nor any political necessity for, punishing
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a man for any act whatever that he may have committed, if he have done
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it without any criminal intent. There can be no _moral justice_ in
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punishing for such an act, because, there having been no _criminal
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motive_, there can have been no other motive which justice can take
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cognizance of, as demanding or justifying punishment. There can be no
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_political necessity_ for punishing, to warn against similar acts in
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future, because, if one man have injured another, however
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unintentionally, he is liable, and justly liable, to a _civil_ suit for
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damages; and in this suit he will be compelled to make compensation for
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the injury, notwithstanding his innocence of any intention to injure. He
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must bear the consequences of his own act, instead of throwing them upon
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another, however innocent he may have been of any intention to do
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wrong. And the damages he will have to pay will be a sufficient warning
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to him not to do the like act again.
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If it be alleged that there are crimes against the public, (as treason,
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for example, or any other resistance to government,) for which private
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persons can recover no damages, and that there is a political necessity
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for punishing for such offences, even though the party acted
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conscientiously, the answer is,—the government must bear with all
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resistance that is not so clearly wrong as to give evidence of criminal
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intent. In other words, the government, in all its acts, must keep
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itself so _clearly_ within the limits of justice, as that twelve men,
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taken at random, will all agree that it is in the right, or it must
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incur the risk of resistance, without any power to punish it. This is
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the mode in which the trial by jury operates to prevent the government
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from falling into the hands of a party, or a faction, and to keep it
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within such limits as _all_, or substantially _all_, the people are
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agreed that it may occupy.
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This necessity for a criminal intent, to justify conviction, is proved
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by the issue which the jury are to try, and the verdict they are to
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pronounce. The “issue” they are to try is, “_guilty_” or “_not guilty_.”
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And those are the terms they are required to use in rendering their
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verdicts. But it is a plain falsehood to say that a man is “_guilty_,”
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unless he have done an act which he knew to be criminal.
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This necessity for a criminal intent—in other words, for _guilt_—as a
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preliminary to conviction, makes it impossible that a man can be
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rightfully convicted for an act that is intrinsically innocent, though
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forbidden by the government; because guilt is an intrinsic quality of
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actions and motives, and not one that can be imparted to them by
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arbitrary legislation. All the efforts of the government, therefore, to
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“_make offences by statute_,” out of acts that are not criminal by
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nature, must necessarily be ineffectual, unless a jury will declare a
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man “_guilty_” for an act that is really innocent.
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The corruption of judges, in their attempts to uphold the arbitrary
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authority of the government, by procuring the conviction of individuals
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for acts innocent in themselves, and forbidden only by some tyrannical
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statute, and the commission of which therefore indicates no criminal
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intent, is very apparent.
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To accomplish this object, they have in modern times held it to be
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unnecessary that indictments should charge, as by the common law they
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were required to do, that an act was done “_wickedly_,” “_feloniously_,”
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“_with malice aforethought_,” or in any other manner that implied a
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criminal intent, without which there can be no criminality; but that it
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is sufficient to charge simply that it was done “_contrary to the form
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of the statute in such case made and provided_.” This form of indictment
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proceeds plainly upon the assumption that the government is absolute,
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and that it has authority to prohibit any act it pleases, however
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innocent in its nature the act may be. Judges have been driven to the
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alternative of either sanctioning this new form of indictment, (which
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they never had any constitutional right to sanction,) or of seeing the
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authority of many of the statutes of the government fall to the ground;
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because the acts forbidden by the statutes were so plainly innocent in
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their nature, that even the government itself had not the face to allege
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that the commission of them implied or indicated any criminal intent.
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To get rid of the necessity of showing a criminal intent, and thereby
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further to enslave the people, by reducing them to the necessity of a
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blind, unreasoning submission to the arbitrary will of the government,
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and of a surrender of all right, on their own part, to judge what are
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their constitutional and natural rights and liberties, courts have
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invented another idea, which they have incorporated among the pretended
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_maxims_, upon which they act in criminal trials, viz., that “_ignorance
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of the law excuses no one_.” As if it were in the nature of things
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possible that there could be an excuse more absolute and complete. What
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else than ignorance of the law is it that excuses persons under the
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years of discretion, and men of imbecile minds? What else than ignorance
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of the law is it that excuses judges themselves for all their erroneous
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decisions? Nothing. They are every day committing errors, which would be
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crimes, but for their ignorance of the law. And yet these same judges,
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who claim to be _learned_ in the law, and who yet could not hold their
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offices for a day, but for the allowance which the law makes for their
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ignorance, are continually asserting it to be a “maxim” that “ignorance
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of the law excuses no one;” (by which, of course, they really mean that
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it excuses no one but themselves; and especially that it excuses no
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_unlearned_ man, who comes before them charged with crime.)
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This preposterous doctrine, that “ignorance of the law excuses no one,”
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is asserted by courts because it is an indispensable one to the
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maintenance of absolute power in the government. It is indispensable for
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this purpose, because, if it be once admitted that the people _have_ any
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rights and liberties which the government cannot lawfully take from
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them, then the question arises in regard to every statute of the
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government, whether it be law, or not; that is, whether it infringe, or
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not, the rights and liberties of the people. Of this question every man
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must of course judge according to the light in his own mind. And no man
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can be convicted unless the jury find, not only that the statute is
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_law_,—that it does _not_ infringe the rights and liberties of the
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people,—but also that it was so clearly law, so clearly consistent with
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the rights and liberties of the people, as that the individual himself,
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who transgressed it, _knew it to be so_, and therefore had no moral
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excuse for transgressing it. Governments see that if ignorance of the
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law were allowed to excuse a man for any act whatever, it must excuse
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him for transgressing all statutes whatsoever, which he himself thinks
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inconsistent with his rights and liberties. But such a doctrine would of
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course be inconsistent with the maintenance of arbitrary power by the
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government; and hence governments will not allow the plea, although they
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will not confess their true reasons for disallowing it.
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The only reasons, (if they deserve the name of reasons), that I ever
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knew given for the doctrine that ignorance of the law excuses no one,
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are these:
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> 1. “The reason for the maxim is that of necessity. It prevails, ‘not
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> that all men know the law, but because it is an excuse which every
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> man will make, and no man can tell how to confute him.’—_Selden_,
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> (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc.,
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> p. 140, note.)”—_Law Magazine_, (_London_,) vol. 27, p. 97.
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This reason impliedly admits that ignorance of the law is,
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_intrinsically_, an ample and sufficient excuse for a crime; and that
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the excuse ought to be allowed, if the fact of ignorance could but be
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ascertained. But it asserts that this fact is incapable of being
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ascertained, and that therefore there is a necessity for punishing the
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ignorant and the knowing—that is, the innocent and the guilty—without
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discrimination.
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This reason is worthy of the doctrine it is used to uphold; as if a plea
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of ignorance, any more than any other plea, must necessarily be believed
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simply because it is urged; and as if it were not a common and every-day
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practice of courts and juries, in both civil and criminal cases, to
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determine the mental capacity of individuals; as, for example, to
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determine whether they are of sufficient mental capacity to make
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reasonable contracts; whether they are lunatic; whether they are
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_compotes mentis_, “of sound mind and memory,” &c. &c. And there is
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obviously no more difficulty in a jury’s determining whether an accused
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person knew the law in a criminal case, than there is in determining any
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of these other questions that are continually determined in regard to a
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man’s mental capacity. For the question to be settled by the jury is not
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whether the accused person knew the particular _penalty_ attached to his
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act, (for at common law no one knew what penalty a _jury_ would attach
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to an offence,) but whether he knew that his act was _intrinsically
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criminal_. If it were _intrinsically criminal_, it was criminal at
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common law. If it was not intrinsically criminal, it was not criminal at
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common law. (At least, such was the general principle of the common law.
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There may have been exceptions in practice, owing to the fact that the
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opinions of men, as to what was intrinsically criminal, may not have
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been in all cases correct.)
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A jury, then, in judging whether an accused person knew his act to be
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illegal, were bound first to use their own judgments, as to whether the
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act were _intrinsically_ criminal. If their own judgments told them the
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act was _intrinsically_ and _clearly_ criminal, they would naturally and
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reasonably infer that the accused also understood that it was
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intrinsically criminal, (and consequently illegal,) unless it should
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appear that he was either below themselves in the scale of intellect, or
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had had less opportunities of knowing what acts were criminal. In
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short, they would judge, from any and every means they might have of
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judging; and if they had any reasonable doubt that he knew his act to be
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criminal in itself, they would be bound to acquit him.
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The second reason that has been offered for the doctrine that ignorance
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of the law excuses no one, is this:
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> “Ignorance of the municipal law of the kingdom, or of the penalty
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> thereby inflicted on offenders, doth not excuse any that is of the
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> age of discretion and compos mentis, from the penalty of the breach
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> of it; because every person, of the age of discretion and compos
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> mentis, _is bound to know the law_, and presumed to do so.
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> _Ignorantia eorum, quæ quis scire tenetur non excusat_.” (Ignorance
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> of those things which every one is bound to know, does not
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> excuse.)—_1 Hale’s Pleas of the Crown_, 42. _Doctor and Student,
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> Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97.
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The sum of this reason is, that ignorance of the law excuses no one,
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(who is of the age of discretion and is compos mentis,) because every
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such person “_is bound to know the law_.” But this is giving no reason
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at all for the doctrine, since saying that a man “is bound to know the
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law,” is only saying, _in another form_, that “ignorance of the law does
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not excuse him.” There is no difference at all in the two ideas. To say,
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therefore, that “ignorance of the law excuses no one, _because_ every
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one is bound to know the law,” is only equivalent to saying that
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“ignorance of the law excuses no one, _because_ ignorance of the law
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excuses no one.” It is merely reässerting the doctrine, without giving
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any reason at all.
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And yet these reasons, which are really no reasons at all, are the only
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ones, so far as I know, that have ever been offered for this absurd and
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brutal doctrine.
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The idea suggested, that “the age of discretion” determines the guilt of
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a person,—that there is a particular age, prior to which _all_ persons
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alike should be held incapable of knowing _any_ crime, and subsequent to
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which _all_ persons alike should be held capable of knowing _all_
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crimes,—is another of this most ridiculous nest of ideas. All mankind
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acquire their knowledge of crimes, as they do of other things,
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_gradually_. Some they learn at an early age; others not till a later
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one. One individual acquires a knowledge of crimes, as he does of
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arithmetic, at an earlier age than others do. And to apply the same
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presumption to all, on the ground of age alone, is not only gross
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injustice, but gross folly. A universal presumption might, with nearly
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or quite as much reason, be founded upon weight, or height, as upon
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age.[^103]
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This doctrine, that “ignorance of the law excuses no one,” is constantly
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repeated in the form that “every one is bound to know the law.” The
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doctrine is true in civil matters, especially in contracts, so far as
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this: that no man, who has the _ordinary_ capacity to make reasonable
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contracts, can escape the consequences of his own agreement, on the
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ground that he did not know the law applicable to it. When a man makes a
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contract, he gives the other party rights; and he must of necessity
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judge for himself, and take his own risk, as to what those rights
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are,—otherwise the contract would not be binding, and men could not
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make contracts that would convey rights to each other. Besides, the
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capacity to make reasonable contracts, _implies and includes_ a
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capacity to form a reasonable judgment as to the law applicable to them.
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But in _criminal_ matters, where the question is one of punishment, or
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not; where no second party has acquired any right to have the crime
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punished, unless it were committed with criminal intent, (but only to
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have it compensated for by damages in a civil suit;) and when the
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criminal intent is the only moral justification for the punishment, the
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principle does not apply, and a man is bound to know the law _only as
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well as he reasonably may_. The criminal law requires neither
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impossibilities nor extraordinaries of any one. It requires only
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thoughtfulness and a good conscience. It requires only that a man fairly
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and properly use the judgment he possesses, and the means he has of
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learning his duty. It requires of him only the same care to know his
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duty in regard to the law, that he is morally bound to use in other
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matters of equal importance. _And this care it does require of him._ Any
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ignorance of the law, therefore, that is unnecessary, or that arises
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from indifference or disregard of one’s duty, is no excuse. An accused
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person, therefore, may be rightfully held responsible for such a
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knowledge of the law as is common to men in general, having no greater
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natural capacities than himself, and no greater opportunities for
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learning the law. And he can rightfully be held to no greater knowledge
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of the law than this. To hold him responsible for a greater knowledge of
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the law than is common to mankind, when other things are equal, would be
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gross injustice and cruelty. The mass of mankind can give but little of
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their attention to acquiring a knowledge of the law. Their other duties
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in life forbid it. Of course, they cannot investigate abstruse or
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difficult questions. All that can rightfully be required of each of
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them, then, is that he exercise such a candid and conscientious judgment
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as it is common for mankind generally to exercise in such matters. If he
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have done this, it would be monstrous to punish him criminally for his
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errors; errors not of conscience, but only of judgment. It would also be
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contrary to the first principles of a free government (that is, a
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government formed by voluntary association) to punish men in such cases,
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because it would be absurd to suppose that any man would voluntarily
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assist to establish or support a government that would punish himself
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for acts which he himself did not know to be crimes. But a man may
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reasonably unite with his fellow-men to maintain a government to punish
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those acts which he himself considers criminal, and may reasonably
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acquiesce in his own liability to be punished for such acts. As those
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are the only grounds on which any one can be supposed to render any
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voluntary support to a government, it follows that a government formed
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by voluntary association, and of course having no powers except such as
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_all_ the associates have consented that it may have, can have no power
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to punish a man for acts which he did not himself know to be criminal.
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The safety of society, which is the only object of the criminal law,
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requires only that those acts _which are understood by mankind at large
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to be intrinsically criminal_, should be punished as crimes. The
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remaining few (if there are any) may safely be left to go unpunished.
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Nor does the safety of society require that any individuals, other than
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those who have sufficient mental capacity to understand that their acts
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are criminal, should be criminally punished. All others may safely be
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left to their liability, under the _civil_ law, to compensate for their
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unintentional wrongs.
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The only real object of this absurd and atrocious doctrine, that
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“ignorance of the law (that is, of crime) excuses no one,” and that
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“every one is bound to know the _criminal_ law,” (that is, bound to know
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what is a crime,) is to maintain an entirely arbitrary authority on the
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part of the government, and to deny to the people all right to judge for
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themselves what their own rights and liberties are. In other words, the
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whole object of the doctrine is to deny to the people themselves all
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right to judge what statutes and other acts of the government are
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consistent or inconsistent with their own rights and liberties; and thus
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to reduce the people to the condition of mere slaves to a despotic
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power, such as the people themselves would never have voluntarily
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established, and the justice of whose laws the people themselves cannot
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understand.
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Under the true trial by jury all tyranny of this kind would be
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abolished. A jury would not only judge what acts were really criminal,
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but they would judge of the mental capacity of an accused person, and of
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his opportunities for understanding the true character of his conduct.
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In short, they would judge of his moral intent from all the
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circumstances of the case, and acquit him, if they had any reasonable
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doubt that he knew that he was committing a crime.[^104]
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2023-08-04 00:46:41 +00:00
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[^103]: This presumption, founded upon age alone, is as absurd in
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civil matters as in criminal. What can be more entirely ludicrous than
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the idea that all men (not manifestly imbecile) become mentally
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competent to make all contracts whatsoever on the day they become
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twenty-one years of age?—and that, previous to that day, no man becomes
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competent to make any contract whatever, except for the present supply
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of the most obvious wants of nature? In reason, a man’s _legal_
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competency to make _binding_ contracts, in any and every case whatever,
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depends wholly upon his _mental_ capacity to make _reasonable_ contracts
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in each particular case. It of course requires more capacity to make a
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reasonable contract in some cases than in others. It requires, for
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example, more capacity to make a reasonable contract in the purchase of
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a large estate, than in the purchase of a pair of shoes. But the mental
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capacity to make a reasonable contract, in any particular case, is, in
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reason, the only legal criterion of the legal competency to make a
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binding contract in that case. The age, whether more or less than
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twenty-one years, is of no legal consequence whatever, except that it is
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entitled to some consideration as _evidence of capacity_.
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It may be mentioned, in this connection, that the rules that prevail,
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that every man is entitled to freedom from parental authority at
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twenty-one years of age, and no one before that age, are of the same
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class of absurdities with those that have been mentioned. The only
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ground on which a parent is ever entitled to exercise authority over his
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child, is that the child is incapable of taking reasonable care of
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himself. The child would be entitled to his freedom from his birth, if
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he were at that time capable of taking reasonable care of himself. Some
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become capable of taking care of themselves at an earlier age than
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others. And whenever any one becomes capable of taking reasonable care
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of himself, and not until then, he is entitled to his freedom, be his
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age more or less.
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These principles would prevail under the true trial by jury, the jury
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being the judges of the capacity of every individual whose capacity
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should be called in question.
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[^104]: In contrast to the doctrines of the text, it may be
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proper to present more distinctly the doctrines that are maintained by
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judges, and that prevail in courts of justice.
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Of course, no judge, either of the present day, or perhaps within the
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last five hundred years, has admitted the right of a jury to judge of
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the _justice_ of a law, or to hold any law invalid for its injustice.
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Every judge asserts the power of the government to punish for acts that
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are intrinsically innocent, and which therefore involve or evince no
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criminal intent. To accommodate the administration of law to this
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principle, all judges, so far as I am aware, hold it to be unnecessary
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that an indictment should charge, or that a jury should find, that an
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act was done with a criminal intent, except in those cases where the act
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is _malum in se_,—criminal in itself. In all other cases, so far as I
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am aware, they hold it sufficient that the indictment charge, and
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consequently that the jury find, simply that the act was done “contrary
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to the form of the statute in such case made and provided;” in other
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words, contrary to the orders of the government.
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All these doctrines prevail universally among judges, and are, I think,
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uniformly practised upon in courts of justice; and they plainly involve
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the most absolute despotism on the part of the government.
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But there is still another doctrine that extensively, and perhaps most
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generally, prevails in practice, although judges are not agreed in
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regard to its soundness. It is this: that it is not even necessary that
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the jury should see or know, _for themselves_, what the law _is_ that is
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charged to have been violated; nor to see or know, _for themselves_,
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that the act charged was in violation of any law whatever;—but that it
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is sufficient that they be simply _told by the judge_ that any act
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whatever, charged in an indictment, is in violation of law, and that
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they are then bound blindly to receive the declaration as true, and
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convict a man accordingly, if they find that he has done the act
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charged.
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This doctrine is adopted by many among the most eminent judges, and the
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reasons for it are thus given by Lord Mansfield:
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> “They (the jury) do not know, and are not presumed to know, the law.
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> They are not sworn to decide the law;[^105] they are not required to
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> do it.... The jury ought not to assume the jurisdiction of law. They
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> do not know, and are not presumed to know, anything of the matter.
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> They do not understand the language in which it is conceived, or the
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> meaning of the terms. They have no rule to go by but their passions
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> and wishes.”—_3 Term Rep._, 428, note.
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What is this but saying that the people, who are supposed to be
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represented in juries, and who institute and support the government, (of
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course for the protection of their own rights and liberties, _as they
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understand them_, for plainly no other motive can be attributed to
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them,) are really the slaves of a despotic power, whose arbitrary
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commands even they are not supposed competent to understand, but for the
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transgression of which they are nevertheless to be punished as
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criminals?
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This is plainly the sum of the doctrine, because the jury are the peers
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(equals) of the accused, and are therefore supposed to know the law as
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well as he does, and as well as it is known by the people at large. If
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_they_ (the jury) are not presumed to know the law, neither the accused
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nor the people at large can be presumed to know it. Hence, it follows
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that one principle of the _true_ trial by jury is, that no accused
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person shall be held responsible for any other or greater knowledge of
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the law than is common to his political equals, who will generally be
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men of nearly similar condition in life. But the doctrine of Mansfield
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is, that the body of the people, from whom jurors are taken, are
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responsible to a law, _which it is agreed they cannot understand_. What
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is this but despotism?—and not merely despotism, but insult and
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oppression of the intensest kind?
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This doctrine of Mansfield is the doctrine of all who deny the right of
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juries to judge of the law, although all may not choose to express it in
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so blunt and unambiguous terms. But the doctrine evidently admits of no
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other interpretation or defence.
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[^105]: This declaration of Mansfield, that juries in England
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“are not sworn to decide the law” in criminal cases, is a plain
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falsehood. They are sworn to try the whole case at issue between the
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king and the prisoner, and that includes the law as well as the fact.
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See _juror’s oath_, page 86.
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