Fix footnote bodies
This commit is contained in:
@ -312,118 +312,118 @@ 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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[Footnote 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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[^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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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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[^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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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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[Footnote 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
|
||||
men of nearly similar condition in life. But the doctrine of Mansfield
|
||||
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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||||
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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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[Footnote 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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[^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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