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\chapter{The Criminal Intent.}

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_. _Guilt_ is 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, 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 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
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.

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," &c. &c. 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 _clearly_ criminal, 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, quæ quis scire tenetur non excusat_." (Ignorance
   of those things which every one is bound to know, does 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 reässerting 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.[103]

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 him only the same care to know his
duty in regard to the law, that he is morally bound to use in other
matters of equal importance. _And this care it does require of him._ Any
ignorance of the law, therefore, that is unnecessary, or that arises
from indifference or disregard of one's duty, is no excuse. An accused
person, therefore, may be rightfully held responsible for such a
knowledge of the law as is common to men in general, having no greater
natural capacities than himself, and no greater opportunities for
learning the law. And he can rightfully be held to no greater knowledge
of the law than this. To hold him responsible for a greater knowledge of
the law than is common to mankind, when other things are equal, would be
gross injustice and cruelty. The mass of mankind can give but little of
their attention to acquiring a knowledge of the law. Their other duties
in life forbid it. Of course, they cannot investigate abstruse or
difficult questions. All that can rightfully be required of each of
them, then, is that he exercise such a candid and conscientious judgment
as it is common for mankind generally to exercise in such matters. If he
have done this, it would be monstrous to punish him criminally for his
errors; errors not of conscience, but only of judgment. It would also be
contrary to the first principles of a free government (that is, a
government formed by voluntary association) to punish men in such cases,
because it would be absurd to suppose that any man would voluntarily
assist to establish or support a government that would punish himself
for acts which he himself did not know to be crimes. But a man may
reasonably unite with his fellow-men to maintain a government to punish
those acts which he himself considers criminal, and may reasonably
acquiesce in his own liability to be punished for such acts. As those
are the only grounds on which any one can be supposed to render any
voluntary support to a government, it follows that a government formed
by voluntary association, and of course having no powers except such as
_all_ the associates have consented that it may have, can have no power
to punish a man for acts which he did not himself know to be criminal.

The safety of society, which is the only object of the criminal law,
requires only that those acts _which are understood by mankind at large
to be intrinsically criminal_, should be punished as crimes. The
remaining few (if there are any) may safely be left to go unpunished.
Nor does the safety of society require that any individuals, other than
those who have sufficient mental capacity to understand that their acts
are criminal, should be criminally punished. All others may safely be
left to their liability, under the _civil_ law, to compensate for their
unintentional wrongs.

The only real object of this absurd and atrocious doctrine, that
"ignorance of the law (that is, of crime) excuses no one," and that
"every one is bound to know the _criminal_ law," (that is, bound to know
what is a crime,) is to maintain an entirely arbitrary authority on the
part of the government, and to deny to the people all right to judge for
themselves what their own rights and liberties are. In other words, the
whole object of the doctrine is to deny to the people themselves all
right to judge what statutes and other acts of the government are
consistent or inconsistent with their own rights and liberties; and thus
to reduce the people to the condition of mere slaves to a despotic
power, such as the people themselves would never have voluntarily
established, and the justice of whose laws the people themselves cannot
understand.

Under the true trial by jury all tyranny of this kind would be
abolished. A jury would not only judge what acts were really criminal,
but they would judge of the mental capacity of an accused person, and of
his opportunities for understanding the true character of his conduct.
In short, they would judge of his moral intent from all the
circumstances of the case, and acquit him, if they had any reasonable
doubt that he knew that he was committing a crime.[104]

[Footnote 103: This presumption, founded upon age alone, is as absurd in
civil matters as in criminal. What can be more entirely ludicrous than
the idea that all men (not manifestly imbecile) become mentally
competent to make all contracts whatsoever on the day they become
twenty-one years of age?--and that, previous to that day, no man becomes
competent to make any contract whatever, except for the present supply
of the most obvious wants of nature? In reason, a man's _legal_
competency to make _binding_ contracts, in any and every case whatever,
depends wholly upon his _mental_ capacity to make _reasonable_ contracts
in each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires, for
example, more capacity to make a reasonable contract in the purchase of
a large estate, than in the purchase of a pair of shoes. But the mental
capacity to make a reasonable contract, in any particular case, is, in
reason, the only legal criterion of the legal competency to make a
binding contract in that case. The age, whether more or less than
twenty-one years, is of no legal consequence whatever, except that it is
entitled to some consideration as _evidence of capacity_.

It may be mentioned, in this connection, that the rules that prevail,
that every man is entitled to freedom from parental authority at
twenty-one years of age, and no one before that age, are of the same
class of absurdities with those that have been mentioned. The only
ground on which a parent is ever entitled to exercise authority over his
child, is that the child is incapable of taking reasonable care of
himself. The child would be entitled to his freedom from his birth, if
he were at that time capable of taking reasonable care of himself. Some
become capable of taking care of themselves at an earlier age than
others. And whenever any one becomes capable of taking reasonable care
of himself, and not until then, he is entitled to his freedom, be his
age more or less.

These principles would prevail under the true trial by jury, the jury
being the judges of the capacity of every individual whose capacity
should be called in question.]

[Footnote 104: In contrast to the doctrines of the text, it may be
proper to present more distinctly the doctrines that are maintained by
judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the
last five hundred years, has admitted the right of a jury to judge of
the _justice_ of a law, or to hold any law invalid for its injustice.
Every judge asserts the power of the government to punish for acts that
are intrinsically innocent, and which therefore involve or evince no
criminal intent. To accommodate the administration of law to this
principle, all judges, so far as I am aware, hold it to be unnecessary
that an indictment should charge, or that a jury should find, that an
act was done with a criminal intent, except in those cases where the act
is _malum in se_,--criminal in itself. In all other cases, so far as I
am aware, they hold it sufficient that the indictment charge, and
consequently that the jury find, simply that the act was done "contrary
to the form of the statute in such case made and provided;" in other
words, contrary to the orders of the government.

All these doctrines prevail universally among judges, and are, I think,
uniformly practised upon in courts of justice; and they plainly involve
the most absolute despotism on the part of the government.

But there is still another doctrine that extensively, and perhaps most
generally, prevails in practice, although judges are not agreed in
regard to its soundness. It is this: that it is not even necessary that
the jury should see or know, _for themselves_, what the law _is_ that is
charged to have been violated; nor to see or know, _for themselves_,
that the act charged was in violation of any law whatever;--but that it
is sufficient that they be simply _told by the judge_ that any act
whatever, charged in an indictment, is in violation of law, and that
they are then bound blindly to receive the declaration as true, and
convict a man accordingly, if they find that he has done the act
charged.

This doctrine is adopted by many among the most eminent judges, and the
reasons for it are thus given by Lord Mansfield:

   "They (the jury) do not know, and are not presumed to know, the law.
   They are not sworn to decide the law;[105] they are not required to
   do it.... The jury ought not to assume the jurisdiction of law. They
   do not know, and are not presumed to know, anything of the matter.
   They do not understand the language in which it is conceived, or the
   meaning of the terms. They have no rule to go by but their passions
   and wishes."--_3 Term Rep._, 428, note.

What is this but saying that the people, who are supposed to be
represented in juries, and who institute and support the government, (of
course for the protection of their own rights and liberties, _as they
understand them_, for plainly no other motive can be attributed to
them,) are really the slaves of a despotic power, whose arbitrary
commands even they are not supposed competent to understand, but for the
transgression of which they are nevertheless to be punished as
criminals?

This is plainly the sum of the doctrine, because the jury are the peers
(equals) of the accused, and are therefore supposed to know the law as
well as he does, and as well as it is known by the people at large. If
_they_ (the jury) are not presumed to know the law, neither the accused
nor the people at large can be presumed to know it. Hence, it follows
that one principle of the _true_ trial by jury is, that no accused
person shall be held responsible for any other or greater knowledge of
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
responsible to a law, _which it is agreed they cannot understand_. What
is this but despotism?--and not merely despotism, but insult and
oppression of the intensest kind?

This doctrine of Mansfield is the doctrine of all who deny the right of
juries to judge of the law, although all may not choose to express it in
so blunt and unambiguous terms. But the doctrine evidently admits of no
other interpretation or defence.]

[Footnote 105: This declaration of Mansfield, that juries in England
"are not sworn to decide the law" in criminal cases, is a plain
falsehood. They are sworn to try the whole case at issue between the
king and the prisoner, and that includes the law as well as the fact.
See _juror's oath_, page 86.]