An Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐
- Author: Lysander Spooner
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Plainly Innocent In Their Nature, That Even The Government Itself
Had Not The Face To Allege That The Commission Of Them Implied Or
Indicated Any Criminal Intent.
To Get Rid Of The Necessity Of Showing A Criminal Intent, And
Thereby Further To Enslave The People, By Reducing Them To The
Necessity Of A Blind, Unreasoning Submission To The Arbitrary
Will Of The Government, And Of A Surrender Of All Right, On Their
Chapter 9 (The Criminal Intent) Pg 153Own Part, To Judge What Are Their Constitutional And Natural
Rights And Liberties, Courts Have Invented Another Idea, Which
They Have Incorporated Among The Pretended Maxims, Upon Which
They Act In Criminal Trials, Viz., That "Ignorance Of The Law
Excuses No One." As If It Were In The Nature Of Things Possible
That There Could Be An Excuse More Absolute And Complete. What
Else Than Ignorance Of The Law Is It That Excuses Persons Under
The Years Of Discretion, And Men Of Imbecile Minds? What Else
Than Ignorance Of The Law Is It That Excuses Judges Themselves
For All Their Erroneous Decisions? Nothing. They Are Every Day
Committing Errors, Which Would Be Crimes, But For Their Ignorance
Of The Law. And Yet These Same Judges, Who Claim To Be Learned In
The Law, And Who Yet Could Not Hold Their Offices For A Day, But
For The Allowance Which The Law Makes For Their Ignorance, Are
Continually Asserting It To Be A "Maxim" That "Ignorance Of The
Law Excuses No One;" (By Which, Of Course, They Really Mean That
It Excuses No One But Themselves; And Especially That It Excuses
No Unlearned Man, Who Comes Before Them Charged With Crime.)
This Preposterous Doctrine, That "Ignorance Of The Law Excuses No
One," Is Asserted By Courts Because It Is An Indispensable One To
The Maintenance Of Absolute Power In The Government. It Is
Indispensable For This Purpose, Because, If It Be Once Admitted
That The People Have Any Rights And Liberties Which The
Government Cannot Lawfully Take From Them, Then The Question
Arises In Regard To Every Statute Of The Government, Whether It
Be Law, Or Not; That Is, Whether It Infringe, Or Not, The Rights
And Liberties Of The People. Of This Question Every Man Must Of
Course Judge According To The Light In His Own Mind. And No Man
Can Be Convicted Unless The Jury Find, Not Only That The Statute
Is Law, That It Does Not Infringe The Rights And Liberties Of
The People, But Also That It Was So Clearly Law, So Clearly
Consistent With The Rights And Liberties Of The People, As That
The Individual Himself, Who Transgressed It, Knew It To Be So,
And Therefore Had No Moral Excuse For Transgressing It.
Governments See That If Ignorance Of The Law Were Allowed To
Excuse A Man For Any Act Whatever, It Must Excuse Him For
Transgressing All Statutes Whatsoever, Which He Himself Thinks
Inconsistent With His Rights And Liberties. But Such A Doctrine
Would Of Course Be Inconsistent With The Maintenance Of Arbitrary
Power By The Government; And Hence Governments Will Not Allow
The Plea, Although They Will Not Confess Their True Reasons For
Disallowing It.
The Only Reasons, (If They Deserve The Name Of Reasons), That I
Ever Knew Given For The Doctrine That Ignorance Of The Law
Excuses No One, Are These:
1. "The Reason For The Maxim Is That Of Necessity. It Prevails,
'Not That All Men Know The Law, But Because It Is An Excuse Which
Every Man Will Make, And No Man Can Tell How To Confute Him.'
Selden, (As Quoted In The 2d Edition Of Starkie On Slander,
Prelim. Disc., P. 140, Note.)" Law Magazine, (London,) Vol. 27,
P. 97.
Chapter 9 (The Criminal Intent) Pg 154
This Reason Impliedly Admits That Ignorance Of The Law Is,
Intrinsically, An Ample And Sufficient Excuse For A Crime; And
That The Excuse Ought To Be Allowed, If The Fact Of Ignorance
Could But Be Ascertained. But It Asserts That This Fact Is
Incapable Of Being Ascertained, And That Therefore There Is A
Necessity For Punishing The Ignorant And The Knowing That Is,
The Innocent And The Guilty Without Discrimination.
This Reason Is Worthy Of The Doctrine It Is Used To Uphold; As If
A Plea Of Ignorance, Any More Than Any Other Plea, Must
Necessarily Be Believed Simply Because It Is Urged; And As If It
Were Not A Common And Every-Day Practice Of Courts And Juries, In
Both Civil And Criminal Cases, To Determine The Mental Capacity
Of Individuals; As, For Example, To Determine Whether They Are Of
Sufficient Mental Capacity To Make Reasonable Contracts; Whether
They Are Lunatic; Whether They Are Compotes Mentis, "Of Sound
Mind And Memory," &. &. And There Is Obviously No More
Difficulty In A Jury's Determining Whether An Accused Person Knew
The Law In A Criminal Case, Than There Is In Determining Any Of These
Other Questions That Are Continually Determined In Regard To A
Man's Mental Capacity. For The Question To Be Settled By The Jury
Is Not Whether The Accused Person Knew The Particular Penalty
Attached To His Act, (For At Common Law No One Knew What Penalty
A Jury Would Attach To An Offence,) But Whether He Knew That His
Act Was Intrinsically Criminal. If It Were Intrinsically Criminal,
It Was Criminal At Common Law. If It Was Not Intrinsically Criminal,
It Was Not Criminal At Common Law. (At Least, Such Was The General
Principle Of The Common Law. There May Have Been Exceptions In
Practice, Owing To The Fact That The Opinions Of Men, As To What Was
Intrinsically. Criminal, May Not Have Been In All Cases Correct.)
A Jury, Then, In Judging Whether An Accused Person Knew His Act
To Be Illegal, Were Bound First To Use Their Own Judgments, As To
Whether The Act Were Intrinsically Criminal. If Their Own Judgments
Told Them The Act Was Intrinsically And Clearlycriminal, They Would
Naturally And Reasonably Infer That The Accused Also Understood That
It Was Intrinsically Criminal, (And Consequently Illegal,) Unless It
Should Appear That He Was Either Below Themselves In The Scale Of
Intellect, Or Had Had Less Opportunities Of Knowing What Acts Were
Criminal. In Short, They Would Judge, From Any And Every Means They
Might Have Of Judging; And If They Had Any Reasonable Doubt That He
Knew His Act To Be Criminal In Itself, They Would Be Bound To Acquit
Him.
The Second Reason That Has Been Offered For The Doctrine That
Ignorance Of The Law Excuses No One, Is This:
"Ignorance Of The Municipal Law Of The Kingdom, Or Of The Penalty
Thereby Inflicted On Offenders, Doth Not Excuse Any That Is Of
The Age Of Discretion And Compos Mentis, From The Penalty Of The
Breach Of It; Because Every Person, Of The Age Of Discretion And
Compos Mentis, Is Bound To Know The Law, And Presumed To Do So.
"Ignorantia Eorum,, Quae Quis Scire Tenetur Non Excusat."
(Ignorance Of Those Things Which Every One Is Bound To Know, Does
Chapter 9 (The Criminal Intent) Pg 155Not Excuse.) 1 Hale's Pleas Of The Crown, 42. Doctor And
Student, Dialog. 2, Ch. 46. Law Magazine, (London,) Vol. 27, P.
97.
The Sum Of This Reason Is, That Ignorance Of The Law Excuses No
One, (Who Is Of The Age Of Discretion And Is Compos Mentis,)
Because Every Such Person "Is Bound To Know The Law." But This Is
Giving No Reason At All For The Doctrine, Since Saying That A Man
"Is Bound To Know The Law," Is Only Saying, In Another Form, That
"Ignorance Of The Law Does Not Excuse Him." There Is No
Difference At All In The Two Ideas. To Say, Therefore, That
"Ignorance Of The Law Excuses No One, Because Every One Is Bound
To Know The Law," Is Only Equivalent To Saying That "Ignorance Of
The Law Excuses No One, Because Ignorance Of The Law Excuses No
One." It Is Merely Reasserting The Doctrine, Without Giving Any
Reason At All.
And Yet These Reasons, Which Are Really No Reasons At All, Are
The Only Ones, So Far As I Know, That Have Ever Been Offered For
This Absurd And Brutal Doctrine.
The Idea Suggested, That " The Age Of Discretion" Determines The
Guilt Of A Person, That There Is A Particular Age, Prior To Which
All Persons Alike Should Be Held Incapable Of Knowing Any Crime,
And Subsequent To Which All Persons Alike Should Be Held
Capable Of Knowing All Crimes, Is Another Of This Most
Ridiculous Nest Of Ideas. All Mankind Acquire Their Knowledge Of
Crimes, As They Do Of Other Things, Gradually. Some They Learn At
An Early Age; Others Not Till A Later One. One Individual
Acquires A Knowledge Of Crimes, As He Does Of Arithmetic, At An
Earlier Age Than Others Do. And To Apply The Same Presumption To
All, On The Ground Of Age Alone, Is Not Only Gross Injustice, But
Gross Folly. A Universal Presumption Might, With Nearly Or Quite
As Much Reason, Be Founded Upon Weight, Or Height, As Upon Age.
[1]
This Doctrine, That "Ignorance Of The Law Excuses No One," Is
Constantly Repeated In The Form That "Every One Is Bound To Know
The Law." The Doctrine Is True In Civil Matters, Especially In
Contracts, So Far As This: That No Man, Who Has The Ordinary Capacity
To Make Reasonable Contracts, Can Escape The Consequences Of
His Own Agreement, On The Ground That He Did Not Know The Law
Applicable To It. When A Man Makes A Contract, He Gives The Other
Party Rights; And He Must Of Necessity Judge For Himself, And Take
His Own Risk, As To What Those Rights Are, Otherwise The Contract
Would Not Be Binding, And Men Could Not Make Contracts That
Would Convey Rights To Each Other. Besides, The Capacity To Make
Reasonable Contracts,
Implies And Includes A Capacity To Form A Reasonable Judgment As
To The Law Applicable To Them. But In Criminal Matters, Where The
Question Is One Of Punishment, Or Not; Where No Second Party Has
Acquired Any Right To Have The Crime Punished, Unless It Were
Committed With Criminal Intent, (But Only To Have It Compensated
For By Damages In A Civil Suit,") And When The Criminal Intent Is
The Only Moral Justification For The Punishment, The Principle
Does Not Apply, And A Man Is Bound To Know The Law Only As Well
As He Reasonably May. The Criminal Law Requires Neither
Impossibilities Nor Extraordinaries Of Any One. It Requires Only
Thoughtfulness And A Good Conscience. It Requires Only That A Man
Fairly And Properly Use The Judgment He Possesses, And The Means
He Has Of Learning His Duty. It Requires Of
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