An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
Book online ยซAn Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐ยป. Author Lysander Spooner
[4] Among The Necessary Expenses Of Suits, Should Be Reckoned
Reasonable Compensation To Counsel, For They Are Nearly Or Quite
As Important To The Administration Of Justice, As Are Judges,
Jurors, Or Witnesses; And The Universal Practice Of Employing
Them, Both On The Part Of Governments And Of Private Persons,
Shows That Their Importance Is Generally Understood. As A Mere
Matter Of Economy, Too, It Would Be Wise For The Government To
Pay Them, Rather Than They Should Not Be Employed; Because They
Collect And Arrange The Testimony And The Law Beforehand, So As
To Be Able To Present The Whole Case To The Court And Jury
Intelligibly, And In a Short Space Of Time. Whereas, If They Were
Not Employed, The Court And Jury Would Be Under The Necessity
Either Of Spending much More Time Than Now In the Investigation
Of Causes, Or Of Despatching them In haste, And With Little
Regard To Justice. They Would Be Very Likely To Do The Latter,
Thus Defeating the Whole Object Of The People In establishing
Courts.
To Prevent The Abuse Of This Right, It Should Perhaps Be Left
Discretionary With The Jury In each Case To Determine Whether The
Counsel Should Receive Any Pay And, If Any, How Much From The
Government.
Chapter 9 (The Criminal Intent) Pg 173
It Is A Maxim Of The Common Law That There Can Be No Crime
Without A Criminal Intent. And It Is A Perfectly Clear Principle,
Although One Which Judges Have In a Great Measure Overthrown In
Practice, That Jurors Are To Judge Of The Moral Intent Of An
Accused person, And Hold Him Guiltless, Whatever His Act, Unless
They Find Him To Have Acted with A Criminal Intent; That Is, With
A Design To Do What He Knew To Be Criminal.
This Principle Is Clear, Because The Question For A Jury To
Determine Is, Whether The Accused be Guilty, Or Not Guilty. Guiltis A
Personal Quality Of The Actor, Not Necessarily Involved in
The Act, But Depending also Upon The Intent Or Motive With Which
The Act Was Done. Consequently, The Jury Must Find That He Acted
From A Criminal Motive, Before They Can Declare Him Guilty.
There Is No Moral Justice In, Nor Any Political Necessity For,
Punishing a Man For Any Act Whatever That He May Have Committed,
Chapter 9 (The Criminal Intent) Pg 174If He Have Done It Without Any Criminal Intent. There Can Be No
Moral Justice In punishing for Such An Act, Because, There Having
Been No Criminal Motive, There Can Have Been No Other Motive
Which Justice Can Take Cognizance Of, As Demanding or Justifying
Punishment. There Can Be No Political Necessity For Punishing, To
Warn Against Similar Acts In future, Because, If One Man Have
Injured another, However Unintentionally, He Is Liable, And
Justly Liable, To A Civil Suit For Damages; And In this Suit He
Will Be Compelled to Make Compensation For The Injury,
Notwithstanding his Innocence Of Any Intention To Injure. He Must
Bear The Consequences Of His Own Act, Instead Of Throwing them
Upon Another, However Innocent He May Have Been Of Any Intention
To Do Wrong. And The Damages He Will Have To Pay Will Be A
Sufficient Warning to Him Not To Do The Like Act Again.
If It Be Alleged that There Are Crimes Against The Public, (As
Treason, For Example, Or Any Other Resistance To Government,) For
Which Private Persons Can Recover No Damages, And That There Is A
Political Necessity For Punishing for Such Offences, Even Though
The Party Acted conscientiously, The Answer Is, The Government
Must Bear With All Resistance That Is Not So Clearly Wrong As To
Give Evidence Of Criminal Intent. In other Words, The Government,
In All Its Acts, Must Keep Itself So Clearly Within The Limits Of
Justice, As That Twelve Men, Taken At Random, Will All Agree That
It Is In the Right, Or It Must Incur The Risk Of Resistance,
Without Any Power To Punish It. This Is The Mode In which The
Trial By Jury Operates To Prevent The Government From Falling
Into The Hands Of A Party, Or A Faction, And To Keep It Within
Such Limits As All, Or Substantially All, The People Are Agreed
That It May Occupy.
This Necessity For A Criminal Intent, To Justify Conviction, Is
Proved by The Issue Which The Jury Are To Try, And The Verdict
They Are To Pronounce. The "Issue" They Are To Try Is, "Guilty,"Or
"Not Guilty." And Those Are The Terms They Are Required to Use
In Rendering their Verdicts. But It Is A Plain Falsehood To Say
That A Man Is "Guilty," Unless He Have Done An Act Which He Knew
To Be Criminal.
This Necessity For A Criminal Intent In other Words, For Guilt
As A Preliminary To Conviction, Makes It Impossible That A Man
Can Be Rightfully Convicted for An Act That Is Intrinsically
Innocent, Though Forbidden By The Government; Because Guilt Is An
Intrinsic Quality Of Actions And Motives, And Not One That Can Be
Imparted to Them By Arbitrary Legislation. All The Efforts Of The
Government, Therefore, To "Make Offences By Statute," Out Of Acts
That Are Not Criminal By Nature, Must Necessarily Be Ineffectual,
Unless A Jury Will Declare A Man "Guilty" For An Act That Is
Really Innocent.
The Corruption Of Judges, In their Attempts To Uphold The
Arbitrary Authority Of The Government, By Procuring the
Conviction Of Individuals For Acts Innocent In themselves, And
Forbidden Only By Some Tyrannical Statute, And The Commission Of
Chapter 9 (The Criminal Intent) Pg 175Which Therefore Indicates No Criminal Intent, Is Very Apparent.
To Accomplish This Object, They Have In modern Times Held It To
Be Unnecessary That Indictments Should Charge, As By The Common
Law They Were Required to Do, That An Act Was Done "Wickedly,"
"Feloniously," "With Malice Aforethought," Or In any Other Manner
That Implied a Criminal Intent, Without Which There Can Be No
Criminality; But That It Is Sufficient To Charge Simply That It
Was Done " Contrary To The Form Of The Statute In such Case Made
And Provided." This Form Of Indictment Proceeds Plainly Upon The
Assumption That The Government Is Absolute, And That It Has
Authority To Prohibit Any Act It Pleases, However Innocent In its
Nature The Act May Be. Judges Have Been Driven To The Alternative
Of Either Sanctioning this New Form Of Indictment, (Which They
Never Had Any Constitutional Right To Sanction,) Or Of Seeing the
Authority Of Many Of The Statutes Of The Government Fall To The
Ground; Because The Acts Forbidden By The Statutes Were So
Plainly Innocent In their Nature, That Even The Government Itself
Had Not The Face To Allege That The Commission Of Them Implied or
Indicated any Criminal Intent.
To Get Rid Of The Necessity Of Showing a Criminal Intent, And
Thereby Further To Enslave The People, By Reducing them To The
Necessity Of A Blind, Unreasoning submission To The Arbitrary
Will Of The Government, And Of A Surrender Of All Right, On Their
Own Part, To Judge What Are Their Constitutional And Natural
Rights And Liberties, Courts Have Invented another Idea, Which
They Have Incorporated among The Pretended maxims, Upon Which
They Act In criminal Trials, Viz., That "Ignorance Of The Law
Excuses No One." As If It Were In the Nature Of Things Possible
That There Could Be An Excuse More Absolute And Complete. What
Else Than Ignorance Of The Law Is It That Excuses Persons Under
The Years Of Discretion, And Men Of Imbecile Minds? What Else
Than Ignorance Of The Law Is It That Excuses Judges Themselves
For All Their Erroneous Decisions? Nothing. They Are Every Day
Committing errors, Which Would Be Crimes, But For Their Ignorance
Of The Law. And Yet These Same Judges, Who Claim To Be Learned in
The Law, And Who Yet Could Not Hold Their Offices For A Day, But
For The Allowance Which The Law Makes For Their Ignorance, Are
Continually Asserting it To Be A "Maxim" That "Ignorance Of The
Law Excuses No One;" (By Which, Of Course, They Really Mean That
It Excuses No One But Themselves; And Especially That It Excuses
No Unlearned man, Who Comes Before Them Charged with Crime.)
This Preposterous Doctrine, That "Ignorance Of The Law Excuses No
One," Is Asserted by Courts Because It Is An Indispensable One To
The Maintenance Of Absolute Power In the Government. It Is
Indispensable For This Purpose, Because, If It Be Once Admitted
That The People Have Any Rights And Liberties Which The
Government Cannot Lawfully Take From Them, Then The Question
Arises In regard To Every Statute Of The Government, Whether It
Be Law, Or Not; That Is, Whether It Infringe, Or Not, The Rights
And Liberties Of The People. Of This Question Every Man Must Of
Course Judge According to The Light In his Own Mind. And No Man
Chapter 9 (The Criminal Intent) Pg 176Can 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
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