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
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," &. &. 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
Chapter 9 (The Criminal Intent) Pg 177Intrinsically. 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
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 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
Chapter 9 (The Criminal Intent) Pg 178Acquires 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 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
Formankind 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
Chapter 9 (The Criminal Intent) Pg 179(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 He 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 "Everyone 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
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