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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.
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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.
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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.
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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.
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| 180 |
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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.
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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.)
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| 181 |
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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.
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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:
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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.
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| 182 |
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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.
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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.)
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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.
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| 183 |
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The second reason that has been offered for the doctrine that ignorance of the law
excuses no one, is this:
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"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.
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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.
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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.
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| 184 |
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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]
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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,
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[1] 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.
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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.
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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.
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| 185 |
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implies and includesa 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.
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| 185 |
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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.
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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
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.
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| 187, 188 |
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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 understand- ing 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. [2]
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[2] 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.
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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.
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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.
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This doctrine is adopted by many among the most eminent judges, and the 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. They are
not sworn to decide the law;" [3] 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."
– 8 Term Rep., 428, note.
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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
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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?
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[3] 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 Jurors Oath, page 85.
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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.
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