An Essay on the Trial by Jury Part 22

[Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.

Sullivan says that both plaintiffs and defendants were liable to amercement. Blackstone speaks of plaintiffs being liable, without saying whether defendants were so or not. What the rule really was I do not know. There would seem to be some reason in allowing defendants to defend themselves, _at their own charges_, without exposing themselves to amercement in case of failure.]

[Footnote 100: When any other witnesses than freeholders were required in a civil suit, I am not aware of the manner in which their attendance was procured; but it was doubtless done at the expense either of the state or of the witnesses themselves. And it was doubtless the same in criminal cases.]

[Footnote 101: "All claims were established in the first stage by the oath of the plaintiff, except when otherwise specially directed by the law. The oath, by which any claim was supported, was called the fore-oath, or 'Praejuramentum,' and it was the foundation of his suit.

One of the cases which did not require this initiatory confirmation, was when cattle could be tracked into another man's land, and then the foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_, &c., 114.]

[Footnote 102: 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 s.p.a.ce 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 establis.h.i.+ng 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 IX.

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, punis.h.i.+ng 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 punis.h.i.+ng 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 punis.h.i.+ng, 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 punis.h.i.+ng 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 p.r.o.nounce. 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 a.s.sumption 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 const.i.tutional 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 const.i.tutional 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 a.s.serting 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 a.s.serted 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 a.s.serts that this fact is incapable of being ascertained, and that therefore there is a necessity for punis.h.i.+ng 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 munic.i.p.al 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 rea.s.serting 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 ma.s.s 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 a.s.sociation) to punish men in such cases, because it would be absurd to suppose that any man would voluntarily a.s.sist 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 a.s.sociation, and of course having no powers except such as _all_ the a.s.sociates 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 circ.u.mstances 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 ent.i.tled to some consideration as _evidence of capacity_.

It may be mentioned, in this connection, that the rules that prevail, that every man is ent.i.tled to freedom from parental authority at twenty-one years of age, and no one before that age, are of the same cla.s.s of absurdities with those that have been mentioned. The only ground on which a parent is ever ent.i.tled to exercise authority over his child, is that the child is incapable of taking reasonable care of himself. The child would be ent.i.tled 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 ent.i.tled 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 a.s.serts 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 a.s.sume 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 pa.s.sions 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 inst.i.tute 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?