Free Political Institutions

Their Nature, Essence, and Maintenance

An Abridgment and Rearrangement of Lysander Spooner's "Trial by jury"

EDITED BY

VICTOR YARROS

LONDON

C. W. DANIEL, LTD.

3, Amen Corner, E.C.

1912

CHAPTER 5: 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 the 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, punishing 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 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. 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 that 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 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-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 the 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 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-namely, 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 judges themselves for all their erroneous decisions? 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!

      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 some rights which the government cannot lawfully take from them, then the question arises in regard to every statute of the government 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 does not infringe the rights and liberties of the people, but also that it was 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 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 government 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."

      The 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, or 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 everyday practice of courts and juries to determine the mental capacity of parties, as, for example, whether they can make reasonable contracts, whether they are "of sound mind and body," etc. 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 other of the questions that come up continually 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, but whether he knew that his act was intrinsically criminal.

      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, 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:

      2. "Every person of the age of discretion, of sound mind and memory, is bound to know the law and presumed to do so."

      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 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 the 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, if not quite, as much reason be founded upon weight or height as upon age.

      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, 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 lie 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. And he cannot rightfully be held responsible to a greater knowledge of the law than this.

      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 lie 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 fellowmen 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 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 the absurd and atrocious doctrine that "ignorance of the law excuses no one," and that "every one is bound to know the criminal law," 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 circumstances of the case, and acquit him, if they had any reasonable doubt that he knew that he was committing a crime.

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