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,
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, 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
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, 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
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 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
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 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
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]
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
(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 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 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]
[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.
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.
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.
[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.
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;" [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.
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
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 truetrial 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?
[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.
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.