Part 22 (1/2)

[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.)