An Essay On The Trial By Jury by Lysander Spooner (free ebook reader for android TXT) 📕

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