An Essay on the Trial By Jury

ch 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 gui

s a personal quality of the actor, not necessarily involved in the act, but depending also upon the intent or motive with whic

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 comp

s, 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 i

re to pronounce. The "issue" they are to try is, "guilty,"or "not guilty." And those are the terms they are required to use in render

hough 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,

rocuring the conviction of individuals for acts innocent in themselves, and forbidden only by some ty

y 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 in

ls, 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 fo

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 mora

asons), that I ever knew given for the doctrine t

it is an excuse which every man will make, and no man can tell how to confute him.' Selden, (as quoted in

t 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

minal, 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

ered for the doctrine that ignoranc

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."

e 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 on

all, are the only ones, so far as I know, that have

l 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 arith

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 necess

, 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 pu

rimes. 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 capacit

f 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 consist

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 o

f 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

d. 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 taki

jury, the jury being the judges of the capacity of ever

stice. 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

ink, uniformly practised upon in courts of justice; and they plainl

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 t

he most eminent judges, and the reasons

e 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 t

n 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,

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 s

criminal cases, is a plain falsehood. They are sworn to try the whole case at issue between the

udge of the law, although all may not choose to express it in so blunt and unambigu