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Chapter VI
Criminal Laws
6.1 Criminal Law Defined
One of the natural laws discussed in Chapter III decrees that government must punish the intentional violation of duties in order to protect human rights. This function is performed under the criminal laws and we shall use the term “criminal law” to mean every law, ordinance, regulation or court decree which commands or forbids human conduct and provides a punishment for disobedience. It is the provision for a penalty which distinguishes a criminal law from laws of other types.
When a person violates a criminal law, the officers of government are duty bound to prosecute him, prove his guilt and inflict the punishment provided. On the other hand, when a person fails to perform a duty set forth in the civil laws, no penalty is imposed. The one to whom the duty is owed may bring a lawsuit against the debtor, prove the obligation and use the machinery of government to enforce its payment. However, this is the extent to which force may be used in a civil case.
It should be recognized that government can, and sometimes does, punish the non-performance of civil duty. But before doing so it must make the violation a criminal offense. It cannot impose a penalty unless a law, or a court decree provides therefor. When this is done, failure to perform becomes a crime as well as a breach of a civil duty. According to the foregoing analysis, we may formally define a criminal law as:
A decree or enactment by the state which commands or forbids certain conduct and provides an adequate penalty for disobedience.
The only penalties which have been found to be adequate are: (1) Death or bodily injury; (2) Imprisonment or some other denial of liberty; (3) A fine or some other deprivation of property or property rights. [p. 68]
6.2 Common Law Definition Of A Crime
Sir William Blackstone (1723-1780), an English judge and author, is generally conceded to be the greatest authority and exponent of the Common Law who ever lived. It is not improbable that his famous treatise, Commentaries on the Laws of England, wielded a greater influence on the development of the Common Law in America than any other work. Certainly he has been quoted more frequently by the various courts of the United States than any other writer. Therefore, his definition of a common law crime should be authoritative. We quote it below.
To make a complete crime cognizable by human laws, there must be both a will and an act. For though ... a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such a vicious will. (4 Blackstone, Commentaries on the English Law, p. 21)
According to this statement, there are two essential elements to every crime: (1) A vicious will, and (2) An act committed to accomplish it. Let us now define a crime according to the natural laws developed in Chapter III and then compare it with Blackstone’s Common Law definition.
The first two natural laws stated that government must, (1) Punish the intentional violation of duties; (2) Punish nothing except the intentional violation of duties. If these laws are obeyed, government can inflict punishment for a crime only where there is both an intent to violate a duty and an act to accomplish it. But if an “intent to violate a duty” means the same as “a vicious will,” then the definition of a crime according to our natural laws is the same as that at common law. In any event a wrongful intent is required in both cases. [p. 69]
But over the years this fundamental requirement of a criminal intent has been dispensed with in some areas so that today under statutory laws it is no longer required in many instances. Current textbooks and dictionaries define a crime somewhat as follows:
An act committed or omitted in violation of a public law forbidding it. (Bouvier’s Law Dictionary, 1934 Ed.)
According to the theory expressed here, the state is free to forbid and punish any conduct it chooses. It is not limited to punishing those acts which are motivated by an evil intent.
Since the relaxation of the requirement of a criminal intent, the number of laws which provide for punishing good and innocent behavior have grown until today they are far more numerous than those which punish evil or harmful conduct.
6 3 The Criminal Intent
There is no problem of government of greater importance than that of deciding whether proof of an evil intent is required before punishment can be imposed under a criminal law. Freedom of contract, and indeed all other freedoms largely depend upon how this question is answered. In prior chapters we have briefly considered the problem of the criminal intent and have concluded that it is equivalent to the intentional violation of that duty which every rational person recognizes—the duty to avoid injuring the elements of freedom. It is appropriate that we now recapitulate and elaborate our discussion of this vital matter.
There are two opposing views which can be taken regarding the punishment of a crime. One is that the powers of government are unlimited so that it has the unrestricted right to define what a crime is and inflict any punishment it desires. The other is that the powers of government are limited; that there is a precise line between good and evil; that it may punish the evil but nothing else.
Those who subscribe to the first view either contend that there is no fixed line between good and evil or, if there is, those in control of government are free to ignore it. Their position is that the rulers, whether they be kings, dictators or a democratic majority, have, by virtue of the fact that they are rulers, the sole power to specify what [p. 70] conduct is punishable and the penalty for disobedience. In other words they are at liberty to punish any act or omission whatsoever and without regard to the intent with which it is committed.
Those of the second view contend that governments exist to enforce an immutable code of private morality; that when those in control formulate criminal laws, they are confined to punishing that conduct which that code defines as evil. This places a limit on their authority.
These two views are irreconcilable. Either the powers of government are limited or they are not. There is no intermediate position. Some may contend that there are limits but no one knows what those limits are; that there is a line between the good which should not be punished and the evil which should, but they cannot tell where that line is. Such people, whether they are aware of it or not, have accepted the view of unlimited power.
To say that there are limits but that those limits cannot be established has the same consequence as saying there are none. To contend that men have rights which government cannot invade, but to be unable to discern when that happens, is tantamount to admitting they do not exist. One who knows not what his rights are can never know when they are taken and is unable to defend them. He is like a man who believes he owns a piece of ground which his neighbor also claims, but he doesn’t know its boundaries. The neighbor continues to encroach further and further onto land he suspects is his, but since he is never certain where the boundary is, he cannot check the advance. Until he takes a firm position and says: “this far and no further,” there is no line.
The position taken herein is that the powers of government to punish are limited, and those limits are clearly discernible. It is submitted that no other view is possible to one who believes in the American Constitutional system. There is no principle of that system which is more basic and more clearly proclaimed than that men have certain unalienable rights which public officers cannot deny.
Those men who framed the Declaration of Independence, the United States Constitution and the constitutions of the various states placed in those documents more restraints on government power than grants. The entire Bill of Rights of the Federal Charter, whose main provisions are also contained in state constitutions, is nothing more than an enumeration of restraints. These limitations have one purpose and one effect: They place restrictions on the power to pass [p. 71] and enforce criminal laws. They prohibit the taking of life, liberty and property except for certain offenses. They establish procedures which must be followed in proving that those offenses have been committed.
Granted that the powers of government are limited, what are those limits? Unless they are known, for all practical purposes they do not exist. The natural tendency of men to abuse authority is so strong that those in government will always expand and enlarge their powers unless restrained. They will continually adopt laws making the exercise of freedom a crime until no freedom remains. They will, if permitted to do so, suspend procedural guarantees until they can convict and punish without inconvenience and without proof of guilt.
The limits of the power to punish are determined by the purpose for which that power is given. Under the American political system, governments are established to protect human freedom. The power to punish must be used then to promote this purpose but never defeat it. By punishing those who undertake to destroy freedom this purpose is served. Those who would otherwise engage in freedom destroying conduct are deterred from doing so. But the punishment of conduct other than this destroys freedom. For example, if a law is adopted which makes it a crime to enter a legitimate business and produce goods and services, freedom is destroyed in two ways: (1) People are denied freedom to engage in the prohibited activity, and (2) The production of those goods and services which otherwise would have been used in the exercise of freedom is prevented.
If then we define an “evil intent” as the intent to destroy or deny the elements of freedom, and if we forbid government the power to punish without first proving an evil intent, we have placed that limit on this power which is required to accomplish its purpose.
Furthermore, this definition of an evil intent is the only one upon which everyone can agree. We all love our own freedom and regard it as wrong and harmful when others injure it. From this we are all aware that when we violate the Golden Rule and undertake to do to others that which we would consider wrong if done to us, we are guilty of an evil intent. [p. 72]
6.4 The Purposes Of Enforcing Criminal Laws
We believe that the commission of crime should be punished according to the nature of the offense; that murder, treason, robbery, theft, and the breach of the general peace, in all respects, should be punished according to their criminality and their tendency to evil among men, by the laws of that government in which the offense is committed; and for the public peace and tranquility all men should step forward and use their ability in bringing offenders against good laws to punishment. (D&C 134:8)
And Moses came and told the people all the words of the LORD, and all the judgments: and all the people answered with one voice, and said, All the words which the LORD hath said will we do.
And Moses wrote all the words of the LORD, and rose up early in the morning, and builded an altar under the hill, and twelve pillars, according to the twelve tribes of Israel.
And he took the book of flee covenant, and read in the audience of the people: and they said, All that the LORD hath said will we do, and be obedient.
And Moses took the blood, and sprinkled [it] on the people, and said, Behold the blood of the covenant, which the LORD hath made with you concerning all these words. (Exodus 24:3–4, 7–8)
AND Moses called all Israel, and said unto them, Hear, O Israel, the statutes and judgments which I speak in your ears this day, that ye may team them, and keep, and do them.
The LORD our God made a covenant with us in Horeb.
The secret [things belong] unto the LORD our God: but those [things which are] revealed [belong] unto us and to our children for ever, that [we] may do all the words of thus law. (Deuteronomy 5:1–2; 29:29)
Remember ye the law of Moses my servant, which I commanded unto him in Horeb for all Israel, [with] the statutes and judgments. (Malachi 4:4)
Remember ye the law of Moses, my servant, which I commanded unto him in Horeb for all Israel, with the statutes and judgments. (3 Nephi 25:4)
Criminal laws are enforced to protect freedom by punishing [p. 73] those who destroy its elements for selfish purposes. By doing so governments fulfill that natural law which decrees that, for the protection of freedom, the intentional violation of duties must be punished.
When only those criminal laws which punish the intentional violation of duties are enforced, society is benefitted in a number of important ways: (1) Evil is suppressed; (2) Freedom is protected; (3) Peace is maintained; and (4) The members of society are taught to distinguish accurately between good and evil. Punishment may also benefit the criminal by: (1) Enabling him to pay his debt to society to the extent this is possible; and (2) Causing him to reform.
There are those who favor the enforcement of criminal laws because they believe that in so doing, they are obeying the commandments of God. This was true of the Israelites in Moses’ time and of their descendants for centuries thereafter. In their view, omniscient Deity had, through revelation, identified that conduct which was so evil it should be physically punished and had commanded them to inflict the punishment. The Ten Commandments and the other laws given in connection therewith formed the basis of their entire religion and they were directed to compel obedience to this code by punishing those who disobeyed it. Those who accept the Bible as the word of God and understand its teachings will enforce criminal laws for the same reason.
6.5 Punishment Determined By Criminality Of The Intent
One of the most difficult problems in criminal law is to determine the punishment which fits the crime. While it should be severe enough to deter future offenses, it should not be more severe than justice to the offender requires. These two standards should coincide. In our criminal laws today, except where proof of a criminal intent is not required at all, there is a direct relationship between the amount of injury intended by the criminal and the penalty imposed. It is generally assumed that the greater the harm, the more vicious the will; and the more vicious the will, the greater should be the punishment. But there is sometimes a great disparity between the severity of the harm and the punishment. This is explained by noting that [p. 74] the punishment imposed for a crime is determined almost entirely by the criminality of the intent rather than by the actual amount of harm done. This point is well illustrated by the criminal laws covering homicide.
For example, the laws of the state of Utah, which are fairly typical, define murder as, “the unlawful killing of a human being with malice aforethought,” and they make it punishable by death or life imprisonment. In contrast to this, manslaughter which is also the unlawful killing of a human being, but without malice, is punishable by imprisonment in the state prison from one to ten years if it is “voluntary,” and by imprisonment in the county jail for not exceeding one year if it is “involuntary.” And finally there is “justifiable” and “excusable” homicide which are not punishable at all. Thus, depending upon the intent of the actor, a homicide may be punishable by death or may carry no penalty whatsoever. The same harm — death — has been caused in each instance. But the extent to which it is punishable is determined entirely by the intent of the actor.
The Israelites at the time of Moses were largely relieved of the problem of deciding upon a correct punishment because the penalty to be imposed was ofttimes given along with the law. In the case of injuries to the body, there was a one-to-one correspondence between the injury and the penalty as the following familiar scripture indicates.
And he that killeth any man shall surely be put to death ... And if a man cause a blemish in his neighbor; as he hath done, so shall it be done to him; Breach for breach, eye for eye, tooth for tooth ... (Lev. 24:17–20)
This same penalty rule was followed in punishing one guilty of bearing false witness. One who testified falsely was given the same punishment which the one falsely accused would have suffered had he been found guilty. (Dent. 19:19)
In the case of theft, the wrongdoer was required to restore to the victim several-fold the value of the property stolen. The effect of this rule was to impose a fine upon the criminal but rather than giving it to the state, as is done today, it was given to the one who sustained the loss and experienced all of the inconvenience and wasted time resulting therefrom.
From what has been said regarding the criminal laws of the Israelites, it should not be assumed that their judges administered [p. 75] penalties mechanically and without mercy. The criminality of the intent was the determining factor then as, under the rules of Christian justice, it should always be. While today it might seem unjust to enforce some of the laws they were punished for disobeying, the Bible explains that those people had been given physical evidence that their laws came from God and therefore they could not disobey any of them with a clear conscience.
6.6 Capacity To Form The Criminal Intent
Since an evil intent is a necessary part of every crime, if the accused lacks the capacity to form such an intent, it would be logically impossible to convict him. It is for this reason that infants of a tender age and mental incompetents who cannot distinguish between right and wrong are not punishable under criminal law.
At common law, a child under seven was conclusively presumed to be incapable of committing a crime. Children from seven to fourteen were presumed to be unable to form the criminal intent, but this presumption could be rebutted. That is, the state was allowed to attempt to prove the existence of sufficient mental capacity and if it succeeded, a conviction was possible. Anyone fourteen or older was treated as an adult and presumed to be competent. State statutes have largely followed these common law rules.
Even though a person fourteen or older is presumed to be sane, this presumption can be rebutted. If it can be shown that the accused was unable to distinguish between right and wrong at the time the alleged criminal act was committed, he cannot be convicted.
A person who has deliberately diminished his mental capacity with drink or drugs cannot thereby escape responsibility for acts committed during a state of intoxication. His offense is not diminished when, by yielding to his vices, he deprives himself of reason and moral self-restraint. No one has a right to make a dangerous animal of himself thereby jeopardizing the welfare and safety of others.
Although there is a trend today to hold corporations liable for certain criminal acts, since it is manifestly impossible for them to form a criminal intent this is contrary to the most elementary principles of justice. Corporate officers and other agents are, of course, capable of committing crimes. And when they do they should be [p. 76] punished. But to charge their misdeeds to the corporate entity has the effect of punishing stockholders who may be completely innocent. This is as illogical as punishing an employer for the crimes of his employees or the voters for the crimes of their elected representative.
6.7 Types Of Crimes
Crimes may be classified, according to their seriousness, into two broad categories: (1) Felonies which are punishable by death or imprisonment in the state prison; and (2) Misdemeanors which include all crimes other than felonies.
Another classification which is commonly made is based upon the element of freedom injured. Crimes against life and liberty are usually grouped together and called “crimes against the person.” These include murder, mayhem, assault, battery, kidnapping, false imprisonment and the sex crimes.
Crimes against property are probably more numerous than any other type. Some of the more important ones are: robbery, burglary, arson, larceny, embezzlement, extortion, forgery and obtaining money by false pretenses.
Crimes against knowledge are variously called lying, deceit, misrepresentation, false advertising and false personation.
In another category we may place crimes against government. While they may not adversely affect the elements of freedom directly, they do so indirectly since their effect is to defeat the administration of justice. Such offenses as treason, perjury, bribery and abuse of process are placed under this heading.
6.8 Attempted Crimes
An attempted crime is an act done with an intent to commit the crime, but, through circumstances independent of the will of the actor, not completed. This constitutes a punishable offense at common law and under the statutory laws of the various states. Mere preparation which, according to the calculations of the actor is insufficient and actually does fail to complete the offense, would not constitute an attempt to commit that particular crime even though those [p. 77] preparations may be indictable on some other ground.
For example, if a person purchases a pick lock and a crowbar with the intent to use them to commit a burglary but is apprehended before doing so, he is not guilty of the crime of “attempted burglary,” but probably is guilty of the crime of “possession of burglarious tools.” On the other hand if he took an article intending to steal it, but discovered later he had taken his own property, he would not be guilty of larceny, but would be guilty of “attempted larceny.”
6.9 Degree Of Proof Required To Convict
A people whose moral convictions constrain them to be concerned about justice and the well-being of their fellowmen have a strong repugnance against punishing the innocent. If they have a choice, they would prefer that some of the guilty escape punishment rather than that any who are innocent would be subjected to it.
This kind of a choice is available in establishing the rules which must be followed in the administration of the criminal laws. In the United States it is uniformly agreed that the guilt of one accused of a crime must be established “beyond a reasonable doubt” before he may be punished. Adherence to this rule has doubtless allowed many who have been guilty to escape punishment. But on the other hand it has greatly reduced the chance that one who is innocent will be convicted.
Under the Constitution of the United States, “The trial of all crimes, except in cases of impeachment, shall be by jury.” (Art. III, Sec. 2) The effect of this provision and the rule of evidence stated above is that no person can be convicted of a crime under the Constitution unless the government has convinced a jury “beyond a reasonable doubt” that he committed a criminal act with a criminal intent.
The importance of this rule might be better appreciated by comparing it with the one applicable in civil cases. In a civil suit where the court is asked to determine the rights and liabilities of private parties, the person who wins must establish his case merely by “a preponderance of the evidence.” That is, he must present evidence which weighs more heavily in his favor than that which is against him. This is a much lighter burden than the prosecutor has in the criminal case. [p. 78]
6.10 Should Proof Of An Evil Intent Be Required As An Element Of Every Crime?
Yea, well did Mosiah say, who was our last king, when he was about to deliver up the kingdom, having no one to confer it upon, causing that this people should be governed by their own voices-yea, well did he say that if the time should come that the voice of this people should choose iniquity, that is, if the time should come that this people should fall into transgression, they would be ripe for destruction.
And now behold, I say unto you, that the foundation of the destruction of this people is beginning to be laid by the unrighteousness of your lawyers and your judges.
And it came to pass that they took Alma and Amulek, and carried them forth to the place of martyrdom, that they might witness the destruction of those who were consumed by fire.
And when Amulek saw the pains of the women and children who were consuming in the fire, he also was pained; and he said unto Alma: How can we witness thus awful scene? Therefore let us stretch forth our hands, and exercise the power of God which is in us, and save them from the flames.
But Alma said unto him: The Spirit constraineth me that I must not stretch forth mine hand; for behold the Lord receiveth them up unto himself, in glory; and he doth suffer that they may do this thing, or that the people may do this thing unto them, according to the hardness of their hearts, that the judgments which he shall exercise upon them in his wrath may be just; and the blood of the innocent shall stand as a witness against them, yea, and cry mightily against them at the last day. (Alma 10:19, 27; 14:9-11)
We have seen that under the Common Law, as interpreted by Blackstone, an evil intent was an essential element of every crime. We also observed that under the laws of today, proof of such an intent is dispensed with in a great many cases. Let us consider whether it should be.
The most obvious reason for requiring proof of an evil intent is that it violates our sense of justice not to do so. No rational person will agree that he should be punished for doing an act with a clear conscience. If he is just, he will apply the same rule to others. It is cruel and inhumane to punish one who is innocent. The criminal laws have always excused mental incompetents and infants who lacked the capacity to form an evil intent. But logically it is equally [p. 79] unjust to punish a sane person who has intended no evil, as to punish a mental incompetent who has intended none.
But aside from the moral issue, the practice has a deplorable effect upon the victim as well as society. The effect of punishing the innocent will likely be just the opposite of punishing the guilty. Rather than causing him to reform, it is apt to provoke him to retaliate for the unjust treatment. Instead of incapacitating him to commit further evil, it will prevent him from doing the good he would otherwise do.
The effect upon society is also opposite to that which is desired. As in the case of the accused, rather than being deterred from evil, they are deterred from good. Rather than promoting peace, the more likely result is to cause unrest and turmoil.
Yea, wo be unto you because of that great abomination which has come among you; and ye have united yourselves unto it, yea, to that secret band which was established by Gadianton!
AND now it came to pass that when Nephi had said these words, behold, there were men who were judges, who also belonged to the secret band of Gadianton, and they were angry, and they cried out against him, saying unto the people: Why do ye not seize upon this man and bring him forth, that he may be condemned according to the crime which he has done?
Why seest thou this man, and hearest him revile against this people and against our law?
For behold, Nephi had spoken unto them concerning the corruptness of their law; yea, many things did Nephi speak which cannot be written; and nothing did he speak which was contrary to the commandments of God.
And those judges were angry with him because he spake plainly unto them concerning their secret works of darkness; nevertheless, they durst not lay their own hands upon him, for they feared the people lest they should cry out against them. (Helaman 7.25; 8:1-4)
But the most pernicious effect of unjust laws is to corrupt the morals of the people. There is a pronounced tendency for the citizens of a nation to conform their private moral code to the laws of the land; to condemn what the laws condemn and to consider as innocent, if not virtuous, that which they condone. And why should this result not be expected? Criminal laws are for the express purpose of punishing evil. Theoretically, they allow that which is good or innocent to go unpunished. If those laws which the people are taught to respect and obey condemn and punish certain behavior, [p. 80] what is more natural than for the citizens to view the matter in the same light? And if the laws fail to condemn other conduct, be it good or evil, it can only be expected that they will assume that such practices are authorized and they are free to engage in them without censure from anyone.
And there began to be men inspired from heaven and sent forth, standing among the people in all the land, preaching and testifying boldly of the sins and iniquities of the people, and testifying unto them concerning the redemption which the Lord would make for his people, or in other words, the resurrection of Christ; and they did testify boldly of his death and sufferings.
Now there were many of the people who were exceedingly angry because of those who testified of these things; and those who were angry were chiefly the chief judges, and they who had been high priests and lawyers; yea, all those who were lawyers were angry with those who testified of these things.
Now there was no lawyer nor judge nor high priest that could have power to condemn any one to death save their condemnation was signed by the governor of the land.
Now there were many of those who testified of the things pertaining to Christ who testified boldly, who were taken and put to death secretly by the judges, that the knowledge of their death came not unto the governor of the land until after their death. (3 Nephi 6:20–23)
They were innocent of any crime, as they had often been proved before, and were only confined in jail by the conspiracy of traitors and wicked men; and their innocent blood on the floor of Carthage jail is a broad seal affixed to “Mormonism” that cannot be rejected by any court on earth, and their innocent blood on the escutcheon of the State of Illinois, with the broken faith of the State as pledged by the governor, is a witness to the truth of the everlasting gospel that all the world cannot impeach; and their innocent blood on the banner of liberty, and on the magna charta of the United States, is an ambassador for the religion of Jesus Christ, that will touch the hearts of honest men among all nations; and their innocent blood, with the innocent blood of all the martyrs under the altar that John saw, will cry unto the Lord of Hosts till he avenges that blood on the earth. Amen. (D&C 135:7; See Also Matt. Ch. 23; 27)
The tendency of the people to conform their ideas of right and wrong to the laws of the land is clearly evident in their reaction to criticisms levelled at their own laws as compared to their reaction to criticisms offered to them against the laws of another nation. When [p. 81] the laws of their own country are condemned as evil, they are apt to become deeply offended at the critic. He may even be in danger of physical violence. But when a group hears the laws of another nation criticized, they will usually accept what is said with no emotion at all. And it is not merely a sense of loyalty and patriotism which rouses people to anger when the laws of their nation are censured. Their feelings go much deeper than this. Their own moral beliefs have been challenged and they are usually willing to argue at great length in defense of their position.
The subjection of private morals to public laws can have the most evil consequences. When the laws become corrupt, the fathers pass on to their children a false moral code which leads them to believe evil is good and good is evil and this is one of the greatest tragedies which can befall them. Not only do they willingly accept those laws which enslave them, but their individual moral fiber is weakened and destroyed. Former Supreme Court justice, Louis D. Brandeis, once commented upon the influence of government in these words:
Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself.
6.11 The Natural Limits Of The Power To Inflict Punishment
We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul. (D&C 134:4)
If men establish governments for the purpose of punishing and preventing crime, they do not authorize them to commit crime. This implied prohibition marks the natural limits of the power to punish. If it inflicts a penalty for any purpose other than to punish a crime, it [p. 82] commits a crime.
All human conduct may be divided into two categories: (1) Those acts committed or omitted with an intent to do evil — to injure or destroy the elements of freedom without justification; and (2) Those committed or omitted without such an intent. All criminal laws may be divided into two categories: (1) Those which provide for punishing only conduct of the first type; and (2) Those which provide for punishing conduct of the second type. When a government adopts laws which provide for punishing conduct of the first type, it has reached the natural limits of its power to punish. All criminal laws other than these provide for punishing the innocent and this is a crime. In fact, the threat to enforce laws which punish innocent behavior is a crime because those who obey them out of fear are denied a rightful freedom. While men should not be free to do evil without fear of punishment, their freedom to do good should be unrestricted. When this is taken from them by the passage of an unjust law, a crime is committed.
Throughout history, men have committed a hundredfold more crimes when acting in the name and by the authority of government than when acting outside its framework. This is obvious if we consider only the death, destruction and suffering caused by those who used this agency to wage aggressive international warfare. But when we add to this the millions upon millions who have been murdered, plundered and enslaved by the officers of their own government, it is clear beyond any doubt that government is the great criminal of the ages. The unjustified loss of life, liberty and property chargeable to its account staggers the imagination.
While governments are established to protect freedom, they constitute the greatest threat to freedom which exists. Whether they act in the role of a protector or a destroyer is determined by the extent to which they respect the natural limit of their powers to punish. The greatest problem mankind faces is to keep governments within those limits.
(Note: All of Chapter 7 and 8, through section 8.5 inclusive, deal with tort and contract law. The reader not concerned with definitions of various types of tort and contract violations may wish to skip these parts.) [p. 83]
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