An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

Note Pg 1

I Have Made Two Changes In this Text.  First I Have

Removed the Footnotes To The End Of Each Chapter And I Have Placed

Note 9 At The End Of Chapter 6 Noting that Because Of The Ratification

Of The Xix Amendment To The Constitution For The United states,

August 20,  1920,  Women Were Fully Enfranchised with All Rights Of

Voting and Jury Service In all States Of The Union.  Other Than The Lack

Of Italics And Bold In this Text And The Typos (May They Be Few) This Is

The Complete First Edition Text.  Let Me Know Of Any Mistakes You Have

Caught!  My Email Address'S For Now Is Haradda@Aol.Com And

Davidr@Inconnect.Com.

 

David Reed

 

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An Essay On The Trial By Jury

By Lysander Spooner

 

 

Entered according to Act Of Congress,  In the Year 1852,  By

Lysander Spooner

 

In The Clerk'S Office Of The District Court Of Massachusetts.

 

Notice To English Publishers

     

The Author Claims The Copyright Of This Book In england,  On

Common Law Principles,  Without Regard To Acts Of Parliament; And

If The Main Principle Of The Book Itself Be True,  Viz.,  That No

Legislation,  In conflict With The Common Law,  Is Of Any Validity,

His Claim Is A Legal One. He Forbids Any One To Reprint The Book

Without His Consent.

 

Stereotyped by Hobart & Robbins;

New England Type And Stereotype Foundery,Boston.

 

 

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This Volume,  It Is Presumed by The Author,  Gives What Will

Generally Be Considered satisfactory Evidence,   Though Not All The

Evidence,   Of What The Common Law Trial By Jury Really Is. In a

Future Volume,  If It Should Be Called for,  It Is Designed to

Corroborate The Grounds Taken In this; Give A Concise View Of The

English Constitution; Show The Unconstitutional Character Of The

Existing government In england,  And The Unconstitutional Means

By Which The Trial By Jury Has Been Broken Down In practice; Prove

That,  Neither In england Nor The United states,  Have Legislatures

Ever Been Invested by The People With Any Authority To Impair The

Powers,  Change The Oaths,  Or (With Few Exceptions) Abridge The

Jurisdiction,  Of Juries,  Or Select Jurors On Any Other Than Common

Law Principles; And,  Consequently,  That,  In both Countries,

Legislation Is Still Constitutionally Subordinate To The Discretion And

Consciences Of Common Law Juries,  In all Cases,  Both Civil And

Criminal,  In which Juries Sit. The Same Volume Will Probably Also

Discuss Several Political And Legal Questions,  Which Will Naturally

Assume Importance If The Trial By Jury Should Be Reestablished.

 

 

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 4

For More Than Six Hundred years   That Is,  Since Magna Carta,  In

1215 There Has Been No Clearer Principle Of English Or American

Constitutional Law,  Than That,  In criminal Cases,  It Is Not Only The

Right And Duty Of Juries To Judge What Are The Facts,  What Is The Law,

And What Was The Moral Intent Of The Accused; But That It Is Also

Their Right,  And Their Primary And Paramount Duty,  To Judge Of The

Justice Of The Law,  And To Hold All Laws Invalid,  That Are,  In their

Opinion,  Unjust Or Oppressive,  And All Persons Guiltless In violating,

Or Resisting the Execution Of,  Such Laws.

 

Unless Such Be The Right And Duty Of Jurors,  It Is Plain That,  Instead

Of Juries Being a "Palladium Of Liberty" A Barrier Against The Tyranny

And Oppression Of The Government They Are Really Mere Tools In its

Hands,  For Carrying into Execution Any Injustice And Oppression It

May Desire To Have Executed.

 

But For Their Right To Judge Of The Law,  And The Justice Of The Law,

Juries Would Be No Protection To An Accused person,  Even As To

Matters Of Fact; For,  If The Government Can Dictate To A Jury Any Law

Whatever,  In a Criminal Case,  It Can Certainly Dictate To Them The

Laws Of Evidence. That Is,  It Can Dictate What Evidence Is

Admissible,  And What Inadmissible,  And Also What Force Or Weight

Is To Be Given To The Evidence Admitted. And If The Government Can

Thus Dictate To A Jury The Laws Of Evidence,  It Can Not Only Make It

Necessary For Them To Convict On A Partial Exhibition Of The

Evidence Rightfully Pertaining to The Case,  But It Can Even Require

Them To Convict On Any Evidence Whatever That It Pleases To Offer

Them.

 

That The Rights And Duties Of Jurors Must Necessarily Be Such As Are

Here Claimed for Them,  Will Be Evident When It Is Considered what

The Trial By Jury Is,  And What Is Its Object.

 

"The Trial By Jury," Then,  Is A "Trial By The Country" That Is,  By The

People As Distinguished from A Trial By The Government.

 

It Was Anciently Called "Trial Per Pais"   That Is,  "Trial By The

Country." And Now,  In every Criminal Trial,  The Jury Are Told That The

Accused "Has,  For Trial,  Put Himself Upon The Country; Which

Country You (The Jury) Are." 

 

The Object Of This Trial "By The Country," Or By The People,  In

Preference To A Trial By The Government,  Is To Guard Against Every

Species Of Oppression By The Government. In order To Effect This

End,  It Is Indispensable That The People,  Or "The Country," Judge Of

And Determine Their Own Liberties Against The Government; Instead

Of The Government'S Judging of And Determining its Own Powers

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 5

Over The People. How Is It Possible That Juries Can Do Anything to

Protect The Liberties Of The People Against The Government,  If They

Are Not Allowed to Determine What Those Liberties Are?

 

Any Government,  That Is Its Own Judge Of,  And Determines

Authoritatively For The People,  What Are Its Own Powers Over The

People,  Is An Absolute Government Of Course. It Has All The Powers

That It Chooses To Exercise. There Is No Other Or At Least No More

Accurate Definition Of A Despotism Than This.

 

On The Other Hand,  Any People,  That Judge Of,  And Determine

Authoritatively For The Government,  What Are Their Own Liberties

Against The Government,  Of Course Retain All The Liberties They Wish

To Enjoy. And This Is Freedom. At Least,  It Is Freedom To Them;

Because,  Although It May Be Theoretically Imperfect,  It,

Nevertheless,  Corresponds To Their Highest Notions Of Freedom.

 

To Secure This Right Of The People To Judge Of Their Own Liberties

Against The Government,  The Jurors Are Taken,  (Or Must Be,  To Make

Them Lawful Jurors,} From The Body Of The People,  By Lot,  Or By

Some Process That Precludes Any Previos Knowledge,  Choice,  Or

Selection Of Them,  On The Part Of The Government.

 

This Is Done To Prevent The Government'S Constituting a Jury Of Its

Own Partisans Or Friends; In other Words,  To Prevent The

Government'S Packing a Jury,  With A View To Maintain Its Own Laws,

And Accomplish Its Own Purposes.

 

It Is Supposed that,  If Twelve Men Be Taken,  By Lot,  From The Mass Of

The People,  Without The Possibility Of Any Previous Knowledge,

Choice,  Or Selection Of Them,  On The Part Of The Government,  The

Jury Will Be A Fair Epitome Of "The Country" At Large,  And Not Merely

Of The Party Or Faction That Sustain The Measures Of The Government;

That Substantially All Classes Of Opinions,  Prevailing among The

People,  Will Be Represented in the Jury; And Especially That The

Opponents Of The Government,  (If The Government Have Any

Opponents,) Will Be Represented there,  As Well As Its Friends; That

The Classes,  Who Are Oppressed by The Laws Of The Government,  (If

Any Are Thus Oppressed,) Will Have Their Representatives In the Jury,

As Well As Those Classes,  Who Take Sides With The Oppressor   That Is,

With The Government.

 

It Is Fairly Presumable That Such A Tribunal Will Agree To No

Conviction Except Such As Substantially The Whole Country Would

Agree To,  If They Were Present,  Taking part In the Trial. A Trial By

Such A Tribunal Is,  Therefore,  In effect,  "A Trial By The Country." In its

Results It Probably Comes As Near To A Trial By The Whole Country,  As

Any Trial That It Is Practicable To Have,  Without Too Great

Inconvenience And Expense. And. As Unanimity Is Required for A

Conviction,  It Follows That No One Can Be Convicted,  Except For The

Violation Of Such Laws As Substantially The Whole Country Wish To

Have Maintained. The Government Can Enforce None Of Its Laws,

(By Punishing offenders,  Through The Verdicts Of Juries,) Except

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 6

Such As Substantially The Whole People Wish To Have Enforced. The

Government,  Therefore,  Consistently With The Trial By Jury,  Can

Exercise No Powers Over The People,  (Or,  What Is The Same Thing,

Over