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

The Accused person,  Who Represents The Rights Of The People,)

Except Such A Substantially The Whole People Of The Country

Consent That It May Exercise. In such A Trial,  Therefore,  "The

Country," Or The People,  Judge Of And Dtermine Their Own Liberties

Against The Government,  Instead Of Thegovernment'S Judging of And

Determining its Own Powers Over The People.

 

But All This "Trial By The Country" Would Be No Trial At All "By The

Country," But Only A Trial By The Government,  If The Government

'Could Either Declare Who May,  And Who May Not,  Be Jurors,  Or

Could Dictate To The Jury Anything whatever,  Either Of Law Or

Evidence,  That Is Of The Essence Of The Trial.

 

If The Government May Decide Who May,  And Who May Not,  Be

Jurors,  It Will Of Course Select Only Its Partisans,  And Those Friendly

To Its Measures. It May Not Only Prescribe Who May,  And Who May

Not,  Be Eligible To Be Drawn As Jurors; But It May Also Question Each

Person Drawn As A Juror,  As To His Sentiments In regard To The

Particular Law Involved in each Trial,  Before Suffering him To Be

Sworn On The Panel; And Exclude Him If He Be Found Unfavorable To

The Maintenance Of Such A Law. [1]

 

So,  Also,  If The Government May Dictate To The Jury What Laws They

Are To Enforce,  It Is No Longer A " Trial By The Country," But A Trial By

The Government; Because The Jury Then Try The Accused,  Not By Any

Standard Of Their Own   Not By Their Own Judgments Of Their Rightful

Liberties   But By A Standard. Dictated to Them By The Government.

And The Standard,  Thus Dictated by The Government,  Becomes The

Measure Of The People'S Liberties. If The Government Dictate The

Standard Of Trial,  It Of Course Dictates The Results Of The Trial. And

Such A Trial Is No Trial By The Country,  But Only A Trial By The

Government; And In it The Government Determines What Are Its Own

Powers Over The People,  Instead Of The People'S Determining what

Are Their Own Liberties Against The Government. In short,  If The Jury

Have No Right To Judge Of The Justice Of A Law Of The Government,

They Plainly Can Do Nothing to Protect The People Against The

Oppressions Of The Government; For There Are No Oppressions Which

The Government May Not Authorize By Law.

 

The Jury Are Also To Judge Whether The Laws Are Rightly Expounded

To Them By The Court. Unless They Judge On This Point,  They Do

Nothing to Protect Their Liberties Against The Oppressions That Are

Capable Of Being practiced under Cover Of A Corrupt Exposition Of

The Laws. If The Judiciary Can Authoritatively Dictate To A Jury Any

Exposition Of The Law,  They Can Dictate To Them The Law Itself,  And

Such Laws As They Please; Because Laws Are,  In practice,  One Thing

Or Another,  According as They Are Expounded.

 

The Jury Must Also Judge Whether There Really Be Any Such Law,  (Be

It Good Or Bad,) As The Accused is Charged with Having transgressed.

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 7

Unless They Judge On This Point,  The People Are Liable To Have Their

Liberties Taken From Them By Brute Force,  Without Any Law At All.

 

The Jury Must Also Judge Of The Laws Of Evidence. If The

Government Can Dictate To A Jury The Laws Of Evidence,  It Can Not

Only Shut Out Any Evidence It Pleases,  Tending to Vindicate The

Accused,  But It Can Require That Any Evidence Whatever,  That It

Pleases To Offer,  Be Held As Conclusive Proof Of Any Offence

Whatever Which The Government Chooses To Allege.

 

It Is Manifest,  Therefore,  That The Jury Must Judge Of And Try The

Whole Case,  And Every Part And Parcel Of The Case,  Free Of Any

Dictation Or Authority On The Part Of The Government. They Must

Judge Of The Existence Of The Law; Of The True Exposition Of The Law;

Of The Justice Of The Law; And Of The Admissibility And Weight Of All

The Evidence Offered; Otherwise The Government Will Have

Everything its Own Way; The Jury Will Be Mere Puppets In the Hands

Of The Government: And The Trial Will Be,  In reality,  A Trial By The

Government,  And Not A "Trial By The Country." By Such Trials The

Government Will Determine Its Own Powers Over The People,  Instead

Of The People'S Determining their Own Liberties Against The

Government; And It Will Be An Entire Delusion To Talk,  As For

Centuries We Have Done,  Of The Trial By Jury,  As A "Palladium Of

Liberty," Or As Any Protection To The People Against The Oppression

And Tyranny Of The Government.

 

The Question,  Then,  Between Trial By Jury,  As Thus Described,  And

Trial By The Government,  Is Simply A Question Between Liberty And

Despotism. The Authority To Judge What Are The Powers Of The

Government,  And What The Liberties Of The People,  Must Necessarily

Be Vested in one Or The Other Of The Parties Themselves   The

Government,  Or The People; Because There Is No Third Party To Whom

It Can Be Entrusted. If The Authority Be Vested in the Government,

The Governmnt Is Absolute,  And The People Have No Liberties Except

Such As The Government Sees Fit To Indulge Them With. If,  On The

Other Hand,  That Authority Be Vested in the People,  Then The People

Have All Liberties,  (As Against The Government,) Except Suc As

Substantially The Whole People (Through A Jury) Choose To Disclaim;

And The Government Can Exercise No Power Except Such As

Substantially The Whole People (Through A Jury) Consent That It May

Exercise.

 

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 8

By Saying that The Government Is Chosen By The People; That,  In

Theory,  It Represents The People; That It Is Designed to Do The Will Of

The People; That Its Members Are All Sworn To Observe The

Fundamental Or Constitutional Law Instituted by The People; That Its

Acts Are Therefore Entitled to Be Considered the Acts Of The People;

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 9

And That To Allow A Jury,  Representing the People,  To Invalidate The

Acts Of The' Government,  Would Therefore Be Arraying the People

Against Themselves.

 

There Are Two Answers To Such An Argument.

 

One Answer Is,  That,  In a Representative Government,  There Is No

Absurdity Or Contradiction,  Nor Any Arraying of The People Against

Themselves,  In requiring that The Statutes Or Enactments Of The

Government Shall Pass The Ordeal Of Any Number Of Separate

Tribunals,  Before It Shall Be Determined that They Are To Have The

Force Of Laws. Our American Constitutions Have Provided five Of

These Separate Tribunals,  To Wit,  Representatives,  Senate,

Executive,[2] Jury,  And Judges; And Have Made It Necessary That

Each Enactment Shall Pass The Ordeal Of All These Separate Tribunals,

Before Its Authority Can Be Established by The Punishment Of Those

Who Choose To Transgress It. And There Is No More Absurdity Or

Inconsistency In making a Jury One Of These Several Tribunals,  Than

There Is In making the Representatives,  Or The Senate,  Or The

Executive,  Or The Judges,  One Of Them. There Is No More Absurdity

In Giving a Jury A Veto Upon The Laws,  Than There Is In giving a Veto

To Each Of These Other Tribunals. The People Are No More Arrayed

Against Themselves,  When A Jury Puts Its Veto Upon A Statute,  Which

The Other Tribunals Have Sanctioned,  Than They Are When The Same

Veto Is Exercised by The Representatives,  The Senate,  The Executive,

Or The Judges.

 

But Another Answer To The Argument That The People Are Arrayed

Against Themselves,  When A Jury Hold An Enactment Of The

Government Invalid,  Is,  That The Government,  And All The

Departments Of The Government,  Are Merely The Servants And Agents

Of The People; Not Invested with Arbitrary Or Absolute Authority To

Bind The People,  But Required to Submit All Their Enactments To The

Judgment Of A Tribunal More Fairly Representing the Whole People,

Before They Carry Them Into Execution,  By Punishing any Individual

For Transgressing them. If The Government Were Not Thus Required to

Submit Their Enactments To The Judgment Of "The Country," Before

Executing them Upon Individuals   If,  In other Words,  The People

Had Reserved to Themselves No Veto Upon The Acts Of The

Government,  The Government,  Instead Of Being a Mere Servant And

Agent Of The People,  Would Be An Absolute Despot Over The People.

It Would Have All Power In its Own Hands; Because The Power To

Punish Carries All Other Powers With It. A Power That Can,  Of Itself,

And By Its Own Authority,  Punish Disobedience,  Can Compel

Obedience And Submission,  And Is Above All Responsibility For The

Character Of Its Laws. In short,  It Is A Despotism.

 

And It Is Of No Consequence To Inquire How A Government Came By

This Power To Punish,  Whether By Prescription,  By Inheritance,  By

Usurpation. Or By Delegation From The People'S If It Have Now But

Got It,  The Government Is Absolute.

 

It Is Plain,  Therefore,  That If The People Have Invested the

Government With Power To Make Laws That Absolutely Bind The

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 10

People,  And To Punish The People For Transgressing those Laws,  The

People Have Surrendered their Liberties Unreservedly Into The Hands

Of The Government.

 

It Is Of No Avail To Say,  In answer To This View Of The Ease,  That In

Surrendering their Liberties Into The Hands Of The Government,  The

People Took An Oath From The Government,  That It Would Exercise Its

Power Within Certain Constitutional Limits; For When Did Oaths