An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗

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Dependence For Their Salaries),  To These Irresponsible Legislators.

This Dependence Of The Judiciary And Executive Upon The

Legislature Is A Guaranty That They Will Always Sanction And Execute

Its Laws,  Whether Just Or Unjust. Thus The Legislators Hold The Whole

Power Of The Government In Their Hands,  And Are At The Same Time

Utterly Irresponsible For The Manner In Which They Use It.

 

If,  Now,  This Government,  (The Three Branches Thus Really United In

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One),  Can Determine The Validity Of,  And Enforce,  Its Own Laws,  It Is,

For The Time Being,  Entirely Absolute,  And Wholly Irresponsible To

The People.

 

But This Is Not All. These Legislators,  And This Government,  So

Irresponsible While In Power,  Can Perpetuate Their Power At

Pleasure,  If They Can Determine What Legislation Is Authoritative

Upon The People,  And Can Enforce Obedience To It,  For They Can Not

Only Declare Their Power Perpetual,  But They Can Enforce

Submission To All Legislation That Is Necessary To Secure Its

Perpetuity. They Can,  For Example,  Prohibit All Discussion Of The

Rightfulness Of Their Authority; Forbid The Use Of The Suffrage;

Prevent The Election Of Any Successors; Disarm,  Plunder,  Imprison,

And Even Kill All Who Refuse Submission. If,  Therefore,  The

Government (All Departments United) Be Absolute For A Day   That Is,

If It Can,  For A Day,  Enforce Obedience To Its Own Laws   It Can,  In

That Day,  Secure Its Power For All Time   Like The Queen,  Who Wished

To Reign But For A Day,  But In That Day Caused The King,  Her Husband,

To Be Slain,  And Usurped His Throne.

 

Nor Will It Avail To Say That Such Acts Would Be Unconstitutional,

And That Unconstitutional Acts May Be Lawfully Resisted; For

Everything A Government Pleases To Do Will,  Of Course,  Be

Determined To Be Constitutional,  If The Government Itself Be

Permitted To Determine The Question Of The Constitutionality Of Its

Own Acts. Those Who Are Capable Of Tyranny,  Are Capable Of Perjury

To Sustain It.

 

The Conclusion,  Therefore,  Is,  That Any Government,  That Can,  For A

Day,  Enforce Its Own Laws,  Without Appealing To The People,  (Or To A

Tribunal Fairly Representing The People,) For Their Consent,  Is,  In

Theory,  An Absolute Government,  Irresponsible To The People,  And

Can Perpetuate Its Power At Pleasure.

 

The Trial By Jury Is Based Upon A Recognition Of This Principle,  And

Therefore Forbids The Government To Execute Any Of Its Laws,  By

Punishing Violators,  In Any Case Whatever,  Without First Getting The

Consent Of "The Country," Or The People,  Through A Jury. In This Way,

The People,  At All Times,  Hold Their Liberties In Their Own Hands,  And

Never Surrender Them,  Even For A Moment,  Into The Hands Of The

Government.

 

The Trial By Jury,  Then,  Gives To Any And Every Individual The

Liberty,  At Any Time,  To Disregard Or Resist Any Law Whatever Of The

Government,  If He Be Willing To Submit To The Decision Of A Jury,  The

Questions,  Whether The Law Be Intrinsically Just And Obligatory? And

Whether His Conduct,  In Disregarding Or Resisting It,  Were Right In

Itself? And Any Law,  Which Does Not,  In Such Trial,  Obtain The

Unanimous Sanction Of Twelve Men,  Taken At Random From The

People,  And Judging According To The Standard Of Justice In Their

Own Minds,  Free From All Dictation And Authority Of The

Government,  May Be Transgressed And Resisted With Impunity,  By

Whomsoever Pleases To Transgress Or Resist It.[3]

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The Trial By Jury Authorizes All This,  Or It Is A Sham And A Hoax,

Utterly Worthless For Protecting The People Against Oppression. If It

Do Not Authorize An Individual To Resist The First And Least Act Of

Injustice Or Tyranny,  On The Part Of The Government,  It Does Not

Authorize Him To Resist The Last And The Greatest. If It Do Not

Authorize Individuals To Nip Tyranny In The Bud,  It Does Not

Authorize Them To Cut It Down When Its Branches Are Filled With The

Ripe Fruits Of Plunder And Oppression.

 

Those Who Deny The Right Of A Jury To Protect An Individual In

Resisting An Unjust Law Of The Government,  Deny Him All Defence

Whatsoever Against Oppression. The Right Of Revolution,  Which

Tyrants,  In Mockery,  Accord To Mankind,  Is No Legal Right Under A

Government; It Is Only A Natural Right To Overturn A Government.

The Government Itself Never Acknowledges This Right. And The Right

Is Practically Established Only When And Because The Government,

No Longer Exists To Call It In Question. The Right,  Therefore,  Can Be

Exercised With Impunity,  Only When It Is Exercised Victoriously. All

Unsuccessful Attempts At Revolution,  However Justifiable In

Themselves,  Are Punished As Treason,  If The Government Be

Permitted To Judge Of The Treason. The Government Itself Never

Admits The Injustice Of Its Laws,  As A Legal Defence For Those Who

Have Attempted A Revolution,  And Failed. The Right Of Revolution,

Therefore,  Is  Right Of No Practical Value,  Except For Those Who Are

Stronger Than The Government. So Long,  Therefore,  As The

Oppressions Of A Government Are Kept Within Such Limits As Simply

Not To Exasperate Against It A Power Greater Than Its Own,  The Right

Of Revolution Cannot Be Appealed To,  And Is Therefore Inapplicable

To The Case. This Affords A Wide Field For Tyranny; And,  If A Jury

Cannot Here Intervene,  The Oppressed Are Utterly Defenceless.

 

It Is Manifest That The Only Security Against The Tyranny Of The

Government Lies In Forcible Resistance To The Execution Of The

Injustice; Because The Injustice Will Certainly Be Executed,  Unless It

Be Forcibly Resisted. And If It Be But Suffered To Be Executed,  It

Must Then Be Borne; For The Government Never Makes

Compensation For Its Own Wrongs.

 

Since,  Then,  This Forcible Resistance To The Injustice Of The

Government Is The Only Possible Means Of Preserving Liberty,  It Is

Indispensable To All Legal Liberty That This Resistance Should Be

Legalized. It Is Perfectly Self-Evident That Where There Is No Legal

Right To Resist The Oppression Of The Government,  There Can Be No

Lgal Liberty. And Here It Is All-Important To Notice,  That,  Practically

Speaking,  There Can Be No Legal Right To Resist The Oppressions Of The

Government,  Unless There Be Some Legal Tribunal,  Other Than The

Government,  And Wholly Independent Of,  And Above,  The

Government,  To Judge Between The Government And Those Who

Resist Its Oppressions; In Other Words,  To Judge What Laws Of The

Government Are To Be Obeyed,  And What May Be Resisted And Held

For Nought. The Only Tribunal Known To Our Laws,  For This Purpose,

Is A Jury. If A Jury Have Not The Right To Judge Between The

Government And Those Who Disobey Its Laws,  And Resist Its

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Oppressions,  The Government Is Absolute,  And The People,  Legally

Speaking Are Slaves. Like Many Other Slaves They May Have

Sufficient Courage And Strength To Keep Their Masters Somewhat In

Check; But They Are Nevertheless Known To The Law Only As Slaves.

 

That This Right Of Resistance Was Recognized As A Common Law

Right,  When The Ancient And Genuine Trial By Jury Was In Force,  Is

Not Only Proved By The Nature Of The Trial Itself,  But Is

Acknowledged By History. [4]

 

This Right Of Resistance Is Recognized By The Constitution Of The

United States,  As A Strictly Legal And Constitutional Right. It Is So

Recognized,  First By The Provision That "The Trial Of All Crimes,

Except In Cases Of Impeachment,  Shall Be By Jury"   That Is,  By The

Country   And Not By The Government; Secondly,  By The Provision

That "The Right Of The People To Keep And Bear Arms Shall Not Be

Infringed." This Constitutional Security For "The Right To Keep And

Bear Arms," Implies The Right To Use Them   As Much As A

Constitutional Security For The Right To Buy And Keep Food Would

Have Implied The Right To Eat It. The Constitution,  Therefore,  Takes It

For Granted That

 

The People Will Judge Of The Conduct Of The Government,  And That,

As They Have The Right,  They Will Also Have The Sense,  To Use Arms,

Whenever The Necessity Of The Case Justifies It. And It Is A Sufficient

And Legal Defence For A Person Accused Of Using Arms Against The

Government,  If He Can Show,  To The Satisfaction Of A Jury,  Or Even

Any One Of A Jury,  That The Law He Resisted Was An Unjust One.

 

In The American State Constitutions Also,  This Right Of Resistance To

The Oppressions Of The Government Is Recognized,  In Various Ways,

As A Natural,  Legal,  And Constitutional Right. In The First Place,  It Is

So Recognized By Provisions Establishing The Trial By Jury; Thus

Requiring That Accused Persons Shall Be Tried By "The Country,"

Instead Of The Government. In The Second Place,  It Is Recognized By

Many Of Them,  As,  For Example,  Those Of Massachusetts,  Maine,

Vermont,  Connecticut,  Pennsylvania,  Ohio,  Indiana,  Michigan,

Kentucky,  Tennessee,  Arkansas,  Mississippi,  Alabama,  And

Florida,  By Provisions Expressly Declaring That The People Shall

Have The Right To Bear Arms. In Many Of Them Also,  As,  For Example,

Those Of Maine,  New Hampshire,  Vermont,  Massachusetts,  New

Jersey,  Pennsylvania,  Delaware,  Ohio,  Indiana,  Illinois,  Florida,

Iowa,  And Arkansas,  By Provisions,  In Their Bills Of Rights,  Declaring

That Men Have A Natural,  Inherent,  And Inalienable Right Of

"Defending Their Lives And Liberties." This,  Of Course,  Means That

They Have A Right To Defend Them Against Any Injustice On The Part

Of The Government,  And Not Merely On The Part Of Private

Individuals; Because The Object Of All Bills Of Rights Is To Assert The

Rights Of Individuals And The People,  As Against The Government,

And Not As Against Private Persons. It Would Be A Matter Of

Ridiculous Supererogation To Assert,  In A Constitution Of

Government,  The Natural Right Of Men To Defend Their Lives And

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