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

The Saxon Laws We May Reckon

* * The Election Of Their Magistrates By The People,  Originally Even

That Of Their Kings,  Till Dear-Bought  Experience Evinced the

Convenience And Necessity Of Establishing an Hereditary

Succession To The Crown. But That (The Election) Of All

Subordinate Magistrates,  Their Military Officers Or Heretochs,

Their Sheriffs,  Their Conservators Of The Peace,  Their Coroners,

Their Portreeves,  (Since Changed into Mayors And Bailiffs,) And

Even Their Tithing-Men And Borsholders At The Last,  Continued,

Some,  Till The Norman Conquest,  Others For Two Centuries After,

And Some Remain To This Day."   4 Blackstone,  418.

 

"The Election Of Sheriffs Was Left To The People,  According to

Ancient Usage."   St. West. 1,  C. 27.   Crabbe'S History Of

English Law,  181.

 

 

 

Chapter 5 (Objections Answered) Pg 124

 

The Following objections Will Be Made To The Doctrines And The

Evidence Presented in the Preceding chapters.

 

1. That It Is A Maxim Of The Law,  That The Judges Respond To The

Question Of Law,  And Juries Only To The Question Of Fact.

The Answer To This Objection Is,  That,  Since Magna Carta,  Judges

Have Had More Than Six Centuries In which To Invent And

Promulgate Pretended maxims To Suit Themselves; And This Is One

Of Them. Instead Of Expressing the Law,  It Expresses Nothing but The

Ambitious And Lawless Will Of The Judges Themselves,  And Of Those

Whose Instruments They Are.[1]

 

2. It Will Be Asked,  Of What Use Are The Justices,  If The Jurors

Judge Both Of Law And Fact?

 

The Answer Is,  That They Are Of Use,  1. To Assist And Enlighten

The Jurors,  If They Can,  By Their Advice And Information; Such

Advice And Information To Be Received only For What They May

Chance To Be Worth In the Estimation Of The Jurors.  2. To Do

Anything that May Be Necessary In regard,  To Granting appeals And

New Trials.

 

3. It Is Said That It Would Be Absurd That Twelve Ignorant Men

Should Have Power To Judge Of The Law,  While Justices Learned in

The Law Should Be Compelledto Sit By And See The Law Decided

Erroneously.

 

One Answer To This Objection Is,  That The Powers Of Juries Are Not

Granted to Them On The Supposition That They Know The Law Better

Than The Justices; But On The Ground That The Justices Are

Untrustworthy,  That They Are Exposed to Bribes,  Are Themselves

Fond Of Power And Authority,  And Are Also The Dependent And

Subservient Creatures Of The Legislature; And That To Allow Them

To Dictate The Law,  Would Not Only Expose The Rights Of Parties To

Be Sold For Money,  But Would Be Equivalent To Surrendering all The

Property,  Liberty,  And Rights Of The People,  Unreservedly Into The

Hands Of Arbitrary Power,  (The Legislature,) To Be Disposed of At

Its Pleasure. The Powers Of Juries,  Therefore,  Not Only Place A

Curb Upon The Powers Of Legislators And Judges,  But Imply Also An

Imputation Upon Their Integrity And Trustworthiness: And These Are

The Reasons Why Legislators And Judges Have Formerly Entertained

The Intensest Hatred of Juries,  And,  So Fast As They Could Do It

Without Alarming the People For Their Liberties,  Have,  By

Indirection,  Denied,  Undermined,  And Practically Destroyed their

Power. And It Is Only Since All The Real Power Of Juries Has Been

Destroyed,  And They Have Become Mere Tools In the Hands Of

Chapter 5 (Objections Answered) Pg 125

Legislators And Judges,  That They Have Become Favorites With Them.

 

Legislators And Judges Are Necessarily Exposed to All The

Temptations Of Money,  Fame,  And Power,  To Induce Them To

Disregard Justice Between Parties,  And Sell The Rights,  And Violate The

Liberties Of The People. Jurors,  On The Other Hand,  Are Exposed to

None Of These Temptations. They Are Not Liable To Bribery,  For

They Are Unknown To The Parties Until They Come Into The Jury-Box.

They Can Rarely Gain Either Fame,  Power,  Or Money,  By Giving

Erroneous Decisions. Their Offices Are Temporary,  And They Know

That When They Shall Have Executed them,  They Must Return To The

People,  To Hold All Their Own Rights In life Subject To The

Liability Of Such Judgments,  By Their Successors,  As They

Themselves Have Given An Example For. The Laws Of Human Nature

Do Not Permit The Supposition That Twelve Men,  Taken By Lot From The

Mass Of The People,  And Acting under Such Circumstances,  Will All

Prove Dishonest. It Is A Supposable Case That They May Not Be

Sufficiently Enlightened to Know And Do Their Whole Duty,  In all

Cases Whatsoever; But That They Should All Prove Dishonest,  Is Not

Within The Range Of Probability. A Jury,  Therefore,  Insures To Us  

What No Other Court Does   That First And Indispensable Requisite

In A Judicial Tribunal,  Integrity.

 

4. It Is Alleged that If Juries Are Allowed to Judge Of The Law,

They Decide The Law Absolutely; That Their Decision Must

Necessarily Stand,  Be It Right Or Wrong; And That This Power Of

Absolute Decision Would Be Dangerous In their Hands,  By Reason Of

Their Ignorance Of The Law.

 

One Answer Is,  That This Power,  Which Juries Have Of Judging of

The Law,  Is Not A Power Of Absolute Decision In all Cases.  For

Example,  It Is A Power To Declare Imperatively That A Man'S

Property,  Liberty,  Or Life,  Shall Not Be Taken From Him; But It Is

Not A Power To Declare Imperatively That They Shall Be Taken From

Him.

 

Magna Carta Does Not Provide That The Judgments Of The Peers Shall

Be Executed; But Only That No Other Than Their Judgments Shall

Ever Be Executed,  So Far As To Take A Party'S Goods,  Rights,  Or

Person,  Thereon.

 

A Judgment Of The Peers May Be Reviewed,  And Invalidated,  And A

New Trial Granted. So That Practically A Jury Has No Absolute

Power To Take A Party'S Goods,  Rights,  Or Person. They Have Only

An Absolute Veto Upon Their Being taken By The Government. The

Government Is Not Bound To Do Everything that A Jury May Adjudge.

It Is Only Prohibited from Doing anything   (That Is,  From Taking

A Party'S Goods,  Rights,  Or Person)   Unless A Jury Have First

Adjudged it To Be Done.

 

But It Will,  Perhaps,  Be Said,  That If An Erroneous Judgment Of

One Jury Should Be Reaffirmed by Another,  On A New Trial,  It Must

Then Be Executed. But Magna Carta Does Not Command Even This 

Although It Might,  Perhaps,  Have Been Reasonably Safe For It To

Chapter 5 (Objections Answered) Pg 126

Have Done So   For If Two Juries Unanimously Affirm The Same

Thing,  After All The Light And Aid That Judges And Lawyers Can

Afford Them,  That Fact Probably Furnishes As Strong A Presumption

In Favor Of The Correctness Of Their Opinion,  As Can Ordinarily Be

Obtained in favor Of A Judgment,  By Any Measures Of A Practical

Character For The Administration Of Justice. Still,  There Is

Nothing in magna Carta That Compels The Execution Of Even A

Second Judgment Of A Jury. The Only Injunction Of Magna Carta

Upon The Government,  As To What It Shall Do,  On This Point,  Is That It

Shall "Do Justice And Right," Without Sale,  Denial,  Or Delay. But

This Leaves The Government All Power Of Determining what Is

Justice And Right,  Except That It Shall Not Consider Anything as

Justice And Right   So Far As To Carry It Into Execution Against

The Goods,  Rights,  Or Person Of A Party   Unless It Be Something

Which A Jury Have Sanctioned.

 

If The Government Had No Alternative But To Execute All Judgments

Of A Jury Indiscriminately,  The Power Of Juries Would

Unquestionably Be Dangerous; For There Is No Doubt That They May

Sometimes Give Hasty And Erroneous Judgments. But When It Is

Considered that Their Judgments Can Be Reviewed,  And New Trials

Granted,  This Danger Is,  For All Practical Purposes,  Obviated.

 

If It Be Said That Juries May Successively Give Erroneous

Judgments,  And That New Trials Cannot Be Granted indefinitely,  The

Answer Is,  That So Far As Magna Carta Is Concerned,  There Is

Nothing to Prevent The Granting of New Trials Indefinitely,  If The

Judgments Of Juries Are Contrary To "Justice And Right." So That

Magna Carta Does Not Require Any Judgment Whatever To Be

Executed so Far As To Take A Party'S Goods,  Rights,  Or Person,  Thereon 

Unless It Be Concurred in by Both Court And Jury.

 

Nevertheless,  We May,  For The Sake Of The Argument,  Suppose The

Existence Of A Practical,  If Not Legal,  Necessity,  For Executing

Some Judgment Or Other,  In cases Where Juries Persist In

Disagreeing with The Courts. In such Cases,  The Principle Of Magna

Carta Unquestionably Is,  That The Uniform Judgments Of

Successivejuries Shall Prevail Over The Opinion Of The Court. And

The Reason Of This Principle Is Obvious,  Viz.,  That It Is The Will Of The

Country,  And Not The Will Of The Court,  Or The Government,  That

Must Determine What Laws Shall Be Established and Enforced; That

The Concurrent Judgments Of Successive Juries,  Given In opposition

To All The Reasoning which Judges And Lawyers Can Offer To The

Contrary,  Must Necessarily Be Presumed to Be A Truer Exposition Of

The Will Of The Country,  Than Are The Opinions Of The Judges.

 

But It May Be Said That,  Unless Jurors Submit To The Control Of

The Court,  In matters Of Law,  They May Disagree Amongthemselves,

And Never Come To Any Judgment; And Thus Justice Fail To Be Done.

 

Such A Case Is Perhaps Possible; But,  If Possible,  It Can Occur

But Rarely; Because,  Although One Jury May Disagree,  A Succession

Of Juries Are Not Likely To Disagree   That Is,  On Matters Of

Chapter 5 (Objections Answered) Pg 127

Natural Law,  Or Abstract Justice. [2] If Such A Thing should

Occur,  It Would Almost Certainly Be Owing to The Attempt Of The

Court To Mislead Them. It Is Hardly Possible That Any Other Cause

Should Be Adequate To Produce Such An Effect; Because Justice

Comes Very Near To Being a Self-Evident Principle. The Mind

Perceives It Almost