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

Intuitively. If,  In addition To This,  The

Court Be Uniformly On The Side Of Justice,  It Is Not A Reasonable

Supposition That A Succession Of Juries Should Disagree About It.

If,  Therefore,  A Succession Of Juries Do Disagree On The Law Of

Any Case,  The Presumption Is,  Not That Justice Fails Of Being

Done,  But That Injustice Is Prevented   That Injustice,  Which

Would Be Done,  If The Opinion Of The Court Were Suffered to

Control The Jury.

 

For The Sake Of The Argument,  However,  It May Be Admitted to Be

Possible That Justice Should Sometimes Fail Of Being done Through

The Disagreements Of Jurors,  Notwithstanding all The Light Which

Judges And Lawyers Can Throw Upon The Question In issue. If It Be

Asked what Provision The Trial By Jury Makes For Such Cases,  The

Answer Is,  It Makes None; And Justice Must Fail Of Being done,

From The Want Of Its Being made Sufficiently Intelligible.

 

Under The Trial By Jury,  Justice Can Never Be Done   That Is,  By A

Judgment That Shall Take A Party'S Goods,  Rights,  Or Person 

Until That Justice Can Be Made Intelligible Or Perceptible To The

Minds Of All The Jurors; Or,  At Least,  Until It Obtain The

Voluntary Assent Of All   An Assent,  Which Ought Not To Be Given

Until The Justice Itself Shall Have Become Perceptible To All.

 

The Principles Of The Trial By Jury,  Then,  Are These:

 

1. That,  In criminal Cases,  The Accused is Presumed innocent.

 

2. That,  In civil Cases,  Possession Is Presumptive Proof Of

Property; Or,  In other Words,  Every Man Is Presumed to Be The

Rightful Proprietor Of Whatever He Has In his Possession.

 

3. That These Presumptions Shall Be Overcome,  In a Court Of

Justice,  Only By Evidence,  The Sufficiency Of Which,  And By Law,

The Justice Of Which,  Are Satisfactory To The Under- Standing and

Consciences Of All The Jurors.

 

These Are The Bases On Which The Trial By Jury Places The

Property,  Liberty,  And Rights Of Every Individual.

 

But Some One Will Say,  If These Are The Principles Of The Trial By

Jury,  Then It Is Plain That Justice Must Often Fail To Be Done.

Admitting,  For The Sake Of The Argument,  That This May Be True,

The Compensation For It Is,  That Positive Injustice Will Also

Often Fail To Be Done; Whereas Otherwise It Would Be Done

Frequently. The Very Precautions Used to Prevent Injustice Being

Done,  May Often Have The Effect To Prevent Justice Being done. Bu

Are We,  Therefore,  To Take No Precautions Against Injustice? By No

Means,  All Will Agree. The Question Then Arises   Does The Trial

Chapter 5 (Objections Answered) Pg 127

By Jury,  As Here Explained,  Involve Such Extreme And Unnecessary

Precautions Against Injustice,  As To Interpose Unnecessary

Obstacles To The Doing of Justice? Men Of Different Minds May Very

Likely Answer This Question Differently,  According as They Have

More Or Less Confidence In the Wisdom And Justice Of Legislators,

The Integrity And Independence Of Judges,  And The Intelligence Of

Jurors. This Much,  However,  May Be Said In favor Of These

Precautions,  Viz.,  That The History Of The Past,  As Well As Our

Constant Present Experience,  Prove How Much Injustice May,  And

Certainly Will,  Be Done,  Systematically And Continually,  For The

Want Of These Precautions   That Is,  While The Law Is Authoritatively

Made And Expounded by Legislators And Judges. On The Other Hand, 

We Have No Such Evidence Of How Much Justice May Fail To Be Done, 

By Reason Of These Precautions   That Is,  By Reason Of The Law Being

Left To The Judgments And Consciences Of Jurors. We Can Determine

The Former Point   That Is,  How Much Positive Injustice Is Done

Under The First Of These Two Systems Because The System Is In full

Operation; But We Cannot Determine How Much Justice Would

Fail To Be Done Under The Latter System,  Because We Have,  In

Modern Times,  Had No Experience Of The Use Of The Precautions

Themselves. In ancient Times,  When These Precautions Were

Nominally In force,  Such Was The Tyranny Of Kings,  And Such The

Poverty,  Ignorance,  And The Inability Of Concert And Resistance, 

On The Part Of The People,  That The System Had No Full Or Fair

Operation. It,  Nevertheless,  Under All These Disadvantages, 

Impressed itself Upon The Understandings,  And Imbedded itself

In The Hearts,  Of The People,  So As No Other System Of Civil Liberty

Has Ever Done.

 

But This View Of The Two Systems Compares Only The Injustice Done,

And The Justice Omitted to Be Done,  In the Individual Cases Adjudged, 

Without Looking beyond Them. And Some Persons Might,  On

First Thought,  Argue That,  If Justice Failed of Being done Under

The One System,  Oftener Than Positive Injustice Were Done Under

The Other,  The Balance Was In favor Of The Latter System. But Such

A Weighing of The Two Systems Against Each Other Gives No True

Idea Of Their Comparative Merits Or Demerits; For,  Possibly,  In

This View Alone,  The Balance Would Not Be Very Great In favor Of

Either. To Compare,  Or Rather To Contrast,  The Two,  We Must

Consider That,  Under The Jury System,  The Failures To Do Justice

Would Be Only Rare And Exceptional Cases; And Would Be Owing

Either To The Intrinsic Difficulty Of The Questions,  Or To The

Fact That The Parties Had. Transacted their Business In a Manner

Unintelligible To The Jury,  And The Effects Would Be Confined to

The Individual Or Individuals Interested in the Particular Suits.

No Permanent Law Would Be Established thereby Destructive Of The

Rights Of The People In other Like Cases. And The People At Large

Would Continue To Enjoy All Their Natural Rights As Before. But

Under The Other System,  Whenever An Unjust Law Is Enacted by The

Legislature,  And The Judge Imposes It Upon The Jury As

Authoritative,  And They Give A Judgment In accordance Therewith,

The Authority Of The Law Is Thereby Established,  And The Whole

People Are Thus Brought Under The Yoke Of That Law; Because They

Then Understand That The Law Will Be Enforced against Them In

Chapter 5 (Objections Answered) Pg 128

Future,  If They Presume To Exercise Their Rights,  Or Refuse To

Comply With The Exactions Of The Law. In this Manner All Unjust

Laws Are Established,  And Made Operative Against The Rights Of The

People.

 

The Difference,  Then,  Between The Two Systems Is This: Under The

One System,  A Jury,  At Distant Intervals,  Would (Not Enforce Any

Positive Injustice,  But Only) Fail Of Enforcing justice,  In a Dark

And Difficult Case,  Or In consequence Of The Parties Not Having

Transacted their Business In a Manner Intelligible To A Jury; And

The Plaintiff Would Thus Fail Of Obtaining what Was Rightfully Due

Him. And There The Matter Would End,  For Evil,  Though Not For

Good; For Thenceforth Parties,  Warned,  Of The Danger Of Losing

Their Rights,  Would Be Careful To Transact Their Business In a

More Clear And Intelligible Manner. Under The Other System   The

System Of Legislative And Judicial Authority   Positive Injustice

Is Not Only Done In every Suit Arising under Unjust Laws,   That

Is,  Men'S Property,  Liberty,  Or Lives Are Not Only Unjustly Taken

On Those Particular Judgments,   But The Rights Of The Whole People

Are Struck Down By The Authority Of The Laws Thus Enforced,  And A

Wide-Sweeping tyranny At Once Put In operation.

 

But There Is Another Ample And Conclusive Answer To The Argument

That Justice Would Often Fail To Be Done,  If Jurors Were Allowed

To Be Governed by Their Own Consciences,  Instead Of The Direction

Of The Justices,  In matters Of Law. That Answer Is This:

 

Legitimate Government Can Be Formed only By The Voluntary

Association Of All Who Contribute To Its Support. As A Voluntary

Association,  It Can Have For Its Objects Only Those Things In

Which The Members Of The Association Are All Agreed. If,

Therefore,  There Be Any Justice,  In regard To Which All The

Parties To The Government Are Not Agreed,  The Objects Of The

Association Do Not Extend To It. [3]

 

If Any Of The Members Wish More Than This,   If They Claim To Have

Acquired a More Extended knowledge Of Justice Than Is Common To

All,  And Wish To Have Their Pretended discoveries Carried into

Effect,  In reference To Themselves,    They Must Either Form A

Separate Association For That Purpose,  Or Be Content To Wait Until

They Can Make Their Views Intelligible To The People At Large.

They Cannot Claim Or Expect That The Whole People Shall Practise

The Folly Of Taking on Trust Their Pretended superior Knowledge,

And Of Committing blindly Into Their Hands All Their Own

Interests,  Liberties,  And Rights,  To Be Disposed of On Principles,

The Justness Of Which The People Themselves Cannot Comprehend.

 

A Government Of The Whole,  Therefore,  Must Necessarily Confine

Itself To The Administration Of Such Principles Of Law As All The

People,  Who Contribute To The Support Of The Government,  Can

Comprehend And See The Justice Of. And It Can Be Confined within

Those Limits Only By Allowing the Jurors,  Who Represent All The

Parties To The Compact,  To Judge Of The Law,  And The Justice Of

The Law,  In all Cases Whatsoever. And If Any Justice Be Left

Chapter 5 (Objections Answered) Pg 129

Undone,  Under These Circumstances,  It Is A Justice For Which The

Nature Of The Association Does Not Provide,  Which The Association

Does Not Undertake To Do,  And Which,  As An Association,  It Is

Under No Obligation To Do.

 

The People At Large,  The Unlearned and Common People,  Have

Certainly An Indisputable Right To Associate For The Establishment

And Maintenance Of Such A Government As They Themselves See The

Justice Of,  And Feel The Need of,  For The Promotion Of Their Own

Interests,  And The Safety Of Their Own Rights,  Without At The Same

Time Surrendering all Their Property,  Liberty,  And Rights Into The

Hands Of Men,  Who,  Under The Pretence Of A Superior And

Incomprehensible Knowledge Of Justice,  May Dispose Of Such

Property,  Liberties,  And Rights,  In a Manner To Suit Their Own

Selfish And Dishonest Purposes.

 

If A Government Were To Be Established and Supported solely By

That Portion Of The People Who Lay Claim To Superior Knowledge,

There Would Be Some Consistency In their Saying that The Common

People Should Not Be Received as Jurors,  With Power To Judge Of

The Justice Of The Laws. But So Long As The Whole People (Or All

The Male Adults) Are Presumed to Be Voluntary Parties To The

Government,  And Voluntary Contributors To It Support,  There Is No

Consistency In refusing to Any One Of Them More Than To Another

The Right To Sit As Juror,  With Full Power To Decide For Himself

Whether Any Law That Is Proposed to Be Enforced in any Particular

Case,  Be Within The