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

Chapter 5 (Objections Answered) Pg 136

Opinions In regard To It,  I May Add The Following:

 

"There Is That Great Simplicity And Plainness In the Common Law,

That Lord Coke Has Gone So Far As To Assert,  (And Lord Bacon

Nearly Seconds Him In observing,) That  'He Never Knew Two

Questions Arise Merely Upon Common Law; But That They Were

Mostly Owing to Statutes Ill-Penned and Overladen With Provisos.' "  

3 Eunomus,  157   8.

 

If It Still Be Said That Juries Would Disagree,  As To What Was

Natural Justice,  And That One Jury Would Decide One Way,  And

Another Jury Another; The Answer Is,  That Such A Thing is Hardly

Credible,  As That Twelve Men,  Taken At Random From The People At

Large,  Should Unanimously Decide A Question Of Natural Justice One

Way,  And That Twelve Other Men,  Selected in the Same Manner,

Should Unanimously Decide The Same Question The Other Way,

Unless They Were Misled by The Justices. If,  However,  Such Things

Should Sometimes Happen,  From Any Cause Whatever,  The Remedy

Is By Appeal,  And New Trial.

 

[1] Judges Do Not Even Live Up To That Part Of Their Own Maxim,

Which Requires Jurors To Try The Matter Of Fact. By Dictating to

Them The Laws Of Evidence,    That Is,  By Dictating what Evidence

They May Hear,  And What They May Not Hear,  And Also By Dictating

To Them Rules For Weighing such Evidence As They Permit Them To

Hear,    They Of Necessity Dictate The Conclusion To Which They

Shall Arrive. And Thus The Court Really Tries The Question Of

Fact,  As Well As The Question Of Law,  In every Cause. It Is

Clearly Impossible,  In the Nature Of Things,  For A Jury To Try,  A

Question Of Fact,  Without Trying every Question Of Law On Which

The Fact Depends.

 

[2] Most Disagreements Of Juries Are On Matters Of Fact,  Which Are

Admitted to Be Within Their Province. We Have Little Or No

Evidence Of Their Disagreements On Matters Of Natural Justice. The

Disagreements Of Courts On Matters Of Law,  Afford Little Or No

Evidence That Juries Would Also Disagree On Matters Of Law   That

Is,  Of Justice,  Because The Disagreements Of Courts Are Generally

On Matters Of Legislation,  And Not On Those Principles Of Abstract

Justice,  By Which Juries Would Be Governed,  And In regard To Which

The Minds Of Men Are Nearly Unanimous.

 

[3] This Is The Principle Of All Voluntary Associations

Whatsoever. No Voluntary Association Was Ever Formed,  And In the

Nature Of Things There Never Can Be One Formed,  For The

Accomplishment Of Any Objects Except Those In which All The

Parties To The Association Are Agreed. Government,  Therefore,  Must

Be Kept Within These Limits,  Or It Is No Longer A Voluntary

Association Of All Who Contribute To Its Support,  But A Mere

Tyrant Established by A Part Over The Rest.

 

All,  Or Nearly All,  Voluntary Associations Give To A Majority,  Or

To Some Other Portion Of The Members Less Than The Whole,  The

Right To Use Some Limited discretion As To Themeans To Be Used to

Chapter 5 (Objections Answered) Pg 137

Accomplish The Ends In view; But The End Themselves To Be

Accomplished are Always Precisely Defined,  And Are Such As Every

Member Necessarily Agrees To,  Else He Would Not Voluntarily Join

The Association.

 

Justice Is The Object Of Government,  And Those Who Support The

Government,  Must Be Agreed as To The Justice To Be Executed by It,

Or They Cannot Rightfully Unite In maintaining the Government

Itself.

 

[4] Jones On Bailments,

 

[5] Kent,  Describing the Difficulty Of Construing the Written Law,

Says:

 

"Such Is The Imperfection Of Language,  And The Want Of Technical

Skill In the Makers Of The Law,  That Statutes Often Give Occasion

To The Most Perplexing and Distressing doubts And Discussions,

Arising from The Ambiguity That Attends Them. It Requires Great

Experience,  As Well As The Command Of A Perspicuous Diction,  To

Frame A Law In such Clear And Precise Terms,  As To Secure It From

Ambiguous Expressions,  And From All Doubts And Criticisms Upon Its

Meaning "   Kent,  460.

 

The Following extract From A Speech Of Lord Brougham,  In the

House Of Lords,  Confesses The Same Difficulty:

 

There Was Another Subject,  Well Worthy Of The Consideration Of

Government During the Recess,  The Expediency,  Or Rather The

Absolute Necessity,  Of Some Arrangement For The Preparation Of

Bills,  Not Merely Private,  But Public Bills,  In order That

Legislation Might Be Consistent And Systematic,  And That The

Courts Might Not Have So Large A Portion Of Their Time Occupied in

Endeavoring to Construe Acts Of Parliament,  In many Cases

Unconstruable,  And In most Cases Difficult To Be Construed."   Law

Reporter,  1848,  P. 525.

 

[6] This Condemnation Of Written Laws Must,  Of Course,  Be

Understood As Applying only To Cases Where Principles And Rights

Are Involved,  And Not As Condemning any Governmental

Arrangements,  Or Instrumentalities,  That Are Consistent With Natural

Right,  And Which Must Be Agreed upon For The Purpose Of Carrying

Natural Law Into Effect. These Things May Be Varied,  As Expediency

May Dictate,  So Only That They Be Allowed to Infringe No Principle Of

Justice. And They Must,  Of Course,  Be Written,  Because They Do Not

Exist As Fixed principles,  Or Laws In nature.

 

 

Chapter 6 (Juries Of The Present Day Illegal) Pg 138

It May Probably Be Safely Asserted that There Are,  At This Day,

No Legal Juries,  Either In england Or America. And If There Are

No Legal Juries,  There Is,  Of Course,  No Legal Trial,  Nor

"Judgment," By Jury.

 

In Saying that There Are Probably No Legal Juries,  I Mean That

There Are Probably No Juries Appointed in conformity With The

Principles Of The Common Law.

 

The Term Jury Is A Technical One,  Derived from The Common Law;

And When The American Constitutions Provide For The Trial By

Jury,  They Provide For The Common Law Trial By Jury; And Not

Merely For Any Trial By Jury That The Government Itself May

Chance To Invent,  And Call By That Name. It Is The Thing,  And Not

Merely The Name,  That Is Guarantied. Any Legislation,  Therefore,

That Infringes Any Essential Principle Of The Common Law,  In the

Selection Of Jurors,  Is Unconstitutional; And The Juries Selected

In Accordance With Such Legislation Are,  Of Course,  Illegal,  And

Their Judgments Void.

 

It Will Also Be Shown,  In a Subsequent Chapter,  [1] That Since

Magna Carta,  The Legislative Power In england (Whether King or

Parliament) Has Never Had Any Constitutional Authority To

Infringe,  By Legislation,  Any Essential Principle Of The Common

Law In the Selection Of Jurors. All Such Legislation Is As Much

Unconstitutional And Void,  As Though It Abolished the Trial By

Jury Altogether. In reality It Does Abolish It.

 

What,  Then,  Are The Essential Principles Of The Common Law,

Controlling the Selection Of Jurors?

 

They Are Two.

 

1. That All The Freemen,  Or Adult Male Members Of The State,

Shall Be Eligible As Jurors. [2]

 

Any Legislation Which Requires The Selection Of Jurors To Be Made

From A Less Number Of Freemen Than The Whole,  Makes The Jury

Selected an Illegal One.

 

If A Part Only Of The Freemen,  Or Members Of The State,  Are

Eligible As Jurors,  The Jury No Longer Represent "The Country,"

But Only A Part Of "The Country."

 

If The Selection Of Jurors Can Be Restricted to Any Less Number

Chapter 6 (Juries Of The Present Day Illegal) Pg 139

Of Freemen Than The Whole,  It Can Be Restricted to A Very Small

Proportion Of The Whole; And Thus The Government Be Taken Out Of

The Hands Of " The Country," Or The Whole People,  And Be Thrown

Into The Hands Of A Few.

 

That,  At Common Law,  The Whole Body Of Freemen Were Eligible As

Jurors,  Is Sufficiently Proved,  Not Only By The Reason Of The

Thing,  But By The Following evidence:

 

1. Everybody Must Be Presumed eligible,  Until The Contrary

Be Shown. We Have No Evidence,  That I Am Aware Of,  Of A

Prior Date To Magna Carta,  To Disprove That All Freemen Were

Eligible As Jurors,  Unless It Be The Law Of Ethelred,  Which

Requires That They Be Elderly [3] Men. Since No Specific Age

Is Given,  It Is Probable,  I Think,  That This Statute Meant

Nothing more Than That They Be More Than Twenty-One Years

Old. If It Meant Anything more,  It Was Probably Contrary To

The Common Law,  And Therefore Void.

 

2. Since Magna Carta,  We Have Evidence Showing quite

Conclusively That All Freemen,  Above The Age Of Twenty-One

Years,  Were Eligible As Jurors.

 

The Mirror Of Justices,  (Written Within A Century After

Magna Carta,) In the Section " Of Judges"   That Is,  Jurors 

Says:

 

"All Those Who Are Not Forbidden By Law May Be Judges

(Jurors).

 

To Women It Is Forbidden By Law That They Be Judges; And Thence It

Is,  That Feme Coverts Are Exempted to Do Suit In inferior Courts.

On The Other Part,  A Villein Cannot Be A Judge,  By Reason Of The

Two Estates,  Which Are Repugnants; Persons Attainted of False

Judgments Cannot Be Judges,  Nor Infants,  Nor Any Under The Age Of

Twenty-One Years,  Nor Infected persons,  Nor Idiots,  Nor Madmen,

Nor Deaf,  Nor Dumb,  Nor Parties In the Pleas,  Nor Men

Excommunicated by The Bishop,  Nor Criminal Persons. * * And

Those Who Are Not Of The Christian Faith Cannot Be Judges,  Nor Those

Who Are Out Of The King'S Allegiance."   Mirror Of Justices,  59   60.

 

In The Section " Of Inferior Courts," It Is Said:

 

"From The First Assemblies Came Consistories,  Which We Now Call

Courts,  And That In divers Places,  And In divers Manners: Whereof

The Sheriffs Held One Monthly,  Or Every Five Weeks According to

The Greatness Or Largeness Of The Shires. And These Courts Are

Called county Courts,  Where The Judgment Is By The Suitors,  If

There Be No Writ,  And Is By Warrant Of Jurisdiction Ordinary. The

Other Inferior Courts Are The Courts Of Every Lord Of The Fee,  To

The Likeness Of The Hundred courts. There Are Other Inferior

Courts Which The Bailiffs Hold In every Hundred,  From Three Weeks

To Three Weeks,  By The Suitors Of The Freeholders Of The Hundred.

All The Tenants Within The Fees Are Bounden To Do Their Sui