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

The Magistrates Themselves,  Before Whom He Was To

Be Tried,  Is Preposterous; For That Would Be Equivalent To Supposing

That Magistrates Acted In The Triple Character Of Judge,  Jury And

Witnesses,  In The Same Trial; And That,  Therefore,  In Such Case,

They Needed To Be Prohibited From Condemning A Man On Their Own

Accusation Or Testimony Alone. But Such A Provision Would Have

Been Unnecessary And Senseless,  For Two Reasons; First,  Because

The Bailiffs Or Magistrates Had No Power To "Hold Pleas Of The

Crown," Still Less To Try Or Condemn A Man; That Power Resting

Wholly With The Juries; Second,  Because If Bailiffs Or

Magistrates Could Try And Condemn A Man,  Without A Jury,  The

Prohibition Upon Their Doing So Upon Their Own Accusation Or

Testimony Alone,  Would Give No Additional Protection To The

Accused,  So Long As These Same Bailiffs Or Magistrates Were

Allowed To Decide What Weight Should Be Given,  Both To Their Own

Testimony And That Of Other Witnesses,  For,  If They Wished To

Convict,  They Would Of Course Decide That Any Testimony,  However

Frivolous Or Irrelevant,  In Addition To Their Own,  Was Sufficient.

Certainly A Magistrate Could Always Procure Witnesses

Enough To Testify To Something Or Other,  Which He Himself Could

Decide To Be Corroborative Of His Own Testimony. And Thus The

Prohibition Would Be Defeated In Fact,  Though Observed In Form.

 

[11] At The Common Law,  Parties,  In Both Civil And Criminal

Cases,  Were Allowed To Swear In Their Own Behalf; And It Will Be

So Again,  If The True Trial By Jury Should Be Reestablished.

 

[12] In This Chapter I Have Called The Justices "Presiding

Officers," Solely For The Want Of A Better Term. They Are Not

"Presiding Officers," In The Sense Of Having Any Authority Over

The Jury; But Are Only Assistants To,  And Teachers And Servants

Of,  The Jury. The Foreman Of The Jury Is Properly The "Presiding

Officer," So Far As There Is Such An Officer At All. The Sheriff

Has No Authority Except Over Other Persons Than The Jury.

 

 

 

 

Chapter 8 (The Free Administration Of Justice) Pg 146

The  Free Administration Of Justice Was A Principle Of The Common

Law; And It Must Necessarily Be A Part Of Every System Of

Government Which Is Not Designed To Be An Engine In The Hands Of

The Rich For The Oppression Of The Poor.

 

In Saying That The Free Administration Of Justice Was A Principle

Of The Common Law,  I Mean Only That Parties Were Subjected To No

Costs For Jurors,  Witnesses,  Writs,  Or Other Necessaries For The

Trial,  Preliminary To The Trial Itself. Consequently,  No One

Could Lose The Benefit Of A Trial,  For The Want Of Means To

Defray Expenses. But After The Trial,  The Plaintiff Or Defendant

Was Liable To Be Amerced,  (By The Jury,  Of Course,) For Having

Troubled The Court With The Prosecution Or Defence Of An Unjust

Suit.

 

[1] But It Is Not Likely That The Losing Party Was Subjected To

An Amercement As A Matter Of Course,  But Only In Those Cases

Where The Injustice Of His Cause Was So Evident As To Make Him

Inexcusable In Bringing It Before The Courts.

 

All The Freeholders Were Required To Attend The Courts,  That They

Might Serve As Jurors And Witnesses,  And Do Any Other Service

That Could Legally Be Required Of Them; And Their Attendance Was

Paid For By The State. In Other Words,  Their Attendance And

Service At The Courts Were Part Of The Rents Which They Paid The

State For Their Lands.

 

The Freeholders,  Who Were Thus Required Always To Attendthe

Courts,  Were Doubtless The Only Witnesses Who Were Usually

Required In Civil Causes. This Was Owing To The Fact That,  In

Those Days,  When The People At Large Could Neither Write Nor

Read,  Few Contracts Were Put In Writing. The Expedient Adopted

For Proving Contracts,  Was That Of Making Them In The Presence Of

Witnesses,  Who Could Afterwards Testify To The Transactions. Most

Contracts In Regard To Lands Were Made At The Courts,  In The

Presence Of The Freeholders There Assembled. [2]

 

In The King's Courts It Was Specially Provided By Magna Carta

That "Justice And Right" Should Not Be "Sold;" That Is,  That The

King Should Take Nothing From The Parties For Administering

Justice.

 

The Oath Of A Party To The Justice Of His Cause Was All That Was

Necessary To Entitle Him To The Benefit Of The Courts Free Of All

Expense; (Except The Risk Of Being Amerced After The Trial,  In

Case The Jury Should Think He Deserved It. [3])

 

This Principle Of The Free Administration Of Justice Connects

Itself Necessarily With The Trial By Jury,  Because A Jury Could

Not Rightfully Give Judgment Against Any Man,  In Either A Civil

Or Criminal Case,  If They Had Any Reason To Suppose He Had Been

Unable To Procure His Witnesses.

 

The True Trial By Jury Would Also Compel The Free Administration

Of Justice From Another Necessity,  Viz.,  That Of Preventing

Private Quarrels; Because,  Unless The Government Enforced A Man's

Rights And Redressed His Wrongs,  Free Of Expense To Him,  A Jury

Would Be Bound To Protect Him In Taking The Law Into His Own

Hands. A Man Has A Natural Right To Enforce His Own Rights And

Redress His Own Wrongs. If One Man Owe Another A Debt,  And Refuse

To Pay It,  The Creditor Has A Natural Right To Seize Sufficient

Property Of The Debtor,  Wherever He Can Find It,  To Satisfy The

Debt. If One Man Commit A Trespass Upon The Person,  Property Or

Character Of Another,  The Injured Party Has A Natural Right,

Chapter 8 (The Free Administration Of Justice) Pg 147

Either To Chastise The Aggressor,  Or To Take Compensation For The

Injury Out Of His Property. But As The Government Is An Impartial

Party As Between These Individuals,  It Is More Likely To Do

Exactjustice Between Them Than The Injured Individual Himself Would

Do. The Government,  Also,  Having More Power At Its Command,  Is

Likely To Right A Man's Wrongs More Peacefully Than The Injured

Party Himself Could Do It. If,  Therefore,  The Government Will Do

The Work Of Enforcing A Man's Rights,  And Redressing His Wrongs,

Promptly,  And Free Of Expense To Him,  He Is Under A Moral

Obligation To Leave The Work In The Hands Of The Government; But

Not Otherwise. When The Government Forbids Him To Enforce His

Own Rights Or Redress His Own Wrongs,  And Deprives Him Of All Means

Of Obtaining Justice,  Except On The Condition Of His Employing

The Government To Obtain It For Him,  And Of Paying The Government

For Doing It,  The Government Becomes Itself The Protector And

Accomplice Of The Wrong-Doer. If The Government Will Forbid A Man

To Protect His Own Rights,  It Is Bound,  To Do It For Him,  Free Of

Expense To Him. And So Long As Government Refuses To Do This,

Juries,  If Hey Knew Their Duties,  Would Protect A Man In

Defending His Own Rights.

 

Under The Prevailing System,  Probably One Half Of The Community

Are Virtually Deprived Of All Protection For Their Rights,  Except

What The Criminal Law Affords Them. Courts Of Justice,  For All

Civil Suits,  Are As Effectually Shut Against Them,  As Though It

Were Done By Bolts And Bars. Being Forbidden To Maintain Their

Own Rights By Force,    As,  For Instance,  To Compel The Payment Of

Debts,   And Being Unable To Pay The Expenses Of Civil Suits,

They Have No Alternative But Submission To Many Acts Of

Injustice,  Against Which The Government Is Bound Either To

Protect Them,  Free Of Expense,  Or Allow Them To Protect

Themselves.

 

There Would Be The Same Reason In Compelling A Party To Pay The

Judge And Jury For Their Services,  That There Is In Compelling

Him To Pay The Witnesses,  Or Any Other Necessary Charges. [4]

 

This Compelling Parties To Pay The Expenses Of Civil Suits Is One

Of The Many Cases In Which Government Is False To The Fundamental

Principles On Which Free Government Is Based. What Is The Object

Of Government,  But To Protect Men's Rights? On What Principle

Does A Man Pay His Taxes To The Government,  Except On That Of

Contributing His Proportion Towards The Necessary Cost Of

Protecting The Rights Of All? Yet,  When His Own Rights Are

Actually Invaded,  The Government,  Which He Contributes To

Support,  Instead Of Fulfilling Its Implied Contract,  Becomes His

Enemy,  And Not Only Refuses To Protect His Rights,  (Except At His

Own Cost,) But Even Forbids Him To Do It Himself.

 

All Free Government Is Founded On The Theory Of Voluntary

Association; And On The Theory That All The Parties To It

Voluntarily Pay Their Taxes For Its Support,  On The Condition Of

Receiving Protection In Return. But The Idea That Any Poor Man

Would Voluntarily Pay Taxes To Build Up A Government,  Which Will

Chapter 8 (The Free Administration Of Justice) Pg 148

Neither Protect His Rights,  (Except At A Cost Which He Cannot

Meet,) Nor Suffer Himself To Protect Them By Such Means As May Be

In His Power,  Is Absurd.

 

Under The Prevailing System,  A Large Portion Of The Lawsuits

Determined In Courts,  Are Mere Contests Of Purses Rather Than Of

Rights. And A Jury,  Sworn To Decide Causes "According To The

Evidence" Produced,  Are Quite Likely,  For Aught They Themselves

Can Know,  To Be Deciding Merely The Comparative Length Of The

Parties' Purses,  Rather Than The Intrinsic Strength Of Their

Respective Rights. Jurors Ought To Refuse To Decide A Cause At

All,  Except Upon The Assurance That All The Evidence,  Necessary

To A Full Knowledge Of The Cause,  Is Produced. This Assurance

They Can Seldom Have,  Unless The Government Itself Produces All

The Witnesses The Parties Desire.

 

In Criminal Cases,  The Atrocity Of Accusing A Man Of Crime,  And

Then Condemning Him Unless He Prove His Innocence At His Own

Charges,  Is So Evident That A Jury Could Rarely,  If Ever,  Be

Justified In Convicting A Man Under Such Circumstances.

 

But The Free Administration Of Justice Is Not Only Indispensable

To The Maintenance Of Right Between Man And Man; It Would Also

Promote Simplicity And Stability In The Laws. The Mania For

Legislation Would Be,  In An Important Degree,  Restrained,  If The

Government Were Compelled To Pay The Expenses Of All The Suits

That Grew Out Of It.

 

The Free Administration Of Justice Would Diminish And Nearly

Extinguish Another Great Evil,    That Of Malicious Civil Suits It

Is An Old Saying,  That "Multi Litigant In Foro,  Non Ut Aliquid

Lucentur,  Sed Ut Vexant Alios." (Many Litigate In Court,  Not That

They May Gain Anything,  But That They May Harass Others.) Many

Men,  From Motives Of Revenge And Oppression,  Are Willing To Spend

Their Own Money In Prosecuting A Groundless Suit,  If They