An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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Thereby Compel Their Victims, Who Are Less Able Than Themselves
To Bear The Loss, To Spend Money In The Defence. Under The
Prevailing System, In Which The Parties Pay The Expenses Of Their
Suits, Nothing But Money Is Necessary To Enable Any Malicious Man
To Commence And Prosecute A Groundless Suit, To The Terror,
Injury, And Perhaps Ruin, Of Another Man. In This Way, A Court Of
Justice, Into Which None But A Conscientious Plaintiff Certainly
Should Ever Be Allowed To Enter, Becomes An Arena Into Which Any
Rich And Revengeful Oppressor May Drag Any Man Poorer Than
Himself, And Harass, Terrify, And Impoverish Him, To Almost Any
Extent. It Is A Scandal And An Outrage, That Government Should
Suffer Itself To Be Made An Instrument, In This Way, For The
Gratification Of Private Malice. We Might Nearly As Well Have No
Courts Of Justice, As To Throw Them Open, As We Do, For Such
Flagitious Uses. Yet The Evil Probably Admits Of No Remedy Except
A Free Administration Of Justice. Under A Free System, Plaintiffs
Could Rarely Be Influenced By Motives Of This Kind; Because They
Could Put Their Victim To Little Or No Expense, Neither Pending
The Suit, (Which It Is The Object Of The Oppressor To Do,) Nor At
Chapter 8 (The Free Administration Of Justice) Pg 149Its Termination. Besides, If The Ancient Common Law Practice
Should Be Adopted, Of Amercing A Party For Troubling The Courts
With Groundless Suits, The Prosecutor Himself Would, In The End,
Be Likely To Be Amerced By The Jury, In Such A Manner As To Make
Courts Of Justice A Very Unproitable Place For A Man To Go To
Seek Revenge.
In Estimating The Evils Of This Kind, Resulting From The Present
System, We Are To Consider That They Are Not, By Any Means,
Confined To The Actual Suits In Which This Kind Of Oppression Is
Practised; But We Are To Include All Those Cases In Which The
Fear Of Such Oppression Is Used As A Weapon To Compel Men Into A
Surrender Of Their Rights.
[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan
Says That Both Plaintiff's And Defendants Were Liable To
Amercement. Blackstone Speaks Of Plaintiffs Being Liable, Without
Saying Whether Defendants Were So Or Not. What The Rule Really
Was I Do Not Know. There Would Seem To Be Some Reason In
Allowing Defendants To Defend Themselves, At Their Own Charges,
Without Exposing Themselves To Amercement In Case Of Failure.
[2] When Any Other Witnesses Than Freeholders Were Required In A
Civil Suit, I Am Not Aware Of The Manner In Which Their
Attendance Was Procured; But It Was Doubtless Done At The Expense
Either Of The State Or Of The Witnesses Themselves. And It Was
Doubt Less The Same In Criminal Cases.
[3] "All Claims Were Established In The First Stage By The Oath
Of The Plaintiff, Except When Otherwise Specially Directed By The
Law. The Oath, By Which Any Claim Was Supported, Was Called The
Fore-Oath, Or ' Praejuramentum,' And It Was The Foundation Of His
Suit. One Of The Cases Which Did Not Require This Initiatory
Confirmation, Was When Cattle Could Be Tracked Into Another Man's
Land, And Then The Foot-Mark Stood For The Fore-Oath." 2
Palgrave's Rise And Progress, &C;., 114.
[4] Among The Necessary Expenses Of Suits, Should Be Reckoned
Reasonable Compensation To Counsel, For They Are Nearly Or Quite
As Important To The Administration Of Justice, As Are Judges,
Jurors, Or Witnesses; And The Universal Practice Of Employing
Them, Both On The Part Of Governments And Of Private Persons,
Shows That Their Importance Is Generally Understood. As A Mere
Matter Of Economy, Too, It Would Be Wise For The Government To
Pay Them, Rather Than They Should Not Be Employed; Because They
Collect And Arrange The Testimony And The Law Beforehand, So As
To Be Able To Present The Whole Case To The Court And Jury
Intelligibly, And In A Short Space Of Time. Whereas, If They Were
Not Employed, The Court And Jury Would Be Under The Necessity
Either Of Spending Much More Time Than Now In The Investigation
Of Causes, Or Of Despatching Them In Haste, And With Little
Regard To Justice. They Would Be Very Likely To Do The Latter,
Thus Defeating The Whole Object Of The People In Establishing
Courts.
Chapter 8 (The Free Administration Of Justice) Pg 150
To Prevent The Abuse Of This Right, It Should Perhaps Be Left
Discretionary With The Jury In Each Case To Determine Whether The
Counsel Should Receive Any Pay And, If Any, How Much From The
Government.
Chapter 9 (The Criminal Intent) Pg 151
It Is A Maxim Of The Common Law That There Can Be No Crime
Without A Criminal Intent. And It Is A Perfectly Clear Principle,
Although One Which Judges Have In A Great Measure Overthrown In
Practice, That Jurors Are To Judge Of The Moral Intent Of An
Accused Person, And Hold Him Guiltless, Whatever His Act, Unless
They Find Him To Have Acted With A Criminal Intent; That Is, With
A Design To Do What He Knew To Be Criminal.
This Principle Is Clear, Because The Question For A Jury To
Determine Is, Whether The Accused Be Guilty, Or Not Guilty. Guiltis A
Personal Quality Of The Actor, Not Necessarily Involved In
The Act, But Depending Also Upon The Intent Or Motive With Which
The Act Was Done. Consequently, The Jury Must Find That He Acted
From A Criminal Motive, Before They Can Declare Him Guilty.
There Is No Moral Justice In, Nor Any Political Necessity For,
Punishing A Man For Any Act Whatever That He May Have Committed,
If He Have Done It Without Any Criminal Intent. There Can Be No
Moral Justice In Punishing For Such An Act, Because, There Having
Been No Criminal Motive, There Can Have Been No Other Motive
Which Justice Can Take Cognizance Of, As Demanding Or Justifying
Punishment. There Can Be No Political Necessity For Punishing, To
Warn Against Similar Acts In Future, Because, If One Man Have
Injured Another, However Unintentionally, He Is Liable, And
Justly Liable, To A Civil Suit For Damages; And In This Suit He
Will Be Compelled To Make Compensation For The Injury,
Notwithstanding His Innocence Of Any Intention To Injure. He Must
Bear The Consequences Of His Own Act, Instead Of Throwing Them
Upon Another, However Innocent He May Have Been Of Any Intention
To Do Wrong. And The Damages He Will Have To Pay Will Be A
Sufficient Warning To Him Not To Do The Like Act Again.
If It Be Alleged That There Are Crimes Against The Public, (As
Treason, For Example, Or Any Other Resistance To Government,) For
Which Private Persons Can Recover No Damages, And That There Is A
Political Necessity For Punishing For Such Offences, Even Though
The Party Acted Conscientiously, The Answer Is, The Government
Must Bear With All Resistance That Is Not So Clearly Wrong As To
Give Evidence Of Criminal Intent. In Other Words, The Government,
In All Its Acts, Must Keep Itself So Clearly Within The Limits Of
Justice, As That Twelve Men, Taken At Random, Will All Agree That
It Is In The Right, Or It Must Incur The Risk Of Resistance,
Chapter 9 (The Criminal Intent) Pg 152Without Any Power To Punish It. This Is The Mode In Which The
Trial By Jury Operates To Prevent The Government From Falling
Into The Hands Of A Party, Or A Faction, And To Keep It Within
Such Limits As All, Or Substantially All, The People Are Agreed
That It May Occupy.
This Necessity For A Criminal Intent, To Justify Conviction, Is
Proved By The Issue Which The Jury Are To Try, And The Verdict
They Are To Pronounce. The "Issue" They Are To Try Is, "Guilty,"Or
"Not Guilty." And Those Are The Terms They Are Required To Use
In Rendering Their Verdicts. But It Is A Plain Falsehood To Say
That A Man Is "Guilty," Unless He Have Done An Act Which He Knew
To Be Criminal.
This Necessity For A Criminal Intent In Other Words, For Guilt
As A Preliminary To Conviction, Makes It Impossible That A Man
Can Be Rightfully Convicted For An Act That Is Intrinsically
Innocent, Though Forbidden By The Government; Because Guilt Is An
Intrinsic Quality Of Actions And Motives, And Not One That Can Be
Imparted To Them By Arbitrary Legislation. All The Efforts Of The
Government, Therefore, To "Make Offences By Statute," Out Of Acts
That Are Not Criminal By Nature, Must Necessarily Be Ineffectual,
Unless A Jury Will Declare A Man "Guilty" For An Act That Is
Really Innocent.
The Corruption Of Judges, In Their Attempts To Uphold The
Arbitrary Authority Of The Government, By Procuring The
Conviction Of Individuals For Acts Innocent In Themselves, And
Forbidden Only By Some Tyrannical Statute, And The Commission Of
Which Therefore Indicates No Criminal Intent, Is Very Apparent.
To Accomplish This Object, They Have In Modern Times Held It To
Be Unnecessary That Indictments Should Charge, As By The Common
Law They Were Required To Do, That An Act Was Done "Wickedly,"
"Feloniously," "With Malice Aforethought," Or In Any Other Manner
That Implied A Criminal Intent, Without Which There Can Be No
Criminality; But That It Is Sufficient To Charge Simply That It
Was Done " Contrary To The Form Of The Statute In Such Case Made
And Provided." This Form Of Indictment Proceeds Plainly Upon The
Assumption That The Government Is Absolute, And That It Has
Authority To Prohibit Any Act It Pleases, However Innocent In Its
Nature The Act May Be. Judges Have Been Driven To The Alternative
Of Either Sanctioning This New Form Of Indictment, (Which They
Never Had Any Constitutional Right To Sanction,) Or Of Seeing The
Authority Of Many Of The Statutes Of The Government Fall To The
Ground; Because The Acts Forbidden By The
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