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 149

Its 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 152

Without 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