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

to,  Whether An

Act Were Done With A Criminal Intent,  And The Right Also To Limit

The Sentence,  Free Of All Dictation From Any Quarter,    They Have

No Moral Right To Sit In the Trial At All,  And Cannot Do So

Without Making themselves Accomplices In any Injustice That They

May Have Reason To Believe May Result From Their Verdict. It Is

Chapter 10 ( Moral Considerations For Jurors) Pg 184

Absurd To Say That They Have No Moral Responsibility For The Use

That May Be Made Of Their Verdict By The Government,  When They

Have Reason To Suppose It Will Be Used for Purposes Of Injustice.

 

It Is,  For Instance,  Manifestly Absurd To Say That Jurors Have No

Moral Responsibility For The Enforcement Of An Unjust Law,  When

They Consent To Render A Verdict Of Guilty For The Transgression

Of It; Which Verdict They Know,  Or Have Good Reason To Believe,

Will Be Used by The Government As A Justification For Inflicting

A Penalty.

 

It Is Absurd,  Also,  To Say That Jurors Have No Moral

Responsibility For A Punishment Indicted upon A Man Against Law,

When,  At The Dictation Of A Judge As To What The Law Is,  They

Have Consented to Render A Verdict Against Their Own Opinions Of

The Law.

 

It Is Absurd,  Too,  To Say That Jurors Have No Moral

Responsibility For The Conviction And Punishment Of An Innocent

Man,  When They Consent To Render A Verdict Against Him On The

Strength Of Evidence,  Or Laws Of Evidence,  Dictated to Them By

The Court,  If Any Evidence Or Laws Of Evidence Have Been

Excluded,  Which They (The Jurors) Think Ought To Have Been

Admitted in his Defence.

 

It Is Absurd To Say That Jurors Have No Moral Responsibility For

Rendering a Verdict Of "Guilty" Against A Man,  For An Act Which

He Did Not Know To Be A Crime,  And In the Commission Of Which,

Therefore,  He Could Have Had No Criminal Intent,  In obedience To

The Instructions Of Courts That "Ignorance Of The Law (That Is,

Of Crime) Excuses No One."

 

It Is Absurd,  Also,  To Say That Jurors Have No Moral

Responsibility For Any Cruel Or Unreasonable Sentence That May Be

Inflicted even Upon A Guilty Man,  When They Consent To Render A

Verdict Which They Have Reason To Believe Will Be Used by The

Government As A Justification For The Infliction Of Such

Sentence.

 

The Consequence Is,  That Jurors Must Have The Whole Case In their

Hands,  And Judge Of Law,  Evidence,  And Sentence,  Or They Incur

The Moral Responsibility Of Accomplices In any Injustice Which

They Have Reason To Believe Will Be Done By The Government On The

Authority Of Their Verdict.

 

The Same Principles Apply To Civil Cases As To Criminal. If A

Jury Consent,  At The Dictation Of The Court,  As To Either Law Or

Evidence,  To Render A Verdict,  On The Strength Of Which They Have

Reason To Believe That A Man'S Property Will Be Taken From Him

And Given To Another,  Against Their Own Notions Of Justice,  They

Make Themselves Morally Responsible For The Wrong.

 

Every Man,  Therefore,  Ought To Refuse To Sit In a Jury,  And To

Take The Oath Of A Juror,  Unless The Form Of The Oath Be Such As

Chapter 10 ( Moral Considerations For Jurors) Pg 185

To Allow Him To Use His Own Judgment,  On Every Part Of The Case,

Free Of All Dictation Whatsoever,  And To Hold In his Own Hand A

Veto Upon Any Verdict That Can Be Rendered against A Defendant,

And Any Sentence That Can Be Inflicted upon Him,  Even If He Be

Guilty.

 

Of Course,  No Man Can Rightfully Take An Oath As Juror,  To Try A

Case "According to Law," (If By Law Be Meant Anything other Than

His Own Ideas Of Justice,) Nor "According to The Law And The

Evidence,  As They Shall Be Given Him." Nor Can He Rightfully Take

An Oath Even To Try A Case "According to The Evidence," Because

In All Cases He May Have Good Reason To Believe That A Party Has

Been Unable To Produce All The Evidence Legitimately Entitled to

Be Received. The Only Oath Which It Would Seem That A Man Can

Rightfully Take As Juror,  In either A Civil Or Criminal Case,  Is,

That He "Will Try The Case According to His Conscience." Of

Course,  The Form May Admit Of Variation,  But This Should Be The

Substance. Such,  We Have Seen,  Were The Ancient Common Law

Oaths.

 

 

 

 

 

Chapter 11 (Authority Of Magna Carta) Pg 186

Probably No Political Compact Between King and People Was

Ever

Entered into In a Manner To Settle More Authoritatively The

Fundamental Law Of A Nation,  Than Was Magna Carta. Probably No

People Were Ever More United and Resolute In demanding from

Their

King a Definite And Unambiguous Acknowledgment Of Their Rights

And Liberties,  Than Were The English At That Time. Probably No

King was Ever More Completely Stripped of All Power To Maintain

His Throne,  And At The Same Time Resist The Demands Of His

People,  Than Was John On The 15Th Day Of June,  1215. Probably No

King every Consented,  More Deliberately Or Explicitly,  To Hold

His Throne Subject To Specific And Enumerated limitations Upon

His Power,  Than Did John When He Put His Seal To The Great

Charter Of The Liberties Of England. And If Any Political Compact

Between King and People Was Ever Valid To Settle The Liberties Of

The People,  Or To Limit The Power Of The Crown,  That Compact Is

Now To Be Found In magna Carta. If,  Therefore,  The Constitutional

Authority Of Magna Carta Had Rested solely Upon The Compact Of

John With His People,  That Authority Would Have Been Entitled to

Stand Forever As The Supreme Law Of The Land,  Unless Revoked by

Chapter 11 (Authority Of Magna Carta) Pg 187

The Will Of The People Themselves.

 

But The Authority Of Magna Carta Does Not Rest Alone Upon The

Compact With John. When,  In the Next Year,  (1216,) His Son,  Henry

Iii.,  Came To The Throne,  The Charter Was Ratified by Him,  And

Again In 1217,  And Again In 1225,  In substantially The Same Form,

And Especially Without Allowing any New Powers,  Legislative,

Judicial,  Or Executive,  To The King or His Judges,  And Without

Detracting in the Least From The Powers Of The Jury. And From The

Latter Date To This,  The Charter Has Remained unchanged.

 

In The Course Of Two Hundred years The Charter Was Confirmed by

Henry And His Successors More Than Thirty Times. And Although

They Were Guilty Of Numerous And Almost Continual Breaches Of It,

And Were Constantly Seeking to Evade It,  Yet Such Were The

Spirit,  Vigilance And Courage Of The Nation,  That The Kings Held

Their Thrones Only On The Condition Of Their Renewed and Solemn

Promises Of Observance. And It Was Not Until 1429,  (As Will Be

More Fully Shown Hereafter,) When A Truce Between Themselves,

And

A Formal Combination Against The Mass Of The People,  Had Been

Entered into,  By The King,  The Nobility,  And The "Forty Shilling

Freeholders," (A Class Whom Mackintosh Designates As "A Few

Freeholders Then Accounted wealthy," [1]) By The Exclusion Of All

Others Than Such Freeholders From All Voice In the Election Of

Knights To Represent The Counties In the House Of Commons,  That A

Repetition Of These Confirmations Of Magna Carta Ceased to Be

Demanded. And Obtained. [2]

 

The Terms And The Formalities Of Some Of These "Confirmations"

Make Them Worthy Of Insertion At Length.

 

Hume Thus Describes One Which Took Place In the 38Th Year Of

Henry Iii. (1253):

 

" But As They (The Barons) Had Experienced his (The King'S)

Frequent Breach Of Promise,  They Required that He Should Ratify

The Great Charter In a Manner Still More Authentic And Solemn

Than Any Which He Had Hitherto Employed. All The Prelates And

Abbots Were Assembled. They Held Burning tapers In their Hands.

The Great Charter Was Read Before Them. They Denounced the

Sentence Of Excommunication Against Every One Who Should

Thenceforth Violate That Fundamental Law. They Threw Their Tapers

On The Ground,  And Exclaimed,  May The Soul Of Every One Who

Incurs This Sentence So Stink And Corrupt In hell! The King bore

A Part In this Ceremony,  And Subjoined,  ' So Help Me God! I Will

Keep All These Articles Inviolate,  As I Am A Man,  As I Am A

Christian,  As I Am A Knight,  And As I Am A King crowned and

Anointed.' "   Hume,  Ch. 12. See Also Blackstone'S Introd. To The

Charters. Black. Law Tracts,  Oxford Ed.,  P. 332. Makintosh'S

Hist. Of Eng.,  Ch. 3. Lardner'S Cab. Cyc.,  Vol. 45,  P. 233   4. 

 

The Following is The Form Of "The Sentence Of Excommunication"

Referred to By Hume:

Chapter 11 (Authority Of Magna Carta) Pg 188

 

"The Sentence Of Curse,  Given By The Bishops,  Against The

Breakers Of The Charters.

 

"The Year Of Our Lord A Thousand Two Hundred and Fifty-Three,  The

Third Day Of May,  In the Great Hall Of The King at Westminster,

In The Presence,  And By The Assent,  Of The Lord Henry,  By The

Grace