An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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In The Hands Of Parliament, Than In The Hands Of The King. His
Error Consisted In Holding That Either The King Or Parliament Had
Any Such Power, Or That They Had Any Power At All To Pass Laws
That Should Be Binding Upon A Jury.
These Declarations Of Coke, That The Charter Was Confirmed By
Thirty-Two "Acts Of Parliament," Have A Mischievous Bearing In
Another Respect. They Tend To Weaken The Authority Of The
Charter, By Conveying The Impression That The Charter Itself
Might Be Abolished By "Act Of Parliament." Coke Himself Admits
That It Could Not Be Revoked Or Rescinded By The King; For He
Says, "All Pretence Of Prerogative Against Magna Carta Is Taken
Away." (2 Inst., 36.)
He Knew Perfectly Well, And The Whole English Nation Knew, That
The King Could Not Lawfully Infringe Magna Carta. Magna Carta,
Therefore, Made It Impossible That Absolute Power Could Ever Be
Practically Established In England, In The Hands Of The King.
Hence, As Coke Was An Advocate For Absolute Power, That Is, For
A Legislative Power "So Transcendent And Absolute As (That) It
Cannot, Be Confined, Either For Causes Or Persons, Within Any
Bounds," There Was No Alternative For Him But To Vest This
Absolute Power In Parliament. Had He Not Vested It In Parliament,
He Would Have Been Obliged To Abjure It Altogether, And To
Confess That The People, Through Their Juries, Had The Right To
Judge Of The Obligation Of All Legislation Whatsoever; In Other
Words, That They Had The Right To Confine The Government Within
The Limits Of "Those Just Laws And Customs Which The Common
People (Acting As Jurors) Had Chosen." True To His Instincts, As
A Judge, And As A Tyrant, He Assumed That This Absolute Power Was
Vested In The Hands Of Parliament.
But The Truth Was That, As By The English Constitution Parliament
Had No Authority At All For General Legislation, It Could No More
Confirm, Than It Could Abolish, Magna Carta.
These Thirty-Two Confirmations Of Magna Carta, Which Coke
Speaks Of As "Acts Of Parliament," Were Merely Acts Of The King. The
Parliaments, Indeed, By Refusing To Grant Him Money, Except, On
That Condition, And Otherwise, Had Contributed To Oblige Him To
Chapter 11 (Authority Of Magna Carta) Pg 174Make The Confirmations; Just As They Had Helped To Oblige Him By
Arms To Grant The Charter In The First Place. But The Confirmations
Themselves Were Nevertheless Constitutionally, As Well As Formally,
The Acts Of The King Alone.
[5] See Page 103.
[6]St. 1.William And Mary, Ch. 6, (1688)
[7]4. Inst., 36.
[8] Under The Head Of "John."
[9] 4 Blackstone, 849-50.
[10] 3 Blackstone, 379.
[11] Hume, Ch. 2.
[12] Page 203, 5th Edition, 1721.
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury Pg 175
The Principal Objection, That Will Be Made To The Doctrine Of
This Essay, Is, That Under It, A Jury Would Paralyze The Power Of
The Majority, And Veto All Legislation That Was Not In Accordance
With The Will Of The Whole, Or Nearly The Whole, People.
The Answer To This Objection Is, That The Limitation, Which Would
Be Thus Imposed Upon The Legislative Power, (Whether That Power
Be Vested In The Majority, Or Minority, Of The People,) Is The
Crowning Merit Of The Trial By Jury. It Has Other Merits; But,
Though Important In Themselves, They Are Utterly Insignificant
And Worthless In Comparison With This.
It Is This Power Of Vetoing All Partial And Oppressive
Legislation, And Of Restricting The Government To The Maintenance
Of Such Laws As The Whole, Or Substantially The Whole, People Are
Agreed In, That Makes The Trial By Jury "The Palladium Of
Liberty." Without This Power It Would Never Have Deserved That
Name.
The Will, Or The Pretended Will, Of The Majority, Is The Last
Lurking Place Of Tyranny At The Present Day. The Dogma, That
Certain Individuals And Families Have A Divine Appointment To
Govern The Rest Of Mankind, Is Fast Giving Place To The One That
The Larger Number Have A Right To Govern The Smaller; A Dogma,
Which May, Or May Not, Be Less Oppressive In Its Practical
Operation, But Which Certainly Is No Less False Or Tyrannical In
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 176Principle, Than The One It Is So Rapidly Supplanting. Obviously
There Is Nothing In The Nature Of Majorities, That Insures
Justice At Their Hands. They Have The Same Passions As
Minorities, And They Have No Qualities Whatever That Should Be
Expected To Prevent Them From Practising The Same Tyranny As
Minorities, If They Think It Will Be For Their Interest To Do So.
There Is No Particle Of Truth In The Notion That The Majority
Have A Right To Rule, Or To Exercise Arbitrary Power Over, The
Minority, Simply Because The Former Are More Numerous Than The
Latter. Two Men Have No More Natural Right To Rule One, Than One
Has To Rule Two. Any Single Man, Or Any Body Of Men, Many Or Few,
Have A Natural Right To Maintain Justice For Themselves, And For
Any Others Who May Need Their Assistance Against The Injustice Of
Any And All Other Men, Without Regard To Their Numbers; And
Majorities Have No Right To Do Any More Than This. The Relative
Numbers Of The Opposing Parties Have Nothing To Do With The
Question Of Right. And No More Tyrannical Principle Was Ever
Avowed, Than That The Will Of The Majority Ought To Have The
Force Of Law, Without Regard To Its Justice; Or, What Is The Same
Thing, That The Will Of The Majority Ought Always To Be Presumed
To Be In Accordance With Justice. Such A Doctrine Is Only Another
Form Of The Doctrine That Might Makes Right.
When Two Men Meet One Upon The Highway, Or In The Wilderness,
Have They A Right To Dispose Of His Life, Liberty, Or Property At
Their Pleasure, Simply Because They Are The More Numerous Party?
Or Is He Bound To Submit To Lose His Life, Liberty, Or Property,
If They Demand It, Merely Because He Is The Less Numerous Party?
Or, Because They Are More Numerous Than He, Is He Bound To
Presume That They Are Governed Only By Superior Wisdom, And The
Principles Of Justice, And By No Selfish Passion That Can Lead
Them To Do Him A Wrong? Yet This Is The Principle, Which It Is
Claimed Should Govern Men In All Their Civil Relations To Each
Other. Mankind Fall In Company With Each Other On The Highway Or
In The Wilderness Of Life, And It Is Claimed That The More
Numerous Party, Simply By Virtue Of Their Superior Numbers, Have
The Right Arbitrarily To Dispose Of The Life, Liberty, And
Property Of The Minority; And That The Minority Are Bound, By
Reason Of Their Inferior Numbers, To Practise Abject Submission,
And Consent To Hold Their Natural Rights, Any, All, Or None, As
The Case May Be, At The Mere Will And Pleasure Of The Majority;
As If All A Man's Natural Rights Expired, Or Were Suspended By
The Operation Of A Paramount Law, The Moment He Came Into The
Presence Of Superior Numbers.
If Such Be The True Nature Of The Relations Men Hold To Each
Other In This World, It Puts An End To All Such Things As Crimes,
Unless They Be Perpetrated Upon Those Who Are Equal Or Superior,
In Number, To The Actors. All Acts Committed Against Persons
Inferior In Number To The Aggressors, Become But The Exercise At
Rightful Authority. And Consistency With Their Own Principles
Requires That All Governments, Founded On The Will Of The
Majority, Should Recognize This Plea As A Sufficient
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 177Justification For All Crimes Whatsoever.
If It Be Said That The Majority Should Be Allowed To Rule, Not
Because They Are Stronger Than The Minority, But Because Their
Superior Numbers Furnish A Probability That They Are In The
Right; One Answer Is, That The Lives, Liberties, And Properties
Of Men Are Too Valuable To Them, And The Natural Presumptions Are
Too Strong In Their Favor, To Justify The Destruction Of Them By
Their Fellow-Men On A Mere Balancing Of Probabilities, Or On Any
Ground Whatever Short Of Certainty Beyond A Reasonable Doubt.
This Last Is The Moral Rule Universally Recognized To Be Binding
Upon Single Individuals. And In The Forum Of Conscience The Same
Rule Is Equally Binding Upon Governments, For Governments Are
Mere Associations Of Individuals. This Is The Rule On Which The
Trial By Jury Is Based. And It Is Plainly The Only Rule That
Ought To Induce A Man To Submit His Rights To The Adjudication Of
His Fellow-Men, Or Dissuade Him From A Forcible Defence Of Them.
Another Answer Is, That If Two Opposing Parties Could Be Supposed
To Have No Personal Interests Or Passions Involved, To Warp Their
Judgments, Or Corrupt Their Motives, The Fact That One Of The
Parties Was More Numerous Than The Other, (A Fact That Leaves The
Comparative Intellectual Competency Of The Two Parties Entirely
Out Of Consideration,) Might, Perhaps, Furnish A Slight, But At
Best Only A Very Slight, Probability That Such Party Was On The
Side Of Justice. But When It Is Considered That The Parties Are
Liable To Differ In Their Intellectual Capacities, And That One,
Or The Other, Or Both, Are Undoubtedly Under The Influence Of
Such Passions As Rivalry, Hatred, Avarice, And Ambition.
Passions That Are Nearly Certain To Pervert Their Judgments, And
Very Likely To Corrupt Their Motives, All Probabilities Founded
Upon A Mere Numerical Majority, In One Party, Or The Other,
Vanish At Once; And The Decision Of The Majority Becomes, To All
Practical Purposes, A Mere Decision Of Chance. And To Dispose Of
Men's Properties, Liberties, And Lives, By
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