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

In Holding That It Was Safer To Trust This Terrific Power

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That It Could Not Be Revoked Or Rescinded By The King; For He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 174

Make 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 176

Principle,  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 177

Justification 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