An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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- Author: Lysander Spooner
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Enumerating Such Parties, Is Not Only As Palpable Gambling As Was
Ever Practised, But It Is Also The Most Atrocious That Was Ever
Practised, Except In Matters Of Government. And Where
Government Is Instituted On This Principle, (As In The United States, For
Example,) The Nation Is At Once Converted Into One Great Gambling
Establishment; Where All The Rights Of Men Are The Stakes; A Few
Bold Bad Men Throw The Dice (Dice Loaded With All The Hopes,
Fears, Interests, And Passions Which Rage In The Breasts Of
Ambitious And Desperate Men,) And All The People, From The
Interests They Have Depending, Become Enlisted, Excited,
Agitated, And Generally Corrupted, By The Hazards Of The Game.
The Trial By Jury Disavows The Majority Principle Altogether; And
Proceeds Upon The Ground That Every Man Should Be Presumed To
Be Entitled To Life, Liberty, And Such Property As He Has In His
Possession; And That The Government Should Lay Its Hand Upon None
Of Them, (Except For The Purpose Of Bringing Them Before A
Tribunal For Adjudication,) Unless It Be First Ascertained.,
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 178Beyond A Reasonable Doubt, In Every Individual Case, That Justice
Requires It.
To Ascertain Whether There Be Such Reasonable Doubt, It Takes
Twelve Men By Lot From The Whole Body Of Mature Men. If Any Of
These Twelve Are Proved To Be Under The Influence Of Any Special
Interest Or Passion, That May Either Pervert Their Judgments, Or
Corrupt Their Motives, They Are Set Aside As Unsuitable For The
Performance Of A Duty Requiring Such Absolute Impartiality And
Integrity; And Others Substituted In Their Stead. When The Utmost
Practicable Impartiality Is Attained On The Part Of The Whole
Twelve, They Are Sworn To The Observance Of Justice; And Their
Unanimous Concurrence Is Then Held To Be Necessary To Remove That
Reasonable Doubt, Which, Unremoved, Would Forbid The
Government To Lay Its Hand On Its Victim.
Such Is The Caution Which The Trial By Jury Both Practises And
Inculcates, Against The Violation Of Justice, On The Part Of The
Government, Towards The Humblest Individual, In The Smallest
Matter Affecting His Civil Rights, His Property, Liberty, Or
Life. And Such Is The Contrast, Which The Trial By Jury Presents,
To That Gambler's And Robber's Rule, That The Majority Have A
Right, By Virtue Of Their Superior Numbers, And Without Regard To
Justice, To Dispose At Pleasure Of The Property And Persons Of
All Bodies Of Men Less Numerous Than Themselves.
The Difference, In Short, Between The Two Systems, Is This. The
Trial By Jury Protects Person And Property, Inviolate To Their
Possessors, From The Hand Of The Law, Unless Justice, Beyond A
Reasonable Doubt, Require Them To Be Taken. The Majority
Principle Takes Person And Property From Their Possessors, At The
Mere Arbitrary Will Of A Majority, Who Are Liable And Likely To
Be Influenced, In Taking Them, By Motives Of Oppression, Avarice,
And Ambition.
If The Relative Numbers Of Opposing Parties Afforded Sufficient
Evidence Of The Comparative Justice Of Their Claims The
Government Should Carry The Principle Into Its Courts Of Justice;
And Instead Of Referring Controversies To Impartial And
Disinterested Men, To Judges And Jurors, Sworn To Do Justice,
And Bound Patiently To Hear And Weigh All The Evidence And
Arguments That Can Be Offered On Either Side, It Should Simply
Count The Plaintiff's And Defendants In Each Case, (Where There
Were More Than One Of Either,) And Then Give The Case To The
Majority; After Ample Opportunity Had Been Given To The
Plaintiffs And Defendants To Reason With, Flatter, Cheat,
Threaten, And Bribe Each Other, By Way Of Inducing Them To Change
Sides. Such A. Process Would Be Just As Rational In Courts Of
Justice, As In Halls Of Legislation; For It Is Of No Importance
To A Man, Who Has His Rights Taken From Him, Whether It Be Done
By A Legislative Enactment, Or A Judicial Decision.
In Legislation, The People Are All Arranged As Plaintiff's And
Defendants In Their Own Causes; (Those Who Are In Favor Of A
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 179Particular Law, Standing As Plaintiff's, And Those Who Are
Opposed To The Same Law, Standing As Defendants); And To Allow
These Causes To Be Decided By Majorities, Is Plainly As Absurd As
It Would Be To Allow Judicial Decisions To Be Determined By The
Relative Number Of Plaintiffs And Defendants.
If This Mode Of Decision Were Introduced Into Courts Of Justice,
We Should See A Parallel, And Only A Parallel, To That System Of
Legislation Which We Witness Daily. We Should See Large Bodies Of
Men Conspiring To Bring Perfectly Groundless Suits, Against Other
Bodies Of Men, For Large Sums Of Money, And To Carry Them By
Sheer Force Of Numbers; Just As We Now Continually See Large
Bodies Of Men Conspiring To Carry, By Mere Force Of Numbers, Some
Scheme Of Legislation That Will, Directly Or Indirectly, Take
Money Out Of Other Men's Pockets, And Put It Into Their Own. And
We Should Also See Distinct Bodies Of Men, Parties In Separate
Suits, Combining And Agreeing All To Appear And Be Counted As
Plaintiffs Or Defendants In Each Other's Suits, For The Purpose
Of Ekeing Out The Necessary Majority; Just As We Now See Distinct
Bodies Of Men, Interested In Separate Schemes Of Ambition Or
Plunder, Conspiring To Carry Through A Batch Of Legislative
Enactments, That Shall Accomplish Their Several Purposes.
This System Of Combination And Conspiracy Would Go On, Until At
Length Whole States And A Whole Nation Would Become Divided Into
Two Great Litigating Parties, Each Party Composed Of Several
Smaller Bodies, Having Their Separate Suits, But All Confederating
For The Purpose Of Making Up The Necessary Majority In Each Case.
The Individuals Composing Each Of These Two Great Parties, Would
At Length Become So Accustomed To Acting Together, And So Well
Acquainted With Each Others' Schemes, And So Mutually
Dependent Upon Each Others' Fidelity For Success, That They Would
Become Organized As Permanent Associations; Bound Together By
That Kind Of Honor That Prevails Among Thieves; And Pledged By
All Their Interests, Sympathies, And Animosities, To Mutual
Fidelity, And To Unceasing Hostility To Their Opponents; And
Exerting All Their Arts And All Their Resources Of Threats,
Injuries, Promises, And Bribes, To Drive Or Seduce From The Other
Party Enough To Enable Their Own To Retain Or Acquire Such A
Majority As Would Be Necessary To Gain Their Own Suits, And
Defeat The Suits Of Their Opponents. All The Wealth And Talent Of
The Country Would Become Enlisted In The Service Of These Rival
Associations; And Both Would At Length Become So Compact, So Well
Organized, So Powerful, And Yet Always So Much In Need Of
Recruits, That A Private Person Would Be Nearly Or Quite Unable
To Obtain Justice In The Most Paltry Suit With His Neighbor,
Except On The Condition Of Joining One Of These Great Litigating
Associations, Who Would Agree To Carry Through His Cause, On
Condition Of His Assisting Them To Carry Through All The Others,
Good And Bad, Which They Had Already Undertaken. If He Refused
This, They Would Threaten To Make A Similar Offer To His
Antagonist, And Suffer Their Whole Numbers To Be Counted Against
Him.
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 180
Now This Picture Is No Caricature, But A True And Honest
Likeness. And Such A System Of Administering Justice, Would Be No
More False, Absurd, Or Atrocious, Than That System Of Working By
Majorities, Which Seeks To Accomplish, By Legislation, The Same
Ends Which, In The Case Supposed, Would Be Accomplished By
Judicial Decisions.
Again, The Doctrine That The Minority Ought To Submit To The Will
Of The Majority, Proceeds, Not Upon The Principle That Government
Is Formed By Voluntary Association, And For An Agreed Purpose, On
The Part Of All Who Contribute To Its Support, But Upon The
Presumption That All Government Must Be Practically A State Of
War And Plunder Between Opposing Parties; And That In Order To
Save Blood, And Prevent Mutual Extermination, The Parties Come To
An Agreement That They Will Count Their Respective Numbers
Periodically, And The One Party Shall Then Be Permitted Quietly
To Rule And Plunder, (Restrained Only By Their Own Discretion,)
And The Other Submit Quietly To Be Ruled And Plundered, Until The
Time Of The Next Enumeration.
Such An Agreement May Possibly Be Wiser Than Unceasing And
Deadly Conflict; It Nevertheless Partakes Too Much Of The Ludicrous
To Deserve To Be Seriously Considered As An Expedient For The
Maintenance Of Civil Society. It Would Certainly Seem That
Mankind Might Agree Upon A Cessation Of Hostilities, Upon More
Rational And Equitable Terms Than That Of Unconditional
Submission On The Part Of The Less Numerous Body. Unconditional
Submission Is Usually The Last Act Of One Who Confesses Himself
Subdued And Enslaved. How Any One Ever Came To Imagine That
Condition To Be One Of Freedom, Has Never Been Explained. And As
For The System Being Adapted To The Maintenance Of Justice Among
Men, It Is A Mystery That Any Human Mind Could Ever Have Been
Visited With An Insanity Wild Enough To Originate The Idea.
If It Be Said That Other Corporations, Than Governments,
Surrender Their Affairs Into The Hands Of The Majority, The
Answer Is, That They Allow Majorities To Determine Only Trifling
Matters, That Are In Their Nature Mere Questions Of Discretion,
And Where There Is No Natural Presumption Of Justice Or Right On
One Side Rather Than The Other. They Never Surrender To The
Majority The Power To Dispose Of; Or, What Is Practically The
Same Thing, To Determine, The Rights Of Any Individual Member.
The Rights Of Every Member Are Determined By The Written
Compact, To Which All The Members Have Voluntarily Agreed.
For Example. A Banking Corporation Allows A Majority To
Determine Such Questions Of Discretion As Whether The Note Of
A Or Of B Shall Be Discounted; Whether Notes Shall Be Discounted
On One, Two, Or Six Days In The Week; How Many Hours In A Day
Their Banking-House Shall Be Kept Open; How Many Clerks Shall
Be Employed; What Salaries They Shall Receive, And Such Like
Matters, Which Are In Their Nature Mere Subjects Of Discretion,
And Where There Are No Natural Presumptions Of Justice Or Right
In Favor Of One Course Over The Other. But No Banking Corporation
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