An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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- Author: Lysander Spooner
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Allows A Majority, Or Any Other Number Of Its Members Less Than
The Whole, To Divert The Funds Of The Corporation To Any Other
Purpose Than The One To Which Every Member Of The Corporation
Has Legally Agreed That They May Be Devoted; Nor To Take The Stock Of
One Member And Give It To Another; Nor To Distribute The
Dividends Among The Stockholders Otherwise Than To Each One The
Proportion Which He Has Agreed To Accept, And All The Others Have
Agreed That He Shall Receive. Nor Does Any Banking Corporation
Allow A Majority To Impose Taxes Upon The Members For The
Payment Of The Corporate Expenses, Except In Such Proportions As
Every Member Has Consented That They May Be Imposed. All These
Questions, Involving The Rights Of The Members As Against Each
Other, Are Fixed By The Articles Of The Association, That Is, By
The Agreement To Which Every Member Has Personally Assented.
What Is Also Specially To Be Noticed, And What Constitutes A
Vital Difference Between The Banking Corporation And The
Political Corporation, Or Government, Is, That In Case Of
Controversy Among The Members Of The Banking Corporation, As To
The Rights Of Any Member, The Question Is Determined, Not By Any
Number, Either Majority, Or Minority, Of The Corporation Itself,
But By Persons Out Of The Corporation; By Twelve Men Acting As
Jurors, Or By Other Tribunals Of Justice, Of Which No Member Of
The Corporation Is Allowed To Be A Part. But In The Case Of The
Political Corporation, Controversies Among The Parties To It, As
To The Rights Of Individual Members, Must Of Necessity Be Settled
By Members Of The Corporation Itself, Because There Are No
Persons Out Of The Corporation To Whom The Question Can Be
Referred.
Since, Then, All Questions As To The Rights Of The Members Of The
Political Corporation, Must Be Determined By Members Of The
Corporation Itself, The Trial By Jury Says That No Man's Rights,
Neither His Right To His Life, His Liberty, Nor His Property,
Shall Be Determined By Any Such Standard As The Mere Will And
Pleasure Of Majorities; But Only By The Unanimous Verdict Of A
Tribunal Fairly Representing The Whole People, That Is, A
Tribunal Of Twelve Men, Taken At Random From The Whole Body, And
Ascertained To Be As Impartial As The Nature Of The Case Will
Admit, And Sworn To The Observance Of Justice. Such Is The
Difference In The Two Kinds Of Corporations; And The Custom Of
Managing By Majorities The Mere Discretionary Matters Of Business
Corporations, (The Majority Having No Power To Determine The
Rights Of Any Member,) Furnishes No Analogy To The Practice,
Adopted By Political Corporations, Of Disposing Of All The Rightsof
Their Members By The Arbitrary Will Of Majorities.
But Further. The Doctrine That The Majority Have A Right To Rule,
Proceeds Upon The Principle That Minorities Have No Rights In The
Government; For Certainly The Minority Cannot Be Said To Have Any
Rights In A Government, So Long As The Majority Alone Determine
What Their Rights Shall Be. They Hold Everything, Or Nothing, As
The Case May Be, At The Mere Will Of The Majority.
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 182
It Is Indispensable To A "Free Government," (In The Political
Sense Of That Term,) That The Minority, The Weaker Party, Have A
Veto Upon The Acts Of The Majority. Political Liberty Is Liberty
For The Weaker Party In A Nation. It Is Only The Weaker Party
That Lose Their Liberties, When A Government Becomes Oppressive.
The Stronger Party, In All Governments, Are Free By Virtue Of
Their Superior Strength. They Never Oppress Themselves.
Legislation Is The Work Of This Stronger Party; And If, In
Addition To The Sole Power Of Legislating, They Have The Sole
Power Of Determining What Legislation Shall Be Enforced, They
Have All Power In Their Hands, And The Weaker Party Are The
Subjects Of An Absolute Government.
Unless The Weaker Party Have A Veto, Either Upon The Making, Or
The Enforcement Of Laws, They Have No Power Whatever In The
Government, And Can Of Course Have No Liberties Except Such As
The Stronger Party, In Their Arbitrary Discretion, See Fit To
Permit Them To Enjoy.
In England And The United States, The Trial By Jury Is The Only
Institution That Gives The Weaker Party Any Veto Upon The Power
Of The Stronger. Consequently It Is The Only Institution, That
Gives Them Any Effective Voice In The Government, Or Any Guaranty
Against Oppression.
Suffrage, However Free, Is Of No Avail For This Purpose; Because
The Suffrage Of The Minority Is Overborne By The Suffrage Of The
Majority, And Is Thus Rendered Powerless For Purposes Of
Legislation. The Responsibility Of Officers Can Be Made Of No
Avail, Because They Are Responsible Only To The Majority. The
Minority, Therefore, Are Wholly Without Rights In The Government,
Wholly At The Mercy Of The Majority, Unless, Through The Trial By
Jury, They Have A Veto Upon Such Legislation As They Think
Unjust.
Government Is Established For The Protection Of The Weak Against
The Strong. This Is The Principal, If Not The Sole, Motive For
The Establishment Of All Legitimate Government. Laws, That Are
Sufficient For The Protection Of The Weaker Party, Are Of Course
Sufficient For The Protection Of The Stronger Party; Because The
Strong Can Certainly Need No More Protection Than The Weak. It
Is, Therefore, Right That The Weaker Party Should Be Represented
In The Tribunal Which Is Finally To Determine What Legislation
May Be Enforced; And That No Legislation Shall Be Enforced
Against Their Consent. They Being Presumed To Be Competent Judges
Of What Kind Of Legislation Makes For Their Safety, And What For
Their Injury, It Must Be Presumed That Any Legislation, Which
They Object To Enforcing, Tends To Their Oppression, And Not To
Their Security.
There Is Still Another Reason Why The Weaker Party, Or The
Minority, Should Have A Veto Upon All Legislation Which They
Disapprove. That Reason Is, That That Is The Only Means By Which
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 183The Government Can Be Kept Within The Limits Of The Contract,
Compact, Or Constitution, By Which The Whole People Agree To
Establish Government. If The Majority Were Allowed To Interpret
The Compact For Themselves, And Enforce It According To Their Own
Interpretation, They Would, Of Course, Make It Authorize Them To
Do Whatever They Wish To Do.
The Theory Of Free Government Is That It Is Formed By The
Voluntary Contract Of The People Individually With Each Other.
This Is The Theory, (Although It Is Not, As It Ought To Be, The
Fact,) In All The Governments In The United States, As Also In
The Government Of England. The Theory Assumes That Each Man,
Who Is A Party To The Government, And Contributes To Its Support,
Has Individually And Freely Consented To It. Otherwise The
Government Would Have No Right To Tax Him For Its Support,
For Taxation Without Consent Is Robbery. This Theory, Then,
Necessarily Supposes That This Government, Which Is Formed By
The Free Consent Of All, Has No Powers Except Such As All The
Parties To It Have Individually Agreed That It Shall Have: And
Especially That It Has No Power To Pass Any Laws, Except Such
As All The Parties Have Agreed That It May Pass.
This Theory Supposes That There May Be Certain Laws That Will Be
Beneficial To All, So Beneficial That All Consent To Be Taxed
For Their Maintenance. For The Maintenance Of These Specific
Laws, In Which All Are Interested, All Associate. And They
Associate For The Maintenance Of Those Laws Only, In Which Allare
Interested. It Would Be Absurd To Suppose That All Would
Associate, And Consent To Be Taxed, For Purposes Which Were
Beneficial Only To A Part; And Especially For Purposes That Were
Injurious To Any. A Government Of The Whole, Therefore, Can Have
No Powers Except Such As All The Parties Consent That It May
Have. It Can Do Nothing Except What All Have Consented That It
May Do. And If Any Portion Of The People, No Matter How Large
Their Number, If It Be Less Than The Whole, Desire A Government
For Any Purposes Other Than Those That Are Common To All, And
Desired By All, They Must Form A Separate Association For Those
Purposes. They Have No Right, By Perverting This Government Of
The Whole, To The Accomplishment Of Purposes Desired Only By A
Part, To Compel Any One To Contribute To Purposes That Are
Either Useless Or Injurious To Himself.
Such Being The Principles On Which The Government Is Formed, The
Question Arises, How Shall This Government, Where Formed, Be Kept
Within The Limits Of The Contract By Which It Was Established?
How Shall This Government, Instituted By The Whole People, Agreed
To By The Whole People, Supported By The Contributions Of The
Whole People, Be Confined To The Accomplishment Of Those
Purposes Alone, Which The Whole People Desire? How Shall It Be
Preserved From Degeneration Into A Mere Government For The Benefit
Of A Part Only Of Those Who Established, And Who Support It? How Shall
It Be Prevented From Even Injuring A Part Of Its Own Members, For
The Aggrandizement Of The Rest? Its Laws Must Be, (Or At Least
Now Are,) Passed, And Most Of Its Other Acts Performed, By Mere
Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 184Agents, Agents Chosen By A Part Of The People, And Not By The
Whole. How Can These Agents Be Restrained From Seeking Their Own
Interests, And The Interests Of Those Who Elected Them, At The
Expense Of The Rights Of The Remainder Of The People, By The
Passage And Enforcement Of Laws That Shall Be Partial, Unequal,
And Unjust In Their Operation? That Is The Great Question. And
The Trial By Jury Answers It. And How Does The Trial By Jury
Answer It? It Answers It, As Has Already Been Shown Throughout
This Volume, By Saying That
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