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

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

Particular 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

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 204

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.

 

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

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 205

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

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

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 206

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