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

These Mere Agents And Attorneys,  Who

Are Chosen By A Part Only Of The People,  And Are Liable To Be

Influenced By Partial And Unequal Purposes,  Shall Not Have

Unlimited Authority In The Enactment And Enforcement Of Laws;

That They Shall Not Exercise All The Functions Of Government. It

Says That They Shall Never Exercise That Ultimate Power Of

Compelling Obedience To The Laws By Punishing For Disobedience,

Or Of Executing The Laws Against The Person Or Property Of Any

Man,  Without First Getting The Consent Of The People,  Through A

Tribunal That May Fairly Be Presumed To Represent The Whole,  Or

Substantially The Whole,  People. It Says That If The Power To

Make Laws,  And The Power Also To Enforce Them,  Were Committed To

These Agents,  They Would Have All Power,   Would Be Absolute

Masters Of The People,  And Could Deprive Them Of Their Rights At

Pleasure. It Says,  Therefore,  That The People Themselves Will

Hold A Veto Upon The Enforcement Of Any And Every Law,  Which

These Agents May Enact,  And That Whenever The Occasion Arises For

Them To Give Or Withhold Their Consent,   Inasmuch As The Whole

People Cannot Assemble,  Or Devote The Time And Attention

Necessary To The Investigation Of Each Case,   Twelve Of Their

Number Shall Be Taken By Lot,  Or Otherwise At Random,  From The

Whole Body; That They Shall Not Be Chosen By Majorities,  (The

Same Majorities That Elected The Agents Who Enacted The Laws To

Be Put In Issue,) Nor By Any Interested Or Suspected Party; That

They Shall Not Be Appointed By,  Or Be In Any Way Dependent Upon,

Those Who Enacted The Law; That Their Opinions,  Whether For Or

Against The Law That Is In Issue,  Shall Not Be Inquired Of

Beforehand; And That If These Twelve Men Give Their Consent To

The Enforcement Of The Law,  Their Consent Shall Stand For The

Consent Of The Whole.

 

This Is The Mode,  Which The Trial By Jury Provides,  For Keeping

The Government Within The Limits Designed By The Whole People,

Who Have Associated For Its Establishment. And It Is The Only

Mode,  Provided Either By The English Or American Constitutions,

For The Accomplishment Of That Object.

 

But It Will,  Perhaps,  Be Said That If The Minority Can Defeat The

Will Of The Majority,  Then The Minority Rule The Majority. But

This Is Not True In Any Unjust Sense. The Minority Enact No Laws

Of Their Own. They Simply Refuse Their Assent To Such Laws Of The

Majority As They Do Not Approve. The Minority Assume No Authority

Over The Majority; They Simply Defend Themselves. They Do Not

Interfere With The Right Of The Majority To Seek Their Own

Happiness In Their Own Way,  So Long As They (The Majority) Do Not

Interfere With The Minority. They Claim Simply Not To Be

Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 185

Oppressed,  And Not To Be Compelled To Assist In Doing Anything

Which They Do Not Approve. They Say To The Majority,  " We Will

Unite With You,  If You Desire It,  For The Accomplishment Of All

Those Purposes,  In Which We Have A Common Interest With You.

You Can Certainly Expect Us To Do Nothing More. If You Do Not Choose

To Associate With Us On Those Terms,  There Must Be Two Separate

Associations. You Must Associate For The Accomplishment Of Your

Purposes; We For The Accomplishment Of Ours."

 

In This Case,  The Minority Assume No Authority Over The Majority;

They Simply Refuse To Surrender Their Own Liberties Into The

Hands Of The Majority. They Propose A Union; But Decline

Submission. The Majority Are Still At Liberty To Refuse The

Connection,  And To Seek Their Own Happiness In Their Own Way,

Except That They Cannot Be Gratified In Their Desire To Become

Absolute Masters Of The Minority.

 

But,  It May Be Asked,  How Can The Minority Be Trusted To Enforce

Even Such Legislation As Is Equal And Just? The Answer Is,  That

They Are As Reliable For That Purpose As Are The Majority; They

Are As Much Presumed To Have Associated,  And Are As Likely To

Have Associated,  For That Object,  As Are The Majority; And They

Have As Much Interest In Such Legislation As Have The Majority.

They Have Even More Interest In It; For,  Being The Weaker Party,

They Must Rely On It For Their Security,    Having No Other

Security On Which They Can Rely. Hence Their Consent To The

Establishment Of Government,  And To The Taxation Required For Its

Support,  Is Presumed,  (Although It Ought Not To Be Presumed,)

Without Any Express Consent Being Given. This Presumption Of

Their Consent To Be Taxed For The Maintenance Of Laws,  Would Be

Absurd,  If They Could Not Themselves Be Trusted To Act In Good

Faith In Enforcing Those Laws. And Hence They Cannot Be Presumed

To Have Consented To Be Taxed For The Maintenance Of Any Laws,

Except Such As They Are Themselves Ready To Aid In Enforcing. It

Is Therefore Unjust To Tax Them,  Unless They Are Eligible To

Seats In A Jury,  With Power To Judge Of The Justice Of The Laws.

Taxing Them For The Support Of The Laws,  On The Assumption That

They Are In Favor Of The Laws,  And At The Same Time Refusing Them

The Right,  As Jurors,  To Judge Of The Justice Of The Laws,  On The

Assumption That They Are Opposed To The Laws,  Are Flat

Contradictions.

 

But,  It Will Be Asked,  What Motive Have The Majority,  When They

Have All Power In Their Own Hands,  To Submit Their Will To The

Veto Of The Minority?

 

One Answer Is,  That They Have The Motive Of Justice. It Would Be

Unjust To Compel The Minority To Contribute,  By Taxation,  To The

Support Of Any Laws Which They Did Not Approve.

 

Another Answer Is,  That If The Stronger Party Wish To Use Their

Power Only For Purposes Of Justice,  They Have No Occasion To Fear

The Veto Of The Weaker Party; For The Latter Have As Strong

Motives For The Maintenance Of Just Government,  As Have The

Chapter 12 (Limitations Imposed Upon The Majority By The Trial By Jury) Pg 186

Former.

 

Another Answer Is,  That If The Stronger Party Use Their Power

Unjustly,  They Will Hold It By An Uncertain Tenure,  Especially In

A Community Where Knowledge Is Diffused; For Knowledge Will

Enable The Weaker Party To Make Itself In Time The Stronger

Party. It Also Enables The Weaker Party,  Even While It Remains

The Weaker Party,  Perpetually To Annoy,  Alarm,  And Injure Their

Oppressors. Unjust Power,   Or Rather Power That Is Grossly

Unjust,  And That Is Known To Be So By The Minority,    Can Be

Sustained Only At The Expense Of Standing Armies,  And All The

Other Machinery Of Force; For The Oppressed Party Are Always

Ready To Risk Their Lives For Purposes Of Vengeance,  And The

Acquisition Of Their Rights,  Whenever There Is Any Tolerable

Chance Of Success. Peace,  Safety,  And Quiet For All,  Can Be

Enjoyed Only Under Laws That Obtain The Consent Of All. Hence

Tyrants Frequently Yield To The Demands Of Justice From Those

Weaker Than Themselves,  As A Means Of Buying Peace And Safety.

 

Still Another Answer Is,  That Those Who Are In The Majority On

One Law,  Will Be In The Minority On Another. All,  Therefore,  Need

The Benefit Of The Veto,  At Some Time Or Other,  To Protect

Themselves From Injustice.

 

That The Limits,  Within Which Legislation Would,  By This Process,

Be Confined,  Would Be Exceedingly Narrow,  In Comparison With

Those It At Present Occupies,  There Can Be No Doubt. All

Monopolies,  All Special Privileges,  All Sumptuary Laws,  All

Restraints Upon Any Traffic,  Bargain,  Or Contract,  That Was

Naturally Lawful,  [1] All Restraints Upon Men's Natural Rights,

The Whole Catalogue Of Mala Prohibita,  And All Taxation To Which

The Taxed Parties Had Not Individually,  Severally,  And Freely

Consented,  Would Be At An End; Because All Such Legislation

Implies A Violation Of The Rights Of A Greater Or Less Minority.

This Minority Would Disregard,  Trample Upon,  Or Resist,  The

Execution Of Such Legislation,  And Then Throw Themselves Upon A

Jury Of The Whole People For Justification And Protection. In

This Way All Legislation Would Be Nullified,  Except The

Legislation Of That General Nature Which Impartially Protected

The Rights,  And Subserved The Interests,  Of All. The Only

Legislation That Could Be Sustained,  Would Probably Be Such As

Tended Directly To The Maintenance Of Justice And Liberty; Such,

For Example,  As Should Contribute To The Enforcement Of

Contracts,  The Protection Of Property,  And The Prevention And

Punishment Of Acts Intrinsically Criminal. In Short,  Government

In Practice Would Be Brought To The Necessity Of A Strict

Adherence To Natural Law,  And Natural Justice,  Instead Of Being,

As It Now Is,  A Great Battle,  In Which Avarice And Ambition Are

Constantly Fighting For And Obtaining Advantages Over The Natural

Rights Of Mankind.

 

[1] Such As Restraints Upon Banking,  Upon The Rates Of Interest,

Upon Traffic With Foreigners,  &E;.,  &C;.

 

Appendix Pg 187

Taxation

 

It Was A Principle Of The Common Law,  As It Is Of The Law Of

Nature,  And Of Common Sense,  That No Man Can Be Taxed Without

His Personal Consent. The Common Law Knew Nothing Of That System,

Which Now Prevails In England,  Of Assuming A Man's Own Consent

To Be Taxed,  Because Some Pretended Representative,  Whom He Never

Authorized To Act For Him,  Has Taken It Upon Himself To Consent

That He May Be Taxed. That Is One Of The Many Frauds On The

Common Law,  And The English Constitution,  Which Have Been

Introduced Since Magna Carta. Having Finally Established Itself

In England,  It Has Been Stupidly And Servilely Copied And

Submitted To In The United States.

 

 

 

 

 

If The Trial By Jury Were Reestablished,  The Common Law Principle

Of Taxation Would Be Reestablished With It; For It Is Not To Be

Supposed That Juries Would Enforce A Tax Upon An Individual Which

He Had Never Agreed To Pay. Taxation Without Consent Is As

Plainly Robbery,  When Enforcers Against One Man,  As When

Enforced Against Millions; And It Is Not To Be Imagined That Juries

Could Be Blind To So Self-Evident A Principle. Taking A Man's Money

Without His Consent,  Is Also As Much Robbery,  When It Is Done By

Millions Of Men,  Acting In Concert,  And Calling Themselves A

Government,  As When It Is Done By A Single Individual,  Acting On

His Own Responsibility,  And Calling Himself A Highwayman. Neither

The Numbers Engaged In The Act,  Nor The Different Characters They

Assume As A Cover For The Act,  Alter The Nature Of The Act

Itself.

 

If The Government Can Take A Man's Money Without His Consent,

There Is No Limit To The Additional Tyranny It May Practise Upon

Him;