An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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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 185Oppressed, 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 186Former.
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;
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