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

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.

 

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.

 

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 207

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

The 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

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 208

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

Agents,   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

Chapter 12 (Limitations Imposed upon The Majority By The Trial By Jury) Pg 209

This Volume,  By Saying that 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