An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗

Or Bad,) As The Accused Is Charged With Having Transgressed.

Unless They Judge On This Point,  The People Are Liable To Have Their

Liberties Taken From Them By Brute Force,  Without Any Law At All.

 

The Jury Must Also Judge Of The Laws Of Evidence. If The

Government Can Dictate To A Jury The Laws Of Evidence,  It Can Not

Only Shut Out Any Evidence It Pleases,  Tending To Vindicate The

Accused,  But It Can Require That Any Evidence Whatever,  That It

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 5

Pleases To Offer,  Be Held As Conclusive Proof Of Any Offence

Whatever Which The Government Chooses To Allege.

 

It Is Manifest,  Therefore,  That The Jury Must Judge Of And Try The

Whole Case,  And Every Part And Parcel Of The Case,  Free Of Any

Dictation Or Authority On The Part Of The Government. They Must

Judge Of The Existence Of The Law; Of The True Exposition Of The Law;

Of The Justice Of The Law; And Of The Admissibility And Weight Of All

The Evidence Offered; Otherwise The Government Will Have

Everything Its Own Way; The Jury Will Be Mere Puppets In The Hands

Of The Government: And The Trial Will Be,  In Reality,  A Trial By The

Government,  And Not A "Trial By The Country." By Such Trials The

Government Will Determine Its Own Powers Over The People,  Instead

Of The People's Determining Their Own Liberties Against The

Government; And It Will Be An Entire Delusion To Talk,  As For

Centuries We Have Done,  Of The Trial By Jury,  As A "Palladium Of

Liberty," Or As Any Protection To The People Against The Oppression

And Tyranny Of The Government.

 

The Question,  Then,  Between Trial By Jury,  As Thus Described,  And

Trial By The Government,  Is Simply A Question Between Liberty And

Despotism. The Authority To Judge What Are The Powers Of The

Government,  And What The Liberties Of The People,  Must Necessarily

Be Vested In One Or The Other Of The Parties Themselves   The

Government,  Or The People; Because There Is No Third Party To Whom

It Can Be Entrusted. If The Authority Be Vested In The Government,

The Governmnt Is Absolute,  And The People Have No Liberties Except

Such As The Government Sees Fit To Indulge Them With. If,  On The

Other Hand,  That Authority Be Vested In The People,  Then The People

Have All Liberties,  (As Against The Government,) Except Suc As

Substantially The Whole People (Through A Jury) Choose To Disclaim;

And The Government Can Exercise No Power Except Such As

Substantially The Whole People (Through A Jury) Consent That It May

Exercise.

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 6

The Force And. Justice Of The Preceding Argument Cannot Be Evaded

By Saying That The Government Is Chosen By The People; That,  In

Theory,  It Represents The People; That It Is Designed To Do The Will Of

The People; That Its Members Are All Sworn To Observe The

Fundamental Or Constitutional Law Instituted By The People; That Its

Acts Are Therefore Entitled To Be Considered The Acts Of The People;

And That To Allow A Jury,  Representing The People,  To Invalidate The

Acts Of The' Government,  Would Therefore Be Arraying The People

Against Themselves.

 

There Are Two Answers To Such An Argument.

 

One Answer Is,  That,  In A Representative Government,  There Is No

Absurdity Or Contradiction,  Nor Any Arraying Of The People Against

Themselves,  In Requiring That The Statutes Or Enactments Of The

Government Shall Pass The Ordeal Of Any Number Of Separate

Tribunals,  Before It Shall Be Determined That They Are To Have The

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 7

Force Of Laws. Our American Constitutions Have Provided Five Of

These Separate Tribunals,  To Wit,  Representatives,  Senate,

Executive,[2] Jury,  And Judges; And Have Made It Necessary That

Each Enactment Shall Pass The Ordeal Of All These Separate Tribunals,

Before Its Authority Can Be Established By The Punishment Of Those

Who Choose To Transgress It. And There Is No More Absurdity Or

Inconsistency In Making A Jury One Of These Several Tribunals,  Than

There Is In Making The Representatives,  Or The Senate,  Or The

Executive,  Or The Judges,  One Of Them. There Is No More Absurdity

In Giving A Jury A Veto Upon The Laws,  Than There Is In Giving A Veto

To Each Of These Other Tribunals. The People Are No More Arrayed

Against Themselves,  When A Jury Puts Its Veto Upon A Statute,  Which

The Other Tribunals Have Sanctioned,  Than They Are When The Same

Veto Is Exercised By The Representatives,  The Senate,  The Executive,

Or The Judges.

 

But Another Answer To The Argument That The People Are Arrayed

Against Themselves,  When A Jury Hold An Enactment Of The

Government Invalid,  Is,  That The Government,  And All The

Departments Of The Government,  Are Merely The Servants And Agents

Of The People; Not Invested With Arbitrary Or Absolute Authority To

Bind The People,  But Required To Submit All Their Enactments To The

Judgment Of A Tribunal More Fairly Representing The Whole People,

Before They Carry Them Into Execution,  By Punishing Any Individual

For Transgressing Them. If The Government Were Not Thus Required To

Submit Their Enactments To The Judgment Of "The Country," Before

Executing Them Upon Individuals   If,  In Other Words,  The People

Had Reserved To Themselves No Veto Upon The Acts Of The

Government,  The Government,  Instead Of Being A Mere Servant And

Agent Of The People,  Would Be An Absolute Despot Over The People.

It Would Have All Power In Its Own Hands; Because The Power To

Punish Carries All Other Powers With It. A Power That Can,  Of Itself,

And By Its Own Authority,  Punish Disobedience,  Can Compel

Obedience And Submission,  And Is Above All Responsibility For The

Character Of Its Laws. In Short,  It Is A Despotism.

 

And It Is Of No Consequence To Inquire How A Government Came By

This Power To Punish,  Whether By Prescription,  By Inheritance,  By

Usurpation. Or By Delegation From The People's If It Have Now But

Got It,  The Government Is Absolute.

 

It Is Plain,  Therefore,  That If The People Have Invested The

Government With Power To Make Laws That Absolutely Bind The

People,  And To Punish The People For Transgressing Those Laws,  The

People Have Surrendered Their Liberties Unreservedly Into The Hands

Of The Government.

 

It Is Of No Avail To Say,  In Answer To This View Of The Ease,  That In

Surrendering Their Liberties Into The Hands Of The Government,  The

People Took An Oath From The Government,  That It Would Exercise Its

Power Within Certain Constitutional Limits; For When Did Oaths Ever

Restrain A Government That Was Otherwise Unrestrained? Orwhen

Did A Government Fail To Determine That All Its Acts Were Within The

Constitutional And Authorized Limits Of Its Power,  If It Were

Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 8

Permitted To Determine That Question For Itself?

 

Neither Is It Of Any Avail To Say,  That,  If The Government Abuse Its

Power,  And Enact Unjust And Oppressive Laws,  The Government May

Be Changed By The Influence Of Discussion,  And The Exercise Of The

Right Of Suffrage. Discussion Can Do Nothing To Prevent The

Enactment,  Or Procure The Repeal,  Of Unjust Laws,  Unless It Be

Understood That,  The Discussion Is To Be Followed By Resistance.

Tyrants Care Nothing For Discussions That Are To End Only In

Discussion. Discussions,  Which Do Not Interfere With The

Enforcement Of Their Laws,  Are But Idle Wind To Them. Suffrage Is

Equally Powerless And Unreliable. It Can Be Exercised Only

Periodically; And The Tyranny Must At Least Be Borne Until The Time

For Suffrage Comes. Be Sides,  When The Suffrage Is Exercised,  It

Gives No Guaranty For The Repeal Of Existing Laws That Are

Oppressive,  And No Security Against The Enactment Of New Ones That

Are Equally So. The Second Body Of Legislators Are Liable And Likely

To Be Just As Tyrannical As The First. If It Be Said That The Second

Body May Be Chosen For Their Integrity,  The Answer Is,  That The First

Were Chosen For That Very Reason,  And Yet Proved Tyrants. The

Second Will Be Exposed To The Same Temptations As The First,  And

Will Be Just As Likely To Prove Tyrannical. Who Ever Heard That

Succeeding Legislatures Were,  On The Whole,  More Honest Than Those

That Preceded Them? What Is There In The Nature Of Men Or Things To

Make Them So? If It Be Said That The First Body Were Chosen From

Motives Of Injustice,  That Fact Proves That There Is A Portion Of

Society Who Desire To Establish Injustice; And If They Were Powerful

Or Artful Enough To Procure The Election Of Their Instruments To

Compose The First Legislature,  They Will Be Likely To Be Powerful Or

Artful Enough To Procure The Election Of The Same Or Similar

Instruments To Compose The Second. The Right Of Suffrage,

Therefore,  And Even A Change Of Legislators,  Guarantees No Change

Of Legislation   Certainly No Change For The Better. Even If A Change

For The Better Actually Comes,  T Cmes Too Late,  Because It Comes

Only After More Or Less Injustice Has Been Irreparably Done.

 

But,  At Best,  The Right Of Suffrage Can Be Exercised Only

Periodically; And Between The Periods The Legislators Are Wholly

Irresponsible. No Despot Was Ever More Entirely Irresponsible Than

Are Republican Legislators During The Period For Which They Are

Chosen. They Can Neither,  Be Removed From Their Office,  Nor Called

To Account While In Their Office,  Nor Punished After They Leave Their

Office,  Be Their Tyranny What It May. Moreover,  The Judicial And

Executive Departments Of The Government Are Equally Irresponsible

To The People,  And Are Only Responsible,  (By Impeachment,