An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗
- Author: Lysander Spooner
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Justice And Right So Far As To Carry It Into Execution Against
The Goods, Rights, Or Person Of A Party Unless It Be Something
Which A Jury Have Sanctioned.
If The Government Had No Alternative But To Execute All Judgments
Of A Jury Indiscriminately, The Power Of Juries Would
Unquestionably Be Dangerous; For There Is No Doubt That They May
Sometimes Give Hasty And Erroneous Judgments. But When It Is
Considered That Their Judgments Can Be Reviewed, And New Trials
Granted, This Danger Is, For All Practical Purposes, Obviated.
If It Be Said That Juries May Successively Give Erroneous
Judgments, And That New Trials Cannot Be Granted Indefinitely, The
Answer Is, That So Far As Magna Carta Is Concerned, There Is
Nothing To Prevent The Granting Of New Trials Indefinitely, If The
Judgments Of Juries Are Contrary To "Justice And Right." So That
Magna Carta Does Not Require Any Judgment Whatever To Be
Executed So Far As To Take A Party's Goods, Rights, Or Person, Thereon
Unless It Be Concurred In By Both Court And Jury.
Chapter 5 (Objections Answered) Pg 106
Nevertheless, We May, For The Sake Of The Argument, Suppose The
Existence Of A Practical, If Not Legal, Necessity, For Executing
Some Judgment Or Other, In Cases Where Juries Persist In
Disagreeing With The Courts. In Such Cases, The Principle Of Magna
Carta Unquestionably Is, That The Uniform Judgments Of
Successivejuries Shall Prevail Over The Opinion Of The Court. And
The Reason Of This Principle Is Obvious, Viz., That It Is The Will Of The
Country, And Not The Will Of The Court, Or The Government, That
Must Determine What Laws Shall Be Established And Enforced; That
The Concurrent Judgments Of Successive Juries, Given In Opposition
To All The Reasoning Which Judges And Lawyers Can Offer To The
Contrary, Must Necessarily Be Presumed To Be A Truer Exposition Of
The Will Of The Country, Than Are The Opinions Of The Judges.
But It May Be Said That, Unless Jurors Submit To The Control Of
The Court, In Matters Of Law, They May Disagree Amongthemselves,
And Never Come To Any Judgment; And Thus Justice Fail To Be Done.
Such A Case Is Perhaps Possible; But, If Possible, It Can Occur
But Rarely; Because, Although One Jury May Disagree, A Succession
Of Juries Are Not Likely To Disagree That Is, On Matters Of
Natural Law, Or Abstract Justice. [2] If Such A Thing Should
Occur, It Would Almost Certainly Be Owing To The Attempt Of The
Court To Mislead Them. It Is Hardly Possible That Any Other Cause
Should Be Adequate To Produce Such An Effect; Because Justice
Comes Very Near To Being A Self-Evident Principle. The Mind
Perceives It Almost Intuitively. If, In Addition To This, The
Court Be Uniformly On The Side Of Justice, It Is Not A Reasonable
Supposition That A Succession Of Juries Should Disagree About It.
If, Therefore, A Succession Of Juries Do Disagree On The Law Of
Any Case, The Presumption Is, Not That Justice Fails Of Being
Done, But That Injustice Is Prevented That Injustice, Which
Would Be Done, If The Opinion Of The Court Were Suffered To
Control The Jury.
For The Sake Of The Argument, However, It May Be Admitted To Be
Possible That Justice Should Sometimes Fail Of Being Done Through
The Disagreements Of Jurors, Notwithstanding All The Light Which
Judges And Lawyers Can Throw Upon The Question In Issue. If It Be
Asked What Provision The Trial By Jury Makes For Such Cases, The
Answer Is, It Makes None; And Justice Must Fail Of Being Done,
From The Want Of Its Being Made Sufficiently Intelligible.
Under The Trial By Jury, Justice Can Never Be Done That Is, By A
Judgment That Shall Take A Party's Goods, Rights, Or Person
Until That Justice Can Be Made Intelligible Or Perceptible To The
Minds Of All The Jurors; Or, At Least, Until It Obtain The
Voluntary Assent Of All An Assent, Which Ought Not To Be Given
Until The Justice Itself Shall Have Become Perceptible To All.
The Principles Of The Trial By Jury, Then, Are These:
1. That, In Criminal Cases, The Accused Is Presumed Innocent.
Chapter 5 (Objections Answered) Pg 107
2. That, In Civil Cases, Possession Is Presumptive Proof Of
Property; Or, In Other Words, Every Man Is Presumed To Be The
Rightful Proprietor Of Whatever He Has In His Possession.
3. That These Presumptions Shall Be Overcome, In A Court Of
Justice, Only By Evidence, The Sufficiency Of Which, And By Law,
The Justice Of Which, Are Satisfactory To The Under- Standing And
Consciences Of All The Jurors.
These Are The Bases On Which The Trial By Jury Places The
Property, Liberty, And Rights Of Every Individual.
But Some One Will Say, If These Are The Principles Of The Trial By
Jury, Then It Is Plain That Justice Must Often Fail To Be Done.
Admitting, For The Sake Of The Argument, That This May Be True,
The Compensation For It Is, That Positive Injustice Will Also
Often Fail To Be Done; Whereas Otherwise It Would Be Done
Frequently. The Very Precautions Used To Prevent Injustice Being
Done, May Often Have The Effect To Prevent Justice Being Done. Bu
Are We, Therefore, To Take No Precautions Against Injustice? By No
Means, All Will Agree. The Question Then Arises Does The Trial
By Jury, As Here Explained, Involve Such Extreme And Unnecessary
Precautions Against Injustice, As To Interpose Unnecessary
Obstacles To The Doing Of Justice? Men Of Different Minds May Very
Likely Answer This Question Differently, According As They Have
More Or Less Confidence In The Wisdom And Justice Of Legislators,
The Integrity And Independence Of Judges, And The Intelligence Of
Jurors. This Much, However, May Be Said In Favor Of These
Precautions, Viz., That The History Of The Past, As Well As Our
Constant Present Experience, Prove How Much Injustice May, And
Certainly Will, Be Done, Systematically And Continually, For The
Want Of These Precautions That Is, While The Law Is Authoritatively
Made And Expounded By Legislators And Judges. On The Other Hand,
We Have No Such Evidence Of How Much Justice May Fail To Be Done,
By Reason Of These Precautions That Is, By Reason Of The Law Being
Left To The Judgments And Consciences Of Jurors. We Can Determine
The Former Point That Is, How Much Positive Injustice Is Done
Under The First Of These Two Systems Because The System Is In Full
Operation; But We Cannot Determine How Much Justice Would
Fail To Be Done Under The Latter System, Because We Have, In
Modern Times, Had No Experience Of The Use Of The Precautions
Themselves. In Ancient Times, When These Precautions Were
Nominally In Force, Such Was The Tyranny Of Kings, And Such The
Poverty, Ignorance, And The Inability Of Concert And Resistance,
On The Part Of The People, That The System Had No Full Or Fair
Operation. It, Nevertheless, Under All These Disadvantages,
Impressed Itself Upon The Understandings, And Imbedded Itself
In The Hearts, Of The People, So As No Other System Of Civil Liberty
Has Ever Done.
But This View Of The Two Systems Compares Only The Injustice Done,
And The Justice Omitted To Be Done, In The Individual Cases Adjudged,
Without Looking Beyond Them. And Some Persons Might, On
Chapter 5 (Objections Answered) Pg 108First Thought, Argue That, If Justice Failed Of Being Done Under
The One System, Oftener Than Positive Injustice Were Done Under
The Other, The Balance Was In Favor Of The Latter System. But Such
A Weighing Of The Two Systems Against Each Other Gives No True
Idea Of Their Comparative Merits Or Demerits; For, Possibly, In
This View Alone, The Balance Would Not Be Very Great In Favor Of
Either. To Compare, Or Rather To Contrast, The Two, We Must
Consider That, Under The Jury System, The Failures To Do Justice
Would Be Only Rare And Exceptional Cases; And Would Be Owing
Either To The Intrinsic Difficulty Of The Questions, Or To The
Fact That The Parties Had. Transacted Their Business In A Manner
Unintelligible To The Jury, And The Effects Would Be Confined To
The Individual Or Individuals Interested In The Particular Suits.
No Permanent Law Would Be Established Thereby Destructive Of The
Rights Of The People In Other Like Cases. And The People At Large
Would Continue To Enjoy All Their Natural Rights As Before. But
Under The Other System, Whenever An Unjust Law Is Enacted By The
Legislature, And The Judge Imposes It Upon The Jury As
Authoritative, And They Give A Judgment In Accordance Therewith,
The Authority Of The Law Is Thereby Established, And The Whole
People Are Thus Brought Under The Yoke Of That Law; Because They
Then Understand That The Law Will Be Enforced Against Them In
Future, If They Presume To Exercise Their Rights, Or Refuse To
Comply With The Exactions Of The Law. In This Manner All Unjust
Laws Are Established, And Made Operative Against The Rights Of The
People.
The Difference, Then, Between The Two Systems Is This: Under The
One System, A Jury, At Distant Intervals, Would (Not Enforce Any
Positive Injustice, But Only) Fail Of Enforcing Justice, In A Dark
And Difficult Case, Or In Consequence Of The Parties Not Having
Transacted Their Business In A Manner Intelligible To A Jury; And
The Plaintiff Would Thus Fail Of Obtaining What Was Rightfully Due
Him. And There The Matter Would End, For Evil, Though Not For
Good; For Thenceforth Parties, Warned, Of The Danger Of Losing
Their Rights, Would Be Careful To Transact Their Business In A
More Clear And Intelligible Manner. Under The Other System The
System Of Legislative And Judicial Authority Positive Injustice
Is Not Only Done In Every Suit Arising Under Unjust Laws, That
Is, Men's Property, Liberty, Or Lives Are Not Only Unjustly Taken
On Those Particular Judgments, But The Rights Of The Whole People
Are Struck Down By The Authority Of The Laws Thus Enforced, And A
Wide-Sweeping Tyranny At Once Put In Operation.
But There Is Another Ample And Conclusive Answer To The Argument
That Justice Would Often Fail To Be Done, If Jurors Were Allowed
To Be Governed By Their Own Consciences, Instead Of The Direction
Of The Justices, In Matters Of Law. That Answer Is This:
Legitimate Government Can Be Formed Only By The Voluntary
Association Of All Who Contribute To Its Support. As A Voluntary
Association, It Can Have For Its Objects Only Those Things In
Which The Members Of The Association Are All Agreed. If,
Therefore, There Be Any Justice, In Regard To Which All The
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