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

Chapter 5 (Objections Answered) Pg 109

Parties To The Government Are Not Agreed,  The Objects Of The

Association Do Not Extend To It. [3]

 

If Any Of The Members Wish More Than This,   If They Claim To Have

Acquired A More Extended Knowledge Of Justice Than Is Common To

All,  And Wish To Have Their Pretended Discoveries Carried Into

Effect,  In Reference To Themselves,    They Must Either Form A

Separate Association For That Purpose,  Or Be Content To Wait Until

They Can Make Their Views Intelligible To The People At Large.

They Cannot Claim Or Expect That The Whole People Shall Practise

The Folly Of Taking On Trust Their Pretended Superior Knowledge,

And Of Committing Blindly Into Their Hands All Their Own

Interests,  Liberties,  And Rights,  To Be Disposed Of On Principles,

The Justness Of Which The People Themselves Cannot Comprehend.

 

A Government Of The Whole,  Therefore,  Must Necessarily Confine

Itself To The Administration Of Such Principles Of Law As All The

People,  Who Contribute To The Support Of The Government,  Can

Comprehend And See The Justice Of. And It Can Be Confined Within

Those Limits Only By Allowing The Jurors,  Who Represent All The

Parties To The Compact,  To Judge Of The Law,  And The Justice Of

The Law,  In All Cases Whatsoever. And If Any Justice Be Left

Undone,  Under These Circumstances,  It Is A Justice For Which The

Nature Of The Association Does Not Provide,  Which The Association

Does Not Undertake To Do,  And Which,  As An Association,  It Is

Under No Obligation To Do.

 

The People At Large,  The Unlearned And Common People,  Have

Certainly An Indisputable Right To Associate For The Establishment

And Maintenance Of Such A Government As They Themselves See The

Justice Of,  And Feel The Need Of,  For The Promotion Of Their Own

Interests,  And The Safety Of Their Own Rights,  Without At The Same

Time Surrendering All Their Property,  Liberty,  And Rights Into The

Hands Of Men,  Who,  Under The Pretence Of A Superior And

Incomprehensible Knowledge Of Justice,  May Dispose Of Such

Property,  Liberties,  And Rights,  In A Manner To Suit Their Own

Selfish And Dishonest Purposes.

 

If A Government Were To Be Established And Supported Solely By

That Portion Of The People Who Lay Claim To Superior Knowledge,

There Would Be Some Consistency In Their Saying That The Common

People Should Not Be Received As Jurors,  With Power To Judge Of

The Justice Of The Laws. But So Long As The Whole People (Or All

The Male Adults) Are Presumed To Be Voluntary Parties To The

Government,  And Voluntary Contributors To It Support,  There Is No

Consistency In Refusing To Any One Of Them More Than To Another

The Right To Sit As Juror,  With Full Power To Decide For Himself

Whether Any Law That Is Proposed To Be Enforced In Any Particular

Case,  Be Within The Objects Of The Association.

 

The Conclusion,  Therefore,  Is,  That,  In A Government Formed By

Voluntary Association,  Or On The Theory Of Voluntary Association,

And Voluntary Support,  (As All The North American Governments

Are,) No Law Can Rightfully Be Enforced By The Association In Its

Chapter 5 (Objections Answered) Pg 110

Corporate Capacity,  Against The Goods,  Rights,  Or Person Of Any

Individual,  Except It Be Such As All The Members Of The

Association Agree That It May Enforce. To Enforce Any Other Law,

To The Extent Of Taking A Man's Goods,  Rights,  Or Person,  Would Be

Making Some Of The Parties To The Association Accomplices In What

They Regard As Acts Of Injustice. It Would Also Be Making Them

Consent To What They Regard As The Destruction Of Their Own

Rights. These Are Things Which No Legitimate System Or Theory Of

Government Can Require Of Any Of The Parties To It.

 

The Mode Adopted,  By The Trial By Jury,  For Ascertaining Whether

All The Parties To The Government Do Approve Of A Particular Law,

Is To Take Twelve Men At Random From The Whole People,  And Accept

Their Unanimous Decision As Representing The Opinions Of The

Whole. Even This Mode Is Not Theoretically Accurate; For

Theoretical Accuracy Would Require That Every Man,  Who Was A

Party To The Government,  Should Individually Give His Consent To The

Enforcement Of Every Law In Every Separate Case. But Such A Thing

Would Be Impossible In Practice. The Consent Of Twelve Men Is

Therefore Taken Instead; With-The Privilege Of Appeal,  And (In

Case Of Error Found By The Appeal Court) A New Trial,  To Guard

Against Possible Mistakes. This System,  It Is Assumed,  Will

Ascertain The Sense Of The Whole People   "The Country"   With

Sufficient Accuracy For All Practical Purposes,  And With As Much

Accuracy As Is Practicable Without Too Great Inconvenience And

Expense.

 

5. Another Objection That Will Perhaps Be Made To Allowing Jurors

To Judge Of The Law,  And The Justice Of The Law,  Is,  That The Law

Would Be Uncertain.

 

If,  By This Objection,  It Be Meant That The Law Would Be Uncertain

To The Minds Of The People At Large,  So That They Would Not Know

What The Juries Would Sanction And What Condemn,  And Would Not

Therefore Know Practically What Their Own Rights And Liberties

Were Under The Law,  The Objection Is Thoroughly Baseless And

False. No System Of Law That Was Ever Devised Could Be So Entirely

Intelligible And Certain To The Minds Of The People At Large As

This. Compared With It,  The Complicated Systems Of Law That Are

Compounded Of The Law Of Nature,  Of Constitutional Grants,  Of

Innumerable And Incessantly Changing Legislative Enactments,  And

Of Countless And Contradictory Judicial Decisions,  With No Uniform

Principle Of Reason Or Justice Running Through Them,  Are Among The

Blindest Of All The Mazes In Which Unsophisticated Minds Were Ever

Bewildered And Lost. The Uncertainty Of The Law Under These

Systems Has Become A Proverb. So Great Is This Uncertainty,  That

Nearly All Men,  Learned As Well As Unlearned,  Shun The Law As

Their Enemy,  Instead Of Resorting To It For Protection. They

Usually Go Into Courts Of Justice,  So Called,  Only As Men Go Into

Battle   When There Is No Alternative Left For Them. And Even Then

They Go Into Them As Men Go Into Dark Labyrinths And Caverns 

With No Knowledge Of Their Own,  But Trusting Wholly To Their

Guides. Yet,  Less Fortunate Than Other Adventurers,  They Can Have

Little Confidence Even In Their Guides,  For The Reason That The

Chapter 5 (Objections Answered) Pg 111

Guides Themselves Know Little Of The Mazes They Are Threading.

They Know The Mode And Place Of Entrance; But What They Will

Meet With On Their Way,  And What Will Be The Time,  Mode,  Place, 

Or Condition Of Their Exit; Whether They Will Emerge Into A Prison,

Or Not; Whether Wholly Naked And Destitute,  Or Not; Whether With

Their Reputations Left To Them,  Or Not; And Whether In Time Or

Eternity; Experienced And Honest Guides Rarely Venture To Predict.

Was There Ever Such Fatuity As That Of A Nation Of Men Madly Bent

On Building Up Such Labyrinhs As These,  For No Other Purpose Than

That Of Exposing All Their Rights Of Reputation,  Property,  Liberty, 

And Life,  To The Hazards Of Being Lost In Them,  Instead Of Being

Content To Live In The Light Of The Open Day Of Their Own

Understandings?

 

What Honest,  Unsophisticated Man Ever Found Himself Involved

In A Lawsuit,  That He Did Not Desire,  Of All Things,  That His Cause

Might Be Judged Of On Principles Of Natural Justice,  As Those

Principles Were Understood By Plain Men Like Himself? He Would

Then Feel That He Could Foresee The Result. These Plain Men Are

The Men Who Pay The Taxes,  And Support The Government. Why

Should They Not Have Such An Administration Of Justice As They

Desire,  And Can Understand?

 

If The Jurors Were To Judge Of The Law,  And The Justice Of The

Law,  There Would Be Something Like Certainty In The Administration

Of Justice,  And In The Popular Knowledge Of The Law,  And Men

Would Govern Themselves Accordingly. There Would Be Something

Like Certainty,  Because Every Man Has Himself Something Like

Definite And Clear Opinions,  And Also Knows Something Of The

Opinions Of His Neighbors,  On Matters Of Justice. And He Would

Know That No Statute,  Unless It Were So Clearly Just As To Command

The Unanimous Assent Of Twelve Men,  Who Should Be Taken At Random

From The Whole Community,  Could Be Enforced So As To Take From Him

His Reputation,  Property,  Liberty,  Or Life. What Greater Certainty Can

Men Require Or Need,  As To The Laws Under Which They Are To Live?

If A Statute Were Enacted By A Legislature,  A Man,  In Order To Know

What Was Its True Interpretation,  Whether It Were Constitutional,  And

Whether It Would Be Enforced,  Would Not Be Under The Necessity Of

Waiting For Years Until Some Suit Had Arisen And Been Carried Through

All The Stages Of Judicial Proceeding,  To A Final Decision. He Would

Need Only To Use His Own Reason As To Its Meaning And Its Justice, 

And Then Talk With His Neighbors On The Same Points. Unless He

Found Them Nearly Unanimous In Their Interpretation And Approbation

Of It,  He Would Conclude That Juries Would Not Unite In Enforcing It, 

And That It Would Consequently Be A Dead Letter. And He Would Be

Safe In Coming To This Conclusion.

 

There Would Be Something Like Certainty In The Administration Of

Justice,  And In The Popular Knowledge Of The Law,  For The Further

Reason That There Would Be Little Legislation,  And Men's Rights

Would Be Left To Stand Almost Solely Upon The Law Of Nature,  Or

What Was Once Called In England "The Common Law," (Before So

Much Legislation And Usurpation Had Become Incorporated Into The

Common Law,) In Other Words,  Upon The Principles Of Natural Justice.

Chapter 5 (Objections Answered) Pg 112

Of The Certainty Of This Law Of Nature,  Or The Ancient English

Common Law,  I May Be Excused For Repeating Here What,  I Have

Said On Another Occasion.

 

"Natural Law,  So Far From Being Uncertain,