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

When Compared With

Statutory And Constitutional Law,  Is The Only Thing That Gives Any

Certainty At All To A Very Large Portion Of Our Statutory And

Constitutional Law. The Reason Is This. The Words In Which

Statutes And Constitutions Are Written Are Susceptible Of So Many

Different Meanings,    Meanings Widely Different From,  Often

Directly Opposite To,  Each Other,  In Their Bearing Upon Men's

Rights,    That,  Unless There Were Some Rule Of Interpretation For

Determining Which Of These Various And Opposite Meanings Are The

True Ones,  There Could Be No Certainty At All As To The Meaning Of

The Statutes And Constitutions Themselves. Judges Could Make

Almost Anything They Should Please Out Of Them. Hence The

Necessity Of A Rule Of Interpretation. And This Rule Is,  That The

Language Of Statutes And Constitutions Shall Be Construed,  As

Nearly As Possible,  Consistently With Natural Law.

 

The Rule Assumes,  What Is True,  That Natural Law Is A Thing

Certain In Itself; Also That It Is Capable Of Being Learned. It

Assumes,  Furthermore,  That It Actually Is Understood By The

Legislators And Judges Who Make And Interpret The Written Law.

Of Necessity,  Therefore,  It Assumes Further,  That They (The

Legislators And Judges) Are Incompetent To Make And Interpret The

Written Law,  Unless They Previously Understand The Natural Law

Applicable To The Same Subject. It Also Assumes That The People

Must Understand The Natural Law,  Before They Can Understated The

Written Law.

 

It Is A Principle Perfectly Familiar To Lawyers,  And One That Must

Be Perfectly Obvious To Every Other Man That Will Reflect A

Moment,  That,  As A General Rule,  No One Can Know What The Written

Law Is,  Until He Knows What It Ought To Be; That Men Are Liable To

Be Constantly Misled By The Various And Conflicting Senses Of The

Same Words,  Unless They Perceive The True Legal Sense In Which The

Words Ought To Be Taken. And This True Legal Sense Is The Sense

That Is Most Nearly Consistent With Natural Law Of Any That The

Words Can Be Made To Bear,  Consistently With The Laws Of Language,

And Appropriately To The Subjects To Which They Are Applied.

 

Though The Words Contain The Law,  The Words Themselves Are Not

The Law. Were The Words Themselves The Law,  Each Single Written

Law Would Be Liable To Embrace Many Different Laws,  To Wit,  As

Many Different Laws As There Were Different Senses,  And Different

Combinations Of Senses,  In Which Each And All The Words Were

Capable Of Being Taken.

 

Take,  For Example,  The Constitution Of The United States. By

Adopting One Or Another Sense Of The Single Word "Free,"  The

Whole Instrument Is Changed. Yet The Word Free Is Capable Of Some

Ten Or Twenty Different Senses. So That,  By Changing The Sense Of

That Single Word,  Some Ten Or Twenty Different Constitutions Could

Be Made Out Of The Same Written Instrument. But There Are,  We Will

Suppose,  A Thousand Other Words In The Constitution,  Each Of Which

Is Capable Of From Two To Ten Different Senses. So That,  By

Changing The Sense Of Only A Single Word At A Time,  Several

Thousands Of Different Constitutions Would Be Made. But This Is

Not All. Variations Could Also Be Made By Changing The Senses Of

Two Or More Words At A Time,  And These Variations Could Be Run

Through All The Changes And Combinations Of Senses That These

Thousand Words Are Capable Of. We See,  Then,  That It Is No More

Than A Literal Truth,  That Out Of That Single Instrument,  As It

Now Stands,  Without Altering The Location Of A Single Word,  Might

Be Formed,  By Construction And Interpretation,  More Different

Constitutions Than Figures Can Well Estimate.

 

But Each Written Law,  In Order To Be A Law,  Must Be Taken Only In

Some One Definite And Distinct Sense; And That Definite And

Distinct Sense Must Be Selected From The Almost Infinite Variety

Of Senses Which Its Words Are Capable Of. How Is This Selection To

Be Made? It Can Be Only By The Aid Of That Perception Of Natural

Law,  Or Natural Justice,  Which Men Naturally Possess.

Such,  Then,  Is The Comparative Certainty Of The Natural And The

Written Law. Nearly All The Certainty There Is In The Latter,  So

Far As It Relates To Principles,  Is Based Upon,  And Derived From,

The Still Greater Certainty Of The Former. In Fact,  Nearly All The

Uncertainty Of The Laws Under Which We Live,    Which Are A Mixture

Of Natural And Written Laws,    Arises From The Difficulty Of

Construing,  Or,  Rather,  From The Facility Of Misconstruing,  The

Written Law; While Natural Law Has Nearly Or Quite The Same

Certainty As Mathematics. On This Point,  Sir William Jones,  One Of

The Most Learned Judges That Have Ever Lived,  Learned In Asiatic

As Well As European Law,  Says,     And  The Fact Should Be Kept

Forever In Mind,  As One Of The Most Important Of All Truths:   "It

Is Pleasing To Remark,  The Similarity,  Or,  Rather,  The Identity Of

Those Conclusions Which Pure,  Unbiased Reason,  In All Ages; And

Nations,  Seldom Fails To Draw,  In Such Juridical Inquiries As Are

Not Fettered And Manacled By Positive Institutions." [4] In Short,

The Simple Fact That The Written Law Must Be Interpreted By The

Natural,  Is,  Of Itself,  A Sufficient Confession Of The Superior

Certainty Of The Latter.

 

The Written Law,  Then,  Even Where It Can Be Construed Consistently

With The Natural,  Introduces Labor And Obscurity,  Instead Of

Shutting Them Out. And This Must Always Be The Case,  Because

Words Do Not Create Ideas,  But Only Recall Them; And The Same

Word May Recall Many Different Ideas. For This Reason,  Nearly All

Abstract Principles Can Be Seen By The Single Mind More Clearly

Than They Can Be Expressed By Words To Another. This Is Owing To The

Imperfection Of Language,  And The Different Senses,  Meanings,  And

Shades Of Meaning,  Which Different Individuals Attach To The Same

Words,  In The Same Circumstances. [5]

 

Where The Written Law Cannot Be Construed Consistently With The

Natural,  There Is No Reason Why It Should Ever Be Enacted At All.

It May,  Indeed,  Be Sufficiently Plain And Certain To Be Easily

Chapter 5 (Objections Answered) Pg 113

Understood; But Its Certainty And Plainness Are But A Poor

Compensation For Its Injustice. Doubtless A Law Forbidding Men To

Drink Water,  On Pain Of Death,  Might Be Made So Intelligible As To

Cut Off All Discussion As To Its Meaning; But Would The

Intelligibleness Of Such A Law Be Any Equivalent For The Right To

Drink Water? 

 

The Principle Is The Same In Regard To All Unjust Laws. Few

Persons Could Reasonably Feel Compensated For The Arbitrary

Destruction Of Their Rights,  By Having The Order For Their

Destruction Made Known Beforehand,  In Terms So Distinct And

Unequivocal As To Admit Of Neither Mistake Nor Evasion. Yet This

Is All The Compensation That Such Laws Offer.

 

Whether,  Therefore,  Written Laws Correspond With,  Or Differ From,

The Natural,  They Are To Be Condemned. In The First Case,  They Are

Useless Repetitions,  Introducing Labor And Obscurity. In The

Latter Case,  They Are Positive Violations Of Men's Rights.

There Would Be Substantially The Same Reason In Enacting

Mathematics By Statute,  That There Is In Enacting Natural Law.

Whenever The Natural Law Is Sufficiently Certain To All Men's

Minds To Justify Its Being Enacted,  It Is Sufficiently Certain To

Need No Enactment. On The Other Hand,  Until It Be Thus Certain,

There Is Danger Of Doing Injustice By Enacting It; It Should,

Therefore,  Be Left Open To Be Discussed By Anybody Who May Be

Disposed To Question It,  And To Be Judged Of By The Proper

Tribunal,  The Judiciary. [6]

 

It Is Not Necessary That Legislators Should Enact Natural Law In

Order That It May Be Known To The People,  Because That Would Be

Presuming That The Legislators Already Understand It Better Than

The People,    A Fact Of Which I Am Not Aware That They Have Ever

Heretofore Given Any Very Satisfactory Evidence. The Same Sources

Of Knowledge On The Subject Are Open To The People That Are Open

To The Legislators,  And The People Must Be Presumed To Know It As

Well As They.

 

The Objections Made To Natural Law,  On The Ground Of Obscurity,

Are Wholly Unfounded. It Is True,  It Must Be Learned,  Like Any

Other Science; But It Is Equally True That It Is Very Easily

Learned. Although As Illimitable In Its Applications As The

Infinite Relations Of Men To Each Other,  It Is,  Nevertheless,  Made

Up Of Simple Elementary Principles,  Of The Truth And Justice Of

Which Every Ordinary Mind Has An Almost Intuitive Perception. It

Is The Science Of Justice,    And Almost All Men Have The Same

Perceptions Of What Constitutes Justice,  Or Of What Justice

Requires,  When They Understand Alike The Facts From Which Their

Inferences Are To Be Drawn. Men Living In Contact With Each Other,

And Having Intercourse Together,  Cannot Avoid Learning Natural

Law,  To A Very Great Extent,  Even If They Would. The Dealings Of

Men With Men,  Their Separate Possessions,  And Their Individual

Wants,  Are Continually Forcing Upon Their Minds The Questions,  

Is This Act Just? Or Is It Unjust? Is This Thing Mine? Or Is It

His? And These Are Questions Of Natural Law; Questions,  Which,  In

Chapter 5 (Objections Answered) Pg 114

Regard To The Great Mass Of Cases,  Are Answered Alike By The Human

Mind Everywhere.

 

Children Learn Many Principles Of Natural Law At A Very Early Age.

For Example: They Learn That When One Child Has Picked Up An

Apple Or A Flower,  It Is His,  And That His Associates Must Not Take It

From Him Against His Will. They Also Learn That If He Voluntarily

Exchange His Apple Or Flower With A Playmate,  For Some Other

Article Of Desire,  He Has Thereby Surrendered His Right To It,  And

Must Not Reclaim It. These Are Fundamental Principles Of Natural

Law,  Which Govern Most Of The Greatest Interests Of Individuals

And Society; Yet Children Learn Them Earlier Than They Learn That

Three And Three Are Six,  Or Five And Five,  Ten. Talk Of Enacting

Natural Law By Statute,  That It May Be Known! It Would Hardly Be

Extravagant To Say,  That,  In Nine Cases In Ten,  Men Learn It

Before They Have Learned The Language By Which We Describe It.

Nevertheless,  Numerous Treatises Are Written On It,  As On Other

Sciences. The Decisions Of Courts,  Containing Their Opinions Upon

The Almost Endless Variety Of Cases That Have Come Before Them,

Are Reported; And These Reports Are Condensed,  Codified,  And

Digested,  So As To Give,  In A Small Compass,  The Facts,  And The

Opinions Of The Courts As To The Law Resulting From Them. And

These Treatises,  Codes,  And Digests Are Open To Be Read Of All

Men. And A Man Has The Same Excuse For Being Ignorant Of

Arithmetic,  Or Any Other Science,  That He Has For Being Ignorant

Of Natural Law. He Can Learn It As Well,  If He Will,  Without Its

Being Enacted,  As He Could If It Were.

 

If Our Governments Would But Themselves Adhere To Natural Law,

There Would Be Little Occasion To Complain Of The Ignorance Of The

People In Regard To It. The Popular Ignorance Of Law Is

Attributable Mainly To The Innovations That Have Been Made Upon

Natural Law By Legislation; Whereby Our System Has Become An

Incongruous Mixture Of Natural And Statute Law,  With No Uniform

Principle Pervading It. To Learn Such A System,    If System It Can

Be Called,  And If Learned It Can Be,    Is A Matter Of Very