An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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Country And Not By The Government; Secondly, By The Provision
That "The Right Of The People To Keep And Bear Arms Shall Not Be
Infringed." This Constitutional Security For "The Right To Keep And
Bear Arms," Implies The Right To Use Them As Much As A
Constitutional Security For The Right To Buy And Keep Food Would
Have Implied the Right To Eat It. The Constitution, Therefore, Takes It
For Granted that
The People Will Judge Of The Conduct Of The Government, And That,
As They Have The Right, They Will Also Have The Sense, To Use Arms,
Whenever The Necessity Of The Case Justifies It. And It Is A Sufficient
And Legal Defence For A Person Accused of Using arms Against The
Government, If He Can Show, To The Satisfaction Of A Jury, Or Even
Any One Of A Jury, That The Law He Resisted was An Unjust One.
In The American State Constitutions Also, This Right Of Resistance To
The Oppressions Of The Government Is Recognized, In various Ways,
As A Natural, Legal, And Constitutional Right. In the First Place, It Is
So Recognized by Provisions Establishing the Trial By Jury; Thus
Requiring that Accused persons Shall Be Tried by "The Country,"
Instead Of The Government. In the Second Place, It Is Recognized by
Many Of Them, As, For Example, Those Of Massachusetts, Maine,
Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan,
Kentucky, Tennessee, Arkansas, Mississippi, Alabama, And
Florida, By Provisions Expressly Declaring that The People Shall
Have The Right To Bear Arms. In many Of Them Also, As, For Example,
Those Of Maine, New Hampshire, Vermont, Massachusetts, New
Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 14Iowa, And Arkansas, By Provisions, In their Bills Of Rights, Declaring
That Men Have A Natural, Inherent, And Inalienable Right Of
"Defending their Lives And Liberties." This, Of Course, Means That
They Have A Right To Defend Them Against Any Injustice On The Part
Of The Government, And Not Merely On The Part Of Private
Individuals; Because The Object Of All Bills Of Rights Is To Assert The
Rights Of Individuals And The People, As Against The Government,
And Not As Against Private Persons. It Would Be A Matter Of
Ridiculous Supererogation To Assert, In a Constitution Of
Government, The Natural Right Of Men To Defend Their Lives And
Liberties Against Private Trespassers.
Many Of These Bills Of Rights Also Assert The Natural Right Of All Men
To Protect Their Property That Is, To Protect It Against The
Government. It Would Be Unnecessary And Silly Indeed to Assert, In
A Constitution Of Government, The Natural Right Of Individuals To
Protect Their Property Against Thieves And Robbers.
The Constitutions Of New Hampshire And Tennessee Also Declare
That "The Doctrine Of Non-Resistance Against Arbitrary Power And
Oppression Is Absurd, Slavish, And Destructive Of The Good And
Happiness Of Mankind."
The Legal Effect Of These Constitutional Recognitions Of The Right Of
Individuals To Defend Their Property, Liberties, And Lives, ' Against
The Government, Is To Legalize Resistance To All Injustice And
Oppression, Of Every Name And Nature Whatsoever, On The Part Of
The Government.
But For This Right Of Resistance, On The Part Of The People, All
Governments Would Become Tyrannical To A Degree Of Which Few
People Are Aware. Constitutions Are Utterly Worthless To Restrain The
Tyranny Of Governments, Unless It Be Understood That The People
Will, By Force, Compel The Government To Keep Within The
Constitutional Limits. Practically Speaking, No Government Knows
Any Limits To Its Power, Except The Endurance Of The People. But
That The People Are Stronger Than The Government, And Will Resist In
Extreme Cases, Our Governments Would Be Little Or Nothing else
Than Organized systems Of Plunder And Oppression. All, Or Nearly
All, The Advantage There Is In fixing any Constitutional Limits To The
Power Of A Government, Is Simply To Give Notice To The Government
Of The Point At Which It Will Meet With Resistance. If The People Are
Then As Good As Their Word, They May Keep The Government Within
The Bounds They Have Set For It; Otherwise It Will Disregard Them As
Is Proved by The Example Of All Our American Governments, In
Which The Constitutions Have All Become Obsolete, At The Moment
Of Their Adoption, For Nearly Or Quite All Purposes Except The
Appointment Of Officers, Who At Once Become Practically Absolute,
Except So Far As They Are Restrained by The Fear Of Popular
Resistance.
The Bounds Set To The Power Of The Government, By The Trial By
Jury, As Will Hereafter Be Shown, Are These That The Government
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 15Shall Never Touch The Property, Person, Or Natural Or Civil Rights Of
An Individual, Against His Consent, {Xcept For The Purpose Of
Bringing them Before A Jury For Trial,) Unless In pursuance And
Execution Of A Judgment, Or Decree, Rendered by A Jury In each
Individual Case, Upon Such Evidence, Nd Such Law, As Are
Satisfactory To Their Own Understandings And Consciences,
Irrespective Of All Legislation Of The Government.
[1]To Show That This Supposition Is Not An Extravagant One, It May
Be Mentioned that Courts Have Repeatedly Questioned jurors To
Ascertain Whether They Were Prejudiced against The Government
That Is, Whether They Were In favor Of, Or Opposed to, Such Laws Of
The Government As Were To Be Put In issue In the Then Pending trial.
This Was Done (In 1851) In the United states District Court For The
District Of Massachusetts, By Peleg Sprague, The United states
District Judge, In empanelling three Several Juries For The Trials Of
Scott, Hayden, And Morris, Charged with Having aided in the Rescue
Of A Fugitive Slave From The Custody Of The United states Deputy
Marshal. This Judge Caused the Following question To Be
Propounded to All The Jurors Separately; And Those Who Answered
Unfavorably For The Purposes Of The Government, Were Excluded
From The Panel.
"Do You Hold Any Opinions Upon The Subject Of The Fugitive Slave
Law, So Called, Which Will Induce You To Refuse To Convict A Person
Indicted under It, If The Facts Set Forth, In the Indictment, And
Constituting the Offence, Are Proved against Him, And The Court
Direct You That The Law Is Constitutional?"
The Reason Of This Question Was, That "The Fugitive Slave Law, So
Called," Was So Obnoxious To A Large Portion Of The People, As To
Render A Conviction Under It Hopeless, If The Jurors Were Taken
Indiscriminately From Among The People.
A Similar Question Was Soon Afterwards Propounded to The Persons
Drawn As Jurors In the United states Circuit Court For The District
Of Massachusetts, By Benjamin R. Curtis, One Of The Justices Of The
Supreme Court Of The United states, In empanelling a Jury For The
Trial Of The Aforesaid Morris On The Charge Before Mentioned; And
Those Who Did Not Answer The Question Favorably For The
Government Were Again Excluded from The Panel.
It Has Also Been An Habitual Practice With The Supreme Court Of
Massachusetts, In empanelling juries For The Trial Of Capital
Offences, To Inquire Of The Persons Drawn As Jurors Whether They
Had Any Conscientious Scruples Against Finding verdicts Of Guilty In
Such Eases; That Is, Whether They Had Any Conscientious Scruples
Against Sustaining the Law Prescribing death As The Punishment Of
The Crime To Be Trick; And To Exclude From The Panel All Who
Answered in the Affirmative.
The Only Principle Upon Which These Questions Are Asked, Is This
That No Man Shall Be Allowed to Serve As Juror, Unless He Be Ready
To Enforce Any Enactment Of The Government, However Cruel Or
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 16Tyrannical It May Be.
What Is Such A Jury Good For, As A Protection Against The Tyranny Of
The Government? A Jury Like That Is Palpably Nothing but, A Mere
Tool Of Oppression In the Hands Of The Government. A Trial By Such
A Jury Is Really A Trial By The Government Itself And Not A Trial By
The Country Because It Is A Trial Only By Men Specially Selected by
The Government For Their Readiness To Enforce Its Own Tyrannical
Measures.
If That Be The True Principle Of The Trial By Jury, The Trial Is Utterly
Worthless As A Security To Liberty. The Czar Might, With Perfect
Safety To His Authority, Introduce The Trial By Jury Into Russia, If He
Could But Be Permitted to Select His Jurors From Those Who Were
Ready To Maintain His Laws, Without Regard To Their Injustice.
This Example Is Sufficient To Show That The Very Pith Of The Trial By
Jury, As A Safeguard To Liberty, Consists In the Jurors Being taken
Indiscriminately From The Whole People, And In their Right To Hold
Invalid All Laws Which They Think Unjust.
[2] The Executive Has A Qualified veto Upon The Passage Of Laws, In
Most Of Our Governments, And An Absolute Veto, In all Of Them,
Upon The Execution Of Any Laws Which He Deems Unconstitutional;
Because His Oath To Support The Constitution (As He Understands It)
Forbids Him To Execute Any Law That He Deems Unconstitutional.
[3] And If There Be So Much As A Reasonable Doubt Of The Justice Of
The Laws, The Benefit Of That Doubt Must Be Given To The Defendant,
And Not To The Government. So That The Government Must Keep Its
Laws Clearly Within The Limits Of Justice, If It Would Ask A Jury To
Enforce Them.
[4] Hallam Says, "The Relation Established between A Lord And His
Vassal By The Feudal Tenure, Far From Containing principles Of Any
Servile And Implicit Obedience, Permitted the Compact To Be
Dissolved in case Of Its Violation By Either Party. This Extended as
Much To The Sovereign As To Inferior Lords. * * If A, Vassal Was
Aggrieved, And If Justice Was Denied him, He Sent A Defiance, That
Is, A Renunciation Of Fealty To The King, And Was Entitled to Enforce
Redress At The Point Of His Sword. It Then Became A Contest Of
Strength As Between Two Independent Potentates, And Was
Terminated by Treaty, Advantageous Or Otherwise, According to The
Fortune Of War. * * There Remained the Original Principle, That
Allegiance Depended conditionally Upon Good Treatment, And That
An Appeal Might Be Lawfully Made To Arms Against An Oppressive
Government. Nor Was This, We May Be Sure, Left For Extreme
Necessity, Or Thought To Require A Long-Enduring forbearance. In
Modern Times, A King, Compelled by His Subjects' Swords To
Abandon Any Pretension,
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