An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗

To Deny To

The People All Right To Judge For Themselves What Their Own

Rights And Liberties Are. In other Words,  The Whole Object Of The

Doctrine Is To Deny To The People Themselves All Right To Judge

What Statutes And Other Acts Of The Government Are Consistent Or

Inconsistent With Their Own Rights And Liberties; And Thus To

Reduce The People To The Condition Of Mere Slaves To A Despotic

Power,  Such As The People Themselves Would Never Have

Voluntarily Established,  And The Justice Of Whose Laws The People

Themselves Cannot Understand.

 

Under The True Trial By Jury All Tyranny Of This Kind Would Be

Abolished. A Jury Would Not Only Judge What Acts Were Really

Criminal,  But They Would Judge Of The Mental Capacity Of An

Accused person,  And Of His Opportunities For Understand- ing the

True Character Of His Conduct. In short,  They Would Judge Of His

Moral Intent From All The Circumstances Of The Case,  And Acquit

Him,  If They Had Any Reasonable Doubt That He Knew That He Was

Committing a Crime. [2]

 

[1] This Presumption,  Founded upon Age Alone,  Is As Absurd In

Civil Matters As In criminal. What Can Be More Entirely Ludicrous

Than The Idea That All Men (Not Manifestly Imbecile) Become

Mentally Competent To Make All Contracts Whatsoever On The Day

Chapter 9 (The Criminal Intent) Pg 180

They Become Twenty-One Years Of Age?   And That,  Previous To That

Day,  No Man Becomes Competent To Make Any Contract Whatever,

Except For The Present Supply Of The Most Obvious Wants Of

Nature? In reason,  A Man'S Legal Competency To Make

Binding contracts,  In any And Every Case Whatever,  Depends

Wholly Upon His Mental Capacity To Make Reasonable Contracts In

Each Particular Case. It Of Course Requires More Capacity To Make A

Reasonable Contract In some Cases Than In others. It Requires,

For Example,  More Capacity To Make A Reasonable Contract In the

Purchase Of A Large Estate,  Than In the Purchase Of A Pair Of

Shoes. But The Mental Capacity To Make A Reasonable Contract,  In

Any Particular Case,  Is,  In reason,  The Only Legal Criterion Of

The Legal Competency To Make A Binding contract In that Case. The

Age,  Whether More Or Less Than Twenty-One Years,  Is Of No Legal

Consequence Whatever,  Except That It Is Entitled to Some

Consideration As Evidence Of Capacity.

 

It May Be Mentioned,  In this Connection,  That The Rules That

Prevail,  That Every Man Is Entitled to Freedom From Parental

Authority At Twenty-One Years Of Age,  And No One Before That Age,

Are Of The Same Class Of Absurdities With Those That Have Been

Mentioned. The Only Ground On Which A Parent Is Ever Entitled to

Exercise Authority Over His Child,  Is That The Child Is Incapable

Of Taking reasonable Care Of Himself. The Child Would Be Entitled

To His Freedom From His Birth,  If He Were At That Time Capable Of

Taking reasonable Care Of Himself. Some Become Capable Of Taking

Care Of Themselves At An Earlier Age Than Others. And Whenever

Any One Becomes Capable Of Taking reasonable Care Of Himself,  And

Not Until Then,  He Is Entitled to His Freedom,  Be His Age More Or

Less.

 

These Principles Would Prevail Under The True Trial By Jury,  The

Jury Being the Judges Of The Capacity Of Every Individual Whose

Capacity Should Be Called in question.

 

[2] In contrast To The Doctrines Of The Text,  It May Be Proper To

Present More Distinctly The Doctrines That Are Maintained by

Judges,  And That Prevail In courts Of Justice. Of Course,  No

Judge,  Either Of The Present Day,  Or Perhaps Within The Last Five

Hundred years,  Has Admitted the Right Of A Jury To Judge Of The

Justice Of A Law,  Or To Hold Any Law Invalid For Its Injustice.

Every Judge Asserts The Power Of The Government To Punish For

Acts That Are Intrinsically Innocent,  And Which Therefore Involve

Or Evince No Criminal Intent.  To Accommodate The Administration

Of Law To This Principle,  All Judges,  So Far As I Am Aware,  Hold

It To Be Unnecessary That An Indictment Should Charge,  Or That A

Jury Should Find,  That An Act Was Done With A Criminal Intent,

Except In those Cases Where The Act Is Malum In se,   Criminal In

Itself. In all Other Cases,  So Far As I Am Aware,  They Hold It

Sufficient That The Indictment Charge,  And Consequently That The

Jury Find,  Simply That The Act Was Done " Contrary To The Form Of

The Statute In such Case Made And Provided;" In other Words,

Contrary To The Orders Of The Government.

 

Chapter 9 (The Criminal Intent) Pg 181

All These Doctrines Prevail Universally Among Judges,  And Are,  I

Think,  Uniformly Practised upon In courts Of Justice; And They

Plainly Involve The Most Absolute Despotism On The Part Of The

Government.

 

But There Is Still Another Doctrine That Extensively,  And Perhaps

Most Generally,  Prevails In practice,  Although Judges Are Not

Agreed in regard To Its Soundness. It Is This: That It Is Not

Even Necessary That The Jury Should See Or Know,  For Themselves,

What The Law Is That Is Charged to Have Been Violated; Nor To See

Or Know,  For Themselves,  That The Act Charged was In violation Of

Any Law Whatever;   But That It Is Sufficient That They Be Simply

Told By The Judge That Any Act Whatever,  Charged in an

Indictment,  Is In violation Of Law,  And That They Are Then Bound

Blindly To Receive The Declaration As True,  And Convict A Man

Accordingly,  If They Find That He Has Done The Act Charged.

 

This Doctrine Is Adopted by Many Among The Most Eminent Judges,

And The Reasons For It Are Thus Given By Lord Mansfield:

 

"They (The Jury) Do Not Know,  And Are Not Presumed to Know,  The

Law. They Are Not Sworn To Decide The Law;" [3] They Are Not

Required to Do It... The Jury Ought Not To Assume The

Jurisdiction Of Law. They Do Not Know,  And Are Not Presumed to

Know,  Anything of The Matter. They Do Not Understand The Language

In Which It Is Conceived,  Or The Meaning of The Terms. They Have

No Rule To Go By But Their Passions And Wishes."   8 Term Rep.,

428,  Note.

 

What Is This But Saying that The People,  Who Are Supposed to Be

Represented in juries,  And Who Institute And Support The

Government,  (Of Course For The Protection Of Their Own Rights And

Liberties,  As They Understand Them,  For Plainly No Other Motive

Can Be Attributed to Them,) Are Really The Slaves Of A Despotic

Power,  Whose Arbitrary Commands Even They Are Not Supposed

Competent To Understand,  But For The Transgression Of Which They

Are Nevertheless To Be Punished as Criminals

 

This Is Plainly The Sum Of The Doctrine,  Because The Jury Are The

Peers (Equals) Of The Accused,  And Are Therefore Supposed to Know

The Law As Well As He Does,  And As Well As It Is Known By The

People At Large. If They (The Jury) Are Not Presumed to Know The

Law,  Neither The Accused nor The People At Large Can Be Presumed

To Know It. Hence,  It Follows That One Principle Of The Truetrial By

Jury Is,  That No Accused person Shall Be Held Responsible For Any

Other Or Greater Knowledge Of The Law Than Is Common To His

Political Equals,  Who Will Generally Be Men Of Nearly Similar

Condition In life. But The Doctrine Of Mansfield Is,  That The Body

Of The People,  From Whom Jurors Are Taken,  Are Responsible To A

Law,  Which It Is Agreed they Cannot Understand. What Is This But

Despotism?   And Not Merely Despotism,  But Insult And Oppression

Of The Intensest Kind?

 

[3] This Declaration Of Mansfield,  That Juries In england "Are

Chapter 9 (The Criminal Intent) Pg 182

Not Sworn To Decide The Law" In criminal Cases,  Is A Plain

Falsehood. They Are Sworn To Try The Whole Case At Issue Between

The King and The Prisoner,  And That Includes The Law As Well As

The Fact. See Jurors Oath,  Page 85.

 

This Doctrine Of Mansfield Is The Doctrine Of All Who Deny The

Right Of Juries To Judge Of The Law,  Although All May Not Choose

To Express It In so Blunt And Unambiguous Terms. But The Doctrine

Evidently Admits Of No Other Interpretation Or Defence.

 

Chapter 10 ( Moral Considerations For Jurors) Pg 183

The Trial By Jury Must,  If Possible,  Be Construed to Be Such That

A Man Can Rightfully Sit In a Jury,  And Unite With His Fellows In

Giving judgment. But No Man Can Rightfully Do This,  Unless He

Hold In his Own Hand Alone A Veto Upon Any Judgment Or Sentence

Whatever To Be Rendered by The Jury Against A Defendant,  Which

Veto He Must Be Permitted to Use According to His Own Discretion

And Conscience,  And Not Bound To Use According to The Dictation

Of Either Legislatures Or Judges.

 

The Prevalent Idea,  That A Juror May,  At The Mere Dictation Of A

Legislature Or A Judge,  And Without The Concurrence Of His Own

Conscience Or Understanding,  Declare A Man "Guilty," And Thus In

Effect License The Government To Punish Him; And That The

Legislature Or The Judge,  And Not Himself,  Has In that Case All

The Moral Responsibility For The Correctness Of The Principles On

Which The Judgment Was Rendered,  Is One Of The Many Gross

Impostures By Which It Could Hardly Have Been Supposed that Any

Sane Man Could Ever Have Been Deluded,  But Which Governments

Have Nevertheless Succeeded in inducing the People At Large To Receive

And Act Upon.

 

As A Moral Proposition,  It Is Perfectly Self-Evident That,  Unless

Juries Have All The Legal Rights That Have Been Claimed for Them

In The Preceding chapters,    That Is,  The Rights Of Judging what

The Law Is,  Whether The Law Be A Just One,  What Evidence Is

Admissible,  What Weight The Evidence Is Entitled