An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) 📖

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

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

Chapter 5 (Objections Answered) Pg 130

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

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?

Chapter 5 (Objections Answered) Pg 131

 

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.

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,  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

Chapter 5 (Objections Answered) Pg 132

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