An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
Book online ยซAn Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐ยป. Author Lysander Spooner
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 180They 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 182Not 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
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