An Essay On The Trial By Jury by Lysander Spooner (free ebook reader for android TXT) 📕

Restrain A Government That Was Otherwise Unrestrained? Orwhen

Did A Government Fail To Determine That All Its Acts Were Within The

Constitutional And Authorized limits Of Its Power,  If It Were

Permitted to Determine That Question For Itself?

Neither Is It Of Any Avail To Say,  That,  If The Government Abuse Its

Power,  And Enact Unjust And Oppressive Laws,  The Government May

Be Changed by The Influence Of Discussion,  And The Exercise Of The

Right Of Suffrage. Discussion Can Do Nothing to Prevent The

Enactment,  Or Procure The Repeal,  Of Unjust Laws,  Unless It Be

Understood That,  The Discussion Is To Be Followed by Resistance.

Tyrants Care Nothing for Discussions That Are To End Only In

Discussion. Discussions,  Which Do Not Interfere With The

Enforcement Of Their Laws,  Are But Idle Wind To Them. Suffrage Is

Equally Powerless And Unreliable. It Can Be Exercised only

Periodically; And The Tyranny Must At Least Be Borne Until The Time

For Suffrage Comes. Be Sides,  When The Suffrage Is Exercised,  It

Gives No Guaranty For The Repeal Of Existing laws That Are

Oppressive,  And No Security Against The Enactment Of New Ones That

Are Equally So. The Second Body Of Legislators Are Liable And Likely

To Be Just As Tyrannical As The First. If It Be Said That The Second

Body May Be Chosen For Their Integrity,  The Answer Is,  That The First

Were Chosen For That Very Reason,  And Yet Proved tyrants. The

Second Will Be Exposed to The Same Temptations As The First,  And

Will Be Just As Likely To Prove Tyrannical. Who Ever Heard That

Succeeding legislatures Were,  On The Whole,  More Honest Than Those

That Preceded them? What Is There In the Nature Of Men Or Things To

Make Them So? If It Be Said That The First Body Were Chosen From

Motives Of Injustice,  That Fact Proves That There Is A Portion Of

Society Who Desire To Establish Injustice; And If They Were Powerful

Or Artful Enough To Procure The Election Of Their Instruments To

Compose The First Legislature,  They Will Be Likely To Be Powerful Or

Artful Enough To Procure The Election Of The Same Or Similar

Instruments To Compose The Second. The Right Of Suffrage,

Therefore,  And Even A Change Of Legislators,  Guarantees No Change

Of Legislation   Certainly No Change For The Better. Even If A Change

For The Better Actually Comes,  T Cmes Too Late,  Because It Comes

Only After More Or Less Injustice Has Been Irreparably Done.

But,  At Best,  The Right Of Suffrage Can Be Exercised only

Periodically; And Between The Periods The Legislators Are Wholly

Irresponsible. No Despot Was Ever More Entirely Irresponsible Than

Are Republican Legislators During the Period For Which They Are

Chosen. They Can Neither,  Be Removed from Their Office,  Nor Called

To Account While In their Office,  Nor Punished after They Leave Their

Office,  Be Their Tyranny What It May. Moreover,  The Judicial And

Executive Departments Of The Government Are Equally Irresponsible

To The People,  And Are Only Responsible,  (By Impeachment,  And

Dependence For Their Salaries),  To These Irresponsible Legislators.

This Dependence Of The Judiciary And Executive Upon The

Legislature Is A Guaranty That They Will Always Sanction And Execute

Its Laws,  Whether Just Or Unjust. Thus The Legislators Hold The Whole

Power Of The Government In their Hands,  And Are At The Same Time

Utterly Irresponsible For The Manner In which They Use It.

If,  Now,  This Government,  (The Three Branches Thus Really United in

One),  Can Determine The Validity Of,  And Enforce,  Its Own Laws,  It Is,

For The Time Being,  Entirely Absolute,  And Wholly Irresponsible To

The People.

But This Is Not All. These Legislators,  And This Government,  So

Irresponsible While In power,  Can Perpetuate Their Power At

Pleasure,  If They Can Determine What Legislation Is Authoritative

Upon The People,  And Can Enforce Obedience To It,  For They Can Not

Only Declare Their Power Perpetual,  But They Can Enforce

Submission To All Legislation That Is Necessary To Secure Its

Perpetuity. They Can,  For Example,  Prohibit All Discussion Of The

Rightfulness Of Their Authority; Forbid The Use Of The Suffrage;

Prevent The Election Of Any Successors; Disarm,  Plunder,  Imprison,

And Even Kill All Who Refuse Submission. If,  Therefore,  The

Government (All Departments United) Be Absolute For A Day   That Is,

If It Can,  For A Day,  Enforce Obedience To Its Own Laws   It Can,  In

That Day,  Secure Its Power For All Time   Like The Queen,  Who Wished

To Reign But For A Day,  But In that Day Caused the King,  Her Husband,

To Be Slain,  And Usurped his Throne.

Nor Will It Avail To Say That Such Acts Would Be Unconstitutional,

And That Unconstitutional Acts May Be Lawfully Resisted; For

Everything a Government Pleases To Do Will,  Of Course,  Be

Determined to Be Constitutional,  If The Government Itself Be

Permitted to Determine The Question Of The Constitutionality Of Its

Own Acts. Those Who Are Capable Of Tyranny,  Are Capable Of Perjury

To Sustain It.

The Conclusion,  Therefore,  Is,  That Any Government,  That Can,  For A

Day,  Enforce Its Own Laws,  Without Appealing to The People,  (Or To A

Tribunal Fairly Representing the People,) For Their Consent,  Is,  In

Theory,  An Absolute Government,  Irresponsible To The People,  And

Can Perpetuate Its Power At Pleasure.

The Trial By Jury Is Based upon A Recognition Of This Principle,  And

Therefore Forbids The Government To Execute Any Of Its Laws,  By

Punishing violators,  In any Case Whatever,  Without First Getting the

Consent Of "The Country," Or The People,  Through A Jury. In this Way,

The People,  At All Times,  Hold Their Liberties In their Own Hands,  And

Never Surrender Them,  Even For A Moment,  Into The Hands Of The

Government.

The Trial By Jury,  Then,  Gives To Any And Every Individual The

Liberty,  At Any Time,  To Disregard Or Resist Any Law Whatever Of The

Government,  If He Be Willing to Submit To The Decision Of A Jury,  The

Questions,  Whether The Law Be Intrinsically Just And Obligatory? And

Whether His Conduct,  In disregarding or Resisting it,  Were Right In

Itself? And Any Law,  Which Does Not,  In such Trial,  Obtain The

Unanimous Sanction Of Twelve Men,  Taken At Random From The

People,  And Judging according to The Standard Of Justice In their

Own Minds,  Free From All Dictation And Authority Of The

Government,  May Be Transgressed and Resisted with Impunity,  By

Whomsoever Pleases To Transgress Or Resist It.[3]

The Trial By Jury Authorizes All This,  Or It Is A Sham And A Hoax,

Utterly Worthless For Protecting the People Against Oppression. If It

Do Not Authorize An Individual To Resist The First And Least Act Of

Injustice Or Tyranny,  On The Part Of The Government,  It Does Not

Authorize Him To Resist The Last And The Greatest. If It Do Not

Authorize Individuals To Nip Tyranny In the Bud,  It Does Not

Authorize Them To Cut It Down When Its Branches Are Filled with The

Ripe Fruits Of Plunder And Oppression.

Those Who Deny The Right Of A Jury To Protect An Individual In

Resisting an Unjust Law Of The Government,  Deny Him All Defence

Whatsoever Against Oppression. The Right Of Revolution,  Which

Tyrants,  In mockery,  Accord To Mankind,  Is No Legal Right Under A

Government; It Is Only A Natural Right To Overturn A Government.

The Government Itself Never Acknowledges This Right. And The Right

Is Practically Established only When And Because The Government,

No Longer Exists To Call It In question. The Right,  Therefore,  Can Be

Exercised with Impunity,  Only When It Is Exercised victoriously. All

Unsuccessful Attempts At Revolution,  However Justifiable In

Themselves,  Are Punished as Treason,  If The Government Be

Permitted to Judge Of The Treason. The Government Itself Never

Admits The Injustice Of Its Laws,  As A Legal Defence For Those Who

Have Attempted a Revolution,  And Failed. The Right Of Revolution,

Therefore,  Is  Right Of No Practical Value,  Except For Those Who Are

Stronger Than The Government. So Long,  Therefore,  As The

Oppressions Of A Government Are Kept Within Such Limits As Simply

Not To Exasperate Against It A Power Greater Than Its Own,  The Right

Of Revolution Cannot Be Appealed to,  And Is Therefore Inapplicable

To The Case. This Affords A Wide Field For Tyranny; And,  If A Jury

Cannot Here Intervene,  The Oppressed are Utterly Defenceless.

It Is Manifest That The Only Security Against The Tyranny Of The

Government Lies In forcible Resistance To The Execution Of The

Injustice; Because The Injustice Will Certainly Be Executed,  Unless It

Be Forcibly Resisted. And If It Be But Suffered to Be Executed,  It

Must Then Be Borne; For The Government Never Makes

Compensation For Its Own Wrongs.

Since,  Then,  This Forcible Resistance To The Injustice Of The

Government Is The Only Possible Means Of Preserving liberty,  It Is

Indispensable To All Legal Liberty That This Resistance Should Be

Legalized. It Is Perfectly Self-Evident That Where There Is No Legal

Right To Resist The Oppression Of The Government,  There Can Be No

Lgal Liberty. And Here It Is All-Important To Notice,  That,  Practically

Speaking,  There Can Be No Legal Right To Resist The Oppressions Of The

Government,  Unless There Be Some Legal Tribunal,  Other Than The

Government,  And Wholly Independent Of,  And Above,  The

Government,  To Judge Between The Government And Those Who

Resist Its Oppressions; In other Words,  To Judge What Laws Of The

Government Are To Be Obeyed,  And What May Be Resisted and Held

For Nought. The Only Tribunal Known To Our Laws,  For This Purpose,

Is A Jury. If A Jury Have Not The Right To Judge Between The

Government And Those Who Disobey Its Laws,  And Resist Its

Oppressions,  The Government Is Absolute,  And The People,  Legally

Speaking are Slaves. Like Many Other Slaves They May Have

Sufficient Courage And Strength To Keep Their Masters Somewhat In

Check; But They Are Nevertheless Known To The Law Only As Slaves.

That This Right Of Resistance Was Recognized as A Common Law

Right,  When The Ancient And Genuine Trial By Jury Was In force,  Is

Not Only Proved by The Nature Of The Trial Itself,  But Is

Acknowledged by History. [4]

This Right Of Resistance Is Recognized by The Constitution Of The

United states,  As A Strictly Legal And Constitutional Right. It Is So

Recognized,  First By The Provision That "The Trial Of All Crimes,

Except In cases Of Impeachment,  Shall Be By