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

Justice As They Existed in their Own Minds.

The Ancient Oath Of Jurors In civil Suits,  Viz.,  That "They Would

Make Known The Truth According to Their Consciences," Implies

That The Jurors Were Above The Authority Of All Legislation. The

Modern Oath,  In england,  Viz.,  That They "Will Well And Truly Try

The Issue Between The Parties,  And A True Verdict Give,  According

To The Evidence," Implies The Same Thing. If The Laws Of The King

Had Been Binding upon A Jury,  They Would Have Been Sworn To Try

The Cases According to Law,  Or According to The Laws.

The Ancient Writs,  In civil Suits,  As Given In glanville,  (Within

The Half Century Before Magna Carta,) To Wit,  "Summon Twelve Free

And Legal Men,  (Or Sometimes Twelve Knights,) To Be In court,

Prepared upon Their Oaths To Declare Whether A Or B Have The

Greater Right To The Land In question," Indicate That The Jurors

Judged of The Whole Matter On Their Consciences Only.

The Language Of Magna Carta,  Already Discussed,  Establishes

The Same Point; For,  Although Some Of The Words,  Such As

"Outlawed," And "Exiled," Would Apply Only To Criminal Cases,

Nearly The Whole Chapter Applies As Well To Civil As To Criminal

Suits. For Example,  How Could The Payment Of A Debt Ever Be

Enforced against An Unwilling debtor,  If He Could Neither Be

"Arrested,  Imprisoned,  Nor Deprived of His Freehold," And If The

King could Neither "Proceed against Him,  Nor Send Any One Against

Him,  By Force Or Arms" ?  Yet Magna Carta As Much Forbids That

Any Of These Things Shall Be Done Against A Debtor,  As Against A

Criminal,  Except According to,  Or In execution Of,  " A Judgment

Of His Peers,  Or The Law Of The Land,"   A Provision Which,  It

Has Been Shown,  Gave The Jury The Free And Absolute Right To Give

Or Withhold "Judgment" According to Their Consciences,

Irrespective Of All Legislation.

The Following provisions,  In the Magna Carta Of John,  Illustrate

The Custom Of Referring the Most Important Matters Of A Civil

Nature,  Even Where The King was A Party,  To The Determination Of

The Peers,  Or Of Twelve Men,  Acting by No Rules But Their Own

Consciences. These Examples At Least Show That There Is Nothing

Improbable Or Unnatural In the Idea That Juries Should Try All

Civil Suits According to Their Own Judgments,  Independently Of

All Laws Of The King.

Chap. 65. "If We Have Disseized or Dispossessed the Welsh Of Any

Lands,  Liberties,  Or Other Things,  Without The Legal Judgment Of

Their Peers,  They Shall Be Immediately Restored to Them. And If

Any Dispute Arises Upon This Head,  The Matter Shall Be Determined

In The Marches,  [1] By The Judgment Of Their Peers," &C;.

Chap. 68. " We Shall Treat With Alexander,  King of Scots,

Concerning the Restoring of His Sisters,  And Hostages,  And Rights

And Liberties,  In the Same Form And Manner As We Shall Do To The

Rest Of Our Barons Of England; Unless By The Engagements,  Which

His Father William,  Late King of Scots,  Hath Entered into With

Us,  It Ought To Be Otherwise; And This Shall Be Left To The

Determination Of His Peers In our Court."

Chap. 56. "All Evil Customs Concerning forests,  Warrens,  And

Foresters,  Warreners,  Sheriffs,  And Their Officers,  Rivers And

Their Keepers,  Shall Forthwith Be Inquired into In each County,

By Twelve Knights Of The Same Shire,  Chosen By The Most

Creditable Persons In the Same County,  And Upon Oath; And Within

Forty Days After The Said Inquest,  Be Utterly Abolished,  So As

Never To Be Restored."

There Is Substantially The Same Reason Why A Jury Ought To Judge

Of The Justice Of Laws,  And Hold All Unjust Laws Invalid,  In

Civil Suits,  As In criminal Ones. That Reason Is The Necessity Of

Guarding against The Tyranny Of The Government. Nearly The Same

Oppressions Can Be Practised in civil Suits As In criminal Ones.

For Example,  Individuals May Be Deprived,  Of Their Liberty,  And

Robbed of Their Property,  By Judgments Rendered in civil Suits,

As Well As In criminal Ones. If The Laws Of The King were

Imperative Upon A Jury In civil Suits,  The King might Enact Laws

Giving one Man'S Property To Another,  Or Confiscating it To The

King himself,  And Authorizing civil Suits To Obtain Possession Of

It. Thus A Man Might Be Robbed of His Property At The Arbitrary

Pleasure Of The King. In fact,  All The Property Of The Kingdom

Would Be Placed,  At The Arbitrary Disposal Of The King,  Through

The Judgments Of Juries In civil Suits,  If The Laws Of The King

Were Imperative Upon A Jury In such Suits. [2]

Furthemore,  It Would Be Absurd And Inconsistent To Make

A Jury Paramount To Legislation In criminal Suits,  And

Subordinate To It In civil Suits; Because An Individual,  By

Resisting the Execution Of A Civil Judgment,  Founded upon An

Unjust Law,  Could Give Rise To A Criminal Suit,  In which The Jury

Would Be Bound To Hold The Same Law Invalid. So That,  If An

Unjust Law Were Binding upon A Jury In civil Suits,  A Defendant,

By Resisting the Execution Of The Judgment,  Could,  In effect,

Convert The Civil Action Into A Criminal One,  In which The Jury

Would Be Paramount To The Same Legislation,  To Which,  In the

Civil Suit,  They Were Subordinate. In other Words,  In the

Criminal Suit,  The Jury Would Be Obliged to Justify The Defendant

In Resisting a Law,  Which,  In the Civil Suit,  They Had Said He

Was Bound To Submit To.

To Make This Point Plain To The Most Common Mind   Suppose A

Law Be Enacted that The Property Of A Shall Be Given To B. B 

Brings A Civil Action To Obtain Possession Of It. If The Jury,  In this

Civil Suit,  Are Bound To Hold The Law Obligatory,  They Render A

Judgment In favor Of B,  That He Be Put In possession Of The

Property; Thereby Declaring that A Is Bound To Submit To A Law

Depriving him Of His Property. But When The Execution Of That

Judgment Comes To Be Attempted   That Is,  When The Sheriff Comes

To Take The Property For The Purpose Of Delivering it To B   A

Acting,  As He Has A Natural Right To Do,  In defence Of His

Property,  Resists And Kills The Sheriff. He Is Thereupon Indicted

For Murder. On This Trial His Plea Is,  That In killing the

Sheriff,  He Was Simply Exercising his Natural Right Of Defending

His Property Against An Unjust Law. The Jury,  Not Being bound,  In

A Criminal Case,  By The Authority Of An Unjust Law,  Judge The Act

On Its Merits,  And Acquit The Defendant   Thus Declaring that He

Was Not Bound To Submit To The Same Law Which The Jury,  In the

Civil Suit,  Had,  By Their Judgment,  Declared that He Was Bound To

Submit To. Here Is A Contradiction Between The Two Judgments. In

The Civil Suit,  The Law Is Declared to Be Obligatory Upon A; In

The Criminal Suit,  The Same Law Is Declared to Be Of No

Obligation.

It Would Be A Solecism And Absurdity In government To Allow

Such Consequences As These. Besides,  It Would Be Practically

Impossible To Maintain Government On Such Principles; For No

Government Could Enforce Its Civil Judgments,  Unless It Could

Support Them By Criminal Ones,  In case Of Resistance. A Jury Must

Therefore Be Paramount To Legislation In both Civil And Criminal

Cases,  Or In neither. If They Are Paramount In neither,  They Are

No Protection To Liberty. If They Are Paramount In both,  Then All

Legislation Goes Only For What It May Chance To Be Worth In the

Estimation Of A Jury.

Another Reason Why Magna Carta Makes The Discretion And

Consciences Of Juries Paramount To All Legislation In civilsuits,  Is,

That If Legislation Were Binding upon A Jury,  The Jurors  (By Reason

Of Their Being unable To Read,  As Jurors In those Days Were,  And

Also By Reason Of Many Of The Statutes Being unwritten,  Or At Least

Not So Many Copies Written As That Juries Could Be Supplied with

Them)   Would Have Been Necessitated at Least In those Courts In

Which The King'S Justices Sat   To Take The Word Of Those Justices

As To What The Laws Of The King really Were. In other Words,  They

Would Have Been Necessitated to Take The Law From The Court,  As

Jurors Do Now.

Now There Were Two Reasons Why,  As We May Rationally Suppose,

The People Did Not Wish Juries To Take Their Law From The King'S

Judges. One Was,  That,  At That Day,  The People Probably Had Sense

Enough To See,  (What We,  At This Day,  Have Not Sense Enough To

See,  Although We Have The Evidence Of It Every Day Before Our

Eyes,) That Those Judges,  Being dependent Upon The Legislative

Power,  (The King,) Being appointed by It,  Paid By It,  And

Removable By It At Pleasure,  Would Be Mere Tools Of That Power,

And Would Hold All Its Legislation Obligatory,  Whether It Were

Just Or Unjust. This Was One Reason,  Doubtless,  Why Magna Carta

Made Juries,  In civil Suits,  Paramount To All Instructions Of The

King'S Judges. The Reason Was Precisely The Same As That For

Making them Paramount To All Instructions Of Judges In criminal

Suits,  Viz.,  That The People Did Not Choose To Subject Their

Rights Of Property,  And All Other Rights Involved in civil Suits,

To The Operation Of Such Laws As The King might Please To Enact.

It Was Seen That To Allow The King'S Judges To Dictate The Law To

The Jury Would Be Equivalent To Making the Legislation Of The

King imperative Upon The Jury.

Another Reason Why The People Did Not Wish Juries,  In civil

Suits,  To Take Their Law From The King'S Judges,  Doubtless Was,

That,  Knowing the Dependence Of The Judges Upon The King,  And

Knowing that The King would,  Of Course,  Tolerate No Judges Who

Were Not Subservient To His Will,  They Necessarily Inferred; That

The King'S Judges Would Be As Corrupt,  In the Administration Of

Justice,  As Was The King himself,  Or As He Wished them To Be. And

How Corrupt That Was,  May Be Inferred from The Following

Historical Facts.

Hume Says:

"It Appears That The Ancient Kings Of England Put Themselves

Entirely Upon The Footing of The Barbarous Eastern Princes,  Whom

No Man Must Approach Without A Present,  Who Sell All Their Good

Offices,  And Who Intrude Themselves Into