An Essay On The Trial By Jury by Lysander Spooner (best free novels .TXT) 📕

Justice And Right   So Far As To Carry It Into Execution Against

The Goods,  Rights,  Or Person Of A Party   Unless It Be Something

Which A Jury Have Sanctioned.

If The Government Had No Alternative But To Execute All Judgments

Of A Jury Indiscriminately,  The Power Of Juries Would

Unquestionably Be Dangerous; For There Is No Doubt That They May

Sometimes Give Hasty And Erroneous Judgments. But When It Is

Considered That Their Judgments Can Be Reviewed,  And New Trials

Granted,  This Danger Is,  For All Practical Purposes,  Obviated.

If It Be Said That Juries May Successively Give Erroneous

Judgments,  And That New Trials Cannot Be Granted Indefinitely,  The

Answer Is,  That So Far As Magna Carta Is Concerned,  There Is

Nothing To Prevent The Granting Of New Trials Indefinitely,  If The

Judgments Of Juries Are Contrary To "Justice And Right." So That

Magna Carta Does Not Require Any Judgment Whatever To Be

Executed So Far As To Take A Party's Goods,  Rights,  Or Person,  Thereon 

Unless It Be Concurred In By Both Court And Jury.

Nevertheless,  We May,  For The Sake Of The Argument,  Suppose The

Existence Of A Practical,  If Not Legal,  Necessity,  For Executing

Some Judgment Or Other,  In Cases Where Juries Persist In

Disagreeing With The Courts. In Such Cases,  The Principle Of Magna

Carta Unquestionably Is,  That The Uniform Judgments Of

Successivejuries Shall Prevail Over The Opinion Of The Court. And

The Reason Of This Principle Is Obvious,  Viz.,  That It Is The Will Of The

Country,  And Not The Will Of The Court,  Or The Government,  That

Must Determine What Laws Shall Be Established And Enforced; That

The Concurrent Judgments Of Successive Juries,  Given In Opposition

To All The Reasoning Which Judges And Lawyers Can Offer To The

Contrary,  Must Necessarily Be Presumed To Be A Truer Exposition Of

The Will Of The Country,  Than Are The Opinions Of The Judges.

But It May Be Said That,  Unless Jurors Submit To The Control Of

The Court,  In Matters Of Law,  They May Disagree Amongthemselves,

And Never Come To Any Judgment; And Thus Justice Fail To Be Done.

Such A Case Is Perhaps Possible; But,  If Possible,  It Can Occur

But Rarely; Because,  Although One Jury May Disagree,  A Succession

Of Juries Are Not Likely To Disagree   That Is,  On Matters Of

Natural Law,  Or Abstract Justice. [2] If Such A Thing Should

Occur,  It Would Almost Certainly Be Owing To The Attempt Of The

Court To Mislead Them. It Is Hardly Possible That Any Other Cause

Should Be Adequate To Produce Such An Effect; Because Justice

Comes Very Near To Being A Self-Evident Principle. The Mind

Perceives It Almost Intuitively. If,  In Addition To This,  The

Court Be Uniformly On The Side Of Justice,  It Is Not A Reasonable

Supposition That A Succession Of Juries Should Disagree About It.

If,  Therefore,  A Succession Of Juries Do Disagree On The Law Of

Any Case,  The Presumption Is,  Not That Justice Fails Of Being

Done,  But That Injustice Is Prevented   That Injustice,  Which

Would Be Done,  If The Opinion Of The Court Were Suffered To

Control The Jury.

For The Sake Of The Argument,  However,  It May Be Admitted To Be

Possible That Justice Should Sometimes Fail Of Being Done Through

The Disagreements Of Jurors,  Notwithstanding All The Light Which

Judges And Lawyers Can Throw Upon The Question In Issue. If It Be

Asked What Provision The Trial By Jury Makes For Such Cases,  The

Answer Is,  It Makes None; And Justice Must Fail Of Being Done,

From The Want Of Its Being Made Sufficiently Intelligible.

Under The Trial By Jury,  Justice Can Never Be Done   That Is,  By A

Judgment That Shall Take A Party's Goods,  Rights,  Or Person 

Until That Justice Can Be Made Intelligible Or Perceptible To The

Minds Of All The Jurors; Or,  At Least,  Until It Obtain The

Voluntary Assent Of All   An Assent,  Which Ought Not To Be Given

Until The Justice Itself Shall Have Become Perceptible To All.

The Principles Of The Trial By Jury,  Then,  Are These:

1. That,  In Criminal Cases,  The Accused Is Presumed Innocent.

2. That,  In Civil Cases,  Possession Is Presumptive Proof Of

Property; Or,  In Other Words,  Every Man Is Presumed To Be The

Rightful Proprietor Of Whatever He Has In His Possession.

3. That These Presumptions Shall Be Overcome,  In A Court Of

Justice,  Only By Evidence,  The Sufficiency Of Which,  And By Law,

The Justice Of Which,  Are Satisfactory To The Under- Standing And

Consciences Of All The Jurors.

These Are The Bases On Which The Trial By Jury Places The

Property,  Liberty,  And Rights Of Every Individual.

But Some One Will Say,  If These Are The Principles Of The Trial By

Jury,  Then It Is Plain That Justice Must Often Fail To Be Done.

Admitting,  For The Sake Of The Argument,  That This May Be True,

The Compensation For It Is,  That Positive Injustice Will Also

Often Fail To Be Done; Whereas Otherwise It Would Be Done

Frequently. The Very Precautions Used To Prevent Injustice Being

Done,  May Often Have The Effect To Prevent Justice Being Done. Bu

Are We,  Therefore,  To Take No Precautions Against Injustice? By No

Means,  All Will Agree. The Question Then Arises   Does The Trial

By Jury,  As Here Explained,  Involve Such Extreme And Unnecessary

Precautions Against Injustice,  As To Interpose Unnecessary

Obstacles To The Doing Of Justice? Men Of Different Minds May Very

Likely Answer This Question Differently,  According As They Have

More Or Less Confidence In The Wisdom And Justice Of Legislators,

The Integrity And Independence Of Judges,  And The Intelligence Of

Jurors. This Much,  However,  May Be Said In Favor Of These

Precautions,  Viz.,  That The History Of The Past,  As Well As Our

Constant Present Experience,  Prove How Much Injustice May,  And

Certainly Will,  Be Done,  Systematically And Continually,  For The

Want Of These Precautions   That Is,  While The Law Is Authoritatively

Made And Expounded By Legislators And Judges. On The Other Hand, 

We Have No Such Evidence Of How Much Justice May Fail To Be Done, 

By Reason Of These Precautions   That Is,  By Reason Of The Law Being

Left To The Judgments And Consciences Of Jurors. We Can Determine

The Former Point   That Is,  How Much Positive Injustice Is Done

Under The First Of These Two Systems Because The System Is In Full

Operation; But We Cannot Determine How Much Justice Would

Fail To Be Done Under The Latter System,  Because We Have,  In

Modern Times,  Had No Experience Of The Use Of The Precautions

Themselves. In Ancient Times,  When These Precautions Were

Nominally In Force,  Such Was The Tyranny Of Kings,  And Such The

Poverty,  Ignorance,  And The Inability Of Concert And Resistance, 

On The Part Of The People,  That The System Had No Full Or Fair

Operation. It,  Nevertheless,  Under All These Disadvantages, 

Impressed Itself Upon The Understandings,  And Imbedded Itself

In The Hearts,  Of The People,  So As No Other System Of Civil Liberty

Has Ever Done.

But This View Of The Two Systems Compares Only The Injustice Done,

And The Justice Omitted To Be Done,  In The Individual Cases Adjudged, 

Without Looking Beyond Them. And Some Persons Might,  On

First Thought,  Argue That,  If Justice Failed Of Being Done Under

The One System,  Oftener Than Positive Injustice Were Done Under

The Other,  The Balance Was In Favor Of The Latter System. But Such

A Weighing Of The Two Systems Against Each Other Gives No True

Idea Of Their Comparative Merits Or Demerits; For,  Possibly,  In

This View Alone,  The Balance Would Not Be Very Great In Favor Of

Either. To Compare,  Or Rather To Contrast,  The Two,  We Must

Consider That,  Under The Jury System,  The Failures To Do Justice

Would Be Only Rare And Exceptional Cases; And Would Be Owing

Either To The Intrinsic Difficulty Of The Questions,  Or To The

Fact That The Parties Had. Transacted Their Business In A Manner

Unintelligible To The Jury,  And The Effects Would Be Confined To

The Individual Or Individuals Interested In The Particular Suits.

No Permanent Law Would Be Established Thereby Destructive Of The

Rights Of The People In Other Like Cases. And The People At Large

Would Continue To Enjoy All Their Natural Rights As Before. But

Under The Other System,  Whenever An Unjust Law Is Enacted By The

Legislature,  And The Judge Imposes It Upon The Jury As

Authoritative,  And They Give A Judgment In Accordance Therewith,

The Authority Of The Law Is Thereby Established,  And The Whole

People Are Thus Brought Under The Yoke Of That Law; Because They

Then Understand That The Law Will Be Enforced Against Them In

Future,  If They Presume To Exercise Their Rights,  Or Refuse To

Comply With The Exactions Of The Law. In This Manner All Unjust

Laws Are Established,  And Made Operative Against The Rights Of The

People.

The Difference,  Then,  Between The Two Systems Is This: Under The

One System,  A Jury,  At Distant Intervals,  Would (Not Enforce Any

Positive Injustice,  But Only) Fail Of Enforcing Justice,  In A Dark

And Difficult Case,  Or In Consequence Of The Parties Not Having

Transacted Their Business In A Manner Intelligible To A Jury; And

The Plaintiff Would Thus Fail Of Obtaining What Was Rightfully Due

Him. And There The Matter Would End,  For Evil,  Though Not For

Good; For Thenceforth Parties,  Warned,  Of The Danger Of Losing

Their Rights,  Would Be Careful To Transact Their Business In A

More Clear And Intelligible Manner. Under The Other System   The

System Of Legislative And Judicial Authority   Positive Injustice

Is Not Only Done In Every Suit Arising Under Unjust Laws,   That

Is,  Men's Property,  Liberty,  Or Lives Are Not Only Unjustly Taken

On Those Particular Judgments,   But The Rights Of The Whole People

Are Struck Down By The Authority Of The Laws Thus Enforced,  And A

Wide-Sweeping Tyranny At Once Put In Operation.

But There Is Another Ample And Conclusive Answer To The Argument

That Justice Would Often Fail To Be Done,  If Jurors Were Allowed

To Be Governed By Their Own Consciences,  Instead Of The Direction

Of The Justices,  In Matters Of Law. That Answer Is This:

Legitimate Government Can Be Formed Only By The Voluntary

Association Of All Who Contribute To Its Support. As A Voluntary

Association,  It Can Have For Its Objects Only Those Things In

Which The Members Of The Association Are All Agreed. If,

Therefore,  There Be Any Justice,  In Regard To Which All The