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

Country   And Not By The Government; Secondly,  By The Provision

That "The Right Of The People To Keep And Bear Arms Shall Not Be

Infringed." This Constitutional Security For "The Right To Keep And

Bear Arms," Implies The Right To Use Them   As Much As A

Constitutional Security For The Right To Buy And Keep Food Would

Have Implied the Right To Eat It. The Constitution,  Therefore,  Takes It

For Granted that

The People Will Judge Of The Conduct Of The Government,  And That,

As They Have The Right,  They Will Also Have The Sense,  To Use Arms,

Whenever The Necessity Of The Case Justifies It. And It Is A Sufficient

And Legal Defence For A Person Accused of Using arms Against The

Government,  If He Can Show,  To The Satisfaction Of A Jury,  Or Even

Any One Of A Jury,  That The Law He Resisted was An Unjust One.

In The American State Constitutions Also,  This Right Of Resistance To

The Oppressions Of The Government Is Recognized,  In various Ways,

As A Natural,  Legal,  And Constitutional Right. In the First Place,  It Is

So Recognized by Provisions Establishing the Trial By Jury; Thus

Requiring that Accused persons Shall Be Tried by "The Country,"

Instead Of The Government. In the Second Place,  It Is Recognized by

Many Of Them,  As,  For Example,  Those Of Massachusetts,  Maine,

Vermont,  Connecticut,  Pennsylvania,  Ohio,  Indiana,  Michigan,

Kentucky,  Tennessee,  Arkansas,  Mississippi,  Alabama,  And

Florida,  By Provisions Expressly Declaring that The People Shall

Have The Right To Bear Arms. In many Of Them Also,  As,  For Example,

Those Of Maine,  New Hampshire,  Vermont,  Massachusetts,  New

Jersey,  Pennsylvania,  Delaware,  Ohio,  Indiana,  Illinois,  Florida,

Iowa,  And Arkansas,  By Provisions,  In their Bills Of Rights,  Declaring

That Men Have A Natural,  Inherent,  And Inalienable Right Of

"Defending their Lives And Liberties." This,  Of Course,  Means That

They Have A Right To Defend Them Against Any Injustice On The Part

Of The Government,  And Not Merely On The Part Of Private

Individuals; Because The Object Of All Bills Of Rights Is To Assert The

Rights Of Individuals And The People,  As Against The Government,

And Not As Against Private Persons. It Would Be A Matter Of

Ridiculous Supererogation To Assert,  In a Constitution Of

Government,  The Natural Right Of Men To Defend Their Lives And

Liberties Against Private Trespassers.

Many Of These Bills Of Rights Also Assert The Natural Right Of All Men

To Protect Their Property   That Is,  To Protect It Against The

Government. It Would Be Unnecessary And Silly Indeed to Assert,  In

A Constitution Of Government,  The Natural Right Of Individuals To

Protect Their Property Against Thieves And Robbers.

The Constitutions Of New Hampshire And Tennessee Also Declare

That "The Doctrine Of Non-Resistance Against Arbitrary Power And

Oppression Is Absurd,  Slavish,  And Destructive Of The Good And

Happiness Of Mankind."

The Legal Effect Of These Constitutional Recognitions Of The Right Of

Individuals To Defend Their Property,  Liberties,  And Lives,  ' Against

The Government,  Is To Legalize Resistance To All Injustice And

Oppression,  Of Every Name And Nature Whatsoever,  On The Part Of

The Government.

But For This Right Of Resistance,  On The Part Of The People,  All

Governments Would Become Tyrannical To A Degree Of Which Few

People Are Aware. Constitutions Are Utterly Worthless To Restrain The

Tyranny Of Governments,  Unless It Be Understood That The People

Will,  By Force,  Compel The Government To Keep Within The

Constitutional Limits. Practically Speaking,  No Government Knows

Any Limits To Its Power,  Except The Endurance Of The People. But

That The People Are Stronger Than The Government,  And Will Resist In

Extreme Cases,  Our Governments Would Be Little Or Nothing else

Than Organized systems Of Plunder And Oppression. All,  Or Nearly

All,  The Advantage There Is In fixing any Constitutional Limits To The

Power Of A Government,  Is Simply To Give Notice To The Government

Of The Point At Which It Will Meet With Resistance. If The People Are

Then As Good As Their Word,  They May Keep The Government Within

The Bounds They Have Set For It; Otherwise It Will Disregard Them   As

Is Proved by The Example Of All Our American Governments,  In

Which The Constitutions Have All Become Obsolete,  At The Moment

Of Their Adoption,  For Nearly Or Quite All Purposes Except The

Appointment Of Officers,  Who At Once Become Practically Absolute,

Except So Far As They Are Restrained by The Fear Of Popular

Resistance.

The Bounds Set To The Power Of The Government,  By The Trial By

Jury,  As Will Hereafter Be Shown,  Are These   That The Government

Shall Never Touch The Property,  Person,  Or Natural Or Civil Rights Of

An Individual,  Against His Consent,  {Xcept For The Purpose Of

Bringing them Before A Jury For Trial,) Unless In pursuance And

Execution Of A Judgment,  Or Decree,  Rendered by A Jury In each

Individual Case,  Upon Such Evidence,  Nd Such Law,  As Are

Satisfactory To Their Own Understandings And Consciences,

Irrespective Of All Legislation Of The Government.

[1]To Show That This Supposition Is Not An Extravagant One,  It May

Be Mentioned that Courts Have Repeatedly Questioned jurors To

Ascertain Whether They Were Prejudiced against The Government 

That Is,  Whether They Were In favor Of,  Or Opposed to,  Such Laws Of

The Government As Were To Be Put In issue In the Then Pending trial.

This Was Done (In 1851) In the United states District Court For The

District Of Massachusetts,  By Peleg Sprague,  The United states

District Judge,  In empanelling three Several Juries For The Trials Of

Scott,  Hayden,  And Morris,  Charged with Having aided in the Rescue

Of A Fugitive Slave From The Custody Of The United states Deputy

Marshal. This Judge Caused the Following question To Be

Propounded to All The Jurors Separately; And Those Who Answered

Unfavorably For The Purposes Of The Government,  Were Excluded

From The Panel.

"Do You Hold Any Opinions Upon The Subject Of The Fugitive Slave

Law,  So Called,  Which Will Induce You To Refuse To Convict A Person

Indicted under It,  If The Facts Set Forth,  In the Indictment,  And

Constituting the Offence,  Are Proved against Him,  And The Court

Direct You That The Law Is Constitutional?"

The Reason Of This Question Was,  That "The Fugitive Slave Law,  So

Called," Was So Obnoxious To A Large Portion Of The People,  As To

Render A Conviction Under It Hopeless,  If The Jurors Were Taken

Indiscriminately From Among The People.

A Similar Question Was Soon Afterwards Propounded to The Persons

Drawn As Jurors In the United states Circuit Court For The District

Of Massachusetts,  By Benjamin R. Curtis,  One Of The Justices Of The

Supreme Court Of The United states,  In empanelling a Jury For The

Trial Of The Aforesaid Morris On The Charge Before Mentioned; And

Those Who Did Not Answer The Question Favorably For The

Government Were Again Excluded from The Panel.

It Has Also Been An Habitual Practice With The Supreme Court Of

Massachusetts,  In empanelling juries For The Trial Of Capital

Offences,  To Inquire Of The Persons Drawn As Jurors Whether They

Had Any Conscientious Scruples Against Finding verdicts Of Guilty In

Such Eases; That Is,  Whether They Had Any Conscientious Scruples

Against Sustaining the Law Prescribing death As The Punishment Of

The Crime To Be Trick; And To Exclude From The Panel All Who

Answered in the Affirmative.

The Only Principle Upon Which These Questions Are Asked,  Is This 

That No Man Shall Be Allowed to Serve As Juror,  Unless He Be Ready

To Enforce Any Enactment Of The Government,  However Cruel Or

Tyrannical It May Be.

What Is Such A Jury Good For,  As A Protection Against The Tyranny Of

The Government? A Jury Like That Is Palpably Nothing but,  A Mere

Tool Of Oppression In the Hands Of The Government. A Trial By Such

A Jury Is Really A Trial By The Government Itself   And Not A Trial By

The Country   Because It Is A Trial Only By Men Specially Selected by

The Government For Their Readiness To Enforce Its Own Tyrannical

Measures.

If That Be The True Principle Of The Trial By Jury,  The Trial Is Utterly

Worthless As A Security To Liberty. The Czar Might,  With Perfect

Safety To His Authority,  Introduce The Trial By Jury Into Russia,  If He

Could But Be Permitted to Select His Jurors From Those Who Were

Ready To Maintain His Laws,  Without Regard To Their Injustice.

This Example Is Sufficient To Show That The Very Pith Of The Trial By

Jury,  As A Safeguard To Liberty,  Consists In the Jurors Being taken

Indiscriminately From The Whole People,  And In their Right To Hold

Invalid All Laws Which They Think Unjust.

[2] The Executive Has A Qualified veto Upon The Passage Of Laws,  In

Most Of Our Governments,  And An Absolute Veto,  In all Of Them,

Upon The Execution Of Any Laws Which He Deems Unconstitutional;

Because His Oath To Support The Constitution (As He Understands It)

Forbids Him To Execute Any Law That He Deems Unconstitutional.

[3] And If There Be So Much As A Reasonable Doubt Of The Justice Of

The Laws,  The Benefit Of That Doubt Must Be Given To The Defendant,

And Not To The Government. So That The Government Must Keep Its

Laws Clearly Within The Limits Of Justice,  If It Would Ask A Jury To

Enforce Them.

[4] Hallam Says,  "The Relation Established between A Lord And His

Vassal By The Feudal Tenure,  Far From Containing principles Of Any

Servile And Implicit Obedience,  Permitted the Compact To Be

Dissolved in case Of Its Violation By Either Party. This Extended as

Much To The Sovereign As To Inferior Lords. * * If A,  Vassal Was

Aggrieved,  And If Justice Was Denied him,  He Sent A Defiance,  That

Is,  A Renunciation Of Fealty To The King,  And Was Entitled to Enforce

Redress At The Point Of His Sword. It Then Became A Contest Of

Strength As Between Two Independent Potentates,  And Was

Terminated by Treaty,  Advantageous Or Otherwise,  According to The

Fortune Of War. * * There Remained the Original Principle,  That

Allegiance Depended conditionally Upon Good Treatment,  And That

An Appeal Might Be Lawfully Made To Arms Against An Oppressive

Government. Nor Was This,  We May Be Sure,  Left For Extreme

Necessity,  Or Thought To Require A Long-Enduring forbearance. In

Modern Times,  A King,  Compelled by His Subjects' Swords To

Abandon Any Pretension,