Free Political Institutions
Their Nature, Essence, and Maintenance
An Abridgment and Rearrangement of Lysander Spooner's "Trial by jury"
C. W. DANIEL, LTD.
3, Amen Corner, E.C.
Perhaps the argument most frequently used by conservative believers in the convenient doctrine of leaving things as they are against those engaged in reformatory efforts of a more or less radical nature is that the "spirit and genius of American institutions" do not admit of the assimilation or acceptance of the proposed innovations. Were one to trust them, the "American institutions" are something so clearly defined, finished, and powerful as to absolutely render it impossible for any inconsistent and discordant element to maintain a vigorous existence within the charmed circle which affords chances of life only to what necessarily and logically flows as a consequence from the fundamental principles supporting the peculiar civilization of this "best government on the face of the earth." We are asked to look upon all that "is," if not as unqualifiedly right and perfect, then as relatively so in the sense of its being the unavoidable outcome of primary conditions.
This fact alone would amply justify our curiosity to learn thoroughly the essence and import of these "institutions," especially since manifold serious evils, universally considered destructive of social equipoise and progress, seem to flourish in our midst without restraint.
But we are moved to such an inquiry by still another circumstance. Besides the easy-going conservative who hurls the epithet "un-American" at the head of anybody contemplating innocent improvements of vexatious misarrangements, there is a large class of men, earnest and determined reformers, who, in working for a gigantic plan of social reorganization, make the same claim of strict fidelity to the logic and spirit of American principles, not only as against those resisting reform as such, but also-and even with greater emphasis-as against other schools of radical reform which oppose them, not because they strive for renovation and change, but because their ideas of the needful, and the desirable, and the truly salutary differ materially. Indeed, every school of reform boasts of exclusive understanding of and jealous care for the "self-evident" maxims on which the opportunities, and possibilities, and prospects of this land of labour and freedom are built.
Now, what shall we believe? Whom shall we follow? Which of the conflicting opinions is most nearly right, if any one is so? Is everything as it should be? If not, in what direction is betterment to be sought? Are State Socialists and Nationalists right: must the function of government be enlarged and extended, and will the completion of the Jeffersonian structure consist in the triumphant adoption of the entire collectivist programme? Or is Anarchism the true doctrine and the removal of the last and least vestige of State compulsion to be demanded and achieved? In a word, what is the meaning of political freedom; whither does it lead us; with what does it inspire us?
For an answer to these important questions the reader is confidently referred to the following pages, which represent an abridgment and rearrangement of Lysander Spooner's remarkable work on "Trial by jury." At the time of its publication Mr. Spooner had no affiliation with any reform movement, and had no special cause to plead, but was simply a private American citizen, a jurist, and an unbiassed student of political science and history. His discussion of the nature, essence, logic, and maintenance of political freedom is so masterful, convincing, and conclusive that it cannot fail to enlighten public opinion on the subject and enable one to form a criterion by which to pass upon the various interpretations of the "American Idea." This work entitles Mr. Spooner to the gratitude and admiration of all the liberty-loving and tyranny-detesting. No one who aspires intelligently to defend or forcibly to assail political independence should neglect to. consider Mr. Spooner's elucidation of its real significance and character.
It is hoped that the present publication will serve yet another purpose. Many of those to whose minds individualistic views appear attractive and rational hesitate to express a positive opinion in consequence of the thousand-and-one questions of detail and practical difficulty which rush into their heads and to the settlement of which they do not see their way. Of course a casuistic philosophy is an absurdity, but generalization and abstraction are not sufficient. Life is too complex to be covered by a simple formula, though first principles we must have. Mr. Spooner successfully demonstrates that the highest justice and equity can be secured under complete freedom and that they have nothing to fear from the dissolution of the State who are prepared to do unto others as they would be done by.
One word more. As the end sought by this republication is distinct from that of the original publication, I could not avoid changes and alterations. Mr. Spooner's intention was to discredit and denounce the perversion of trial by jury and to promulgate the correct and legitimate system by which alone free political relations could be preserved. The explanation of the nature of such relations was of secondary importance. I am here, on the contrary, chiefly concerned with this side of the problem. This necessitated abridgment as well as rearrangement. I was obliged to reduce to subordination that which was dominant and to raise into prominence that which was tributary. Lest I may be criticised for taking so unceremonious a liberty, I will anticipate my critics by requesting the reader to attribute all the merits and good qualities of this edition to Mr. Spooner's ability, while laying the responsibility for all its faults and imperfections at my door.
I. LEGITIMATE GOVERNMENT AND MAJORITY RULE
II. TRIAL BY JURY AS A PALLADIUM OF LIBERTY
III. TRIAL BY JURY AS DEFINED BY MAGNA CHARTA-AUTHORITY OF MAGNA CHARTA
IV. OBJECTIONS ANSWERED
V. THE CRIMINAL INTENT
VI. MORAL CONSIDERATIONS FOR JURORS
VII. FREE ADMINISTRATION OF JUSTICE
VIII. JURIES OF THE PRESENT DAY ILLEGAL
CHAPTER 1: LEGITIMATE GOVERNMENT AND MAJORITY RULE
The theory of free government is that it is formed by the voluntary contract of the people individually with each other. This is the theory (although it is not, as it ought to be, the fact) in all the governments in the United States, as also in the government of England. The theory assumes that each man who is a party to the government, and contributes to its support, has individually and freely consented to it. Otherwise the government would have no right to tax him for its support, for taxation without consent is robbery. This theory, then, necessarily supposes that this government, which is formed by the free consent of all, has no powers except such as all the parties to it have individually agreed that it shall have; and especially that it has no power to pass any laws except such as all the parties have agreed that it may pass.
This theory supposes that there may be certain laws that will be beneficial to all-so beneficial that all consent to be taxed for their maintenance. For the maintenance of these specific laws, in which all are interested, all associate. And they associate for the maintenance of those laws only in which all are interested. It would be absurd to suppose that all would associate, and consent to be taxed, for purposes which were beneficial only to a part, and especially for purposes that were injurious to any. A government of the whole, therefore, can have no powers except such as all the parties consent that it may have. It can do nothing except what all have consented that it may do. And if any portion of the people-no matter how large their number, if it be less than the whole-desire a government for any purposes other than those that are common to all and desired by all, they must form a separate association for those purposes. They have no right to compel any one to contribute to purposes that are either useless or injurious to himself.
Taxation without consent is as plainly robbery when enforced against one man as when enforced against millions. Taking a man's money without his consent is also as much robbery when it is done by millions of men acting in concert and calling themselves a government as when it is done by a single individual acting on his own responsibility and calling himself a highwayman. I Neither the numbers engaged in the act nor the different characters they assume as a cover for the act alter the nature of the act itself.
If the government can take a man's money without his consent, there is no limit to the additional tyranny it may practise upon him; for with his money it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists. And governments always will do this, as they everywhere and always have done, except where the Common Law principle has been established. It is therefore a first principle, a very sine qua non of political freedom, that a man can be taxed only by his personal consent.
All legitimate government is a mutual insurance company, voluntarily agreed upon by the parties to it, for the protection of their rights against wrongdoers. In its voluntary character it is precisely - similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes and pay the premium for being insured, he will, if he be a man of sense, look at the articles of the association; see what the company promises to do; what it is likely to do; and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid, will decline to pay any further premiums, and either seek insurance elsewhere or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their lives, liberties, and properties in the political association, or government.
The political insurance company, or government, have no more right, in nature or reason, to assume a man's consent to be protected by them, and to be taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man's consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man's property without his consent is robbery; and to assume his consent, when no actual consent is given, makes the taking none the less robbery- if it did, the highwayman has the same right to assume a man's consent to part with his purse that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption on the part of the government for taking a man's property without his consent. The government's pretence of protecting him, as an equivalent for the taxation, affords no justification, It is for himself to decide whether lie desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.
The agreement to be taxed would probably be entered into but for a year at a time. If in that year the government proved itself either inefficient or tyrannical, to any serious degree, the contract would not be renewed. The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who were conscientious would forgo all governmental protection rather than contribute to the support of a government which they deemed unjust.
The will, or the pretended will, of the majority is the last lurking place of tyranny at the present day. The dogma that certain individuals or families have a divine appointment to govern the rest of mankind is fast giving place to the one that the larger number have the right to govern the smaller; a dogma which may or may not be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle than the one it is so rapidly supplanting. Obviously there is nothing in the nature of majorities that insures justice at their hands. They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practising the same tyranny as minorities, if they think it will be for their interest to do so.
There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two. Any single man, or any body of men, many or few, have a natural right to maintain justice for themselves, and for any others who may need their assistance, against the injustice of any and all other men, without regard to their numbers; and majorities have no right to do more than this. The relative numbers of the opposing parties have nothing to do with the question of right. And no more tyrannical principle was ever avowed than that the will of the majority ought to have the force of law, without regard to its justice; or-what is the same thing-that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right.
When two men meet one upon the highway, or in the wilderness, have they a right to dispose of his life, liberty, or property, at their pleasure simply because they are the more numerous party? Or is he bound to submit to lose his life, liberty, or property, if they demand it, simply because he is the less numerous party? Or, because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom and the principles of justice, and by no selfish passion that can lead them to do him a wrong? Yet this is the principle which it is claimed should govern men in all their civil relations to each other. Mankind fall in company with each other on the highway or in the wilderness of life, and it is claimed that the more numerous party, simply by virtue of their superior numbers, have the right arbitrarily to dispose of the life, liberty, and property of the minority; and that the minority are bound, by reason of their inferior numbers, to practise abject submission and consent to hold their natural rights-any, all, or none, as the case may be-at the mere will and pleasure of the majority; as if all a man's natural rights expired or were suspended by the operation of a paramount law the moment he came into the presence of superior numbers.
If such be the true nature of the relations men hold to each other in this world, it puts an end to all such things as crimes, unless they be perpetrated upon those who are equal or superior in number to the actors. All acts committed against persons inferior in number to the aggressors become but the exercise of rightful authority. And consistency with their own principles requires that all governments founded on the will of the majority should recognize this plea as a sufficient justification for all crimes whatsoever.
If it be said that the majority should be allowed to rule not because they are stronger than the minority, but because their superior numbers furnish a probability that they are in the right, one answer is that the lives, liberties, and properties of men are too valuable to them, and the natural presumptions are too strong in their favour, to justify the destruction of them by their fellow-men on a mere balancing of probabilities, or on any ground whatever short of certainty beyond a reasonable doubt. This last is the moral rule universally recognized to be binding upon single individuals. And in the forum of conscience the same rule is equally binding upon governments, for governments are mere associations of individuals.
Another answer is that, if two opposing parties could be supposed to have no personal interests or passions involved to warp their judgments or corrupt their motives, the fact that one of the parties was more numerous than the other (a fact that leaves the comparative intellectual competency of the two parties entirely out of consideration) might perhaps furnish a slight, but at best only a very slight, probability that such party was on the side of justice. But when it is considered that the parties are liable to differ in their intellectual capacities, and that one, or the other, or both, are undoubtedly under the influence of such passions as rivalry, hatred, avarice, and ambition-passions that are nearly certain to pervert their judgments and very likely to corrupt their motives-all probabilities founded upon a mere numerical majority in one party or the other vanish at once; and the decision of the majority becomes, to all practical purposes, a mere decision of chance. And to dispose of men's properties, liberties, and lives by the mere process of enumerating such parties is not only as palpable gambling as was ever practised, but it is also the most atrocious that xas ever practised, except in matters of government. And where government is instituted on this principle (as in the United States, for example), the nation is at once converted into one great gambling establishment; where all the rights of men are the stakes, a few bold, bad men throw the dice-dice loaded with all the hopes, fears, interests, and passions which rage in the breasts of ambitious and desperate men-and all the people, from the interests they have depending, become enlisted, excited, agitated, and generally corrupted by the hazards of the game.
If the relative numbers of opposing parties afforded sufficient evidence of the comparative justice of their claims, the government should carry the principle into its courts of justice; and instead of referring controversies to impartial and disinterested men, to judges and jurors sworn to do justice, and bound patiently to hear and weigh all the evidence and arguments that can be offered on either side, it should simply count the plaintiffs and defendants in each case (where there were more than one of either), and then give the case to the majority; after ample opportunity had been given to the plaintiffs and defendants to reason with, flatter, cheat, threaten, and bribe each other, by way of inducing them to change sides. Such a process would be just as rational in courts of justice as in halls of legislation; for it is of no importance to a man who has his rights taken from him whether it is done by legislative enactment or a judicial decision.
in legislation the people are all arranged as plaintiffs and defendants in their own causes (those who are in favour of a particular law standing as plaintiffs, and those who are opposed to the same law standing as defendants); and to allow these causes to be decided by majorities is plainly as absurd as it would be to allow judicial decisions to be determined by the relative number of plaintiffs and defendants.
If this mode of decision were introduced into courts of justice, we should see a parallel, and only a parallel, to that system of legislation which we witness daily. We should see large bodies of men conspiring to bring perfectly groundless suits against other bodies of men for large sums of money, and to carry them by sheer force of numbers; just as we now continually see large bodies of men conspiring to carry by mere force of numbers some scheme of legislation that will directly or indirectly take money out of other men's pockets and put it into their own. And we should also see distinct bodies of men, parties in separate suits, combining and agreeing all to appear and be counted as plaintiffs or defendants in each other's suits, for the purpose of eking out the necessary majority; just as we now see distinct bodies of men, interested in separate schemes of ambition or plunder, conspiring to carry through a batch of legislative enactments that shall accomplish their several purposes.
This system of combination and conspiracy would go on, until at length whole States and a whole nation would become divided into two great litigating parties, each party composed of several smaller bodies having their separate suits, but all confederating for the purpose of making up the necessary majority in each case. The individuals composing each of these two great parties would at length become so accustomed to acting together, and so well acquainted with each other's schemes, and so mutually dependent upon each other's fidelity for success, that they would become organized as permanent associations, bound together by that kind of honour which prevails among thieves, and pledged by all their interests, sympathies, and animosities to mutual fidelity and to unceasing hostility to their opponents; and exerting all their arts and all their resources of threats, injuries, promises, and bribes to drive or seduce from the other party enough to enable their own to retain or acquire such a majority as would be necessary to gain their own suits and defeat the suits of their opponents, All the wealth and talent of the country would become enlisted in the service of these rival associations; and both would at length become so compact, so well organized, so powerful,, and yet always so much in need of recruits, that a private person would be nearly or quite unable to obtain justice in the most paltry suit with- his neighbour, except on the condition of joining one of these great litigating associations, who would agree to carry through his cause, on condition of his assisting them to carry through all the others, good and bad, which they had already undertaken. If he refused this, they would threaten to make a similar offer to his antagonist, and suffer their whole numbers to be counted against him.
Now this picture is no caricature, but a true and honest likeness. And such a system of administering justice would be no more false, absurd, or atrocious than that system of working by majorities which seeks to accomplish by legislation the same ends which in the case supposed would be accomplished by judicial decision.
Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties,, and that, in order to save blood and prevent mutual extermination the parties come to an agreement that they will count their respective numbers periodically, and the one party shall then be permitted quietly to rule and plunder (restrained only by their own discretion), and the other submit quietly to be ruled and plundered, until the time of the next enumeration.
Such an agreement may possibly be wiser than unceasing and deadly conflict, it, nevertheless, partakes too much of the ludicrous to deserve to be seriously considered as an expedient for the maintenance of civil society. It would certainly seem that mankind might agree upon a cessation of hostilities upon more rational and equitable terms than that of unconditional submission on the part of the less numerous body. Unconditional submission is usually the last act of one who confesses himself subdued and enslaved. How any one ever came to imagine that condition to be one of freedom, has never been explained. And as for the system being adapted to the maintenance of justice among men, it is a mystery that any human mind could ever have been visited with an insanity wild enough to originate the idea.
If it be said that other corporations than governments surrender their affairs into the hands of the majority, the answer is that they allow majorities to determine only trifling matters that are in their nature mere questions of discretion, and where there is no natural presumption of justice or right on one side rather than the other. They never surrender to the majority the power to dispose of or-what is practically the same thing-to determine the rights of any individual member. The rights of every member are determined by the written compact to which all the members have voluntarily agreed.
For example. A banking corporation allows a majority to determine such questions of discretion as whether the note of A or B shall be discounted; whether notes shall be discounted on one, two, or six days in the week; how many hours in a day their banking-house shall be kept open; how many clerks shall be employed; what salaries they shall receive; and such-like matters. But no banking corporation allows a majority, or any other number