Front Page Titles (by Subject) APPENDIX D.: Effect of Trial by Jury, in nullifying other Legislation than the Fugitive Slave Laws. - A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850
Return to Title Page for A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850
The Online Library of Liberty
A project of Liberty Fund, Inc.
APPENDIX D.: Effect of Trial by Jury, in nullifying other Legislation than the Fugitive Slave Laws. - Lysander Spooner, A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 
A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Effect of Trial by Jury, in nullifying other Legislation than the Fugitive Slave Laws.
If jurors, in criminal cases, have the right to judge of the law, of its constitutionality, and its justice, the trial by jury can be made efficient for nullifying nearly all unconstitutional and unjust legislation; because it makes it safe to violate, and resist the execution of it.
It would, for instance, make it safe to resist the execution of all those unequal and iniquitous revenue laws, which in reality confiscate ten, twenty, thirty, or fifty per cent of one man’s property, under pretence of taxation, while ninety-nine one-hundredths, more or less, of all the other property of the country goes free of taxation; laws, the object of which is, not only to make one man pay the taxes of others, but also to make the mass of the people pay to a few domestic manufacturers, ten, twenty, thirty, or fifty per cent more for their commodities, than they would be worth in free and open market.
It is as much the duty of a man to defend his property against such laws, as to defend it against pirates and highwaymen. And the execution of such laws would certainly be resisted, if it were understood that jurors had a right, in trying men for such resistance, to judge of the justice of the laws.
The laws against smuggling also, which confiscate a man’s entire cargo, as a punishment for evading a tax gatherer, who, but for the evasion, would have seized a half or a quarter of it, would be nullified by the trial by jury, if it were understood that jurors had a right to judge of the justice of the laws.
The laws against smuggling are unconstitutional, as well as unjust. The constitution gives not the slightest authority for laws, that punish men for concealing their property from the tax gatherer. Men have a natural right to conceal their property; for they may fear other robbers than the tax gatherer. The government must find property before they can tax it; and when they have found it, they are authorized only to tax it. They have no authority to confiscate it, as a punishment to the proprietor for not having voluntarily exposed it for taxation.
The constitution declares simply that “the congress shall have power to lay and collect taxes, duties, imposts, and excises,” &c. Here is no authority for confiscating property, which the owner had refused to expose to, or had attempted to conceal from, the tax gatherer.
The constitution gives no more power to confiscate imported goods, for the reason mentioned, than to confiscate domestic property. Suppose a direct tax were laid, who imagines that congress would have power to confiscate all property, which the owners should refuse to expose to, or should attempt to conceal from, the assessors? Yet they would have the same right in that case, that they have in the case of imported goods; for the constitution makes no distinction, in this particular, between imported and domestic goods.
The state governments have power to lay taxes also; but who supposes they have power to confiscate property, or punish the owner by imprisonment, because he refuses to disclose how much money he has in his pocket, or attempts to conceal any other property from the assessors? Yet the states have as much power to do so, as have congress.
The true trial by jury would also abolish the government monopoly in the carriage of letters and papers. If mankind have any natural rights, the right of transmitting intelligence to each other, in any way that is intrinsically innocent, is one of them. And juries, if they knew their duties, would sustain that right, by refusing ever to convict a man for exercising it.
The laws against this right is another of the many laws, for which the constitution gives no authority. The constitution says simply that “Congress shall have power to establish post-offices and post roads.” It gives them no power to forbid others to establish post-offices and post roads in competition with those of Congress. Suppose the constitution had said that Congress shall have power to establish stage coaches, steam-boats, and rail-roads, for the transportation of passengers and merchandize; does any one imagine that that would have given them any authority to prohibit others from establishing stage-coaches, steam-boats, and rail-roads in competition with those of Congress? Yet that case would have been a parallel one to the post-office power.
The trial by jury would also open all vacant wild lands to the settler, free of charge by, or interference from, the government. The Creator gave lands, not to governments, but to men. And men have the same natural right to take possession of unoccupied wild lands, without permit from the government, that they have to dip water from the stream, to breathe the air, or enjoy the sunshine. And juries, if they knew their duties, would protect men in the enjoyment of this right, by acquitting them, if indicted as trespassers, or for resisting the government in its attempts to dispossess them of their lands.
What is true of lands, is true also of all mines, salt springs, &c., which men find in the earth. A man has the same right to dig gold out of the earth, without asking permission of the government, if he can find a spot unoccupied by any other man, that he has to dig roots.
In the state governments, the trial by jury would abolish all restrictions upon contracts, that are intrinsically lawful, between man and man. It would, for example, abolish the laws which prohibit free banking, and limit the rates of interest; laws, which make currency scarce, and make credit and capital difficult to be obtained. Also the laws, which forbid the sale of certain commodities, unless inspected by officers of the government; which forbid men to act as pilots, auctioneers, or innholders, unless specially licensed; and all other laws, which require that men obtain a special license from the government for doing any act or business that is intrinsically lawful.
In fact the trial by jury would abolish the whole catalogue of laws against acts not criminal in themselves, by which monopolies are sustained, and men are deprived of their natural rights; laws founded on the principle that the destruction of private rights is promotive of the public good.
The trial by jury would compel the free administration of justice. A man has a natural right to enforce his own rights, and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he can find it, to satisfy the debt. If one man commit a trespass upon the person, property, or character of another, the injured party has a natural right either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party, as between these individuals, it is more likely to do exact justice between them, than the injured individual himself would do. The government also, having more power at its command, is likely to right a man’s wrongs more peacefully than the injured party himself could do it. If therefore, the government will do the work of enforcing a man’s rights, or of redressing his wrongs, free of expense to him, he is under a moral obligation to leave the work in the hands of the government,—but not otherwise. When the government forbids him to enforce his own rights, or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, and of paying the government for doing it, the government becomes itself an accomplice of the oppressor. If the govern, ment will forbid a man to protect his own rights, it is bound to do it for him, free of expense to him. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights.
Probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,—as, for instance, to compel the payment of debts,—and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, free of expense, or allow them to protect themselves.
The free administration of justice is one of the principles of Magna Charta-Its language is, “We will sell to no man, we will deny no man, nor defer right or justice.” What is it but selling right and justice, to compel a man to pay the cost of it? or any part of the necessary cost of it? There would be the same reason, in compelling a party to pay the judge and the jury for their services, that there is in compelling him to pay the witnesses, or any other necessary charges.
The above principle of Magna Charta is incorporated into many of our state constitutions; but it is a dead letter in all of them. But if the trial by jury were rightly understood, the administration of justice would have to be made free, or juries would protect men in defending their rights by force.
This compelling parties to pay the expenses of civil suits, is one of the many cases, in which government is false to the fundamental principles, on which it is based. What is the object of government but to protect men’s rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of all? Yet when his own rights are actually invaded, this government, which he contributes to support, becomes his enemy, and will neither protect his rights, (except at his own cost), nor suffer him to do it himself.
The free administration of justice would promote simplicity and stability in the laws. The mania of legislation would be in a great measure restrained, if the government were compelled to pay the expenses of all the suits that grow out of it.
UNCONSTITUTIONALITY OF SLAVERY. PARTS FIRST AND SECOND.
Published and for sale by BELA MARSH, No. 25 Cornhill, Boston. Price 50 cents, (25 cents for either part separately). Postage on the book for any distance is but 12 cents. A person remitting to the Publisher $1, post-paid, can have two copies sent by mail. A liberal discount will be made to Booksellers and Agents who buy to sell again.
☞ Will the publishers of Anti-Slavery papers please to keep a supply on hand for sale?