Part 1 (1/2)

An Essay on the Trial by Jury.

by Lysander Spooner.

NOTE.

This volume, it is presumed by the author, gives what will generally be considered satisfactory evidence,--though not all the evidence,--of what the Common Law trial by jury really is. In a future volume, if it should be called for, it is designed to corroborate the grounds taken in this; give a concise view of the English const.i.tution; show the unconst.i.tutional character of the existing government in England, and the unconst.i.tutional means by which the trial by jury has been broken down in practice; prove that, neither in England nor the United States, have legislatures ever been invested by the people with any authority to impair the powers, change the oaths, or (with few exceptions) abridge the jurisdiction, of juries, or select jurors on any other than Common Law principles; and, consequently, that, in both countries, legislation is still const.i.tutionally subordinate to the discretion and consciences of Common Law juries, in all cases, both civil and criminal, in which juries sit. The same volume will probably also discuss several political and legal questions, which will naturally a.s.sume importance if the trial by jury should be reestablished.

CHAPTER I.

THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

SECTION I.

For more than six hundred years--that is, since Magna Carta, in 1215--there has been no clearer principle of English or American const.i.tutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; _but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws_.

Unless such be the right and duty of jurors, it is plain that, instead of juries being a ”palladium of liberty”--a barrier against the tyranny and oppression of the government--they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.

But for their right to judge of the law, _and the justice of the law_, juries would be no protection to an accused person, _even as to matters of fact_; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, _and also what force or weight is to be given to the evidence admitted_. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.

That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object.

_”The trial by jury,” then, is a ”trial by the country”--that is, by the people--as distinguished from a trial by the government._

It was anciently called ”trial _per pais_”--that is, ”trial by the country.” And now, in every criminal trial, the jury are told that the accused ”has, for trial, put himself upon the _country_; which _country_ you (the jury) are.”

_The object of this trial ”by the country” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or ”the country,” judge of and determine their own liberties against the government; instead of the government's judging of and determining its own powers over the people.

How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?_

Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise.

There is no other--or at least no more accurate--definition of a despotism than this.

On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy.

_And this is freedom._ At least, it is freedom _to them_; because, although it may be theoretically imperfect, it, nevertheless, corresponds to _their_ highest notions of freedom.

To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, _by lot_, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government's const.i.tuting a jury of its own partisans or friends; in other words, to prevent the government's _packing_ a jury, with a view to maintain its own laws, and accomplish its own purposes.

It is supposed that, if twelve men be taken, _by lot_, from the ma.s.s of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of ”the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all cla.s.ses of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the cla.s.ses, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those cla.s.ses, who take sides with the oppressor--that is, with the government.

It is fairly presumable that such a tribunal will agree to no conviction except such as _substantially the whole country_ would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, ”a trial by the country.” In its results it probably comes as near to a trial by the _whole_ country, as any trial that it is practicable to have, without too great inconvenience and expense. And as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punis.h.i.+ng offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, ”the country,”

or the people, judge of and determine their own liberties against the government, instead of the government's judging of and determining its own powers over the people.

But all this ”trial by the country” would be no trial at all ”by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may, and who may not, be eligible to be drawn as jurors; but it may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial, before suffering him to be sworn on the panel; and exclude him if he be found unfavorable to the maintenance of such a law.[1]

So, also, if the government may dictate to the jury _what laws they are to enforce_, it is no longer a ”trial by the country,” but a trial by the government; because the jury then try the accused, not by any standard of their own--not by their own judgments of their rightful liberties--but by a standard dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people's liberties. If the government dictate the standard of trial, it of course dictates the results of the trial. And such a trial is no trial by the country, but only a trial by the government; and in it the government determines what are its own powers over the people, instead of the people's determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.