An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗
- Author: Lysander Spooner
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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 Constitution; Show The Unconstitutional Character Of The
Existing Government In England, And The Unconstitutional 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 Constitutionally 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
Assume Importance If The Trial By Jury Should Be Reestablished.
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 2
For More Than Six Hundred Years That Is, Since Magna Carta, In
1215 There Has Been No Clearer Principle Of English Or American
Constitutional 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
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 3That 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 Previos Knowledge, Choice, Or
Selection Of Them, On The Part Of The Government.
This Is Done To Prevent The Government's Constituting 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 Mass 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 Classes 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 Classes, 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 Classes, 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 Punishing 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 A 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 Dtermine Their Own Liberties
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 1 Pg 4Against The Government, Instead Of Thegovernment'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.
The Jury Are Also To Judge Whether The Laws Are Rightly Expounded
To Them By The Court. Unless They Judge On This Point, They Do
Nothing To Protect Their Liberties Against The Oppressions That Are
Capable Of Being Practiced Under Cover Of A Corrupt Exposition Of
The Laws. If The Judiciary Can Authoritatively Dictate To A Jury Any
Exposition Of The Law, They Can Dictate To Them The Law Itself, And
Such Laws As They Please; Because Laws Are, In Practice, One Thing
Or Another, According As They Are Expounded.
The Jury Must Also Judge Whether There Really Be Any Such Law, (Be
It Good
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