An Essay on the Trial By Jury
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Lysander Spooner >> An Essay on the Trial By Jury
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22 Scanner's Note: I have made two changes in this text. First I have
removed the footnotes to the end of each chapter and I have placed
note 9 at the end of chapter 6 noting that because of the ratification
of the XIX amendment to the Constitution for the United States,
August 20, 1920, women were fully enfranchised with all rights of
voting and jury service in all states of the Union. Other than the lack
of italics and bold in this text and the typos (may they be few) this is
the complete first edition text. Let me know of any mistakes you have
caught! My email address's for now is haradda@aol.com and
davidr@inconnect.com.
David Reed
An Essay on the Trial By Jury
By LYSANDER SPOONER
Entered according to Act of Congress, in the year 1852, by
LYSANDER SPOONER
In the Clerk's Office of the District Court of Massachusetts.
NOTICE TO ENGLISH PUBLISHERS
The author claims the copyright of this book in England, on
Common Law principles, without regard to acts of parliament; and
if the main principle of the book itself be true, viz., that no
legislation, in conflict with the Common Law, is of any validity,
his claim is a legal one. He forbids any one to reprint the book
without his consent.
Stereotyped by HOBART & ROBBINS;
New England Type and Stereotype Foundery,BOSTON.
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 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.
CONTENTS
CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE
JUSTICE OF LAWS
SECTION 1.
SECTION 2.
CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY
MAGNA CARTA
SECTION 1. The History Of Magna Carta
SECTION 2. The Language Of Magna Carta
CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
DUTIES OF JURORS.
SECTION 1. Weakness of the Regal Authority
SECTION 2. The Ancient Common Law Juries Were Mere Courts
Of Conscience
SECTION 3. The Oaths of Jurors
SECTION 4. The Right Of Jurors To Fix The Sentence
SECTION 5. The Oaths Of Judges
SECTION 6. The Coronation Oath
CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN
CIVIL SUITS
CHAPTER V. OBJECTIONS ANSWERED
CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL
CHAPTER VII. ILLEGAL JUDGES
CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE
CHAPTER IX. THE CRIMINAL INTENT
CHAPTER X. MORAL CONSIDERATIONS FOR JURORS
CHAPTER XI. AUTHORITY OF MAGNA CARTA
CHAPTER XII. LIMITATIONS IMPOSED UPON THE
MAJORITY BY THE TRIAL BY JURY
APPENDIX TAXATION
TRIAL BY JURY
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
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
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 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
against 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 or bad,) as the accused is charged with having transgressed.
Unless they judge on this point, the people are liable to have their
liberties taken from them by brute force, without any law at all.
The jury must also judge of the laws of evidence. If the
government can dictate to a jury the laws of evidence, it can not
only shut out any evidence it pleases, tending to vindicate the
accused, but it can require that any evidence whatever, that it
pleases to offer, be held as conclusive proof of any offence
whatever which the government chooses to allege.
It is manifest, therefore, that the jury must judge of and try the
whole case, and every part and parcel of the case, free of any
dictation or authority on the part of the government. They must
judge of the existence of the law; of the true exposition of the law;
of the justice of the law; and of the admissibility and weight of all
the evidence offered; otherwise the government will have
everything its own way; the jury will be mere puppets in the hands
of the government: and the trial will be, in reality, a trial by the
government, and not a "trial by the country." By such trials the
government will determine its own powers over the people, instead
of the people's determining their own liberties against the
government; and it will be an entire delusion to talk, as for
centuries we have done, of the trial by jury, as a "palladium of
liberty," or as any protection to the people against the oppression
and tyranny of the government.
The question, then, between trial by jury, as thus described, and
trial by the government, is simply a question between liberty and
despotism. The authority to judge what are the powers of the
government, and what the liberties of the people, must necessarily
be vested in one or the other of the parties themselves the
government, or the people; because there is no third party to whom
it can be entrusted. If the authority be vested in the government,
the governmnt is absolute, and the people have no liberties except
such as the government sees fit to indulge them with. If, on the
other hand, that authority be vested in the people, then the people
have all liberties, (as against the government,) except suc as
substantially the whole people (through a jury) choose to disclaim;
and the government can exercise no power except such as
substantially the whole people (through a jury) consent that it may
exercise.
SECTION II.
The force and. justice of the preceding argument cannot be evaded
by saying that the government is chosen by the people; that, in
theory, it represents the people; that it is designed to do the will of
the people; that its members are all sworn to observe the
fundamental or constitutional law instituted by the people; that its
acts are therefore entitled to be considered the acts of the people;
and that to allow a jury, representing the people, to invalidate the
acts of the' government, would therefore be arraying the people
against themselves.
There are two answers to such an argument.
One answer is, that, in a representative government, there is no
absurdity or contradiction, nor any arraying of the people against
themselves, in requiring that the statutes or enactments of the
government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have the
force of laws. Our American constitutions have provided five of
these separate tribunals, to wit, representatives, senate,
executive,[2] jury, and judges; and have made it necessary that
each enactment shall pass the ordeal of all these separate tribunals,
before its authority can be established by the punishment of those
who choose to transgress it. And there is no more absurdity or
inconsistency in making a jury one of these several tribunals, than
there is in making the representatives, or the senate, or the
executive, or the judges, one of them. There is no more absurdity
in giving a jury a veto upon the laws, than there is in giving a veto
to each of these other tribunals. The people are no more arrayed
against themselves, when a jury puts its veto upon a statute, which
the other tribunals have sanctioned, than they are when the same
veto is exercised by the representatives, the senate, the executive,
or the judges.
But another answer to the argument that the people are arrayed
against themselves, when a jury hold an enactment of the
government invalid, is, that the government, and all the
departments of the government, are merely the servants and agents
of the people; not invested with arbitrary or absolute authority to
bind the people, but required to submit all their enactments to the
judgment of a tribunal more fairly representing the whole people,
before they carry them into execution, by punishing any individual
for transgressing them. If the government were not thus required to
submit their enactments to the judgment of "the country," before
executing them upon individuals if, in other words, the people
had reserved to themselves no veto upon the acts of the
government, the government, instead of being a mere servant and
agent of the people, would be an absolute despot over the people.
It would have all power in its own hands; because the power to
punish carries all other powers with it. A power that can, of itself,
and by its own authority, punish disobedience, can compel
obedience and submission, and is above all responsibility for the
character of its laws. In short, it is a despotism.
And it is of no consequence to inquire how a government came by
this power to punish, whether by prescription, by inheritance, by
usurpation. or by delegation from the people's If it have now but
got it, the government is absolute.
It is plain, therefore, that if the people have invested the
government with power to make laws that absolutely bind the
people, and to punish the people for transgressing those laws, the
people have surrendered their liberties unreservedly into the hands
of the government.
It is of no avail to say, in answer to this view of the ease, that in
surrendering their liberties into the hands of the government, the
people took an oath from the government, that it would exercise its
power within certain constitutional limits; for when did oaths ever
restrain a government that was otherwise unrestrained? Orwhen
did a government fail to determine that all its acts were within the
constitutional and authorized limits of its power, if it were
permitted to determine that question for itself?
Neither is it of any avail to say, that, if the government abuse its
power, and enact unjust and oppressive laws, the government may
be changed by the influence of discussion, and the exercise of the
right of suffrage. Discussion can do nothing to prevent the
enactment, or procure the repeal, of unjust laws, unless it be
understood that, the discussion is to be followed by resistance.
Tyrants care nothing for discussions that are to end only in
discussion. Discussions, which do not interfere with the
enforcement of their laws, are but idle wind to them. Suffrage is
equally powerless and unreliable. It can be exercised only
periodically; and the tyranny must at least be borne until the time
for suffrage comes. Be sides, when the suffrage is exercised, it
gives no guaranty for the repeal of existing laws that are
oppressive, and no security against the enactment of new ones that
are equally so. The second body of legislators are liable and likely
to be just as tyrannical as the first. If it be said that the second
body may be chosen for their integrity, the answer is, that the first
were chosen for that very reason, and yet proved tyrants. The
second will be exposed to the same temptations as the first, and
will be just as likely to prove tyrannical. Who ever heard that
succeeding legislatures were, on the whole, more honest than those
that preceded them? What is there in the nature of men or things to
make them so? If it be said that the first body were chosen from
motives of injustice, that fact proves that there is a portion of
society who desire to establish injustice; and if they were powerful
or artful enough to procure the election of their instruments to
compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar
instruments to compose the second. The right of suffrage,
therefore, and even a change of legislators, guarantees no change
of legislation certainly no change for the better. Even if a change
for the better actually comes, t cmes too late, because it comes
only after more or less injustice has been irreparably done.
But, at best, the right of suffrage can be exercised only
periodically; and between the periods the legislators are wholly
irresponsible. No despot was ever more entirely irresponsible than
are republican legislators during the period for which they are
chosen. They can neither, be removed from their office, nor called
to account while in their office, nor punished after they leave their
office, be their tyranny what it may. Moreover, the judicial and
executive departments of the government are equally irresponsible
to the people, and are only responsible, (by impeachment, and
dependence for their salaries), to these irresponsible legislators.
This dependence of the judiciary and executive upon the
legislature is a guaranty that they will always sanction and execute
its laws, whether just or unjust. Thus the legislators hold the whole
power of the government in their hands, and are at the same time
utterly irresponsible for the manner in which they use it.
If, now, this government, (the three branches thus really united in
one), can determine the validity of, and enforce, its own laws, it is,
for the time being, entirely absolute, and wholly irresponsible to
the people.
But this is not all. These legislators, and this government, so
irresponsible while in power, can perpetuate their power at
pleasure, if they can determine what legislation is authoritative
upon the people, and can enforce obedience to it, for they can not
only declare their power perpetual, but they can enforce
submission to all legislation that is necessary to secure its
perpetuity. They can, for example, prohibit all discussion of the
rightfulness of their authority; forbid the use of the suffrage;
prevent the election of any successors; disarm, plunder, imprison,
and even kill all who refuse submission. If, therefore, the
government (all departments united) be absolute for a day that is,
if it can, for a day, enforce obedience to its own laws it can, in
that day, secure its power for all time like the queen, who wished
to reign but for a day, but in that day caused the king, her husband,
to be slain, and usurped his throne.
Nor will it avail to say that such acts would be unconstitutional,
and that unconstitutional acts may be lawfully resisted; for
everything a government pleases to do will, of course, be
determined to be constitutional, if the government itself be
permitted to determine the question of the constitutionality of its
own acts. Those who are capable of tyranny, are capable of perjury
to sustain it.
The conclusion, therefore, is, that any government, that can, for a
day, enforce its own laws, without appealing to the people, (or to a
tribunal fairly representing the people,) for their consent, is, in
theory, an absolute government, irresponsible to the people, and
can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and
therefore forbids the government to execute any of its laws, by
punishing violators, in any case whatever, without first getting the
consent of "the country," or the people, through a jury. In this way,
the people, at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of the
government.
The trial by jury, then, gives to any and every individual the
liberty, at any time, to disregard or resist any law whatever of the
government, if he be willing to submit to the decision of a jury, the
questions, whether the law be intrinsically just and obligatory? and
whether his conduct, in disregarding or resisting it, were right in
itself? And any law, which does not, in such trial, obtain the
unanimous sanction of twelve men, taken at random from the
people, and judging according to the standard of justice in their
own minds, free from all dictation and authority of the
government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.[3]
The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression. If it
do not authorize an individual to resist the first and least act of
injustice or tyranny, on the part of the government, it does not
authorize him to resist the last and the greatest. If it do not
authorize individuals to nip tyranny in the bud, it does not
authorize them to cut it down when its branches are filled with the
ripe fruits of plunder and oppression.
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