An Essay on the Trial By Jury
By LYSANDER SPOONER
Entered according to Act of Congress, in the year 1852, by
In the Clerk's Office of the District Court of Massachusetts.
TRIAL BY JURY
THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
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
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.