The 1895 Rape of The U.S Common Law Jury

In the 1895 case of Sparf vs U.S. the institution of the Common Law Jury in these United States was raped, i.e. robbed of its most precious virtue as a true safeguard against the most insidious usurpations of power by any of the branches of government.  It was then decided to set an unconstitutional precedent of having the judge preempt the right of the jury to judge the justice of the law itself in a trial against an individual.  Regardless of how reprehensible or unconstitutional and encroaching the jury might find the law to be, this case set a precedent that the courts have since adhered to in robbing the jury system of its once most noble virtue and constitutional safeguard, namely the safeguard against tyranny and oppression found in the former ability of a jury to determine not only the facts of a case but ultimately the law as well.

Theophilus Parsons, chief justice of the supreme court of Massachusetts said the following concerning this former ability of the U.S. Common Law Jury:

“An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.  Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.”

The authority of the Common Law Jury to determine not only the facts of a trial but also the law was clearly understood at an earlier time in U.S. history as stated by Chief Justice John Jay in his instructions to the first jury trial before the Supreme Court in the 1794 case entitled “Georgia v. Brailsford (3 Dall. 1)”:

“It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision.”

Despite the dangerous unconstitutional precedent set forth in 1895 to deny the jury their inalienable prerogative to nullify the application of bad laws on their own fellow citizens, there is still some hope that some juries might be as wise and crafty as the midwives of Egypt back at the time of Moses who deceived the Pharoah in fearing (honoring) the true God of Israel.  Such deception is becoming to any saint or decent citizen fed up with unconstitutional laws being applied against their fellow man.  The jury could ignore the evidence against a man even if it was clear that he was guilty if they felt the law that was broken was a bad law.  While I’m actually for vaccinations in most cases, they (the juries) could play the same game as some parents who avoid having their children vaccinated in such states that only allow those with religious convictions to avoid them (i.e. the parents claim that vaccination is against their religious convictions even though it isn’t).

Perhaps one of the best essays on the history and necessity of the original powers of the Common Law Jury was written by Lysander Spooner in 1852.  

 Here is the summary beginning of Lysander Spooner’s famous essay:

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.

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.

The full text can be had for free from the Project Gutenberg website at:
http://www.gutenberg.org/dirs/etext98/tbjry10.txt

One shouldn’t dismiss Lysander Spooner’s clearly worded and very instructive essay on accounts of his reputation as an anarchist. One should remember the history he lived through and remember that one can have anarchist leanings without being treasonous.  Remember that treason is limited to that definition of Article III.3.1 of the U.S. Constitution:

Treason against the United States shall consist of levying war against them or adhering to their enemies by giving them aid and comfort.

Promoting disobedience of bad laws in my mind is better than wasting one’s efforts dutifully but stupidly trying hard not to offend the government by obeying asinine laws.   Surely it would be ridiculous to disobey all bad laws.  Most bad laws are typically tolerable for a while.  Still there are some laws that could never be tolerated by any freeman.  An example will illustrate my point: let’s say that the legislature outlawed the public display and carrying of firearms, even those carried by persons with concealed weapons permits.  This bad law would probably be tolerable and ok to obey for a short while.  However if the laws become as encroaching as to say that the ownership of firearms were to be illegal and that all firearms had to be turned over or even confiscated then such a law would be immediately intolerable and successively intolerable for any duration of time before it could be addressed by an amendment.  That the Canadians have permitted their own government to disallow the ownership of handguns is to me a sign of their collective ignorance in the crudest connotation of the word.  Other nations have fallen prey to such disarmament of their citizenry for other reasons such as despotic acts of government without their peoples’ consent.  It is little comfort however when one realizes how close we are in the United States to the same stupidity.  Both Canada and the U.S. however at one time had more common sense and hopefully can regain the foresight and prudence of their ancestors.

Some knowing my faith and religion might reprimand my suggestion that we disobey some bad laws quote me the 12th Article of Faith:

12 We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.

Only an ignorant fool however would take this without the context and history of the Doctrine and Covenants that further qualify what law the Latter Day Saint is morally bound to obey.  This is succinctly expressed in section 98 of the Doctrine and Covenants:

4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.    5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me. 

  6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land; 

  7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil. 

  8 I, the Lord God, make you free, therefore ye are free indeed; and the law also maketh you free.
 
  9 Nevertheless, when the wicked rule the people mourn. 

  10 Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil.
 
  11 And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God.

This scripture clearly reemphasizes the principle that Natural Laws or God’s Laws trumps the laws of man or Civil Laws.  That men still fear men more than God and surrender their God given rights to improper laws however is nothing new.  The ancient Israelites offended God by demanding a King.  He let them have one, but warned them of the oppressive consequences.  The following Bible passage found in 1 Samuel Chapter 8 depicts the Lords sadness at Israel having rejected Him as their true King and emancipator from worldly sin and oppression:

1 And it came to pass, when Samuel was old, that he made his sons judges over Israel.    2 Now the name of his firstborn was Joel; and the name of his second, Abiah: they were judges in Beer-sheba. 

  3 And his sons walked not in his ways, but turned aside after lucre, and took bribes, and perverted judgment. 

  4 Then all the elders of Israel gathered themselves together, and came to Samuel unto Ramah, 

  5 And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations. 

  6 ¶ But the thing displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the LORD. 

  7 And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them. 

  8 According to all the works which they have done since the day that I brought them up out of Egypt even unto this day, wherewith they have forsaken me, and served other gods, so do they also unto thee.

Much of the above information was gleamed and requoted from the excellent book “The Making of America, The Substance And Meaning of the Constitution” by W. Cleon Skousen as well as the scriptures themselves.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: