An Essay on the Trial By Jury

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he 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

f liberty" a barrier against the tyranny and oppression of the government they are really mere tools

ainly 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

h as are here claimed for them, will be evident when it is c

the country" that is, by the people as dis

And now, in every criminal trial, the jury are told that the accused "has,

s 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 po

s own powers over the people, is an absolute government of course. It has all the powers that it cho

against the government, of course retain all the liberties they wish to enjoy. And this is freedom. At least, it is freedom t

re taken, (or must be, to make them lawful jurors,} from the body of the people, by lot, or by some pro

rtisans or friends; in other words, to prevent the government's packing a

he 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

nd. 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 ex

e government, if the government 'could either declare who may, and who may not, be jurors, or could d

rescribe 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 p

e 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

t 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 expositi

accused is charged with having transgressed. Unless they judge on this point, the people

ot only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whateve

y 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 po

hemselves 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

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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 con

answers to suc

, 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 t

l 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

punish, whether by prescription, by inheritance, by usurpation. or by delega

laws that absolutely bind the people, and to punish the people for transgressing those laws

nment, 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 g

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

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 legisla

, can determine the validity of, and enforce, its own laws, it is, for t

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, therefo

ything a government pleases to do will, of course, be determined to be constitutional, if the government itself be permitted to dete

appealing to the people, (or to a tribunal fairly representing the people,) for their consent, is, in

ing violators, in any case whatever, without first getting the consent of "the country," or the people, through a jury. In this way, the pe

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 p

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

o longer exists to call it in question. The right, therefore, can be exercised with impunity, only when it is exercised victoriously. All unsuccessful attempts at revolution, however justifiable in themselves, are punished as treason, if the government be permitted to judge of the treason. The government itself never admits the injustice of its laws, as a legal defence for those who have attempted a revolution, and failed. The right of revolution, t

tion of the injustice; because the injustice will certainly be executed, unless it be forcibly resisted. And if it b

king, there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions; in other words, to judge what laws of the government are to be obeyed, and what may be resisted and held for nought. The only tribunal know

n the ancient and genuine trial by jury was in force, is not only prove

peachment, shall be by jury" that is, by the country and not by the government; secondly, by the provision that "the right of the people to keep and bear arms shall not be infringed." This constitutional security for "the r

whenever the necessity of the case justifies it. And it is a sufficient and legal defence for a person accused of using arms against

o, Indiana, Michigan, Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and Florida, by provisions expressly declaring that the people shall have the right to bear arms. In many of them also, as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, Iowa, and Arkansas, by provisions, in their bills of rights, declaring that men have a natural, inherent, and inalienable right of "defending their lives and liberties."

to protect it against the government. It would be unnecessary and silly indeed to assert, in a constitut

e doctrine of non-resistance against arbitrary power and oppression is

eir property, liberties, and lives, ' against the government, is to legalize resistance to all

eople. But that the people are stronger than the government, and will resist in extreme cases, our governments would be little or nothing else than organized systems of plunder and oppression. All, or nearly all, the advantage there is in fixing any constitutional limits to the power of a government, is simply to give notice to the government of the point at which it will meet with resistance. If the people are then as good as their

vil rights of an individual, against his consent, {xcept for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendere

e put in issue in the then pending trial. This was done (in 1851) in the United States District Court for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with hav

to refuse to convict a person indicted under it, if the facts set forth, in the indictment, and const

so obnoxious to a large portion of the people, as to render a conviction unde

etts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of the United States, in empanelling a jury for the trial of the aforesaid

s drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such eases; that is, whether they had any conscientious scru

o man shall be allowed to serve as juror, unless he be ready to enforce

l of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself and not a trial by the

Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be p

afeguard to liberty, consists in the jurors being taken indiscriminately from the

veto, in all of them, upon the execution of any laws which he deems unconstitutional; because his oath to s

hat doubt must be given to the defendant, and not to the government. So that the government mu

f his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern t