Key ideas: Published in 1852. “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” (L. Spooner)
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 IC palladium of liberty II - a barrier against the tyranny and oppression of the govern ment - 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 inadmis- sible, and also tohat 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.
“The trial by juri,” then, is a “trial by the country” - that is, by the people - as distinguished from a trial by the government…
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. Hoto 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….
… 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….
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….
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.
So, also, if the government may dictate to the jury what laue 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..
It is indispensable for this purpose, because, if it be once admitted that the people have any rights and liberties which the government cannot lawfully take from them, then the question arises in regard to every statute of the government, whether it be law, or not; that is, whether it infringe, or not, the rights and liberties of the people.
This is important. If people thought in terms of their natural, inalianable rights instead of the man-made laws, medical tyranny of 2020-22 would not have been possible becasue every law that the government made during that time infirnged the rights and liberties of the people.
As Henry Thoreau said, “It is not desirable to cultivate a respect for the law, so much as for the right.”Of this question every man must of course judge according to the light in his own mind. And no man can be convicted unless the jury find, not only that the statute is law, - that it does not infringe the rights and liberties of the people, - but also that it was so clearly law, so clearly consistent with the rights and liberties of the people, as that the individual himself, who transgressed it, knew it to be so, and therefore had no moral excuse for transgressing it.