Chapter 02 : Trial By Jury As A Palladium Of Liberty
Such being the principles on which the government is formed, the question arises, how shall this government, when formed, be kept within the limits of the contract by which it was established? How shall this government, instituted by the whole people, agreed to by the whole people, supported by the contributions of the whole people, be confined to the accomplishment of those purposes alone which the whole people desire? How shall it be preserved from degenerating into a mere government for the benefit of a part only of those who established it and who support it? How shall it be prevented from even injuring a part of its own members for the aggrandizement of the rest? Its laws must be (or, at least, now are) passed, and most of its other acts performed, by mere agents-agents chosen by a part of the people, and not by the whole. How can these agents be restrained from seeking their own interests, and the interests of those who elected them, at the expense of the rights of the remainder of the people, by the passage and enforcement of laws partial, unequal, and unjust in their operation?
That is the great question. And the trial by jury answers it.
"The trial by jury" 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. 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 who 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 must be taken from the body of the people, by lot, or by some process that precludes any previous 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 partizans 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 who take side 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 verdict 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 as substantially the whole people of the country consent that it may exercise. In such a trial, the country, or the people, 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.
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 partizans 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.
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, 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 a trial by 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 the 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 as the accused is charged with having transgressed.
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 chooses to offer be held as conclusive proof of any offense 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 its hands, 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 determining their 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.
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 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 that it pleases to offer them.
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, because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government 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 except such as the whole people choose to disclaim; and the government can exercise no power except such as the whole people consent that it may exercise.
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 institutions have provided five of these separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of any number of separate tribunals before its authority can be established by the punishment of those who transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals and giving it 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 executive or the judges.
But another answer 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. If the government were not thus required to submit their enactments to the judgment of the country; if, in other words, the people had reserved to themselves no veto upon the acts of the government, then 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. 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 are absolutely binding and to punish transgressors, they 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 case, that in thus surrendering their liberties 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? Or when 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. Such discussion as does not interfere with the enforcement of their laws is 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. Besides, 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 likely and liable 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. Whoever 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 succeed equally well with 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, it comes 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 I 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 into 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 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 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 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 it pleases to transgress or resist it.
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.
Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all legal defense whatsoever against oppression. The right of revolution which tyrants in mockery accord to mankind is no legal right under a government; it is only a natural right to overturn a government. The government itself never acknowledges this right. And the right is practically established only when and because the government no 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. The government itself never admits the injustice of its laws as a legal defense for those who have attempted a revolution and failed. The right of revolution therefore is a right of no practical value except for those who are stronger than the government. So long, therefore, as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own, the right of revolution cannot be appealed to and is inapplicable to the case. This affords a wide field for tyranny; and if a jury cannot intervene here, the oppressed are utterly defenseless.
It is manifest that the only security against the tyranny of the government is in forcible resistance the execution of the injustice, because the intice will certainly be executed unless forcibly resisted. And if it be but suffered to be executed, it must then be borne, for the government never makes compensation for its own wrongs.
Since, then, this forcible resistance to the injustice of the government is the only possible means of preserving liberty, it is indispensable to all legal liberty that this resistance should be legalized. If is perfectly self-evident that, where-there is no legal right to resist the oppression of government, there can be no legal liberty. And here it is all-important to notice that, practically speaking, 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 oppression, in other words, to judge what laws of the government are to be obeyed and what held for naught. The only tribunal known to our laws for this purpose is a jury. If a jury have not the right to judge between the government and those who disobey its laws, the government is absolute, and the people, legally speaking, are slaves. Like other slaves, they may have sufficient courage and strength to keep their masters somewhat in check, but they are, nevertheless, known to the law as slaves.
That this right of resistance was recognized as a common law right when the ancient and genuine trial by jury was in force is not only proved by the nature of the trial itself, but is acknowledged by history.
This right of resistance is recognized by the constitution of the United States as a strictly legal right. It is so recognized, first, by the provision that "the trial of all crimes, except in cases of impeachment, 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 right to keep and bear arms implies the right to use them- as much as a constitutional security for the right to buy and keep food would have implied the right to eat it. The constitution, therefore, takes it for granted that the people will judge of the conduct of the government and that, as they have the right, they will also have the sense to use arms whenever the necessity of the case justifies it. And it is a sufficient and legal defense for a person accused of using arms against the government, if he can show, to the satisfaction of a jury, or even any one of a jury, that the law he resisted was an unjust one.
But for the right of resistance on the part of the people, all governments would become tyrannical to a degree of which few people are aware. Constitutions are utterly worthless to restrain the tyranny of governments, unless it be understood that the people will by force compel the government to keep within constitutional limits. Practically speaking, no government knows any limits to its power except the endurance of the people. But that the people are stronger than the government and will resist in extreme cases, our governments would be little, if anything, 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 word, they may keep the government within the bounds they have set for it; otherwise it will disregard them, as is proved by the example of all our American governments, in which the constitutions have all become obsolete for nearly all purposes except the appointment of officers who at once become practically absolute.
The bounds set to the power of the government by the trial by jury are these,-that the government shall never touch the person, property, or natural or civil rights of an individual against his consent, except for the purpose of bringing him before a jury for trial, unless in pursuance and execution of a judgment or decree rendered by a jury upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of government.
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