History Of 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 light, and their primary and paramount duty, to judge 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 law.
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 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)
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 and determine their own liberties against the government; instead of
the government’s judging of and determining its own powers over the people.
If the government may decide who may, and who may not, be jurors, it will of course select only its
partisans, 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 is 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-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. 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, instead of the people’s determining what are their own liberties against
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 a 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.
They must also judge whether there really be any such law, (be it good or bad,) as the accused is charged
with having transgressed. Unless they judge on this point, the people are liable to have their liberties taken
from them by brute force, without any law at all.
The jury must also judge of the laws of evidence. If the government can dictate to the 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 pleases 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 of 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 powers over the people, instead
of the people’s determining their own liberties against the government; and it will be an entire delusion to talk,
as for centuries we have done, of the trial by the jury, as a palladium of liberty, or as any protection to the
people against the oppression and tyranny of the government.
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 are
the liberties of the people, must necessarily be vested in one or the other of the parties themselves-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 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, (as against the government,) except such as substantially the whole people
(through a jury) choose to disclaim; and the government can exercise no power except such as substantially
the whole people (through a jury) consent that it may exercise.
* To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly
questioned jurors to ascertain whether they were prejudiced against the government-that is, whether they
were in favor of, or opposed to, such laws of the government as were to be put in issue in the then pending
trial. This was done (in 1851) in the United States District Court of- the District of Massachusetts, by Peleg
Sprague, the United Slates district judge, in impaneling three several juries for the trials of Scott, Hayden,
and Morris, charged with having aided in the rescue of fugitive slave from the custody of the United States
deputy Marshall. This judge caused the following question to be propounded to all the jurors separately; and
those who answered unfavorably for- the purposes of government, were excluded from the panel. Do you
hold any opinions upon the subject of the Fugitive Slave Law, so called, which will induce you to refuse to
convict a person indicted under it, if the facts set forth in the indictment, and contesting the offense, are
proved against him, and the court direct you that the law is constitutional!
The reason of this question was, that the Fugitive Slave Law, so called, was so obnoxious to a large
portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately
from among the people.
A similar was soon afterwards propounded to the persons drawn as jurors in the United States District
Court for the District of Massachusetts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of
the United States, in impaneling a jury for the trial of the aforesaid Morris on the charge before mentioned;
and those who did not answer the question favorably for the government were again excluded from the panel.
It has also been an habitual practice with the Supreme Court of Massachusetts, in impaneling juries for the
trial of capital offenses, to inquire of the persons drawn as jurors whether they had any conscientious
scruples against finding verdicts of guilty in such cases; that is, whether they had any conscientious scruples
against sustaining the law prescribing death as the punishment of the crime to be tried; and to exclude from
the panel all who answered in the affirmative.
The only principle upon which these questions arc asked, is this-that no man shall be allowed to serve as
juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the government! A jury like that is
palpably nothing but a mere tool 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 country-because it is a trial only by men specially selected
by the government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly worthless as a security to liberty. The Czar
might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be
permitted(i to select his jurors from those whomever ready to maintain his laws, without regard to their
The example is sufficient to show that the very pith of the trial by jury, as a safeguard to liberty, consists in
the jurors being taken indiscriminately from the whole people, and in their- right to hold invalid all laws
which they think unjust.
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 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
Our American constitutions 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 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 t e senate, or the executive, or the judges, one of them. There
is no more absurdity in giving a jury the 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
representatives, the senate, the executive, or the judges.
But another answer to the argument that the people are arrayed against themselves, when a jury hold an
enactment of the government invalid, is, that the government, and all the departments of government, are
merely the servants and agents of the people; not interested 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, 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 government, 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 of the people? If it have now but got it, the
government is absolute.
* – The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of
them, upon the execution of any laws which he deems unconstitutional; because his oath to support the constitution (as he
understands it) forbids him to execute any law that he deems unconstitutional.
It is plain, therefore, that if the people have invested the government with power to make laws that absolutely
bind the people, and to punish the people for transgressing those laws, the people 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 surrendering their liberties into the hands of
government, 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
(voting). 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. Discussions, which do not interfere with the enforcement of their laws, are 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 enactments 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
make them so? If it 1. 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 be powerful or
artful enough to procure the election of the same or similar instruments to compose 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 never be removed from their office, nor called to
account while in their office, nor punished after they leave 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
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 in 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 can
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 suffrage; prevent the election of any successors; disarm,
plunder, imprison, and even kill all who refuse submission. If, therefore, the government (all departments
united) 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 but 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 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
pleases to transgress or resist it.*
And if there be so much as a reasonable doubt of the justice of the laws, the benefit of that doubt must be
given to the defendant, and not to the government. So that the government must keep its laws clearly within
the limits of justice, if it would ask a jury to enforce them.
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 defence 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 immunity, 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, 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 therefore inapplicable to the case. This
affords a wide field for tyranny; and if a jury cannot here intervene, the oppressed are utterly defenseless.
It is manifest that the only security against the tyranny of the government lies in forcible resistance to the
execution of the injustice; because the injustice will certainly be executed, unless it be 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. It is perfectly
self-evident that where there is no legal right to resist the oppression of the 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 oppressions; in other words, to judge what laws of the government are to be obeyed, and what may
be resisted and 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, and resist its
oppressions, the government is absolute, and the people, legally speaking, are slaves. Like many other
slaves they may have sufficient courage and strength to keep their masters somewhat in check; but they are
nevertheless known to the law only 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.*
* – Hallam says The relation established between a lord and his vassal by the feudal tenure, far from containing principles of
any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as
much to the sovereign as to inferior lords. + + If a vassal was aggrieved, and if justice was denied him, he sent a defiance, that
is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of 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 times, a king, compelled by his subjects’ sword is to
abandon any pretension, would be supposed to have ceased to reign; and the express recognition of such a right is that of
insurrection has been justly deemed inconsistent with the majority of law. But ruder ages had ruder sentiments. Force was
necessary to repel force; and men accustomed to see the king’s authority defied by a private riot, were not much shocked when it
was resisted in defence of public freedom.
— 3 Middle Ages, 240-3
This right of resistance is recognized by the constitution of the United States, as a strictly legal and
constitutional 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 mush 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 defence
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.
In the American State constitutions also, this right of resistance to the oppressions of the government is
recognized, in various ways, as a natural, legal, and constitutional right. In the first place, it is so recognized
by provisions establishing the trial by jury; thus requiring that accused persons shall be tried by the
country, instead of the government. In the second place, it is recognized by many of them, as, for example,
those of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky,
Tennessee, Arkansas, Mississippi, Alabama, and Florida, by provisions, in their bills of rights, declaring that
men have a natural, inherent, and inalienable right of defending their lives and liberties. This, of course,
means that they have a right to defend them against any injustice on the pail of government, and not merely
on the part of private individuals; because the object of all bills of rights is to assert the rights of individuals
and the people, as against the government, and not as against private persons. It would be a matter of
ridiculous supererogation to assert, in a constitution of government, the natural right of men to defend their
lives and liberties against private trespassers.
Many of these bills of rights also assert the natural right of all men to protect their property-that is, to protect it
against the government. It would be unnecessary and silly indeed to assert, in a constitution of
government, the natural right of individuals to protect their property against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare that The doctrine of non-resistance against
arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
The legal effect of these constitutional recognitions of the right of individuals to defend their property,
liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every
name and nature whatsoever, on the part of the government.
But for this 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
the 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 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 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, at the moment of their adoption, for nearly or quite all purposes
except the appointment of officers, who at once become practically absolute, except so far as they are
restrained by the fear of popular resistance.
The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these-that
the government shall never touch the property, person, or natural or civil rights of an individual, against his
consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution
of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as
are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.