Essay on the Trial By Jury | Page 4

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.
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