Essay on the Trial By Jury | Page 6

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 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 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 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 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 be vested in the people, then
the people have all liberties, (as against the government,) except suc 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.
SECTION II.
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 constitutions have provided five of these separate tribunals,
to wit, 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
the executive, or the judges, one of them. There is no more absurdity in
giving a jury 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 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 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,
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 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