According to Lysander Spooner, a mid-nineteenth-century writer, there are five separate tribunals protecting us from abusive government laws: The House of Representatives, the Senate, the Executive, the Courts, and the Common-Law Jury. He maintains that all are important but that the ultimate protection of our liberty must be placed in the hands of our peers. His “Essay on the Trial by jury” (1852) deserves close study by all twentieth-century students concerned about the future of freedom in America.
The concept of protecting individual rights from the heavy hand of government through the common-law jury is as old as the Magna Carta (1215 A.D.). The Founding Fathers were keenly aware of this principle and incorporated it into our Constitution.
John Jay, the first Chief justice of the Supreme Court, agreed with this principle. In his first jury trial in 1794 (Georgia vs. Brailsford) he stated: “You had nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy.” Jefferson was in agreement as well: “To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”
The twentieth century, however, has witnessed a serious erosion of this principle. Since 1895 (Sparf vs. United States), the right of the jury to rule on the justice and constitutionality of the law, as well as the facts in the case, was seriously undermined. Also the lack of concern and understanding for individual rights has affected jurors, just as it has representatives, senators, judges, and presidents. Jurors in recent times have been just as guilty of ignoring the principle of equal rights as have our representatives in our legislatures, judiciary, and executive bodies of government. These two factors have greatly diminished the value of the jury in the twentieth century.
Those frustrated with changes in the Congress, the executive, and the judiciary -- and there is certainly good reason for frustration -- must consider educating potential jurors as to the importance of the common law jury and the principles of individual liberty.
An awakened citizenry, participating in juries around the country, could bring about a nonviolent revolution of magnificent proportions, reversing the sad trends of the twentieth century. The jury today is a weak institution, as are all the other institutions designed to guarantee individual liberty. The right effort could revitalize the jury and restore it to its rightful place in curtailing the endless growth of an all-powerful state.
Several legal events needed to occur in order for big government to thrive. The de-emphasis of the jury was crucial in the expansive powers of the omnipresent state. Judging the moral intent and the constitutionality of the law is no longer even a consideration of the jury. Today the judge instructs the jury to consider only the facts of the case, and then the becomes the soul arbiter of evidence admissible in court. The jury today has become progressively weak over the past ninety years.
In addition, judges write into their rulings grand designs for society. Judiciary bodies have become legislative bodies.
A major part of the judicial system has been removed from the people placing it in administrative branches of government. The agencies of government have usurped power unimagined by the authors of the Constitution. Administrative justice is a great bureaucracy, independent of the legal judiciary.
The right effort could revitalize the jury and restore it to its rightful place in curtailing the endless growth of an all-powerful state.
Regulations are written yearly by the thousands of pages, read by few, and understood by no one. This is done intentionally to keep the peasants humble and to harass the people. It is used as a political tool for selective prosecution. Regulations can favor certain industries while destroying others, providing great accumulation of wealth for the beneficiaries.
Exemption from prosecution of some while others are pursued has destroyed many good industries and companies. Prosecution in the administrative courts requires great sums of money for self-defense. Juries are not available, and one is considered guilty until proven otherwise. Tragically, economic conditions usually prompt the businessman to pay the fine, regardless of its unfairness, to save legal costs. Fighting the system through political reform is not even a serious consideration. Those who would consider such a struggle are ridiculed as idealistic and unrealistic. A powerful political action committee and a shrewd lobbyist are today considered the best investments. Since we have lived with massive bureaucracy for over fifty years, most citizens, uneducated in the ways of equal rights, justice, and freedom, are unaware of another system. By writing regulations with the force of law and administrative justice, interpretations, and enforcement of these laws, the judiciary “rulers” have made a mockery of Article 1, Section 1 of the Constitution.
Whether it’s in the regular courts or the administrative courts, judges who grew up under the welfare ethic, rarely concern themselves with the right to own and control the fruits of one’s own labor. The “right of society,” as they see it, precludes what they claim is a narrow self interest-the individual.
Spooner argues eloquently for the right of the jury to pass final judgment on all laws, the moral intent of the law, the constitutionality of the law, the facts of the case, and the moral intent of the accused. Spooner’s argument for allowing such responsibility to rest with the accused peers is that delegating responsibility only to the representatives in Washington was fraught with danger. He was convinced that removal of our representatives in the next election was not sufficient to protect the people from unwise and meddling legislation.
If we had heeded the admonitions of Lysander Spooner, we would not be faced with this crisis. Spooner begins his essay on trial by jury by clearly stating the importance of the jury’s responsibility to judge the law as well as the facts in the case before them:
For more than six-hundred years, that is, since the 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 it is also their right 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 laws.
Spooner was highly critical of the phrase “according to the evidence” in the oath of jurors, claiming it violated the classical common law. He states:
If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, not by the jury. The jury cannot try an issue unless they determine what evidence shall be admitted. The ancient oath, it will be observed, says nothing about ‘according to the evidence.’
If a law is assumed to be correct constitutionally and morally merely because it’s a law written by our chosen representative, the government can give itself dictatorial powers. And that’s exactly what has happened with the massive powers delegated to the President under the Emergency Powers Act-power sitting there to be grabbed and used at the hint of a crisis.
Spooner saw the jury as the last guard against such usurpation of the people’s rights. Sadly, that protection is just about gone. It is up to us to restore the principle of trial by jury to its rightful place of importance.