The Right of Juries to Judge the Justice of the Law
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...