Essay on the Trial By Jury | Page 5

have their representatives
in the jury, as well as those classes, who take sides with the oppressor
that is, with the government.
It is fairly presumable that such a tribunal will agree to no conviction
except such as substantially the whole country would agree to, if they
were present, taking part in the trial. A trial by such a tribunal is,
therefore, in effect, "a trial by the country." In its results it probably
comes as near to a trial by the whole country, as any trial that it is
practicable to have, without too great inconvenience and expense. And.
as unanimity is required for a conviction, it follows that no one can be
convicted, except for the violation of such laws as substantially the
whole country wish to have maintained. The government can enforce
none of its laws, (by punishing offenders, through the verdicts of juries,)
except such as substantially the whole people wish to have enforced.
The government, therefore, consistently with the trial by jury, can
exercise no powers over the people, (or, what is the same thing, over
the accused person, who represents the rights of the people,) except
such a substantially the whole people of the country consent that it may
exercise. In such a trial, therefore, "the country," or the people, judge of
and dtermine their own liberties against the government, instead of
thegovernment's judging of and determining its own powers over the
people.
But all this "trial by the country" would be no trial at all "by the
country," but only a trial by the government, if the government 'could
either declare who may, and who may not, be jurors, or could dictate to
the jury anything whatever, either of law or evidence, that is of the
essence of the trial.
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 it 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. [1]
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.
The jury 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 a 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 offence whatever which the government
chooses to allege.
It is manifest, therefore, that the jury must judge of and try the whole
case, and every