The Online Library of Liberty

A project of Liberty Fund, Inc.

• Poverty, Its Illegal Causes and Legal Cure.—part I. By Lysander Spooner.
• Recommendations.
• Act of Congress of 1793.: An Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters.
• Act of Congress of 1850.: An Act to Amend, and Supplementary to the Act, Entitled “an Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters,” Approved February 12, 1793.
• A Defence For Fugitive Slaves.
• Chapter I.: Unconstitutionality of the Acts of Congress of 1793 and 1850.
• Chapter II.: The Right of Resistance, and the Right to Have the Legality of That Resistance Judged of By a Jury.
• Chapter III.: Liability of United States Officers to Be Punished, Under the State Laws, For Executing the Acts of 1793 and 1850.
• Appendix A.: Neither the Constitution, Nor Either of the Acts of Congress of 1793 Or 1850, Requires the Surrender of Fugitive Slaves.
• Appendix B.: Authorities For the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix C.: Mansfield’s Argument Against the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix D.: Effect of Trial By Jury, In Nullifying Other Legislation Than the Fugitive Slave Laws.
• Unconstitutionality of Slavery. Parts First and Second.
• Recommendations.
• Also For Sale As Above.

C.

Mansfield’s argument against the Right of the Jury to judge of the law in criminal cases.

Mansfield’s argument, if argument it can be called, against the right of the jury to judge of the law, is this.

“They (the jury) do not know, and are not presumed to know, the law; they are not sworn to decide the law; they are not required to do it. * * The jury ought not to assume the jurisdiction of law; they do not know, and are not presumed to know, any thing of the matter; they do not understand the language, in which it is conceived, or the meaning of the terms; they have no rule to go by but their passions and wishes.” 3 Term Rep. 428 note.

One answer to this argument is, that the jury are the “peers” of the accused, and consequently are supposed to know the law as well as he does. He is presumed to know the law, otherwise he could not be held guilty of a criminal intent in violating it. If, then, he is rightfully presumed to know the law, his “peers” must be presumed equally to know it. If his “peers” do not know the law, then it must be presumed that he did not know it, and that he therefore had no criminal intent in transgressing it.

The effect, therefore, of trial by jury, in criminal cases, is to hold no accused person responsible for a more precise or accurate knowledge of the law, than is common to his fellow men. And this is all that he ought to be held responsible for. If he is to be held responsible for a more accurate knowledge of the law than his “peers”—his fellow-men in the same rank and condition of life—he is liable to be held guilty in law, when he had no criminal intent, and had been guilty of no culpable neglect in ascertaining the law—for that neglect cannot be legally culpable, which is common to the mass of mankind.

Mansfield’s argument goes to this extent, that the common people, (such as juries are composed of), know nothing of the law, and are not presumed to know any thing of it; and yet, if one of their number transgress it, he is then presumed to have known it, and to have had a criminal intent, (without which there can be no crime), in transgressing it.

This doctrine looks as if judges, as well as juries, sometimes “had no rule to go by but their passions and wishes.” Whatever imperfection there may be in the judgment of juries, I apprehend they have never, (unless under the dictation of a court), acted upon so atrocious a principle as the one here avowed by Mansfield.

Mansfield’s argument is the argument of all who oppose the right of the jury to judge of the law. And it seems to prove very satisfactorily that, if the people cannot trust their liberties in their own hands, there is little hope for them at the hands of judges—for the doctrine of those, who oppose the right of the jury to judge of the law, is, that the people must trust their liberties in the hands of judges, whose reasons and rules of judgment are unintelligible to the people, and the justice or injustice of whose decisions the people consequently cannot understand.

This doctrine supposes that it is not necessary that the people should know, for themselves, whether they are living under a just government, or a tyrannical one; that if they are ever punished for doing what they think they have a right to do, and what they think they never gave up their right to do, it is quite sufficient for them to have the word of the judges that the punishment is according to law.

Such liberty as this, Mansfield no doubt thought was good enough for mankind at large. But whether it is such liberty as will always satisfy the people themselves, remains to be seen. They will probably prefer a liberty, that is a little more intelligible, even though it should be, (what in reality it would not be), a little less refined.

The people, it is true, are not very learned in the laws. But they have sufficiently clear ideas of liberty, justice, and men’s natural rights, to be reasonably competent to determine whether, in a given case, one man has infringed the rights of another, and ought to be punished therefor. And it seems to be a somewhat strong trait in the Anglo-Saxon character, that they prefer to trust their liberties in the hands of their “peers,” rather than in the hands of judges, whose pretended superiority in knowledge may be merely a cloak for practising such oppressions as cannot be otherwise justified to the minds of those who are the subjects of them.

Story’s argument is substantially the same with Mansfield’s, (United States vs. Battiste, 2 Sumner, 243.)

Mansfield and Story, I think, are the most distinguished authorities of modern times, against the right of the jury to judge of the law. One would infer from their opinions, and the grounds of them, that neither had ever heard, or supposed that the world had ever heard, of the common law of England, or of such an instrument as Magna Charta.

The idea that, in this country, where the people institute government for the preservation of their rights, and where they must be presumed to know what rights they had in view in so doing, they are not competent, as jurors, to judge when those rights are invaded, is absurd.

It cannot be said that if they judge of the law, their ignorance may be dangerous to the prisoner; because if he be convicted against law, he has his appeal to the court. It is only when they acquit, that their judgment is final. Magna Charta does not say that a man shall be punished by the judgment of his peers; but only that he shall not be punished “unless by the judgment of his peers.” He may be acquitted, but cannot be convicted, against their judgment.