The Online Library of Liberty

A project of Liberty Fund, Inc.

• Note to Second Edition.
• Address.
• I.
• II.
• III.
• IV.
• V.
• VI.
• VII.
• VIII.
• IX.
• X.
• XI.
• XII.
• XIII.
• XIV.
• XV.
• XVI.
• XVII.
• XVIII.
• XIX.
• XX.
• XXI.
• XXII.
• XXIII.
• XXIV.

XI.

We call particular attention to the duties of juries in this matter. We believe in that noblest, and incomparably most valuable, of all the judicial opinions ever rendered by the Supreme Court of the United States, in which they declared, by the mouth of John Jay, the first, and great, and honest Chief-Justice, that even in civil suits (as well as criminal) juries have a right to judge of the law as well as the fact.*

We also believe with the United States House of Representatives, who, in 1804, by a vote of 73 yeas to 32 nays, resolved to impeach Samuel Chase, one of the Justices of the Supreme Court of the United States, for, as they said, “endeavoring [in the trial of John Fries for treason] to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict, which they were required to give,” and declared such conduct “irregular,” and “as dangerous to our liberties as it is novel to our laws and usages;” and that on “the rights of juries [to determine the law, as well as the fact] ultimately rest the liberty and safety of the American people.”

We believe more than this. We believe that jurors, under our constitution, not only have the right to judge what the laws are, and whether they are consistent with the constitution, but that they have all the ancient and common-law right of jurors to judge of the justice of all laws whatsoever, which they are called upon to assist in enforcing, and to hold all of them invalid which conflict with their own ideas of justice. And that they are under no legal or moral obligation to hold valid every iniquitous statute, which they may suppose the letter of the constitution can possibly be interpreted to cover. It is their duty, as it is the duty of congresses and judges, to strive to see how much justice, and not how much injustice, the constitution can be made to authorize.

We believe that juries, and not congresses and judges, are the palladium of our liberties. We do not at all admit, as is now almost universally assumed to be the fact, that the people of this nation have ever given their rights and liberties into the sole keeping of legislators and judges. We hold that the assumption of the supreme court of the United States to decide, authoritatively for the people of this country, what their rights and liberties are, and what is the true meaning of the constitution, is an assumption of absolute power—an entire and flagrant usurpation—authorized by no word or syllable of the constitution; and that it should not be submitted to for a moment, unless we all of us design to be slaves.

We believe, too, that the practice of selecting jurors by judges and marshals, the servile and corrupt instruments of the government, who will of course select only those known to be favorable to the tyrannical measures of the government, is as utterly unconstitutional, as it necessarily must be destructive of liberty. We believe that juries should be, in fact, what they are in theory, viz., a fair epitome or representation of “the country,” or people at large; and that to make them so, they must be selected by lot, or otherwise, from the whole body of male adults, without any choice or interference by the government, or any of its officers; and that when selected, no judge or other officer of the government can have any authority to question them as to whether they are in favor of, or opposed to, the laws that are to be put in issue.

In short, we believe it to be the purpose of our systems of government to maintain in force only those principles of justice which the people generally can understand, and in which they are agreed; and not to invest one portion of the people, either minority or majority, with unlimited power over the others.

Evidently the only tribunal known to our constitution, and to be relied on for the maintenance of such principles, is the jury.

We, therefore, hold that all legislative enactments and judicial opinions should be held subordinate to that general public conscience, which is presumed to be represented in the jury-box, by twelve men, taken indiscriminately from the whole people, and capable of giving judgments against persons or property only when they act with entire unanimity. And we believe it to be the primary and capital object of our constitutions thus “to get twelve honest men into a jury-box,” to do justice, according to their own notions of it, between man and man, and to see that only such measures of government shall be enforced as they shall all deem just and proper.

We believe that, under this system of trial by jury, it will be safe for one human being to go to the rescue of another from the hands of kidnappers, ravishers, and slaveholders. We believe, also, that a government, so powerful and so tyrannical as to restrain men from the performance of these primary duties of humanity and justice, ought not to be suffered to exist.

[* ] This being a case, in which a State was a party, it was tried by jury in the Supreme Court of the United States. From the preliminary remarks of the Chief-Justice, it will be seen that the judges were unanimous in the opinion given. He said:

“It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver. . . . .

“It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is province of the jury, on questions of law, it is the province of the court, to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law, as well as the fact, in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.” (State of Georgia, vs. Brailsford; III. Dallas, Rep. 1.)

This was in the year 1794.