With this quotation by Spooner the OLL has reached the milestone of 200 Quotations
about Liberty and Power. About 100 of these are in a different database which
powered the old OLL website (2004-2007) and another 100 quotations can be
found here at the new OLL website (2006-2009). We are compiling all the quotations
into one document which we will display on this site in the near future. It
will be a useful resource showing a veritable cross section of the titles and
views available at the Online Library of Liberty.
The full paragraph from which this quotation was taken can be be viewed below (front page quote in bold):
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 practised
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 part and parcel of the case, free of any dictation
or authority on the part of the government. They must judge of the existence
of the law; of the true exposition of the law; of the justice of the
law; and of the admissibility and weight of all the evidence offered;
otherwise the government will have everything its own way; the jury will
be mere puppets in the hands of the government; and the trial will be,
in reality, a trial by the government, and not a “trial by the
country.” By such trials the government will determine its own
powers over the people, instead of the people’s determining their
own liberties against the government; and it will be an entire delusion
to talk, as for centuries we have done, of the trial by jury, as a “palladium
of liberty,” or as any protection to the people against the oppression
and tyranny of the government.
The question, then, between trial by jury, as thus described, and trial
by the government, is simply a question between liberty and despotism.
The authority to judge what are the powers of the government, and what
the liberties of the people, must necessarily be vested in one or the other
of the parties themselves—the government, or the people; because
there is no third party to whom it can be entrusted. If the authority be
vested in the government, the government is absolute, and the people have
no liberties except such as the government sees fit to indulge them with.
If, on the other hand, that authority be vested in the people, then the
people have all liberties, (as against the government,) except such as
substantially the whole people (through a jury) choose to disclaim; and
the government can exercise no power except such as substantially the whole
people (through a jury) consent that it may exercise.
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