Lysander Spooner on Jury Nullification as the "palladium of liberty" against the tyranny of government (1852)
Found in An Essay on the Trial by Jury (1852)
Lysander Spooner (1808-1887) argued in Trial by Jury (1852) that juries had the right and the duty to judge the justice of the law and to thereby act as a "palladium of liberty" against the tyranny of government:
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.
Lysander Spooner was one of the most radical legal theorists of the 19th century. At one stage he argued that the principles of the Declaration of Independence, the U.S. Constitution, and the Amendments to the Constitution (the Bill of Rights) clearly prohibited slavery as a matter of principle and equal rights before nature and the law. When this proved to be a losing proposition in the 1850s he turned to arguing that the U.S. Constitution had no authority over free men and that it should be ignored or undermined. One powerful way to do this was “jury nullification”, i.e. the ancient right of juries going back to Magna Carta to determine the justice of any law which might be applied to a case, to determine the rules of evidence, and to thus act as brake on central government power. He wrote this tract in 1852 arguing along these lines. Needless to say, he was unsuccessful in changing the course of the growth of government power but his arguments linger on.