no third solution

Blogging about liberty, anarchy, economics and politics

Trial by Jury

June 16th, 2008

In celebration of Magna Carta day, Francois Tremblay quotes one of my favorite writers, Lysander Spooner, from his essay, Trial by Jury:

FOR more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty “- a barrier against the tyranny and oppression of the government – they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.

But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.

This sounds like the modern-day arguments in favor of jury nullification. I’ve previously noted that when the state acts “‘in defiance of the rule of law,’ then we can certainly presume that the law — either as written, interpreted, and/or enforced — is unjust. When the law is wrong, the last line of defense is the individual who refuses to aid in its enforcement,” and further that if the individual juror is not seen as the final arbiter of justice, then he is incapable of judging what is right or wrong. If the individual “can’t define justice, then no group of men can collectively define justice. If a man can’t define justice, neither can the State,” since it is merely a group of men acting more-or-less in concert, that is to say, jury nullification is the only moral option.

Was Spooner some sort of clairvoyant? Could he see the abuses that the government would one day perpetrate? No, but he was able to see through rhetoric, and use reason as well as anyone. Through the application of right reason, he could predict (or forewarn) the consequences that necessarily follow from certain actions. Spooner’s accusations are surprisingly true, to this day. For instance, he describes a government which can “dictate what evidence is admissable…” and “require [a jury] to convict on any evidence whatever.” Is this so far from the truth? After all, the accused is innocent until proven guilty, right?

In many regards, not really. The law enforcement officers are in many instances able to determine the sentences ex ante, because they control one side of the “crime” for which the victim is being charged. The magnitude of the sentence is often determined by the “crime,” and the government agents determine with what “crime(s)” a person will be charged. Furthermore, a person who fights a federal charge must, by law, receive a harsher sentence than someone who accepts a guilty plea. This is a perfect storm of totalitarianism: coerced plea-bargains, entrapment, and laws which bend to the will of the enforcers.



  • KipEsquire says on: June 16, 2008 at 9:40 am


    Well, I enjoy a flamboyant line as much as the next writer, but I can quite frankly think of several “clearer principles of English or American constitutional law” than jury nullification.

    And if one is going to go back to 1215, then let’s, um, go back to 1215: Laws from unelected monarchs, no lifetime-appointment of judges, no right to free counsel, no concept of judicial review, no appellate court structure to speak of, etc.

    Times change.

  • Francois Tremblay says on: June 16, 2008 at 10:35 am


    I am reading a book about the English justice system. Interestingly, juries were first started by the English kings, and they were mostly composed of the king’s men. People were so scared of juries that they would rather die than go on a trial with jury (if they died, their estate would go to their family: if they were executed, as juries always found you guilty, your estate would go to the king).

  • Mike says on: June 16, 2008 at 11:29 am


    Unfortunately the voir dire process allows for prosecuting attorneys to effectively exclude anyone from a jury who might consider nullification. Combined with the view that’s been argued elsewhere that the people who end up serving on juries tend to be a mix of the most stupid and those most inclined to support the prosecution, and nullification is effectively a dead letter.

  • William says on: June 16, 2008 at 2:07 pm


    The injustice system is just another smoke and mirrors ploy by the powers that be to make ruling over us seem more “fair”.

no third solution

Blogging about liberty, anarchy, economics and politics