Posted at Equality by Lot, May 18, 2017.
Lysander Spooner, trial juries, and legislative juries
By Simon Threlkeld, May 17, 2017
Lysander Spooner (1808 to 1887) was a prominent 19th century legal theorist, abolitionist (abolition of slavery), and competitor with the U.S. Postal Service until they shut him down.
He continues to be cited in the U.S. including for example by Justice Scalia writing for the Supreme Court majority in 2008 in District of Columbia v. Heller.
Spooner is a strong advocate of “jury nullification.”
He argues that trial juries have the right and 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.” (An Essay on the Trial by Jury, published in 1852, page 5.)
In the following passages Spooner is talking about trial juries. Although he never mentions the possibility of legislative juries, his line of reasoning is to a large extent strikingly applicable to them. By “legislative juries” I mean juries that can veto and repeal the laws the government passes, and pass laws the government does not support.[i]
Lysander Spooner (italics and bold are as in the original, block quote function not used because it changes everything quoted to italics):
“By such trials [where juries do not judge the law] 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.”
(Ibid., 10).
“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.” (Ibid., 10)
“If the government were not thus required [by trial juries that judge the law] to submit their enactments to the judgment of “the country,” before executing them upon individuals – if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people, would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.” (Ibid., 12.)
“The trial by jury is a trial by “the country,” in contradistinction to a trial by the government. The jurors are drawn by lot from the mass of the people, for the very purpose of having all classes of minds and feelings, that prevail among the people at large, represented in the jury.” (Brainyquote.)
“Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all defence whatsoever against oppression.”
(An Essay on the Trial by Jury, 16.)
“”The trial by jury,” then, is a “trial by the country” that is, by the people as distinguished from a trial by the government.” (Ibid., 6.)
“It was anciently called “trial per pais” that is, “trial by the country.” And now, in every criminal trial, the jury are told that the accused “has, for trial, put himself upon the country; which country you (the jury) are.” The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?” (Ibid., 6.)
“Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other or at least no more accurate definition of a despotism than this.” (Ibid., 6.)
“Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for.” (Ibid., 124.)
“The conclusion, therefore, is, that any government, that can, for a day, enforce its own laws, without appealing to the people, (or to a tribunal fairly representing the people,) for their consent, is, in theory, an absolute government, irresponsible to the people, and can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws, by punishing violators, in any case whatever, without first getting the consent of “the country,” or the people, through a jury. In this way, the people, at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.” (Ibid., 15.)
“practically speaking, there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions; in other words, to judge what laws of the government are to be obeyed, and what may be resisted and held for nought. The only tribunal known to our laws, for this purpose, is a jury. If a jury have not the right to judge between the government and those who disobey its laws, and resist its oppressions, the government is absolute, and the people, legally speaking are slaves.” (Ibid., 16-17)
“It will be asked, Of what use are the justices, if the jurors judge both of law and fact?
The answer is, that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. [Spooner goes on to offer a second reason, which I do not quote here]” (Ibid., 123.)
“[The following objection will be made:] it is a maxim of the law, that the judges respond to the question of law, and juries only to the question of fact.
The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.” (Ibid., 123.)
“To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,} from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government.
This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.
It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury …
It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And. as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. … The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the government’s judging of and determining its own powers over the people.” (Ibid., 6-7.)
Here is part of Spooner’s explanation of why electoral democracy (suffrage) is not an adequate solution for oppressive laws:
“[Suffrage] can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Be sides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. … Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done.” (Ibid., 13.)
the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly irresponsible.” (Ibid., 14.)
Legislative juries of the kind I propose, are well suited for putting laws on a basis of informed consent of the people through juries. If what Spooner says in the above passages is correct, it is hard to see how it does not follow that having such legislative juries is far better than leaving lawmaking to politicians.
Trial juries and legislative juries are of course quite different.
One difference is that legislative juries, as I propose them, are larger than the 12 member criminal trial juries that exist in the U.S. and certain other countries. This is necessary and desirable so that legislative juries will be a reasonably accurate cross-section/microcosm of the people, and as such a good stand-in for the people as a whole.
Another is that the legislative juries I propose decide by majority vote, unlike U.S. criminal trial juries.[ii] There is of course nothing unusual about deciding laws and various other matters by majority vote. For centuries legislatures have decided by majority vote, in Classical Athens the legislative juries, jury courts, Council and Assembly decided by majority vote, and Scottish trial juries, both criminal and civil, have for centuries decided by majority vote.
[i] Regarding my proposal for legislative juries see my articles published on April 18, 2016; Winter 1998/99; December 16, 1998; Summer 1998.
[ii] See here and here regarding the voting requirements for U.S. trial juries.
Simon Threlkeld 