THE RIGHT OF JURIES
TO JUDGE OF THE JUSTICE OF LAWS
Section I
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 light, and their primary and paramount
duty, to judge 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 law.
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 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.
That the rights and duties of jurors must necessarily be such
as are here claimed for them, will be evident when it is considered
what the trial by jury is, and what is its object.
"The trial by jury," then, is a "trial by the
country"-that is, by the people- as distinguished from a
trial by the government.
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 and determine their own liberties against the
government; instead of the government's judging of and determining its own powers over the
people.
If the government may decide who may, and who may not, be jurors,
it will of course select only its partisans, and those friendly
to its measures. It may not only prescribe who may, and who may
not, be eligible to be drawn as jurors; but is may also question
each person drawn as a juror, as to his sentiments in regard to
the particular law involved in each trial, before suffering him
to be sworn on the panel; and exclude him if he be found
unfavorable to the maintenance of such a law.
So, also, if the government may dictate to the jury what laws
they are to enforce, it is no longer a "trial
by the country," but a trial by the government; because the
jury then try the accused, not by any standard of their own-not
by their own judgments of their rightful liberties-but by a
standard dictated to them by the government. And the
standard, thus dictated by the government, becomes the measure
of the people's liberties. If the government dictate the standard
of trial, it of course dictates the results of the trial. And
such a trial is no trial by the country, but only a trial by the
government; and in it the government determines what are its own
powers over the people, instead of the people's determining what
are their own liberties against the government. In short, if
the jury have no right to judge of the justice of a law of the
government, they plainly can do nothing to protect the people
against the oppressions of the government; for there are no oppressions
which the government may not authorize by law.
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 practiced 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.
They 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 the 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 offense 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 of 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 the 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 are 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.
* To show that this supposition is not an extravagant
one, it may be mentioned that courts have repeatedly questioned
jurors to ascertain whether they were prejudiced against the
government-that is, whether they were in favor of, or opposed
to, such laws of the government as were to be put in issue in
the then pending trial. This was done (in 1851) in the United
States District Court of- the District of Massachusetts, by Peleg
Sprague, the United Slates district judge, in impaneling three
several juries for the trials of Scott, Hayden, and Morris, charged
with having aided in the rescue of fugitive slave from the custody
of the United States deputy Marshall. This judge caused the following
question to be propounded to all the jurors separately; and those
who answered unfavorably for- the purposes of government, were
excluded from the panel. "Do you hold any opinions upon
the subject of the Fugitive Slave Law, so called, which will induce
you to refuse to convict a person indicted under it, if the facts
set forth in the indictment, and contesting the offense,
are proved against him, and the court direct you that the law
is constitutional!"
The reason of this question was, that "the
Fugitive Slave Law, so called," was so obnoxious to
a large portion of the people, as to render a conviction under
it hopeless, if the jurors were taken indiscriminately from among
the people.
A similar was soon afterwards propounded to the persons
drawn as jurors in the United States District Court for
the District of Massachusetts, by Benjamin R. Curtis, one of the
Justices of the Supreme Court of the United States, in impaneling
a jury for the trial of the aforesaid Morris on the charge before
mentioned; and those who did not answer the question favorably
for the government were again excluded from the panel.
It has also been an habitual practice with the Supreme
Court of Massachusetts, in impaneling juries for the trial
of capital offenses, to inquire of the persons drawn as jurors
whether they had any conscientious scruples against finding verdicts
of guilty in such cases; that is, whether they had any conscientious
scruples against sustaining the law prescribing death as the punishment
of the crime to be tried; and to exclude from the panel all who
answered in the affirmative.
The only principle upon which these questions arc
asked, is this-that no man shall be allowed to serve as juror,
unless he be ready to enforce any enactment of the government,
however cruel or tyrannical it may be.
What is such a jury good for, as a protection against
the tyranny of the government! A jury like that is palpably nothing
but a mere tool of oppression in the hands of the government.
A trial by such a jury is really a trial by the government itself-and
not a trial by the country-because it is a trial only by men specially
selected by the government for their readiness to enforce its
own tyrannical measures.
If that be the true principle of the trial by jury,
the trial is utterly worthless as a security to liberty. The
Czar might, with perfect safety to his authority, introduce the
trial by jury into Russia, if he could but be permitted(i to select
his jurors from those whomever ready to maintain his laws, without
regard to their injustice.
The example is sufficient to show that the very pith
of the trial by jury, as a safeguard to liberty, consists in the
jurors being taken indiscriminately from the whole people, and
in their- right to hold invalid all laws which they think unjust.
Section 2
The force and justice of the preceding argument cannot be evaded
by saying that the government is chosen by the people; that, in
theory, it represents the people; that it is designed to do the
will of the people; that its members are all sworn to observe
the fundamental or constitutional law instituted by the people;
that its acts are therefore entitled to be considered the acts
of the people; and that to allow a jury, representing the people,
to invalidate the acts of government, would therefore be arraying
the people against themselves.
There are two answers to such an argument.
One answer is, that, in a representative government, there is
no absurdity or contradiction, nor any arraying of the people
against themselves, in requiring that the statutes or enactments
of the government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have
the force of laws.
Our American constitutions have provided five of these separate
tribunals, to wit, representatives, senate, executive, jury, and
judges; and have made it necessary that each enactment shall pass
the ordeal of all these separate tribunals, before its authority
can be established by the punishment of those who choose to transgress
it. And there is no more absurdity or inconsistency in making
a jury one of these several tribunals, than there is in making
the representatives, or ~t ~e senate, or the executive, or the
judges, one of them. There is no more absurdity in giving a jury
the veto upon the laws, than there is in giving a veto to each
of these other tribunals. The people are no more arrayed against
themselves, when a jury puts its veto upon a statute, which the
other tribunals have sanctioned, than they are when the same veto
is exercised by the representatives, the senate, the executive,
or the judges.
But another answer to the argument that the people are arrayed
against themselves, when a jury hold an enactment of the government
invalid, is, that the government, and all the departments of government,
are merely the servants and agents of the people; not interested
with arbitrary or absolute authority to bind the people, but required
to submit all their enactments to the judgment of a tribunal more
fairly representing the whole people, before they carry them into
execution, by punishing any individual for transgressing them.
If the government were not thus required 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 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.
And it is of no consequence to inquire how a government came
by this power to punish, whether by prescription, by inheritance,
by usurpation, or by delegation of the people? If it have now
but got it, the government is absolute.
* - The executive has a qualified veto upon the passage
of laws, in most of our governments, and an absolute veto, in
all of them, upon the execution of any laws which he deems unconstitutional;
because his oath to support the constitution (as he understands
it) forbids him to execute any law that he deems unconstitutional.
It is plain, therefore, that if the people have invested the government
with power to make laws that absolutely bind the people, and to
punish the people for transgressing those laws, the people have
surrendered their liberties unreservedly into the hands of the
government.
It is of no avail to say, in answer to this view of the case,
that in surrendering their liberties into the hands of government,
the people took an oath from the government, that it would exercise
its power within certain constitutional limits; for when did oaths
ever restrain a government that was otherwise unrestrained? Or
when did a government fail to determine that all its acts were
within the constitutional and authorized limits of its power,
if it were permitted to determine that question for
itself.
Neither is it of any avail to say, that, if the government abuse
its power, and enact unjust and oppressive laws, the government
may be changed by the influence of discussion, and the exercise
of the right of suffrage (voting). Discussion can do nothing
to prevent the enactment, or procure the repeal, of unjust laws,
unless it be understood that the discussion is to be followed
by resistance. Tyrants care nothing for discussions that are
to end only in discussion. Discussions, which do not interfere
with the enforcement of their laws, are but idle wind to them.
Suffrage is equally powerless and unreliable. It can be exercised
only periodically; and the tyranny must at least be borne until
the time for suffrage comes. Besides, when the suffrage is exercised,
it gives no guaranty for the repeal of existing laws that are
oppressive, and no security against the enactments of new ones
that are equally so. The second body of legislators are liable
and likely to be just as tyrannical as the first. If it be said
that the second body may be chosen for their integrity, the answer
is, that the first were chosen for that very reason, and yet
proved tyrants. The second will be exposed to the same temptations
as the first, and will be just as likely to prove tyrannical.
Who ever heard that succeeding legislatures were, on the whole,
more honest than those that preceded them? What is there in the
nature of men or things to make them so? If it ~1. be said that
the first body were chosen from motives of injustice, that fact
proves that there is a portion of society who desire to establish
injustice; and if they were powerful or artful enough to procure
the election of their instruments to compose the first legislature,
they will be likely to be powerful or artful enough to procure
the election of the same or similar instruments to compose the
second. The right of suffrage, therefore, and even a change of
legislators, guarantees no change of legislation-certainly no
change for the better. 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.
But, at best, the right of suffrage can be exercised only periodically;
and between the periods the legislators are wholly irresponsible.
No despot was ever more entirely irresponsible than are republican
legislators during the period for which they are chosen. They
can never be removed from their office, nor called to account
while in their office, nor punished after they leave office, be
their tyranny what it may. Moreover, the judicial and executive
departments of the government are equally irresponsible to
the people, and are only responsible, (by impeachment, and
dependence for their salaries), to these irresponsible legislators.
This dependence of the judiciary and executive upon
the legislature is a guaranty that they will always sanction
and execute its laws, whether just or unjust. Thus the legislators
hold the whole power of the government in their hands, and are
at the same time utterly irresponsible for the manner in which
they use it.
If, now, this government, (the three branches thus really united
in one), can determine the validity of, and enforce, its own laws,
it is, for the time being, entirely absolute, and wholly irresponsible
to the people.
But this is not all. These legislators, and this government,
so irresponsible while in power, can perpetuate their power at
pleasure, if they can determine what legislation is authoritative
upon the people, and can enforce obedience to it; for they can
not only declare their power perpetual, but they can enforce submission
to all legislation that is necessary to secure its perpetuity.
They can, for example, prohibit all discussion of the rightfulness
of their authority; forbid the use of suffrage; prevent the election
of any successors; disarm, plunder, imprison, and even kill all
who refuse submission. If, therefore, the government (all departments
united) be absolute for a day-that is, if it can, for a day, enforce
obedience to its own laws-it can, in that day, secure its power
for all time-like the queen, who wished to reign but for a day,
but in that day caused the king, her husband, to be slain, and
usurped his throne.
Nor will it avail to say that such acts would be unconstitutional,
and that unconstitutional acts may be lawfully resisted; for everything
a government pleases to do will, of course, be determined to be
constitutional, if the government itself be permitted to determine
the question of the constitutionality of its own acts. Those
who are capable of tyranny, are capable of perjury to sustain
it.
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 government.
The trial by jury, then, gives to any and every individual the
liberty, at any time, to disregard or resist any law whatever
of the government, if he be willing to submit to the decision
of a jury, the questions, whether the law be intrinsically just
and obligatory? and whether his conduct, in disregarding or resisting
it, were right in itself? And any law, which does not, in such
trial, obtain the unanimous sanction of twelve men, taken at random
from the people, and judging according to the standard of justice
in their own minds, free from all dictation and authority of the
government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.*
And if there be so much as a reasonable doubt of the justice
of the laws, the benefit of that doubt must be given to the defendant,
and not to the government. So that the government must keep its
laws clearly within the limits of justice, if it would
ask a jury to enforce them.
The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression.
If it do not authorize an individual to resist the first and
least act of injustice or tyranny, on the part of the government,
it does not authorize him to resist the last and the greatest.
If it do not authorize individuals to nip tyranny in the bud,
it does not authorize them to cut it down when its branches are
filled with the ripe fruits of plunder and oppression.
Those who deny the right of a jury to protect an individual in
resisting an unjust law of the government, deny him all legal
defence whatsoever against oppression. The right of revolution,
which tyrants, in mockery, accord to mankind, is no legal right
under a government; it is only a natural right to overturn
a government. The government itself never acknowledges
this right. And the right is practically established only
when and because the government no longer exists to call it in
question. The right, therefore, can be exercised with immunity,
only when it is exercised victoriously. All unsuccessful attempts
at revolution, however justifiable in themselves, are punished
as treason, if the government be permitted to judge of the treason.
The government itself never admits the injustice of its
laws, as a legal defence for those who have attempted a revolution,
and failed. The right of revolution, therefore, is a right of
no practical value, except for those who are stronger than the
government. So long, therefore, as the oppressions of a government
are kept within such limits as simply not to exasperate against
it a power greater than its own, the right of revolution cannot
be appealed to, and is therefore inapplicable to the case. This
affords a wide field for tyranny; and if a jury cannot here intervene,
the oppressed are utterly defenseless.
It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the
injustice; because the injustice will certainly be executed, unless
it be forcibly resisted. And if it be but suffered
to be executed, it must then be borne; for the government never
makes compensation for its own wrongs.
Since, then, this forcible resistance to the injustice of the
government is the only possible means of preserving liberty, it
is indispensable to all legal liberty that this resistance
should be legalized. It is perfectly self-evident
that where there is no legal right to resist the oppression
of the government, there can be no legal liberty. And
here it is all-important to notice, that, 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 naught. 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. Like many other slaves they may have
sufficient courage and strength to keep their masters somewhat
in check; but they are nevertheless known to the law only
as slaves.
That this right of resistance was recognized as a common law
right, when the ancient and genuine trial by jury was in
force, is not only proved by the nature of the trial itself, but
is acknowledged by history.*
* - Hallam says "The
relation established between a lord and his vassal by the feudal
tenure, far from containing principles of any servile and implicit
obedience, permitted the compact to be dissolved in case of its
violation by either party. This extended as much to the sovereign
as to inferior lords. + + If a vassal was aggrieved, and
if justice was denied him, he sent a defiance, that is, a renunciation
of fealty to the king, and was entitled to enforce redress at
the point of his sword. It then became a contest of strength as
between two independent potentates, and was, terminated by treaty,
advantageous or otherwise, according to the fortune of war. +
+ There remained the original principle, that allegiance depended
conditionally upon good treatment, and that an appeal might be
lawfully made to arms against an oppressive government. Nor
was this, we may be sure, left for extreme necessity, or thought
to require a long-enduring forbearance. In modern times, a king,
compelled by his subjects' sword is to abandon any pretension,
would be supposed to have ceased to reign; and the express recognition
of such a right is that of insurrection has been justly deemed
inconsistent with the majority of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed
to see the king's authority defied by a private riot, were not
much shocked when it was resisted in defence of public freedom."
-- 3 Middle Ages, 240-3
This right of resistance is recognized by the constitution of
the United States, as a strictly legal and constitutional right.
It is so recognized, first by the provision that "the trial
of all crimes, except in cases of impeachment, shall be by jury"-that
is, by the country-and not by the government; secondly, by the
provision that "the right of the people to keep and bear
arms shall not be infringed." This constitutional security
for "the right to keep and bear arms," implies the right
to use them-as mush as a constitutional security for the right
to buy and keep food would have implied the right to eat it.
The constitution, therefore, takes it for granted that the people
will judge of the conduct of the government, and that, as they
have the right, they will also have the sense, to use arms, whenever
the necessity of the case justifies it. And it is a sufficient
and legal defence for a person accused of using arms against
the government, if he can show, to the satisfaction of a jury,
or even any one of a jury, that the law he resisted was
an unjust one.
In the American State constitutions also, this right of resistance
to the oppressions of the government is recognized, in various
ways, as a natural, legal, and constitutional right. In the first
place, it is so recognized by provisions establishing the trial
by jury; thus requiring that accused persons shall be tried by
"the country," instead of the government. In the second
place, it is recognized by many of them, as, for example, those
of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio,
Indiana, Michigan, Kentucky, Tennessee, Arkansas, Mississippi,
Alabama, and Florida, by provisions, in their bills of rights,
declaring that men have a natural, inherent, and inalienable right
of "defending their lives and liberties." This,
of course, means that they have a right to defend them against
any injustice on the pail of government, and not merely
on the part of private individuals; because the object of all
bills of rights is to assert the rights of individuals and the
people, as against the government, and not as against private
persons. It would be a matter of ridiculous supererogation to
assert, in a constitution of government, the natural right of
men to defend their lives and liberties against private trespassers.
Many of these bills of rights also assert the natural right of
all men to protect their property-that is, to protect it against
the government. It would be unnecessary and silly indeed
to assert, in a constitution of government, the natural right
of individuals to protect their property against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare
that "The doctrine of non-resistance against arbitrary power
and oppression is absurd, slavish, and destructive of the good
and happiness of mankind."
The legal effect of these constitutional recognitions of the right
of individuals to defend their property, liberties, and lives,
against the government, is to legalize resistance to all injustice
and oppression, of every name and nature whatsoever, on the part
of the government.
But for this right of resistance, on the part of the people, all
governments would become tyrannical to a degree of which few people
are aware. Constitutions are utterly worthless to restrain the
tyranny of governments, unless it be understood that the people
will, by force, compel the government to keep within the constitutional
limits. Practically speaking, no government knows any limits
to its power, except the endurance of the people. But
that the people are stronger than the government, and will resist
in extreme cases, our governments would be little or nothing else
than organized systems of plunder and oppression. All, or nearly
all, the advantage there is in fixing any constitutional limits
to the power of a government, is simply to give notice to the
government of the point at which it will meet with resistance.
If the people are then as good as their word, they may keep the
government within the bounds they have set for it; otherwise it
will disregard them-as is proved by the example of all our American
governments, in which the constitutions have all become obsolete,
at the moment of their adoption, for nearly or quite all purposes
except the appointment of officers, who at once become practically
absolute, except so far as they are restrained by the fear of
popular resistance.
The bounds set to the power of the government, by the trial by
jury, as will hereafter be shown, are these-that the government
shall never touch the property, person, or natural or civil rights
of an individual, against his consent, (except for the purpose
of bringing them before a jury for trial,) unless in pursuance
and execution of a judgment, or decree, rendered by a jury
in each individual case, upon such evidence, and such law, as
are satisfactory to their own understandings and consciences,
irrespective of all legislation of the government.
MORAL CONSIDERATIONS FOR JURORS
(from Chapter 10 of the First Edition)
The trial by jury must, if possible, be construed to be such that
a man can rightfully sit in a jury, and unite with his fellows
in giving judgment. But no man can rightfully do this, unless
he hold in his own hand alone a veto upon any judgment or sentence
whatever to be rendered by the jury against a defendant, which
veto he must be permitted to use according to his own discretion
and conscience, and not bound to use according to the dictation
of either legislatures or judges. The prevalent idea, that a
juror may, at the mere dictation of a legislature or a judge,
and without the concurrence of his own conscience or understanding,
declare a man "guilty," and thus in effect license
the government to punish him; and that the legislature or the
judge, and not himself, has in that case all the moral responsibility
for the correctness of the principles on which the judgment was
rendered, is one of the many gross impostures by which it could
hardly have been supposed that any sane man could ever have been
deluded, but which governments have nevertheless succeeded in
inducing the people at large to receive and act upon.
As a moral proposition, it is perfectly self-evident that, unless
juries have all the legal rights that have been claimed for them
in the preceding chapters,--that is, the rights of judging what
the law is, whether the law be a just one, what evidence is admissible,
what weight the evidence is entitled to, whether an act were done
with a criminal intent, and the right also to limit the
sentence, free from all dictation from any quarter,--they have
no moral right to sit in the trial at all, and cannot do
so without making themselves accomplices in any injustice that
they may have reason to believe may result from their verdict.
It is absurd to say that they have no moral responsibility for
the use that may be made of their verdict by the government, when
they have reason to suppose it will be used for purposes of injustice.
It is, for instance, manifestly absurd to say that jurors have
no moral responsibility for the enforcement of an unjust law,
when they consent to render a verdict of guilty for the
transgression of it; which verdict they know, or have good reason
to believe, will be used by the government as a justification
for inflicting a penalty.
It is absurd, also, to say that jurors have no moral responsibility
for a punishment inflicted upon a man against law, when,
at the dictation of a judge as to what the law is, they have consented
to render a verdict against their own opinions of the law.
It is absurd, too, to say that jurors have no moral responsibility
for the conviction and punishment of an innocent man, when they
consent to render a verdict against him on the strength of evidence,
or laws of evidence, dictated to them by the court, if any new
evidence or laws of evidence have been excluded, which they
(the jurors) think ought to have been admitted in his defence.
It is absurd to say that jurors have no moral responsibility for
rendering a verdict of "guilty" against a man,
for an act which he did not know to be a crime, and in the commission
of which, therefore he could have had no criminal intent, in obedience
to the instructions of courts that "ignorance of the law
(that is, of crime) excuses no one."
It is absurd, also, to say that jurors have no moral responsibility
for any cruel and unusual sentence that maybe inflicted
even upon a guilty man, when they consent to render a verdict
which they have reason to believe will be used by the government
as a justification for the infliction of such sentence.
The consequence is, that jurors must have the whole case in their
hands, and judge of law, evidence, and sentence, or they incur
the moral responsibility of accomplices in any injustice which
they have reason to believe will be done by the government on
the authority of their verdict.
The same principles apply to civil cases as criminal. If a jury
consent, at the dictation of the court, as to either law
or evidence, to render a verdict, on the strength of which they
have reason to believe that a man's property will be taken from
him and given to another, against their own notions of justice,
they make themselves morally responsible for the wrong.
Every man, therefore, ought to refuse to sit in a jury, and to
take the oath of a juror, unless the form of the oath be such
as to allow him to use his own judgment, on every part of the
case, free of all dictation whatsoever, and to hold in his own
hand a veto upon any verdict that can be rendered against a defendant,
and any sentence that can be inflicted upon him, even if he be
guilty.
Of course, no man can rightfully take an oath as a juror, to try
a case "according to law," (if by law be meant anything
other than his own ideas of justice,) nor "according to the
law and the evidence, as they shall be given to him."
Nor can he rightfully take an oath even to try a case "according
to the evidence," because in all cases he may have good
reason to believe that a party has been unable to produce all
the evidence legitimately entitled to be received. The only oath
which it would seem that a man can rightfully take as a juror,
in either a civil or criminal case, is, that he "will try
the case according to his conscience." Of course,
the form may admit of variation, but this should be the substance.
Such, we have seen, were the ancient common law oaths.
Commentary
In his book, No Treason Spooner maintained that the
U.S. Constitution literally bound no one (in a legal sense)
to perform, including the very men who drafted and signed
it! Yet, in 1991, we are beset with thousands upon thousands of
"laws"-local, state & Federal-which, undoubtedly,
only a few have read, much less comprehended, including many judges
(who are supposedly intended to uphold them). This being the case,
justice is often ignored or denied in today's tribunals and courts.
As Patrick Henry exclaimed, "What right have they
(the framers of the U.S. Constitution) to say 'We, The
People'?!" binding each succeeding generation with
pains of punishment for violation of statutes where there was
no universal popular consent. What "check" do we have
on bad legislation?
Enter the Jury
Historically, under the Common Law (originating in the Holy
Bible), juries have been bodies of conscience, confirming either
the correctness or corruption of Man's laws. As Spooner noted:
But it is in the administration of justice, or of law, that
the freedom or subjection of a people is tested. If this administration
be in Accordance with the arbitrary will of the legislator-that
is, if his will, as it appears in his statutes, be the highest
rule of decision known to judicial tribunals,--the government
is a despotism, and the people are slaves. If, on the other band,
the rule of decision be those principles of natural equity and
justice, which constitute, or at least are embodied in, the general
conscience of mankind, the people are free in just so far as that
conscience is enlightened.
Today the mass of society appears not only unenlightened, but
incapable of judging right from wrong, or at least this
is what opponents of jury powers notification will tell you (their
vested interests usually lie in upholding the legislative elite).
Spooner rightly stated that one motive for legitimate government
was "protection of the weak against the strong," and
America's jural society provided this avenue for the weak and,
yes, the unenlightened. In the very first jury trial before the
U.S. supreme Court in 1794 ("supreme" is not capitalized
in the U.S. Constitution, though the term "Behavior"
is), the judges said, "it is presumed, that the juries
are the best judges of facts; it is, on the other hand, presumed
that the courts are the best judges of law. But still, both
objects are within your power of decision. You have a right
to take upon yourselves to judge of both, and to determine
the law as well as the fact in controversy. "
(Georgia vs. Brailsford, et al, 3 Dall. 1, emphasis ours)
Indeed, these popular powers existed long before, and are independent
of, the U.S. Constitution:
Under constitutional scheme, grand jury is not and should
notbe captive to any of the three branches of government; the
grandjury, is a pre-constitutional institution given constitutional
stature by the Fifth Amendment but not relegated by the Constitution
to a position within any of the three branches of government,
as the federal grand jury is a constitutional fixture in its own right (U.S.C.A. Const. Amend. 5; U.S. vs. Chanen,
549 F.2d 1306, certiorari denied 98 s. Ct. 72, 434 U.S. 825, 54
L.Ed.2d 83) ... (There is a difference between a common law grand
jury, and a "federal grand jury," which applies only
to "federal citizens"-residents of Washington, D.C.
and its enclaves).
Grand jury is (an) investigative body acting independently
of either prosecutor or judge whose mission is to bring to trial
those who may be guilty and clear the innocent. (Marston's Inc.
vs. Strand, 560 P.2d 778, 114 Ariz. 260).
It must be clearly understood that, in America, court decisions
(though they be called case law) are NOT law at all, but merely
decisions "of a court" applicable only to the case at
hand. They may be good decisions, and they may be bad, but in a legitimate
government, they are unanimous concensus of a properly empanelled
jury which has acted independently of a judge or prosecutor, according
to the dictates of conscience If the consciences of any particular
jurors are seared, keep in mind that the same applies to government
employees, whose job it is to uphold the liberties of the
common man, not his own interests.
CURRENT CONSTITUTIONAL
AUTHORITY FOR JURY NULLIFICATION
The Constitutions of Maryland
(Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art.
I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A),
currently have provisions guaranteeing the right of jurors to
"judge the law"; that is, to nullify the law.
Although these provisions have
not been strong enough to withstand decades of hostile judicial
interpretation, and have relatively little current impact, they
do remain "on the books".
Twentythree states currently
include jury nullification provisions in their Constitutions under
their sections on freedom of speech, specifically with respect
to libel and sedition cases:
Alabama (Art.I, Sec. 12); Colorado
(Art.II, sec. 10); Connecticut (Art. First, sec. 7); Delaware
(Art. I, sec. 5); Georgia (Art. I, sec. II, Para. 1); Kentucky
(Bill of Rights, sec. 9); Louisiana (Art. XIV, sec. 9); Maine
(Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art.
1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec.
6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 9);
Oregon (Art. I, sec. 16); Pennsylvania (Art. I, sec. 7); South
Carolina (Art. II, sec. 21); South Dakota (Art. VI, sec. 5); Tennessee
(Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec.
15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20).
Source: Alan W. Scheflin, "Jury
Nullification: the Right to Say No", Southern California
Law Review, 45, p. 204 (1972). [List has been updated to 1993.]
Educating jurors and prospective jurors is the only
way to make certain that justice is done. Fully informed juries
is appealing to anyone with a concern for the importance of the
Constitution, to anyone who believes that justice should be tempered
with mercy, to anyone worried about the increasing interference
of the various arms of Big Government, to anyone who thinks that
state-mandated sentences for varous crimes fail to take into consideration
the human element and the differences of fact in individual cases.
It is not only (the juror's) right but his duty...to
find the verdict according to his own best understanding, judgment,
and conscience, though in direct opposition to the direction
of the court." John Adams, 1771
We take a lots of rights
and privleges for granted in this country, among them the right
to a trial by jury, though this right exists only in Britain and
its former colonies. Juries of one's peers are the final check
on a government's power when it has an interest in convicting.
Trial by jury is under attack in America in
several ways: in what they are allowed to judge, what they're
allowed to hear and how they're allowed to rule. Trial by jury
replaced trials of water and fire as a means of establishing guilt
or innocence. It is a basic right in English-speaking lands.
"Unsatisfactory verdicts" will be a
thing of the past when jurors are fully informed. In
1670 an "unsatisfactory verdict" was delivered by the
jurors acquittal of William Penn in that the king's law against
preaching quaker doctrine was nullified. When William Penn beat
the rap for his sermon justice prevailed as jurors said "He
may be guilty, but he's guilty of breaking a lousy law--and we're
not going to convict him." Three Hundred and Twenty Years
later, jurors cry after delivering their verdict because they
followed the judge's instructions but violated their own good
sense and conscience. The judge instructed them to follow the
law as he saw fit to give it to them, like-it-or-not. Today's
"unsatisfactory verdicts" are delivered in contravention
of everyone's natural rights, common law rights, and constitutional
rights. ...(It is the juries) 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 exeuction of, such laws.
Lysander Spooner, 1852
SELECTED QUOTES
John Adams,
who became the second U.S. President, in 1771 said of the juror:
"It is not only his right, but his duty...to find the verdict
according to his own best understanding, judgment, and conscience,
though in direct opposition to the direction of the court."
Quoted in Yale Law Journal 74 (1964):173.
Alexander Hamilton
(1804): Jurors should acquit even against the judge's instruction
"...if exercising their judgment with discretion and honesty
they have a clear conviction that the charge of the court is wrong."
Quoted in Joseph Sax, Yale Law Review 57 (June 1968):
481494.
John Jay,
first Chief Justice, U.S. Supreme Court, in Georgia v. Brailsford,
1794:4 said: "The jury has a right to judge both the law
as well as the fact in controversy."
Samuel Chase,
Supreme Court Justice and signer of the Declaration of Independence,
1804: "The jury has the right to determine both the law
and the facts."
Thomas Jefferson,
in a letter to Thomas Paine, 1789: "I consider trial by
jury as the only anchor ever yet imagined by man, by which a government
can be held to the principles of its constitution."
Theophilus Parsons,
"...a leading supporter of the Constitution of the United
States in the convention of 1788 by which Massachusetts ratified
the Constitution, appointed by President Adams in 1801 Attorney
General of the United States, but declining that office, and becoming
Chief Justice of Massachusetts in 1806" said:
"The people themselves have
it in their power effectually to resist usurpation, without being
driven to an appeal to arms. An act of usurpation is not obligatory;
it is not law; and any man may be justified in his resistance.
Let him be considered as a criminal by the general government,
yet only his fellow citizens can convict him; they are his jury,
and if they pronounce him innocent, not all the powers of Congress
can hurt him; and innocent they certainly will pronounce him,
if the supposed law he resisted was an act of usurpation."
2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution,
p. 267. Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895),
Dissenting Opinion: Gray, Shiras, JJ., 144.
"If a juror accepts as the
law that which the judge states then that juror has accepted the
exercise of absolute authority of a government employee and has
surrendered a power and right that once was the citizen's safeguard
of liberty, For the saddest epitaph which can be
carved in memory of a vanished liberty is that it was lost because
its possessors failed to stretch forth a saving hand while yet
there was time." 2 Elliot's Debates, 94, Bancroft, History
of the Constitution, 267, 1788.
"Unless the jury can exercise
its community conscience role, our judicial system will have become
so inflexible that the effect may well be a progressive radicalization
of protest into channels that will threaten the very continuance
of the system itself. To put it another way, the jury is...the
safety valve that must exist if this society is to be able to
accommodate its own internal stresses and strains...[I]f the community
is to sit in the jury box, its decision cannot be legally limited
to a conscienceless application of fact to law." William
Kunstler, quoted in Franklin M. Nugent, Jury Power: Secret
Weapon Against Bad Law, revised from Youth Connection, 1988.
"Every jury in the land is
tampered with and falsely instructed by the judge when it is told
it must take (or accept) as the law that which has been given
to them, or that they must bring in a certain verdict, or that
they can decide only the facts of the case." Lord Denman,
C.J. O'Connel v. R. (1884).
"For more than six hundred
yearsthat 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."
Lysander Spooner, An Essay on the Trial by Jury, 1852,
p. 11.
"In the trial of all criminal
cases, the Jury shall be the Judges of Law, as well as of fact,
except that the Court may pass upon the sufficiency of the evidence
to sustain a conviction." Article XXIII, Constitution
of Maryland
"Because of this constitutional
mandate, this instruction is given to criminal jurors in Maryland:
'Members of the Jury, this is a
criminal case and under the Constitution and the laws of the State
of Maryland in a criminal case the jury are the judges of the
law as well as of the facts in the case. So that whatever I tell
you about the law while it is intended to be helpful to you in
reaching a just and proper verdict in the case, it is not binding
upon you as members of the jury and you may accept or reject it.
And you may apply the law as you apprehend it to be in the case.
'" Alan Scheflin and Jon Van Dyke, Jury Nullification: The
Contours of a Controversy, Law and Contemporary Problems, 43,
83. (1980)
"If the jury feels the law
is unjust, we recognize the undisputed power of the jury to acquit,
even if its verdict is contrary to the law as given by a judge,
and contrary to the evidence...If the jury feels that the law
under which the defendant is accused is unjust, or that exigent
circumstances justified the actions of the accused, or for any
reason which appeals to their logic or passion, the jury has the
power to acquit, and the courts must abide by that decision."
United States v. Moylan, 4th Circuit Court of Appeals, 1969,
417 F.2d at 1006.
The jury has an "unreviewable
and irreversible power...to acquit in disregard of the instructions
on the law given by the trial judge...The pages of history shine
on instances of the jury's exercise of its prerogative to disregard
uncontradicted evidence and instructions of the judge; for example,
acquittals under the fugitive slave law. U.S. v. Dougherty,
D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132.
(Nevertheless, the majority opinion held that jurors need not
be told this. Dissenting Chief Judge Bazelon thought that they
ought to be so told.)
"The arguments for opposing
the nullification instruction are, in our view, deficient because
they fail to weigh the political advantages gained by not lying
to the jury...What impact will this deception have on jurors who
felt coerced into their verdict by the judge's instructions and
who learn, after trail, that they could have voted their consciences
and acquitted? Such a juror is less apt to respect the legal
system." Alan Scheflin and Jon Van Dyke, "Jury
Nullification: the Contours of a Controversy," Law and Contemporary
Problems, 43, No.4,105 106.
"In a representative government...there
is no absurdity or contradiction, nor any arraying of the people
against themselves, in requiring that the statutes or enactments
of the government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have
the force of laws. Our American constitutions have provided five
of these separate tribunals, to wit, representatives, senate,
executive...jury, and judges; and have made it necessary that
each enactment shall pass the ordeal of all these separate tribunals,
before its authority can be established by the punishment of those
who choose to transgress it...there is no more absurdity in giving
a jury a veto upon the laws than there is in giving a veto to
each of these other tribunals." Lysander Spooner,
An Essay on the Trial by Jury, 1852.
"In all criminal cases whatsoever,
the jury shall have the right to determine the law and the facts."
Article 1, section 19 of the Indiana Constitution. Upheld,
Holliday v. State 257 N.E. 579 (1970).
"It is useful to distinguish
between the jury's right to decide questions of law and
its power to do so. The jury's power to decide
the law in returning a general verdict is indisputable. The debate
of the nineteenth century revolved around the question of whether
the jury had a legal and moral right to decide questions
of law." Note (anon.), The Changing Role of the Jury in
the Nineteenth Century, Yale Law Journal, 74,170
(1964).
"...[T]he right of the jury
to decide questions of law was widely recognized in the colonies.
In 1771, John Adams stated unequivocally that a juror
should ignore a judge's instruction on the law if it violates
fundamental principles:
'It is not only...[the juror's]
right, but his duty, in that case, to find the verdict according
to his own best understanding, judgment, and conscience, though
in direct opposition to the direction of the court.'
There is much evidence of the general
acceptance of this principle in the period immediately after the
Constitution was adopted." Note (anon.), The Changing Role
of the Jury in the Nineteenth Century, Yale Law Journal
74, 173 (1964).
"During the first third of
the nineteenth century,...judges
frequently charged juries that they
were the judges of law as well as the fact and were not bound
by the judge's instructions. A charge that the jury had the right
to consider the law had a corollary at the level of trial procedure:
counsel had the right to argue the lawits interpretation
and its validityto the jury." Note (anon.),
The Changing Role of the Jury in the Nineteenth Century, Yale
Law Journal 74, 174,(1964).
Alexander Hamilton,
acting as defense counsel in a seditious libel case, said: "That
in criminal cases, nevertheless, the court are the constitutional
advisors of the jury in matter of law; who may compromise their
conscience by lightly or rashly disregarding that advice, but
may still more compromise their consciences by following it, if
exercising their judgments with discretion and honesty they have
a clear conviction that the charge of the court is wrong."
7 Hamilton's Works (ed. 1886), 336373.
New York Supreme Court Justice
Kent (1803): "The true criterion of a legal power is
its capacity to produce a definitive effect, liable neither to
censure nor review. And the verdict of not guilty in a criminal
case, is, in every respect, absolutely final. The jury are not
liable to punishment, nor the verdict to control. No attaint
lies, nor can a new trial be awarded. The exercise of this power
in the jury has been sanctioned, and upheld in constant activity,
from the earliest ages." 3 Johns Cas., 366368. Quoted
in Sparf and Hansen v. U.S., 156 U.S.51, 148149. (1894)
(Gray, Shiras, JJ, dissenting).
"Within six years after the
Constitution was established, the right of the jury, upon the
general issue, to determine the law as well as the fact in controversy,
was unhesitatingly and unqualifiedly affirmed by this court, in
the first of the very few trials by jury ever had at its bar,
under the original jurisdiction conferred upon it by the Constitution.
"The report shows that, in
a case in which there was no controversy about the facts, the
court, while stating to the jury its unanimous opinion upon the
law of the case, and reminding them of 'the good old rule, that
on questions of fact it is the province of the jury, on questions
of law it is the province of the court to decide,' expressly informed
them that 'by the same law, which recognizes this reasonable distribution
of jurisdiction', the jury 'have nevertheless a right to take
upon themselves to judge of both, and to determine the law as
well as the fact in controversy.'" Supreme Court,
Sparf and Hansen v. U.S., 156 U.S. 51, 154155 (1894), from
the dissent by Gray and Shiras.
"It is universally conceded
that a verdict of acquittal, although rendered against the instructions
of the judge, is final, and cannot be set aside; and consequently
that the jury have the legal power to decide for themselves the
law involved in the general issue of guilty or not guilty."
From the dissent by Gray and Shiras, Supreme Court, Sparf
and Hansen v. U.S., 156 U.S. 51, 172 (1894).
"...[I]t is a matter of common
observation, that judges and lawyers, even the most upright, able
and learned, are sometimes too much influenced by technical rules;
and that those judges who are...occupied in the administration
of criminal justice are apt, not only to grow severe in their
sentences, but to decide questions of law too unfavorably to the
accused.
"The jury having the undoubted
and uncontrollable power to determine for themselves the law as
well as the fact by a general verdict of acquittal, a denial by
the court of their right to exercise this power will be apt to
excite in them a spirit of jealousy and contradiction..."
"...[A] person accused of crime
has a twofold protection, in the court and the jury, against being
unlawfully convicted. If the evidence appears to the court to
be insufficient in law to warrant a conviction, the court may
direct an acquittal...But the court can never order the jury to
convict; for no one can be found guilty, but by the judgment of
his peers." From the dissent by Gray and Shiras, Supreme
Court, Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894).
"But, as the experience of
history shows, it cannot be assumed that judges will always be
just and impartial, and free from the inclination, to which even
the most upright and learned magistrates have been known to yieldfrom
the most patriotic motives, and with the most honest intent to
promote symmetry and accuracy in the lawof amplifying
their own jurisdiction and powers at the expense of those entrusted
by the Constitution to other bodies. And there is surely no reason
why the chief security of the liberty of the citizen, the judgment
of his peers, should be held less sacred in a republic than in
a monarchy." From the dissent by Gray and Shiras,
Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894).
"The jury has the power to
bring a verdict in the teeth of both the law and facts."
Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning
v. District of Columbia, 138 (1920).
"If juries were restricted
to finding facts, cases with no disputed factual issues would
be withheld from the jury. But such cases are presented to the
jury. By its general verdict of innocence, the jury may free
a person without its verdict being subject to challenge. The
judge cannot ask jurors to explain their verdict, nor may the
judge punish the jurors for it. Although judges now generally
tell jurors they must obey the judge's instructions on the law,
the jurors may not be compelled to do so. If the jury convicts,
however, the defendant is entitled to a broad range of procedural
protections to ensure that the jury was fair and honest.
"When a jury acquits a defendant
even though he or she clearly appears to be guilty, the acquittal
conveys significant information about community attitudes and
provides a guideline for future prosecutorial discretion in the
enforcement of the laws. Because of the high acquittal rate in
prohibition cases during the 1920s and early 1930s, prohibition
laws could not be enforced. The repeal of these laws is traceable
to the refusal of juries to convict those accused of alcohol traffic."
Alan Scheflin and Jon Van Dyke, Jury Nullification: The
Contours of a Controversy, Law and Contemporary Problems 43,
No.4, 71 (1980).
"Jury acquittals in the colonial,
abolitionist, and postbellum eras of the United States helped
advance insurgent aims and hamper government efforts at social
control. Widespread jury acquittals or hung juries during the
Vietnam War might have had the same effect. But the refusal of
judges in trials of antiwar protesters to inform juries of their
power to disregard the law helped ensure convictions, which in
turn frustrated antiwar goals and protected the government from
the many repercussions that acquittals or hung juries would have
brought." Steven E. Barkan, Jury Nullification in
Political Trials, Social Problems, 31, No. 1, 38, October,
1983.
"...[T]he institution of trial
by juryespecially in criminal caseshas
its hold upon public favor chiefly for two reasons. The individual
can forfeit his libertyto say nothing of his lifeonly
at the hands of those who, unlike any official, are in no wise
accountable, directly or indirectly, for what they do, and who
at once separate and melt anonymously in the community from which
they came. Moreover, since if they acquit their verdict is final,
no one is likely to suffer of whose conduct they do not morally
disapprove; and this introduces a slack into the enforcement of
law, tempering its rigor by the mollifying influence of current
ethical conventions. A trial by any jury...preserves both these
fundamental elements and a trial by a judge preserves neither..."
Judge Learned Hand, U.S. ex rel McCann v. Adams, 126 F.2d
774, 77576 (2nd Circuit, 1942).
"It's easy for the public to
ignore an unjust law, if the law operates behind closed doors
and out of sight. But when jurors have to use a law to send a
man to prison, they are forced to think long and hard about the
justice of the law. And when the public reads newspaper accounts
of criminal trials and convictions, they too may think about whether
the convictions are just. As a result, jurors and spectators
alike may bring to public debate more informed interest in improving
the criminal law. Any law which makes many people uncomfortable
is likely to attract the attention of the legislature. The laws
on narcotics and abortion come to mindand there must
be others. The public adversary trial thus provides an important
mechanism for keeping the substantive criminal law in tune with
contemporary community values." D.C. Circuit Court Judge
D. Bazelon, "The Adversary ProcessWho Needs
It?" 12th Annual James Madison Lecture, New York University
School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852,
5855 (daily ed. April 29, 1971). |