Bork was dubbed "Judge Dread" in a Reason magazine review of his book, Slouching Towards Gomorraha title that is the classic expression of the fears and expectations of conservative culture warriors, of whom Bork is one of the principal exemplars. Bork already has a claim to fame through a couple footnotes to history.
FOR more than six hundred years - that is, since Magna Carta, in - 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. It was anciently called "trial per pais" - that is, "trial by the country.
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? 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. On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy.
And this is freedom. At least, it is freedom to them; because, although it may be theoretically imperfect, it, nevertheless, corresponds to their highest notions of freedom.
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; and especially that the opponents of the government, if the government have any opponents, will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, if any are thus oppressed, will have their representatives in the jury, as well as those classes, who take sides with the oppressor - that is, with the government.
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. The government can enforce none of its laws, by punishing offenders, through the verdicts of juries, except such as substantially the whole people wish to have enforced.
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 thegovernment'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 it 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.
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.To properly understand the reason for the system of trial by jury one can do no better than to read Spooner's essay.
He covers the history of the concept and the proper role of the "judge" and the rights of the jury/5(14). Juries have been delivering independent verdicts in the interest of justice for over years, serving as the final check on government's power to pass unjust, immoral, or oppressive laws that leave citizens at the mercy of sometimes jaded or corrupt courts and legislatures.
Apr 24, · Lysander Spooner’s An Essay on the Trial by Jury is an incredibly significant work that should be read by every American political dissident, regardless of your own orientation.
It not only establishes the very foundation for actual trials by jury, but it also demonstrates the viability of jury nullification.
Page [unnumbered] ï~~AN ESSAY ON THE TRIAL BY JURY Page [unnumbered] ï~~ Page [unnumbered] ï~~AN ESSAY ON TILE TRIAL B3Y JURY. BY LYSANDER SPOONER.
BOSTON: JOHN P. JEWETT AND COMPANY. CLEVELAND, O JEWEIT, PROCTOR & WORTHINGTON. A list of political writers with authors specializing in a wide range of political subjects.
All genres have been included, fiction and non-fiction. This selection has been excerpted from Lysander Spooner’s monograph “An Essay on the Trial by Jury.” The full text is available on Project Gutenberg.
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.