Blackstones Ary Essay Law Mysterious Science

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.

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“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?

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.

But all this “trial by the country” would be no trial at all “by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

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.* So, also, if the government may dictate to the jury 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.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. 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. 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, 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.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, 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.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.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.

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