Freedom-Fighters Forum

The Constitutional Broadside
V1 N11 A PUBLICATION OF THE TWENTY FIRST CENTURY COUNCIL
Hosea 4:6 My people are destroyed for lack of knowledge.

CONSTITUTIONAL TRIAL BY JURY

Almost every American Citizen today fears and shuns the very thought of appearing as a defendant in a court of law.

Mass indoctrination has taught us the false notion that “only criminals go to court.” This common “psychosis” has caused us to overlook an essential process provided in the Constitution for the preservation of our personal liberty.

We have not only the right but the duty to test before a JURY the applicability of any statute or regulation we may be accused of disregarding. Our CITIZEN’S JURY is the bulwark of our liberty. Without the jury to protect us we would be slaves of the government.

THE ROLL OF THE CITIZEN IN GOVERNMENT

In the United States adult persons, natural born or naturalized, function as Citizens in the structure of government when they vote or in other ways oversee and support or oppose activities of their government’s officials. They are the foundation and strength of the government structure.

Persons who function as officials in government get their authority by delegation from the citizens. Thus all officials of government are accountable to the Citizens from whom alone they derive their authorization and direction.

THE CITIZEN’S JURY

Under our written CONSTITUTION, the Citizens of the Country make the final and ultimate decision on whether or not a person shall be held and punished for disobeying their laws. Under ARTICLE Three, Sec. 2 Par. 3, it says:

“The trial of all crimes, excepting in cases of impeachment, shall be by JURY:”

There is no provision in the Constitution that allows for a trial by a judge. Nor is there the slightest hint of authority given to the executive branch of government to try a person for a crime. It says, “The trial shall be by JURY”

Nor is authority given by the Constitution to a judge to tell the Jury what it must decide. The Jury is an independent part of the structure of government. It represents the Citizens of the Country as a whole. Its verdict is an expression of the law of the land that applies to the case it tries in court. Once the jury has decided and expressed its unanimous verdict the case is closed.

THE LAW AND THE FACT

In most, if not all trials, two questions must be examined. The whole function of the Court is to make this examination by the Jury possible. These questions are The Law that applies to the particular case, and The Facts of what actually happened.

It is currently fashionable among attorneys and judges to claim that matters of law are to be left for the judge to decide while the jury can consider only the facts.

It has not always been so. At the time of the founding of our Nation, as indicated by Noah Webster’s dictionary, 1828 ed., a JURY (was) “A number of freeholders. Selected in the manner prescribed by law, empaneled and sworn to inquire into and try any matter of fact and to declare the truth on the evidence given to them in the case. Grand Juries consist usually of 24 freeholders at least, and are summoned to try matters alleged in indictments. PETTY JURIES, consisting usually of 12 men, attend courts and try matters of fact in civil cases, and DECIDED BOTH THE LAW AND THE FACTS in criminal prosecutions. The decision of the Petty Jury is called the verdict.”

A truly major question before the Citizens of our country today is that: What is the Law of The Land, and how shall proper CONSTITUTIONAL TRIALS FOR CRIMES BE CONDUCTED? JURY?

JURIES AND CONSTITUTIONALITY

The CITIZEN is the bulwark of our constitutional process. His first CIVIC DUTY is to protect his liberty.

To do this he must obey the Laws of God and be responsible for his own conduct; for his own sins and for his own survival.

As a means of self-protection, the Citizens select representatives and authorize them to conduct the business of government. These he first causes to take an oath of office in which they covenant and promise to obey and support the Constitution of The United States and to defend it against all enemies. Next, if he fulfills his own obligation and trust as a citizen, he rides herd on his representatives and sees to it that they do in fact obey The Law of The Land. Finally, he brings to Jury trial all persons properly accusable before the law for malfeasance either as citizens or as officials of government.

CONSTITUTIONAL LAW-MAKING

The process of making and maintain laws that are constitutional takes several steps.

First, all law-makers, including Senators, Representatives, or others, do and should take an oath to uphold the Constitution. Thus they should never propose or vote for a statute that violates it. The Administrator, such as the President or Governor, being likewise under oath should never sign an unconstitutional bill.

The third step in this process has been almost universally overlooked and ignored until it is almost entirely erased from the minds of our countrymen, both citizens and lawmakers alike.

This is the roll of the citizen. He is the bulwark of our constitutional process. It is his duty, and obligation, to test in the courts the validity of statutes that he thinks are improper. The Citizen’s Jury, which attends the court, is his refuge and weapon, or means, for trying and testing the law.

If a citizen, duly accused of a crime before the law, is relieved and found not guilty by a Jury of his peers who represent the citizens of the country as a whole, then in that case the people of the country can instigate other rules if they are needed to establish constitutional laws for the benefit of the country.

If there are problems left unsolved by the processes referred to above, they should be studied in light of the suggestions and reasoning offered and provided for by the ancient rules of the common Law.

DETERMINING CONSTITUTIONALITY BY JURIES

A fascinating discussion of the roll of juries is given in a brilliant work entitled “An Essay on the Trial by Jury” by Lysander Spooner. He says:

“The trial by Jury” 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 he goes on to say, 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 power 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?”

WHO MAY SIT ON JURIES?

From this definition arises the question, who may sit on juries? According to Mr. Spooner, “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 purpose.

“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 that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented by 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 oppressors 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. 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, except for the violation of such laws as substantially the whole people of the country consent that it may exercise, in such a trial, therefore, the country or the people, judge and determine their own liberties against the government, instead of the government’s judging of and determining its own powers over the people.”

WHAT IS FREEDOM?

Mr. Spooner has this to say regarding freedom under proper jury trial:”..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.

THE CONSTITUTIONAL RIGHTS AND DUTIES OF JURIES

The above definition of the jury and the explanation of who may sit on juries falls within the Constitution of the United States. What we shall consider next is the function of the jury under the Constitution.

According to the author of An Essay on the 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 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 is 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.”

UNCONSTITUTIONAL JURIES

According to Mr. Spooner, writing in 1852, there were no legal juries operating at that time in either the United States or Britain. If it was true in 1852, what is happening today staggers the imagination.

Juries are used unconstitutionally in many ways. By comparing the right and wrong, Mr. Spooner makes this clear to any who wish to understand.

“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.”

EXAMPLES OF THIS PRACTICE

“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 for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empaneling these several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal. This judge caused the following question to be propounded to all the jurors separately; and those who answered unfavorably for the purposes of the 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 constituting 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 question was soon afterwards propounded to the persons drawn as jurors in the United States Circuit Court for the District of Massachusetts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of the United States, in empaneling a jury for the trial fo 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 empaneling juries fro 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 types of questions are asked, it this that no man shall be allowed to serve as a 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 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 to select his jurors from those who were ready to maintain his laws, without regard to their justice.

“This 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.”

TRIAL BY GOVERNMENT IS NOT CONSTITUTIONAL

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 dictates the standard of the trial, it of course dictates the results of the trial. And such a trial is not 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 the law of 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.

JUDGES MAY NOT DICTATE INTERPRETATION OF THE 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.

“The jury 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 a 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 offence 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 from 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 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 were 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.

THE DIFFERENCE BETWEEN LIBERTY AND DESPOTISM

“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 the powers of the government are, 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 the 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.

TRIAL BY JURY IN THE UNITED STATES PERVERTED

From the arguments presented above it should be abundantly clear that our jury system has been perverted beyond recognition. It is at present, an instrument of tyranny in the hands of judges and attorneys who are under the control of politicians whose sole aim seems to be to plunder the tax paying citizen.

THE BILL OF RIGHTS PROVIDES FOR TRIAL BY JURY

Amendment 6 to the Constitution reads as follows.”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Amendment 7 reads as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

Commenting on the above amendments, Mr. Spooner writes, The term jury is a technical one, derived from the common law; and when the American constitutions provide for the trial by jury, they provide for the common law trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the thing, and not merely the name, that is guaranteed. Any legislation, therefore, that infringes any essential principle of the common law, in the selection of jurors, is unconstitutional; and the juries selected in accordance with such legislation are of course, illegal, and their judgments void.