Liberty or Laws?
Justice or Despotism?
Gary Hunt
Outpost of Freedom
July 10, 2017
When the colonies severed their allegiance to England, in 1776, through the adoption of the Constitution in 1789, they had to have some form of law upon which to deal with matters, both criminal and civil. To do so, they adopted the Common Law of England, as it existed on July 4, 1776. This, then, became the foundation of laws upon which both the federal government and state governments began the process of developing their judicial systems.
What is important to understand is that the laws that they adopted were concerned with Justice. For example, though Webster’s 1828 dictionary has no definition of “judicial”, an adjective, it does have one for that body that is responsible for that function of government, the Judiciary:
JUDI’CIARY, n. That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government. An independent judiciary is the firmest bulwark of freedom.
Through our history, there have been legal scholars who stand well above the current lot, in that their concern for justice was paramount in their considerations, and the subject of much of their scholarly writings.
Perhaps the best known of these legal scholars was Sir William Blackstone (1723-1780), and his seminal “Blackstone’s Commentaries. From Book 1 of those Commentaries, we find some familiar phraseology:
“[A] subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.”
“And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property.”
Of course, personal security is best defined as “life”, as without it, we have nothing. And, Blackstone used the common term, “property”, as did most of the declarations of independence that predate Jefferson’s more poetic version.
What else did Sir Blackstone tells us about justice that was of extreme importance then, and should be equally so, now. When he discusses Felony Guilt, he states his understanding and then refers to another scholar, Sir Matthew Hale (1609-1676), from Book 4:
“Presumptive Evidence of Felony. All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer. Sir Matthew Hale lays down two rules: (1) Never to convict a man for stealing the goods of a person unknown, merely because he will not account how he came by them; unless an actual felony be proved of such goods. (2) Never to convict any person of murder or manslaughter, till at least the body be found dead.”
This subject can easily be set aside by the government simply stating that “times have changed”, since Blackstone wrote the Commentaries in the 1760s. However, that discounts the fact that justice cannot change, only the misapplication of justice can change. That latter is quite simply defined as injustice.
The Constitution provided two means by which the constitutionality of a law could be challenged. The first, found in Article I, § 9, clause 2:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
See Habeas Corpus – The Guardian of Liberty
The second is, of course, the right to a trial by jury. But, how can that provide for justice instead of simply the laws? Quite simply, since the government is “of the People”, those People were to be the final arbiter of the laws enacted by the legislature. Absent such protection from unconstitutional or unjust laws, the People would be subject to the whims of the legislators or administrative agencies, without recourse. That, as you will see, results in despotism.
Revisiting the two methods, the former, habeas corpus, is a judicial function whereby an individual can challenge the constitutionality or the applicability to his person, of any law that has led to his incarceration. The latter is the collective group, the jury, judging they law, also, as to constitutionality and applicability, as well as justice.
The government might argue that we left behind English Common Law so that we could adopt a better system. So, let’s look at the better system that was adopted after the Constitution, and is still embodied in the Maryland Constitution, and in the Declaration of Rights:
Art. 23. 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.
Clearly, this article, this inherent right, is suggestive of the intent of the jury trial process, both in England and in the fledgling United States of America.
Though not specifically expressed, the governments, both the states and the federal have not, for good cause, enacted a law prohibiting a jury from judging the law, as well as the facts. Instead, it has been left to the discretion of the judge to endeavor to deny that fundamental right, a right that serves not only the defendant, but the people as well.
There have been periods in our history where nullification of laws by juries has resulted in the legislative branch realizing that the law enacted was not consistent with the will of the people, and then sought to repeal those laws. Here are two examples of such impact on such legislation.
First was a constitutional amendment, the 18th Amendment (1919) prohibited the “manufacture, sale, or transportation of intoxicating liquors”. Many juries refused to convict violators of the laws enacted under the authority of the Amendment. Ultimately, this led to the repeal of the Amendment by the 21st Amendment (1933). The will of the People was heard and addressed.
Next has to do with another law enacted under authority of the Constitution, the Fugitive Slave Act of 1850. Just two years later, in 1852, Lysander Spooner wrote “An Essay on the Trial By Jury“, which addressed the inherent right of the jury to judge the law, also to encourage people to find those charged with violation of the slave act, to judge the law and find them not guilty. In so doing, he gave us additional insight into the inherent right of the 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 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.
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 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.”
What has happened, over time, however, is that the courts have assumed the role that is rightfully that of the jury. This has been accomplished by methods that absolutely reject the idea of justice. First is what came into being in 1872 called the “case law method”, developed by Harvard University.
Theodore Roosevelt, one of the early students taught the “case law method”, while a student at Columbia University. In describing his concern over case law, he wrote, “we are concerned with [the] question of what law is, not what it ought to be.” And, that “is” is what the courts decided what it “is”, not what the legislature might have thought “is” was when they enacted the law. However, the legislature has no remedy, so case law prevails in our current judicial system.
The “case law method” favors decisions made in lower courts, both appellate and occasionally district, have been used to ‘interpret’ what was ‘intended’ when a law was written by the Legislative Branch of the government. In so doing, most often there is “case law” that supports one side and then “case law” that supports the other side, of a criminal prosecution.
The second method, and extension of the first, is the discretion of the judge, who then determines who is right and who is wrong, assuming a role that should be the purview of the jury. However, that decision, what the law is, is made even before the jury hears the matter.
The “case law” is bantered about long before the case goes to trial, during what might rightfully be deemed “the Paper Chase”. Thus depriving the jury of the benefit of what a written law means, since the court has determined what instruction the jury will be given. The jury must come to a verdict, not on the written law, rather on what the court says that the written law says.
[Note: Some previous articles that discuss the “case law method”:Camp Lone Star – Act Two: The Contradictions Scene 3: To Be, or Not to Be – Forthright, Camp Lone Star – Act II – A Kangaroo Court – Scene 1 – How Case Law Subverts the Constitution, Camp Lone Star – The King Can Do No Wrong, or Can He?, and Burns Chronicles No 25 – Juror Shopping & Secrecy.]
This, then, brings us full circle, back to what the Founders wrote when the purpose of the Constitution was explained in the Federalist Papers. It was James Madison, in Federalist #62, that discussed “The mischievous effects of a mutable government” when he addressed the purpose of laws:
“The internal effects of a mutable [def: liable to change] policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
They are voluminous because there are tens of thousands of previous cases (case law) that often present many dozens of interpretations of a written law. For those who have read case law, many decisions are less than coherent; they are often nearly undecipherable and contradictory. They tend to change between court decision made upon the same statutory law, and are, quite frankly, outside of the mental capacity of most people to understand just what is, and what is not, the law.
So, just how can that be “a rule of action”, when it cannot meet the simple standards set forth by Madison?
From that which so many strived for, over two hundred years ago, we have slowly digressed in what Spooner described as “despotism”. Just 76 years before Spooner scribed those words, Thomas Jefferson had advised us,
“But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”
