Spooner did not attempt to whitewash the jury system of his
time. Quite the contrary. In a section of his work, which he
titles, "Juries of the present day illegal," Spooner
condemns the methods then used to select jurors for state and
federal courts. He notes quite rightly that the methods used
to select jurors are designed to insure that people favorable
to the government are empanneled.
"There has, probably, never been a legal jury, nor a
legal trial by jury, in a single court of the United States,
since the adoption of the constitution,"10
The only valid trial by jury is that which is provided for
by the common law; "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."11
With a wisdom so many political scientists seem ignorant of,
Spooner observes, "If the real trial by jury had been preserved
in the courts of the United States - that is, if we had had legal
juries, and the jurors had known their rights - it is hardly
probable that one tenth of the past legislation of Congress would
ever have been enacted, or, at least, if enacted, it could have
Spooner made his case against the perversions of trial by
jury as strong as he could. He brooked no compromise with the
forces then battling to strip even more powers away from the
jury. The system should be whole and he would defend nothing
short of that.
The tragedy of it is that if we only had as much of the common
law trial by jury as Spooner did in his time, we would have infinitely
more than we have today.
At the time Spooner argued for a progressive jury system,
his ideas weren't nearly as radical as they might seem today.
In many ways he was the mainstream of both popular and legal
opinion. His position, while genuinely revolutionary, was also
conservative. But as much as Spooner tried to save the traditional
American jury system, the courts got the upper hand and effectively
choked off attempts to preserve a strong jury. As the years passed,
it was the rare jury that would hear lawyers attempt to argue
the law before them, and it was even a rarer courtroom in which
such arguments would be permitted. Understandably, jurors became
accustomed to their now-limited role in the courtroom.
As the tradition of the strong jury was forgotten, so also
was Spooner's Trial by Jury.
But the ideas Spooner expressed were to be ressurected again
in 1882 in the 16th issue of Liberty. The early jury system
was a "splendid institution, the principal safeguard against
Benjamin R. Tucker. "But," he lamented, "nothing
tending to secure the individual's rights against invasion can
be saved within the State."13
Herein he set the tone for many of the observations he and
others would make in future issues of Liberty: The jury
was one institution which could protect freedom and mete out
justice, but it was an institution which had been stripped of
much of its power and was being channeled into service as just
another arm of the state's judiciary system instead of a citizen's
check on the judiciary and on the state itself.
This was merely the first of many references in Liberty
that Tucker would make to trial by jury. Victor Yarros, one of
Liberty's editors, also contributed heavily to Liberty
on the jury issue. Before discussing the contributions these
two made to this issue, it would be useful to review some of
the many observations others offered on this question, some of
them, as indicated earlier, were extremely critical.
Several of the references to jury trial were reprints of letters
and stories that had appeared in the popular press. Some of these
involved run-ins libertarians had with judges when they had been
called to serve on juries, only to be excused because of their
strong opinions on the proper role of jurors. In 1906, for instance,
Daniel Kiefer reported that he'd been excused from jury service
when he told the judge that he felt he had a right to decide
what the law should be.
In the same year Samuel Milliken of Philidelphia reported
that he, too, had been excused from jury service for a similar
reason. In explaining his position in the Philadelphia Record,
he wrote that the jury "might accept or not, as it chose,
the judge's instructions as to the law."14
Added Milliken: "The country was not supposed to have
slavish and superstitious respect for either the king's law or
the king's judges... The jury is not an aid to or servant of
the judge, but a co-equal part of the administration of justice."15
Someday, predicted Milliken, "a courageous juryman will
tell an impudent judge to mind his own business, and to let the
jury mind theirs. We should have an abiding and reverent respect
for natural law, but this respect should not extend to statute
law, unless that law is in line with the eternal equities. And
judges should be treated with respect... when they prove worthy
Recognizing a renewed public interest in jury reform toward
the close of the 19th century, F.D. Tandy praised the insight
Spooner had into the jury system. In concluding his article,
Tandy wrote, "Frequently the question of jury reform is
agitated in the capitalistic press. It seems as if some change
will be made in the near future. Nearly all the reforms that
are advocated are reactionary, giving greater power to judges
and other employees of the State. Surely it is now time to make
a stand for progressive reform. Perhaps this might even be made
the next step toward freedom, for the demands do not seem so
radical to the ordinary mind, and yet the effects are far-reaching."17
Not every contributor to Liberty was quite so charmed
about the impact trial by jury would have. Several challenged
the proposed jury system. "Basis," writing early in
Liberty's pages, thought that it was foolhardy to trust
juries with deciding complicated "insanity" cases,
such as the Guiteau case. In such matters "are we to hang
a man in this country on the mere opinion of twelve ordinary
men?"18 In criminal
insanity cases, he said, he would rather have a decision come
from "a court of experts with a presiding judge."19
Stephen Byington, writing in 1904, characterized juries as
too clumsy to handle affairs on a business basis. He predicted
that defensive associations would use professional judges to
hear disputes. Juries, he argued, would generate tremendous uncertainty
In December, 1907, in the second to the last issue of Liberty,
Byington was even more forceful in this critique. "... under
certain circumstances... juries are so certain to give a biased
verdict that trials are little else than a waste of time,"20 he wrote.
Convictions in a society where there was a strong jury system
would be rare, he said and argued that this would mean the society
would have to be so peacable that it didn't need courts. If is
wasn't there would be a rapid return to vendetta. "... if
we are going to take into our juries such men as will make conviction
generally improbable, we had better all be non-resistants at
once,"21 he wrote.
It could lead to ever more wide-spread problems, he warned.
"... if you have two hostile races or classes, each of whom
will in general refuse to convict one of its members of an assault
on one of the other party, you get a race or class war."22
For instance, can one suppose that a prohibitionist on a jury
would convict an armed band of people who broke up a saloon,
destroyed the liquor stock and used guns to protect themselves
if violent resistance was made?
"... the real defect of the jury system," Byington
wrote, is "that it accomplishes too effectively the purpose
it was meant to accomplish, the purpose of preventing the legal
punishment of anybody whom the people do not unanimously want
Byington closed with his analysis that judges were less likely
than juries to fall prey to weaknesses. We can trust today's
judges because they are different than earlier judges, he said.
"... in our part of the world at least, tyranny over
the people is nearly dead."24
Rather, the danger comes from the people. "... the characteristic
and dangerous tyranny of our day is tyranny in the people, ...
the tyranny of unanimous and determined minorities, degenerating
into thug tyranny."25
What better prop could such juries wish for than a requirement
"... is it not absurd to advocate a measure for guarding
against the obsolete tyranny at the expense of strengthening
the living and vigorous tyranny?"26
Wrote Byington, "... this is the sort of anarchy that
is famous for leading to stern reaction."27
Interestingly, Byington suggests that this mob of citizenry
while perfectly incapable of being just, could be trusted to
select just judges." ... it is usual - for those who never
show fairness themselves to appreciate an upright judge and delight
in having him... The favor men have for a just judge is so general
as to be the surest safeguard yet known for fairness in the administration
In sum, society would probably be much better off with a system
of judges rather than juries, he said. "... I for one would
much rather trust the fairness of an opponent's judge than of
an opponent's jury."29
The single most important contributor to Liberty outside
of Tucker himself on the jury issue undoubtedly was Victor Yarros.
He opened his remarks on this issue in 1891 in response to
some comments made by George Schilling. Juries, Yarros writes,
should not be considered more just and intelligent than the rest
of the populace, but they should be considered as just
"A trial by the whole body of citizens being out of the
question, the choice is between trial by jury and government
by majority, between obedience to laws enacted by the majority,
or the representatives of the majority, and obedience to laws
approved by a jury representing the whole body of citizens. If
Mr. schilling can point out a more perfect way of insuring 'government
by consent,' we are ready to accord it the most favorable consideration."30
"... jury-rule ... promises to secure government by consent
and to be the best instrumentality for the enforcement of equal
liberty."31 It is
merely a means to the end of securing equal liberty.
"My friend's fear of fixity is groundless. If Spooner
proves anything, he proves that trial by jury is the best safeguard
against fixity or rigidity. There can be no fixity in any objectionable
sense where the spirit of the law is consulted rather than the
letter, where the aim and endeavor is to do justice to all parties
rather than to uphold the authority and dignity of the law."32
Responding to agitation in New York for jury reform, Yarros
acknowledged that "Trial by jury, as we know it, is a farce
and a mockery."33
But most of the proposed reforms would make the situation even
worse than it is, he said.
"It is unfortunate that most of those who discuss jury
reform know nothing regarding the true philosophy of the institution."34
In August of 1895 he writes of the Sparf and Hanson vs
the United States case. "... the system of trial by
jury is a device to escape, not only the old and tyrannical form
of government of a few men, but the newer tyranny of alleged
government of laws twisted and strained by a few men who suit
supposed necessities of the time... Where the jury is really
the government, the individual enjoys greater freedom and secures
more complete justice than under any other form of government."35
Trial by jury, he says, could accurately be described as "a
government of justice,"36
which is far superior to a government of law.
When he finished pulling apart the contradictions and folly
inherent in the Sparf and Hanson vs the United States
decision, Yarros again returned to the theme that by then was
most familiar to him. What was needed was "a reversion to
the true ideal of a court of common sense and conscience, - of
a jury that has nothing imposed on it, and that is empowered
to do justice regardless of cast-iron rules and fixed statutes."37 Two weeks later he suggested
a thorough judicial reform which would restore "the power
of the jury to veto laws and modify them in accordance with circumstances."38
Yarros was so convinced of the merit of Spooner's Trial
by Jury that he took upon himself the task of condensing
and rearranging the book so that it could easily be absorbed
and digested by the layman.
This work bore fruit on June 8, 1889, when "Free Political
Institutions" first appeared in serial form in Liberty.
For eight consecutive issues Liberty carried this condensed
and highly edited version of Spooner's treatise.
Yarros announced in his introduction to the serialization
that he had rearranged the work in the hope of presenting it
as a work of political philosophy more than an historical essay
on the jury, as it had been organized when Spooner issued it.
Tucker explained that Yarros saw "Free Political Institutions"
as "a splendid instrument for the popularization of Anarchistic
ideas of liberty... as well as a deadly weapon against those
who ignorantly or dishonestly seek to perpetuate our present
system of governmental tyranny by pretending that it is based
on our voluntary consent."39
"Free Political Institutions" was well received
by Liberty readers. George W. Searle, a Boston lawyer,
wrote of the great pleasure he had in seeing it. "Your success
has been complete and perfect. All that is essential of the larger
work is preserved, and it is presented in a form and within the
moderate compas useful to the general reader.... Without altering
a single systematic treatise on the fundamental principles of
free political institutions: their nature, essence, and maintenance."40
Tucker described "Free Political Institutions" as
"the best instrument for Anarchistic propaganda. Those who
wish to acquire a clear conception of political freedom should
study this book and digest well its fundamental doctrines."41
Certainly, Spooner was one of Tucker's early teachers and
the influence of Spooner's ideas on the young man can be seen
again and again in Tucker's writing. This certainly is true in
regards to the jury issue.
Tucker early distinguished between trial by jury as it should
be and trial by jury as it was commonly practiced in his time.
Eight years after first writing about the issue in Liberty,
Tucker observed, "What with the ignorance and servility
of the average juror, the impudence and ignorance of the average
judge, and the insolence and pernicious zeal of the government
attorneys, the administration of justice is becoming a delusion
and a snare."42
In a rare moment, Tucker even had kind words to say about
Henry George when the latter, as a jury foreman, refused to return
a verdict the judge ordered against a party. George insisted
on opposing the judge and was dismissed for the remainder of
the term. "The rebellion of jurymen against the high-handed
usurpations of judges is as rare as righteous, as unusual as
useful. Others should follow Mr. George's example."43
While most of Tucker's attention was directed at petit juries,
those which actually try cases, he did comment on occasion on
grand juries, those which decide whether there is evidence to
suggest that someone ought to be tried for a crime.
"It is well known that grand juries have been even more
completely stripped of usefulness than petit juries by courts
and prosecuting officers... The only way to terminate the abuses
is to refuse to serve.... when tried for contempt, state the
reasons for their course. That would be excellent propaganda
In 1894 a report in the New York Sun indicated that
a judge had instructed a jury to return a certain verdict which
the jury didn't want to return. Tucker was in a rage. "The
compelling of men to serve on juries, at an expense to themselves
and to the taxpayers, for no other purpose than to afford the
bench an opportunity to place the responsibility for its own
injustice on their shoulders would be a ludicrous farce were
it not a terrible tragedy."45
In 1897 Tucker was called up for jury service, but promptly
got in line behind a host of others who claimed legal exemption
from jury service. When it was his turn to appear before the
judge, he announced that his convictions would keep from accepting
instructions from the court on points of law as absolutely binding.
Judge Frederick Smyth asked Tucker, "You think you know
more than the court about the law?" Unshaken by his eminence,
Tucker replied, "I must judge for myself."46 Naturally, he was excused.
In the year prior to the one in which Tucker was called up
for jury duty, New York passed a special jury law which established
Special Jury Commissioners for the state's largest counties.
These commissioners were to be appointed by justices of the appellate
division of the state supreme court and were to select special
jurors for those counties.
Tucker was infuriated by the law and on June 25, 1897, under
the auspices of the Central Labor Union, Typographical Union
#6 and other labor organizations, he delivered a fiery speech
condemning the law at a mass meeting held in Cooper Union. He
published his speech in Liberty in July and August, 1897,
and in the following year issued it as a pamphlet titled A
Blow At Trial By Jury.
The "ulterior purposes" behind the law were lais
bare as Tucker announced that the law deserved a new title, one
which more fully described the impact the law would have on the
legal system. That new title, the speaker sais, was: "An
act providing for the enforcement of those laws of the State
of New York which, having found their way into the statute-books
only through the insiduous machinations of a clique or a cabal
or a boss or an interest or a handful of fanatics, are so unpopular
with the citizens of the State of New York that a conviction
of the violation of them can seldom, if ever, be secured from
a jury fairly and impartially impaneled from the mass of sober-minded
The law would allow on special juries only those people who
had no scruples against the death penalty and those who had no
prejudice against any law of the state which would preclude them
from finding a defendant guilty of a violation of the law. These
special jurors would hear cases if a justice of the appellate
division determined that the "due, efficient, and impartial
administration of justice requires it,"48
The effect of the law, Tucker explained, would be to take
"any man submissive enough to aid in enforcing" unpopular
laws and place him in a jury where "the laws that sustain
the privileged classes in their privileges, and the laws that
strip the masses of their rights in order to make them an easy
prey for the exploiter"49
can be enforced.
Tucker assured his listeners that he didn't come to Cooper
Union to condemn the motives of those who passed the special
jury law. "The main question to-night is not what motive
inspired the law, but what it will be possible for men of bad
motive to do with the law when once it has been placed in their
hands as an instrument."50
He reminded the audience how much this law had in common with
the fugitive slave law of close to a half century earlier. "In
1851, in the United States district court for the district of
Massachusetts, Peleg Sprague, the United States district judge,
in empanelling three (there) 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
marshall, caused the following question to be propounded to all
the jurors separately, and those who answered unfavorably for
the purpose 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 offence, are proved against him, and the
court direct you that the law is unconstitutional?
"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."51
Proper trial by jury is designed less for the "punishment
of the guilty than the safety of the innocent,"52 Tucker argued.But he continued,
"I hear someone ask, 'is it not rather absurd to put the
enforcement of a law in the hands of a jury composed in whole
or in part of men prejudiced against the law?"
"Well, it does seem a bit irrational, until we inquire
what the purpose of statute law is, or ought to be. If the purpose
of statute law is the attainment of a rigid, inflexible, stiff-backed,
cast-iron justice, then perhaps the special jury system is an
excellent method of achieving it. But I declare to you that no
such justice is wanted in any civilized community. We want
justice, not rigid, but elastic; we want justice, not stern,
but tempered with mercy, sympathy, and common sense; we want
justice, not blind, but with eyes sharp enough to detect causes,
conditions, and circumstances; we want justice, not superficial,
He then noted, "It is prejudice against the law that
oftenest saves society.... prejudice against the law serves in
practice as a most valuable corrective of the folly of law-givers
and the cruelty of courts."54
Tucker urged the audience to resort to passive resistance
to the jury law after the manner of the Irish who resisted the
British oppression in their homeland.
In closing Tucker offered a series of resolutions which condemned
the law. The resolutions were passed unanimously at the meeting.
The jury issue continued to inspire some spirited debate even
after the demise of Liberty in the early 20th century,
but for the most part it was an issue that gradually found itself
submerged beneath a host of other pressing political/economic
issues. The struggle over jury "reform", however, wasn't
at an end.
As battered as the courts left trial by jury in the late 19th
century, the judiciary still was far from satisfied with its
work. More needed to be done to restrict what powers did remain
of the jury. So, throughout the 20th century judges continued
the tradition of their predecessors in making more secure the
powers, prerogatives and privileges of the judicial elite.
The courts gradually sanctioned three variations on trial
by jury. They are: Special verdicts, directed verdicts and judgements
not withstanding the verdict.
Special verdicts are used occasionally in place of general
verdicts. A general verdict is one in which the jury applies
the law to the facts of the case to reach a conclusion about
the disposition of the entire case. With a special verdict, on
the other hand, a judge sks the jury questions about the facts
of the case, then the judge applies the rules of law to the jury's
answers to hand down a judicial verdict.
Directed verdicts are granted at the close of the presentation
of evidence. With such a verdict the judge declares the evidence
to be insufficient to create a jury issue. In effect, the case
is taken away from the jury.
A judgement not withstanding the verdict authorizes a judge
to overturn a jury's verdict and to enter a judgement contrary
to the verdict.
In addition to worming these bastardized judicial practices
into the courtroom, the courts launched an abrupt and violent
attack on trial by jury in the early 1970s. These attacks came
at the hands of the Supreme Court in four separate decisions.
In Williams v Florida in 1970 the court ruled that
state criminal juries of six were sufficient, even when the sentence
is as severe as life imprisonment. A later decision, Colgrove
v Battin, declared that six-person civil juries are adequate
in the federal court system. In Johnson v Lousiana and Apodaca
v Oregon the court ruled tht majority verdicts are adequate for
conviction in state criminal trials. Only by a single vote did
the justices avoid declaring that majority verdicts were acceptable
in federal criminal trials. All of these decisions make it much
easier for the state to get convictions.
Mauled as the jury was in the erly 1970, it's probably safe
to bet that the courts still aren't done with their dismemberment
of the jury system. They'll be right back again and again if
they have their way, until nothing remains that resembles the
historic common law jury.
But until then, not all is lost. We still have some powers
left as citizens to use the jury to protect our liberties. These
powers are limited, but they do exist. And so long as they exist,
we ought to use them.
In most cases, even today, general verdicts are the rule.
When returning such verdicts jurors often decide a great deal
more than the facts of a case as they mix in their own sense
of justice and community standards to decide whether a person
is guilty or not guilty of some wrongdoing. That's as it should
People ought to be encouraged to refuse to convict if they
believe the accused has done nothing wrong, even if the accused
clearly has done something "illegal." The public ought
to be encouraged to approach jury service with a sense of concern
for the freedom and rights of the accused.
With such a determination to see to it that the judicial system
once again deals in justice and not merely the law, isn't it
quite possible that unpopular laws then no longer will be enforced?
In time, as people begin to develop a sense of community justice
rooted in the safeguards the jury provides, we could gradually
see government invasions into our liberties stopped. As a sense
of distrust for government laws increases and a feeling of empowerment
in the people develops, we will have begun to enjoy the fruits
of a strong, active, and aggressive jury system.
Each time, then, that a jury steps between the state and a
citizen to protect that citizen from unjust prosecution, we will
be that much closer to reclaiming the freedoms that are ours.
We will have found and put to effective use yet another tool
in our struggle for freedom. We will have recognized, as did
the libertarians of the 1800s, that the jury can be a bulwark
of a free society.
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The Collected Works of Lysander Spooner, Vol. 2, M&S
Press, Weston, MA, 1971. An Essay on Trial by Jury. Introduction
p. 7. Charles Shively.
Ibid, An Essay on Trial by Jury by Lysander Spooner, Boston,
John P. Jewett and Co., Cleveland, OH, 1852, p. 5.
Ibid, p. 6.
Ibid, p. 7.
Ibid, p. 9.
Ibid, p. 13.
Ibid, p. 15.
Ibid, p. 15-16.
Ibid, p. 16-17.
Ibid, p. 156.
Ibid, p. 142.
Ibid, p. 156.
Liberty, Vol. 1, No. 16, Saturday, March 4, 1882, p. 1.
Liberty, Vol. XV, No. 2, Whole Number 392, April, 1906,
Ibid, p. 58-59.
Ibid, p. 59.
Liberty, Vol. X, No. 2, Whole Number 288, June 2, 1894,
Liberty, Vol. 1, No. 19, Saturday, April 15, 1882, p.
Liberty, Vol. XVI, No. 6, Whole Number 402, December,
Ibid, p. 53.
Ibid, p. 55.
Ibid, p. 56.
Ibid, p. 56-57.
Ibid, p. 57.
Liberty, Vol. VIII, No. 20, Whole Number 202, Saturday,
October 24, 1891, p.2.
Liberty, Vol. XI, No. 2, Whole Number 314, June 1, 1895,
Liberty, Vol. XI, No. 7, Whole Number 319, August 10,
1895, p. 2.
Liberty, Vol. XI, No. 9, Whole Number 321, September 7,
1895, p. 3.
Liberty, Vol. XI, No. 10, Whole Number 322, September 21,
1895, p. 3.
Liberty, Vol. VI, No. 14, Whole Number 144, Saturday,
March 16, 1889, p. 1.
Liberty, Vol. VII, No. 14, Whole Number 170, Saturday,
November 1, 1890, p. 3.
Liberty, Vol. VII, No. 11, Whole Number 167, Saturday,
October 13, 1890, p. 1.
Liberty, Vol. VIII, No. 52, Whole Number 234, Saturday,
August 20, 1892, p. 1.
Liberty, Vol. XI, No. 8, Whole Number 320, August 24,
1895, p. 1.
Liberty, Vol. X, No. 2, Whole Number 288, Saturday, June
2, 1894, p. 5.
Liberty, Vol. XIII, No. 7, Whole Number 357, December,
1897, p. 3.
Liberty, Vol. VIII, No. 52, Whole Number 234, Saturday,
August 20, 1892, p. 1.
Ibid, p. 4.
Liberty, Vol. XIII, No. 5, Whole Number 355, August, 1897,
Ibid, p. 4.
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