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.
All restraints upon man's natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ from each other only in degree.
There has been no clearer principle of English or American constitutional law than that, in criminal cases, it is not only the power and duty of juries to judge what are the facts, what is the law, and what is the moral intent of the accused; but that it is also their power, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and find all persons guiltless in violating, or resisting the execution of, such laws.
Majorities, as such, afford no guarantees for justice. They are men of the same nature as minorities. They have the same passions for fame, power, and money, as minorities; and are liable and likely to be equally - perhaps more than equally, because more boldly - rapacious, tyrannical and unprincipled, if intrusted with power.
The very idea of law originates in men's natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law.
The trial by jury might safely be introduced into a despotic government, if the jury were to exercise no right of judging of the law, or the justice of the law.
Majorities and minorities cannot rightfully be taken at all into account in deciding questions of justice.
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.
If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men's natural rights.
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