AMERICAN JURY

From CyberOne Wiki

Contents 1 WE the PEOPLE 1.1 CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS 1.2 CONSTITUTION OF THE UNITED STATES OF AMERICA 2 I. English Origins, American Reception and Transformation. 2.1 Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY 2.2 Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History. 2.3 Dwyer: The Jury Breaks Free (from In the Hands of the Peopleb) 2.4 Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History. 2.5 Juries and Liberty in the United States 2.6 Robert Jones: The American Jury as Revolutionary Check 2.7 Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY 2.8 Bill Nelson: Americanization of The Common Law, Preface to the 1994 Edition, xii 2.9 Akhil Reed Amar: The Bill of Rights as a Constitution 2.10 Morton Horwitz: The Transformation of American Law - 1780-1860 2.11 Jeffrey Abramson: WE the Jury 2.12 JURIES AND THE SLAVE TRADE: THE TRIAL OF JOHN BATTISTE 2.13 JURIES AND THE FUGITIVE SLAVE LAW: THE TRIAL OF FREDERICK JENKINS’S (a.k.a. SHADRACH) LIBERATORS 2.14 THE MASSACHUSETTS CONSTITUTIONAL CONVENTION OF 1853 2.15 Mark DeWolf Howe: Juries as Judges of Criminal Law 3 Re-empowering Juries 3.1 Commonwealth v. Hebert 3.2 United States v. Dougherty 3.3 United States v. Luisi: Juror's challenge raises legal issue 3.4 United States v. Luisi 3.5 Eddlem's Blogs of the event 3.6 Cato Institute takes up the cause 4 Links 5 References

WE the PEOPLE

The American Jury lies at the heart of our Constitution.

With origins in Magna Carta and a history intimately connected with the American struggle for liberty and equality, the AMERICAN JURY is built into the constitutions of every colonial state and the Constitution of the United States. Explore with me its history, its function, its transformation by judges from its role as ultimate bulwark of liberty against the threat of overreaching state power to subsidiary judicial fact-finder.

Re-empowerment of the American Jury would be a most effective expression of the positive value of law. In the re-empowerment of the American Jury we the people of America have an opportunity once again grasp and express our identity and re-empower ourselves.

We the people of America did our best in forming our constitution to shape the process of our government and preserve the rights and liberties of our citizenry. Yet we accepted the racism of slavery, leaving to the future the task of working out conflict between racism and the American ideal.

CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America in Congress assembled.

All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.

No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.

Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his council at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.

The people, inhabiting the territory formerly called the Province of Massachusetts Bay, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent body politic, or state by the name of "THE COMMONWEALTH OF MASSACHUSETTS"

A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: and they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

CONSTITUTION OF THE UNITED STATES OF AMERICA

Preamble: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article II §2: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Amendment VII: 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.

I. English Origins, American Reception and Transformation.

Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY

The common law jury emerged in the wake of the Norman Conquest of 1066. The jury had roots in practices familiar to Anglo-Saxons brought to England from the continent a few centuries before the Normans arrived. For the Norman conquerors, it served as a means of securing participation by the indigenous subjects of a new monarchy in their judges' application of the lash of royal power. It was thus a source of social and political stability.

The ancient jury took two forms; the grand jury was an assembly summoned from the hundred (a unit of local government) or the larger shire to consider whether in an instance stated by the Crown a crime had been committed and, if so, who should be prosecuted. The petty jury was a smaller group of men summoned from the community to decide the guilt or innocence of a person so charged, or, increasingly as time passed to decide civil cases. Juries sat in the common law courts administered by the royal judges sent out from Westminster to bring the king's law to every shire of the realm.

The petty jury was increasingly used by the royal judges after 1215. In that year, a papal edict withdrew the clergy from the conduct of trials by ordeal, a method by which the royal courts had previously invoked supernatural forces to resolve disputed matters. When that device was withdrawn, the Crown issued a writ acknowledging that his judges were on their own to devise an alternative. No longer permitted to share the odium of decision with the divinity, the royal judges resorted to the jury as a standard feature of their process, thus substituting the community for the divinity as their partner in bearing the weight of moral responsibility for many of their decisions.

Over the nine centuries in which the jury has been in use, it has been radically transformed. Its one constant feature has been its status as a representative of the community being governed. Its one constant function has been to lighten the burden of moral and political responsibility otherwise borne by the judiciary, diffusing that responsibility through the community and thereby strengthening the courts. William Blackstone, so widely read in America, expressed the belief that the 18[su'th'] century jury "ever has been, and I trust ever will be, looked upon as the glory of the English law."

In its thirteenth century form, jurors were subjects drawn from the community in which the dispute arose; they were identified as the persons most familiar with the events in question who could thus decide a dispute on the basis of their personal knowledge. They were, in a sense, the witnesses.

By the eighteenth century when Blackstone wrote, the petty jury had been transformed again. While still drawn from the community, its members were called to decide factual issues on the basis of evidence adduced by the parties. The royal judge performed a limited role as the presiding officer at a jury trial. This was very important to the English monarch because the royal judges were few in number and were drawn from the landed gentry.

The royal judge thus merely instructed the jury on the law they were called to enforce and ruled on objections by parties to the admission of evidence presented by an adversary. He also wielded the contempt power, i.e., the authority to impose summary punishment on any subject who disturbed the decorum of the King's court. But because he was usually merely a facilitator of decisions and was so seldom required to take primary responsibility for a decision, the King's judge (and thus the King) was usually able to avoid the odium of responsibility for results.

The royal judge from Westminster would be sitting in the community in which the dispute arose and from which the jury was drawn. A list or array of persons from which the jurors would be selected was assembled by a local court officer on the basis of his personal knowledge of the community and advice from clergymen and other community leaders. They were, it has been said, "the Rotarians of their day," persons of good repute in their communities. Some were then selected from the array by lot and summoned as members of a venire who presented themselves as persons available for jury service in a particular case. They might be interrogated by counsel or the judge to explore possible disqualifying bias, for those who knew too much about the parties or events were by the eighteenth century excluded from service. Also, counsel would be allowed to strike a number from the panel without stating a reason for his objection, thus affording the parties a measure of authority over those who would decide their case.

Twelve jurors would be selected as the petty jury to hear evidence presented by the parties and to decide the case. That number was large enough to render individual members non-visible, but not so large as to separate them from a sense of personal responsibility for the decision. After hearing the parties and receiving legal instructions from the judge, they retired to a private place for deliberation and then returned a verdict. They were required to be unanimous; the effect of this rule was to place moral pressure to agree on those who were prone to dissent, but yet to allow dissent as a means of recognizing an uncertainty about the appropriate result so profound that no satisfactory decision could be reached.

Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History.

The history of the rise of the jury in both England and America has been inextricably intertwined with the creation and defense of fundamental rights. The jury's origins are a matter of substantial scholarly uncertainty. Orthodox opinion, strengthened by the writings of great legal scholars such as Maitland and Thayer, has held that the jury was a Norman import, brought to England by William the Conqueror and his minions after their victory at Hastings in 1066. More recent scholarly work by Dawson and others has shifted attention to the Anglo-Saxon antecedents of Norman jury procedure. Modern scholars have argued persuasively that important precursors to the jury existed in England prior to the Conquest and likely played a significant part in inducing Englishmen to place their trust in the jury trial mechanisms proffered by the conquerors.

Accounts of the early history of the jury indicate that the Normans pressed a rudimentary form of jury procedure into service to help them secure an administrative hold on the lands they had seized by force of arms. These early "juries" were bodies of citizens summoned by royal command to testify about property arrangements, local customs, and taxable resources in each neighborhood of the realm. One product of this testimony was the Domesday Book recorded in 1085-86. Another was the establishment of a more efficient governmental infrastructure in England than existed elsewhere in Europe. The historically noteworthy characteristics of this early jury procedure include its reliance on the exercise of royal authority, its compulsion of jurors to participate in the adjudicatory process, its utilization of the men of the neighborhood in a corporate body to provide the information upon which to base decisions, and its uniqueness as compared to traditional approaches that relied on the actions of the litigants to settle disputes either by ordeal or combat. These characteristics would remain important facets of the jury's operations for centuries.

The jury's primary function continued to be administrative until the time of Henry II, who came to the English throne in 1154. By a series of statutory enactments, known as assizes, Henry transformed the jury into a genuine instrument of justice. Pollock and Maitland suggest that King Henry first used the jury trial to adjudicate the complaints of tenants who claimed to have been "disseised, that is dispossessed, of [their] free tenement unjustly and without judgment." The new remedy, known as the assize of novel disseisin, offered claimants in such circumstances the opportunity to submit their case to a jury of at least arguably knowledgeable local citizens rather than engage in trial by combat. Novel disseisin was "fully organized" by 1179 and was an overwhelming success. It established a procedural pattern repeatedly copied over the course of the next century to address different sorts of legal claims. The reasons for its popularity were neatly summarized by the early treatise writer generally referred to as Glanvill:

The Grand Assize is a royal favor, granted to the people by goodness of the King, with the advice of the nobles. It so well cares for the life and condition of men that every one may keep his rightful freehold and yet avoid the doubtful chance of the duel, and escape that last penalty, an unexpected and untimely death, or, at least, the shame of enduring infamy in uttering the hateful and shameful word ["Craven"] which comes from the mouth of the conquered party with so much disgrace, as the consequence of his defeat. This institution springs from the greatest equity. Justice, which, after delays many and long, is scarcely ever found in the duel, is more easily and quickly reached by this proceeding. The assize does not allow so many essoins as the duel; thus labor is saved and the expenses of the poor reduced. Moreover, by as much as the testimony of several credible witnesses outweighs in courts that of a single one, by so much is this process more equitable than the duel. For while the duel goes upon the testimony of one sworn person, this institution requires the oaths of at least twelve lawful men.

The jury grew for two reasons other than its administrative efficiency and popularity with litigants. In 1215, Pope Innocent III and the Fourth Lateran Council prohibited ecclesiastical participation in trials by combat and ordeal. This prohibition effectively undermined the existing procedural alternatives to the jury and facilitated its rapid expansion. Professor Dawson has argued that the jury's growth may also be traced to the economic benefits it offered the Crown. The adoption of jury procedure placed most of the work of the judicial system in the hands of unpaid local citizens. While a few professional judges were necessary to supervise the process, most duties were undertaken by men who did not have to be maintained at the king's expense. Thus, a great deal of judicial business could be handled inexpensively and, at the same time, substantial fees could be charged.

It has been suggested that in these early days jurors served primarily as witnesses. There is a good deal of evidence in twelfth and thirteenth century practice to support such a contention. In William Forsyth's 1852 treatise on the jury, he recounted Glanvill's description of jurors as being bound to report to the court their ignorance of the facts of the case. In such situations, "others were chosen who were acquainted with the facts in dispute." Such a procedure makes sense only when jurors are the key source of information.

The method of reviewing jury verdicts and reversing their results in these early days was known as attaint. Professor Thayer found attaint mentioned in cases as early as 1202. Attaint led to a rehearing of the original evidence by a second, double-sized jury of presumably knowledgeable local citizens. If the second jury concluded that the first had erred, the verdict was overturned and the original jurors were condemned to severe punishment on the theory that they had committed perjury. Such treatment could be justified only if the original jurors' failure involved their refusal to disclose a truth of which they were aware. As Forsyth concluded: "Originally a wrong verdict almost necessarily implied perjury in the jurors. They were witnesses who deposed to facts within their own knowledge, about which there could hardly be the possibility of error."

The treatment accorded subscribing witnesses in medieval times also supports the witness-function hypothesis. Any and all subscribing witnesses were generally required to be produced when a deed or similar document was at issue. These witnesses were then "combined" with the jury that was to decide the case. This amalgamation suggests a parity of function consistent with the argument that all of the jurors were witnesses of one sort or another.

While subscribing witnesses presumably had information to impart to the court, individual jurors were not necessarily well informed as to the facts of the case. To increase the jurors' knowledge, procedures that culminated in statutes enacted as late as 1427 required the sheriff to convey the jurors' names to the parties at least six days in advance of trial so that the parties could "inform" the veniremen of pertinent facts. By the same token, adjudicatory procedures were arranged so that jurors would feel at least some "duty" to investigate the questions to be tried. All of these procedures served to press jurors into the witnessing role.

Yet the jury was never simply a collection of witnesses. Professor Dawson has ably pointed out the weaknesses in the witness hypothesis. He noted that while it was never expected that every juror would be an eyewitness, the jury was always required to enter into a collective verdict, representing the majority's opinion rather than simply delivering individual views of the evidence. Eventually, English procedure cut the ties that bound jurors to any sort of witnessing role. Perhaps the most significant step in this direction occurred in the mid-fourteenth century when jury verdicts were required to be unanimous. While unanimity might seem a neutral proposition with respect to the juror-as-witness theory, a deeper examination suggests otherwise. When jurors are genuine witnesses, there are likely to be disagreements among them, as is the case with almost any group of a dozen observers. When jurors are compelled to harmonize their views into one conclusive verdict, their individual witnessing functions inevitably must be subordinated to the group's need for consensus.

Professor Dawson argues that unanimity was embraced by English judges so that they could "divest themselves of any duty to assemble or appraise the evidence. The fact-finding function was imposed instead on groups of laymen, whose ignorance was disguised by a group verdict and whose sources of knowledge the judges refused to examine." It is not clear why unanimity was adopted, but litigant acceptance of juror-driven rather than judge-conducted factual inquiry was a likely cause. In addition, the tremendous savings in time and money achieved by relying exclusively on juries rather than a corps of inquiring magistrates to sift through the evidence likely motivated this decision.

The connection between witnessing and jury service was further eroded as the juror knowledge requirement, the attaint procedure, and the mixed juror-witness deliberation mechanisms were altered or abandoned. ... By 1682 it had become a punishable offense to contact or inform jurors of any facts or law related to an impending trial. Attaint died out as a method of review no later than the early sixteenth century. ... Perhaps as important as the decline of the jury's witnessing role was the rise of in-court testimony as the basis for decision. While it may be impossible to determine the precise moment that courtroom procedure shifted to testimonial presentations in open court, such presentations clearly came to dominate over the course of the fifteenth and sixteenth centuries... Statutes requiring the testimony of one or more witnesses began to appear during the 1500s, making in-court inquiry essential in some cases. Throughout this era, barriers to live testimony, like charges of maintenance and conspiracy, were, albeit slowly, being dismantled. The final movement towards in-court testimony probably came in the mid-1600s when jurors were isolated from outside influences and were required to decide cases on the basis of what was presented in open court.

The early history of the English jury is remarkable not only because of its constant adaptation to new and different needs, but also because of its contribution to the establishment of certain fundamental principles of democratic governance. These principles, and the jury itself, came to play a critical part in the tumultuous events leading to the fall of the Stuarts, the rejection of absolute monarchy, and the rise of parliamentary government.

From its earliest days, the British jury was called upon to perform a wide range of tasks. Its administrative and adjudicatory activities made it possible for the king to achieve a greater level of centralized control in England than was possible anywhere else in Europe at the time. Yet as Professor Dawson has indicated, relying on the jury and other lay decisionmakers such as justices of the peace had the unanticipated effect of training "English society, through its local leadership, in the skills and the practice of self-government." Over the course of 600 years, English jurymen learned to rule themselves. They developed traditions of independence from central bureaucratic authority. These skills and attitudes did not spring up overnight, but were nurtured through centuries of jury work. When the struggle for political liberty was joined in the seventeenth century, Englishmen who had known and enjoyed self-governance were ready to fight for what they had come to perceive as their rights.

The jury was also responsible for introducing the "middling sort," men of neither the aristocracy nor upper gentry but still of independent means, to the responsibilities of governing. Over time these citizens would become the bedrock of English political democracy. As Stephen Roberts explained, in the 1600s "the jury was the most representative institution available to the English people." How this came about is not hard to imagine. From very early in the jury's history, the wealthy strove to avoid jury service and place others on the panels in their stead. Statutes from the time of Edward I (1285 and 1293) point to the evasive conduct of well-to-do potential jurors. Those who became the mainstay of the jury system were men of modest property holdings. While there were many complaints in the sixteenth and seventeenth centuries that such jurors were not "sufficient freeholders," it would appear that the yeomanry "formed the social backbone" of the jury system. This resulted in a significantly broader distribution of power through the upper economic strata of English society, and helps to explain the alarm of those most highly placed in society.

The jury became even more important when the volume of litigation soared in the sixteenth and seventeenth centuries. A recent study of the thousand-person village of Earls Colne found that more than 200 legal actions were filed between 1589 and 1593. In such litigious times, jurors played a critical role in regulating society. That the middling sort were assigned this task bespeaks their access to real power and exposure to the problems of governing. Blackstone aptly summarized the role that the middling sort came to play:

[A] competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.

In the seventeenth century the Stuart kings increasingly sought to intrude upon these and other traditional power arrangements. The predictable response from juries was a rising tide of resistance. John Beattie, one of the finest modern historians of seventeenth and eighteenth century legal practice, has declared that "[t]he late seventeenth century was the heroic age of the English jury, for in the political and constitutional struggles of the reigns of Charles II and James II, trial by jury emerged as the principle defense of English liberties."

One of the most important moments for the jury came in 1670 when the Quakers William Penn and William Mead were prosecuted for preaching in public. ...

Dwyer: The Jury Breaks Free (from In the Hands of the Peopleb)

The kings and lords who adopted the jury saw it as a way to keep order in a realm plagued by strife and lawlessness. They had not the slightest thought of expanding citizens’ rights; what mattered to them was simply that the jury system worked. Disputes over land ownership, the prime source of medieval civil cases, moved from the dubious and deadly field of battle to the courts. Among contending landowners, violence gave way to litigiousness. Criminal cases were tried, under a judge’s watchful eye, by jurors who knew the neighborhood, the accused, and the victim. Justice was rough but better than Englishmen had known before – and so the new system buttressed the crown’s power.

But the jury, like many other children, soon surprised its parents. It became not just a tool of government but a welling up, a resistance, a brake on cruelty and excess, a force for reason and common sense and mercy. To play that role in full it had to win its own freedom – its right to decide cases without fear of reprisal by the king or the judge or the local lord. The culminating case brought the scion of one of England’s great families into the criminal dock.

Admiral Sir William Penn was a lion of the seventeenth-century establishment. He had fought in naval wars against the Dutch, taken Jamaica for the crown, won a knighthood, and written the British navy’s tactical handbook. He was the wealthy owner of estates in England and Ireland. His was a life of scope and command – except that he could not, no matter what he did, control his son and namesake.

The younger William Penn was bright, high-spirited, and potential heir to a fortune. Yet somehow – just how, the admiral could not fathom – he had become a religious dissenter while still a schoolboy. Delivered to Oxford at age sixteen for a gentleman’s education, William had lasted only a year before being sent down for nonconformity. Everything the admiral had done for him since – a sojourn in France, a tour of duty managing the family estates in Ireland – seemed only to strengthen the boy’s pigheaded convictions. By his early twenties, William had become a Quaker, and, worse yet, a spokesman and pamphleteer for his new faith.

The admiral was apoplectic. Of all the dissenters, the Quakers – the Society of Friends – were among the most despised. They were pacifist, virtuous, independent, and serenely confident. They called everybody “thou” regardless of rank. They refused to take oaths – a serious offense when oath-swearing was a test of loyalty. They were so nettlesome that more than three thousand of them were imprisoned in the first two years of the Restoration.

The admiral cursed and threatened to disinherit his son. But William was deaf to threats; he heard only the quiet voice of the Quaker conscience. And in him the Friends had found an ideal champion: a young man not only brave and charismatic but, as it happened, an aristocrat.

Penn wrote pamphlets attacking Anglican Church doctrines. The authorities locked him up in the Tower of London, which of course only fueled his fire. Although dissenters in that age were jailed on the flimsiest grounds, they were allowed to pass the time by writing. Penn, in the Tower, wrote a classic of prison literature: No Cross, No Crown, a book expounding the Friend’ morality with eloquence and good humor. The Quakers hoped not just to reach heaven but to change the world. “True Godliness,” wrote Penn, “don’t turn men out of the world, but enables them to live better in it, and excites their endeavors to mend it.”

In the summer of 1670 William Penn, released, was again at large in London. He was now twenty-six and filled with self-assurance.

On Sunday, August 14, he wanted to give a sermon, but found that the city authorities, struggling to silence Quaker preachers, had padlocked the Friends’ meetinghouse in Gracechurch Street. Barred from his church, Penn spoke in the street. A crowd of several hundred gathered – bustling, listening, talking among themselves. Penn was assisted by William Mead, a forty-two-year-old linen draper, who stood nearby.

As Penn was speaking, constables forced their way through the crowd. Armed with warrants, they arrested Penn and Mead and took them to Newgate Prison. An indictment charged both men with unlawfully assembling and disturbing the peace. Penn, it alleged, “by abetment of … Mead … did preach and speak,” and as a result “a great concourse and tumult of people in the street … a long time did remain and continue, in contempt of … the King, and of his law, to the great disturbance of his peace.”

This was a serious charge, a felony akin to insurrection or rebellion. Penn and Mead, if convicted, would face heavy penalties. They knew this and were ready for it. “And now, dear father,” Penn wrote to the admiral, “be not displeased or grieved. What if this be designed of the Lord for an exercise of our patience?” The accused men’s earthly hope would be the jury, an institution that was, by this time, four centuries old but still evolving.

Jury trials in the beginning were simple and direct. Yoemen of the vicinity were summoned to serve, and when twelve were chosen the trial went forward speedily. The jurors were sworn to give a true verdict based on what they knew of the parties and the facts; as time went on, and communities grew, the testimony of witnesses was brought in.

In civil cases a highly technical system of written pleadings came into being. The documents, written in a bastardized tongue called Law French, had to meet rigid requirements in stating the claims and defenses. An error of form could lose the case; counsel’s verbal dexterity replaced the client’s broadsword. Trial, when it occurred, was by jury.

Criminal cases were simpler, shorter, and almost entirely concerned with the fates of lower-class people. It was here that juries began to disagree at times with official mandates, and to say a muted “no.” In the Middle Ages, as now, the judge and jury usually agreed on the outcome, although the judge’s agreement was seldom voiced. But what happened – what should happen – when the judge and jury disagreed? When the judge believed firmly that the jury was letting off a guilty man? When that guilty man posed a threat to the very crown that appointed the judge and kept him in red robes and full-bottomed wig?

The struggle over who would have the last word – the judge or the jury – began in medieval criminal trials. There were no trial lawyers in these cases; the judges ran the proceedings, questioned the witnesses, instructed the jury. The accused was not presumed innocent. He had no right to counsel, nor to remain silent, nor to subpoena witnesses, nor to appeal. He could defend himself by speaking in answer to the proof against him. The theory was that in innocent man’s spontaneous reaction to the charge would be an ample defense. “[I]t requires no manner of skill,” said a defender of the system, “to make a plain and honest defense, which in cases of this kind is always the best.”

Records predating the sixteenth century are scant, but Sir Thomas Smith’s observations, written when Elizabeth I was a young queen in 1562, probably described what had been practiced for many years. Sir Thomas, a careful scholar, gives us a vivid glimpse of the law courts that swiftly sent men and women to the gallows, or branded them, or turned them free.

There were tiered benches for the traveling royal judges, for local justices of the peace “according to their estate and degree,” and for the staff and clerks. The prisoners, charged by a grand jury, were brought in “all chained to one another.”

Then the crier crieth, and commandeth silence. One of the judges briefly telleth the cause of their coming, and giveth a good lesson to the people. Then the prisoners are called for by name, and bidden to answer to their names.

The clerk read the charge against each defendant and asked for his plea. The ritual answer was “by God and country” – which meant trial by jury.

Jurors, “substantial yeomen, that dwell about the place, or at the least in the hundred, or near where the felony is supposed to be committed,” were called to fill the box. A defendant could object that a juror was biased, and might succeed in getting a challenge upheld. When a jury of twelve was ready the court called for witnesses.

By the time Smith wrote, juries relied on evidence presented to them. If no witness showed up, the accused was released. But “this doth seldom chance,” according to Sir Thomas, “except it be in small matters.”

The witnesses were sworn and the first one, usually the victim of the crime, was asked if he knew the prisoner. “He saith yea, the prisoner sometime saith nay.” Often there were arguments between the witness and the man or woman on the dock:

I know thee well enough, thou robbest me in such a place, thou beatest me, thou tookest my horse from me, and my purse, thou hadst then such a coat and such a man in thy company: the thief will say no, and so they stand a while in altercation, then he telleth all that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens which we call in our language evidence against the malefactor.

There were arguments, too, between jurors and defendants; unlike today’s passive listeners, jurors often jumped into the fray. When the evidence was in, the judge instructed the jury:

Good men (saith he), ye of the inquest, ye have heard what these men say against the prisoner, ye have also heard what the prisoner can say for himself, have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said.

Little else was said about the law; no elements of the offense were laid out, no burden of proof defined.

When the first case was submitted, the jury usually stayed in the box and listened to the evidence in the next case, and the next. At last, overtaxed, the jurors might ask for mercy: “My Lord, we pray you charge us with no more, it is enough for our memory.”

With several cases to decide, the jury would be sent out to deliberate. When it came back the foreman was asked to state the verdict on each defendant:

[W]hat say you? Is he guilty or not guilty? The foreman maketh answer in one word, guilty, or in two, not guilty: the one is deadly, the other acquiteth the prisoner.

A man who showed that he could read, who had not been convicted before, and who stood convicted of a “clergyable” offense (depending on the time and place, this might be simple theft, or poaching, or any felony other than murder or highway robbery), could demand the right of clergy [which meant punishment by branding instead of death]. The judge would say:

[T]hey have found you guilty, thou has nothing to say for thyself, the law is, thou shalt first return to the place from whence thou camest, from thence thou shalt go to the place of execution, there thou shalt hang till thou be dead.

A few days later the prisoner would be hanged before a crowd of onlookers. There was no appeal. As Sir Thomas wrote: “[N]either judge nor justice hath to do, or can reverse, alter or change that matter, if [the jury] say guilty.” Death was the punishment for all felonies, from theft to murder.

The records that have come down to us show that in the thirteenth and fourteenth centuries a high proportion of felony defendants – perhaps a majority – were acquitted. Some acquittals were no doubt due to failure of proof; medieval charging methods left plenty of room for accusations never borne out. Others must have resulted from jurors being bribed, of from their fearing revenge by a defendant’s allies and relatives. But it is clear that juries in many cases voted to acquit simply because they believed the defendant should not be put to death. So it was that the death penalty played an unexpected role in creating modern liberty – it strengthened the trial jury’s independence.

Faced with medieval laws that condemned all felons to the gallows, and that recognized no degrees of homicide, jurors who thought mercy was called for worked around the law by finding self-defense, or accident, or some other justification. Their common sense brought flexibility to harsh and rigid laws. They proved what today’s trial lawyers know: Juries do not just “find facts,” they decide whole cases. As law professor Thomas Green has written, the work of early juries:

involved an assessment of personal worth: Was the suspect the sort of person likely to have committed a certain act with malice? And almost inevitably trial jury verdicts came to be judgments about who ought to live and who ought to die, not merely determinations regarding who did what to whom and with what intent.

As long as jurors relied on their own knowledge of the facts, the judge was ill equipped to dispute the verdict; he did not know the evidence. But as witnesses were brought in, as trials began to turn on proof received in open court, a tension developed: the judge had heard the evidence too; what if he thought the jury was wrong?

We are accustomed to juries doing their work without fear. Whatever their verdict may have been, today’s jurors leave the courthouse immune to official reprisals and even to questions about how they reached their decision. (That some jurors choose to give press interviews or appear on talk shows is beside the point.) These rights of jurors did not fall from the sky; they were hard-won against a determined government.

Anyone who resents jury service as an inconvenience might ponder what it was like five hundred years ago. To be summoned was to be dragged into harm’s way. Jurors were expected to reach a verdict that was not just honest but true – failing which they could be punished. If the judge or another high personage disagreed with the outcome, a writ of attaint could issue. A new jury of twenty-four would be sworn to try the original jurors for perjury. If the second jury decided the first had reached a false verdict, then, as an observer wrote in 1470: “All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.”

Given this prospect, many a jury was loath to reach a verdict at all. Coercion was the bench’s frequent response. Jurors were routinely denied food and water while they deliberated. If they were obdurate the judge might have them hauled through the town in open carts until they came to their senses. If they returned a verdict the judge thought wrong, they might be harangued and sent back to reconsider – often with a reminder of the peril they faced. That peril grew to include sanctions faster and surer than the cumbersome writ of attaint. The judge, displeased by a verdict contrary to his advice, might fine the jurors on the spot, with imprisonment until they paid. Some jurors paid; others gave in to the pressure by changing their verdict.

As the Middle Ages gave way to the Renaissance, conviction rates went up – due in part, it appears, to judicial pressure tactics. But still jurors resisted, in many cases, when their sense of justice told them to.

The crisis came in the seventeenth century – in Restoration England, a time of celebration among the gentry, high comedy in the theaters, and persecution of religious minorities in the streets and courts. Charles II, called to the throne from exile after a chaotic civil war, was not the kind to hold a grudge. Nor did he take too seriously the demands of religion. He had developed, while on the Continent, a taste for entertainments and mistresses, which he continued to indulge while king. He agreed to share power with Parliament. Revenge would be kept to a minimum; only a dozen men held responsible for the beheading of Charles’s father, eleven years earlier, would be hanged. One of these public executions was described by Samuel Pepys, then a young clerk in the Royal Navy’s administrative office, in his diary entry for October 13, 1660:

I went out to Charing Cross to see Major-General Harrison hanged, drawn, and quartered – which was done there – he looking as cheerfully as any man could do in that condition. He was presently cut down and his head and his heart shown to the people, at which there was great shouts of joy.

Consistent with his friendly and easygoing nature, Charles II had little interest in persecuted religious dissenters; he was even suspected of Catholic sympathies. But the gentry-dominated Cavalier Parliament did not share the king’s laxity. The Church of England was restored as the realm’s official faith. In an age of endemic persecution, Parliament saw no reason to tolerate dissenters who had been on the Puritan side in the civil war, whose rejection of ecclesiastical authority threatened the establishment, and whose insistence on spiritual freedom might unwittingly open the door to the dreaded Catholics. It passed laws cracking down on nonconformists. In the Conventicle Act of 1664, Parliament made it a crime to conduct or attend any religious service that did not use the Anglican liturgy. The Quakers were a prime target of this legislation, and of the laws prohibiting unlawful assembly and breach of the peace.

By the time their trial began on September 1, 1670, William Penn and William Mead had been in jail for sixteen days. They were brought before the London Court of Sessions. Presiding were the lord mayor of the city, the recorder (the city’s chief criminal judge), and five aldermen. A jury of twelve was sworn to “well and truly try, and true deliverance make betwixt our Sovereign Lord the King, and the prisoners at the bar.”

Penn’s account of the trial, written shortly afterward, has come down to us; most of it is uncontradicted by the lord mayor, who also wrote a post-trial narrative.

The lord mayor began by trapping Penn and Mead on a point of Quaker belief. The Friends habitually kept on their wide-brimmed hats in the presence of officials; doffing their hats, they believed, would pay undue homage to earthly powers. Yet Penn and Mead came into court bareheaded.

“Sirrah, who bid you put off their hats?” said the lord mayor to a bailiff. “Put on their hats again.”

A court officer carried out this order and the two men were brought to the bar with their hats on.

“Do you not know that there is respect due to the court?” the recorder asked them.

“Yes,” said Penn.

“Why do you not pay it then?”

“I do so,” said Penn.

“Why do you not pull off your hat then?”

“Because I don not believe that to be any respect,” Penn answered.

The recorder pounced on this: “Well, the court sets forty marks apiece upon your heads as a fine for your contempt of the court.”

The evidence had not begun and already the defendants had been fined. In reply Penn showed his courage and wit: “I desire that it might be observed, that we came into the court with our hats off, and if they have been put on since, it was by order from the Bench; and therefore not we, but the Bench should be fined.”

The gallery could see already that this trial would provide high entertainment. The defendants were fearless and the lord mayor and recorder were going to bait them.

The crown called as witnesses three men who had seen Penn preaching in Gracechurch Street. Questioned by the bench, they said that because of crowd noise they had been unable to hear Penn’s words. It did not matter; far from denying that Penn had preached, the defendants gloried in what they had done. Penn said: “We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves to preach, pray, or worship the Eternal, Holy, Just God, that we declare to all the world, that we do believe it to be our indispensable duty.”

The defendants demanded to know upon what law the indictment was based. “Upon the common law,” answered the recorder. He refused to be more specific. If the law “be common,” said Penn, “it should not be so hard to produce.” Penn challenged the legality of the charge. “The question is not whether I am guilty of this indictment, but whether this indictment be legal.”

The court’s patience was quickly exhausted. “Take him away,” said the recorder. “My Lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do anything tonight.”

The lord mayor agreed. “Take him away, take him away,” he said. “Turn him into the bale-dock.”

As Penn was led away he called out to the jury: “Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury …”

The bailiffs confined Penn to the bale-dock, a corner of the room enclosed by partitions that did not reach the ceiling. Penn and the jury could no longer see each other.

William Mead, questioned next, told the jury he was a peaceable man and the indictment was riddled with lies. “the lord Coke tells us,” he said, “what makes a riot, a rout and an unlawful assembly.”

“You deserve to have your tongue cut out,” the Lord mayor answered Mead.

“Thou didst promise me,” said Mead, “I should have fair liberty to be heard; why may I not have the privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.”

“I look upon you to be an enemy of the laws of England,” said the recorder, “… nor are you worthy of such privilege, as others have.”

“The Lord is judge between me and thee in this matter,” said Mead. He too was hauled away to the bale-dock.

The recorder then instructed the jury:

You have heard what the indictment is, it is for preaching to the people, and drawing a tumultuous company after them, and Mr. Penn was speaking; if they [the Quakers] should not be disturbed, you see they will go on; there are three or four witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it: after this, you have heard by substantial witnesses what is said against them: Now we are upon the matter of fact, which you are to keep to, and observe, as what has been fully sworn, at your peril.

In other words, the jury should decide only whether Penn preached and Mead abetted him; the evidence showed these things had been done; and a verdict other than “guilty” could bring down punishment on the jurors’ heads – the verdict was “at your peril.”

At this point Penn climbed to the top of the bale-dock wall and called out: “I appeal to the jurors who are my judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners …”

“Pull that fellow down, pull him down,” said the recorder.

Mead then appeared at the top of the wall and said: “Are these according to the rights and privileges of Englishmen, that we should not be heard, but turned into the bale-dock, for making our defense …”

“Take them away into the Hole,” the recorder said.

The prisoners were taken downstairs to a place called “the stinking hole.”

After an hour and a half the jurors reported that they stood eight to four for conviction. One of the aldermen knew a juror, Edward Bushel, and he suspected a holdout. “Mr. Bushel,” said the alderman, “you have thrust yourself upon this jury … You deserve to be indicted more than any many that hath been brought to the bar to this day.”

Bushel protested: “No, Sir John, we were three-score before me, and I would willingly have got cut off, but could not.”

The lord mayor threatened Bushel with branding: “Sirrah, you are an impudent fellow. I will put a mark upon you.”

Sent out to deliberate again, the jury soon came back with a verdict. The prisoners were brought in and the clerk asked: “Was William Penn guilty or not guilty?”

“Guilty of speaking in Gracechurch Street,” said the foreman.

The recorder was incensed. “You had as good say nothing.”

The lord mayor demanded: “Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?”

On one side were the robed officials at their elevated bench, the bailiffs and guards, and behind them all the force and majesty of the state. On the other were twelve ordinary men in the jury box, powerless as individuals, unschooled in the law. At the lord mayor’s demand some of the jurors “seemed to buckle,” but others stood firm. The foreman said, “My Lord, this was all I had in commission.” The court told the jurors they would not be released until they had reached a verdict, and sent them out again.

Half an hour later the jury was back. The verdict on Penn was the same: “Guilty of speaking in Gracechurch Street.” The verdict on Mead was new: "Not guilty."

The lord mayor was enraged: "What, will you be led by such a silly fellow as Bushel?" The recorder joined in: "Gentlemen, you shall not be dismissed, till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire and tobacco; you shall not ... abuse the court, we will have a verdict by the help of God, or you shall starve for it."

Penn protested: "My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled."

"Stop that prating fellow's mouth, or put him out of the court," said the recorder.

Penn at this point showed that he was a born advocate, even though not a lawyer. The battle so far had consisted of the court officials insisting that Penn had preached to a tumult and the defendants arguing that the proceedings were unjust. Penn now managed to get a defense on the merits—on the facts of the case—before the jury for the first time. "[T]he jury cannot be so ignorant," he said, "as to think, that we met there, with a design to disturb the civil peace, since (first) we were by force of arms kept out of our lawful house, and met as near it in the street, as their soldiers would give us leave; and (secondly) because it was no new thing ... but what was usual and customary with us; 'tis very well known that we are a peaceable people, and cannot offer violence to any man."

He turned to the jury: "You are Englishmen, mind your privilege, give not away your right."

"Nor will we ever do it," came the answer from the jury box.

Out again went the jurors. They were kept "all night without meat, drink, fire or ... so much as a chamber pot though desired." At seven the next morning, Sunday, they repeated their verdict: "Guilty of speaking in Gracechurch Street."

"To an unlawful assembly?" demanded the lord mayor.

"No, my Lord," answered Edward Bushel.

You are a factious fellow," said the lord mayor. "I'll take a course with you ..."

Bushel answered calmly: "Sir Thomas, I have done according to my conscience."

"That conscience of yours would cut my throat," said the lord mayor. "... I will cut yours as soon as I can."

Twice more the jury went out and twice it came back, its verdict unchanged. "Have you no more wit," said the mayor, referring to Bushel, "than to be led by such a pitiful fellow? I will cut his nose."

"It is intolerable that my jury should be thus menaced," said Penn. "Is this according to the fundamental laws? Are not they my proper judges by the Great Charter of England?"

"My Lord," said the recorder, "You must take a course with that same fellow."

"Stop his mouth, gaoler, bring fetters, and stake him to the ground," demanded the lord mayor.

The recorder was now ready to throw out English liberty: "'Til now I never understood the reason of the policy and prudence of the Spaniards, in suffering the Inquisition among them," he said. "And certainly it will never be well with us, until something like unto the Spanish Inquisition be in England."

The jurors were weary after days of verbal violence. Ordered to go out again, they at first refused. "We have given our verdict," said the foreman, "and all agreed to it; and if we give another, it will be a force upon us to save our lives." But they decided to try again, and after another long night came back with a final verdict: William Penn, "Not Guilty." William Mead, "Not Guilty."

The presiding officials were furious. Each juror was asked to state his name and verdict separately—"which they unanimously did, in saying, not guilty, to the great satisfaction of the assembly."

The officials had to accept the verdict, but still had the power to punish the jurors for deciding the case wrongly. "God keep my life out of your hands," the recorder told the jury, "but for the Court fines you forty marks a man; and imprisonment till paid."

Penn, acquitted, stepped up to the bench and demanded his liberty. The court refused; the defendants were to be jailed for nonpayment of the contempt fines imposed at the start. What about the rights secured by Magna Carta? Penn demanded. "Take him away," said the recorder.

And all of them—Penn, Mead, and the twelve jurors—were locked up in Newgate Prison.

Penn by now was no stranger to prison life. He wrote to his father: "I desire thee not to be troubled at my present confinement; I could scare suffer on a better account, nor by a worse hand, and the will of God be done."

But the admiral, gravely ill, wanted to see his son; he paid the fines for Penn and Mead and secured their release.

Eight of the jurors soon grew tired of confinement and their fines were paid as well. But Edward Bushel and three others stood their ground. They retained counsel and sued in the Court of Common Pleas for their freedom and remission of their fines. Released on bail, they still pursued their case.

The decision in Bushel's Case came in 1671, a year after the trial of Penn and Mead. The jurors had been fined and imprisoned for refusing to reach a verdict "according to the direction of the court in matters of the law." Chief Justice Vaughan wrote a commonsense opinion that avoided any mention of the struggle between the government and the Quakers. Vaughan believed firmly that the law was the judge's province, not the jury's. But he saw also that to return the verdict demanded, the jurors would have had to accept the bench's version of the facts—and they, not the presiding officials, were empowered by the common law to find the facts. The judge, wrote Vaughan, "can never know what evidence the jury have"—a statement reflecting the ancient concept that jurors could consider what they knew from sources outside the trial. And even if all the proof were presented in open court, "the judge and jury might honestly differ in the result from the evidence, as well as two judges may, which often happens."

The modern view that all men are fallible, and that official truth therefore should not be imposed, is implied in Vaughan's opinion: "A man cannot see by another's eye, nor hear by another's ear, no more than can a man conclude or infer the thing to be resolved by another's understanding or reasoning."

Jurors sworn to find a true verdict according to the evidence should not be forced to violate their oaths by returning a verdict against the evidence as they understand it. It follows that no juror should be punished for reaching a verdict deemed wrong by the judge. The writ was granted.

Edward Bushel and his brave jurors had won—not just for themselves, but for all inheritors of Anglo-American law. Judges would harangue juries again, jurors at times would yield to official pressure, the jury system like any other would have its failures. Yet a great principle had been founded: the jurors, not the judge, decide the verdict; they must never be coerced; and they are immune to punishment over a verdict honestly reached, however wrong the judge might think it. Within the boundaries of the law, the people and not their officials would have the last word on guilt or innocence. There has been no greater victory for justice in the courts.

Reconciled at last to his son's Quakerism, Admiral Sir William Penn dropped the threat to change his will, and died soon after the 1670 trial.

Young William inherited the family estates and went on to a famous life. Rash and fearless in his early years, willing to spend months in vile prisons to secure liberty of conscience, Penn became over time a more cautious and prudent man, versed in the subtleties of politics. He even became, while keeping his faith, a friend of King Charles II and his brother James. Penn married twice and fathered fifteen children; wrote more than a hundred works, ranging from broadsheets to books, in support of his religion; and obtained from the king, in satisfaction of a royal debt owed to the admiral, a huge grant of land on the west bank of the Delaware River in America. There, in 1681, he founded a colony named Pennsylvania in honor of the admiral. It was to be a refuge for the persecuted, a community of brotherly love. Penn drew up a charter of government for this new land. It provided: "[A]ll trials shall be by twelve men, and as near as may be, peers or equals, and of the neighborhood, and men without just exception." All thirteen American colonies adopted trial by jury, but in Pennsylvania there was a special resonance: the great Quaker had not forgotten his trial by the jurors of London.

Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History.

Alarmed by Bushell, the judiciary sought, especially in seditious libel cases, to narrow the options available to jurors by tightly circumscribing the questions they were asked to decide. In 1688 these efforts were undermined in the Seven Bishops Case when another courageous London jury acquitted seven Anglican bishops of seditious libel for signing a letter that indicated their opposition to the reading of James II's second Declaration of Indulgences in their churches. The acquittal of the bishops has been viewed as the true beginning of the Glorious Revolution and had the effect of catapulting the jury to popularity "as a bulwark of liberty, [and] as a means of preventing oppression by the Crown." Treatises extolling the jury flooded the market and profoundly influenced eighteenth century American as well as English views about jury trial.

The jury came to operate as a defender of rights in both the criminal and civil settings. During the 1760s, a member of Parliament named John Wilkes engaged in a series of radical political actions, including publishing a broadsheet called the North Briton. In Number 45 of that paper, Wilkes appeared to accuse King George III of lying about ongoing peace negotiations with France. Although Wilkes was quickly arrested and charged with seditious libel, the case against him was dismissed on a technical point involving parliamentary privilege. Wilkes immediately commenced a damages action for false arrest, trespass, and theft of personal papers. The jury awarded him the extraordinary sum of £ 1000 as damages against a number of officials including Lord Halifax, the head of the government. This decision's inclusion of substantial punitive damages was remarkable because it is generally agreed to have been the first occasion on which an avowedly punitive award was permitted. The jury's power to award punitive damages in order to protect the rights of citizens in civil cases was emphasized by Lord Chief Justice Pratt, who declared that juries had authority

to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.

Wilkes's case and his ongoing conflicts with the British administration were a matter of keen interest in the American colonies. In the early 1770s, South Carolina went so far as to provide Wilkes monetary support for one of his political campaigns. From the era of the Glorious Revolution to the time of Wilkes's struggles, the jury was the very essence of liberty, a fundamentally democratic institution that served as a check on the tyrannical and oppressive power of government.

Juries and Liberty in the United States

(from Dwyer, In the Hands of the People)

Jurors in this country are told to use their own good sense in "finding the facts"—in deciding who is telling the truth, what evidence to believe, what happened on the day in question—but to take as gospel the judge's statement of the law. Typical is this jury instruction recommended by the Federal Judicial Center for use in criminal trials:

Members of the jury, it will be your duty to find from the evidence what the facts are. You and you alone will be the judges of the facts. You will then have to apply to those facts the law as the court will give it to you. You must follow that law whether you agree with it or not.

This tells the jurors to decide the case by a formula: facts (found by the jury) x law (laid down by the judge) = verdict. The outcome, says the usual instruction, "must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy." The jury is to accept the major premise from the judge, fill in the minor premise, and, like a computer, turn out a logical conclusion, the verdict.

This formula describes only a fraction of what goes on—jury work, far from being mechanical, is filled with discretion and value judgments—but it does channel the deliberations, and today it is stridently opposed by a protest movement. In the name of traditional American liberty, the Fully Informed Jury Association (FIJA) and similar organizations lobby for laws requiring that juries be told they can "nullify" the judge's instruction if they disagree with them—in other words, they can decide the law for themselves. Law-resisters across the political spectrum—advocates of unrestricted handgun-carrying, or marijuana legalization, or income tax abolition, or the right to blockade abortion clinics—support his view. Jurors are urged, outside the courtroom, to rise against judicial domination for the sake of higher justice.

In a California abortion protesters' trial (the defendants were charged with trespass and resisting arrest), a newspaper ad asked jurors not only to reject the judge's instructions but to lie about their intentions to do so: "[D]on't let the judge and prosecutor know that you know about this right." Word is gotten to jurors in some drug-dealer prosecutions that the penalties are so draconian they should acquit whether the defendants are guilty or not. The FIJA sends out "jury power information kits" telling potential jurors that "no juror's oath is enforceable." A recent letter to the editor in Seattle argued that the jury "can decline to convict, in the face of the facts, if it feels the prosecution is unwarranted, the accused has suffered enough, the likely penalty is too severe, or the law itself is wrong, misapplied, or vague."

Few citizens and no judges would agree that oaths are unenforceable or that jurors should lie about their intentions. But the protest movement is no crackpot aberration; it is, rather, the latest chapter in a struggle over the jury's role that goes back to our country's origins. It revives a question that has been with us, off and on, from the beginning: what division of courtroom power among the judge, the lawyers, and the jury will serve both justice and liberty?

In eighteenth-century America, the transplanted jury took root and flourished as never before. Lay citizens' common sense was exalted over the specialized knowledge of judges and lawyers; jury independence became an article of faith. The jury gained, and then held for more than a century, the right to decide what the law was, even if the judge thought differently. In criminal cases the jury's right to acquit on grounds of conscience became firm. Although these two threads of jury power are often tangled under the label "jury nullification," they are distinct and have met different fates. Law-defining by juries is no more, but the jury's right to acquit for conscience's sake lives on. And jury discretion—the ability to make the law make sense, to temper the law's iron logic with fairness, moderation, and mercy—endures and thrives. To understand how we reached this compromise—and to see where the current dispute over the jury's role may lead us—we should look first at a great case in which the jurors did very well but the crucial difference was made by one man, a trial lawyer.

William Cosby, installed by King George III as royal governor of New York, lost no time in proving himself arrogant, greedy, and corrupt. He profited shamelessly from his position, silenced any opposition, and removed from office a colonial chief justice who dared stand up to him. Under the law of the time, to criticize a public official, in any public way, was to commit the crime of seditious libel. The thought of jail—even less attractive in the eighteenth century than now—gave pause to most dissenters. A group of wealthy New Yorkers decided to resist Cosby, in a reasonably safe way, by sponsoring a newspaper. The printer's neck, more than their own, would be on the line. They could not do business with the colony's official printer, whose livelihood depended on the governor's patronage. So they turned to John Peter Zenger, a German immigrant who scratched out a living printing religious tracts and playing the organ in church. If the wealthy gentlemen put up the money, would Zenger publish a newspaper? He would. The New York Weekly Journal, edited and printed by Zenger, first appeared in March 1733.

The Journal, issue after issue, carried sharp, satirical articles on the Cosby regime. These were written not by Zenger but by the governor's leading opponents, who prudently refrained from signing their names. One article described a Cosby sycophant as a dog "lately strayed from his kennel with his mouth full of fulsome panegyrics." Another referred to the sheriff as a monkey "lately broke from his chain and run into the country." The Cosby crowd were called "petty-fogging knaves [who] deny us the rights of Englishmen."

As Cosby was repeatedly (and justly) accused of malfeasance in office, a growing demand for his ouster spread from a few discontented aristocrats to the public at large. Cosby fought back with a tactic used many times before and since: to silence his critics, he invoked criminal law. In November 1734 Cosby ordered that four issues of Zenger's newspaper be seized and burned by the common hangman. The hangman gained a small niche in history by refusing. The sheriff then had his servant carry out the order. Not content with burning the printed word, Cosby ordered an arrest—not of the Journal's prosperous backers, but of its impecunious printer. Zenger was charged with "presenting and publishing several seditious libels ... influencing [the people's] Minds with Contempt of His Majesty's Governor."

Zenger was clapped into jail and held on ₤400 bail. The amount was high enough to guarantee that he would stay locked up until trial.

Eight months went by. Zenger, from his pretrial dungeon, gave his wife directions for the Journal's ongoing publication. The paper kept appearing; only one issue was missed.

To hamstring the defense, the governor disbarred two lawyers who had agreed to represent Zenger and appointed a Cosby loyalist, John Chambers, to replace them. As the trial approached the case appeared hopeless. Zenger had unquestionably published the offending articles. Under standard procedure, the jury would be allowed to decide only the fact of publication, which was obvious; the judge would rule that the printed words amounted to seditious libel; and Zenger would be found guilty and sentenced.

But the governor had not reckoned with the difference a great lawyer can make. When the trial opened a stranger rose and introduced himself. He was Andrew Hamilton, age sixty, of Philadelphia, who had come north at the request of Zenger’s influential friends to defend the prisoner. Hamilton (no relation to Alexander) was the most famous advocate in the colonies. The appointed lawyer, Chambers, stepped aside, no doubt with a feeling of relief, and Hamilton took over the defense.

The trial record we have was written by an anti-Cosby lawyer who watched from the gallery, but there is no reason to doubt its essential accuracy. A jury of twelve was sworn. Hamilton immediately shifted the focus of the case: the prosecution, he said, need not bother proving that Zenger had published the articles; this was readily admitted, and the witnesses on hand to prove publication could go home.

The question for the jury, Hamilton went on, would be whether the two articles charged against Zenger were libelous. One article had argued that the “LIBERTIES and PROPERTIES [of New York’s people] are precarious, and that SLAVERY is like to be entailed on them and their posterity …” The other said, “WE SEE MEN’S DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, … TRIALS BY JURIES ARE TAKEN AWAY WHEN A GOVERNOR PLEASES … MEN OF KNOWN ESTATES DENIED THEIR VOTES CONTRARY TO THE RECEIVED PRACTICE …” If these words were true, Hamilton argued, they could not be a libel—and the jury should decide whether they were true or not.

No, said the judge, counsel is wrong on both points. Truth is no defense in a seditious libel case. In fact, “the greater appearance there is of truth in any malicious invective, so much the more provoking it is.” And whether the words were libelous—that is, criminal—would be determined by the judge; the jury would decide only whether the defendant published them. This, too, reflected the prevailing law.

These rulings by the court blocked the defense from presenting evidence that the articles were true. Hamilton had only one weapon left: argument to the jury. And he gave an argument so compelling that it still resounds today. To this great summation we owe the saying, “You’d better get a Philadelphia lawyer.”

“[I]t is to you,” Hamilton told the jury, “we must now appeal for witnesses to the truth of the facts we have offered and are denied the liberty to prove … You are citizens of New York; you are really what the law supposes you to be, honest and lawful men; and, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety.”

Wouldn’t a libel, Hamilton asked, depend on how the words were understood by those who heard or read them? He drew a favorable response from the bench:

JUDGE: That is certain. All words are libelous or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to breach of peace, or are seditious: There can be no doubt of it.

HAMILTON: I thank Your Honor; I am glad to find the Court of this opinion. Then it follows that those twelve men must understand the words in the information to be scandalous, that is to say false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise.

JUDGE: No, Mr. Hamilton; the jury may find that Zenger printed and published those papers, and leave it to the Court to judge whether they are libelous; you know this is very common; it is in the nature of a special verdict, where the jury leave the matter of the law to the Court.

HAMILTON: I know, may it please Your Honor, the jury may do so; but I do likewise know they may do otherwise. I know they have the right beyond all dispute to determine both the law and the fact, and where they do not doubt of the law, they ought to do so.

Hamilton, to the jury, went on:

[I]t is a right which all freemen claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow.

Hamilton reassured all present of his and Zegner’s loyalty to King George: “We

know His Majesty’s gracious intentions to His subjects; he desires no more than that his people in the plantations should be kept up to their duty and allegiance to the Crown of Great Britain, that peace may be preserved amongst them, and justice impartially administered.” But could any of this be served “by a governor’s setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other?”

These are excerpts from a long speech. Reading all of it, one can sense the momentum Hamilton was building. He warned the jury of seditious libel prosecutions, of the length to which “such prosecutions may be carried and how deeply the liberties of the people may be affected.” Too often were such cases “countenanced by the judges, who held their places at pleasure (a disagreeable tenure to any officer, but a dangerous one in the case of a judge).” He pointed out that one reading aloud from the Bible could be charged with seditious libel. He closed with an appeal to higher justice:

[T]he question before the Court ans you gentlemen of the jury is not of small nor private concern, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right – the liberty – both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.

The prosecutor, in an indignant reply, argued that the jury need only decide whether Zenger has published the articles (the judge has repeatedly said so); everything Hamilton had said was meant to sow confusion; the law required a verdict of guilty.

By this time the judge’s feelings were clearly hurt. He gave his instructions:

Gentlemen of the jury. The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of the judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed: The only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.

Hamilton, the consummate professional, was quick to make his peace with the judge: “I humbly beg Your Honor’s pardon: I am very much misapprehended, if you suppose what I said was so designed [to cause offense]. Sir, you know; I made an apology for the freedom I found myself under a necessity of using upon this occasion. I said there was nothing personal designed; it arose from the nature of our defense.”

The jury retired, deliberated briefly, and returned to the courtroom. Was the defendant guilty or nor guilty, asked the clerk, of printing and publishing the libels alleged? “Not guilty,” answered the foreman. “Upon which,” wrote the chronicler, “there were three huzzas in the hall which was crowded with people.” Zenger, the next day, was freed at last from Jail.

The Zenger case – the steadfastness of the ordinary man in the dock, his counsel’s eloquence, the jury’s brave verdict – quickly became celebrated throughout the colonies. Commercial printers, among them Benjamin Franklin, published the trial transcript. The effects on American law were immediate, profound, and lasting. The jury’s power to acquit a criminal defendant for reasons of conscience, even against the judge’s instructions, was made famous. Excessive bail, which had kept an innocent man in jail for months, was prohibited in federal cases when the Bill of Rights was written half a century later. Hamilton’s argument for the right to criticize government foretold the free speech guarantee of the First Amendment. The trial, as Gouverneur Morris, a framer of the Constitution, would say, was “the morning star of liberty” in this country. Seditious libel stayed on the books, but in the colonies it became virtually a dead letter. Hundreds of people were convicted of this crime in seventeenth and eighteenth century England, while in America, throughout the colonial period, there were only about half a dozen prosecutions and two convictions. Grand juries were reluctant to indict and trial juries, whatever the evidence, ordinarily would not convict. Had it been otherwise – had crown-appointed judges issued the verdicts, or juries been compliant – freedom to speak and write and protest in this country could have withered at birth.

Juries gained still more importance as friction over trade laws and taxes grew between the Americans and the crown. The Navigation Acts were designed by Parliament to channel all colonial trade through England, to the colonists’ disadvantage. These unpopular laws came to be seen as an insult not just to prosperity but to liberty, and colonial juries balked at enforcing htem. Ships impounded by the British under the Navigation Acts were regularly freed by jury verdicts that openly defied the law and the evidence. To bring a smuggler before a jury, complained a Massachusetts governor, “is only trying one illicit trader by his fellows, or at least by his well-wishers.” One Boston smuggler who benefited from jury defiance was John Hancock, whose flamboyant signature appears like an exclamation mark at the bottom of the Declaration of Independence.

Great Britain answered the upstart colonial juries by reducing their authority. Courts of vice-admiralty were established to handle maritime cases; in these no juries could be empanelled. The result was more outrage among the colonists.

The Enlightenment, the Age of Reason, the emerging concept of individual rights, the struggle to be rid of English domination after a century and a half of colonial life, and the belief that common men (common men of property, at least) were better equipped than any professional to decide matters of justice, combined to give the jury more power and prestige than it ever had enjoyed before. Free elections and trial by jury, wrote John Adams, were the people’s only security “against being ridden like horses, and fleeced like sheep, and worked like cattle, and fed and clothed like hogs and hounds.” By the time of the American Revolution the abridgment of jury trials had become a prime grievance, listed among George III’s other sins in the 1776 Declaration of Independence. After the war, and after the short-lived Articles of Confederation, the 1787 convention at Philadelphia wrote a jury guarantee for criminal cases into the Constitution (Article III). The 1791 Bill of Rights repeated the guarantee (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”) (Sixth Amendment) and added one for federal civil cases (Seventh Amendment).

The jury, then, entered our national life as an institutional hero. As the Supreme Court would say in the twentieth century, the right to a jury trial was “granted to criminal defendants in order to prevent oppression by the Government.” But there was more to it than that. Colonial Americans believed that twelve qualified citizens could do better justice, civil or criminal, than could one official wearing the black robe of a judge. In the early colonies the judges were not lawyers – there was no strong reason to defer to their judgment – and juries, before a clear separation of powers evolved, often did governmental work beyond deciding cases: they set tax rates, regulated prisons, oversaw road-buliding, and performed other functions later classified as legislative or administrative. The preference for jury decisions continued after the legal profession came into existence. “A clear head and an honest heart,” one New Hampshire judge told a jury, are worth “more than all the law of the lawyers.” This ethic coupled with an early shortage of lawyers and the felt need to resist oppression, produced the doctrine of jury nullification – the belief that juries had the right to determine the law as well as the facts, against the judge’s instructions if necessary. This was seen not as revolutionary but as basic to justice. John Adams called it “an absurdity to suppose that the law would oblige [jurors] to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience.”

What the jury had done in the Zenger case became accepted doctrine. For about a century, jurors were routinely told of their right to nullify, especially in criminal cases. The judge would instruct them on what the law provided, but would often add that if they disagreed they could determine the law by their own lights. Typical was an instruction given by Chief Justice John Jay, who, presiding at a trial in 1794, told the jurors they had the right “to determine the law as well as the fact in controversy.”

The heyday of jury nullification lasted into the late 1800s. Juries were told commonly in criminal cases, and at times in civil cases, that they could determine the law according to their own consciences rather than accept the judge’s version of it. Linked as it was to the American Revolution and the Bill of Rights, this tradition was seen as central to liberty; it was as widely accepted then as the opposite idea is now.

The opposing view – that law-defining must be the sole province of the judge – developed as the post-Civil War nation became industrialized, the urban working population swelled, the pace of life quickened, and commerce grew more complex. Greater certainty and clarity in the law were demanded. Lawyers, once scarce, were now widely available. Some have argued that there was a deliberate effort, sponsored by commercial interests, to shift power from juries to judges. What is certain is that the reductionist view of the jury as “fact-finder” gained currency. In this view, the jury was limited to deciding what had happened and then applying to its findings the law laid down by the judge. This diminished role for jurors appeared more and more frequently in instructions from the bench.

Robert Jones: The American Jury as Revolutionary Check

By virtue of its autonomy within the British legal system, the institution of the jury proved to be one of the most effective tools with which the colonists could oppose unpopular imperial policies and harass the British officials charged with carrying them out. ^[1] In 1735, for example, an American jury refused to convict the printer John Peter Zenger for publishing criticisms of the New York governor even though Zenger's actions clearly satisfied the existing legal definition of "seditious libel." ^[1] The jury in the Zenger case was instructed by the bench to render a special verdict solely on the issue of whether Zenger had, in fact, published the articles in question. ^[1] Zenger's lawyer, however, asked the jury to ignore the judge's instructions and to render a general verdict on the overarching issue of guilt and innocence. "I know [juries] have the right beyond all dispute to determine both the law and fact," Zenger's lawyer stated during the trial, "and where they do not doubt of the law, they ought to do so." ^[1] The jury followed the lawyer's advice rather than the judge's instructions and found Zenger innocent. ^[1]

...

British efforts to rein in the power of American juries were obstinately opposed and the resulting conflict intensified the mounting tensions between British authorities and American revolutionaries. ^[1] The Stamp Act Crisis of 1765-66, for example, was precipitated in significant part by the British authorities' threat to try American colonists in admiralty courts without the benefit of American juries. ^[1] In response both to royal regulations that interfered with the selection of jurors in Massachusetts and to various attempts to remove certain trials to Britain, the First Continental Congress resolved in 1774 that "the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage ... ." ^[1] Finally, among the grievances listed in the Declaration of Independence were the deprivation of jury trials and the transportation of Americans for trials overseas. ^[1]

Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY

The right to jury trial was prescribed in the royal charters, which governed each colony. In Puritan New England, where lawyers were scarce, experienced juries heard evidence and rendered verdicts without the burden of hearing from lawyers. Elsewhere, jury practice adhered to the English tradition. In all the colonies, the institution was seen as a bulwark against the intrusive tyranny of the King's judges. All of the eleven state constitutions ratified before 1787 retained charter provisions for the right to trial by jury in both criminal and civil cases, and the institution was retained as well in Rhode Island and Connecticut pursuant to their royal charters still in force. Some constitutions also provided for the grand jury as the source of criminal indictments. Although the new judges being selected in the former colonies did not represent the despised monarchy, they were persons of no marked special status, yet they were assigned the large political role of enforcing the state constitutions, interpreting democratic legislation, and shaping the common law. This was an extraordinary amount of power to confer on the fairly ordinary folks who were to be the judges.

The Constitution of the United States, as proposed in Philadelphia in 1787, included a provision for a right to jury trial in any criminal proceeding brought in any federal court established pursuant to Article III, but it was silent about the mode of trial in civil cases. The demand for such a right in civil cases was at the top of the agenda of the Anti-federalists, who could readily foresee that the federal judiciary would play a large and potentially anti-democratic role, a political role much larger than that traditionally played by the English judiciary. Their demand was granted in the Seventh Amendment. The Fifth Amendment also provided for indictment by grand jury in criminal cases prosecuted in federal court.

It is possible that the failure to include a guarantee of civil jury trial in the Constitution, as proposed by the Philadelphia Convention, was related to the enlarged concern of its members for English creditors whose rights had been assured by the peace treaty. It is generally assumed, and not without reason, that juries are prone to favor civil litigants who are members of the community whom they represent. Insofar as it was the purpose of the Constitution to give comfort to the foreign creditors with claims against local American debtors, who were at that moment agitated by economic deflation, it made sense to say nothing about the right to trial by jury in actions seeking to enforce contracts and mortgages. But farmers and debtors would not tolerate suppression of their right to invoke the judgments of their neighbors, so the federal Constitution was amended to assure that judgments rendered against them would rest on verdicts made by juries. It was especially important to impose the right to jury trial on the federal judiciary because they would be appointed "for good behavior" by a distant President of the United States. Indeed, at the Constitutional Convention there had been stout resistance to the creation of any federal court other than the Supreme Court, and a constitution was possible only if there were a compromise on that point, and so Congress was grudgingly authorized to create such judgeships.

It was important that the Seventh Amendment limited the right to jury trial to "suits at common law." This was taken to mean that there is no right to jury trial when a federal judge is exercising prerogatives inherited from the English Court of Chancery in "suits in Equity." So it remains the law in the federal courts and in most (but not all) states that there is no right to demand for jury trial in proceedings that would have been brought in Chancery, or in the other English courts in which juries did not sit. Most important among cases so classified in the federal courts are suits for injunctions. While the distinction might be seen to be sensible as applied to that class of cases, it is in other respects anachronistic because law and equity are seldom distinguished for any other purpose.

In criminal law, the jury had sometimes performed the function of nullifying oppressive laws imposed by the Crown. In democratic America, it was still thought necessary to frustrate corrupt or otherwise ill-motivated prosecutions. Because the jury is numerous and transitory, it is almost invulnerable to bribery or intimidation. As has been said, it is the one institution in government that has no ambition of its own. In these respects, the jury serves much the same purpose as the separation of powers among the three branches of government. Indeed it constitutes yet another separation of power, this within the judicial branch.

In its role in civil proceedings, the jury performs a comparable function by rendering the legislators who make the controlling law doubly accountable to the people, who first elect their lawmakers and are then called to administer the laws those representatives make. Law departing too far from the common understanding, from common sense, or from commonly shared moral values tends to be modified in its enforcement by civil juries to fit common habits of mind. This accountability was also applicable to judges making the common law.

Bill Nelson: Americanization of The Common Law, Preface to the 1994 Edition, xii

[E]xcept in cases determined on the pleadings prior to trial, they [cases] were remitted to juries for resolution. As I argued in Americanization of the Common Law, the result in mid-eighteenth-century Massachusetts, where few cases were ultimately resolved on the pleadings, was that juries routinely determined both law and fact, and the local communities from which jurors were drawn, rather than central political officials tied to the crown, were thereby left with ultimate power to determine the province’s substantive law. Additional research I have done since the publication of Americanization leads me further to hypothesize that juries with power to find law as well as fact were at the heart of the legal system of every one of the thirteen pre-Revolutionary American colonies, with the possible exception of New York.

Akhil Reed Amar: The Bill of Rights as a Constitution

The dominant strategy to keep agents of the central government under control was to use the populist and local institution of the jury.

a. Jurors as Populist Protectors
Guaranteed in no less than three amendments, juries were at the heart of the Bill of Rights. The Fifth safeguarded the role of the grand jury; the Sixth, the criminal petit jury; and the Seventh, the civil jury. In addition, Madison's unsuccessful Fourteenth Amendment would have explicitly guaranteed jury trial against state governments. What's more, trial by jury in all criminal cases had earlier been mandated by the clear words of Article III: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Indeed, the entire debate at the Philadelphia convention over whether to add a Bill of Rights was triggered when George Mason picked up on a casual comment from another delegate that "no provision was yet made for juries in civil cases." Between the close of the Philadelphia convention and the opening of the first Congress, five of the six state ratifying conventions that proposed amendments put forth two or more jury-related proposals. State constitutions further confirm the centrality of the jury. According to Leonard Levy's tally, the only right secured in all state constitutions penned between 1776 and 1787 was the right of jury trial in criminal cases.

Spanning both civil and criminal proceedings, the key role of the jury was to protect ordinary individuals against governmental overreaching. Jurors would be drawn from the community; like the militia they were ordinary Citizens, not permanent government officials on the government payroll. Just as the militia could check a paid professional standing army, so too the jury could thwart overreaching by powerful and ambitious government officials.

The grand jury, for example, could thwart any prosecution it deemed unfounded or malicious -- especially if it suspected that the executive was trying to use the powers of incumbency illegitimately to entrench itself in power by prosecuting its political critics. Note how the Fifth Amendment differs from the Fourth. In contrast to the Fourth's warrant clause, the decision whether sufficient cause exists to prosecute a felony can never under the Fifth be made solely by permanent government officials. Perhaps because of this, the Fifth nowhere explicitly requires that the indictment be supported by a given level of "probable cause" or that the indictment or presentment "particularly describ[e]" the factual offenses charged. Because the decision was to be made by a popular body, perhaps more flexibility was allowed, as within the Fourth Amendment itself.

Though not as proactive as its "grand" counterpart, the criminal petit jury could interpose itself on behalf of "the people's" rights by refusing to convict when the executive sought to trump up charges against its political critics. Once again, more than a permanent government official -- even an independent Article III judge -- was required to safeguard liberty. In England, judges had too often acquiesced in government tyranny, as the cases of Pyrnne and Wilkes (tried in absentia for seditious libel) graphically illustrated. Even in America, federal judges would be appointed by the central government, and might prove reluctant to rein in their former benefactors and current paymasters -- as illustrated by the brazenly partisan conduct of some Federalist judges during the Sedition Act controversy. Thus in those aspects of a criminal case that might involve a judge acting without a jury -- issuing arrest warrants, setting bail, and sentencing -- additional restrictions came into play via the Fourth Amendment warrant clause and the Eighth Amendment.

The petit jury's power would be especially great if it could lawfully refuse to convict a defendant charged under any federal law it deemed unconstitutional. As we shall see below, this right of "jury review" was advocated by many constitutional theorists in the late eighteenth and early nineteenth centuries, and was invoked by publishers accused of violating the Sedition Act.

As Tocqueville observed, the overall jury system was fundamentally populist and majoritarian: The institution of the jury . . . places the real direction of society in the hands of the governed, . . . and not in that of the government. . . . [It] invests the people, or that class of citizens, with the direction of society. . . . The jury system as it is understood in America appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal power, which contribute to the supremacy of the majority.

Jurors as Pupils
The jury was also to be informed by judges -- most obviously in the judges' charges. As Ralph Lerner has shown in his essay on "Republican Schoolmasters," judges often seized the occasion to educate the jurors about legal and political values, ranging well beyond the narrow issues before them. Like the church and the militia, the jury was in part an intermediate association designed to educate and socialize its members into virtuous thinking and conduct. Churches stressed religious and moral virtues; militias struck a proper balance between civilian and martial virtues; and juries instilled republican legal and political virtues.

No one understood all this better than Tocqueville, a keen student of American constitutional law and the leading theorist on the importance of intermediate associations:

The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. . . . It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. . . .

. . . It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. . . . I look upon [the jury] as one of the most efficacious means for the education of the people which society can employ.

Through the jury, Citizens would learn self-government by doing self-government. In Tocqueville's memorable phrase, "the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well." In 1789, the Anti-Federalist "Maryland Farmer" noted that although ordinary folk were "much degraded in the powers of the mind," jury service would uplift them. "Give them power and they will find understanding to use it."

So, too, Jefferson declared in 1789 that "it is necessary to introduce the people into every department of government. . . . Were I called upon to decide whether the people had best be omitted in the Legislative or Judicial department, I would say it is better to leave them out of the Legislative." Tocqueville later made much the same point:

The jury is, above all, a political [and not a mere judicial] institution . . . .

. . . The jury is that portion of the nation to which the execution of the laws is entrusted, as the legislature is that part of the nation which makes the laws; and in order that society may be governed in a fixed and uniform manner, the list of citizens qualified to serve on juries must increase and diminish with the list of electors.

Even more elaborate was the vision of the jury conjured up by John Taylor of Caroline, one of the early Republic's leading constitutional theorists. The jury, wrote Taylor, was the "lower judicial bench" in a bicameral judiciary. The judicial structure mirrored that of the legislature, with an upper house of greater stability and experience, and a lower house to represent popular sentiment more directly. In a similar vein, the "Maryland Farmer" defined the jury as "the democratic branch of the judiciary power -- more necessary than representatives in the legislature."

Jury Review
Consider first the issue of jury review. Let us begin by defining the question with precision. First, the issue is not the general one of jury nullification (can a jury disregard a law it thinks unjust?), but the narrower question of whether a jury can refuse to follow a law if and only if it deems that law unconstitutional. The concept is exactly analogous to the idea of judicial review, as traditionally understood. Judges may not ignore a law simply because they think it wrong, or unjust, or silly; but they may -- indeed must -- do so if they deem it unconstitutional. Second, the question is not whether a jury has the raw power of review by entering a general verdict and "getting away with it" -- i.e., escaping sanctions that would affect the Holmesian "bad man." Rather, the question is whether a jury has the legal right -- perhaps even the duty -- to refuse to follow a law it deems unconstitutional. As a practical matter, the issue often boils down to whether an attorney should be allowed to argue unconstitutionality, typically as a defense, to a jury.

This is exactly how the issue arose in perhaps the most famous of all Sedition Act prosecutions, United States v. Callender, tried in 1800 in a federal Circuit Court. When the publisher Callender's attorney, William Wirt, tried to argue the statute's unconstitutionality to the jury, he was cut off by presiding Circuit Justice Samuel Chase. Chase was later impeached for his overall handling of Callender, and for refusing to allow defense counsel in another criminal case to argue law to the jury. About half of the Senate voted to convict, several votes short of the two-thirds required by the Constitution. Wirt, by contrast, went on to become "one of the greatest Supreme Court advocates of all time and the man who holds the record for years of service as Attorney General."

Here is an edited transcript of the Chase-Wirt exchange:

Here CHASE, Circuit Justice -- Take your seat, sir, if you please. If I understand you rightly, you offer an argument to the petit jury, to convince them that the . . . Sedition Law[] is contrary to the constitution of the United States and, therefore, void. Now I tell you that this is irregular and inadmissible; it is not competent to the jury to decide on this point . . . .

. . . [W]e all know that juries have the right to decide the law, as well as the fact -- and the constitution is the supreme law of the land, which controls all laws which are repugnant to it.

Mr. Wirt. -- Since, then, the jury have a right to consider the law, and since the constitution is law, the conclusion is certainly syllogistic, that the jury have a right to consider the constitution.

CHASE, Circuit Justice. -- A non sequitur, sir.

Here Mr. Wirt sat down.

Chase went on to try to explain his ruling, but if anything, it is his arguments that border on non sequitur. At times he seemed to say that if the jury could consider constitutionality, it would necessarily follow that judges could not. But nothing in the idea of judicial review, or in the subsequent Marbury case, requires that only judges consider constitutionality. Surely, for example, President Jefferson was within his constitutional rights -- perhaps duties -- when he pardoned those convicted under the Sedition Act because he deemed the Act unconstitutional, notwithstanding that Article III Circuit Courts had held to the contrary in cases involving the very convicts in question. Judges took oaths to uphold the Constitution, as Marbury emphasized, but so did Presidents and jurors. In his celebrated 1791 lectures on law, James Wilson, who had been second (if that) only to Madison in his contributions to the Constitution, declared: "[W]hoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature - . . . . [W]hen a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge." Though Wilson did not single out juries by name, surely they were "called to act" when requested to send James Callender to jail. Theophilus Parsons, who would one day sit as Chief Justice of his state supreme court, was even more explicit in the Massachusetts ratifying convention:

But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.

Likewise, Marbury's sonorous claim that "it is emphatically the province and duty of the judicial department to say what the law is" does not necessarily support Chase. As Taylor's bicameral image illustrates, juries can be seen as part of the judicial department -- the lower (and if anything, presumptively more legitimate, because more popular) house. Just as both House and Senate had to agree the Sedition Bill was constitutional before it became law, why shouldn't both judge and jury be required to agree on its constitutionality before Callender was sent to jail? Nor was today's strict law/fact distinction between the roles of upper and lower judicial houses so clear in 1800. On the contrary, it was widely believed in late eighteenth-century America that the jury, when rendering a general verdict, could take upon itself the right to decide both law and fact. So said a unanimous Supreme Court in one of its earliest cases (decided before Callender), in language that resonates with the writings of some of the most eminent American lawyers of the age -- Jefferson, Adams, and Wilson, to mention just three. Indeed, Chase himself went out of his way to concede that juries were judges of law as well as of fact. Perhaps, however, this concession had to do with the pecularities of sedition law and its somewhat unusual procedures -- driven, it will be recalled, by the struggle between judge and jury. In any event, the line between constitutional law and constitutional fact is often hazy, as illustrated by the "reasonableness" issue in Fourth Amendment jurisprudence.

equality

Chase also suggested that decentralized jury review would undermine the idea of uniform national law -- one jury might acquit on constitutional grounds, another might not -- but the same thing can be said of Article III judicial review. Through its power to make exceptions to the Supreme Court's appellate jurisdiction, Congress can vest the last word in constitutional cases in lower federal courts who, like juries, might disagree among themselves. The Callender case was itself a remarkable example of this truth, for under the Judiciary Act of 1789 the Supreme Court lacked jurisdiction to hear this or any other criminal appeal from Circuit Courts. (Thus, the most important constitutional issue of the Federalist era never reached the Supreme Court.) Truly, the situation under the Judiciary Act of 1789 was even more decentralized than this. Trials in Circuit Court, such as Callender's, were presided over by two or even three judges. In the event these judges disagreed among themselves, whose instructions must the jury follow? If anything, the very structure of the judges' hierarchy implied a radical decentralization and nonuniformity wholly consistent with jury review.

But would not such a decentralized system lead to confusion and anarchy? Not in any single case, given the Constitution's rather clear procedural structure for aggregating substantive disagreement. In general, these rules work in a systematically anti-governmental, pro-populist way. In the event any major institutional actor at the federal level deems a federal law unconstitutional, that institution is typically able to make its constitutional objection stick -- at least in criminal law, where persons' lives, liberties, and property are most vulnerable. If either House or Senate deems a criminal bill unconstitutional, it cannot become law; and no person can be convicted in the absence of such a law, because there is no such thing as a "federal common law" of crimes. If the President deems the bill unconstitutional, he may veto or pardon (even before indictment). So too, if judges deem the law unconstitutional, they may order the defendant released and make their decision stick through the Great Writ of habeas corpus. By symmetric logic, juries too should be allowed to use their power to issue a general verdict for defendant to achieve the same result.

only three months after his approving comments about judges and judicial review, and a full decade before Callender, Jefferson argued that where they suspected self-dealing or other "agency" bias on the bench, ordinary Citizen jurors could constitute themselves as judges of both fact and law:

But we all know that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative. . . . It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges. . . .

Morton Horwitz: The Transformation of American Law - 1780-1860

One of the most important consequences of the increased instrumentalism of American law was the dramatic shift in the relationship between judge and jury that began to emerge at the end of the eighteenth century. Although colonial judges had developed various techniques for preventing juries from returning verdicts contrary to the law, there remained a strong conviction that juries were the ultimate judge of both law and facts. And since the problem of maintaining legal certainty before the Revolution was largely identified with preventing political arbitrariness, juries were rarely charged with contributing to the unpredictability or uncertainty of the legal system. But as the question of certainty began to be conceived of in more instrumental terms, the issue of control of juries took on a new significance. To allow juries to interpret questions of law, one judge declared in 1792, "would vest the interpretation and declaring of laws in bodies so constituted, without permanences, or previous means of information, and thus render laws, which ought to be an uniform rule of conduct, uncertain, fluctuating with every change of passion and opinion of jurors, and impossible to be known till pronounced." Where eighteenth century judges often submitted a case to the jury without any directions or with contrary instructions from several judges trying the case, nineteenth century courts became preoccupied with submitting clear directions to juries. Indeed, only when the judge-jury problem began to emerge at the end of the eighteenth century did Americans insist on published reports in order to relieve "the uncertainty and contradiction attending judicial decisions."

Not until the nineteenth century did judges regularly set aside jury verdicts as contrary to law. At the same time, courts began to treat certain questions as "matters of law" for the first time. For example, at the turn of the century it was typical for a court in even a complicated marine insurance case to suggest a rule for measuring damages while conceding that "unless the defendant could shew a better rule, the Jury might adopt that, or such other as would do justice." By 1812, however, in a decision that expressed the attitude on nineteenth century judges on the question of damages, Justice Story refused to allow a damage judgment on the ground that the jury took account of speculative factors that "would be in the highest degree unfavorable to the interests of the community" because commercial plans "would be involved in utter uncertainty." As part of this tendency, legislatures began to take the question of damages entirely away from juries in eminent domain proceedings on the ground that, as one canal company maintained, this mode of assessing damages was "injurious and expensive, and ... justice requires some amelioration" of the law's provisions. Finally, as part of the expanding notion of what constituted a "question of law" courts for the first time ordered new trials on the ground that a jury verdict was contrary to the weight of the evidence, despite the protest that "not one instance ... is to be met with" where courts had previously reevaluated a jury's assessment of conflicting testimony." ...

By 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier. While the words were often the same, the structure of thought had dramatically changed and with it the theory of law. Law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Nor was it regarded primarily as a body of rules designed to achieve justice only in the individual case. Instead, judges came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct. The emphasis on law as an instrument of policy encouraged innovation and allowed judges to formulate legal doctrine with the self-conscious goal of bringing about social change. And from this changed perspective, American law stood on the verge of what Daniel Boorstin has correctly called one of the great "creative outbursts of modern legal history."

Horowitz, The Transformation of American Law, 1780-1860, 28-30

It should have come as no surprise to Story that in most cases "merchants were not fond of juries." For one of the leading measures of the growing alliance between bench and bar on the one hand and commercial interests on the other is the swiftness with which the power of the jury is curtailed after 1790.

Three parallel procedural devices were used to restrict the scope of juries. First, during the last years of the eighteenth century American lawyers vastly expanded the "special case" or "case reserved," a device designed to submit points of law to the judges while avoiding the effective intervention of a jury. In England, Lord Mansfield had used a similar procedure to bring about an alliance between common lawyers and mercantile interests. ...

A second crucial procedural change -- the award of a new trial for verdicts "contrary to the weight of the evidence" -- triumphed with spectacular rapidity in some American courts at the turn of the century. The award of new trials for any reason had been regarded with profound suspicion by the revolutionary generation. "The practice of granting new trials," a Virginia judge noted in 1786, "was not a favourite with the courts of England" until the elevation to the bench of Lord Mansfield, "whose habit of controling juries does not accord with the free institutions of this country; and ought not to be adopted for slight causes." Yet, not only had the new trial become a standard weapon in the judicial arsenal by the first decade of the nineteenth century; it was also expanded to allow reversal of jury verdicts contrary to the weight of the evidence, despite the protest that "not one instance ... is to be met with" where courts had previously reevaluated a jury's assessment of conflicting testimony. ...

These two important restrictions on the power of juries were part of a third more fundamental procedural change that began to be asserted at the turn of the century. The view that even in civil cases "the jury [are] the proper judges not only of the fact but of the law that [is] necessarily involved' was widely held even by conservative judges at the end of the eighteenth century. ... During the first decade of the nineteenth century, however, the Bar rapidly promoted the view that there existed a sharp distinction between law and fact and a correspondingly clear separation of function between judge and jury. For example, until 1807 the practice of Connecticut judges was simply to submit both law and facts to the jury, without expressing any opinion or giving them any direction on how to find their verdict. In that year, the Supreme Court of Errors enacted a rule requiring the presiding trial judge, in charging the jury, to give his opinion on every point of law involved. This institutional change ripened quickly into an elaborate procedural system for control of juries. In Massachusetts, as well, the first decade of the nineteenth century marked the beginnings of the decline of the jury's power. Legislation in 1804 and 1805 eliminated the colonial system of trial before the entire Supreme Court bench together with one of its bizarre consequences: multiple and often conflicting instructions to the jury. Single judge trials were substituted, and in 1808 the Supreme Judicial Court required for the first time that trial judges instruct the jury on every material point at issue. Finally between 1805 and 1810, the high court began regularly to order new trials for errors in the proceeding below. By 1810, it was clear that the instructions of the court, originally advisory, had become mandatory and therefore juries no longer possessed the power to determine the law. Courts and litigants quickly perceived the transformation that had occurred and soon began to articulate a new principle -- that "point[s] of law ... should... be ... decided by the Court," while points of fact ought to be decided by the jury. [Quoting William Nelson, Americanization of the Common Law, The Impact of Legal Change of Massachusetts Society, 1760-1830 (1975)]

These procedural changes made possible a vast ideological transformation in the attitude of American jurists toward commercial law. The subjugation of juries was necessary not only to control particular verdicts but also to develop a uniform and predictable body of judge-made commercial rules. Id. at 141-143

Jeffrey Abramson: WE the Jury

AFTER THE REVOLUTION: THE STRUGGLE TO MAINTAIN JURY POWER

The law-finding rights of colonial juries survived the Revolution. This is somewhat surprising because the immediate political/oppositional need to rely on juries for local input into the law abated with independence. Certainly, from 1800 on, some federal judges already pressed the argument that the new republic no longer needed to use the jury system as a device for representing popular views on the law; representative legislatures now discharged this democratic function. Still, in most state jurisdictions and many federal cases, the criminal jury’s prerogative to decide questions of law lasted well into the nineteenth century. Not until 1895 did the Supreme Court definitively resolve the argument against the federal criminal jury’s authority.

The civil jury, generally speaking, lost its lawmaking rights much earlier, but even here cases go back and forth on the issue. In 1794 we still find Supreme Court Justice John Jay instructing a civil jury, while riding circuit, that “you have… a right to take upon yourselves to… determine the law as well as the fact in controversy.” Jay noted for the jury the “good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide.” But this amounted to no more than a presumption that the judges were correct about the law. Ultimately, “both objects [the law and the facts] are lawfully within your power of decision.”

Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790, specifically provided that “the jury shall be judges of law, as well as fact.” As to Pennsylvania practice in the early years of statehood, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures on 1790, the obligation of the jury to “pay much regard” to what the court said about the law. Still, when “a difference of sentiment takes place between the judges and jury, with regard to a point of law,… the jury must do their duty, and their whole duty; they must decide the law as well as the fact.” Wilson qualified his remarks only by noting that the doctrine was “peculiarly applicable to criminal cases.” As late as 1879, the Pennsylvania Supreme Court noted that “the power of the jury to judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights.”

In Massachusetts, an 1808 statute codified the petit jury’s right to “decide at their discretion, by a general verdict, both the fact and the law, involved in the issue.” At the Massachusetts Constitutional Convention of 1820, delegates found it unnecessary to include protection of the jury’s law-finding power in the Constitution because “that the jury have the right of deciding on the law as well as the fact, is a part of the common law of the country.” In 1825, the state’s highest court approved a charge to the jurors in a libel case that they need not follow the judge’s instructions if “they knew the law to be otherwise.”

In Vermont in 1849 the state’s highest court specifically reversed a trial judge for instructing the jury in a criminal case that it was bound to take the law from him. The court stressed that the “opinion of the legal profession in this state, from the earliest organization of the government… has been almost if not quite uniform in favor of the… right of the jury” to decide questions of law.

As noted, federal cases fall on both sides of the issue from early in the nineteenth century. In an 1817 piracy prosecution in Richmond before Chief Justice John Marshall sitting as trial judge, the justice expressed his opinion about the law but “conclude[d] his charge to the jury by telling them that, as it was a criminal case, they were not bound to accept his opinion, but had the right to decide both the law and the facts.” The defense counsel was even permitted to argue to the jury that “the opinion which the Chief Justice has just delivered is not, and I thank God for it, the law of this land.”

The strength of the tradition permitting juries to act as judges of the law was ironically demonstrated in 1808 when a federal judge tried to go against it. Samuel Dexter, a well-known Massachusetts lawyer, was defending his client on charges of violating the Embargo Act. Local resistance to the act was high and reminiscent of colonial attitudes toward the British revenue acts. To capitalize on local sentiments, Dexter sought to argue the act’s unconstitutionality to the jury. Judge Davis of the federal district court instructed the jury, as a matter of law, that the act was constitutional. When the defense “persisted in arguing the question of constitutionality to the jury, notwithstanding the remonstrances of the Bench,… Judge Davis… said to Mr. Dexter, that if he again attempted to raise that question to the jury, he should feel it his duty to commit him for contempt of Court.” On the following morning, Dexter arose and stated that he had

reflected very solemnly upon the occurrence of yesterday… No man cherished a higher respect for the legitimate authority of [the court]; but he entertained no less respect for his moral obligations to his client. He had arrived at the clear conviction that it was his duty to argue the constitutional question to the jury…, and that he should proceed to do so regardless of any consequence.

Dexter made his argument and secured an acquittal from the Massachusetts jury, “despite the very obvious fact that the defendant had violated the terms of the statute.”

JURIES AND THE SLAVE TRADE: THE TRIAL OF JOHN BATTISTE

In a famous trial in 1835, a federal judge succeeded in denying the jury’s right to construe or nullify the law. In United States v. Battiste, Supreme Court Justice Joseph Story went to great lengths in rejecting the entire notion that juries may decide questions of law. Significantly, the issue that brought debate over the jury’s control over the law out into the open was slavery. From Battiste on, the debate over slavery and the debate over jury control of the law would march together.

While riding circuit in the Massachusetts federal district, Justice Story presided over the prosecution of a sailor for illegally engaging in the slave trade. An 1820 Congressional law made it a crime for any crew member of an American ship to seize or forcibly bring aboard the ship any Negro or mulatto, not already bound for service, with the intent of making that person a slave. John Battiste was a mate on an American ship on a voyage along the African coast. The brig stopped at Portuguese colonies and, for a fee, transported shackled slaves held by the Portuguese from one colony to another. The Americans were not involved in the original seizure of the Negroes as slaves, but Battiste and other crew members did physically board them in fetters and transport them in this condition. The Americans had no financial interest in the slaves other than the pay they received for transporting them. Nor did they have any power or control over the future status of these slaves.

In his charge to the jury, Justice Story noted that it could convict Battiste only if it found that he had transported Negroes with the intent required by the statute – namely, the intent to make them slaves. The question arose as to what Congress meant by the words “to make a slave.” Here Story paused to confront the defense counsel’s argument that the jury had the final right to decide what the law meant.

Battiste’s lawyer – non other than Daniel Webster – had strenuously argued to the jury that the 1820 law could not possibly apply to the boarding of Negroes who were already slaves. For, unless the Negroes were previously free, Battiste could not be said to have intended to make them slaves.

Story rejected this interpretation of the law, claiming it would empty the 1820 law of any significance. Congress surely knew that slave traders customarily bought and boarded Negroes who had already been kidnapped and enslaved by others; they did not mean to exempt Americans who traded in slaves simply because the Negroes they bought, transported, and resold as slaves may have been slaves already. Instead, for Story the focus of the law was the intent of the accused as to the future statues of the Negroes brought on board. A defendant was guilty under the 1820 law if and only if he had the intent of making the Negroes slaves in the future. Where a defendant merely transported other person’s slaves for hire, with no control over or financial interest in the future status of those transported, then the law did not apply.

This disagreement over the law provoked Story to instruct the jurors that they had no “moral right to decide the law according to their own notions, or pleasure.” Instead, Story laid down the strict division of labor that soon would whittle down the jury’s power:

I hold it the most sacred constitutional right over every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.

Story emphasizes one particular reason why juries should not be trusted to decide legal questions. Such a system would threaten the accused’s right to be tried according to fixed and certain rules of law. The judge well knew that the popular imagination portrayed the jury as the accused’s best protection against government. But popular lore had it backwards, Story dared to say. Could sailors such as Battiste, accused of slave trading, really expect fair trials before Northern judges entitled to have the last say about what constituted slave trading? In the throes of antislavery sentiment, would jurors carefully consider the kind of intent that differentiated a slave trader from a mere sailor?

Story considered it far more likely that juries would interpret the law according to the latest shifts in public opinion, leaving defendants exposed to local prejudices and parochialism. If the jury were left free to announce what the law was, “the law itself would be most uncertain, from the different views, which different juries might take of it.” By contrast, the “truest shield against oppression and wrong” is the right of every citizen to be “tried by the law, and according to the law.” Judges are that true shield, applying the law in evenhanded fashion to popular and unpopular defendants alike.

Clearly, by 1835 Story was one federal judge ready to invert constitutional wisdom about the criminal jury. If democracy is fundamentally about participating in self-government, then the model of a criminal jury deciding questions of law fits democracy well. But if democracy is more keenly about receiving the equal protection of the laws, then, Story thought, judges ought to replace jurors in deciding legal questions consistently, uniformly, and predictably.

JURIES AND THE FUGITIVE SLAVE LAW: THE TRIAL OF FREDERICK JENKINS’S (a.k.a. SHADRACH) LIBERATORS

With the passage of the Fugitive Slave Law of 1850, slavery emerged again as the single greatest issue driving the debate about whether criminal jurors should be able to decide questions of law and to nullify the law in the name of higher justice. Among its other purposes, the Fugitive Slave Law was designed to avoid jury trials requiring a slaveholder to prove his property in an alleged runaway slave. Instead, the law provided for a summary process before federal magistrates, where the owner or agent could appear ex parte, present “satisfactory proof” of ownership, and receive a certificate permitting him to remove the slave from the free state. Testimony was not allowed at these proceedings from or on behalf of the slave.

Jury trials typically took place, however, for those arrested and charged with aiding fugitive slaves to escape. These were ordinary felony trials triggering the constitutional rights to jury trial. In these cases, Northern defense lawyers put the Fugitive Slave Law itself on trial.

One of the most famous appeals to a jury to nullify the Fugitive Slave Law occurred in the case of United States v. Morris in Boston. In 1850, a man known as Shadrach escaped from slavery in Norfolk, Virginia, and made his way to Boston. Under the name of Frederick Jenkins, he worked as a waiter at the Cornhill Coffee House until an agent of his former master discovered him in February 1851 and began summary proceedings before a federal magistrate to remove him back to Virginia and slavery. Jenkins’s fate seemed sealed until a large crowd burst into the courtroom and “invited Shadrach to accompany them… [They] hurried him through the square into Court Street, where he found the use of his feet, and they went off toward Cambridge,… the crowd driving along with them and cheering as they went.” Eventually, Jenkins made his way safely to Canada, but eight of his alleged rescuers, four blacks and four whites, were arrested and charged with violating the Fugitive Slave Law by aiding, abetting, and assisting the escape of a fugitive slave.

In May 1851, jury trial began for the first three defendants. The defense went beyond disputing evidence of the defendants’ participation in the escape to appealing to the jury to refuse enforcement of the hated Fugitive Slave Law. In his closing argument, the defense attorney

stated the proposition that, this being a criminal case, the jury were rightfully the judges of the law, as well as the fact; and if any of them conscientiously believed the act of 1850…, commonly called the “Fugitive Slave Act,” to be unconstitutional, they were bound by their oaths to disregard any direction to the contrary which the court might give them.

This was an extraordinary line of argument, openly inviting the jury to disregard the judge’s instructions, act as its own constitutional court, and declare a duly passed act of Congress null and void. The argument made clear what most Northern jurors sitting in fugitive slave cases must already have sensed: it would not be easy to follow both the law and one’s conscience in such cases. What should a dutiful juror do when justice points one way and the law points the other?

The defense council suggested a way out of the dilemma. Criminal juries should consult the higher law of the Constitution to judge whether the Fugitive Slave Act was a valid law at all. Criminal juries were not bound by the judge’s opinion on the validity or applicability of the law. They were judges of the law themselves – a function that required them to consider and interpret the Constitution as the highest law of the land.

The logic of the closing argument depended on making no distinction between ordinary legal questions and questions of constitutional law – the defense claimed the jury could answer both. Of course, if a jury could judge the constitutionality of a law, then a jury could nullify the law. The defense argument amounted to a bold claim that juries, like courts, had the power of judicial review.

But the closing argument seemed so extraordinary to the presiding judge, Benjamin Curtis of the Supreme Court riding circuit, that he stopped the defendants’ lawyer from finishing it. To Curtis, it was clear that the notion that juries could decide questions of law was now being put to extreme lengths. Despite precedents to the contrary, he therefore warned the jurors that they “have not the right to decide any question of law.” Rather, it was “their duty and their oath… to apply to the facts, as they may find them, the law given to them by the court.”

According to Curtis, the possibility that the jury would disagree with the law was no reason to ignore it; the law was the law. In a written opinion justifying his refusal to permit the defendants to argue the validity of the Fugitive Slave Law to the jury, the judge dwelt on the practical consequences that would flow from making “every jury, impaneled in every court of the United States… the rightful and final judge of the existence, construction, and effect of every law which may be material in the trial of any criminal case.” Federal law and the Constitution itself would become hydra-headed monsters, having as many different interpretations as there were juries. Worse, juries might apply the Fugitive Slave Law in some sections of the country and not in others, against some defendants but not all.

The judge posed a thorny question: Would juries be bound by a definitive Supreme Court ruling upholding the constitutionality of the Fugitive Slave Law, or would the defendants believe that juries might “revise and reverse” opinions of the Supreme Court every bit as much as they might disregard instructions of the trial judge? He concluded by recalling Story’s opinion in Battiste and challenging the silent premise of the defense argument: that the rights of defendants were better served when juries had the right to decide questions of law. To the contrary, jury control of the law was likely to leave defendants exposed to the shifting tides of public opinion:

To enforce popular laws is easy. But when an unpopular case is a just cause, when a law, unpopular in some locality, is to be enforced there, then comes the strain upon the administration of justice; and a few unprejudiced men would hesitate as to where that strain would be mostly firmly borne.

Notwithstanding the judge’s warning, the jury nullified the Fugitive Slave Law by acquitting all three defendants. Cases against the remaining five defendants were dropped, and no one was ever convicted of aiding in the escape of Frederick Jenkins.

THE MASSACHUSETTS CONSTITUTIONAL CONVENTION OF 1853

Two years after the Morris decision, delegates to the Massachusetts Constitutional Convention renewed the debate over the proper division of labor between jury and judge in criminal cases. The Fugitive Slave Law was a frequent topic at the convention, but the immediate occasion for debating the judge/jury boundary was the considerably less grave issue of liquor. In 1845, a defendant charged with violating state liquor license laws attempted to argue the invalidity of the law to the jury. The trial judge disallowed such argument, saying that the jury was bound to accept the judge’s statement that the law was valid. On appeal, in Commonwealth v. Porter, the state’s highest court agreed with the trial judge that the jury had no right to decide questions of law in disregard of judicial instructions. (Illogically, the court went on to find error in the judge’s refusal to grant counsel the customary privilege of arguing the law anyway and remanded for a new trial.)

At the convention, an amendment was proposed precisely to overrule that part of the Porter decision which stripped the jury of law-finding authority. The amendment read as follows:

In all trials for criminal offenses, the jury, after having received the instruction of the court shall have the right in their verdict of guilty or not guilty, to determine the law and the facts of the case.

Supporters of the amendment referred to two different, if overlapping, rights at stake. The first was the right of criminal juries to interpret and construe existing laws on their own. For example, the Fugitive Slave Law made it a crime to knowingly harbor runaway slaves. The amendment would restore to the jury its right to decide what the law meant by “harbor” and what state of mind must be shown. The second right secured by the amendment was the jury’s right to nullify laws, such as the Fugitive Slave Law or liquor legislation, outright.

As to the jury’s right to interpret the law, amendment supporters emphasized that criminal law rested on simple principles of common law and natural justice known to the average man:

The common law is the science of reason and justice; and a man who can tell what justice is, can tell what the common law is, in almost all cases, and therefore he is just as competent to decide the case as the judge.

Critics of the amendment responded that professionals alone were qualified to decide questions of law. Said delegate John Gray, “The common law is not always common sense,” as anyone knows who asks “exactly what [the law of] murder is?” Critics also stressed that jury decisions on legal matters would leave law without the certainty and predictability that ought to be valued most. One jury after another would resolve the same legal issue over and over again, back and forth, and no jury verdict would ever be a binding precedent on the next jury.

As to nullification, the term itself was not used at the convention. But jury advocates revived the argument, rejected in Morris, that the criminal jury’s right to decide questions of law necessarily included the right to decide whether the law before it was just and valid. Jurors were competent to make these judgments because they could, on their own, consult the standards of natural justice, most of which had been codified in the Constitution. Referring explicitly to the Fugitive Slave Law, delegate James Allen of Worcester argued:

Whenever the rights which we reserve to the people are invaded by any law,… a jury coming from the people may be allowed to come in and give their judgment, and rescue the people, in the name of their declared rights, from an unconstitutional law, or from an unconstitutional interpretation of that law.

Amendment supporters thought judges were too much themselves creatures of “power and authority,” too distant from the people, to be a safeguard against governmental oppression. Delegate Benjamin Butler thought he had “seen quite as many errors on the bench as in the jury-box.” He continued:

Which is the best tribunal to try [a] case? This man who sits upon the bench, and who… has nothing in common with the people; who has hardly seen a common man in twenty years… Is he the better man to try the case than they who have the same stake in community, with their wives, and children, and their fortunes, depending upon the integrity of the verdicts they shall render?

Opponents rejected this view of the jury as romantic hogwash. Jury decisions on the law were “more apt to reflect current prejudice” than natural justice. Unpopular but innocent defendants suffered the oppressive force of public opinion being substituted for the rule of law. By contrast, the judge was “of council for the accused,” said delegate Increase Sumner, extending the same rules of law evenhandedly to popular and unpopular defendants alike.

In the end, the convention included the amendment guaranteeing the criminal jury’s right “to determine the law and the facts of the case” in the new draft Constitution submitted for voter approval. In November 1853, voters rejected the entire new Constitution, for reasons that apparently had little to do with its jury trial provisions. But in 1855, the legislature passed a statute tracking the language of the defeated amendment and recognizing the criminal jury’s right to decide questions of law.

Once more, this apparent victory for the criminal jury’s historic prerogatives was snatched away the same year by an odd decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Anthes. The defendant was indicted for violating the state liquor law by being “a common seller of spirituous and intoxicating liquors.” The trial judge rules that the new statute permitted the jury to determine the proper meaning of the liquor law, but not its constitutionality. On appeal, Chief Justice Lemuel Shaw went even further. Despite the statute, Shaw found that the jury had no right to resolve and legal question whatsoever and that the trial judge had erred in permitting such questions to go to the jury. Shaw dismissed the statute as merely a “declaratory act, making no substantial change in law” as he had fixed it ten years earlier in his 1845 Porter decision. Shaw could only reach this conclusion by ignoring clear legislative history documenting the legislature’s intent to overturn the result in Porter. But Shaw noted that, if the statute were interpreted as permitting juries to decide questions of law in criminal cases, then it would be unconstitutional – a violation of the state constitutional right to be tried by standing laws before an impartial judge.

In Massachusetts, Anthes put an end to the judge/jury debate that had gone back and forth since the beginning of the century. By 1855, the romantic stories about John Hancock and jury resistance to tyrannical laws had become narratives unfit for instructing juries of their role vis-à-vis the law in a democracy.

Mark DeWolf Howe: Juries as Judges of Criminal Law

No common-law institution has more persistently served to dramatize the relationship of law and democracy than has trial by jury. It is, therefore, not surprising that American courts, during almost the whole of our history, should have been confronted with the task of making the English jury effectively responsive to the demands of American democracy. Theory and fact both made the task unavoidable. The theory, as usual, received expression by Jefferson when he wrote: "Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them." ^[1] If the theory of democracy thus demanded that the people, through the jury, should take an active part in the administration of law, American jurors were not slow to put the theory into practice. It was well-nigh impossible for courts to disregard the people's part in the execution of the laws when the foreman of the jury, toughened by his frontier scepticism, returned and announced to the judge that " the jury want to know whether that ar what you told us, when we first went out, was raly the law, or whether it was only jist your notion."

The subject of this paper is the judiciary's response to a specific demand of democratic theory - the demand that the jury in criminal cases should not only determine the facts but judge the law as well. During the nineteenth century this demand was reiterated in varying places and circumstances with an extraordinarily insistent vitality springing from a democratic conviction that the people themselves were competent to interpret their laws. We shall here be concerned less with the validity of the demand than with the nature of the response with which the judiciary met it. …

Adams opens his discussion of the matter by stating the accepted proposition that the jury possesses the power to determine a question of law regardless of the court's instruction. This power is exercised by returning a general verdict. But, Adams asked, if the judges should give instructions to the jury which run counter to the fundamental principles of the British constitution " is a juror obliged to give his verdict generally, according to this direction or even to the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court. . . . The English law obliges no man . . . to put his faith on the sleeve of any mere man." ^[1]

In i808 Samuel Dexter was defending a client charged with violation of the hated Embargo Law.^[1] Judge Davis, of the federal district court, had instructed the jury that the law was constitutional. Dexter " persisted in arguing the question of constitutionality to the jury, notwithstanding the remonstrances of the Bench. At length Judge Davis under some excitement, and after repeated admonitions, said to Mr. Dexter, that if he again attempted to raise that question to the jury, he should feel it his duty to commit him for contempt of Court. A solemn pause ensued, and all eyes were turned towards Mr. Dexter. With great calmness of voice and manner, he requested a postponement of the cause until the following morning. The judge assented. ... On the following morning . . . Mr. Dexter arose, and facing the Bench, commenced his remarks by stating that he had slept poorly and had passed a night of great anxiety. He had reflected very solemnly upon the occurrence of yesterday. ... No man cherished a higher respect for the legitimate authority of those tribunals before which he was called to practice his profession; but he entertained no less respect for his moral obligations to his client. ... He had arrived at the clear conviction that it was his duty to argue the constitutional question to the jury . . . , and that he should proceed to do so, regardless of any consequence." ^[1] Dexter made his argument and secured an acquittal despite the very obvious fact that the defendant had violated the terms of the statute.

In the 1840's, before the Massachusetts court had put its opinion in conclusive terms, political issues began deeply to affect the problem. To a large and articulate portion of the community the recent liquor licensing laws seemed clearly to violate constitutional principles.^[1] It was not unnatural that aggressive lawyers in a community which still remembered Samuel Dexter's alert and effective stand against legislative tyranny should seek, as he had done, to submit constitutional questions to the consideration of democratic jurors. The decision in Commonwealth v. Porter " brought the issues to the surface. The defendant was charged with having violated a statute forbidding innkeepers to sell intoxicating liquors without a license. His counsel had unsuccessfully attempted to argue to the jury that the statute was inapplicable and that it had in fact been repealed by a subsequent enactment. The supreme judicial court held that the trial judge had erred in not allowing counsel to argue the law to the jury, but expressly stated that it was a mistaken notion that the jury was to determine the law in criminal cases. The constitution of the commonwealth assures to its people the security of " standing laws," and " an impartial interpretation of the laws and administration of justice." It is, furthermore, " the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit." 100 To take the right of determining legal questions from the judges would be to violate these constitutional provisions, for no one jury would be bound by another's decision or by the decision of any court. And then Chief Justice Shaw significantly added that "it is the more necessary to adhere to this rule " because it is "the duty of the judicial department, on proper occasions, to decide . . . whether an act . . . is constitutional and valid." Considering the threatening claims which democratic lawyers were making, it is, perhaps, not surprising that the court should thus anticipate the danger which so obviously lay ahead. The really extraordinary thing is that the court nevertheless left with counsel the right to argue such questions to the jury.

In 1847 a case raising constitutional questions as to the Massachusetts liquor laws came before the supreme judicial court.^[1] At the defendant's request the judge below had asked the jurors whether they had expressed any opinion or formed any bias upon the constitutional validity of the law. One juror stated that he had formed and expressed the opinion that the law was constitutional. The defendant thereupon contended that the juror was disqualified by this expression of an opinion upon one of the essential elements of the case. The judge had not allowed the objection, and, furthermore, refused to allow defendant's counsel to ask the juror whether, despite his opinion, he could fairly consider an argument that the statute was unconstitutional. The action of the trial court was sustained; the subjection of the jury to the court in matters of law expounded.

The Porter and Abbott cases in touching thus directly upon political questions not unnaturally called forth political response. In the state constitutional convention of 1853 a minority of the Committee on the Bill of Rights proposed an amendment to the constitution providing that " in all trials for criminal offenses, the jury, after having received the instructions of the court, shall have the right in their verdict of guilty or not guilty, to determine the law and the facts of the case." ^[1] From the extensive debates concerning the proposed amendment some impression of contemporary opinion as to the nature, extent and desirability of the jury's asserted right can be obtained. After vigorous argument by the proponents and opponents of the amendment, Charles P. Huntington finally suggested that the proposal should be amended so as expressly to reserve to the court the duty of superintending the trial and deciding upon the admission or rejection of evidence.'04 Benjamin F. Hallett suggested an additional provision giving the court a right to grant a new trial after a conviction.'05 The original proposal, with these amendments, substantially as they had been proposed, was then adopted by the convention. The labors of the convention were, however, in vain. The new constitution, together with all proposed amendments, was rejected by the people, primarily because of the public's disapproval of the basic alteration - that of having an elective rather than an appointive judiciary. But the advocates of the reform did not abandon their efforts. In I855 the legislature passed a statute which, in almost the precise words of the recently suggested constitutional amendment, provided that " in all trials for criminal offenses, it shall be the duty of the jury . . . to decide at their discretion, by a general verdict, both the fact and the law involved in the issue .. . "

In the same year, one Anthes was indicted for being a common seller of spirituous and intoxicating liquors. The court instructed the jury that under the recent statute they did have the right to determine the proper meaning of the liquor law, but not the question of constitutionality. In an opinion which Chief Justice Shaw's biographer describes as "perhaps the ablest historical and argumentative treatise ever written on the respective provinces of court and jury," it was held that the court had erred in permitting any question of law to go to the jury for decision. The Chief Justice found that " this was a declaratory act, making no substantial change in the law ... .". ^[1] The insistence of two dissenting justices that the background of the statute indicated that the legislature had intended to change the law enunciated in the Porter case apparently seemed to the Chief Justice to be without merit or importance. Admitting the statute to be ambiguous, he looked only to the terms of the act itself to determine the intention of the legislature. Moreover, " a statute, which should in explicit terms provide that a jury should have such a power as that claimed . . . would be repugnant to the Constitution of the Commonwealth." 1^[1]

Re-empowering Juries

Our founders prized liberty above all. They understood the threat government posed to liberty. Speaking for “We the People”, giving voice to the spirit of republican participatory democracy, they placed their hope and faith for the preservation of liberty in the jury. No citizen’s liberty could be taken by the state without the unanimous consent of a jury of peers. The jury was the ultimate judge of the justice of taking a citizen's liberty, judge of the whole case, law and fact. "Law" was natural law, residing in the conscience of the people.

“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.”

— Thomas Jefferson[1]

“Jurors have not only a right, but a duty … to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

— John Adams[1]

“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.” [1]

— Theophilus Parsons[1]

Federalist 83 captures the degree of consensus among the framers on the importance of a trial by jury: friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this . . . the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.

— Alexander Hamilton, James Madison, & John Jay, The Federalist Papers

|-

“No idea was more central to our Bill of Rights — indeed, to America's distinctive regime of government of the people, by the people, and for the people — than the idea of the jury. Yet no idea today has suffered more abuse — from benign neglect to malignant hostility to cynical manipulation and strategic perversion — than the idea of the jury.”

— Akhil Amar[1]

The eighteenth century brought a transformation in conception of "law" to suit the demands for legal certainty thought needed for commercial development. From a conception of law as natural and residing in the conscience of men the leaders of a developing legal profession shifted the meaning of "law" to be the articulated will of the state. Judges claimed for themselves (without constitutional amendment) the ultimate authority to say what this "law" is, and in doing so reduced the jury's function from judging the whole case, including the natural law issue of whether a defendant deserved to be deemed criminal and punished, to the circumscribed function of mere fact-finder as to whether the defendant had violated the letter of the state's law.

Judges thus usurped the jury's constitutional power to judge the justice of the law's application to the specific case. Joseph Story, scholar, professor at Harvard Law School, author of Story’s Commentaries, Justice of the Supreme Court, initiated the line of thought that developed into “jury nullification.” In an 1835 case, sitting as trial judge riding circuit, and in which Daniel Webster was defense counsel, Story and Webster differed over the proper interpretation of the applicable statute. Both argued their interpretations to the jury, but Story then instructed the jury that his articulation of law had moral primacy. His opinion asserts:

“[A jury] verdict, when general, is necessarily compounded of law and of fact; and includes both. In each [case] they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. ... It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.”

— United States v. Baptiste, 24 F. Cas. 1042 (D. Mass. 1835) (Note: Webster won.)

Lemuel Shaw, Chief Judge of the Commonwealth of Massachusetts, carried the assertion of judicial primacy on law into action in Commonwealth v. Anthes (1855). In that crucial case, the issue was whether defense counsel could argue to a jury that the statute allegedly violated by his client was unconstitutional. Justice Shaw ruled that it is the province of the judge, not the jury, to say whether a statute is constitutional.

Shaw framed this holding, altogether reasonable if confined to matters of constitutionality and other matters of legality, in the dichotomy between “law and fact.” Having asserted judicial primacy over “law”, Shaw left the jury only primacy over “fact”. He limited the jury’s function to determining whether a statutory violation has been proved. He instituted judicial instructions to jurors that jurors are bound to follow and apply the law as given to them by the judge, and he authorized judges to use the powers of contempt to prevent defense counsel from arguing to the contrary. All subsequent cases in Massachusetts and elsewhere soon followed suit.^[1]

But there was more than legalism to the natural law that the American jury was constitutionally designed to apply. There is justice, grounded in the hearts of the jurors as the collective conscience of the people, central to the criminal jury's function of judging the whole case. One hundred and fifty years of jury nullification doctrine generated by judges citing themselves fails to distinguish between civil and criminal or legalism and justice.

Lawyers for defendants in criminal cases should be re-entitled to argue to juries the justice of their client's case. Juries should be re-entitled to hear a defendant’s argument that he does not deserve criminal punishment. Court instruction to the jury that it must convict if it finds a violation of the state's statute should be recognized as unconstitutionally at odds the the original understanding of the jury's justice function and the unquestioned rule that a judge may not direct a verdict of guilty in a jury case.

A first step in re-empowering juries, and perhaps the only step that need be taken to re-establish the American jury as a bulwark of liberty, would be to re-establish the jury's justice function without undermining either judicial control of civil juries on allowing criminal jurors to regard themselves as the ultimate judge of the constitutionality of the state's law. To meet this challenge would require judges to instruct juries in a manner that harmonizes judicial oversight of legality with jury understanding and responsibility for liberty and justice.

Commonwealth v. Hebert

379 Mass. 752 (1980)

WILKINS. J.

In this case we conclude that a poll of the jury showed that the jurors did not agree unanimously on a verdict of the defendant's guilt and that, following a dialogue between the judge and an unconvinced juror, a mistrial should have been declared.

We summarize the evidence briefly. On April 1, 1975, the first day of the effectiveness of the mandatory one-year sentence for the carrying of a firearm without a firearm identification card, a policeman apprehended the defendant who was carrying an unloaded, but operational, rifle on a dirt road leading into woods in a rural area of the city of North Adams. The rifle belonged to the defendant's father. The defendant, who lived with his parents, was using the rifle with his father's permission. The defendant did not know what a firearms identification card was, and he did not have one. His father had the necessary permit, but he had not informed his son of the need to obtain a firearms identification card.

The case was tried before a judge and a jury of six in the District Court of Central Berkshire. After the jury had deliberated for approximately forty minutes, the jury sent a statement to the judge: "One juror out of their [sic] own conscience cannot give a verdict of guilty, knowing the defendant to be in possession of the firearm without an F.I.D. card based on the premise that the defendant might not have known the date to be April 1st."

The judge told the jury that the defendant's lack of knowledge that the effective date of the gun control law was April 1 was of no consequence. The defendant requested a mistrial and argued that the judge's further instructions were coercive. The judge denied the motion. The jurors resumed deliberation.

About twenty minutes later, the jury sent another message to the judge which read: "One juror wants to be disqualified because of the date involved. The boy should not be put in jail or have such on his record. It is a matter of conscience." The judge told the jury that the matter of sentencing was not the jury's responsibility. He gave a further charge derived from the modified Tuey 2 charge approved in Commonwealth v. Rodriquez, 364 Mass. 87, 98-101 (1973).

Ten minutes later the jury returned to announce a verdict of guilty. The judge authorized a polling of the jury. One juror answered that her verdict was qualified, because she felt in good conscience that if the defendant did not know he needed a firearms identification card on April 1, 1975, she could not find him guilty. The judge then engaged in a three minute dialogue with the juror. He explained that, in his opinion, the evidence was clear that the defendant had possession of a rifle on April 1, 1975, and did not have a firearms identification card. The juror said she was concerned about the fortuitous nature of the incident because on the preceding day the defendant's failure to have a firearms identification card would not have been a crime. In response to questioning by the judge, she admitted that she was satisfied beyond a reasonable doubt that the defendant had a rifle on April 1, 1975, and that he did not have an identification card. The judge commented that he could see no problem with the case. The juror again expressed her concern with the defendant's lack of knowledge of the effective date of the statute. The judge disregarded the juror's comments and excused the jury.

The defendant objected to the judge's dialogue and renewed his motion for a mistrial. He argued that it was improper to review the evidence in a conversation with a juror and that if a juror's verdict is qualified, the judge must either direct the jury to deliberate further or discharge the jury.

A guilty verdict was entered, and the defendant was sentenced to a mandatory one-year term in the Berkshire County house of correction. The trial judge stayed execution of the sentence pending this court's decision on the defendant's bill of exceptions.

It is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous. See Brunson v. Commonwealth, 369 Mass. 106, 120 (1975). Although the decision to poll a jury is discretionary with the trial judge ( Commonwealth v. Valliere, 366 Mass. 479, 497 [1974]; Commonwealth v. Caine, 366 Mass. 366, 375 [1974]), once the decision to poll is made, it must appear that the verdict is unanimous. A judge has no authority to direct a verdict when there are issues of fact to be resolved. See Commonwealth v. Moniz, 336 Mass. 178, 180 (1957). He may, however, question a juror in a limited way in order to understand whether a juror's answers show that the juror agrees with the verdict as announced. See Commonwealth v. Fleming, 360 Mass. 404, 408 (1971); Commonwealth v. Rego, 360 Mass. 385, 393 (1971). In general, however, our law does not permit inquiry into "the subjective mental processes of jurors, such as the reasons for their decisions." Commonwealth v. Fidler, 377 Mass. 192, 198 (1979). Moreover, any questioning of a juror must be neutral and not coercive or otherwise calculated to affect the juror's judgment. Amos v. United States, 496 F.2d 1269, 1272-1273 (8th Cir.), cert. denied, 419 U.S. 896 (1974). United States v. Sexton, 456 F.2d 961, 966-967 (5th Cir. 1972). United States v. Brooks, 420 F.2d 1350, 1354 (D.C. Cir. 1969).

In our view, the judge's comments and questions in this case exceeded proper limits. There is a distinction between judicial action taken to obtain clarity and judicial action that is likely to coerce. Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969). The judge's statements that, in his view, the evidence was clear and that he could see no problem with the case are themselves improper. See Commonwealth v. Sneed, 376 Mass. 867, 870 (1978). The inquiry whether the juror agreed that certain facts were proved beyond a reasonable doubt was likely to be coercive because it intruded into the jury's function. See United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Although it is improper for a juror to disregard the law as given by the judge, it remains within the power of a juror to vote his or her conscience. See Commonwealth v. Dickerson, 372 Mass. 783, 797 (1977), and id. at 811-812 (Quirico, J., concurring); Commonwealth v. Mutina, 366 Mass. 810, 819-820 (1975); Horning v. District of Columbia, 254 U.S. 135, 138 (1920) ("[T]he jury has the power to bring in a verdict in the teeth of both the law and facts") (Holmes, J.); United States v. Dougherty, 473 F.2d 1113, 1132-1133 (D.C. Cir. 1972). See generally, Note, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U. L. Rev. 968 (1978). In this case to the very end, the unconvinced juror felt in good conscience that she could not find the defendant guilty. In such a case, there was no unanimous verdict. The judge properly might have ordered further jury deliberations (prior to the dialogue with the juror) or he might have declared a mistrial. See Thames v. Commonwealth, 365 Mass. 477, 480 (1974). He did neither, and thus the defendant's motion for a mistrial made after the dialogue with the juror should have been allowed.

United States v. Dougherty

473 F.2d 1113 (1972)

LEVENTHAL, Circuit Judge: Seven of the so-called "D.C. Nine" bring this joint appeal from convictions arising out of their unconsented entry into the Washington offices of the Dow Chemical Company, and their destruction of certain property therein. Appellants, 1 along with two other defendants who subsequently entered pleas of nolo contendere, 2 were tried before District Judge John H. Pratt and a jury on a three count indictment alleging, as to each defendant, one count of second degree burglary, 22 D.C. Code § 1801(b), and two counts of malicious destruction of property valued in excess of $100, 22 D.C. Code § 403. On February 11, 1970, after a six-day trial, the seven were each convicted of two counts of malicious destruction. The jury acquitted on the burglary charges but convicted on the lesser-included offense of unlawful entry.

…

The Issue of Jury Nullification
Our reference to the "intensity" factor underlying the pro se right should not be understood as embracing the principle of "nullification" proffered by appellants. They say that the jury has a well-recognized prerogative to disregard the instructions of the court even as to matters of law, and that they accordingly have the legal right that the jury be informed of its power. We turn to this matter in order to define the nature of the new trial permitted by our mandate.

There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case, 124 Eng.Rep. 1006 (C.P. 1670) discharged the jurors who had acquitted William Penn of unlawful assembly. Juries in civil cases became subject to the control of ordering a new trial; no comparable control evolved for acquittals in criminal cases.

The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law. The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant's shooting of his wife's paramour, or purchase during Prohibition of alcoholic beverages. ^[1]

Even the notable Dean Pound commented in 1910 on positive aspects of "such jury lawlessness." These observations of history and philosophy are underscored and illuminated, in terms of the current place of the jury in the American system of justice, by the empirical information and critical insights and analyses blended so felicitously in H. Kalven and H. Zeisel, The American Jury. ^[1]

Reflective opinions upholding the necessity for the jury as a protection against arbitrary action, such as prosecutorial abuse of power, stress fundamental features like the jury "common sense judgment" and assurance of "community participation in the determination of guilt or innocence." ^[1]

Human frailty being what it is, a prosecutor disposed by unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates in fact, so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.

The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years coexisted with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources -- John Adams; Alexander Hamilton; prominent judges -- that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court. ^[1]

The rulings did not run all one way, but rather precipitated "a number of classic exchanges on the freedom and obligations of the criminal jury."^[1]

This was, indeed, one of the points of clash between the contending forces staking out the direction of the government of the newly established Republic, a direction resolved in political terms by reforming but sustaining the status of the courts, without radical change. ^[1]

As the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.

The crucial legal ruling came in United States v. Battiste, 2 Sum. 240, 24 F. Cas. 1042 (C.C.D.Mass. 1835). Justice Story's strong opinion supported the conception that the jury's function lay in accepting the law given to it by the court and applying that law to the facts. This considered ruling of an influential jurist won increasing acceptance in the nation. The youthful passion for independence accommodated itself to the reality that the former rebels were now in control of their own destiny, that the practical needs of stability and sound growth outweighed the abstraction of centrifugal philosophy, and that the judges in the courts, were not the colonial appointees projecting royalist patronage and influence but were themselves part and parcel of the nation's intellectual mainstream, subject to the checks of the common law tradition and professional opinion, and capable, in Roscoe Pound's words, of providing "true judicial justice" standing in contrast with the colonial experience.^[1]

The tide was turned by Battiste, but there were cross-currents. At mid-century the country was still influenced by the precepts of Jacksonian democracy, which spurred demands for direct selection of judges by the people through elections, and distrust of the judge-made common law which enhanced the movement for codification reform. But by the end of the century, even the most prominent state landmarks had been toppled;^[1] and the Supreme Court settled the matter for the Federal courts in Sparf v. United States, 156 U.S. 51, 102, 15 S. Ct. 273, 39 L. Ed. 343 (1895) after exhaustive review in both majority and dissenting opinions. The jury's role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed. The old rule survives today only as a singular relic.^[1]

The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that "the jury has the power to bring in a verdict in the teeth of both law and facts,"^[1] or as Judge Learned Hand said: "We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."^[1]

Since the jury's prerogative of lenity, again in Learned Hand's words introduces a "slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," it is only just, say appellants, that the jurors be so told. It is unjust to withhold information on the jury power of "nullification," since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience, to defer to an assumption of necessity that is contrary to reality. This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S. Ct. 908, 25 L. Ed. 2d 91 (1970):

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.

The statement that avowal of the jury's prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of the social scientist. But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid. In contrast, the advocates of jury "nullification" apparently assume that the articulation of the jury's power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some "tolerance" is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure?

Our jury system is a resultant of many vectors, some explicit, and some rooted in tradition, continuity and general understanding without express formulation. A constitution may be meaningful though it is unwritten, as the British have proved for 900 years.

The jury system has worked out reasonably well overall, providing "play in the joints" that imparts flexibility and avoid undue rigidity. An equilibrium has evolved -- an often marvelous balance -- with the jury acting as a "safety valve" for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law. We have taken due and wry note that those whose writings acclaim and invoke Roscoe Pound's 1910 recognition of the value of the jury as safety valve, omit mention of the fact that in the same article he referred to "the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state" as one of the conditions that "too often result in a legal paralysis of legal administration. His writings of that period are expressly concerned with the evils of the "extravagant powers" of juries, ," ^[1] and that in 1931 he joined the other distinguished members of the Wickersham Commission in this comment: ^[1]

In a number of jurisdictions juries are made judges of the law in criminal cases, thus inviting them to dispense with the rules of law instead of finding the facts. The juror is made judge of the law not to ascertain what it is, but to judge of its conformity to his personal ideals and ascertain its validity on that basis. . . . It is significant that there is most satisfaction with criminal juries in those jurisdictions which have interfered least with the conception of a trial of the facts unburdened with further responsibility and instructed as to the law and advised as to the facts by the judge.

The way the jury operates may be radically altered if there is alteration in the way it is told to operate. The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. The jury gets its understanding as to the arrangements in the legal system from more than one voice. There is the formal communication from the judge. There is the informal communication from the total culture -- literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation; and, of course, history and tradition. The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says. Even indicators that would on their face seem too weak to notice -- like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict -- are a meaningful part of the jury's total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

When the legal system relegates the information of the jury's prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61] to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge's instruction is retained as a generally effective constraint. We "recognize a constraint as obligatory upon us when we require not merely reason to defend our rule departures, but damn good reason."^[1] The practicalities of men, machinery and rules point up the danger of articulating discretion to depart from a rule, that the breach will be more often and casually invoked. We cannot gainsay that occasionally jurors uninstructed as to the prerogative may feel themselves compelled to the point of rigidity.^[1] The danger of the excess rigidity that may now occasionally exist is not as great as the danger of removing the boundaries of constraint provided by the announced rules.

We should also note the interrelation of the unanimity requirement for petit juries, which was applicable to this trial, and is still the general rule though no longer constitutionally required for state courts. ^[1] This is an additional reason -- a material consideration, though neither a necessary nor sufficient condition -- to brake the wheels of those who would tell the petit jurors they are to determine the rules of law, either directly or by telling them they are free to disregard the judge's statement of the rules. The democratic principle would not be furthered, as proponents of jury nullification claim, it would be disserved by investing in a jury that must be unanimous the function not merely of determining facts, hard enough for like-minded resolution, but of determining the rules of law.

Rules of law or justice involve choice of values and ordering of objectives for which unanimity is unlikely in any society, or group representing the society, especially a society as diverse in cultures and interests as ours. To seek unity out of diversity, under the national motto, there must be a procedure for decision by vote of a majority or prescribed plurality -- in accordance with democratic philosophy. To assign the role of mini-legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of viable democracy.

Moreover, to compel a juror involuntarily assigned to jury duty to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. That is an overwhelming responsibility, an extreme burden for the jurors' psyche. And it is not inappropriate to add that a juror called upon for an involuntary public service is entitled to the protection, when he takes action that he knows is right, but also knows is unpopular, either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.

In the last analysis, our rejection of the request for jury nullification doctrine is a recognition that there are times when logic is not the only or even best guide to sound conduct of government. For machines, one can indulge the person who likes to tinker in pursuit of fine tuning. When men and judicial machinery are involved, one must attend to the many and complex mechanisms and reasons that lead men to change their conduct -- when they know they are being studied; when they are told of the consequences of their conduct; and when conduct exercised with restraint as an unwritten exception is expressly presented as a legitimate option.

What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary counter to case-hardened judges and arbitrary prosecutors," does not establish as an imperative that the jury must be informed by the judge of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, ^[1] and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.

Finally, we are aware that the denial of defendants' request for a nullification instruction will be considered by them to negative some, or perhaps most, of the value of the right of pro se representation which we have recognized. This point could be answered in terms of logic: The right of self-representation is given for reasons recognized by the law, and cannot be a springboard to establish the validity of other advantages or conditions that lie in its tactical wake. Thus, a defendant's ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro se representation, and even a moving cause of its invocation, but this is not to say it is an objective of the law. But defendants' position merits a more spacious answer, that lies outside the domain of formal logic. It is this. The jury system provides flexibility for the consideration of interests of justice outside the formal rules of law. This embraces whatever extra the defendant conveys by personal representation, whether through demeanor or sincerity of justification. But it is subject to the overriding consideration that what is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge's instruction.

BAZELON, Chief Judge, concurring in part and dissenting in part:

…

My disagreement with the Court concerns the issue of jury nullification. As the Court's opinion clearly acknowledges, there can be no doubt that the jury has "an unreviewable and unreversible power * * * to acquit in disregard of the instructions on the law given by the trial judge * * *." More important, the Court apparently concedes -- although in somewhat grudging terms -- that the power of nullification is a "necessary counter to case-hardened judges and arbitrary prosecutors," and that exercise of the power may, in at least some instances, "enhance, the over-all normative effect of the rule of law." Id. at 1137. We could not withhold that concession without scoffing at the rationale that underlies the right to jury trial in criminal cases,^[1] to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case. Yet the impact of the judge's instruction, whatever his intention, was almost surely to discourage the jury from measuring the defendants' action against community concepts of blameworthiness.

Thus, we are left with a doctrine that may "enhance the over-all normative effect of the rule of law," but, at the same time, one that must not only be concealed from the jury, but also effectively condemned in the jury's presence. Plainly, the justification for this sleight-of-hand lies in a fear that an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes -- or, to borrow the Court's phrase, will "run the risk of anarchy." A breakdown of the legal order is not a result I would knowingly encourage or enjoy. But the question cannot be resolved, at least at this stage of the argument, by asking if we are for or against anarchy, or if we are willing to tolerate a little less law and order so that we can permit a little more jury nullification. No matter how horrible the effect feared by the Court, the validity of its reasoning depends on the existence of a demonstrable connection between the alleged cause (a jury nullification instruction or argument to the jury on that issue) and that effect. I am unable to see a connection.

To be sure, there are abusive purposes, discussed below, to which the doctrine might be put. The Court assumes that these abuses are most likely to occur if the doctrine is formally described to the jury by argument or instruction. That assumption, it should be clear, does not rest on any proposition of logic. It is nothing more or less than a prediction of how jurors will react to the judge's instruction or argument by counsel. And since we have no empirical data to measure the validity of the prediction, we must rely on our own rough judgments of its plausibility. The Court reasons that a jury uninformed of its power to nullify will invoke that power only where it "feels strongly about the values involved in the case, so strongly that it [will] itself identify the case as establishing a call of high conscience * * *." In other words, the spontaneous and unsolicited act of nullification is thought less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility.

It seems substantially more plausible to me to assume that the very opposite is true. The juror motivated by prejudice seems to me more likely to make spontaneous use of the power to nullify, and more likely to disregard the judge's exposition of the normally controlling legal standards. The conscientious juror, who could make a careful effort to consider the blameworthiness of the defendant's action in light of prevailing community values, is the one most likely to obey the judge's admonition that the jury enforce strict principles of law.

Moreover, if it were true that nullification which arises out of ignorance is in some sense more worthy than nullification which arises out of knowledge, the Court would have to go much further. For under the Court's assumption, the harm does not arise because a jury is told of its power to disregard the law, but because it knows of its power. Logically construed, the Court's opinion would seem to require the disqualification at voir dire of any prospective juror who admitted to knowledge of the doctrine. By excluding jurors with knowledge of the doctrine the Court could insure that its invocation would be spontaneous. And yet, far from requiring the exclusion of jurors who are aware of the power, the Court takes comfort in the fact that informal communication to the jury "generally conveys adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says." One cannot, it seems to me, have the argument both ways. If, as the Court appears to concede, awareness is preferable to ignorance, then I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel.

My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish jurors who refuse to enforce the law or to reprosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particulaized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant's conduct is "unlawful" but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury -- as spokesman for the community's sense of values -- that must explore that subtle and elusive boundary. Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense is raised, see United States v. Brawner, 153 U.S. App. D.C. 1, at 62, 471 F.2d 969, at 1030 (1972) (en banc), (separate opinion); United States v. Bennett, 148 U.S. App. D.C. 364, 368-370, 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S. App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that "our collective conscience does not allow punishment where it cannot impose blame." And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that

courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.

The very essence of the jury's function is its role as spokesman for the community conscience in determining whether or not blame can be imposed. I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must reexamine a great deal more than just the nullification doctrine. Nevertheless, some abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may -- in conflict with values shared by the larger community -- convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance of the law or the facts of the case. Indeed, unless the jurors ignored the nullification instruction they could not convict on the grounds of prejudice alone. Does the judge's recitation of the instruction increase the likelihood that the jury will ignore the limitation that lies at its heart? I hardly think so.

As for the problem of unjust acquittal, it is important to recognize the strong internal check that constrains the jury's willingness to acquit. Where defendants seem dangerous, juries are unlikely to exercise their nullification power, whether or not an explicit instruction is offered. Of course, that check will not prevent the acquittal of a defendant who may be blameworthy and dangerous except in the jaundiced eyes of a jury motivated by a perverse and sectarian sense of values. But whether a nullification instruction would make such acquittals more common is problematical, if not entirely inconceivable. In any case, the real problem in this situation is not the nullification doctrine, but the values and prejudice that prompt the acquittal. And the solution is not to condemn the nullification power, but to spotlight the prejudice and parochial values that underlie the verdict in the hope that public outcry will force a re-examination of those values, and deter their implementation in subsequent cases. Surely nothing is gained by the pretense that the jurors lack the power to nullify, since that pretense deprives them of the opportunity to hear the very instruction that might compel them to confront their responsibility.

One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections -- the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive. Moreover, it is not only the abuses of nullification that can inform our understanding of the community's values and standards of blameworthiness. The noble uses of the power -- the uses that "enhance the over-all normative effect of the rule of law" -- also provide an important input to our evaluation of the substantive standards of the criminal law. The reluctance of juries to hold defendants responsible for unmistakable violations of the prohibittion laws told us much about the morality of those laws and about the "criminality" of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law as well as contemporary gaming and liquor laws. A doctrine that can provide us with such critical insights should not be driven underground.

On remand the trial judge should grant defendants' request for a nullification instruction. At the very least, I would require the trial court to permit defendants to argue the question before the jury. But it is not at all clear that defendants would prevail even with the aid of an instruction or argument. After all, this case is significantly different from the classic, exalted cases where juries historically invoked the power to nullify. Here, the defendants have no quarrel with the general validity of the law under which they have been charged. They did not simply refuse to obey a government edict that they considered illegal, and whose illegality they expected to demonstrate in a judicial proceeding. Rather, they attempted to protest government action by interfering with others -- specifically, the Dow Chemical Company. This is a distinction which could and should be explored in argument before the jury. If revulsion against the war in Southeast Asia has reached a point where a jury would be unwilling to convict a defendant for commission of the acts alleged here, we would be far better advised to ponder the implications of that result than to spend our time devising stratagems which let us pretend that the power of nullification does not even exist.

United States v. Luisi: Juror's challenge raises legal issue

By Jonathan Saltzman Globe Staff / August 10, 2008

Thomas R. Eddlem said he is proud of challenging the legitimacy of a criminal law.

It started with a note from the jury barely an hour into deliberations, an unusual question that went way beyond the scope of the federal drug-trafficking trial.

Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"

To a casual observer, the question in the Boston courtroom might merely have been the musing of a juror with some knowledge of American history. But US District Court Judge William G. Young said the note and others that followed represented something he had never seen in 30 years as a judge: a rogue juror challenging the legitimacy of a criminal law used to prosecute a defendant.

Young was so alarmed by the actions of Thomas R. Eddlem, a 42-year-old technology coordinator at a Catholic high school and former John Birch Society official, that he recently wrote a 43-page memorandum plumbing the history of "jury nullification" and how it threatens democracy.

Nullification refers to a controversial concept that jurors have a duty to disregard a judge's instructions and acquit a criminal defendant - even one guilty under the letter of the law - if they disagree with the law.

Juries in the United States have sometimes exercised this power admirably, particularly in the 18th and 19th centuries, but it has been all but repudiated by the courts. Still, it attracts an eclectic group of advocates who encourage juries on the Internet and elsewhere to acquit defendants if jurors find laws unconscionable, including drug laws, tax laws, and motorcycle helmet laws.

Young, a 68-year-old Harvard-educated jurist whose stern bearing recalls his days as a US Army captain, said he questioned Eddlem in his office and the Taunton man insisted that the drug prosecution was unconstitutional. The judge then replaced him with an alternate juror. Shortly afterward, the reconstituted jury convicted Robert C. Luisi, a reputed Mafia lieutenant, of three cocaine-related charges.

Young wrote that Eddlem's actions in March, which went unreported, marked the first time he "has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government."

But Eddlem said last week that he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.

"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.

American history has shining examples of jury nullification, including the acquittals of the publisher John Peter Zenger of seditious libel in 1735 and of defendants who helped slaves escape to freedom in the 19th century. Nullification has also drawn support in recent years from activists on both ends of the political spectrum. In March, the writers of the TV show "The Wire" championed jury nullification in a Time article as a way to protest an ineffectual war on drugs.

But Young wrote in his July 25 memorandum that examples of "benevolent nullification" are bygone "exceptions to an otherwise abhorrent strain of lawlessness." In the civil rights era, he wrote, nullification led to notorious acquittals in the South of white defendants by all-white juries in cases such as the 1955 slaying of Emmett Till.

The trial that prompted Young's memorandum was far less memorable.

Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.

In the retrial, the case went to the jury just before noon on March 11. About 1 p.m. the jury, which had taken an oath to consider only the evidence and to heed the judge's instructions, sent out its first note, Young wrote. Young brought the jurors into the courtroom, told them they could not consider constitutional questions and sent them back to deliberate.

Two hours later, Young wrote, the jury sent two more questions: If a juror denies the constitutionality of the prosecution, "preempting consideration of the facts," can he participate? And can the jury deliberate?

Young brought the jury in, assured them that the laws at issue were constitutional and sent them home for the day, he wrote.

The following day, the jury sent a note saying the problem had persisted. Young then interviewed each juror, one by one, in his office, in the presence of federal prosecutors and Luisi's lawyers. When the judge got to Eddlem, whom Young calls only Juror No. 2, Eddlem said he was the juror in question, Young wrote.

Eddlem told Young that he did not believe the Constitution contained language banning cocaine trafficking within a state, the judge wrote. Young told him that the US Supreme Court had interpreted the Commerce Clause as prohibiting it. But the juror said he saw nothing like that in the clause even though the Constitution is "written to the 11th grade vocabulary level," Young wrote.

After several minutes of wrangling with the juror, Young told the lawyers that Eddlem was "engaged in juror nullification" and threw him off the jury, over the objections of defense lawyer John H. LaChance of Framingham. LaChance said he does not intend to appeal.

Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution. He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."

In an interview, Young, who was a state Superior Court judge before his 1985 appointment to the federal bench, said he thinks virtually all judges oppose nullification even if it is well-intentioned.

But his colleague US District Judge Nancy Gertner of Boston said it depends on how one defines nullification. Gertner, who had no comment on the Luisi case, said a juror who informs a judge that he or she will not follow the law as instructed, is engaging in flagrant nullification and should not participate.

Judges recognize, however, that juries sometimes engage in a subtler form of nullification when they acquit in a criminal case, perhaps because of mitigating circumstances, even though the evidence and law support a conviction, Gertner said.

"We say jurors should not nullify, but we tell them to use their common sense, and we allow them in a criminal case to have a general verdict, which is to make a decision without giving a reason," said Gertner. "So we say they shouldn't do it, but we give them the space to do so."

Eddlem, for his part, was unapologetic for his actions. "I think when I look back at my life, it's going to be one of the things I'm most proud of," he said.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

United States v. Luisi

Eddlem's Blogs of the event

They’ve Ironed the Wrinkle Out of the Jury

Cato Institute takes up the cause

Pat Lynch

Links

United States v. Gaudin
Commonwealth v. Lowder
Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939)

References