AMERICAN JURY backup

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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.

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.