THE RIGHT OF JURIES
TO JUDGE OF THE JUSTICE OF LAWS
For more than six hundred years-that is, since Magna Carta, in 1215--there has been no
clearer principle of English or American constitutional law, than that, in criminal cases,
it is not only the right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; but that it is also their light, and
their primary and paramount duty, to judge the justice of the law, and to hold all
laws invalid, that are, in their opinion, unjust or oppressive, and all persons
guiltless in violating, or resisting the execution of, such law.
Unless such be the right and duty of jurors, it is plain that, instead of juries being
a "palladium of liberty"-a barrier against the tyranny and oppression of the
government-they are really mere tools in its hands, for carrying into execution any
injustice and oppression it may desire to have executed.
But for their right to judge the law, and the justice of the law, juries would
be no protection to an accused person, even as to matters Of fact; for, if
the government can dictate to a jury any law whatever, in a criminal case, it can
certainly dictate to them the laws of evidence. That is, it can dictate what evidence is
admissible, and what inadmissible, and also what force or weight is to be given to the
evidence admitted. And if the government can thus dictate to a jury the laws of
evidence, it can not only make it necessary for them to convict on a partial exhibition of
the evidence rightfully pertaining to the case, but it can even require them to convict on
any evidence whatever that it pleases to offer them.
That the rights and duties of jurors must necessarily be such as are here claimed for
them, will be evident when it is considered what the trial by jury is, and what is its
"The trial by jury," then, is a "trial by the country"-that is,
by the people- as distinguished from a trial by the government.
It was anciently called "trial per pais"-that is, "trial by the
country." And now, in every criminal trial, the jury are told that the accused
"has, for trial, put himself upon the country; which country you (the jury)
The object of this trial "by the country," or by the people, in preference to
a trial by the government, is to guard against every species of oppression by the
government. In order to effect this end, it is indispensable that the people, or "the
country," judge and determine their own liberties against the government; instead of
the government's judging of and determining its own powers over the people.
If the government may decide who may, and who may not, be jurors, it will of course
select only its partisans, and those friendly to its measures. It may not only prescribe
who may, and who may not, be eligible to be drawn as jurors; but is may also question each
person drawn as a juror, as to his sentiments in regard to the particular law involved in
each trial, before suffering him to be sworn on the panel; and exclude him if he be found
unfavorable to the maintenance of such a law.
So, also, if the government may dictate to the jury what laws they are to
enforce, it is no longer a "trial by the country," but a trial by the
government; because the jury then try the accused, not by any standard of their own-not by
their own judgments of their rightful liberties-but by a standard dictated to them by the
government. And the standard, thus dictated by the government, becomes the measure of the
people's liberties. If the government dictate the standard of trial, it of course dictates
the results of the trial. And such a trial is no trial by the country, but only a trial by
the government; and in it the government determines what are its own powers over the
people, instead of the people's determining what are their own liberties against the
government. In short, if the jury have no right to judge of the justice of a law of the
government, they plainly can do nothing to protect the people against the oppressions of
the government; for there are no oppressions which the government may not authorize by
The jury are also to judge whether the laws are rightly expounded to them by the court.
Unless they judge on this point, they do nothing to protect their liberties against the
oppressions that are capable of being practiced under cover of a corrupt exposition of the
laws. If the judiciary can authoritatively dictate to a jury any exposition of the law,
they can dictate to them the law itself, and such laws as they please; because laws are,
in practice, one thing or another, according as they are expounded.
They must also judge whether there really be any such law, (be it good or bad,) as the
accused is charged with having transgressed. Unless they judge on this point, the people
are liable to have their liberties taken from them by brute force, without any law at all.
The jury must also judge of the laws of evidence. If the government can dictate to the
jury the laws of evidence, it can not only shut out any evidence it pleases, tending to
vindicate the accused, but it can require that any evidence whatever, that it pleases to
offer, be held as conclusive proof of any offense whatever which the government chooses to
It is manifest, therefore, that the jury must judge of and try the whole case, and
every part and parcel of the case, free of any dictation or authority on the part of the
government. They must judge of the existence of the law; of the true exposition of the
law; of the justice of the law; and of the admissibility of and weight of
all the evidence offered; otherwise the government will have everything its own way; the
jury will be mere puppets in the hands of the government; and the trial will be, in
reality, a trial by the government, and not a "trial by the country." By such
trials the government will determine its own powers over the people, instead of the
people's determining their own liberties against the government; and it will be an entire
delusion to talk, as for centuries we have done, of the trial by the jury, as a
"palladium of liberty," or as any protection to the people against the
oppression and tyranny of the government.
The question, then, between trial by jury, as thus described, and trial by the
government, is simply a question between liberty and despotism. The authority to judge
what are the powers of the government, and what are the liberties of the people, must
necessarily be vested in one or the other of the parties themselves-the government, or the
people; because there is no third party to whom it can be entrusted. If the authority be
vested in the government, the government is absolute, and the people have no liberties
except such as the government sees fit to indulge them with. If, on the other hand, that
authority be vested in the people, then the people have all liberties, (as against the
government,) except such as substantially the whole people (through a jury) choose to
disclaim; and the government can exercise no power except such as substantially the whole
people (through a jury) consent that it may exercise.
* To show that this supposition is not an extravagant one, it may be
mentioned that courts have repeatedly questioned jurors to ascertain whether they were
prejudiced against the government-that is, whether they were in favor of, or
opposed to, such laws of the government as were to be put in issue in the then pending
trial. This was done (in 1851) in the United States District Court of- the District of
Massachusetts, by Peleg Sprague, the United Slates district judge, in impaneling three
several juries for the trials of Scott, Hayden, and Morris, charged with having aided in
the rescue of fugitive slave from the custody of the United States deputy Marshall. This
judge caused the following question to be propounded to all the jurors separately; and
those who answered unfavorably for- the purposes of government, were excluded from the
panel. "Do you hold any opinions upon the subject of the Fugitive Slave Law, so
called, which will induce you to refuse to convict a person indicted under it, if the
facts set forth in the indictment, and contesting the offense, are proved against
him, and the court direct you that the law is constitutional!"
The reason of this question was, that "the Fugitive Slave Law, so called,"
was so obnoxious to a large portion of the people, as to render a conviction under it
hopeless, if the jurors were taken indiscriminately from among the people.
A similar was soon afterwards propounded to the persons drawn as jurors in the United
States District Court for the District of Massachusetts, by Benjamin R. Curtis, one
of the Justices of the Supreme Court of the United States, in impaneling a jury for the
trial of the aforesaid Morris on the charge before mentioned; and those who did not answer
the question favorably for the government were again excluded from the panel.
It has also been an habitual practice with the Supreme Court of Massachusetts, in
impaneling juries for the trial of capital offenses, to inquire of the persons drawn as
jurors whether they had any conscientious scruples against finding verdicts of guilty in
such cases; that is, whether they had any conscientious scruples against sustaining the
law prescribing death as the punishment of the crime to be tried; and to exclude from the
panel all who answered in the affirmative.
The only principle upon which these questions arc asked, is this-that no man shall be
allowed to serve as juror, unless he be ready to enforce any enactment of the government,
however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the government! A
jury like that is palpably nothing but a mere tool of oppression in the hands of the
government. A trial by such a jury is really a trial by the government itself-and not a
trial by the country-because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly worthless as a
security to liberty. The Czar might, with perfect safety to his authority, introduce the
trial by jury into Russia, if he could but be permitted(i to select his jurors from those
whomever ready to maintain his laws, without regard to their injustice.
The example is sufficient to show that the very pith of the trial by jury, as a
safeguard to liberty, consists in the jurors being taken indiscriminately from the whole
people, and in their- right to hold invalid all laws which they think unjust.
The force and justice of the preceding argument cannot be evaded by saying that the
government is chosen by the people; that, in theory, it represents the people; that it is
designed to do the will of the people; that its members are all sworn to observe the
fundamental or constitutional law instituted by the people; that its acts are therefore
entitled to be considered the acts of the people; and that to allow a jury, representing
the people, to invalidate the acts of government, would therefore be arraying the people
There are two answers to such an argument.
One answer is, that, in a representative government, there is no absurdity or
contradiction, nor any arraying of the people against themselves, in requiring that the
statutes or enactments of the government shall pass the ordeal of any number of separate
tribunals, before it shall be determined that they are to have the force of laws.
Our American constitutions have provided five of these separate tribunals, to wit,
representatives, senate, executive, jury, and judges; and have made it necessary that each
enactment shall pass the ordeal of all these separate tribunals, before its authority can
be established by the punishment of those who choose to transgress it. And there is no
more absurdity or inconsistency in making a jury one of these several tribunals, than
there is in making the representatives, or ~t ~e senate, or the executive, or the judges,
one of them. There is no more absurdity in giving a jury the veto upon the laws, than
there is in giving a veto to each of these other tribunals. The people are no more arrayed
against themselves, when a jury puts its veto upon a statute, which the other tribunals
have sanctioned, than they are when the same veto is exercised by the representatives, the
senate, the executive, or the judges.
But another answer to the argument that the people are arrayed against themselves, when
a jury hold an enactment of the government invalid, is, that the government, and all the
departments of government, are merely the servants and agents of the people; not
interested with arbitrary or absolute authority to bind the people, but required to submit
all their enactments to the judgment of a tribunal more fairly representing the whole
people, before they carry them into execution, by punishing any individual for
transgressing them. If the government were not thus required to submit their enactments to
the judgment of "the country," before executing them upon individuals-if, in
other words, the people had reserved to themselves no veto upon the acts of government,
the government, instead of being a mere servant and agent of the people, would be an
absolute despot over the people. It would have all power in its own hands; because the
power to punish carries all other powers with it. A power that can, of itself, and
by its own authority, punish disobedience, can compel obedience and submission, and is
above all responsibility for the character of its laws. In short, it is a despotism.
And it is of no consequence to inquire how a government came by this power to punish,
whether by prescription, by inheritance, by usurpation, or by delegation of the people? If
it have now but got it, the government is absolute.
* - The executive has a qualified veto upon the passage of laws, in most
of our governments, and an absolute veto, in all of them, upon the execution of any laws
which he deems unconstitutional; because his oath to support the constitution (as he
understands it) forbids him to execute any law that he deems unconstitutional.
It is plain, therefore, that if the people have invested the government with power to
make laws that absolutely bind the people, and to punish the people for transgressing
those laws, the people have surrendered their liberties unreservedly into the hands of the
It is of no avail to say, in answer to this view of the case, that in surrendering
their liberties into the hands of government, the people took an oath from the government,
that it would exercise its power within certain constitutional limits; for when did oaths
ever restrain a government that was otherwise unrestrained? Or when did a government fail
to determine that all its acts were within the constitutional and authorized limits of its
power, if it were permitted to determine that question for itself.
Neither is it of any avail to say, that, if the government abuse its power, and enact
unjust and oppressive laws, the government may be changed by the influence of discussion,
and the exercise of the right of suffrage (voting). Discussion can do nothing to prevent
the enactment, or procure the repeal, of unjust laws, unless it be understood that the
discussion is to be followed by resistance. Tyrants care nothing for discussions that are
to end only in discussion. Discussions, which do not interfere with the enforcement of
their laws, are but idle wind to them. Suffrage is equally powerless and unreliable. It
can be exercised only periodically; and the tyranny must at least be borne until the time
for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the
repeal of existing laws that are oppressive, and no security against the enactments of new
ones that are equally so. The second body of legislators are liable and likely to be just
as tyrannical as the first. If it be said that the second body may be chosen for their
integrity, the answer is, that the first were chosen for that very reason, and yet
proved tyrants. The second will be exposed to the same temptations as the first, and
will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures
were, on the whole, more honest than those that preceded them? What is there in the nature
of men or things to make them so? If it ~1. be said that the first body were chosen from
motives of injustice, that fact proves that there is a portion of society who desire to
establish injustice; and if they were powerful or artful enough to procure the election of
their instruments to compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar instruments to compose the
second. The right of suffrage, therefore, and even a change of legislators, guarantees no
change of legislation-certainly no change for the better. Even if a change for the better
actually comes, it comes too late, because it comes only after more or less injustice has
been irreparably done.
But, at best, the right of suffrage can be exercised only periodically; and between the
periods the legislators are wholly irresponsible. No despot was ever more entirely
irresponsible than are republican legislators during the period for which they are chosen.
They can never be removed from their office, nor called to account while in their office,
nor punished after they leave office, be their tyranny what it may. Moreover, the judicial
and executive departments of the government are equally irresponsible to the people, and
are only responsible, (by impeachment, and dependence for their salaries), to these
irresponsible legislators. This dependence of the judiciary and executive upon
the legislature is a guaranty that they will always sanction and execute its laws,
whether just or unjust. Thus the legislators hold the whole power of the government in
their hands, and are at the same time utterly irresponsible for the manner in which they
If, now, this government, (the three branches thus really united in one), can determine
the validity of, and enforce, its own laws, it is, for the time being, entirely absolute,
and wholly irresponsible to the people.
But this is not all. These legislators, and this government, so irresponsible while in
power, can perpetuate their power at pleasure, if they can determine what legislation is
authoritative upon the people, and can enforce obedience to it; for they can not only
declare their power perpetual, but they can enforce submission to all legislation that is
necessary to secure its perpetuity. They can, for example, prohibit all discussion of the
rightfulness of their authority; forbid the use of suffrage; prevent the election of any
successors; disarm, plunder, imprison, and even kill all who refuse submission. If,
therefore, the government (all departments united) be absolute for a day-that is, if it
can, for a day, enforce obedience to its own laws-it can, in that day, secure its power
for all time-like the queen, who wished to reign but for a day, but in that day caused the
king, her husband, to be slain, and usurped his throne.
Nor will it avail to say that such acts would be unconstitutional, and that
unconstitutional acts may be lawfully resisted; for everything a government pleases to do
will, of course, be determined to be constitutional, if the government itself be permitted
to determine the question of the constitutionality of its own acts. Those who are capable
of tyranny, are capable of perjury to sustain it.
The conclusion, therefore, is, that any government, that can, for a day, enforce
its own laws, without appealing to the people, (or to a tribunal fairly representing the
people,) for their consent, is, in theory, an absolute government, irresponsible to the
people, and can perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and therefore forbids
the government to execute any of its laws, by punishing violators, in any case whatever,
without first getting the consent of "the country," or the people, through a
jury. In this way, the people at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of government.
The trial by jury, then, gives to any and every individual the liberty, at any time, to
disregard or resist any law whatever of the government, if he be willing to submit to the
decision of a jury, the questions, whether the law be intrinsically just and obligatory?
and whether his conduct, in disregarding or resisting it, were right in itself? And any
law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at
random from the people, and judging according to the standard of justice in their own
minds, free from all dictation and authority of the government, may be transgressed and
resisted with impunity, by whomsoever pleases to transgress or resist it.*
And if there be so much as a reasonable doubt of the justice of the laws, the
benefit of that doubt must be given to the defendant, and not to the government. So that
the government must keep its laws clearly within the limits of justice, if it would
ask a jury to enforce them.
The trial by jury authorizes all this, or it is a sham and a hoax, utterly worthless
for protecting the people against oppression. If it do not authorize an individual to
resist the first and least act of injustice or tyranny, on the part of the government, it
does not authorize him to resist the last and the greatest. If it do not authorize
individuals to nip tyranny in the bud, it does not authorize them to cut it down when its
branches are filled with the ripe fruits of plunder and oppression.
Those who deny the right of a jury to protect an individual in resisting an unjust law
of the government, deny him all legal defence whatsoever against oppression. The
right of revolution, which tyrants, in mockery, accord to mankind, is no legal right
under a government; it is only a natural right to overturn a government. The
government itself never acknowledges this right. And the right is practically
established only when and because the government no longer exists to call it in question.
The right, therefore, can be exercised with immunity, only when it is exercised
victoriously. All unsuccessful attempts at revolution, however justifiable in
themselves, are punished as treason, if the government be permitted to judge of the
treason. The government itself never admits the injustice of its laws, as a
legal defence for those who have attempted a revolution, and failed. The right of
revolution, therefore, is a right of no practical value, except for those who are stronger
than the government. So long, therefore, as the oppressions of a government are kept
within such limits as simply not to exasperate against it a power greater than its own,
the right of revolution cannot be appealed to, and is therefore inapplicable to the case.
This affords a wide field for tyranny; and if a jury cannot here intervene, the oppressed
are utterly defenseless.
It is manifest that the only security against the tyranny of the government lies in
forcible resistance to the execution of the injustice; because the injustice will
certainly be executed, unless it be forcibly resisted. And if it be but
suffered to be executed, it must then be borne; for the government never makes
compensation for its own wrongs.
Since, then, this forcible resistance to the injustice of the government is the only
possible means of preserving liberty, it is indispensable to all legal liberty that
this resistance should be legalized. It is perfectly self-evident that where
there is no legal right to resist the oppression of the government, there can be no
legal liberty. And here it is all-important to notice, that, practically
speaking, there can be no legal right to resist the oppressions of the
government, unless there be some legal tribunal, other than the government, and wholly
independent of, and above, the government, to judge between the government and
those who resist its oppressions; in other words, to judge what laws of the government are
to be obeyed, and what may be resisted and held for naught. The only tribunal known to our
laws, for this purpose, is a jury. If a jury have not the right to judge between the
government and those who disobey its laws, and resist its oppressions, the government is
absolute, and the people, legally speaking, are slaves. Like many other slaves they
may have sufficient courage and strength to keep their masters somewhat in check; but they
are nevertheless known to the law only as slaves.
That this right of resistance was recognized as a common law right, when
the ancient and genuine trial by jury was in force, is not only proved by the nature of
the trial itself, but is acknowledged by history.*
* - Hallam says "The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any servile and
implicit obedience, permitted the compact to be dissolved in case of its violation by
either party. This extended as much to the sovereign as to inferior lords. + + If a
vassal was aggrieved, and if justice was denied him, he sent a defiance, that is, a
renunciation of fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two independent potentates, and
was, terminated by treaty, advantageous or otherwise, according to the fortune of war. + +
There remained the original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be lawfully made to arms against an oppressive
government. Nor was this, we may be sure, left for extreme necessity, or thought to
require a long-enduring forbearance. In modern times, a king, compelled by his subjects'
sword is to abandon any pretension, would be supposed to have ceased to reign; and the
express recognition of such a right is that of insurrection has been justly deemed
inconsistent with the majority of law. But ruder ages had ruder sentiments. Force was
necessary to repel force; and men accustomed to see the king's authority defied by a
private riot, were not much shocked when it was resisted in defence of public
-- 3 Middle Ages, 240-3
This right of resistance is recognized by the constitution of the United States, as a
strictly legal and constitutional right. It is so recognized, first by the provision that
"the trial of all crimes, except in cases of impeachment, shall be by jury"-that
is, by the country-and not by the government; secondly, by the provision that "the
right of the people to keep and bear arms shall not be infringed." This
constitutional security for "the right to keep and bear arms," implies the right
to use them-as mush as a constitutional security for the right to buy and keep food would
have implied the right to eat it. The constitution, therefore, takes it for granted that
the people will judge of the conduct of the government, and that, as they have the right,
they will also have the sense, to use arms, whenever the necessity of the case justifies
it. And it is a sufficient and legal defence for a person accused of using arms
against the government, if he can show, to the satisfaction of a jury, or even any one
of a jury, that the law he resisted was an unjust one.
In the American State constitutions also, this right of resistance to the oppressions
of the government is recognized, in various ways, as a natural, legal, and constitutional
right. In the first place, it is so recognized by provisions establishing the trial by
jury; thus requiring that accused persons shall be tried by "the country,"
instead of the government. In the second place, it is recognized by many of them, as, for
example, those of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio, Indiana,
Michigan, Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and Florida, by provisions,
in their bills of rights, declaring that men have a natural, inherent, and inalienable
right of "defending their lives and liberties." This, of course, means
that they have a right to defend them against any injustice on the pail of government, and
not merely on the part of private individuals; because the object of all bills of rights
is to assert the rights of individuals and the people, as against the government,
and not as against private persons. It would be a matter of ridiculous supererogation to
assert, in a constitution of government, the natural right of men to defend their lives
and liberties against private trespassers.
Many of these bills of rights also assert the natural right of all men to protect their
property-that is, to protect it against the government. It would be unnecessary and
silly indeed to assert, in a constitution of government, the natural right of individuals
to protect their property against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare that "The doctrine
of non-resistance against arbitrary power and oppression is absurd, slavish, and
destructive of the good and happiness of mankind."
The legal effect of these constitutional recognitions of the right of individuals to
defend their property, liberties, and lives, against the government, is to legalize
resistance to all injustice and oppression, of every name and nature whatsoever, on the
part of the government.
But for this right of resistance, on the part of the people, all governments would
become tyrannical to a degree of which few people are aware. Constitutions are utterly
worthless to restrain the tyranny of governments, unless it be understood that the people
will, by force, compel the government to keep within the constitutional limits. Practically
speaking, no government knows any limits to its power, except the endurance of the
people. But that the people are stronger than the government, and will resist in
extreme cases, our governments would be little or nothing else than organized systems of
plunder and oppression. All, or nearly all, the advantage there is in fixing any
constitutional limits to the power of a government, is simply to give notice to the
government of the point at which it will meet with resistance. If the people are then as
good as their word, they may keep the government within the bounds they have set for it;
otherwise it will disregard them-as is proved by the example of all our American
governments, in which the constitutions have all become obsolete, at the moment of their
adoption, for nearly or quite all purposes except the appointment of officers, who at once
become practically absolute, except so far as they are restrained by the fear of popular
The bounds set to the power of the government, by the trial by jury, as will hereafter
be shown, are these-that the government shall never touch the property, person, or natural
or civil rights of an individual, against his consent, (except for the purpose of bringing
them before a jury for trial,) unless in pursuance and execution of a judgment, or
decree, rendered by a jury in each individual case, upon such evidence, and such law, as
are satisfactory to their own understandings and consciences, irrespective of all
legislation of the government.
MORAL CONSIDERATIONS FOR JURORS
(from Chapter 10 of the First Edition)
The trial by jury must, if possible, be construed to be such that a man can rightfully
sit in a jury, and unite with his fellows in giving judgment. But no man can rightfully do
this, unless he hold in his own hand alone a veto upon any judgment or sentence whatever
to be rendered by the jury against a defendant, which veto he must be permitted to use
according to his own discretion and conscience, and not bound to use according to the
dictation of either legislatures or judges. The prevalent idea, that a juror may, at the
mere dictation of a legislature or a judge, and without the concurrence of his own
conscience or understanding, declare a man "guilty," and thus in effect
license the government to punish him; and that the legislature or the judge, and not
himself, has in that case all the moral responsibility for the correctness of the
principles on which the judgment was rendered, is one of the many gross impostures by
which it could hardly have been supposed that any sane man could ever have been deluded,
but which governments have nevertheless succeeded in inducing the people at large to
receive and act upon.
As a moral proposition, it is perfectly self-evident that, unless juries have all the
legal rights that have been claimed for them in the preceding chapters,--that is, the
rights of judging what the law is, whether the law be a just one, what evidence is
admissible, what weight the evidence is entitled to, whether an act were done with a
criminal intent, and the right also to limit the sentence, free from all dictation
from any quarter,--they have no moral right to sit in the trial at all, and cannot
do so without making themselves accomplices in any injustice that they may have reason to
believe may result from their verdict. It is absurd to say that they have no moral
responsibility for the use that may be made of their verdict by the government, when they
have reason to suppose it will be used for purposes of injustice.
It is, for instance, manifestly absurd to say that jurors have no moral responsibility
for the enforcement of an unjust law, when they consent to render a verdict of guilty for
the transgression of it; which verdict they know, or have good reason to believe, will be
used by the government as a justification for inflicting a penalty.
It is absurd, also, to say that jurors have no moral responsibility for a punishment
inflicted upon a man against law, when, at the dictation of a judge as to what the
law is, they have consented to render a verdict against their own opinions of the law.
It is absurd, too, to say that jurors have no moral responsibility for the conviction
and punishment of an innocent man, when they consent to render a verdict against him on
the strength of evidence, or laws of evidence, dictated to them by the court, if any new
evidence or laws of evidence have been excluded, which they (the jurors) think
ought to have been admitted in his defence.
It is absurd to say that jurors have no moral responsibility for rendering a verdict of
"guilty" against a man, for an act which he did not know to be a crime,
and in the commission of which, therefore he could have had no criminal intent, in
obedience to the instructions of courts that "ignorance of the law (that is, of
crime) excuses no one."
It is absurd, also, to say that jurors have no moral responsibility for any cruel and
unusual sentence that maybe inflicted even upon a guilty man, when they
consent to render a verdict which they have reason to believe will be used by the
government as a justification for the infliction of such sentence.
The consequence is, that jurors must have the whole case in their hands, and judge of
law, evidence, and sentence, or they incur the moral responsibility of accomplices in any
injustice which they have reason to believe will be done by the government on the
authority of their verdict.
The same principles apply to civil cases as criminal. If a jury consent, at the
dictation of the court, as to either law or evidence, to render a verdict, on the strength
of which they have reason to believe that a man's property will be taken from him and
given to another, against their own notions of justice, they make themselves morally
responsible for the wrong.
Every man, therefore, ought to refuse to sit in a jury, and to take the oath of a
juror, unless the form of the oath be such as to allow him to use his own judgment, on
every part of the case, free of all dictation whatsoever, and to hold in his own hand a
veto upon any verdict that can be rendered against a defendant, and any sentence that can
be inflicted upon him, even if he be guilty.
Of course, no man can rightfully take an oath as a juror, to try a case "according
to law," (if by law be meant anything other than his own ideas of justice,) nor
"according to the law and the evidence, as they shall be given to
him." Nor can he rightfully take an oath even to try a case "according to
the evidence," because in all cases he may have good reason to believe that a
party has been unable to produce all the evidence legitimately entitled to be received.
The only oath which it would seem that a man can rightfully take as a juror, in either a
civil or criminal case, is, that he "will try the case according to his
conscience." Of course, the form may admit of variation, but this should be the
substance. Such, we have seen, were the ancient common law oaths.
In his book, No Treason Spooner maintained that the U.S. Constitution literally
bound no one (in a legal sense) to perform, including the very men who drafted and
signed it! Yet, in 1991, we are beset with thousands upon thousands of
"laws"-local, state & Federal-which, undoubtedly, only a few have read, much
less comprehended, including many judges (who are supposedly intended to uphold them).
This being the case, justice is often ignored or denied in today's tribunals and courts.
As Patrick Henry exclaimed, "What right have they (the framers of the
U.S. Constitution) to say 'We, The People'?!" binding each succeeding
generation with pains of punishment for violation of statutes where there was no universal
popular consent. What "check" do we have on bad legislation?
Enter the Jury
Historically, under the Common Law (originating in the Holy Bible), juries have been
bodies of conscience, confirming either the correctness or corruption of Man's laws. As
But it is in the administration of justice, or of law, that the freedom or
subjection of a people is tested. If this administration be in Accordance with the
arbitrary will of the legislator-that is, if his will, as it appears in his statutes, be
the highest rule of decision known to judicial tribunals,--the government is a despotism,
and the people are slaves. If, on the other band, the rule of decision be those principles
of natural equity and justice, which constitute, or at least are embodied in, the general
conscience of mankind, the people are free in just so far as that conscience is
Today the mass of society appears not only unenlightened, but incapable of judging
right from wrong, or at least this is what opponents of jury powers notification will tell
you (their vested interests usually lie in upholding the legislative elite). Spooner
rightly stated that one motive for legitimate government was "protection of the weak
against the strong," and America's jural society provided this avenue for the weak
and, yes, the unenlightened. In the very first jury trial before the U.S. supreme Court in
1794 ("supreme" is not capitalized in the U.S. Constitution, though the term
"Behavior" is), the judges said, "it is presumed, that the juries are
the best judges of facts; it is, on the other hand, presumed that the courts are the best
judges of law. But still, both objects are within your power of decision.
You have a right to take upon yourselves to judge of both, and to determine the
law as well as the fact in controversy. " (Georgia vs. Brailsford, et al,
3 Dall. 1, emphasis ours)
Indeed, these popular powers existed long before, and are independent of, the U.S.
Under constitutional scheme, grand jury is not and should not be captive to any of
the three branches of government; the grand jury, is a pre-constitutional institution
given constitutional stature by the Fifth Amendment but not relegated by the Constitution
to a position within any of the three branches of government, as the federal grand jury is
a constitutional fixture in its own right (U.S.C.A. Const. Amend. 5; U.S. vs. Chanen,
549 F.2d 1306, certiorari denied 98 s. Ct. 72, 434 U.S. 825, 54 L.Ed.2d 83) ... (There is
a difference between a common law grand jury, and a "federal grand jury," which
applies only to "federal citizens"-residents of Washington, D.C. and its
Grand jury is (an) investigative body acting independently of either prosecutor or
judge whose mission is to bring to trial those who may be guilty and clear the innocent.
(Marston's Inc. vs. Strand, 560 P.2d 778, 114 Ariz. 260).
It must be clearly understood that, in America, court decisions (though they be called
case law) are NOT law at all, but merely decisions "of a court" applicable only
to the case at hand. They may be good decisions, and they may be bad, but in a legitimate
government, they are unanimous concensus of a properly empanelled jury which has acted
independently of a judge or prosecutor, according to the dictates of conscience If the
consciences of any particular jurors are seared, keep in mind that the same applies to
government employees, whose job it is to uphold the liberties of the common man,
not his own interests.
CURRENT CONSTITUTIONAL AUTHORITY FOR
The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I,
sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A),
currently have provisions guaranteeing the right of jurors to "judge the law";
that is, to nullify the law.
Although these provisions have not been strong enough to withstand
decades of hostile judicial interpretation, and have relatively little current impact,
they do remain "on the books".
Twentythree states currently include jury nullification provisions in
their Constitutions under their sections on freedom of speech, specifically with respect
to libel and sedition cases:
Alabama (Art.I, Sec. 12); Colorado (Art.II, sec. 10); Connecticut
(Art. First, sec. 7); Delaware (Art. I, sec. 5); Georgia (Art. I, sec. II, Para. 1);
Kentucky (Bill of Rights, sec. 9); Louisiana (Art. XIV, sec. 9); Maine (Art. I, sec. 4);
Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New
Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 9); Oregon
(Art. I, sec. 16); Pennsylvania (Art. I, sec. 7); South Carolina (Art. II, sec. 21); South
Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art.
I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20).
Source: Alan W. Scheflin, "Jury Nullification: the Right to
Say No", Southern California Law Review, 45, p. 204 (1972). [List has been updated to
Educating jurors and prospective jurors is the only way to make certain
that justice is done. Fully informed juries is appealing to anyone with a concern for the
importance of the Constitution, to anyone who believes that justice should be tempered
with mercy, to anyone worried about the increasing interference of the various arms of Big
Government, to anyone who thinks that state-mandated sentences for various crimes fail to
take into consideration the human element and the differences of fact in individual cases.
It is not only (the juror's) right but his 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, 1771
We take a lots of rights and privileges for granted in this country,
among them the right to a trial by jury, though this right exists only in Britain and its
former colonies. Juries of one's peers are the final check on a government's power when it
has an interest in convicting. Trial by jury is under attack in America in
several ways: in what they are allowed to judge, what they're allowed to hear and how
they're allowed to rule. Trial by jury replaced trials of water and fire as a means of
establishing guilt or innocence. It is a basic right in English-speaking lands.
"Unsatisfactory verdicts" will be a thing of the past when
jurors are fully informed. In 1670 an "unsatisfactory verdict" was delivered
by the jurors acquittal of William Penn in that the king's law against preaching quaker
doctrine was nullified. When William Penn beat the rap for his sermon justice prevailed as
jurors said "He may be guilty, but he's guilty of breaking a lousy law--and we're not
going to convict him." Three Hundred and Twenty Years later, jurors cry after
delivering their verdict because they followed the judge's instructions but violated their
own good sense and conscience. The judge instructed them to follow the law as he saw fit
to give it to them, like-it-or-not. Today's "unsatisfactory verdicts" are
delivered in contravention of everyone's natural rights, common law rights, and
constitutional rights. ...(It is the juries) primary and paramount duty, to judge of
the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust
or oppressive, and all persons guiltless in violating, or resisting the execution of, such
Lysander Spooner, 1852
John Adams, who became the second U.S.
President, in 1771 said of the juror: "It is not only his right, but his duty...to
find the verdict according to his own best understanding, judgment, and conscience, though
in direct opposition to the direction of the court." Quoted in Yale Law Journal 74
Alexander Hamilton (1804): Jurors should
acquit even against the judge's instruction "...if exercising their judgment with
discretion and honesty they have a clear conviction that the charge of the court is
wrong." Quoted in Joseph Sax, Yale Law Review 57 (June 1968): 481494.
John Jay, first Chief Justice, U.S. Supreme
Court, in Georgia v. Brailsford, 1794:4 said: "The jury has a right to judge both the
law as well as the fact in controversy."
Samuel Chase, Supreme Court Justice and
signer of the Declaration of Independence, 1804: "The jury has the right to determine
both the law and the facts."
Thomas Jefferson, in a letter to Thomas
Paine, 1789: "I consider trial by jury as the only anchor ever yet imagined by man,
by which a government can be held to the principles of its constitution."
Theophilus Parsons, "...a leading
supporter of the Constitution of the United States in the convention of 1788 by which
Massachusetts ratified the Constitution, appointed by President Adams in 1801 Attorney
General of the United States, but declining that office, and becoming Chief Justice of
Massachusetts in 1806" said:
"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 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." 2 Elliot's Debates, 94; 2 Bancroft's History
of the Constitution, p. 267. Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895),
Dissenting Opinion: Gray, Shiras, JJ., 144.
"If a juror accepts as the law that which the judge states then that juror has
accepted the exercise of absolute authority of a government employee and has surrendered a
power and right that once was the citizen's safeguard of liberty, For the saddest epitaph
which can be carved in memory of a vanished liberty is that it was lost because its
possessors failed to stretch forth a saving hand while yet there was time." 2
Elliot's Debates, 94, Bancroft, History of the Constitution, 267, 1788.
"Unless the jury can exercise its community conscience role, our judicial system
will have become so inflexible that the effect may well be a progressive radicalization of
protest into channels that will threaten the very continuance of the system itself. To put
it another way, the jury is...the safety valve that must exist if this society is to be
able to accommodate its own internal stresses and strains...[I]f the community is to sit
in the jury box, its decision cannot be legally limited to a conscienceless application
of fact to law." William Kunstler, quoted in Franklin M. Nugent, Jury Power:
Secret Weapon Against Bad Law, revised from Youth Connection, 1988.
"Every jury in the land is tampered with and falsely instructed by the judge when
it is told it must take (or accept) as the law that which has been given to them, or that
they must bring in a certain verdict, or that they can decide only the facts of the
case." Lord Denman, C.J. O'Connel v. R. (1884).
"For more than six hundred years that is, since Magna Carta, in 1215, there has
been no clearer principle of English or American constitutional law, than that, in
criminal cases, it is not only the right and duty of juries to judge what are the facts,
what is the law, and what was the moral intent of the accused; but that it is also their
right, and their primary and paramount duty, to judge of the justice of the law, and to
hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons
guiltless in violating, or resisting the execution of, such laws."
Lysander Spooner, An Essay on the Trial by Jury, 1852, p. 11.
"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well
as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain
a conviction." Article XXIII, Constitution of Maryland
"Because of this constitutional mandate, this instruction is given to criminal
jurors in Maryland:
'Members of the Jury, this is a criminal case and under the Constitution and the laws
of the State of Maryland in a criminal case the jury are the judges of the law as well as
of the facts in the case. So that whatever I tell you about the law while it is intended
to be helpful to you in reaching a just and proper verdict in the case, it is not binding
upon you as members of the jury and you may accept or reject it. And you may apply the law
as you apprehend it to be in the case. '" Alan Scheflin and Jon Van Dyke, Jury
Nullification: The Contours of a Controversy, Law and Contemporary Problems, 43,
"If the jury feels the law is unjust, we recognize the undisputed power of the
jury to acquit, even if its verdict is contrary to the law as given by a judge, and
contrary to the evidence...If the jury feels that the law under which the defendant is
accused is unjust, or that exigent circumstances justified the actions of the accused, or
for any reason which appeals to their logic or passion, the jury has the power to acquit,
and the courts must abide by that decision." United States v. Moylan, 4th
Circuit Court of Appeals, 1969, 417 F.2d at 1006.
The jury has an "unreviewable and irreversible power...to acquit in disregard of
the instructions on the law given by the trial judge...The pages of history shine on
instances of the jury's exercise of its prerogative to disregard uncontradicted evidence
and instructions of the judge; for example, acquittals under the fugitive slave law. U.S.
v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132.
(Nevertheless, the majority opinion held that jurors need not be told this. Dissenting
Chief Judge Bazelon thought that they ought to be so told.)
"The arguments for opposing the nullification instruction are, in our view,
deficient because they fail to weigh the political advantages gained by not lying to the
jury...What impact will this deception have on jurors who felt coerced into their verdict
by the judge's instructions and who learn, after trail, that they could have voted their
consciences and acquitted? Such a juror is less apt to respect the legal system." Alan
Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a
Controversy," Law and Contemporary Problems, 43, No.4,105 106.
"In a representative government...there is no absurdity or contradiction, nor any
arraying of the people against themselves, in requiring that the statutes or enactments of
the government shall pass the ordeal of any number of separate tribunals, before it shall
be determined that they are to have the force of laws. Our American constitutions have
provided five of these separate tribunals, to wit, representatives, senate,
executive...jury, and judges; and have made it necessary that each enactment shall pass
the ordeal of all these separate tribunals, before its authority can be established by the
punishment of those who choose to transgress it...there is no more absurdity in giving a
jury a veto upon the laws than there is in giving a veto to each of these other
Lysander Spooner, An Essay on the Trial by Jury, 1852.
"In all criminal cases whatsoever, the jury shall have the right to determine the
law and the facts." Article 1, section 19 of the Indiana Constitution. Upheld,
Holliday v. State 257 N.E. 579 (1970).
"It is useful to distinguish between the jury's right to decide questions
of law and its power to do so. The jury's power to decide the law in
returning a general verdict is indisputable. The debate of the nineteenth century revolved
around the question of whether the jury had a legal and moral right to decide
questions of law." Note (anon.), The Changing Role of the Jury in the Nineteenth
Century, Yale Law Journal, 74,170 (1964).
"...[T]he right of the jury to decide questions of law was widely recognized in
the colonies. In 1771, John Adams stated unequivocally that a juror should ignore a
judge's instruction on the law if it violates fundamental principles:
'It is not only...[the juror's] 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.'
There is much evidence of the general acceptance of this principle in the period
immediately after the Constitution was adopted." Note (anon.), The Changing Role of
the Jury in the Nineteenth Century, Yale Law Journal 74, 173 (1964).
"During the first third of the nineteenth century,...judges frequently charged
juries that they were the judges of law as well as the fact and were not bound by the
judge's instructions. A charge that the jury had the right to consider the law had a
corollary at the level of trial procedure: counsel had the right to argue the law, its
interpretation and its validity to the jury." Note (anon.), The Changing Role of the
Jury in the Nineteenth Century, Yale Law Journal 74, 174,(1964).
Alexander Hamilton, acting as defense counsel in a seditious libel case, said:
"That in criminal cases, nevertheless, the court are the constitutional advisors of
the jury in matter of law; who may compromise their conscience by lightly or rashly
disregarding that advice, but may still more compromise their consciences by following it,
if exercising their judgments with discretion and honesty they have a clear conviction
that the charge of the court is wrong." 7 Hamilton's Works (ed. 1886), 336373.
New York Supreme Court Justice Kent (1803): "The true criterion of a legal
power is its capacity to produce a definitive effect, liable neither to censure nor
review. And the verdict of not guilty in a criminal case, is, in every respect, absolutely
final. The jury are not liable to punishment, nor the verdict to control. No attaint lies,
nor can a new trial be awarded. The exercise of this power in the jury has been
sanctioned, and upheld in constant activity, from the earliest ages." 3 Johns Cas.,
366368. Quoted in Sparf and Hansen v. U.S., 156 U.S.51, 148149. (1894) (Gray, Shiras,
"Within six years after the Constitution was established, the right of the jury,
upon the general issue, to determine the law as well as the fact in controversy, was
unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few
trials by jury ever had at its bar, under the original jurisdiction conferred upon it by
"The report shows that, in a case in which there was no controversy about the
facts, the court, while stating to the jury its unanimous opinion upon the law of the
case, and reminding them of '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,'
expressly informed them that 'by the same law, which recognizes this reasonable
distribution of jurisdiction', the jury 'have nevertheless a right to take upon themselves
to judge of both, and to determine the law as well as the fact in controversy.'" Supreme
Court, Sparf and Hansen v. U.S., 156 U.S. 51, 154155 (1894), from the dissent by
Gray and Shiras.
"It is universally conceded that a verdict of acquittal, although rendered against
the instructions of the judge, is final, and cannot be set aside; and consequently that
the jury have the legal power to decide for themselves the law involved in the general
issue of guilty or not guilty." From the dissent by Gray and Shiras, Supreme
Court, Sparf and Hansen v. U.S., 156 U.S. 51, 172 (1894).
"...[I]t is a matter of common observation, that judges and lawyers, even the most
upright, able and learned, are sometimes too much influenced by technical rules; and that
those judges who are...occupied in the administration of criminal justice are apt, not
only to grow severe in their sentences, but to decide questions of law too unfavorably to
"The jury having the undoubted and uncontrollable power to determine for
themselves the law as well as the fact by a general verdict of acquittal, a denial by the
court of their right to exercise this power will be apt to excite in them a spirit of
jealousy and contradiction..."
"...[A] person accused of crime has a twofold protection, in the court and the
jury, against being unlawfully convicted. If the evidence appears to the court to be
insufficient in law to warrant a conviction, the court may direct an acquittal...But the
court can never order the jury to convict; for no one can be found guilty, but by the
judgment of his peers." From the dissent by Gray and Shiras, Supreme Court,
Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894).
"But, as the experience of history shows, it cannot be assumed that judges will
always be just and impartial, and free from the inclination, to which even the most
upright and learned magistrates have been known to yield from the most patriotic motives,
and with the most honest intent to promote symmetry and accuracy in the law of amplifying
their own jurisdiction and powers at the expense of those entrusted by the Constitution to
other bodies. And there is surely no reason why the chief security of the liberty of the
citizen, the judgment of his peers, should be held less sacred in a republic than in a
monarchy." From the dissent by Gray and Shiras, Supreme Court, Sparf and
Hansen v. U.S., 156 U.S. 51, 176 (1894).
"The jury has the power to bring a verdict in the teeth of both the law and
facts." Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning v. District
of Columbia, 138 (1920).
"If juries were restricted to finding facts, cases with no disputed factual issues
would be withheld from the jury. But such cases are presented to the jury. By its general
verdict of innocence, the jury may free a person without its verdict being subject to
challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish
the jurors for it. Although judges now generally tell jurors they must obey the judge's
instructions on the law, the jurors may not be compelled to do so. If the jury convicts,
however, the defendant is entitled to a broad range of procedural protections to ensure
that the jury was fair and honest.
"When a jury acquits a defendant even though he or she clearly appears to be
guilty, the acquittal conveys significant information about community attitudes and
provides a guideline for future prosecutorial discretion in the enforcement of the laws.
Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s,
prohibition laws could not be enforced. The repeal of these laws is traceable to the
refusal of juries to convict those accused of alcohol traffic." Alan Scheflin and
Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary
Problems 43, No.4, 71 (1980).
"Jury acquittals in the colonial, abolitionist, and postbellum eras of the
United States helped advance insurgent aims and hamper government efforts at social
control. Widespread jury acquittals or hung juries during the Vietnam War might have had
the same effect. But the refusal of judges in trials of antiwar protesters to inform
juries of their power to disregard the law helped ensure convictions, which in turn
frustrated antiwar goals and protected the government from the many repercussions that
acquittals or hung juries would have brought." Steven E. Barkan, Jury
Nullification in Political Trials, Social Problems, 31, No. 1, 38, October, 1983.
"...[T]he institution of trial by jurye specially in criminal cases has its hold
upon public favor chiefly for two reasons. The individual can forfeit his liberty to say
nothing of his life only at the hands of those who, unlike any official, are in no wise
accountable, directly or indirectly, for what they do, and who at once separate and melt
anonymously in the community from which they came. Moreover, since if they acquit their
verdict is final, no one is likely to suffer of whose conduct they do not morally
disapprove; and this introduces a slack into the enforcement of law, tempering its rigor
by the mollifying influence of current ethical conventions. A trial by any
jury...preserves both these fundamental elements and a trial by a judge preserves
neither..." Judge Learned Hand, U.S. ex rel McCann v. Adams, 126 F.2d 774,
77576 (2nd Circuit, 1942).
"It's easy for the public to ignore an unjust law, if the law operates behind
closed doors and out of sight. But when jurors have to use a law to send a man to prison,
they are forced to think long and hard about the justice of the law. And when the public
reads newspaper accounts of criminal trials and convictions, they too may think about
whether the convictions are just. As a result, jurors and spectators alike may bring to
public debate more informed interest in improving the criminal law. Any law which makes
many people uncomfortable is likely to attract the attention of the legislature. The laws
on narcotics and abortion come to mind and there must be others. The public adversary
trial thus provides an important mechanism for keeping the substantive criminal law in
tune with contemporary community values." D.C. Circuit Court Judge D. Bazelon,
"The Adversary Process Who Needs It?" 12th Annual James Madison Lecture, New
York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily
ed. April 29, 1971).
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