The First Branch (Open Letter to the Montana Legislature)

By Elias Alias The Oath Keeper Newspaper

Honorable Madam Chair, Judiciary Committee, Montana House of Representatives

The Constitution for the united States of America is the founding legal document which created our nation and our nation’s system of representative self-governance. As such, it is this government’s founding legal charter, and it defines the duties and responsibilities of the Federal government. It sets forth the limitations within which the Federal government must act. The U.S. Constitution defines the Federal government, commissions the Federal government to action, legitimizes and authorizes the Federal government, and defines well the limits of Federal power over the several States and the individual citizen.

It also defines the power of the States over the Federal government. The Constitution for the united States of America is a legal document, and it is the supreme document authorizing the existence of the Federal government. It is the legal charter
which established the commonly- known “three branches” of the Federal government.

Thus, the three branches of government, provided to, existing within, and empowered by the Constitution of the United States of America (USA), exist at the very foundation of law and as the cornerstones of law. These three branches of  government extend by design into and throughout the subscribing several states, which to large degree resemble upon the state level that structure of governance created at the Federal level. We name in our national language those three branches of government: the “Executive” branch, the “Legislative” branch, and the “Judicial” branch.

But there is another branch of government which today is commonly forgotten and seldom upheld. This forgotten branch of our government is in fact largely denied, in practice and by court statement, when judges give instructions to jurorsin courtrooms across the  nation. The American citizen has for the most part completely forgotten about this first branch of government. As we have seen elsewhere, the knowledge and perception of today’s American citizen has largely been  usurped – by design, by intent, and with great deliberation by subversive  elements operating inside American social, cultural, economic, and political institutions, and, inside the Federal government.

Indeed, the existence of this first branch of government, once considered to be self-evident and universally obvious to all sense-possessed citizens everywhere, dwells in today’s political and social climate only  in the obscurity of old law cases and dry history books, with hardly an exception.

That first branch of government is the American twelve person “Jury”. It has been called the “Jury branch”.

This is our country, our government, and our rightful legal system. Our safeguard against losing that precious right is the twelve-person jury. Armed with the power of knowledge, our juries across America can work mightily on behalf of justice to the American people and help check corrupt powers in governmental offices and agencies.

It may be said, at least for conversational purposes, that those villains who’ve stolen the other three branches of government see great advantage in suppressing the public’s knowledge of the first branch. As we shall read below, “A right  concealed is a right denied”. Totalitarianism, fascism, or rule by Oligarchy and Plutocracy cannot function in our Republic of laws whenever the first branch is brought to bear by the people themselves.

In a small but powerful booklet which was copyrighted in 1996, former Washington State Supreme Court Justice William Goodloe gives an accounting of the origin and establishment of our present-day jury powers. I would like to share with you
some passages from his essay entitled:

“Jury Nullification: Empowering The Jury As The Fourth Branch Of Government”

Quoting former Washington State Supreme Court Justice William Goodloe: Of all the great trials in history tried at Old Bailey in London only one is commemorated by a  plaque. Located near Courtroom Number Five it reads:

“Near this site William Penn and William Mead were tried in 1670 for preaching to an unlawful assembly in Grace church Street. This tablet commemorates the courage and endurance of the Jury. Thomas Vere, Edward Bushell and ten others, who refused to give a verdict against them although they were locked up without food for two nights and were fined for their final verdict of Not Guilty. The case of these jurymen was reviewed on a writ of Habeas Corpus and Chief Justice  Vaughan delivered the opinion of the court which established the Right of Juries to give their Verdict according to their conviction.”

The case commemorated is Bushell’s Case, 6 Howell’s State Trials 999 (1670). This case is a good beginning for tracing the roots of a legal doctrine known as jury nullification.

The year was 1670 and the case Bushell sat on was that of William Penn and William Mead, both Quakers, who were on trial for preaching an unlawful religion to an unlawful assembly in violation of the Conventicle Act. This was an elaborate act
which made the Church of England the only legal church. The facts clearly showed that the defendants had violated the Act by preaching a Quaker sermon. And yet the jury acquitted them against the judge’s instruction. The Conventicle Act was  nullified by the jury’s not guilty verdict and the infuriated judge fined the jurors and jailed them  until such time as their fines should be paid.

Edward Bushell and three others refused to pay the fines. As a consequence they were imprisoned for nine weeks and Bushell filed a writ of habeas corpus. He and the other recalcitrant jurors prevailed in the Court of Common Pleas, and the  practice of punishing juries for verdicts unacceptable to the courts was abolished. Thus was re-established the right of jury nullification, an ancient right expressed in Magna Carta and dating from Greek and Roman times. And the jury’s  nullification verdict in the case, the trial of William Penn, established freedom of religion, freedom of speech, and the right to peacefully assemble. These rights became part of the English Bill of Rights, and later, part of the First Amendment to
the United States Constitution. The man whom the courageous jurors had saved, William Penn, later founded Pennsylvania and the city of Philadelphia in which the Declaration of Independence and the United States Constitution were written.

According to the doctrine of jury nullification, jurors have the inherent right to set aside the instructions of the judge and to reach a verdict of acquittal based upon their own consciences. As abolitionist lawyer Lysander Spooner explained the doctrine in Trial By Jury in 1852, page one:

“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.”

News of the rule in Bushell’s Case traveled across the seas and had a profound impact in the New World.

In 1735 in the colony of New York, John Peter Zenger, publisher of the New York Weekly Journal, was tried for seditious libel for printing articles exposing the corruption of the royal governor. This is perhaps the most important trial in  American history because the jury in this case established the rights of freedom of speech and of the press in America by nullifying the seditious libel law which  made it a crime to criticize public officials regardless of whether the criticism was true. The Zenger case has been cited by newspapers and history books case’ which laid the foundation for freedom of the press in the First Amendment to the United States Constitution. Although this case is often referred to, the substance or hinge upon which the case turned, jury nullification, is less well known.

Andrew Hamilton, Zenger’s attorney, argued jury nullification directly to the jury and gave his opinion of the law to the jury in direct opposition to the instruction of the trial judge. The Zenger case, and the jury’s nullification of the law in that case, established freedom of the press and was within living memory of some of the Founding Fathers and within common knowledge of all of them.

After Zenger, American colonial common law gave the major role in law to the jury. For example, judges in Rhode Island held office “not for the purpose of deciding causes, for the jury decided all questions of law and fact; but merely to preserve order, and see that the parties had a fair chance with the jury.” Similar practices were followed in other New England colonies. See Eaton, The Development of the Judicial System in Rhode Island, 14 Yale Law Journal 148,153 (1905) as quoted in Howe, Juries As Judges Of Criminal Law, 52 Harvard Law Review 582, 591 (1939).

End quoted passages from former Washington State Supreme Court Justice William Goodloe’s essay.

I think we all shall agree that some things are amiss in today’s courtrooms, where daily across this nation the vast majority of criminal trial judges admonish respective juries that “if the evidence shows that the defendant violated the law, you must convict”. That is simply not true, and when a judge tells that to a jury he is lying – the jury does not have to convict, despite an obvious infraction of the law by the defendant, because as we now see clearly, the jury has a duty to judge the  law as well as to judge the facts presented against the defendant.

American history shows that the role of juries played a major part in forcing government to repeal and abolish the Prohibition laws of the 1920s and 1930s. Juries all across America began to refuse to convict, and the law enforcement  community was left with the quandary in which it became pointless to arrest the rural moon-shiner. That jury activism, repeated again and again in countless courtroom trials across America, finally carried the will of the people to its  resounding triumph over the oppressive and un-Constitutional laws of Prohibition.

The Federal government was created in part to protect rights which predate governments, to protect rights which are present in each soul at birth and are inherent in the individual citizen. The government was not invented to give us those rights. No state or government, being man-made creations, may legitimately hold ultimate authority over the individual human soul and each soul’s inherent, unalienable rights. This nation’s founders in consensus agreed that those rights are  borne to each new person by virtue of his  passage through the bone gates of birth. Our lawful government was created to recognize  and protect our rights, and it is sheer folly and ignorance which would have any American citizen believe that  the government gives him his rights. The most powerful document in human history, the American Declaration of Independence, conveys cognizance of that fact, and the Bill of Rights in our own Constitution guarantees it, and by that eternal  principle America has thrived.

Because this point of law is so alien to the programming and conditioning of recent generations of American citizens I repeat and expound yet once again: While it adds a formal legitimacy to our rights, a legal recognition of our rights, and acknowledges that those rights are pre-existing and inherent in the individual, the U.S. Constitution does not propose to “grant” or “give” us our rights. Instead, it simply declares its duty, its obligation, and its responsibility to recognize and protect those rights.

Therefore we see that any judge who tells the jury that “if the facts and evidence show that the defendant violated the law, you must convict” is simply lying to the members of the jury, and of course that judge is himself committing a violation of law by giving that instruction to the jury. The lovely, liberating, justice-bearing truth is that the jury can judge the law in that judge’s courtroom as well as judging the facts of the case before it. The Jury’s verdict is final, and no juror may legally be intimidated for his verdict.

A twelve-person jury holds a unique power which is brought to the American courtroom on behalf of We The People. By that unique power the entire system of American justice may finally be purged of any corruption which may have been  inserted through the personality or preferences or personal perceptions of an individual judge, or through the inferior, contradicted laws which may have been left on any jurisdiction’s law books for whatever reason. By judging of the law as well as of the facts of the case before the jury, the twelve citizens are exercising the supreme power of We The People. It is the people’s check upon the balances of power as arrayed in the nature and structure of American government.

Now we are confronted with a phenomenon which might cause Perry Mason to turn in his grave. The individual American’s  last line of defense against such usurpations is itself under siege. The twelve-person fully informed jury is itself under
attack by the Judicial branch, from within. Let’s return briefly to former Justice Goodloe’s writings.

~ Begin quoted passages from Justice Goodloe, in the section entitled “The Navigation Acts and the Declaration of Independence”:

The Declaration of Independence, America’s birth certificate, lists the reasons compelling us to separate from England. One of the reasons listed against the King and Parliament is – “For depriving us in many cases of the benefits of Trial by Jury”. There is an important story here.

To raise taxes Parliament had passed the Navigation Acts requiring all trade with the colonies o be routed through England so that England could collect duties. Smugglers, such as John Hancock and other Founders, defied the Navigation Acts  and brought tax-free goods into the colonies. The colonists viewed the smugglers as heroes so that when the British Navy captured smugglers and they were tried before colonial juries, the jurors acquitted the smugglers and their ships were returned to them. Thus, colonial juries nullified the Navigation Acts. In response, the King abolished trial by jury in smuggling cases and established vice-admiralty courts to hear smuggling cases without juries. See Schef lin, Jury Nullification: The Right To Say No, 45 Southern California Law Review 168, 174 (1972).

The colonists were so incensed at having their right to trial by jury, and their right to jury nullification, taken away from them that they listed this as one of the reasons in the Declaration of Independence for separation from England. The  American Revolution was fought, in part, to preserve  the right of jury nullification.

~End passages from former Washington State Supreme Court Justice William Goodloe’s essay.

From the above we see clearly that some among the colonists, including some of this nation’s Founders, sought ways to get around the tax laws of the day by smuggling shipments to avoid British taxation. They were viewed as heroes by many colonists, despite the fact that they were operating against the law. When people are oppressed by government, they naturally seek ways around that oppression, and in the case of our nation’s Founders, their views upon law-breaking to avoid taxation had a moral justification. I maintain that Americans today hold equal access to such morality,  by which the human spirit, which seeks freedom to live and act in accordance with higher principles than those put forth by government. It is an American tradition and it is a part of our historic rise to greatness as a people. It keeps government in its proper place in relation to the individual citizen, a perspective which subjects government to the will of the people. Anything less  becomes tyranny, as we too clearly see today. Now let us take a look at some of that Founding consciousness as regards the social rights to trial by jury and  jury nullification.

~Begin quoted passages from former Washington State Supreme Court Justice Goodloe’s essay:

The Founders’ view of the jury as being of paramount importance in defending liberty is easily seen when examining the words of the Constitution. There are only 14 words describing freedom of speech and of the press in the Constitution. But  there are 186 words describing trial by jury in the Constitution. It is guaranteed  in the main body in Article 3, Section 2, Paragraph 3, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently, three times, or  has as many words devoted to it.

It is plain that the Founders viewed the jury trial right as the most important right since it gave birth to, and defended, all other rights. It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as rights retained by the people under the Ninth Amendment.

For anyone to assert after Zenger, the Navigation Act cases, the Declaration of Independence, and the great volume of language about the jury in the Constitution that the Founders would intend the jury to be a mere fact-finder that must blindly follow the law as dictated by a judge is to fly in the face of logic and history. It is also to f ly directly against the explicit words of the Founders about the jury’s role.

“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 it’s constitution.” – Thomas Jefferson, drafter of the Declaration of Independence and Third President, in a letter to Thomas Paine, 1789, The Papers of Thomas Jefferson, Vol. 15, p. 269, Princeton University Press, 1958.

right, but his duty…. to find the verdict according to his own best understanding, judgment, and conscience even though in direct opposition to the direction of the court.” – John Adams, first proponent of the Declaration of Independence and Second President, 1771 2 Life and Works of John Adams 253-255 (C.F. Adams ed. 1856)

You the jurors have nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” – John Jay, first Chief Justice of the United States Supreme Court, charging the jury in Georgia v. Brailsford, 3 Dallas 1, 4, (U.S. 1794).

“That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is entrusted with the power of deciding both law and fact.” – Alexander
Hamilton, first Secretary of the Treasury, People v. Croswell, 3 Johns Cas. 361, 362 (1804) as reprinted in Sparf and Hansen v. United States, 167 U.S. at 146- 148, dissenting opinion, (1895).

~End quoted passages from former Washington State Supreme Court Justice William Goodloe’s essay.

As former Washington State Supreme Court Justice William Goodloe has duly shown, the American Jury is in effect a branch of government. There is no legitimacy in any law which fails to conform to the dictates of the government’s founding legal charter, from which all just law must spring. Being true enough that anyone may clearly see and understand that statement, we begin now to understand what has been done from within to destroy America.

What is being done presently includes such as these few examples: to “outsource” American industry; to redistribute wealth; to impose illegal laws as if those laws had the force and weight of genuine law; to unlawfully possess lands within the several states; to forge, shape, and design the perceptions of American generations via Federal involvement in education; to allow foreign ownership over the issuance of America’s money system (the Federal Reserve); to employ the machinery of imperialism through economics, cultural encroachment, monopolycapitalism, Policy both foreign and domestic, Statecraft, and military power; and to “dumb down America” for assimilation into the encroaching one-world government of the New World Order.

Jury nullification remains the law of the land in every American jurisdiction. The ruling of Chief Justice Vaughan in Bushell’s case that the jury can not be punished for its verdict stands today in every jurisdiction, state and federal. This, coupled with the rule that verdicts of acquittal are final, is the substance of the power of jury nullification. Unless either or both of these two pillars of freedom are eroded away, the power of jury nullification is and will always be the law of the land. If the original intent of the Founders is our guide to the Constitution, then there is no doubt that jury nullification is a Constitutional right of both the defendant and of the jurors themselves, an unalienable part of the jurors’ identity as sovereign citizens with the power to judge laws.

As the court has stated in U.S. v. Moylan, 417 F.2d 1002, 1006 (4th Circuit Court of Appeals, 1969):

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdicts contrary to the law as given by the 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.”

The power of jury nullification is a fundamental and integral part of our legal system. The debate today is not about whether juries have the power to nullify, but whether they should be told about their power. [EA: in a court room] For example, in a Vietnam War protest case, U.S. v. Dougherty, 463 F.2d 1113, 1130 (D.C. Circuit Court of Appeals, 1972), the court praises jury nullification:

“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 commented 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 jury is an unsettling institution to government because it possesses the power to stop government coercion. The jury’s true function is to examine the aw and to judge the morality of the law in its application to a particular case. It is the safety valve of the system that tempers, through mercy, the mechanical
application of rigid rules.

If legislators are disturbed by those occasions when jurors hold in abeyance or refuse to apply a particular law it is well to recall the words of Thomas Jefferson:

“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 of them.” – Thomas Jefferson, letter to Abbe Arnoux, 1789; The Papers of Thomas Jefferson, Vol. 15, p. 282, Princeton University Press.

…As one writer has observed:

“The fundamental safeguards have been established, not so much by lawyers as by the common people of England, by the unknown juryman who in 1367 said he would rather die in prison than give a verdict against his conscience, by Richard Chambers who in 1629 declared that never till death would he acknowledge the sentence of the Star Chamber, by Edward Bushell and his eleven fellow-jurors who in 1670 went to prison rather than find the Quakers guilty, by the jurors who acquitted the printer of the Letters of Junius, and by a host of others. These are the men who have bequeathed to us the heritage of freedom.” – (A. Denning, Freedom Under Law, 64, 64 (1949) as reprinted in Schef lin and Van Dyke, Jury Nullification: Contours of a Controversy, Law and Contemporary Problems, Vol. 43, No. 4, p. 111 n. 248)

Jury nullification is an idea that libertarians instantly love, authoritarians instantly hate, and that liberals and conservatives walk around warily because they know that it will help them on some issues but that it may also dismantle the coercive parts of their political agendas. Regardless of our particular political views, no one can deny that our freedom has been won for us with the power of jury nullification, and that it may be lost without it.

A right concealed is a right denied.

William C. Goodloe

~End excerpts from essay on jury nullification by former Washington State Supreme Court Justice Goodloe.

For more information -

The American Juror (published quarterly; $25 annual subscription; editor Iloilo M. Jones)

Post Office Box 5570

Helena, MT 59604-5570

send e-mail
to: aji@fija.org

Fully Informed Jury Association
* 1-800-TEL-JURY *

406-442-7800
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Montana, 59604-5570

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