The First Branch
In a small but powerful booklet (1) 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 Gracechurch 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.”
History Of Jury Nullification
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 across the land as the ‘great 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. I shall furnish an hypothetical example.
Let us imagine for a moment that I were to stand on the courthouse steps and smoke a marijuana cigarette and subsequently get myself arrested for violating government’s laws prohibiting the possession of marijuana. In today’s repressive governmental environment I would of course be promptly arrested and charged. Then I would appear before a judge during arraignment, whereupon I would indeed truthfully admit that I certainly was smoking marijuana at the time of my arrest, and that I was doing so as a personal protest against this government’s insane War on Drugs. The charge against me would stand and I would be given a court date, for which I would demand my right to a trial by jury.
At the beginning of my trial by jury the predictable instructions by the judge to the jury would most likely declare that if proceedings proved that I had broken or violated the law then the jury therefore, in light of offered evidence, sworn testimony, and my own confession, “must convict”, and that I must face the court’s appropriate sentence according to scheduled penalties for said crime.
That is the customary way it is done in America’s countless courtrooms today. “If the evidence shows beyond a reasonable doubt that the defendant violated the law, you must convict” is the usual and general instruction to the jury by the judge.
But the truth is that the jury has every right to decide that in this particular case, in this particular courtroom, regardless of the facts brought against me and my own confession, the law itself, under scrutiny of each juror’s conscience, may be nullified and rendered inapplicable in that courtroom, in my case. The jury is quite free to, and empowered by law to, weigh other concerns, such as these two important facts which the court’s instructions to the jury usually omit: 1) there is no victim in my “crime”; and, 2) the law itself denies me the full and constitutionally-protected right of self-ownership.
A jury of my peers, who of course would be aware individual sovereigns, could, if that jury was so inspired by its collective conscience, excuse my marijuana-smoking on the grounds that as an American citizen I am expected to own my body as any self-owner would, and that the anti-marijuana law itself deprived me of ownership over my own body by seeking to dictate what I may and may not put into my body. In such a case the jury simply would nullify the law right there in the courtroom in open defiance of the instructions of the court, and set me free.
That is an hypothetical example of the power inherent in America’s twelve-person jury system, and it is one of the last strongholds against tyranny-by-government that still remains for us today. In another example which is not hypothetical but instead is a matter of historic record, and which parallels my given hypothetical example, 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. It can happen again today, which is exactly why Americans have been deliberately kept in the dark about their rights and powers as jurors.
In keeping the knowledge of a jury’s lawful powers away from public awareness, the government sponsored public schools have played a large role. Also contributing to the general ignorance of the average American on this matter has been the main-stream media and the press – but as we’ve already seen herein, the public school system, the media, and the press have long been in the control of the tax-exempt foundations which dominate them. Evil men who would seek to govern Americans outside the legitimate parameters of constitutional government cannot easily do so as long as the public remains aware of the powers of the fully informed jury.
But of course evil men still do try to control the lives of Americans. Through the twenty-four decades of American history the Judicial Branch of government has worn more and more corrupt. Today’s American speaks freely of “legislating from the Bench”, especially in the wake of the recent Kelo ruling. Americans are growing increasingly wary of the Judicial branch, just as they are of the Executive and the Legislative branches. Now we know that our due recourse awaits the re-awakening of the twelve-person jury of our good neighbors and peers, and we know that we indeed possess a Fourth Branch of government after all.