https://mises.org/library/rise-and-fall-jury-nullification-0
Jury nullification has a history, even before the birth of the American colonies the British went from outright banning of jurors judging the law (along with the facts of the crime) towards ensuring that juries had that right.
Colonists enjoyed the same restrictions on their government and a high majority of our founders (highly sceptical of an over powerful central government) did too. (Jefferson, Hamilton, Adams, John Jay the first supreme court justice)
Imagine the 1760 time frame when going to church was mandatory in some colonies and you missed a Sunday or two, jury Nullification would be you friend as the court sees you as a criminal. Bad laws are to be broken, and the people need to nullify towards getting those laws repealed.
Imagine the 1855 time frame where the Fugitive Slave Act made it a crime anywhere in the US to give aid to a slave seeking freedom (which is why their ultimate destination was Canada) .. jury nullification would be your friend if you got caught.
"All men are born free; Liberty is a gift which they receive from God himself; nor can they alienate the same by con-sent, though possibly they may forfeit it by crimes. . . .
The right of the magistrate arises only from the right of private men to defend themselves, to repel injuries, and to punish those who commit them: that right being con-veyed by the society to their public representative, he can execute the same no further than the benefit and security
of that society requires he should. When he exceeds his commission, his acts are as extrajudicial as are those of any private officer usurping an unlawful authority; that is, they are void; and every man is answe rable for the wrong which he does. A power to do good can never become a warrant for doing evil. Only the checks put upon magistrates make nations free; and only the want of such checks makes them slaves. They are free, where their magistrates are confined with-in certain bounds set them by the people. . . . And they are slaves, where the magistrates choose their own rules,
and follow their lust and humours . . . those nations only who bridle their governors do not wear chains."
- Cato's Letters
"Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life or limb or property or reputation without the concurrence of the
voice of the people. . . . Whenever a general verdict is found, it assuredly determines both the fact and the law.
It was never yet disputed or doubted that a general ver-dict, given under the direction of the court in point of law, was a legal determination of the issue. Therefore,
the jury have a power of deciding an issue upon a gen-eral verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict
according to the direction of the court, against their own opinion, judgment, and conscience? . . . Should the mel-
ancholy case arise that the judges should give their opin-ions to the jury against . . . fundamental principles, is a juror obliged to give his verdict generally, according to
this direction, or even to find the fact specially, and sub-mit the law to the court? Every man, of any feeling or conscience, will answer, “No.” It is not only his right,
but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
- John Adams 1771
In
1794, the first Chief Judge, John Jay, instructed a jury in a civil case as follows:
[O]n questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide.
But it must be recognized that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occa-sion, we have no doubt, you [the jury] will pay that re- spect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts it is, on the other hand, presumable, that the courts are the best judge of the law. But still both
objects are lawfully, within your power of decision."
Alexander Hamilton, one of the great lawyers of that era, argued:
[I]n the general system of powers in our system of juris-prudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the
power of the court is absolute and exclusive. . . . That in criminal cases, the law and fact being always blended,
the jury, for reasons of a political and peculiar nature . . . is entrusted with the power of deciding both law and fact"
Finally, Lysander Spooner in 1852 wrote:
"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 govern-ment’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the govern-ment, if they are not allowed to determine what those
liberties are? Any government, that is its own judge of, and determines authoritatively for the people, what are
its own powers over the people, is an absolute govern-ment of course. It has all the powers that it chooses to exercise"
My next blog post will highlight the erosion of this right in this country since this high water mark in the 1850s .. you guessed it, this country changed greatly from 1861-1865 as it shifted from a Republic to a democracy. Lincoln helped kill the Republic by his tyranical actions.
Jury nullification has a history, even before the birth of the American colonies the British went from outright banning of jurors judging the law (along with the facts of the crime) towards ensuring that juries had that right.
Colonists enjoyed the same restrictions on their government and a high majority of our founders (highly sceptical of an over powerful central government) did too. (Jefferson, Hamilton, Adams, John Jay the first supreme court justice)
Imagine the 1760 time frame when going to church was mandatory in some colonies and you missed a Sunday or two, jury Nullification would be you friend as the court sees you as a criminal. Bad laws are to be broken, and the people need to nullify towards getting those laws repealed.
Imagine the 1855 time frame where the Fugitive Slave Act made it a crime anywhere in the US to give aid to a slave seeking freedom (which is why their ultimate destination was Canada) .. jury nullification would be your friend if you got caught.
"All men are born free; Liberty is a gift which they receive from God himself; nor can they alienate the same by con-sent, though possibly they may forfeit it by crimes. . . .
The right of the magistrate arises only from the right of private men to defend themselves, to repel injuries, and to punish those who commit them: that right being con-veyed by the society to their public representative, he can execute the same no further than the benefit and security
of that society requires he should. When he exceeds his commission, his acts are as extrajudicial as are those of any private officer usurping an unlawful authority; that is, they are void; and every man is answe rable for the wrong which he does. A power to do good can never become a warrant for doing evil. Only the checks put upon magistrates make nations free; and only the want of such checks makes them slaves. They are free, where their magistrates are confined with-in certain bounds set them by the people. . . . And they are slaves, where the magistrates choose their own rules,
and follow their lust and humours . . . those nations only who bridle their governors do not wear chains."
- Cato's Letters
"Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life or limb or property or reputation without the concurrence of the
voice of the people. . . . Whenever a general verdict is found, it assuredly determines both the fact and the law.
It was never yet disputed or doubted that a general ver-dict, given under the direction of the court in point of law, was a legal determination of the issue. Therefore,
the jury have a power of deciding an issue upon a gen-eral verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict
according to the direction of the court, against their own opinion, judgment, and conscience? . . . Should the mel-
ancholy case arise that the judges should give their opin-ions to the jury against . . . fundamental principles, is a juror obliged to give his verdict generally, according to
this direction, or even to find the fact specially, and sub-mit the law to the court? Every man, of any feeling or conscience, will answer, “No.” It is not only his right,
but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
- John Adams 1771
In
1794, the first Chief Judge, John Jay, instructed a jury in a civil case as follows:
[O]n questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide.
But it must be recognized that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occa-sion, we have no doubt, you [the jury] will pay that re- spect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts it is, on the other hand, presumable, that the courts are the best judge of the law. But still both
objects are lawfully, within your power of decision."
Alexander Hamilton, one of the great lawyers of that era, argued:
[I]n the general system of powers in our system of juris-prudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the
power of the court is absolute and exclusive. . . . That in criminal cases, the law and fact being always blended,
the jury, for reasons of a political and peculiar nature . . . is entrusted with the power of deciding both law and fact"
Finally, Lysander Spooner in 1852 wrote:
"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 govern-ment’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the govern-ment, if they are not allowed to determine what those
liberties are? Any government, that is its own judge of, and determines authoritatively for the people, what are
its own powers over the people, is an absolute govern-ment of course. It has all the powers that it chooses to exercise"
My next blog post will highlight the erosion of this right in this country since this high water mark in the 1850s .. you guessed it, this country changed greatly from 1861-1865 as it shifted from a Republic to a democracy. Lincoln helped kill the Republic by his tyranical actions.
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