A short history of the right of a jury to decide matters of law as well as fact. And the obligation that rests upon society to apply this right properly.
According to well established Common Law, man’s law which violated natural law or God’s law was null and void. And, according to the Founders, two twin pillars upon which Freedom in a well-ordered, civilized society, rested was that: of law inherent in the nature of things or Natural Law; and law as given by God, Divine or Revealed law. It was only natural for the Colonists therefore to proclaim the power through the independence of juries, to decide whether man’s laws were founded upon God’s laws. If they were not they could be considered null and void. If a man made law conflicted with God’s laws then God’s laws was considered supreme. Furthermore they realized that many times extenuating circumstances could create a situation where conflicting laws could both apply. For instance, one often hears the argument that if one’s life (or the life of a spouse, family member or neighbor) is in the balance man-made laws take a second seat to the higher law-that of preserving life. For example, If a life was in danger I’m certainly not going to pull off a freeway exit and stop and wait several minutes at a red light, at three in the morning. when there is little to any traffic.
What does all this have to do with the trial by jury, you ask? It seems that in England there was quite a long struggle over Jury Trials and their independence. Kings naturally favored Star Chambers or other systems which hampered Jury trials, while the people preferred Jury trials and the right to decide whether the law should apply to a particular case (the right to decide upon matters of law). In 1760 William Penn, for example, owes his life to the courage of the Jury when they, against orders of the Court (they were sequestered by the King and ordered to bring back a verdict of guilty), refused to render a guilty verdict.
In England and early colonial America there were many other trials and other uses of the juries power to acquit in spite of the law. But let’s fast foward to the John Peter Zenger case. In 1735 Zenger was arrested and put on trial for Libel-publishing information critical of the Governor of New York. Libel, at the time was interpreted to mean anything, whether true or not, critical of the King. Andrew Hamilton took the case for the defense. Hamilton argued that the Jury could decide upon the merits of the law and it took them all of about 15 minutes to acquit. The Zenger case is much ballyhooed by the news media for establishing once and for all the Freedom of the Press. What is forgotten and ignored by the media is the role of the Jury in this case and their right to decide matters of law as well as fact. So the question begs to be asked, aside from freedom of the press, why doesn’t the Media also trumpet the right of Juries to decide matters of law as well as fact?
Continue onward to struggles between the Colonists and England just before the Revolution. Under the period of “benign neglect,” the colonists developed their own legal systems and were used to trading, unfettered and untaxed, with many other countries. So they would naturally bristle against the imposition by England of any tax, (impost, tariff or other?) which would hinder their trade intercourse, independence or profits. England passed several Acts which imposed taxes of one sort or the other upon this “free trade.” When England attempted to enforce the law by arresting ship captains for “smuggling” many times the colonial courts, with their jury trials, would acquit-the colonists knowing full well that they had the power to determine whether the law should be applied in a particular case or not. England was becoming embarrassed because colonial courts were acquitting more often than not. As a reaction, England started passing what became known as the Admiralty Acts, which among other things, outlawed trial by jury (and of course, the juries right to decide matters of law). One of the key factors propelling the Colonists to confrontation with England revolved around Juries and their right to decide upon matters of law as well as fact.
The literature of the time is replete with statements from founding fathers and others upon the subject of trial by Jury and Jury Rights. For instance, John Adams stated in 1771 that “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.” Many Juries of the day exercised the power, as well they ought, to question both parties or their witnesses upon matters of both law and fact.
That great Constitutionalist J. Reuben Clark had great insight when he said of the “separation of powers” and “checks and balances” system of the Constitution, that it was a both a “miracle” and a product of “genius” and that it was here “that the divine inspiration came.” Referring to this checks and balances system of the Constitution, Thomas Jefferson remarked that the independence power of the trial by jury was one of the checks built into the Constitution. He further remarked in a letter written in 1789 that the trial by Jury is an “anchor. . . by which a government can be held to the principles of its constitution.” In fact he referred to it as the “peoples greatest privilege” by which the common ordinary people could hold in check a corrupt government.
The Early Supreme Court. In the Supreme Court case, Georgia vs. Brailsford, in 1794 remarked that the Jury “has the right to judge both the law as well as the fact in controversy.” Many other Court cases reaffirmed this power. Grand Juries exercised independence (the independent power to investigate or indict anyone or anything) early on in America’s history. However the “powers that be” today do not recognize this power. In the early 1980’s a Grand Jury here in Utah brought an indictment against the Federal Reserve System-for illegally manipulating the monetary system. The U.S. Attorney quashed the indictment (as well as several other shady manipulations). The Grand Jury knowing of their independent power attempted to bypass the U.S.Attorney-all to no avail. The Foreman of that Grand Jury was Hans Anderson-son of H. Verlan Anderson, author of several great freedom related books, including Many Are Called But Few Are Chosen and The Great and Abominable Church of the Devil.
The right of a jury to decide matters of law as well as fact can be a double edged sword. The Independence the Jury has been used for both good and evil. Many left wing radical groups, libertarians, and even Marxist-Leninist terrorist organizations lobby for the power of juries to decide upon matters of law as well as fact. The Marxist Eduard Bernstein for example takes credit for jury independence in the “historical inevitability” and different stages of Communism. Marxists are also involved in aggressively promoting jury nullification as a way to subvert and demoralize society regarding drug and sex crime laws. It is also well known that many of these groups attempt to use civil disobedience and jury independence as a tool of communist “change.” Ezra Taft Benson, for example, taught us that the “Civil Disobedience ” of the Sixties, for example had much less to do with Civil Rights than with enlarging and empowering the Federal Government over the power and laws of individual States.
For these reasons many are leery with empowering Juries with the independence to decide matters of law as well as fact. What it really boils down to however is the moral fiber of society. A society which is fundamentally good and upholds God’s laws will be one blessed with freedom, peace and security. And will properly apply the independence of a jury to decide upon matters of law as well as fact. On the other hand, a society, which promotes amoralism or “moral anarchy” and improperly apply jury independence, will result in the loss of freedom, peace and security.
To recap then, improperly used, jury independence opens up the the floodgates of moral anarchy. But moral anarchy, just as political anarchy, always leads to eventual tyranny. And this is one more reason why, in the words of John Adam’s, “our constitution [and our legal heritage and Common Law tradition] was made only for a moral and religious people. It is wholly unsuited to any other.” Let us promote jury independence but let us also realize that improperly used it can be a very dangerous weapon for tyranny.
The Moral Liberal Contributing Editor, Steve Montgomery, is a self-educated constitutional scholar, a former pundit at NewsMax.com (2001), and author of The Perfect Law of Liberty.