WHO NULLIFIED JURY NULLIFICATION?
By Jack Lawrence
It is at all times necessary,...that we frequently refresh our patriotism by reference to first principles. It is by tracing things to their origin that we learn to understand them, and it is by keeping that line and that origin always in view that we never forget them.
All human constitutions are subject to corruption, and must perish unless they are timely renewed, and reduced to their first principles.
The right to trial by jury as guaranteed by Magna Carta was justly obtained from King John, with sword in hand, and is, in substance, but a constrained declaration of our original, inherent, indefeasible natural rights as citizens.Sam Adams (1772)
Thomas Andrew Green's 1985 book, Verdict According To Conscience forever established the common-law pedigree of jury nullification. Nonetheless, Green did not deal with the possibility that, no matter how inaccurate Leveller theories of nullification might have been, such a theory might have been enshrined in the United States Constitution. My research indicates that the jury right which appears in the Declaration of Independence is the Leveller nullification right and, consequently, a Ninth Amendment penumbra right,1 if not far more. The watchwords for identifying the Leveller nullification rights are: 'jury of the vicinage,' 'ancient (or sacred) right,' and 'judges of law as well as fact.' The requirement of unanimous, general verdicts was already well established in America in 1787, and was not the Leveller right.
Possibly the most tattered ensign of our liberty is the doctrine of jury nullification. Juries could and did nullify before and during the American Revolution, and this was a central reason that the right to jury trial appeared as it did in state Declarations of Rights circa 1776-1780. Later state Constitutions also provided, in prosecutions for libel, the jury shall have the right to determine the law and the fact,' while others added: 'as in other cases.'2 in bothGeorgia v. Brailsford, 3 Dall. 1, 4 (1794), and Bingham v. Cabot,3 Dall. 19, 32-33 (1795), the U.S. Supreme Court indicated support for the nullification right.
A Leveller Doctrine Appeals To The Quakers
Colonial jury nullification finds its origins in the trial of William Penn and William Mead in London in 1670. Forbidden to hold services in his church, Penn held services in a peaceful assemblage outside the church, on Grace-church Street. Penn and Mead were indicted for conspiring to disturb the peace. Their jury repeatedly gave a special verdict which favored acquittal, but each time was sent out for more deliberation. Finally returning a verdict of "Not Guilty," the jury was imprisoned and fined. Penn was fined for contempt.
Several of the jurors challenged their imprisonment by habeas corpus, and the case releasing them, Bushel's Case,3 although only establishing the principle of jury non-coercion, was seen by writers such as Sir John Hawles, as approval of jury nullification, which Penn had indeed argued.4
Penn had learned of the Lilburnian argument he used both due to his imprisonment in the Tower of London in 1668,4a and because English Quakers adopted these arguments in response to their official suppression and trials, particularly at Westminster, resulting from the Quaker Act, 14 Chas. 2, c. 1, the Act of Uniformity, and the Conventicles Act, 16 Chas. 2, c. 4 (1664).
Although 'Free-born John' Lilburne had, some three decades earlier, won a similar acquittal in Guild Hall in which he, too, cited the same passages of Coke's Institutes for extending all Magna Charta rights to every English subject and his jury thereafter interposed itself as a barrier to his conviction,5 Penn's case received greater play in America, not wholly undue to its role as a catalyst of the Quaker exodus to this shore.
Among other reasons for this case's influence are:
First, Penn drafted the Concessions and Agreements of West Jersey (1676), for the two Quaker proprietors of that colony. Chapters XIII through XXIII are a direct precursor of our Bill of Rights and reflect Penn's knowledge of the Leveller movement.6 Once Penn received a charter for his own colony, Pennsylvania, he used these earlier experiences to draft its Charter of Privileges (1701).
Secondly, Penn's case was relied on heavily in the jury nullification argument in the watershed John Peter Zenger case in 1735.7 Zenger firmly established jury nullification as a defendant's right in prosecutions for libel.
A pious Quaker anxious to show others the way to liberal political truths, Penn, like Lilburne, pamphleteered extensively, a practice which he brought to America. His own report of this trial is given in The People's Ancient and Just Liberties Asserted in the Trial of William Penn and William Mead (1670).8 In his England's Present Interest Considered (1675),9 Penn again cites Coke's Institutes to support the protection of 'due process' rights by jury nullification. Penn's defense was widely publicized in a revolutionary standard, "Free Americay!" by Joseph Warren.10 Most prominent, however, was Penn's publication of the 1680 trial of Henry Carr, or Henry E. Care, in his Excellent Priviledqe of Liberty and Property Being the Birth-Right of the Free-Born Subjects of England (1687), which spread the nullification issue throughout the colonies.
Thomas Jefferson is more closely associated with the word 'nullification' today. Further, some have opined that the 'right to revolt' in the Declaration of Independence was the only resort to natural law made therein. To the contrary, however, 'due process' is derived from the 'natural equity' concept of fairness, and we find that Jefferson refers to the right of jury trial in lieu of 'due process' in the Declaration, repeating the practice of his draft of the Virginia Constitution, and of the Bill of Rights of 1689.11
Jefferson once stated that, from the early Eighteenth Century until the Revolution, "Coke/Lyttleton was...the universal lawbook..."12 In Littleton on Coke, as in the Institutes, Lord Coke equates the 'law of the land' language of Magna Charta with 'due process of law.' This, indeed, is the portion of the Institutes invoked by Lilburne and Penn, using Bonham's Case to argue that a law against natural right, -i.e., against equity and good conscience, is void.13
Many colonial bills of rights coequated, like Jefferson did, the jury right for 'law of the land' or 'due process' terminology. Juries were seen as a device to protect natural rights in an era when procedural due process was only rarely a point on appeal. Please note similarities of the following clauses to the prototype Virginia Declaration of Rights:
"8....that no man shall be deprived of his liberty, except by the law of the land or judgment of his peers."
Virginia Declaration of Rights (Mason final draft).
"IX. That in all prosecutions for criminal offenses, a man hath a right to...a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty;...;nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers."
Pennsylvania Declaration of Rights (1776)(also Maryland-1777).
"XXI. That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."
Maryland Declaration of Rights (1776).
Georgia's 1777 Constitution contained 63 articles with Articles 39-43 dealing with trial juries. One read as follows:
"Art. XLI. The jury shall be judges of the law, as well as of fact, and shall not be allowed to bring in a special verdict; but if all or any of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion."
According to Jeremy Bentham,14 the nullification right was textually demonstrated in another form, which he takes from Article I of the North Carolina Declaration of Rights (1788):
"That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty,...property, and pursuing and obtaining happiness and safety." 15
Since one purpose of this work: is determining what jury right Madison submitted in his proposed Bill of Rights, please note that the (never adopted) preamble of Madison's Bill is textually similar to this passage, itself derived from Article I of the Virginia Declaration as drafted by Mason and Madison.
We find in Blackstone, Vol. IV, p. 348, the following:
"IV. The fourth method of trial in criminal cases is that by the peers of Great Britain, in the court of parliament, ...;...it differs little from the trial...by jury; except that no special verdict can be given in the trial of a peer;
(f) because the lords...are judges sufficiently competent of the law that may arise from the fact;...."
To complete our argument that the law of the land language in Magna Charta has been used to extend the right to the same trial the peerage received to every English subject, we only need re-examine the Great Charter itself:
36. From henceforth nothing shall be given or taken for a writ of inquisition upon life or limbs, but it shall be granted gratis, and shall not be denied.
39. No freeman shall be taken or imprisoned or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him unless by the lawful judgment of his peers, or by the law of the land.
Perhaps the right contended for was not so new!l6
Coke, like Jefferson, was unequivocal on the supremacy of Magna Charta.17 Coke referred to 42 Edw. III, cl. 1 (1368), to argue that a parliamentary act repugnant to it would be void.18
Coke relied on Edward III's republication of Magna Charta and the shifting of its 'law of the land' terminology to chapter 29, as well.19 The U.S. Supreme Court has specifically acknowledged this progression at 29 S.Ct. 20, probably following Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372 (1856).
Thus, the First Continental Congress (1774), which also recommended that each state draft its own Constitution, was not guessing when it adopted this highly emulated terminology:
"5. That the respective colonies are entitled to the common law of England, and...to the...privilege of being tried by their peers of the vicinage, according to the course of that law."
The Jefferson-Mason View
Jefferson reported his first case contesting a slave's freedom and argued by Thomson Mason, a relative of George Mason, in 1769. Gwinn v. Bugg, Jeff., 87 (Oct., 1769). Jefferson made his first argument calling for decision on the basis of Bonham's Case-type natural law in 1770. There, he invoked (Roman) natural law to argue on behalf of a slave challenging the same Virginia legislation as Gwinn had, that all men are born free and hence, his client could not be held in slavery at all. Howell v. Netherland, Jeff., 90 (Apr. 1770). Jefferson cited Pufendorf, De Jure Naturae et Gentium, Book IV, ch. 3, §§ 4 and 9. He argued that the precept that all men are born free took precedence over the law of custom, of which slavery was a product, because natural law is higher law. Jefferson lost this case to his mentor, George Wythe.
Thomson Mason returned on behalf of a slave in 1772. "In terms reminiscent of" James Otis' Writs of Assistance argument, he 'declared that the Act of 1682 enslaving Indians was contrary to natural rights and justice; hence, it was void ab initio.'20 Mason cited §§ 2, 4, and 5 of the same chapter of Pufendorf earlier cited by Jefferson. The case is Robin v. Hardaway, Jeff., 109 (April, 1772).
Jefferson also had been exposed to jury nullification when he was 14 or 15, and lived in the boardinghouse of his tutor, the Reverend James Maury. Maury was the Plaintiff in the Parson's Cause and took his own notes on the case, which was in the next county, at Hanover County Courthouse, Virginia.
Maury was one of the numerous Anglican Virginia clergy who, at Reverend John Camm's instigation, sued their parish for wages lost through the Two Penny Act of 1758. Richard Bland, the leading Lockeian theoretician in Virginia, had authored both Two Penny Acts (1755 & 1758), and had been in the vanguard of the fight with Camm. In an argument highly similar to that contained in Bland's pamphlet on the Pistole Fee Controversy (1753), Henry gave a Lockeian explanation of the 'social compact,' urged that local tax measures are only salutary, and rang out that the King who had disallowed the Two Penny Act had: "from being the father of his people degenerated into a tyrant, and forfeits all rights to his subject's obedience!" Cries of "Treason!" did indeed ring out, but the jury was so impressed by Henry's hour long charge that, as he requested, they returned only one penny damages.
However, Patrick Henry did not buy his own Pufendorf until 1764.21
In 1765, Jefferson stood at the door of the Virginia House of Burgesses to hear Henry declaim the Stamp Act, while he was still a student at William & Mary -
"Caesar had his Brutus - Charles the First his Cromwell,
- and George the Third..."
Jefferson noted that the air was filled with cries of "Treason!" But Henry continued:
" - may profit by their example!"
In 1769, ten days after Jefferson had become a member of the Virginia Assembly himself, the Assembly was discussing how to protest the Townshend duties. At that time. Parliament had dispatched two regiments of troops to quiet the Boston area. When George Washington led the Assembly in voting to make common cause with the Massachusetts protest, the new royal Governor, Lord Botetourt, closed the doors of the Assembly.22 Immediately, Jefferson sent to England for copies of Locke's On Government, Burlamaqui's Le droit naturel, Montesqieu, and others.
In 1761, in Boston, in the Writs of Assistance Case, James Otis had relied heavily on Dr. Bonham's Case and Viner's Abridgement to argue that an Act of Parliament against natural equity is void. In 1764, Otis' pamphlet. The Rights of the British Colonies Asserted and Proved, was published, with references to "Vattel, Harrington, Rousseau, Grotius, Pufendorf....Montesqieu, Coke, and Viner," and eight references to Locke.23 Directions found at the rear of the book called for the Committee of Correspondence to send copies to the other colonies. Jefferson, who at some point became a member of the Virginia Committee of Correspondence, may have been aware of Otis' theories voiding unjust laws.24
Jefferson probably did see Samuel Adams'(and the Correspondence Committee's) A State of the Rights of the Colonists, which was ordered sent to men like Jefferson at the November 20, 1772, Boston Town Meeting. It opens with a Lockeian discussion of the rights to Life, Liberty, and Property, as reiterated by Blackstone, and several concepts we later see in the Declaration of Independence. Then appears "A List of Infringements & Violations of Rights," specifying Boston's Intolerable Acts, which include these words:
"6th....But our Judges hold their commissions only during pleasure;
the granting them salaries out of this Revenue is rendering them dependent on the Crown for their support. The King upon his first accession to the Throne, for giving the last hand to the Independency of Judges in England,...by...consenting to an act of Parliament, by which the Judges are continued in office, ...was applauded by the whole Nation. How alarming must it then be to the Inhabitants of this Province, to find so wide a difference made between the Subjects in Britain and America, as the rendering the Judges here altogether dependent on the Crown for their support.
"8th. The extending the power of the Courts of Vice Admiralty to so enormous a degree as deprives the people...of their inestimable right to tryals by Juries: which has ever been Justly considered as the grand Bulwark and security of English property....for all forfeitures and penalties inflicted by the Statute of George the Third,...may be sued for in any Court of Admiralty in the Colonies; but all penalties and forfeitures which shall be incurred in Great Britain, may be sued for in any of his majestys Courts of Record in Westminster or...in Scotland, respectively. Thus our Birth Rights are taken from us; and that too with every mark of indignity, insult and contempt. We may be harassed and dragged from one part of the Continent to the other (which some of our Brethren here and in the Country towns already have been) and finally be deprived of our whole property, by the arbitrary determination of one biassed, capricious Judge of the Admiralty.
"10th. The Act passed in the last Session of the British Parliament, intitled. An Act for the better preserving his Majestys Dock Yards, Magazines, Ships, Ammunition and Stores, is, as we apprehend a violent infringement of our Rights. By this Act any one of us may be taken from his Family, and carried to any part of Great Britain, there to be tried whenever it shall be pretended that he has been concerned in burning or otherwise destroying any Boat or Vessel, or any Materials...belonging to his Majesty. For by this Act all persons...may be indicted and tryed either in any County or Shire within this Realm,...as his Majesty... may deem most expedient. Thus we are not only deprived of our grand right to tryal by our Peers in the Vicinity, but any person suspected,...may
"be hurried to Great Britain, to take his tryal in any County the King or his Successors shall please to direct; where, innocent or guilty he is in great danger of being condemned; and whether condemned or acquitted he will probably be ruined by the expense attending the tryal, and his long absence from his Family and business; and we have the strongest reason to apprehend that we shall soon experience the fatal effects of this Act, as about the year 1769 the British Parliament passed Resolves for taking up a number of Persons in the Colonies and carrying them to Great Britain for tryal, pretending they were authorised so do do, by a Statute passed in the Reign of Henry the Eighth, in which they say the Colonies were included, although the Act was passed long before any Colonies were settled, or even in contemplation."
Reprinted in: Jensen, Merrill, ed., Tracts of the American Revolution, 1763-1776 (Bobbs-Merrill Co., Inc., 1967), p. 233. The statute of George III resurrected from the reign of Henry the Eighth is: The Administration of Justice Act of 1774, 14 George III, ch. 39, § 1, 30 GB Stat. 367, 368.
But it seems equally likely that Jefferson was already aware of the threat to trial by jury imposed by the vice-admiralty courts due to the fact that George Mason had written "To the Committee of Merchants in London" in 1766 a letter later published in the London Public Ledger. In it, he claimed that repeal of the Stamp Act had not lain to rest issues like vice-admiralty courts: "These things did not altogether depend upon the stamp act, and therefore are not repealed with it."
Jefferson's next work to be discussed not only was popularized in England by Dr. Richard Price, whom Jefferson continued to write to for the rest of his life, but he was read more widely because between March, 1773, when Virginia's Correspondence Committee was formed, and February, 1774, every colony but Pennsylvania had formed a Committee of Correspondence.
In 1774, Jefferson published his first revolutionary pamphlet, A Summary View of the Rights of British America. At page 128, we find the following passage:
By the act for the suppression of riots and tumults in the town of Boston,..., a murder committed there is if the governor pleases, to be tried in the Court of King's Bench in the island of Great Britain, by a jury of Middlesex. The witnesses too, on receipt of such a sum as the Governor shall think it reasonable for them to expend, are to enter into recognisance to appear at the trial. This is in other words taxing them to the amount of their recognisance; and that amount may be whatever a Governor pleases. For who does his majesty think can be prevailed on to cross the Atlantick for the sole purpose of bearing evidence to a fact? His expences are to be borne indeed as they shall be estimated by a governor; but who are to feed the wife and children whom he leaves behind, and who have had no other subsistence but his daily labor?....And the wretched criminal, if he happened to have offended on the American side, stripped of his privilege of trial by his peers, of his vicinage, removed from the place where alone full evidence could be obtained, without money, without counsel, without friends, without exculpatory proof, is tried before judges predetermined to condemn.
Jefferson sent two copies to the Williamsburg Convention of August 1, 1774. One was to his cousin, Peyton Randolph, a delegate, another was to Patrick Henry. As shown above, the Declarations and Resolves of the First Continental Congress, published October 14,1774, contained Jefferson's language. The Convention had realized what the Levellers had - that the Jury of the Hundred, the Grand jury, and the petit jury had all come from the locality where the King, when riding circuit, would hold his court. This was the ancient jury right confirmed by Magna Charta.
The backdrop against which Jefferson wrote was that in 1764, the Vice-Admiralty court in Halifax, Nova Scotia, was given jurisdiction over all Stamp Act and Sugar Act prosecutions in the colonies and, as an admiralty court, did not use juries. In fact, this jurisdiction was conferred purposely so that trials for these offenses would not be subject to the check of local opinion.25 Further, the Halifax court briefly held appellate jurisdiction over the other colonial admiralty courts; judicial salaries were extravagant; and the only seeming qualification for the lawyers who became judges was having been a stamp distributor under the Stamp Act.26 In New York (1764), the same Governor who fought permanent judicial tenure now insisted on prosecutorial appeal of jury decisions on matters of law as well as of fact, to himself and the Privy Council.27 Finally, the Boston Port Act and the Massachusetts Government Act (1774) placed even locally elected juries under the Executive.
The Summary View is most useful in construction of the Declaration of Independence. Both are written in the form of a Bill in Equity,28 by the same author only two years apart as organic documents for the Continental Congress, -both listing the same grievances in the body of the 'Bill.' Closely paralleling the excerpts from Summary View and Adams' Rights of the Colonists above, are these passages from the Declaration:
"He has combined with others to subject us to a jurisdiction foreign to our constitutions and unacknowledged by our laws, giving his assent to their acts of pretended legislation for quartering...armed troops among us;
for protecting them by a mock trial from punishment for any murders which they should commit on the inhabitants of these states;...for depriving us in many cases of the benefits of trial by jury; for transporting us beyond seas to be tried for pretended offenses; for abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it... fit instrument for introducing the same absolute rule into these states;...."
Four paragraphs above this paragraph, Jefferson wrote:
"He has made our judges dependant on his will alone, for the tenure of their offices, & the amount & paiment of their salaries...."
The Declaration of Independence' second paragraph shows Jefferson's choice of Lockeian 'social compact' theory to justify the right to revolt on natural law principles. Jefferson later purchased much of Richard Eland's library, and already seemed familiar with its contents when George Wythe and he revised Virginia laws after the Revolution. Bland was also a senior member of the 8-member bar of the General Court which boycotted the Court on each occasion that the Governor closed the House of Burgesses, as was Wythe. The fact that Jefferson sent for On Civil Government when he did, 3 years after Bland discussed it, and immediately on closure of the Burgesses, of which the General Court Bar were generally also members, implicates Bland in Jefferson's choice of Locke.
However, this is only formulative theory on why Jefferson believed laws could be voided. He also wrote, long before 1776, in his Notes on Virginia:
"It is usual for the jurors to decide the fact, and to refer the law...to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or of it be one of those in which the judges may be suspected of bias, the jury undertakes to decide both law and fact."
He again wrote to the Abbe Arnoux, in a letter dated July 19, 1789, five days after the fall of the Bastille, as follows:
Complete Juryman, or a compendium of the laws relating to jurors.
Guide to English "juries (1682).
Hawle's Englishman's right.
Jurors judges both of law and fact by Jones
Security of Englishmen's lives, or the duty of grand -juries.
Walwin's juries justified.
The above is a catalogue of all the books I recollect on the subject of juries....
....3. They are not qualified to JUDGE questions of law:
but they are very capable of judging questions of fact.... But we all know that permanent judges acquire an Esprit de corps,...are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party,.... It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact....
The Papers of Thomas Jefferson (Princeton, 1958), Vol. 15, p. 282. (Both Hawles and the 1682 Guide were in Jefferson's own library.)
Thomas Green has shown that only the later Levellers, led by the Jones cited by Jefferson, above, and thereafter, the Quakers, used the word 'sacred' to refer to natural rights, even though Corwin notes that the decision to make the Bill of Rights "sacrosanct," or beyond human reach, derived from Cicero's "sacri sanctum est," describing Roman higher law.30
The original draft of the Declaration read, "sacred and undeniable truths," edited by Franklin to read "self-evident." Jefferson also accused the King of "cruel war against human nature...violating its most sacred rights of life and liberty." Jefferson also believed that the English common-law in force in America was the pre-Norman law of Saxon England, and the Declaration of Independence appears to be written in the "Norman yoke" mode,31 also popularized by Dickinson and Otis.
This "Norman Yoke" mode of writing or polemicizing may be what proves the Levellers' influence on Jefferson, Mason, and John Dickinson, for it was the Levellers who originated the "Norman Yoke" mode. This mode of writing is the justification for reviving ancient, common law rights once held sacred:
"Magna Charta...is but a part of the people's rights and liberties, being no more but what with much striving and fighting, was by the blood of our ancestors, wrestled out of the paws of those kings, who by force had conquered the Nation, changed the laws and by strong hand held them in bondage."
Walwyn, Wm., England's Lamentable Slaverie, reprinted in Tracts on Liberty in the Puritan Revolution, 1638-1647, Vol. III: pp. 313-14 (Octagon Books, N.Y., 1965).
Another Leveller, Richard Overton, in The Commoner's Complaint (1646) likewise spoke of "those Norman Prerogative Invaders, have not been herewith content thus to rob me in particular of my past liberty and freedom," and Overton and Walwyn, in A Remonstrance of Many Thousand Citizens, and Other Free-borne People of England,...etc. (1646), stated:
"The Norman way for ending of controversies was much more abusive than the English way; yet the Conqueror, contrary to his oath, introduced the Norman laws and his litigious and vexatious way amongst us....He erected a trade of judges and lawyers to sell justice and injustice at his own unconscionable rate..., the corruption whereof is yet remaining upon us to our continual impoverishing and molestation from which we thought you should have delivered us."
Further, in the same text:
"We cannot but expect to be delivered from the Norman bondage,...; and from all unreasonable laws made ever since that unhappy conquest...."
Theodore Calvin Pease, in his book. The Leveller Movement (Amer. Historical Assn., 1916), pp. 141-148, explains how, although many Leveller premises of fundamental law and social compact are traceable to Rutherford, Lilburne was the first to advocate these in protection of the rights of individuals, rather than merely bearing on the proper harmony of the national polity and its estates.
Desiring democracy, but without an informed electorate, the Levellers postulated that the government had collapsed during the Civil War, and had to return to first principles to be refounded. Certain fundamental rights were beyond even Parliament's reach, for ex., religious toleration and equality before the law. Magna Charta contained a list of such rights.
As summarized by Pease, Lilburne, in Regall Tyrannic discovered (Jan. 6, 1646/47), explains how we were saddled with the Norman Yoke:
"The Norman Kings had originally come in by conquest; but in 1087 William had been moved to have regard to his oath that he would maintain the laws of [Edward] the Confessor. Stephen and John had come in by election. The royal power of Matilda had been broken because she would not maintain the Confessor's law. As for Magna Charta, 'Whosoever readeth it...shall find it an absolute Contract betwixt the Kings of England, and the People thereof, which at their Coronations ever since, they take an Oath inviolable to observe.' [Regall, pp. 10-26] In the past, Kings of England had ruled by compacts with their people, had broken their compacts, and had ceased to rule!
"....Reqall Tyrannic went beyond previous books in its insistence that the King's violation of his contract was the end of his power and the beginning of his deposition...."
"In a sense, the 'conquest theory' is the key to the attitude of the radicals toward the Great Civil War....It was a crusade of Englishmen for the recovery of liberties which their fathers had held and lost. This spirit, as we have seen, was partly expressed by John Goodwin in Anti-Cavalierisme; but past all question it was still more prominent in the minds of men like Lilburne...."
Pease, opus citerandi, pp. 145-46.
Contrary to much theory, Lilburne was not that far from the mainstream of popular thought. In The Just Man's Justification (1646), Lilburne elaborated that the common law was a badge of slavery imposed by the Norman Conquest. The rules of common-law were now rendered inaccessible by being written in Latin or Norman French. The iniquities of the common law resulted from Norman replacement of the local courts of the hundred and shire with the common law courts. Lilburne sought a return to those ancient laws, with trial in the hundreds and counties by elected juries of the vicinage. This same argument is made by George Mason in the Virginia Declaration of Rights.
Pease (supra, p. 155) himself cites attorney John Cook's contemporary book stating that subpoenae were in Latin, and that Parliament should establish more county courts, and local registries for deeds, contracts, etc., -since such incidents of Norman rule were seeing many imprisoned for debt.
The Norman Yoke was also debated within the Army, which the Levellers were beginning to take over. A website to find the October 29, 1647, Debates of the General Council of the Army at Putney, is http://www.constitution.org/lev/levellers.htm. There, the Levellers, represented by Col. Thomas Rainborough, and Maximilian Petty (later of Harrington's Rota Club), argued that because Magna Charta rights extended to all Englishmen as their Birthright, they believed that all subjects should have an egual voice in their elections, a right lost by the Norman Conquest.
In tandem with these claims of usurpation, the Levellers argued that an unjust law is really no law at all. The recourse of the jury, as the conscience of the Court, was natural law. Because George Fox and the Quakers basically adopted the Leveller political reform platform between 1650-1662, it is interesting to compare Leveller petitions for certain trial rights with American Quaker drafts of bills of rights.
From An Agreement of the Free People of England (May 1, 1649):
"XXII. That it shall not be in their power to continue to mate any law to deprive any person in case of trials of life, limb, liberty, or estate, from the benefit of witnesses on his or their behalf, nor deprive any person of those privileges and liberties, contained in the Petition of Right made in the third year of the late King Charles.
XXV. That it shall not be in their power to...make a law for any other way of judgements, or conviction of life, limb, liberty or estate, but only by twelve sworn men of the neighborhood to be chosen by some free way by the people,...and not picked and imposed as hitherto in many places they have been."
"The Fundamentall Constitutions of Pennsilvania" drawn up by William Penn, and his lawyer/draftsman, John Darnall, circa 1681-1682, contains the following:
"XVII. And that we may in what ever we can, resemble the Ancient Constitution of England, I do for me and myn hereby declare and establish for the Seventeenth fundamental 1 of the Government of this Province, that all tryalls and Determinations Of Causes and Concerning life Liberty good name or estate, shall by the verdict and Judgement of twelve of the neighbourhood to the Party or Party s Concerned, and neer as may be of the same degree, that they may be equalls, least being Poorer they be aw'd with fear or drawn by rewards to a Corrupt Judgement, or by being richer and greater, be careless of their Verdict upon an Inferior Person, whos low Condition are not or is not able to call them to Question:....[Penn next provides for jury sequestration, deliberation, and reading of the verdict.]
"XXIII. And to the end what ever relates to the Property, liberty, Trials by twelve equalls of the neighbourhood equall & Proportionable fines and Amercements for faults Committed not delaying, denying or selling of Justice, contained in the Great English Charter with the like Civill Privledges, and all thos acts of Parliament Confirmatory of the Same more especially that Called the Petition of right in the 3rd year of Charles the first. I do hereby declare and establish, for the 23rd Fundamentall of the Government of this Province, that all the said Privledges of the Great Charter before exprest, and the laws Confirmatory of the same, especially that called the Petition of Right in the 17th year of Charles the first, be and remain in full force as an effectual part of the Goverment of this Province.
Dunn & Dunn ed., II The Papers of William Penn, 1680-1684, (Univ. of Pa. Press, 1982), pp. 140, 150. The editors note that the size of the Council, and its division into 4 committees and the periods of their staggered terms of office, tie the Fundamentall Constitutions directly to James Harrington's Oceana (1656). See John Darnall's Third Chart of Government II Papers of Penn, supra, pp. 160-61.
In subsequent drafts of Pennsylvania's government, James Harrington's 'rotation in office' was used even more. Please recall that this was one of Jefferson's complaints to Madison, that the proposed framework needed rotation in office, and that The Federalist Papers discuss this prospect.
Thus, we find in Pease, op. cit., p. 363, this comment:
"The Leveller constitutional theories, however, have not vanished from the world. Around the principle of the limitation of government by paramount law, the Levellers developed a body of constitutional and political doctrines that suggest the main theories of American constitutional law. The sovereignty of the people, the inalienable right of the individual, the binding force of paramount law, the enforcement of political law by judicial action - all of these are American doctrines."
True, the Puritan hero, Cromwell, logically would have been toasted in Revolutionary New England. But Jefferson took the Norman Yoke argument further. Not only did he derive the right of allodial holding of land from Saxon practice prior to Norman feudalism in the manuscript copy of Summary View this way,31 but he also defined Virginia's common law as that in existence before the settlement of Virginia's first place, Jamestown, in the fourth year of James I, circa 1619. (See pp. 25-26, fn. 39, hereinbelow) This construction of common-law reception is still found in cases such as Industrial Acceptance Corp. v. Webb, 287 S.W. 657, 660 (Mo. App. 1926). If, after reading footnote 31, herein, and the excerpt at the bottom of page 25, you do not believe that Jefferson adapted his style from the Levellers, then consider his effort to demonstrate the continuity of colonist's entitlement to their common-law rights as Englishmen under previous patents and charters for self-government in his Refutation of the Argument that the Colonies Were Established at the Expense of the British Nation, written in 1776, and containing a detailed history of Sir Walter Raleigh's expeditions to America, before concluding:
"This short narration of facts, extracted principally from Hakluyt's voyages, may enable us to judge of the effect which the charter to Sr. Walter Ralegh may have on our own constitution and also those of the other colonies within it's limits, to which it is of equal concernment. It serves also to expose the distress of those ministerial writers, who, in order to prove that the British parliament may of right legislate for the colonies, are driven to the necessity of advancing this palpable untruth that 'the colonies were planted and nursed at the expense of the British nation': an untruth which even majesty itself, descending from it's dignity, has lately been induced to utter from the throne....
Thus, it was at least an article of polemic faith for Jefferson that the natural rights of all Englishmen were in common usage before the Norman invasion.
A recent history, John Phillip Reid's Constitutional History of the American Revolution (U. Wis. Press, 1986), contains two chapters (14 & 15) dealing with "The Authority of Migration." Reid fails to mention Leveller origins, but does note (p. 116) that, in 1643, Philip Hunton stated that the Saxons "no doubt continued the freedome they had in Germany....Who sets not here the antiquity of our Liberties and frame of Government?... for by transplanting themselves, they changed their soyl, not their manners and Government." Reid also notes (p. 119) that Littleton stated in 1689: "Some of the Plantations, 'tis true came to England by Conquest. But must the Conquerors themselves be look't upon as a conquered People?" Reid even notes the sponsorship of 'Whigs' such as Bland, Jefferson, and Dickinson. Despite citing Christopher Hill's seminal work on the 'Norman Yoke,' Puritanism and Revolution: Studies in Interpretation of the English Revolution of the 17th Century (London, 1958), at pp. 50-122, in his Bibliography, Reid only states:
"The migration principle was not an important authority for colonial rights. It would not merit extended discussion but for three considerations: (1) it has not been given any weight by the constitutional historians of the American Revolution; (2) it was not sui generis to colonial whigs but was an old, established doctrine in British constitutional theory;and (3) it was taken seriously by defenders of parliamentary authority during the revolutionary controversy."
Reid amply cites for his 'Migration principle' Patrick Henry's Virginia Resolves (June, 1765), which were adopted with identical wording by Rhode Island and Maryland in 1765:
"RESOLVED, That the first Adventurers and Settlers of this his Majesty's Colony and Dominion of Virginia brought with them, and transmitted to their Posterity, and all other his Majesty's Subjects since inhabiting this his Majesty's said Colony, all the Liberties, Privileges, Franchises, and Immunities, that have at any Time been held, enjoyed and possessed, by the people of Great Britain."
Reid properly notes (p. 120) numerous Privy Council opinions that the colonists carried much of the Common Law with them, stopping short of holding, as argued in Dutton v. Howell, that English Liberties were their Birthright. Again (p. 158), Lord Camden added to the confusion speaking to the House of Lords on May 17, 1775, stating that Lord Mansfield had held, in Campbell v. Hall, 20 State Trials 239 (K.B. 1774), that:
"...in all accessions of territory to the crown, the king is constitutionally entrusted, and required to extend to his new subjects, the laws of England, and the benefit of a constitution similar to that of our own country-that he can give no less than those rights and privileges which by the common law, as well as by the Act of Settlement, are declared to be 'the birthright of every British subject."
Perhaps Reid was persuaded by Chalmers, George, Political Annals of the Present United Colonies (Burt Franklin, N.Y., 1780), Book I, ch. 22, pp. 677-691. But Chalmers would have appeared to be an apologist for English failings in the minds of the American Framers, despite his very keen insights.
Reid may be correct, too, in that the Norman Yoke mode was not greatly used outside Virginia, Pennsylvania, and perhaps the charge or Judgment of Judge Drayton of South Carolina. However, Jefferson distinctly favored land reform in the Ohio Territory (giving every settler several acres and a mule), and this shows Leveller influence. Further, Jefferson not only had a nephew named Lilburne, - and his family had petitioned for religious toleration along with others when he was young, -and at 24, he owned a set of Milton's Works, from which he wrote quotations in his Commonplace Book, -but Jefferson, in 1826, still quoted Richard Rumbold's last words prior to Tory execution, "None comes into the world with a saddle upon his back, neither any booted and spurred to ride him." As I will show, Jefferson, too, professed Quakerism, to which many Levellers converted after Lilburne did so. Thus, Jefferson's draft of the Declaration of Independence surpasses those Declarations described by Pauline Meier in American Scripture (Alfred Knopf, N.Y., 1997), pp. 72, 88, which in 1776, began espousing "'Whig' ideas with none of the compromises that made the English Declaration of Rights so unsatisfactory as a statement of political principle."
Jefferson also called himself a ''real Whig," thereby likening himself to Coke, and explaining why there were two volumes of Trenchard and Gordon's libertarian works in his library. But I think his movement toward Jones is found in his later letters wherein he states he has long been "half-Quaker, half-Unitarian."
Traditional scholarship suggests Jefferson's conversion to Unitarianism in 1788 when Phillip Mazzei introduced him to Dr. Richard Gem, who became his personal physician, and member of the philosophe circle36 which included Tom Paine, a Quaker.
However, in an 1819 letter to Dr. Thomas Cooper, Jefferson discloses parts of his Commonplace Book from 50 years earlier when as a student, he showed that the Latin phrase "ancien scriptens" had been mistranslated to make 'holy scripture' a source of the common law. This corresponds with Fawn Brodie's comment that immediately after entering William & Mary, Jefferson sent for the complete works of Milton. Not only is Milton's On Religion one of the bases of English Unitarianism, but also, in his Defence of the People of England, Milton argues that the power is in the people as a jury, -and not the judge, to decide controversies. So, Jefferson could have easily meant to include jury nullification in his Declaration of Independence.
But did he?
Between May and June 12, 1776, the Virginia Declaration of Rights was completed by George Mason and approved by the Virginia Constitutional Convention. Even though he was in Philadelphia, we know that Jefferson had a copy of the Virginia Declaration due to his usage of Mason's "unalienable," rather than "inalienable" in the original draft of the Declaration of Independence. Mason's Article I, from which Jefferson borrowed heavily, reads:
"1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and persuing and obtaining happiness and safety."
Note that Mason's Original Draft correctly spelled "pursuing."
For whatever reason, 7 of the 9 states to adopt Bills of Rights circa 1776 closely followed Mason's Declaration. In both the original and final drafts of the Virginia Declaration, these passages appear, implicating the Leveller jury right:
"8. That in all capital or criminal prosecutions a man hath a right to...a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.
11. That in controversies respecting property, and in suits between man and man, the ancient trial by Jury is preferable to any other, and ought to be held sacred."
Contemporaneously with Mason's efforts, Jefferson in June, 1776, wrote a Draft Constitution for Virginia:
"All facts in causes whether of Chancery, Common, Ecclesiastical, or Marine law, shall be tried by a jury upon evidence given viva voce, in open court...."
"All fines or Amercements shall be assessed, & Terms of imprisonment for Contempts & Misdemeanors shall be fixed by the verdict of a Jury."
Finally, the Lewises, who lived near Shadwell, had a son named Charles Lilburne Lewis, who married Thomas' sister, Lucy, and they too, had a son named Lilburne. Jefferson wrote in his Autobiography (pp. 52-53) of the Lewises' petitions to the Burgesses for religious freedoms. Jefferson's father, Peter, was, for a time, elected to the Burgesses.
The editor of Mason's papers suggests his Declaration's terminology could have derived from Henry Care's English Liberties, or the Free-Born Subject's Inheritance (London, 1680; Boston, 1721).32 While the reference to "Free-Born" John Lilburne is obvious because he was the first to claim Magna Charta as the birthright of every English subject, English Liberties only reached America in 1687 via a pamphlet co-published with William Penn, The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-Born Subjects of England (1687). The latter work contains the first American publication of Magna Charta, and 20 pages of Commentary from English Liberties. Penn published Excellent Priviledge as a guide to Pennsylvania judges. Oddly, Henry Care's authorship is not attributed until the 1700 edition, long after his death in 1688.
The events of Henry Care's own trial [7 St. Tr. 1128(1680)] may have brought him closer to Penn. One of Care's chapters is entitled, "That Juries are not Finable, or any way to be punish'd, under pretence of going contrary to Evidence, or against the Judge's Directions." Large portions of Bushel's Case are set out to prove "that a Jury is in no way punishable for going according to their Conscience, though against seeming Evidence." Care, op. cit., pp. 123-27 (1703 ed.).
Given Jefferson's continuing efforts to insert empowered juries into every aspect of court life, discussed below, my research supports the likelihood that the jury right included in the Declaration of Independence includes the type of nullification described in the letter to Abbe Arnoux.
JOHN ADAMS, THE DECLARATION'S EDITOR-IN-CHIEF
Jefferson's Draft of the Declaration of Independence was edited principally by John Adams, then re-edited by Ben Franklin, before being reported out of committee. Adams had been Reporter and chief publicist of James Otis' nullification argument in the non-jury Writs of Assistance case, and had been co-counsel to Otis in the 1769 Pitt Packet case in which both insisted on a jury trial for the defendant Michael Corbett before a Court of Vice-Admiralty. The trial was for murder of a British officer.
Further, Adams actually briefed and argued the right of the jury to decide both law and fact by a general verdict in a seditious libel case, Wriqht & Gill v._Mein and Longman v. Mein (Suffolk Inferior Ct., Boston 1771), 1 Legal Papers of J. Adams 218-228, and in a criminal case. Rex v. Richardson (Suffolk Sup. Ct., Boston, Sept., 1770), 2 Legal Papers of J. Adams 426. He also argued the law extensively to two of the juries in defense of British soldiers in the Boston Massacre cases: Rex v. Wemms, 3 Leg. Papers 242-260 (1770), and Rex v. Preston, 3 Leg. Papers 81-85 (1770).
John Adams' Diary for February 12, 1771, also contains a lengthy discussion reflecting the contemporary understanding:
"...As the constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive as the negative, in every judgment of a court of judicature....
"...It was never yet disputed or doubted that a general verdict, 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 general 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?
"...Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. 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...."
As will follow, the issue of nullification of unconstitutional laws outside the courts was also debated broadly in Boston. Thus, .it is not surprising to find an unsigned letter quoting Care's English Liberties at length appearing in the March 13, 1769, Boston Gazette,37a which included this passage:
'Tis by applying Matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their verdict. Care, op. cit., 121.
For an excellent discussion of whether Care was also an influence on John Adams' views, please see 1 Legal Papers of John Adams 210-214 (Wroth & Zobel ed. , Belknap Press, 1965).
A. When Did Nullification Become A Broad-Based Movement in the Colonies?
James Otis' citations were to Eighteenth Century law. For example, in the Writs of Assistance Case, he cited Bacon's Abridgment (1735) and Viner's Abridgment (1741). Possibly the last great English citation of Dr. Bonham's Case was in Day v. Savadge, decided by Lord Hobart in 1614. Otis and Adams also relied extensively on Blackstone's Commentaries, 1:27, 40-43, and 90 to argue that laws contrary to reason were void, as well as the right to a general verdict in criminal cases.
Yet we find that Giddings v. Brown was a much earlier colonial case relying on Bonham* s principle, and that Coke's passage from the Institutes was being widely read in Massachusetts in 1688.33 Otis re-announced his argument in Rights of the British Colonies Asserted (1764), but, in March, 1762, the Supreme Court of Rhode Island had declared a statute to naturalize Jews as void in Rhode Island. By 1764, Gov. Horatio Sharpe of Maryland was inguiring of people's view that an act of Parliament in conflict with Maryland's Charter would be void. In early 1766, the Judge of the County Court of Northampton County, Virginia, concluded the Stamp Act was unconstitutional, just as Edmund Pendleton, of Caroline County, Virginia, was writing the same to James Madison.34
Therefore, we can conclude that Henry Care introduced Coke's reading of Magna Charta to the colonies. But then there was a lull, until the Sugar Act of 1733, when the colonists began to boycott English sugar, and used molasses to sweeten their tea. A whole Jamaican molasses industry began, so that today we eat ginger snaps and drink Jamaican rum. Nullification and tax protest of unconstitutional measures continued to take broader meaning, culminating in the Boston Tea Party, of which Sam Adams, John's cousin, was an organizer, and which John Adams justified in a passage in his Diary dated December 17, 1773. The two men sat together in the Continental Congress.
I can only conclude that John Peter Zenger's trial in 1735 was the re-birth of jury nullification in the colonies.
Before Thomas Hutchinson became Chief Justice of Massachusetts, he wrote, circa 1741:
"Lord Coke's authority is often abused to serve particular purposes and when he says in Bonham's Case that the common law shall sometimes judge Acts of Parliament to be void, no notice is taken of what he says in the same case that they who make them would not put them in execution. When this shall be the sense of those who- make Acts of Parliament for taxing the colonists, Lord Coke's authority may more properly, than at present, be adduced to justify courts of judicature and private subjects in the non-observance of these Acts.35
After he heard the Writs of Assistance Case as Chief Justice, Hutchinson wrote in a more public correspondence:
"Our friends to liberty take advantage of a maxim they find in Lord Coke that an act of Parliament against Magna Charta or the peculiar rights of Englishmen is ipso facto void. This, taken in the latitude the people are often enough disposed to take it...seems to have determined a great part of the colonies to oppose the execution of the [Stamp] act with force and to show their resentment to all in authority who will not join with them."35
Nullification became expansive extra-judicial doctrine as early as these words from Jonathan Mayhew's A Discourse Concerning Unlimited Higher Powers (Boston, 1750) [fn. 37]:
"...no civil rulers are to be obeyed when they enjoin things that are inconsistent with the commands of God...All commands running counter to the declared will of the Supreme Legislator of heaven and earth are null and void: and therefore, disobedience to them is a duty, not a crime....
...To say that subjects in general are not proper judges when their governors oppress them and play the tyrant...is as great treason as ever man uttered: 'tis treason not against one single man but the state-against the whole body politic; 'tis treason against mankind;...against common sense;...against God.... The people know for what end they set up and maintain their governors; and they are the proper judges when they execute their trust as they ought to do it...."
From the time enforcement of the Navigation Acts was placed in the non-jury Vice-Admiralty and 'prerogative' courts, the evolution of Jefferson's grievances in his Summary View and Declaration of Independence can be easily traced:
"If we only reflect that the judges of these courts are to be during pleasure-that they are to have 'adequate provision' made for them, which is to continue during their complaisant behaviour - that they may be strangers to these colonies-what an engine of oppression may this authority be in such hands?"
"To say, that the cause is to be tried by a jury, can never reconcile men who have an idea of freedom, to such a power. ...Even if juries are well inclined, we have too many instances of the influence of over-bearing unjust judges upon them...."
Letter IX, by John Dickinson, Letters from A Farmer, in Ford, Paul, ed.. The Writings of John Dickinson, Vol. I (1764-1774), Historical Society of Pa. (1895), at pp. 368-69. See also Dickinson, The Late Regulations Respecting the British Colonies on the Continent of America Considered (Philadelphia, Pa., Dec. 7, 1765), in Writings, Ibid. , p. 243 ("sacred right of trial by jury),
Groundswell support of this issue is exemplified by the sparse but exact instructions delegates to Stamp Act Congresses received.
"...We shall confine ourselves...chiefly to the act of Parliament, commonly called the Stamp Act, by which a very burthensome, and, in our opinion, unconstitutional tax is to be laid upon us all;
and we subjected to numerous and enormous penalties, to be prosecuted, sued for, and recovered at the option of an informer, in a court of admiralty, without a jury.
"...But the most grievous innovation of all is the alarming extension of the power of courts of admiralty. In these courts, one judge presides alone! The law and the fact are both to be decided by the same single judge, whose commission is only during pleasure, and [ who takes ]...commissions on all condemnations; so that he is under a pecuniary temptation always against the subject."
Instructions of the Town of Braintree to Their Representatives (September, 1765).
Perhaps influenced by Jefferson's Summary View, this excerpt is taken from A Petition of the Continental Congress To the King (October 26, 1774):
"...The judges of Admiralty and Vice-Admiralty courts are impowered to receive their salaries and fees from the effects condemned by themselves....
"...The judges of the courts of common law have been made entirely dependent on one part of the legislature for their salaries as well as for the duration of their commissions... "...By several Acts of Parliament...duties are imposed on us for the purpose of raising a revenue and the powers of Admiralty and Vice-Admiralty courts are extended beyond their ancient limits, whereby our property is taken from us without our consent. The trial by jury in many civil cases is abolished,....
"....we present this petition only to obtain redress of grievances and relief from fears and jealousies occasioned by the system of statutes and regulations adopted since the close of the late war for raising a revenue in America-extending the powers of the courts of Admiralty and Vice-Admiralty-trying persons in Great Britain for offences alleged to be committed in America...."
Now, America did not have a navy until 1794 - the Bonhomme Richard was a privateer. If the right to bear arms was essential to keeping a militia in the field, seizure of ships of hostile powers was equally necessary to maintaining a naval force.
In response to a letter from General Washington on November 8, the Continental Congress passed 8 resolutions on November 25, 1775. (George Wythe, John Adams, James Wilson, and Benjamin Franklin were on the committee drafting them.) These resolutions recommended creation of juried prize courts, provided for appeal from these courts to Congress, and specified the shares to be awarded in capture.
A direct product of the Vice-Admiralty debate, the fourth resolution provided:
"4. That it be and is hereby recommended to the several legislatures in the United Colonies, as soon as possible, to erect courts of Justice, or give jurisdiction to the courts now in being for the purpose of determining concerning the captures to be made as aforesaid, and to provide that all trials in such case be had by a jury under such qualifications, as to the respective legislatures shall seem expedient."
On November 1, 1775, Massachusetts created the first such maritime court, with a jury.36 In April, 1778, these courts were empowered to award damages if there had been no probable cause for seizure.37 In March, 1776, and July, 1780, Rhode Island passed largely identical measures. Connecticut established admiralty courts with juries in May, 1776. New Hampshire on July 3, 1776.
Pennsylvania adopted juried prize courts on March 26, 1776. In September, 1778, Pennsylvania added that facts decided by the jury were not reviewable on appeal.38 New Jersey created a juried prize court on December 5, 1778.
Virginia created juried prize courts in December, 1775, but Thomas Jefferson wrote more thorough legislation in December, 1776. Jefferson's act provided an interesting rule of decision for these courts:
"governed...by the regulations of the continental congress, acts of general assembly, English statutes prior to the fourth year of the reign of King James the first, and the laws of Oleron, the Rhodian and Imperial laws, so far as the same have been heretofore observed in the English courts of admiralty."For those who do not think that Jefferson was serious about his 'Norman yoke' argument/ the fourth year of James I was 1619, the year Jamestown was founded (and with it, Virginia). In 1779, George Wythe re-wrote this Act, dropping the Jamestown clause, but adding the common-law rules of evidence to juries in admiralty."
South Carolina initially gave all prize cases to juries, but later allowed the judge to proceed to condemnation without a jury.40 Maryland, too, had some jury trials. In November, 1777, North Carolina established juried prize courts. Georgia had juries for all prize trials, and even required a second trial before a special jury prior to appeal.41
The sloop Active seizure, -a case of who got there first, -resulted in an appeal into Congress, and on March 6, 1779, a strong report issued, including a resolve that, "No finding of a jury in any admiralty court could destroy the right of appeal."
The ensuing debate led Congress to appoint a 3-man committee, which included John Dickinson, to study a supreme court of appeal. Oddly, the committee's report, and Congress' subsequent recommendation to the States (January 15, 1780) was to decide prize cases without a jury. However, only two States, Pennsylvania and South Carolina, dropped jury trials in prize cases prior to Congress' replacing the Committee of Appeal with a permanent appeal court in January, 1780, also decreeing against jury trial federally.42
Jefferson, who held high office in every administration through the end of his two Presidential terms, inspired by Lord Acton's adage that "absolute power corrupts absolutely," developed apace a philosophy of anticentripetalism which inserted the common man as a check at every level of government.
In The Federalist, No. 83, Hamilton put the choice as to juries in equity with the States. Jefferson, on November 25, 1776, introduced a bill which required juries in Virginia's chancery or equity courts. The House of Burgesses enacted this bill, but only after adopting Edmund Pendleton's amendment making jurors optional: "If either Party choose."43
"The consequence has been," said Jefferson, "that as no suitor will say to his judge, 'Sir, I distrust you, give me a jury,' juries are rarely, I might say perhaps never seen in that court, but when called for by the Chancellor of his own accord.43 The jury in equity clause was repealed as inconvenient in October, 1783.
Jefferson also favored nullification by judicial review, as it is called today:
"In his famous Notes on Virginia (1782), Jefferson examined his state's government and found it wanting, particularly in that its constitution (1776) was only a legislative act and as such alterable by legislation.
"In 1784,...[an object] listed was 'making our constitution paramount [vis-a-vis]...the ordinary legislature so that all acts contradictory to it may be adjudged null..."
"By 1786, he seemed to consider judicial review an accepted principle...:...as the judges would consider any law as void, which was contrary to the constitution."44
July 4th was not always a good day for Jefferson, either. John Adams and he both died on that day in 1826. In 1798, it was the day the Sedition Act passed, and the day the president of Yale University gave his annual address in which he warned:
"If the author of the Declaration of Independence, [who was then] the Vice-President, had his way," [our Nation would] "see the Bible cast into a bonfire, our wives and daughters the victims of legal prostitution, and our sons become the disciples of Voltaire, and the dragoons of Marat."45
Harvard University later awarded Jefferson an honorary degree.
Although Jefferson pardoned several printers who were prosecuted under this Act, and the Samuel Chase impeachment trial [among others, for failure to give a jury law-finding instruction in a seditious libel trial] occurred during his administration, Jefferson found yet another way to make power diffuse, -using the sovereign States as checks or vetoes of Congressional legislation. Not wanting a direct challenge to federal power, these bills were enacted as resolutions, and because the President was the ghost-writer, someone else, such as Breckenridge in the Kentucky legislature, had to be found to sponsor them and claim authorship.
The Kentucky and Virginia resolutions of 1798, the former secretly drafted by Jefferson, the latter by Madison, declared the Alien and Sedition laws unconstitutional and appealed to the other states to do likewise. Jefferson's resolutions set forth the theory of the Union as a compact among the several states. Acts beyond the delegated powers of the federal government were void, and there being no ultimate arbiter of the Constitution, each state had a right to judge for itself....The Alien and Sedition Laws were found to be gross usurpations of power, therefore warranting the act of 'nullification' by state authority. Freedom of speech and press had the same standing under the First Amendment as freedom of religion, Jefferson argued. Congress could legislate in no matter whatever.
Peterson, Merrill D., Adams and Jefferson: A Revolutionary Dialogue (Oxford U. Press, 1976), at p. 83. The term, "nullification," was first used by Jefferson in The Second Kentucky resolves. Levy, Leonard W., Seasoned Judgments (Transaction Publishers, 1995), p. 344.
Jefferson's words themselves show that the colonists believed both in a government of limited powers and that nullification in the form of support withdrawal was already widely approved:
"...where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them:...."
The Kentucky Resolutions of 1798, Resolution No. 8.
The acceptance of nullification as a means of keeping governmental power diffuse was widely accepted by Anti-Federalists even before the Constitutional Convention, and at least those from Virginia were attracted to the 'Norman yoke' theme:
"...the jury by the common law, and the fundamental laws of this country, to give a general verdict in all cases when they chuse to do it, to decide both as to law and fact", whenever blended together in the issue put to them....Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury's right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department....
"It was merely by the intrigues of the popish clergy, and of the Norman lawyers, that this mode of trial was not used in maritime, ecclesiastical, and military courts, and the civil law proceedings were introduced; and, I believe, it is more from custom and prejudice,... that we do not in all states establish the jury in our maritime as well as other courts.
"....we see in the civil law process judges alone, who always, long previous to trial, are known and often corrupted by ministerial influence, or by parties. Judges once influenced, soon become inclined to yield to temptations, and to decree for him who will pay the most for their partiality...."
Storing, Herbert J., The Complete Anti-Federalist (U. of Chicago, 1981), II:320-21, excerpting Letters from the Federal Farmer, No. XV (Jan. 18, 1788), poss. by Richard Henry Lee. Note the use of the word sacred to describe the right to jury trial.
For the first 5-8 years immediately after the Revolution, the colonies sought to rid themselves of everything that was British, including British law:
"An action was brought... for the recovery of a tenement. After evidence...of the plaintiff's right and seizin, the defendant's counsel introduced the plaintiff's own deed of sale, duly recorded...plaintiff's counsel moved...to shew the jury, that at the time of making...the deed, the plaintiff was insane... .the opposite party objected, that it was a settled rule of law, that no man should be permitted to stultify himself, and introduced authorities....After a considerable time occupied in the debate, Otis stepped forward and said: that he was not of counsel..., but requested, as Amicus Curiae, to be heard....He began by observing, that since the Declaration of Independence, we had become a new nation, whose judicial decisions, he hoped and wished, might be found in sound reason; and that no decisions from the books, however long and complete..., ought to prevail against the dictates of reason and common sense. He added, that this would be for the honour of the nation upon its emancipation from Great Britain."46
It is my belief based upon Andrew Hamilton's citation of Bonham's Case and others in the 1735 trial of Zenger, and the resurrection of this case by James Otis in the Writs of Assistance Case in 1761, that there is continuity of the nullification doctrine in American courts, just as there was in English common law courts. As a Real Whig who also considered himself "half-Quaker," Jefferson included in the Declaration of Independence a Leveller right of jury nullification which was much more than the mere power to render a general verdict. Adams confirmed it since both appeared knowledgeable of its pedigree from an early date in their practices. This right exceeds the mere recognition that the jury acts of one accord; it recognizes the jury as the living Constitution, capable of finding justice in accordance with conscience, even in spite of the letter of an unjust law.
The stage now set, we salute the ultimate irony, Madison's opposition to a Bill of Rights, and rebukes of Mason on this account.
In 1776, George Mason and James Madison arrived together at the Virginia Convention almost three days late due to poor travelling conditions. The Committee to draft the Declaration of Rights had already been formed, with 28 members. The latecomers asked to be added to the committee, they were, and then, Mason was appointed to write the bill, with Madison, who had little libertarian background, as his scrivener.
Every American knows that Mason's insistence on a Bill of Rights as a pre-condition to ratification is why we have today what the Constitutional Convention failed to include. Seldom told is that Madison, a staunch Federalist opposed to a national Bill of Rights, had lost his bid to become Virginia's first Senator, and had to run for election to the House of Representatives - an election he won, but not without giving lip service to a Bill of Rights.47
Mason wrote his Objections To The Proposed Federal Constitution while he was still at the Philadelphia Convention, and published them on September 16, 1787. Madison wrote Washington on September 30, 1787, advising him that Mason and Richard Henry Lee had tried to amend the Act of Convention before it went forth from Congress by inserting a right to jury trial in civil cases. This, indeed, was one of Mason's objections. Mason and Lee also believed that if Federal law was supreme, state bills of rights would mean little, standing alone.
Madison wrote a lengthy letter to Washington on October 18, 1787, in a hortatory tone:
...What can he mean by saying the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all constitutions equally liable to legislative alterations ....
Madison's letter to Jefferson on October 24, 1787, stated
...Col. Mason left Phila. in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed toward the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.
The awaited reply from Jefferson, who was writing from Paris, where he was The American minister, was mailed on December 20, 1787, and after congratulating Madison's successes, stated:
...I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, ...press....habeas corpus laws, and trial by jury in all matters of fact triable by the laws of the land and not by the law of Nations....a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.
Madison replied on October 17, 1788, giving various reasons for a weak Bill, although he had "not viewed it in an important light" before. Madison enclosed the proposed Bill.
Jefferson replied at length to the October 17th letter on March 15, 1789, and convinced Madison to change his mind. Madison's speech introducing his proposed Bill of Rights to Congress was on June 8, 1789.
In the interim, Richard Henry Lee wrote Mason on October 1, 1787:
...That such parts of the new Constitution be amended as provide imperfectly for the trial of Criminals by a Jury of the Vicinage, and to supply the omission of a Jury trial in Civil cases,...
It is clear that many delegates, such as James Wilson, would have sponsored an amendment favoring an expanded jury role which included nullification.48 The proposed amendments emulating Mason's Declaration flowed from North Carolina, New York, Pennsylvania, Rhode Island, and Virginia.
On June 27, 1788, the Virginia Convention proposed the following amendment, containing the same (underlined) language in most of the above-named state's proposals:
EIGHTH, that in all capital and criminal prosecutions, a man hath the right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty,....
Oddly, on July 11, 1788, the Anti-Federal Committee of Richmond forwarded proposed amendments to the Capitol which contained jury terminology almost identical to Mason's, except that Article 11 now referred to "the ancient Trial by Jury of Facts."50
On June 8, 1789, in Congress, Madison dutifully proposed the following provision, which remained true to that Declaration he had scrivened for Mason some thirteen years earlier:
Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:
The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorised in some other county of the same state, as near as may be to the seat of the offence.
In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
Congressional Register, June 8, 1789, vol. I, pp. 427-29.
Reported out of committee substantially unchanged on July 28, 1789, and, following a Motion by Mr. Livermore on August 17, 1789, -adopted to secure the right of being tried in the State where the offence was committed, the House of Representatives resolved itself into a committee of the whole on August 18, to consider the Fifteenth Amendment, which was adopted as follows:
The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of war, or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment, or indictment, by a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorised in some other place within the same state; and if it be committed in a place not within a state, the indictment and trial may be at such place or places as the law may have directed.
Congressional Register, August 18, 1789, vol. II, p. 233.
A motion by Mr. Burke to substitute "district or county in which the offence has been committed" for "vicinage" failed. On August 21, 1789, the wording excerpted above was approved by two-thirds of the House after a second reading. On August 24, 1789, with only the words "of freeholders" deleted, said wording was approved as Article 10 by House Resolution and sent to the Senate.
On September 4, 1789, the middle phrase ending with "grand jury" was moved to the seventh article, and a motion to strike the rest of Article 10 carried in the haste of the moment. Then, apparently realizing that a substantive change had been made, a September 9th motion "To reconsider Article the Tenth," and to restore the phrasing before the first semicolon was made. The vote on the motion was 8 for and 8 against, so the motion failed.
Here, in the letters of the delegates is what was said concerning this large omission upon return of this bill to the House:
Benjamin Goodhue to Samuel Phillips (September 13, 1789):
...The Amendments have come from the Senate with amendments, such as striking out the word vicinage as applied to Jurors, and have struck out the limitations of sums for an appeal to the federal Court &c. Those two have been the darling objects with the Virginians who have been the great movers on amendments, and I am suspicious, it may mar the whole business, at least so far as to refer it to the next session.
[From: Cogan, N., op. cit., citing Veit, p. 294.]
James Madison to Edmund Pendleton (September 14, 1789):
The Senate have sent back the plan of amendments with some alterations which strike in my opinion at the most salutary articles. In many of the States juries even in criminal cases are taken from the State at large - in others from districts of consider[able] extent-in very few from the County alone. Hence a [dis]like to the restraint with respect to vicinage, which has produced a negative on that clause.... Several others have had a similar fate. The difficulty of uniting the minds of men accustomed to think and act differently can only be conceived by those who have witnessed it.
[From: Cogan, op. cit., p. 480, citing Hobson & Rutland, XII:402]
James Madison to Edmund Pendleton (September 23, 1789):
The pressure of unfinished business has suspended the adjournment of Congs. till saturday next. Among the articles which required it was the plan of amendments, on which the two Houses so far disagreed as to require conferences. It will be impossible I find to prevail on the Senate to concur in the limitation on the value of appeals to the Supreme Court...They are equally inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term: too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the County. It was proposed to insert after the word juries-'with the accustomed requisites'-leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained. The truth is that in most of the States the practice is different, and hence the irreconcilable difference of ideas on the subject. In some States, jurors are drawn from the whole body of the community indiscrim[in]ately; In others, from large districts comprehending a number of Counties; and in a few only a single County. The Senate suppose also that the provision for vicinage in the Judiciary bill, will sufficiently quiet the fears which called for an amendment on this point....
[From: Cogan, N., op. cit., p. 481, citing Hobson & Rutland, vol. XII, pp. 418-419.]
Next a conference committee considered all Senate changes, Mr. Madison, Mr. Sherman, and Mr. Vining for the House, and Mr. Ellsworth, Mr. Carroll, and Mr. Paterson for the Senate. Article 8, approved by the House on September 24, 1789, now read:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation,... etc. [-i.e., a Sixth Amendment prototype]
With minor changes in punctuation, this is the Agreed Resolution of September 25, 1789, and Enrolled Resolution of September 28, 1789.51
In exploring Madison's intent, it helps to divide his statements into those made before he became a conference committee delegate, and those after, for he may have despaired of a vicinage provision once he became the first selected to represent the House on said Committee. It is curious, too, that he began corresponding with Pendleton on this subject when he did, when Pendleton had already led to the repeal of Thomas Jefferson's juries in equity.
Madison early referenced Trevett v. Weeden (1787), a Rhode Island case advancing jury trial as a natural right in support of Bonham issues, in his Notes, Convention of 1787, dated July 17th. Yet, in his June 8, 1789, speech proposing the Bill of Rights to Congress, he had distinguished his view of the jury right from those of other Virginians:
...In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature...52
Still, at the Virginia Convention debate excerpted in Appendix B, below, Madison had, as early as June 20, 1788, already formulated his position that deviations from the common-law location of a jury trial should be left to the discretion of the legislature. Also in Appendix B is Edmund Randolph's comment that it was felt that Mason's 1776 jury provisions were not without exception by the Legislature.
It is impossible to say that only the Real Whigs and members of the General Court Bar, including Jefferson, the Masons, Patrick Henry, and George Wythe, all of whom were influenced by Richard Bland from the Pistole Fee controversy forward, were the only advocates of nullification from a Leveller perspective. Adams and Otis, and their brethren, evidently received this view through William Penn's efforts. No matter what the source, however, the Northwest territory legislation indicates jury nullification carried a majority in the Continental Congress. Because this is what is being addressed in the Declaration of Independence, arquendo, this jury right was, in its inception, an absolute natural right, and was, therefore, indefeasible.
Madison, Pendleton, and members of the Congress who tried to remove prize cases from trial by jury, such as John Dickinson, could only do so by making juries a positive law right, subject to legislative alteration. Pragmatists like James Wilson fell into line because the power of the general verdict was the same power as nullification, anyway. But nowhere in any debate was it ever suggested that the jury could not be told of this power.
Although a vicinage provision was included in the 1789 Judiciary Act for capital cases, the attempts to include a vicinage provision more specific than Article III, § 2, cl. 2, were unsuccessful. The Seventh Amendment did carry some interesting code words which echoed the earlier debate:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
As pointed out hereinbelow, it remains unclear whether the last phrase refers to the common law of England, the common law of pre-Norman times, a federal common law, or the common law of the individual states later enacted by the Rules of Decisions Act. The Supreme Court has held, however, that a unanimous jury verdict is still required in Federal cases. Schad v. Arizona, 501 U.S. 624, 635 n.5, 115 L.Ed. 2d 555, 111 S.Ct. 2491, 2498 n.5 (1991).
The Federalist Papers show broad agreement between Madison and Hamilton on judicial review. Further, in 1798, Jefferson ghost-authored the Kentucky Nullification Resolution while Madison ghosted the Virginia one. Is it plausible that nullification was not desired in civil cases, and did not have to be expressly set out for criminal cases, because of general verdicts of 'Guilty' or 'Not Guilty' having become universal? This might be close, were it not for seditious libel and blasphemy trials which often resulted in special verdicts53 Fox's Libel Act led to many state provisions like Article I, § 8 (last sentence) of the Texas Constitution.
Whatever the reasoning in reviewing Sparf, it roust consider the most plausible report concerning the Framer's intentions:
"...The right of tryal by Jury was left open and undefined from the difficulty attending any limitation to so valuable a priviledge, and from the persuasion that Congress might hereafter make provision more suitable to each respective State - To suppose that mode of Tryal intended to be abolished would be to Suppose the Representatives' in Convention to act Contrary to the Will of their Constituents, and Contrary to their own Interest."
James McHenry before the Maryland House of Delegates (Nov. 29, 1787) in Farrand, Records of Federal Convention, 1787, p. 150.
IF THE POWER OF JUDICIAL REVIEW CAME FROM BONHAM'S CASE, COULD IT LEGITIMATELY BE USED TO NULLIFY THE RIGHT OF JURY NULLIFICATION? (THE SPARF DEBACLE)
Can criminal appeals continue to be overturned in favor of the State based on what a 'rational juror' would have decided? Is jury unanimity required to convict? Did the Supreme Court decide Sparf, a case denying the right to a nullification instruction, on the basis of English common-law, or the Constitution? Did the Court unwittingly amend the Constitution? What would have been the outcome of the Nuremberg trials if they had not stood for the ability of German jury verdicts to be final?
To begin with, the Sparf holding does not disapprove the trial court's instruction that the jury had the physical power to return a verdict of manslaughter despite the evidence. It only holds that the jury may not be told of their veto ability. The debate over whether nullification is a right or a power is found throughout the Chase impeachment trial of 1805, and dates at least to Rex v. Shipley, 4 Doug. 171, 178 (1784).
Howe traces this debate to the aftermath of Bushell's Case, and properly so, since Henry Care makes the same point:
"...The political question was:...: if a criminal jury is not liable to any punishment when it disregards the court's instructions, then it possesses the power to determine for itself what the law may be. If it has the power, why has it not the right?"
Howe, Mark De Wolfe, Juries As Judges of Criminal law, 52 Harv. L. Rev. 582, 583 (1939).
The Sparf majority's discussion of jury nullification begins at 156 U.S. 64. Its challenge to Chief Justice Jay's Jeffersonian nullification charge in Georgia v. Brailsford, 3 Dall. 1, 4 (1794), is maladroit, and refers to English law:
"...If it be correctly reported, I can only say that it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the Supreme Court for many years."
Mark De Wolfe Howe's able criticism cites eleven reported Federal cases embracing nullification prior to Justice Story's 1835 opinion in United States v.Battiste;
"...Mr. Justice Harlan could not deny the fact that in the federal courts until 1835, lower court judges and justices of the Supreme Court, sitting op circuit, had time and again specifically instructed juries that they were 'the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court....*
De Wolfe, op. cit., 52 Harv. L. Rev. at 589. Updated by: The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170 (1964).
The Sparf majority continues to march undaunted in its selection of the evidence. Shifting from whether the jury can decide law, it treats (156 U.S. 70) the issue in the Fries case which led to the Chase impeachment trial, as whether a jury can decide the constitutionality of a law, again as if that was the Sparf issue. (The only issue with nullification is what will best serve justice?)
A. THE TRUTH ABOUT THE CHASE IMPEACHMENT TRIAL
The Sparf majority then quotes extensively from Justice Chase's reasons for not giving a nullification instruction (71), but leaves to the dissent identification of the basis for the Articles of Impeachment brought against Chase:
ARTICLE I: "That unmindful of the solemn duties of his office, and contrary to the sacred obligations by which he stood bound to discharge them faithfully and impartially and without regard to persons, the said Samuel Chase on the trial of John Fries, charged with treason,...did in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust."
"3. In debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt, or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give."
Trial of Samuel Chase, rep. by Samuel H. Smith & Thomas Lloyd (Washington City, 1805), Vol. II: pp. 24-25, and 485-86.
Note, too, that in the Chase explanation excerpted by the majority. Chase refers to English common-law (at 71). Not cited is Justice Chase's Answer to the Articles of Impeachment, pleading as follows:
"...he well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law, and that hence results the power of juries, to decide on the law as well as on the facts, in all criminal cases. This power he holds to be a sacred part of our legal privileges..."
1 S. Smith & T. Lloyd, Trial of Samuel Chase, p. 34 (1805).
Moreover, Chase's contested written opinion from Fries' trial was produced by Robert Goodloe Harper at the 1805 proceedings and it plainly stated Chase's position at Fries' trial:
"It is the duty of the court in this, and in all criminal cases, to state to the jury, their opinion of the law arising on the facts; but the jury are to decide on the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case."
Rehnquist, Wm. H., Grand Inquests (Morrow, 1992), p. 67.
Mr. Hopkinson, representing Chase, summed up the import of this exhibit:
"...demonstrates not only that the counsel were not prohibited from addressing the jury both on the law and the fact, but also that the right of the jury to decide both the law and the fact was most largely and explicitly avowed and declared to them."
Trial of Samuel Chase, 2 Smith & Lloyd 60 (1805).
But, read carefully, this only allowed the jury to 'hear' counsel on the law and facts in summation (Hopkinson, p. 61). At pp. 199-200, Chase's defense admits he would not allow defense counsel for Fries to argue the constitutionality of a law to the jury. At p. 246, Chase's defense refers to the U. S. Constitution, Article III, § 2, to argue that any such jury decision would not be conclusive on appeal.
On February 27, 1805, Chase's prosecutor, Mr. Randolph (of Virginia) replied (pp. 459, 470-71, Vol 2, Smith & Lloyd):
"The precedents which are relied upon to justify the respondent...relate to civil cases, where the law and the fact being always separate and distinct, the first falls under the dominion of the judge, whilst the last ...the jury. But in a criminal prosecution the verdict embraces both law and fact, of which being necessarily compunded,...it belongs to the jury, and to the jury alone to decide and determine...."
"...'tis the glorious attribute of jury trial, that the question of guilty, or not guilty, involving both law and fact, that law as well as that fact the jury alone is competent to determine. It is the necessary consequence of the general verdict which they are required to find. the...attorney general of Maryland... says that this is an incidental power, rather than a right of the jury. But sir, what is that power which no man may question, but a right?....This curious distinction between 'right and power, direct and incidental,' is an ignis fatuus of the learned gentleman's composition to bewilder and mislead us from our object,....The right of the jury is not the less, whether immediate, or derivative...juries possess every power necessary to the general verdict which they have a right to give...."
James Wilson was a prominent Framer who openly espoused jury nullification in criminal cases via the general verdict,33 much as Randolph argues above, and comparable to James Fitzjames Stephen's position on the issue a century later. At 156 U.S. 68, Sparf qualifies Wilson to mean 'but only as directed by the court,' - thereby implicating a charge Wilson would have used only in a trial under the Sedition Act or in a case of seditious libel. An end run is attempted by citing Henfield's Case, which., read carefully, is still consistent with Wilson's teachings on the subject.54
The majority opinion actually discusses Bushel's Case,55 without mentioning that Bushel was the jury foreman in William Penn's case who was imprisoned for acquitting Penn. This task, again, fell to the dissent.
Nonetheless, the dissent, beginning at p. 146, cites early American authority that nullification was the correct view in New England, and that it spread to other states (pp. 151-54). Finally, it offers Alexander Hamilton' Zengerian argument on a motion for new trial in People v. Croswell, 3 Johns. Cas. 337 (1803):
"That in the general distribution of powers in our system of jurisprudence, 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 civil cases, it is always so, and may rightfully be so exerted. 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. "That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases,...and from the exemption of the jury from attaint in criminal cases....
"That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their conscience by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong."
Sparf v. United States, 156 U.S. 51, 147, 39 L.Ed. 343, 377 (1895)
Despite continued controversy, the Sparf holding continues to be upheld in cases such as Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943), and Horning v. District of Columbia, 254 U.S. 135, 41 S.Cfc. 53, 65 L.Ed. 185 (1920). The holding in Horning is that there is no error in the Judge telling the jury to find the Defendant guilty so long as the jury was allowed the technical right to decide the law and the facts. So, now it's a right again?
Paramount to my understanding is my opinion that state rights nullification, judicial review, jury nullification, and boycott or civil disobedience, were all originally viewed as checks on the Norman yoke of imperial Britain, fitting under the loose head of nullification. Moreover, judicial review and jury nullification directly evolved from colonial courts which declared laws void on the authority of Dr. Bonham's Case.56 I do not therefore see how the Supreme Court's power of nullification (as a check) can be used to abolish the jury's power of nullification (as a check).
As a postscript to Sparf's circumscribed review of Chase's trial, we now know that Samuel Chase, although himself a signer of the Declaration of Independence, and member of Congress from 1774-78, -could also have engaged in treason during the Revolution.
Some time after the 18th Andre wrote out a statement of the Fox affair as it then stood. James Rivington the printer, Andre said, had told Stevenson about 'a young man who had been employed...in the treasury of Congress ...He is in partnership with C--, a member of Congress, and on the information derived from their stations they speculate. He has received from us on the 17th September 30 guineas, is gone, and is to send us intelligence.'...
There can be no reasonable doubt that Fox's friend C. in Annapolis was Samuel Chase,....
...There is no evidence that Chase ever thought of treachery as a form of speculation, or that letters were sent to him as Andre said they might be. Fox may only have guessed that Chase was purchasable, or may only have hinted at it as a ruse for getting himself released. But Fox did hint at this and other treacheries, and did obtain his liberty and his guineas,....
Doren, Carl Van, Secret History of the American Revolution, Popular Library, N.Y. (1969), at pp. 226-27.
This makes Chase's statement for rejecting nullification quoted on page 49, below, even more portentous. However, Chase had also been on the small committee which drafted Maryland's Declaration of Rights in August, 1776, which added protections against ex post facto laws and bills of attainder to the Virginia Declaration. According to Leonard W. Levy, he later contradicted his views previously expressed on these subjects in his seriatim opinion in Calder v. Bull, 3 U.S. 386 (1798). His cousin, Salmon Chase, later wrote a Fourth Circuit opinion stating that the Confederacy had no right to secede.55a They both appeared to enjoy their opportunities to harangue juries, a practice popular in their day, but, much like Kelyng in Britain, the main source of Samuel Chase's impeachment troubles.
B. DEVELOPMENTS IN MASSACHUSETTS PRIZE CASES LEADING TO A PRE-BATTISTE, SPARF-TYPE RATIONALE
It is commonly held that jury nullification ran onto hard times in America circa 1835, the date of Battiste, supra. Ironically, it appears that jury nullification first came to be viewed as a radical tactic used by political extremists when Federalist lawyers began using it shortly before the Federalists died out altogether.
By the 'Era of Good Feeling' during the Monroe Administration, the only political party remaining was that of the Anti-Federalists. Oddly, when De Tocgueville visited Boston to ask about American jury trial, the two attorneys he interviewed were both Federalists. In the trial for which Justice Samuel Chase was almost impeached for refusing to give a nullification instruction, James Callendar's lawyers were Federalists.
Federalist lawyers also were challenging ship seizures under Jefferson's Embargo Acts with jury nullification, which led directly to the first significant American anti-nullification case in 1808.
The fifth, and strictest. Embargo Act had been enacted on January 9, 1808.57 Called the Enforcement Act, vessels seized under it could be forfeited, and fines of up to four times the value of the cargo could be levied. Informers received one-half of the fine - an inducement to testify for a particular side, no doubt.
Nonetheless, under the Judiciary Act of 1789, while federal district courts had "original cognizance of all civil causes of admiralty and maritime jurisdiction,"58 section 9 of said Act saved "to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Thus, while seizures were in rem, an in personam action allowing a jury could usually be brought. As a result of United States v. La Vengeance, 3 Dallas 297 (1796) and United States v. The Schooner Betsy and Charlotte, 4 Cranch 443 (1806), American federal admiralty courts sat without juries, despite disagreement from Kent,59 who adduced English common-law practice to the contrary.
In Massachusetts, Federalist lawyers in 1808 urged state and federal juries alike to nullify the Embargo Acts,60 as happened in the United States v. The William, 28 Fed. Cas. 614 (C.C.D. Mass. 1808, Cas. No. 16,700). In The William, however, presiding Judge John Davis convened a hearing on the constitutionality of the Acts, and finding in their favor, removed the constitutional argument from the jury.61 Yet, in the same year, in a Salem federal court, attorney William Prescott successfully won a jury acquittal by arguing "that the [Embargo] act is unconstitutional and void."62 Here is how the seeds of Sparf were so early planted:
...In the Massachusetts Supreme Judicial Court, Chief Justice... Parsons held in Coffin v. Coffin [4 Mass. 1] that state juries did not have broad decision-making powers over both law and fact....Only months after this decision, Prescott appeared in federal court to argue that juries should decide the law and the facts in Embargo cases. Indeed, the connection between Prescott's arguments in the Embargo cases and Coffin was quite direct; Samuel Dexter, the respected Federalist lawyer from Boston who argued...in Coffin that juries should decide both law and fact, later assisted Prescott in a full-scale challenge of the constitutionality of the Embargo. Their vehicle for that challenge was...[United States v.] The William [3 Final Records 280 (1808)]....
...Although Davis cited several cases to support the power of a federal judge to decide the constitutionality of an act of Congress, of special importance was Calendar's Case. Davis invoked Justice Samuel Chase's opinion in that case to reject the argument that juries could decide issues of constitutional law,....
...Between the March 1808 and December 1809 terms.... Judge Davis and federal juries passed upon one hundred and thirty five Embargo violations ....Judge Davis's conviction rate was sixty-two per cent...while federal juries had a conviction rate of only eighteen per cent....
Jones, Douglas Lamar, "The Caprice of Juries: The Enforcement of the Jeffersonian Embargo in Massachusetts, XXIV Amer. Journ. of Legal History 307 (1980), at 315-329.
Chase, whose circuit included Massachusetts, had made an intriguing statement to Federalist nullification proponent Charles Lee during oral argument of The Schooner Betsy and Charlotte. Chase stated that: "the reason of the legislature for putting seizures of this kind on the admiralty side of the court was the great danger to the revenue if such cases should be left to the caprice of juries." I submit this may be where Sparf's erroneous view of Callendar's Case began.
1835 also coincided with the end of the Virginia Dynasty in the Presidency, punctuated only by John, and John Q., Adams, who both alike favored jury nullification. But the evisceration of jury law-finding in prize-cases marked the beginning of jury nullification's long retreat, rekindled only by Fugitive Slave Law trials. Even before Battiste (1835), the Kentucky case, Montee v. Commonwealth, 26 Ky. 132, 149-153 (1830), already had crystallized the fiction later reiterated by Sparf, that the jury had the power to nullify, but must not be told of it.
Oddly, this period saw other vital American doctrines retreat toward more traditional English common-law practice. The doctrine of journey's account, which had been expanded to prevent the harshness of frontier conditions from depriving a traveller of his day in court, rapidly returned to a simple issue of timeliness. The right to petition for redress of grievances likewise fell into decline. A thaw is evident in the United States Supreme Court's treatment of Sparf issues, nonetheless. In United States v. Gaudin, 63 U.S.L.W. 4611 (June 19, 1995), the Court unanimously held that the State's position that the principle requiring the jury to decide all elements of a crime must be limited to factual elements is insupportable. Sparf confirms that the jury both determines the facts, and applies the law to these facts in reaching its verdict.
WAS JURY NULLIFICATION MEANT TO HAVE SPECIAL PURPOSE IN CAPITAL CASES?
In the 1970's, feminist opposition abolished the death penalty for rape. The logic was simple - while there was a death penalty, the rapist often eliminated the only witness by killing the victim. But women jurors were already preventing death sentences in such cases. The same phenomenon also occurred in medieval England when theft was a capital crime.
In Nineteenth Century England, the death penalty was gradually eliminated due to high acquittal rates for minor crimes. Thus, in 1819, British bankers asked Parliament to make forgery a non-capital offense.64
A recent book. The American Jury On Trial (1988), displayed the extent of American disarray on voting one's conscience.65 Lester Zygmanik shot his brother George to death when George, paralyzed from the neck down due to a motorcycle accident, had begged his brother to kill him. Immediately after the shooting, he turned himself in and confessed. The judge even ruled that the term 'mercy killing' could not be used at trial. Yet, only three hours after retiring, the jury found Lester "Not Guilty."
However, when Roswell Gilbert, a 75 year old retired electrician shot his 73 year old wife Emily to death, after she had begged him repeatedly (before numerous witnesses) to do so, due to Alzheimer's disease coupled 'with osteoporosis, he was sentenced to life imprisonment. One juror said, "We had no choice. The law does not allow for sympathy."
Historically, both Jefferson's Leveller sources and testimony
from the Chase trial concurred that capital cases should receive different treatment:
"And will not every conscientious man tremble to pawn his Soul under the sacred and dreadful solemnity of an Oath, to attest and justify a Lie upon Record to all posterity; besides the wrong done to the Prisoner, who thereby perhaps comes to be hang'd (and so the Jury in foro conscientiae are certainly guilty of his Murder), or at least by Fine or Imprisonment, undone with all his Family, whole just Curses will fall heavy on such unjust Jurymen and all their Posterity, that aginst their Oaths and Duty occasioned their causeless misery. And is all this think you nothing but a matter of Formality?"
Hawles, Sir John, The Englishman's Right: A Dialogue Between A Barrister At Law and A Juryman (London, 1680), at p. 22.
During Chase's trial, Mr. Rodney spoke for the prosecution:
"...I was sorry. Sir, to hear from...(Judge Winchester) that in Maryland it is the uniform practice in criminal cases to take the judgment of the court on points of law, and that although counsel seriously differed from them in opinion, it would be thought a high breach of professional decorum to attempt to controvert the point before the jury. When, however, I put a case of...palpable error in the opinion of the court, on a trial for a capital offence, and asked the witness whether he would not then argue the case before the jury, that able and humane judge replied that such a case would justify a departure from the ordinary course...."
Smith & Lloyd, Trial of Samuel Chase, supra, II: p. 424.
Another debate contemporaneous to the framing of the Constitution is here excerpted from Thomas Green's Verdict According To Conscience (1985), pp. 297-98, where he discusses William Eden's Principles of Penal Law (London, 1771):
...The source of the problem was, he said, 'national prosperity.' 'Sensibility sleeps in the lap of luxury; and the legislator is contented to secure his own selfish enjoyments, by subjecting his fellow citizens to the miseries of a dungeon, and the horrors of an ignominious death.'.... '...[the legislator] foresees, that the punishment cannot be inflicted, without raising the indignation of society against the accuser.' The result, then, follows Beccaria's diagnosis closely:
'the delinquent therefore is discharged without prosecution; he repeats the crime under the expectation of repeated mercy....It is a property inseparable from harsh laws, that they are neither regular, nor expeditious in their execution;...and...tend to the fatal multiplication both of crimes and of punishments.'
...Nevertheless, Eden took a liberal view of jury fact-finding in some kinds of cases. He defended the 'indisputable, unquestionable right to acquit the person accused, if, in their private opinions, they disbelieve the accusers; or if in their consciences, they think, however, erroneously, that the fact partakes not of that degree, or species of criminality, with which it is charged in the indictment.
So we come forward to practice in the wake of Witherspoon v. Illinois,67 Jurek v. Texas,68 and Penry v. Lynauqh,69 to the era of the death-qualified jury under Lockhart v. McCree.70
A number of recent cases have suggested how misunderstood the jury's role actually is. For example, the Court of Criminal Appeals has repeatedly held that a 'nullification' instruction is sufficient to satisfy the requirements of Penry v. Lynaugh, 492 U.S. 302 (1989), that all mitigating factors be considered:
"...In Fuller v. State,[829 S.W.2d 191 (1992), cert. denied, 124 L.Ed. 2d 640 (1993)] this court held that a nullification charge 'was adequate to avoid the constitutional infirmity condemned by Penry....(quoting Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed. 2d 316 (1990). Appellant is not entitled to a separate 'special issue.' The Supreme Court has not required that a particular vehicle be employed to allow for the jury's consideration of mitigating evidence,...."
Robertson v. State, 871 S.W.2d 701, 710 (Tex. Crim. App. 1993), cert. denied, 115 S. Ct. 155 (1994). Accord; Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995), cert. denied, 116 S. Ct. 385 (1995); Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995), cert. denied, 116 S.Ct. 131 (1995); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert. denied, 115 S.Ct. 1701 (1995).
But the instructions referred to are not true nullification instructions, since the jury is only allowed to nullify the death penalty in favor of a life sentence. In fact, their discretion is closely controlled by Texas' statutory scheme. Texas Penal Code § 12.31(b), revised after strong criticism in Adams v. Texas, 448 U.S. 38 (1980), now provides:
(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony....
However, Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a) likewise provides in pertinent part:
...The court, the attorney representing the state, the defendant, or the defendant's counsel may not inform a juror or a prospective juror of the effect of a failure of a jury to agree on issues submitted under subsection (c) or (e) of this article.
Article 35.22, Tex. Code of Criminal Procedure still requires a jury oath to render "a true verdict according to the law and the evidence." However, the prosecutor or the Court's charge frequently converts this into "...the law as given to you by the court." See Article 35.16(b)(3), Tex. Code Crim. Proc. Under these laws, a juror might find that a person would be a continuing danger to society and still believe that a life sentence can result, since society would still be protected. But an instruction allowing jurors to vote against the death penalty independently of such Article 37.071 issues can be refused under Franklin v. Lynaugh, 101 L.Ed. 2d 155, 170 (1988):
"Our cases...have...suggested that 'sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses' and that the 'Constitution... requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.'
Compare that excerpt with this one from another Texas case:
"Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See McClesky, supra, at , 95 L.Ed. 2d 262, 107 S.Ct. 1756("Discretionary exercises of leniency [by the sentencer] are final and unreviewable.").
Satterwhite v. Texas, 486 U.S. 249, 100 L.Ed. 2d 284, 297, 108 S.Ct. 1792 (1988).
In another non-capital case, Moufcon v. State, 923 S.W.2d 219, 221 (Tex. App. Houston [14th Dist.] 1996), the Court said:
Although jury nullification is a recognized aspect of our jury system, there is no constitutional implication. that would require a trial judge to instruct the jury on nullification. While we have found no Texas cases discussing the issue, ...the...Supreme Court rejected appellant's argument over one hundred years ago in Sparf....An instruction that the jury may disregard the law would only cause confusion. Id. . . .15 S.Ct. at 293.
A generally accepted rule of construction is that, when determining the Framer's intent, we can look at what the Framers believed at the time the Constitution was framed as an indication of what they meant. The writer and editor of the Declaration of Independence, Jefferson and Adams, believed strongly in jury nullification. Except perhaps for Madison, so did the writers of the Federalist Papers, Jay and Hamilton. And no one spoke against the idea.
Not helping toward meaningful debate of this issue, much American scholarship has focused on two issues which are largely beside the point. The first is whether the "as in other cases' language found in at least 5 state constitutions as of 1994, is simply legerdemain repeated to show the provision was crafted after Fox's Libel Act, or whether it means what it says. The better argument is that it originally referred to the ability of juries to apply the law in a mitigative fashion, particularly in murder and other cases.71
The second is the rights/power dichotomy, which is trace-able to Rex v. Shipley, 4 Doug. 73, 99 Eng. Rep. 774 (K.B. 1784). Basically, the argument is that since only the accused possesses Constitutional rights, and jury nullification can only be exercised by an institution attached to the court, then it must be a power, and not a right invokable by the Defendant. Sparf's holding is that while the jury has the power to nullify, the Defendant does not have the right to inform them of this power. Not considered is the possibility that the Defendant has the right to the jury's cognizance and use of its inherent, ultimately uncontestable, veto power. In fact, the earliest American cases to turn against jury nullification rely on this rationale. See Montee v. Commonwealth, 26 Ky. 132 (Ky. 1830). If, indeed, it is a superfluous distinction, then it can be likened to the Blarney stone of American jurisprudence, for obvious reasons.
Before Jefferson met with his editing committee, and before he prepared his Rough Draft of the Declaration of Independence, he prepared a first draft or outline, which had been lost until recently. It appears at 55 Daughters of the American Revolution Magazine 363, at 365. In that outline, Jefferson preceded the list of grievances and intolerable acts in which deprivation of jury trial is found not with his later Lockeian language, "long train of abuses," or his "injuries and usurpations," but under a briefer heading: "...his invasions of the rights of the people." In 1776, the common-law right of jury trial was signified by Jefferson's phrase, "the rights of the people," just as it was in the actual title of the Bill of Rights of 1689: "An Act Declareing the Rights and Liberties of the Subject...."
For example, the 1689 Bill provides, "it is the right of the subjects to petition the King." Our First Amendment merely substitutes "people" for "subjects," and "Government" for "King."
Concomitantly, since Jefferson had a copy of Mason's Virginia Declaration of Rights at his side, he would have included the common-law jury right found therein:
"ARTICLE XI: THAT in Controversies respecting Property, and in Suits between Man and Man, the ancient Trial by Jury is preferable to any other, and ought to be held sacred."
However, despite having scrivened Mason's Declaration, Madison:
...seems to have thought of rights under two main headings. One, as stipulating agreed upon methods by which in particular cases the government shall exercise its powers [e.g., trial by jury]
...Secondly, he thought of another class of rights as declarations of areas totally outside the province of government.
Dunbar, James Madison and the Ninth Amendment. 42 Va. L. Rev. 627, 635 (1956).
Despite a mixed usage of terms by his contemporaries, Madison always sought to reserve powers to government, and rights to the people. Hence, the Tenth Amendment dealt with the former, the Ninth with the latter. Oddly, Madison's categorization of the jury with government, and thus, powers, may explain his movement of it from a common-law, to a positive law, right, on June 8, 1789.72
Since few then knew that Madison had ghost-written the Virginia Nullification Resolutions of 1798, Madison also was the main writer of the Report of 1799 (on the Virginia Resolutions), which was adopted by the Virginia Legislature on January 11,1800. The Report refuted the claims of Sedition Act proponents like George K. Taylor, that a common-law of seditious libel existed among the states as a whole even after the Constitution:
...If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law, would afford powerful reasons against it.
Is it to be the common law with or without the British statutes?
If with these amandments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is the law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?
Levy, Leonard W., ed.. The Virginia Report of 1799-1800 (Da Capo Press, New York, 1970), pp. 214-216.
Madison also said that inasmuch as the common law "relates to every subject of legislation, and would be paramount to the laws and constitutions of the states...,"..."it would confer on the judicial department a discretion little short of a legislative power...."
But, as with James McHenry, supra, neither Washington nor James Wilson mention Madison's positive-law jury right in discussing its erstwhile omission from the 1787 Constitution:
...it was only the difficulty of establishing a mode which should not interfere with the fixed modes of any of the states, that induced the Convention to leave it, as a matter of future adjustment.
Letter from George Washington to Marquis de Lafayette (April 28, 1788),
Another objection that has been fabricated against the new constitution, is expressed in this disingenuous form- "the trial by jury is abolished in civil cases." ...Let it be remembered, then, that the business of the federal constitution was not local, but general -not limited to the views and establishment of a single state, but co-extensive with the continent and comprehending the views...of thirteen independent sovereignties. When therefore, this subject was in discussion, we were involved in difficulties, which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a jury, differed in the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that "the trial by jury shall be as heretofore:" since there never has existed any federal system of jurisprudence, to which the declaration could relate....How then, was the line of discrimination to be drawn? The convention found the task too difficult for them: and they left the business as it stands....and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved.
Address To A Meeting of the Citizens of Philadelphia, by James Wilson, delivered October 6, 1787. Excerpted from: Ford, Paul, ed.. Pamphlets on the Constitution of the United States, .De Capo Press, New York (1968), p. 157. See 1 J. McMaster & F. Stone, Pennsylvania and the Federal Constitution 1787-1788, at pp. 144-145 (1888).
Although Justice Joseph Story was a Madison appointee, the distinction made above probably did not contribute to his decision in Battiste (1835), because, in 1812, in U.S. v. Won-son, below, he held that the terms "common law" appearing in the Seventh Amendment, meant the common law of England. Story's reasons for rejecting nullification may have lain elsewhere:
§ 386. It is observable, that the trial of all crimes is not only to be by jury, but to be held in the State, where they are committed. The object of this clause is, to secure the party accused from being dragged to a trial in some distant State, far away from his friends, and witnesses, and neighborhood; and thus subjected to the verdict of mere strangers, who nay feel no common sympathy, or who may even cherish animosities, or prejudices, against him. Besides this, a trial in a distant State or Territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence.... By the common law, the trial of all crimes is required to be in the county, where they are committed. Nay, it originally carried its jealousy still farther, and required, that the jury itself should come from the vicinage of the place, where the crime was alleged to be committed. This was certainly a precaution, which, however commendable in an early and barbarous state of society, is little commendable in its more advanced stages. It has been justly remarked, that in such cases, to summon a jury, laboring under local prejudices, is laying a snare for their consciences; and, though they should have virtue and vigor of mind to keep them upright, the parties will grow suspicious, and indulge many doubts of the impartiality of the trial. It was doubtless by analogy to this rule of the common law, that all criminal trials are required to be in the State, where the crimes are committed....
A Familiar Exposition of the Constitution of the United States, Containing A Brief Commentary of Every Clause..., by Joseph Story, LL. D., Thos. H. Webb & Co., Boston, Mass., 1842, pp. 229-30.
What emerges is that there were no bright lines. In 1787, the omission of juries in civil cases was to be left to a future Congress, quite possibly along with other trappings undressed.
7. Some persons have ventured to publish an intimation, that by the proposed constitution, the trial by jury is abolished in all civil cases. Others very modestly insinuate, that it is in some cases only. The fact is, that trial by jury is not affected in any case, by the constitution;
except in cases of impeachment,....
8....But why is an objection raised against an appellate jurisdiction in the supreme court, respecting fact as well as law?... I suspect many people will think this is no defect in the constitution. But perhaps it will destroy a material requisite of a good jury, viz. their vicinity to a cause of action. I have no doubt, that when causes were tried, in periods prior to the Christian era, before twelve men, seated upon twelve stones, arranged in a circular form, under a huge oak, there was great propriety in submitting causes to men in the vicinity. The difficulty of collecting evidence, in those rude times, rendered it necessary that juries should judge mostly from their own knowledge of facts or from information obtained out of court. But in these polished ages, when juries depend almost wholly on the testimony of witnesses; and when a complication of interests, introduced by commerce and other causes, renders it almost impossible to collect men, in the vicinity of the parties, who are wholly disinterested, it is no disadvantage to have a cause tried by a jury of strangers. Indeed the latter is generally the most eligible.
An Examination into the leading principles of the Federal Constitution proposed by the late Convention held at Philadelphia, by Noah Webster, pub. by Prichard & Hall, Market St., Philadelphia, Pa. (1787), in Ford, Paul, Pamphlets on the Constitution, op. cit.
Of course, Noah's relative, Daniel, became an avid proponent of jury nullification in Fugitive Slave Law trials.
Perhaps then, the historical evolution of nullification as an inherent jury power of mitigation has never been properly understood in the ancient common law context in which it arose.
Thomas Green shows that the traditional verdict of mitigation according to conscience arose when most crimes above petty theft were capital, benefit of clergy was being abolished, the issues of usurpation and unjust application of laws was being opened to the common man by the American Revolution, and the jury was able to assess a lesser included punishment (transportation) with clergyable felony and petty larceny.73 The trial judge also commented on the evidence and recommended to the jury what sentence to return, often supporting mitigation in capital cases, thereby leaving open a later judicial letter favoring pardon. The advent of non-capital sanctions led to judicial encouragement that the jury select lesser included offenses for conviction.
When most crimes were capital, it aided justice that the jury was of the neighborhood.73a Jurors were allowed to import personal knowledge, -if not in deliberation, then as their conscience was guided by God to their verdict. Very often, their oath (in America) expressed a duty to both God and their conscience, but none to the Court itself. If the truth, based on -Knowledge acquired before trial, was seated in the jury box, -even if it was only knowledge of the accused's character, -then that one juror could necessitate acquittal. In the same way, if the truth became known in the neighborhood after trial, such as by comparing accounts, letters or a petition from the defendant's neighborhood could still bring a pardon. After all, these people wish to see the convicted man walking their streets again. Juries of the vicinage not only prevented oppression, -they also conserved judicial resources in the age of the hue and cry, -not to mention innocent lives.
My personal reasons for informing the jury of its power to render a special verdict or to nullify law which does not do justice is that, if the jury actually does become the living Constitution and conscience of the Court, then they are made plenipotentiary and must be told of their powers. The Judge cannot choose not to derogate a power which inheres in their sovereignty while they sit - that is usurpation.
As to whether Jefferson and Adams included jury nullification in the Declaration of Independence, and it is therefore a 'right reserved to the people,' I look to two factors: 1) nullification was a broad-based movement to void the enforcement of unjust laws, and included boycott and civil disobedience as exemplified by the Boston Tea Party; 2) Jefferson and Madison subscribed to the broadest view of this power in the nullification resolutions of which they solicited passage by state legislatures after 1798, and before nullification doctrine was recognized as judicial review by Federalist Chief Justice John Marshall in Marbury v. Madison (1819).
Parsimony can be defined that, all things being equal, the simplest explanation consistent with the fewest operational variables is usually the best. Regrettably, in searching for a usable past, we know very little today about what variables were operational in 1776 or 1789 or 1791, particularly since all of our Constitutional rights were defined against a natural law background before our courts fell into the Twining v New Jersey error complained of so often by Professor Leonard W. Levy, -of construing the Bill of Rights in light of English common law. An example is that we do not know whether the Framers of the Seventh Amendment intended "the common law of England, as Justice Story asserted in U.S. v. Wonson, 28 Fed. Cas. 745 (C.C.D. Mass. 1812) (No. 16,750), or the common law of the individual states in which cases were to be tried by federal courts...."74 We also do not fully understand the operation of early common-law reception statutes,74a or the meaning of non-repugnancy clauses in colonial charters. Jefferson, interestingly, defined Virginia common law as that in existence before the settlement of Virginia's first place, being Jamestown, in 1619. But nullification will always be a natural law against oppression - as Michael Collins said, "Sometimes our only power is the power to refuse!"
Writing about inferable meanings of Constitutional documents is not beyond reproach. There were many fighting faiths, many if not all of which were never enshrined in text, in part because the experiment being framed was expected to self-adjust anyway. However, if the debate over jury nullification is really only a debate over terms used, it is unseasonal. Because the rights (or powers) from the Declaration of Independence were to be included in the Ninth Amendment if they were not enumerated elsewhere, and the jury right expressed was inexorably the nullification right, there is no ground for perplexity.
The jury box is not a trap for which we may limit the information available for final decision-making because jurors are not as erudite as we are. The Sparf rationale is simply the exaltation of form over substance.
According to The Calendar of Inquisitions, in 14th Century lunacy proceedings, the jury would be dispatched to the alleged lunatic's house to examine him in familiar surroundings. If they determined he was sane, they simply did not return to Court in some instances. Thus, a jury can strike, if it wishes, or assume powers exigent to the circumstances.
Finally, excusing jurors during deliberation for advocating nullification deserves further inquiry. If it's a recognized right (or power) used to correct the Judge, then how can one be forced to tell the Judge if he plans to use it?
Who can finally speak what the law is?
FOOTNOTES AND BIBLIOGRAPHY
1 See Barnett, Randy E. , The Rights Retained By the People: The History and Meaning of the Ninth Amendment (Cato Inst.) George Mason Univ. Press, Fairfax, Va., 1989, at 262-275, citing The Federalist Papers, No. 83 (Hamilton), among others.
2 Cooley, Thos. M., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power...(Little, Brown & Co., Boston, Mass., 1868), p. 460. For a history of these variations, see Howe, M.D., Juries As Judges of Criminal Law, 52 Harv. L. Rev. 582, 586-88 (1939). For states favoring nullification before 1851: Alschuler, A.W., and Deiss, A.G., A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 909-10 (1994), listing Connecticut, Georgia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Pennsylvania, and Tennessee with specific provisions, and Maine, New Hampshire, New York, Rhode Island, Vermont, and Virginia - in practice.
3 124 Eng. Rep. 1006-1018 (Ct. of Common Pleas 1670).
4 See Green, Thos. A., Verdict According To Conscience (Univ. Chicago Press, Chicago, Ill., 1985), pp. 221-263.
4a James Harrington was a prisoner in the Tower from 1664-1677, and so may have provided continuity back to the period of the Levellers' imprisonment. To publish pamphlets, the Levellers threw their pamphlets out Tower windows, so messages could have been passed in many ways if more open discourse was not permitted. Fleet Street was not far, and Fleta is believed to have had little difficulty gaining publication.
5 Levy, Leonard W., Origins of the Fifth Amendment (Oxford U. Press, N.Y., 1968), pp. 301-309; Harris, Richard, Freedom Spent (Little, Brown & Co., Boston, 1976), pp. 354-362.
A key word in tracing Leveller influence is 'birthright.' In his Origins of the Fifth Amendment, Leonard W. Levy states that John Lilburne was the first to raise the novel argument that Magna Charta rights were the 'Birthright' of all Englishmen. For that, he became known as "Free-born John." Perhaps due to William Penn, the colonists readily adopted this term.
6 Chapters XVII, XIX, and XXII provide for a jury verdict by 12 men of the Neighborhood, plus more:
Chapter XIX:"THAT there shall be in every Court, three Justices or Commissioners, who shall sit with the twelve men of the Neighborhood, with them to hear all Causes, and to assist the said Twelve men of the Neighborhood in Case of Law; and that they, the said Justices shall pronounce such Judgment as they shall receive from, and be directed by the said Twelve men, in whom only the Judgment resides, and not otherwise."
"And in Case of their neglect and refusal, that then one of the Twelve, by consent of the rest, pronounce their own Judgment as the Justices should have done."
7 The phrase, 'You better get a Philadelphia lawyer,' hearkens back to the Zenger case. That lawyer was Andrew Hamilton, and one report of his jury speech appears in Chandler, Peleg W., American Criminal Trials (1841-44), Vol. I, pp. 194-95 (Books for Libraries Press Reprint-1970):
The right of the jury, to find such a verdict as they in their conscience do think is agreeable to their evidence, is supported by the authority of Bushel's case, Vaughan's Reports, p. 135, beyond any doubt. For,...the chief justice,...lays it down for law, "That in all general issues,...though it is a matter of law, ...yet the jury find not (as in a special verdict) the fact of every case, leaving the law to the court; but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately.'....The reason given in the same book is, 'because the judge as judge cannot know what the evidence is that the jury have; that is, he can only know the evidence given in court; but the evidence which the jury have, may be of their own knowledge, as they are returned of the neighborhood. They may also know from their own knowledge, that what is sworn in court is not true; and they may know the witnesses to be stigmatized, to which the court may be strangers.'....From all which I insist it is very plain, 'that the jury are by law at liberty (without any affront to the judgment of the court) to find both the law and the fact, in our case,' as they did in the case I am speaking to, which I will beg leave just to mention, and it was this. Mr. Perm and Mead being Quakers, and having met in a peaceable manner, after being shut out of their meetinghouse, preached in Grace-church street, in London, to the people of their own persuasion, and for this they were indicted;....To which they pleaded, not guilty....'whether that meeting together was riotously, tumultuously, and to the disturbance of the peace, was the question.' And the court told the jury it was, and ordered the jury to find it so:....But the jury did not think fit to take the court's word for it;...;and they acquitted Mr. Perm and Mead. In doing of which they took upon them to judge both the law and the fact;....
A similar version appears in Levy, Leonard W., Freedom of the Press from Zengar to Jefferson, Bobbs-Merrill Co., Inc., N.Y. (1966), p. 91. The latter may have been stylized by Penn or others.
8 Schwartz, B., The Bill of Rights: A Documentary History (Chelsea House, McGraw-Hill, 1971), Vol. I: p. 144-53. John Peter Zenger's pamphlet, "A Brief narrative of the Case and Trial of John Peter Zenger," likewise went through 14 reprints between 1735 and 1791. See Alschuler & Deiss, supra, 61 U. Chi. L. Rev. at 871-74.
9 Schwartz, B., Ibid., Vol. I: pp. 158-61.
10 Joseph Warren sent Paul Revere or a replacement on his famous ride, and was a member of the circle of Adamses and Otises who planned Boston's revolt. At Breed's Hill, this poet covered the late retreat of the colonists by creating a vociferous distraction designed to attract both the ire and the fire of the British. Abigail Adams penned a lament. His wife was America's first woman poetess, Mercy Otis Warren.
11 Much of Jefferson's language comes directly from John Locke: 'pursuit of happiness' from the Essay on Human Understanding; 'long train of abuses' from A Letter Concerning Toleration; also, from Locke's Second Essay on Civil Government, §§ 123, 124 (in Appendix, below). Only recently, we have learned that Locke began writing his essays on government much closer to the time his friend, Algernon Sydney, perished in the House Rye Plot.
Jefferson was already exposed to Locke via Richard Bland, James Otis, Dulaney, and Blackstone's Commentaries; John Adams via James Otis and his cousin Samuel Adams. Jefferson probably also via Samuel Adams' State of the Rights of the Colonists (herein).
Obviating the replacement of 'law of the land'(i.e., 'due process') with the jury right is that John Adams, the principal editor of the Declaration of Independence, was defense counsel in 1769 in the Pitt Packet case before a Court of Vice-Admiralty, where James Otis and he argued for a 'right to trial by a jury of the vicinage' under 28 Henry VIII , ch. 15 (1536) and 4 Geo. I, ch. II (1717). Of the 86 editing changes made on Jefferson's draft of the Declaration, 47 were made by a committee composed of Franklin, Adams, Livingston, Jefferson, and Roger Sherman. No changes were made concerning the jury right.
12 Corwin, Edw. S., The 'Higher Law' Background of American Constitutional Law (Cornell Univ. Press, Ithaca, N.Y., 1955), p. 42. Hawles' Englishman's Right, cited Littleton that the jury could address the law, as had John Lilburne in his trial. How. State Trials 4:1381 (herein).
13 "...it appears in our books, that in many cases, the common law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void." Dr. Bonham's Case, 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 647, 652 (Ct. Common Pleas 1610). Here, the statute allowed the Physician's Guild to both condemn and fine its rivals, violating the natural law precept that 'no man shall be judge in his own cause.'
14 Bentham, Jeremy, The Principles of Morals and Legislation (London, 1789), in the January, 1789 Addendum appearing at p. 336 of the 1823 edition. Bentham was a pupil of Black-stone's, and had difficulty understanding nullification.
15 Miller, Chas. A., "The Forest of Due process of Law: The American Constitutional Tradition," appearing in Pennock, J.R., and Chapman, J.W., eds., NOMOS XVIII; Due Process (NYU Press, N.Y., 1977), at pp. 6-7, states:
"...In the 1760's, after the Stamp Act, . . .Bla.ckstone summed up and, at the same time, expanded the ideas of Chapter 29 and due process of law. In arranging his 'three absolute rights of individuals,' he followed the order of Locke in justifying the existence of the state for the protection of life, liberty, and property:
'(1) the right of personal security [which] consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. (2) the personal liberty [which] consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law. (3) the third absolute right,... of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.'
Madison proposed the following as both a Preamble to the Constitution, or alternatively, to the Bill of Rights:
"That government is instituted, and ought to be exercised for the benefit of the people, which consists in the enjoyment of life and liberty, with the right of acquiring property, and generally of pursuing happiness and safety...etc.
16 Madison's definition of property is at 165 U.S. 589 (1897). 10 Jefferson's Parliamentary Writings, Parliamentary Pocket Book, Parag. 547 (Princeton U. Press, 1988), p. 156, citing Hale's Pleas of the Crown.
17 "Magna Charta is such a fellow, that he will have no sovereign," in 1 Rushworth, Historical Collections 562 (London 1682),
18 "That the Great Charter...be holden and kept in all points; and if any statute be made to the contrary, that shall be holden for none." Coke, Institutes, 111.
19 Levy, Leonard W., Origins of the Fifth Amendment (Oxford U. Press, N.Y., 1968), at pp. 244-48.
20 Dumbauld, Edw., Thomas Jefferson and the Law (U. of Okla. Press, Norman, Okla., 1978), pp. 84-87.
2l Meade, Robt. D., Patrick Henry: Patriot in the Making (J.B. Lippincott, Philadelphia, Pa., 1957), p. 243.
22 Brodie, Fawn, Thomas Jefferson: An Intimate History (W. W. Norton & Co., N.Y., 1974), p. 95. Jefferson was a member of the 8 member Bar of the General Court of Virginia, which included Richard Bland, George Wythe, and Thomson Mason, -all were also members of the House of Burgesses. When the Burgesses was closed, the General Court's Bar boycotted it for the duration. Dewey, Frank L., Thomas Jefferson, Lawyer (Univ. Press of Va., Charlottesville, Va., 1986), pp. 2-3.
23 Knollenberg, Bernhard, Origin of the American Revolution: 1759-1766 (1960), p. 184.
24 By 1774, Jefferson was definitely attending a Committee of Correspondence which would have communicated directly with the Boston Committee chaired by Samuel Adams, and charged with distributing Otis' work to other Committees. Mayer, David N., The Constitutional Thought of Thomas Jefferson (U. Press of Va., Charlottesville, Va., 1994), p. 27. As to Sam Adams; Schwartz, B., op. cit. , Vol. I: pp. 200-01.
25 Smith, Jos. H., Appeals To the Privy Council from the American Plantations (Octagon Books, N.Y., 1965), pp. 178-180, 191, 516-521. Jefferson may have known of Burkes protest that colonists charged with treason would be tried in England. Letter to the Sheriffs of Bristol, 2 Works of the Right Honorable Edmund Burke 189, 192 (Little, Brown 9th ed. 1889).
26 Knollenberg, Bernhard, Growth of the American Revolution; 1766-1775 (Free Press, N.Y., 1975), p. 222. The popular comparison was with the Court of Star Chamber. Dickerson, Oliver M., Boston Under Military Rule, 1768-1769 (Boston, 1936), pp. 46, 54, 56, 68 & 72.
27 Simon, Rita James, ed.. The Jury System in America (Sage Pub., Beverly Hills, Calif., 1975), p. 29; Bailyn, B., The Ideological Origins of the American Revolution (Belknap Press, Oxford, Mass., 1967), pp. 108-09.
28 Hoffer, Peter Chas., The Law's Conscience: Equitable Constitutionalism in America (UNC Press, Chapel Hill, N.C., 1990), pp. 72-76 (Declaration); Mayer, David N., op. cit., p. 29 (Summary View).
29 Jefferson, Thomas, Notes on the State of Virginia, ed. by J. Randolph (1853), p. 140.
30 According to Corwin, Roman statutes commonly would contain a 'savings clause' stating that the statute's purpose was not to abrogate the jus (or sacrosanct precepts of higher law). The form of the clause given by Brissonius in a work first published in 1583 is: "Si quid sacri sanctique est, quod jus non sit rogari, ejus hac lege nihil rogatur." Brissonius, De Formulis Solennibus Populi Romani Verbis (leipsic, 1754), Lib. 2, c. 19, pp. 129-30, cited in Corwin, Edward S., The 'Higher Law' Background of American Constitutional Law (Cornell U. Press 1955), p. 12, fn. 34. (Similar versions used by Cicero are noted.)
31 Jefferson's "Norman Yoke:" 1 Writings of Jefferson (Ford ed. 1892), pp. 363-64. Also, these excerpts from the Manuscript of Summary View, captioned, "Draft of Instructions To the Virginia Delegates in the Continental Congress (July, 1774)," are illustrative:
... In the earlier ages of the Saxon settlement feudal holdings were certainly altogether unknown, and very few, if any, had been introduced at the time of the Norman conquest. Our Saxon ancestors held their lands, as they did their personal property, in absolute dominion, disencumbered with any superior,...which the Feudalists term Allodial: William the Norman first introduced that system generally. The lands which had belonged to those who fell in the battle of Hastings,...These he granted out, subject to feudal duties, as did he also those of a great number of his new subjects.... But still much was left in the hands of his Saxon subjects...not subject to feudal conditions. These...by express laws...were made liable to the same military duties as if they had been feuds; and the Norman lawyers soon found means to saddle them also with other feudal burthens....
From: Boyd, Julian, ed., 1 The Papers of Thomas Jefferson, pp. 121-137 (Princeton, N.J.), supra.
Peyton Randolph had copies of Jefferson's Summary View distributed at the First Continental Congress. This could account for Richard Price's Two Tracts on Civil Liberty (1778), which spread Jefferson's views, coming so closely on its heels.
31a Many of the 8 members of the General Court Bar of Virginia (the Equity Bar), including Jefferson, Bland, Thomson Mason, and George Wythe, to whom Jefferson was apprenticed to study law, were also "philosophes." These philosophes, as Jefferson's library in his study at Monticello still attests, were patterned after the men of the French Enlightenment who made up the Republic of Letters: Montesqieu, Voltaire, Diderot, Rousseau, Buffon, Condillac, Turgot, Condorcet, Helvetius, and others. The Encyclopedie defined a philosophe as: "One who, trampling on prejudice, tradition, universal consent, authority -in a word, all that enslaves most minds, -dares to think for himself, to go back and search for the clearest general principles, to admit nothing except on the testimony of his experience and his reason."
John Adams and James Otis were also members of a Boston lawyer's club, "Soliditas," who read and discussed Locke, Coke and as early as 1765, Rousseau. In 1743, John's cousin, Samuel Adams, had graduated Harvard with a Master of Arts, arguing the thesis, "Whether it be lawful to resist the Supreme Magistrate if the Commonwealth cannot be otherwise preserved?" It was based on Lockeian social compact theories, but note that Franklin and Hooker strongly influenced others toward representative council governments based on their experiences with the Five Nations. Franklin lived with the Nations for almost a year when he was 16.
Care's second London edition was published in 1691. The fifth edition (Boston, 1721), and sixth (Providence, 1774), were entitled: English Liberties, or the Free-Born Subject's Inheritance. Containing Magna Charta, Charta de Foresta, the Statute De Tallagio non concedendo, the Habeas Corpus Act, and several other Statutes; with Comments on each of them.
32 Rutland, Robt., ed.. The Papers of George Mason; 1725-1792, Vol. I: p. 281.
32a Sam Adams wrote for the Gazette under the pseudonyms: PURITAN, POPULUS, SINCERUS, DETERMINATUS, and A BOSTONIAN; John Adams, beginning in January, 1766 wrote for the Gazette, under CLARENDON, and GOVERNOR WINTHROP. In 1769, the Boston Town Meeting had John draft his Instructions to the Representatives of the Massachusetts Assembly, which cited Lord Coke and Magna Charta against the juryless Vice-Admiralty courts. Bowen, Catherine D., John Adams and the American Revolution (Grosset & Dunlap, N.Y., 1950), pp. 259-60, 309, 315, 331.
33 Corwin, Edward S., The Establishment of Judicial Review, 9 Mich. L. Rev. 102 (1910-11), at pp. 104-113. Other evidence of Coke's influence: Warren, Hist. of American Bar 169, 171-74; Dickinson, Letters of A Farmer (1768), at pp. 330, 375, 382; in Knollenberg, Bernhard, Origin of the American Revolution:1759-1766 (Free Press/ McMillan, N.Y., 1961), at pp. 153-154, 258.
34 Knollenberg, B., Ibid. Corwin, in The Higher law Background of American Constitutional Law, supra, p. 77, fn. 106, mentions that John Adams also argued that the Stamp Act was void before the Massachusetts Governor and his Council, and that he reiterated his argument in his Letters of Clarendon.
35 (1741 corresp.:) 25 MS Mass. Archives (Hutchinson Corresp., 1741-1743), pp. 129-30. Second letter, Hutchinson to Jackson, September 12, 1765, in Knollenberg, B., Id. Corwin, Edw., Ibid., fn. 106, cites a similar statement by Hutchinson: "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void," citing Appendix, Quincy 527n. (Mass. 1769). (Note the Lilburnian resonance.)
36 Bourguignon, Henry J., The First Federal Court: The Federal Appellate Prize Court of the American Revolution, 1775-1787 (The American Philosophical Society, Phil., Pa., 1977), p. 58.
37 Bourguignon, H.J., supra, p. 61.
38 Bourguignon, H.J., supra, p. 66
39 Bourguignon, H.J., supra, pp. 70-72.
40 Bourguignon, H.J., supra, p. 72.
41 Bourguignon, H.J., supra, p. 74.
42 Bourguignon, H.J., supra. The Judiciary Act of 1789, §9 reads:
"...And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." Still, as late as November 13, 1808, Jefferson wrote Governor Lincoln that he was considering letters of marque and reprisal an alternative to declaring war. Letters of marque provisions appear in many state constitutions.
Further discussion: Ubbelohde, Carl, The Vice-Admiralty Courts and the American Revolution (U.N.C. Press, Chapel Hill, N.C., 1960), pp. 195-201.
43 Jefferson, Thomas, The Autobiography:1743-1790, in Thomas Jefferson:Writings (Literary Classics, N.Y., N.Y., 1984), p. 33.
44 Mendelson, Wallace, Jefferson on Judicial Review: Consistency Through Change, in Hall, K.L., Judicial Review in American History (Garland Pub. Co., N.Y., 1987), at pp. 472-482, reprinted from 29 U. Chi. L. Rev. 327 (1962).
45 This account appears in one of Leonard Levy's 3 books on the effects of the Alien & Sedition Acts: Judgments (Quadrangle Bks. 1972); Original Intent (McMillan, 1988); Seasoned Judgments (Transaction Pub., 1995).
46 Tudor, Win., The Life of James Otis (Boston, 1823), p. 480.
47 Such crusty resistance has been encountered to this discussion of Madison that I offer instead this studied view:
"Strategy...was not the only reason for...hesitation to support a bill of rights....Two other thoughts were... at work. As Madison expressed in his state convention before he was obliged to make his promise...a declaration of essential rights was both unnecessary and potentially pernicious....Madison had always thought it dangerous to write into a constitution clauses that necessity would overturn, ....By this time...Madison had made his promise to his state convention and was making it again to his constituents in the first congressional elections. He did so,... for reasons...not to be accounted for by politics alone.
"There is a standard view....Madison...was a very able, very worried politician. Under pressure from the Henryite majority in his home state, forced into a...contest for a seat in the first Congress, and frightened by a movement for a second federal convention, he succeeded... in counteracting all these threats. Combing through the numerous amendments recommended by the state conventions, he extracted those that he considered harmless, talked the Federalists into approving them, fractured the opponents of the Constitution, and restored his damaged standing in Virginia.
Most of this is true...."
Banning, Lance, Jefferson and Madison (Madison House, Madison Wis., 1995), p. 12.
Nonetheless, while drafting the Bill of Rights, Madison wrote privately that he was engaged in the 'nauseous project of amendments' whose purpose was 'to kill the opposition everywhere.' 12 The Papers of James Madison, pp. 346-353, cited in Levy, Leonard W., Seasoned Judgments (Transaction Pub. 1995), p. 108, fn. 65.
48 Contrary to the practice of Tom Paine, who defended his Leveller origins openly, James Wilson, in his Law Lectures in Philadelphia in 1790-91, offered a history of jury nullification which traced Anglo-Saxon origins to Roman law uncontaminated by the Leveller historians complained of by Thomas Green. It follows the Zenger argument to some extent:
...We have the high authority of Littleton, that, in cases where the jury may give their verdict at large-in other words, a special verdict, stating the facts, and praying the decision of the court as to the law-they may, if they will take upon them the knowledge of _the law, give the verdict generally, as is put in their charge....[Lit. s. 368, I Inst., 228.]
...Upon all general issues, the jury find not the fact of every case by itself, leaving the law to the court; but find... upon the issue tried, wherein they resolve both law and fact complicately, and not the fact by itself...[Vaughan 148, 150]
...But, in many cases, the question of law is intimately and inseparably blended with the question of fact: and when this is the case, the decision of one necessarily involves the decision of the other. When this is the case, it is incumbent on the judges to inform the jury concerning the law; and it is incumbent on the jury to pay much regard to the information, which they receive from the judges. But... .Suppose that, after all the precautions taken to avoid it, a difference...takes place between the judges and the jury, with regard to a point of law: suppose the law and the fact to be closely interwoven, that a determination of one must, at the same time, embrace the determination of the other...what must the jury do? -The jury must do their duty, and their whole duty; they must decide the law as well as the fact."
"This doctrine is peculiarly applicable to criminal cases; and from them, indeed, derives its peculiar importance. When a person is to be tried for a crime, the accusation charges against him, not only the particular fact which he has committed, but also the motive, to which it owed its origin, and from which it receives its complexion...."
McCloskey, Robt. Green, ed.. The Works of James Wilson, Vol. II: p. 503, Lectures on Law: The Subject Continued-Of Juries, beginning at p. 538-541.
49 Documentary History of the First Federal Congress, 1789-1791, Vol. IV, Legislative Histories: Amendments To The Constitution (John Hopkins Press, Baltimore, Md., 1986), p. 16.
50 Papers of George Mason, supra, Vol. III: pp. 1068-71.
51 Documentary History of the First Federal Congress, 1789-1791, supra, p. 11.
52 Hobson Sc Rutland, ed.. The Papers of James Madison, Vol. 12 (Univ. Press of Va., Charlottesville, Va., 1979), p. 204.
53 The Bill of Rights: Original Meaning and Current Understanding (U. Press of Va., Charlottesville, Va., 1991), p. 335.
54 See Henfield's Case, No. 6,360, 11 Fed. Cas. at 1121-22 (C.C.D. Pa. 1793).
55 Bushel's Case, T. Jones 14, 84 Eng. Rep. 1123, 124 Eng. Rep. 1006, 6 How. St. Trials 999(1670), cited by the dissent together with Penn & Mead's Case, 6 How. St. Trials 951-1000 (1670), in Sparf v. United States, 156 U.S. at 119, 39 L.Ed. at 367. See also Bushel v. Starling, 3 Keble 322, 84 Eng. Rep. 744 (1674).
55a Shortridge & Co. v. Macon (4th Cir. 1867), in Johnson, Bradl-ey T., Reports of Cases Decided By Chief Justice Chase in the Circuit Court of the United States Fourth Circuit: 1865-1869, reprinted by DeCapo Press (N.Y., 1972), p. 136 (opin. by Salmon Chase).
56 Corwin, Edward S., The Establishment of Judicial Review, supra.
57 2 U. S. Stat. at Large 506, ch. 5 (1809).
58 1 U. S. Stat. at Large 73, 76-77 (1789).
59 Kent, James, Commentaries on American Law (N.Y., 1826), 1:352.
60 Jones, Douglas Lamar, The Caprice of Juries: The Enforcement of the Jeffersonian Embargo in Massachusetts, XXIV Amer. J. of Leg. History 307 (1980), at pp. 315-329.
61 Jones, Ibid., p. 320.
62 United States v. Covell, 3 Final Records 17 (1808), in Jones, Id., p. 320, n. 45.
63 Jones, Douglas Lamar, supra, at p. 318, fn. 37. Chase, in 1808, ostensibly was still smarting from his near-impeachment in 1804, which included an Article for failing to give the jury an instruction allowing it to find the law in Callendar's Case.
64 Kalven, H., & Keisel, H., The American Jury (U. Chicago Press 1966), p. 49. Chapter 7 of Thomas Green's Verdict According To Conscience is devoted to explication of the various means which Nineteenth Century British juries had of dispensing mercy on their own initiative, including conviction of a non-capital lesser included offense, or conviction of crime for which benefit of clergy was available. The latter course was a frequent resort in America, but interesting objections could arise when witnesses were questioned whether defendant could read and write, since benefit of clergy was only available to those who could.
65 Kassin & Wrightsman, The American Jury on Trial (1988), pp. 157-60.
67 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968).
68 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. 2d 929 (1976).
69 492 U.S. 302 (1989). Woodson v. North Carolina, 428 U.S. 280 (1976), was actually the first case espousing consideration of all factors, mitigating or aggravating.
70 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed. 2d 137 (1986).
71 Green, Thomas A., The Jury, Seditious Libel, and the Criminal Law, in Helmholz & Green, Juries, Libel, & Justice (Wm. Andrews Clark Lib., UCLA, 1984), pp. 63-67, & fn. 110.
72 This likelihood may be reflected in The Federalist Papers, No. 83 (Hamilton), noting the mayhew of his remarks seems to chronicle certain progressions already noted herein:
...I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one....Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries....Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.
My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules....Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the equity and the legal jurisdiction is peculiar to the English system.... But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity....
...Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect.
It is in this form: 'In civil actions between citizens of different States, every issue of fact arising in actions at common law may be tried by jury if the parties, or either of them, request it.'
.... if we advert to the observations already made respecting the courts that subsist in the several States of the Union,... .it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction are ascertained in conformity to the rules which prevail in England....In many of the other States the boundaries are less precise. In some of them, every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it....
Do you hear familiar echoes in Hamilton's passage? The last line was Pendleton's reply to Jefferson's juries in equity. But is the proposed solution mere revision or the product of faction?
Leonard levy notes:
"...There were...a couple of common-law indictments in the federal courts for the crime of seditious libel.... Ironically, it was a case originating as a Federal prosecution of Connecticut editors for seditious libels against President Jefferson that finally resulted in a ruling by a divided Supreme Court, in 1812, that there was no federal common law of crimes." [citing U.S. v. Hudson and Goodwin, 7 Cranch 32, at 34 (1812), and noting that Justices Story and Washington dissented without having their dissent noted on the record, according to W. W. Crosskey.
Levy, Leonard W., Judgments: Essays on American Constitutional History (Quadrangle Books, Chicago, 111., 1972), pp. 137, 155.
73 Green, Thomas A., Verdict According To Conscience, supra.
73a Thus, Benjamin Trumbull, in a Discourse to the Freemen of New Haven (April 12, 1773), p. 20, argued that a vicinage jury provided a more knowledgeable judgment. (Obviously, in an agrarian setting, a man's reputation for honesty would be a matter of common knowledge due to his course of dealings.)
74 Levy, Leonard W., Seasoned Judgments (Transaction Pub., 1995), p. 82, and its appended footnote 153, contain this passage:
"What the Framers of the seventh amendment meant by their explicit reference to the common law is not clear. We do not know whether they intended the common law of England, as Justice Story asserted in United States v. Wonson, 28 F. Cas. 745 (C.C.D. Mass. 1812) (No. 16,750), or the common law of the individual states in which cases were to be tried by federal courts. Whatever was meant, the reference to common law was intended to appease public opinion, which demanded a guarantee of jury trial in civil as well as criminal cases. See Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 653-730 (1973)."
If Thomas A. Green was not embracing precisely the same idea based solely on English scholarship, it would not here be noted that Lysander Spooner explained the connection between these ideas in An Essay on the Trial By Jury (Jewett & Co., Boston, 1852) in Section II:"The Ancient Common Law Courts Were Mere Courts of Conscience," from which I have excerpted the following:
[Sir James Fitzjames] Stephens adopts as correct the following quotations from Blackstone:
'''A'Hundred Court is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. The free suitors (jurors) are here also the judges, and the steward the register." 3 Stephens, 394. 3 Blackstone, 33.
That all these courts were mere courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it, is not only shown by the extracts already given, but is explicitly acknowledged in the following one,in which the modem 'courts of conscience' are compared with the ancient hundred and county courts, and the preference given to the latter, on the ground that the duties of the jurors..., and of the commissioners..., are the same, and that the consciences of a jury are a safer and purer tribunal than the consciences of individuals specially appointed, and holding permanent offices.
"The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties....How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived, without burdening the freeholders with too frequent and tedious attendances; ....And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex,.... For by statute 23 Geo. II, ch. 33, it is enacted:
1. That a special county court shall be held at least once in a month, in every hundred...of Middlesex, by the county clerk.
2. That twelve freeholders of that hundred, qualified to serve on juries, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year.
3. That in all causes not exceeding the value of forty shillings, the county clerk and twelve suitors (jurors) shall proceed in a summary way, examining the parties and witnesses on oath, without the formal processes anciently used; and shall make such order therein as they shall judge agreeable to conscience.' -3 Blackstone [Commentaries], 81-83.
What are these but courts of conscience? And yet Blackstone tells us they are a revival of the ancient hundred and county courts. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience?
An Essay on the Trial By Jury, in Let's Abolish Government (Arno Press, N.Y., 1972), a reprint of Lysander Spooner's works, at pp. 78-83. Spooner was a Massachusetts lawyer who lived from 1808-1887. He was the only man in history to have a postal service so successful that the United States was forced to lower the price of the postage stamp.
As difficult as it may be for Americans to imagine a court without a Judge who is instrumental in all proceedings, Spooner's courts seem to be the same being described by James Harrington in Oceana.
74a For example, prior to the appearance of special, statutory proceedings disc. in Specht v. Patterson, 386 U.S. 605 (1967) and in Alien v. Illinois, 478 U.S. 364 (1986)], the common law (per Blackstone) method of American civil commitment wasbywrit de lunatico incfuiriendo, or a 'lunacy inquisition.' The early response to these inquisitorial trappings was the special traverse du monstrans de droit, a habeas writ, and reliance on jury trial. Thus, some states still determine whether jury trial was available to assure such due process by whether 2 Edw. VI, ch. 8 (1548) was received as common-law, or re-enacted after 1776. See Annot., 33 A.L.R. 2d 1145. The mistake, of course, is in considering the common-law to be cut from the same cloth as procedural due process.
Alschuler, A.W., and Deiss, A.G., A Brief History of the Criminal Jury in the United States, 61 U. of Chicago L. Rev. 867 (1994).
Brody, David C., Sparf and Douqherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 Amer. Crim. L. Rev. 89-122 (Fall, 1995).
Chandler, Peleg W., American Criminal Trials (Books for Libraries Press, Freeport, N.Y., 1970-reprint of 1841 ed.).
Dilworth, Donald C., When Jurors Leave the Law Behind, 32 Trial 12-14 (May, 1996).
Kadish, M.R., & Kadish, S.H., Discretion To Disobey (Stanford Univ. Press, Stanford, Calif., 1973).
Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575 (1922).
Rehnguist, William H., Grand Inquests: The Historic Impeachments of Justice Samuel Chase" and President Andrew John son (Morrow 1992).
Reinbar, C., The Law of the Land (Simon & Schuster, 1980).
Scheflin, Alan W., Jury Nullification: The Right To Say No, 45 So. Cal. L. rev. 168-226 (1972).
Simon, Rita J. , ed. , Jury Nullification, Or Prejudice & Ignorance in the Marion Barry Trial, 20 J. Crim. Justice 261 (1966).
Simson, Gary J., Jury Nullification in the American System: A Skeptical View, 54 Tex. L. Rev. 488-525 (March, 1976).
Smith, S., and Lloyd, T., Trial of Samuel Chase (1805).
The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170 (1964).
Van Dyke, Jon, The Jury As A Political Institution, 2 Center Mag. 17-26 (March, 1970).
Van Dyke, Jon, & Scheflin, Alan, Jury Nullification: The Contours of A Controversy, 43 J. of Law & Contemp. Prob. 51 (Autumn, 1980)
Weiner, R.L., Habert, K., Shkodriani, G., Staebler, C., The Social Psychology of Jury Nullification;Predicting When Jurors Disobey the Law, 21 J. of Applied Psychol. 1379-1401 (1991).
The Federalist Papers, No. 83, 84.
Kunstler, Wm. M., Jury Nullification in Conscience Cases, 10 Va. J. Int'l. L. Rev. 1101 (Dec., 1969).
Creagan, M. Kristine, Jury Nullification; Assessing Recent Legislative Developments, 43 Case Western Resserve L. Rev. 1101 (1993)
Scheflin, Alan W. and Van Dyke, Jon M., Merciful Juries: The Resilience of Jury Nullification, 48 Wash. & Lee L. Rev. 165 (Winter, 1991).
"Jefferson declared that since the people could vote the executive and the members of the legislature out of office at regular intervals, these could be kept under control; but, since the members of the Supreme Court as well as inferior federal judges serve for life or during indefinite terms, they become arrogant and contemptuous of the people. He therefore concluded that 'the judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric...construing our constitution from a coordination of a general and special government to a general and supreme one alone.'"
Larson, Martin A., The Essence of Jefferson (pub. by Jos, J. Binns, Washington/N.Y., N.Y., 1977), pp. 126-127.
The sword of the law should never fall but on those whose guilt is so apparent as to be pronounced by their friends as well as foes.
Thomas Jefferson, Letter to Sarah Mease (March, 1801)
Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.
Thomas Jefferson, Letter to William Charles Jarvis (1820)
There is no happiness , . . .no liberty, ...no enjoyment of life, unless a man can say, when he rises in the morning, I shall be subject to the decision of no unwise judge today.
Daniel Webster, Speech in New York, March 10, 1831
Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like sheep and hounds.
John Adams (1774).
"James Madison, addressing the Virginia Convention," taken from Robertson, Debates of the Convention of Virginia, 1788 (2nd ed. 1805), pp. 377-382, reprinted at The Records of the Federal Convention of 1787 (Farrand ed., Yale Univ. Press, 1966) Vol. III, p. 332:
[Madison is the speaker here:]
"...It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our own independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer."
James Wilson: Address To A Meeting of the Citizens of Philadelphia on October 6, 1787, in Farrand ed., op. cit., at p. 101:
"...and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved."
Omitted from the bibliography is the fabulous American work on the subject by Lysander Spooner, An Essay on the Trial By Jury, pub. by John P. Jewett & Co., Boston (1852).
An attorney, Spooner, like many Levellers relies on Gilbert's tracts to argue his point in § 2, "The Ancient Common Law Juries were ...Courts of Conscience." He not only shows that American nullification is no spoonerism, but that there is continuity with earlier Jeffersonian Leveller readings.
THE PENNSYLVANIA GAZETTE, pub. by Ben Franklin, stated in 1737:
(as to jury nullification)
"If it is not law, it is better than law, it ought to be law, and will always be law whereever justice prevails."
"Yes, we did produce a near perfect Republic. But will they keep it, or will they, in the enjoyment of plenty, lose the memory of freedom? Material abundance without character is the surest way to destruction."
"...it would be a dangerous delusion were a confidence in the men of our choice, to silence our fears for the safety of our rights....Confidence is everywhere the parent of despotism; free government is founded in jealousy, not in confidence; it is jealousy which prescribes limited constitutions to bind down those whom we are obliged to trust with power."
"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. "
-Thomas Jefferson, Letter to the Abbe Arnoux (July 19, 1789)
"The trial of all crimes, except in case of impeachment shall be in the Superior Court of that State where the offence shall have been committed in such manner as the Congress shall by law direct except that the trial shall be by a jury. But when the crime shall not have been committed within any one of the United States the trial shall be at such place and in such manner as Congress shall by law direct, except that such trial shall also be by a jury."
-George Mason, in Farrand, Records of the Federal Convention, Vol. II, p. 432.
Massachusetts Declaration of Rights (1780), for which John Adams was a draftsman:
"XIII. In criminal prosecutions, the verification of facts, in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen."
"Trial by jury is another constitutional protection for the rights of the people. By assuring that the people themselves participate in the judicial process, governing authprities are prevented from unjustly prosecuting individuals. Trial by jury assumes that the people themselves are the best guardians of their own rights, and that they will release from custody any person unjustly charged. It also allows the people to make unjust laws of no effect with their power of jury nullification."
Thomas Jefferson, Website Dedicated to Jefferson's works, http://etext.Virginia.edu/etcbin/...."
"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign with themselves."
Thomas Jefferson to Mr. Jarvis, date unknown.
"The new Constitution has secured these [rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."
Thomas Jefferson (1789).
"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 had 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."
Theophilus Parsons (2 Elliot's Debates, 94).
"...Suffice it to say, that new and unheard of doctrines have been advanced, precedents established, and laws enacted, which go to sap the very foundations of public liberty-Hence we have seen, in the abandonment of constitutional truth and principle, constructive treason avowed, and the right of trial by jury of the vicinage exploded in our courts of justice, whilst our legislative acts have begotten new and arbitrary principles of alienism and sedition, with an extended and boundless system of common law, adopted by a foreign nation., and never yet incorporated into any American code...."
-John Beckley's Address to the People of the United States with an Epitome and Vindication of the Public Life and Character of Thomas Jefferson. Philadelphia: Printed by James Carey, 1800.
A signal indication that the Levellers may have been right in claiming that freemen had the right to the jury of peers described in Blackstone and originating in Magna Charta:
"...And where also, by the statute called the Great Charter of the Liberties of England, it is declared and enacted that no freeman may be taken or imprisoned, or be disseised of his freehold or liberties or his free customs, or be outlawed or exiled or in any manner destroyed, but bu the lawful judgment of his peers or by the law of the land; and in the eight-and-twentieth year of the reign of King Edward III it was declared and enacted by authority of parliament that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law: nevertheless, against the tenor of the said statutes and other...statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed;...." -Petition of Right (1628)
Pennsylvania Constitution of 1790, Article IX, § 7 (by Jas. Wilson)
"That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man;....In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases."
...The trials by jury in civil causes, it is asaid, varies so much in the several states, that no words could be found for the uniform establishment of it. If so, the federal legislation will not be able to establish it by any general laws. I confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons beforementioned. When I speak of the jury trial of the vicinage, or the trial of the fact in the neighborhood, I do not lay so much stress on the circumstances of our being tried by our neighbors: in this enlightened country men may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighbourhood is of great importance in other respects. Nothing can be more essential than the cross examining witnesses, and generally before the triers of the facts in question. The common people can establish facts with much more ease with oral than written evidence; when trials of facts are moved to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex porte, and but very seldom leads to the proper discovery of truth.
Ford, Paul Leicester, Pamphlets on the Constitution of the United States, 1787-1788 (DeCapo Press Reprint of 1888 text pub. in Brooklyn, N.Y.), at p. 315. Excerpt is from "Letters from the Federal Farmer to the Republican," printed in New York in 1787, and attributed to Richard Henry Lee.
Massachusetts Constitution of 1780, Article XIII:
XIII. IN criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of t/i& citizen.
XVIII. A FREQUENT recurrence to the fundamental principles of the constitution,.are absolutely necessary to preserve the advantages of liberty, and to maintain a free government.
(Please compare to Algernon Sidney quotation on frontispiece.)
Contemporaneously with Jefferson's drafting of the Declaration of Independence were these drafts of the Virginia Constitution, all completed before June 13, 1776, the Constitution itself being adopted on June 29, 1776. Because each draft opened with a list of grievances, most consider this a ready draft at hand for the Declaration:
"all facts in causes whether of Chancery Admiralty, Ecclesiastical or Common law shall be tried by jury upon evidence viva voce unless in those cases where the courts of Common law now permit the use of depositions or of witnesses out of the colony....all fines and amercements shall be fixed by juries....
All facts, in causes, whether of Chancery, Common, Ecclesiastical or Marine law shall be tried by a jury upon evidence given viva voce in open court; but where witnesses are out of the colony or unable to attend through sickness or other invincible necessity, their depositions may be submitted to the credit of the jury.
All Fines & Amercements shall be assessed and terms of imprisonment for Contempts or misdemeanors shall be fixed by the verdict of a jury.
The third draft was basically the same as the second re: juries.
Parliament urged King George III to begin enforcing 35 Henry VIII, cap. 2, which provided for trial in England of persons accused of treason or misprision thereof. Then Parliament enacted 12 Geo.,111, cap. 24, "an act for the better securing his Majesty's dockyards," allowing prosecution in any county in the realm of certain crimes. The First Continental Congress replied:
"Resolved, that the seizing or attempting to seize any person in America, in order to transport such person beyond the sea for trial of offences, committed within the body of a county in America, being against law, will justify, and ought to be met with resistance and reprisal."
Excerpts from John Locke's Two Treatises of Government
123. If Man in the State of Nature be so free,...why will he part with his Freedom? Why will he give up this Empire, and subject himself to the Dominion and Control of any other Power? To which 'tis obvious to Answer, that though in the state of Nature he hath such a right, yet the Enjoyment of it is very uncertain, and constantly exposed to the invasion of others....And 'tis not without reason, that he seeks out, and is willing to joyn in Society with others who are already united, or have a mind to unite for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property.
124. The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property. To which, in the state of Nature, there are many things wanting.
First, There wants, an establish'd, settled, known law, received and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all Controversies between them. For though the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biassed by their Interest....are not apt to allow of it as a Law binding to them in the application of it to their particular Cases.
125. Secondly, In the State of Nature there wants a known and indifferent Judge, with authority to determine all differences according to the established Law. For everyone in that State being both Judge and Executioner of the Law of Nature, Men being partial to themselves,....
126. Thirdly, in the state of Nature there often wants Power to back up the Sentence when right, and to give it due Execution.
127. Thus Mankind,...are quickly driven into Society.....The inconveniencies, that they are therein exposed to,...make them take Sanctuary under the establish'd Laws of Government, and therein seek the preservation of their Property. 'Tis this makes them so willingly give up every one his single power of punishing -to be exercised by such alone as shall be appointed to it amongst them; and by such Rules as the Community, or those authorisewd by 'them to that purpose, shall agree on. And in this we have the orig-,. inal right and rise of both the Legislative and Executive Power, as well as of the Governments and Societies .^themselves.
135. Though the Legislative,...be the Supream Power in every Commonwealth; yet. First, It is not, nor can possibly be absolutely Arbitrary over the Lives and Fortunes of the People....For no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own Life, or take away the Life or Property of another....Thus the Law of Nature stands as an Eternal Rule to all Men, Legislators as well as others. The Rules that they make... must,...be conformable to the Law of Nature, i.e., to the Will of God,...and the fundamental Law of NATURE being the preservation of Mankind, no Humane Sanction can be good, or valid against it.
LEGAL CASES DISCUSSING JURY'S ROLE & NULLIFICATION
Trial of Henry Carr, or Care, 7 How. St. Trials 1113-1130 (1680). Charge To Grand Jury, 156 U.S. 715 (1792).
Dean of St. Asaph's Case, 21 How. St. Trials 874-1046, 3 T.R. 428 (1783).
Fries Case, 9 F. Cas. 826 (No. 5,126)(C.C.D. Pa.), United States v. Fries, 3 U.S. (3 Dall.) 515 (1799).
Henfield's Case, Fed. Cas. No. 6,360 (C.C.D. Pa. 1793), 11 Fed. Cas. 1121.
Judge's Answer To the Lords, 22 How. St. Trials 296, 301 (1789).
License Cases, Peirce v. New Hampshire, 46 U.S. 504, 556-57 (1847)
Lilburne's Trial, 4 St. Trials 1381
Montee v. Commonwealth, 26 Ky. 132, 149 (1830).
Rex v. Shipley, 4 Douglas 73, 99 Eng. Rep. 774 (K.B. 1784).
Seven Bishop's Case, 12 St. Trials 183-434 (1688).
U.S. v. Hodges, Fed. Cas. No. 15,734 (C.C.D. Md. 1815), 26 Fed. Cas. 332.
U.S. v. Lynch, Fed. Cas. No. 15,648 (C.C.S.D. N.Y. 1843), 26 Fed. Cas. 1033.
U.S. v. Pollyon, Fed. cas. No. 16,081 (D.C.D. N.Y. 1812), 27 Fed. Cas. 609.
U.S. v. Smith & Ogden, Fed. Cas. No. 16,342a (C.C.D. N.Y. 1806).
U.S. v. Wilson, Fed. Cas. No. 16,730 (C.C.E.D. Pa. 1830), 28 Fed. Cas. 718.
Van Home v. Dorrance, 2 Dall. 304 (C.C.D. Pa. 1795).
Virginia v. Zimmerman, Fed. Cas. No. 16,968 (C.C.D.C. 1802), 28 Fed. Cas. 1227.
Fox's Libel Act, 32 Geo. III, ch. 60 (1792).
U.S. v. Battiste, 24 Fed. Cas. 1042 (No. 14,545)(C.C. Mass. 1835). (The remainder after Battiste, the turning point, are in alphabetical order:) Commonwealth v. Anthes, 71 Mass. (Gray) 185 (1885). Commonwealth v. Porter, 51 Mass. (10 Metcalf) 263, 285 (1845).
Cooley's Constitutional Limitations (1868), pp. 460-463.
Flint River Steamboat Co. v. Foster, 5 Ga. 194 (July, 1848).
Gray v. Mossman, 99 Atl. 1062, 1066 (Conn. 1917).
Jones v. Murray, 167 Mo. 25, 66 S.W. 981 (1902).
Kisten v. Hildebrand, 9 B. Monroe 72 (Ky. 1848).
Lawrence v. State, 2 Tex. Crim. 479, 483-84 (1877).
Nicholson v. State, 157 Pac. 1013, 1015 (Wyo. 1916).
Oakes v. State, 98 Miss. 80, 54 So. 79, 33 L.R.A. 207 (Miss. 1910)
People v. Seeley, 72 Pac. 834 (Calif. 1903).
Pierce v. State, 13 N.H. 536 (Strafford, July, 1843).
State v. Heacock, 76 N.W. 654 (Iowa 1898).
Sullivan v. Royer, 72 Calif. 248 (1887).
United States v. Morris, 26 Fed. Cas. 1323, 1331 (C.C.D. Mass.) (No. 15,815).
Steckler v. United States, 7 F.2d 59, 60 (2nd Cir. 1960).
U.S. v. Avery, 717 F.2d 1020 (6th Cir. 1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed. 2d 157 (1984).
U.S. v. Berriqan, 283 F. Supp. 336 (D. Md. 1968), 417 F.2d 1002, (4th Cir. 1969), cert. denied, 90 S.Ct. 907 (1970).
U.S. v. Burkhart, 501 F.2d 993, 997 (6th Cir. 1974).
U.S. v. Ciambrone, 601 F.2d 616 (2nd Cir. 1979).
U.S. v. Douqherty, 473 F.2d 1113 (D.C. Cir. 1972).
U.S. v. Fielding, 148 F. Supp. 46, 56 (D.D.C. 1957).
U.S. v. Gaudin, 115 S.Ct. 2310, 2314-18 (1995).
U.S. v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988).
U.S. v. Moylan, 417 F.2d 1002, 1006 (1969).
U.S. v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1991).
United States v. Thomas, 1997 U.S. App. LEXIS 11852 (2nd Cir.).
Using the debate excerpts found in Neil Cogan's The Complete Bill of Rightsa-1 canvassing both inclusion of a 'vicinage' provision and juries' use in civil cases, I here attempt to recapture the evolving Constitutional understanding of this 1780's debate. Please recall that some of the 13 original colonies did not fully participate in the conventions and organic acts leading to the Bill of Rights, perhaps enhancing the significance of these exchanges.
Many delegates still followed Jefferson's argument that if jury trial was not of the 'vicinage,' then people would be tried at greater distances from their homes and witnesses. The contrary argument did not directly challenge this reasoning, but instead used alternative logic. Still, it would plausibly be incorrect to say that opponents of the 'vicinage' provision used indirection to persuade others. Although there were a few in royal courts, 'spin doctors' were not as prominent during the Age of Reason.
Virginia Convention (June 27, 1788), proposed amendment:
EIGHTH, that in all capital and criminal prosecutions, a man hath the right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty,....
New York Convention (July 2, 1788):
Mr. TREDWELL....What better provisions have we made for mercy, when a man, for ignorantly passing a counterfeit continental note, or bill of credit, is liable to be dragged to a distant county, two or three hundred miles from home, deprived of the support and assistance of friends, to be tried by a strange jury, ignorant of his character, ignorant of the character of the witnesses, unable to contradict any false testimony brought against him by their own knowledge of facts, and with whom the prisoner being unacquainted, he must be deprived totally of the benefit of his challenge? -and besides all that, he may be exposed to lose his life, merely for want of property to carry his witnesses to such a distance;....
Anti-Federal Committee of Richmond (July 11, 1788):
North Carolina (July 28, 1788):
Mr. J. M'DOWALL: ....Suppose a crime is committed at the Mississippi; the man may be tried at Edenton. They ought to be tried by the people of the vicinage; for when the trial is at such an immense distance, the principal privilege attending the trial by jury is taken away; therefore the trial ought to be limited to a district or certain part of the state....
Gov. JOHNSTON [in reply]: ....He says that this clause is defective because the trial is not to be by a jury of the vicinage. Let us look at the state of Virginia.... In that country, juries are summoned every day from the by-standers. We may expect less partiality when the trial is by strangers;...! would rather be tried by disinterested men, who were not biased, than by men who were perhaps intimate friends of my opponent. Our mode is different from theirs; but whether theirs be better than ours or not, is not the question. It would be improper for our delegates to impose our mode upon them, or for theirs to impose their mode upon us. The trial will probably be, in each state, as it has been hitherto used in such state,....
[Excerpted from Cogan, pp. 422-424; Elliot, IV:145, 149-52.]
North Carolina (July 29, 1788):
Mr. SPENCER: ....It was observed that one may be taken to a great distance. One reason of the resistance to the British government was, because they required that we should be carried to...Great Britain, to be tried by juries of that country. But we insisted on being tried by juries of the vicinage, of our own country....
Mr. MACLAINE: ....The honorable gentlemen must know, that the doctrine of reservation of power not relinquished, clearly demonstrates that the judicial power of the states is not impaired...
Mr. SPENCER: ....I contend that there should be a bill of rights, ascertaining and securing the great rights of the states and people....
Mr. IREDELL: ....The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable are not alienated. They still remain with the b great body of the people....
Mr. BLOODWORTH: ....I cannot be satisfied with his defense of the omission, with respect to the trial by jury. He says that it would be impossible to fall on any satisfactory mode of regulating the trial by jury, because there are various customs relative to it in the different states. Is this a satisfactory cause for the omission? Why did it not provide that the trial by jury should be preserved in civil cases?....
Mr. IREDELL: ....I only rise to answer the question of the member from New Hanover [apparently, Mr. Bloodworth]....
We have been told, and I believe this was the real reason, why they could not concur in any general rule....That diversity which is to be found in civil controversies, does not exist in criminal cases....
[From: Cogan, 424-427; Elliot, IV:145, 149-52, 154-55, 162-164, 166-67, 170-71.]
Pennsylvania-Address and Reasons of Dissent of the Minority of the Pennsylvania Convention (December 12, 1787):
The first consideration... is the omission of a BILL OF RIGHTS, ascertaining and fundamentally establishing those unalienable and personal rights of men,....The principal of which are the rights of conscience,... jury trial in criminal and civil cases, by an impartial jury of the vicinage or county, with the common-law proceedings, for the safety of the accused in criminal prosecutions;....
...And the common course of proceeding against a ship for breach of revenue laws...will at the civil law be within the resort of a court, where no jury intervenes. Besides, the benefit of jury trial, in cases of a criminal nature, will be rendered of little value, by calling the accused to answer far from home; there being no provision that the trial be by a jury of the neighborhood or country. Thus an inhabitant of Pittsburgh, on a charge of crime committed on the banks of the Ohio, may be obliged to defend himself at the side of the Delaware, and so vice versa....
[From: Cogan, pp. 430-31; Storing, 111:157, 159-61.]
South Carolina (January 17, 1788):
Hon. RAWLINS LOWNDES: ....But even if trials by jury were allowed, could any person rest satisfied with a mode of trial which prevents the parties from being obliged to bring a cause for discussion before a jury of men chosen from the vicinage, in a manner conformable to the present administration of justice, ....?
Virginia (June 10, 1788)
...The trial by jury .... is secured in criminal cases, but supposed to be taken away in civil cases. It is not relinquished by the Constitution; it is only not provided for. Look at the interest of Congress to suppress it. Can it be in any manner advantageous for them to suppress it? In equitable cases, it ought not to prevail, nor with respect to admiralty causes; because there will be an undue leaning against those characters, of whose business courts of admiralty will have cognizance....
[from: Elliot, vol. 3, pp. 203-04]
Virginia (June 14, 1788) (continuation of the same debate)
Mr. [PATRICK] HENRY....By the ancient common law, the trial of all facts is decided by a jury of impartial men from the immediate vicinage. This paper speaks of different juries from the common law in criminal cases; and in civil controversies excludes trial by jury altogether....Under this extensive provision, they may proceed in a manner extremely dangerous to liberty: a person accused may be carried from one extremity of the state to another, and be tried, not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him....! need not tell you that, by the common law, a number of hundredors were required on a jury, and that afterwards it was sufficient if the jurors came from the same county....
[From: Elliot, vol. 3, pp. 446-47]
Virginia (June 20, 1788) (same debate)(note ref. to positive law)
Mr. MADISON.... It was objected, yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might happen that a trial would be impracticable in the country. Suppose a rebellion in a whole district; would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations from it in England; yet greater deviations have happened here, since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from; yet in some cases if it is necessary. It must be, therefore, left to the discretion of the legislature to modify it according to circumstances, This is a complete and satisfactory answer.
Mr. HENRY [in reply]:
Juries from the vicinage being not secured, this right is in reality sacrificed. All is gone. And why? Because a rebellion may arise. Resistance will come from certain countries, and juries will come from the same countries.
...Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off....As this government stands, I despise and abhor it. Gentlemen demand it, though it takes away the trial by jury in civil cases, and does worse than take it away in criminal cases.... Seeing that appeals are given, in matters of fact, to the Supreme Court, we are led to believe that you must carry your witnesses an immense distance to the seat of government, or decide appeals according to the Roman law....
Mr. PENDLETON....I think the honrable gentleman was mistaken yesterday in his reasoning on the propriety of a jury from the vicinage.
He supposed that a jury from the neighborhood is had from this view-that they should be acquainted with the personal character of the person accused. I thought it was with another view-that the jury should have some personal knowledge of the fact, and acquaintance with the witnesses, who will come from the neighborhood....
Mr. JOHN MARSHALL.... The exclusion of trial by jury, in this case, he [Patrick Henry] urged to prostrate our rights...It seems to me that the laws of the United States will generally secure trials by a jury of the vicinage, or in such manner as will be most safe and convenient for the people....
...He states a case, that a man may be carried from a federal to an anti-federal corner, (and vice versa) where men are ready to destroy him. Is this probable? Is it presumable that they will make a law to punish men who are of different opinions in politics from themselves?....
...The legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient, the federal legislature will do so too, as it is formed on the same principles.
...Will a man on the eastern shore be sent to be tried in Kentucky, or a man from Kentucky be brought to the eastern shore to have his trial? A government, by doing this, would destroy itself....
[From: Elliot, vol. 3, pp. 537, 540-42, 544-47, 557-62.]
Virginia (June 23, 1788)(continuation of same debate)
He [Mr. HENRY]... observed, that, as Congress had a right to organize the federal judiciary, they might or might not have recourse to a jury [ed.: for appellate courts which decide facts], as they pleased. He left it to the candor of the honorable gentlem n to say whether those persons who were at the expense of taking witnesses to Philadelphia, or wherever the federal judiciary may sit, could be certain whether they were to be heard before a jury or not....(Mr. Marshall) the other day observed, that he conceived the trial by jury better secured...than in the British government, or even in our bill of rights....in this instance, he is so materially mistaken that I cannot but observe, he is much in error....[HENRY has clerk read proposed Article 8.]
[MR. MARSHALL explains Mr. Henry must have misunderstood him-that he said "well secured," not "better secured," arid has clerk read the llth article, plausibly of Dec. of Rights.]
Mr. HENRY....Will gentlemen tell me the trial by jury of the vicinage where the party resides is preserved? True, sir, there is to be a trial by the jury in the state where the fact was committed; but, sir, this state, for instance, is so large that your juries may be collected five hundred miles from where the party resides-no neighbors who are acquainted with their characters, their good or bad conduct in life, to judge of the unfortunate man who may be thus exposed to the rigor of that government....
...A constitution, sir, ought to be, like a beacon, held up to the public eye, so as to be understood by every man. Some gentlemen have observed that the word jury implies a jury of the vicinage, there are so many inconsistencies in this, that, for my part, I cannot understand it. By the bill of rights of England, a subject has a right to a trial by his peers. What is meant by his peers? Those who reside near him, his neighbors, and who are well acquainted with his character and situation in life. Is this secured in the proposed plan before you? No, sir. As I have observed before, what is to become of the purchases of the Indians?-those unhappy nations...who, by being made drunk, have given a thousand, nay, I might say, ten thousand acres, for the trifling sum of sixpence!...If previous amendments are not obtained, the trial by jury is gone. British debtors will be ruined by being dragged to the federal court, and the liberty and happiness of our citizens gone, never again to be recovered.
Virginia (June 24, 1788)
[HENRY]...In the honorable member's proposal, jury trial, the press and religion, and other essential rights, are not to be given up. Other essential rights-what are they? The world will say that you intended to give them up. When you go into an enumeration of your rights, and stop that enumeration, the inevitable conclusion is, that what is omitted is intended to be surrendered.
In addition to these state convention debates, there were accounts in newspapers and pamphlets. The following are taken from Neil Cogan's The Complete Bill of Rights:a-l
[From: Cogan, op. cit., at p. 446:] The Federal Farmer, No. 3 (October 10, 1787):
...The trial by jury is secured only in those few criminal cases, to which the federal laws will extend... But even in these cases, the jury trial of the vicinage is not secured, particularly in the large states, a citizen may be tried for a crime committed in the state, and yet tried in some states 500 miles from the place where it was committed....
[From: Cogan, op. cit., at p. 450:] Cincinnatus, No. 1 (November 1, 1787):
Let us suppose then, that what has happened, may happen again: That a patriotic printer, like Peter Zenger, should incur the resentment of our new rulers, by publishing to the world, transactions which they wish to conceal.... Among the cases in which the court is to have appellate jurisdiction, are-controversies, to which the United States are a party:-In this appellate jurisdiction, the judges are to determine, both law and fact. That is, the court is both judge and jury. The attorney general then would have only to move a question of law in the court below, to ground an appeal to the supreme judicature, and the printer would be delivered up to the mercy of his judges, peter Zenger's case will teach us, what mercy he might expect. Thus, if the president, vice-president, or any other officer, or favorite of state, should be censured in print, he might effectually deprive the printer, or author, of his trial by jury, and subject him to something, that will probably very much resemble the Star Chamber of former times. The freedom of the press, the sacred palladium of public liberty, would be pulled down;-all useful knowledge on the conduct of government would be withheld from the people-the press would become subservient to the purposes of bad and arbitrary rulers, and imposition, not information, would be its object.
...Yet it was the jury only, that saved Zenger, it was a jury only, that saved Woodfall, it can only be a jury that will save any future printer from the fangs of power.
[Source: New York Journal, Kaminski S-Saladino, XIII:532-33]
A Son of Liberty (November 8, 1787):
Mr. GREENLEAF,...I have taken the liberty to request... the enumeration of a few of the curses which will be entailed on the people of America, by this preposterous and newfangled system, if they are ever so infatuated as to receive it.... 3d. A suppression of trial by jury of your peers, in all civil cases, and even in criminal cases, the loss of the trial in the vicinage, where the fact and the credibility of your witnesses are known, and where you can command their attendance without insupportable expence, or inconveniences.
[From: Cogan, op. cit., citing N.Y. Journal, in Kaminski S. Saladino, XIII:481.]
A Georgian (November 15, 1787)
...by introducing strange and new courts...our own courts will soon be annihilated,... countenancing the greatest injustice to be lawfully, nay constitutionally, committed by the rich against [the]...not so rich as they, by dragging their lawsuits ..., however small, if they choose, before the GRAND TRIBUNAL OF APPEAL to which the poor will be unable to follow with their evidence and witnesses, and on account of the great expenses. Therefore,...if you will, please join me in amending the third Article...thus:
"The trial of all civil and criminal causes, except in cases of impeachment (as provided for in Article I, section 3) shall be by jury, drawn by lot out of a box from among the freeholders of that state where Congress shall reside, and within five miles thereof; and, when a crime against the United States has been committed within no state, the Supreme Court of Congress shall have the trial of the same where Congress then resides."
[From: Cogan, op. cit., p. 453 citing Gazette of the State of Georgia, Kaminski & Saladino, vol. III: 241-42.]
Richard Henry Lee to Edmund Randolph (December 22, 1787)
...It is there stated that in criminal cases, the trial shall be by jury. But how? In the state What then becomes of the jury of the vicinage or at least from the county in the first instance, the states being from 50 to 700 miles in extent? This mode of trial in criminal cases may be greatly impaired, and in civil cases the inference is strong, that it may be altogether omitted as the constitution positively assumes it in criminal, and is silent about it in civil causes. Nay it is more strongly discountenanced imcivil cases by giving the supreme court in appeals, jurisdiction both as to law and fact.
Judge Blackstone...says, ['it] is the most transcendent privilege...that he cannot be affected either in his property, his liberty, his person, but by the unanimous consent of twelve of his neighbors and equals....
[R. H. Lee letter in Cogan, op. cit., p. 458, excerpting Virginia Gazette, Storing, V:114-15.]
A seldom referenced source coincides with James McHenry's explanation of the decision to leave jury rights optional. The following are from an essay by Edmund Randolph describing the Virginia Declaration of Rights:
"The tenth against general warrants was dictated by remembrance of the seizure of Wilkes' papers under a warrant from a Secretary of State.
"The eleventh preserving the trial by jury was not considered as a mandate to legislatures without the possibility of exception."
Randolph, Edmund, Essay on the Revolutionary History of Virginia," 44 Va. Mag. of History and Biography 43-47 (1936), publishing Randolph's essay written between 1809-1813.
The following books and pamphlets were found in Thomas Jefferson's Library:
Burlamaqui, J. J., Droit Politique (1408)
Hale, Sir Matthew, History of the Common Law (1799) (contains margin notes)
MacPherson, J., Rights of Great Britain
Communications & Resolutions of Virginia on the Alien S. Sedition Laws (Printed by Gen. Assembly, Va., 1799, at Richmond)
Lord Sommers' Rights of King and People (Philadelphia, Pa. 1773)
Gordon & Trenchard, Cato's Letters (4 vol.) (London, 1748).
Gordon & Trenchard, Independent Whig (London, 1753, in 4 vol.)
An Account of the Trial of Thomas Cooper of Northumberland, On A Charge of Libel Against the President of the United States (Printed by John Bioren, Phil., Pa., April, 1800). Cooper later became one of Jefferson's chief publicists.)
Remarkable Trials at the Old Bailey for nearly 50 years past (Wilkes, London, 1718)
The History of the Most Remarkable Trials in Great Britain & Ireland (1725)
Guide To English Juries By A Person of Quality (London, 1725)
Vaughan, Sir John, The Reports & Arguments of That Learned Judge, Sir John Vaughan, (London, 1706)
Viner's Abridgement (10 vol.)
M.S. Laws of Virginia (1639)
Virginia Miscellaneous Records, 1606-1692. The Bland Manuscripts purchased from the Executor of Richard Bland.
DID THE REAL WHIGS FIND ANTECEDENTS IN THE LEVELLERS?
In the colonies, the Real Whigs drank toasts to Cromwell. Many colonists were Puritan. This is the Resolve of the Irish House of Commons of July 26, 1641:
The subjects of this his Majesty's Kingdom are a free people, and to be governed only according to the common law of England, and statutes made and established in this Kingdom of Ireland, and according to the lawful customs used in the same.
The Houses of Parliament answered the King's arguments in 1642:
"...the two Houses of Parliament...were enabled by their own authority to provide for the repulsing of... imminent, and evident danger not by any new Law of their own making as hath been untruly suggested...but by the most ancient Law of this Kingdome, even that which is fundamentall and essential to the constitution and subsistence of it."
The Continental Congress reasoned, through the pen of James Duane;
[The rights of the colonies are derived from 3 sources:]
"1. From the Common Law of England and such ancient Statutes applicable to our local Circumstances, as existed at the time of our Colonization, which are fundamentals in our Constitution.
2. From our respective Charters confirming these rights.
3. From our several Codes of provincial Laws."
Then there is the wording of the Virginia Declaration of Rights:
Article II. That all power is vested in, and consequently derived from, the People; that Magistrates are their Trustees and Servants, and at all times amenable to them.
Article IX. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.
Article XI. That in Controversies respecting Property, and in Suits between Man and Man, the ancient Trial by Jury is preferable to any other, and ought to be held sacred.
In 1826, the year he died, Jefferson wrote this in a letter:
The Whig historians of England have always gone back to the Saxon period for the true principles of their constitution, while the Tories and Hume, their Coryphaeus, date it from the Norman Conquest, and hence conclude that the continual claim by the nation of the good old Saxon laws, and the struggle to recover them, were encroachments of the people on the crown, and not usurpations of the crown on the people.
Further, James Otis used the pseudonym, 'Hampden.' This may refer to Hampden's Case, 3 How. St. Tr. 1127-81 (1637), an early ruling on taxation without the consent of the governed. John Adams also referred to his Clarendon papers. Are these tacit allusions to the Cromwell Revolt or to Leveller ideas?
For example, the date of July 4th had similar significance. However, the Declaration was read on July 2, but not read publicly until July 7. On July 9, the statue of George III in New York City was melted down for bullets. However, John Hancock may have been, as President of the Congress, the only person to sign the Declaration on July 4th, -the Declaration then being sent to the state delegations.
But July 4, 1653, was the date of Cromwell's speech on the opening of the Barebones Parliament. Among the important reforms in its "Instrument of Government," was to reform Courts of Chancery. July 4, 1642, was likewise the date when Parliament appointed a joint committee of safety to prepare defense measures against the King.
The Virginia Declaration of Rights 'public trust' theory was a product of the revolt of 1641-42, as much as were the notions of a 'fighting faith' made popular by Tom Paine. Indeed, lineal descendants in Thomas Jefferson's brother's line continued to be named Lilburne.
The rich history of our rights is too easily lost. In its magnificent history of the Eighth Amendment in B.F.I, v. Keico Disposal, Inc., 492 U.S. 259, 109 S.Ct. 2909 (1989), the Court could not find references to the Eighth Amendment before 1689, even though the present wording appeared in Mason's Virginia Declaration in 1776. In actuality, the Levellers issued a prototype from the Tower of London in 1647, which contained many of the rights listed by the colonists. Nonetheless, a Statute of Westminster (1275) forbade extortionate bail, and another of 1444 made all but the most serious offenses bailable.
The American revolutionaries were highly steeped in Locke's theories. Only now are we discovering that Locke had already completed early drafts of his treatises on civil government during the House Rye Plot era, and was a friend of Sydney's. Did the colonists know of a legacy we did not?
Is it possible that our Bill of Rights can be interpreted as readily in light of Leveller ideas fuelling the Puritan Revolt of 1641 and after,-even possible that the same Puritans brought these ideas to America with them, -as in light of more staid and stolid English sources with sprinklings of Bentham, Burlamaqui, and Beccaria?
I tend to believe that the colonial efforts to push their common law reception dates back between 1607-1650 indicates a certain dissatisfaction with using prevalent English law to interpret American statutes and laws. This aspect of Norman Yoke rejection was not done by Jefferson alone.
Abstracted from: Zobel, Hiller B., Law Under Pressure; Boston, 1769-1771, reprinted in Billias, Geo. A., Law & Authority in Colonial America (Barre Pub., Barre, Massachusetts, 1965). Mr. Zobel was co-editor of The Legal Papers of John Adams, and his article goes behind the scenes in these cases, each of which Adams had some involvement with.
THE STATUTES WHICH LED TO QUAKER ADOPTION OF PLEAS FOR JURY_NULLIFICATION
During the Pension Parliament (1661-1679), following the Restoration of Charles II, a series of measures was passed known as the "Clarendon Code," although they were in principle opposed to the October, 1660 declaration on Ecclesiastical Affairs originally proposed by Clarendon, and defeated by a small majority. The "Clarendon Code" consisted of four statutes:
1) The Corporation Act of 1661 (13 Car. II, st. ii. ch. I), requiring all municipal officeholders to renounce the Covenant, take an oath of non-resistance, and to take the Anglican Sacrament. The purpose was to limit office to Royalist Anglicans, important because the corporations frequently elected Parliament.
2) The Act of Uniformity of 1662 (14 Car. II, ch. 4), which:
a) Revised the Book of Common Prayer, essentially to that of Elizabeth; b) Clergy were to declare "unfeigned assent and consent to all... contained" in the revised Book by St. Bartholomew's Feast (August 24, 1662), or lose their jobs; c) Any unordained priest administering a sacrament could be fined 100 pounds; d) all teachers and men in Holy Orders had to declare against the Covenant and to conform to the Anglican liturgy; e) Schoolmasters and tutors were to be licensed by the bishop of the diocese. (About 2000 clergy lost their jobs - one-fifth of the whole.)
3) The Conventicle Act of 1664 (16 Car. II, ch. 4)(made harsher in 1670), by which non-conforming clergy could not preach to unauthorized congregations. Penalties were imposed on persons older than 16 years attending a conventicle, -i.e., a meeting at which more than 5 persons not members of the household were present. Such meetings were to be 'dissolved, dissipated, and prevented.'
4) The Five Mile Act of 1665 (17 Car.II, ch. 2), forbade ejected clergy from coming within 5 miles of any city, borough, or corporate town where they had preached in a conventicle or had regular cure of souls. It forbade non-Anglican teachers.
Immediately after the Act of Uniformity passed in May, 1662, Charles II tried to suspend its operation, but was unable to. In 1663, he tried to grant general amnesties twice by suspending the penal laws, but Parliament legislated that only they could do this.
Source: Summarized from Tanner, J.R., English Constitutional Conflicts of the Seventeenth Century, 1603-1689 (Cambridge, 1961), pp. 227-229.
MORE ABOUT VICE ADMIRALTY COURTS
A Vice-Admiralty court consisted of a judge, a register, a marshal, and an advocate, -the latter also called either judge advocate or King's advocate, and sometimes being only a customs officer.1 While these courts were almost exclusively maritime before the Molasses Act of 1733, strict enforcement of customs regulations only began between 1756-60 due to trade by the colonists with the French West Indies during the French & Indian War made illicit by 30 Geo. III, ch. 9 (1756).2 The American Act of 1764 provided new duties, heavier penalties, gave jurisdiction to the Vice-Admiralty courts over all Acts of Trade, and created a superior court (located at Halifax, Nova Scotia) with colony-wide concurrent jurisdiction with the provincial Vice-Admiralty courts. Under Section 40 of the American Act, however, similar cases brought in England remained in the Court of the Exchequer, which had juries.3
By 1765, prosecutions for Stamp Act violations could be in any Vice-Admiralty court, or in the Halifax court, which the Stamp Act also granted appellate jurisdiction.4 This completed the conversion of these courts from admiralty to trade regulatory to revenue courts, with venue on land or sea.
Prior to this period, non-proprietary colonies had been bringing in molasses, Jamaican rum, etc., without enforcement of duties. The Hancocks were particularly attuned to what was common practice, it seems.
A Merchant's Society was formed in Boston in 1763,5 initially to oppose renewal of the Molasses Act, then the Stamp Act. The correspondence of many such colonials, together with the counsel of their London agents, including Edmund Montague (Virginia), Robert Charles (New York), Benjamin Franklin, Charles Garth (S.C.), Richard Jackson (Connecticut), and Jared Ingersoll (Connecticut), were thoroughly reviewed by Grenville prior to proposal of the Stamp Act.
In the end, however, Grenville faced several insurmountable obstacles. One involved pressure from the Board of Trade; second was England's debt.
The interest-bearing debt equalled 140,000,000 pounds. The debt of the colonies, arising from the French & Indian War, was 800,000 pounds, with annual civil administration of the colonies probably costing 40,000 pounds. The British Army in America averaged 300,000 pounds cost, but there was a desire to send hundreds more troops due to Indian raiding, and a desire to occupy the Mississippi River Valley. Oddly, while the seaboard objected to troops, the frontier settlers had not yet forgotten the scalping of Jane McCrea and other women. The Stamp Act was law by March, 1765. Rather than erect exchequer courts in the colonies, vice-admiralty courts would decide revenue cases, without juries (5 Geo. III, ch. 12, § lviii).
Spurred by Patrick Henry, The Virginia House of Burgesses issued the Virginia Resolves on May 30, 1765. A circular letter sent out from Boston on June 8, 1765, called for each colony to send delegates to the Stamp Act Congress which met in October, 1765, in New York. A "Declaration of Rights and Grievances" issued therefrom. By December, 1765, Grenville was replaced by a new ministry, including the Marquis of Rockingham and the Duke of Newcastle, causing the Whig William Pitt, who had led to the regulatory strictures of 1760, and was now stricken with gout, to take up the American cause.
In early 1766, Ben Franklin was examined in the House of Commons. Franklin spoke eloquently for hours. He inveighed that while even an army could not enforce the Stamp Act, it might cause a rebellion. Further, while Americans used to "indulge in the fashions and manufactures of Great Britain," now it was their pride "to wear their old clothes over again, till they can make new ones." The Stamp Act was repealed on March 17, 1766 [6 Geo. III, ch. II], but Parliament approved the Declaratory Act the same day. It affirmed that the King and Parliament, "had, hath, and of right ought to have, full power and authority to make...laws and statutes...to bind the colonies and people in America...in all cases whatsoever."
Due to colonial riots, protests, and destruction of stamps, no stamps were available for distribution when the Stamp Act went into effect on December 1, 1764. Temporarily, the courts and shipping ground to a standstill. Ships were allowed to sail only if they had papers (from every port of call) that stamps were unavailable. The Vice-Admiralty courts heard cases on these highly technical non-compliance grounds.
The Townshend Acts became law in June, 1767, with new duties on glass, lead, paper, tea, and paint. While most of of the Vice-Admiralty courts became salaried thereafter, this point was by now lost on the colonists. The Halifax court closed without having heard a single significant case. Although it might be argued that nothing not already British practice had occurred, a look at the prospects for reviving a formidable system without jury trial can be distilled:
1. In trade and revenue cases in the Vice-Admiralty courts,
an information could be used to prosecute, rather than a libel.
2. Most trade laws since the Navigation Acts of 1696 divided a forfeiture: one-third to the King, one-third to the Governor, and one-third to the informer or customs officer/collector. After the Molasses Act of 1733, the King's part went to the provincial treasury.
3. Under 3 Geo. III, ch. 22 (1763), officers of men of war could be sworn in and commissioned as customs officers, seize vessels violating trade laws, and receive a share of profits together with the crew. On June 1, 1763, the King in Council ordered the Navy to receive 1/2 and the Excheguer to receive 1/2. Of the Navy half, 1/4 went to the admiral, and three-fourths to the ship making the seizure.
4. Other than the Halifax court. Judge's incomes were unchanged by repeal of the Stamp Act, and still consisted of fees and percentages alone. Despite colonial newspaper reports to the contrary, the Townshend Acts (1767) changed this to a fixed salary of 600 pounds.
5. If jurisdiction was absent due to occurrence on land, etc., prior to the Stamp Act, a writ of prohibition from a common-law court would halt proceedings.
6. Under the Probable Cause Act, ship-owners bore the burden of proving their ship was not in violation, but, if the case was dismissed, a finding of probable cause still meant costs could be taxed against the owner, and customs agents had immunity.
FOOTNOTES AND BIBLIOGRAPHY
1 Gipson, Lawrence Henry, American Loyalist: Jared Ingersoll (Yale U. Press, New Haven, Conn., 1971), p. 80.
2 Billias, G.A., ed.. Law and Authority in Colonial America (Barre Pub., Barre, Mass., 1965), p. 50, in an article by Wroth, L. Kinvin, The Massachusetts Vice-Admiralty Court, reprinted from VI American Journal of Legal History 250-68 and 343-67 (July, Oct., 1962).
3 Ibid., p. 50, citing 4 Geo. III, ch. 15 (April 5, 1764), Statutes, XXVI, 33-52. The 1764 Act shifted the burden of proof to the shipowner to show no violation had occurred. Even if the ship was returned, the Judge could find probable cause for seizure, and no suit could be brought against customs agents for damages, but costs could be taxed against the owners. The new court received power to hear appeals from colonial/provincial Vice-Admiralty courts at Stamp Act, 5 Geo. III, ch. 12, § 58 (1765).
4 Ubbelohde, Carl, The Vice-Admiralty Courts and the American Revolution (U.N.C. Press, Chapel Hill, N.C., 1960). Most of the above information can be found in this book.
5 These same merchants later pamphleteered about the absence of juries in Vice-Admiralty courts in works such as: Observations on Several Acts of Parliament Passed in the 4th, 6th, and 7th Years of his Majesty's Reign...published by Merchants of Boston (Boston, 1769), pp. 12-13. Incidentally, James Otis' pseudonym in the Boston papers was "Hampden."
A Chronological History of Jury Nullification
Between 1660 and 1684, there were approximately 12,000 to 15,000 Quakers imprisoned in England. The Leveller era is deemed by most to have died with its leader, John Lilburne in 1657.
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