Juries: A Double Edged Sword

The Jury Trial of William Penn

A while back someone asked me if I couldn't "document the tradition in America of
juries deciding the law as well as the fact. This would help legislators
and show what traditions we have under a government set-up by God."
Some years ago I wrote a study which outlined this tradition. Going
strictly off memory and without notes (I have the original paper filed
somewhere in a stack of boxes ) I'll attempt to recreate my outline,
fragmented though it may be, of this tradition. If anyone can correct or add
"flesh" to this outline--go ahead.

It seems that in England there was quite a long struggle over Jury Trials
and their independence. Kings naturally favored Star Chambers or other
systems which hampered Jury trials, while the people preferred Jury trials
and the right to decide whether the law should apply to a particular case
(the right to decide upon matters of law). William Penn, for example,
probably owes his life to the courage (they were sequestered by the King
and ordered to bring back a verdict of guilty) of the Jury when they,
against orders of the Court, refused to render a guilty verdict.

Fast Foward to the John Peter Zenger case. In 1735 Zenger was arrested and
put on trial for Libel--publishing information critical of the Governor of
New York. Libel, at the time was interpreted to mean anything, whether true
or not, critical of the King. Andrew Hamilton took the case for the
defense. Hamilton argued that the Jury could decide upon the merits of the
law and it took them all of about 15 minutes to acquit. The Zenger case is
much ballyhooed by the media for establishing once and for all the Freedom
of the Press. What is forgotten and ignored by the media is the role of the
Jury in this case and their right to decide matters of law as well as
fact. Aside from Freedom of the Press, why doesn't the Media also trumpet
the right of Juries to decide matters of law as well as fact?--after all
they owe their freedom of the Press to it.

Legal Theory. Man's law which violated natural law or God's law was null
and void. According to the Founders, two twin pillars upon which Freedom
in a well-ordered, civilized society, rested was that of law inherent in
the nature of things or Natural Law and law as given by God, Divine or
Revealed law. The purpose of law (whether Natural or Divine) is, as so
aptly stated by John Locke, to "preserve and enlarge freedom" because
"where there is no law there is no freedom." To the Founders, it was pretty
easy to determine the source of Divine law-that of God as revealed to his
Prophets, but somewhat more difficult to determine the source of Natural
Law. However, God so structured the world, that in the absence of Divine
Law, man was not left alone to determine how law should apply to protect
freedom. God provided man the ability to reason intellectually, and feel
intuitively the proper course to guide one's actions and in the enacting of
laws. To the Founders, Man in a state of nature, would by Natural Law which
was "discovered" by both reason and conscience, be justified in using force
for "defense against physical harm, against theft of the fruits of his
labor, and against enslavement by another." Likewise man is perfectly free
to acquire the world's bounty of resources to preserve and enhance his life
and is perfectly free to roam about at his will and pleasure in exercising
his right of liberty.

This concept of Natural Law and its derivative, Natural Rights, was
transmitted to the Founders through several sources: Classical Greek and
Roman political thinkers, philosophers and statesmen; English law and
tradition; Enlightenment Rationalism; and the Christian or Biblical
tradition. In utilizing these sources the Founders were everywhere
referring to Natural Law, and Natural Rights in their pamphlets,
newspapers, sermons, speeches,etc.

Because of man's propensity to sin,error, or ignorance man's ability to
reason what is right and wrong intellectually, morally and intuitively
becomes clouded. To prevent such clouding or obfuscation God reveals to his
Prophets commandments or laws to govern conduct. Revealed law, just as
Natural law, was given to man by God to enhance, protect and promote
freedom. Two examples where Divine law clearly promotes freedom are the
commandments, "Thou shalt not kill" or "Thou shalt not steal" plainly in
protection of Life and Property respectfully. God expects man to govern his
conduct by using these two standards of law, the Divine and the Natural.
Under these standards it is easy to see why the Founders could express
their attitude toward government as such: "The sole object and only
legitimate end of government is to protect the citizen in the enjoyment of
life, liberty and property, and when government assumes other functions it
is usurpation and oppression."

It was only natural for the Colonists therefore to proclaim the power
through the independence of juries, to decide whether man's laws were
founded upon God's laws. If they were not they could be considered null and
void. If a man made law conflicted with God's laws then God's laws was
considered supreme. Furthermore they realized that many times extenuating
circumstances could create a situation where conflicting laws could both
apply. For instance, one often hears the argument that if one's life (or
the life of a spouse, family member or neighbor) is in the balance man-made
laws take a second seat to the higher law--that of preserving life. If my
wife's life is in danger I'm certainly not going to pull off a freeway exit
and stop at a red light--especially at three in the morning--when there is
no traffic anyway. Hopefully there will be a jury who understands their
power that will be able to acquit me .

Continue onward to struggles between the Colonists and England just before
the Revolution. Under the period of "benign neglect," the colonists
developed their own legal systems and were used to trading, unfettered and
untaxed, with many other countries. So they would naturally bristle against
the imposition by England of any tax, (impost, tariff or other?) which
would hinder their trade intercourse, independence or profits. England
passed several Acts which imposed taxes of one sort or the other upon this
"free trade." When England attempted to enforce the law by arresting ship
captains for "smuggling" many times the colonial courts, with their jury
trials, would acquit--the colonists knowing full well that they had the
power to determine whether the law should be applied in a particular case
or not. England was becoming embarrassed because colonial courts were
acquitting more often than not. As a reaction, England started passing what
became known as the Admiralty Acts, which among other things, outlawed
Trial by Jury (and of course, the juries right to decide matters of law).
It has to considered that one of the key factors propelling the Colonists
to confrontation with England revolved around Juries and their right to
decide upon matters of law as well as fact.

The literature of the time is replete with statements from founding fathers
and others upon the subject of trial by Jury and Jury Rights. For instance,
John Adams stated in 1771 that "It is not only...[the juror's] right, but
his duty... to find the verdict according to his own best understanding,
judgment, and conscience, though in direct opposition to the direction of
the court." Many Juries of the day exercised the power, as well they
ought, to question both parties or their witnesses upon matters of both law
and fact.

After 1787--Checks and Balances. That great Constitutionalist J. Reuben
Clark had great insight when he said of the "separation of powers" and
"checks and balances" system of the Constitution, that it was a both a
"miracle" and a product of "genius" and that it was here "that the divine
inspiration came." Referring to this checks and balances system of the
Constitution, Thomas Jefferson remarked that the independence power of the
trial by jury was one of the checks built into the Constitution. He
further remarked in a letter written in 1789 that the trial by Jury is an
"anchor. . . by which a government can be held to the principles of its
constitution." In fact he referred to it as the "peoples greatest
privilege" by which the common ordinary people could hold in check a
corrupt government.

The Early Supreme Court. In the Supreme Court case, Georgia vs. Brailsford,
in 1794 remarked that the Jury "has the right to judge both the law as well
as the fact in controversy". Many other Court cases reaffirmed this power.
Grand Juries exercised independence (the independent power to investigate
or indict anyone or anything) early on in America's history. However the
Powers that be today do not recognize this power. In the early 1980's a
Grand Jury here in Utah brought an indictment against the Federal Reserve
System--for illegally manipulating the monetary system. The U.S. Attorney
quashed the indictment (as well as several other shady manipulations). The
Grand Jury knowing of their independent power attempted to bypass the U.S.
Attorney--all to no avail. The Foreman of that Grand Jury was Hans
Anderson--son of H. Verlan Anderson and author of several books, including
_Many Are Called But Few Are Chosen_ and _The Great and Abominable Church
of the Devil_.

Double Edged Sword. The Independence the Jury has (or could be) been
used for both good and evil. Many left wing radical groups, libertarians,
and even marxist-leninist terrorist organizations lobby for the power of
juries to decide upon matters of law as well as fact. It is well known (at
least among certain conservatives ) that many of these groups
attempt to use civil disobedience and jury independence as a tool of
"change." The "Civil Disobedience" of the Sixties, for example had much
less to do with Civil Rights than with enlarging and empowering the Federal
Government over the power and laws of individual States. For these reasons
many are leery with empowering Juries with the independence to decide
matters of law as well as fact. What it really boils down to however is the
moral fiber of society. A society which is fundamentally good and upholds
God's laws will be one blessed with freedom, peace and security. A Society,
on the other hand which, in the words of Rousas J. Rushdooney, is one of
"Moral Anarchy" will eventually result in the loss of freedom, peace and
security. In other words, moral anarchy really is "the seedbed of tyranny." The trial by jury then can be used for either good or ill. How it is used really depends on the moral fabric of society.