JURY NULLIFICATION A CONSTITUTIONAL MANDATE
or The Law Is What The Jury Says It Is
by Godfrey LehmanWhen Juries Defy the Law!*
“You are the sole and exclusive judges of the facts in this case,” Judge David A. Garcia lectured the jury, “but I will tell you what the law is.” Garcia would constrain the jury even before it was selected. “You are required to take an oath to accept the law as I dictate it to you. Whether you feel it’s a bad law or a good law is not for you to consider. It is the law, and you must follow as I dictate.”
“You are not to determine what the law is,” Judge Samuel Starling threatened his jury. “The law is clear. You must decide only if the defendants violated the law as I have given it to you, and finding that they have, for they have admitted to that fact, you must find them guilty whether you like the law or not. You cannot determine what the law is!”
The similarity of these two jury charges belies their great separation in distance and, more significantly, in time—8,000 miles and 313 years. Garcia spoke to a San Francisco Municipal Court jury in 1983; Starling, as Lord Mayor of London, presided over and addressed a ten-member court in Old Bailey in 1670.
During a recess I approached Garcia. What did he mean by “dictate?” He reached for the prescribed judicial platitude: “Fact is for the jury, law for the judge.”
“What if the U.S. Congress should enact a law respecting an establishment of religion and prohibited the free exercise thereof? Must the jury take the law and convict?”
“That’s ridiculous. Congress can’t do that.”
“It’s just a ‘frinstance. Congress might.”
“It’s not for the jury to determine the law. They would have to convict.”
“Supposing conviction meant beheading?”
“They would have no choice. They are not to determine the law nor to consider what the punishment might be. That’s for the legislature and the courts.” Garica started to leave, annoyed that his authority should be challenged.
“You have just slaughtered William Penn — at 25!”
For indeed this was the very issue in controversy before Starling on September 3, 1670. Parliament, under duress from King Charles II, had passed the Conventicle Act establishing the Anglican Church as the only permissible form of worship. Penn’s insistence upon preaching Quaker doctrines was subversive, so the government, after repeated warnings, brought him and colleague William Mead to trial before what it presumed would be a compliant jury, composed of eleven Anglicans and one Puritan.
It is evident from the enrichment of our culture by the motion picture “The Philadelphia Story” and the hop tunes “Pennsylvania Polka” and “Pennsylvania 6-5000” that this jury was not compliant, even though Penn admitted during the trial that he had violated the Conventicle Act. Starling’s commands notwithstanding, Penn’s jury exercised enough independent thinking to decide there was a higher law, which they chose to call “God’s Law”, which gave “to every man the right to worship according to his own conscience.” The 12 “bumbleheads”, as Starling qualified them, had discovered that they were the only bulwark between a potential intellectual monolith and the unalienable right of the people to freedom of conscience. To yield on this point would mean to license infringement upon other liberties.
Plagued by conscience, those jurors endured forced imprisonment in their dreary jury room for two days and nights without food, water, light, heat, nor access to the most primitive forms of plumbing because they could not say “guilty.” On Monday, the 5th, now filth-ridden, tormented by flies and maggots from what had become a “badly fouled” latrine, several in “high fever” and on the point of death, the jurors, through unfaltering perseverance, cowed the venal court.
They acquitted Penn and Mead, freeing the former to organize his fabled TransAtlantic colonial enterprise a decade later.
But freedom wasn’t free: their jurors were “attainted”—burdensomely fined for “going against the evidence, the law, and defying the good advice of the court.” Eight paid (can we fault them?) and were released, but four refused on principle, and were consigned to Newgate Prison for an indefinite period, or until they would pay. Among the four was the Puritan, Edward Bushell, who had led the jury to victory. (6 Howell’s State Trials 986)
These stalwarts languished in this “hell above ground” for what turned out to be nine weeks, while they appealed to the Court of Common Pleas. On November 9, the Lord Chief Justice Sir John Vaughan delivered, by a 9-1 majority, “the clearest position I have ever taken both for law and reason,” recorded as “Bushell’s Case.” (124 Eng Reports 1006; Vaughan Reports 135)
The jury, by definition, can alone know the fact, Sir John said. That means that the court cannot direct the jury regarding the evidence, and “without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted.” He released the jurors on habeas corpus, the first such writ ever issued under these circumstances. The Conventicle Act was rendered a nullity. Vaughan had drawn upon one precedent to support his position. Five years earlier, in 1665, Lord Chief Justice Mathew Hale had written that “...it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they were the only competent judges.” (2 Hale P C 312) Earlier that year, Chief Justice Keyling (then sitting as a trial judge) had fined a “willful” jury for bringing in a verdict that displeased him. This, he alleged, had made “an act of parliament of the law of England of no effect.” The jurors are “accountable and punishable for it.” Keyling had pouted: “On criminal cases the court may fine a jury who will give a verdict contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might overthrow all the courts of justice...”
This is the same “reason” judges give today for dictating the law, except in Keyling’s time “judges have always punished such willful juries by fine and imprisonment and binding them to their good behavior.” (J.Keyling 3rd ED. pp 69-75, 1665)
In censuring Keyling, Hale found that “this fine was not legally set upon the jury, for they are judges of matters of fact, and although it was inserted in the fine that it was against the direction of the court in matters of law, this mended not the matter.” The fact might appear one way to the court, Hale continued, as might the credibility of witnesses, but these are of no importance if the evidence appeared otherwise to the jury for “it is the conscience of the jury that must pronounce the prisoner guilty or not guilty.” If the judge’s opinion were to rule, he concluded, “trial by jury would be useless.”
The Vaughan, not the Hale, decision exerted the more durable historical impact. Whichever, neither could have been written had it not been for the twenty-four anonyms who, conscientiously but unconsciously, had effectively invoked the most influential of all political forces, the ultimate non- violent safeguard of the people’s liberties — jury nullification. This is the power and inherent right of jurors to overrule any law they find offensive, and to go against the evidence however it may be seen by the courts, and ignore court directives of whatever nature. Judges Hale and Vaughan had merely acknowledged officially the principle the jurors acted upon by instinct.
Had the Penn jury not behaved “illegally” and “lawlessly” (epithets applied by judges of the 20th Century as well as 17th) Penn would almost undoubtedly have been imprisoned if not hung, a consequence which Garcia and, apparently, most judges in this country, would have endorsed. I will let you speculate about the impact on American history of taking “the law from me as I dictate it to you.”
The type of “instructions” given by Starling and Garcia are routinely presented as “official” in compendia known generally as “Jury Instruction Manuals.” They are in the libraries of every judge who reads from them when giving his “charge to the jury,” in ignorance or defiance of the fact that there is no constitutional basis authorizing judges to give “instructions” of any kind to jurors as sovereign citizens.
Eighteen years after Bushell’s Case, 1688, another English jury faced a different, but similar circumstance. A new king, James II, had issued a “Declaration of Indulgence for Liberty of Conscience” in which he expressed “...our royal will and pleasure, that henceforth the execution of ...all manner of penal laws in matters ecclesiastical for not coming to church...or other nonconformity to the religion established...be...suspended.” All subjects would be permitted unlimited “leave to meet and serve God after their own way and manner.” (Trial of the Seven Bishops, 4 James II 231). Then James directed all the ministers and bishops in the kingdom to read the Declaration from their pulpits on the succeeding several Sundays. There was no general rejoicing. Here was the exact reverse of the Conventicle Act, (thus was it not a great charter of liberty?) but not a single minister nor Bishop, except four, would obey. The four who did found themselves reading in sanctuaries emptied of the usual congregants. Seven of the most prominent Bishops, led by the Archbishop of Canterbury, wrote a “humble petition” to James pleading that he repeal his order.
James termed the petition “a standard of rebellion” and imprisoned them. He directed the Clerk of the Crown to select the jurors from among his servants and Roman Catholics. One juror was his brewerymaster, Michael Arnold, who knew that if he did not convict he would lose the half of his business that went to the Crown.
The jury was thus duly warned: the king’s directive was law, and since the bishops refused to obey, the jury had no alternative but to convict. They were locked in over night, but suffered more from lack of water than candle nor fire, for it was June 29-30. The court indulged the jury with washbowls to clean their faces, but they put the water to better use, and likewise fouled their room. At 10 a.m. on the second day, after 27 hours of imprisonment, the jurors fatally wounded absolute monarchy: they nullified, and acquitted all seven bishops. These twelve jurors, like those in the Penn case, were ignorant of the term “nullification”, yet they reasoned that to concede to the king the power to “proclaim” freedom of religion by edict was tantamount to acknowledging that the people had neither this nor any other right except insofar as the king willed it. Further, if it were “our royal pleasure” to grant a freedom today, it could be, by petulant whim, a later pleasure to remove it, or worse, to impose some other religion favored by the king. This would mean enslaving the people. Rights were more securely guaranteed in higher law than a mere statute.
This jury’s verdict sparked the “Glorious Revolution” which drove James from the throne before the end of that same year, and instituted the Constitutional Monarchy, which included the English Bill of Rights. His successors, nephew William and daughter Mary, were compelled to sign an agreement of limitations on monarchical power. Half a century later the colonial government in New York decreed that there would be but a single official newspaper, but printer John Peter Zenger decreed otherwise. Starting in 1733 he issued his New York Weekly Journal, irritating Governor Sir William Cosby with squibs, ballads and charges of corruption. The grand jury could not be induced by the government to indict, so the Colonial Council arrested Zenger on its own and filed an “information” with two counts of libel. He was brought before a trial jury in August, 1735. Zenger’s 79-year-old defense attorney, Andrew Hamilton, endured an arduous journey from Philadelphia to inform the jurors of the Bushell precedent, and invoke Vaughan’s decision “that the jury are...to find both the law and the fact.” (16 American State Trials 1@31), but 32-year old Judge James DeLancey reiterated Starling’s instructions: the jury must determine only whether Zenger had published the offending material. This was evident, as copies had been produced. Thus the jury was told that it “must convict” without reflecting on the justification of a law: “Truth is no defense” is esentially what was said.
But jury snubbed DeLancey to favor the contravening instructions of conscience, that the right to freedom of expression was unalienable. By nullifying, they enacted a policy not officially declared for fifty-six more years—in our First Amendment. Zenger could now write ballads, pierce with barbs, expose bombast untrammeled for as long as they did not pall. For him they never did, and after his early death his widow and son in turn continued to do the same until 1751 when the Weekly Journal expired on its own.
Then, in March of 1765, Jenny Slew came before the Inferior Court of Common Pleas in Massachusetts Colony to plead for her freedom from slavery. As a mulatto, having had a white mother, she believed she was entitled to liberty. The judges refused to confront the dilemma and dismissed her appeal arbitrarily. The following year she did a smarter thing: she filed a civil suit against her master, “Gentleman” John Whipple, Jr., of Ipswich, asking for a jury trial. The jury did not take long to decide. They directed Whipple to pay her four pounds in damages and all costs, implying thereby that Jenny was a free woman. (legal Papers of John Adams, Vol 2, ed. L. Kinvin Wroth & Hiller B. Zoel, Belknap Press, Cambridge, 1965)
Between that year and 1783 some 15 or 20 black slaves made appeals to Massachusetts civil juries. In all but one instance—an aging slave purchased 40 years before and likely to become a public charge—the jurors granted the appeals flying directly in the face of long established custom because they believed that “they in Africa had as much right to enslave us.” They directed the white masters to pay damages of varying amounts.
The final case was a criminal charge brought by the Commonwealth in 1783 against the white master, who had already been assessed damages by two civil juries. Massachusetts’ brand new state constitution contained the provision that” “All men are born free and equal, and have certain natural, essential and unalienable rights “among them being their “lives and liberties.”
Court and Commonwealth asked the jurors to answer directly the question: does this clause cover blacks as well as whites? The jurors delivered their “interpretation”. Yes, it does. They convicted white defendant Nathaniel Jennison by forcing him to pay additional damages to his (now ex-slave) Quock Walker, who was then immediately hired as a farm hand by friendly white neighbors John and Seth Caldwell.
The jury interpretation stood unquestioned, and with it slavery was ended in Massachusetts for all time. It was 80 years before the Emancipation Proclamation. All we know about the 200 or so jurors is that they were men and, of course, all white. Despite the courts, the jurors apparently obeyed the instructions of nature that “all men are equal and free. We are all born in the same manner, have our bones clothed with the same kind of flesh...had the same breath of life breathed into us...inhabit the same common Globe of earth...die in the same manner...” (Plea to jury by defense attorney Levi Lincoln, see Adams, op. cit.; also, The Sources of AntiSlavery Constitutionalism in America, 1760-1848, by William M Wiecek, Cornell Univ. Press, N.Y., 1978; and In the Matter of Color: Race and the American Legal Process in the Colonial Period, by A. Leon Higginbotham, Oxford U Press, N.Y., 1978)
When the Bill of Rights was adopted eight years later, Massachusetts was still the only state free of this “peculiar institution”. In other northern states there were either no recorded appeals of influence, slavery being a “minor” issue (as in New Hampshire and Rhode Island), or black people were prevented from appealing to juries (New York, Pennsylvania, New Jersey), or took their problems to court too rarely to have a lasting effect (Connecticut, where there were only three anti-slavery verdicts, decades apart). Powerful slaveholders in these states were able to stonewall abolitionist pressure to extend to blacks the right to appeal to juries, even though jury trials had otherwise been guaranteed since the foundings of the respective colonies. When the abolitionists finally won this right for blacks in the 1840’s, slavery ended in Pennsylvania, and the other northern states by 1848.
Even the Constitution of the United States is not secure from amendment by verdict of a trial jury. A series of Massachusetts juries in the 1850’s and early 1860’s voided Article IV, Sec. 2, Clause 3 (still extant in form only) which required that: “No person held to service or labour in one state... escaping into another shall...be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”
While Supreme Court Justice Joseph Story, a leading abolitionist, felt compelled to adhere to his oath of office to support the Constitution, no matter how odious this provision, and return to slavery any escaped slaves appealing to him for liberty, juries did not bind themselves to this yoke. They defied court directives, nullified this clause and several redundant fugitive slave laws by determining fugitive slaves to be free. They also refused to allow “slave catchers” to seize the fugitives, and in some cases convicted the slave catchers on criminal charges. Juries of white men.
Driven only by conscience, what these juries had done was to implement the universal truth that while the Constitution controls and restricts the government and the courts, it does not bind the people who are sovereign and thus may alter the Constitution when the public good requires, as determined by them. The people are superior to the Constitution. (The Journal of Richard Henry Dana, Jr., ed. Robert Lucid, Belknap Press, Cambridge, 1968; by Stanley W. Campbell, U of No. Carolina Press, Chapel Hill, 1968; American Slavers and the Federal Law, 1837-1862, by Warren S. Howard, Greenwood Press, Westport, Connecticut,1976)
How might history be different had slaves in the South not been denied access to juries? Could the Civil War have been avoided? Or, if it could not, might the South have “won” if Lincoln had not been able to make abolition of slavery an apparent “purpose” of the war in 1863?
These speculations may be justified by the looking at the results of trials by southern juries of blacks charged with murder or battery of whites, as well as of whites for the same charges against blacks. In a surprisingly large number of these, the blacks were acquitted or whites convicted. This may have occurred no more than one-third of the time, but it is not the proportion so much as the fact that there were that many, considering the atmosphere at the trials, and the white, all-male slaveholder juries. Often the jurors found that the attacking blacks had been aggravated beyond endurance, or the whites were cruelly abusive. Of course, some of the reasoning was other than humanitarian, for example, that black slaves were valuable property which must be protected.
One aging white “gentlewoman” in Virginia was even acquitted of the “crime” of conducting a school for black children, when there was a “law” prohibiting the teaching of blacks to read and write.(Judicial Cases Concerning American Slavery and the Negro, ed. by Helen Tunnicliff Catterall, Negro Univ. Press, N.Y. 1968; Justice Accused: Antislavery and the Judicial Process, by Robert M. Cover, Yale Univ. Press, N.Y. 1975.)
The principles put forth in the Grand and Glorious Fourth— the Fourth Amendment that is— were acknowledged by both English and American “bumblehead” nullifiers a full generation before December 15, 1791 (Bill of Rights Day), and so forcefully that we could have depended on the jury alone for the preservation of our rights. At least two colonial juries during the 1750’s acquitted defendants after condemning evidence had been seized by soldiers in warrantless “cellar-to-attic” searches of their homes. These juries presaged by some 130 years the oft-quoted U.S. Supreme Court decision of Boyd v. U S (116 U.S. 616, 1886) which overturned a conviction because the “criminal defendant...had been forced to produce the condemning evidence from his own papers.” Many English juries in the 1760’s were not content with acquittals alone. In civil appeals they would award substantial damages to victims whose homes had been invaded, and who were arrested, imprisoned and otherwise abused as a result of warrantless searches. Journeyman printer Huckle was awarded 300 pounds in 1763 (equivalent to about $50,000 today) for having been taken into custody and held for six hours. (Huckle v. Money 2 Wils LB 206, 95 Eng Rep. 768; Belson B. Lasson: History and Development of the Fourth Amendment to the U.S. Constitution, Da Capo Press, N.Y. 1970, pp. 44-45)
The arresting officer — his name was Money — squirmed. Three hundred pounds for six hours’ imprisonment! This was exorbitant. So Money went before the Court of King’s bench to ask for a new trial or at least a reduction in the penalty. He had treated Huckle more as a guest than prisoner, even providing beefsteaks and beer. Twenty pounds, he decided, should soothe the slight indignity.
But Lord Chief Justice Pratt was unmoved. The jury had acted and he could not, in good conscience, touch the verdict. The compensation was not to cover the manner of treatment nor the period of confinement. What the jury saw was the forced entry and seizure as violations of rights so basic there could be no palliative.
“The jury were the sole judges of the damages,” Pratt wrote. For the courts to interfere “...in these cases would be laying aside juries,” and”...if the jury had been confined by their oaths to consider the mere personal injury only, perhaps 20 pounds...would have been thought damages sufficient; but the small injury done to the plaintiff or the inconsiderableness of his station in life did not appear to the jury in that striking light...they saw a magistrate over all the king’s subjects, exercising arbitrary power,violating Magna Charta, and attempting to destroy the liberty of the kingdom.” He could not overturn the jury’s decision that “to enter a man’s house by virtue of a nameless warrant, in order to produce evidence, is worse than the Spanish inquisition.”
In upholding the award to Huckle, the court also sustained jury awards of 200 lbs. each to 15 colleagues. In the minds of the jurors, journeymen printers, even under a sovereign king, were not so inconsiderable nor of such low rank as to merit less protection of the laws than persons of higher social status—a concept not officially codified for another 105 years, in our 14th Amendment, 1868.
The home of an individual of higher station, John Wilkes, publisher of the anti-government The North Briton, was invaded on April 30, 1763, by soldiers “breaking his locks and seizing papers together,seized all manuscripts, opened four locks of the lower drawers of a bureau” took out papers and sealed them in sacks and generally ransacked the entire house. In addition, Wilkes himself was “carried away about noon.” The catalyst for this barbarism was his issue #45 which was so serious a challenge to the government’s autocracy as to provoke a total ban on publication.
Wilkes did not wait to be charged. He sued the government of the king, George III, for 5,000 pounds. The jury awarded him 1,000 pounds—a very considerable sum (c. $150,000 to $200,000 in U.S. funds today),to give Wilkes additional capital to continue publishing his exposes. (Wilkes v. Wood, Michaelmas Term 3 Geo III, 1763)
His civil trial started at 9 a.m. on December 6, 1763; the jury endured the unheated jury room, again without food, water, light nor access to plumbing, until 11:20 p.m., a total of 14 hours and twenty minutes. It was still 28 years and 9 days before this very principle was incorporated into our Fourth Amendment. The jury also laid down the decrees in the Fifth Amendment that no person can be compelled to be a witness against himself, and in both the Fifth and the Fourteenth—that property cannot be taken without due process of law.
Chief Justice Pratt was again called upon to review the jury’s decision, and he demonstrated consistency by observing that these jurors also saw that the case “touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen...” and that it was “an outrage to the constitution itself...Nothing can be more unjust in itself, than that the proof of a man’s guilt shall be extracted from his own house.” He selected a nautical metaphor to laud the jury for erecting “a great sea mark, by which our State pilots might avoid, for the future, those rocks upon which they now lay shipwrecked.”
Try to imagine what would have come out of the American constitutional convention, just 25 summers later, without precedents such as these to guide deliberations — if the delegates had had as examples jury after jury being led by “the law as I dictate it to you” and had not rebelled. Could the U.S. Supreme Court, even 130 years later, have reinforced in Boyd that which legally illiterate citizens had learned with consciences as their only tutors?
Whether the court could or could not, the historical fact is that citizen trial jurors proclaimed freedom of worship, assembly, and press, freedom from enslavement, freedom of expression, and freedom from unlawful search, seizure and forced confession well in advance of any move by any government to recognize and guarantee these freedoms as individual rights. The cases I’ve discussed so far are not all. Let us look now at Salem, Mass., in the late 17th Century when that city, among other New England towns, was rocked by the now-infamous witchcraft trials. We tend to think of these trials simply as a dark chapter in early American history, but if we dig deeper we learn they were another “great sea mark”erected by juries so the ship of Liberty would not be wrecked.
Commonmisunderstanding has it that these trials went on for years, and caused the slaughter of scores if not hundreds of persons. Actually, they were confined to less than four months in the summer of 1692, with a second series between January and May, 1693. They were all trials by jury, Massachusetts having recognized the wisdom of establishing 12-member civil and criminal panels back in 1623 and never faltering since. These juries convicted “only” 19 persons between June 2 and September 17, although in a notorious case as early as June 29 the jury acquitted. However, the rabid court would not accept this verdict and threatened the jurors, intimidating them into impeaching their verdict. This tragic reversal again demonstrates how essential it is that juries be independent panels, beyond the reach of outside domination. Had the acquittal held, the trials might have stopped then and there, but then we would have been deprived of the cultural enrichment from Arthur Miller’s The Crucible.
After the 19th conviction, on September 17, and an unexplained four-month hiatus, the courts paraded another 52 duly indicted “witches” before juries, starting January 3. Rebecca Jacobs was first, indicted for practicing “detestable arts called Witchcraft and Sorceries Wickedly, Mallitiously and Feloneously.” But the jury declared that “they do not find Rebekah (sic) Jacobs Guilty of the felony of Witchcraft...” The court let it pass, and tried again with Margaret Jacobs, alleging that her victims were “Tortured, Afflicted, Consumed, Wasted, Pined, and Tormented.” The jury thought otherwise. The court then brought forth Sarah Buckley and Mary Witheridge; then a man, Job Tookey, then Johanna Tyler and “Candy”, a “Negroe Servant”. In each case the jurors acquitted. Relentlessly the court persisted for a total of 52 trials into May, but without a single conviction (although there were four “confessions”) until the governor of the colony finally yielded. He halted the trials and released 100 others languishing in jails. Thus, by jury verdicts, the terror in Salem ended. One trial in Boston and two in Fairfield, Conn., also resulted in acquittals (one by a hung jury) to prevent the spread of madness to those cities.
Can we excuse 19 convictions? We cannot judge Salem by the standards of our unerrant 20th-century wisdom. We must keep in mind that our ancestors believed in the supernatural; that the nearly global Spanish Inquisition was still busy condemning hundreds of thousands after two centuries, and would burn scores of thousands more during the next century and a quarter—and that Exodus does contain the admonition: “Thou shalt not suffer a witch to live.” The Puritans worshipped the Old Testament.
Very importantly, the earlier juries were not representative of the entire community — only of the official church, while the 1693 juries were drawn from a broader community base. And the earlier trials also permitted the introduction of “spectral evidence”. Also, of course, we must expect the entire community was swept up by the hysteria when it first broke out, but regained its composure after a time. (The Salem Witchcraft Papers, verbatim transcripts of the Salem Witchcraft Outbreak of 1692, W P A Project, 1938; Charles W. Upham, Salem Witchcraft, F. Ungar Publishing Co., N.Y., 1959; Winfield S. Nevin, Witchcraft in Salem Village in 1692, Burt Franklin Publishing, N.Y.,1916; Paul Boyer and Stephen Nissembaum, Salem Possessed, Harvard Univ. Press, 1974; Narratives of the Witchcraft Cases, 1648-1706, ed. G. L. Burr, Barnes & Noble, N.Y. 1914.)
Had the trials been held before the likes of Cotton Mather or other single inquisitor, as in Spain and Portugal, we can speculate on how many convictions there would have been. Or the reverse. If Spain and Portugal had instituted the jury trial, would the Inquisition have lasted longer than the Salem trials, and would we, not knowing otherwise, now condemn these Iberian jurors for having convicted, say, even 50? Countless juries in England, particularly during the 1810’s, defied law and evidence to acquit hundreds of defendants of such crimes as forgery and petty theft when the evidence was incontrovertible, simply because conviction meant hanging. Time and again, the frustrated bankers appealed to Parliament to reduce the penalty, and the legislature eventually complied by eliminating forgery as a capital offense in 1819.
Similarly, over the succeeding century and a half, juries compelled the British government to remove one crime after another from the list of capital crimes until today, in that country, there is none. That is jury nullification in action, acquitting despite the weight of the condemning evidence, and despite court caveats to “take the law as I give it to you.” The autocratic Tsar of Russia was not even safe from the barbs of verdicts rendered by juries composed largely of illiterate peasants. The chief victim was the relatively benign Alexander II, who began his reign in 1855 by emancipating the serfs, without yielding his autocracy. (Tsar of Freedom: The Life and Reign of Alexander II, by Stephen Graham, Yale University Press, New Haven, 1935) Court trials in Russia had become so corrupt and degenerate particularly under his hated father, Nicholas I, that Alexander initiated a series of reforms. He considered it an act of generosity to bestow upon the people the right to trial by jury as part of the Judicial Reform Act of 1864. The Russian jury was adapted from western Europe, but with several differences: majority verdicts were permitted in criminal trials; juries could change the charges, and they could distinguish between “legal” and “moral” guilt. Of course there arose the perennial controversy about the power to judge both law and fact.
One way juries solved this was to bring in guilty verdicts on considerably reduced charges, so as to make the conviction meaningless. For example, a defendant was charged with stealing horses, but the jury was uncertain about the justification of the evidence, so they delivered a verdict of “Guilty—of stealing rabbits.” The lesser offense meant a lighter punishment. (Endurance and Endeavor—Russian History 1812-1980, by J.N. Westwood, Oxford University Press, 1981, p. 92)
But the Russian people refused to look upon trial by jury as a gift, nor did they believe they owed Alexander humble gratitude forevermore. They regarded trial by jury as an inherent right, and Russian juries took it upon themselves to represent both the people and the public conscience, and not necessarily the Tsar. There were a great many political trials resulting from widespread unrest against Tsarism generally, and the juries returned “not guilty” verdicts with a frequency so alarming to the government that as early as 1872 the Tsar realized he had been too beneficent. He feared reprisal for striking down the ininstitution entirely, so he created a special new department in the Senate to try “crimes against the state.” This was designed to give him greater control over political enemies. (Westwood, op cit. p. 90)
Replacing juries in these special courts would be panels of five judges and four elected “class representatives”, which included two titled persons, the local mayor, and, as a sop, a peasant “elder”. The government also attempted to hold these trials in secret.
This system did not always work well for the government because of the influence of trials by jury and the fact of publicity. In 1877 and again in January, 1878, courts of this type held two trials involving 50 and 193 defendants respectively for anti-government political activities. Most of those accused were acquitted, with only mild sentences for those convicted. (The Alexander Conspiracy, by David Footman, Library Press Book, La Salle, IL, 1968, pp. 90- 93)
But the government felt much too threatened to use the special court later that same year, thus permitting Vera Zasulich to go before a jury in the most celebrated trial not only of the regime but perhaps of the entire Romanov dynastic period. This 28-year old daughter of an army officer had shot and wounded the governor of St. Petersburg, General Trepov, for flogging a political prisoner in jail. Flogging had been outlawed, but nonetheless was common. The youthful prisoner had been demonstrating against the harshness of the reign.
The defense counsel admitted to the jurors that Zasulich had fired the shot, but defended her on the ground of her intense sympathy for others, her outrage, and that she had been kept under almost constant police surveillance herself. Many political prisoners of intellect and good education testified as defense witnesses.
The court instructed the jury that none of this was to be considered because their function was only to determine if Zasulich had fired the shot, and not on motivation. Since she had admitted, they would have to find her guilty, ameliorating circumstances not withstanding. The jury brought in a verdict of Not Guilty. (Westwood, pp.94-95; Footman, p. 93) on October 31. (Russia since 1801, by Edward Thaden, John Wiley & Sons, Inc., N.Y., 1971, p. 282). The government was helpless to prosecute further, although an attempt was made to re-arrest her. She went free, fled the country, and later became a heroine of the Revolution of 1917. Some observers even see her jury’s acquittal as the foundation of the Revolution itself.
But Alexander II by now had had his fill. If the people were going to be so ungrateful to him he would show them! He would repeal that portion of the Judicial Reform Act granting trial by jury. In May of 1879 the government issued a ukase transferring all trials of crimes against the state including “crimes of the press” to the special courts, with the more serious crimes coming before the Senate. There was no jury at all. (Maurice Baring, Mainsprings of Russia, 1914, pp. 282-5; Harold J. Berman, Justice in Russia, 1950, pp. 248-9; Footman, p. 93; Thaden, pp. 282 et seq.; Westwood, p. 95) But the Tsar still could not abolish the jury entirely, and it did continue for non-political trials until these were abolished by the 1917 Revolution, and the institution remains unrevived to this day.
March 1, 1881, Alexander was assassinated by a grenade, after many unsuccessful attempts. The six accused assassins, coming to trial on March 26th, demanded a trial by jury, wishing to appeal to “the social conscience.” However the special court feared this, and denied the appeal. All six were convicted and hung (Footman, pp. 289 et seq.)
Considering the character of the Russian juries during their short history, we might well speculate that the six could have been acquitted, thus possibly advancing the whole revolutionary movement by over three decades. Alexander II’s son and inadequate successor, Alexander III, had troubles enough without six confessed assassins of his father on the loose, their action endorsed officially by a panel of the people.
There is a separate lesson to be learned here. Trial by jury was considered a “privilege” granted by the Tsar, not an inherent right. Thus his statute presumably created it, and another statute could take it away. At about the same time as he created the Judicial Reform Act of 1864, Alexander II also granted the “privilege” of freedom of the press. In very short order, some 66 daily and 156 monthly newspapers appeared. Over the next decade or so these publications became so outspoken that the Tsar felt threatened by them, and he revoked the “privilege”. Thereafter the number of publications was reduced to six and nineteen, respectively. (19 Encyclopedia Britannica 700-1) Thus this “Tsar of Freedom” learned that despotism and freedom do not mix, just as his grandson, Nicolas II, learned in 1917 that absolute repression doesn’t work, either. James II had attempted similar beneficence a century earlier when he “granted” freedom of religion. But the lesson never sticks. Right now in 1980’s America we find ourselves appealing to our legislatures to “grant” various liberties, such as equal rights for women, for gays, for all minorities, etc. Have we been mesmerized into believing the government has the power to make such grants? By doing so we are permitting government to usurp authority it has never been given by the people, especially not by our Constitution.
By permitting government to dispense them, we are saying that the government can also deny these liberties when it wills. Have we forgotten the Declaration of Independence and all the guidance therein which proclaims that all rights are inherent, being “...endowed by our creator” (of whatever description), and are therefore “unalienable”? Are we not equating government with god when we permit it to decide the extent of our liberties?
Footnote * Godfrey Lehman is a long-time jury rights activist and scholar, who serves as historian for the Fully Informed Jury Association. Much of the data which appear on FIJA’s 1992 calender were supplied by Mr. Lehman. He has authored many articles and pamphlets on jury power, and was once honored by having a judge order all copies of one of his books purged from the materials given to jurors at a local courthouse.[The article was sent to me by Mark Boardman, Solicitor, London, England.]