Benjamin Franklin
Benjamin Franklin said jury nullification is “better than law, it ought to be law, and will always be law wherever justice prevails.”
Everyone knows that there is often a difference between “the law” and justice.
Elected officials make laws under the influence of lobbyists and their desire to enrich themselves and get reelected.
Anyone who thinks the typical congressman, senator, assemblyman, or local councilman is a beacon of wisdom and justice and cares first and foremost about the nation’s future is a lovable fool.
New Jersey Senator Scott ‘Scullin Joe’ Walker presents a bill to the Senate.
The proof is the sad shape of the state of this country, with its financial recklessness, its $34 trillion debt, its massive incarceration rates, and growing curtailment of liberties. The government’s self-righteous and petty bossism over the people. And the inversion from a government fearing the people to the people fearing the government.
The framers of the Constitution knew that any government left on its own will expand and serve itself (and those within it, for governments are mere associations of individuals) over the people’s interest.
The founders insisted that no citizen could lose his liberty without the permission of the people through the jury.
With the jury, politicians make laws; the people authorize their enforcement.
Legislation is the work of the majority. If, in addition to legislating, the majority has the power of enforcement, the majority has all power, and the minority is the subject of absolute government.
The founders’ writings establish the idea of involving the people in enforcing the law, with a minority of one out of 12 vetoing any law.
Jury box
John Jay, the first Chief Justice of the Supreme Court, said, “The jury has the right to judge both the law as well as the fact in controversy.”
Thomas Jefferson
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution,” said Thomas Jefferson.
What he meant is that 12 jurors taken at random must all agree that the law is in the right, or must incur the risk of nonviolent resistance, without any government power to punish those who oppose it. This is how trial by jury prevents the government from tyranny or zealots, woke or conservative, and keeps within the boundaries of the Constitution. Only laws that all, or almost all, the people agree to can be imposed on the people, because only by the unanimous consent of 12 of one’s neighbors and equals can the government punish anyone.
John Adams
John Adams said, “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.”
Alexander Hamilton
Alexander Hamilton, speaking about the founding fathers, of whom he was one, view of juries’ right to veto bad laws, said, “If they agree on nothing else, (they) concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
Juries safeguard liberty by voting ‘not guilty’, even if it hangs the jury. Each juror must vote their conscience. If even one juror views the law as wrong, they can vote not guilty. And this minority vote can hang the jury and prevent a person from being punished by the government.
That is the purpose of the jury, since the Magna Carta and before it. That no one should be punished for breaking an unjust law.
Ask the witches of Salem or escaping slaves…
Thomas Jefferson
According to Jefferson, the right to vote on a jury was more important than the right to vote in elections. As he noted: “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. The execution of the laws is more important than the making [of] them.”
Voting is based on majority rule.
The jury rejects “the majority rules” – that the larger number has a right to govern the smaller. Trial by jury gives the minority the ability to veto the majority on legislation they think is unjust.
The minority enacts no laws. That requires a majority. The minority merely refuses to consent to such laws as they disapprove by voting not guilty to laws they disapprove of and hang the jury.
Lysander Spooner
Lysander Spooner wrote:
“For more than six hundred years-that is, since Magna Carta, in 1215-there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused but it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”
The trial by jury was anciently called “trial per pais” or “trial by the country,” as opposed to a trial by the government.
Spooner wrote:
“The object of this trial ‘by the country,’ or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or ‘the country,’ judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government if they are not allowed to determine what those liberties are? “
The ancient Greeks and Romans held 12-member juries and required unanimity, viewing 12 as a representation of fairness, balance, collective wisdom and completeness, perfection, entirety, or cosmic order in traditions since antiquity.
The number of twelve jurors in jury trials is depicted by Aeschylus in the Eumenides. In the play, the goddess Athena brings about the innovation, when she summons 12 citizens to sit as jury.
Jesus chose 12 apostles. There are 12 months of the year; 12 hours on the clock. Twelve signs of the zodiac. The 12 Olympians are the principal gods of the Pantheon. They were preceded by 12 Titans. In ancient Rome, the twelve lictors carried fasces of twelve rods.
There were 12 tribes of Israel. The Chinese use a 12-year cycle for time-reckoning.
In English Common Law, the tradition of 12 jurors dates back to the 10th-century law code introduced by Aethelred the Unready.
Hale’s History of the Common Law, says, “Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or the tales, are sworn to try the same according to the evidence.”
In Normandy, before the conquest of England by the Normans, “The trial by jury of twelve men was the usual trial among the Normans, in most suits; especially in assizes, et juris utrum.”—Hale’s History of the Common Law.
“It cannot be denied that the practice of submitting causes to the decision of twelve men was universal among all the northern tribes (of Europe) from the very remotest antiquity.”—Crabbe’s History of the English Law
Having 12 jurors provides perspectives and minimizes potential biases or undue influences. By having 12 it is assumed these varied voices represent the county and are a trial by the people.
The laws of human nature do not permit the assumption that twelve men, taken by lot from the mass of the people, will all prove dishonest. Twelve random jurors’ unanimous decision is taken as representing the opinions of the whole country. And no statute, which cannot get the unanimous consent of twelve jurors taken at random from the whole community, can be enforced.
As Spooner wrote:
It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor—that is, with the government
The trial by jury, then, gives to any and every individual the liberty, at any time, to disregard or resist any law whatever of the government, if he be willing to submit to the decision of a jury, the questions, whether the law be intrinsically just and obligatory? and whether his conduct, in disregarding or resisting it, were right in itself?
And any law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it.
Other stories on the same topic I wrote:
2012: Jury Nullification Has Long History Of Righting Wrong Laws”. Niagara Falls Reporter
2015: Jury Nullification Has Long History of Righting Wrong Laws
2018: Understanding Jury Nullification and why it may save America from the Deep State, Police State
