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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 15



There are those who claim our system of trial by jury can be traced back to the Germanic tribes.  From there, it was picked up by the Normans and taken to England.  Because there is debate in some circles on the accuracy of this early history, we will start in Jolly Olde England.  Thirteenth-century England was a much different place than the England of today.  Rule (law) was pretty much laid down by the toughest son-of-a-gun in the valley.  That would have been King John.  It is reported that King John’s attitude about the law was revealed when he said, “The law comes out of my mouth.”  The law was whatever he said it was at any given moment.  (That also seems to be the attitude of far too many of our modern Solons and Judges.)


At any rate, it would be a good guess that King John probably ran roughshod over all of his “loyal subjects,” including the noblemen; and it is also probable a considerable degree of mistrust and even fear existed among them.  To ameliorate the situation, the noblemen banded together for strength, and when they caught King John in a position of inferiority, they set upon him.  It is at this point that something truly remarkable happened, something that changed the course of history.  They did not kill King John; but why not?  Please allow me to speculate once again.  I believe they understood that the death of King John would not solve their long-term problem.  It boiled down to this:  if they killed the king, he would shortly be replaced by the next-toughest-son-of-a-gun in the valley, and who among them could be trusted to behave any better than the present king?


Their answer:  though John would remain king, he would no longer retain the ultimate authority of the law solely unto himself.  They, themselves, would become the final arbiters of the law.  So it was on June 15, 1215 A. D., at a site near London, at the place called Runnymede, that the noblemen did force King John to accept and sign the Magna Charta (Magna Carta).  It is of little dispute that our system of trial by jury can be traced back to this precious document.  The portion of the Magna Carta that is of most interest to us at present is Section 39, which reads as follows:


No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed: nor will we condemn him nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.  (Emphasis added).


That they fully intended to judge “the laws of the land” themselves, I have absolutely no doubt, for they had just challenged the king, the ultimate authority in the whole of England at the time.  The king probably entertained the idea that their current action alone was enough to put them to the sword, or that he could establish the death penalty for some minor new offense to thus ensnare them.  It’s highly doubtful the noblemen intended to let the king retain that kind of power.  After all, it was their very lives they had put at stake.  No, now the king had no direct power over them.  He could only enforce the law of the land if the noblemen granted him consent through the judgment of their peers.


Another landmark in English common law occurred with the trial of William Penn.  At the time, the Church of England was the only legally government-sanctioned church in the land.  William Penn was a Quaker, and he was indicted for holding an “unlawful” conventicle (religious service).  Penn freely acknowledged preaching on the street, so the facts in this case were not in dispute.  Even so, the jury, led by a man named Edward Bushell, acquitted Penn.  They judged the law to be unjust because “every man had a right to worship God according to his own conscience.”    (Penn and Mead’s Case, 6 Howell’s State Trials, 951.)


The English court was incensed.  For what we would today consider a truly courageous act in the defense of one of our most prized liberties, namely freedom of religion, Edward Bushell and all the other jurors who refused to convict Penn were held to attaint.  That is, they were convicted for what the English state considered rendering a false verdict.  They were fined and thrown into prison, where they were denied food and water until such time as they should render the appropriate verdict.  Note:  Our Founders were well aware of this case and its import.  It is generally agreed that Penn’s case, the very same William Penn who founded Pennsylvania, was the catalyst for the First Amendment, which secured our freedom of religion in the Constitution.  Mr. Bushell was a well-to-do gentleman and could well have afforded to pay his fine to be released, but he refused.  He appealed his conviction and, in due course, was brought to trial:


But Bushell was discharged from imprisonment, for reasons stated in the judgment delivered by Sir John Vaughan, Chief Justice of the Common Pleas, after a conference of all the judges of England, including Lord Hale, and with the concurrence of all except Chief Justice Kelyng.  In that great judgment, as reported by himself, Chief Justice Vaughan discussed separately the two parts of the return; first that the acquittal was “against full and manifest evidence;” and second, that it was. “against the direction of the court in matter of law.”  (Bold added).  (Mr. Justice Gray’s dissent in Sparf and Hansen v. United States). 


The following is what Sir John Vaughan wrote:


For if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the fact is, and so knowing the fact, shall then resolve what the law is, and order the jury penally to find accordingly, what either necessary or convenient use can be fancied of juries, or to continue trials by them at all?  (Emphasis added).


Please allow me to paraphrase Chief Justice Vaughan in the common vernacular:  if the jury is not permitted to judge of the law as well as the fact, you really do not have a trial by jury at all.  What you do have is a kangaroo court, and its usefulness is doubtful.


That Chief Justice Vaughan was an honest, honorable, and courageous gentleman in his rendering a verdict of acquittal for the Bushell jury is beyond question in my mind — for he undoubtedly displeased the Crown mightily and put himself at some personal risk.  Nonetheless, with these acts of great courage on the part of William Penn, the Bushell jury, and Chief Justice Vaughan, the right of the jury “to judge the law as well as the fact” was enshrined in English law.  And just as surely as our government and judges impede this palladium of our continued liberty today, so it was then by Crown and bench, as we shall shortly see.


Although we won’t go into it in any detail here, another case in English law very important in establishing the jury’s right to judge “the law as well as the fact” was the Trial of the Seven Bishops, to be found at 12 Howell’s State Trials, 183.  Suffice it to say, they were charged with seditious libel for petitioning the king to release them from their assigned obligation of distributing and reading, in their churches, the king’s declaration dispensing with the penal statutes concerning the exercise of religion.  This was a direct challenge to the king’s authority, and he didn’t take it well.  The particular arguments in the case, or even the verdict (the bishops were acquitted), are not nearly as important to this discussion as the precedent the judges set by their judgment and action.  The following paragraph contains the comments of Mr. Justice Gray on this case.  I ask you to consider it with utmost care, for it holds within it a keystone in our search for justice and sovereignty:


It thus clearly appears that upon that trial, one of the most important in English history, deeply affecting the liberties of the people, the four judges of the King’s Bench, while differing among themselves upon the question whether the petition of the bishops was a libel, concurred in submitting that question, as a question of law, to the decision of the jury, not as umpires between those judges who thought the paper was a libel and those judges who thought it was not, but as the tribunal vested by the law of England with the power and the right of ultimately determining, as between the Crown and the accused, all matters of law, as well as of fact, involved in the general issue of guilty or not guilty.  (Emphasis added).  (Sparf and Hansen v. United States, 125, 126).


Here again, when push came to shove, the jury’s right, and I dare say its obligation, to judge the law as well as the facts of the case was upheld.  Thus far, I have endeavored to establish a standing in English common law for the jury’s right to judge the law as well as the fact.  Further, I hope to establish that the right to judge the law did indeed journey across the Atlantic Ocean with our forefathers.  And still further, I hope to establish that this right did also become established in this country and was in effect here, both before and after the ratification of our Constitution.




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