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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 16



We come now to a landmark case in our own early history, the 1735 trial of John Peter Zenger.  Mr. Zenger was a pamphleteer, a newspaperman of his day.  He had published several harsh criticisms against New York State Governor William Cosby’s corrupt administration.  The law of New York at that time prohibited anyone from criticizing the Governor in this manner.  Whether it was libelous, or even whether it was true or false, was for the court to decide as a point of law.  Governor Cosby took exception to Mr. Zenger’s writings, and, apparently feeling the truth of the charges was of no consequence, had Mr. Zenger arrested, imprisoned, and tried for libel.


In this case, if the jury were to be instructed to judge only the facts, they would have had to decide merely whether Mr. Zenger did print and distribute the pamphlets.  Mr. Zenger never denied his actions.  Under such an instruction from the court, he would have clearly been found guilty.


In the same Province, in 1735, upon the trial of John Peter Zenger, for a seditious libel, his counsel, Andrew Hamilton, of Philadelphia, [Hamilton went on to attain the office of attorney general.] while admitting that the jury might, if they pleased, find the defendant guilty of printing and publishing, and leave it to the court to judge whether the words were libelous, said, without contradiction by the court:  ‘But I do likewise know they may do otherwise.  I know they have the right, beyond all dispute, to determine both the law and the fact; and where they do not doubt of the law, they ought to do so.’  (Emphasis added).  (17 Howell’s State Trials, 675, 706, 716, 722).  (Sparf and Hansen v. United States, 146). 


But the jury did consider the law for themselves.  They decided Mr. Zenger had not committed libel, and he was acquitted.  Many, if not most, legal scholars regard this as the first major victory for the freedom of the press in our new country.  Consequently, the jury’s decision in the Zenger trial holds a strong claim as progenitor to the pertinent sections of the First Amendment. 


This brings us to a short discussion of what some of our Founding Fathers had to say on the subject of the jury around the time our country was being established.  In Massachusetts, the leading authorities upon the question nearest the time of the Declaration of Independence and the adoption of the Constitution of the United States were John Adams and Theophilus Parsons, each of whom was appointed, with the general approval of the bar and the people, Chief Justice of the United States.  The one, appointed to that office by the revolutionary government in 1775, resigned it the next year, remaining in the Continental Congress to support the Declaration of Independence.  Afterwards, he was the first Vice President and the second President of the United States.  The other was a leading supporter of the Constitution of the United States in the convention of 1788, by which Massachusetts ratified the Constitution.  He was appointed Attorney General of the United States by President Adams in 1801, but he declined that office and became Chief Justice of Massachusetts in 1806.  John Adams, writing in 1771, said:


 . . . we often hear in conversation doctrines advanced for law which, if true, would render juries a mere ostentation and pageantry, and the court absolute judges of law and fact. . . . Whenever a general verdict is found, it assuredly determines both the fact and the law.  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 the 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?  (Emphasis added).  (John Adams’s Works, 253-255). 


Theophilus Parsons, in the Massachusetts Convention of 1788, answering the objection that the Constitution of the United States as submitted to the people for adoption contained no Bill of Rights, said:


The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms.  An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.  Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.  (Emphasis added).  (Elliot’s Debates, 94; Bancroft’s History of the Constitution, 267).  


It certainly seems to me that Theophilus Parsons, a man in line to become Attorney General of the United States, not only determined the jury to have the right to judge the law, but he apparently considered the jury the agency by which the people could ultimately hold a government accountable and in check.  He apparently thought this method to be superior to a Bill of Rights.  He was/is correct only to the extent that we are knowledgeable of its application and have the courage to exercise that application.  Another Founding Father, Alexander Hamilton, stated:


The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. (Emphasis added).  (Federalist Papers, No. 83). 


And our Founders’ words on the importance of the trial by jury were enforced by their actions.  It is worthy of note that twelve of the original thirteen colonies had ensconced the trial by jury in their own constitutions prior to the Constitutional Convention of 1789.  Further, Article III, Section 2 of the Constitution states, “The Trial of all Crimes, except in Cases of Impeachment, shall be by jury.”  Trial by jury is one of the exceedingly few rights actually enumerated in the Constitution; and it is the only enumerated right that I can find that appears both in the Constitution proper and also the Bill of Rights.


Now we will consider a couple of episodes that took place in the very early history of our young country, just shortly after the adoption of our Constitution.  In the case of the State of Georgia v. Brailsford, et al (1794), one of only a few cases tried by jury at the “supreme (sic) Court,” John Jay, our first Chief Justice of that Court, gave these instructions to the jury:


It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court, to decide.  But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.  On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court.  For, as on the one hand, it is presumed, that juries are the best judges of facts; it is on the other hand, presumable that the court are the best judges of law.  But still both subjects are lawfully, within your power of decision.  (Emphasis added).  (3 Dall.  1,4, IL. Ed. 483). 


An act of Congress on July 14, 1798, read:


And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence (sic), the truth of the matter contained in the publication charged as libel.  And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.  (Emphasis added).  (Fifth Congress.  Sess. II. Ch. 75. Sec. 3). 


Please do not miss the significance of those last four words, “as in other cases.”  Though I may stand alone, they clearly indicate to me the prevailing disposition and intent of the United States Congress at the time.  Said disposition was that the jury shall be able to judge the law as well as the fact in libel cases in the same manner that was already established and accepted in other cases.  Apparently, the only question that needed to be settled was whether the jury had the authority to determine both the law and the fact in the case of libel, which Congress determined they did.  They didn’t even question whether the jury could do so in other cases.  The question was already well-settled in their minds.  The jury did have the authority to determine questions of both fact and law.




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