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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 18



How seriously did our elected officials at that time (1805) take the Court’s assault on the jury’s right to judge the law?  Apparently, they took it very seriously.  In that very year, the United States House of Representatives impeached “supreme (sic) Court” Justice Samuel Chase.  One of the Articles of Impeachment accused Justice Chase, while he was yet trying cases as a Circuit Judge, of attempting “to wrest from the jury their indisputable right to hear argument, and determine upon the question of the law, as well as on the question of fact, involved in the verdict they are required to give” (Bold added).  (Report of the Trial of the Hon. Samuel Chase, App 3, Butler and Keating, 1805) 


Although the majority of the Senate voted in favor of the impeachment, they did not achieve the two-thirds majority necessary in cases of impeachment.  One could speculate, based on a rather recent impeachment case, that it was only the political motivation of a minority of Senators that saved Justice Chase from the fate of impeachment.  Though the right of the jury to judge the law as well as the facts has atrophied through disuse, neglect, and outright suppression by the Judiciary, it has not died.  U. S. “supreme (sic) Court” Justice Oliver Wendell Holmes had this to say:  “The jury has the power to bring a verdict in the teeth of both the law and facts.”  (Horning v. District of Columbia, 138, 1920).


Again in 1972, in the case of United States v. Daugherty, the United States Court of Appeals reaffirmed the principle of jury nullification when they granted a new trial with this being at least part of the reason for doing so.  Chief Judge Bazelon wrote the following:  “As the Court’s opinion clearly acknowledges, there can be no doubt that the jury has an unreviewable and unreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge . . . ”  (U.S. v. Daugherty).


More importantly, the Court apparently concedes, although in somewhat grudging terms, that the power of nullification is a “necessary counter to case-hardened judges and arbitrary prosecutors,” and that exercise of the power may, in at least some instances, “enhance, the over-all normative effect of the rule of law.”


Nullification is not a ‘defense’ recognized by law, but rather a mechanism that permits a jury, as community conscience, to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case.  (473, Federal Reporter, 2d series).


The power of the jury to judge the law as well as the fact has had a long history.  It was a practice in England, whence we draw our common law, for several hundred years before it was brought to this country.  It was practiced here both before and after our Constitution was ratified.  Many of our most cherished rights were secured through its use.  Though juries might sometimes err in their judgment of the law, or might even abuse their power outright, I believe the power of the jury to judge the law has been, overall, a great benefit in securing and maintaining our freedoms.


It seems that at present we severely misunderstand the role of the jury of our peers.  The jury’s true role is to deliver justice.  To that end, the jury’s first responsibility is to protect the accused.  It is the jury’s obligation not to aid the accused to evade justice, but to protect the accused from the sufferance of injustice.  The jury is to protect the accused from injustice inflicted by a fellow citizen, any corporate entity, and yes, from injustice inflicted by government itself.  The jury is not a tool to be used by government to enforce its will on the citizens.  The jury is an instrument to judge the actions and relationships between the individual and his fellow citizens, corporate entities, and government.  It is only when the jury is convinced in good conscience that the accused is the party committing an unlawful act (injustice) against one of these that they have an obligation to convict.


Once upon a time, in this land we were truly considered innocent until proven guilty — not considered guilty merely because another party accused us.  We held the philosophy that “it was better that a hundred guilty men go free than for an innocent man to suffer the injustice of a conviction.”  It is especially necessary to retain these two philosophies when the entity which brings the charge is government.  The author feels this way not because he is the least bit soft on crime, but rather because he sincerely fears the consequences of an unrestrained government.


If we are to have a “government, which derives its just powers from the consent of the governed,” it is entirely necessary the governed have the last word on the law.  If you had to place the responsibility for your life and liberty in someone’s hands, whom would you choose, government or a conscientious and independent jury of your fellow citizens?  A jury with the right to judge the law is a buffer between the people and the power of the state.  It is the people’s last peaceable safeguard of liberty; and it is a safeguard that ought not to be denied by any executive, legislature, or judge.  When any of these do so, it is an act of perfidy of the highest order.


“. . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor . . .”


The framers of this document had been dealing with a government that was not averse to using the tactics from which this clause seeks to protect us.  They knew firsthand what a great disadvantage the accused was at when denied these things.  It would be analogous to stepping into a boxing match having to wear a blindfold.  What chance would you have?  There does not seem to be the need for a long discussion on this clause.  Just to comment that our vigilance to see they continued to be honored in full will be well rewarded.


“. . . and to have the assistance of counsel for his defense.”


This phrase could have properly been included in the foregoing discussion and what was said there applies to it; but the word counsel contained herein is of some particular interest.  Although it may, counsel does not necessarily mean an attorney or member of the American Bar Association.  When this document was written, you did not have to be a member of the Bar to represent a client in court.  In fact, there was no Bar in this country then.  Someone who was not an attorney could readily represent you.  This was not unusual, for there were not that many attorneys around during this period.  Magistrates and judges were not even required to be an attorney.  How did we ever manage?  Could it be that, at that time, our laws and statutes were yet sensible and what you really needed to comprehend was not statutes, but the natural law?


Today, the courts frown on the use of counsel that is not an attorney; but if you find that it is in your best interest to use counsel that is not an attorney, remember that right is constitutionally protected in this amendment.  Why might you want counsel other than an attorney?  Ask a member of the Bar, who must play by the court’s rules, to whom he owes his highest obligation.  If you have an honest attorney, you will be informed that you, the client, are not at the top of his list.  His first obligation is to the court.  How confident of justice do

you feel now?




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