JURY NULLIFICATION
A CONSTITUTIONAL MANDATE
or
The Law Is What The Jury Says It Is

by Godfrey Lehman

When 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 dir 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?

*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.