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Alexander Hamilton, Federalist Papers, No. 84

... [T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."




FULLY INFORMED JURY  SELECTED QUOTES

     John Adams, who became the second U.S. President,in 1771 said of the  juror:  "It is not only his right, but his duty ... to find the verdict  according to his own best understanding, judgment, and conscience, though in  direct opposition to the direction ofthe court." Quoted in Yale Law Journal, 74 (1964):173.

     Alexander Hamilton (1804): Jurors should acquit even against the judge's  instruction "... if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong."  Quoted in  Joseph Sax, Yale Review 57 (June 1968): 481-494.

   John Jay, first Chief Justice, U.S. Supreme Court, in Georgia v. Brailsford, 1794:4., said: "The jury has a right to judge both the law as well  as the fact in controversy."

     Samuel Chase, Supreme Court Justice and signer of the Declaration of  Independence, 1804:  "The jury has the right to determine both the law and the  facts."

     Thomas Jefferson, in a letter to Thomas Paine, 1789:  "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."

     Theophilus Parsons,"a leading supporter of the Constitution of the United States in the convention of 1788 by which Massachusetts ratified the Constitution, appointed by President Adams in 1801 Attorney General of the United States, but declining that office, and becoming Chief Justice of Massachusetts in 1806," 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."  2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, 267. Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895), Dissenting Opinion,: Gray, Shiras, JJ.,144.

     "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty, -- For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time." 2 Elliot's Debates, 94, Bancroft, History of the Constitution, 267, 1788.

     "...Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself.  To put it another way the jury is...the safety valve that must exist if this society is to be able to accommodate itself it its own internal stresses and strains... if the community is to sit in the jury box, its decision cannot be legally limited to a conscience-less application of fact to law."  William Kunstler, quoted in Franklin M. Nugent, Jury Power: Secret Weapon Against Bad Law, revised from Youth Connection, 1988.

     "Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."  Lord Denman, C.J. O'Connel v. R. (1884).

     "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 that 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."  Lysander Spooner, An Essay on the Trial by Jury, 1852, p.11.

     "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."  Article XV, section 5 of the Constitution of Maryland.

     "Because of this constitutional mandate, this instruction is given to criminal jurors in Maryland:     'Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case.  So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it.  And you may apply the law as you apprehend it to be in the case. '"     Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, 43, 83. (1980)

    "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.

     The jury has an "unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge..."  "The pages of history shine on instances of the jury's  exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge," specifically citing the Zenger case and the refusal of jurors to convict defendants under the fugitive slave law.U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132. (Nevertheless, the majority opinion held that jurors need not be told this. The dissenting judge, Chief Judge Bazelon, thought that they ought to be so told.)

     "The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury." ... "What impact will this deception have on jurors who felt coerced into their verdict by the judge's instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system." Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4,105- 106.

     "In a representative government ... there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws.  Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive, ... jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it... there is no more absurdity in giving a jury a  veto upon the laws than there is in giving a veto to each of these other tribunals." Lysander Spooner,  An Essay on the Trial by Jury, 1852.

     "In all criminal cases whatesoever, the jury shall have the right to determine the law and the facts."  Article 1, section 19 of the Indiana Constitution.  Upheld, Holliday v. State 257 N.E. 579 (1970).

    "It is useful to distinguish between the jury's right to decide questions of law and its power to do so.  The jury's power to decide the law in returning a general verdict is indisputable. The debate of the nineteenth century revolved around the question of whether the jury had a legal and moral right to decide questions of law."  Note (anon.), The Changing Role of the Jury in the Nineteenth Century,  Yale Law Journal, 74,170 (1964).

     "Underlying the conception of the jury as a bulwark against the unjust use of governmental power were the distrust of 'legal experts' and a faith in the ability of the common people.  Upon this faith rested the prevailing political philosophy of the constitution-framing era: that popular control over, and participation in, government should be maximized.  Thus John Adams stated that 'the common people...should have as complete a control, as decisive a negative, in every judgment of a court of judicature' as they have, through the legislature, in other decisions of government." Note (anon.) The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172,(1964).

     "Since natural law was thought to be accessible to the ordinary man, the theory invited each juror to inquire for himself whether a particular rule of law was consonant with principles of higher law. This view is reflected in John Adams' statement that it would be an 'absurdity' for jurors to be required to accept the judge's view of the law, 'against their own opinion, judgment, and conscience.'"  Note (anon.) The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172, (1964).

     "...[T]he right of the jury to decide questions of law was widely recognized in the colonies.  In 1771, John Adams stated unequivocally that a juror should ignore a judge's instruction on the law if it violates fundamental principles:
     'It is not only...[the juror's] right, but his duty, in that case, to find the verdict according to his own best        understanding, judgment, and conscience, though in direct opposition to the direction of the court.'
     There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted."  Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 173 (1964).

     "During the first third of the nineteenth century,...judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge's instructions.  A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law--its interpretation and its validity--to the jury."  Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal,74, 174,(1964).

     Alexander Hamilton, acting as defense counsel in a seditious libel case, said: "That in criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of law; who may compromise their conscience by lightly or rashly disregarding that advice, but may still more compromise their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong." 7 Hamilton's Works, (ed. 1886), 336-373.

     New York Supreme Court Justice Kent (1803): "The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review.  And the verdict of not guilty in a criminal case, is, in every respect, absolutely final.  The jury are not liable to punishment, nor the verdict to control.  No attaint lies, nor can a new trial be awarded.  The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages." 3 Johns Cas. 366-368. Quoted in Sparf and Hansen v. U.S., 156 U.S.51,148-149. (1894) (Gray, Shiras, JJ, dissenting).

     "Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution."...
     "The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them 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,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction', the jury 'have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.'" Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 154-155.(1894), From the dissent by Gray and Shiras.


    "It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty."  From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 172 (1894).

     " ... it is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are ... occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide quesions of law too unfavorably to the accused.
     "The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction... ."
     "... But a person accused of crime has a twofold protection, in the court and the jury, against being unlawfully convicted.  If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal.... But the court can never order the jury to convict; for no one can be found guilty, but by the judgment of his peers." From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894).

     "But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield--from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law--of amplifying their own juristiction and powers at the expense of those entrusted by the Constitution to other bodies.  And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy." From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894).

     "The jury has the power to bring a verdict in the teeth of both the law and facts." Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning v. District of Columbia, 138 (1920).

     "If juries were restricted to finding facts, cases with no disputed factual issues would be withheld from the jury.  But such cases are presented to the jury.  By its general verdict of innocence, the jury may free a person without its verdict being subject to challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish the jurors for it.  Although judges now generally tell jurors they must obey the judge's instructions on the law, the jurors may not be compelled to do so.  If the jury convicts, however, the defendant is entitled to a broad range of procedural protections to ensure that the jury was fair and honest.
     "When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced.  The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic."  Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, 43, No.4, 71.(1980).

     "Jury acquittals in the colonial, abolitionist, and post- bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control.  Widespread jury acquittals or hung juries during the Vietnam War might have had the same effect.  But the refusal of judges in trials of anitwar protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated antiwar goals and protected the government from the many repercussions that acquittals or hung juries would have brought." Steven E. Barkan, Jury Nullification in Political Trials, Social Problems, 31, No.1,38, October, 1983.

     "...The institution of trial by jury--especially in criminal cases--has its hold upon public favor chiefly for two reasons.  The individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came.  Moreover, since if they acquit their verdict is  final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.  A trial by any jury, ...preserves both these fundamental elements and a trial by a judge preserves neither...." Judge Learned Hand, U.S. ex rel McCann v. Adams, 126 F.2d 774, 775-76 (2nd Circuit, 1942).

     "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight.  But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just.  As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law.  Any law which makes many people uncomfortable is likely to attract the attention of the legislature.  The laws on narcotics and abortion come to mind--and there must be others.  The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values." D.C. Circuit Court Judge  D. Bazelon, "The Adversary Process--Who Needs It? 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971).
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