The Online Library of Liberty

A project of Liberty Fund, Inc.

• Poverty, Its Illegal Causes and Legal Cure.—part I. By Lysander Spooner.
• Recommendations.
• Act of Congress of 1793.: An Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters.
• Act of Congress of 1850.: An Act to Amend, and Supplementary to the Act, Entitled “an Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters,” Approved February 12, 1793.
• A Defence For Fugitive Slaves.
• Chapter I.: Unconstitutionality of the Acts of Congress of 1793 and 1850.
• Chapter II.: The Right of Resistance, and the Right to Have the Legality of That Resistance Judged of By a Jury.
• Chapter III.: Liability of United States Officers to Be Punished, Under the State Laws, For Executing the Acts of 1793 and 1850.
• Appendix A.: Neither the Constitution, Nor Either of the Acts of Congress of 1793 Or 1850, Requires the Surrender of Fugitive Slaves.
• Appendix B.: Authorities For the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix C.: Mansfield’s Argument Against the Right of the Jury to Judge of the Law In Criminal Cases.
• Appendix D.: Effect of Trial By Jury, In Nullifying Other Legislation Than the Fugitive Slave Laws.
• Unconstitutionality of Slavery. Parts First and Second.
• Recommendations.
• Also For Sale As Above.

B

Authorities for the Right of the Jury to judge of the Law in Criminal Cases.

The House of Representatives of the United States, by a vote of more than two to one, once affirmed the right of the jury to judge of the law, in criminal cases, to be an “indisputable right,”—and impeached one of the Justices of the Supreme Court of the United States for infringing it. The following is a copy of the caption, and one of the articles, of an impeachment, found by the House of Representatives, (in 1804), against Samuel Chase, one of the Judges of the Supreme Court.

ARTICLE I.

That, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason before the Circuit Court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust, viz.

1. In delivering an opinion, in writing, on the question of law, on the construction of which, the defence of the accused materially depended, tending to prejudice the minds of the jury against the case of the said John Fries, the prisoner, before counsel had been heard in his defence.

2. In restricting the counsel for the said Fries from recurring to such English authorities as they believed apposite; or from citing certain statutes of the United States, which they deemed illustrative of the positions, upon which they intended to rest the defence of their client.

3. In debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt, or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give:

In consequence of which irregular conduct of the said Samuel Chase, as dangerous to our liberties, as it is novel to our laws and usages, the said John Fries was deprived of the right, secured to him by the eighth article amendatory of the constitution, and was condemned to death without having been heard by counsel, in his defence, to the disgrace of the character of the American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, on which, ultimately, rest the liberty and safety of the American people.”

This charge was made by the House of Representatives, against that judge, by a vote of 83 yeas, to 34 nays. Of course, all those who voted for this charge, believed it to be an “indisputable right of the jury to hear argument, (on the law), and determine upon the question of law, as well as the question of fact, involved in the verdict,” and that an infringement of that right was both “dangerous to our liberties,” and “novel to our laws and usages,” a “manifest violation of law and justice,” an “open contempt of the rights of juries, on which, ultimately rest the liberty and safety of the American people.” Whether those who voted nay, had the same opinion on this point, or whether they voted nay on the ground that the fact of the infringement of the right of the jury was not sufficiently proved, does not appear.

The judge was tried by the Senate on this impeachment. On the trial it was proved that, although the judge, before the trial of Fries was commenced, gave notice to the counsel of Fries that he should lay some restrictions upon them, in addressing the jury on the law, and in citing ancient English authorities, which he considered inapplicable and improper, yet when those restrictions were objected to, he gave them notice that they might have full freedom in those particulars. It also appeared that in his charge to the jury, he said to them:

But notwithstanding his offer of entire freedom to the counsel of Fries in arguing the law, and citing authorities, as they should think proper, and notwithstanding his charge to the jury, distinctly instructing them that they were judges of the law as well as the fact, in that and in all criminal cases, yet, inasmuch as his conduct at the first had been somewhat arbitrary and improper, and such as it was supposed, might prejudice the minds of the jury against Fries, on the question of law involved in his defence, sixteen out of thirty-four Senators voted to convict the judge, on this charge of infringing the right of the jury to judge of the law. The sixteen Senators, who voted for his conviction, of course held that the jury had the right to judge of the law. And it is not only supposable, but highly probable, that of the eighteen Senators, who voted for his acquittal, some or all held the same opinion, but believed that the judge had not really infringed, or intentionally infringed, the right of the jury in that particular.

Thus we have the decided opinions of eighty-three, out of one hundred and seventeen members of the House of Representatives, and of sixteen out of thirty-four, Senators, of the United States, in favor of the doctrine that the jury have the right to judge of the law,—while there is no distinct evidence that either of the other thirty-four Representatives, or the other eighteen Senators, repudiated the doctrine.

The Supreme Court of the United States also, in a charge given to a jury, in a civil case, (John Jay, Chief Justice, doing it in behalf of the whole court), gave these instructions to them:—

On the 14th of July, 1798, Congress passed an act for punishing certain libels against the government of the United States. By this act it was declared that “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.”

The words “under the direction of the court,” may, to unprofessional readers, make the meaning of this provision equivocal. Such readers may think the word “direction,” equivalent to “dictation.” But if that meaning were given to it, the provision would be absurd,—would contradict itself,—for then the jury would not “have the right to determine the law and the fact,” as the statute provides that they shall have; but the law would be determined by the court, and the jury would be bound by their determination. The word “direction,” then must mean something that is consistent with the jury’s “determining the law and the fact,” instead of their being bound by any opinion of the court. And that meaning can only be one that is equivalent to advice, guidance, information, instruction, and assistance, which every body admits that a court have a right, and are bound, to render to a jury, still leaving them finally to determine the matter for themselves,—as we see was done by the Supreme Court in the case just cited.

The use of the words “as in other cases,” is an admission, on the part of Congress and the president, that “in other cases” “the jury have the right to determine the law and the fact.”

In addition to these opinions of Congress, the President, and of the Supreme Court of the United States, I add some other eminent authorities, on both sides of the question.

James Wilson, one of the signers of the Declaration of Independence, one of the most distinguished among the framers of the United States constitution, and afterwards one of the Judges of the Supreme Court of the United States, says,—

In the case of United States vs. Battiste, Story said it had been the opinion of “the whole of his professional life,” that the jury had not the right to judge of the law.

2 Sumner, 243.

In United States vs. Wilson, Justice Baldwin, of the Supreme Court of the United States, held that the jury had the right to judge of the law.

Baldwin’s C. C. R. 108.

Two years afterwards, in the case of United States vs. Shive, the same judge held that they had not the right to judge of a particular question of law put in issue in that case.

Baldwin’s Rep., 510.

In 1804, the Judges of the Supreme Court of New York, in a case of libel, were equally divided in opinion on the question,—Kent and Thompson being in favor of the right, and Lewis and Livingston against it.

The People vs. Croswell. 3 Johnson’s Cases, 337.

At the next session of the legislature of New York an act concerning libels “passed both houses unanimously” providing,

In Commonwealth vs. Knapp, (1830), the Supreme Court of Massachusetts said,—

In Commonwealth vs. Kneeland, (1838), the same court said,—

In the case of Townsend vs. the State, the Supreme Court of Indiana held that the jury had not the right to judge of the law.

2 Blackford, 151.

Two years afterwards, in the cases, Warren vs. the State, and Armstrong vs. the State, the same court held that the jury had the right to judge of the law.

4 Blackford, 150-249.

In the case of Pierce vs. the State, the Supreme Court of New Hampshire held that the jury had not this right.

13 N. H. Rep., 536.

In the case of the State vs. Snow, the Supreme Court of Maine, say,—

In the case of the State vs. Jones, the Supreme Court of Alabama say,—

In the case of Montgomery vs. Ohio, the Supreme Court of Ohio held that the jury had not the right to judge of the law.

11 Ohio Rep., 424.

In Montee vs. Commonwealth, the Supreme Court of Kentucky said,—

The constitution of Kentucky declares that “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.”

The constitution of Indiana has the same provision.

The constitution of Illinois has the same provision.

The constitution of Texas has the same provision.

The constitution of Ohio has the same provision.

The constitution of Tennessee provides that “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

The constitution of Michigan provides that “in all prosecutions or indictments for libels, * * the jury shall have the right to determine the law and the fact.”

The constitution of Missouri declares that “in all prosecutions for libels, the truth may be given in evidence, and the jury may determine the law and the facts under the direction of the court.”

The constitution of Arkansas provides that “in all indictments for libels, the jury shall have the right to determine the law and the facts.”

The constitution of Wisconsin says that “in all criminal prosecutions or indictments for libel, * * * the jury shall have the right to determine the law and the fact.”

The constitution of Mississippi declares that “in all prosecutions or indictments for libels, * * * the jury shall have the right to determine the law and the facts under the direction of the court.”

The constitution of Maine declares that “in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact.”

The new constitution of New York provides that “in all criminal prosecutions or indictments for libels, * * * the jury shall have the right to determine the law and the fact.”

The foregoing statutory and constitutional provisions for the right of the jury to judge of the law in cases of libel, had their origin in a false decision by Lord Mansfield, in 1784, in which he held that, in the trial of an indictment for libel, the jury had no right to take it upon themselves to judge whether the writing charged as libellous, was really so, or not,—but that they must leave that question wholly with the court.

3 Term Reports, 428 note.

This decision created much agitation in England, inasmuch as its effect was to give to the judiciary the power to restrain, within such limits as it pleased, the freedom of the press, in the discussion of the characters and conduct of public men. To remove any doubts excited by the decision, and to maintain the legitimate freedom of the press, Parliament soon after passed a special act, “that on the trial of an indictment or information for a libel, the jury may give a general verdict of guilty or not guilty, upon the whole matter put in issue, and shall not be required or directed by the court or judge to find the defendant guilty, merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information.”

Stat. 32 Geo. 3, c. 60.

The purport of this act is that the jury may judge both of the law and the fact.

The example of Parliament was followed extensively in this country, as the preceding citations show.

On the general question of the right of the jury to judge of the law, in criminal cases, there has been for centuries the same disagreement among judges in England as in this country. If this disagreement proves nothing else, it at least proves this, that the permanent judiciary are utterly unworthy to be intrusted with the decision of the law in criminal cases. If after centuries of controversy, they cannot determine a point so important to the liberties of a people as is the one whether the jury may rightfully judge of the law? that is, whether “the country” may judge of its own liberties? they are manifestly unfit to be entrusted with the decision of any other question involving the freedom of the people.