Jury Nullification: The Right of Free Americans

I am only one, but I am one. I cannot do everything, but I can do something. What I can do, I should do and, with the help of God, I will do!

Everet Hale

The last refuge of freedom -- our great experiment-- has turned its back on the very thing that made this country great--our Constitution. Where the "rule of law" was once king, we see everywhere its desecration. What then can the people actually do about it? One word: Nullify.

"I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution."

Thomas Jefferson, 1789 letter to Thomas Paine

Jury nullification is an act by a jury through its verdict to make an official rule, especially a statute, void in the context of a particular case. In other words, it is the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her. This is done when the individuals serving on a jury, either by reason of their conscious or moral grounding believe that a law is immoral or that a sentence is unjust. As the 12^th Chief Justice of the U.S. Supreme Court Harlan F. Stone put it, "The law itself is on trial quite as much as the cause which is to be decided." Jury nullification is thus a means for the people to express opposition to an unconstitutional, immoral or unjust legislative enactment.

Since the time of the Star Chamber jury nullification has played a critical role in the legal system of Western civilization. In Richard Crompton's treatise on the jurisdiction of courts (L'authoritie et jurisdiction des courts de l majestie de la roygne. London, 1594.) we read:

"Note that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about the first year of Queen Mary, of high treason, was called into the Star Chamber in October, 1544 (sic), forasmuch as the matter was held to have been sufficiently proved against him; and eight of them were there fined in great sums, at least five hundred pounds each, and remanded back to prison to dwell there until further order were taken for their punishment. The other four were released, because they submitted and confessed that they had offended in not considering the truth of the matter."

Throckmorton's prominent share in Wyatt's rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury's verdict was purely political. From then onwards, the jury entered a new phase of its history, and for the next three centuries it exercised its power of veto. See Plucknett, A Concise History of The Common Law 133-34 (5th ed. 1956).

This power of the citizenry played an important role in shaping American history. In 1735, John Peter Zenger was arrested and charged for printing critical but true news stories about the Governor of New York Colony. "Truth is no defense," the court told the jury! Zenger's attorney, Andrew Hamilton, however, argued that the law itself was unjust and therefore illegal. Hearing this, the jury agreed and acquitted. As Zenger described in his account of the trial, A Brief Narrative of the Case and Trial of John Peter Zenger (1736):

"No nation, ancient or modern, ever lost the liberty of speaking freely, writing, or publishing their sentiments, but forthwith lost their liberty in general and became slaves."

Following the trial, the people of New York City awarded Hamilton the 'freedom of the city' and gave him a gold box inscribed with "For let the laws be never so much overborne by some one individual's power, let the spirit of freedom be never so intimidated, still sooner or later they assert themselves." Inside it reads, "Acquired not by money but by virtue. Thus let each receive what he has deserved of the republic." As a result, we have the freedom of the press.

Even William Penn, the founder of Pennsylvania found himself on trial for preaching Quaker religious doctrine. There, the courageous London jury refused to find him guilty, even though they were held without food, water, or toilet facilities for four days. The jurors were fined and imprisoned for refusing to convict William Penn until England's highest court acknowledged their right to reject both law and fact and to find a verdict according to conscience. It was this exercise of jury nullification which eventually led to the recognition of free speech, freedom of religion, and of peaceable assembly as individual rights.

The role of the jury as a last bastion of freedom held such an important role in our country that our Founding Fathers sought to forever protect it from future governmental attacks by including it in three different places within our Constitution and Bill of Rights. As Bancroft's History of the Constitution notes: "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." (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

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