NOTE: The following is an excerpt of the article, The Rise and Fall of Jury Nullification, by James Ostrowski. Originally published in the Journal of Libertarian Studies, Volume 15, no. 2 (Spring 2001): 89–115, the full article can be found at Mises.org

What the Constitution meant by the right to trial by jury may easily be seen in the context of what trial by jury meant immediately before the Constitution was ratified. John Adams, our second president, and before that chief justice of Massachusetts, wrote in 1771:

Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life or limb or property or reputation without the concurrence of the voice of the people. . . . Whenever a general verdict is found, it assuredly determines both the fact and the law. It was never yet disputed or doubted that a general verdict, given under the direction of the court in point of law, was a legal determination of the issue.

Therefore, the jury have a power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience? . . . Should the melancholy case arise that the judges should give their opinions to the jury against . . . fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court?

Every man, of any feeling or conscience, will answer, “No.” It is not only his 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.

Theophilus Parsons, also a chief justice of Massachusetts, wrote in 1788:

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.

Thomas Jefferson, in his Notes on the State of Virginia, written between 1781 and 1782, described the division of labor between juries and judges:

These magistrates have jurisdiction both criminal and civil. If the question before them be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges.

But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertakes to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the state, and less afflicting to the loser, than one which makes part of a regular and uniform system. In truth, it is better to toss up cross and pile in a cause, than to refer it to a judge whose mind is warped by any motive whatever, in that particular case.

But the common sense of twelve honest men gives still a better chance of just decision, than the hazard of cross and pile.

Initially, the Constitution protected only the right to trial by jury in criminal cases. However, contrary to the popular image of universal approval, the document, when it was presented to the public in 1787, engendered great opposition from what we now call the AntiFederalists. In addition to their belief that life under the Articles of Confederation was not all that bad, the Anti-Federalists’ main objection was that the new Constitution lacked sufficient guarantees of individual rights. What would prevent this powerful new government from turning tyrannical, an event which Benjamin Franklin predicted on the floor of the Constitutional Convention?

A bitter struggle between the Federalists and Anti-Federalists ensued in various state conventions called to consider the new Constitution. The Constitution was barely ratified in several states; the vote in New York, for instance, was 30 to 27 in favor. Many other states insisted that the price of their ratification was that a Bill of Rights be added. The Bill of Rights became the price the Federalists had to pay to get the Constitution approved. Thus, the Bill of Rights is best understood as the practical expression of the philosophy of individual natural rights that dominated American political thought in the eighteenth century. The right to trial by jury owes much to the Anti-Federalists:

The Anti-Federalists insisted that the Constitution should explicitly recognize the traditional procedural rights: to be safe from general search and seizure, to be indicted by grand jury, to trial by jury, to confront witnesses, and to be protected against cruel and unusual punishments. The most important of these was the trial by jury, and one of the most widely uttered objections against the Constitution was that it did not provide for (and thus effectively abolished) trial by jury in civil cases.

After the Constitution was ratified, most judges and lawyers continued to hold that juries had the power to judge the law. In 1794, the first Chief Judge, John Jay, instructed a jury in a civil case as follows:

[O]n questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be recognized that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

On this, and on every other occasion, we have no doubt, you [the jury] will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts it is, on the other hand, presumable, that the courts are the best judge of the law. But still both objects are lawfully, within your power of decision.

Alexander Hamilton, one of the great lawyers of that era, argued:

[I]n the general system of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. . . . That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature . . . is entrusted with the power of deciding both law and fact.


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