The Peoples Veto Power

Last night I happened to pick up an old issue of a small bi-monthly publication called COUNTERPOINT. The date on the issue was January-February 1992. While most of the paper was dedicated to addressing the controversy over the Oregon Land Conservation and Development Commission, (LCDC) and the Timber Industries nemesis, the Spotted Owl, I did find one article of general interest to all. Especially those who want our system of government, and the Constitution, to survive intact.

The lead for the article was specifically focused on the LCDC, but the article itself spoke of a greater issue by far, the issue of Trial by Jury, and the Jury's Right to Judge the Law, as well as the Facts in a case. I found it to be quite enlightening.

On the following pages is that article as it appeared.

The following article, entitled, The People's Veto Power is reprinted from the December 1991 issue of The Patriot Review. We don't know who the author is, but the credentials of those quoted are meritorious. (Counterpoint Editor)

"...if the judge's opinion in matters of law must rule the issue of fact submitted to the jury, the trial by jury would be useless." --- Thus spoke Lord Hale, an 18th century English Jurist in a dissenting opinion of Sparf & Hansen v. U.S.156 U.S. 51, at p. 119 (1895)

This writer is truly gratified to see that her original research from 1972, which enabled her to break the story on Jury Nullification, is finally beginning to pay off.

Because the current articles on this subject do specify many important proofs, for the newer followers of the subject, perhaps a brief restatement of some of the major evidence on a Jury's constitutional right to judge the law as well as the fact will be helpful.

"In ancient times, the right to trial by jury was called 'trial per pais' -that is, trial by the people, as distinguished from trial by government.."

Honorable L. Thaxton Hanson, Justice, Court of Appeals, State of California. (Retired)

The above quote was published in the Metropolitan News, a Los Angeles daily legal paper, October 25, 1973

Under the English system from which we derive our law, John Milton in his book, Defense of the people of England, records the following.

"And hence it is that when a malefactor is asked at his arraignment, 'How will you be tried?' he answers always, according to law and custom, 'By God and my country.' not by God and the King, or the King's Deputy (Judge)."

Trial by government, which we have today, in no way fulfills the Fifth Amendment guarantee to due process of law, which is defined by courts as a 'fair trial'.

Trial by government is inherently UNfair and was definitely not what the Founding Fathers had in mind when they used the phrase, "due process" or "fair" trial, which our history bears out.

Because of the denial to jurors of judging the law as well as the fact in all but three states, (Maryland, Georgia and Indiana) there is no such thing as a fair trial anywhere in these United States. All trials are by government.

It is and always has been recognized throughout the history of American Jurisprudence that the INTENT of the legislators is the law and not just the words on paper.

"The intent of the lawmaker constitutes the law."

Stewart v. Kahn, 11 wal (78 US) 493 at 504.

As to that 'intent' John Adams in is diary noted that:

"Whenever a general verdict is found, it assuredly determines BOTH the fact and the Law.

"...Is it not an absurdity to suppose that the law would oblige them (jurors) to find a verdict according to the direction of the court, against their own opinion, judgment and conscience?

"...It is not only his (jurors) right but his DUTY.

"...To find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."

John Adams - Life and works of John Adams Diary Notes - February 12, 1771 at pages 253-55.

John Adams, second President of the United States, was admitted to the bar in 1758 and well understood the law in this respect. (He drafted the Constitution.)

Add to the above the impeachment trial of Justice Chase of the U.S. Supreme Court, in 1805. The U.S. Government itself fought for the right of the jury to judge the laws and impeached J. Chase because he allegedly denied a defendant in a murder trial this right which this same government now denies us.

From the trial Transcript of said trial (made available through Da Capo Press - 1977 - NYC) Article I of the Articles of Impeachment charged that Justice Chase, a signer of the Declaration of Independence was impeached and brought to trial for:

"...debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact...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 are required to give..."

Article I, Section 2, CI.2 Chase trial transcript. (1805)

The U.S. Government argued that Justice Chase did this outrageous thing.

"...To the disgrace of the character of the American bench, in manifest violation of law and justice and in open contempt of the right of juries, on which ultimately, rest the liberty and safety of the American People."

Chase Transcript, supra, Article I, Section 2, CI.4

As further proof as to the 'intent' of our founding fathers, the original legislators of the Constitution, let us examine Section 3 of the hated Sedition Act passed by the U.S. Congress, July 14, 1798, (later repealed). It says:

"Section 3 And the jury who shall try the cause shall have the right to determine the law and the fact, under the direction of the court, AS IN OTHER CASES.

U.S. Statutes at Large - Vol. I, p. 596-97

The court may instruct, but the jurors are not bound by these instructions if they violate the jurors consciences.

All the above is further born out by a book on Constitutional Law, to which all judges turn for their interpretation of it.

"...A constitution is not to be made to mean one thing at one time, and another at some subsequent time, when circumstances may have so changed, as perhaps to make a different rule in the case seem desirable...giving to a written constitution, a construction not warranted by the intentions of its founders.

"...The meaning of a constitution is fixed when it is adopted and is not different at any subsequent time, when a court has occasion to pass upon it. The object of a construction is TO GIVE EFFECT TO THE INTENT of the people in adopting it. In the case of 'all' written law, it is the INTENT of the lawgiver, that is to be enforced.

Cooley's Constitutional Limitations, 6th Edition - 1890 at p. 68-9

"The Constitution is a written instrument. As such, its meaning does not alter. That which is meant when adopted, it means now.

Home Building & Loan Association v. Blaisdell, 290 U.S. 398 at p. 451 (1934)

There are many forces at work having the American people believe that the above is not so, but don't be conned. Written documents mean what they say and are not like shifting sand to fit whatever wind may be blowing at the time.

When the colonists vigorously exercised their right of nullification in cases involving Navigation Acts, setting free those who broke them because they were UNJUST laws, the Crown deprived them of jury trials in such cases and this was one of the major causes of the War for Independence. This is what Jefferson referred to in his Declaration of Independence when he wrote that King George III had deprived them of their basic rights by:

"...depriving us in many cases of benefits of trial by jury.

Declaration of Independence - July 4, 1776

It wasn't until 1895 in the Sparf Case that the Supreme Court Justices usurped power, without authority, and clung tenaciously to it ever since. (Read the dissenting opinion of Justices Grey and Shiras in the Sparf case reviving this usurpation of power.)

Coming up to 1969, the U.S. Appellate Judges in the Moylan case openly admitted to this power grab. They said:

"In criminal cases, juries remained the judges of BOTH the law and the fact for approximately fifty years after the Revolution. However, the judges in America, just as in England after the Revolution of 1688, gradually asserted themselves increasingly, through their instructions on law.

US v. Moylan, 417 F2d 1002 (1969)

The Moylan Court then goes on brazenly to say:

"We recognize as appellant urge the UNDISPUTED power of the jury to acquit, even if the verdict is contrary to the law as given by the judge and contrary to the evidence.

"This is a power that must exist as long as we adhere to the general verdict in criminal cases ... if the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances the actions of the accused, or for ANY reason which appeals to their logic OR PASSION, the jury HAS the power to acquit and courts MUST abide by that decision.

Moylan, supra, at p. 1006

Nevertheless, the Moylan Court upheld Moylan's conviction, thereby holding jurors need not be told of this right in order to exercise it. In fact, any lawyer who attempts to tell them otherwise would be sent to jail for contempt and a mis-trial would be declared. This is a Bar/Bench conspiracy against the people. It is a conspiracy because they see to it that young law students are educated AWAY from jury nullification and taught to view any informing of it to jurors as a crime.

"...Most of today's American judges in fact do everything they can to emasculate the jury until the only role for jurors is to...rubber-stamp...the law for the government.

John M. Van Dyke - The Jury as a Political Institution - The Center Magazine - March 1970, at p. 17

Some lawyers are still knowledgeable in this matter and will not remain silent. For this we owe them for fanning the flame of liberty so it won't die out. William R. Pabst, Att. Wrote, Jury Manual - A Guide for Prospective jurors, (1985) (on Jury Nullification) and was subsequently channeled off to a Federal Prison on questionable charges.

In an article in a Law Journal another attorney wrote:

"the juror do not realize they posses these powers and the judges continue to tell them they do not.

Russell C. Richardson, Atty. - Jury Nullification - Justice or Anarchy? - Case and Comment, March/April 1975 p. 36

And finally there was the Daugherty case (U.S. v. Dougherty, 473 F2d 1113 (1972)) upholding criminal convictions, while admitting jury nullification is a right of the jurors, but maintaining they should not be told of it. Judge Baselon the Chief Judge for the Washington DC Appellate Court is a dissenting Opinion, in a case well worth reading, said:

"Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence and if that trust is without foundation, we must re-examine a great deal more than just the Nullification Doctrine.

Dougherty, supra

Edwin J. Peterson, Chief Justice for the Oregon Supreme Court, in the Washington County Jury orientation video, makes the point that, "...the members of the jury are the judges and that they can make the decision.

And, there is always the presumption of innocence if there is reasonable doubt." (Ed)

Recently I did a Google search on the keywords, "Jury Nullification." The first page of results follow - all are worth reading: (note the ration of edu and org to other entities posting information on the subject.)(JD)

1. www.fija.org
2. www.greenmac.com
3. www.law.umkc.edu
4. www.personal.psu.edu
5. www.friesian.com
6. www.crfc.org
7. www.isil.org
8. www.fortliberty.org
9. www.november.org
10. www.erowid.org