The Supremacy of Juries over Judges

The 17th century trial of William Penn set the precedent for one of the greatest checks of judicial power.

If you watched this year’s movie Fantastic Beasts and Where to Find Them, one scene probably stood out morbidly among the rest. At one point in the film, both protagonists are sentenced to death by what amounts to a one-man tribunal. Although probably not the main point of the film, this scene inspires an emotive response in defense of civil liberties. More specifically, it inspired at least in me a renewed vigor in defending the custom of trial by jury.

Unknown to many, in American jurisprudence the jury acts not only as master of the facts, but also master of the law. Meaning, of course, that they are free to acquit somebody that is technically guilty of breaching an unjust law. This recourse exists because in American law there is no method for the government to penalize or punish jurors for ignoring the instructions of the judge.

Edward Bushell’s Imprisonment

There is no method for the government to penalize jurors for ignoring the instructions of the judge.And so the train of thought jumps from a 21st-century movie to a 17th-century trial. Charles II, King of England, seemed to hold a grudge against the Penn family. If the fact that he tried William Penn the father for treason does not provide convincing evidence of this conclusion, perhaps the fact that he immediately brought charges against the son for running a Quaker assembly proves the point. In the trial of William Penn Jr. and William Mead, the jury acquitted both men contrary to the instructions of the judge. This was a milestone in establishing freedom because two Quakers were acquitted for assembling contrary to the king’s law as interpreted the king’s judge.

The jurors were led to acquit in this case by one Edward Bushell. This Edward Bushell was accordingly clapped in irons and held in a London jail by the two Sheriffs of London, Patient Ward, and Dannet Foorth.

The Writ of Habeas Corpus 

A Writ of Habeas Corpus was issued from the bench of Chief Justice Vaughan to enquire of the reason for Bushell’s imprisonment. To an audience not versed in the peculiar tongue of lawyers, perhaps an explanation of Habeas Corpus is necessary.

A writ is a court order. It is the judicial engine that empowers an executive to act on a certain matter. Habeas corpus is said to have arisen to facilitate the resolution of a rivalry between the English courts of common law and the English courts of equity. When a court was doubtful of the jurisdiction of another court to try a case, a writ of habeas corpus was issued. The writ required the rival court to provide proof that a defendant was being imprisoned for a legitimate reason; and even if there was a legitimate reason, that it was within the jurisdiction of the rival court to try the reason. If proof of this could not be provided, the imprisoned person was restored to liberty. It is perhaps one of the greatest checks on the power of a court to make light of the people’s rights, and it was passed intact to the United States.

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” – US Constitution, Article 1, section 9, clause 2

Therefore, the court that had imprisoned Edward Bushell for finding “contrary to the jury’s evidence” was forced to prove that they had the ability to do so.

Tyrannical Judges, ergo Free Juries

Chief Justice Vaughan decided in favor of Edward Bushell, and set him at his liberty, thereby establishing the independence of the jury from the recommendations of the judge. Two primary reasons were named.

1. Judge and jury can hear the same evidence and yet come to contrary conclusions concerning it, in which case the juror is bound by his oath to abide by his own interpretation of the evidence.

I would know whether any thing be more common, than for two men students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law? … Is any thing more frequent in the controversies of religion, than to press the same text for opposite tenets? How then comes it to pass that two persons may, not apprehend with reason and honesty, what a witness, or many, say, to prove in the understanding of one plainly one thing, but in the apprehension of the other, clearly the contrary thing? Must therefore one of these merit fine and imprisonment, because he doth that which he cannot otherwise do, preserving his oath and integrity? And this often is the case of the judge and jury.

2. Jurymen might have prior knowledge in some way connected with the case that does not breach the law governing his or her inclusion in a jury, and upon an oath to judge rightly in the case they are unable to ignore this evidence that the judge does not possess. Therefore, the judge cannot call their verdict into question.

These principles were maintained for at least another century. Writing in 1765, almost a hundred years after the Bushell trial, Sir William Blackstone, the great codifier of common law proceedings, had this to say on the freedom of juries:

But the practice, heretofore in use, of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional and illegal: and is treated as such by sir Thomas Smith, two hundred years ago; who accounted “such doings to be very violent, tyrannical, and contrary to the “liberty and custom of the realm of England.” For, as sir Matthew Hale well observes, it would be a most unhappy case for the judge himself, if the prisoner’s fate depended upon his directions: – unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless.

Writ of Attaint

The only exception that existed under English law to the absolute freedom of juries was a “writ of attaint.” This writ issued directly from the king and created another jury to try the verdict of the first. If the first verdict was found wanting, the penalty was as follows:

… The jurors should become infamous, should forfeit their goods and the profits of their lands, should themselves be imprisoned, and their wives and their children thrust out of doors, should have their houses razed, their trees extirpated, and their meadows plowed up, and the plaintiff should be restored what was lost by reason of the unjust verdict. (Black’s Law Dictionary, 3 ed.)

The second jury was made up generally of knights and relied on the nobility. It was an extraordinary jury, not fitting the title of petit or grand. Therefore, the U.S. Constitution grants no power to a federal body to call such a jury. Furthermore, we have on the authority of Tucker that after the break with Britain “the writ of attaint seems perfectly obsolete in Virginia.” And unless it is found continued in one of the other colonies, it was not a portion of the common law that survived the migration to America.

Therefore, although technically the jury is master of the facts alone, in American jurisprudence they sit as de facto masters of both fact and law because there exists no method of tying the jury to the state’s opinion of a matter. This is no doubt a great safeguard of freedom from one-man tribunals.