Between local knowledge and national politics: debating rationales for jury nullification after Bushell's Case.

• Author: Stern, Simon

Sir John Vaughan's opinion in Bushell's Case (1) constitutes an important milestone in the history of jury nullification in Anglo-American law. In ruling that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence, Vaughan made a formative contribution to our understanding of the jury' s independence, and his opinion continues to be cited in discussions of this issue. (2) Vaughan did not defend nullification: His opinion nowhere speaks of a juror's right to disregard the law or to find according to "conscience," a term that some contemporary commentators used as a code word for nullification. (3) Insofar as Vaughan addressed the issue at all, he insisted that the jury must follow the judge's directions concerning the law. Nevertheless, Bushell's Case would prove to be a valuable resource for those who did advocate jury nullification. Vaughan relied in part on the observation that reasonable people may disagree about a witness's credibility or the reliability of the evidence; in such cases, he argued, the jurors should form their own views and should not be punished if these views differed from the judge's. Modern defenses of jury nullification that draw on Vaughan's opinion often rely on this strand of his argument. (4) When Bushell's Case was first publicly debated in the early 1680s, however, the journalists and pamphleteers who cited it focused on a different justification. Besides defending the right to form an independent view, Vaughan also reasoned that because jurors were chosen from the vicinage (the locality where the crime occurred), they might have personal knowledge about the facts of the case. As John Langbein has noted, this argument was completely implausible, since the English had abandoned the vicinage requirement for a countywide venire system in the sixteenth century. (5) Nevertheless, Vaughan's latter justification played a crucial role in the process by which Bushell's Case came to stand for the principle that jurors have the right to nullify. By the end of the eighteenth century, the "personal knowledge" claim no longer seemed defensible; however, by that point, largely because of the debates of the 1680s, Bushell's Case had long been viewed as supporting the jury's right to find both law and fact--a right that Vaughan had never defended.

Previous discussions of Bushell's Case have underestimated its impact on the nullification debate. Langbein has argued that the 1670 ruling had little immediate effect, because judges could still comment freely on the facts of a case, terminate the trial at any point prior to the jury's verdict, require the jury to redeliberate, and seek royal pardons for defendants whom the jury convicted against the judge's direction. (6) These options, however, applied only to petit jury trials, not to grand jury proceedings, and it was in this latter context that Bushell's Case would first command public attention. Though Thomas Andrew Green has discussed two of the early responses to Bushell's Case, (7) his discussion does not address their relation to the jury hearings that prompted them, or to the other books, pamphlets, and newspaper editorials that also contributed to the nullification debate. Barbara J. Shapiro has examined a number of the contributions to that debate and has addressed their political motivations, but her account focuses on the debate's role in the history of proof standards in English law. (8)

What has not been sufficiently explored, then, is the process by which Vaughan's defense of jury independence was translated into a defense of jury nullification in the early 1680s. Vaughan's comments on the distinction between fact and law suggest that nullification, though impermissible, is virtually impossible to prevent; however, the rhetorical battle over the meaning of Bushell's Case would turn nullification into a right. This battle shows how the interpretation of Bushell's Case was molded to suit a particular political agenda; it also shows how the reception of legal opinions may be influenced by the popular press. The licensing regulations that controlled the print marketplace until 1679 would have made it nearly impossible to engage in such widespread dissemination of views that served to undermine the Crown's power. Had those regulations remained in effect, commentary on Vaughan's opinion would probably have appeared over a period of decades, in discussions limited mainly to legal treatises, rather than erupting into a fast-paced public debate. (9)

Although arguments defending jury nullification had been raised in print before 1680, (10) the debate of the 1680s constituted the first open, extended discussion of the issue in England, and its repercussions continue into the present. In United States v. Thomas, (11) a recent Second Circuit decision, the court ruled that "a juror who intends to nullify the applicable law is ... subject to dismissal." (12) Some have defended this holding, arguing that American courts have never tolerated nullification, (13) while others have criticized Thomas as a historically unprecedented infringement of the jury's rights. (14) This Note does not attempt to resolve that debate, although evidence suggests that some American courts in the eighteenth and nineteenth centuries permitted jury law-finding to an extent that made nullification virtually inevitable. (15) Regardless of whether that evidence constitutes endorsement of nullification, however, Thomas and Bushell's Case are strikingly similar in their conclusions about the court's ability to respond to jurors who nullify. The Thomas court observed that the need to keep jury deliberations secret makes it nearly impossible for judges to prevent nullification. (16) Indeed, the court set a very high evidentiary standard for judges who would dismiss nullifying jurors (17)--a standard that had not been met by the district court, with the result that the defendant was entitled to a new trial. (18) Similarly, Vaughan concluded that "legally it will be very hard to quit a jury that finds against the law." (19) Thomas and Bushell's Case reach nearly identical conclusions; the most salient difference is that Vaughan addressed the topic of nullification only implicitly, and his ambiguity on that subject made it possible for commentators to reshape his opinion during the ensuing debate.

That debate arose because of a series of government-sponsored prosecutions in 1680-1681 of Whig dissidents accused of seditious libel and treason. King Charles II and his Tory supporters were initially successful in prosecuting their political opponents, but several of these cases were halted when grand juries dominated by Whigs returned findings of ignoramus ("we know nothing of it"), which indicated that the jurors saw no basis for pursuing the charges. In such cases, the judges had no means of circumventing the jury; the prosecution could bring the case again before another grand jury, but that effort seemed futile when the same Whigs controlled the venire. Political commentators seeking to justify the jurors' behavior found the perfect answer in Bushell's Case, published in 1677 in Vaughan's Reports. (20) These writers' efforts were greatly assisted by the lapse in 1679 of the statute providing for government regulation of the press. Indeed, the lapse of the licensing regulations was the very reason for the flood of publications that the government was then attempting to curb by prosecuting the printers for seditious libel. Thus, Bushell's Case provoked heated debate over jurors' rights at a time when booksellers (21) were not only enjoying a newfound liberty to encourage political controversy in general, but were also personally concerned about the outcome of this particular debate. Vaughan's opinion reached a print marketplace that was ideally positioned to exploit the case.

This Note analyzes the process by which the "personal knowledge" claim was taken up in the 1680s and was ultimately rejected at the end of the following century. Part I reviews Bushell's Case itself in order to clarify the different bases of Vaughan's argument. Part II examines the historical and political context in which the nullification debate occurred. The terms "Whig" and "Tory" first came into popular usage at the end of the 1670s, at a time when the Whigs in the House of Commons were straggling with the Crown's Tory affiliates in the House of Lords over the monarch's authority and the power to control the royal succession. These years witnessed the Exclusion Crisis (1679-1681), so named because the Whigs were attempting to pass legislation that would prevent Catholics from occupying the throne; the legislation was targeted specifically at Charles's brother, James, Duke of York. (22) During roughly the same period (1678-1684), England was reacting to threats of a "Popish Plot" to take over the government. (23) These conflicts provoked a nationwide crisis and generated a huge amount of print that the government attempted to suppress by prosecuting the more outspoken booksellers for seditious libel.

Part III discusses these trials and the responses they provoked. During the first months of 1680, the government launched several successful prosecutions against Whig booksellers, most notably Benjamin Harris, who had contributed energetically to the stream of pamphlets offering dire warnings about the Popish Plot and the dangers of allowing James to succeed to the throne. These prosecutions led to the first efforts to introduce Bushell's Case to the public of potential jurors in order to justify jury independence. Another successful prosecution followed in July, but as the year wore on, juries grew reluctant to follow the government's lead and opted instead to block the attacks with ignoramus bills. The Whig resistance to government control of the press, and of public opinion, began to assert itself.

Part IV turns to the loudly...