An inquiry into the right of criminal juries to determine the law in colonial America.

• Author: Krauss, Stanton D.

It was late August, 1814. The British army had scattered the American force at Bladensburg, burned the Capitol, the Executive Mansion (which has been known as the White House since the soot was painted over), and much of official Washington. The road to Baltimore was open, and the northward march was on.

During the redcoats' advance, four stragglers and a deserter were taken into custody by civilians from a nearby town that had previously surrendered to the British. When the invaders learned of this treachery, they took hostages and warned that the town would be razed and the townspeople killed if the five men were not returned by the following noon. Leaders of the defenseless town, including John Hodges, decided to capitulate. Hodges, along with others, was directed to satisfy the British demands. He did so, putting the deserter in mortal danger, but in the end the town was saved and no one was harmed.

A grateful federal government rewarded Hodges by charging him with treason.(1) Because the return of British troops amounted to giving "aid and comfort" to the enemy,(2) the only issue at his trial was whether the underlying circumstances provided a good excuse for this conduct. Treason being defined by Article III of the Constitution,(3) this was ultimately a question of constitutional law.(4)

The prosecutor claimed that nothing but a threat to Hodges' own life could justify his conduct,(5) and he asked the court for an instruction that Hodges' defense was legally insufficient. Defense counsel William Pinkney vigorously disputed this view of the law in his closing argument. After giving the matter some thought, Supreme Court Justice Gabriel Duvall, one of two judges presiding at this circuit court trial,(6) told the jury that he believed Hodges had no legally cognizable defense. He continued, however, by saying, "The jury are not bound to conform to this opinion, because they have a fight, in all criminal cases, to decide on the law and the facts."(7) At this point, the other jurist on the bench, District Judge James Houston, "said he did not entirely agree with [Justice Duvall] in any, except the last remark."(8) Pinkney then arose again and addressed the jury. "Gentlemen of the jury," he proclaimed, "The opinion which [Justice Duvall] has just delivered [denying the validity of Hodges' defense] is not, and I thank God for it, the law of this land."(9) Evidently the jury agreed, as Hodges was acquitted.

This incident bears vivid testimony to the fact that the jury was once widely said to have the "right" to judge "the law and the facts" in American criminal trials. Although Alexander Hamilton once argued otherwise,(10) that "right" imported more than even an unchecked power. A moment's reflection identifies both the distinction and its significance.

A spiteful or malicious jury has the power to convict a defendant it does not believe to have been proven guilty of the crime charged, and its verdict will generally stand if there is enough record evidence to allow a reasonable person to believe the defendant guilty. A perverse or puckish acquittal of a defendant whom the jury believes to have been proven guilty beyond a reasonable doubt will also stand. In neither case will the jurors who rendered the improper verdict be subject to punishment. Of course, as the fact that you did not blink at my use of the word "improper" in the last sentence shows, this does not mean that juries have a fight to decide criminal cases without regard to the facts; it just means that they have the power to do so, and that in some cases that power is absolute. Moreover, just as the commonality of political corruption doesn't make graft a right, the frequency of convictions of defendants believed by juries to be innocent wouldn't make it [a] right.(11)

Juries have a similar power to decide for themselves what legal principles should govern decisions in criminal cases and to implement them. They have the power, that is, to decide what the applicable substantive rules are, what those rules mean, whether they are legally valid (i.e., constitutional), and whether (despite their validity) they should be followed.(12) And sometimes that power--like the factfinding power--is absolute.

It matters whether the jury's exercise of this lawfinding power is considered rightful or a dereliction of duty. For one thing, if the former view were accepted, courts presumably would be forbidden to strip juries of everyone unwilling to implement the judges' opinions on the law.(13) Beyond that, as the televised jury deliberations in Wisconsin v. Reid so graphically showed,(14) juries are uncomfortable about breaking the rules. And a jury that is told it has the right to determine the law (as was Hodges') will probably approach its job differently than one that is not, or is told otherwise.(15) Indeed, it is for just these reasons that virtually all American judges now refuse to give(16)--and groups like the Fully Informed Jury Association (FIJA) are campaigning to require that juries be given(17)--instructions telling jurors that they may nullify (i.e., refuse to enforce) valid laws. They are doubtless also among the reasons why Justice Duvall gave the charge he gave in Hodges.

No judge in England is known ever to have given such a charge. It seems that English courts have always held that juries are obligated to follow their instructions on the law in criminal, as well as civil, cases.(18) We don't know when, where, or why British North Americans first decided otherwise. However, the conventional wisdom is that their juries acquired the right to determine the law as well as the facts in colonial times and that, while they lost that fight in civil cases somewhat earlier, they retained it in criminal cases until well into the nineteenth century. This view has it that Justice Joseph Story's circuit court decision in Battiste v. United States(19) and a later series of opinions by Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court.(20) inspired an almost irresistible judicial crusade against the criminal petit jury's lawfinding function. The coup de grace is said to have been delivered in 1895 by the Supreme Court in Sparf and Hansen v. United States.(21)

The fons et origio of this understanding of American jury history is Justice Horace Gray's dissenting opinion in Sparf and Hansen.(22) That opinion, which drew heavily upon an essay written thirty years earlier by Samuel Quincy,(23) set out exhaustively to recount the story of the criminal jury's lawfinding authority in Anglo-American law. It concluded that, "from the time of [America's] settlement until more than half a century after the Declaration of Independence, the law as to the rights of juries, as generally understood and put in practice, was more in accord with the views of" the British proponents of the jury lawfinding right than the views of its opponents.(24) In fact, Gray identified only one possible exception to "the almost unanimous voice of earlier and nearly contemporaneous [(with the adoption of the Constitution)] judicial declarations and practical usage."(25) Driving his point home, he emphatically summed up his findings in the following language:

Until nearly forty years after the adoption of the Constitution of the United States, not a single decision of the highest court of any State, or of any judge of a court of the United States, has been found, denying the fight of the jury upon the general issue in a criminal case to decide, according to their own judgment and consciences, the law involved in that issue--except ... two or three cases ... concerning the constitutionality of a statute.(26) These caveats aside, Gray recorded only two instances before 1830 in which any American judge disavowed the jury's fight to "determine the law and the facts" in a criminal case: Pennsylvania common pleas judge Alexander Addison did so in the 1790s and two New York Supreme Court Justices followed suit in the famous Croswell libel case in 1804.(27) However, these exceptions seemed to prove the rule, as Addison was impeached on apparently related grounds in 1803(28) and the instructions reported to have been delivered in criminal cases in New York courts between Croswell and Battiste, like the 1735 Zenger libel case,(29) seemed to show those courts' acceptance of the lawfinding right.(30)

The second pillar of the current understanding of the criminal jury's historical lawfinding function is a 1939 article by Mark DeWolfe Howe.(31) Accepting Gray's claim that juries were once acknowledged to have the fight to judge the law in criminal cases, Howe set out to examine "the processes by which ... [that] right has been destroyed."(32) Although it wasn't part of his stated mission to do so, Howe added significantly to Justice Gray's treatment of the history of this right before its "demise." He more closely examined its status in pre-Revolutionary times, adducing evidence of its recognition in colonial New England and Pennsylvania(33) and (while noting that the matter had not been "conclusively settled by accepted practice" in Massachusetts Bay Colony(34)) suggesting that colonial practice was the reason for its presence elsewhere after the Revolution.(35) He also presented evidence that, in some of the newly independent states, this right was embraced at an earlier date than Gray's authorities established,(36) Finally, he cited the House of Representatives' debate on the Sedition Act of 1798(37) as evidence of the general acceptance of the jury's right to judge the law in the Federalist Era.(38)

In recent years, the role of the American criminal jury--including its place in judging the law--has received a lot of scholarly attention.(39) Much has been written on the history of its right to determine the law as well as the facts of any case entrusted to it, but this literature includes very little new research on the subject. Rather, these works tend to do little more than...