FIJA-Thomas-Jefferson-Quote-only-anchor

“I consider [trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution.”

—Thomas Jefferson, in his letter to Thomas Paine, 11 July 1789, three days before the storming of the Bastile in France, expressing his concern that French revolutionaries were not persuaded to adopt trial by jury as part of their new government



“It is not only his 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.”

—from the Diary of John Adams, 1771



“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.”

—Judge David L. Bazelon, Dissent in United States v. Dougherty, 473 F.2d 1113, 1142 (D.C. Cir. 1972).

“The jury has an “unreviewable and irreversible power… to acquit in disregard of the instructions on the law given by the trial judge… The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.”

U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132.
(Nevertheless, the majority opinion held that jurors need not be told this. Dissenting Chief Judge Bazelon thought that they ought to be so told.)

“If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence… If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.

The most quoted instruction empowering a jury to judge the law comes from a civil case. In a rare jury trial in the United States Supreme Court, Chief Justice John Jay, speaking for a unanimous Court, instructed the jury:

“The facts comprehended in the case are agreed; the only point that remains, is to settle what is the law of the land arising from those facts; and on that point, it is proper, that the opinion of the court should be given. It is fortunate, on the present, as it must be on every occasion, to find the opinion of the court unanimous: we entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver.”

“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on 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 observed 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, however, we have no doubt, you 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 fact; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully within your power of decision.”

Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794)

“[I]f they can say upon their oaths that they know the law better than the court does, they have the right to do so, but before assuming so solemn a responsibility, they should be sure that they are not acting from caprice or prejudice . . . but from a deep and confident conviction that the court is wrong and that they are right. Before saying this upon their oaths it is their duty to reflect, whether from their habits of thought, their study and experience, they are better qualified to judge of the law than the court.”

Schnier v. People, 23 Ill. 17, 30 (1859), quoted in Howe, Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582, 611 (1939):

“The people themselves have it in their power effectually to resist usurpation, [the wrongful seizure of authority] 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.”

—Theophilus Parsons, Elliot’s Debates, 94; 2 Bancroft’s History of the Constitution, p.267. Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895), Dissenting Opinion: Gray, Shiras, JJ., 144.

“The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts.”

—Justice Oliver Wendell Holmes, Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

“It is manifest from all the accounts we have of the courts in which juries sat, prior to the Magna Charta, such as the court baron, the hundred court, the court leet, and the county court, that they were mere courts of conscience, and that the juries were the judges, deciding causes according to their own notions of equity, and not according to any laws of the king, unless they thought them just.”

—Lysander Spooner, An Essay on The Trial by Jury

“Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (“the country”) the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? . . . No . . . On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority on the part of the king. In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.”

—Lysander Spooner, An Essay on The Trial by Jury

“No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed (harmed), nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)”

—Lysander Spooner, An Essay on The Trial by Jury
(Spooner’s translation of the Magna Charta Clause 39)

From Bushel’s Case, Judge Vaughan wrote, explaining why jurors can’t be punished for bringing a verdict against the instructions of the judge:

“To what end must they undergo the heavy punishment of the villainous judgment, if after all this they implicitly must give a verdict by the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it according to the best of their own knowledge?
A man cannot see by anothers eye, nor hear by anothers ear, no more can a man conclude or infer the thing to be resolved by anothers understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae.”

—How. St.Tr. 6:999 (1670) at 1012.

“As Juries have ever been vested with such power by Law, so to exclude them from, or disseize them of the same, were utterly to defeat the end of their institution. For then if a person should be Indicted for doing any common innocent act, if it be but clothed and disguised in the Indictment with the name of Treason, or some other high crime, and prov’d by Witnesses to have been done by him; the Jury though satisfied in Conscience that the fact is not such offense as ‘tis called, yet because (according to this fond opinion) they have no power to judge of law, and the fact charg’d is fully prov’d, they should at this rate be bound to find him guilty. And being so found, the Judge pronounce sentence upon him; for he finds a convicted Traytor, &c. by his peers. And thus a certain Physician boasted, That he had kill’d one of his patients with the best method in the world; So here we should find an innocent man hang’d, drawn, and quarter’d, and all according to law.”

—Sir John Hawles, The Englishman’s Right: A Dialogue between A Barrister At Law and a Jury Man, 12 (London, 1680) (reprinted Garland Publishing, 1978).

“I believe no man will venture to say they have not the power, but I mean expressly to say they have the right. Where a civil power of this sort has been exercised without control, it presumes—nay, by continual usage, it gives—the right. It is the right which jurors exercised in those times of violence when the Seven Bishops were tried, and which even the partial judges who then presided did not dispute, but authorized them to exercise upon the subject matter of the libel; and the jury, by their solemn verdict upon that occasion, became one of the happy instruments, under Providence, of the salvation of this country. This privilege has been assumed by the jury in a variety of ancient and modern instances, and particularly in the case of Rex v. Owen, without any correction or even reprimand of the court. It is a right, for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times would have no security for his life, liberty or property.”

—Justice Willes, from the dissent in Dean of St. Asaph’s Case, How. St.Tr. 21:847 (1785) at 1040 1041.

“[T]he jury had an undoubted right to form their verdict themselves according to their consciences, applying the law to the fact. If it were otherwise, the first principle of the law of England would be defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny it utterly, because every Englishman was to be tried by his country; and who was his country but his twelve peers, sworn to condemn or acquit according to their consciences? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would try the man. He could contend for the truth of this argument to the latest hour of his life, manibus pedibusque. With regard to the judge stating to the jury what the law was upon each particular case, it was his undoubted duty so to do; but, having done so, the jury were to take both law and fact into their consideration, and to exercise their discretion and discharge their consciences.”

Sparf et al. v. United States, 156 U.S. 51 (1895) at 139, quoting 29 Parl. Hist.,1535, 1536.

“Jury (jurata, from the LAT. jurare, to swear) Signifies a certain number of men sworn to inquire of and try the matter of fact, and declare the truth upon such evidence as shall be delivered then in a cause: and they are sworn judges upon evidence in matter of fact.

The privilege of trial by jury, is of great antiquity in this kingdom; some writers will have it that juries were in use among the Britains; but it is more probably that this trial was introduced by the Saxons: yet some say that we had our trials by jury from the Greeks; (the first trial by a jury of twelve being in Greece.) By the laws of King Ethelred, it is apparent that juries were in use many years before the Conquest; and they are, as it were, incorporated with our constitution, being the most valuable part of it; for without them no man’s life can be impeached, (except by parliament) and no man’s liberty or property can be taken from him…

Juries are fineable, if they are unlawfully dealt with to give their verdict; but they are not fineable for giving their verdict contrary to the evidence, or against the direction of the court; for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences. Vaugh. 153, 3 Leon 147.
If a jury take upon them the knowledge of the law, and give a general verdict, it is good; but in cases of difficulty, it is best and safest to find the special matter, and to leave it to the judge to determine what is the law upon the fact. I Inst. 30.”

Jacob’s Law Dictionary (London, 1782)
This was the most common legal dictionary in Colonial Virginia; its definition is the one Madison would likely have relied on in writing the Sixth Amendment.


“JU•RY, n. (Fr. jure, sworn, L. juro, to swear.) A number of freeholders, selected in the manner prescribed by law, empanneled and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case. Grand juries consist usually of twenty four freeholders at least, and are summoned to try matters alledged in indictments. Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict.”

Noah Webster’s Dictionary of the English Language, 1828

The only Supreme Court Justice ever impeached, Samuel Chase, was charged with denying the right of jurors to judge the law. His defense argued, among other things, that:

“As little can this respondent be justly charged with having, by any conduct of his, endeavored 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 were required to give.’ He denies that he did at any time declare that the aforesaid counsel should not at any time address the jury, or did in any manner hinder them from addressing the jury on the law as well as on the facts arising in the case. It was expressly stated, in the copy of his opinion delivered as above set forth to William Lewis, that the jury had a right to determine the law as well as the fact: and the said William Lewis and Alexander James Dallas were expressly informed, before they declared their resolution to abandon the defence, that they were at liberty to argue the law to the jury.”

United States v. Fries, 9 F.Cas. 924, 934 (D. Pennsylvania, 1800).

“…this was in its nature and essence, though not in its form, a penal or criminal action; and they were therefore entitled to judge both of the law and the fact, and that the enforcing act could not apply in this case…”

—Judge Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812)

“That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.”

—John Marshall’s instructions to the jury in United States v. Hutchings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1817)

“Jury acquittals in the colonial, abolitionist, and post bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control. Wide spread jury acquittals or hung juries during the Vietnam War might have had the same effect. But the refusal of judges in trials of antiwar protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated antiwar goals and protected the government from the many repercussions that acquittals or hung juries would have brought.”

—Steven E. Barkan, “Jury Nullification in Political Trials”, Social Problems, 31, No. 1, 38, October, 1983.

“…[T]he institution of trial by jury especially in criminal cases has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty to say nothing of his life only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury… preserves both these fundamental elements and a trial by a judge preserves neither…”

—Judge Learned Hand, U.S. ex rel McCann v. Adams, 126 F.2d 774, 775 76 (2nd Circuit, 1942).

“It’s easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion come to mind and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values.”

—D.C. Circuit Court Judge D. Bazelon, “The Adversary Process Who Needs It?”, 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971).

Senator Sheldon Whitehouse: “We’ve talked a lot today about the role of the judiciary in the larger American system and architecture of government, and I wish you’d say a few words about the role of the jury within that architecture, and whether or not you see the jury as just a little piece of fact-finding machinery for dispute resolution or whether the Founders and you saw and see a larger role for it as a political, small ‘p’, institution in our system of government. Is it an important piece of our governmental architecture as well as our dispute resolution system, and if so, how?”

Supreme Court Justice Antonin Scalia: “Absolutely is, which is why it is guaranteed in the Bill of Rights in criminal cases, and indeed, in all civil cases at common law involving more than $20. The jury is a check on us—it’s a check on the judges. I think the Framers were not willing to trust, in criminal cases, the judges to find the facts. Indeed, you know at the beginning, when the Constitution was ratified, juries used to find not only the facts, but the law. And this was a way of reducing the power of the judges to condemn somebody from prison. So it absolutely is a structural guarantee of the Constitution.”

—Testimony before the United States Senate Judiciary Committee on the Constitutional Role of Judges, 5 October 2011

Senator Sheldon Whitehouse: “At the time that the Constitution and Bill of Rights were adopted, my understanding is that the Founders also had a fairly skeptical view of governors. The colonial governors had shown considerable arrogance and high-handedness. They were skeptical of assemblies. Thomas Jefferson had described the Virginia Assembly, I think, as 207 tyrants replacing one and that was not a big improvement. I probably have the number wrong. And I wonder if the stature of the jury in the architecture of American government, could not just be as a check on judges but also as sort of the last bastion where somebody who is put upon or set upon by political forces can get away from the political forces that most lend themselves to corruption—governors, assemblies—and get themselves before a random group of their peers, if the case is right, and that it has a slightly larger significance than just as a check on you all. It’s also a check on all of us and the rest of the system of government.

Supreme Court Justice Antonin Scalia: “I think that’s probably right if you believe that juries can ignore the law where they think that in this case the law is producing a terrible result. And they do that sometimes, I am quite sure. And that makes them a check not just on the judges, but of course, on the legislature that enacted the law to apply in this particular situation. I’m a big fan of the jury, and I think our court is, too.”

—Testimony before the United States Senate Judiciary Committee on the Constitutional Role of Judges, 5 October 2011