Ho Say Peng
In the United States of America, the federal government, as stipulated in the Constitution, is separated into five distinct branches—a system of checks and balances. They are the Presidential executive, the House of Representatives, the Senate, the judiciary courts, and—the jury system.
Government is deliberately separated, as we all know, so that power is not heavily concentrated in one source which will definitely lead to its abuse, and also that each branch with its own power will delimit the power of the other branches, preventing any one branch from accumulating too much power.
When asked about the separations of power, often times what is named are the executive, the legislative, and the judiciary—the jury is forgotten, or worse, confused as being part of the judiciary. There is a reason the American Founders included a jury system of trial, or trial by jury, in their government and it is probably for that reason Singapore’s Founders did not include it.
A jury is a body of persons, selected as if to represent the larger public, convened in a judicial court to exercise—as Lysander Spooner succinctly put it in his Essay on Trial by Jury—
That means the jury, through a unanimous vote, has the right to effectively nullify the law in question and acquit the accused of his “crime” even when the facts clearly showed him to have broken the law. This right, which dates back centuries, to the English Magna Charta and Ancient Greek and Roman law, is called jury nullification. And it has the power, again quoting Spooner, “to guard against every species of oppression by the government.”
Here I highlight two demonstrative cases of jury nullification—you can find more if you want—which show the rights of the people trump the oppressive laws of the government; one from England in 1670, one from America in 1735.
The first case is the famous Bushel’s Case. In 1670 England, two Quakers, William Penn (founder of the Pennsylvania Colony which would later become a U.S. state, and advocate for religious freedom) and William Mead, were on trial, charged for unlawful assembly, in violation of the Conventicle Act, which effectively made the Church of England the only legal place for congregation.
The facts clearly showed that Penn and Mead, by preaching a Quaker sermon before a crowd in the street, had violated the Act. (Penn and Mead had in fact intended to disobey the Act; this is also a good example of non-violent civil disobedience.) During the trial, the judge not only refused to honor Penn’s right to have a copy of the charges laid against him, which was a right guaranteed by law, he (judge) instructed the jury to come to a verdict without hearing Penn’s defense and heavily pressured the jury to convict Penn. The jury, despite the pressure, nullified the law (i.e., the Act) and acquitted Penn.
The story does not end there. When asked by the judge to reconsider the verdict and select a new head juror, Edward Bushel and three others from the jury refused. They were then fined about a year’s wages (which they refused to pay) and jailed for nine weeks for the stupid charge of “contempt of court”, until Bushel filed a writ of habeas corpus. Bushel’s case prevailed in the Court of Common Pleas. William Penn and Mead were also freed.
Bushel’s case re-established the right of jury nullification, and with it, established freedom of religion, freedom of speech, and freedom of non-violent assembly, which were later enshrined in the English Bill of Rights in 1689, and also confirmed the power of the Court of Common Pleas to issue a writ of habeas corpus in ordinary criminal cases.
Now we move on to the second case: the Zenger case. This case is the American version of the Bushel’s case, in that the Zenger case reinforced jury nullification in America and established freedom of speech and press, as Bushel’s did in England, but it also established a legal precedent, that truth can be used as a defense to libel. (Shocked? We take it for granted today.)
In 1735, in the New York colony, John Zenger, publisher of the New York Weekly Journal, was tried for seditious libel, for printing articles that criticized the British royal governor William Cosby of election rigging, stealing taxes, appropriation of Indian lands, et al. Technically, Zenger was guilty even though the articles were true, as English law at that time, which was designed to protect government from critics, dictated that truth was not a defense to libel.
His lawyer Andrew Hamilton admitted to Zenger’s publishing and printing of the allegedly libelous article. With that Attorney General Richard Bradley thought the trial was over. Instead Hamilton challenged “the justice of the law”.
Hamilton argued that the libel laws of England ought not to be the libel laws of New York, and when Hamilton’s offer to prove the truth of the article was rejected, he appealed the jury to reconcile the article’s accusatory claims with their own experiences of the royal governor to determine the article’s veracity. Hamilton’s arguments were well-received by the jury, but there was no law to support his position that truth ought to be a defense to libel.
Chief Justice James DeLancey, who was a royalist, then ruled: “The law is clear that you cannot justify a libel. The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”
To which Hamilton replied: “I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases. But this I shall have occasion to speak to by and by.”
Chief Justice DeLancey ordered the jury to obey the law and render a “Guilty” verdict. But no, after the jury had deliberated, the head juror Thomas Hunt, when asked for the verdict, answered: “Not guilty”. The jury had nullified the libel law and acquitted John Zenger.
These two cases, and others, were for the future American Founders, a number of whom were lawyers (John Adams, Alexander Hamilton, Thomas Jefferson, etc) an important lesson.
In the American Declaration of Independence, a list of charges against the tyrannical King George the Third was laid out. One of them read:
After the Revolution, the right to trial by jury was enshrined under the Sixth and Seventh Amendment to the Constitution (Bill of Rights). Since then jury nullification has been used to negate unjust laws such as the Fugitive Slave Act of 1793 and 1850, which punished people for helping slaves escape; and during the Prohibition era, alcohol control laws, which sought to ban and regulate alcohol consumption and production, were also negated.
In America today jury nullification is used mostly to negate arbitrary drug laws, a sort of modern Prohibition, which has led to America topping the list of countries with the highest incarceration rates. And as the federal government passes more oppressive laws, jury nullification has never been more important in securing liberty and justice for Americans.
You have seen how jury nullification has been used for good. But can an unjust result also happen from nullification? Yes. Opponents of jury nullification would point to cases during the 20th century, around the Civil Rights era, where all-white juries have acquitted fellow white defendants accused of murdering blacks. Proponents of nullification would point out that the issue is not with the act of nullification, but with jury selection.
A jury is supposed to be comprised of “substantially all classes of opinion, prevailing among the people” (Spooner), a cross-sectional representation of the country. An all-white jury obviously does not represent a cross-section of the country. The process of jury selection must then be improved. I will not go into more detail regarding jury selection here.
Another criticism is that the jury makes mistakes: making a wrong judgment of presented facts and acquitting the accused who was in fact guilty of a grievous crime. But so could a judge, if no jury existed. In such a case, the best that can be said is, the jury has erred on the side of mercy; humans are not omniscient after all. But there is also no good reason to assume that the jury would wreak havoc by arbitrarily nullifying all laws: because then the accused will be released back into the community in which the jurors live. And no one wants to live with murderers and thieves and suchlike.
What I hope the reader will take away from this article is an understanding of the importance of a jury in the protection of our liberties. The three separations of power are not enough. History has shown us that collusions between the three branches do occur and the judicial courts lose their independence and become puppets of the other branches.
It is thus of great importance to have trial by jury—that is, a “trial by the country”—that is, a trial by the people, as distinguished from a trial by the government. The jury is the only branch of the government whereby the people are directly involved, instead of being represented by politicians who, though should theoretically place the people’s interest above all else, often take care of their own political interests first. In his Democracy in America, Alexis de Tocqueville said,
I think that if Singapore had trial by jury, the charges against Yong Vui Kong and Alan Shadrake, for example, whose “crimes” were victimless—meaning that the harm principle was not violated—would have been nullified by reasonable Singaporean jurors, or at least result in hung juries, which would then lead either to the government dropping the case entirely or in a compromise of lighter sentences. But that, for our government, would mean giving power to the people. And they don’t want that, do they?