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Jury Theory 

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To the editors:

[Re: "Tell It to the Jury," September 10]

About the fully informed jury--I, too, got started with the sort of information you got from the amendment advocates, when I, too, got in trouble with a law I believed was bad, and had to hear the judge tell the jury that they were responsible for facts only--leave the justice of the law to him, thank you! But I learned more. And what I learned took me both far to the left and far to the right of anything your philosophy dreams of. It will take a book to tell it, but here are some points.

Early juries, as you intimated, assessed taxes, and this meant that a group of neighbors could moderate your taxes, as Lysander Spooner tells us. Not only were juries neighborhood, but they made the law of the land, as documents from around the time of Magna Carta prove. Magna Carta is a document of tax resistance. It protests that the king collected fines against the law of the land--i.e., above the assessments of juries. The Continental Congress, which rediscovered Magna Carta, was white-hot for freedom and preached juries of the neighborhood. But by the time of the Constitutional Convention things had cooled off, and the Senate nixed neighborhoods. A faint remembrance that "we the people" make "the law of the land" is implied when you bring together disparate parts of the constitution. In the Bible, read by the authors of Magna Carta, the people of the land were the humblest sort. Freedom is when the people of the land, your neighbors, make the law of the land for you. Mixed oligarchy and democracy almost took root in 1215, but failed when Magna Carta, which was a law, got idolized into the rule of law!

What the legal judgment of the peers and the law of the land mean was very quickly forgotten: that if a nobleman was to suffer the king's vengeance for his part in the revolution of 1215--and there was one!--the king had to plead his way past a double veto: that of the nobles, the legal judgment of the peers, and the veto of the common people, the law of the land--because the city of London had opened its gates to the baronial rebels, and the barons were grateful, and, writing Magna Carta, had an eye to their own future preservation in view of the increasing power of central government in England. The twin veto meant no free man shall feel pain except by unanimous law! Juries were to make both civil and criminal law in the revolution, which is permanent. A postrevolutionary America is an unfree America. Revolutionary juries set the criminal sentence or civil award that the state dare not exceed, or we the people will punish the government. Patrick Henry was a son of Magna Carta when he wanted us to be able to "punish Congress."

The jury thus made what was later called "free law"--for the people. Judges were equally free to make law--for the government. But the rule of law: first, law as "the common inheritance of king and people," and then as "equal justice under law": that came later and is incompatible with people and judges making law.

But the law is one, so far as the people are faithful and good--and their judges warn them. There is no place for arbitrariness--especially in collecting taxes! Both before and after Magna Carta this was understood, and there were juries of attaint to try the petit juries for leniency. These died under the hand of Henry the Seventh, one of the wickedest kings England ever had. But we can have them back.

The English people did not want to govern themselves; they wanted their king to do it for them, but they wanted their government not to govern without their consent. That is why it says not except by the legal judgment of his peers or by the law of the land. That is why from Magna Carta on, from the beginning of judicial tradition, judges can always remit (forgive) the defendant any jury harshness--because we the people do not want to govern. But because we will not be governed except by the law of the land, juries must be armed to defend the leniency of their sentences, and should be called from the neighborhood, which equals the militia. Standing armies in peacetime have no place among free men. On the other hand, because we want to be governed, legislatures are also free to make law, and, historically, were free to make the terrifying (or terrifyingly precise) laws called bills of attainder and other ex post facto laws: mighty razor-sharp laws which name me, and which declare what I did was wrong, even though it was not illegal at the time I did it; for such laws Patrick Henry and George Mason pleaded in vain. In fact it was because we did not have fully informed, fully armed petit juries to defend freedom, and attaint juries to make them workable: that was why our forefathers shied away from bills of attainder, and other mighty laws. These laws will be dead on arrival unless approved unanimously through armed juries or even through civil war. Such laws, even bills of insurrection, by which legislatures high and low call for civil wars, keep order. The absence of these things tends to excuse the opponents of jury freedom. Not only high, but low legislatures will issue bills of attainder, etc. All the adults of each neighborhood are its armed legislature or town meeting. Civil war should be possible over a parking ticket--or a toke of marijuana. If we can't fight each other, we can't love each other. That is why Chicago is dying. The rule of law creates a desert. The end of our ability to fight and love came in 1865. The civil war had been fought over Massachusetts juries who made free constitution by refusing to punish aiders and abettors of runaway slaves, even though the Constitution demanded it. But the Civil War also shows that Congress, which, like the jury, is a legislature, could build a mass popular army of neighborhood militias tens of millions strong with all the coordination and sophistication that a free and educated people are so abundantly capable of. And if war can be prepared for, peace in freedom can be built by the same free armed good faithful people that we still are.

To put the same thing in a different way, good and faithful people can have the socialism that failed in the Soviet bloc and China for want of freedom, if they unanimously agree on it, in whatever amount or degree they choose. Jury democracy is the way faithful people work out the agreement, civil war being the ultimate argument before the jury.

According to the literal Greek of Mark 11:22, Jesus said, Have the faith[fulness] of God.

Vincent Shaw Flack

Evanston

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