To grasp why the Bill of Rights leads off by barring Congress from “establishing” any religion, “or prohibiting the free exercise thereof,” you must understand that in 18th century England there was no “separation of church and state.” The English monarch to this day includes in her title “Fidele Defensor” – Defender of the Faith. Which helps explains why even our right to a jury trial stems directly from this era.

In 1670, it was declared illegal to hold a religious gathering or preach a sermon in England which was not a “Church of England” sermon. Dissident churches, including the Quaker meeting houses, were closed.

Unable to get into his London meeting house, William Penn led a Quaker meeting in the street outside. He was arrested and put on trial on Sept. 5, 1670, 338 years ago this week.

The judges explained to the jury that preaching a nonconformist sermon was illegal, and Penn had been caught doing just that. They instructed the jury to convict.

The jury asked to be read the wording of the law Penn was said to have violated. The judges told them they didn’t need to read any stinking law, they were to “take the law as we give it to you” – an insufferably aristocratic phrase that’s cropping up a lot in our own courthouses, these days.

The jury said if they couldn’t see the law, they weren’t going to convict. In fact, God bless them, they unanimously acquitted William Penn, who was thus free to emigrate to America, where he subsequently got his picture on a box of oats, and presumably did some other stuff.

The judges were not pleased. They locked the jury in an upstairs room, telling them they’d get no food or water – they couldn’t even come down to use the outhouse – till they convicted.

The jury, led by one Edward Bushel, would not relent. Friends passed them jugs of water on poles. Eventually Bushel and a few others, sticking by their guns, were thrown in prison.

The case went to the highest court in the land. And lo and behold, reaching back to Anglo-Saxon precedent, England’s Court of Common Pleas ruled the jury was right – they were under obligation to follow no one’s orders as to what verdict they could reach. Juries were and remain to this day free to vote their conscience, even in direct contravention of the instructions of the judge; they cannot be punished for doing so.

On these shores, the precedent was upheld in the case of John Peter Zenger, charged in 1735 with libeling the king. British law did not allow “truth” as a defense. If you published a criticism of the king, that was criminal libel. Zenger admitted he’d printed the pamphlet, and everyone could see it was critical of the king.

The court therefore instructed the jury to convict. The American jury told the judge where he could shove it, thus not only confirming American jury rights, but also handing us a little thing we like to call “Freedom of the Press.”

The next time you’re called for jury duty and the judge tells you “We don’t have that here; you must take the law as I give it to you,” you have two choices. You can tell him he’s lying (in which case he’ll send you home), or you can keep your mouth shut, get seated on that jury, and then tell your fellow jurors the guy in black has been lying, once you’re safely ensconced in the jury room.

This Friday, Sept. 5, jury rights activists across the nation will once again celebrate the juror’s right to render a verdict based on his or her conscience, even if in direct contravention to every “instruction” of the court.

If you think the War on Drugs is absurd, counterproductive, or unconstitutional (it’s all three) and you find yourself on a drug jury, you can – some would hold you have a moral duty to – vote to acquit no matter what you believe the defendant did.

If you can’t get all your fellow jurors to go along with you, hang the jury. Refuse to let it convict. They can’t do a thing but snarl at you like chained curs. Make the state re-try the case. Chances are there’ll be even more opponents of the War on Drugs on the defendant’s next jury – providing everyone keeps their mouths shut during “voir dire” and doesn’t help the court to stack a jury full of obedient pro-Drug-War stooges.

For more information, go to www.fija.org.

The D.C. Court of Appeals held in the 1972 Vietnam draft case U.S. vs. Dougherty that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions from the judge. Most often commended are the 18th-century acquittal of John Peter Zenger on charges of seditious libel and the 19th-century acquittals in prosecutions under the fugitive slave laws.

In United States v. Moylan in 1969, the 4th Circuit Court of Appeals ruled “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.”

In Georgia v. Brailsford, 1794, Chief Justice John Jay, speaking for a unanimous Court, instructed the jury: “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. … Both objects are lawfully within your power of decision.”

Does the local black-robed political hack trying to intimidate you out of voting your conscience in the jury room think he is a superior authority on our system of law and jury trial than John Jay, first Chief Justice of the United States Supreme Court?

If he aims to direct your deliberations, ask him to come back into the jury room and guide you. He cannot. He is forbidden to do so. Why do you suppose that is?

“The judge cannot direct a verdict it is true,” said Mr. Justice Holmes, for the majority in Horning v. District of Columbia, 1920, “and the jury has the power to bring in a verdict in the teeth of both law and facts.”

That is the truth, and the truth shall set us free. The rest is lies, and the goal of the black-robed liars is ever to get us to hold out our wrists for the manacles of their tyranny – doing it docilely, and thanking them for the favor.

September 5, 2008

Vin Suprynowicz [send him mail] is assistant editorial page editor of the daily Las Vegas Review-Journal and author of The Black Arrow.

www.lewrockwell.com/suprynowicz/suprynowicz93.html