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Trial by jury, 327 years on

The previous article in this series set out a concise description of the different evolutionary states of human existence can be found amongst Gnostic texts¹ where one can recognise three basic levels of human existence:

An uninitiated relatively uninformed physical and emotional state marked by supersition, fanatasy, fear and sometimes violence arising from real or imagined threats
An intellectual state where people turn their attention to analysing how mankind and nature works and accumulating knowledge on what is beneficial and prejudicial to mankind's state
A spiritual state is where mankind applies accumulated knowledge to improving that state of existence for mankind

These states of existence are all constructed by mankind to varying levels of perfection.

One of the characteristics of humans at the lower state of existence is that insecurity can attain such an intensity that it creates the motivation for self-preservation in the face of threats, at the expense of others. Over time societal evolution has been accompanied by the creation of various "institutions" that aim to extend preservation and protection of individuals in the context of society in general through laws, education, and the creation for forums for the peaceful resolution of disputes. As part of this evolution three other types of institution have evolved over time in the form of political parties, large commercial companies and the media. The more recent characteristics of this co-existence is that the institutions created to protect and promote the wellbeing of people in general have become heavily inluenced by legislators, that is, politicians who are, in general, members of political parties. Political parties have come rely on the media to attempt to influence the public discourse on issues of social concern. The facility with which political parties succeed in using the media depends in good part on their supporting economic agendas that benefit the commercial companies who also happen to fund political parties and join siper pacs.

Because the politicians feel that they depend upon this support in order to get elected their motivation for self-preservation shifts from representing those who vote (the electorate) to those who provide the media support and financial contributions to the political party.

The regulatory environments, originally designed to protect the public suffers from a disorientation away from societal and public need towards the interests of commercial interest groups. Many regulatory agencies become populated not by independent professionals but rather by people placed there by commercial companies so as to run "extra-constitutional" regulatory agencies. This has happened in the areas of banking and media in particular. The media operators promote their self-preservation by serving the same commercial and political interests and cease to be a genuine "free press" that holds government to account on issues of interest to the general public. This is no longer a function upheld, even although under the US Constitution, for example, that is supposed to be one of their primary functions.

As a result the ability of people to declare their personal needs in a frank and plain fashion finds no platform, no medium and the tendency has been for any criticism of existing norms to be considered to be aberrant, disloyal or even sedition. As a result whistleblowers are hounded, anyone reporting on dishonesty or irregularities, as is required in the job descriptionsof most people, only find themselves becoming the target of of the very institutions whose rules they follow. Speaking truth to power has become an impossible and thankless task in an environment where the political system no longer follows the constitutional norms of striving to promote the happines and wellbeing of mankind.

Trial by jury, 327 years on¹

The Trial by Jury in 1670

In the court case of 1670 when the jury remained resistant to cruel pressure to change their decision, William Penn was finally acquitted and released from jail. This set the precedent that juries can nullify the law and also cannot be considered to bring a wrong verdict.

The not guilty verdict destroyed the Act making the Church of England the only legal religion and thereby gave an impulse to increased religious freedom in England. It also re-established freedom of speech, the right to peaceful assembly and use of habeas corpus.

America extends the principle

Several years later, the provision of trial by jury within the colonies in North America, resulted in many jurors not enforcing the acts of Parliament but instead protecting the freedom of individuals.

A notable example was the case of John Peter Zenger (1697 - 1746) who was born in Germany and who was the publisher of a newspaper in New York, the New York Weekly Journal. Editions of the newspaper contained criticisms of Sir William Cosby (1690–1736) who was born in Ireland and who was serving as the British royal governor of New York. Zenger was accused of seditious libel and put in jail in 1734. In order to ensure prejudice against him without his having been tried, his bail was set far too high for his friends to be able to afford to release him. This punishment continued 9 months to 1735 when the trial started. Zenger was defended by Andrew Hamilton (1676 - 1741) who was born in Scotland and at that time a Philadelphia-based lawyer. Hamilton undertook this work on an entirely voluntary basis. He did not address his defence to the handpicked judges but rather to the jury. It was clear that the law had been broken but Hamilton argued that the law itself was a reflection of the corruption of the government and he summed up stating that the press has,

"a liberty both in exposing and opposing tyrannical power by speaking and writing the truth."

Zenger on his part simply told the truth, admitting he knew that the articles carried in his newspaper were critical and broke the law.

The judge instructed the jury to pass a verdict of guilty. The jury ignored the judge's instruction because what was stated in the articles was considered to be factual and therefore not libelous. They also considered the sedition law to restrict free speech and therefore was a threat to all freedoms.

The nullification of poor laws

This case established, as the jury in the Penn case of 1670 had done, that juries have the power to nullify poor laws through a not guilty verdict.

It also established the precedent of the fundamental unimpeded right of people to publish the truth as opposed to misrepresentations of the facts. It therefore established a more precise legal definition of libel, thus libel only exists when falsehoods are perpetrated whereas the truth can never be libelous.

When the English Bill of Rights was added to the American Constitution, the first Amendment was augmented to include the government's duty to defend the freedom of the press.

The jury system has delivered and defended important freedoms

The jury system can be seen to have made very important contributions to what many consider to be fundamental tenets of democracy. These include freedom of speech and to information, freedom of the press, free assembly, freedom of religion and above all freedom of juries to defend the freedom of individuals against arbitrary legal enforcement by nullifying laws.

The track record of juries as an independent institution

Juries have therefore had an important role in preventing governmental oppression by remaining independent and, on the basis of their conscience, being moved to refuse to commit themselves to supporting unjust convictions.

The track record of juries is that they have withstood the test of time and have been outstandingly successful in delivering on the original intention of their design to prevent arbitrary decisions from destroying individual freedom.

Not only have juries as an institution defending individual freedom on a case by case basis proven to be successful, some of the most important legal precedents in the defence of freedom have come from trials where there was a jury present. Many of these precedents have become embodied in law and conventions such as in human rights conventions so their origination as a jury inspired creation has often been forgotten.

It is essential however, to remain aware of this track record and to acknowledge that juries have been a consistent force in establishing a widening defence of individual freedom. Juries are the only surviving institution which has this specific authority, fortunately accompanied by the undying motivation of jurors as members of the community to carry out their duties in an impartial manner.

Based upon their outstanding contributions during centuries of existence, independent juries have justified, beyond any reasonable doubt, their taking up a status of being a universal human right.

The thin red line

The last bastions of defence of the individual freedom of the people of this country remain the judiciary and juries. In this combined function the independence and impartiality of judges are vital. The community conscience, in the form of the jury, takes on the role, albeit on a smaller scale to that which Parliament should exercise, of preventing excesses against individual freedom based upon the free exercise of their conscience. These two fundamentally important institutions occupy a reduced terrain which recent governments, judging from their proposals, wish to turn into a wasteland.

The Leveller's had no doubts as to the vital importance of the role of trial by jury. They consistently reaffirmed the importance of trial by jury as a fundamental tenet in defending the individual against arbitrary decisions. They also underlined the importance of sustaining the situation of all, including government, as being equal before, and submitting to, the rule of law upheld by an independent judiciary.

Real preferences expressed lead to real success

As in the 1670 Penn case in the United Kingdom, the Zenger case also demonstrated that the free expression of preferences was upheld at two levels. One was the upholding of the preferences of Zenger against the preferences of the state. The other was the community conscience, as represented by the members of the jury, upheld a preference for what they considered to be common expectations of the right to publish the truth. They considered the law on this question to be unfair. Like the Penn case the jury effectively forced their preferences of what constituted normal expectations of behaviour onto the state.

The jury system in the Penn and Zenger examples, and indeed, ever since the specific preferences of the community have been reflected automatically in the law in cases of nullification and without the intermediation or involvement of politicians, political parties, Parliament, government or legislative acts. In a marked contrast to general elections and Parliamentary activity, juries have been an outstanding example of a the way in which the expression of real preferences have enabled the effective defence of individual freedom.

¹ Thisarticle isbased on Chapter 13, "A Trial by Jury, 327 years on " in "The Briton's Quest from Freedom - Our unfinished journey" (HPC, Portsmouth, 2007, 418 pages) a book written by Hector McNeill, the British constitutional economist. The jury travels - it had a major impact on events in the American colonies and it created the foundation for the media (press) becoming the only sector to be mentioned in the American Constitution.