The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves—the government, or the people; because there is no third party to whom it can be entrusted. -Lysander Spooner, “Trial By Jury,” 1852
Supporters of liberty often get confused over the path towards advancing liberty. Indeed, entire seminars, conferences, meetings, and discussions are devoted to this sole topic, “How do we free the world?” This is as grandiose a question as it seems; bringing about a free society is a long, tiresome path that may take one’s entire life to carry through. For others, the difficulty bringing about a free society is lack of specialization. If one’s career is not set in a liberty-oriented path, such as being a lecturer for the Institute for Humane Studies or the Foundation for Economic Education, or being an attorney for the Institute for Justice, then it may seem disheartening when trying to find avenues advancing personal, social, and economic liberty. However, this is not to say that the common individual cannot make a profound impact in the lives of others and work towards the destruction of dangerous and tyrannical social institutions at the same time.
Trial by jury may hold the key for unlocking a powerful check on the limits of government. In the United States, and many other common law nations, jurors possess the power to judge both the matters of fact (i.e., whether or not the defendant broke the law) and the matters of law (i.e., whether or not breaking the law in question is worthy of punishment). In other words, jurors may decide to find a defendant “not guilty” even though they may very well find the defendant to be guilty of committing the crime in question. The purpose of such a declaration is to rebel against a law which the jury believes is unjust. This action not only sends a message to government officials, legislators and judicial figures alike, but it also has the profound impact of saving the future wellbeing of the defendant, who may be guilty of committing a crime, but the law which was broken was an unjust law to start with.
What is unique about this check on government is that it is derived directly from the populace and not through the legislature. Jury nullification allows citizens to walk the careful line between populism and legislative tyranny. While long-term legislative reform may be necessary for the long-term shift towards a free society, reform is a slow and arduous process and may fall victim to perversions. As insights into public choice theory and democratic research shows legislatures are fallible and capable of creating unjust laws in order to appease special interest groups or out of pure ignorance (see Tony Cotzias’ post “Anyone Still For Democracy?”).  Jury nullification obviates the obstructive and often slow hand of reform and works as a short-term cure for a larger ill. Similarly, unlike legislative reform, which often requires that one is a political insider, and unlike judicial reform, which requires similar specialization, jury nullification is carried out by the average citizens that make up a jury of one’s peers. This is not only true in theory but also in practice. Nullifying juries have been made up of blue-collar workers and white-collar businessmen alike, and rarely, if ever, include experts in common law. Jury nullification truly is the common man’s path around injustice.
Neither is jury nullification a crazed theory of radical libertarians, but has a strong and healthy history of undermining tyrannical government practices in the United States. Chief Justice John Jay recognized this right of jurors in the 1794 case Georgia v. Brailsford, noting that while it is presumed judges are the best judges of law and juries are the best judges of facts, “both objects are within [a jury’s] power of decision … [jurors] have a right to take it upon [themselves] to judge both, and to determine the law as well as the fact in controversy.” This precedent was heavily relied upon for decades by juries across the United States in determining the outcomes of cases.
However, a shift in American jurisprudence came before the 20th century. During the antebellum era, juries with abolitionist leanings would refuse to convict those charged with undermining the Fugitive Slave Laws. Courts, judges and prosecutors alike, began to seek the removal of jurors who were predisposed against the government’s case. Furthermore, judges would refuse to inform juries of their rights to judge the law. Slowly but surely, jury nullification became a rare and radical practice across the Union. Trials transformed from trial by jury to trial by government.
Lysander Spooner
It is this transformation that constitutional lawyer Lysander Spooner warns against in his 1852 essay “Trial By Jury.” Spooner decries the possibility that without the power to judge matters of law and fact, juries will only become extensions of the state, only used to prop up the facade of impartiality. This power of juries, this “palladium of liberty,” must not be hidden away by the benefactors of the state. Spooner envisions the jury as the best manifestation of the concept of consent of the governed. The powerful right and duty of the jury to determine matters of law is the greatest bastion against the infringement of liberty by the state.
A modern case of judges withholding facts and legal instructions from jurors in order to further an agenda isthe case of Brian Aitken. Aitken’s only mistake in the course of the case was believing that judges ought to act impartially and give juries the correct instructions. Sadly, Aitken’s case is not even an example of a judge keeping nullification instructions from jurors, but simply a case of a judge doing exactly what Spooner decried: making the jury an extension of the state by deceit and dishonesty.
Despite cases like Aikten’s, trial by jury has made reappearances since the Civil War, but only in the most controversial of scenarios. Prohibition-era juries picked up on the practice and nullified up to sixty percent of cases. New Hampshire juries have acquitted several individuals in marijuana prohibition cases (most recently and famously in the case of Doug Darrell here). Still yet, others have considered jury nullification in cases of raw milk prohibition.
Juries have profound power in our common law legal system, but the state has a long history of attempting to hide this power. Only through learning of this power can it become a reality. When this power is unleashed, juries really are the “palladium of liberty.”