

As everyone knows, there is sometimes a difference between "the law" and justice. The framers of the constitution knew this and they imposed upon the government the right of the people to a trial by jury, making it the jury's responsibility to deliver justice, not uphold the law. This is evident in the writings of the founders of this nation. John Jay, the first chief justice of the Supreme Court, said "The jury has the right to judge both the law as well as the fact in controversy." "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution," Thomas Jefferson wrote in 1771. John Adams said, "It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Alexander Hamilton, speaking about the framers of the constitution, said, "If they agree on nothing else, (they) concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." The principal way juries safeguard liberty is to nullify bad laws. The founders of this nation were guided in their views by a famous case of jury nullification, one that gave America freedom of the press. A German immigrant living in New York City, John Peter Zenger was a printer by trade who also published a periodical called the New York Weekly Journal. In 1733, the Journal began running a series of articles attacking the Royal Governor William S. Cosby, accusing him of rigging elections, allowing French enemy ships into New York Harbor and other high crimes and misdemeanors. Oftentimes, the articles questioned the governor's intelligence. Cosby issued a proclamation condemning the newspaper's "divers, scandalous, virulent, false and seditious reflections," and the die was cast. Zenger didn't write the articles himself, they were published anonymously. But when challenged he refused to name the actual authors. Gov. Cosby had him arrested and imprisoned on a charge of libel. Back in those days, under British law, it was considered libel to publish anything negative about the government or its officials. Whether it was true or not didn't matter. And Zenger had most certainly published the articles. Gov. Cosby packed the jury with his own cronies, and most people felt Zenger's fate was sealed. But his wife, Anna, kept publishing the Journal, which was now devoted almost exclusively to covering the prosecution. A public outcry led to the jury being replaced. It also attracted the attention of a Philadelphia lawyer, Andrew Hamilton, who volunteered to represent Zenger –who had spent more than eight months in prison -- at the trial. "The question before the Court and you, Gentlemen of the jury, is not of small or private concern," Hamilton said. "It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty." He then demanded that the prosecution prove that anything Zenger had printed was false. The judge, Chief Justice James Delaney, told the jury it didn't matter whether the articles were true or false, that if they believed Zenger had printed them, they must vote to convict. He told them in effect they could not nullify the law. In his summation Hamilton admitted Zenger broke the law, but asked the jury to acquit because the law was bad and Zenger published the truth. "The truth is no defense," Chief Justice James Delaney. It was libelous to criticize the government whether true or not. Hamilton urged the jury to overrule the judge and "to make use of their own consciousness and understandings in judging of the lives, liberties or estates of their fellow subjects," declaring jurors "have the right, beyond all dispute, to determine both the law and the fact." Hamilton added that if jurors cannot nullify laws, then "juries (are) useless, to say no worse . . . The next step would make the people slaves." After deliberating for less than 10 minutes, the jury returned with a verdict of not guilty. Cheers filled the courtroom. By the jury nullifying the law, they established freedom of the press. It also set a precedent against judicial tyranny in libel suits. "No nation, ancient or modern, ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves," Zenger said after the trial. No democracy ever existed in the modern world without the existence of a free press. Newspapers and pamphlets allow for the exchange of ideas and for the voicing of dissent. And no democracy can endure without the power of the jury to put limits on government. The trial of John Peter Zenger and particularly the role of the jury in nullifying the law - was an important step toward establishing this precious freedom for America. After the trial, the transcripts of the trial were widely published and the verdict encouraged more literature critical of England by such as Franklin, Jefferson, Paine and others. If Zenger's jurors had obeyed the judge's directions and did not judge the law, the people of America might still enjoy British rule. Thomas Jefferson wrote that juries were more important than the right to vote. He said, "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them." Benjamin Franklin said that jury nullification is "better than law, it ought to be law, and will always be law wherever justice prevails." The 19th Century American political philosopher Lysander Spooner understood the power of juries, down to the one lone juror of conscience who might hang the jury to protect the minority against the tyranny of the majority. "For more than six hundred years --- that is, since Magna Carta, in 1215 --- there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused," Spooner wrote. "(B)ut that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."

