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A COLLECTION OF THOUGHTS

"...every man speaks more virtuously than he either thinks or acts."

– FRANCIS BACON, The Advancement of Learning, 1605

SIXTH AMENDMENT -- JURY

DECLARATION OF INDEPENDENCE: "For depriving us in many cases of the benefits of Trial by Jury."

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 155 (1968)): "A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it."

Justice BYRON WHITE (Taylor v. Louisiana, 419 US 522, 530 (1975)): "The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

Justice THURGOOD MARSHALL (Peters v. Kiff, 407 US 493, 502 (1972)): "Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well."

Justice ROBERT H. JACKSON (Douglas v. Jeannette, 319 US 157, 182 (1943): "Civil liberties had their origin and must find their ultimate guaranty in the faith of the people."

JOHN LOCKE (Second Treatise of Government): "Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them....And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."

THOMAS JEFFERSON: "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

ANON: "When experts disagree, the ignorant must decide."

THOMAS JEFFERSON (1789): "The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."

THOMAS JEFFERSON (in a letter to Thomas Paine, 1789): "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."

JOHN JAY (1st Chief Justice, U. S. Supreme Court, 1789): "The jury has a right to judge both the law as well as the fact in controversy."

SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): "The jury has the right to determine both the law and the facts."

Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): "The jury has the power to bring a verdict in the teeth of both law and fact."

U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...."

U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4): "...it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."

Lord Chief Justice MATHEW HALE (2 Hale P C 312, 1665): "...it is the conscience of the jury that must pronounce the prisoner guilty or not guilty."

Lord Chief Justice MATHEW HALE (2 Hale P C 312) (1665): "...it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they [the jury] were the only competent judges."

SIR JOHN VAUGHAN, Lord Chief Justice ("Bushell's Case, 124 Eng Reports 1006; Vaughan Reports 135, 1670): "...without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct [a verdict] concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted."

U.S. v. GAUDIN (S.Ct. 1995): in which SC
ruled that juries are empowered to determine relevance and materiality.

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "Our American constitution have provided five...separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. "

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "The authority to judge what are the powers of the government, and what are 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. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "This preposterous doctrine, that "ignorance of the law excuses no one," is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "...there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions...."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these--that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government."

HGW ("NOT GUILTY!" 4/17/93): "The conscience of the jury is the yardstick of justice."

HGW: "The jurors have the right to leave the courtroom with a clear conscience."

Justice OLIVER WENDELL HOLMES JR. (Frank v. Mangum, 237 US 309, 347, 1915, not verified): "It is our duty to declare lynch law [to be] as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death."

Justice OLIVER WENDELL HOLMES, JR. (Frank v. Mangum, 237 US 309, 347 (1915)): "Mob law does not become due process of law by securing the assent of a terrorized jury."

ARIZONA SUPREME COURT ? (Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260): "Grand jury is [an] investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent."

JOHN ADAMS (Second President of U.S.) (1771) (Quoted in Yale Law Journal 74 (1964): 173): "It is not only his 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."

BRANCH, MAX. 155: "The verdict of a jury is a bar to equity.

HGW: If citizens, in their roles as jurors, are incompetent to judge the worthiness of the law, how are they, in their roles as voters, competent to judge the worthiness of those who would write the laws?"

HGW: "If the meaning of the law is not a fact, what is it? Is it just an opinion? When the Trial Judge proclaims the law to the jury, he declares it to be a fact of law. But it is just one more 'fact' to be submitted to the jury for confirmation or rejection. They alone have the right to determine whether the judge's opinion is, indeed, a 'fact.'"

THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267): "The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation." (Parsons was a leading supporter of the Constitution in the convention of 1788. He declined President Adams' nomination to be Attorney General and became Chief Justice of Massachusetts).

THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267): "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty, -- For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time."

WILLIAM KUNSTLER (quoted in Franklin M. Nugent, "Jury Power: Secret Weapon Against Bad Law," revised from Youth Connection, 1988): "Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is...the safety valve that must exist if this society is to be able to accommodate its own internal stresses and strains...[I]f the community is to sit in the jury box, its decision cannot be legally limited to a conscience-less application of fact to law."

LORD DENMAN, (in C.J. O'Connel v. R. ,1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852, p. 11): "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; but 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."

CONSTITUTION OF MARYLAND (Article XXIII): "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

INSTRUCTION TO JURORS IN CRIMINAL CASES IN MARYLAND (Quoted by Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 83, 1980): "Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case."

4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417 F.2d 1006, 1969): "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."

ALAN SCHEFLIN and JON VAN DYKE ("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 1980): ): "The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury...What impact will this deception have on jurors who felt coerced into their verdict by the judge's instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system."

INDIANA CONSTITUTION (Article 1, Section 19, Upheld in Holliday v. State 257 N.E. 579, 1970): "In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 170, 1964): "It is useful to distinguish between the jury's right to decide questions of law and its power to do so. The jury's power to decide the law in returning a general verdict is indisputable. The debate of the nineteenth century revolved around the question of whether the jury had a legal and moral right to decide questions of law."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172, 1964): "Underlying the conception of the jury as a bulwark against the unjust use of governmental power were the distrust of 'legal experts' and a faith in the ability of the common people. Upon this faith rested the prevailing political philosophy of the constitution framing era: that popular control over, and participation in, government should be maximized. Thus John Adams stated that 'the common people...should have as complete a control, as decisive a negative, in every judgment of a court of judicature' as they have, through the legislature, in other decisions of government."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172, 1964): "Since natural law was thought to be accessible to the ordinary man, the theory invited each juror to inquire for himself whether a particular rule of law was consonant with principles of higher law. This view is reflected in John Adams' statement that it would be an 'absurdity' for jurors to be required to accept the judge's view of the law, 'against their own opinion, judgment, and conscience.'"

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 174, 1964): "During the first third of the nineteenth century,...judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge's instructions. A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law its interpretation and its validity to the jury."

ALEXANDER HAMILTON (as defense counsel for John Peter Zenger, accused of seditious libel, 7 Hamilton's Works (ed. 1886), 336-373): "That in criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of law; who may compromise their conscience by lightly or rashly disregarding that advice, but may still more compromise their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong."

Justice KENT (New York Supreme Court 3 Johns Cas., 366-368 (1803)): "The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review. And the verdict of not guilty in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages." [Quoted in Sparf and Hansen v. U.S., 156 U.S.51, 148-149. (1894), Gray, Shiras dissenting.]

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 154-155 (1894)): "Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 154-155 (1894)): "The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them 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,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction,' the jury 'have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.'"

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 172 (1894)): "It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894)): "...It is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are...occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused." The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction..."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894)): "...[A] person accused of crime has a twofold protection, in the court and the jury, against being unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal...But the court can never order the jury to convict; for no one can be found guilty, but by the judgment of his peers."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion,
Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894)): "But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law of amplifying their own jurisdiction and powers at the expense of those entrusted by the Constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy."

ALAN SCHEFLIN and JON VAN DYKE ("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 71 1980): ): "If juries were restricted to finding facts, cases with no disputed factual issues would be withheld from the jury. But such cases are presented to the jury. By its general verdict of innocence, the jury may free a person without its verdict being subject to challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish the jurors for it. Although judges now generally tell jurors they must obey the judge's instructions on the law, the jurors may not be compelled to do so. If the jury convicts, however, the defendant is entitled to a broad range of procedural protections to ensure that the jury was fair and honest.

"When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic.

 

STEVEN E. BARKAN ("Jury Nullification in Political Trials," Social Problems, 31, No. 1, 38, October 1983): "Jury acquittals in the colonial, abolitionist, and post-bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control. Wide spread jury acquittals or hung juries during the Vietnam War might have had the same effect. But the refusal of judges in trials of anti war protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated anti war goals and protected the government from the many repercussions that acquittals or hung juries would have brought."

 

JUDGE LEARNED HAND (U.S. ex rel. McCann v. Adams, 126 F.2d 774, 775-76 (2d Circuit Court, 1942): "...[T]he institution of trial by jury especially in criminal cases has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty to say nothing of his life only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury...preserves both these fundamental elements and a trial by a judge preserves neither..."

JUDGE DAVID BAZELON ("The Adversary Process: Who Needs It?," 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971)): "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion come to mind and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values."

LEWIS CARROL (Alice in Wonderland):
"I'll be the judge, I'll be the jury," said cunning old Fury;
"I'll try the whole cause, and condemn you to death."

LEWIS CARROL (Alice in Wonderland): "No! No! Sentence first -- verdict afterwards."

WILLIAM SHAKESPEARE (Measure for Measure, 17):
'Tis one thing to be tempted, Escalus,
Another thing to fall. I not deny,
The jury, passing on the prisoner's life,
May in the sworn twelve have a thief or two
Guiltier than him they try.

CLARENCE DARROW (Debate with Judge Alfred J. Talley, Oct. 27, 1924):
"Why not reenact the code of Blackstone's day? Why, the judges were all for it -- every one of them -- and the only way we got rid of those laws was because juries were too humane to obey the courts.
"That is the only way we got rid of punishing old women, of hanging old women in New England -- because, in spite of all the courts, the juries would no longer convict them for a crime that never existed."

Justice OLIVER WENDELL

, JR. (I Holmes-Pollock Letters, (Howe, Mark DeWolfe, ed., Cambridge, Mass: Harvard University Press, 1946, p.74): "The man who wants a jury has a bad case....The use of it is to let a little popular prejudice into the administration of law -- (in violation of their oath)." [Mr. Justice Holmes should have noted that the "oath" itself was not binding. Administering such an oath is not authorized by the Constitution. If a juror refused such an oath, he would be disqualified, thus denying the defendant a fair jury. -- HGW]

SIR WILLIAM BLACKSTONE (Commentaries on the Laws of England, 1765-1769): "Every new tribunal, erected for the decision of facts, without the intervention of a jury...is a step towards establishing aristocracy, the most oppressive of absolute governments."

Justice ROBERT H. JACKSON (Morisette v. United States, 342 U.S. 246): "But juries are not bound by what seems inescapable logic to judges."

U.S. v. WILSON (629 F.2d 439, 443 (6th Cir. 1980): "In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 413, M.D. Tennessee, 1993): "Judicial and prosecutorial misconduct still occur, and Congress is not yet an infallible body incapable of making tyrannical laws."

Justice WHITE (WILLIAMS v. FLORIDA 399 U.S. 78, 90, 1970): "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 415, M.D. Tennessee, 1993): "...a defendant's right to inform the jury of that information essential to prevent oppression by the Government is clearly of constitutional magnitude."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 415-416 M.D. Tennessee, 1993): "There is no statutory proscription against making the jury aware of possible punishment. Instead, courts that have disallowed juror awareness of sentencing contingencies have peremptorily resorted to the factfinding - sentencing dichotomy to justify this denial. For example, the Eighth Circuit, in United States v. Goodface, merely stated that 'the penalty to be imposed upon a defendant is not a matter for the jury' and so it was proper not to inform the jury of a mandatory minimum term. See 835 F.2d at 1237. No further justification is given. In making this facile distinction, the courts have created an artificial, and poorly constructed, fence around the jury's role."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 417 M.D. Tennessee, 1993): "The Supreme Court has not mandated that juries be in the dark on the issue of sentence. Those courts so ruling have done so on unconvincing grounds. The power of jury nullification historically has extended to sentencing decisions, and it rightfully should extend to such decisions. This court finds no precedential rationale for rejecting the defendant's motion."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 417 M.D. Tennessee, 1993): "...this remedy [jury nullification] is one that should be reserved for only those cases where criminal law and community norms greatly diverge."

JUDGE DAVID BAZELON (U.S. v. Dougherty, 473 F.2d 1113, 1140, D.C. Circ. 1972): "The drafters of legal rules cannot anticipate and take account of every case where a defendant's conduct is 'unlawful' but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury -- as spokesman for the community's sense of values -- that must explore that subtle and elusive boundary."

HGW: "The Jury is the Achilles heel of tyrants."

Justice HUGO BLACK (Smith v. Texas, 1940, per The Great Quotations, ed. George Seldes, Citadel Press, 1983):

"It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but is at war with our basic concepts of a democratic society and a representative government....

"If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand."

GEORGE H. BOLDT (U.S. federal judge, U.S. V. Beck, February, 1959, per The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Jury service honorably performed is as important in the defense of our country, its Constitution and laws, and the ideals and standards for which they stand, as the service that is rendered by the soldier on the field of battle in time of war."

CURTIS BOK (U.S. federal judge, Book Awards address, Saturday Review, February 13, 1954, per The Great Quotations, ed. George Seldes, Citadel Press, 1983): "In the whole history of law and order the longest step forward was taken by primitive man when, as if by common consent, the tribe sat down in a circle and allowed only one man to speak at a time. An accused who is shouted down has no rights whatever."

THOMAS MILLDLETON (A Trick to Catch the Old One, c. 1604-1611):
"Wilt make haste to give up thy verdict because thou wilt not lose thy dinner."

G.K. CHESTERTON: "Our civilization has decided...that determining the guilt or innocence of men is a thing too important to be trusted to trained men.... When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity."

ROBERT FROST: "A jury consists of twelve persons chosen to decide who has the better lawyer."

SAMUEL BUTLER (English author): "The public do not know enough to be experts, yet know enough to decide between them."

AMBROSE BIERCE (The Devil's Dictionary):
"TRIAL, n. A formal inquiry designed to prove and put upon record the blameless characters of judges, advocates and jurors. In order to effect this purpose is is necessary to supply a contrast in the person of one who is called the defendant, the prisoner, or the accused...."

GERRY SPENCE (Trial By Fire, p. 455.):

"[The Supreme Court] does not render justice. Juries render justice, but where has the jury system gone? In civil cases, juries are only vestiges of the past. The civil law has been taken over by the judges and is now there exclusive property. The civil law is business. And people will not be allowed to meddle in something as important as business.

"Yet, even now, the people have not yet discovered they have been disenfranchised. Even lawyers can't stand to admit it. In any nation in which people's rights have been subordinated to the rights of the few, in any totalitarian nation, the first institution to be dismantled is the jury.

"I was, I am, afraid."

HGW:

"The men who wrote our Constitution and Bill of Rights thought that forty-five words were sufficient to guarantee Freedom of Religion, Freedom of Speech, Freedom of the Press, the Right of Peaceable Assembly, and the Right to Petition Government for the Redress of Grievances. They thought twenty-seven words were enough to ensure our Right to Keep and Bear Arms. And fifty-four words seemed to be enough to guarantee our right to be free from Unreasonable Search and Seizure.

"Altogether, those safeguards employed only 126 words.

"But when it came to our rights to indictment and trial by jury, they wanted to make sure -- absolutely sure. There they used 235 words -- almost twice the others combined."

 

LAW

HARRY TRUMAN (per R.J. Tavel): "The fundamental basis of this nation's laws was given to Moses on the Mount...If we don't have a proper fundamental moral background, we will finally end up with a totalitarian government which does not believe in rights for anybody except the State."

TACITUS, Roman Historian, A.D. 55-117:
"The more corrupt the state, the more numerous the laws."

BOB MATTHEWS (telecon, ~Jan. 15, 1997): "It's not that more people are doing wrong things now. It's just that more things are wrong."

SAMUEL JOHNSON:
"To embarrass justice by a multiplicity of laws, or to hazard it by confidence in judges, are the opposite rocks on which all civil institutions have been wrecked."

CICERO (De Officiis I, 10.33):
"Summum jus est summa injuria." ("The strict letter of the law is the greatest injustice.") [An alternate translation of this phrase, from the Loeb Classical Library, is, "More law, less justice."]

RALPH WALDO EMERSON:
"The less government we have, the better--the fewer laws, and the less confided power."

HUGO BLACK (Federal Power Commissiona and New York Power Authority v. Tuscarora Indian Nation, 1960): "Great nations, like great men, should keep their word."

CHARLES ADAMS (For Good and Evil, The Impact of Taxes on the Course of Civilization, 1993): "Henry VIII manufactured almost two hundred petty regulations, which he enforced as felonies, with hanging. One law was against begging."

AESCHYLUS (The Euminides):
"Let no man live uncurbed by law, nor curbed by tyranny."

JOHN CLARK, English Clergyman, Paroemiologia Anglo-Latina, 1639):
"Extremity of law is extremity of wrong."

BENJAMIN FRANKLIN (letter "To 'your Honour': Defense of James Franklin to Samuel Sewall" published in New-England Courant, February 4, 1722/3):

 

"The Law ever looks forward, but never backward; but if once we come to punish Men, by vertue of Laws Ex post Facto, Farewel Magna Charta, and English Liberties, for no Man can ever be safe, but may be punished for every Action he does by Laws made afterwards. This in my humble Opinion, both the Light of Nature and Laws of Justice abhor, and is what ought to be detested by all Good Men.

Summum jus, est summa injuria."

 

[This has been translated as "More laws, less justice" and "The strict letter of the law is the greatest injustice."]

FELIX FRANKFURTER (McComb v. Jacksonville Paper Co., 336 U.S. 187, 197, 1949):
"Ambiguity lurks in generality and may thus become an instrument of severity."

COKE ON LITTLETON 174: "The laws themselves require that they should be governed by right."

ELBERT HUBARD: "Laws that do not embody public opinion can never be enforced."

MACROBIUS: "Good laws derive from evil habits."

ST. THOMAS ACQUINAS: "Mal lex est nulla lex." [Bad law is no law.]

C.J. SULLIVAN, JR: "Why would anyone expect us to revere the laws passed by a Congress whose members are held in universal disrepute?"

SOPHOCLES (Ajax): "Laws can never be enforced unless fear supports them."

CALVIN COOLIDGE: "It is the duty of a citizen not only to observe the law but to let it be known that he is opposed to its violation."

ABRAHAM LINCOLN: (1st Inaugural Address): "No foresight can anticipate, nor any document of reasonable length contain, express provisions for all possible questions."

R.H. DOMINY: "It is the duty of the legislature to write the laws with such specificity and clarity that the ordinary citizen can understand his obligations under the law."

JUSTICE OLIVER WENDELL HOLMES (dissent, Lochner case): "General propositions do not decide concrete cases."

JOHN ADAMS: "Whoever would found a state and make proper laws for the government of it must presume that all men are bad by nature."

U.S. SUPREME COURT (U.S. v. Minker, 350 US 179 at 187): "Because of what appears to be a lawful command on the surface, many citizens, because of their respect for what only appears to be law, are cunningly coerced into waiving their rights due to ignorance."

NAPOLEAN I: "He that saves the nation breaks no laws."

LEN DEIGHTON (Said by character Isaac Volkmann in Winter): "Do not quote the letter of the law, my friend, when justice lies bleeding at my feet."

EDMUND BURKE (Second Speech on Conciliation with America. The Thirteen Resolutions): "In no country perhaps in the world is law so general a study [as in America]....This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources....They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze."

LATIN MAXIM: "Testis unus testis nullus." [One witness is no witness.]

HGW: "A statute derives its moral authority from its adherence to moral law."

CLARENCE DARROW (Debate with Judge Alfred J. Talley, Oct. 27, 1924): "As a rule, it is the poor and the weak and the friendless who furnish the victims of the law."

HGW: "Laws are merely philosophies with teeth."

DISRAELI: "People are ruled by words."

HGW: "The masters of language are the masters of men."

CHARLES REMBAR: "Law is one of the verbal arts. Good language does not itself produce good law, but there is no good law without it."

EDMUND BURKE (The Great Quotations, ed. George Seldes, Citadel Press, 1983): "A very great part of the mischiefs that vex this world arises from words."

REV. EDMUND A. OPITZ (The Freeman, Aug. 1992, p. 316): "The 18th Amendment was repealed by passage of the 21st Amendment in 1933. Shortly thereafter another prohibition law was passed, this one a prohibition against owning gold. Under the earlier dispensation you could walk down the street with a pocketful of gold coins without breaking the law; but if you were caught carrying a bottle of whiskey you might be arrested. Then the legal switcheroo occurred, and you could carry all the whiskey you wanted, but if you had any gold in your pocket you could be thrown in jail!"

ANGLO-SAXON PRINCIPLE (quoted by Lysander Spooner): "Nolumus Leges Angliae non mutari." (We will that the Laws of England be not changed.)

Justice ROBERT H. JACKSON (Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951)): "Moreover, it is only the words of the bill that have presidential approval, where that approval is given. It is not to be supposed that in signing a bill the President endorses the whole Congressional Record."

Justice LOUIS D. BRANDEIS (dissenting, Olmstead et al. v. United States, 277 U.S. 485, 1928): "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retributions."

LEGAL MAXIM: "What is inconsistent with and contrary to reason is not permitted in law."

CHINESE MAXIM (Holland, Jurisprudence, p.40, n2, Tenth Ed., 1908, quoting N. Hozumi on the New Japanese Civil Code, 1904): "Let the people abide by, but not be apprised of, the law."

AYN RAND (Atlas Shrugged, Ch. III, "White Blackmail"):
"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight That it's not a bunch of boy scouts you're up against– then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

Justice LOUIS D. BRANDEIS (dissenting, Olmstead et al. v. United States, 277 U.S. 438, 485, 1928): "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously."

COKE'S INSTITUTES 1,1,3: "These are the precepts of the law: To live honorably; to hurt nobody; to render to everyone his due."

ANON, 1764 (The Great Quotations, ed. George Seldes, Citadel Press, 1983):

The law doth punish man or woman

That steals the goose from off the common,

But lets the greater felon loose,

That steals the common from the goose.

LATIN PROVERB (The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Inter arma silent leges." [In war the laws are silent.]

WILLIAM BLAKE (The Marriage of Heaven and Hell, per The Great Quotations, ed. George Seldes, Citadel Press, 1983): "One Law for the Lion & Ox is Oppression."

JOHN LOCKE (Second Treatise of Government): "Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them....And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."

EDMUND BURKE (Impeachment of Warren Hastings, 17 Feb 1788): "There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity--the law of nature, and of nations."

JUNIUS (THE LETTERS OF JUNIUS 1769-1771): "One precedent creates another. They soon accumulate and constitute law. What yesterday was fact, today is doctrine."

Justice HUGO L. BLACK (Green v. United States 365 US 301,309, 310 (1961): "Bad men, like good men, are entitled to be tried and sentenced in accordance with the law,..."

THOMAS JEFFERSON (letter to John B. Colvin, 1810): "A strict observance of the written laws is doubtlessly one of the highest duties of a good citizen, but it is not the highest. The law of necessity, of self preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."

I. F. STONE (The Trial of Socrates): "The law, for all its limitations, has proven a wiser and more acceptable master [than kings and dictators]."

WILLIAM PITT (SR.), 1st Earl of Chatham (House of Lords, defense of John Wilkes, January 9, 1770, The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Where law ends, tyranny begins."

EDMUND BURKE (The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Bad laws are the worst sort of tyranny."

SAMUEL BUTLER (English poet, satirist, 1612-1680, Remains, per The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Self-preservation is the first law of nature."

WALID JUMBLATT (leader of the Lebanese Druze): "Here [in Lebanon], even the law of the jungle has broken down."

THOMAS B. REED (American Lawyer, politician): "One of the greatest delusions in the world is the hope that the evils of this world can be cured by legislation."

ANATOLE FRANCE: "La majestueuse egalite des lois, qui interdit au rich comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain." ("The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread."

SIR WINSTON CHURCHILL: "If you have ten thousand regulations, you destroy all respect for the law."

ULYSSES S. GRANT: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."

WILLIAM SAURIN (Irish Politician): "The law often allows what honour forbids."

SOLON (7th Century, B.C.; quoted in Diogenes Laertius; see Benjamin Franklin): "Laws are like spiders’ webs: If some poor weak creature come up against them, it is caught; but a big one can break through and get away."

BENJAMIN FRANKLIN (Poor Richard’s Almanac, 1734; see SOLON):
"Laws like to cobwebs catch small flies;
Great ones break through before your eyes."

DR. MARTIN LUTHER KING, JR.: "One has a moral responsibility to disobey unjust laws."

MARQUIS DE VAUVENARGUES (Reflexions, 1746):
"Those who fear men like laws."

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