http://fija.org/aie653l/wp-content/uploads/Spring-Summer-2013-AJ.pdf Denial of Trial by Jury as a cause of the American Revolution
By Don Doig
With the passage of S 1867, the National Defense Authorization Act, and the prior Military Commissions Act, congress has established the principle that American citizens can be detained indefinitely in military custody without benefit of charges and trial by jury, and shipped overseas to be incarcerated and perhaps tortured - or they might just be assassinated by executive order. This supposed law would nullify Art. III sec. 2 of the Constitution, guaranteeing trial by jury. It would nullify the Fifth and Sixth Amendments in the Bill of Rights. Gone is the constitutionally guaranteed right to counsel, and the right to Habeas corpus (a right dating back to the Magna Carta in 1215). In addition, many other aspects of the Bill of Rights have been trash-canned, such as the Fourth Amendment prohibitions against unreasonable searches and seizures (Patriot Act).
If, in some of these cases, the proper charge is Treason, the Constitution provides for this. First, Art. III sec. 2, which provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..." Art. III sec. 3. , provides that ..."No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." These clauses of the Constitution do not prescribe military tribunals for these Persons - instead they insist on Jury trials.
Denial of Trial by Jury by Great Britain was one of the principal causes of the American Revolution. In response to the unpopular Stamp Act, the Townshend Acts and other "revenue" laws, which were viewed as unconstitutional, smugglers such as John Hancock resisted and were prosecuted by Vice Admiralty courts, in many cases held in Canada, so as to avoid sympathetic American judges and juries.
Trial by jury was important because it placed the power in the hands of ordinary citizens to resist, if necessary, unjust prosecutions, unjust and unconstitutional laws and edicts, and just say no. It was the final safeguard against tyranny (save the Second amendment), when government has exceeded its rightful limits and oppresses the people it was meant to serve. The power of jurors to vote their conscience is a legal doctrine known as jury nullification, and it goes back centuries in the English common law tradition - our tradition in America - designed to preserve and protect the rights of the people by putting real power in the hands of citizens. This is the essence of trial by jury - the reason it was considered to be essential by the Founders of this nation, who put trial by jury into the Constitution (Art. III sec. 2), the due process clause of the Fifth amendment, and the guarantees of trial by jury in the Sixth and Seventh amendments. Without due process and habeas corpus and trial by jury, liberty will die, completely and despotically. See
www.fija.org.
As Arthur Schlesinger wrote in The Birth of the Nation,
"This body of unwritten legal principles [the English common law] evolved by judicial interpretation through the years, aimed to protect the individual against arbitrary acts, whether by government or by his fellows. it embraced such basic guarantees as the right of trial by jury chosen from the vicinity. ... Trial by jury was in colonial minds 'that firmest barrier of English liberty.' Hence its denial helped light the fuse leading to independence when Parliament... gave power of enforcing the new trade and revenue legislation to the Crown-appointed juryless vice-admiralty courts. As John Adams put the matter, 'Juries are taken... from the mass of the people, and no man can be condemned of life, limb, or property or reputation, without the concurrence of the voice of the people.' ..." n.379, p. 15, Quoted in In Defense of Trial by Jury by the American Jury Trial Foundation, vol. 1, p. 174.
"John Adams on the Stamp Act (October 14, 1765). John Adams characterized as 'the most grievous innovation of all' of the obnoxious provisions of the Stamp Act, 'the alarming extension of the Courts of Admiralty' into cases traditionally tried by civil juries. He viewed this as alarming because 'in these courts one judge presides alone' and 'no juries have any concern there.' Referring to the Magna Carta, Adams and other American colonists believed that because 'the law and fact are both to be decided by the same single judge... this part of the act will make an essential change in the constitution of juries, and it is directly repugnant to the Great Charter itself.'" Clinton Rossiter, Seedtime of the Republic, p. 388.
Continuing from John Adams: "...So it is... in the trial of causes between party and party. No man's property or liberty can be taken from him till 12 men in his neighborhood have said upon oath, that by the laws of his making it ought to be taken away. ... [Representative government and trial by jury are] two popular powers, therefore, [that] are the heart and lungs, the mainspring and the center wheel, and without them the body [of liberty] must die, the watch must run down, the government must become arbitrary. ... In these powers consist wholly the liberty and security of the people. They have no other fortification against wanton, cruel power; no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds; no other defense against fines, imprisonments, whipping-posts,... and racks. (Rossiter, pp. 388-389.)
Similarly, on October 19, 1765, delegates from nine colonies convened the Stamp Act Congress to petition for repeal of the Act. The seventh and eighth clauses of their Declaration of Rights, said:
"That trial by jury is the inherent and invaluable right of every British subject in these colonies.
"That the [Stamp Act] ... by extending the jurisdiction of the Courts of Admiralty beyond its ancient limits, [has] a manifest tendency to subvert the rights and liberties of the colonists." Harvard Classics, American Historical Documents n. 207, p. 147-148. (From In Defense of Trial by Jury, p. 162.)
Further evidence of the abuse of colonists via denial of trial by jury (from In Defense of Trial by Jury, p. 164):
Resolutions of the Virginia House of Burgesses (May 16, 1769). In February 1769, Parliament adopted an act directing the Governor of Massachusetts to arrest all persons responsible for disturbances in December, 1768, and send them to England for trial. "In protest, resolutions were adopted by the Virginia House of Burgesses and transmitted to the Assemblies of other colonies." These resolutions provided: ...[T]hat the seizing of any person or persons residing in this colony, suspected of any crime whatsoever committed therein, and sending such person or persons to places beyond the sea to be tried, is highly derogatory of the rights of British subjects, and thereby the inestimable privilege of being tried by a jury from the vicinage... Chafee, ed., Documents on Fundamental Human Rights, pp. 150-151 (Harvard University Press, 1951).
Proceedings of the Town of Boston (November 20, 1772). A meeting of freeholders of the Town of Boston was held at Faneuil Hall beginning on October 28, 1772. A List of Infringements and Violations of Rights was adopted, including the following:
Extending the power of the Courts of Admiralty to so enormous a degree deprives the people in the colonies in a great measure of their inestimable right of trials by juries: which has ever been justly considered as the grand bulwark and security of English property. Morrison, Sources and Documents Illustrating the American Revolution, pp. 83-87 (2nd ed. 1929). (From In Defense of Trial by Jury, p. 164).
The First Continental Congress convened on October 14, 1774, and adopted a Declaration of Colonial Rights. In it, the Continental Congress complained that the extension of jurisdiction of the Admiralty Courts and the transportation of colonists to trials in England had "deprive[d] the American subject of a constitutional trial by jury" in their own neighborhood. Declarations and Resolves of the Continental Congress, Journals, I (October 14, 1174) [Annals of America, n. 397, vol. 2, pp. 270-273. [IDTBJ, p. 166]
John Jay, a member and later President of the Continental Congress... was appointed in October, 1774, to draft an Address to the People of Great Britain. In it, he complained that through extension of the jurisdiction of the Admiralty Courts, the colonists had "lost the advantage of being tried by and honest, uninfluenced jury of the [neighborhood] and [were] subject to the sad necessity of being judged by a single man. ..." John Jay, Address to the People of Great Britain, Annals of America, n. 397, Vol. 2, p. 279. "Know then, that... we claim all the benefits secured to the subject by the English Constitution, and particularly that inestimable one of trial by jury. ..." Annals of America, p.277. [IDTBJ, p. 166]
Many other examples can be found, but let us conclude with Thomas Jefferson's words in the Declaration of Independence (July 4, 1776) which indicted the English Crown "for depriving us, in many cases, of the benefits of trial by jury."
Trial by jury has been under attack for decades. In the federal system, the tyrants deny defendants access to trial by jury if the charge has a sentence of less than six months. Then they multiply charges, so a person could face years in federal prison without benefit of trial by jury. This multiplication of charges business is employed also, at all levels, to intimidate defendants into foregoing their right to a jury trial and instead accept a plea bargain to avoid a harsh sentence. Even if, as is sometimes the case, the defendant is actually innocent of the charges. Additionally, prosecutors are allowed to weed out people who might understand the importance of having a conscience and know they can apply it in the jury room. Judges are allowed to lie to jurors and intimidate them into thinking they are nothing more than tools of the judge, accomplices in the strict application of the law, shorn of all integrity and conscience.
Designing governments and ruling elites always work by stealth. The language of the NDAA was confusing and subject to wishful thinking. And the poster boys for the initial application were Arab "terrorists" (even if they were American citizens) so most people were easily persuaded that this would only apply to them. But calculating power elites know that once the precedent is set, it is an easy matter to expand it to other groups. Including American patriots, who are no doubt the real target here.
As James Madison said,
"First Duty of Citizens... It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."
We must insist that our governors and legislators and sheriffs stand by their oath to defend the Constitution and ask that the people stand with them. Because what has been done here with the expansion of the leviathan police state, especially denial of trial by jury, is illegitimate and without moral or legal force, and resistance is justified.
MARBURY V. MADISON, 5 U. S. 137 (1803):
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
http://supreme.justia.com/us/5/137/case.html The people who passed and signed the NDAA, Military Commissions Act, the Patriot act, and all the other unconstitutional acts that abrogate the Bill of Rights should take some comfort, that when they are brought up on treason charges, they will get a jury trial.
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