Editing Jury nullification (section)

==Common law precedent==
[[File:Sir Nicholas Throckmorton from NPG.jpg|thumb|Even prior to ''[[Bushel's Case]]'', Sir [[Nicholas Throckmorton]], a non-[[Episcopacy|Episcopalian]] [[English Dissenter]], or [[Nonconformist (Protestantism)|Nonconformist]], outside the established [[Church of England]], was acquitted by a jury despite hostility of the judges.]]
The early history of juries supports the recognition of the ''de facto'' power of nullification. By the 12th century, common law courts in England began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community and provided a somewhat efficient means of [[dispute resolution]] with the benefit of supplying legitimacy. The general power of juries to decide on verdicts was recognised in the English [[Magna Carta]] of 1215,<ref>[http://www.fordham.edu/halsall/source/magnacarta.html Magna Carta of 1215] {{webarchive |url=https://web.archive.org/web/20140910155351/http://www.fordham.edu/halsall/source/magnacarta.html |date=September 10, 2014}}</ref> which put into words existing practices:

{{quote|
No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, or by the law of the land.

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.}}

Largely, the earliest juries returned verdicts in accordance with the wishes of the judge or the Crown. This was achieved either by "packing the jury" or by "[[writ of attaint|writs of attaint]]". Juries were packed by hand-selecting or by [[bribery|bribing]] the jury so as to return the desired verdict. That was a common tactic in cases involving [[treason]] or [[sedition]]. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed, and the first jury was imprisoned or fined.

That history is marked by a number of notable exceptions, several of which claim rights commonly recognized as fundamental in modern democratic societies, such as freedom of speech and of the press, and freedom of religious practice. In 1554, a jury acquitted Sir [[Nicholas Throckmorton]] but was severely punished by the court. Almost a century later, in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted [[John Lilburne]] for his part in inciting a rebellion against [[Oliver Cromwell]]'s regime. Lilburne had been charged with seditious libel for the publication of articles critical of the government; the jury were instructed to give a verdict only on whether the text was published, and to leave the issue of libel to the judge, while Lilburne argued the jury should give a general verdict and should judge whether the law's restraint on speech against the government was just. The theoretician and politician [[Eduard Bernstein]] wrote of Lilburne's trial:

{{quote|His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy'. This view was not shared by the jury, which, after three days' hearing, acquitted Lilburne—who had defended himself as skillfully as any lawyer could have done—to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations.<ref name= Bernstein1895/>}}

In 1653, Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he had committed. The jury found Lilburne "not guilty of any crime worthy of death".<ref>{{cite book |editor-last=Birch |editor-first=Thomas |title=A Collection of the State Papers of John Thurloe, Volume 1, 1638–1653 | publisher=Fletcher Gyles |location=London| date=1742 |pages=435–445 |chapter= Slate Papers, 1653: August (5 of 5) |chapter-url=http://www.british-history.ac.uk/thurloe-papers/vol1/pp435-445 |access-date=1 December 2016 |via=British History Online}}</ref> In 1670, a [[petit jury]] refused to convict [[William Penn]] of unlawful assembly for religious practice not associated with the [[Church of England]]. The judge held the jury in contempt of court, which was ruled inappropriate by the [[Court of Common Pleas (England)|Court of Common Pleas]] in ''[[Bushel's Case]]''. In 1681, a grand jury refused to indict the [[Anthony Ashley-Cooper, 1st Earl of Shaftesbury|Earl of Shaftesbury]]. In 1688, a jury acquitted the [[Seven Bishops]] of the [[Church of England]] of [[seditious libel]]. Juries continued, even in non-criminal cases, to act in defiance of the Crown. In 1763 and 1765, juries awarded £4,000 to [[John Wilkes]] and £300 to [[John Entick]] in separate suits for [[trespass]] against the Crown's messengers. In both cases, messengers had been sent by Lord Halifax to seize allegedly-[[libel]]lous papers.{{Citation needed|date=October 2011}}

In Scotland, jury nullification had the profound effect of introducing the three-verdict system including the option of "[[Not proven#Not guilty|not proven]]", which remains in Scotland to this day. In 1728, [[Carnegie of Finhaven]] accidentally killed the [[Charles Lyon, 6th Earl of Strathmore and Kinghorne|Earl of Strathmore]]. As the defendant had undoubtedly killed the Earl, the law, as it then stood, required the jury merely to look at the facts and to pass a verdict of "proven" or "not proven", depending on whether it believed that the facts proved the defendant had killed the Earl.{{Citation needed|date=October 2011}} If the jury brought in a "proven" verdict, that would lead to Carnegie's hanging though he had not intended any harm to the Earl. To avert that injustice, the jury decided to assert what it believed to be its "ancient right" to judge the whole case, not just the facts, and rendered the verdict of "not proven". Over time, juries have tended to favour the "not guilty" verdict over "not proven" and so the interpretation has changed. The "not guilty" verdict has become the normal verdict when a jury is convinced of innocence, and the "not proven" verdict is used only if the jury is not certain of innocence or guilt.{{Citation needed|date=October 2011}}

The standard jury trial practice in the United States during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury so that it heard the same arguments as the bench in reaching its rulings on motions. That is evidenced by such decisions as the 1839 case ''[[Stettinius v. United States|Stettinius]]'', which held, "The defense can argue law to the jury before the court gives instructions."<ref name= StettiniusvsUSrefFenwick1836/> Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. The transition began with motions ''in limine'' to exclude evidence on which it was felt the jury should not hear the argument because it would be informed of the evidence to be excluded. Later, that was expanded to include all legal argument and so that today, the earlier practice of arguing law before the jury has been largely forgotten, and judges even declare [[mistrial (law)|mistrials]] or overturn verdicts if legal arguments are made to the jury.{{Citation needed|date=October 2011}}