Category Archives: Common Law

Nullification: Individual and Collective Uses

Also see: Fully Informed Jury Association –

In Wood’s new and excellent book on Nullification, much is written about the use of nullification at the state level of government against the federal level of government, but less attention is given nullification by the individual juror. Yet, the essence of justice is that human rights and conscience exist and can be exercised only at an individual level. There is no “collective right” just as there is no “collective conscience.”

While the perceived collective political community may embark on collective political posturing for myriad reasons, it is only at the individual level that the elegance of the independent juror, capable of raising a standard of justice in anticipation of the coming tides in the affairs of men, that we observe the prescient nature of the individual human conscience in steering the ship of state through troubled waters.

Throughout human history, we have moved from slavery toward the recognition of the unique rights and self-ownership of each individual human. With this journey has come the recognition of the evils of collectivist thinking at all levels of consideration. When we finally accept––as a cultural necessity––the inherent value and rights of each individual human, and when there are free markets and voluntary associations, we will still have need of juries to consider, to weigh, and to decide, what is justice and what is not.

In fact, one can readily thumb through history and find instances of brilliant juror nullification: cases in which the jurors anticipated later-recognized human rights; cases in which jurors raised the standard of justice to new heights. A recent reviewcarefully points up shifting sentiment toward nullification. At almost every instance within this excellent article, one could substitute the concept of the individual juror for the concept of the collective state government, and in that substitution, find the essence of the concept of the jury of 12 jurors: of self-determination on an individual level, as each juror accepts the authority to judge the law as well as the fact, based on individual sense of conscience, justice, and compassion.

Investigation of instances of failure of the jury reveal that such instances can be attributed more to government employees’ political jury stacking than to jury malfunction. In many instances, racism, sexism, or other factors kept juries from being truly representative of all those connected to the case.

(The economic implications are clear: re-open justice to the vote of the free market: let the people, as should be represented by the jury in every criminal case, determine those laws considered economically viable for enforcement. We might soon see only one law: no initiation of force or fraud for any reason whatsoever.)

Let the jurors act on individual motivation, and let bad laws fall before the conscientious, informed jurors who understand that they have the authority to judge the law as well as the facts, and that it must be their personal sense of justice which compels their individual verdict. Let there be no distinction of the right to nullify bad laws, whether at the state level or at the individual level, where one juror, acting independently in good conscience, has the same right to nullify as any government body.

The jury is one of the smallest, and therefore most significant, of duly constituted bodies involved in the application of laws and the mechanisms of justice. The elegance of 12 jurors has been examined from a mathematical perspective, found as Appendix I in Vin Suprynowicz’s brilliant Send in the Waco Killers, which I imagine you have all read. Read the Appendix I again. You will be enlightened about the role of the individual juror in serving as an essential and mathematically significant check on government employees’ tyranny and attempted usurpation of human rights.

“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,” a Virginia lawyer wrote … His name was Thomas Jefferson.

Jefferson clearly understood that while self-serving government employees at every level would exceed their authority given any opportunity, they could be denied that opportunity by the people who would comprise the jury, who would refuse to enforce usurpations of individual human rights. Jefferson also understood the “anchor” metaphor, and chose it above the “cannon” metaphor, because the jury is a peaceful, necessary restraint to keep the ship of state steady and safe in serving its purpose: the protection of individual human rights. Jurors hold the authority and the ability to enforce the limits of the Constitution by refusing to enforce government employees’ attempts to violate Constitutional boundaries.

Find out more by visiting the Fully Informed Jury Association. You will want to stay for a bit and read up on one of the least-known rights in our Common Law country. It is a right, that when known, effectively can save us––through peaceful means––from the war the government has declared and is making against its own people, not so different from those wars against the people that inspired the Magna Carta.

It is the independent, secular, non-partisan juror who stands as the Fourth Branch of Government, capable of placing a veto on bad laws by refusing to enforce them at the behest of self-interested government employees, whether at the federal, state, or local level. After all, conscientious nullification resides, in the final analysis, in the independent mind of the thinking individual.

15 July 2010

Juries Then and Now

Juries Then and Now

As some of you know, I have been studying cultural ethical systems for a lot of my life.  This led me to do a considerable amount of research in the rise of juries, judges, and mechanisms for settling disputes in non-violent ways, especially those mechanisms that were outside of the priesthood and kinghood (both have been forms of government in various societies: our present government is merely an extension of the fallacies of force employed by earlier forms of government).

Early, prehistoric juries were made up of from two to several dozen people. That early prehistoric juries were anything other than a free market response to an apparent societal, tribal, or kinship system need is a ruse I find entirely unsupportable given what we know, anthropologically, of early social systems.  These early juries were certainly not a response to government of any sort, but a societal mechanism for dispute resolution; a mechanism that served as an alternative to violence to resolve disputes.  One of the problems with using violence to resolve disputes is that the violence often bred more violence.

Generally speaking, each side got to choose an equal number of people.  Everything was done before the entire tribe or village.  Naturally, each side would choose their kin and friends.  Each side wanted a ruling in their favour.  The community wanted peace and wholeness of anyone harmed restored, so everyone could get on with hunting and gathering.

But the jurors were answerable to the community as a whole, and the goal of the jurors had to be justice, fairness and peace restored to the community as a whole.  The overriding concern was peace and order in the community.  From these roots arose what we know as common law.  From these roots—and you will find much about the formation of these roots in most religious writings–grew our societal laws and more significantly, our system of cultural ethics.  Look at the Bible to find much on the evolution of the common law and systems of justice—which have continued to evolve in our western societies.  Look to the Tao, and other books, to examine the evolution of systems of justice in eastern societies.  Chase down some of the early written and oral traditions of the Earth’s peoples for more information on justice systems and cultural ethics of early peoples.  It is fascinating to track how our ethical constructs developed.

Jurors were not invented to give serfs a veto against masters, nor invented to give peers a veto of the king’s whims, since juries predate both these societal constructs based of force and fear: jurors date back to earlier times than we have recorded history, and show up in early Greek mythology, in ancient Chinese legends, and in very early oral traditions of American (north and south) tribal justice systems.

Independent jurors, drawn from a random selection of voluntary participants, would, in a free, stateless society—usually hunter-gatherer societies early on—fulfill the same function as they did in prehistoric times: justice, fairness, restoration of damaged parties, and peace restored to the community or tribe or village.

L. Neil Smith and Robert Heinlein have both written about the future use of and composition of the independent jury in their works.

I wrote a long piece about the early, tribal, prehistoric role of jurors somewhere.  When I find it, I will post it here or link to it.

In a free society, based on voluntary action by all humans, jurors might serve out of an individual sense of good will, curiosity, bias, or any other reason.  To postulate that juries would be clumsy and expensive ignores the elegant mechanisms available in a voluntary society to engage individuals in common pursuits even while their individual motivations may be, and would be, myriad.

There is absolutely no evidence at all to support the notion that juries are a response to government any more than the notion that juries are a response to religion—a theory I have also seen offered.  Humans, brilliant, creative creatures that we are,  are quite capable of devising several alternative means to arrive at the same ends.  Look around you.  We do not all choose to employ the same means for most all of human functions, whether in societal constructs or in personal choices.

Jurors derive their right to serve as judges in disputes from the voluntary consent of those who choose to submit their case to the jurors.  If individuals do not want to use a jury, they can have other choices, but let us not limit their choices to arbitration or judges just because we may not be able to discern the good in using a jury to settle a dispute.

Whether we are a stateless society, a tribal society, or a society oppressed by the force and fraud of kingships, priests, and politicians; jurors serve in varied capacities to protect individuals, restore justice and peace, and to assist in resolving disputes between those who submit to their combined judgment.

If anyone finds any corrections to my thinking, I would appreciate the information.


Limitations Long Forgotten

Limitations Long Forgotten

I had long considered as a possibility that Shay’s Rebellion was—by its patriotic attention against the depredations of any government-sanctioned and government-enforcement of laws through the use of violence by its minions—a spur to the Federalists to hurry along the formation of the Constitutional Convention, most especially while Jefferson was out of the country.  They needed to get a more air-tight form of tyranny in place.

Yes, I think the scoundrels wanted to get their slaver schemes in place whilst the most ardent and articulate opponents of government were either out of the country, or without their most eloquent and influential member: Thomas Jefferson.

Patrick Henry, as well as many others, opposed the Constitutional Convention and its intent. (“I smell a rat!” I think Henry said.) Many of the initial Articles of Confederation and Declaration of Independence representatives refused to attend.  Many refused to ratify.  Many signers of the Declaration of Independence refused to attend or to ratify.

The Bill of Rights was added as a compromise to appease those who saw in the Constitution too much centralization of power. Such centralization amounted to little more than just another slaver ploy, allowing for the slow erosion of limitations on government power, until the limitations were long forgotten.  The limitations were replaced with illusions of government charity and protection.  The illusions were created  by those venal and vicious occupiers of the seats of power, whether serving as bureaucrats or posturing politicians.

But many of the People believed in the sanctity and preservation Bill of Rights, just as many believe in Social Security, protection of the People, and government charity today.  The culture slowly shifted—from self-governance and self-sufficiency—to one of dependency and obedience to government.  The slaves found a new master, named politics.

Those skeptical of the Constitution, and supporting the addition of the Bill of Rights, hoped the Bill of Rights would greatly enhance the people’s ability to “bind government down with the chains of the Constitution.”  Limitations on government interference and usurpations as articulated in the Bill of Rights—more aptly a Bill of Prohibitions against government interference with free people—was considered a necessary reminder of the restraints necessarily placed on the government that was then being formed.

Some delegates, who had fought off one tyrant, were not so eager to carry on their backs another tyrant, of any form.  They were fearful that government—that evil institution necessarily populated with knaves and scoundrels—might one day interpret, for its own interests (the interests of those selfsame knaves and scoundrels) that the Bill of Rights was a complete articulation of the rights of free people, and that no other rights existed.

Many of those at the convention were fearful that those articulated prohibitions against government action, so scrupulously set forth in the Bill of Rights, might be eroded by vile manipulations of those who found comfort, succor, and wealth in the power of government office. These few far-seeing people were concerned that the limitations on government would be forgotten, replaced with rationalizations on why such limitations on government were not sound policy.  Thus is has happened, as we now can see. Limitations have been compromised in return for license to plunder the rights pockets of others, and to hide behind the agency of government while doing so.

I am not making any of this up.  Read.  Research.


Unreasoning Respectfulness for Authority, Any Authority

The contradiction—that humans need government for any reason—is recognized incrementally.  It takes a while for the full depravity of government, and the full sacredness of individual responsibility and ownership—to sink in to our culturally-infected minds, diseased with unreasoning respectfulness toward authority, any authority.

But to learn the truth, we have only to be willing to face the facts, and be willing to let the old illusions die.  We have only to look at who kills, justifying it in the name of peace.  We have only to look at who steals, justifying it in the name of charity.

I have just finished writing something related to this, which I think BSC or TPOL may have up in the next couple of days, and I will try to get it up on one of my sites as well.

The Declaration was an excellent beginning, and I think we must hearken back to its clearly-reasoned statement of the rights of humans, and not be dissuaded by the constitution, or other institutional illusions foisted upon us to handicap our unique, individual creativity and ability.   There is no part of the constitution we need to know or teach, and that part, I hope we are doing all we are able to enforce, protect, articulate, draw attention to, and teach others about that part we call the Bill of Rights.

Okay, okay, yes, I admit it: I do love that there is so much about jury authority in the BOR.  Sure makes my work fun.


Juries: A Peaceful Means of Conflict Resolution?

Juries: I just want to make one point perfectly clear—well, as clear as I can make it anyway.

In a voluntary society, there would be absolutely no compulsion to even use a jury: disputants would be free to choose whatever means of resolution they mutually agreed to use.  Dueling, as well as casting of chicken bones, might be mutually acceptable to some;

To presume any degree of force or compulsion because people choose to engage the services of a group of people to resolve a dispute displays a lack of understanding of a voluntary society;

Early juries were not a response to the state, government, or religion, but, as far as I have been able to determine from much research, a response to a need for a mutually-agreeable way to settle disputes.

Social groups who first used third parties to settle disputes were agreeing to give up “going to war” as a way to settle a dispute.  By agreeing to third parties’ decisions, violence was often avoided, and vendettas and ambushes, with their resultant continuation of the hostilities, avoided.

I trust that this clarification will be perceived as simple common sense by those who might question the role of the jury—or any other conflict resolution mechanism—used in a free society.


Did You Know: Juries are a Bastion of Common Law?

Juries are a bastion of Common Law.  Governments, whether kings or politicians, are always trying to figure out ways to take away the right to make decisions based on conscience, and to make people give up conscience and obey the government.  Jurors are a tough sell when anyone tries to get them to give up justice and to be obedient servants of government.  And jurors shouldn’t give up their conscience, because then they also give up their integrity and their independent thinking.

Yes, it is true that jurors are terribly underpaid compared to all the other players in the courtroom.  Look who is not giving up their salary for that day: no one expects judges, bailiffs, clerks, or lawyers to come to the courtroom and work for $6 to $20 per day, so why does the government threaten jurors unless they do this?

Further, compare the salaries of these private working jurors with those of the government employees: most of those called for jury duty make about half as much as those government employees in the courtroom.

Most politicians are lawyers, and therefore have no interest in raising the pay of jurors, strengthening the concept of juries or jury service. Politicians have no interest in mere housekeeping that protects the human rights of the individual, you see.

Yet, if a juror does not show up when summoned, giving up their day’s wages, they can be fined, jailed, and maybe even worse, if they resist.

Government employees have a vested interest in removing as much authority and power from juries as possible; in making jury service demeaning, difficult, financially devastating, and misdirected. Most lawyers and government employees are building a power base, not serving justice.  Jurors can serve justice.

When I say jurors are misdirected, I mean that judges routinely tell jurors that they must follow the law as the judge gives it to them, although jurors have the absolute authority and right to set aside bad laws, as they did during slavery, prohibition, and war protests.

If someone does not show up for jury duty, and refuses to pay the fine, they can be jailed.  If they resist being held in captivity, they may be tasered, or perhaps killed, all in the name of protecting the authority of government.

While every person on trial needs to have a jury trial to protect their rights from government judges and prosecutors, it is difficult on the jurors when they are under duress, financial hardship, and deceitful instructions and demeaning treatment by government employees.  Why is this so?  What is the incentive for government to treat jurors this way?

Jurors should be paid the same daily rate as the highest-paid judge in the land.  They are that integral to human rights and justice. 12 jurors are paid less per day, as a group, than one judge makes in one day.  Think about it. The thin reed of “budget considerations” is hardly valid given the the fallacy of such a defense in light of the daily payment rates of the government-employed players in the courtroom.

What is the official reason of record that governments don’t start a fund to pay jurors a proper fee? Funds could come from some of the salaries of politicians, judges, prosecutors, and other government employees. Make jury service pay what it is worth, as the last refuge of justice.  Couldn’t government take part of the salaries of some of Michelle Obama’s many highly-paid assistants, and part of the salaries of IRS, DEA, and BATF attorneys, to build a nice juror payment fund?