February 7, 1794 – The Supreme Court Decides Georgia v. Brailsford: An Endorsement for Jury Nullification?

The Seventh Amendment establishes the right to a trial by jury whenever the case is one that would have required a jury at common law. When a state is a party, the Supreme Court may be the court of original jurisdiction. During the 1790’s the U.S. Supreme Court impanelled juries at the beginning of every term, but has not done so for more than 200 years.  Although the Court is known to have presided over at least three jury trials, only one of them was ever reported: Georgia v. Brailsford (3 U.S. 1, 1794).

During the Revolutionary War, many states – Georgia included – enacted legislation to “sequester” debts owed to British creditors.  However, the 1783 Treaty of Paris ending the war provided in part:

Creditors on either Side shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted.”

Ex_E249_G73_1783_TP-235x300 

Once federal courts were created, foreign creditors hastened to bring suits. Samuel Brailsford was a British subject who was owed a bond dated 1774 by Georgia citizen James Spalding.  The State of Georgia claimed that Spalding rightfully owed the debt to the state, not to Brailsford, since it had sequestered the debts of all British creditors by statutes it passed before the Treaty of Peace.  In Georgia’s view, the state had replaced the British creditors.  

The Brailsford case presented two questions. First, when Georgia “sequestered” Brailsford’s debt, did the right to receive payment vest in the state? This was a matter of statutory interpretation.

Second, if it did vest in Georgia, was the state’s right to payment abrogated by the Treaty of Peace? This second question concerned the supremacy of treaties and state sovereignty. Both the State of Georgia and Brailsford had stipulated all the facts, obviating a factual inquiry.

Nevertheless, because it was a common law action, the Supreme Court impanelled a jury despite there being no facts to determine. But then, this was no ordinary jury. In the 17th and 18th centuries, it was a recognized practice of common law courts to impanel “special” juries in complex cases or cases that involved specialized mercantile knowledge or expertise. Such juries were composed entirely of experienced businessmen rather than citizens chosen at random. In a sense, they acted as a panel of expert witnesses as well as the jury’s traditional role of fact finder.

Chief Justice John Jay, portrait by Gilbert Stuart

Chief Justice John Jay, portrait by Gilbert Stuart

The report of the case includes the instructions given to the jury by Chief Justice John Jay on the distinction between law and fact:

It may not be amiss, here, Gentlemen, to remind you 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. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”

It seems as if Jay were telling the jurors that they should respect the legal opinion of the judges, but that they were not bound by those opinions! These words have been considered by some scholars as the foundation of the jury’s right to “nullify,” i.e., to ignore the court’s instructions.

Other scholars contend that such interpretations ignore the context of the case and of the time. In the mid-18th Century, Lord Mansfield, Chief Justice of King’s Bench in England, commonly used special juries of merchants to assist him in incorporating the law merchant into the common law, inviting the special merchant jurors to “call[] upon their own experience and knowledge in reaching their verdicts.” Furthermore, in late eighteenth-century America, a similar use of special juries of merchants was widespread and exerted a great influence over the development of post-revolutionary commercial law. [James Oldham, “The Origins of the Special Jury,” 50 U. Ch. L. Rev. 136 (1983); and James Oldham, “The History of the Special (Struck) Jury in the United States and Its Relation to Voir Dire Practices, the Reasonable Cross-Section Requirement, and Peremptory Challenges,” 6 Wm. & Mary Bill Rts. J. 623, 1998.]

William Murray, 1st Earl of Mansfield

William Murray, 1st Earl of Mansfield

[Interestingly, special juries are still sometimes used, even in this day and age of expert witnesses. Oldham also discusses the issue of whether “the standards for the admissibility of expert testimony require upward adjustment because of the supposed greater capabilities of the special jurors.” (Ibid, p. 661.)]

In any event, not only this Supreme Court case, but some statements made by Founding Fathers show an early belief in jury nullification at least in some circumstances. For example, John Adams said of the juror:

…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.” (cited in Yale Law Journal, 1964:173.)

Portrait of Adams by John Trumbull, 1792–93

Portrait of Adams by John Trumbull, 1792–93

A century after Brailsford, however, in Sparf v. United States (156 U.S. 51, 1895), the Supreme Court held that the constitutional right to jury trial does not give a jury the right to decide questions of law or to reject the law as presented to it by the court.

There are also scholars – especially those labeling themselves as “originalists,” who maintain that, because Founding-era juries had the right to nullify, the right was implicit in the constitutional meaning of jury, and should be restored. They contend that Sparf should be overruled.

But if in fact the instructions issued in Georgia v. Brailsford are seen more as an outline to guide experts, as was clearly the case in its historical context, Chief Justice Jay’s comments appear to be not so much advocacy of jury nullification as deferral to recognized expertise. 

Moreover, an article by Jonathan Bressler, former law clerk to Justice Stephen Breyer, argues convincingly that a proper construction of the Fourteenth Amendment eliminates any power to nullify that may have existed during the Founding Era.  Bressler observes:

…the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury’s historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.” (Jonathan Bressler, “Reconstruction and the Transformation of Jury Nullification,” U. Chicago Law Review Volume 78 Fall 2011 Number 4)

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