Juries Used To Rules Against Unjust Laws, Like The Fugitive Slave Law and Salem Witch Trials. What Changed? Foundations of Freedom Thursday: It’s Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering your questions from constitutional principles! Tune in today as we answer your questions such as the importance of jury duty, how courts have changed over the years, and so much more, right here on WallBuilders Live!  

Air Date: 11/16/2017


Guests: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast.  However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

President Thomas Jefferson Quote:

President Thomas Jefferson said, “€œI know no safe depository of the ultimate powers of society, but the people themselves and if we think them not enlightened enough to exercise their control with a wholesome discretion the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of Constitutional power.”€

Faith And The Culture

Rick:

You”€™ve found your way to the intersection of faith and the culture. Welcome to WallBuildersLive where we’re talking about today’s hottest topics on policy, faith, and the culture. All of it from a Biblical, historical, and Constitutional perspective. The emphasis is on that today because it’s Foundations of Freedom Thursday where we take your questions and we toss them to David and Tim Barton.

We’re here with David Barton, America’s premier historian and the founder of WallBuilders. Also, Tim Barton, national speaker, pastor, and president of WallBuilders. And my name is Rick Green, I’m a former Texas state legislator.

For more of our programs and also just a lot of other great information, be sure to visit our websites today. WallBuildersLive.com – it has a list of all of our stations, it”€™s got archives of the program over the last few weeks.  And then also WallBuilders.com, our main website where you can get a lot of great resources for yourself, for your family, for your Sunday school class. There’s a lot of great things. You can share DVDs, and books, and videos. A lot of great tools will equip you.  They’ll inspire you, they’ll educate you, and help you to be a better citizen and help preserve freedom for the future of our country.

It’s like I said, Foundations of Freedom Thursday.  So, guys, we’ve got a lot of great questions! David, Tim, you all ready for some of these?

David:

You bet – fire away.

Question From Judy On Jury Duty

Rick:

Alright, first one is going to be on jury duty and it actually comes from a listener named Judy. She says, “€œIn the past, I’ve been called for jury duty, but was unable to serve due to personal commitments. I must admit I was very nervous to serve because I worry about how things are done in our justice system today and what my rights are on the jury. Deciding the fate of someone’s life is no small thing to me and I want to know all that I can to better serve the public’s interest, and of course, the interest of the accused. So I was wondering if you guys could do a show on juries – the history of juries and our rights as jurors today.

“€œAlso what can we as citizens do to improve or change back to a better system of serving justice? Are there any books available that target this issue? And, by the way, I love your programs especially Good News Friday. Thanks so much, From Judy.”€

So guys, great question for Foundations of Freedom Thursday – the role of juries today compared to in the past. And then, once we answer that, let’s talk about what folks can do to help restore some of the importance of juries and the role that they can play.

Judicial System

David

Well, let’s start with a couple points first before we do juries or anything else.  Let”€™s just go to the judicial system, or the justice system even better than judicial system. What is the purpose of the justice system? And the answer is to secure justice.

Now, there’s a lot of ways to subvert justice and some of it is through the use of law. We often see times that laws are applied in ways they were not intended.  They’re misinterpreted, and as a result, they’ve become oppressive and tyrannical even though they had good intent at their beginning.

Remember, Jesus even talked about that with the Sabbath because it got to where the Sabbath, to His day, He’s not allowed to heal on the Sabbath, and He can’t help on the Sabbath. He said, “€œGuys, man wasn’t made to serve the Sabbath.  The Sabbath was made to serve man. I mean, man is the big deal here and you’ve made the Sabbath the big deal.”€ And so they had taken the law and gotten it to where it was being unjust – it was not accomplishing the ends that they wanted.

And so when you look at the justice system, the first thing you want is justice. So if you take a jury, and you look at a jury, the thing that you should always want from a jury is justice.  You get a just and right decision.

What if that decision contradicts the law? Well, the law is wrong.  You’re always after justice. And so that’s why you literally had juries — and this goes back to the British system under the British system coming to America — you had juries early on because that allowed the common people to decide justice.

Often it was the wealthy landowner, the noble, or the Lord who wanted his end and now, you have the common people have the say. You know what, that noble or landowner might think that he owns everything, but he doesn’t.  And here’s the common people.

And so Justice is what you were after and that’s why you always had a jury of your peers. Now, there are examples also in the Bible where that the elders would sit and rule and you would have this jury of peers to make decisions. And when Achan in Joshua 7, the people sat in judgment of that decision and so the people were involved in this thing and what you’re after is getting the right objective, the right end.

Justice Is The Goal

And so from that standpoint, if you take the American experience and back up to someone like a William Penn — William Penn, who is the founder of Pennsylvania, was in Great Britain.  And in Great Britain, you had a state-established church.  That state established church was the Anglican Church.

Now, it’s wrong to have a state-established church.  But they did and the state established church said since we are Anglican everyone in Great Britain will attend an Anglican church – period – end of story. You don’t get to choose your church.  The government will tell you what church to go to.

Well, William Penn says, “€œNo, I’m going to the Quaker church which was an illegal church.”  So for going to the Quaker church they took and threw him in the Tower of London prison where he spent months in prison. He’s months in prison – why? For going to the wrong church.

Juries For Freedom Of Religion

So it gets brought before a jury.  And as it gets brought before the jury, the jury says, “€œYeah, the law says you have to go to an Anglican church, but that’s a lousy law. He should be able to choose the church that he wants to go to.  So we find William Penn innocent of this charge.”€

Well, the law was really clear.  But the jury was there to do justice – not to follow the law. And I’m not talking anarky.  If the law was unjust you set the law aside.

And so at that point —

Martin Luther King

Rick:

Yeah, in fact, it”€™s the whole unjust law that MLK writes about in the letter from the Birmingham jail he cites a lot of what you’re talking about right now.

David:

That’s right. That’s exactly right. And so what happened was the judge got mad and said, “€œHey, the law is really clear.”€ He ordered all the jurors to be thrown in jail.

Rick:

No way.

David:

All the jurors went to jail and he would not let them out of jail until they changed their decision. So —

Rick:

Oh, there”€™s no coercion there.

Juries Made The Decisions

David:

Well, again, you’re transgressing justice and finally, the higher courts got involved and ordered the judge to let the people out of jail and to uphold the decision of the jury. And what happened was, from the English time all the way up until about the 20th century, the jury was the judge.  The judge didn’t make decisions on cases.  The jury did.

The jury heard both attorneys argue all the facts.  Now, Rick, you’re an attorney.  You know that often now in trials the judge will send the jury out of the room and let the attorneys argue the facts in front of the judge and then bring the jury back in.

That never happened in those days.  Every single thing was said in front of the jury so that they got everything.  You didn’t exclude evidence.  You didn”€™t cut things out.  They got to see everything. They are the judge and their objective is to reach a just verdict.  So that’s when we called courts “€œCourts of Justice.”€  And that’s literally what we were looking for was justice.

Rick:

Yes. That’s when Justice was most important. And we changed our priorities and it changed our process and how we do this.

Quick break.  We’ll be right back. You”€™re listening to WallBuildersLive.

Quote:

Samuel Adams said, “€œThe liberties of our country and the freedoms of our civil Constitution are worth defending against all hazards and it is our duty to defend them against all attacks.

Moment From American History

This is Tim Barton from WallBuilders with another moment from American history. Founding Fathers John Adams and Thomas Jefferson originally worked closely together but later became ardent opponents.

This troubled Dr. Benjamin Rush, a signer of the Declaration, who knew both of them very well. In the Bible, Second Corinthians 5:18 tells us that God has given each of us the ministry of reconciliation. Dr. Rush believed this and set out to bring the two back together.

It took a while, but Adams and Jefferson once again became close friends. Looking back on his role in helping bring about this reconciliation Dr. Rush stated, “€œIt will give me pleasure as long as I live to reflect that. I have been in any degree instrumental in effecting this reunion of two souls destined to be dear to each other and motivated with the same dispositions to serve their country, though in different ways.”€

For more information about Dr. Benjamin Rush and his other remarkable achievements go to WallBuilders.com.

Quote:

Calvin Coolidge said, “€œThe more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”€

Juries Vs. The Letter Of The Law

Rick:

Welcome back. Thanks for staying with us here on WallBuildersLive. It’s Foundations of Freedom Thursday.  Our question today, so far, has been the one on juries. And David, you were just talking about the role that we went even just in a court system from courts of justice to really losing that as the focus and it became much more focused on just the letter of the law.

Tim:

Well, and guys let me interject one thought too because as we were going to break, dad, you mentioned that really the jury was a judge.  Obviously, the people in the context of the conversation know exactly what that means – that the juries are the ones that really are dispensing justice in this case, that the judge was more of a facilitator to allow the jury to hear the facts so they could dispense justice.

Today the courts are really going a different direction where now, the judge is the one that really almost single-handedly micro-manages and does so much and if the jury doesn’t say what he wants…  And, I mean, it’s such a different feel than what it used to be.

But it used to be that the reason we had a jury, the reason jury existed and was there, was to dispense justice.  If the law was unjust, they said, “€œNo, that’s not right.”€ Then, you know, William Penn should not be in jail because he’s a Quaker.  You don’t like Quakers, that’s not a justification to throw them in jail.  The jury had the authority at that time and that’s why it frustrated the judge so much.  How dare you say that the king might be wrong in this situation?  You’re going to jail. Well, the judge is the facilitator.  But the jury was the one dispensing justice in these situations.

Witch Trials

David:

And they did a lot of other times as well. When you go into the American experience, now American being still colonial America, come over to the 1690″€™s in New England.  We were definitely British colonies and we have the witch trials that get started. And so the witch trials–

Tim:

Specifically, the Salem Witch Trials.

David:

Salem Witch Trials, 1691-1692 about 18 months, thereabouts, and they get started.  And over the course of those proceedings, there are about 27 people that are killed in those proceedings – put to death, or they die in jail or commit suicide from charges or whatever. And three Christian leaders Reverend Increase Mather, Reverend John Wise, and then Thomas Bridle step up.  They go to the governor and say, “€œLook, the way these courts are being run, this violates Biblical principles of justice.”€

And they go through and lay out several things that we would call due process rights – that you don’t accept hearsay testimony, that you get to confront your accusers.  All these things that are common for us today, but that was radical back then.  It was not being done in the British system.

Juries Stood Up To The Judges

And so at that point in time, the governor, Phips, had Judge Sewell stop those trials supposedly.  But some of the trials kept going.  There was one judge particular that just had a phobia on this and would not let go of it. And so he continued the trials and he was ordering the jury to find these people guilty.  Find them guilty of witchcraft.  The jury just flat refused – would not do it.  They told him no.

And so the jury on several occasions there in those latter stages, after these Christian leaders had weighed in and said, “€œThis is wrong.  This is being done wrong.  It’s not justice being done.”€ The jury stood up to the judge and said, “€œNo, you make orders to convict them just as the British court did in the case of William Penn.”  

But they said, “€œWe’re not doing that.  It is wrong.”€  And so the jury decision stood.

Then they should move forward about 160 years.  You get to a law in 1850 called the fugitive slave law. And the fugitive slave law was passed by a Democrat packed Congress that was very pro-slavery.  Their platform was extremely pro-slavery, and they are really coercing slavery across the United States in many ways. Where it had been forbidden in territories, they’re reversing that making it permissible in territories.

Fugitive Slave Law Passed By Democratic Congress

And so part of what they did is that, you know, since the Constitution outlawed the importation of slaves, “We”€™re having trouble getting enough slaves in the South and especially with slaves escaping to the north to be free.  We got to have a way to get them back to the south.”

And so the fugitive slave law allowed — let’s say Tim”€™s a slave owner from Kentucky.  Let’s say I am black and I’m living in Boston and have lived there my whole life.  I’ve always been a free black and Tim walks into town.  He’s never seen me before.  But he points to me because I’m a black guy and he says, “€œYou used to be my slave.”€

Under the fugitive slave law, federal law, simply because he charged me with being his former slave, a runaway slave, at that point, I lose my right to trial by jury.  I lose my right to have an attorney represent me.  And I lose my right to habeas corpus, which means they can throw me in jail and keep me there, and not let me out until they get ready to.  All of that simply because Tim made the charge.

That’s the way it had been back in the British system.  So what happened was, under the fugitive slave law, it would come before the judge.  And, by the way, the judge by the law was paid ten dollars if he ruled that I actually had been Tim’s former slave and was paid only five dollars if he turned me loose.

Rick:

So he’s got an incentive.

David:

He’s got an incentive. Well, juries stood up against that and juries all over the north refused to convict people under the fugitive slave law.  The jury said, “€œThat’s a bad law.  That’s a stinking law.  The judges are wrong, and we’re not letting this happen.”€ And so the jury stood up against the judges and all sorts of blacks were not returned because the juries stood for what’s right. So this is what we call them Courts of Justice.

But in the 1890s a change happened and they were no longer courts of justice.

Rick:

All right, quick break.  We’ll be right back. We’ll find out what happens. Stay with us.  You’re listening to WallBuildersLive.

Quote:

Thomas Jefferson said, “€œThe constitutions of most our states, and of the United States, assert that all power is inherent in the people and that they exercise it by themselves. That it is their right and duty to be at all times armed, and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”€

Pastors Only Briefing Trip

Tim:

Hi, this is Tim Barton with WallBuilders and I want to encourage all the pastors out there with a unique opportunity that we’re presenting it WallBuilders. We’re doing a special tour just for pastors that you can come and learn more about the spiritual heritage of our nation. Not just seeing the sights but understanding the significance of what they are and what they represent.

We get to go to the Capitol at night.  And we get to see the spiritual heritage of our Founding Fathers, of who we are as a nation, where we came from. We bring in congressman that will tell you about current legislation, about our religious liberties and freedom, and what’s going on in Washington, D.C.

If you’re a pastor or if you want to recommend your pastor for this trip, you can go to our website at www.WallBuilders.com. And there’s a link that’s for scheduling.  If you click on that link there’s a section for pastor”€™s briefing. There’s more information about the dates, when it’s going, and how it’s going to happen. If you want to know more about our nation, our religious liberties, our freedom, our spiritual heritage, this is a trip you want to be a part of.

Quote:

President Calvin Coolidge said, “€œThe more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever recorded to the human race.”€

Juries Used To Rules Against Unjust Laws.  What Changed?

Rick:

Thanks for staying with us on this Foundations of Freedom Thursday. We’re learning about juries and the change in our entire justice system. And just as we were going to break, David, you said it was, what, 1890 when a major change came about from courts of justice?

David:

Yeah, I think it’s 1894-1895.  And by the way, the Constitution talks about the facts and the law and juries were to decide both the facts and the law. In other words, they decided whether the law was good or not and then they looked at the facts to see if it violated the law.

So what would have happened in an American jury”€¦  Daniel, of the Bible, is brought before them and the law says, “€œDaniel, you can’t pray to any god except Nebuchadnezzar.  You did, so we”€™re throwing you to the lion’s den.”€

Well, the American jury would have said, “€œWait a minute.  Let’s look at the law.  Oh, that’s a bad law.  You can’t tell people they can only pray to Nebuchadnezzar.  They pray how they want.”€

And so the case of Daniel would have been instantly dismissed because the jury found that the law was a bad law.  They didn’t have to go looking at the facts because, by the facts, clearly Daniel had violated the written law.  That the law of the Medes and Persians, that the king’s law had written.  But they didn’t even care whether he had broken the law.  The first question was whether the law was any good or not and so that’s what juries did.

Now, what happened, is you get into westward expansion after the Civil War, particularly the huge land barons of the monopoly corporations etc.  They start taking so much land and grabbing land from the Indians etc.  As these cases go to court, the juries keep ruling against these monster land barons, against these monopolies. Of course, the land barons don’t like that.  And they don’t like not being able to do what they want to do and take all the land they can grab.

Court Of Appeals

So they started lobbying Congress and told Congress, “€œYou need to get these juries under control.”€ And given plenty of money to Congress, Congress came up with the court of appeal system.  That’s the first time we have the court of appeal system, late 1800s, because the jury was the final court and there was no court of appeals. The Founding Fathers considered it an impeachable offense if a judge overturned a jury”€™s decision. I mean, that’s how serious they were on upholding the decision of the jury.

Well, now you’ve got a court of appeals.  So if you don’t like the jury’s decision we”€™ll appeal it to some judges and the judges will decide whether the jury was right or not. And so then you have, shortly after that, the Supreme Court issued a decision called the sparf decision in which they said, “€œStarting right now, we’re not going to let juries look at the law anymore.  They can only look at the facts.  We judges will tell you what the law says.  And the law clearly says Daniel can’t pray to anyone except the king.  So he violated the law.”€

Court Of Law

And so what happened was, that’s where we changed from Courts of Justice to Courts of Law. Law was it.  And we the judges will tell you what the law is and what it means.  All you juries can decide is what the facts are.  Justice is not the issue anymore.

So it stayed that until we get into judicial activism of the 1960s.  And in the 1960s, as judges started implementing their own policies.  You can really look at 1962-63 as some of the greatest judicial activism when they said, “€œStarting now, no longer can you have voluntary prayer in public.  No longer can you have voluntary Bible reading for students.  You can’t even voluntarily do it.”€

And that was followed by the judicial activism of protecting the flag went down, abortion went down, prohibiting abortion.  All those things that judicial activism. So now, if you look up the definition of a court now there’s simply called a place to settle disputes.  

So it’s — the law is not even the issue because the law was that marriage is between a man and woman.  But the Supreme Court said, “€œWe’ll settle that dispute.  Marriage is between anybody that wants to have it,  Don’t care what the law says.”€ So the Supreme Court now regularly strikes down the law, so we went from Courts of Justice to Courts of Law, now to just Courts, that neither the law nor justice is the objective anymore.  We’re just going to end the dispute and tell you what we think and that’s going to be the law of the land. So that’s the third change and that’s where we are right now.

We’ll get back to juries and what you can do on a jury.

Rick:

Stay with us.  We”€™re going to take a quick break. Last segment, we’ll talk about how we could turn this around.  What you can currently do on a jury, and then how we can look at some national changes on this to get back to juries having that power the Founding Fathers envisioned. Stay with us.  You”€™re listening to WallBuildersLive.

Quote:

George Washington, “€œThe Constitution approaches nearer to perfection than any other government hitherto instituted among man.”€

Constitution Alive

Rick:

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But it gets frustrating because you don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. It’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders”€™ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution.  You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at WallBuilders.com.

Quote:

Abraham Lincoln said, “€œWe the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”€

Rick:

Welcome back to WallBuildersLive. Foundations of Freedom Thursday today.  And, by the way, more of these programs where we dive into these foundational questions are available on our website at WallBuildersLive.com and you can be the one to ask the questions to drive that conversation.  Send those questions into radio@wallbuilders.com.

Back with David and Tim now.  Guys, we were talking juries. We’ve talked about kind of the change from — let”€™s see, we started with courts of justice, to courts of law, to now just courts that settle disputes.  And so that driving desire for justice is no longer what the system we think it is. I mean, we still talk about the justice system, but our design is not working very well.

David:

It’s not working well.  But we can get back to design and this is where individual people can do it through juries. Thomas Jefferson said that a jury holds in their hands your life, and your reputation, and your possessions.  Literally, a jury can take away from your house, your land, your possessions, can take away your life, can take away your reputation.  All of that is in the hands of the jury. So, ask you guys, this is a question most people don’t know the answer to today.  What is the golden rule? Where did it come from?

Tim:

The Bible.

David:

Alright, that”€™s a start.

Tim:

So Matthew 7, Jesus said, “€œDo unto others as you would have them do unto you.”€

David:

Translated meaning what that —

Tim:

Treat people the way you want to be treated.

David:

Okay, so treat people the way you want to be treated. Jury Duty should be part of the Golden Rule. If you ever were called before a court, you would want people sitting on the jury that would protect your life, and your reputation, and your property. People today, Christians, have a real aversion.  I don’t want to serve on a jury.  I don’t want to make those”€¦  Man, we need commonsense thinking people on juries because there may come a day when you want some common sense people sitting on your jury. And so what you want to do is sow and reap.  You want to do the golden rule.

Any chance you get to get on a jury, you get on there and you take your common sense with you.  Say, “€œWait a minute guys, — in the jury room — this decision doesn’t make any sense.  That”€™s not the right thing.  We want to do the right thing here.”€

Christians Need To Register To Vote AND Serve On Juries

And so you take that in as a juror and you have influence.  Because in that jury — I’ve been a jury foreman before, been on juries.  You in that jury room you privately deliberate what’s going on in that case.  And you make a decision that will affect somebody’s life, or reputation, or property. So get on juries.  And people, well, I don’t want to register to vote because that will put me on jury duty list. Great – you need to vote and you need to be on jury.

Rick:

We need you there.

David:

We need you.  We need good people involved. And yes, this is a small thing, but you know what if you can just help turn one decision back toward justice. The law, don’t assume the law’s always right. My gosh, that’s why the Bible is filled with examples of civil disobedience because laws are often wrong.

Now, fortunately in America, we have a lot of good laws.  But we’ve got a lot of goofy laws as well. And so you want people in there with some common sense who can think about what is just, what is right.  Let’s do the right thing here, and can help lead other people in that direction.

So this is a huge, huge, issue. And by the way, I want to remind you what we’re told in 1 Corinthians 6 where Paul says, “€œDon”€™t you guys know that you’re going to judge the world?  You’re going to judge the angels.  Are you incompetent?  Able to judge smaller things in courts of law?”€

We need to get in practice for judgment because we’re going to be judged on it all someday according to the Bible. So looking for opportunity to be in juries and looking for opportunity to take them back to courts of justice is what every single citizen should be looking for.

Empower The Juries

Rick:

So you’re saying as an individual we have a chance to do it when we’re called.  Then also, we can encourage our legislators too. I mean, they have committees that consider legislation like this all the time.  So make the calls and encourage them to empower the juries. Once again, this is a great question.

Thank you so much for sending your questions in. You can send questions in any time – radio@wallbuilders.com.  And then on our Thursday programs, we do our best to get to as many of them as we can at Foundation of Freedom Thursday. Thanks for listening today to WallBuildersLive.

Quote:

Thomas Jefferson said, “€œThe Constitution of most of our states, and of the United States, assert that all power is inherent in the people that they may exercise it by themselves, that is their right and duty to be at all times armed, that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”€