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Chapter 3

Judging the Law


WHEN a legislative bill is brought to Congress, the House of Representatives and Senate develop their own versions of the bill. Conferees of the House and Senate then meet to iron out differences, before the bill is voted by each chamber of Congress. After passage, the bill becomes law only when the President signs it. If the bill is vetoed by the President, it can become law should a two-thirds vote override the President’s veto. Once voted into law, most citizens accept that the law is binding. However, until that law is tested in the legal system, its actual iterpretation and application is not certain. In many cases, it is the Supreme Court that decides the application of the law, and from its opinion there is no further recourse. The Supreme Court may even find the law unconstitutional.

Often, the law’s interpretation is determined as much by legal precedents as by the wording of the bill as it was signed into law by the President. Of course the legal system itself seeks to offer some safeguards, by providing levels of appeal including state appeals courts, federal appeals courts, and ultimately the Supreme Court of the United States. It is believed by most that the final test of a law resides with the Supreme Court of the United States. Once this court of nine Presidential appointees, confirmed by the Senate, has made its majority decision, there is no further court of appeal. The lower courts are expected to adjudge consistent with the law as defined by the Supreme Court. To invest such power to reside in nine persons, no matter how well qualified or experienced they may be, is more than any nation should permit. In effect it would mean that a simple majority of five Supreme Court Justices, in a nation of over a quarter of a billion citizens, can decide the final meaning of the law. The fact that these justices are political appointees is cause for further concern.

The founders of the American nation understood this, and with unusual wisdom, made provision for the citizens of a nation to overturn even the decisions of the Supreme Court. But almost forgotten by the general public, has been the careful way in which these men sought to provide for its citizens to overrule any law, though it was voted by Congress, signed by the President and defined by the Supreme Court of the United States. In 1789, Thomas Jefferson warned that the judiciary must not be given too much power, or it would jeopardize the Republic.

The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury. Citizen’s Rulebook, p. 20

Indeed, it was the belief of the early leaders of the United States that the juries, not the Supreme Court, were to be the final arbiters of just and good laws. Such beliefs were enshrined in the following words:

The jury has a right to judge both the law as well as the facts in controversy. ( John Jay, First Chief Justice of the U. S. Supreme Court, 1789)

The jury has a right to determine both the law and the facts. (Samuel Chase, U.S. Supreme Court Justice, 1796, and one of the signatories of the Declaration of Independence).

The jury has the power to bring a verdict in the teeth of both law and fact. (Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902, considered one of the great justices of the Supreme Court)

The law itself is on trial quite as much as the cause which is to be decided. (Harlan F. Stern, 12th Chief Justice of the United States Supreme Court, 1941)

The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge. United States versus Daugherty, 1972

The jury gets its understanding as to the arrangement in the legal system from more than one voice. There is a formal communication from the "judge." There is informal communication from the total culture—literature, current comment, conversation; and, of course, history and tradition. Cited from Daugherty, 1972

(All statements cited from Citizen’s Rulebook, pp. 6, 12)

Most juries are unaware that their responsibility is not only to judge the accused, but to judge the law under which the accused is being tried. Jurors will never fulfill their responsibility as the final arbiters of the law until they are made aware of this responsibility. It should be the required responsibility of the court to instruct all empaneled jurists verbally, and in writing, of their responsibility to judge the law as well as the accused. Further, it should be illegal for a judge to instruct a jury that it must judge guilt or innocence solely on the basis of the applicable law. Juries have the power to effectively negate a bad law, even if it has been sustained by the Supreme Court of the United States. Herein lies the ultimacy of liberty. If jurors throughout the nations are willing to vote down consistently bad law, bringing in verdicts of not guilty when the statutes that have been passed are oppressive, or inimical to the Constitution, the statutes will become wholly ineffective and will be overthrown by precedent.

In the case recorded in chapter 1, entitled "Divine Rights and Human Responsibilities," concerning the young William Penn, the facts of the case were not in question. William Penn had clearly violated the Conventicle Act by preaching without permission of the Church of England, and by preaching doctrines that differed from the teachings of that Church. Had the four jurors, who suffered so much for their convictions, judged the case strictly according to the law, William Penn would have been found guilty. He would have been sent to jail and very probably executed. But these jurors of the seventeenth century recognized that they had no right to find a man guilty on the basis of an unjust law.

William Penn had not breached the freedom of another person. He had not injured anyone. He had not spoken slanderously of another person. He had not appropriated to himself property or goods that belonged to others. In every way, he was a man of upright character and Christian fidelity. The law that he had broken was unjust. The government had dared to enact a law in relation to the first four commandments of God, a right that God has not bestowed upon any government today. By the courage of the four dissenting jurors, that unjust law was overthrown and the liberty of the religious dissenters in Great Britain was secured. It is to protect men against unjust laws, that every effort should be made to require the justice system to place within the hands of jurors, information that would explain to them not only their right and their obligation to judge the matter of which the accused is charged; but also the law by which the accused is brought to trial. Such instruction would not bring anarchy, rather it would ensure the highest level of justice, and protect citizen rights.

Judges should be instructed that under no circumstances are they to admonish the jury to judge the case according to the law alone. Indeed, it is appropriate for every jury to evaluate the fairness of the law itself, before determining the guilt or innocence of the accused. The jurors in this sense have power in excess of governments and judiciaries at all levels. Ultimately the jury is the judge, not the judge appointed to the trial. Surely this is the only way to ensure the likelihood that justice will be done.

Thus the jury are not to believe that their decision must be based only upon the evidence that is placed before them in the court room. Often evidence is incomplete. Often it is manipulated and even erroneous. It is the jury’s responsibility to the very best of its God-given abilities to evaluate the cases according to its own best collective judgment.

The prosecutor may, with great skill and ability, overshadow the quality of a defense counsel, especially in the case of an appointed public defender. But it is the jury’s duty to seek the best interest of the accused. We recognize that in many cases the accused is guilty of a felony, far beyond any reasonable doubt. Juries should administer appropriate justice in such cases. A guilty vote is just as important as a not guilty vote, for the jury has an obligation to society as well as to the accused. But ever must the members of the jury be alert to the possibility of wrongful arrest, and of an unjust law.

Even a casual review of the justice system of the United States reveals that frequently, prosecutors and judges are more interested in the niceties of complex points of law than they are in the provision of justice for the accused. Often, convictions or acquittals are decided, not on the facts of the case but on the technicalities of the law. The juror, being untrained in the fine points of law, has the opportunity to make a decision upon the clearest common sense principles. No criminal should go unpunished because of the niceties of fine legal points, and neither should an innocent man be convicted because of poor legal counsel or because of polished prosecution arguments.

In matters of ecclesiastical authority, the same principle must pertain. Protestant churches have always seen the membership as the final arbiter of faith and practice. That is the reason why, in most churches, the final arbiter of church discipline is the church business meeting, where every member in regular standing is able to hear the case against the one brought for church discipline and decide the fate of that individual within the religious sphere. Unfortunately, unlike a court of law, where a unanimous verdict is necessary before discipline is taken, in most churches a simple majority decision will decide church discipline. It becomes the prerogative of all members to make sure that every one accused has the opportunity to adequately present his defense and cross-examine his accusers before any decision is made. Frequently such natural justice is absent in ecclesiastical trials.

Most churches have church manuals, usually indicating the issues that call for church discipline. But it is essential that church members, like jurors in court, evaluate the validity of the article of discipline. Judgement must be made, not in the light of human reasoning or church manuals, but in the light of the Word of God. No church member is justified in voting for the discipline of a fellow member on the grounds of an unjust article of disfellowshipment. When a sufficient number of churches recognize this fact, unjust articles will become invalid. One matter is certain, the God of the Universe will judge all men with perfect justice.

It would be well if all Christian denominations discarded their church manuals and utilized the only valid church manual—the Holy Scriptures. Injustices done would be less frequent if such served as the basis for discipline and order in all churches.

The trial of Christ before the Sanhedrin where He was accused both of Sabbath breaking and blaspheming God (John 5:18) should be instructive to every Christian. Christ had healed the lame man by the Pool of Bethesda on the holy Sabbath day, and had instructed him to—

Rise, take up thy bed, and walk. John 5:8

In this He had breached the Talmud, which was used as the humanly-developed code for discipline. The Talmud consisted of two books—the Mishna, which was a commentary upon the Old Testament and the Gemara, which was a commentary upon the Mishna. So far had the Jews accepted human judgment, that in the time of Christ parents were advised to teach their children Scripture before the age of five, the Mishna between the ages of five and twelve, and the Gemara after twelve years of age. Mary wisely confined Christ’s instruction to inspiration.

While Christ had acted contrary to human ecclesiastical enactments, He had most certainly faithfully kept the Sabbath day holy in accord with Scripture. After all, He was the Lord of the Sabbath (Mark 2:28).

His defense at His trial before the Sanhedrin (John 5:17–47) is instructive to all Christians and a stern warning to those who would substitute humanly devised church manuals in the place of Scripture, for Christians today are no wiser than the Jews were at the time of the First Advent. One matter is certain, the God of the Universe will judge all men with perfect justice.

And they sing the song of Moses the servant of God, and the song of the Lamb, saying, Great and marvellous are thy works, Lord God Almighty; just and true are thy ways, thou King of saints. Revelation 15:3

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