Posted on 02/18/2006 1:46:55 PM PST by freepatriot32
Here's a question for you: Can you get through 24 hours without breaking a law? Before you answer, consider:
In January, an Atlanta man was arrested and handcuffed for selling a subway token at face value. Donald Pirone observed another passenger having difficulty with a token vending machine, so he gave him a $1.75 token. After the man insisted on paying him, Pirone was cited by a transit officer for a misdemeanor, since state law prohibits selling tokens -- even at face value. A MARTA spokesperson denied that handcuffing a customer for helping another customer was excessive. "There are customer service phones for people who are having trouble getting tokens out of the machine," she said.
Meanwhile, in late 2005, an Ohio man spent three days in jail because he didn't put identification tags on his family's pet turtles and snakes. Terry Wilkins broke a state law requiring owners of native reptiles to tag them with a PIT (personal-integrated transponder). The tags, which are the size of a grain of rice and can be inserted under the animal's skin, contain a bar code readable by a scanner. Wilkins refused to tag the animals because he said PIT tags cause health problems in small reptiles.
It goes on. In Kentucky, Larry Casteel was arrested for not attending a parenting class for divorcing parents, as mandated by state law. He spent the night in jail. In New Jersey, police are giving tickets to people who leave their cars running for more than three minutes in store parking lots. Stopwatch-wielding police hit the offenders with a $200 fine for violating the state's anti-idling law. In northwest Georgia, 49 convenience store owners were arrested for selling legal products to customers. The owners -- mostly of Indian background -- sold cold medicine, baking soda, table salt, matches, and lantern fuel. Police said the ingredients could be used to make methamphetamine. In Burlington, Vermont, police are ticketing people for not removing keys from the ignition and locking their cars. Police said the state law prevents car thefts. Violators are fined $79.
So -- are you still sure you can get through a day without violating a law? If so, don't worry. Legislators are making more things illegal. In New York City, a city council member wants to make it a crime to ride a bike without a registration number tag. Violators would face up to 15 days imprisonment. In Illinois, a state senator wants to make it a crime not to have a carbon monoxide detector installed in your home. In Pennsylvania, a state senator filed a bill to allow police to fine drivers $75 if they don't clean snow off their car. In Virginia, a state legislator wants to make it illegal to show your underwear in public. Girls (or boys) with low-rider pants would get hit with a $50 fine if their thongs show.
Novelist Ayn Rand once wrote: "There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws."
Have we reached that point? Is it impossible to live without breaking laws? Before you answer, better check to make sure that your pets have transponder tags, that you didn't leave the keys in your car, and that your underwear is not showing.
Sources:
MARTA token: http://abcnews.go.com/US/print?id=1390140 Pet TIPs: http://www.ohio.com/mld/ohio/13309603.htm Parenting class: http://www.reason.com/brickbats/bb-2005.shtml NJ anti-idling law: http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20060108/LIVING/601080331/1004/LIVING&theme=
VT locked cars: http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20060108/LIVING/601080331/1004/LIVING&theme= Convenience store: http://www.iacfpa.org/p_news/nit/iacpa-archieve/2005/08/19/civil2-19082995.html NY bikes: http://ridl.us/phpBB2/viewtopic.php?p=4889&sid=7bad222acdd8dc2f133555e0e62b5f34 CO2 detector: http://www.pioneerlocal.com/cgi-bin/ppo-story/localnews/current/ba/01-19-06-807026.html PA snow: http://www.thenewspaper.com/news/08/874.asp VA underwear: http://www.timesdispatch.com/
[ 3 U.S. 1]
February Term, 1794.
ON the meeting of the Court, a commission was read, dated the 28th of January, 1794, appointing William Bradford, Esquire, Attorney-General of the United States.[1]
The STATE of GEORGIA, versus BRAILSFORD, et al.
his cause was now tried, by a special jury, upon an amicable issue, to ascertain , whether the debt due from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original creditors, under all the circumstances, which are set forth in the pleadings and arguments on the equity side of the Court? See 2 vol. Dall. Rep. 403, 415.
For the plaintiff, Ingersoll and Dallas, proposed two objects for enquiry: – 1. Was the debt due from Spalding, at any time the property of the State? – 2. Has the title of the State ceased, or been removed, and the right of action re-vested in the defendants?
1. On the first point, they contended, that Georgia as a sovereign State, had power to transfer the debt in question from the original creditor, an alien enemy, to herself, notwithstanding some of the debtors were citizens of another State; that by her confiscation law she had declared the intention to make the transfer; and that without an inquest of office, her intention had been carried into effect in due form, and according to [3 U.S. 1,2] law, as well in relation to her own citizens, as to the parties who were citizens of South Carolina. – In support of these several propositions the following authorities were cited: 1 H.Bl. 149. Vatt B. 3. c. 77. Lee on Capt. Bynk. B. 1. c. 7. Vatt. B. 3. c. 18. s. 295. Jenk. 121. Sir T. Park. 121. Plow. 243, 324. 1 H. Bl. 413. 2 Bl. Com. 405, 409. 2 Wood. 130. 4 B.. Com. 386. 1 Hal. P. C. 413. 3 Inst. 55. 1 Hawk. 68. 3 Bl. Com. 259. 3 T. Rep. 731, 2, 3, 4. 1 Woodes. 146. Cor. Car. 460. 16 Vin. Abr. 85. 6. 3 Bl. Com. 260. Park. 267. 1 P. Wm. 307. 1 Dail. Rep. 393. Hind. Ch. 129. 1 Vern. 58.
2. On the second point, it was urged, that although the word, “sequestration” was used in the Georgia law, yet, that the law directed the debt to be collected, in the same manner as debts confiscated, and to be put into the treasury, for the use of the state, until it should be otherwise appropriated; and that the state had never made any other appropriation; but, on the first opportunity, claimed it as a forfeiture. The election, therefore, to consider it as a confiscation, was reserved by the state to herself; and her subsequent conduct makes the reservation absolute. The exception of debts in the South-Carolina law cannot govern the case as to Powell & Hopton; for that law is only referred to for the manner and form, not for the subjects of confiscation. It only remains, therefore, to enquire, whether, independent of Georgia, the operation and existence of her law can be, and and has been, defeated and annulled. The peace merely does not effect the right of the state; for, the condition of things at the conclusion of the war is legitimate; and all things not mentioned in the treaty, are to remain as at the conclusion of it. The treaty of 1783 does not affect the right of the state; for, though it provides, generally, in the 4th article, that creditors, on either side, shall meet with no lawful impediment, in recovering their debts, this ought to be understood merely as a provision that the war, abstractedly considered, shall make no difference in the remedy, for the recovery of subsisting debts; that the remedy shall not be perplexed by instalment laws, pine-barren laws, bull laws, paper money laws, &c; but it does not decide, what are subsisting debts, which can only, indeed, be decided on the general principle of the law of nations. Laws of sequestration and confiscation, are not, however, the object of the 4th article of the treaty of peace; but of a subsequent article, in which Congress only promise (all, indeed, that they could do) to recommend to the states, revision and restitution. Debts discharged by law, where they originated, are every where discharged. Such is not only the doctrine of Georgia, but of the British Statesmen and Judges wherever the question has arisen. The Federal Constitution does not affect the right of the state; for, though [3 U.S. 3] it gives effect to the treaty of peace, it furnishes no rule for construing the meaning of the parties to that instrument. In relation to these arguments, the following authorities were cited: – State papers, Jefferson to Hammond, Hinde Ch. 127. 1 Br. Ch. 376. 3 Bac. Abr. 310. Caermarthen’s Memorial, American Museum, May 1787. 1 Hen. Bl. 123, 135. 3 T. Rep. 732. 1 H. Bl. 149. 2 Br. Ch. 11. 1 H. Bl. 146.
For the defendants, Bradford (the attorney-general) E. Tilghman and Lewis made the following points:–1st That the debts due to Powell & Hopton, had not been confiscated by the law of South-Carolina, and, therefore, were not confiscated by the words of reference in the law of Georgia; nor had Georgia a right to confiscate the property of the citizens of other states. 2d. That even if the law of Georgia had confiscated Brailford’s interest in the debt, the right to recover the two thirds belonging to Powell & Hopton was unimpaired. 3d. That the debt, as it respects Brailsford himself, is not confiscated, but sequestered; and that the sequestration had not been enforced by any inquest of office, seizure, or other act tantamount to an office or seizure. 4th. That the Peace alone, without any positive compact, restored the right of action to the original creditors. 5th. That without recourse to the general principle of the law of nations, the treaty expressly revives the right of action, by removing all legal impediments to the recovery of bona-fide debts, and the treaty is the supreme law of the land, by virtue of the Federal Constitution. In support of these propositions the following authorities were cited: – 3 Bac. 203. 2 Co. 67. 1 P. Wm. 307. Curs. Canc. 89. 1. Dom. Civ. L. 138, 147. Magna Carta. Sir T. Park. 267. 3 T. Rep. 734. Vatt. b. 4. c. 1. s. 8. ib. c. 2. s. 20. 22. Burn. Ec. L. 157. Carth. 148. Grot. b. 3. c. 20 s. 16. p. 700. 1 Dall. Rep. 233. 1 H. Bl. 123. 136. 2 Bro ch. 11. 1 Bl. c. 409. 240. Sir T. Raym. Saunf. 45. Plowd. 259. 3 Inst. 55. 1 Hawk. 68. State papers Bynk. b. 1. C. 7. 1 Ver. 58. Circular Letter of Congress.
The argument having continued for four days, the Chief Justice delivered the following charge on the 7th of February.
Jay, Chief Justice. This cause has been regarded as of great importance; and doubtless is is so. It has accordingly been treated by the Counsel with great learning, diligence and ability; and on your part it has been heard with particular attention. It is, therefore, unnecessary for me to follow the investigation over the extensive field into which it has been carried: you are now, if ever you can be, completely possessed of the merits of the cause. [3 U.S. 3,4]
The facts comprehended in the case, are agreed; the only point that remains, is to settle what is the law of the land arising from those facts; and on that point, it is proper, that the opinion of the court should be given. It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous: We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver.
We are then, Gentlemen, of opinion, that the debts due to Hopton & Powell (who were citizens of South-Carolina) were not confiscated by the statute of South-Carolina; the same being therein expressly excepted: That those debts were not confiscated by the statute of Georgia, for that statute enacts, with respect to Powell & Hopton, precisely the like, and no other, degree and extent of confiscation and forfeiture, with that of South-Carolina. Wherefore it cannot now be necessary to decide, how far one state may of right legislate relative to the personal rights of citizens of another state, not residing within their jurisdiction.
We are also of opinion, that the debts due to Brailsford, a British subject, residing in Great Britain, were by the statute of Georgia subjected, not to confiscation, but only to sequestration; and, therefore, that his right to recover them, revived at the peace, both by the law of nations and the treaty of peace.
The question of forfeiture in the case of joint obligees, being at present immaterial, need not now be decided.
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, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
Some stress has been laid on a consideration of the different situations of the parties to the cause; The State of Georgia, sues three private persons. But what is it to justice, how many, or how few; how high, or how low; how rich, or how poor; the contending parties may chance to be? Justice is indiscriminately due to all, without regard to numbers, wealth, or rank. Because to the State of Georgia, composed of many [3 U.S. 4,5] thousands of people, the litigated sum cannot be of great moment, you will not for this reason be justified, in deciding against her claim; if the money belongs to her, she ought to have it; but on the other hand, no consideration of the circumstances, or of the comparative insignificance of the defendant’s, can be a ground to deny them the advantage of a favourable verdict, if in justice they are entitled to it.
Go then, Gentlemen, from the bar without any impressions of favor or prejudice for the one party or the other; weigh well the merits of the case, and do on this, as you ought to do on every occasion, equal and impartial justice.
The jury having been absent some time, returned to the bar, and proposed the following questions to the court.
1. Did the act of the State of Georgia, completely vest the debts of Brailsford, Powell, & Hopton, in the State, at the time of passing the same?
2. If so, did the treaty of peace, or any other matter, revive the right of the defendants to the debt in controversy?
In answer to these questions, the CHIEF JUSTICE stated, that it was intended in the general charge of the court, to comprise their sentiments upon the points now suggested; but as the jury entertained a doubt, the enquiry was perfectly right. On the 1st question, he said it was the unanimous opinion of the judges, that the act of the State of Georgia did not vest the debts of Brailsford, Powell & Hopton, in the State at the time of passing it. On the 2nd question he said, that no sequestration divests the property in the thing sequestered; and, consequently, Brailsford, at the peace, and indeed, throughout the war, was the real owner of the debt. That it is true, the State of Georgia interposed with her legislative authority to prevent Brailsford’s recovering the debt while the war continued, but, that the mere restoration of peace, as well as the very terms of the treaty, revived the right of action to recover the debt, the property of which had never in fact or law been taken from the defendants: and that if it were otherwise, the sequestration would certainly remain a lawful impediment to the recovering of a bona fide debt, due to a British creditor, in direct opposition to the 4th article of the treaty.
After this explanation, the jury, without going again from the bar, returned a Verdict for the defendants.
1. Mr. Bradford was appointed in the room of Edmund Randolph, Esq. who had accepted the office of Secretary of State.
http://www.constitution.org/ussc/003-001.htm
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
Not a right. Not a duty. A power.
Color me corrected. Thanks for the info.
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969).
The "ability" to do it is because we have a "right" to do it. One has the ability to rape a woman. He has no right to do it. The power to nullify and have it beyond the courts power to overturn that decission makes it a right.
The duty, as you say, comes from a higher law.
Sparf v. United States, 156 U.S. 51, 64-65 (U.S. 1895)
-- -- --
She sold a screenplay and wrote 3 entire books complete with logic, examples, anecdotes, and rationale to destroy socialism, promote individualism, and promote capitalism. Her quotes are all over the Internet.
But the best you can do is muster a one-word invective.
So now......aren't you proud of yourself?
No, it doesn't. It's an anomaly of the jury system. It's like this only because mind-reading is impossible. And if mind-reading ever does become possible, juries will become obsolete anyway. Just because a court can't exercise control over something doesn't make it a "right."
The duty, as you say, comes from a higher law.
Precisely. The laws of the United States do not *allow* jury nullification, they are simply unable to prohibit it. That's a far cry from something worthy of being called a "right."
Unfortunately not, since the state can make it so that it costs more to contest a fine and win than it would have cost to simply pay it.
Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): "The jury has the power to bring a verdict in the teeth of both law and fact."
U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...."
U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has...."unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge."
BYRON WHITE (1975): The purpose of a jury is to guard against the exercise of arbitrary power--to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over
conditioned or biased response of a judge.
Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 155 (1968)): "A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."
Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."
Prior to Independence, many people were charged with violating tax laws, brought before American juries, and acquitted by jurors who despised the tax codes. For this reason, King George sought to avoid having such cases tried by American juries.
The ability of jurors to act as a check against unjust and unpopular laws is a big part of the reason the Constitution explicitly guarantees a right to a jury of one's peers. As mere fact-finders, I don't think they're necessarily any better than judges. Indeed, in some types of cases amateur juries are really not very good at fact-finding.
Suppose, for example, a doctor is accused of negligence for failing to perform some particular test. One expert witness says this test was widely recognized as appropriate for people in the plaintiff's condition; another expert witness testifies that because the test would impose some discomfort and hardship to the patient (not to mention expense) it was generally only considered necessary in patients who show some particular symptom which the patient did not exhibit. Both experts may be able to cite medical journals supporting their position; a jury's decision would likely be affected more by the speaking abilities of the witnesses than the actual merits of the case.
We disagree on the meaning of the words.
Right:
# Conforming with or conformable to justice, law, or morality: do the right thing and confess.
# In accordance with fact, reason, or truth; correct: the right answer.
# Fitting, proper, or appropriate: It is not right to leave the party without saying goodbye.
Power:
# The ability or capacity to perform or act effectively.
# A specific capacity, faculty, or aptitude. Often used in the plural: her powers of concentration.
# Strength or force exerted or capable of being exerted; might.
One has the power to rape and murder. The government can bring charges against him for those acts. One has the right as a juror to nullyfy and the right as a citizen to own property. The government cannot bring charges against him for those acts.
JOHN ADAMS (1771): It's not only ....(the juror's) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.
JOHN JAY (1794): The jury has a right to judge both the law as well as the fact in controversy.
SAMUEL CHASE (1804): The jury has the right to determine both the law and the facts.
The reason for having juries is to act a a hedge against the government's power.
Unfortunately not, since the state can make it so that it costs more to contest a fine and win than it would have cost to simply pay it.
###
Very true. One has to pick his battles. However, if more people knew they had the power to nullify these stupid laws, more would be overturned.
And it behooves you to read that sentence in context.
The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found, and he can do the same none the less when the facts are agreed. If the facts are agreed the judge may state that fact also, and when there is no dispute he may say so although there has been no formal agreement. Perhaps there was a regrettable peremptoriness of tone -- but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts -- and that is all there was left for them after the defendant and his witnesses took the stand. If the defendant suffered any wrong it was purely formal since, as we have said, on the facts admitted there was no doubt of his guilt.
As for Dougherty, check the pinpoint cite a bit more closely. You're citing a dissent at the Supreme Court level.
Your citation of Dougherty at the appellate level makes no mention of a "right," but refers, yet again, to a "power."
Your White quotations deal with findings of fact. They speaks of overzealous prosecutors and judges, not mistaken legislators. Therefore, they have nothing to do with jury nullification.
Once again, a jury's ability to acquit based on disagreement with the law is not specifically sanctioned by the law. It is a by-product of the jury system.
I have one near certain way to tell if someone REALLY wants a law against some (usually) trivial percieved transgression or other. Do you mind, if in the course of enforcing this law that a law enforcement officer lawfully kills the offender as he or she resists him? I am aware that as a matter of law that an officer is legally justified in using deadly force against a suspect only when he or she is in reasonable apprehension of death or serious bodily harm from the suspects actions, justifying immediate deadly force. Nonetheless, I would feel pretty bad if the reason that the killing came about is because some petty tyrant on the city council arm twisted his peers to illegalize the wearing of baseball caps on Sundays. I have found this question a pretty reliable indicator of someone's true feelings about a law.
As a LEO in Chicago, I have had innumerable dust-ups which ensued over enforcing some petty ordinance. I do feel that some petty ordinances such as disturbing the peace and disorderly conduct (as they impinge upon public order and other persons enjoyment of the public and private realms) ARE worth the possibility of such grim outcomes, but 50-60% of these idiotic laws are not.
As for those quotes, provide citations, please.
Is this that "Living Constitution" I've been hearing about? Look around this thread and you'll find plenty of authority explicitly refuting this.
As mere fact-finders, I don't think they're necessarily any better than judges. Indeed, in some types of cases amateur juries are really not very good at fact-finding.
If a jury screws this up, it's the fault of the lawyer whose side they found against. But when it comes to simply determining whether a person is lying about where he was and what he saw, a jury is the best BS detector you're going to find.
How is something beyond the power of the full force of government different from an inalienable right?
The most commonly accepted definition of right(n) is "a just claim." And in the context of the law, "just" = "legal."
###
My point exactly. If it were illegal to nulify jurors could be charged for doing it. They have a just claim to the power, it is legal, it is a right.
It isn't an inalienable right for the same reason that committing any crime isn't an inalienable right. Jury nullification simply can not be prevented. Saying that this makes it an "inalienable right" follows the same logic as "you didn't break the law if you didn't get caught."
If I murder someone and get away with it, in spite of the efforts of the law enforcement agencies assigned to the case, that doesn't mean that I had a "right" to do whatever I did.
Reality check, by the way: this entire thing is academic anyway since we both seem to admit that jury nullification can't be prevented.
Yep, Cheney shot a Republican lawyer and his approval ratings jumped 85% overnight!!!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.