Jury Nullification in Tax Resistance Trials

Refusal by juries to convict tax resisters or those associated with tax resistance movements can be a powerful check on government power. Today I will mention a small handful of such cases from tax resistance campaigns of the past.

Many successful applications of jury nullification never make the papers or the histories — this is because the government, seeing how the cards of public opinion are dealt, decides against bringing cases to trial because they fear the effect an innocent verdict would have.

The government might try transporting the defendants to a more sympathetic jurisdiction, or might hand-pick a “hanging jury” to insure conviction, but either of these tactics risks further alienating the people and bolstering the resisters’ arguments about the faithlessness and illegitimacy of the government and its taxes.

Governor Andros of Connecticut

For example, Governor Andros of colonial Connecticut put members of the Ipswich town meeting on trial after they refused to assess taxes the governor had tried to impose without the consent of the colonial Assembly. The trial was a sham — the jury was hand-picked by the prosecution and the judge referred to the defendants as “criminals” throughout the course of the trial, telling them they “must not think the privileges of English men would follow [them] to the end of the world.”

But they did think that, and threw that quote back in the faces of Andros and the judge in the case, when they revolted, overthrew the colonial government, and imprisoned the two of them.

The Whiskey Rebellion

During the Whiskey Rebellion, juries had no interest in indicting or convicting people for their refusal to pay the federal excise tax. Mary K. Bonsteel Tachau, in her paper “The Whiskey Rebellion in Kentucky: A Forgotten Episode of Civil Disobedience,” showed how effective this strategy was:

When they did meet, grand jurors seemed uninterested in charging anyone with anything. In fact, the only action taken by grand juries during the first four years was to approve the first census. Their inactivity implied that Kentucky was a notably law-abiding place.

Of course the judge, the marshal, the grand jurors, and everybody else in Kentucky knew that the internal revenue laws were being ignored. The Kentucky Gazette regularly published notices about the statutes, often accompanied by complaints and threats from Colonel [Thomas] Marshall. It is possible that the grand jurors felt justified in overlooking their obligation by attending strictly to the instructions that Judge [Harry] Innes gave them. He regularly delivered eloquent addresses describing the matters that came within their cognizance. Among those were such traditional offenses as treason, misprison of treason, forgery, interference with the processes of the courts, bribery, perjury, and so on. These were sometimes lengthy lists, but they had one obvious omission because violation of federal statutes was also within the grand jurors’ purview. As long as the judge overlooked such widespread evasion, the jurors evidently felt no obligation to take the initiative and bring charges against their neighbors.

Federal prosecutors could themselves bring charges for violation of the excise law to these grand juries, but none did. Indeed the federal government had difficulty even finding anyone to take the job of prosecutor. When, five and a half years after the excise tax went into effect, they finally found someone to take the job, it was a recent arrival from out of state, and they had “to furnish [him] with copies of the revenue statutes, because none were available in the commonwealth.”

Then the government finally was able to begin bringing charges against Whiskey Rebels. It thought it had won. Not so much:

During the remaining terms of court in , the federal marshal failed to convene grand juries, and [federal prosecutor] Clarke failed to file any informations [charges]. Clarke had run head-on against the power structure, and it was not about to submit tamely to an outsider. The agents that he had instructed to seize [Thomas] Jones’s stills were charged with trespass; the witnesses whom he had summoned to testify to the grand juries were denied compensation for their travel. Clarke complained to the treasury department, which initially sympathized with him, but it acknowledged that the judge was master in his own court.

Then, seven plus years after the widely-resisted excise tax came into effect, the government changed the rules: deciding that anyone who was a whiskey distiller would be banned from serving on the grand jury! One of the bottlenecks to prosecution had been broken through.

Yet as these cases came to trial, it became clear that the distillers did not have much to worry about. In an early grand jury address, Judge Innes had stated that “trials by jury… are the great bulwark which intervenes between the magistrate and the citizen,” and these petit jurors obviously saw themselves as that great bulwark. Whether the charges were initiated by Clarke or by revenue collectors or by grand juries made no difference: trial jurors regularly acquitted their neighbors of criminal charges. In Kentucky, violation of the revenue acts was simply not perceived as a crime. Not one of the fifty criminal charges brought during the four years of Clarke’s tenure resulted in conviction [emphasis mine –♇]. Default judgments were set aside, while other charges were abated by death, or quashed, dismissed, or discontinued. Seven cases went to trial, but the jurors found for the defendants every time, and the judge then ordered their accusers to pay the costs of the suits.

It was proving impossible to win convictions — and it is easy to see why. The law was held in utter contempt by the people the juries were being drawn from. Bonsteel Tachau notes, for instance, that “[i]n one term of court alone, five members of the jury panels were themselves defendants in cases brought by Clarke.”

The successful resistance by people in Kentucky against attempts to prosecute their neighbors for resistance to the federal excise tax continued until the the anti-tax movement could claim victory with the election of Thomas Jefferson as president, who promised to rescind the tax.

Karl Marx’s jury

When the royal and military aristocracy of Germany tried to shut down the country’s first popularly-elected legislature before they could enact a Constitution, the parliament responded by declaring the government out of business: “So long as the National Assembly is not at liberty to continue its sessions in Berlin, the Brandenburg cabinet has no right to dispose of government revenues and to collect taxes.”

Karl Marx, who was at the time editing a newspaper called the Neue Rheinische Zeitung, trumpeted the news, saying: “From today, therefore, taxes are abolished! It is high treason to pay taxes. Refusal to pay taxes is the primary duty of the citizen!”

The government took Marx to court for such incitements to rebellion, but this didn’t discourage him. Instead, Marx managed to persuade the jury that he’d been right all along. (Edmund Wilson, in whose book To The Finland Station I first learned about this case, writes that “the effect [of Marx’s defense] on the jury was so great that Marx was thanked on their behalf by the foreman for his ‘extremely informative speech.’”)

Marx wrote of the acquittal:

[T]he case turned only on the political question: whether the accused were authorised by the decision of the National Assembly on the refusal to pay taxes to call in this way for resistance to the state power, to organise an armed force against that of the state, and to have government authorities removed and appointed at their discretion.

After a very brief consultation, the jury answered this question in the affirmative.

The Rebecca Riots

During one of the tollgate demolishings that marked the Rebecca Riots in Wales, Sarah Williams, who was in charge of the toll house being destroyed, rushed back to try to save it from the flames. She was shot and killed, presumably by one of the Rebeccaites.

Colonel George Rice Trevor explains what happened next:

[A]n inquest was held… Two surgeons… gave evidence that on the body were marks of shot, some penetrating the nipple of left breast, on in the armpit of the same side, and several shot marks on both arms. Two shots were found in the left lung. In spite of all this evidence the jury found “that the deceased died from effution of blood into the chest [which] occasioned suffocation, but from what cause is to this jury unknown.” [emphasis mine –♇]

The inquest refusing to find the cause of death to be murder made it difficult to launch an investigation, make arrests, or begin a prosecution.