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Copyright (c) 2004 The John Marshall Law School
The John Marshall Law Review


Winter, 2004

37 J. Marshall L. Rev. 325


William E. Nelson*


There is a famous sentence in Marbury v. Madison, 1 where Chief Justice John Marshall wrote, "It is emphatically the province and duty of the judicial department to say what the law is." 2 My plan for this Article is to rip Marshall's sentence out of the context of Marbury and judicial review and to examine it instead in the context of the turn-of-the-century effort by mainly Federalist judges to seize from juries the power to find law. I will suggest that John Marshall played a significant role in that effort. After doing that, I will return to Marbury and ask more generally how the judiciary's seizure of lawfinding power from juries might have been related to the contemporaneously emerging doctrine of judicial review.

I. The Lawfinding Power of Eighteenth-Century Juries
In mid-eighteenth-century British North America, juries determined law as well as fact in the cases that came before them. 3 They were free to ignore judges' instructions on the law, for it was "not only [every juror's] right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho [sic] in Direct opposition to the Direction of the Court." 4 The jury system was valued precisely because it introduced into the "executive branch ... a mixture of popular power;" as a result, "the subject ... [was] guarded in the execution of the laws," 5 and "no Man [could] be condemned of Life, or Limb, or Property or Reputation, ...
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