Ruling of Justice Samuel Chase, trial of James Thompson Callender for seditious libel, in the circuit court of the United States for the Virginia district (1800)

The statute on which the traverser is indicted enacts “that the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.” By this provision I understand that a right is given to the jury to determine what the law is in the case before them, and not to decide whether a statute of the United States produced to them is a law or not, or whether it is void, under an opinion that it is unconstitutional; that is, contrary to the constitution of the United States. I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law, and whether they amount to the offense described in the indictment. This power the jury necessarily possesses, in order to enable them to decide on the guilt or innocence of the person accused. It is one thing to decide what the law is on the facts proved, and another and a very different thing to determine that the statute produced is no law. To decide what the law is on the facts is an admission that the law exists. If there be no law in the case, there can be no comparison between it and the facts; and it is unnecessary to establish facts before it is ascertained that there is a law to punish the commission of them. It was never pretended as I ever heard, before this time, that a petit jury in England (from whence our common law is derived), or in any part of the United States, ever exercised such power. If a petit jury can rightfully exercise this power over one statute of congress, they must have an equal right and power over any other statute, and indeed over all the statutes; for no line can be drawn, no restriction imposed, on the exercise of such power; it must rest in discretion only. If this power be once admitted, petit jurors will be superior to the national legislature, and its laws will be subject to their control. The power to abrogate or to make laws nugatory is equal to the authority of making them. The evident consequences of this right in juries will be that a law of congress will be in operation in one state, and not in another. A law to impose taxes will be obeyed in one state, and not in another, unless force be employed to compel submission. The doing of certain acts will be held criminal, and punished in one state, and similar acts may be held innocent, and even approved and applauded, in another. The effects of the exercise of this power by petit jurors may be readily conceived. It appears to me that the right now claimed has a direct tendency to dissolve the union of the United States, on which, under divine Providence, our political safety, happiness, and prosperity depend. I consider it of the greatest consequence to the administration of justice that the powers of the court and the powers of the petit jury should be kept distinct and separate. I have uniformly delivered the opinion “that the petit jury have a right to decide the law as well as the fact in criminal cases”; but it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States.

Quoted in U.S. Supreme Court, Sparf v. U S, 156 U.S. 51 (1895)