August 31, 2022

Some years after the Sept. 11, 1777, battle of Brandywine, written details of the fighting along the Brandywine River weren’t necessary as every reader knew the facts of the valiant American stand against the British army upon the fields of Birmingham Hill and Sandy Hallow.

Sadly, few Americans today know the heroics that Gen. George Washington’s army performed against the forces of British Gens. William Howe and Charles Cornwallis that day. Many a brave American became a casualty in the name of freedom. During the late afternoon, a portion of the American army halted the British advance for more than an hour, enough time for the majority of Washington’s army to escape to Chester that evening.

Indeed, the stand Washington’s troops made on the fields surrounding the Birmingham Meeting House saved the American army from complete defeat. British officers lamented in their journals that if another few hours of daylight remained, Washington’s army would have ceased to exist, and the American Revolution ended in ignominious defeat.

The 245^th anniversary of the battle is upcoming, and a grand re-enactment event will take place at Sandy Hallow in Birmingham Township on Sept. 24 and 25. Almost 1,000 re-enactors, including members of cavalry and cannoneers, will give demonstrations. The family-oriented educational event is open to the public.

The public will have an opportunity to recognize the Marquis Lafayette’s contribution to American freedom. As with the details of the battle of Brandywine, many Americans are unaware of deeds of Lafayette, an American hero.

The young French nobleman celebrated his 20^th birthday less than a week before Brandywine. Even though given a commission in Washington’s army and a former member of the French army, Lafayette had never been in a battle. The volunteer was just another European staff officer without a command as Sept. 11 dawned. By late afternoon, Lafayette established himself as an American freedom fighter. When Washington’s army was threatened with annihilation, Lafayette rushed to Birmingham Hill to aid Washington’s troops. Lafayette dismounted and commanded the troops of Gen. Thomas Conway as the British soldiers moved within yards of Lafayette.

Lafayette was shot in his left leg, thus spilling his blood for American freedom. Lafayette’s courage and willingness to put his life on the line proved to Washington, Lafayette’s fellow officers, and Washington’s troops that Lafayette was dedicated to American freedom. He was not just another European looking to make a reputation and riches at the expense of America’s bid for independence.

When wounded on the afternoon of the battle, Lafayette began his ascent to becoming an American hero. Lafayette developed into an able commander. He also was a strong and relentless advocate for America. Washington’s troops would have been hard-pressed to defeat England without the military aid of France. Without Lafayette, France would not have been America’s staunch ally.

Brandywine, Lafayette and freedom should be forever linked.

Bruce Mowday
Bruce E. Mowday authored the book “Lafayette at Brandywine: The Making of an American Hero.”

This coming Monday is a significant day in history. Not because it’s Labor Day, but because Sept. 5 is Jury Rights Day. What few people realize is that jurors have the right to find a defendant not guilty even if the accused is guilty of the charges. And some of our constitutional guarantees — freedom of speech, religion, assembly, and press — are rooted in that fact.

Sept. 5 is Jury Rights Day because it was on that date in 1690 when William Penn and William Mead were prosecuted for unlawful assembly, disturbing the peace, and rioting. What had they done? They preached to a meeting of several hundred Quakers.

The jury only found them guilty of speaking to an assembly. Not surprisingly, the judge didn’t like that limited guilty verdict and ordered the jury to return to its deliberation. When the jury returned with a full acquittal, the judge imprisoned the jury. The jury filed a writ of habeas corpus and was eventually freed. So were Penn and Mead. The jury invalidated an unjust application of the law. It’s called jury nullification.

Jury nullification showed up again 45 years later in colonial New York. John Peter Zenger, a journalist, was tried for libeling William Cosby, New York’s royal governor. Zenger did indeed print libelous comments about Cosby, but the jury returned a verdict of not guilty.

Similar results came in the wake of failed prosecutions for people guilty of violating the Alien and Sedition Act in the early 1800s. And in the mid-1800s, juries used their power to acquit people who had violated the Fugitive Slave Laws.

And again, in the 1930s, juries practiced nullification in cases brought against people charged with violating alcohol control laws.

Perhaps nullification is an awkward word in this situation since the law itself is not nullified. The law still stands, but the application of the law is nullified in that specific case.

As Justice Oliver Wendell Holmes said in Horning v. District of Columbia, 249 U.S. 596: “The jury has the power to bring a verdict in the teeth of both law and fact.”

But Holmes was just echoing what John Jay, the first Supreme Court chief justice, said in 1794: “The jury has the right to judge both the law as well as the fact in controversy.”

Jurors are usually unaware of this right and power because judges and prosecutors don’t like it. It intrudes into and impinges on their power. So, they don’t tell jurors about it, and a defense attorney could catch hell from the judge if he or she brought it up. It’s pure speculation, but women could conceivably have had the right to vote almost 50 years sooner had jurors known about their right to nullify.

Susan B. Anthony, along with 14 other women, went on trial for illegal voting in the 1872 election. It was against the law for women to vote in New York. They clearly had voted despite the law, but the jury wanted to acquit. The defense attorney wanted the jurors to know their rights. But Justice Ward Hunt wouldn’t allow that and ordered a directed verdict. One wonders what might have happened had Anthony been acquitted.

The Supreme Court ruled in the 1890s that judges were not required to advise jurors of their right to acquit despite the facts, but the right still exists. Judges might not be compelled to tell jurors of their rights, but the decision doesn’t deny the right.

Consider this from the Fourth Circuit Court of Appeals, U.S. v. Moylan, 1969:

“If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…. 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.” [Emphasis added.]

While it may be intuitive to say that someone who violates a law should be found guilty and subject to punishment, what happens if the law is wrong, outdated, or unjust? What if the law is political in nature or there is no victim? Does a juror turn off his or her moral compass, their sense of right and wrong, because a judge says so?

So, as you grill on the unofficial last day of summer, consider the significance of Sept. 5 and the significance of having jurors fully informed of their rights.