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Analysis of “How Luther & Protestant Reformation had Political Repercussions on America” by Bill Federer

Click here to go to homepage with links to all analyses of “An American Minute by Bill Federer” Challenged

To gain a comprehensive understanding of this spiritual warfare between Federer (and other Protestants) and historic Baptists, I especially recommend: The Trail of Blood of the Martyrs of Jesus.

Analysis of “How Luther & Protestant Reformation had Political Repercussions on America” by Bill Federer

Jerald Finney
October 31, 2022

Most notably, the title, “How Luther & Protestant Reformation had Political Repercussions on America,” is misleading. The article does not reveal what the title alleges it will reveal which is “How Luther & Protestant Reformation had Political Repercussions on America.” I believe that Federer’s article is a hodgepodge of facts constituting no logical analysis from which one can make conclusions as to the matter asserted in the title. Read it to see if you will agree. Click here to go to Federer’s article. Endnote [i] (click to go to the Endnote) is a summary of Federer’s article.

To do justice to all Federer’s misleading and false information related to Scripture and pre-colnial and post colonial American history, especially as related to the relationship of church and state, would require a book. See, The Trail of Blood of the Martyrs of Jesus. Therefore, only the most important relevant issues raised are covered here. We are men, so let us behave like men, as Jesus, the apostles, and Christian dissenters since have done. Let us confront falsehood with truth head on.

One of Federer’s comments that Patricia Bonomi wrote that the colonists were about 98% Protestant, 2% Catholic, and 1/105% Jewish (of course this is a total misrepresentation since a significant percent were the Baptists—who led the fight for religious freedom and soul liberty in America. Baptists never have been Protestant. As unrevised history proves  religious freedom and soul liberty in America and the First Amendment were the trophies of the persecuted Baptists during the colonial period). See the authorities cited and relied on in The Trail of Blood of the Martyrs of Jesus (Especially in Section II)),


  1. On Deuteronomy 28 as commented on by Federer in his article
  2. Facts (not mentioned by Federer) about Martin Luther relevant to religious freedom and soul liberty (the First Amendment) in America
  3. Endnote: Summary of Federer’s article

1. On Deuteronomy 28 as commented on by Federer in his article

Federer misquotes and misapplies Deuteronomy 28.” He writes:

“Deuteronomy 28 lists blessings and cursings. If a nation ‘shalt hearken diligently unto the voice of the Lord thy God … all these blessings shall come on thee. ‘But if a nation does not hearken to the voice of the Lord, ‘all these curses shall come upon thee,” including: “The stranger that is within thee shall get up above thee very high; and thou shalt come down very low … and shall pursue thee, and overtake thee, till thou be destroyed.’ {Emphasis added]

Deuteronomy 28:1-2 says: “And it shall come to pass, if thou shalt hearken diligently unto the voice of the LORD thy God, to observe and to do all his commandments which I command thee this day, that the LORD thy God will set thee on high above all nations of the earth: And all these blessings shall come on thee, and overtake thee, if thou shalt hearken unto the voice of the LORD thy God.” [Federer left out the part of the verse in bold red and substituted “a nation” for “thou.”]

Notice that Federer starts his quote with a misinterpretation of Scripture. He replaces “thou” with “a nation.” When one understands Federer’s theology, one then understands why he made this replacement in or change of Scripture. In context the “thou” is Israel. God is speaking to Israel, to whom he gave the law. God never gave the law to Gentile nations, only to Israel. Gentile nations, all nations except Israel, were to proceed under the Adamic and Noahic Covenants.

  • Romans 2:14-15: “For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another.”

Federer then proceeds to insert “a nation” instead of “Israel” as he mentions the curses in Deuteronomy 28:63-68. He asks, “How did God judge ancient Israel when it sinned?” Here, of course, he is limiting it to Israel, but the inference is that the admonitions in Deuteronomy 28 are to all nations, and specifically to the United States of America.

Of course, God is over all nations. He is over Israel and he is over Gentile nations. However, for Gentile nations, the primary consideration is how they deal with Israel. The Old Testament deals with Gentile nations—past, present, and future—and what He looks at to bless or curse them. I explain Bible teaching on both Israel and Gentile nations in Part I, Section I, The Biblical Doctrine of Government of God Betrayed: Separation of Church and State, the Biblical Principles and the American Application.

I explain these matters in much more detail in my books, essays and other writings. Click here to go to Order Information, Free PDFs, and Free Online Versions Pages for Books by Jerald Finney. Click here to go to Written Lesson. for Basic Online Course by Jerald Finney.

  1. Facts (not mentioned by Federer) about Martin Luther relevant to religious freedom and soul liberty (the First Amendment) in America

Many of the early colonists were Protestants who thought Luther, Calvin, or the Church of England was correct about union of church and state. Dissenters, predominantly Baptists, believed in and fought for separation of church and state. Historic Baptists had never come out of Catholicism or Protestantism since they never joined with them. The First Amendment was primarily the result of a spiritual warfare between those holding opposing Scriptural interpretations, the established churches versus the dissenters, primarily the Baptists. The Trail of Blood of the Martyrs of Jesus, page 92.

The theological turmoil that resulted from the Reformation continued in the new world, and out of that storm emerged a separation of church and state that had never before existed of any lasting influence in any nation in the history of the world. The Trail of Blood of the Martyrs of Jesus, page 107.

The atrocities and heresies of the Catholic church eventually led to an effort to reform that church from within. Among the greatest of the reformers were Martin Luther, who started the Lutheran church (which became the state-church of Germany), and John Calvin, founder of the Presbyterian church (which became the state-church of Scotland). The Reformed churches became Christian Revisionists working contemporaneously with their Catholic Revisionist predecessors.

During this period of reformation, there existed those who dissented from Catholic and Reformation theology. In early sixteenth century Germany, two currents flowed in opposite directions. One, fostered by the established church, was toward a state-church. The other, promoted by dissenters, was toward separation of church and state. When a Protestant church became an established church, it continued the persecution practiced by its harlot mother.

“Both the Lutheran and Presbyterian Churches brought out of their Catholic Mother many of her evils, among them her idea of a State Church. They both soon became Established Churches. Both were soon in the persecuting business, falling little if any, short of their Catholic Mother.” J. M.Carroll, The Trail of Blood, Distributed by Ashland Avenue Baptist Church, 163 N. Ashland Avenue, Lexington KY 40502, 606-266-4341, Copyright 1931 p. 33.

Martin Luther wrote:

  • “It is out of the question that there should be a common Christian government over the whole world. Nay, over even one land or company of people since the wicked always outnumber the good. A man who would venture to govern an entire country or the world with the Gospel would be like a shepherd who would place in one fold wolves, lions, eagles, and sheep together and let them freely mingle with one another and say, ‘Help yourselves, and be good and peaceful among yourselves. The fold is open, there is plenty of food, have no fear of dogs and clubs.’ The sheep forsooth would keep the peace and would allow themselves to be fed and governed in peace; but they would not live long nor would any beast keep from molesting another. For this reason, these two kingdoms must be sharply distinguished and both be permitted to remain. The one to produce piety, the other to bring about external peace and prevent evil deeds. Neither is sufficient to the world without the other.” Philip Hamburger, Separation of Church and State (Cambridge, Massachusetts: Harvard University Press, 2002), p. 22, citing Works of Martin Luther, Volume 4 (Philadelphia: A. H. Holman Co., 1931), p. 265.)

“When Luther was expecting excommunication and assassination, he pleaded that:

  • “Princes are not to be obeyed when they command submission to superstitious error, but their aid is not to be invoked in support of the word of God.
  • “Heretics, he said, must be converted by the Scriptures, and not by fire. With passion, he asserted: “I say, then neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent. Whatever is done otherwise is done in the spirit of tyranny…. I cry aloud on behalf of liberty and conscience, and I proclaim with confidence that no kind of law can with any justice be imposed on Christians, except so far as they themselves will; for we are free from all.” Leo Pfeffer, Church, State, and Freedom. (Boston: The Beacon Press, 1953), p. 21, citing Acton, “The Protestant Theory of Persecution,” in Essays on Freedom and Power, p. 92, and Wace, Henry, and Bucheim, C. A., Luther’s Primary Works, Lutheran Publication Society, Philadelphia, 1885, pp. 194-195, quoted in Noss, John B., Man’s Religions, New York, The Macmillan Co., 1949, p. 92.

Nonetheless, Luther later, when he had made an effective alliance with the secular power, advocated that the magistrate, who does not make the law of God, enforce the law of God. According to Luther:

  • “The law is of God and from God. The State is the law-enforcing agency, administering a law of God that exists unchangeably from all eternity….
  • “The need for a state arises from the fact that all men do not hear the word of God in a spirit of obedience. The magistrate does not make the law, which is of God, but enforces it. His realm is temporal, and the proper ordering of it is his responsibility. Included in the proper ordering the maintenance of churches where the word of God is truly preached and the truly Christian life is taught by precept and example. In his realm, subject to the law of God, the Prince is supreme, nor has man the right to rebel against him. But if the Prince contravenes the law of God, man may be passively disobedient, in obedience to a higher and the only finally valid law.” William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), pp. 13-14.
  • “Heretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is the devil in disguise.” Pfeffer, p. 21, quoting Acton, pp. 102-103; see also Verduin, The Anatomy of a Hybrid, pp. 158-160, 163-168, 186-198; Leonard Verduin, The Reformers and Their Stepchildren (Grand Rapids, Wm. B. Erdsmans Pub. Co., 1964) and Thomas Armitage, The History of the Baptists, Volumes 1 and 2 (Springfield, Mo.: Baptist Bible College, 1977 Reprint).

Luther espoused that coercion by the state to achieve religious unity was justifiable. This was an expansion of Erastian philosophy—“the assumption of state superiority in ecclesiastical affairs and the use of religion to further state policy.” Erastianism … pervaded all Europe, with the exception of Calvin’s ecclesiocratic Geneva, after the Reformation. Pfeffer, pp. 23-24. Erastianism achieved its greatest triumph in England. See Ibid., pp. 24-25 for a concise history of Erastianism in England.

Luther’s position resulted in persecution of dissenters such as Anabaptists who believed in believer’s baptism. Opposition to a state-church follows logically from the thinking behind believer’s baptism.

“Believer’s baptism [was] the key to religious thought of the Anabaptists. Infant baptism implies that a child may be admitted into the Church without his understanding or personal consent. Such a church must be a formal organization, with sponsored membership possible for those whose years permit neither faith nor understanding. Adult baptism implies a different concept of the Church. The anabaptized are the elect of a visible church which is essentially a religious community of the elect. But obviously such a church could in no sense be a State Church. The Prince could neither bring it into being, regulate it, nor enforce membership in it; indeed, any connection between the State and such a church could only be injurious to the Church. Adult baptism on the surface is remote from the concept of a separated Church and State, yet such separation is implicit in the rationale of Anabaptism. The call to such a church can never come from the palace of the Prince; it must come from the Kingdom of Heaven….” [Emphasis mine.] Marnell, pp. 18-20.

The Trail of Blood of the Martyrs of Jesus, page 24-27.

“Thus, before the close of the Sixteenth Century, there were five established Churches—churches backed up by civil governments—the Roman and Greek Catholics [the Greek Catholics separated from the Roman Catholics in the ninth century] counted as two, then the Church of England; then the Lutheran, or Church of Germany, then the Church of Scotland now known as the Presbyterian. All of them were bitter in their hatred and persecution of the people called Ana-Baptists, Waldenses and all other not established churches, churches which never in any way had been connected with the Catholics…. Many more thousands, including both women and children were constantly perishing every day in the yet unending persecutions. The great hope awakened and inspired by the reformation had proven to be a bloody delusion. Remnants now [found] an uncertain refuge in the friendly Alps and other hiding places over the world.” Carroll, p. 34 cited in The Trail of Blood of the Martyrs of Jesus, page 29.

Many of the early colonists were Protestants who thought Luther, Calvin, or the Church of England was correct about union of church and state. Dissenters believed in and fought for separation of church and state. The First Amendment was primarily the result of a spiritual warfare between those holding opposing Scriptural interpretations, the established churches versus the dissenters, primarily the Baptists.

  • “Of the Baptists, at least, it may be truly said that they entered the conflict in the New World with a clear and consistent record on the subject of soul liberty. ‘Freedom of conscience’ had ever been one of their fundamental tenets. John Locke, in his ‘essay on Toleration,’ said, ‘The Baptists were the first and only propounders of absolute liberty, just and true liberty, equal and impartial liberty.’ And the great American historian, Bancroft, says: ‘Freedom of Conscience, unlimited freedom of mind, was from the first a trophy of the Baptists.’ Vol. II., pages 66, 67.
  • “The history of the other denominations shows that, in the Old World, at least, they were not in sympathy with the Baptist doctrine of soul liberty, but in favor of the union of Church and State, and using the civil power to compel conformity to the established church….
  • “… It was left to the sect once ‘everywhere spoken against’ to teach their Protestant brethren the lesson of soul liberty, and this they did in the school of adversity in the New World.” Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, Virginia: Sprinkle Publications, 2007; first published in Lynchburg, Virginia: J. P. Bell Company, 1900), pp. 14-15 cited in The Trail of Blood of the Martyrs of Jesus, page 92.


Endnote [i] Summary of Federer’s article:

  1. Luther’s 95 “theses” in 1517 which began the Reformation.
  2. His summon to trial in 1521 before the Holy Roman Emperor Charles V.
  3. Charles V’s dismissal of Luther’s theses as “an argument between monks.”
  4. The order to recant and Luther’s refusal to do so.
  5. Luther’s being kidnapped and hid by Frederick III.
  6. the Catholic and Orthodox church split in 1054; the Papal Schism in 1378-1417;
  7. the burning and burial of John Wycliffe for “attempting a translation of the Scriptures;”
  8. the general prologue of Wycliffe’s 1384 translation of the Bible; Jan Hus (1369-1415) shared Scriptures translated into the Czech language, his burning at the stake for being a heretic;
  9. Luther, unlike Wycliffe and Huss lived after the invention of the printing press;
  10. Johannes Gutenberg (100-1468) invented the western world’s first moveable-type printing press and the first significant book printed, the Bible;
  11. comments by Pope Pius II and Victor Hugo about Gutenberg and his invention; and Martin Luther’s account of how he came to an interpretation of the meaning of the expression “the justice of God” and its relationship with the statement “The just shall live by faith” and how he was “reborn,” etc.;
  12. the German Peasants’ War in 1524;
  13. the 1527 sacking of Rome and imprisonment of Pope Clement VII the same Pope who refused to annul the marriage of Henry VIII and Charles V’s aunt Catherine of Aragon leading Henry to break away from Rome and start the church of England. He failed to mention that Henry set himself up as head of the Church of England
  14. Charles V oversaw the Spanish colonization of the Americas and began the Counter-Reformation, and a few other facts;
  15. Spain used gold from the New World to push back the Muslim Ottoman invasion of Europe, a few facts related thereto, and a misquote and misapplication of Deuteronomy 28 (See below for more on this);
  16. some of Martin Luther’s references of Deuteronomy 28 as applied to the Turk being the “rod of wrath of the Lord our God,” the Turk’s god being the devil, how the fight against the Turks must begin with repentance and reformation of their lives, how (the church should) drive men to repentance and how, etc.
  17. Charles V’s attempt to unite the Holy Roman Empire against the Muslims and his agreeing to a truce recognizing the Protestants, the truce between the Protestant and Catholic territories in Nuremberg in 1532;
  18. that “the Lutheran movement was, for the first time, officially tolerated and could enjoy a place in the political sun of the Holy Roman Empire;
  19. a comment of John Calvin on the Islamic threat;
  20. a list of notable Protestant reformers;
  21. that some Protestant reformers refused to help against the Muslim invasion;
  22. a treaty by Charles V which ceased the religious struggle between Catholics and Protestants and which allowed each king to decide what was to be believed in his kingdom;
  23. the rest of the secluded life of Charles V;
  24. that Luther “penned an indefensible anti-semetic work that contributed to future Jewish persecutions;
  25. that in the two centuries following Luther, many migrated to other countries for conscience sake, many to America;
  26. that Luther influenced John Wesley and George Whitefield who preached the Great Awakening in Colonial America and a statement of Wesley on how a reading from the Epistle to the Romans led him to trust Christ alone for salvation (see The Trail of Blood of the Martyrs of Jesus for the story of the Great Awakening preached by Whitefield and its influence on the road to separation of church and state in America);
  27. that Patricia Bonomi wrote that the colonists were about 98% Protestant, 2% Catholic, and 1/105 Jewish (of course this is a total misrepresentation since a significant percent were the Baptists—who led the fight for religious freedom and soul liberty in America. Baptists not and never have been “Protestant. See The Trail of Blood of the Martyrs of Jesus);
  28. that the signers of the Declaration were predominantly Protestant (another representation meant to mislead—see The Trail of Blood of the Martyrs of Jesus);
  29. a misleading statement by Edmund Burke in an address to Parliament (a statement that shows that Burke had no understanding of the facts about the spiritual warfare in the Northern Colonies. See The Trail of Blood of the Martyrs of Jesus);
  30. a statement of Samuel Adams, “This day, I trust the reign of political Protestantism will commence.” Of course if Protestantism had prevailed, there would have been no separation of church and state, religious freedom, and First Amendment in America. See, The Trail of Blood of the Martyrs of Jesus);
  31. statements of John Adams and Robert D. Woodberry of the National University of Singapore. Woodberry said that nations where “Protestant missions” became more prosperous, etc.;
  32. a statement of Luther concerning that schools should explain the holy Scriptures, that “every institution where men are not increasingly occupied with the Word of God must become corrupt;
  33. and finally, the article ends with: “Luther, who died in 1546, wrote: “If I profess with the loudest voice and clearest exposition every portion of the truth of God except precisely that little point which the world and the devil are at that moment attacking, I am not confessing Christ, however boldly I may be professing Christ. Where the battle rages, there the loyalty of the soldier is proved and to be steady on all the battlefield besides is mere flight and disgrace if he flinches at that one point.”


VIII. Backus Presents Appeal for Religious Liberty at Continental Congress; Debate in the Newspapers; Warren Association Activities; Backus Urges Religious Liberty in New Massachusetts Constitution; John Adams Works against Religious Liberty

A Publication of Churches Under Christ Ministry

Previous Lesson:
VII. The Revival Dies; Separate Churches Die; Baptist Denomination Grows; Formation of the Warren Association in 1770 To Obtain Religious Liberty; Isaac Backus’s Efforts; An Appeal to the Public

Next Lesson:
IX. The Baptists Fight in the Courts; Reject Backus’s Advice; Backus Changes His Focus to Baptist Doctrines; Connecticut Continues To Persecute Dissidents; Connecticut Rejects Forced Establishment in 1818

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Jerald Finney
Copyright © February 28, 2018

Attempts to gain religious freedom continued. The Warren Association sent Isaac Backus to the Continental Congress in 1774 where he met with an Association of other Baptist churches from several adjacent colonies which had elected a large committee to assist. They presented their appeal for religious liberty. John Adams and Samuel Adams, neither of whom was a friend to separation of church and state, falsely asserted that Massachusetts had only a “very slender” establishment, hardly to be called an establishment, that the General Court was clear of blame and always there to hear complaints and grant reasonable help.[1] While Mr. Backus was gone, the lie was spread that he had gone to Philadelphia to break the union of the colonies.

All the time these happenings were going on, the issues were being debated in the newspapers. The Warren Association continued to publish to the public instances of persecution as well as to actively seek religious liberty from the government. The Warren Association presented a memorial on July 19, 1775, requesting religious liberty and pointing out the inconsistency of rebelling against England for taxing without representation while doing the same thing in the colonies. Ultimately, nothing came of this. In 1777, Mr. Backus prepared an address, which was supported by a large number from various denominations, urging religious liberty to the Assembly which had been empowered to frame a new Constitution which was accomplished in 1780. The Third Article of the new constitution “excluded all subordination of one religious sect to another,” but imprisonment, and confiscation of property from men who refused to acknowledge such subordination continued.[2]

In 1778, Mr. Backus wrote “Government and Liberty Described and Ecclesiastical Tyranny Exposed.” He quoted Charles Chauncy:

  • “We are in principle against all civil establishments in religion. It does not appear to us that God has entrusted the State with a right to make religious establishments…. We claim no right to desire the interposition of the State to establish that mode of worship, [church] government, or discipline we apprehend is most agreeable to the mind of Christ. We desire no other liberty than to be left unrestrained in the exercise of our principles in so far as we are good members of society.” This, said Backus, was all that Baptists asked. [3]
  • “Perhaps as a result of this tract, the General Assembly tried to conciliate the Baptists by appointing a Baptist minister to deliver the election sermon in May 1779. That minister, in his sermon, remained faithful to the principle of separation.”[4]

Massachusetts began efforts to adopt a new constitution in 1777. The proposed constitution was defeated, but a new effort which began in 1779 proved successful. John Adams worked against the Baptist position at the convention. Mr. Backus, although not a delegate, went to Boston to stand for Baptist principles during the constitutional convention. He lobbied, wrote newspaper articles, published new tracts, and informed his brethren of what was going on.[5]

Mr. Backus worked at the convention for a Bill of Rights. The first basic rights he listed were:

  • “All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and persuing and obtaining happiness and safety.”
  • “As God is the only worthy object of all religious worship, and nothing can be true religion but a voluntary obedience unto his revealed will, of which each rational soul has an equal right to judge for itself; every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby. And civil rulers are so far from having any right to empower any person or persons to judge for others in such affairs, and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction, from being injured or interrupted in the free enjoyment of his right, under any pretence whatsoever.”[6]

Backus’ position, although seeking the same end, was from a different point of view than that of George Mason, Thomas Jefferson and James Madison.

“Three years earlier George Mason, with Jefferson’s approval and Madison’s amendments, had written a statement on religious freedom into the Bill of Rights in the Virginia Constitution:

  • ‘That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.’
  • “Backus’s tone was that of a New Light pietist; Mason’s that of an Enlightened latitudinarian. The Virginians spoke of the ‘Creator,’ Backus spoke of ‘God.’ Mason stressed reason and duty, Backus stressed ‘religious worship.’ Backus referred directly to God’s ‘revealed will’ and to the ‘soul.’ Mason omitted any reference to them.
  • “The difference was obvious and fundamental. The Virginia separationists were interested in leaving the mind free to follow its own rational direction. The Massachusetts pietists believed that separation was necessary in order to leave the ‘rational soul’ free to find ‘true religion’ as expressed in the Bible, ‘the revealed will’ of God. Implicit in both statements was a belief in God, in natural law, in man’s ability to find them. But the deistic separationists of Virginia trusted entirely to man’s reason and free will. The pietists insisted that only through the supernatural grace of God would men find the Truth that is in Jesus Christ. Though both views were individualistic, the deist was anthropocentric, the pietist theocentric.”[7]

The humanistic view of Mason, Jefferson, and Madison that man, through his reason could successfully address all his problems, and the humanistic goal of the “happiness of man” were inherent in the Declaration of Independence and the Constitution, the two greatest governing documents of all time, although blended with Biblical principles. Neither the name of Jesus nor the goal of “the glory of God” was in the Declaration of Independence or the Constitution.[8]

The Warren Association, on September 13, 1780, published a remonstrance, authored by Mr. Backus, against Article Three of the proposed constitution. The remonstrance stated, among other things, that the provision therein requiring the majority of each parish “the exclusive right of covenanting for the rest with religious teachers,” thereby granting a power no man has a right to; and further stating that “the Legislature, by this Article, are empowered to compel both civil and religious societies to make what they shall judge to be suitable provision for religious teachers in all cases where such provision shall not be made voluntarily.”[9] However, support for ministry could only be through voluntary support, not coercion that denied freedom of conscience. Backus and other Baptists “did not object to the view that Massachusetts should remain a Christian commonwealth; piety, religion, and morality could only be maintained with the institution of the public worship of God and of public instructions in piety, religion, and morality” were “generally diffused throughout the community.[10]

  • “Jefferson, Mason, and Madison, designing the creation of a secular state, not only opposed all such practices but also objected to the use of chaplains in the Congress and armed forces, the authorization by the state of certain days of fasting, thanksgiving, and prayer; and the compulsory religious services in state universities. Jefferson explicitly stated that America was not and ought not to be a Christian country…. Backus never qualified his belief in a Christian commonwealth. He consistently argued for ‘a sweet harmony between’ Church and State. ‘It is readily granted,’ he wrote in 1784, ‘that piety, religion, and morality are essentially necessary for the good order of civil society.’”[11]


[1] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 200-202, and fn. 1, p. 201.

[2] Ibid., pp. 203-204, 219-220, 225-229, 228-229.

[3] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 140. The entire tract is reproduced in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 345-365.

[4] Ibid., 141.

[5] Ibid., p. 142.

[6] Ibid., pp. 142-144.

[7] Ibid., pp. 142-144.

[8] Again, the Constitution is the greatest governing document ever conceived by a nation, but the Biblical principle of “leaven”—bad doctrine always corrupts the good—has proven again, by the national experience, to be true. To understand and address a problem, one must be willing to face all the facts head on.

[9] Backus, A History of New England…, Volume 2, fn. 2, pp. 229-230.

[10] McLoughlin, Isaac Backus and the American Piestic Tradition, pp. 148-149.

[11] Ibid., pp. 149-150.

Jury Nullification: Article, Brief, and Requested Jury Instruction

Jerald Finney
Copyright © July 21, 2013

Jury nullification has been an issue near and dear to my heart since the time in the 1980s when the Lord was dealing with me about going to law school. After attending the University of Texas School of Law and getting my license to practice law in 1993, I attended a Fully Informed Jury Association seminar and pursued the issue in selected cases. I drafted a brief to present to the court and a Requested Jury Instruction on the issue. The judges became very antagonistic when presented with the brief and the instruction. I will not bore you with the entire battle, but present this article to you so that, by reading the brief and requested instruction you may gain some understanding of the issue. Since I have not been allowed to argue nullification in any of my Texas cases where I attempted to do so, I have come up with a few tactics devised to try to get the jury to apply their right to nullify. Visit the Fully Informed Jury Association by clicking the blue colored link. Following the brief below is a copy of the requested instruction. Note: This website will not allow me to correctly format the headings to the brief and requested instruction (some of the entries in the headings are not centered).

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
     VS.                       §              OF              
                     [NAME OF DEFENDANT]            §                [Name of county] COUNTY, TEXAS                


Defendant, by and through his attorney, respectfully shows the court as follows:

Jury nullification is a positive force in a civilized society. Only the jury is in a position to balance compassion against the letter of the law and assure justice in a proper case.  [T]he jury stands as a bulwark against laws which it deems unjust or excessively harsh.”  Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.–Houston [14th Dist.] 1996, no pet. history).  It is undisputed that a jury has the power of nullification.” Id. at 221.  “[J]ury nullification is a recognized aspect of our jury system.” Id.   The court in United States v. Burkhart, 501 F2d 993, 997 (6th Cir. 1974) noted that the law of jury nullification “allows a defense attorney “some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law.” Mouton at 221-22.

The majority in Sparf et al. v. United States, 156 U.S. 51 (1895), which was cited in Mouton, “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. CLAY S. CONRAD, JURY NULLIFICATION 106 (Carolina Academic Press 1998).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id.  “The case did not hold that federal judges could not give jurors [a nullification] instruction, or that they must disingenuously inform jurors that they were bound to follow the courts instructions.” Id. (emphasis mine).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors such [a jury nullification] instruction.” Id. at 108.

The criminal justice system which allows the defense attorney to argue jury nullification and the judge to tell the jury that it has the right to nullify the law is a better system. And there are good reasons for a jury to be told that they have the right to nullify the law.  Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so–particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. JURY NULLIFICATION at 126.  “Counting on jurors to come to  Court aware of their hidden powers runs counter to what little empirical evidence exists.” Id. at 133.  “Furthermore, psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict.” Id.

Judge Jack B. Weinstein believes that “[n]ullification is but one legitimate result in an appropriate constitutional process safeguarded by judges and the judicial system. When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.” Id. at 145-146 citing HON. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to do Justice?, 30 AM. CRIM. L. REV. 239, 240 (1993).  He wrote:

“When jurors return with a “nullification” verdict, then, they have not in reality “nullified” anything: they have done their job. . . Juries are charged not with the task of blindly and mechanically applying the law, but of doing justice in light of the law, the evidence presented at trial, and their own knowledge of society and the world.  To decide some outcomes are just and some are not is not possible without drawing upon personal views.” Id. at

District Court Judge Thomas Wiseman, in the Middle District of Tennessee, wrote:

 “Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust.  The government, whose duty it is to seek justice and not merely conviction, should not shy away from having a jury know the full facts and law of a case.  Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by the judge is secondary to the justice as meted out by a jury of the defendant’s peers.  We have established the jury as the final arbiter of truth and justice in our criminal justice system…” United States v. Datcher, 830 F.Supp. 411, 412 (M.D. Tenn. 1993), discussed in Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COL. L.REV. (1995) and cited in JURY NULLICICATION at 146-147.

 A Brief History of “Jury Nullification”

History demonstrates that the advent and practice of jury nullification has been a positive and compassionate force in the development and operation of our criminal justice system. “Although the use of the jury in criminal trials in England was encouraged by the Assize of Clarendon in 1166, it was not until 1215 that juries were routinely used in the trial of criminal cases.”  JURY NULLIFICATION at 17 citing SIR PATRICK DEVLIN, TRIAL BY JURY, 9 (3d ed. 1966)(Reprinted 1988).  This was the result two events: the Pope’s condemnation of the entire system of trials by ordeal and his prohibition of clerics from participating in them and the Magna Charta.  JURY NULLIFICATION at 17.

“Although originally juries which returned ‘incorrect verdicts’ were treated very harshly, the power of juries to correct oppressive or unjust laws was beginning to be recognized by the mid-seventeenth century.  Id. at 23-28.  Bushell’s Case in 1670 ushered in what has been called the heroic age of the English jury.”  Id. at 24-28.

“In Bushell’s Case, jurors acquitted the Quakers William Penn and William Mead of the capital offenses of unlawful and tumultuous assembly, disturbance of the peace and riot.  They were charged because they preached to their congregation in the street after the police locked them out of their church because the Quaker religion was illegal.  After the evidence, the court told the jurors to convict.  They did not.  They were threatened with starvation, they were held three days without food, drink, or toilet facilities, but acquitted anyway.  They were all fined a considerable sum.  Eight paid the fine, but four were imprisoned for refusing to pay.  One of those made out what was called a writ of Habeas Corpus ad Subjiciendum, which was decided 2 1/2 months later in their favor.  The opinion in  Bushell’s Case held no more than that a juror could never be punished for his verdict unless he delivered it in bad faith.” Id.

As a result, courts began to use “special verdicts.”  Id. at 28.  Nonetheless, juries insisted on returning general verdicts, especially in seditious libel cases where the law said that the fact of publication was the only element of a libel prosecution that concerned the jury.  Id. at 29.  Many pamphlets were published and distributed informing jurors of their right to judge the law. Id.  More conventional academic and legal treatise writers also began to accept and promulgate the doctrine of jury independence.  Id. at 30.

Alexander Hamilton argued “jury nullification” in Rex v. Zenger, How. St. Tr. 17:675 (1731). Id. at 32-35.  John Peter Zenger was accused of seditious libel in New York. Id. The jury acquitted Zinger after only brief deliberations. Id. at 36.  The reverberations of Hamilton’s arguments continued both in England and America for many years and prosecutions for seditious libel began to falter with increasing consistency. Id. at 36-38.  As a result, the English Parliament in 1791 passed Fox’s Libel Act which re-established the right of juries to render a general verdict in libel cases as in all other criminal cases. Id. at 41-43.  “Juries, by exercising the power implicit in the delivery of the general verdict, had demanded and received official recognition of their right to judge whether an alleged libel was in fact false, malicious and intentional.” Id. at 44.

“The founders of this country were in agreement as to the value of the trial by jury as an essential means of preventing oppression by the government. Their primary concern was more with the radical true law-finding power of the jury than with the jury’s power of amelioration.” Id. at 47-48.  Many prominent founders such as Theophilus Parsons, a member of the Massachusetts Constitutional Convention and Chief Justice of the Massachusetts Supreme Court, John Adams, Thomas Jefferson, and Alexander Hamilton argued for the rights of jurors to judge the law.  “The right of early American jurors to deliver a general verdict according to conscience was not a controversial issue during the early years of this country.” Id. at 52. Chief Justice John Jay, in a rare jury trial in front of the Supreme Court, instructed the jurors of their right to judge the law in the instructions he gave to the jury in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794).  Id. at 52-53.  Other cases from the same period expressed the same conception of the role of the jury. Id. at 53.

That federal law continued to recognize the right of jury nullification is shown in Justice Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812), and by Chief Justice John Marshall’s instructions to the jury in United States v. Hastings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1812): “That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.” Id. at 60-61.  For almost five decades following the adoption of the Bill of Rights, the right of jurors to judge both law and fact was uncontroversially accepted.  Id. at 60-63.

By the mid-nineteenth century, for several reasons, the prevalence of jury instructions charging jurors with the responsibility for reviewing both law and fact began to give way to increasingly constrained instructions.  Id. at 65.  For one thing, reducing the power of the jury to determine the law gave trial judges greater control in determining case outcome. Id.  Another factor was reduced perception of a need for jury independence. Id. Americans no longer had unjust laws foisted on them by a foreign power across the sea. Id.  Furthermore, most Americans were aware of their power to judge the law. Id.  Jury independence was rarely used “and most Americans thought it should only be used to curtail gross excrescences of the criminal sanction.” Id. at 66-67.

“The laws establishing and protecting the institution of slavery and punishing those who aided fugitive slaves struck many Americans–including substantial numbers of Southerners–as cruel, unjust and fundamentally un-American.” Id. at 75.  Juries in Massachusetts began ending slavery by finding in favor of slaves who sued for freedom. Id. at 75. In one case, the fate of Quock Walker, a “runaway slave,” was debated in a series of civil jury trials, culminating in a decision that “The said Quock Walker is a free man and not the property slave of the defendant,” and Mr. Walker was awarded damages for injuries suffered when his former master, Nathaniel Jennison caught and beat him. Id. at 75-76.  Then, Jennison was found guilty of assaulting Mr. Walker and fined forty shillings in the case of Commonwealth v. JennisonId. at 76.

Chief Justice William Cushing, in his charge to the jury, instructed them that:

“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established…  But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea had taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses–features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal–and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property–and in short is totally repugnant to the idea of being born slaves.  This being the case, I think the idea of slavery is inconsistent with our conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Id. at 76 citing ALBERT P. BLAUSTEIN & ROBERT L. ZANGRANDO, CIVIL RIGHTS AND AFRICAN AMERICANS, 45-46 (1991).  “The jury of white male landowners freely chose to convict, heralding the end of slavery in Massachusetts and delivering a fatal blow to the institution throughout the Northeast.” Id. at 77.

Although slavery continued in the South, The Unconstitutionality of Slavery, by Lysander Spooner, which argued the illegality and unconstitutionality of slavery, was widely disseminated both in print and by orators such as Frederick Douglass and lead to one of the most thorough jury revolts in history. Id. at 77-78.  The Fugitive Slave Act which was passed in 1850, one of the most infamous pieces of legislation ever passed by any United States legislature provided that a person accused of being a fugitive slave could, without due process of law, be brought before a quasi-judicial commissioner for a summary hearing without a jury. Id. at 79. The commissioner, if convinced of the claimant’s veracity, could return the slave to bondage. Id. The commissioner was paid ten dollars if the slave were returned, but only five dollars if the claim was rejected. Id.  The Fugitive Slave Act also provided imprisonment of up to six months and a fine of up to one thousand dollars for anyone convicted of interfering with the recovery of fugitive slaves, or who rescued or harbored fugitives. Id.  Any person with black skin could be seized as an escaped slave wholly on ex  parte testimony. Id.  The Act deprived those arrested under its auspices of the writ of Habeas Corpus. Id.

It is clear that, for whatever reason, jurors frequently refused to convict those who harbored or assisted fugitive slaves. Id. at 80.  In one case, twenty-four men helped a captured slave named Fredrick Jenkins (alias Shadrack) escape. Id. at 81. Prosecution of the participants in Shadrack’s rescue was dropped by the government after two acquittals and several hung juries. Id.  The second defendant, a black lawyer named Robert Morris, a descendant of slaves, was acquitted by a jury of twelve white men of assisting in the escape of a fugitive slave. Id. at 81-82.  According to one authority, “[h]is lawyer told the jury that they should judge the law as well as the facts, and that if any of them conscientiously believed that the Fugitive Slave Law was unconstitutional, they should disregard any instructions by the judge to the contrary.” Id. at 81.

Other evidence that jurors were freely granted the power to deliver an independent verdict during the nineteenth century include jury independence provisions inserted into several state constitutions and state statutes granting jurors the power to judge the law. Id. at 88.  Some of those survive until this day in one form or another, but in some states, courts restricted the role of jurors during the latter half of the nineteenth century, “often striking down or limiting earlier precedents and statutes.” Id. at 88-92.

In a sense, the United States Supreme Court rejected jury independence in Sparf et al. v. United States, 156 U.S. 51 (1895).  Id. at 99-108.  But the majority in Sparf “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. Id. The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law. Id. The case did not hold that federal judges could not give jurors such an instruction.” Id. at 108.

In spite of Sparf, during the closing decade of the nineteenth century, the prosecution found it increasingly difficult to prevail in labor cases. Id. at 106-108.

“Jury independence is a snapshot in the law, appropriately flaring up when the criminal law exceeds the limits of social consensus, dying away when the law has been reformed, only to flare up anew when the legislative ambition [and now judicial ambition] again overtakes its legitimate bounds.”  Id. at 108.  It is not debated that the laws which prohibited alcohol manufacture, sale, and consumption were routinely rejected by independent American juries. Id. at 108-115.  In some areas of the country as many as sixty percent of alcohol-related prosecutions ended in acquittals. Id. at 109.  “Prohibition has been described as a ‘crime category in which the jury was totally at war with the law.’” Id.  “Jury independence . . . was still a strong aspect of American culture and many jurors were aware of their powers and willing to exercise them when appropriate.” Id.  “Where juries did convict, they often delivered ‘compromise verdicts’ which resulted in reduced sentences for the accused.’” Id. at 111.

“During prohibition, John Henry Wigmore defended trial by jury on several grounds: that it prevented unpopular distrust of official justice, provided necessary flexibility in legal rules, educated the citizens of the country about the administration of the laws and improved verdicts by requiring that, even after the decision in Sparf et al., juries were deciding cases based both on judicial instructions and their own views of equity:

“Law and justice are from time to time in conflict.  That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances.  And as a rule of law only takes account of broadly typical conditions, and is aimed on average results, law and justice every so often do not coincide. * * *

“The jury, in the privacy of its retirement, adjusts the general rule of law to the  justice of the particular case.  Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.

“That is what the jury trial does.  It supplies that flexibility of legal rules which is essential to justice and popular contentment.”

Id. at 112 citing John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 169-171 (1929).

Clarence Darrow, America’s most famous criminal defense lawyer of the period and a great opponent of Prohibition and supporter of jury nullification, stated, “Since men began making laws, the favorite form of repeal is by non-observance.  It was in this way that Christianity conquered the Roman Empire.  If Christians had obeyed the laws of Rome their religion would have died at its birth.” Id. at 114 citing DARROW, THE STORY OF MY LIFE, 293, 294 (1931).

“By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained.  Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article.  Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act in 1850.  The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s when the Vietnam war cases brought it to the forefront as a tool of social protest.

“However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals required an increasing number of articles, in order to fill the equally increasing number of pages.  Articles on jury independence found their way onto many of those pages.  For the first time in 88 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy.” Id. at 140-141.

Juries are still nullifying the law. Id. at 143-153 (examples given: e.g., defendant found not guilty of two counts of marijuana cultivation where he admitted to growing more than 40 plants in his home and his sole defense was that smoking and eating marijuana alleviated the nausea and weight loss associated with AIDS; a Michigan jury refused to punish Dr. Kevorkian for his role in helping Thomas Hyde commit suicide; a Colorado jury refused to convict a man for assisting his mother who requested his help because her suffering got to be too much in committing suicide; cases where juries refuse to convict women who have killed their batterers, not in self-defense, after years of abuse).  Others categories of cases in which independent juries are likely to nullify the law include abortion protest cases, gun owner cases, and, should Roe v. Wade, 410 U.S. 113 (1973) ever be overturned, it is unlikely that independent juries would enforce laws criminalizing abortion.  Id. at 152.  In fact, against all reason, it seems to the attorney for defendant that the average “Pro-Choice” person is far more likely to nullify the law in the appropriate case than the average so-called “Pro-Lifer” many of whom have bought the liberal lie that “I am Pro-Life and would never have an abortion, but I don’t think the government should legislate morals.  It ought to be up to the pregnant woman.”  That reasoning would require the abolition of all our criminal laws.  I represented an abortion clinic sidewalk counselor in Austin.  At trial, the jury would have nullified the law and convicted had not the judge granted defendant’s motion for a directed verdict.  After talking with the jurors after trial, it was apparent that the jurors had lied during voir dire so that they could get onto the jury.  It was also apparent that they were angry because the judge followed the law and granted defendant’s motion for directed verdict after the close of the state’s evidence.


At times, jury nullification is necessary to assure that justice is done.  A judge can allow the defense lawyer to argue jury nullification.  A judge can, but is not required to instruct the jury of its power of nullification.  To deny the jury the right to be fully informed – by either the defense lawyer or the judge or both – of its power of nullification in an attempt to prevent it from exercising the full extent of its proper function will likely result in an injustice in a case where the letter of the law and justice conflict.  Sometimes, as history demonstrates, law and justice do not coincide.

Respectfully submitted,


Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466


STATE OF TEXAS                      §


COUNTY OF TRAVIS                 §

BEFORE ME, the undersigned authority, on this day personally appeared Jerald Finney who, upon being duly sworn, upon oath did acknowledge and state to me as follows:

“My name is Jerald Finney.  I have read the above and foregoing statements and they are to my personal knowledge, true and correct.”

SIGNED this ____ day of _______________, 200___.


Jerald Finney

SUBSCRIBED AND SWORN before me on this ______ day of _______________, 201__.


Notary Public, State of Texas


Printed Name of Notary

My Commission Expires:_________

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
VS.                §                OF
[NAME OF DEFENDANT]          §               [Name of county] COUNTY, TEXAS



                                             , defendant in this action, before the Court has presented the charge to the jury and in the time and manner required by law, requests that the Court include in the charge to be submitted to the jury the following instruction.


It is presumed that juries are the best judges of fact.  Accordingly, you are the sole judges of the true facts in this case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law.  Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance.  You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case.  You should give them due respect.  Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven.  You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances.  Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding.  Give respectful regard to my statements of the law for what help they may be in arriving at conscientious determination of justice in this case.  That is your highest duty as a public body and as officers of this court.

Respectfully submitted,


Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466

This requested instruction, having been duly and timely requested, is hereby ________________ and exception allowed.  [State modification, if any]:

SIGNED this ________ day of _____________________________, 201__.