South Carolina Trial Lawyers Bulletin
Winter 1989

Our Precious Jury System:
It’s Passed the Test of Time

By James W. Gilchrist, Jr.
 

Nothing is so basic to our democratic system as is the right to trial by jury. It is the heart of our legal system. As trial lawyers, we must do our part to see that this cherished institution remains the essential feature in the struggles to obtain justice in a society that finds itself increasingly bombarded by cynical attempts to "reform" the system.

The truth and beauty of the jury system is that it embraces a faith in the collective wisdom of the community. The right to have our disputes decided upon by our peers is one that has been handed down to us by centuries of Anglo-American legal tradition. Any attempt by corporate interests to change this system is no reform at all, but merely modern chapter in a story of a struggle that has gone on for centuries.

Although there is some dispute as to the precise origin of trial by jury, it is clear that it was introduced in England as a basic institution shortly after the Norman Conquest in 1066 A.D. It had been used in France by Norman nobles to settle private disputes within their various own domains. William the Conqueror’s victory at the battle of Hastings ushered in an era of reform in England. A jury was called in every county and required to take an oath to truthfully determine the nature and extent of population and land-holdings. This resulted in the Domesday Book which was established as the historical basis of property taxation in England.

This early jury was more administrative that judicial in its function. As a measure of public justice and protection for the subjects of the Anglo-Norman king, trial by jury was first established in the reign of Henry II (1154-1189). He was the great grandson of the Conqueror and instituted more legal changes than any king in English history. The Constitution of Clarendon in 1164 established the jury trail with respect to private disputes. Some of its provisions were a result of Henry’s desire to protect his subjects against powerful individuals who sought to intimidate in order to escape prosecution. This jury consisted of twelve ordinary men of a particular locale who would take an oath in a bishop’s presence to tell the truth about a certain matter.

This may seem to be a primitive example of an early jury, but one must recall that the Twelfth Century was a rather uncivilized and superstitious era. Other methods of trial were by ordeal, compurgation or battle. Trial by compurgation mainly consisted of each party to a dispute producing a number of witnesses to attest to their party’s credibility. The witnesses testified not to the facts, but to the character of the disputants. Theses trails developed into "swearing contests" and fell into disfavor. Trial by battle, which was introduced by the Normans also, consisted in civil cases of the disputants’ champions fighting each other. There soon arose a professional group of champions who fought from one end of England to the other for the highest bidder.

It is clear, though, that trial by jury was an expression of society’s desire to devise a more rational and enlightened method to decide controversies. These alternative methods gradually gave way to the jury system.

As was alluded to above, these early juries were summoned mainly to have their members swear to the truth of certain matters rather than being the judge of the facts in a case. They served as witnesses and the court would judge the facts before rendering a verdict. A typical case might be where one person was accused of stealing another’s horse. Several bodies of "jurors" would be summoned from the various districts surrounding the court. They would come and testify as to their understanding of the alleged occurrence, sometimes merely recanting the gossip of the countryside. Such was the King’s justice in the early thirteenth century.

A critical turning point that set trial by jury on an inexorable path toward the future was the signing of the Magna Carta by King John I (son of Henry II) in 1215. John had schemed his way to the throne while his brother, King Richard the Lionheart, was away fighting in a crusade in the Holy Land. Being the devious son, John, upon becoming King after Richard’s death, sought to consolidate his power by imposing upon his subjects the most cruel and oppressive rule imaginable. By being forced to sign the Great Charter, John recognized that no king was above the law. The early development of the common law and the stable political institutions introduced under Henry II were recognized and reinforced in the minds of Englishmen.

There is some debate as to the literal mentions of "trial by jury" in the Magna Carta. However, Article 36 mentions a "writ of inquisition upon life of limbs... shall not be denied." The word inquisition was commonly thought to have meant a determination, under oath, by a local jury as to the truth of certain matters. Blackstone wrote in the 1760's that "The trial by jury, or the country, per patrial, is also that trial by the peers of every Englishman, which as the grand bulwark of his liberties, is secured to him by the great charter."

By the end of the thirteenth century, the process whereby jurors would become judges of the facts and not merely witnesses was well underway. One of the first examples of this change was the practice of allowing witnesses to deeds to deliberate with the jurors, thus giving the jurors the change to judge for themselves in a way that more decisively affected the outcome of a dispute. In an interesting case that was tried in 1302, a certain knight "objected to a jury picked to try him because the members were not knights." A jury of knights was called and the accused was allowed to object to certain members. Thus was recognized the practice of trial by one’s true peers, as well as an early form of challenging potential jurors. Trial by jury had become the dominant mode of trial by the end of the fourteenth century.

The right was initially brought to American shores in 1607 by the Englishmen who settled at Jamestown, Virginia. King James the First granted a charter to the Virginia Company to establish a settlement. This First charter of Virginia (1606) gave all subjects in the colonies the right to enjoy the same "liberties, franchises, and immunities" as any other English subjects. In fact, the right to trail by jury was specifically mentioned in the King’s initial instructions for the government of the colony of Virginia. The right was to be guaranteed with respect to all capital crimes such as murder, rape, sedition and rebellion, among others.

Regarding early petit juries in the Virginia colony,

"When the case was given to the jury, it was locked up without food or water until it reached a verdict. A juryman could not leave his fellows until a verdict was reached, which, as one writer noted, made prolonged disagreement practically unknown."

Perhaps this requirement might be useful today.

The right was introduced in Massachusetts by 1628. Article 29 of the Massachusetts Body of Liberties (1641) states:

"In all actions at law, it shall be the libertee of the plaintiffe and defendant by mutual consent to choose whether they will by tryed by the Bench or by Jure, unless it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in criminal cases."

The concept of a jury of one’s peers was introduced in the Frame of Government of Pennsylvania (1682), Article VIII,

"That all trials shall be by twelve men, and as near as may be, peers or equals, and of the neighborhood..."

The jury system came to be regarded as symbolic of the colonies’ eventual struggle for democracy and freedom as against the authority of the English Crown. This was initially dramatized in 1735 in the famous libel trial the printer John Peter Dzenger who had written about the royal governor of new York. Zenger was acquitted by a jury of his peers who felt he had written the truth. As the colonies when down the road toward an open break with England, "The First Continental Congress (October 1774) declared–that the respective colonies are entitled to the common law of England, and more especially, to the great and inestimable privilege of being tried by their peers of the vicinage, according the course of law."

Finally, Jefferson made reference in the Declaration of Independence to the King, "depriving us in many cases of the benefit of trial by jury." This was a reaction to the Crown’s puppet judges. The first written constitution of a modern republican (as distinguished from the GOP) government was the Constitution of Virginia. It was originally put into effect in 1776. It contains a Declaration of Rights, Section Eight (8) guarantees a "speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty" in criminal prosecutions. Section Eleven (11) guarantees trial by jury in civil cases and states that it "ought to be held sacred." These guarantees were later to be found in the Bill of Rights or the first ten amendments to the United States’ Constitution, specifically Amendments Six (6) and Seven (7).

After the Constitution was written in 1787 at Philadelphia, the various states held their own respective ratification conventions. Nine states out of thirteen had to approve the new Constitution in order for it to go into effect. The debate in Virginia was the most crucial. The new nation looked to Virginia. Other states, such as new York and North Carolina, would follow Virginia’s lead. The state was split into two camps–Federalists versus Anti-Federalists. Most prominent among the Federalists were General Washington and James Madison. Their opponents were led by Patrick Henry.

Henry, who without questions was the greatest orator ever produced in our nation, opposed the Constitution because it failed to contain the guarantees of individual liberties that were contained in the Virginia Constitution’s Declaration of Rights, alluded to above. His thunderous oratory had been the spark that lit the torch of revolution thirteen years before. As a lawyer who had frequently gone before juries regarding various cases and causes, he knows that the right was a quintessential feature of republican government in which the people should always have the final say in any dispute or conflict. He was highly distrustful of any all-powerful new central government which might be just another monarchy in different form.

"Seldom has American history shown a political scene more seriously enacted" as the Virginia Constitutional Debate. On June 25, 1788, the new Constitution, with a Declaration of Rights included, was approved by 89 votes to 79 votes. This Declaration contained twenty articles out of which the ten Bill of Rights would come in 1791. Washington himself would later write that he doubted "whether the opposition to the Constitution will not ultimately be productive of more good than evil," thereby giving "the rights of man a full and fair discussion."

Thus, the right to trial by jury was a central part of the liberty that was won in the American Revolution as well as the democratic guarantees contained in the Constitution,. Although trial by jury had existed under the law of England, it found its purest form as an instrument of self-government in America. Alex de Tocqueville in his journey through America in the early 19^th century observed, "Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well." We should all bear these words in mind in the months and years ahead as we encounter modern forms of arbitrary encroachment on the precious right to trial by jury.

BIBLIOGRAPHY

Catherine Drinker Bowen, Miracle at Philadelphia–The Story of the Constitutional Convention, May to September, 1787. (1966).

Professor Randall A. Bridewell, Professor of American Legal History, University of South Carolina School of Law.

Constitution of Virginia, originally written in 1776.

J. Kendall Few and John C. Few, Trial By Jury–The Cornerstone of Our Judicial Process and the Touchstone of Contemporary Common Sense, (1986).

Lloyd E. Moore, The Jury–Tools of Kings, Palladium of Liberty, (1973).

Theodore F. T. Plucknett, A Concise History of the Common Law, 5^th Edition, (1956).

Rita J. Simon, The Jury–Its Role in American Society, (1979).

William F. Swindler, Magna Carta–Legend and Legacy, (1965).

ENDNOTES

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