The Colonies Embrace Trial by Jury

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The Colonies Embrace Trial by Jury

Francis H. Heller

Francis H. Heller, a longtime law and political science professor at the University of Kansas, has written numerous studies on constitutional law and history, including a comprehensive study of the Sixth Amendment, excerpted below. As Heller explains, the colonists arrived in the New World with the "full rights of Englishmen," including the right to jury trials. At first, primitive conditions and a hostility to lawyers led to more informality in the colonial systems of justice, but eventually England reasserted its control over the colonies and English-trained lawyers began to dominate colonial courts. These lawyers brought with them new concepts of defendants' rights, and the colonial governments began instituting these rights, although somewhat inconsistently. After the Revolutionary War, the new states retained this diversity, and for this reason the Constitutional Convention included a right to trial by jury in the Constitution but left the details rather vague.


Francis H. Heller, The Sixth Amendment to the Constitution of the United States: A Study in Constitutional Development. Lawrence: University of Kansas Press, 1951. Copyright © 1951 by the University of Kansas Press. Reproduced by permission.

Primary Source Text

That the English law should follow the colonists to their new homes was apparently intended by the Crown, for the Elizabethan patents to [explorers Humphrey] Gilbert and [Walter] Raleigh already contain statements to the effect that the colonists settled under these grants should possess the same constitutional rights as were enjoyed by Englishmen in the homeland. The first Virginia charter by James I in 1606, recited that

we do for Us, our Heirs and Successors, Declare by these Presents, that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.

Similar language may be found in most of the later charters.

Trials as a Right of Englishmen

Among the rights of Englishmen, trial by jury had by then won undeniable recognition. Indeed, until Brunner's researches¹ exploded the theory, it was generally believed that trial by jury was an institution of such long standing as to antedate the Great Charter of King John. Thus, e.g., [Supreme Court Justice Joseph] Story, in an oft-quoted passage, asserted that

1. Heinrich Brunner, Die Entstehung der Schwurgerichte, 1872.

It seems hardly necessary in this place to expatiate upon the antiquity or importance of the trial by jury in criminal cases. It was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes one of the fundamental articles of Magna Charta, in which it is declared, "nullus homo capiatur, nec imprisonetur, aut exulet, aut aliquo modo destruatur, etc.; nisi per legale judicium parium suorum, vel per legem terrae;" no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, etc., but by the judgment of his peers, or by the law of the land. The judgment of his peers here alluded to, and commonly called in the quaint language of former times a trialper pais, or trial by the country, is the trial by jury, who are called the peers of the party accused, being of the like condition and equality in the state. When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable common law, which had fenced round and interposed barriers on every side against the approaches of arbitrary power.

We know today that this statement was doubly in error. It appears well established at present that trial by jury was not known in its present form or function when the barons forced King John's signature [of the Magna Carta] at Runnymede. This, however, does not diminish the significance of the belief generally held in the seventeenth and eighteenth centuries that trial by jury was among the fundamental rights guaranteed by the Great Charter. Considering the almost religious veneration accorded to that document by the great majority of the people both in England and in this country, it is more important to recognize the fact that our ancestors associated trial by jury with this renowned mainspring of liberty than to insist that in so doing they were guilty of historical error.

Informality of Colonial Justice

It may be more significant that modern research has led to another correction of Justice Story's statement. The varied reception which trial by jury received among the early colonists took on added significance as historical scholarship compelled a reexamination of the traditional juristic theory which assumes a wholesale transfer of the common law from the mother country to the colonies. Thus the development of jury trial in America reflects the fact that there was at first . . . an attempt by laymen to order their affairs by themselves in an atmosphere of pronounced hostility toward the legal profession and their methods. The jury trial of colonial days is, therefore, not a rigid copy of its English prototype but rather the result of variegated experiences, experimentation, and adaptation. The different practices so established were sufficiently divergent to allow only the most general statement with regard to jury trial to be included in the Constitution framed at Philadelphia, lest local customs be offended.

Juries were impanelled from the earliest period on. [One historian,] after extensive research in the Massachusetts Colonial Records, found evidence of a jury trial a few months after [Massachusetts Colonial Governor John] Winthrop's arrival. And the only extant item of legislation of the first five years of the Plymouth Colony is an ordinance of 1623 which provides among other things "that all criminal facts . . . shall be tried by the verdict of twelve honest men, to be impanelled by authority, in form of a jury upon their oaths." The Massachusetts Body of Liberties (1641) confirms this public policy with the declaration in Article 29 that "in all actions at law, it shall be the libertie of the plaintiff and the defendant, by mutual consent, to choose whether they will be tried by the Bench or by a Jurie . . . the like libertie shall be granted to all persons in Criminal cases." But the system was by no means unquestionably accepted and, for a time, seems to have had a very insecure tenure. Thus only one year after its apparent guarantee in the Body of Liberties the retention or rejection of jury trial was the subject of a special commission of inquiry; and it seems that juries may even have been abolished for a time, as a 1652 resolve decrees that "the law about juries is repealed and juries are in force again." . . .

More details are available to the general reader with regard to the administration of justice in colonial Virginia than any other of the New World settlements. These accounts further illustrate the informality of the early period, the temporary emergence of popular, nontechnical justice, accompanied as in the other colonies by manifestations of strong opposition against the professional lawyer. The courts of Virginia initially exercised many powers and discharged many duties of a nonjudicial character, a practice which even today has not entirely disappeared. On the other hand, the legislative branch of the colonial government was equally ready to exercise judicial functions. Thus the first House of Burgesses on August 3, 1619, heard and adjudged a criminal complaint by Captain William Powell against his servant Thomas Garnett. Nor were the proceedings in the courts of Virginia always in full conformity with the law of England. Although the Instructions of King James (1606) provided specifically that in all capital cases the question of guilt or innocence should be decided by "twelve honest and indifferent persons sworn upon the Evangelists," we find in 1630 trials being conducted before juries of thirteen and fourteen members. More importantly, jury trials in Virginia differed from those in the mother country with respect to the requirement that the jury be drawn from the vicinage. As all cases involving loss of life or limb had to be tried before the General Court in Jamestown, it was frequently difficult, if not impossible, to secure jurors from the neighborhood where the crime had been committed. For some time, the jury seems to have been selected from among the bystanders at the court at Jamestown, but by statute (2 Hen. 63–64) in 1662 the problem was met by providing that the sheriff of the accused's county was to summon six freeholders from the neighborhood or jury service (for the inducive fee of twenty pounds of tobacco per day), while the other six members of the panel would be selected from the court's bystanders as had been the custom. A strict property qualification further limited the number of those eligibles for jury service.

A New Formality and New Rights

The consolidation of governmental power in the colonies which was generally accomplished in the closing years of the seventeenth century and during the reign of Queen Anne [1702–1714] also brought about greater stability in the administration of justice. Professional lawyers assumed their place and gained recognition in colonial society. Except in Delaware, the bench, as in England, became the exclusive domain of those trained in the law. Many of those lawyers had received their training at the Inns of Court in London and brought with them, applied, and enforced the procedural modifications enacted in England after the Revolution of 1688. Thus these reforms, the new liberality as to witnesses and counsel for the accused, became associated in the minds of the people with the aims of greater freedom that had caused the overthrow of the Stuarts [Charles I and James II] and [the pro-monarchy] Tories. No longer could the royal prerogative overawe the courts; indeed, it was the aim now, as declared for Pennsylvania, "that all Criminals shall have the same Privileges of Witnesses and Council [sic] as their Prosecutors."

The Public Prosecutor: A Colonial Innovation

To the American colonists the meaning of this sentence was not what it would have been to their English cousins. For early in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court. The balance would continue to be weighted in favor of the Crown unless extreme vigilance was practiced to safeguard the precarious privileges so recently granted to the accused.

Thus when the Continental Congress declared "that the respective colonies are entitled to the common law, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law," the common law so appealed to must be understood to include not only trial by a jury of twelve men of the vicinage but also publicity of the proceedings, and the right to witnesses and to the assistance of counsel; in short, all the recognized rights of the accused. The denial of these rights was among the grievances complained of in the Declaration of Independence. The inviolability of these rights was asserted in the constitutional documents of most of the new states, which, while differing in details and degree of emphasis, sounded a common note in including, among the fundamental rights of the individual, guarantees against arbitrary practices in criminal proceedings, safeguards to counteract the might of government when it called the individual lawbreaker before the bar of justice.

Variation in the States

The Declaration of Rights of the new state of Maryland (1776), after reiterating, in language borrowed from the Continental Congress's declaration of 1774, the right of its inhabitants to the common law of England and trial by jury, proclaimed "that the trial of facts where they arise, is one of the greatest securities of the lives, liberties and estates of the people," and then enumerated the rights which every man had in criminal proceedings: to be informed of the accusation against him; to receive a copy of the indictment in time to permit him to prepare his defense; to be allowed counsel; to be confronted with the witnesses against him; to have process for his own witnesses; to examine the witnesses, for and against him, on oath; and to have "a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." . . .

South Carolina furnishes a telling example of the high esteem in which Magna Carta was held at the time, in a single brief article of its constitution which obviously was intended to parallel the wording of the Great Charter:

That no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, exiled, or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land. . . .

The most detailed provisions are those contained in the Declaration of Rights of Massachusetts (1780) and the largely identical language of the Bill of Rights of New Hampshire (1784). Elaborately and circumspectly phrased, these documents in essence guaranteed the accused the right to know the nature of the accusation, to decline self-incrimination, to present his own evidence, to meet the witnesses against him, and to have the assistance of counsel; and in words that hark back to Magna Carta they reaffirmed the right to trial by jury or by the law of the land. In each instance, a separate article limited criminal trials to the vicinity where the alleged offense had taken place.

Reluctance to Override States at Constitutional Convention

The New Hampshire articles numbered almost three hundred words; while South Carolina used less than fifty words to cover the same subject. This numerical difference alone is indicative of the diversity of substance to be found among the several states. As the perception and interpretation of the common law varied in the several states, as criminal procedures were more or less fair or arbitrary, so differed the sense of urgency with which the inhabitants of the different states viewed the problem of protecting the accused. Hence it is not surprising that the delegates who convened at Philadelphia in the spring of 1787 made no effort to embody details of criminal procedure in the document they were about to propose to the nation. The original Virginia Plan contained no references whatsoever to the procedure to be had in criminal cases. The New Jersey Plan, however, with an eye toward the preservation of the rights of the states in judicial matters, proposed

that no person shall be liable to be tried for any criminal offense, committed within any of the United States, in any other state than that wherein the offense shall be committed, nor be deprived of the privilege of trial by jury, by virtue of any law of the United States.

A similar provision was included in Alexander Hamilton's draft; and [South Carolina representative Charles] Pinckney's outline suggested the same two guarantees, and in addition would have stipulated that trials should be open and public.

The Committee on Detail adopted the essence of these suggestions and embodied them in its draft constitution as section 4 of Article XI, in language resembling Pinckney's draft:

The trial of criminal offences (except in cases of impeachment) shall be in the State where they shall be committed; and shall be by Jury.

Without much debate, this section was amended in Committee of the Whole in order to "provide for trial by jury of offenses committed out of any State." It was in this amended form that the provision was sent to the Committee on Style, which, without further change, incorporated it in the Judiciary Article of the final document as the third clause of the second section.

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The Colonies Embrace Trial by Jury

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The Colonies Embrace Trial by Jury