Trial By Jury

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The American Jury

compiled and edited by Professor Charles Nesson

Harvard Law School

I. English origins, American reception; Embodiment in our Constitution and Bill of Rights; Power to judge law as well as fact.

Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY

The common law jury emerged in the wake of the Norman Conquest of 1066. The jury had roots in practices familiar to Anglo-Saxons brought to England from the continent a few centuries before the Normans arrived. For the Norman conquerors, it served as a means of securing participation by the indigenous subjects of a new monarchy in their judges' application of the lash of royal power. It was thus a source of social and political stability.

The ancient jury took two forms; the grand jury was an assembly summoned from the hundred (a unit of local government) or the larger shire to consider whether in an instance stated by the Crown a crime had been committed and, if so, who should be prosecuted. The petty jury was a smaller group of men summoned from the community to decide the guilt or innocence of a person so charged, or, increasingly as time passed to decide civil cases. Juries sat in the common law courts administered by the royal judges sent out from Westminster to bring the king's law to every shire of the realm.

The petty jury was increasingly used by the royal judges after 1215. In that year, a papal edict withdrew the clergy from the conduct of trials by ordeal, a method by which the royal courts had previously invoked supernatural forces to resolve disputed matters. When that device was withdrawn, the Crown issued a writ acknowledging that his judges were on their own to devise an alternative. No longer permitted to share the odium of decision with the divinity, the royal judges resorted to the jury as a standard feature of their process, thus substituting the community for the divinity as their partner in bearing the weight of moral responsibility for many of their decisions.

Over the nine centuries in which the jury has been in use, it has been radically transformed. Its one constant feature has been its status as a representative of the community being governed. Its one constant function has been to lighten the burden of moral and political responsibility otherwise borne by the judiciary, diffusing that responsibility through the community and thereby strengthening the courts. William Blackstone, so widely read in America, expressed the belief that the 18[su'th'] century jury "ever has been, and I trust ever will be, looked upon as the glory of the English law."

In its thirteenth century form, jurors were subjects drawn from the community in which the dispute arose; they were identified as the persons most familiar with the events in question who could thus decide a dispute on the basis of their personal knowledge. They were, in a sense, the witnesses.

By the eighteenth century when Blackstone wrote, the petty jury had been transformed again. While still drawn from the community, its members were called to decide factual issues on the basis of evidence adduced by the parties. The royal judge performed a limited role as the presiding officer at a jury trial. This was very important to the English monarch because the royal judges were few in number and were drawn from the landed gentry.

The royal judge thus merely instructed the jury on the law they were called to enforce and ruled on objections by parties to the admission of evidence presented by an adversary. He also wielded the contempt power, i.e., the authority to impose summary punishment on any subject who disturbed the decorum of the King's court. But because he was usually merely a facilitator of decisions and was so seldom required to take primary responsibility for a decision, the King's judge (and thus the King) was usually able to avoid the odium of responsibility for results.

The royal judge from Westminster would be sitting in the community in which the dispute arose and from which the jury was drawn. A list or array of persons from which the jurors would be selected was assembled by a local court officer on the basis of his personal knowledge of the community and advice from clergymen and other community leaders. They were, it has been said, "the Rotarians of their day," persons of good repute in their communities. Some were then selected from the array by lot and summoned as members of a venire who presented themselves as persons available for jury service in a particular case. They might be interrogated by counsel or the judge to explore possible disqualifying bias, for those who knew too much about the parties or events were by the eighteenth century excluded from service. Also, counsel would be allowed to strike a number from the panel without stating a reason for his objection, thus affording the parties a measure of authority over those who would decide their case.

Twelve jurors would be selected as the petty jury to hear evidence presented by the parties and to decide the case. That number was large enough to render individual members non-visible, but not so large as to separate them from a sense of personal responsibility for the decision. After hearing the parties and receiving legal instructions from the judge, they retired to a private place for deliberation and then returned a verdict. They were required to be unanimous; the effect of this rule was to place moral pressure to agree on those who were prone to dissent, but yet to allow dissent as a means of recognizing an uncertainty about the appropriate result so profound that no satisfactory decision could be reached.

Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History.

The history of the rise of the jury in both England and America has been inextricably intertwined with the creation and defense of fundamental rights. The jury's origins are a matter of substantial scholarly uncertainty. Orthodox opinion, strengthened by the writings of great legal scholars such as Maitland and Thayer, has held that the jury was a Norman import, brought to England by William the Conqueror and his minions after their victory at Hastings in 1066. More recent scholarly work by Dawson and others has shifted attention to the Anglo-Saxon antecedents of Norman jury procedure. Modern scholars have argued persuasively that important precursors to the jury existed in England prior to the Conquest and likely played a significant part in inducing Englishmen to place their trust in the jury trial mechanisms proffered by the conquerors.

Accounts of the early history of the jury indicate that the Normans pressed a rudimentary form of jury procedure into service to help them secure an administrative hold on the lands they had seized by force of arms. These early "juries" were bodies of citizens summoned by royal command to testify about property arrangements, local customs, and taxable resources in each neighborhood of the realm. One product of this testimony was the Domesday Book recorded in 1085-86. Another was the establishment of a more efficient governmental infrastructure in England than existed elsewhere in Europe. The historically noteworthy characteristics of this early jury procedure include its reliance on the exercise of royal authority, its compulsion of jurors to participate in the adjudicatory process, its utilization of the men of the neighborhood in a corporate body to provide the information upon which to base decisions, and its uniqueness as compared to traditional approaches that relied on the actions of the litigants to settle disputes either by ordeal or combat. These characteristics would remain important facets of the jury's operations for centuries.

The jury's primary function continued to be administrative until the time of Henry II, who came to the English throne in 1154. By a series of statutory enactments, known as assizes, Henry transformed the jury into a genuine instrument of justice. Pollock and Maitland suggest that King Henry first used the jury trial to adjudicate the complaints of tenants who claimed to have been "disseised, that is dispossessed, of [their] free tenement unjustly and without judgment." The new remedy, known as the assize of novel disseisin, offered claimants in such circumstances the opportunity to submit their case to a jury of at least arguably knowledgeable local citizens rather than engage in trial by combat. Novel disseisin was "fully organized" by 1179 and was an overwhelming success. It established a procedural pattern repeatedly copied over the course of the next century to address different sorts of legal claims. The reasons for its popularity were neatly summarized by the early treatise writer generally referred to as Glanvill:

The Grand Assize is a royal favor, granted to the people by goodness of the King, with the advice of the nobles. It so well cares for the life and condition of men that every one may keep his rightful freehold and yet avoid the doubtful chance of the duel, and escape that last penalty, an unexpected and untimely death, or, at least, the shame of enduring infamy in uttering the hateful and shameful word ["Craven"] which comes from the mouth of the conquered party with so much disgrace, as the consequence of his defeat. This institution springs from the greatest equity. Justice, which, after delays many and long, is scarcely ever found in the duel, is more easily and quickly reached by this proceeding. The assize does not allow so many essoins as the duel; thus labor is saved and the expenses of the poor reduced. Moreover, by as much as the testimony of several credible witnesses outweighs in courts that of a single one, by so much is this process more equitable than the duel. For while the duel goes upon the testimony of one sworn person, this institution requires the oaths of at least twelve lawful men.

The jury grew for two reasons other than its administrative efficiency and popularity with litigants. In 1215, Pope Innocent III and the Fourth Lateran Council prohibited ecclesiastical participation in trials by combat and ordeal. This prohibition effectively undermined the existing procedural alternatives to the jury and facilitated its rapid expansion. Professor Dawson has argued that the jury's growth may also be traced to the economic benefits it offered the Crown. The adoption of jury procedure placed most of the work of the judicial system in the hands of unpaid local citizens. While a few professional judges were necessary to supervise the process, most duties were undertaken by men who did not have to be maintained at the king's expense. Thus, a great deal of judicial business could be handled inexpensively and, at the same time, substantial fees could be charged.

It has been suggested that in these early days jurors served primarily as witnesses. There is a good deal of evidence in twelfth and thirteenth century practice to support such a contention. In William Forsyth's 1852 treatise on the jury, he recounted Glanvill's description of jurors as being bound to report to the court their ignorance of the facts of the case. In such situations, "others were chosen who were acquainted with the facts in dispute." Such a procedure makes sense only when jurors are the key source of information.

The method of reviewing jury verdicts and reversing their results in these early days was known as attaint. Professor Thayer found attaint mentioned in cases as early as 1202. Attaint led to a rehearing of the original evidence by a second, double-sized jury of presumably knowledgeable local citizens. If the second jury concluded that the first had erred, the verdict was overturned and the original jurors were condemned to severe punishment on the theory that they had committed perjury. Such treatment could be justified only if the original jurors' failure involved their refusal to disclose a truth of which they were aware. As Forsyth concluded: "Originally a wrong verdict almost necessarily implied perjury in the jurors. They were witnesses who deposed to facts within their own knowledge, about which there could hardly be the possibility of error."

The treatment accorded subscribing witnesses in medieval times also supports the witness-function hypothesis. Any and all subscribing witnesses were generally required to be produced when a deed or similar document was at issue. These witnesses were then "combined" with the jury that was to decide the case. This amalgamation suggests a parity of function consistent with the argument that all of the jurors were witnesses of one sort or another.

While subscribing witnesses presumably had information to impart to the court, individual jurors were not necessarily well informed as to the facts of the case. To increase the jurors' knowledge, procedures that culminated in statutes enacted as late as 1427 required the sheriff to convey the jurors' names to the parties at least six days in advance of trial so that the parties could "inform" the veniremen of pertinent facts. By the same token, adjudicatory procedures were arranged so that jurors would feel at least some "duty" to investigate the questions to be tried. All of these procedures served to press jurors into the witnessing role.

Yet the jury was never simply a collection of witnesses. Professor Dawson has ably pointed out the weaknesses in the witness hypothesis. He noted that while it was never expected that every juror would be an eyewitness, the jury was always required to enter into a collective verdict, representing the majority's opinion rather than simply delivering individual views of the evidence. Eventually, English procedure cut the ties that bound jurors to any sort of witnessing role. Perhaps the most significant step in this direction occurred in the mid-fourteenth century when jury verdicts were required to be unanimous. While unanimity might seem a neutral proposition with respect to the juror-as-witness theory, a deeper examination suggests otherwise. When jurors are genuine witnesses, there are likely to be disagreements among them, as is the case with almost any group of a dozen observers. When jurors are compelled to harmonize their views into one conclusive verdict, their individual witnessing functions inevitably must be subordinated to the group's need for consensus.

Professor Dawson argues that unanimity was embraced by English judges so that they could "divest themselves of any duty to assemble or appraise the evidence. The fact-finding function was imposed instead on groups of laymen, whose ignorance was disguised by a group verdict and whose sources of knowledge the judges refused to examine." It is not clear why unanimity was adopted, but litigant acceptance of juror-driven rather than judge-conducted factual inquiry was a likely cause. In addition, the tremendous savings in time and money achieved by relying exclusively on juries rather than a corps of inquiring magistrates to sift through the evidence likely motivated this decision.

The connection between witnessing and jury service was further eroded as the juror knowledge requirement, the attaint procedure, and the mixed juror-witness deliberation mechanisms were altered or abandoned. ... By 1682 it had become a punishable offense to contact or inform jurors of any facts or law related to an impending trial. Attaint died out as a method of review no later than the early sixteenth century. ... Perhaps as important as the decline of the jury's witnessing role was the rise of in-court testimony as the basis for decision. While it may be impossible to determine the precise moment that courtroom procedure shifted to testimonial presentations in open court, such presentations clearly came to dominate over the course of the fifteenth and sixteenth centuries... Statutes requiring the testimony of one or more witnesses began to appear during the 1500s, making in-court inquiry essential in some cases. Throughout this era, barriers to live testimony, like charges of maintenance and conspiracy, were, albeit slowly, being dismantled. The final movement towards in-court testimony probably came in the mid-1600s when jurors were isolated from outside influences and were required to decide cases on the basis of what was presented in open court.

The early history of the English jury is remarkable not only because of its constant adaptation to new and different needs, but also because of its contribution to the establishment of certain fundamental principles of democratic governance. These principles, and the jury itself, came to play a critical part in the tumultuous events leading to the fall of the Stuarts, the rejection of absolute monarchy, and the rise of parliamentary government.

From its earliest days, the British jury was called upon to perform a wide range of tasks. Its administrative and adjudicatory activities made it possible for the king to achieve a greater level of centralized control in England than was possible anywhere else in Europe at the time. Yet as Professor Dawson has indicated, relying on the jury and other lay decisionmakers such as justices of the peace had the unanticipated effect of training "English society, through its local leadership, in the skills and the practice of self-government." Over the course of 600 years, English jurymen learned to rule themselves. They developed traditions of independence from central bureaucratic authority. These skills and attitudes did not spring up overnight, but were nurtured through centuries of jury work. When the struggle for political liberty was joined in the seventeenth century, Englishmen who had known and enjoyed self-governance were ready to fight for what they had come to perceive as their rights.

The jury was also responsible for introducing the "middling sort," men of neither the aristocracy nor upper gentry but still of independent means, to the responsibilities of governing. Over time these citizens would become the bedrock of English political democracy. As Stephen Roberts explained, in the 1600s "the jury was the most representative institution available to the English people." How this came about is not hard to imagine. From very early in the jury's history, the wealthy strove to avoid jury service and place others on the panels in their stead. Statutes from the time of Edward I (1285 and 1293) point to the evasive conduct of well-to-do potential jurors. Those who became the mainstay of the jury system were men of modest property holdings. While there were many complaints in the sixteenth and seventeenth centuries that such jurors were not "sufficient freeholders," it would appear that the yeomanry "formed the social backbone" of the jury system. This resulted in a significantly broader distribution of power through the upper economic strata of English society, and helps to explain the alarm of those most highly placed in society.

The jury became even more important when the volume of litigation soared in the sixteenth and seventeenth centuries. A recent study of the thousand-person village of Earls Colne found that more than 200 legal actions were filed between 1589 and 1593. In such litigious times, jurors played a critical role in regulating society. That the middling sort were assigned this task bespeaks their access to real power and exposure to the problems of governing. Blackstone aptly summarized the role that the middling sort came to play:

[A] competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.

In the seventeenth century the Stuart kings increasingly sought to intrude upon these and other traditional power arrangements. The predictable response from juries was a rising tide of resistance. John Beattie, one of the finest modern historians of seventeenth and eighteenth century legal practice, has declared that "[t]he late seventeenth century was the heroic age of the English jury, for in the political and constitutional struggles of the reigns of Charles II and James II, trial by jury emerged as the principle defense of English liberties."

One of the most important moments for the jury came in 1670 when the Quakers William Penn and William Mead were prosecuted for preaching in public. ...

The Jury Breaks Free (from Dwyer, In the Hands of the People)

The kings and lords who adopted the jury saw it as a way to keep order in a realm plagued by strife and lawlessness. They had not the slightest thought of expanding citizens’ rights; what mattered to them was simply that the jury system worked. Disputes over land ownership, the prime source of medieval civil cases, moved from the dubious and deadly field of battle to the courts. Among contending landowners, violence gave way to litigiousness. Criminal cases were tried, under a judge’s watchful eye, by jurors who knew the neighborhood, the accused, and the victim. Justice was rough but better than Englishmen had known before – and so the new system buttressed the crown’s power.

But the jury, like many other children, soon surprised its parents. It became not just a tool of government but a welling up, a resistance, a brake on cruelty and excess, a force for reason and common sense and mercy. To play that role in full it had to win its own freedom – its right to decide cases without fear of reprisal by the king or the judge or the local lord. The culminating case brought the scion of one of England’s great families into the criminal dock.

Admiral Sir William Penn was a lion of the seventeenth-century establishment. He had fought in naval wars against the Dutch, taken Jamaica for the crown, won a knighthood, and written the British navy’s tactical handbook. He was the wealthy owner of estates in England and Ireland. His was a life of scope and command – except that he could not, no matter what he did, control his son and namesake.

The younger William Penn was bright, high-spirited, and potential heir to a fortune. Yet somehow – just how, the admiral could not fathom – he had become a religious dissenter while still a schoolboy. Delivered to Oxford at age sixteen for a gentleman’s education, William had lasted only a year before being sent down for nonconformity. Everything the admiral had done for him since – a sojourn in France, a tour of duty managing the family estates in Ireland – seemed only to strengthen the boy’s pigheaded convictions. By his early twenties, William had become a Quaker, and, worse yet, a spokesman and pamphleteer for his new faith.

The admiral was apoplectic. Of all the dissenters, the Quakers – the Society of Friends – were among the most despised. They were pacifist, virtuous, independent, and serenely confident. They called everybody “thou” regardless of rank. They refused to take oaths – a serious offense when oath-swearing was a test of loyalty. They were so nettlesome that more than three thousand of them were imprisoned in the first two years of the Restoration.

The admiral cursed and threatened to disinherit his son. But William was deaf to threats; he heard only the quiet voice of the Quaker conscience. And in him the Friends had found an ideal champion: a young man not only brave and charismatic but, as it happened, an aristocrat.

Penn wrote pamphlets attacking Anglican Church doctrines. The authorities locked him up in the Tower of London, which of course only fueled his fire. Although dissenters in that age were jailed on the flimsiest grounds, they were allowed to pass the time by writing. Penn, in the Tower, wrote a classic of prison literature: No Cross, No Crown, a book expounding the Friend’ morality with eloquence and good humor. The Quakers hoped not just to reach heaven but to change the world. “True Godliness,” wrote Penn, “don’t turn men out of the world, but enables them to live better in it, and excites their endeavors to mend it.”

In the summer of 1670 William Penn, released, was again at large in London. He was now twenty-six and filled with self-assurance.

On Sunday, August 14, he wanted to give a sermon, but found that the city authorities, struggling to silence Quaker preachers, had padlocked the Friends’ meetinghouse in Gracechurch Street. Barred from his church, Penn spoke in the street. A crowd of several hundred gathered – bustling, listening, talking among themselves. Penn was assisted by William Mead, a forty-two-year-old linen draper, who stood nearby.

As Penn was speaking, constables forced their way through the crowd. Armed with warrants, they arrested Penn and Mead and took them to Newgate Prison. An indictment charged both men with unlawfully assembling and disturbing the peace. Penn, it alleged, “by abetment of … Mead … did preach and speak,” and as a result “a great concourse and tumult of people in the street … a long time did remain and continue, in contempt of … the King, and of his law, to the great disturbance of his peace.”

This was a serious charge, a felony akin to insurrection or rebellion. Penn and Mead, if convicted, would face heavy penalties. They knew this and were ready for it. “And now, dear father,” Penn wrote to the admiral, “be not displeased or grieved. What if this be designed of the Lord for an exercise of our patience?” The accused men’s earthly hope would be the jury, an institution that was, by this time, four centuries old but still evolving.

Jury trials in the beginning were simple and direct. Yoemen of the vicinity were summoned to serve, and when twelve were chosen the trial went forward speedily. The jurors were sworn to give a true verdict based on what they knew of the parties and the facts; as time went on, and communities grew, the testimony of witnesses was brought in.

In civil cases a highly technical system of written pleadings came into being. The documents, written in a bastardized tongue called Law French, had to meet rigid requirements in stating the claims and defenses. An error of form could lose the case; counsel’s verbal dexterity replaced the client’s broadsword. Trial, when it occurred, was by jury.

Criminal cases were simpler, shorter, and almost entirely concerned with the fates of lower-class people. It was here that juries began to disagree at times with official mandates, and to say a muted “no.” In the Middle Ages, as now, the judge and jury usually agreed on the outcome, although the judge’s agreement was seldom voiced. But what happened – what should happen – when the judge and jury disagreed? When the judge believed firmly that the jury was letting off a guilty man? When that guilty man posed a threat to the very crown that appointed the judge and kept him in red robes and full-bottomed wig?

The struggle over who would have the last word – the judge or the jury – began in medieval criminal trials. There were no trial lawyers in these cases; the judges ran the proceedings, questioned the witnesses, instructed the jury. The accused was not presumed innocent. He had no right to counsel, nor to remain silent, nor to subpoena witnesses, nor to appeal. He could defend himself by speaking in answer to the proof against him. The theory was that in innocent man’s spontaneous reaction to the charge would be an ample defense. “[I]t requires no manner of skill,” said a defender of the system, “to make a plain and honest defense, which in cases of this kind is always the best.”

Records predating the sixteenth century are scant, but Sir Thomas Smith’s observations, written when Elizabeth I was a young queen in 1562, probably described what had been practiced for many years. Sir Thomas, a careful scholar, gives us a vivid glimpse of the law courts that swiftly sent men and women to the gallows, or branded them, or turned them free.

There were tiered benches for the traveling royal judges, for local justices of the peace “according to their estate and degree,” and for the staff and clerks. The prisoners, charged by a grand jury, were brought in “all chained to one another.”

Then the crier crieth, and commandeth silence. One of the judges briefly telleth the cause of their coming, and giveth a good lesson to the people. Then the prisoners are called for by name, and bidden to answer to their names.

The clerk read the charge against each defendant and asked for his plea. The ritual answer was “by God and country” – which meant trial by jury.

Jurors, “substantial yeomen, that dwell about the place, or at the least in the hundred, or near where the felony is supposed to be committed,” were called to fill the box. A defendant could object that a juror was biased, and might succeed in getting a challenge upheld. When a jury of twelve was ready the court called for witnesses.

By the time Smith wrote, juries relied on evidence presented to them. If no witness showed up, the accused was released. But “this doth seldom chance,” according to Sir Thomas, “except it be in small matters.”

The witnesses were sworn and the first one, usually the victim of the crime, was asked if he knew the prisoner. “He saith yea, the prisoner sometime saith nay.” Often there were arguments between the witness and the man or woman on the dock:

I know thee well enough, thou robbest me in such a place, thou beatest me, thou tookest my horse from me, and my purse, thou hadst then such a coat and such a man in thy company: the thief will say no, and so they stand a while in altercation, then he telleth all that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens which we call in our language evidence against the malefactor.

There were arguments, too, between jurors and defendants; unlike today’s passive listeners, jurors often jumped into the fray. When the evidence was in, the judge instructed the jury:

Good men (saith he), ye of the inquest, ye have heard what these men say against the prisoner, ye have also heard what the prisoner can say for himself, have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said.

Little else was said about the law; no elements of the offense were laid out, no burden of proof defined.

When the first case was submitted, the jury usually stayed in the box and listened to the evidence in the next case, and the next. At last, overtaxed, the jurors might ask for mercy: “My Lord, we pray you charge us with no more, it is enough for our memory.”

With several cases to decide, the jury would be sent out to deliberate. When it came back the foreman was asked to state the verdict on each defendant:

[W]hat say you? Is he guilty or not guilty? The foreman maketh answer in one word, guilty, or in two, not guilty: the one is deadly, the other acquiteth the prisoner.

A man who showed that he could read, who had not been convicted before, and who stood convicted of a “clergyable” offense (depending on the time and place, this might be simple theft, or poaching, or any felony other than murder or highway robbery), could demand the right of clergy [which meant punishment by branding instead of death]. The judge would say:

[T]hey have found you guilty, thou has nothing to say for thyself, the law is, thou shalt first return to the place from whence thou camest, from thence thou shalt go to the place of execution, there thou shalt hang till thou be dead.

A few days later the prisoner would be hanged before a crowd of onlookers. There was no appeal. As Sir Thomas wrote: “[N]either judge nor justice hath to do, or can reverse, alter or change that matter, if [the jury] say guilty.” Death was the punishment for all felonies, from theft to murder.

The records that have come down to us show that in the thirteenth and fourteenth centuries a high proportion of felony defendants – perhaps a majority – were acquitted. Some acquittals were no doubt due to failure of proof; medieval charging methods left plenty of room for accusations never borne out. Others must have resulted from jurors being bribed, of from their fearing revenge by a defendant’s allies and relatives. But it is clear that juries in many cases voted to acquit simply because they believed the defendant should not be put to death. So it was that the death penalty played an unexpected role in creating modern liberty – it strengthened the trial jury’s independence.

Faced with medieval laws that condemned all felons to the gallows, and that recognized no degrees of homicide, jurors who thought mercy was called for worked around the law by finding self-defense, or accident, or some other justification. Their common sense brought flexibility to harsh and rigid laws. They proved what today’s trial lawyers know: Juries do not just “find facts,” they decide whole cases. As law professor Thomas Green has written, the work of early juries:

involved an assessment of personal worth: Was the suspect the sort of person likely to have committed a certain act with malice? And almost inevitably trial jury verdicts came to be judgments about who ought to live and who ought to die, not merely determinations regarding who did what to whom and with what intent.

As long as jurors relied on their own knowledge of the facts, the judge was ill equipped to dispute the verdict; he did not know the evidence. But as witnesses were brought in, as trials began to turn on proof received in open court, a tension developed: the judge had heard the evidence too; what if he thought the jury was wrong?

We are accustomed to juries doing their work without fear. Whatever their verdict may have been, today’s jurors leave the courthouse immune to official reprisals and even to questions about how they reached their decision. (That some jurors choose to give press interviews or appear on talk shows is beside the point.) These rights of jurors did not fall from the sky; they were hard-won against a determined government.

Anyone who resents jury service as an inconvenience might ponder what it was like five hundred years ago. To be summoned was to be dragged into harm’s way. Jurors were expected to reach a verdict that was not just honest but true – failing which they could be punished. If the judge or another high personage disagreed with the outcome, a writ of attaint could issue. A new jury of twenty-four would be sworn to try the original jurors for perjury. If the second jury decided the first had reached a false verdict, then, as an observer wrote in 1470: “All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.”

Given this prospect, many a jury was loath to reach a verdict at all. Coercion was the bench’s frequent response. Jurors were routinely denied food and water while they deliberated. If they were obdurate the judge might have them hauled through the town in open carts until they came to their senses. If they returned a verdict the judge thought wrong, they might be harangued and sent back to reconsider – often with a reminder of the peril they faced. That peril grew to include sanctions faster and surer than the cumbersome writ of attaint. The judge, displeased by a verdict contrary to his advice, might fine the jurors on the spot, with imprisonment until they paid. Some jurors paid; others gave in to the pressure by changing their verdict.

As the Middle Ages gave way to the Renaissance, conviction rates went up – due in part, it appears, to judicial pressure tactics. But still jurors resisted, in many cases, when their sense of justice told them to.

The crisis came in the seventeenth century – in Restoration England, a time of celebration among the gentry, high comedy in the theaters, and persecution of religious minorities in the streets and courts. Charles II, called to the throne from exile after a chaotic civil war, was not the kind to hold a grudge. Nor did he take too seriously the demands of religion. He had developed, while on the Continent, a taste for entertainments and mistresses, which he continued to indulge while king. He agreed to share power with Parliament. Revenge would be kept to a minimum; only a dozen men held responsible for the beheading of Charles’s father, eleven years earlier, would be hanged. One of these public executions was described by Samuel Pepys, then a young clerk in the Royal Navy’s administrative office, in his diary entry for October 13, 1660:

I went out to Charing Cross to see Major-General Harrison hanged, drawn, and quartered – which was done there – he looking as cheerfully as any man could do in that condition. He was presently cut down and his head and his heart shown to the people, at which there was great shouts of joy.

Consistent with his friendly and easygoing nature, Charles II had little interest in persecuted religious dissenters; he was even suspected of Catholic sympathies. But the gentry-dominated Cavalier Parliament did not share the king’s laxity. The Church of England was restored as the realm’s official faith. In an age of endemic persecution, Parliament saw no reason to tolerate dissenters who had been on the Puritan side in the civil war, whose rejection of ecclesiastical authority threatened the establishment, and whose insistence on spiritual freedom might unwittingly open the door to the dreaded Catholics. It passed laws cracking down on nonconformists. In the Conventicle Act of 1664, Parliament made it a crime to conduct or attend any religious service that did not use the Anglican liturgy. The Quakers were a prime target of this legislation, and of the laws prohibiting unlawful assembly and breach of the peace.

By the time their trial began on September 1, 1670, William Penn and William Mead had been in jail for sixteen days. They were brought before the London Court of Sessions. Presiding were the lord mayor of the city, the recorder (the city’s chief criminal judge), and five aldermen. A jury of twelve was sworn to “well and truly try, and true deliverance make betwixt our Sovereign Lord the King, and the prisoners at the bar.”

Penn’s account of the trial, written shortly afterward, has come down to us; most of it is uncontradicted by the lord mayor, who also wrote a post-trial narrative.

The lord mayor began by trapping Penn and Mead on a point of Quaker belief. The Friends habitually kept on their wide-brimmed hats in the presence of officials; doffing their hats, they believed, would pay undue homage to earthly powers. Yet Penn and Mead came into court bareheaded.

“Sirrah, who bid you put off their hats?” said the lord mayor to a bailiff. “Put on their hats again.”

A court officer carried out this order and the two men were brought to the bar with their hats on.

“Do you not know that there is respect due to the court?” the recorder asked them.

“Yes,” said Penn.

“Why do you not pay it then?”

“I do so,” said Penn.

“Why do you not pull off your hat then?”

“Because I don not believe that to be any respect,” Penn answered.

The recorder pounced on this: “Well, the court sets forty marks apiece upon your heads as a fine for your contempt of the court.”

The evidence had not begun and already the defendants had been fined. In reply Penn showed his courage and wit: “I desire that it might be observed, that we came into the court with our hats off, and if they have been put on since, it was by order from the Bench; and therefore not we, but the Bench should be fined.”

The gallery could see already that this trial would provide high entertainment. The defendants were fearless and the lord mayor and recorder were going to bait them.

The crown called as witnesses three men who had seen Penn preaching in Gracechurch Street. Questioned by the bench, they said that because of crowd noise they had been unable to hear Penn’s words. It did not matter; far from denying that Penn had preached, the defendants gloried in what they had done. Penn said: “We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves to preach, pray, or worship the Eternal, Holy, Just God, that we declare to all the world, that we do believe it to be our indispensable duty.”

The defendants demanded to know upon what law the indictment was based. “Upon the common law,” answered the recorder. He refused to be more specific. If the law “be common,” said Penn, “it should not be so hard to produce.” Penn challenged the legality of the charge. “The question is not whether I am guilty of this indictment, but whether this indictment be legal.”

The court’s patience was quickly exhausted. “Take him away,” said the recorder. “My Lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do anything tonight.”

The lord mayor agreed. “Take him away, take him away,” he said. “Turn him into the bale-dock.”

As Penn was led away he called out to the jury: “Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury …”

The bailiffs confined Penn to the bale-dock, a corner of the room enclosed by partitions that did not reach the ceiling. Penn and the jury could no longer see each other.

William Mead, questioned next, told the jury he was a peaceable man and the indictment was riddled with lies. “the lord Coke tells us,” he said, “what makes a riot, a rout and an unlawful assembly.”

“You deserve to have your tongue cut out,” the Lord mayor answered Mead.

“Thou didst promise me,” said Mead, “I should have fair liberty to be heard; why may I not have the privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.”

“I look upon you to be an enemy of the laws of England,” said the recorder, “… nor are you worthy of such privilege, as others have.”

“The Lord is judge between me and thee in this matter,” said Mead. He too was hauled away to the bale-dock.

The recorder then instructed the jury:

You have heard what the indictment is, it is for preaching to the people, and drawing a tumultuous company after them, and Mr. Penn was speaking; if they [the Quakers] should not be disturbed, you see they will go on; there are three or four witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it: after this, you have heard by substantial witnesses what is said against them: Now we are upon the matter of fact, which you are to keep to, and observe, as what has been fully sworn, at your peril.

In other words, the jury should decide only whether Penn preached and Mead abetted him; the evidence showed these things had been done; and a verdict other than “guilty” could bring down punishment on the jurors’ heads – the verdict was “at your peril.”

At this point Penn climbed to the top of the bale-dock wall and called out: “I appeal to the jurors who are my judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners …”

“Pull that fellow down, pull him down,” said the recorder.

Mead then appeared at the top of the wall and said: “Are these according to the rights and privileges of Englishmen, that we should not be heard, but turned into the bale-dock, for making our defense …”

“Take them away into the Hole,” the recorder said.

The prisoners were taken downstairs to a place called “the stinking hole.”

After an hour and a half the jurors reported that they stood eight to four for conviction. One of the aldermen knew a juror, Edward Bushel, and he suspected a holdout. “Mr. Bushel,” said the alderman, “you have thrust yourself upon this jury … You deserve to be indicted more than any many that hath been brought to the bar to this day.”

Bushel protested: “No, Sir John, we were three-score before me, and I would willingly have got cut off, but could not.”

The lord mayor threatened Bushel with branding: “Sirrah, you are an impudent fellow. I will put a mark upon you.”

Sent out to deliberate again, the jury soon came back with a verdict. The prisoners were brought in and the clerk asked: “Was William Penn guilty or not guilty?”

“Guilty of speaking in Gracechurch Street,” said the foreman.

The recorder was incensed. “You had as good say nothing.”

The lord mayor demanded: “Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?”

On one side were the robed officials at their elevated bench, the bailiffs and guards, and behind them all the force and majesty of the state. On the other were twelve ordinary men in the jury box, powerless as individuals, unschooled in the law. At the lord mayor’s demand some of the jurors “seemed to buckle,” but others stood firm. The foreman said, “My Lord, this was all I had in commission.” The court told the jurors they would not be released until they had reached a verdict, and sent them out again.

Half an hour later the jury was back. The verdict on Penn was the same: “Guilty of speaking in Gracechurch Street.” The verdict on Mead was new: "Not guilty."

The lord mayor was enraged: "What, will you be led by such a silly fellow as Bushel?" The recorder joined in: "Gentlemen, you shall not be dismissed, till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire and tobacco; you shall not ... abuse the court, we will have a verdict by the help of God, or you shall starve for it."

Penn protested: "My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled."

"Stop that prating fellow's mouth, or put him out of the court," said the recorder.

Penn at this point showed that he was a born advocate, even though not a lawyer. The battle so far had consisted of the court officials insisting that Penn had preached to a tumult and the defendants arguing that the proceedings were unjust. Penn now managed to get a defense on the merits—on the facts of the case—before the jury for the first time. "[T]he jury cannot be so ignorant," he said, "as to think, that we met there, with a design to disturb the civil peace, since (first) we were by force of arms kept out of our lawful house, and met as near it in the street, as their soldiers would give us leave; and (secondly) because it was no new thing ... but what was usual and customary with us; 'tis very well known that we are a peaceable people, and cannot offer violence to any man."

He turned to the jury: "You are Englishmen, mind your privilege, give not away your right."

"Nor will we ever do it," came the answer from the jury box.

Out again went the jurors. They were kept "all night without meat, drink, fire or ... so much as a chamber pot though desired." At seven the next morning, Sunday, they repeated their verdict: "Guilty of speaking in Gracechurch Street."

"To an unlawful assembly?" demanded the lord mayor.

"No, my Lord," answered Edward Bushel.

You are a factious fellow," said the lord mayor. "I'll take a course with you ..."

Bushel answered calmly: "Sir Thomas, I have done according to my conscience."

"That conscience of yours would cut my throat," said the lord mayor. "... I will cut yours as soon as I can."

Twice more the jury went out and twice it came back, its verdict unchanged. "Have you no more wit," said the mayor, referring to Bushel, "than to be led by such a pitiful fellow? I will cut his nose."

"It is intolerable that my jury should be thus menaced," said Penn. "Is this according to the fundamental laws? Are not they my proper judges by the Great Charter of England?"

"My Lord," said the recorder, "You must take a course with that same fellow."

"Stop his mouth, gaoler, bring fetters, and stake him to the ground," demanded the lord mayor.

The recorder was now ready to throw out English liberty: "'Til now I never understood the reason of the policy and prudence of the Spaniards, in suffering the Inquisition among them," he said. "And certainly it will never be well with us, until something like unto the Spanish Inquisition be in England."

The jurors were weary after days of verbal violence. Ordered to go out again, they at first refused. "We have given our verdict," said the foreman, "and all agreed to it; and if we give another, it will be a force upon us to save our lives." But they decided to try again, and after another long night came back with a final verdict: William Penn, "Not Guilty." William Mead, "Not Guilty."

The presiding officials were furious. Each juror was asked to state his name and verdict separately—"which they unanimously did, in saying, not guilty, to the great satisfaction of the assembly."

The officials had to accept the verdict, but still had the power to punish the jurors for deciding the case wrongly. "God keep my life out of your hands," the recorder told the jury, "but for the Court fines you forty marks a man; and imprisonment till paid."

Penn, acquitted, stepped up to the bench and demanded his liberty. The court refused; the defendants were to be jailed for nonpayment of the contempt fines imposed at the start. What about the rights secured by Magna Carta? Penn demanded. "Take him away," said the recorder.

And all of them—Penn, Mead, and the twelve jurors—were locked up in Newgate Prison.

Penn by now was no stranger to prison life. He wrote to his father: "I desire thee not to be troubled at my present confinement; I could scare suffer on a better account, nor by a worse hand, and the will of God be done."

But the admiral, gravely ill, wanted to see his son; he paid the fines for Penn and Mead and secured their release.

Eight of the jurors soon grew tired of confinement and their fines were paid as well. But Edward Bushel and three others stood their ground. They retained counsel and sued in the Court of Common Pleas for their freedom and remission of their fines. Released on bail, they still pursued their case.

The decision in Bushel's Case came in 1671, a year after the trial of Penn and Mead. The jurors had been fined and imprisoned for refusing to reach a verdict "according to the direction of the court in matters of the law." Chief Justice Vaughan wrote a commonsense opinion that avoided any mention of the struggle between the government and the Quakers. Vaughan believed firmly that the law was the judge's province, not the jury's. But he saw also that to return the verdict demanded, the jurors would have had to accept the bench's version of the facts—and they, not the presiding officials, were empowered by the common law to find the facts. The judge, wrote Vaughan, "can never know what evidence the jury have"—a statement reflecting the ancient concept that jurors could consider what they knew from sources outside the trial. And even if all the proof were presented in open court, "the judge and jury might honestly differ in the result from the evidence, as well as two judges may, which often happens."

The modern view that all men are fallible, and that official truth therefore should not be imposed, is implied in Vaughan's opinion: "A man cannot see by another's eye, nor hear by another's ear, no more than can a man conclude or infer the thing to be resolved by another's understanding or reasoning."

Jurors sworn to find a true verdict according to the evidence should not be forced to violate their oaths by returning a verdict against the evidence as they understand it. It follows that no juror should be punished for reaching a verdict deemed wrong by the judge. The writ was granted.

Edward Bushel and his brave jurors had won—not just for themselves, but for all inheritors of Anglo-American law. Judges would harangue juries again, jurors at times would yield to official pressure, the jury system like any other would have its failures. Yet a great principle had been founded: the jurors, not the judge, decide the verdict; they must never be coerced; and they are immune to punishment over a verdict honestly reached, however wrong the judge might think it. Within the boundaries of the law, the people and not their officials would have the last word on guilt or innocence. There has been no greater victory for justice in the courts.

Reconciled at last to his son's Quakerism, Admiral Sir William Penn dropped the threat to change his will, and died soon after the 1670 trial.

Young William inherited the family estates and went on to a famous life. Rash and fearless in his early years, willing to spend months in vile prisons to secure liberty of conscience, Penn became over time a more cautious and prudent man, versed in the subtleties of politics. He even became, while keeping his faith, a friend of King Charles II and his brother James. Penn married twice and fathered fifteen children; wrote more than a hundred works, ranging from broadsheets to books, in support of his religion; and obtained from the king, in satisfaction of a royal debt owed to the admiral, a huge grant of land on the west bank of the Delaware River in America. There, in 1681, he founded a colony named Pennsylvania in honor of the admiral. It was to be a refuge for the persecuted, a community of brotherly love. Penn drew up a charter of government for this new land. It provided: "[A]ll trials shall be by twelve men, and as near as may be, peers or equals, and of the neighborhood, and men without just exception." All thirteen American colonies adopted trial by jury, but in Pennsylvania there was a special resonance: the great Quaker had not forgotten his trial by the jurors of London.

Stephan Landsman: The Civil Jury in America: Scenes from an Unappreciated History.


Alarmed by Bushell, the judiciary sought, especially in seditious libel cases, to narrow the options available to jurors by tightly circumscribing the questions they were asked to decide. In 1688 these efforts were undermined in the Seven Bishops Case when another courageous London jury acquitted seven Anglican bishops of seditious libel for signing a letter that indicated their opposition to the reading of James II's second Declaration of Indulgences in their churches. The acquittal of the bishops has been viewed as the true beginning of the Glorious Revolution and had the effect of catapulting the jury to popularity "as a bulwark of liberty, [and] as a means of preventing oppression by the Crown." Treatises extolling the jury flooded the market and profoundly influenced eighteenth century American as well as English views about jury trial.

The jury came to operate as a defender of rights in both the criminal and civil settings. During the 1760s, a member of Parliament named John Wilkes engaged in a series of radical political actions, including publishing a broadsheet called the North Briton. In Number 45 of that paper, Wilkes appeared to accuse King George III of lying about ongoing peace negotiations with France. Although Wilkes was quickly arrested and charged with seditious libel, the case against him was dismissed on a technical point involving parliamentary privilege. Wilkes immediately commenced a damages action for false arrest, trespass, and theft of personal papers. The jury awarded him the extraordinary sum of £ 1000 as damages against a number of officials including Lord Halifax, the head of the government. This decision's inclusion of substantial punitive damages was remarkable because it is generally agreed to have been the first occasion on which an avowedly punitive award was permitted. The jury's power to award punitive damages in order to protect the rights of citizens in civil cases was emphasized by Lord Chief Justice Pratt, who declared that juries had authority

to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.

Wilkes's case and his ongoing conflicts with the British administration were a matter of keen interest in the American colonies. In the early 1770s, South Carolina went so far as to provide Wilkes monetary support for one of his political campaigns. From the era of the Glorious Revolution to the time of Wilkes's struggles, the jury was the very essence of liberty, a fundamentally democratic institution that served as a check on the tyrannical and oppressive power of government.

B. American Reception; Loss of Power to Decide Law

Juries and Liberty in the United States

(from Dwyer, In the Hands of the People)

Jurors in this country are told to use their own good sense in "finding the facts"—in deciding who is telling the truth, what evidence to believe, what happened on the day in question—but to take as gospel the judge's statement of the law. Typical is this jury instruction recommended by the Federal Judicial Center for use in criminal trials:

Members of the jury, it will be your duty to find from the evidence what the facts are. You and you alone will be the judges of the facts. You will then have to apply to those facts the law as the court will give it to you. You must follow that law whether you agree with it or not.

This tells the jurors to decide the case by a formula: facts (found by the jury) x law (laid down by the judge) = verdict. The outcome, says the usual instruction, "must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy." The jury is to accept the major premise from the judge, fill in the minor premise, and, like a computer, turn out a logical conclusion, the verdict.

This formula describes only a fraction of what goes on—jury work, far from being mechanical, is filled with discretion and value judgments—but it does channel the deliberations, and today it is stridently opposed by a protest movement. In the name of traditional American liberty, the Fully Informed Jury Association (FIJA) and similar organizations lobby for laws requiring that juries be told they can "nullify" the judge's instruction if they disagree with them—in other words, they can decide the law for themselves. Law-resisters across the political spectrum—advocates of unrestricted handgun-carrying, or marijuana legalization, or income tax abolition, or the right to blockade abortion clinics—support his view. Jurors are urged, outside the courtroom, to rise against judicial domination for the sake of higher justice.

In a California abortion protesters' trial (the defendants were charged with trespass and resisting arrest), a newspaper ad asked jurors not only to reject the judge's instructions but to lie about their intentions to do so: "[D]on't let the judge and prosecutor know that you know about this right." Word is gotten to jurors in some drug-dealer prosecutions that the penalties are so draconian they should acquit whether the defendants are guilty or not. The FIJA sends out "jury power information kits" telling potential jurors that "no juror's oath is enforceable." A recent letter to the editor in Seattle argued that the jury "can decline to convict, in the face of the facts, if it feels the prosecution is unwarranted, the accused has suffered enough, the likely penalty is too severe, or the law itself is wrong, misapplied, or vague."

Few citizens and no judges would agree that oaths are unenforceable or that jurors should lie about their intentions. But the protest movement is no crackpot aberration; it is, rather, the latest chapter in a struggle over the jury's role that goes back to our country's origins. It revives a question that has been with us, off and on, from the beginning: what division of courtroom power among the judge, the lawyers, and the jury will serve both justice and liberty?

In eighteenth-century America, the transplanted jury took root and flourished as never before. Lay citizens' common sense was exalted over the specialized knowledge of judges and lawyers; jury independence became an article of faith. The jury gained, and then held for more than a century, the right to decide what the law was, even if the judge thought differently. In criminal cases the jury's right to acquit on grounds of conscience became firm. Although these two threads of jury power are often tangled under the label "jury nullification," they are distinct and have met different fates. Law-defining by juries is no more, but the jury's right to acquit for conscience's sake lives on. And jury discretion—the ability to make the law make sense, to temper the law's iron logic with fairness, moderation, and mercy—endures and thrives. To understand how we reached this compromise—and to see where the current dispute over the jury's role may lead us—we should look first at a great case in which the jurors did very well but the crucial difference was made by one man, a trial lawyer.

William Cosby, installed by King George III as royal governor of New York, lost no time in proving himself arrogant, greedy, and corrupt. He profited shamelessly from his position, silenced any opposition, and removed from office a colonial chief justice who dared stand up to him. Under the law of the time, to criticize a public official, in any public way, was to commit the crime of seditious libel. The thought of jail—even less attractive in the eighteenth century than now—gave pause to most dissenters. A group of wealthy New Yorkers decided to resist Cosby, in a reasonably safe way, by sponsoring a newspaper. The printer's neck, more than their own, would be on the line. They could not do business with the colony's official printer, whose livelihood depended on the governor's patronage. So they turned to John Peter Zenger, a German immigrant who scratched out a living printing religious tracts and playing the organ in church. If the wealthy gentlemen put up the money, would Zenger publish a newspaper? He would. The New York Weekly Journal, edited and printed by Zenger, first appeared in March 1733.

The Journal, issue after issue, carried sharp, satirical articles on the Cosby regime. These were written not by Zenger but by the governor's leading opponents, who prudently refrained from signing their names. One article described a Cosby sycophant as a dog "lately strayed from his kennel with his mouth full of fulsome panegyrics." Another referred to the sheriff as a monkey "lately broke from his chain and run into the country." The Cosby crowd were called "petty-fogging knaves [who] deny us the rights of Englishmen."

As Cosby was repeatedly (and justly) accused of malfeasance in office, a growing demand for his ouster spread from a few discontented aristocrats to the public at large. Cosby fought back with a tactic used many times before and since: to silence his critics, he invoked criminal law. In November 1734 Cosby ordered that four issues of Zenger's newspaper be seized and burned by the common hangman. The hangman gained a small niche in history by refusing. The sheriff then had his servant carry out the order. Not content with burning the printed word, Cosby ordered an arrest—not of the Journal's prosperous backers, but of its impecunious printer. Zenger was charged with "presenting and publishing several seditious libels ... influencing [the people's] Minds with Contempt of His Majesty's Governor."

Zenger was clapped into jail and held on ₤400 bail. The amount was high enough to guarantee that he would stay locked up until trial.

Eight months went by. Zenger, from his pretrial dungeon, gave his wife directions for the Journal's ongoing publication. The paper kept appearing; only one issue was missed.

To hamstring the defense, the governor disbarred two lawyers who had agreed to represent Zenger and appointed a Cosby loyalist, John Chambers, to replace them. As the trial approached the case appeared hopeless. Zenger had unquestionably published the offending articles. Under standard procedure, the jury would be allowed to decide only the fact of publication, which was obvious; the judge would rule that the printed words amounted to seditious libel; and Zenger would be found guilty and sentenced.

But the governor had not reckoned with the difference a great lawyer can make. When the trial opened a stranger rose and introduced himself. He was Andrew Hamilton, age sixty, of Philadelphia, who had come north at the request of Zenger’s influential friends to defend the prisoner. Hamilton (no relation to Alexander) was the most famous advocate in the colonies. The appointed lawyer, Chambers, stepped aside, no doubt with a feeling of relief, and Hamilton took over the defense.

The trial record we have was written by an anti-Cosby lawyer who watched from the gallery, but there is no reason to doubt its essential accuracy. A jury of twelve was sworn. Hamilton immediately shifted the focus of the case: the prosecution, he said, need not bother proving that Zenger had published the articles; this was readily admitted, and the witnesses on hand to prove publication could go home.

The question for the jury, Hamilton went on, would be whether the two articles charged against Zenger were libelous. One article had argued that the “LIBERTIES and PROPERTIES [of New York’s people] are precarious, and that SLAVERY is like to be entailed on them and their posterity …” The other said, “WE SEE MEN’S DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, … TRIALS BY JURIES ARE TAKEN AWAY WHEN A GOVERNOR PLEASES … MEN OF KNOWN ESTATES DENIED THEIR VOTES CONTRARY TO THE RECEIVED PRACTICE …” If these words were true, Hamilton argued, they could not be a libel—and the jury should decide whether they were true or not.

No, said the judge, counsel is wrong on both points. Truth is no defense in a seditious libel case. In fact, “the greater appearance there is of truth in any malicious invective, so much the more provoking it is.” And whether the words were libelous—that is, criminal—would be determined by the judge; the jury would decide only whether the defendant published them. This, too, reflected the prevailing law.

These rulings by the court blocked the defense from presenting evidence that the articles were true. Hamilton had only one weapon left: argument to the jury. And he gave an argument so compelling that it still resounds today. To this great summation we owe the saying, “You’d better get a Philadelphia lawyer.”

“[I]t is to you,” Hamilton told the jury, “we must now appeal for witnesses to the truth of the facts we have offered and are denied the liberty to prove … You are citizens of New York; you are really what the law supposes you to be, honest and lawful men; and, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety.”

Wouldn’t a libel, Hamilton asked, depend on how the words were understood by those who heard or read them? He drew a favorable response from the bench:

JUDGE: That is certain. All words are libelous or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to breach of peace, or are seditious: There can be no doubt of it.

HAMILTON: I thank Your Honor; I am glad to find the Court of this opinion. Then it follows that those twelve men must understand the words in the information to be scandalous, that is to say false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise.

JUDGE: No, Mr. Hamilton; the jury may find that Zenger printed and published those papers, and leave it to the Court to judge whether they are libelous; you know this is very common; it is in the nature of a special verdict, where the jury leave the matter of the law to the Court.

HAMILTON: I know, may it please Your Honor, the jury may do so; but I do likewise know they may do otherwise. I know they have the right beyond all dispute to determine both the law and the fact, and where they do not doubt of the law, they ought to do so.

Hamilton, to the jury, went on:

[I]t is a right which all freemen claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow.

Hamilton reassured all present of his and Zegner’s loyalty to King George: “We

know His Majesty’s gracious intentions to His subjects; he desires no more than that his people in the plantations should be kept up to their duty and allegiance to the Crown of Great Britain, that peace may be preserved amongst them, and justice impartially administered.” But could any of this be served “by a governor’s setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other?”

These are excerpts from a long speech. Reading all of it, one can sense the momentum Hamilton was building. He warned the jury of seditious libel prosecutions, of the length to which “such prosecutions may be carried and how deeply the liberties of the people may be affected.” Too often were such cases “countenanced by the judges, who held their places at pleasure (a disagreeable tenure to any officer, but a dangerous one in the case of a judge).” He pointed out that one reading aloud from the Bible could be charged with seditious libel. He closed with an appeal to higher justice:

[T]he question before the Court ans you gentlemen of the jury is not of small nor private concern, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right – the liberty – both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.

The prosecutor, in an indignant reply, argued that the jury need only decide whether Zenger has published the articles (the judge has repeatedly said so); everything Hamilton had said was meant to sow confusion; the law required a verdict of guilty.

By this time the judge’s feelings were clearly hurt. He gave his instructions:

Gentlemen of the jury. The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of the judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed: The only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.

Hamilton, the consummate professional, was quick to make his peace with the judge: “I humbly beg Your Honor’s pardon: I am very much misapprehended, if you suppose what I said was so designed [to cause offense]. Sir, you know; I made an apology for the freedom I found myself under a necessity of using upon this occasion. I said there was nothing personal designed; it arose from the nature of our defense.”

The jury retired, deliberated briefly, and returned to the courtroom. Was the defendant guilty or nor guilty, asked the clerk, of printing and publishing the libels alleged? “Not guilty,” answered the foreman. “Upon which,” wrote the chronicler, “there were three huzzas in the hall which was crowded with people.” Zenger, the next day, was freed at last from Jail.

The Zenger case – the steadfastness of the ordinary man in the dock, his counsel’s eloquence, the jury’s brave verdict – quickly became celebrated throughout the colonies. Commercial printers, among them Benjamin Franklin, published the trial transcript. The effects on American law were immediate, profound, and lasting. The jury’s power to acquit a criminal defendant for reasons of conscience, even against the judge’s instructions, was made famous. Excessive bail, which had kept an innocent man in jail for months, was prohibited in federal cases when the Bill of Rights was written half a century later. Hamilton’s argument for the right to criticize government foretold the free speech guarantee of the First Amendment. The trial, as Gouverneur Morris, a framer of the Constitution, would say, was “the morning star of liberty” in this country. Seditious libel stayed on the books, but in the colonies it became virtually a dead letter. Hundreds of people were convicted of this crime in seventeenth-and eighteenth century England, while in America, throughout the colonial period, there were only about half a dozen prosecutions and two convictions. Grand juries were reluctant to indict and trial juries, whatever the evidence, ordinarily would not convict. Had it been otherwise – had crown-appointed judges issued the verdicts, or juries been compliant – freedom to speak and write and protest in this country could have withered at birth.

Juries gained still more importance as friction over trade laws and taxes grew between the Americans and the crown. The Navigation Acts were designed by Parliament to channel all colonial trade through England, to the colonists’ disadvantage. These unpopular laws came to be seen as an insult not just to prosperity but to liberty, and colonial juries balked at enforcing htem. Ships impounded by the British under the Navigation Acts were regularly freed by jury verdicts that openly defied the law and the evidence. To bring a smuggler before a jury, complained a Massachusetts governor, “is only trying one illicit trader by his fellows, or at least by his well-wishers.” One Boston smuggler who benefited from jury defiance was John Hancock, whose flamboyant signature appears like an exclamation mark at the bottom of the Declaration of Independence. Great Britain answered the upstart colonial juries by reducing their authority. Courts of vice-admiralty were established to handle maritime cases; in these no juries could be empanelled. The result was more outrage among the colonists.

The Enlightenment, the Age of Reason, the emerging concept of individual rights, the struggle to be rid of English domination after a century and a half of colonial life, and the belief that common men (common men of property, at least) were better equipped than any professional to decide matters of justice, combined to give the jury more power and prestige than it ever had enjoyed before. Free elections and trial by jury, wrote John Adams, were the people’s only security “against being ridden like horses, and fleeced like sheep, and worked like cattle, and fed and clothed like hogs and hounds.” By the time of the American Revolution the abridgment of jury trials had become a prime grievance, listed among George III’s other sins in the 1776 Declaration of Independence. After the war, and after the short-lived Articles of Confederation, the 1787 convention at Philadelphia wrote a jury guarantee for criminal cases into the Constitution (Article III). The 1791 Bill of Rights repeated the guarantee (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”) (Sixth Amendment) and added one for federal civil cases (Seventh Amendment).

The jury, then, entered our national life as an institutional hero. As the Supreme Court would say in the twentieth century, the right to a jury trial was “granted to criminal defendants in order to prevent oppression by the Government.” But there was more to it than that. Colonial Americans believed that twelve qualified citizens could do better justice, civil or criminal, than could one official wearing the black robe of a judge. In the early colonies the judges were not lawyers – there was no strong reason to defer to their judgment – and juries, before a clear separation of powers evolved, often did governmental work beyond deciding cases: they set tax rates, regulated prisons, oversaw road-buliding, and performed other functions later classified as legislative or administrative. The preference for jury decisions continued after the legal profession came into existence. “A clear head and an honest heart,” one New Hampshire judge told a jury, are worth “more than all the law of the lawyers.” This ethic coupled with an early shortage of lawyers and the felt need to resist oppression, produced the doctrine of jury nullification – the belief that juries had the right to determine the law as well as the facts, against the judge’s instructions if necessary. This was seen not as revolutionary but as basic to justice. John Adams called it “an absurdity to suppose that the law would oblige [jurors] to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience.”

What the jury had done in the Zenger case became accepted doctrine. For about a century, jurors were routinely told of their right to nullify, especially in criminal cases. The judge would instruct them on what the law provided, but would often add that if they disagreed they could determine the law by their own lights. Typical was an instruction given by Chief Justice John Jay, who, presiding at a trial in 1794, told the jurors they had the right “to determine the law as well as the fact in controversy.”

The heyday of jury nullification lasted into the late 1800s. Juries were told commonly in criminal cases, and at times in civil cases, that they could determine the law according to their own consciences rather than accept the judge’s version of it. Linked as it was to the American Revolution and the Bill of Rights, this tradition was seen as central to liberty; it was as widely accepted then as the opposite idea is now.

The opposing view – that law-defining must be the sole province of the judge – developed as the post-Civil War nation became industrialized, the urban working population swelled, the pace of life quickened, and commerce grew more complex. Greater certainty and clarity in the law were demanded. Lawyers, once scarce, were now widely available. Some have argued that there was a deliberate effort, sponsored by commercial interests, to shift power from juries to judges. What is certain is that the reductionist view of the jury as “fact-finder” gained currency. In this view, the jury was limited to deciding what had happened and then applying to its findings the law laid down by the judge. This diminished role for jurors appeared more and more frequently in instructions from the bench.

Paul D. Carrington: THE CIVIL JURY AND AMERICAN DEMOCRACY

The right to jury trial was prescribed in the royal charters, which governed each colony. In Puritan New England, where lawyers were scarce, experienced juries heard evidence and rendered verdicts without the burden of hearing from lawyers. Elsewhere, jury practice adhered to the English tradition. In all the colonies, the institution was seen as a bulwark against the intrusive tyranny of the King's judges. All of the eleven state constitutions ratified before 1787 retained charter provisions for the right to trial by jury in both criminal and civil cases, and the institution was retained as well in Rhode Island and Connecticut pursuant to their royal charters still in force. Some constitutions also provided for the grand jury as the source of criminal indictments. Although the new judges being selected in the former colonies did not represent the despised monarchy, they were persons of no marked special status, yet they were assigned the large political role of enforcing the state constitutions, interpreting democratic legislation, and shaping the common law. This was an extraordinary amount of power to confer on the fairly ordinary folks who were to be the judges.

The Constitution of the United States, as proposed in Philadelphia in 1787, included a provision for a right to jury trial in any criminal proceeding brought in any federal court established pursuant to Article III, but it was silent about the mode of trial in civil cases. The demand for such a right in civil cases was at the top of the agenda of the Anti-federalists, who could readily foresee that the federal judiciary would play a large and potentially anti-democratic role, a political role much larger than that traditionally played by the English judiciary. Their demand was granted in the Seventh Amendment. The Fifth Amendment also provided for indictment by grand jury in criminal cases prosecuted in federal court.

It is possible that the failure to include a guarantee of civil jury trial in the Constitution, as proposed by the Philadelphia Convention, was related to the enlarged concern of its members for English creditors whose rights had been assured by the peace treaty. It is generally assumed, and not without reason, that juries are prone to favor civil litigants who are members of the community whom they represent. Insofar as it was the purpose of the Constitution to give comfort to the foreign creditors with claims against local American debtors, who were at that moment agitated by economic deflation, it made sense to say nothing about the right to trial by jury in actions seeking to enforce contracts and mortgages. But farmers and debtors would not tolerate suppression of their right to invoke the judgments of their neighbors, so the federal Constitution was amended to assure that judgments rendered against them would rest on verdicts made by juries. It was especially important to impose the right to jury trial on the federal judiciary because they would be appointed "for good behavior" by a distant President of the United States. Indeed, at the Constitutional Convention there had been stout resistance to the creation of any federal court other than the Supreme Court, and a constitution was possible only if there were a compromise on that point, and so Congress was grudgingly authorized to create such judgeships.

It was important that the Seventh Amendment limited the right to jury trial to "suits at common law." This was taken to mean that there is no right to jury trial when a federal judge is exercising prerogatives inherited from the English Court of Chancery in "suits in Equity." So it remains the law in the federal courts and in most (but not all) states that there is no right to demand for jury trial in proceedings that would have been brought in Chancery, or in the other English courts in which juries did not sit. Most important among cases so classified in the federal courts are suits for injunctions. While the distinction might be seen to be sensible as applied to that class of cases, it is in other respects anachronistic because law and equity are seldom distinguished for any other purpose.

In criminal law, the jury had sometimes performed the function of nullifying oppressive laws imposed by the Crown. In democratic America, it was still thought necessary to frustrate corrupt or otherwise ill-motivated prosecutions. Because the jury is numerous and transitory, it is almost invulnerable to bribery or intimidation. As has been said, it is the one institution in government that has no ambition of its own. In these respects, the jury serves much the same purpose as the separation of powers among the three branches of government. Indeed it constitutes yet another separation of power, this within the judicial branch.

In its role in civil proceedings, the jury performs a comparable function by rendering the legislators who make the controlling law doubly accountable to the people, who first elect their lawmakers and are then called to administer the laws those representatives make. Law departing too far from the common understanding, from common sense, or from commonly shared moral values tends to be modified in its enforcement by civil juries to fit common habits of mind. This accountability was also applicable to judges making the common law.