The Anglo-American protection of a person’s right to have the legitimacy of accusations made against him determined by a jury of his peers is of ancient origin, so ancient in fact, that the date of its first appearance in English law may be hidden in the fog of distant history.
That said, there is a verifiable and influential date of the express reservation of that most inestimable rights
On June 15, 1215, a cohort of twenty-five rebellious barons gathered on the plains of Runnymede on the banks of the River Thames and exacted from King John his signature on a “Great Charter,” a list of rights known to history by its Latin name: Magna Carta.
Paragraph 63 of that the document declares that “men in our kingdom shall have and keep all these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fullness and integrity, for themselves and their heirs, from us and our heirs, in all things and all places for ever, as is previously described here.”
One of the timeless tenets of English liberty endowed with eternal protection by this famous parchment was the trial by jury. The 39th Clause mandates:
“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”
Measuring the origin of the right to a trial by jury from its codification in the Magna Carta would make that perpetual protection nearly 900 years old. That might not be accurate, however. Believe it or not, there is evidence that the right to a trial by jury as understood in England (and later in America) is of much older origin.
In his History of Trial by Jury, written in 1852, Scottish lawyer and member of Parliament, William Forsyth described the difficulty of determining the genealogy of the trial by jury, as well as a couple of the most prevalent theories on the subject:
“Few subjects have exercised the ingenuity and baffled the research of the historian more than the origin of the jury. No long time has elapsed since the popular opinion was — and perhaps it even now prevails — that it was an institution established by Alfred the Great; and we prided ourselves on the idea that this was one of the legacies of freedom bequeathed to us by our Anglo-Saxon ancestors.”
Forsyth quotes another legal historian who posits, regarding the antiquity of trial by jury, that “in England, it is of a tradition so high that nothing is known of its origin; and of a perfection so absolute that it has remained in unabated rigor from its commencement to the present time.”
Another author, Charles Du Cange, postulated that this principle was practiced by the Normans, who inherited the institution from the Goths.
A survey of the suggested origins of this right reveals that the highly esteemed lawyer and legal theorist Sergeant Stephen, weighs the various theories before declaring his own educated estimate:
“The most probable theory seems to be that we owe the germ of this (as of so many of our institutions) to the Normans, and that it was derived by them from Scandinavian tribunals, where the judicial number of twelve was always held in great veneration,” he writes (a recent academic article on the symbolism of numbers in Old Norse literature reports that among the ancient Norse the number twelve “is lawfully and legendarily the sign of maturity”).
Finally, the most accepted modern attribution of the adoption of the trial by jury in English law was first published in 1898 in The History of English Law before the Time of Edward I co-authored by Frederic William Maitland and Frederick Pollock.
Maitland and Pollock authoritatively assert that “it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury….”
Searching for the precise moment that the first delicate shoot of the great tree of trial by jury broke through the soil of English jurisprudence is captivating and likely to lead the curious down a rabbit hole of research from which it could become impossible to escape!
Of greater value, however, to 21st Century Americans is analyzing why trial by jury is considered a critical facet of the jewel of freedom from government oppression, rather than when it achieved such exalted esteem.
TRIAL BY JURY: DEFENSE AGAINST DESPOTISM
When men form communities they soon come to recognize that the protection of property is the paramount consideration in drafting constitutions. Such legal protection, however, has never proved sufficient deterrent to a man or group of men from expropriating the property of others. This theft is often perpetrated by those elected or appointed to make or enforce the law and historically these legislators will go to great lengths to perpetuate their power and their influence over the property of their compatriots.
In light of this propensity of the powerful to deprive the governed of the full measure of their God-given liberty, the trial was developed as a way of providing those accused by government or by other men of violating the law of the land with a process by which guilt or innocence could be declared by a group of men equal to the accused in legal standing, in other words, a peer.
This equality of legal standing is the root of the word peer, in fact. The English word “peer” descends from the Latin word “par,” meaning “equal.”
Why would the equality of the accused and those tasked with taking the liberty of one of their fellowmen in their hands?
In his paper entitled “An Essay on the Trial by Jury,” Lysander Spooner sets out the necessity of placing a person’s future freedom in the hands of his peers, or political equals:
“To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.
“It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor—that is, with the government.”
Throwing in one’s lot with others is an instinct of mankind, apparently. In his book Politics, Aristotle famously proclaimed that “a social instinct is implanted in all men by nature.” The forming of commonwealths is, well, common, and in the earliest civil polities, the citizens were related by blood and by marriage and would live in close enough proximity to permit one man to witness the virtue or vice of his neighbors.
Living in these smaller societies, men would naturally align themselves against the inevitable usurpation of authority into the hands of a “ruling class.” This division is as old as our currently available historical records. In and around Athens, for example, the Men of the Hills (the poor) were constantly being burdened by the Men of the Plains (the generationally wealthy) and the Men of the Coast (merchants made rich by trade), and the power procured by the newly acquired wealth of the tradesmen was resented by the founding families who were accustomed to making and breaking the law as they would.
Herein lies the genius of the jury!
A man living in a community whose constitution protected his liberty from the whim and will of the powerful could count on his countrymen’s fair evaluation of the evidence of his guilt, regardless of the designs of despots or the conspiracies of the covetous. As Forsyth explains of the ancient German approach to trials, “Nearness of neighborhood in such cases was deemed sufficient to qualify a man for being a witness, for he could hardly in those times be ignorant of matters of common repute around him.”
That is the jury. The jury, if it is properly composed of compatriots, would thwart the theft of tyrants; it would prevent the punishment of the innocent; it would blunt the blow of the book of law thrown at one who took a misstep, but whose reputation is held in high regard by his countrymen; and it would be, again, if justly and impartially empaneled, the first and last barricade between a man and those who would abuse the law to make themselves his master.
The jury, composed of, as described above, men of “maturity;” would also be, as the Frankish law demanded, “good men and true;” men who would not, who could not be enticed by designing despots into sacrificing neither his neighbor’s liberty nor his own rectitude and integrity.
SUB-HEAD: DO JURIES STILL EXIST?
As a former attorney, I can testify personally and with great sadness that the traditional and true definition of a jury has been abandoned. Today, lawyers representing the government and those representing the accused purposefully prevent men with even a whiff of familiarity with the defendant from sitting on the jury that will be tasked with weighing the evidence presented at trial.
Remarkably and regrettably, this process of elimination is the exact opposite of the origin and purpose of the paneling of a jury of one’s peers. Today, a jury is not composed of one’s peers, but of strangers without even a scintilla of personal knowledge of the notoriety or virtue of the man whose life, liberty, and property they take into their hands.
When we speak of the threat to the rights protected by the U.S. Constitution, the right to a trial by a jury of one’s peers is rarely included in the discussion. This is not only odd, but it is a great disservice to liberty, to the timeless traditions of our ancestors, and to the hope that no tricks of tyrants and no pressure by the powerful could deny a defendant of the liberty that is his by nature and by gift of God.
For those skeptical of the description of jury selection set out above, consider the following explanation of the jury selection process and the desirable qualities of jurors published by the U.S. Courts on its official website:
“Each district court randomly selects citizens’ names from lists of registered voters and people with drivers licenses who live in that district. The people randomly selected complete a questionnaire to help determine if they are qualified to serve on a jury.
“When a jury is needed for a trial, the group of qualified jurors is taken to the courtroom where the trial will take place. The judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. Members of the panel who know any person involved in the case, who have information about the case, or who may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason.”
To put an appropriately fine point on the problem, the tyrannical transformation of the United States of America from a confederation of republics into a consolidated nation ruled by black-robed oligarchs has robbed men and women of the United States of not only their right to have their cases considered by their peers, but they have been deprived of even the opportunity of access to such a process! As J. Kendall Few chronicled in his two-volume treatise on trial by jury:
“The opposing concept advocated by the commercial coalition is a form of ‘courthouse aristocracy,’ that is the administration of civil justice by a select few, exclusive of the great mass of the population, on the assumption that the supposedly superior intellect and judgment of those in control will produce more desirable results.”
Could the case be any clearer? Could the goal of a trial by a jury of one’s peers be any more endangered? Has government purposefully prevented Americans from understanding why their ancestors ardently preserved the right to a trial by jury, even against the efforts of tyrants to destroy it? Have juries been judged too likely to prevent the powerful from exerting their will?
THE FOUNDERS’ ESTIMATION OF WORTH OF TRIAL BY JURY
Finally, in due deference to the wisdom of our own Founding Fathers regarding the trial by jury as the sine qua non of a free society, I offer the following statements from that august generation on the subject:
South Carolina General Assembly (1751):
“We are firmly of the opinion that any person who shall endeavor to deprive us of so glorious a privilege as trials by juries is an enemy to this province.”
John Adams (1774):
“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”
Thomas Jefferson (1788):
“I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”
Patrick Henry (1788):
“Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial.”
John Dickinson (1788):
“Trial by jury is the cornerstone of our liberty. We must guard it with jealous circumspection against those new and arbitrary methods of trials which may imperceptibly undermine it. Trial by jury is our birthright, who in opposition to the genius of United America, shall dare to attempt its subversion?”
Alexander Hamilton (1788):
“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
James Madison (1789):
“Trial by jury in civil cases is as essential to secure the liberty of the people as tony one of the pre-existent rights of nature.”