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The History of Juries
From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 6.6
The jury system in the United States that we have today evolved from an early English system with roots from Viking and Norman occupations, rather than from Athenian democracy. Juries were not originally random samples of “peers,” but rather select nobles who the sheriff thought might know the facts of the case or the accused, and be trusted to look out for the king’s interests. A committee of twelve men would investigate and seek out the truth, rather than listen to arguments in a court room. A jury might settle a land dispute, or serve as a grand jury to bring charges, but criminal cases were commonly conducted through a trial by ordeal, involving torture. When the Church banned clergy from involvement in trials by ordeal in the thirteenth century, decisions of guilt or innocence devolved to juries.
In 1225, the reissued Magna Carta formalized the right to trial by a jury of one’s peers. This meant that freemen would rule on cases against other freemen, but earls and barons would face a jury only of their “equals.” Since the jurors were hand-picked, guilty verdicts could be relied upon whenever the king desired one. The rights guaranteed in the Magna Carta receded over time, and the king’s Star Chamber courts had absolute legal authority. In 1641, the Star Chamber was abolished and trial by a jury of one’s peers was re-enshrined. In the seventeenth century, juries ceased conducting their own investigations and developed a more deliberative role after hearing the adversarial court process with prosecution and defense.
This system of English Common Law, including juries, was imported to the colonies, and became the basis of the legal systems in the various states. In 1682, South Carolina became the first place in the Americas to institute lottery selection of jurors. By 1765, Sir William Blackstone, in his influential Commentaries on the Laws of England, which was re-published in the Americas before the revolution, wrote that
“… a competent number of sensible and upright jurymen, chosen by lot from among those of middle rank, will be found the best investigators of truth, and the surest guardians of public justice… [a lottery jury system] “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.”
Blackstone even credited the loss of liberty in ancient Rome to their lack of a jury system.
Great Britain’s violation of the right to a trial by a jury of one’s peers was among the grievances leading to the American revolution. Many state constitutions following the 1776 declaration of independence incorporated this right. Delaware's declaration of rights, for example, called trial by jury "one of the greatest Securities of the Lives, Liberties and Estates of the People.” The original U.S. Constitution guaranteed trial by jury for certain cases but not for civil cases. The Anti-Federalists, who opposed the adoption of the Constitution, were generally sympathetic to a more populist, if not democratic vision, and raised concerns about the lack of a Constitutional guarantee for trial by jury in such cases. Juries were seen as a popular bulwark against the risk of abuse by elected government and appointed judges. This protection was subsequently added by Amendment 7 in the Bill of Rights.
The potential for citizen juries to check the power of government was demonstrated early on in U.S. history. In 1793, revolutionary France was at war with multiple European powers including Britain, Prussia and the United Netherlands. Many Americans, such as Thomas Jefferson, supported France and its stand against monarchy, while others, such as Alexander Hamilton, favored Britain. President George Washington, with the support of his cabinet, including both Jefferson and Hamilton, feared the harm that might come to the young nation if it got involved in such continental wars. On April 22, 1793 he declared the Proclamation of Neutrality, which by executive order threatened prosecution of any American who aided either side. Congress had passed no such law. The argument was that authority for prosecution of private citizens was implied by the various treaties of peace and friendship in place between the United States and each of the belligerents.
An American sailor by the name of Gideon Henfield, who had accepted a commission as a privateer on behalf of France, was arrested and brought to trial in July of 1793. There was serious controversy in the press as to the constitutionality of prosecuting a man when no specific Congressional law authorizing punishment had been passed. James Madison and others accused supporters of the Proclamation, such as Hamilton, of being secret monarchists. Justice James Wilson in his charge to the jury said:
“This is, gentlemen of the jury, a case of first importance. Upon your verdict the interests of four millions of your fellow-citizens may be said to depend. But whatever be the consequence, it is your duty, it is our duty, to do only what is right….It is the joint and unanimous opinion of the Court, that the United States, being in a state of neutrality relative to the present war, the acts of hostility committed by Gideon Henfield are an offense against this country, and punishable by its laws.”
At this time, juries did not just decide matters of fact, but also could determine matters of law. In modern times, American juries are typically restricted to determining the facts of the case, while a judge determines questions of what the law is. However juries can still effectively determine matters of law in a particular case through what is called “jury nullification.”
The facts of the case were not in dispute, but Henfield’s lawyers argued that he had not known about the Proclamation at the time of his actions, and further that since there was no Congressionally adopted statute authorizing prosecution of private citizens in such situations, the prosecution was improper. We can’t know whether it was one of these arguments, or simply enthusiasm for the French cause, but the jury found Henfield “not guilty.” The jubilation in the streets at the news of the acquittal reflected both the widespread support of revolutionary France, and perhaps also the power of the people, through the jury process, to counter government “arrogance” by the Executive and Judicial branches. Congress later passed the Neutrality Act of 1794 through the normal law-making process specified in the Constitution.
Alexis de Tocqueville wrote in his Democracy in America of the democratic importance of the American jury system:
The system of the jury, as it is understood in America, appears to me as direct and as extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. ... the jury is before everything a political institution; one ought consider it as a mode of sovereignty of the people. ... The jury, and above all the civil jury, serves to give to the minds of all citizens a part of the habits of mind of the judge; and the habits are precisely those that best prepare the people to be free. It spreads to all classes respect for the thing judged and the idea of right. Remove those things, and love of independence will be no more than destructive passion. It teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in his turn.... The jury teaches each man not to recoil before responsibility for his own acts... It vests each citizen with a sort of magistracy; it makes all feel that they have duties toward society to fulfill and that they enter into its government. In forcing men to occupy themselves with something other than their own affairs, it combats individual selfishness, which is like the blight of societies. The jury serves incredibly to form the judgment and to augment the natural enlightenment of the people. There, in my opinion, is its greatest advantage. One ought to consider it as a school, free of charge and always open, where each juror comes to be instructed in his rights, where he enters into daily communication with the most instructed members of the elevated classes, where the laws are taught to him in a practical manner and are put within reach of his intelligence by the efforts of the attorneys, the advice of the judge, and the passions of the parties. I think that the practical intelligence and good political sense of the Americans must principally be attributed to the long use that they have made of the jury in civil matters… Thus the jury, which is the most energetic means of making the people reign, is also the most efficacious means of teaching them to reign."
Until recently, jury pools were not drawn to create genuinely cross-sectional, or representative bodies. But, since the middle of the twentieth century, a series of U.S. Supreme court rulings and the 1968 Federal Jury Selection and Service Act mandated that jury pools be “selected at random from a fair cross section of the community.” Jeffrey Abramson, in We the Jury: The Jury System and the Ideal of Democracy, points out that these cross-sectional juries served to
“ enhance the quality of deliberation by bringing diverse insights to bear on the evidence, each newly evaluating the case in light of some neglected detail or fresh perspective. …[The effect was also to] silence expressions of group prejudice and to ratchet up the deliberations to a higher level of generality. Jurors wishing to be persuasive would now have to abandon arguments that depended on the particular prejudices or perspectives of their own kind. Their arguments would have to resonate across group lines.”
The jury selection system, however, is distorted by the common practice of peremptory challenges, in which the attorneys for each side seek to assemble a jury that will be biased in favor of their side by questioning and then dismissing some of the randomly selected jurors. While this Voir Dire procedure is nominally allowed for the interests of assembling an impartial jury, there is a powerful incentive and opportunity for the attorneys to attempt to accomplish exactly the opposite. Indeed, the current American jury system fails as a model for many reasons. As Jon Elster observes in his Securities Against Misrule: Juries, Assemblies, Elections:
“In many ways, the American jury system has gotten out of hand. I am referring not only to the bizarre system of jury selection but also to the way in which the system invites judicial hypocrisy or worse. Judges …instruct the jury in incomprehensible language that addresses a possible appellate court rather than the jurors. They tell the jurors that they should ignore facts of which they are fully aware. They do not tell them about the possibility of nullification. They accept challenges based on obvious proxies for race with a straight face. To the (unknowledgeable) extent that these and other pathologies, reinforced by bogus statistical analyses, lead to more death penalties and executions, they come with a heavy cost.”
Obviously a system of sortition for policy matters would need to use a purer lottery than this, with facilitation and education appropriate to the membership. In some cases, a system of stratified sampling might be used when mini-public service isn’t quasi-mandatory, or the body is on the smaller size, in order to protect representativeness.