Front Page Titles (by Subject) : Theophrastus: A Short History of the Trial by Jury - American Political Writing During the Founding Era: 1760-1805, vol. 1
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: Theophrastus: A Short History of the Trial by Jury - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 1 
American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 1.
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A Short History of the Trial by Jury
worcester, massachusetts, 1787
“Remind the people of their greatest privilege.”
This essay on the trial by jury and the dangers of excluding citizens from jury lists was published in the Worcester Magazine during the second week of October, 1787.
“The most usual method of trial among the Saxons, was by juries, as at this day, that is, by twelve of the pares curia. The invention of these is attributed by the English lawyers to Alfred, and greatly do they exult over the laws of other countries, in the excellency of this method; but had they been acquainted with the ancient laws of the continent, they would have found the trial by pares common to all the northern nations, though since wore out by the introduction of the civil law—not so common indeed any where else as in England, where every age has gained ground, and wore out the other. Alfred’s merit was therefore in fixing the number, and determining the quality of jurors, rather than in the invention.” Sullivan’s lectures, p. 251
By this as well as by other learned and judicious writers, we are informed, that the trial by jury is older than the British constitution itself; that it existed among all the northern nations, until the tyranny of the Roman empire had subverted it, by establishing the civil law; that it is considered as the only bulwark of the freedom of the people of England; and also that much has been done to give a permanent qualification to jurors, in order to prevent their being made the tools of tyranny, rather than the guardians of liberty.
The qualification of jurors, was expressed in Magna Charta in these words, “liberas et legales homines,” good and lawful freemen. What good and lawful freemen were, was settled by a number of subsequent statutes; those who had been stigmatized, or whipt upon lawful trial, or outlawed by lawful process, were incapable at common law to serve as jurors. By a statute of the 13th of Edward the first, the age of seventy years excused. By the same statute, none were to serve unless they could dispend twenty shillings a year; but as money grew worse, the qualification was altered to keep up the dignity of the order, but was not carried so high as to deprive those who in its origin would have had it from the privilege and honour of serving. A statute made in the reign of Elizabeth, declared that the juror must have an income annually of four pounds a year, from his own freehold estate; a variety of statutes were made restoring the institution, when time or accident had altered it from its ancient standing; and finally, in the reign of George the second, the qualification of jurors was fixed at a freehold estate of twenty pounds a year, over and above the rent reserved; from that time money has remained nearly the same, and no alteration has been necessary to be done, in order to keep jurors upon their ancient constitutional footing.
Thus, amidst all the revolutions which have happened in the empire of Britain, the trial by jury, according to ancient method, has been handed down entire; indeed, as it is coeval with their freedom, it cannot be survived by their liberty.
The institution was brought into this country by the first settlers, who claimed all the rights of Englishmen; in the year 1641 they established county courts, and made provision for a trial by jury. From that time to the year 1759 the inhabitants in town meeting, holding a certain quantity of property, chose jurors of men of like conditions with themselves.
By the charter granted the province in 1692, every person seized in his own right of a freehold estate of the yearly income of forty shillings, or possessed of personal estate of the value of sixty pounds sterling, was capable of being elected a representative, and of voting in town meeting for members of the General Court. By a law made in 1694 jurors were to have the same quantity of estate as voters for representatives. In the year 1759, an act was passed, providing that the selectmen in each town, sometime before the month of December in that year, should take a list of persons liable by law, and which they should judge able and qualified to serve as jurors, and lay the same before their towns, and that the towns should select one quarter part for the Superiour, and the residue should remain for the Inferiour Court; and the names of those persons were to be put into separate boxes, and locked up, and the key to be delivered the town clerk, and those were to be drawn in future to serve on the jury. But even this drawing was not intrusted to the selectmen, nor were they the judges of the qualifications, but the whole was to be done by the people, assembled in town meeting.
Thus from the first rise of juries to the twenty sixth day of February last, a certain quantity of property was a qualification for jurors, both in England and here, and in this country their appointment was in their fellow citizens. But the crown of Great Britain, while we were a part of that empire, despairing to reduce us to slavery, while this privilege remained with us, in the year 1773 procured an act of parliament, providing “that jurors should not hereafter be elected, nominated, or appointed by the freeholders of the several towns, but should be returned and summoned by the sheriffs;” this act of parliament may be seen at large in the record of the Secretary’s office, recited in Ramsay’s history of the war, and complained of in the declaration of independence. It was treated by the Americans as an engine of despotism, and disregarded accordingly.
Previous to the present form of government, and in the year 1777, a law was made, describing the crime of treason, and for regulating the trial thereof. This was done as a permanent law, but was called forth at the time as a check upon the enemies of the revolution, who then remained in the state, and were considered as dangerous and traitorous enemies. By this act it is provided, that any person indicted for treason, shall have the name of the jury two days at least before the day of trial, and shall have the privilege of challenging twenty without cause. No alteration was attempted in the mode of appointment of jurors, or in their qualifications, for however necessary it might appear to withdraw from the box those who favoured the British invasion, yet their advocates were too numerous, too learned, and too powerful, to let such a dangerous innovation take place; indeed all the people were so fully jealous of this darling privilege, while they were spilling their blood to defend it, that no such system could be rendered practicable for a day.
When the present constitution was made, a committee was appointed to revise the laws, and to report such acts as should render them consonant to the present constitution. By the constitution the qualification of electors of representatives was altered from what it used to be under the royal charter, and a law was made in 1784 continuing the mode of appointing jurors, only altering the pecuniary qualification to be the same as that of voters for senators and representatives. Still the people held the right of electing jurors for the boxes; for the declaration of rights established that the General Court should not make any law to deprive any one “of life, liberty or immunities, without trial by jury, unless for the government of the army or the navy.” And here, unless the word jury had a certain and fixed meaning, no privilege was secured by this article; but the word jury has been long established to mean twelve men, appointed in a particular mode, and holding a certain quantity of property, which gives them the right of voting for legislators. To suppose that a power any where exists, to alter or annul this foundation principle of civil liberty, is supposing that there is no constitutional security in the government. The privilege of serving as a juror is a noble privilege, which can never be justly estimated until there is an attempt to deprive us of it, and should there ever be a good federal government established, this will be the only security which will remain, for the freedom of the citizens of the separate states; upon this the freedom of posterity depends.
By the law made in 1784, the selectmen are to lay a list of persons qualified to vote for senators and representatives before their respective towns once in every three years at the least, and the town is to vote one quarter part for the box of the Supreme Judicial Court, and the residue for the other Courts. And that if any person, whose name is put into the box, shall be convicted of any infamous crime, or be guilty of any gross immorality, his name shall not be restored again by vote of the town.
A few remarks upon this act may not be amiss. 1st. The being put into the box is a privilege, which every citizen must be injured in being deprived of.
2. The distinguishing qualification, both in England and here, arises from a certain quantity of estate.
3. We have the privilege by the suffrage of our fellow citizens, and warranted by the constitution.
4. The selectmen cannot deprive a citizen of this privilege without the vote of the town, nor restore it but by that same authority.
5. The town cannot do it but upon the conviction of an infamous crime, or upon acts of gross immorality; should they do it unjustly, the subject can procure a trial by jury, and have a mandamus to restore him to his privilege.
6. That this act does by no means alter the ancient institution, but guards it more strongly against fraud and corruption.
Thus, in this Commonwealth, trial by jury stood until the twenty sixth of February 1787, when an act was passed, providing “that it shall be the duty of the selectmen of the several towns, to which a venire facias shall be issued for jurors, to leave at the Supreme Judicial Court, &c. at any time within one year from the passsing of this act, and such selectmen are hereby required to withdraw from the jury boxes the names of all such persons, As They Shall Judge to have been guilty of favouring the present rebellion, [Shays’ Rebellion] or giving aid or support thereto, prior to drawing out the names of the jurors, that may be called for by the ventie facias.”
Another clause in the same act provides that the judges, “where there is provable grounds for a suggestion, that any person called to serve as a juror has been guilty of favouring the rebellion, they shall set him aside as disqualified.”
A few remarks on this act may be pertinent.
1. That though the election of jurors had been in the people, from the first settlement of the country to the twenty sixth of February 1787, and had been confirmed by the constitution, yet by this act the selectmen, independent of the people, are to withdraw from the box such men as They Shall Judgeto have been guilty of favouring the rebellion, which establishes a precedent for depriving the people at large of the privilege of choosing jurors.
2. The laws before had guarded this important privilege against the corruption of selectmen, as well as that of other officers; but by this act a jury may be completely packed; the judges may send their venire facias to such towns as have selectmen to their own liking, and they may withdraw the names of such persons as they please.
3. Though this is only a measure for one year, yet if it can be done now, it can be done again; if it can be done by a good government, it can be done by a bad one—if it can be done while we have upright judges, it may be done when we have not such.
4. The act was passed when divers persons were in prison, under charge for crimes, and the selectmen had thereby an opportunity to draw jurors which would acquit, or condemn, according to the taste of the selectmen, upon the causes then under protest.
5. The constitution provides, that we shall be governed by fixed and standing laws, but this is a measure calculated for a particular purpose, and for one year only; surely if any right ought to be settled by permanent laws, it should be the mode of returning jurors.
6. Should any person suffer for murder, &c. in consequence of a verdict found by jurors returned upon this law, and the law is unconstitutional, it would be sealing the violation of the people’s rights with their own blood.
7. It is not material to the present question whether the persons condemned are guilty; for however guilty they may be, they are not to suffer without a fair and constitutional trial; because from such a precedent an innocent man may suffer in the same way.
But it may be asked, what is to be done? Shall we have rebels to try rebels? the answer is, state the case as strong as you can, the constitutional rights of the people never ought to be violated, for if this can be done in a green tree, what cannot be done in a day? unless this act is repealed as unconstitutional, it being passed at so early a period after the constitution was made, it will be hereafter considered as part of it.
Some quotations from Judge Blackstone shall close this essay.
“Every man’s property, his liberty, and his life, depends upon maintaining in its legal force, the constitutional trial by jury.” Vol. 3d. Page 351. “If the administration of justice was entirely entrusted to the majistracy, or a select body of men, and those generally appointed by the prince, or such as enjoy the highest offices in the state, their decisions, inspite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity.” Same 379. “This therefore preserves in the hands of the people their share, which they ought to have, in the administration of justice, and prevents the encroachments of the more powerful and wealthy citizens.” Same 380.