The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

22

“Trial by Jury”: Six or Twelve Jurors?

The increasingly free and easy judicial revision of constitutional norms is strikingly exemplified by Williams v. Florida,1 wherein the Supreme Court, for the first time in our history, held that a 6-man jury satisfies the requirement of trial by jury. By Justice White’s own testimony a 12-man jury has been the invariable common law practice since “sometime in the 14th century” —600 years. The Court held in 1930 that “it is not open to question . . . that the jury should consist of twelve men, neither more nor less.” 2 But because history furnishes no explanation why the number 12 was chosen, Justice White dismisses it as “an historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” 3 Adherence to a practice for 600 years renders its “accidental” origin irrelevant, for as Coke stated, “usage and ancient course maketh law” 4 —all the more when that usage is embodied with full awareness in a written Constitution. The case for the practical wisdom of 12 jurors has been made by Hans Zeisel, Leonard Levy and others,5 so I shall focus on Justice White’s extraordinary approach to constitutional interpretation.

From Chief Justice Marshall onward the meaning of common law terms or institutions, which had a fixed content at the time they were incorporated into the Constitution, is to be ascertained by resort to that content.6 With little short of disdain Justice White rejects that meaning as representing “mystical or superstitious insights into the significance of ‘12.’ ” 7 “Typical” of such “superstition” is a dithyramb by that great “mystic” Lord Coke, in his crabbed explication of Littleton on Tenures: “it seemeth to me, that the law in this case delighteth herselfe in the number of 12; for there must not onely be 12 jurors for the tryall of all matters of fact but 12 judges of ancient time for tryall of matters of law in the Exchequer Chamber . . . And that number of twelve is much respected in holy writ, as in 12 apostles. ” 8 When men are moved to make exalted, mystical-religious explanations, it is because they deeply venerate the established practice.

Trial by jury was a central pillar of the society the colonists sought to erect; for centuries it had served as cherished buffer against oppressive prosecutors and judges.9 Blackstone, whose Commentaries were widely circulated in the colonies, and whose influence on this issue can be traced into the very terms of a number of State constitutions and utterances of the Founders, stated, “the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.” 10 The North Carolina Constitution of 1776 provided that “the ancient mode of trial by jury . . . ought to remain sacred and inviolable.” 11 Massachusetts, New Hampshire, Pennsylvania, and Vermont provided that it “shall be held sacred”;12 Georgia, South Carolina, and New York, that it was “inviolate forever.” 13 In the Virginia Ratification Convention the Wythe Committee recommended an amendment: that “the ancient trial by jury is one of the greatest securities to the rights of the people, and is to remain sacred and inviolable.” 14 George Mason in Virginia termed it “This great palladium of national safety,” and James Iredell in North Carolina referred to it as “that noble palladium of liberty.” 15 No element of judicial proceedings or power aroused such anxious inquiry as did trial by jury. Every facet of an institution held “sacred” by the Founders, therefore, needs to be approached with respectful regard.

Except for partial rejection of a jury of the “vicinage,” of which more hereafter, there is no indication that any incident of trial by jury was to be more “sacred and inviolate” than another. To the contrary, the First Continental Congress laid claim to the “inestimable privilege of being tried by their peers of the vicinage, according to the due course of the common law”;16 this was repeated in the Maryland Constitution of 1776.17 South Carolina provided that “the trial by jury, as heretofore used . . . shall be forever inviolably preserved.” 18 That usage had been described by Coke as already “very ancient” 19 and was reformulated in Bacon’s Abridgment as calling for a “petit jury . . . precisely of twelve, and is never to be either more or less,” as Chief Justice Matthew Hale had earlier stated.20 This “most transcendent privilege,” Blackstone stated, required a jury of 12.21 In the Virginia Ratification Convention, Governor Edmund Randolph said: “There is no suspicion that less than twelve jurors will be thought sufficient.” 22 Julius Goebel adverted to “popular sensitivity regarding any tampering with the ‘inestimable right of jury trial,’ ” and concluded that “any suggestion that the jury system as then entrenched might be amended in any detail was beyond tolerance.” 23 In the Virginia Ratification Convention, Grayson, for example, stated that “it is generally thought by Englishmen, that [trial by jury] is so sacred that no act of the [omnipotent] Parliament can affect it.” 24 How can this be reconciled with Justice White’s refusal to “ascribe a blind formalism to the Framers”? Far from being “wholly without significance ‘except to mystics,’ ” 25 the Framers would have regarded tampering with the number “12” as shaking the very pillars of the temple.

A Jury of the Vicinage

Justice White attached great weight to the Framers’ refusal to embody in the Constitution a traditional component of trial by jury—that the jury be drawn from the “vicinage,” the “neighborhood, or in medieval England, jury of the county.” 26 Article III of the Constitution provides that the jury trial “shall be held in the State where the said Crimes shall have been committed”; it does not purport to direct how the jury shall be drawn, and no illumination is furnished by the “very scanty history” of the provision.27 It received opposing interpretations in the Virginia Ratification Convention: Madison met an objection “that there was no provision for a jury from the vicinage” with the reply “if it could have been done with safety, it would not have been opposed,” 28 implying that Article III did not require that jurors be drawn from the vicinage. On the other hand, Randolph, who also had been a delegate to the Federal Convention, stated in Virginia, “nor is a jury from the vicinage in criminal cases excluded. This house has repeatedly resounded with this observation—that where a term is used, all its concomitants follow.” 29 In the upshot, the Virginia Convention attached to its approval an amendment proposing trial by a jury of the vicinage.30 And Justice White remarked that “concern” over failure to “preserve the common law right to be tried by a ‘jury of the vicinage’ . . . furnished part of the impetus for introducing” the Sixth and Seventh Amendments.31

In the First Congress, Madison proposed a jury “of the vicinage, with the requisite unanimity for conviction, of the right of challenge, and other accustomed requisites.” 32 It passed the House but was rejected by the Senate; went to Conference and emerged in what ultimately became the final version of the Sixth Amendment: a “jury of the State and district wherein the crime shall have been committed.” This Justice White properly views as “a compromise between broad and narrow definition” of the term “vicinage.” 33 The compromise sprang from the fact noted by Madison that “In many of the States, juries . . . are taken from the State at large; in others, from districts of considerable extent; in very few from the County alone. Hence a dislike to the restraint with respect to vicinage.” 34 What this history proves, is that the “vicinage” States did not have the votes to overcome a constitutional modification of the common law in this respect. Does it follow that the Founders meant also to curtail the right to challenge jurors, for example, which the Virginia Ratifiers were assured had been left intact by Article III,35 or to abolish the “mystic” number “12”?

Justice White draws three negative implications, which cast “considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” 36 First, “the mere reference to ‘trial by jury’ in Article III was not interpreted to include” vicinage.37 But there was more than a “mere reference”: trial by jury was qualified by “shall be held in the State,” which raised differences of opinion whether or not vicinage was affected. At most, Article III modified the common law in that respect alone. Second, “provisions which would have explicitly tied the ‘jury’ concept to the ‘accustomed requisites’ of the time were eliminated.” Justice White recognizes that this elimination is “concededly open to the explanation that the ‘accustomed requisites’ were thought to be already included in the concept of a ‘jury.’ But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect.” 38 The assumption that the “accustomed requisites” already were thought to be included in the concept of a “jury” was not left to speculation. The Ratifiers had been assured again and again in Virginia by John Marshall, by Edmund Pendleton, the Mentor of its highest court, and by Randolph, that the words “trial by jury” embraced all its attributes, such as the right to challenge jurors.39 Curtailment of the vicinage requirement responded to the preponderant State practice; but the nonvicinage States were no less attached to a jury of “12” than the “vicinage” adherents,40 so that curtailment of vicinage does not argue for abandonment of “12.” In Pierson v. Ray the Supreme Court refused to read comprehensive language to abolish a much less treasured common law practice in the absence of a specific expression of intent to do so.41 Here, where ratification by the people is involved, it is even more important to demand a specific expression of intention to discard the treasured unanimous verdict by a jury of 12. Nothing in the Sixth Amendment phrase “a jury of the State and district” warned the people that by ratification they would surrender those attributes of a jury trial. Then, too, although the Founders, in framing the treason clause, had drastically narrowed the definition of “treason,” Chief Justice Marshall looked to the common law for other aspects of “treason.” 42 Like Marshall, we may conclude that a partial departure from the common law with respect to vicinage does not spell wholesale repudiation of other concomitants of trial by jury, that to embrace the contrary view is to do violence to the Framers’ reverence for the institution.

Third, Justice White reasoned, “where Congress wanted to leave no doubt that it was incorporating existing common law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary Bill . . . provided in certain cases for the narrower ‘vicinage’ requirement which the House had wanted to include in the Amendment.” 43 Now, as Justice White noticed, “the Senate remained opposed to the vicinage requirement, partly because in their view the then-pending judiciary bill—which was debated at the same time as the Amendments—adequately preserved the common law vicinage feature—making it unnecessary to freeze that requirement into the Constitution.” 44 “Vicinage” was specifically named because compromise of a disputed point so required. So, too, Justice White reads the Seventh Amendment provision that in civil cases “no fact tried by a jury, shall be otherwise reexamined in any Court . . . than according to the common law” against adoption of the 12-man jury.45 Again this arose out of the need to resolve a particular controversy. Strenuous objections had been made in the Ratification Conventions to the provision for the Supreme Court’s appellate jurisdiction of “questions both of law and fact” on the ground that facts found by a jury should be unreviewable. No aspect of judicial review excited greater opposition;46 as Patrick Henry stated in Virginia: “The unanimous verdict of twelve impartial men cannot be reversed.” 47 From settlement of a particular controversial issue it cannot be deduced that the Framers thereby intended to discard rights that had not once been challenged. Justice White, in my judgment, did not succeed in justifying a departure from the rule that common law terms must be given the meaning they had at the time of adoption.48

When Madison sought to explain the relation of Article III to vicinage, he said: “It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary.” 49 There the real “necessity” was that Virginia stood in a decided minority in its attachment to “vicinage”; it could not muster votes to overcome resistance to this aspect of jury trial. Since trial by jury was a fabric woven of many strands—a “seamless web” —we should be slow to countenance a rent, particularly one not dictated by the most urgent need. What necessity impelled the Court to jettison the “very ancient” 12-man jury?

The Court had painted itself into a corner when it held that the Fourteenth Amendment made the “trial by jury” provision of the Bill of Rights mandatory on the States,50 a position, as we have seen, that is without historical warrant. Since some States employed less than 12 men, the Court, as Justice Harlan observed, recognized that the ‘incorporationist’ view . . . must be tempered to allow the States more elbow room in ordering their own criminal systems.” 51 The Burger Court is presently retreating from the Warren Court’s imposition of federal requirements on State practice,52 and it might well have concluded that the quite recent extension of the Sixth Amendment’s trial by jury to the States was ill-considered and, therefore, as Justice Harlan stated, the Burger Court’s decision in Duncan v. Louisiana should be overruled.53 Instead, it chose to rupture a 600-year practice in order to adhere to a dubious decision, illustrating what Washington and Hamilton had warned against: a usurpation to meet a great emergency breeds usurpations where no emergency exists.

[1.]399 U.S. 78 (1970).

[2.]Patton v. United States, 281 U.S. 276, 288 (1930). Among the remarkable aspects of Florida v. Williams is that Chief Justice Burger, appointed by President Nixon as a “strict constructionist,” “join[ed] fully in Mr. Justice White’s opinion for the Court.” 399 U.S. at 105. Yet on the very same decision day, he stated in Coleman v. Alabama, 399 U.S. 1, 22 (1970), dissenting opinion, “While I do not rely solely on 183 years of contrary constitutional interpretation, it is indeed an odd business that it has taken this Court nearly two centuries to ‘discover’ a constitutional mandate to have counsel at a preliminary hearing,” a statement even more applicable to the “discovery” that the 12-man jury was not an essential component of trial by jury.

[3.]399 U.S. at 89–90.

[4.]1 Coke, Institutes of the Laws of England 155a (London, 1628–1641).

[5.]For citations and discussion, see Levy, Against the Law 270–276.

[6.]See Chapter 20 notes 38, 39; Chapter 21 at note 24. In Townsend v. Sain, 372 U.S. 293, 311 (1963), the Court stated that the “historic conception of the writ [of habeas corpus] anchored in the ancient common law and in our Constitution . . . has remained constant to the present day.” See infra note 42, and supra Chapter 11 note 5; Chapter 20 note 39.

[7.]399 U.S. at 88; cf. Justice Holmes, supra Chapter 17 note 32.

[8.]Supra note 4. Justice White notes that “The singular unanimity in the selection of the number twelve to compose certain judicial bodies, is a remarkable fact in the history of many nations.” 399 U.S. at 89 note 23.

[9.]399 U.S. at 87.

[10.]4 Blackstone, Commentaries on the Laws of England 350 (London 1765–1769).

[11.]Article XIV, 2 Poore 1410. For complete discussion of colonial and State sources, and Founders’ utterances, see F. H. Heller, The Sixth Amendment to the Constitution of the United States 16–34 (1951).

[12.]Massachusetts (1780), Article XV, Declaration of Rights, 1 Poore 959; New Hampshire (1784), Article 20, 2 Poore 1282; Pennsylvania (1776), Article XI, 2 Poore 1542; Vermont (1777), Chapter I, Sec. XIII, 2 Poore 1860.

[13.]Georgia (1777), Article LXI, 1 Poore 383; South Carolina (1790), Article XI, Sec. 6, 2 Poore 1633; New York (1777), Article XLI, 2 Poore 1339.

[14.]3 Elliot 658.

[15.]Mason, id. 528; Iredell, 4 Elliot 148.

[16.]Resolve of October 14, 1774, quoted in Duncan v. Louisiana, 391 U.S. 145, 152 (1968).

[17.]Declaration of Rights, Article III, 1 Poore 817; “according to the course of that [common] law.”

[18.]Supra note 13. For similar provisions see North Carolina (1776), Article IX, 2 Poore 1409; Pennsylvania, Article IX, Sec. 6, 2 Poore 1554.

[19.]Supra note 4 at 155b.

[20.]Bacon’s Abridgment, “Juries” (A) at 234; 2 Hale, History of the Pleas of the Crown 161 (1736).

[21.]3 Blackstone 379; see also id. 358, 365.

[22.]3 Elliot 467.

[23.]1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 141, 493 (1971).

[24.]3 Elliot 569.

[25.]399 U.S. at 103, 102.

[26.]Id. 93 note 35.

[27.]Id. 93.

[28.]3 Farrand 332; cf. infra note 34. Grayson, a Virginia opponent of adoption, charged that Article III abandoned “vicinage,” 3 Elliot 568–569, a view shared by Holmes in the Massachusetts Convention, 2 Elliot 109–110.

[29.]3 Elliot 573.

[30.]Id. 658.

[31.]399 U.S. at 93–94.

[32.]Quoted, id. 94.

[33.]Id. 94–96.

[34.]Quoted, id. 95 note 39. In the Pennsylvania Ratification Convention James Wilson had stated, “there is no particular regulation made, to have the jury come from the body of the county in which the offense was committed; but there are some States in which this mode of collecting juries is contrary to their established custom . . . In some states, the juries are not taken from a single county.” 2 Elliot 450.

[35.]See infra note 39.

[36.]399 U.S. at 92–93.

[37.]Id. 96.

[38.]Id. 96–97.

[39.]Pendleton: “It is strongly insisted that the privilege of challenging, or excepting to the jury, is not secured. When the Constitution says that the trial shall be by jury, does it not say that every incident will go along with it?” 3 Elliot 546; see also id. 547. Marshall re right of challenging: “If we are secure in Virginia without mentioning it in our Constitution, why should not this security be found in the federal court?” Id. 559. Randolph: “That the incident is inseparable from the principal, is a maxim in the construction of laws.” Id. 463; and see supra at note 29.

[40.]“The States which had adopted constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12 . . . or to have subsequently interpreted their jury trial provisions to include that requirement.” 399 U.S. at 98 note 45. Cf. Parker v. Munday (N.J. 1791), 1 Coxe’s L. Rep. 70, 71 (1816).

[41.]See supra Chapter 1 note 57.

[42.]United States v. Burr, 25 F. Cas. (No. 14,693) 55, 159 (C.C. Va. 1807): Treason “is a technical term . . . It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.” See also supra note 6.

[43.]399 U.S. at 97.

[44.]Id. 95.

[45.]Id. 97.

[46.]For citations see Raoul Berger, Congress v. The Supreme Court 286–287 (1969).

[47.]3 Elliot 544.

[48.]Supra note 42.

[49.]Quoted in 399 U.S. at 93 note 35.

[50.]“In Duncan v. Louisiana, 391 U.S. 145 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that, were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.” 399 U.S. at 86.

[51.]399 U.S. at 118, dissenting opinion.

[52.]Supra Chapter 18 note 3.

[53.]399 U.S. at 118.