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Subject Area: Political Theory
Topic: The American Revolution and Constitution

PETITION ON ELECTION OF JURORS 1 - Thomas Jefferson, The Works, vol. 8 (Correspondence 1793-1798) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 8

Part of: The Works of Thomas Jefferson, 12 vols.

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PETITION ON ELECTION OF JURORS1

[October 1798.]

To the General Assembly of the Commonwealth of Virginia

The Petition of Sundry persons inhabitants of the county of Albemarle and citizens of the said Commonwealth respectfully sheweth.

That though civil govmt. duly framed and administered be one of the greatest blessings and most powerful instruments for procuring safety and happiness to men collected in large societies, yet such is the proneness of those to whom its powers are necessarily deputed to pervert them to the attainment of personal wealth and dominion & to the utter oppression of their fellow-men, that it has become questionable whether the condition of our aboriginal neighbors who live without laws or magistracies be not preferable to that of the great mass of the nations of the earth who feel their laws and magistrates but in the weight of their burthens. That the citizens of these U. S. impressed with this mortifying truth when they deposed the abusive govmt under which they have lived, founded their new forms, as well particular as general in that fact and principle, that the people themselves are the safest deposit of power, and that none therefore should be trusted to others which they can competently exercise themselves, that their own experience having proved that the people are competent to the appointment or election of their agents, that of their chief executive magistrates was reserved to be made by themselves or by others chosen by themselves: as was also the choice of their legislatures whether composed of one or more branches: that in the judiciary department, sensible that they were inadequate to questions of law, these were in ordinary cases confided to permanent judges, reserving to juries only extraordinary cases where a bias in the permanent judge might be suspected, and where honest ignorance would be safer than perverted science: and reserving to themselves also the whole department of fact which constitutes indeed the great mass of judiciary litigations: that the wisdom of these reservations will be apparent on a recurrence to the history of that country from which we chiefly emigrated, where the faint glimmerings of liberty and safety now remaining to the nation are kept in feeble life by the reserved powers of the people only. That in the establishment of the trial by jury, however, a great inconsistence has been overlooked in this and some others of the states, or rather has been copied from their original without due attention: for while the competence of the people to the appointmt even of the highest executive and the legislative agents is admitted & established, and their competence to be themselves the triers of judiciary facts, the appointment of the special individuals from among themselves who shall be such triers of fact has not been left in their hands, but has been placed by law in officers dependent on the executive or judiciary bodies: that triers of fact are therefore habitually taken in this state from among accidental bystanders and too often composed of foreigners attending on matters of business and of idle persons collected for purposes of dissipation, and in cases interesting to the powers of the public functionaries may be specially selected from descriptions of persons to be found in every country, whose ignorance or dependance renders them pliable to the will and designs of power. That in others of these states, [and particularly in those to the eastward of the union,1 ] this germ of rottedness in the constitution of juries has been carefully excluded, and their laws have provided with laudable foresight for the appointment of jurors by selectmen chosen by the people themselves: and to a like restitution of principle and salutary precaution against the abuse of power by the public functionaries, who never did yet in any country fail to betray and oppress those for the care of whose affairs they were appointed, by force if they possessed it, or by fraud and delusion if they did not, your petitioners pray the timely attention of their legislature, while that legislature (and with a heartfelt satisfaction the petitioners pronounce it) are still honest enough to wish the preservation of the rights of the people, and wise enough to circumscribe in time the spread of that gangrene which sooner than many are aware may reach the vitals of our political existence.

And lest it should be supposed that the popular appointmt of jurors may scarcely be practicable in a state so exclusive and circumstanced as ours, your petitioners will undertake to suggest one mode, not presumg to propose it for the adoption of the legislature, but firmly relying that their wisdom will devise a better: they observe then that by a law already passed for the establishment of schools provision has been made for laying off every county into districts or precincts; that this division which offers so many valuable resources for the purposes of information, of justice, of order and police, may be recurred to for the object now in contemplation, and may be completed for this purpose where it has not been done for the other, and the inhabitants of every precinct may meet at a given time and place in their precinct and in the presence of the constable or other head officer of the precinct, elect from among themselves some one to be a juror, that from among those so chosen in every county some one may be designated by lot, who shall attend the ensuing session of the federal court within the state to act as grand and petty jurors, one of those from every senatorial district being designated by lot for a grand juror, and the residue attending to serve as petty jurors to be in like manner designated by lot in every particular case: that of the others so chosen in every county composing a district for the itinerant courts of this Commonwealth so many may be taken by lot as shall suffice for grand and petty juries for the district court next ensuing their election; and the residue so chosen in each county may attend their own county courts for the same purposes till another election, or if too numerous the supernumeraries may be discharged by lot: and that such compensation may be allowed for these services as without rendering the office an object worth canvassing may yet protect the juror from actual loss. That an institution on this outline, or such better as the wisdom of the Gen. ass. will devise, so modified as to guard it against the intrigue of parties, the influence of power, or irregularities of conduct, and further matured from time to time as experience shall develop its imperfections, may long preserve the trial by jury, in its pure and original spirit, as the true tribunal of the people, for a mitigation in the execution of hard laws when the power of preventing their passage is lost, and may afford some protection to persecuted man, whether alien or citizen, which the aspect of the times warns we may want.

And your petitioners, waiving the expression of many important considerations which will offer themselves readily to the reflection of the general assembly, pray them to take the premises into deep and serious consideration and to do therein for their country what their wisdom shall deem best, and they as in duty bound shall ever pray &c.

[1 ]See letters to Madison of October 26, 1798, and to John Taylor of November 26, 1798.

[1 ]This clause is struck out in MS.