The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

d011337rFor Americans, both Magna Carta and trial by jury are enveloped in almost sacred myths. The myths of Magna Carta and jury trial are the more powerful for being deeply intertwined. These and similar myths encouraged Americans to accomplish great things, including independence from Britain and the successful establishment of a republic. The myths also have a dark side.

At the time of independence, many Americans believed they possessed and were in danger of losing an English inheritance that was unchanging and from ancient times, from “time immemorial.” The body of this inheritance was the fundamental laws of England, especially as expressed in Magna Carta.

To early Americans, Magna Carta not only symbolized the general idea of a government constrained by a formal charter, it described specific rights. The right Americans most often invoked in connection with the Great Charter was the right to trial by jury. Magna Carta and trial by jury became linked as part of the construction of an elaborate political view. The barons at Runnymede certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries. The link between Magna Carta and jury trial began in England in the late sixteenth century. During that era, antiquarians began to try to trace what they thought of as the ancient constitution of England, including institutions such as the jury, back to the Anglo-Saxon period or even earlier. In the view of antiquarians, Magna Carta was intended to preserve an ancient right to trial by jury. Edward Coke and other lawyers in the seventeenth century celebrated this invented link between Magna Carta and jury trial in their struggles against royal prerogative.

Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws. In their enthusiasm for the jury, Americans put the translated words of Chapter 39 of Magna Carta directly into many of their new constitutions.

Over time, trial by jury proved to be a troublesome inheritance. After Americans had created representative republics, the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful. Increasingly through the nineteenth century and beyond, American judges and legislators criticized the jury for its expense, delay, and unpredictability.

The story of the jury changing from a prized right of the people to a nuisance suggests the hazards of enshrining specific legal procedures in constitutions. England, without a written constitution specifying trial by jury, was able effectively to abolish the civil jury and to substitute a form of adjudication more suited to a commercial age: bench trial. The United States, hampered by jury rights in the federal and state constitutions, has had to resort to various inefficient manoeuvers to circumvent jury trial. Americans continue to pay for their invented inheritance.

Note:  The image is a four-dollar bill from Maryland, printed in July 1775, depicting the figure of “Liberty” handing a petition to “Britannia,” who is restrained by King George III, shown trampling Magna Carta (and, for good measure, setting fire to the port of Annapolis).

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7 Responses

  1. Brett Bellmore says:

    “The story of the jury changing from a prized right of the people to a nuisance”

    There seems to be more than a bit of the fallacy of equivocation here. Trial by jury is a prized right of the people, which “judges and legislators”, which is to say the government, have come to view as a nuisance.

    Might as well describe the right to lock your front door as changing from being prized by homeowners, to being regarded as a nuisance by burglars, and think attitudes have changed. Judges and legislators aren’t the people, they’re who trial by jury is supposed to protect the people from. OF COURSE they’ve resorted to various means to circumvent this right!

    Seriously, this is one bizarre essay once you notice this switch between the people, and the government. Didn’t you see what you were doing?

  2. Shag from Brookline says:

    Apparently Brett has been “missing the links” provided in an earlier post by Gerard to Jill Lepore’s The New Yorker article and Lord Sumption’s Address. But based upon Brett’s “history” at this and other blogs, it seems that he favors jury nullification as practiced in the Deep South absolving wrongs committed on minorities.

  3. nidefatt says:

    This feels unfinished. It lacks any citations to back up any of its claims. It starts with “early Americans thought they had freedom because of Magna Carta!” and ends with “people today wish they weren’t so darn free.” I’m pretty sure neither of those things are true. The colonists had trial by jury. Commentary by the leaders of the time period generally referred more to jury as a check on government as envisioned by Solon in Athens than to the Magna Carta. And I have never heard of a “let’s put any end to juries” movement with any type of grassroots pull. Let’s stop suing each other all the time- that’s a thing. Let’s put a cap on tort damages- that’s a thing. There are plenty of reform movements that have appeal to the common man, but getting rid of juries- not one of them.

    But I look forward to seeing this weird opening shot be developed into an actual essay that will no doubt get you angry responses from just about everybody. Except maybe the “let’s do away with due process in rape cases” crowd. They’ll probably have your back.

  4. Brett Bellmore says:

    Shag, your determination to link any disagreement with you to racism is just tiresome.

    I have no doubt legal professionals wish we had something like the Napoleonic system, rather than trial by jury. They have done everything in their power to convert juries, both grand and petite, into the proverbial mushrooms: Kept in the dark and fed BS.

    Lerner is suggesting that this push by legal professionals to render the right to trial by jury irrelevant represents some kind of popular disdain for this right. I see no basis for this, and, yes, I DID read the essay linked to below.

  5. Joe says:

    Shag references the two previous articles cited in a previous post. These articles can be a start for the understanding that the Magna Charta or at least British common practice (“common law”) had more to do with a jury rights than Solon. There was also a belief that English liberties had roots in ancient rights and practices. But, the idea it was “more” important, especially to the common person who did not do much reading of the classics, is rather doubtful to my understanding of the history.

    As to the first comment, “the government” is not some freestanding entity. Where do they come from? The people themselves elected them. The changing nature of the jury was a growth of changes in society itself. I find the summary of the article misleading overall but this is useful to remember. The same might be the case for blaming “the government” or one party for that matter for a certain view of certain amendments because of what significant chunks of society in general support.

    As to the article, the people in colonial times generally did not think juries would “nullify laws.” If anything, and I would think this would be pressed relatively rarely, it was a means for the average person to determine what the existing law (in a day when written laws were much less prevalent) was when royal judges erred. A sort of jury review, shall we say. And, since the Bill of Rights only speaks of jury rights, not specifying the exact details, room is made to develop its practice over the years. This includes changing views on jury nullification and greater use of plea bargains and so forth. Unlike maybe the 7th Amendment, jury rights are not protected using words like “how it was used in 1789” or something. We can of course pretend it does, if we want.

    It is unclear that the means aren’t present to address changing times and how much jury rights “hamper” anything. Note, e.g., that even though juries still have a de facto power to nullify, studies have found (see, e.g., Duncan v. LA) juries and judges would most of the time generally decide the same way with the differences of the remainder of unclear difficulty.

  6. Brett Bellmore says:

    “As to the first comment, “the government” is not some freestanding entity. Where do they come from? The people themselves elected them.”

    From this perspective, of course, comes the notion that a democracy does not require constitutional safeguards, because the government is the people. I don’t believe this is a very common viewpoint among the people.

    Anyway, my point here is simply that elite disdain for a right that is intended to protect the average man from they themselves, does not demonstrate that the people share that disdain. There is, as nidafatt notes, no popular movement to abolish trial by jury. There IS a popular movement to restore it.

    One shouldn’t be surprised that the people running the government chafe under safeguards intended to protect the public from them. Even in a democracy, this is not evidence tha tthe public doesn’t like those safeguards.

  7. Joe says:

    There are various “ideas” out there, but the government coming from the people & thus particularly tied/limited by them is a main one in our constitutional republic. This includes the people directly taking part in governance via juries, militia and whatnot. Society itself has safeguards, constitutional or otherwise, to state another basic idea. When we start to ignore this & consider the government merely some freestanding entity, it is actually rather problematic.

    I agree there is no general desire, and I think this applies to many elites, to abolish juries & find “the summary” (referencing the article, to be clear) of the commentary misplaced. But, you have a certain view of what the jury should do, and have expressed it in the past. The view clashes with current jury practice & this practice did not merely grow out of “the government” doing something.