Author: Renee Lerner


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).