Government by Judiciary

22. "Trial by Jury": Six or Twelve Jurors?

Judiciary_401-450.indd 48 5/10/11 3:24 PM 22 "Trial by Jury": Six or Twelve Jurors? LE 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"-6oo 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 6oo 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 I. 399 U.S. 78 (I97o). 2. Patton v. United States, 28I U.S. 276, 288 (I930). Among the remarkable aspects of Florida v. Williams is that ChiefJustice 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 I05. Yet on the very same decision day, he stated in Coleman v. Alabama, 399 U.S. I, 22 (I970), dissenting opinion, "While I do not rely solely on I83 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 I2-man jury was not an essential component of trial by jury. 3· 399 U.S. at 89- 90. 4- I Coke, Institutes ofthe Laws ofEngland I55a (London, I628- I64I). 448 Judiciary_401-450.indd 49 5/10/11 3:24 PM "Trial by Jury": Six or Twelve Jurors? 449 wisdom of I 2 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 disdainJustice 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 ofLittleton on Tenures: "it seemeth to me, that the law in this case delighteth herselfe in the number of I 2; for there must not onely be I 2 jurors for the tryall of all matters of fact but I 2 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 I 2 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 ofEngland cannot but subsist so long as this palladium remains sacred and inviolate."10 The North Carolina Constitution of I 776 provided that "the ancient mode oftrial by jury ... 5· For citations and discussion, see Levy, Against the Law 270- 276. 6. See Chapter 20 notes 38, 39; Chapter 2I at note 24. In Townsend v. Sain, 372 U.S. 293, 3I I (I963), 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 I I note 5; Chapter 20 note 39· 7· 399 U.S. at 88; cf. Justice Holmes, supra Chapter I7 note 32. 8. Supra note 4...