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CHAPTER SIX THE JURY RIGHT The right to trial by jury, unlike the rights of property, security, and eighteenth-century government, is a right we think we know. We do, but only in an attenuated form. We no longer know the right as it existed in the age of the American Revolution. Certainly we cannot recapture the extreme euphoria of British and colonist alike when they thought of jury trial. The extravagant eulogiums they heaped on the jury right have a ring of propagandist gasconades for the tW3ntieth-century ear.l For English-speaking people of the eighteenth century, trial by jury was not only "one of the most fundamental principals of our present happy constitution," it was also the most happy fundamental of the world's happiest constitution. Sir William Blackstone thought it as fundamental as anything else in British constitutional law: it could not "be altered but by a parliament." John Cartwright wanted it more fundamental than that. As an old man writing in the nineteenth century he would have made the right to trial by jury fundamental in the old English and future American sense of the word: unalterable even by Parliament; The Constitution , he wrote in 1823, expressing a legal concept that, as theory, had contained some validity in Britain in 1776 but none by 1823, "is paramount to, and a Law to the Legislature - that is, a limit it cannot pass. . . . [N]either Law, nor any act of the Legislature, can by possibility take 47 THE JURY RIGHT away the inherent right of a JURY to exercise its juridical functions while acting in strict fidelity and allegiance to the CONSTITUTION ."2 We may dismiss Cartwright's constitutional theory but not the constitutional tradition from which he wrote. Almost any legal positivist of the eighteenth century who asserted that Parliament was both supreme and sovereign would have hesitated before answering the question of whether Parliament could abolish trial by jury. It is possible that as late as 1776 a majority of common lawyers would have been too confused or too annoyed to have given an unequivocal answer. The point is not that the law was uncertain or that the legal certitude of the nineteenth century was legal ambivalence in the eighteenth. The point, rather, is the sacrosanct centrality of jury trial in British constitutional thought during the age of the American Revolution. The most significant definition of trial by jury during the revolutionary period was formulated by the Continental Congress. Bowing to the leadership of Lord North's administration, Parliament had refused to grant jury trial to recently conquered Quebec and Congress hoped to persuade Canadians they had been discriminated against in a very significant way. It can be assumed that much thought was given to this explanation of a right unknown to the people addressed but whom American whigs wanted to convince was a right worth rebelling for. This provides, that neither life, liberty nor property can be taken from the possessor, until twelve of his unexceptionable countrymen and peers, of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry face to face, in open Court, before as many of the people as chuse to attend , shall pass their sentence upon oath against him; a sentence that cannot injure him, without injuring their own reputation, and probably their interest also; as the question may turn on points, that, in some degree, concern the general welfare; and if it does not, thei[r] verdict may form a precedent, that, on a similar trial of their own, may militate against themselves.3 ThE VALUE OF JURY It would be well to heed what the Congress thought important. It tells us why eighteenth-century people living in common-law jurisdictions valued juries. For them the right to trial by jury was an essential element in their definition of restrained government. Juries checked official power by ensuring that government was less arbitrary. Trial without jury, Mary- THE JURY RIGHT 49 land legislators explained during the Stamp Act crisis, "renders the Subject insecure in his Liberty and Property." The earl of Chatham told the House of Lords that the jury was the bulwark of an Englishman's "personal security and property"; the New York Assembly added that the jury was "essential to the Safety" of the "Lives, Liberty, and Property" of British subjects; and Virginia's burgesses agreed that it...

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