This Independence Day Celebrate the Right to Trial by Jury
This Fourth of July, Americans will celebrate the 247th anniversary of their country’s founding with fireworks, cookouts, and—if you’re a bookworm like me—a reading of the Declaration of Independence. In the Declaration, Thomas Jefferson famously wrote about the “inalienable rights” of “life, liberty, and the pursuit of happiness.” But the Declaration also includes a long list of all of King George III’s tyrannical abuses against the Colonists that led up to the American Revolution. Among them is this:
“For depriving us in many cases, of the benefits of Trial by Jury.”
The right to a trial by jury in civil cases—where two or more private parties have a dispute that does not involve criminal charges—is a unique system. Worldwide, juries are used in several European counties, Japan, and countries formerly part of the British Empire, but mostly in criminal cases. Only in America are jury trials required in civil cases. All other countries in the world leave it up to powerful and well-connected politicians and bureaucrats to decide what to do in civil cases. Needless to say, when the powerful and well-connected get to decide a dispute between two parties, the more powerful and well-connected party tends to win.
In addition to being unique, the right to a trial by jury is also an ancient right. Prior to British colonization of North America, the British political and governmental system required jury trials. In 1215, King John I (the “bad king” in Robin Hood) was forced to sign the Magna Carta, which barred the King from interfering with the courts and provided that no free man may suffer punishment without “the lawful judgment of his peers.” This right was erased by King Henry VIII (the King with all the wives). In the 1500s, King Henry created “Star Chambers” with secret sessions, no juries, and no appeals.
While British citizens lost their right to a jury trial at home, they reasserted the right when they colonized America. The right to trial by jury was guaranteed in the First Charter of Virginia (1606) and all subsequent charters for the Thirteen Colonies. Back in Britain, the Glorious Revolution led to the adoption of the English Bill of Rights of 1689, reestablishing the right to a fair jury trial in Britain and in all of its colonies.
By the 1700s, jury trials were an accepted fact of life in the American colonies. American colonists regularly challenged the laws and actions of the British King, royally-appointed colonial officials, and Parliament. American juries nullified the laws they found were unfair to colonists, including routine acquittals of colonists accused of “smuggling” imports in violation of the British Navigation Acts, which restricted imports and exports to only British ships.
Frustrated they could not tax and boss-around their colonial subjects, British officials began clamping-down in the 1760s and 1770s and eliminated jury trials in the American colonies. The 1764 Sugar Act and the 1765 Stamp Act forced colonists who violated the acts to appear in a vice-admiralty court in Halifax, Nova Scotia—a court hundreds of miles away from home with no jury. Colonists issued a formal response to Parliament, arguing that “trial by jury [is] the inherent and invaluable right of every British subject in these colonies.”
Nearly every major document leading up to the American Revolution reiterated the importance of the right to a trial by jury:
- In 1772, the Boston Pamphlet of Sam Adam’s Committee of Correspondence concluded the vice-admiralty courts posed a risk to the “inestimable right to trials by Juries, which has ever been justly considered as the grand Bulwark and Security of English property.”
- In 1774, the First Continental Congress declared in its Declaration and Resolves that the colonists were entitled to the “great and estimable privilege of being tried by their peers of the vicinage [in their vicinity].”
- In 1774, the Colonists urged the French settlers of Quebec to join their cause against Britain and to embrace the “great right” of trial by jury that “provides that neither life, liberty nor property can be taken from the possessor until twelve of his unexceptionable countrymen and peers […] shall pass their sentence upon oath.”
- In the Declaration of the Causes and Necessity of Taking Up Arms in 1775, the colonists listed deprivation of “the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property” as specific grounds for rebelling against British rule.
By 1776, Americans had enough of Britain’s abuses and formally declared Independence on July 4, 1776. This is when Thomas Jefferson penned the Colonists’ grievance that King George III had deprived the Colonists of “the benefits of Trial by Jury.” Importantly, of the numerous fundamental rights later listed in the Bill of Rights, only the rights to trial by jury and the prohibition against quartering troops is listed in the Declaration. The freedom of religion, speech, petition, the right to bear arms, and many other important rights included in our Constitution are not mentioned in America’s founding document, but the right to a trial by jury is.
Several years after gaining independence, America soon found itself in need of a more stable governing system and the Founders convened the Constitutional Convention of 1787. The entire convention nearly fell apart because the draft constitution did not include a Bill of Rights to preserve sacred liberties, including the right to a trial by jury in civil cases. Everyone agreed a right to a jury trial was important, with Alexander Hamilton writing, “The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon trial by jury; of if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” However, disagreement on whether the right should be protected at the state or national level led to a standoff.
John Adams and John Hancock proposed the Massachusetts Compromise, which allowed state delegates to ratify the Constitution without a Bill of Rights and protection of jury trials, with the understanding the newly created U. S. Congress would later amend the Constitution. With this understanding, the U.S. Constitution—the oldest governmental founding document in the world—was ratified and our present government came into existence.
By 1791, enough states had ratified the first ten amendments to the Constitution, collectively called the Bill of Rights. The Seventh Amendment states, in part, that “the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States.” Kentucky’s Constitution goes even further, stating:
The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate.
After nearly 250 years of our nation’s experience in self-government, the right to a trial by jury is often forgotten, but it is one of the most fundamental rights of a free and self-governing society. As John Adams wrote “representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” Patrick Henry agreed, writing, “Trial by jury is the best appendage of freedom. I hope that we shall never be induced to part with that excellent mode of trial.”
This Independence Day, as we celebrate freedom and equality under the law, do not forget that one thing that keeps everyone free and equal—the ancient and sacred right to a trial by a jury in a civil case. Whether a prince or pauper, the owner of a billion-dollar business or a mom-and-pop shop, all American citizens should have their cases decided by a jury of fellow citizens, and not only by the rich and powerful, to maintain a just and free society.
“The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”
-Thomas Jefferson, 1801.