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Article Excerpt
Linda S. Myrsiades Grand Juries, Legal Machines, and the Common Man Jury
This paper focuses on the concept of a jury of one's neighbors, that is, the common man jury. It traces this construction through two eighteenth-century trails (the trials of John Peter Zenger, 1735, and of Eleazer Oswald, 1783) and examines juries as they have been regarded in the literary efforts of two early American judges--a poem by Francis Hopkinson. "Adrian's Assertion," and the novel Modern Chivalry and a legal handbook, Law's Miscellanies of Hugh Henry Brackenridge. The notion of trial by jury is extended to consider the public event of trial by press, engaging the public's extralegal involvement in performing the jury role. Finally, the paper concludes that the concept of a jury of one's neighbors acted as a counter-weight to a legal machinery that sometimes shortchanged individual rights and common sense in preference for the sophistry of security and the rights of the state.
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This paper examines eighteenth-century views of the jury as they were informed by English tradition and figured in American law. (1) It does so by, first, providing a background to the development of the jury. It then considers two American cases--that of John Peter Zenger in 1735 and that of Eleazer Oswald in 1783--that provide significant testimony about the views of the jury in colonial and post-revolutionary America, respectively. Supplementary views of the jury are provided through newspaper commentary on both cases and through a long poem titled "Adrian's Assertion" by Francis Hopkinson, signatory to the declaration of Independence and at the time he wrote the poem a Federal District Court Judge, and through the novel Modern Chivalry and the legal handbook Law's Miscellanies, by Pennsylvania Supreme Court Justice Hugh Henry Brackenridge.
The perspective taken by the paper allows us to consider both the role of the common man and the relative influence of lawyers and the judge in drawing a verdict in a jury trial, beginning with a focus on the concept of a jury of one's neighbors and ending with the importance of the common man's participation in the law. At the same time the paper considers that the notion of a trial by jury is extended as a public event by trial by press, which engages the public's extra-legal involvement in performing the jury role. The relative independence of the jury and its control by a legal elite is, finally, examined in terms of post-revolutionary America's conflict over how much power to leave in the hands of the few and how much to the people themselves.
A Jury of One's Neighbors
The notion of the jury trial as judgment at the hands of one's neighbors had its roots in English medieval law and custom and retained some influence, however residual, until the end of the eighteenth century. By the end of the middle ages, local residents had become accustomed to being gathered in an inquisition in which they served as witnesses to facts about which they had some knowledge, not to act as impartial observers (Katz 1963, n. 34, 217). Before the fifteenth century, the jury had taken on the role of investigating allegations and determining whether there was enough evidence for a trial, although in early modern times a private form of prosecution could be initiated merely by the oral accusation of a victim. In general, the victim had to arrange for his own witnesses, aided by part-time constables and justices of the Peace by the sixteenth century. Although witnesses for the prosecution could be bound over to attend the trial and testify at that time, compelling witnesses for the defense to appear did not occur until the early eighteenth century (Anand 2005, 423, 422). In a system enhanced by the practice of retaining jurors for multiple cases, juries played an active, experienced participatorial role (425, 430) in courts until the introduction of counsel and the adversarial system after 1780. Moreover, until the middle of the nineteenth century there was no regular police force and only limited public prosecution. (2)
The earliest significant finding on behalf of a jury of one's neighbors occurred in English law in Bushel's case (1670), a case in which William Penn was accused of unlawful assembly for preaching to Quakers in an outdoor meeting (Anand 2005, 429). Constable cites Bushel's case in the following terms: that "jurors 'might bring in a verdict, although no proofs were offered on either side' for 'the law supposed[d] them to have sufficient knowledge to try the matters in issue and so they must, though no evidence were given on either side in court.' Furthermore,'acting upon their own knowledge, [jurors] were at liberty to give a verdict in direct opposition to the evidence if they saw fit" (Forsyth qtd. in Constable 1974, 132). According to Anand, Bushel's case established that since jurors were not required to accept the judge's version of the facts, but might honestly disagree based on what they had themselves understood the evidence to say, they could not be punished "by the bench for returning a verdict against the trialjudge's perception of the weight of the evidence" (2005, 429). Bushel's case (1690) had thus set the scene for insulation of the jury from harm for insubordination in ignoring a judge's charge, whether the jury's action was the result of inexperience or actual disagreement with the judge's charge (430).
The jury as it had developed was a self-informing institution that investigated alleged crimes and reported on that investigation in the court. Jurors were thereby preferred for their knowledge about a crime or their ability to ferret out the truth within the community. Judges, by contrast, particularly those who rode the circuit, were not privy to the same information as local residents and so had difficulty questioning jury verdicts. In the process of selecting jurors, not only was the inclusion of local officials understood and accepted, but challenges infrequently excluded jurors who had prior knowledge of a case (Anand 2005, 430). Even in the late eighteenth century "jurors could not be asked any question that might cause them any shame, including whether or not they had been so rash as to declare an opinion as to the correct outcome of the case prior to trial" (421).Thus, as late as two decades into the nineteenth century, jurors could express such opinions as they wished unless they indicated ill will against the accused, a presumption that had to be proved by the accused. Changes nevertheless ate away at the privileges taken by neighborhood jurors, beginning as early as the fourteenth century when the practice of allowing friends and relatives of the victims to sit on the jury ceased. By the middle of the eighteenth century, jurors were precluded from using information provided to them out of court. Although the jury still participated actively--as jurors they "joined in the unstructured conversation [of the court proceedings] by sometimes directly questioning witnesses, making observations in open court as witnesses testified and asking for further witnesses to be summoned" (427)--the testimony of witnesses and the admission of evidence through rules of evidence began to replace the information provided by jurors.
The English court system practice of choosing jurors from the neighborhood where the crime occurred was continued in America, as indicated in a Virginia law of 1662: "at least part of the jury should be drawn from 'thence who by reason of their neere acquaintance with the business may give information of diverse circumstances to the rest of the jury'" (Friedman 1992, 27). Where jurors had local knowledge of a case "justices tended not to question the verdicts of juries, nor did they often require jurors to give reasons for their decisions" (Anand 2005, 417). Pennsylvania's founders, the Quakers, surely maintained a preference for a neighbor's judgment in their prohibiting lawyers from being in full communion with the meeting and their regulation that all matters of meum et teum be settled at meeting "by reference to members of the religious body" (qtd. in Meehan 1967, 20). Their sentiments were described by Justice Brackenridge as like those spoken in the scriptures about Jewish lawyers:'"Brother goeth to law with brother, and that before unbelievers.'...
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