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CW Journal
: Spring 08 : Trial By Jury
The short, if several, arms of the law. The possibility of forced removal for trial to England was one of the spurs to revolution. Robert Christian, left, and Steve Holloway flank their legal victim, Bill Rose.
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by James Breig
Photos by Dave Doody
In 1777, Edmund Burke, an Irish-born member of Parliament
and supporter of the colonial cause during the Revolutionary War, wrote A
Letter to John Farr and John Harris, Esqrs., Sheriffs of the City of Bristol,
on the Affairs of America. Burke, who represented Bristol in the House of
Commons, began by noting two laws recently enacted by Parliament “with regard
to the troubles in America” and which he voted against. By the additions, the
legislature had now adopted nine statutes aimed at the rebellious colonies: “It
affords no matter for very pleasing reflection to observe that our subjects
diminish as our laws increase.”
One of the new acts concerned letters of marque for
privateers, and on it Burke said little. The other partially suspended habeas
corpus, which protects individuals from illegal imprisonment. Burke said that
law denoted “a much deeper malignity” and carried “into execution, purposes
which appear to me so contradictory to all the principles, not only of the
constitutional policy of Great Britain, but even of that species of hostile
justice which no asperity of war wholly extinguishes in the minds of a
civilized people.”
The new act classified as pirates Americans who commanded or
crewed American warships or privateers, putting fellow Englishmen in a class
that could be confined indefinitely “to a future trial and ignominious
punishment, whenever circumstances shall make it convenient to execute
vengeance on them.”
“The second professed purpose of the act is to detain in
England for trial those who shall commit high treason in America,” and it
deprived the accused of “all that is substantial and beneficial in a trial by
jury”:
A person is brought hither in the dungeon of a ship’s hold;
thence he is vomited into a dungeon on land, loaded with irons, unfurnished
with money, unsupported by friends, three thousand miles from all means of
calling upon or confronting evidence, where no one local circumstance that
tends to detect perjury can possibly be judged of; such a person may be
executed according to form, but he can never be tried according to justice.
Burke’s denunciation of the law echoed the Declaration of
Independence, adopted less than a year earlier in Philadelphia. It also
anticipated more than two centuries of debate about principles of criminal
justice, about fundamental fairness—what lawyers call substantive due
process—issues the United States is still adjudicating.
Most Americans know the opening lines of the Declaration:
“When in the course of human events . . .” and “We hold these truths to be
self-evident.” But many are not as familiar with its list of grievances against
the king, clauses the colonists said justified severing their bonds with Great
Britain. They taxed George III for “a history of repeated injuries and
usurpations, all having in direct object the establishment of an absolute
Tyranny over these States.” Those injuries included such offenses against
justice as “depriving us, in many cases, of the benefit of Trial by Jury” and
“transporting us beyond Seas to be tried for pretended offences,” to which
Burke objected a few months later.
Thomas Jefferson drafted the Declaration as a member of a
committee of five chosen by the Second Continental Congress. The other four
were Benjamin Franklin of Pennsylvania, John Adams of Massachusetts, Roger
Sherman of Rhode Island, and Robert R. Livingston of New York. In an 1823
letter to James Madison, Jefferson said Franklin and Adams made “two or three”
alterations, “merely verbal,” and he “turned to neither book nor pamphlet” as
he worked. But he did not write in an intellectual vacuum, and he was familiar
with the political thought of the time. Jefferson said, “I did not consider it
as any part of my charge to invent new ideas altogether, and to offer no
sentiment which had ever been expressed before.”
He knew of the declarations, addresses, petitions, and
letters that had been issued or adopted by the colonies; had read such
philosophers as John Locke and David Hume; and listened to congressional
debates. For example, in 1774, Congress had considered a resolution that said
“the seizing, or attempting to seize, any person in America, in order to
transport such person beyond the sea, for trial of offences, committed within
the body of a county in America . . . ought to meet with resistance and
reprisal.”
That year, a letter to the people of Great Britain and
Ireland was drafted, probably by John Jay, which said in part that Parliament
was “depriving the american Subjects of the invaluable Trial by Jury” and
taking colonists “in chains 3000 miles from their native country without
evidence or Assistance of friends to be tried by a Jury of strangers.”
Jefferson was familiar with the Virginia Declaration of Rights, penned by
George Mason and adopted in Williamsburg on June 12, 1776. Its sixteen clauses
included: “That in all capital or criminal prosecutions a man has a right . . .
to a speedy trial by an impartial jury of twelve men of his vicinage.”
“Vicinage,” like the word “vicinity,” is taken from Old French and meant “a
neighborhood.” Today, in the law, it means a court’s district or circuit.
A felony trial in British Virginia took place in the General Court of Williamsburg’s Capitol, the governor usually presiding, with the Governor’s Council sitting in judgment. In front of the railing, left to right, witness Ken Treese, defendant Bill Rose, bailiff Steve Holloway, and prosecutor Jack Flintom. At the green desk, Ben Knecht, left, and Mark
Couvillon. Seated clockwise In the back, from lower left, Russ Wells, Alex Clark, Phil Shultz, Frank Megargee, Chris Allen, governor Scott Green, Robin Reed, Mike Pfeiffer, Joe Musika, John Needre, and Ken Zeller.
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Jefferson could draw, as well, on what he’d already
composed. In 1774, he had written A Summary View of the Rights of British
America in support of instructions he proposed the Virginia General Assembly
give to its delegation to the First Continental Congress. Among the abuses it
discussed was an act of Parliament by which a murder committed in Massachusetts
is,
if the governor pleases, to be tried in . . . the island of
Great Britain. . . . The witnesses, too . . . are to . . . appear at the trial.
. . . Who does his majesty think can be prevailed on to cross the Atlantic for
the sole purpose of bearing evidence to a fact? . . . And the wretched
criminal, if he happen to have offended on the American side, stripped of his
privilege of trial by peers of his vicinage, removed from the place where alone
full evidence could be obtained, without money, without counsel, without friends,
without exculpatory proof, is tried before judges predetermined to condemn.
Shortening that to “transporting us beyond seas, to be tried
for pretended offences,” Jefferson contributed the point to the Virginia
Constitution, adopted June 29, 1776.
In American Scripture, a book on the creation of the
Declaration, Pauline Maier writes that there were “at least ninety documents .
. . written for a variety of related purposes” reflected in the ideas and style
of Jefferson’s composition. In turn, those documents echoed principles espoused
in writings that reached back to the Magna Carta of 1215. In April 1776, for
instance, jurist William Henry Drayton of South Carolina told a grand jury that
“evil machinations tending to nothing less than absolute tyranny” meant “trials
by jury discontinued, and juries . . . arbitrarily dismissed without being
impaneled,” actions “in contempt of” the Magna Carta.
One of the descendants of the Magna Carta appeared in 1689,
the Declaration of Rights, adopted in England to end the reign of James II.
Maier, a historian at the Massachusetts Institute of Technology, calls the
Declaration of Rights “a sacred text” for American colonists because it
contained “fundamental political and legal truths.” It also had a
thirteen-clause bill of particulars against James II that anticipated the
Declaration of Independence’s claims against George III.
Americans wrote into the federal Constitution’s Bill of
Rights ideas about justice—and those fundamental political and legal
truths—that they had accumulated by the eighteenth century. Among them
are freedom from unreasonable searches and seizures, the protections of the
grand jury, a ban on double jeopardy, a right against self-incrimination, a
guarantee of due process, a right to a speedy and public trial by an impartial
jury from the neighborhood of the crime, a right to know the charges and to
confront witnesses, subpoena power, and a guarantee of the right to assistance
of counsel.
It was left to the courts to decide what those provisions
meant and, in the twentieth century, to begin to require that they be enforced
by the states. What is meant by reasonable search and seizure, and by right to
counsel, and whether their denial justifies the exclusion of evidence or
testimony, are among the questions judges are still trying to settle.
Unquestionably, however, Jefferson charged the king with
more than he could be convicted.
Were the charges against George III theoretical, or were
they statements of what was happening? Richard Brown, a University of
Connecticut historian, says, “The Massachusetts Government Act stated that
Americans could be transported to England for trial. But I don’t know that
anybody was. In 1775, troops had orders to arrest John Hancock and John Adams,
and transport them to England; but they were never arrested.”
From the Magna Carta to the Bill of Rights to the present, the right of the accused to a jury trial has been a keystone of democratic societies. At the Courthouse of 1770 in the Historic Area, from left, Antoinette Brennan, Joy Ingram, Clayton Williams, Don Kline, Gina DeAngelis, Erica Mueller, John Needre, Taysha Lindsay, Bill Chronis, Robyn Eoff, Kymberly Thomas, David Bianco, Tom Hay, Ywone Edwards-Ingram, and Audrey
DeAngelis.
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Peter Hoffer, a research professor at the University of
Georgia, links the charges to “parliamentary acts passed in response to the
Boston Tea Party,” which “provided for trials for smugglers in admiralty courts
(hence no juries) and moved these courts out of Boston to Halifax. I do not
know of any Americans brought to England for trial for treason.”
The reason for moving admiralty courts to Canada, he said,
was that juries in Massachusetts refused to convict Americans for acts against
the crown and its colonial officials. Francis Bernard, the governor of
Massachusetts, said that, in such cases, juries “were not to be trusted.” No
one, he said, “will take upon him to declare, that at this time an American
jury is impartial and indifferent enough.” That raises a question: Which party
to the dispute was acting contrary to the cause of justice? Was it the colonial
jury that denied a fair trial to the crown? Or was it the crown, which sought
to deny a verdict rendered by the peers of the accused?
Maier writes
that trial by jury was also threatened by an act of 1772,
“For the better securing and preserving His Majesty’s Dock
Yards, Magazines, Ships, Ammunition and Stores,” and the Administration of
Justice Act of 1774, under which colonial offenders could be tried in England.
. . . Even the most assiduous of efforts have, however, identified no colonists
. . . who were actually transported “beyond seas to be tried for pretended
offenses.”
But Stanford University historian Jack Rakove says it
doesn’t matter if the charges reflected events. A jury trial by one’s peers
“was regarded as a ‘palladium of liberty’ and one of the great rights, so any
assault on it would seem ominous, whether executed or not.”
About 230 years after the Declaration was signed, some
aspects of juryless trials and transportation beyond seas are being revisited.
During the war in Afghanistan, the United States, on the president’s orders,
flew enemy combatants, at least one of whom was an American citizen, to
Guantanamo Bay, Cuba, as well as the United States, and put them in military
jails to await trials by military commissions—tribunals empowered to hear
in secret evidence and testimony to which the accused can be denied access.
Historians and others, however, point out differences between the Revolutionary
War and the war on terror.
Ronald Hamowy, a fellow in social thought at the Cato
Institute, says, “It strikes me as clear that we must draw a distinction
between combatants of different nations and those who claim to be subjects of
the same monarch, as was the case in 1776.” Historian Brown says the problem of
“drawing this easy analogy with Guantanamo” is that eighteenth-century
Americans considered themselves equal to citizens living in Great Britain.
“POWs and foreign combatants aren’t entitled to all the rights of Americans.”
At this writing, defense attorneys and government lawyers
are arguing cases through the federal court system in hopes that the United
States Supreme Court will settle not only the fine points but the fundamentals
of due process. The high court, to quote an abstract of its opinion in one
Guantanamo challenge, concluded “due process demands that a citizen held in the
United States as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral decisionmaker.”
Georgetown University law professor Neal Katyal, commenting
on another decision, said the court was telling the president “that we should
return to our foundational ideals, that no one person, no matter how wise he
is, can control the fate of our government and depart from our most fundamental
values.”
If the issues are not always apposite, there are echoes. The
cases show that what some take to be the curtailments of fundamental fairness
by an overreaching executive—the sorts of things that troubled Burke,
Jefferson, Jay, and others in the 1770s—are still subjects of contention
in America’s struggles for justice.
Katyal says, “I think the founders anticipated that presidents
are going to push their power. But what is great about America, it seems to me,
is that we have a court system that checks the president and allows this guy .
. . let’s him sue the world’s highest, most powerful official, the president of
the United States, and say, ‘You are doing something illegal to me; you are
violating your own basic laws.’ What other nation on Earth allows people to do
that? It’s a great thing about America.”
Trials By Jury Slideshow
James Breig is an Albany, New York, based writer who
contributed to the winter journal an article about the Northwest Passage.
Suggestions for further reading:
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Historic Triangle