An Essay on the Trial By Jury

egal juries, either in England or America. And if there are no legal

I mean that there are probably no juries appointed

ny trial by jury that the government itself may chance to invent, and call by that name. It is the thing, and not merely the name, that is guarantied. Any legislation, therefore, that infringes any

s never had any constitutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors.

inciples of the common law, cont

are

lt male members of the state, s

rors to be made from a less number of freemen than

te, are eligible as jurors, the jury no longer repre

can be restricted to a very small proportion of the whole; and thus the government be taken

igible as jurors, is sufficiently proved, not only by

n were eligible as jurors, unless it be the law of Ethelred, which requires that they be elderly [3] men. Since no specific age is given, it is probable, I think, that t

quite conclusively that all freemen, above the

a century after Magna Carta,) in the s

t forbidden by law ma

hich are repugnants; persons attainted of false judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor deaf, nor dumb, nor parties in

Of Inferior Cou

rrant of jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee, to the likeness of the hundred courts. There are other inferior courts which the bailiffs hold in every hundred, from three weeks to three weeks, by the suitors of the freeholders of the hundred. All the tenants within the fees are bounden to do their

f the Sheriff's T

year in every hundred; where all the freeholders within the hundred ar

was passed by Edward I

a Ca

summons; and summon also an unreasonable number of jurors, for to extort money from some of them, for letting them go in peace, and so the assizes and juries pass many times by poor men, and the rich abide at home by reason of their bribes; it is ordained that from henceforth in one

g the duties, may not, of itself, afford any absolute or legal implication, by which we can determine precisely who were, and who were not, eligible as juro

e king, the rents of which went to pay his personal and official expenditures, not including the maintenance of armies, or the administration of justice. War and the administration of justice were provided for in the following manner. The freemen, or the free-born adult male members of the state who had not forfeited their political rights were entitled to land of right, (until all the land was taken up,) on condition of their rendering certain military and civil services, to the state. The military services consisted in serving personally as sol

eeholders were liable to these rents, and were therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at common law, all the freeholders were eligible as jurors. If all had not been elig

es, upon this common law principle, was made in I285, seven

arly. And if such assizes and juries be taken out of the shire, no one shall be placed in them who holds a tenement of less value than forty shillings yearly at

articular, was made in 1414, about two hundred

party in plea real, nor in plea personal, whereof the debt or the damage declared amount to forty marks, if the same person have

the property qualifications of j

d the authority of selecting the jurors that were to sit in judgment upon its own acts. This is destroying the vital principle of the trial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal, taken indiscriminately from the whole people, without

een repeatedly changed, and made to vary from a freehold of ten shillings yearly, to one of "twenty pounds by the year at least above reprises." They have also been made different, in the counties of Southampton, Surrey, and

is of property, but it has even assumed to give to some of its judges entire and absolute personal disc

ons to inquire for the king, shall hereafter be reformed by additions and taking out of names of persons by discretion of the same justices before whom such panel shall be returned; and the same justices shall hereafter command the sheriff, o

1 Henry VIII, ch. 11, (1509,) to

ade perpetual, by 3 Hen

iscretion; and abolished the last vestige of the common law right of the people to si

"law of the land," than were those statutes which affixed the property qualifications before named; because, if the ki

part of the country; that part, too, on whose favor the government chose to rely for the maintenance of its power, and which it therefore saw fit to select as being the most reliable instruments for its purposes of oppression towards the rest.

powers, and the authority of its own legislation, over the people; and a denial of all right, on the part of the people, to judge of or determine their own liberties against the government. It was, therefore, in reality, a declaration of entire absolutism on the part of the government. It was an act as purely despotic, in principle, as would have been the express abolition of all juries whatsoever. By "the law of the land," which the kings were sworn to maintain, every free adult male British subject was

ept in London and a few other places) to be freeholders. All the other free British subjects are excluded;

resses the same idea that it did in the ancient common law; because no land is now holden in England on the sam

services to the state, (or to the king as the representative of the state,) under the name of rents. Those who held lands on these terms were called free tenants, that is, free holders meaning free persons, or members of the state, holding lands to

herefore a freeholder; and every freeholder was a member of the state. And the members of the state were therefore called freeholders. But what is material to be observed, is, that a man's right to land was an incident to his civil f

tue of his civil freedom, but only one who held it in fee-simple that is, free of any liability to military or civil services. But the government, i

c. Rut the principle of the present English statutes is, that a man shall have a right to sit in juries because he owns lands in fee-simple. At the common law a man was born to the right to sit in juries. By the present statute

as these; but only in juries to which every free

the selection of the actual jurors comes to be made, (from the whole body of male adults,) that selec

ids the selection to be made b

s, were appointed, (probably by the sheriff,) to select the jurors. 3. By the sheriff, bailiff, or other person, who held the court, or rat

Gilbert's History of the Common Pleas, p. 2; note, and p. 4.) This has been shown in a former chapter. [8] At common law, therefore, jurors selected by these officer

er Magna Carta, the choice of sheriff's was

, barons of the exchequer, and by the justices. And in the absence of the ch

lent to an appointment by the king himself. And the sheriffs, thus appointed, held their offices only during the pleasure of the king, and were of course mere tools of the king; a

courts, in which the sheriff's presided, and which were the most important courts of the kingdom. From this cause alone

s the juries are illegal, for one or the other of the

iples of the common law it is necessary that every adult male member of the state should have hi

to be freeholders. But this requirement is illegal, for the reason that the term freeholder

urors are required to be "freeholders or house

are required to b

eorgia, jurors are required to hav

d to have a property qualific

towns, cities, and counties are authorized to select, once in one, two, or three years, a certain number of the people a small n

te in town meeting, have a veto upon the jur

ames inserted by the authorities, and insert others; thus making jurors elective

lected, for each term of court

of such persons only as are freeholders, and as are well qualified to act as juror

be delivered to the sheriff a list of not less than sixteen, nor more than twenty-three persons, qua

jurors are to be selec

stices of the inferior courts of each county, togeth

ourt, and clerks of the circuit and county cour

d by the governor of the state, and that is enough to make the juries illegal. Proba

vania, Delaware, South Carolina, Kentucky, Iowa, Texas, and California, I know not. There is little

rts of the United States, it i

therwise, according to the mode of forming such juries now practised and hereafter to be practised therein, in so far as such mode may be practicable by the courts of the United States, or the officers thereof; and for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation and empanel

t of all our judicial tribunals, and the only ones on which the least reliance can be placed for the preservation of liberty have given the selection of them over entirely to the control of an indefini

the state legislatures, to be exercised within each state in such manner as the legislature of such state shall please to e

a legal trial by jury, in a single court of the Un

written constitutions, to control the action of the

al juries, and the jurors had known their rights it is hardly probable that one tenth of the past legislat

and when a court is to be held for a county or other district, let the officers of a sufficient number of townships be required (without seeing the names) to draw out a name from their boxes resp

English Co

ial personal disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of c

ed elderly, I do not know. In the Latin translations it is rendered by sen

" Of what credit and estate those jurors must be

as be of good name and fame, and having lands and tenements of freehold within the same shires, to the yearly value of twenty shillings at the least, or else lands and tenements holden by

ake, by their discretion, an inquest, whereof every man shall have lands and tenements to the yearly value of

1494, in regard to j

n, en

the value of forty marks; [5] and that no person or persons hereafter be impaneled, summoned, nor sworn in any jury or inquest in any court within the said city, for lands or tenements, or action per

II, ch. 3, sec. 4, (15

ds to the value of

uit, to the same turn, whereof every one hath lands or freehold to the yearly value of ten shillings, or copyhold lands to the yearly value of thirteen shillings four pence, above all charges within any of the said counties, or men of

or town corporate, where he dwelleth and maketh his abode, being worth in moveable goods and substance to the clear value of forty pounds, be henceforth admitted in trials of murders and felonies in every sessions and gaol delivery, to

ssize, by the laws of this realm now in force, ought to have estate of freehold in lands, tenements, or hereditaments, of the clear yearly value of forty shillings, that in every such case the jurors that shall be returned fro

the year of our Lord one thousand six hundred and sixty-five, in any county of this realm of England, shall every of them then have, in their own name, or in trust for them, within the same county, twenty pounds, by the year, at least, above reprises, in their own or their wives right, of freehold lands, or of ancient demesne, or of rents in fee, fee-tail, or for life. And that in every county within the dominion

e value of ten pounds a year, and jurors in Wales to have similar estates of th

the tales in any county of England, who shall have within the same cou

ndon, who shall not be "an householder within the said city, and have l

alue shall amount to fifty pounds or upwards per annum, over and above all ground rents or other reservations payable by virtue of the said leas

hirteen shilling

d anybody ever have doubted that such legislation was inconsistent with the English constitution; or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the

jurors * * were sometimes * * drawn by lo

er 4, p.

rticle XIX of amendment to the Constitution for the United States, August 20, 1920, women w