Dean's Address

The vagueness of this provision, according to one scholar, was one reason for opposition manifested toward the Constitution during the 1787‑1789 ratification period. (J.Van Dyke, Jury Selection Procedures 7 (1977).)

Strong opposition to the infant constitution arose from the outset. On the very day the Constitution of the U.S. was made known to the people by publication, there was published immediately adjacent to it in the same newspapers a virulent attack upon it, signed by Cato. Cato was known by everyone to be Governor Clinton, the Governor of New York, and a powerful political figure of his time. Many similar attacks followed, authored by some of the most powerful political figures of New York, and signed with Roman pseudonyms.

Alexander Hamilton, then 30, was a staunch supporter of the new Constitution. As a lawyer in New York, he had taken a prominent role in the events resulting in the constitutional convention and the drafting and adoption of the Constitution. He was the only New York member to sign the Constitution.

In the fight for ratification, he undertook to respond to the attacks. His first two articles, written under the name of Caesar, were bitter, acrimonious, and scornful of Clinton's appeal to "the majesty of the multitude." Persuaded that such personal attacks would not help gain support for ratification, he altered his style, and authored the first number of "the Federalist," under the name Publius.

There then appeared, from October 1787 to April 1788, a continuing stream of Federalist papers over the signature Publius. These articles were published in newspapers throughout the country. There appeared as many as four articles a week from the prolific pen of Publius. They were published in book form even before they had all appeared in newspapers.

Although the Federalist articles were at first thought to be authored only by Hamilton, it was soon known that actually three men wrote as Publius; Hamilton, John Jay and James Madison.

The question of guaranteed jury trial was of great moment to the public. It was of such great concern that the opponents of the Constitution felt they could use its alleged exclusion as a basis for defeating ratification. Knowing the sentiment for jury trial in criminal and civil cases, which was one of the great issues of the revolution, the opponents of the Constitution argued that it should not be ratified because it did not provide for a Civil Jury Trial. Their argument was that since it provided only for a jury trial in criminal cases, by omission it abolished civil jury trials, and therefore should not be ratified. In opposition, Hamilton and Publius asserted not that the civil jury trial was unnecessary, but that the Constitution did preserve the right to civil jury trials. Thus, all, opponents and proponents, were agreed that civil as well as criminal jury trials must live.

Hamilton wrote as follows in the Federalist, Number 83:

"The objection to the plan of the convention which has met with most success in this State and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to Civil Causes is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition.

In equally strong language, Hamilton then proceeds to illustrate how the failure to specifically include mention of civil jury trials does not mandate their abolition, finally concluding:

"The pretence, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognisance to the determination of juries is a pretence destitute of all just foundation. From these observations, this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted is contrary to reason and common‑sense and therefore not admissible..."

He continues:

"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 the trial by jury; or 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."

Undoubtedly, fears expressed by the constituency produced the Bill of Rights, adopted as the first Ten Amendments to the Constitution in 1791, in which trial by jury was accorded a prominent role. Specifically, the Fifth Amendment declared that no person could be criminally charged "unless on a presentment or indictment of a grand jury;" the Sixth Amendment guaranteed that accused persons would have a speedy, public trial by an impartial jury in the state where the alleged offense was committed; and the Seventh Amendment preserved the right to trial by jury in all cases at common law where the amount in controversy exceeded twenty dollars. (Hyman and Tarrant 31‑32; Van Dyke 7.) Thus the Constitution firmly established the prerequisite of a jury verdict before a person could be convicted of a crime or denied freedom.

In the face of continued praise and blame, how has the jury trial fared? As noted above, with the expansion of the British Empire the jury system was introduced in North America, Africa, and Asia. The French Revolution was also instrumental in bringing the jury system to the continent as a symbol of popular government. The jury went first to France and, through Napoleon, to the Rhineland, then to Belgium, the German States, Austria, Hungary, Russia, Italy, Switzerland, Holland, and Luxembourg. Immediately after Napoleon's defeat in 1815, Holland and Luxembourg abolished the jury system. In the countries remaining, the use of the jury was limited to trials of major crimes and political crimes.

Little by little, beginning in the mid‑Nineteenth Century, jury trials on the European continent were prohibited in cases of treason, libel, and political crimes. In 1919 Hungary suspended the jury trial completely. Germany abandoned the concept in 1924. France never reintroduced the jury after it was abolished by the Germans during World War Il. Japan's short‑lived experiment ended in 1943. After World II, Austria reintroduced a weakened jury system. Even in England itself, its use is limited by statute to a small number of cases. Not surprisingly, the Soviet bloc and fascist states abolished juries outright. (10 Encyclopedia Britannica 361 (15th ed. 1979).)

By implication, modern critics of the jury point to Britain's virtual abandonment of juries as evidence of the jury system's obsolescence. For instance, Chief justice Burger in an address to the National Conferences on the Causes of Popular Dissatisfaction with the Administration of justice, in 1976 suggested a re-examination of the effectiveness of our methods of dispute resolution. Specifically, the Chief justice noted that an appropriate subject for consideration would be the viability of civil juries, reminding his audience that England, " 'the fountainhead of all our legal institutions,' had abandoned the use of the civil jury trial in most cases forty years ago." (Higgenbotham, "Continuing the Dialogue: Civil Juries and the Allocation of judicial Power," 56 Tex. L. Rev. 47, 48 (1977).)

As we have seen, the Chief Justice's reference is attenuated. The jury trial as we know it is uniquely American. We saw that its concept at the time of the Magna Carta was totally foreign, in fact 180 degrees from our present concept. But the English themselves cannot take credit for the idea of the jury. The idea of individuals as jurors, long before appearing in England, appeared in France, Scandinavia and Rome. It was first introduced into England by Henry II in the Twelfth Century. Henry was half French, one quarter Anglo Saxon. His language was French. He learned to speak only the crudest English to communicate with his subjects. He came to power after the disastrous reign of King Stephen. In as poor a rule as England ever had, the people under Stephen were subject to robbery, extortion, torture, murder, rape and every crime imaginable by the nobility ‑ "the devils in the castles." The intelligent Henry took as his first order of business the establishment of order in the kingdom. One of the most common ills suffered by the people during the anarchy of Stephen's reign was dispossession. Henry sent out his men to determine the rights to possession of the land. Tracing title to determine ownerships would have been impossible. The best that could be hoped for was to put things back the way they were before the tempestuous reign of Stephen. To this end, Henry ordered his officials to question the local citizens and find out what had belonged to whom. In this context, the officials could be called justices and the locals they questioned to determine the facts, jurors. The person claiming to have been dispossessed had his claim decided by his neighbors who gave sworn answers to the justice. Thus the word juror, from the Latin "jurare," to swear. The judicial action and the order creating it had the delightful name: the Assize of Novel Disseisin. (Rembar, 127‑129.)

In contrast to the United States, Britain has no constitutionally mandated right to civil jury trial. Consequently, no constitutional safeguards existed to prevent Parliament from severely restricting the use of civil juries. The death knell for the civil jury in England, therefore, came in the form of legislation: the judicature Acts of 1873‑75; the juries Act of 1918; and the Emergency Provisions of 1939.

Prior to 1873, probably ninety percent of all cases in Britain were tried before juries. It was not until World War 1, with the passage of the juries Act of 1918, that manpower shortages curtailed the use of the civil jury. A jury trial was required only in cases of fraud, libel, slander, false imprisonment, seduction, malicious prosecution, breach of promise to marry, divorce, or probate. With the 1925 repeal of the juries Act of 1918, jury trials reemerged. Discontent mounted; trial delays and excessive costs were attributed to the civil jury system. Consequently, Parliament passed the Administration of Justice Act of 1933 which again severly restricted the general right to a jury. The courts, however, retained the discretion to order a jury trial in any cases where it was not required.

World War 11 and the Emergency Provisions of 1939 effectively terminated the civil jury trial in England. At least one prominent British jurist, Sir William Diplock, attributed the disappearance of the civil jury to habit and inertia: " 'Habit, the most potent force in procedural matters, which had previously operated to preserve the jury trial now operated against its revival.'" (Higgenbotham, 56 Tex, L. Rev. 50‑53.) Habit, manpower shortages due to two devastating World Wars, and the existence of a bar unaccustomed to the tradition of the civil jury, probably all contributed to its demise.

The British experience is an example of the evils of passivity, and of bowing to expedience. It is an example of how pressures or exigencies of the moment, real or imagined, may serve to erode what we leave unprotected.

The jury system, even as it presently exists in criminal cases in England, is much different in practice from the system in the United States. This is primarily due to the inherent differences in our legal systems. Theirs utilizes a specialized bar and a specialized judiciary. Attorneys function in a completely oral legal system, without a hearsay a Gideon or a Miranda rule (the police decide when a lawyer will be available to a suspect), without discovery except for documents, with virtually no contact between the attorney and client or witness before trial. (Stafford, "Trial by jury The English Way," 66 ABA journal 331 passim (1980).)

Appeals in Britain are rare, and the roles of the attorneys themselves are highly regimented. The solicitor prepares a case and the barrister tries it, in marked contrast to the legal system in the United States.

With the British jury so severly restricted, the United States has emerged as the last haven for the jury system. Approximately 120,000 jury trials are conducted here annually or more than ninety percent of the world total.

The English jury in civil as well as criminal cases plays a much less important role than its American counterpart. The trial of a case in England is developed largely thru papers, pleadings in the forms of statements and counterstaternents, back and forth. Oral Testimony is frequently nothing more than an acknowledgment or reaffirmation of these statements. The trials are usually perfunctory, dry and under rigid control of the judge. The barrister does not have the freedom of movement, expression or persuasion of the American lawyer. There is little opportunity for bringing matters of original impression to the jury. On appeal, the jury's findings of fact are subject to review, further weakening its role. In our system, of course, the appellate courts ordinarily review only the law. The jurors are the sole judges of the facts and their findings will not be disturbed unless there is no evidence to support them upon which reasonable minds could differ.

By the same token the English judges play a lesser role. They are more dominant in one way ‑enforcing the rituals of the Courts. But in the far more important area of establishing precedent, shaping the law to the needs of the community, they play virtually no part.

Even the appellate courts rarely plow new ground. Appeals are argued, sometimes for days, but amount merely to a rehash of the facts addressed at trial. (There is rarely a record made of the testimony.) No briefs are filed. The appellate court has no opportunity for research, and it usually renders its opinion orally from the bench. This may develop a facility with extemporaneous phrases, but it surely does not encourage departure from precedent. As a result, England generates little in the way of reports.

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