Sunday, November 16, 2008

Late Colonial and Early National Juries

William E. Nelson’s groundbreaking Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 was first published over thirty years ago. For me, at least, what was most stunning about the book was its description of the way in which juries functioned in the late colonial and early Republic periods. In particular, it was understood and expected that juries would determine both the facts and the law.

This meant that, as a practical matter, the power of colonial and state legislatures was extraordinarily weak. What mattered were customs of the local community, embodied in their juries. In effect, “jury nullification” was the norm:
[T]he law-finding power of juries meant that the representatives of local communities assembled as jurors generally had effective power to control the content of the province’s substantive law. Because of the power of juries, the legal system could not serve as an instrument for the enforcement of coherent social policies formulated by political authorities, either legislative or executive, whether in Boston or in local communities, when those policies were unacceptable to the men who happened to be serving on a particular jury.


The power of juries over the substance of the law, the restraints that the doctrine of precedent imposed on judges in their performance of their few law tasks, the lack of coercive power on the part of officials, and their liability to damage judgments at the hands of juries rendered formal institutions relatively weak. Officials were, in essence, incapable of exercising their coercive powers without the consent of the local communities they “governed.”


The antiauthoritarian response of the province’s legal system, which made it impossible for officials to act without the approval of local communities, apparently insured that officials would act on against people who violated community norms of morality and justice, while people who followed those norms would be safe and their rights and properties secure.

Over the past several years, Professor Nelson’s work has assumed increasing importance as other scholars have used it to explore diverse areas of legal and constitutional history.

One recent example is an article posted earlier this month on SSRN: Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction. By way of background, Article III, Section 1 of the Constitution gave Congress the power to create “inferior” federal courts below the Supreme Court, but did not require Congress to do so (“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”).

The First Congress promptly used this authorization to create federal trial courts, called District Courts, the major business of which was to try so-called “diversity” cases – that is, ordinary cases, involving state law issues, where the parties were citizens of different states, or one party was a foreign national. By way of example, if a New Yorker sued another New Yorker for breach of contract or theft of property, he had no choice but to bring that suit in state court. But if a Virginian, or a citizen of Britain, sued a New Yorker on such a claim, he had the option of bringing his suit in the newly-created federal trial court for the “District” of New York.

In his article, Professor Jones explores the question, Why did Congress bother? Why create a duplicative set of federal trial courts devoted largely to trying cases that state courts were already handling? Building on Professor Nelson’s findings, Professor Jones identifies the jury as the key to the puzzle. Federal legislators intent on creating a system of justice that gave greater weight to national interests presumably understood that the composition of jury panels was crucial. By establishing separate federal trial courts, local federal officials could manipulate the composition of federal juries in several ways.

First, unlike now, when jurors are summoned by lot, at the time federal marshals had the discretion to select just about anyone they wished. A federal marshal could therefore summon men he knew to be reliable Federalists who were sensitive to national interests. Professor Jones’s review of jurors summoned to the federal District Court in New York shows exactly this pattern. Leading men in the professional and business communities were summoned over and over again.

The other crucial element was geography. In state courts, trials were truly local affairs. Judges rode circuit from county to county. If a case involving a contract or a dispute over a parcel of land went to trial, the trial was held in the county where the contract was made or the land was situated. The jurors came from the same county. Their decision reflected (in Professor Nelson’s words) “community norms of morality and justice.”

In contrast, in most states the federal District Courts sat in only one (occasionally two) places. Typically, those locations were the leading business and financial centers. In New York, for example, the court sat in Manhattan (it also sat one time in Albany). That meant that the overwhelming percentage of jurors would come from Manhattan – even if the dispute involved a contract or land in the distant reaches of the state. As already noted, those Manhattan jurors tended to be the “better sort”, members of the merchant, financial and business community.

These devices could be extremely effective. Professor Jones cites as an example an extraordinary string of victories by out-of-state and British plaintiffs seeking to recover land in New York:
Between 1809 and 1815, the New York Circuit Court rendered judgments in approximately thirty-five ejectment suits. In all of these cases, diverse [that is, out-of-state] plaintiffs claimed title to the land and sought to eject a local inhabitant in an upstate county [including Broome, Cayuga, Cortland, Seneca, Tioga and Washington]. Twenty-six of the suits were brought by British heirs of Donald Fisher to eject landholders in upstate Washington County. The Fisher cases arose of the New York confiscation laws, which had redistributed the lands of loyalists during the Revolution.

Under New York law, all of these title disputes would have been tried in the counties where the land was located had they been litigated in state court. One can speculate whether a British heir to a loyalist would have been successful in dispossessing a local inhabitant had the case been tried before a jury composed exclusively of local farmers. The federal juries, however, were composed of Manhattan residents who were predominantly merchants. The Fisher plaintiffs succeeded in dispossessing the local inhabitants in every one of their federal cases. In fact, the judgment rolls reveal only one instance during this period where the federal jury found for the defendant in an ejectment case.

As a side note, did you ever wonder how federal authorities so successfully stacked the juries in the Sedition Act cases with Federalist jurors prepared to convict the defendants? Now you know.

Professor Nelson’s work has also gained new attention as the result of an article by Suja A. Thomas bearing the startling title Why Summary Judgment is Unconstitutional. For non-lawyers, summary judgment is a procedural device that defense lawyers use in civil cases (that is, non-criminal cases) to seek the dismissal of cases before they are presented to a jury. Under modern rules, if the relevant facts are undisputed, a judge is entitled to dismiss a case “as a matter of law” if the substantive law warrants it. For example, if a judge concludes that the wording of a written contract is unambiguous (not reasonably susceptible of more than one meaning), he may rule in favor of one party or the other. The jury is not involved.

Professor Thomas argues that the use of this procedure violates the Seventh Amendment right to a jury trial in civil cases (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”). When the Seventh Amendment was ratified, she argues, juries decided both the facts and the law; it was practically impossible to obtain dismissal of cases unless a jury decided to so rule, and there was certainly no procedure akin to modern-day summary judgment. Thus, the right to a jury trial included the right to have a jury decide virtually every case -- including cases that are now dismissed before trial today.

It is obviously impossible, in the context of an already-long blog entry, to evaluate Professor Thomas’s claim. However, it is worth noting that the University of Iowa recently held a symposium on the issue, with papers by both Professors Thomas and Nelson, among others.

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