Renée Lerner: The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury
Renée Lettow Lerner (George Washington University Law School) has posted The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury (Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015)) on SSRN. Here is the abstract:
Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.
Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.