On July 2nd, 1776, the Continental Congress voted for Independence. We celebrate, however, on the 4th when the Declaration was signed. I discussed this last year in: United States of America Declares Its Independence (Jury Trials Are One Reason)
But it’s worth repeating this year on the heels this week of the WSJ op-ed by high profile law professor Richard A. Epstein, who proclaimed that the right to a jury trial was a mere “procedural feature,” among other ludicrous claims.
And so it’s worth repeating that not only is the mere “procedural feature” enshrined in the Bill of Rights, but it’s also in the Declaration of Independence.
In the long bill of particulars of reasons we took up arms against the crown is this:
For depriving us in many cases, of the benefit of Trial by Jury
The unanimous Declaration of the thirteen united States of America
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
I am presently reading a book – Dawning of the Raj, by Jeremy bernstein. It is generally about the nascent British Empire in India. In that book, there is some incidental discussion of the origins of British courts there, Headed by a Cheif Justice Impey, and how the powers of the court evolved and were essentially controlled by the East India Company and English Parliament.
There was, of course, no independence movemnet in the British-Indian Raj. However, the descriptions of events illustrate to a small dgree how the Crown’s and Government’s politics and expressions of political power created and molded the nature of the courts there, truth and justice seemigly low on the list of importance in comparison with stifling public disruption and pushing political ends.
# posted by Blogger Tom : July 03, 2009 12:29 PM
There are many good reasons for juries. But the best, I think, is the ultimate dispersion of power, regardless of whether the case is a criminal or civil one.
It was, I think, part of that whole don’t-trust-government thing that existed at the time of the Revolution and continues today.
# posted by Blogger Eric Turkewitz : July 05, 2009 9:17 PM
I think the founding fathers , looking at today’s society would regard the right to a jury trial as the least important of the violated rights. In fact I think the founding fathers would be appalled at how frequently juries let their emotions overrule any consideration of the facts of the case.
I have served on six juries (four criminal and two civil) and while I don’t doubt that juries try to be fair, I also think that voir dire process ensures that on a typical jury, only a few intelligent jurors survive, usually after both sides have used up their peremptory challenges. On the two civil juries I’ve served on, it seemed to me that those on the public dole are more than willing to give away other people’s money to the injured party irrespective of the merits of the case
# posted by Blogger pwd : July 06, 2009 2:11 AM
The part about juries letting their emotions run away with verdicts is purely anecdotal, not empirical.
Remember that the verdicts you see in the papers are not the rule, but the exception (that’s why they are in the paper).
A study was done many years ago among federal judges that found that the vast majority of the time the judges agreed with the juries.
# posted by Blogger Eric Turkewitz : July 06, 2009 6:22 AM
Eric – so it’s anecdotal – but it is also first hand observation because I , unlike most attorneys, have actually served on juries. I personally feel that any defendant civil or criminal should have the right to waive a jury trial.
If I were ever sued, I would be stunned if I actually got a jury of my “peers”.
# posted by Blogger pwd : July 06, 2009 9:39 PM
I think that a criminal defendant is allowed to waive a jury trial. That choice is theirs.
In civil cases, either side can demand the jury trial (in NY). Though in cases against the State, you are forced to have a bench trial.
I’ll try to find that study of judges and how they agree with juries. It would make a for a good separate post.
# posted by Blogger Eric Turkewitz : July 06, 2009 10:26 PM
Eric Turkewitz said…
I think that a criminal defendant is allowed to waive a jury trial. That choice is theirs.
In Delaware, a criminal defendant can ask for a bench trial, but the State has to agree in order for it to be granted, and the judge has to hold a colloquy with the defendant to make sure he or she is competent and understands the nature of the rights being waived. The judge can overrule the defendant’s and/or the State’s wishes in the interest of the defendant’s “fundamental rights.”
This differs from the U.S. Constitution, which does not grant the right to a jury trial for “petty” offenses.
(Cribbed from an assignment I’m working on at the moment.)
PG in DE
# posted by Anonymous Anonymous : July 10, 2009 7:34 PM
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