Twelve Strangers, How Trial by Jury Crossed the Atlantic to America

Consider what a jury is. The government accuses you of a crime. It has the police, the prosecutors, the laboratories, the courthouse and the power of the purse. And standing between that machine and your liberty is a group of twelve people who were picked from the phone book, hold no office, answer to no one, and will go home on Friday.

No king would have designed it. No bureaucrat would have approved it. A modern efficiency consultant would take one look at a system that hands the most serious decisions in the law to amateurs summoned against their will, and would recommend replacing it with a software package. And yet it has outlasted a great many kings, and the men who founded this republic were so attached to it that they wrote it into the Constitution three times.

I want to tell you why. This is the story of a right that crossed the Atlantic, that colonists cited in nearly every list of grievances, that a king's judges tried to override, and that the Supreme Court did not make binding on the states until 1968. It is the story of how ordinary people became the final check on power, and it begins in a meadow in 1215.

Magna Carta, chapter 39

In June 1215, at Runnymede, King John was forced by his barons to accept a charter of liberties. Most of its sixty-odd clauses deal with feudal matters of no interest to anyone today. A handful have outlived the world that produced them, and the most famous of these is chapter 39.

In one standard translation it reads that no free man shall be seized or imprisoned, or deprived of his rights or possessions, or outlawed or exiled, except by "the lawful judgment of his equals or by the law of the land." Translations vary in their wording, and historians argue about exactly what "judgment of his peers" meant to the barons who demanded it. They were probably thinking of fellow nobles, not of a jury as we know it. The jury trial of twelve neighbors was still evolving in English courts, and the barons were not drafting for the ages.

But the words outlived the barons' intent. Over the following centuries English lawyers read chapter 39 as a promise that the Crown could not take a man's liberty except through lawful process and the judgment of those like him. Edward Coke, the great jurist of the early seventeenth century, made it a cornerstone of the argument against arbitrary royal power. By the time the colonists crossed the Atlantic, "the law of the land" and "the judgment of his peers" were not museum pieces. They were the working vocabulary of liberty.

Bushel's Case, 1670

Here is where the jury becomes something more than a procedure. It becomes a shield.

In 1670, two Quakers, William Penn and William Mead, were tried at the Old Bailey in London. Their offense was preaching to a crowd in the street, and the charge was unlawful assembly. The judges at the trial wanted a conviction. The jurors, who included a man named Edward Bushel, would not give it to them. The judges locked the jury up without food, water or heat and ordered them to reconsider. They held out, and the jury finally returned a verdict of not guilty. The judges then fined the jurors and imprisoned them until the fines were paid.

Bushel sought a writ of habeas corpus, and the case reached the Court of Common Pleas, where Chief Justice Vaughan ruled that a jury could not be punished for its verdict. The reasoning went to the root of the thing: a jury exists to decide the facts as its members find them, and if judges may fine jurors whenever they disagree with the verdict, then the jury is a fiction and the judge is the real tribunal. The jurors were freed.

This is the case to remember when anyone tells you juries are a quaint ritual. The principle that a jury's verdict of acquittal cannot be overridden, and that jurors may not be punished for it, is the single most important protection a defendant has against a prosecution that the people find unjust. It means that when the government brings a case the community will not support, the community can say no, and the government cannot appeal to a higher power to reverse it. It is part of our law today, in the rule that an acquittal ends the case, and it began with twelve Londoners and a hungry night.

Zenger, 1735

Cross the ocean now. In 1735 in New York, a printer named John Peter Zenger was charged with seditious libel for publishing articles in his newspaper criticizing the colonial governor. Under English law at the time, truth was no defense to seditious libel; the judge decided whether the words were libelous, and the jury merely decided whether the defendant had published them. That rule was designed to make convictions easy.

Zenger's lawyer, Andrew Hamilton of Philadelphia, took a different route. He appealed directly to the jurors. He told them that they had the right to judge both the law and the facts, and that the publication of true statements about the government's abuses ought not to be a crime. The jury acquitted Zenger.

Whatever a modern lawyer thinks of that argument, the result is the point. Colonial jurors had stood in the way of a governor who wanted to punish his critic, and a free press in America was born out of that verdict. The lesson the colonists learned, and never forgot, was that when the government's own judges would not protect liberty, a jury of neighbors might.

The Stamp Act Congress and the Declaration

Now consider what happened when the British government tried to remove that protection. The Stamp Act of 1765 was a tax on printed matter, and the prosecution of those who evaded it was assigned in many cases to vice-admiralty courts, which sat without juries, with a judge alone deciding the case. The colonists understood immediately what this meant: they could be tried for a tax offense by a royal appointee, with no jury of neighbors.

The Stamp Act Congress, meeting in New York in October 1765, adopted resolutions of rights and grievances, and among them was the declaration that trial by jury is the inherent and invaluable right of every British subject in these colonies. The word "inherent" is worth pausing over. The colonists did not say that the king had granted it, or that Parliament had granted it. They said that it belonged to them already.

A decade later, when the Declaration of Independence set out the long list of the king's offenses, the jury was there. Among the charges against the king was this: "For depriving us in many cases, of the benefits of Trial by Jury." It stands on the same list as the quartering of troops and taxation without consent. The colonists did not treat it as a technicality. They treated it as a reason for a revolution.

That should settle any doubt about how the founding generation regarded the jury. It was not a procedural detail inherited from the English courts. It was one of the rights for which they were prepared to risk their lives.

Three times in the Constitution

When the Framers wrote the Constitution in 1787 and the first Congress drafted the Bill of Rights, they placed the jury in three separate places. This is no accident of drafting. It is a pattern of emphasis.

First, Article III, section 2, clause 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The original Constitution, before any amendments, already guaranteed jury trial in all federal crimes. Notice also that the trial must be held in the state where the crime happened, a response to the practice of hauling colonists across the ocean to stand trial in England.

Second, the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Note the adjectives. Speedy, public, impartial. Each answers a particular abuse.

Third, the Seventh Amendment: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The jury guarantee covers civil cases too. Twenty dollars was a considerable sum in 1791, and the provision shows that the Founders wanted ordinary people deciding private disputes, not only crimes.

The Anti-Federalists had complained that the original Constitution said too little about civil juries, and that complaint was a major reason the Seventh Amendment exists. Federalist No. 83, where Alexander Hamilton took up the question of civil juries, is worth reading, if only to see that both friends and critics of the Constitution valued the institution and argued about how best to protect it.

The best objection

Now, as a matter of intellectual honesty, the strongest case against the jury. I will state it as its defenders would.

One, jurors are amateurs. Modern law is complex, and ordinary people may not follow it. Two, juries can be swayed by emotion, prejudice or a clever lawyer. Three, jury trials are slow and expensive, and in complex cases, such as ones with technical evidence, a judge might do better. Four, the jury has become mostly symbolic. The great majority of criminal cases in America end in plea bargains, never reaching a jury at all.

Let me answer these.

1. The amateur is the point. A professional judge sees hundreds of cases and may grow weary of defendants' stories. A jury sees one case, and sees it fresh. And the lawyers must explain their case in plain language to people who will not tolerate jargon, which disciplines both sides. A system that has to persuade twelve strangers is a system that has to be persuasive in ordinary English.
2. Bias is real, and the answer is the process. Jury selection lets both sides question and strike potential jurors, instructions guide the law, and the unanimity rule in criminal cases, which the Court required of the states in Ramos v. Louisiana in 2020, forces jurors to deliberate until they agree. A single judge is not immune to bias, and there is only one of him.
3. Efficiency is not the highest value. The Constitution was not written to make government quick. It was written to make government accountable. A conviction obtained in five minutes by a professional is a conviction nobody has checked.
4. The plea problem is real, and it argues for the jury, not against it. If almost every case is resolved by plea, the likely reason is that the threat of a harsher sentence after trial pressures defendants to give up the right. That is a problem with how we use the jury, a problem a conservative committed to the Constitution's text should want to fix. A right that nobody exercises is a right on the way to disappearing. We press related concerns about the power of the prosecutor in Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them, and about how pretrial detention can push people into pleas in Three Ways to Decide Who Waits for Trial in Jail, Side by Side.

Duncan v. Louisiana, 1968

There is a final chapter, and it concerns the states. For the first hundred and eighty years of the republic, the Sixth Amendment's jury guarantee applied against the federal government. Whether it applied against state governments, where nearly all criminal cases are tried, was a separate question, answered by the Fourteenth Amendment and the doctrine that incorporates parts of the Bill of Rights against the states.

In Duncan v. Louisiana (1968), Gary Duncan, a Black teenager, was convicted of simple battery in Louisiana and was denied a jury trial, because in Louisiana a jury was available only in cases where the punishment could be capital punishment or hard labor. The offense carried a maximum of two years in prison. Justice White, writing for the Court, held that the Sixth Amendment's right to a jury trial in serious criminal cases is fundamental to the American scheme of justice and applies to the states through the Fourteenth Amendment. Petty offenses, those carrying a short sentence, could still be tried without a jury, and the Court has since said that a sentence of up to six months marks the line.

The Court has refined the right since. It held in Williams v. Florida (1970) that the jury need not number twelve, a historical tradition that the Constitution does not require, and in Ramos in 2020 it held that a unanimous verdict is required for conviction in state court as in federal. But Duncan is the case that brought the guarantee home.

What it means now

A republic is made of institutions that distribute power, and the jury is the one that distributes it furthest, down to the individual citizen. The prosecutor decides whom to charge, the judge applies the law, the legislature writes it, and the executive enforces it. The jury is the only part of that chain in which the power is held for a few days by people who have no career to protect.

This is why the founders cared. It is why the king's attempts to take juries away were on the list of reasons to break with him. And it is why we should be uneasy about any trend that moves decisions away from juries, whether toward plea bargains, administrative tribunals that decide cases without one, or civil penalties imposed by agencies. We should also answer the call when it comes. A jury summons is one of the few times the government asks you to exercise power instead of obey it. Treat it as the privilege it is. We close the loop on the broader promise of equal treatment before the law in Equal Justice Under Law, From the Fourteenth Amendment to the Courthouse, and on a related Founding-era limit in Excessive Bail Shall Not Be Required, and What the Founders Meant by It.

The case in brief

1. Chapter 39 of Magna Carta (1215) promised that no free man would be seized or deprived of his rights except by the lawful judgment of his equals or the law of the land, and the language outlived its authors' intent.
2. Bushel's Case (1670) established that jurors cannot be punished for their verdict, and Zenger's acquittal in 1735 showed colonial juries standing between officials and a free press.
3. The Stamp Act Congress of 1765 called jury trial an inherent and invaluable right, and the Declaration of Independence listed its denial among the king's offenses.
4. The Constitution protects the jury in Article III, the Sixth Amendment and the Seventh Amendment, and Duncan v. Louisiana (1968) applied the criminal guarantee to the states.
5. The strongest objections, from amateurism to the decline of trials, are answered by the jury's purpose: to make power accountable to ordinary citizens.

What you can do: read Article III, section 2 and the Sixth and Seventh Amendments on the Constitution page, and when a jury summons arrives, answer it and serve.