Linda S. Myrsiades Grand Juries, Legal Machines, and the Common Man Jury

This paper focuses on the concept of a jury of one's neighbors, that is, the common man jury. It traces this construction through two eighteenth-century trails (the trials of John Peter Zenger, 1735, and of Eleazer

Oswald, 1783) and examines juries as they have been regarded in the literary efforts of two early American judges--a poem by Francis Hopkinson. "Adrian's Assertion," and the novel Modern Chivalry and a legal handbook, Law's Miscellanies of Hugh Henry Brackenridge. The notion of trial by jury is extended to consider the public event of trial by press, engaging the public's extralegal involvement in performing the jury role. Finally, the paper concludes that the concept of a jury of one's neighbors acted as a counter-weight to a legal machinery that sometimes shortchanged individual rights and common sense in preference for the sophistry of security and the rights of the state.

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This paper examines eighteenth-century views of the jury as they were informed by English tradition and figured in American law. (1) It does so by, first, providing a background to the development of the jury. It then considers two American cases--that of John Peter Zenger in 1735 and that of Eleazer Oswald in 1783--that provide significant testimony about the views of the jury in colonial and post-revolutionary America, respectively. Supplementary views of the jury are provided through newspaper commentary on both cases and through a long poem titled "Adrian's Assertion" by Francis Hopkinson, signatory to the declaration of Independence and at the time he wrote the poem a Federal District Court Judge, and through the novel Modern Chivalry and the legal handbook Law's Miscellanies, by Pennsylvania Supreme Court Justice Hugh Henry Brackenridge.

The perspective taken by the paper allows us to consider both the role of the common man and the relative influence of lawyers and the judge in drawing a verdict in a jury trial, beginning with a focus on the concept of a jury of one's neighbors and ending with the importance of the common man's participation in the law. At the same time the paper considers that the notion of a trial by jury is extended as a public event by trial by press, which engages the public's extra-legal involvement in performing the jury role. The relative independence of the jury and its control by a legal elite is, finally, examined in terms of post-revolutionary America's conflict over how much power to leave in the hands of the few and how much to the people themselves.

A Jury of One's Neighbors

The notion of the jury trial as judgment at the hands of one's neighbors had its roots in English medieval law and custom and retained some influence, however residual, until the end of the eighteenth century. By the end of the middle ages, local residents had become accustomed to being gathered in an inquisition in which they served as witnesses to facts about which they had some knowledge, not to act as impartial observers (Katz 1963, n. 34, 217). Before the fifteenth century, the jury had taken on the role of investigating allegations and determining whether there was enough evidence for a trial, although in early modern times a private form of prosecution could be initiated merely by the oral accusation of a victim. In general, the victim had to arrange for his own witnesses, aided by part-time constables and justices of the Peace by the sixteenth century. Although witnesses for the prosecution could be bound over to attend the trial and testify at that time, compelling witnesses for the defense to appear did not occur until the early eighteenth century (Anand 2005, 423, 422). In a system enhanced by the practice of retaining jurors for multiple cases, juries played an active, experienced participatorial role (425, 430) in courts until the introduction of counsel and the adversarial system after 1780. Moreover, until the middle of the nineteenth century there was no regular police force and only limited public prosecution. (2)

The earliest significant finding on behalf of a jury of one's neighbors occurred in English law in Bushel's case (1670), a case in which William Penn was accused of unlawful assembly for preaching to Quakers in an outdoor meeting (Anand 2005, 429). Constable cites Bushel's case in the following terms: that "jurors 'might bring in a verdict, although no proofs were offered on either side' for 'the law supposed[d] them to have sufficient knowledge to try the matters in issue and so they must, though no evidence were given on either side in court.' Furthermore,'acting upon their own knowledge, [jurors] were at liberty to give a verdict in direct opposition to the evidence if they saw fit" (Forsyth qtd. in Constable 1974, 132). According to Anand, Bushel's case established that since jurors were not required to accept the judge's version of the facts, but might honestly disagree based on what they had themselves understood the evidence to say, they could not be punished "by the bench for returning a verdict against the trialjudge's perception of the weight of the evidence" (2005, 429). Bushel's case (1690) had thus set the scene for insulation of the jury from harm for insubordination in ignoring a judge's charge, whether the jury's action was the result of inexperience or actual disagreement with the judge's charge (430).

The jury as it had developed was a self-informing institution that investigated alleged crimes and reported on that investigation in the court. Jurors were thereby preferred for their knowledge about a crime or their ability to ferret out the truth within the community. Judges, by contrast, particularly those who rode the circuit, were not privy to the same information as local residents and so had difficulty questioning jury verdicts. In the process of selecting jurors, not only was the inclusion of local officials understood and accepted, but challenges infrequently excluded jurors who had prior knowledge of a case (Anand 2005, 430). Even in the late eighteenth century "jurors could not be asked any question that might cause them any shame, including whether or not they had been so rash as to declare an opinion as to the correct outcome of the case prior to trial" (421).Thus, as late as two decades into the nineteenth century, jurors could express such opinions as they wished unless they indicated ill will against the accused, a presumption that had to be proved by the accused. Changes nevertheless ate away at the privileges taken by neighborhood jurors, beginning as early as the fourteenth century when the practice of allowing friends and relatives of the victims to sit on the jury ceased. By the middle of the eighteenth century, jurors were precluded from using information provided to them out of court. Although the jury still participated actively--as jurors they "joined in the unstructured conversation [of the court proceedings] by sometimes directly questioning witnesses, making observations in open court as witnesses testified and asking for further witnesses to be summoned" (427)--the testimony of witnesses and the admission of evidence through rules of evidence began to replace the information provided by jurors.

The English court system practice of choosing jurors from the neighborhood where the crime occurred was continued in America, as indicated in a Virginia law of 1662: "at least part of the jury should be drawn from 'thence who by reason of their neere acquaintance with the business may give information of diverse circumstances to the rest of the jury'" (Friedman 1992, 27). Where jurors had local knowledge of a case "justices tended not to question the verdicts of juries, nor did they often require jurors to give reasons for their decisions" (Anand 2005, 417). Pennsylvania's founders, the Quakers, surely maintained a preference for a neighbor's judgment in their prohibiting lawyers from being in full communion with the meeting and their regulation that all matters of meum et teum be settled at meeting "by reference to members of the religious body" (qtd. in Meehan 1967, 20). Their sentiments were described by Justice Brackenridge as like those spoken in the scriptures about Jewish lawyers:'"Brother goeth to law with brother, and that before unbelievers.' ... 'Woe unto you also, ye lawyers; for ye load men with burthens grievous to be borne; and ye yourselves touch not the burthen with one of your fingers'" (xix). (3) The Quakers had hoped to discourage people from "go[ing] to law" and to handle conflict "without recourse to formal legal--and adversarial--proceedings" (qtd. in Rowe 1994, 12). The French traveler Francois de La Rouchefoucauld-Liancourt in 1800 confirmed the sentiment in his observation of American courts, once again suggesting a preference for the amicability of neighbors over the vengefulness of courts:

  Many lawsuits ... [have] no other object than to satisfy the hatred
  and passions of the moment by dragging an adversary before the judge.
  ... How many differences might be settled on amicable terms but for
  this revengeful disposition to proceed to extremities ... or rather
  how many law suits might be accommodated, but for the great number of
  lawyers and courts of justice! (de La Rochefoucauld-Liancourt
  1800,1.24-26)

Part of the decision-making that went into attacks on private reputation clearly relied upon the importance of one's standing in the community before one's neighbors and before the public. Similarly, the most fulsome defense of a jury of one's neighbors lay in a jury's right to nullify based on community values, customs, traditions, or usage. One explanation for a jury's refusal to convict suggests that "they were members of the community, and had their own set of norms" (Friedman 1992, 185). Indeed, the early jury operated under the influence and seduction of bystanders who attended trials in alehouses or other sites when courthouses were not available, leading to a prohibition on food and drink until after a verdict was delivered to obviate improper inducements (Anand 2005, 423), with the added benefit of ensuring a speedy deliberation. Irrespective of their verdicts, juries were considered "inscrutable," that is, judges could not question them on the reasons for their verdicts. As a result, juries could nullify the law merely by rendering a general verdict in which their support of community standards, their corruption, or their rejection of the law was concealed (432).

In one final turn of the screw, being judged by one's neighbors according to community standards was tied in America to the nostalgia in the post-revolutionary period for lay justices of the peace, that is, for officials who were not formally trained (Hall 1989, 21). Such nostalgia was based on the function of justices of the peace as an alternative to judgments controlled or rendered by professional men of the law, as indicated by a newspaper comment attributed to "a Susquehanna farmer" in 1793:

  It must be acknowledged that the farmer, the mechanic and dealer add
  something to the public stock; and that the lawyers do not; therefore
  the lawyers ought only to be encouraged in society as far, and no
  farther. Much as I respect this order of men, I would not be sorry to
  see such of them as are unnecessary, more honorably employed at the
  plough ... for they themselves will acknowledge that in the arts of
  delay, the chicane, bargains, etc. in use with these gentlemen and
  upon which much of their profits depend . . . they have not a common
  interest with the community. ... (qtd. in Meehan 1967, 18) (4)

In sum, a jury of one's neighbors was expressed in a variety of permutations, from using witnesses as jurors to nullification verdicts and even to direct influence on or corruption of juries. Jurors continued to be suspected by plaintiffs and jurists alike of being independent of judges and approachable as neighbors as late as the Lowell case (Lowell v. Faxon and Hawks, 1824), (5) in which the plaintiff complained that jurors were approached by community leaders to decide in favor of the defendant because he was the town's only physician (Lowell v. Faxon and Hawks) (6)

The Zenger Case

In a critical colonial test of jury independence, Andrew Hamilton for the defense seeded a community values view of the jury in the New York Supreme Court in the 1735 Zenger case, establishing that the jury was, first, to try the case as neighbors: "The law supposes you to be summoned out of the neighborhood where the fact is alleged to be committed; and the reason of your being taken out of the neighborhood is because you are supposed to have the best knowledge of the fact that is to be tried" (Alexander 1963, 75). He went on to cite Bushels case, asserting that a judge's advice to the jury

  ought always to be upon supposition, and not positive, and upon
  coercion. The reason given in the same book [Vaughan's Reports] is
  because the judge (as judge) cannot know what the evidence is which
  the jury have, that is, he can only know the evidence given in court;
  but the evidence which the jury have may be of their own knowledge,
  as they are returned of the neighborhood. They may also know from
  their own knowledge that what is sworn in court is not true; and they
  may know the witnesses to be stigmatized, to which the Court may be
  strangers. ... (Alexander 1963, 92)

Hamilton reminded the members of the jury that they, like the defendant, had an interest in the trial, not a self-interest but one that, as Chief Justice De Lancey's charge to the jury reluctantly admitted, spoke to the understood need that "governments must have the good opinion of the people or it [sic] cannot subsist." The Chief Justice lamented that Hamilton, upon this premise, had gone to "great pains ... to show how little regard juries are to pay to the opinions of the judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion . . . (101). For his part, Hamilton was consistent in appealing directly to the jury when confounded by a ruling by the Chief Justice disallowing defense evidence. He reminded them that "you are really what the law supposes you to be, honest and lawful men" and that, ultimately, he hoped the jury would give weight to such suppression of evidence so that suppression itself would be "taken for the strongest evidence . . . [for in] your justice lies our safety" (75). Should a jury abdicate its role as a guarantor of the safety of the people, the Attorney General may secure "whom he is pleased to prosecute as a libeler" (96). Thus, Hamilton excused himself to the judge: "I hope I may be pardoned, sir, for my zeal upon this occasion; it is an old and wise caution that when our neighbor's house is on fire, we ought to take care of our own" (98). To do otherwise, "there is scarce any person," he addressed the jury, "safe from being called into account as a libeler" (95). Indeed, Hamilton was not above raising the specter of Brutus's ghost to invoke the self-interest of the jurors; by excusing the influence of authority they were, he warned, "assisting Caesar to forge those very chains which one day he will make you yourselves wear" (96-97).

Hamilton's challenge to the jury represented a direct appeal to nullify the judge's verdict, which was in fact the route it famously chose to take. Even if the right of a jury to deliver a nullification verdict was unclear, here was a power that American lawyers were wont to test until the end of the eighteenth century, with a nod to Hamilton's success in the Zenger trial. (7) His performance in this regard sponsored a reaction in the press from the pseudonymous Anglo-Americanus (identified as Jonathan Blenman, the King's attorney of Barbados) (8) on the grounds that it "presumes to obtrude bad law and false reasoning upon the sense of mankind" and as an assault upon the "dignity of the profession of the law in these remote parts of the British dominions . . ." (Alexander 1963, 153, 154). The author's depiction of this "enterprising lawyer" provides an apt description of the kind of influence Hamilton exerted on the Zenger jury:

  Neither will it be amiss to take some notice in this place of the
  quackery of the profession in general, without any particular
  application, as it has been practiced with vast success in some
  of our colonies. You will often see (if common fame may be trusted) a
  self-sufficient enterprising lawyer, compounded of something between
  a politician and a broker, who, making the foibles of the inhabitants
  his capital study and withal taking advantage of the weakness of his
  judges, the ignorance of some of his brethren, the modesty of others,
  and the honest scruples of a third sort (without having any of his
  own), becomes insensibly an oracle in the courts, and acquires by
  degrees a kind of dominion over the minds as well as the estates of
  the people. An influence never to be obtained but by the help of
  qualities very different from learning and integrity. Wherever such
  a man is found, the wonder is not great if from a long habit of
  advancing what he pleases and having it received for law, he comes in
  time to fancy what he pleases to advance is really law. (Alexander
  1963, 154-55)

Anglo-Americanus' account did not directly accuse the press of complicity, but he might as well have. A medium of influence on the public from which juries would be pulled, the press invoked the public audience to perform as an unofficial jury in a trial by press. (9) Press involvement, in one form or another, became an almost unavoidable element of jury trials under the theory of a jury of one's neighbors. Framing press interference in the trial as "publicly appealing to [one's] neighbors," Anglo-Americanus objected to newspapers as the proper venue to make complaints against the state, even if the objective of the complaints was to put neighbors upon their guard:

  I always thought these things were better understood than expressed
  in a court of law; and I shall probably remain in that opinion till
  the learned gentleman can produce something from the common or
  statute law, to show that a British subject has a right of appealing
  publicly to his neighbors (that is to the collective body of the
  people) when he is injured in his person, rights or possessions. I
  know the law books assert the right of complaining to the magistrates
  and courts of justice, to the Parliament, to the King himself; but a
  right of complaining to the neighbors is what has not occurred to me.
  (Alexander 1963, 175-76)

The author expressed skepticism not only about the validity of trials by press but about their efficacy, particularly as a court of last resort. He questioned what one's neighbors can do to achieve successful resolutions and how the press contributed to such a process:

  I confess it surpasses my comprehension to conceive what the
  neighbors inspired with weekly revelations from the city journalist
  can do with their governor and Assembly, unless it be to reform them
  by those persuasive arguments which the major vis never wants good
  store of. If this be the patriot's meaning, his words may possibly
  be understood; but without this meaning they are mere jargon. ... [H]e
  ought at the same time admit that the order of things and the peace
  of society require that extraordinary means should not be used for
  this purpose till the ordinary have failed in the experiment.
  (Alexander 1963, 178-79)

The Oswald Case

Trial by press was to prove an influential player in another jury case involving a journalist, the Pennsylvania Supreme Court trial of Eleazer Oswald in 1783. In this case, an accusation surfaced in the press that jurors were guilty of conducting impromptu interviews of witnesses without the opportunity for the court to cross-examine (Shapiro, 1991, 89; Rowe 1994, 171):

  while the grand jury were deliberating, whether they should hear the
  evidence in support of the charge, and before they had determined to
  refuse it, their foreman, Zebulon Potts, esquire, had been in a
  private room in conversation with Mr. Eleazer Oswald, the printer and
  publisher of the libel, Mr. Thomas Proctor, the supposed author, and
  Jacob Bankson, esquire, their supposed council, etc. (Pennsylvania
  Packet 1783, 21 January)

Considering it conceivable that extra-judicial information would be sought out and that it might influence a jury's verdict, the author, Jurisperitus, argued that grand juries would then have available to them a wholly unfavorable precedent. No grand jury, the author contended,

  before the present had ever treated the court with so much contempt,
  as to send for and examine witnesses without their knowledge.-That
  the court alone were by law to judge of the competency or incompetency
  of a witness; the jury of his credit.--That if witnesses were heard in
  private and ex parte, for the person accused, the attorney general or
  prosecutor could have no opportunity of producing witnesses to do
  credit to them, or to disapprove what they alledged. ... That if such
  a precedent should be established by the court submitting to it; both
  the court and petty jury would be useless, and the constitution
  violated. That, above all, if the grand jury could, by law, refuse to
  hear and examine witnesses sent to them by the court under oath, to
  prove this offence; by the same parity of reason, they might refuse
  to hear any witnesses to prove a robbery, murder, or treason: and
  then, for want of proof, return the indictment, 'not a true bill.'
  (Pennsylvania Packet 1783, 21 January)

The publisher in the case, Mr. Proctor, responded in his own defense. Excusing himself from any impropriety, he challenged the anonymous press account, unaware that in addressing its author he was actually speaking to Chief Justice McKean, who presided over the case:

  I beg leave to call on the disguised author, or authors of these
  scandalous insinuations, who have taken advantage of the liberty of
  the press--now sacred and secure; who have skulked under anonymous
  signatures, (the common refuge of assassins and robbers of virtue and
  reputation) to step forth--lay aside their mask--produce the face
  which hath so long lurked behind it--avow themselves like men of
  honour and veracity, and maintain their charge--The public will
  then be able to judge of their motives and inducements for writing
  such opprobrious invectives.--Their names once disclosed will at once
  discover their freedom and independency, their servility or revenge.
  (Pennsylvania Packet 1783, 1 February) (10)

Proctor's account placed the contact with witnesses after the bill of ignoramus excusing Oswald from prosecution had already been returned and treated the encounter as entirely fortuitous and completely innocent:

  When we reached McCarty's, we found colonel Oswald in the front room
  below stairs, the door being open. Mr. Bankson [counsel for Oswald]
  met us accidently at the door, and we all entered together. We had
  scarcely turned round in the room, before I saw Mr. Potts [foreman of
  the jury] at the door, on which he was called upon by Mr. Bankson.
  ... The attorney general immediately stepped into the room, and some
  discourse arose between colonel Oswald and him, not material to
  mention. Mr. Potts left us; but no discourse happened with him from
  any of us, respecting the prosecution in any shape, nor was there the
  least appearance of any privacy or clandestine intercourse--for the
  door remained wide open the whole time.--and any one might enter
  who pleased. (Pennsylvania Packet 1783, 1 February)

Before the press war was over, two more parties entered the fray: a second sitting justice in the case, Justice Bryan, who joined in the exchange under the pseudonym "Adrian"; (11) and Francis Hopkinson, McKean's alienated brother-in-law and at that time a Pennsylvania admiralty judge, who countered the two sitting justices under the pen name "One of the People." The facts of the case were that the printer Oswald had been dismissed by the Grand Jury for libel against Chief Justice McKean himself. Together with Justice Bryan, McKean, who did not recuse himself, reprimanded the jury and asked it to reconsider; the jury refused (Rowe 1994, 170-71; Hastings 1926, 335-38).

McKean had persistently persecuted journalists from the time he ascended to the high court in 1777 and even brought Oswald up on charges again five years after this case. Moreover, the Chief Justice had written about Oswald anonymously in the press. For his part, Oswald was merciless in his criticism of McKean and even campaigned, unsuccessfully, to have him impeached in 1788 (Meehan 1967, 15-17). In such a scenario, Hopkinson argued, had the Grand Jury supported the bill of indictment, "one citizen having offended another [Oswald], would have been put into the power of the offended party [McKean] to punish him, not according to the law, but according to that measure and degree of resentment, which a wounded pride might dictate" (Pennsylvania Packet 1783, 25 January).

Hopkinson described the Chief Justice as provoked by the jury's irregular grounds for proceeding in the case and for receiving witnesses not admitted by the court:

  This dilated into plain English will stand thus: gentlemen, you are
  enjoined by your oath and office, diligently to enquire and
  presentment make of the truth, the whole truth, and nothing but the
  truth, but remember that you are to shut ears against all testimony
  but such as I shall send you, otherwise you may perhaps find this
  fellow innocent of the charge brought against him; whereas it is my
  inclination that he should be punished. (Pennsylvania Packet 1783,
  25 January)

Should judges deny juries the freedom to interview witnesses "except in open court, where nothing shall be offered that may help clear the prisoner, but every thing aggravated that gives colour to the accusation," Hopkinson warned, "how can innocence secure any from being arraigned?" Arguing that McKean had effectively directed jurors to shut their ears to all but that which he provided them, Hopkinson concluded that "if that justice's will had passed for law, all the gentlemen of the grand jury must have been the basest vassals to the judges and have been penally obliged, jurare in verba magistri, to have sworn in the direction or dictates of the judge ..." (Pennsylvania Packet 1783, 25 Jannary). Hopkinson was most piqued by Bryan's attack on the independence of the "grand inquest":"our new pope declares, that they are no more than a legal machine, to be governed and comptrolled in all its movements by the court:--which opinion is most likely to serve the interests of the public--let the public determine" (Pennsylvania Packet 1783). That a grand jury should indict on such "superficial inquiry" struck our author as counter-intuitive, leaving the trial jury, that is, the petit jury, the task of working within the narrow-scope of its indictment where the grand jury had a much greater capacity for inquiry (qtd. Hastings l926, 376). (12) Faced with judges who so restrained juries, the only alternative of a free people would have been jury nullification.

"Adrian's Assertion"

Hopkinson's final joust with his fellow jurists occured in a poem he published in 1792, "A DESCANT ON ADRIAN's Assertion, that a grand jury is nothing more than a legal machine subject to the direction and control of the court" (1792, 1.228-38). There, Bryan was represented as treating the jury as a mote in the eye of the court system. The poem, as its opening indicated, charged Bryan with having reduced the jury to a mere legal machine, no more than an instrument in the hands of the judge:

  A learned author, ADRIAN hight,

  Did late in Bailey's journal write

  And plainly prov'd, by dint of law,

  That jurymen are men of straw;

  And for no other use design'd

  But to confirm the judge's mind;

  That they've no conscience of their own,

  But from the bench must take their tone;

  And have no eye to see what's right,

  Unless the court affords them light. ... (Hopkinson 1792, 1.229)

Providing an institutional critique of the law that addressed the presumed autonomy of juries and the tyrannical jurisprudence of judges, Hopkinson subverted elitist views of grand juries, which were convened to determine whether a prosecutor's charges should proceed to a petite, or trial, jury. The elitist view preferred the direction of the judge to the independence of the jury, exemplified in Hopkinson's earlier prose attacks against McKean and Bryan.

Hopkinson's poem explored six metaphors for a jury, asking whether a jury '"Tis like a broom, a door, a lock,/A wagon, lute, a barber's-block," possibilities explored by six speakers, each of whom defended one of the similes. Their host, Didius, wagered a glass of wine that they could make "a likeness fit," which each of them attempted to do. Didius contended that "Things so dissimilar, I fear,/Cannot by any skill be shewn/Like to a single thing unknown" (1792, 1.229), but he was willing, nevertheless, to open the contest by offering his view that the function of jury members was to confirm what the judge had decided and that they should not act on their own:

  And tho' their doings may seem tragic,

  They're phantoms rais'd by legal magic;

  Whom conj'ring judges take to court,

  To shew their skill in making sport;

  To toss about like any jack-stone,

  And for authority quote Blackstone:

  Referring us to page three hundred;

  As if judge Blackstone never blunder'd. (Hopkinson 1792, 1.229-30)

Titus was the first to take up the issue, presuming to apply the image of the broom to the operations of a jury. He contended that juries sweep rooms clean of dirt, however dirty the floor. Should the jury fail in this endeavor and prove unwilling to move the dirt or prepare to hide it, "No mortal can the fraud discover" (Hopkinson 1792, 1.230). Like a broom, however, the jury was wielded by the one who sweeps:

  So a grand jury's but a beson (13)

  Which judges use as it may please 'em

  To sweep poor rogues and felons great

  From all the precincts of the state;

  Or else to cover o'er a flaw

  From the sharp notice of the law. (Hopkinson 1792, 1.230-31)

Mischievous as a witch, she who wielded the broom "Will feud away, like any feather:/And so by means of blasts and breezes/Will any mischief do she pleases" (1.231). His meaning, to be clear, was that the judge would ride the jury which

  have no pow'r to speak or budge

  Until inspir'd by tail of judge. ...

  But should his honour raise bum-fiddle, (14)

  The charm would break off in the middle,

  And jurymen be left of course

  In former plight, if not much worse. (Hopkinson 1792, 1.232)

By this meaning, Titus held, judges were the causes by means of which juries functioned, so that, Adrian must have meant they were "mere machines." Sempronius entered the fray to contend that juries were more like doors which were not ridden but which swung from fact to law on a fair and even keel. Their role, he entertained, was active and independent. And yet the judge, he admitted, should hold the key to that door, and by means of the law turn that key to his pleasure:

  A door is made to turn about,

  To let folks in, or shut them out;

  And with a lock and key made certain,

  To keep the door and post from parting.

  So to the duties of his station,

  A jury's bound by admin'stration

  Or oath, or solemn affirmation;

  Which like a lock should keep them tight

  To posts of justice fix'd upright. ...

  For by the law, expounding conscience,

  He'll make an oath, or sense, or nonsense;

  Extent of affirmation measure,

  Most learnedly by will and pleasure:

  And prove that words in sense may vary,

  And two opposed meanings carry;

  The one for those of common sort,

  The other for the learned court:

  And so warp juries to that side

  Which most shall please his wrath or pride,

  Surrounding them with legal fences,

  Until they've almost lost their senses:

  Then blind their eyes, that he may shew

  The way in which they ought to go. (Hopkinson 1792, 1.233-34)

Eudocius was even less sanguine about the jury, reverting to the compromised state of its role, in this case embracing the image of a clock which had no power to "point the time, or strike the hour,/The master's over-ruling hand/Hath all its movements at command" (Hopkinson 1792, 1.235). Reminding his colleagues of the judge's ability to return a jury to deliberation should he oppose their verdict, Eudocius placed the clock at its master's pleasure:

  The clock presumes to point at four,

  The master says, 'tis false I'm sure;

  And by his arbitrary power,

  Soon makes it tell another hour. ...

  A jury's power exists or ceases,

  According to the court's caprices,

  Not dare, or to release, or damn us,

  By a true bill, or ignoramus;

  Unless the judge first gives the cue,

  T'inform them what they ought to do. (Hopkinson 1792, 1.235)

By contrast, Dion stood firm for the power of a run-away jury pulled forward by a lead horse. He kept in mind both the power of jury nullification and the struggle between jury and judge over the affairs of the court:

  Doth not a jury's foreman seem

  Just like the fore-horse of a team? ....

  The judge the driver may resemble,

  With whip in hand, to make them tremble,

  To lash them well with points of law,

  Should they presume to GEE or HAW;

  Or stand stock still, or change their station,

  Against his honour's inclination. (Hopkinson 1792, 1.236)

In an apparent counter to Dion's perspective, Didius re-entered the fray, only to suggest that, indeed, whereas living creatures might not fit Adrian's model of "mere machines" this view might in fact have much descriptive power. Philosophers still disputed "About the mortal souls of brutes" and had yet to determine "What animates the meanest vermin" (Hopkinson 1792, 1.238.) Juries, made up of common men, might well have had something in common with beasts of burden:

  Some will insist, that each dumb creature

  Is ruled by th' instinct of his nature; ...

  Aver a dog can form a project,

  And argue shrewdly in dog logic,

  And shew more wisdom in his plan,

  Than an untutor'd stupid man;

  Will say, the lowest of our race

  Should to the best of their's give place:

  Reason with instinct blending so,

  That none their real bounds can know. (Hopkinson 1792, 1.237-38)

In the end, the contest to all accounts complete, Didius judged that none had won, although his own thought, in line with that of the pseudonymous Adrian, appeared to be that the jury could not be an animate creature, for it could not think. In sum, he held, a jury was a mere machine for it acted only when force was exerted from without, which he took for Adrian's meaning:

  Doubtless there many cases are,

  Where men with brutes may well compare.

  But mere machines cannot at all

  Be liken'd to an animal;

  Nor can a man, unless in drink,

  Say clocks or juries ever think.

  Their movement may deceive our eyes,

  And look, indeed, like something wise,

  But'tis--and such is Adrian's notion,

  A foreign force that gives them motion,

  Deriving all their power to budge

  From gravity of the earth or judge. (Hopkinson 1792, 1,238)

As Didius made clear, each of the alternative roles for the jury likened it not to an organic being but to a material object, without life or thought of its own and dependant upon a force outside itself to set it in motion. The law was presumed to govern the public and yet the public was to have no meaningful role in the decisions of the court through an independent jury of one's neighbors or one's peers. The common man, and presumably common sense, was abjected from the court which became the domain of the trained men of the law, the very relationship between the law and its subjects that eighteenth-century American culture rejected. In particular, the young democracy was conflicted over the consolidation of power in a few hands, with a number arguing that the people should be protected from themselves and that those few with the greatest financial stake in the country should rule it. These were the parties who placed a strong emphasis on the power of judges (Ellis 1971, 251-52).

Brackenridge and Juries

One of the great debates of the late eighteenth century was between the courts and the people over legal forms, institutions, and representation, a debate in which Adrian's position and Hopkinson's critique represented central cultural exhibits. Hopkinson's position on juries was supported in many ways by Pennsylvania Supreme Court Justice Hugh Henry Brackenridge, author of a novel parodying legal training, Modern Chivalry (published from 1792 to 1815 [1937]) and a student guide to the laws of Pennsylvania and England, Law's Miscellanies (1814). (15) In principle, Brackenridge had a high opinion of juries and privileged the rightness of jury verdicts. In Law Miscellanies, for example, he objected to judges' controlling jury verdicts. "I never therefore find the [jury] verdict in agreement with my way of thinking, as to the justice of the case before me, but I draw from it strong confirmation of my opinion; nor, ever find it against it, but I go a great way in taking it for granted that I was wrong" (1814, 558). Although he valued the expert knowledge of the law brought to a case by judges, he was not swayed by arguments of their infallibility: "When at the bar, I have been as much shocked at the decision of a court, on a point of law, as I have ever been at the verdict of a jury on a matter of fact. In contemplation of law, the court are always right, but in contemplation of reason and common sense, they may have erred" (570).

In practice, however, the likelihood of an orderly jury trial was the sticking point for arriving at a workable system of law, although for all the difficulties they posed, juries were better than arbitration panels:

  the difficulty of getting men together, that act not immediately
  under a compulsory process [as juries do], and thus keeping them
  from being tampered with; independent of arbitrary notions of right
  and wrong, and unassisted reasonings, will be found to be such that
  men [will] acknowledge that there is a difference between what is
  rational in theory, and practical amongst men. (Brackenridge 1937,
  543)

Brackenridge's position was that the law should be founded in the people's reason and good sense, so that there was no magic or mystery in it. Indeed, unlike England, in America the lack of trained lawyers meant that every man in effect "must be his own attorney" (1814, 563). Such predispositions notwithstanding, he was still wary of the legal elite's ability to manipulate common men like those he describes in the Fooley settlement in his novel:

  they have seats of justice, and palaver houses, where the lawyers
  plead. Jury trials are in use; and in this mode of administering
  justice it is not the accused that is tortured, but the judges; that
  is the jury ... by drinking nothing at all, or eating either, until
  twelve of them are all of one opinion; which, to render more
  difficult, the palaverers, the lawyers, are allowed to address them a
  whole day, or longer, previously on different sides of the question
  or fact, so as to "perplex and dash their counciles."There are what
  are called judges also, who preside, and these are allowed also to
  give different opinions on the case. The jurors being puzzled are
  ordered off under the care of a constable, with a staff like a
  weaver's beam, and he is to keep them together without meat or drink,
  unless with leave of the court, and without speaking to any one until
  they are agreed. (Brackenridge 1937, 519)

It is the fault of lawyers more than of the common men who make up juries that most concerns Brackenridge. Their high rhetoric, legalisms, and arrogance interfere with the very plainness he prizes in a jury's common sense:

  It is a flattering thing to a court, to take it for granted, that
  they [the court] understand first principles; and even a jury are
  not displeased when you seem to suppose in the summing up the
  evidence, and the remarks upon it, that they [the jury] themselves
  can see a thing that is as plain as a pike-staff. ... Or to attempt
  to make them believe what cannot be believed, makes a man sick,
  provided he is not disposed to laugh. This depends a good deal on
  the natural playfulness of his mind or the mood in which he is, from
  the want of food, or sleep. I excuse the people shewing a
  dissatisfaction to the trial by jury, under the pleadings of
  advocates, when ... the stream of the orator turns upon itself;
  visits the ground that it had left, and is unwilling to quit the
  enchanted borders of the argument. (Brackenridge 1937, 394)

Like Hopkinson, Brackenridge valued natural justice as something that the common man would recognize. He understood the importance of making the law meaningful to the common man, offering both his novel and his legal handbook as primers for the common man as legal subjects and as citizen lawyers. Superficial adherence to the law on the part of the citizenry would prove deadly to the law, for the law depended upon the common man and his support. At the same time, the people had to be responsible in their use of the law and in their participation in court. Wary of the influence of mob action and run-away juries, Brackenridge insisted on popular support for the law which he considered essential to a viable democracy. Such support required not only the good will and the common sense of the community but reform of the legal profession so that it could provide trained guidance to navigate legal institutions.

Modern Chivalry tested Brackenridge's view of the common man's experience in the courtroom. In one case in his novel, for example, the court was faced with ascertaining the sanity of a man presumed mad because he was addicted to books. The accused represented himself to the jury in the following terms:

  It is an aukward situation in which you see me placed, to be obliged
  to maintain that I am in my right mind, and not out of my senses. For
  even if I speak sense, you may attribute it to a lucid interval ...
  The more pains you take to defend yourself, the more it is fixed upon
  You ... But how can one rebut the imputation of madness? How disprove
  insanity? The highest excellence of understanding, and madness, like
  the two ends of a right line, turned to a circle, are said to come
  together ... (Barckenridge 1937, 430-31)

Exposing the twists of logic common to the law, its winks and nods on a question that lacked clarity and required discretion, the accused spoke with no certainty that he would be heard in terms that would matter under the law. Resting his hopes on a common understanding of the jury's role, he placed himself in the hands of his peers only to find himself deceived by a hostile foreman and a run-away jury:

[Foreman] "A man of books ... ! A scholar! Ah! You are a scholar, are you. Ah, ha; that is enough; we want no more. If you are not a madman, you must be a knave, and that comes to the same thing, Say, gentlemen, shall we find him guilty! What say you, is he mad?"

  1. Juryman; "He seems to be a little cracked."

  2. "He does not appear to be right in his head."

  3. "I cannot think him in his right mind."

  4. "His is beside himself, doubtless."

  5. "Crazy."

  6. "Out of his reason."

  7. "Deranged."

  8. "Insane."

  9. "Mad."

  10. "Stark mad."

  11. "As mad as a March hare."

  12. "Fit for Belam."

  "Verdict--Lunacy." (Brackenridge 1937, 431)

The judge, however learned in the niceties of the law, was yet a man of sufficient reason; he remained open to common sense, an exemplar of Brackenridge's view of a law that was responsive to human explanations and natural feelings:

  "You are a man of books--"

  "A little so."

  "What books have you read?"

  "History, Divinity, Belles-letters."

  "What is the characteristic of history?"

  "Fiction."

  "Of novels?"

  "Truth."

  "Of metaphysics?"

  "Imagination."

  "Of natural philosophy?"

  "Doubt."

  "What is the best lesson in moral philosophy?"

  "To expect no gratitude."

  "What is the best qualification of a politician."

  "Honesty."

  "The next best?"

  "Fortitude."

  "Who serves the people best?"

  "Not always him that pleases them most."

  "It seems to the Court," said the Chief Justice, "that the man
  is not altogether mad. He appears rational in some of his answers.
  We shall advise upon it." (Brackenridge 1937, 431-32)

For Brackenridge, as for Hopkinson, there would be no easy answer. Juries would provide defendants with access to men like them to judge them and with common sense values to judge them by. But reason, legal experience, and training in the law would also be necessary to balance prejudice, corruption, and ignorance, whether they came from the jury, lawyers, or the judge. The problem might not have been resolved by the end of the eighteenth century, but its dimensions were certainly understood and the debate had clearly been engaged.

Conclusion

As we see in this paper, American legal notions about the nature, function, and effects of juries of common men shifted over time from a jury of one's neighbors to a jury of those who needed the guidance of a trained elite. But within that general movement, a debate continued to rage over the relative balance of jury independence and the need for stability in a rule of law and not men.The Zenger and Oswald cases, Hopkinson's and Brackenridge's commentary, and the use of the press to expose on-going debates about trials and to conduct trials by press put a new focus on how the eighteenth century regarded juries in colonial and post-revolutionary America. That focus enables us, over two centuries later, to gain a renewed appreciation for the differences that led to modern uses of juries and perhaps a new regard for the value of common man juries in light of a legal machinery that sometimes shortchanges individual rights and common sense in preference for the sophistry of security and the rights of the state.

Notes

(1) Constable (1994), Cockburn and Green (1988), Green (1985), and Langbein (2003).

(2) For a primary source, see Fielding (1988).

(3) From 1 Corinthians vi, 6 and Luke xi, 46.

(4) From National Gazette, 13 February 1793.

(5) See Lowell (1825).

(6) See Lowell (1825, 6).

(7) On the other end of the century, the Cullender case (1800) reprises the Zenger strategy, privileging the jury as the last line of defense for liberty in the land. Here, defense counsel Nicholas goes directly to nullification to frustrate Supreme Court Chief Justice Samuel Chase's charge to the jury and put forward the jury's right to act as it thinks proper irrespective of the court's direction:"if an act of congress contravene the constitution of the United States, a jury have a right to say that it is null, and that they will not give the efficacy of a law to an act which is void in itself; believing it to be contrary to the constitution, they will not convict any man of a violation of it; if this jury believed that the sedition act is not a law of the land, they cannot find the defendant guilty" (U.S. v. Callender 70).

(8) Anglo-Americanus suggests that Hamilton's performance does not represent progress in the law, but that it is politics of a type that "becomes a party rather than an advocate"; it is conceit and buffoonery, in his words, a joke made of Holy Scriptures in a Christian court:

  though a lawyer is free, nay obliged by the duty of his profession,
  to make the most of the cause he espouses (his real sentiments being
  suspended for that time by reason of the bias under which he acts),
  yet when he draws his private opinion into the debate, and interests
  his passions in the success of it, he then departs from his character
  and becomes a party rather than an advocate. In short, there is an
  air of self-sufficiency and confidence mixed with the whole lump,
  enough to give a disrelish even to good sense and good law, but is
  nauseous beyond all bearing when neither of these is found.
  (Alexander 1963, 179-180)

(9) Issues of freedom of the press and libel became entangled with the right of citizens to become involved in trials, both in the courts and by means of trials by press. Not only were appeals made to have one's case heard and resolved by one's neighbors where appointed magistrates controlled the process on behalf of the government for any slight against the authority of the state, but the press was seen as a necessary complement to court proceedings, a place where the accused could receive justice at the hands of his neighbors.

(10) Thomas Procter, in a letter dated 24 January 1783.

(11) Shapiro (1991, 89), Rowe (1994, 171), and Hastings (1926, 375-78).

(12) From Freeman's Journal 15 January 1783.

(13) A "besom" was a bundle of rods used for punishment; the term was also used as a contemptuous word for a low woman.

(14) "Bum-fiddle" could refer to something that makes a big, ill-sounding noise. "Bum-court" is a vulgar nick-name for the ecclesiastical court.

(15) Brackenridge's legal handbook reflected the importance of forms and processes in such lawyers' guides as John Reed's commentaries on Blackstone (1831) and John Binns' daily companion for magistrates (1851).

Works Cited

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Linda S. Myrsiades is professor of English at West Chester University. Her books include a recent study of abortion culture, two studies of Greek folk theater and one on Greek resistance theater, as well as several co-edited collections of essays. Her latest book is the forthcoming Medical Culture in Revolutionary America.