CHARLESTON – September 17, 2017, was the 230th anniversary of the U. S. Constitution and an opportunity to celebrate our rights enshrined there.  

One of the most important is the right to trial by jury.  

Thomas Jefferson wrote, "I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."  

It is a right unknown to most, even though its history is central to the creation of the country.  As Justice Hugo Black wrote in 1961, "[the denial of trial by jury] led first to the colonization of this country, later to the war that won its independence, and finally, to the Bill of Rights."

In 1215, King John I signed the Magna Carta, the "great charter" which guaranteed the two pillars of Democratic society – representative government and trial by jury. Unfortunately, the right to trial by jury began to erode in 1500. King Henry VIII declared himself absolute ruler. He used the "Star Chamber" to bring actions against those who challenged him.  These secret sessions had no indictments, juries or appeals.  

The U. S. Supreme Court wrote in 1975 that "the Star Chamber has, for centuries, symbolized a disregard of basic individual rights." Those abuses continued under subsequent leaders until 1689 when the British Bill of Rights again guaranteed the rights promised in Magna Carta.

In the meantime, British citizens who had lost rights at home reasserted them when they colonized America. The right to trial by jury was guaranteed in the First Charter of Virginia (1606) and all subsequent colonial charters. In the 18th century, that right allowed American colonists to challenge the British king, Parliament and their laws.  American juries nullified the laws they found were unfair to colonists. An important example was juries who refused to convict local business owners and sea captains for violating the British Navigation Acts, which restricted imports and exports to only British ships.  

To eliminate challenges to British authority, jury trials were eliminated. For example, the 1765 Stamp Act forced colonists who violated the act to appear in admiralty courts with no juries. Colonists issued a formal response to Parliament. While remembered for "no taxation without representation," that response also stated that "trial by jury is the inherent and invaluable right of every British subject of these colonies."

As America moved toward revolution, trial by jury was central to the cause. The First Continental Congress in 1774 included preservation of the right in its resolutions. It is cited in the 1775 Declaration of Causes and Necessity of Taking Up Arms. In 1776, the crimes against King George III cited in the Declaration of Independence included "depriving us in many cases the benefits of trial by jury." As such, this right became one for which our founding fathers pledged "[their] lives, [their] fortunes, and [their] sacred honor.

Despite its important role in both colonization and the revolution, trial by jury in civil cases was left out of the draft U.S. Constitution. While it preserved jury trials in criminal cases, Alexander Hamilton believed that differences in state law made it too difficult to preserve civil jury trials at the federal level. Massachusetts delegate Elbridge Gerry argued that "a tribunal without juries would be a Star Chamber in civil cases." 

Attempts to amend the document to include civil jury trials failed.  

While the Federalists and Anti-Federalists debated many issues, they agreed on trial by jury. In Federalist Paper No. 83, Hamilton wrote that "the friends and adversaries of the plan of Convention, if they agree on nothing else, concur at least on the value they set upon trial by jury." Anti-Federalist Patrick Henry wrote, "Trial by jury is the best appendage of freedom."

The Massachusetts Compromise ended the debate. States would ratify the Constitution, but it needed to be amended to include a Bill of Rights – including the 7th Amendment right to trial by jury in civil cases. Historian Roger Roots said, "Juries were at the heart of the Bill of Rights."  

The 7th Amendment is of paramount importance to the rights and liberties we enjoy as Americans. Indeed, it can be argued that the Bill of Rights and the additional rights enshrined there exist due to the fact that trial by jury in civil cases was excluded from the original draft constitution.  

It's a tremendous role for both an amendment and its history that have been largely forgotten in 21st century America. In his 1833 Commentaries on the Constitution, U. S. Supreme Court Justice Joseph Story wrote, "The inestimable privilege of trial by jury in civil cases is conceded by all to be essential to political and civil liberty." 

It is a right that we cannot afford to overlook – or let the government and powerful corporations take away.  

White is the executive director of the West Virginia Association for Justice.  She has researched the history of trial by jury for more than 10 years and presented lectures on the subject to both state and national audiences.

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West Virginia Association for Justice
1614 Kanawha Boulevard East
Charleston, WV - 25311

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