Insurrections often are propagated upon misinformation.   So too are the most recent band of domestic terrorist who like to hide behind our most sacred American institutions.  In this series, I want to explore the Bill of Rights and why some of the hype and hyperbole thrown around by the extremist is not just wrong but dangerously misguided.

Over the next several weeks, I will discuss the history of our constitutionally protected rights and why Congress chose to codify these and not others.  I am not an attorney so I will not go into some of the legal aspects of these amendments, so please don’t ask me if your religious obsession for cordite is protected by Amendment 1 or Amendment 2.  I plan to focus on why these amendments exist. 

Today, I want to discuss Amendment 6 and 7:

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Perhaps THE most important right we inherited from English Common Law is the Right to Trial by a “Jury of our Peers.”  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.  This set the foundation upon which most of our legal traditions are based.  Unfortunately, the right to trial by jury began to erode in in England in the early 1500’s, about the same time we begin settling America.  King Henry VIII and his daughter Elizabeth declared themselves absolute monarchs. They used the “Star Chamber” to bring actions against those who challenged him.  These secret sessions had no indictments, juries or appeals.  As we saw last week, subsequent monarchs, the military and even the church would continue these abuses well into the 18th Century. 

In American, where most of the early colonist were seeking some separation from the mother country, British citizens who had lost rights at home attempted to reassert them in the New World. The right to trial by jury was guaranteed in the First Charter of Virginia (1606) and all subsequent colonial charters.  By the time of the American Revolution, Americans considered it their inalienable right to only be judged by other members of their communities.  This meant they did not defer to the “higher authorities” of the Crown and Parliament on all issues.  American juries nullified the laws they found were unfair to colonists, they refused to convict local business owners and sea captains for violating the British Navigation Acts, they commuted sentences by Royal governors and military officials, and they nullified taxes they considered unjustly imposed.     

To eliminate challenges to British authority, jury trials were eliminated.  Colonist who violated the Townsend Acts were forced to appear in admiralty courts with no juries.  The First Continental Congress in 1774 included preservation of the right to jury trial in its resolutions.  It was again cited in the 1775 Declaration of Causes and Necessity of Taking Up Arms.  Finally, 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.”  Thomas Jefferson later 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.”

Despite its importance in the legal underpinnings of every newly formed state and its critical nature in the justification for 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. 

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.”

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Published by Michael Carver

My goal is to bring history alive through interactive portrayal of ordinary American life in the late 18th Century (1750—1799) My persona are: Journeyman Brewer; Cordwainer (leather tradesman but not cobbler), Statesman and Orator; Chandler (candle and soap maker); Gentleman Scientist; and, Soldier in either the British Regular Army, the Centennial Army, or one of the various Militia. Let me help you experience history 1st hand!

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