Special juries in the Supreme Court.

Author:Shelfer, Lochlan F.


In Suits at common law ... the right of trial by jury shall be preserved.... (1)

The Seventh Amendment requires juries in federal common law suits that historically would have used juries. (2) Yet, one federal court has not sat with a jury for over two centuries: the Supreme Court of the United States.

This was not always the case. In its first decade of existence, the Supreme Court impanelled juries as a matter of course at the beginning of every Term. The Court heard at least three cases with juries in the 1790s, only one of which was reported: Georgia v. Brailsford. (3)

Brailsford pitted Georgia against a British creditor. Each claimed the right to collect a debt from a Georgia citizen. Because a state was a party, the case fell within the Supreme Court's original jurisdiction. Moreover, because Brailsford was a common law action, the Supreme Court impanelled a jury; in this case a "special jury."

Brailsford has continued to pique interest over the past two centuries. First, the case presents the intriguing prospect of the Supreme Court presiding over a jury trial. Second, the case contains provocative language regarding the power of juries to decide the law as well as the facts. Despite this interest, however, the case's details have not been much studied, and its contemporary significance remains obscure. Scholars have lamented that "the published court records provide no clues as to the jury's composition or how it was selected." (4) There are, however, several extant documents that have not previously been explored.

This Note analyzes these documents from the Supreme Court's only published jury trial. It examines forty individuals named in the case's hitherto unstudied venire facias, or list of potential jurors, and shows that ninety-five percent of the potential jurors were merchants. It then analyzes the extant notes from the oral argument of Brailsford's attorney, and shows that the defense made extensive reference to the law merchant, a body of internationally-derived mercantile customs and practices. This Note concludes from these and other pieces of evidence that the "special jury" the Court employed was a jury of merchants in the tradition of Lord Mansfield, Chief Justice of King's Bench from 1756 to 1788. Lord Mansfield commonly used special juries of merchants to determine mercantile custom and to help incorporate it into the common law.

Brailsford is the only published case in which the Supreme Court has presided over a jury trial. Today, it would seem incongruous for this multimember court, which is almost exclusively focused on appellate matters, to oversee a jury trial. The overwhelming majority of cases that the Supreme Court does hear in its original jurisdiction are equitable in nature and therefore do not require a jury. Instead, the Court delegates any fact-finding to a special master. Scholars have called the prospect of a jury trial before the Supreme Court "appalling" and "to be avoided at all costs." (5) Nevertheless, the Seventh Amendment mandates the Supreme Court to impanel a jury in cases that traditionally would have used one. This Note's conclusion that the Supreme Court used a special jury of merchants thus offers a possible way to reconcile constitutional mandate with seemingly impractical procedure. An expert jury on a particularly complex and sensitive issue would be both consistent with historical practice and feasible for the Court if it were to hear another case that mandated a jury trial.

Scholars also often discuss Chief Justice John Jay's statement in Brailsford regarding the power of juries to find the law as well as the facts. In the only published jury charge that the Supreme Court ever delivered, Chief Justice Jay uttered words that continue to spark controversy. Specifically, he told the jury that, although judges typically find the law and juries the fact, "you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy." (6) Some have called these words an "anomaly," (7) while others have considered them the foundation of the jury's right to nullify. (8) This Note's conclusion that the Court once used a special jury of merchants, however, helps resolve this tension as well. The purpose of using a special jury of merchants was for the expert jury to help the judge determine the law merchant and incorporate it into the larger corpus juris. Thus, Chief Justice Jay's words are more reasonable and less anomalous when we better understand the type of jury he was addressing.

In Part I, this Note begins by describing special juries in general and special juries of merchants in particular. Though dating back centuries, the practice of impanelling expert juries of merchants became especially prevalent in England and America in the second half of the eighteenth century, largely due to the influence of Lord Mansfield.

Part II discusses Brailsford in depth, while Part III details this Note's original findings. After investigating the individuals who were called to be prospective jurors, this Note finds that ninety-five percent of them were merchants. This rate corresponds to that among special merchant juries impanelled in England. Further, this Note analyzes the unpublished oral arguments from the case. These arguments appeal to the "law of merchants," mercantile custom, and the "prospects of future credit," the precise types of arguments that attorneys would make to special juries of merchants. After examining several other strands of evidence, this Note concludes that the special jury impanelled before the Supreme Court in Brailsford was a Mansfieldian special jury of merchants.

In Part IV, this Note examines the subsequent history of juries in the Supreme Court, and the Court's modern original jurisdiction practice. It then considers the possible scope of the Court's discretionary power to decline to hear cases in its exclusive original jurisdiction. Finally, it considers whether a situation might ever arise in which the Supreme Court would be required to preside over a jury trial.

Part V examines how this Note's conclusions affect the two questions presented by the case: (1) what happens when the Seventh Amendment confronts the Supreme Court's original jurisdiction; and (2) how we should understand Chief Justice Jay's jury charge in Brailsford. As to the first question, this Note concludes that if the Supreme Court ever were constitutionally required to preside over a jury trial, it could impanel an expert jury just as it did in 1794--in essence, a special jury of special masters. As to the second question, this Note finds that Chief Justice Jay's words were particularly appropriate for a special jury of merchants, because such juries were often tasked with determining the relevant mercantile custom that should control in a given case. Further, in America they were sometimes given the authority, with the judge's instructions and oversight, to adopt that custom as a lasting precedent.


    The term "special jury" refers to a jury that possesses some combination of three characteristics. First, "special jury" sometimes denotes a jury of experts, such as a jury made up of merchants for hearing commercial disputes. (9) Second, "special jury" sometimes refers to a jury made up of upper-class individuals for hearing particularly important or sophisticated matters, the so-called "blue-ribbon jury." (10) Finally, the term "special jury" nearly always refers to a particular procedure of composing a jury, the "struck" jury, explained below. (11) Some "special juries" had all three characteristics, others were "struck" but composed of the upper-class and not merchants per se, and still others were "struck" and made up of expert jurors, chosen for their expertise, and not necessarily their socioeconomic station. The practice of these "special juries" stretches back at least to the beginning of the seventeenth century, (12) if not further. In particular, expert juries composed of merchants were used as far back as the fourteenth century. (13)

    The institution of the special jury was codified in 1730 in England by statute. (14) The procedure for composing a "special jury" or "struck jury" was as follows: Names of potential special jurors were regularly put on books and lists from which the clerk of the court could draw names for the venire facias. (15) Certain books would contain the names of merchants for special juries of merchants. (16) When it came time to impanel a jury, the clerk of the court, sometimes with the assistance of the parties, (17) collate forty-eight "qualified" jurors. These qualifications could be based on expertise or property, depending on the type of special jury. The parties would then take turns striking off names from the venire until they reached the required number--thus the appellation "struck" jury. (18) Although the practice of special juries in general, and special juries of merchants in particular, originated in the medieval period, Lord Mansfield brought special juries of merchants into widespread use upon his appointment as Chief Justice of King's Bench in 1756. Under Mansfield, special juries of merchants became prevalent throughout England and the colonies in the late eighteenth century. (19)

    Special juries of merchants served two main functions. First, they were sophisticated fact-finders whose expertise assisted them in understanding the complex facts underlying difficult cases. As Blackstone wrote of special juries in general, "Special juries were originally...

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