This Germ of Rottedness: Federal Trials in the New Republic, 1789-1807

• Publication year: 2001

36 Creighton L. Rev. 135. THIS GERM OF ROTTEDNESS: FEDERAL TRIALS IN THE NEW REPUBLIC, 1789-1807

Creighton Law Review

Vol. 36

DANIEL D. BLINKA(fn*)

[The right of trial by jury] provides that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character . . . upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to attend, shall pass their sentence upon oath against him . . . [Jury verdicts] concern the general welfare; and if it does not, their verdict may form a precedent, that, on a similar trial of their own, may militate against themselves.(fn1)

[T]his germ of rottedness in the institution of juries [must be eliminated] . . . to circumscribe in time the spread of that gangrene, which sooner than many are aware, may reach the vitals of our political existence.(fn2)

I. INTRODUCTION

Trial by jury has been a cherished, almost sacred right of our public culture since the republic's earliest days. Historian Jack Rakove argues that the American Revolution conferred "preeminent importance" on the rights to representation and to trial by jury.(fn3) John Phillip Reid concurs that juries enjoyed a "special American attachment" at the nation's founding.(fn4)

Yet distinguished commentators have bemoaned the nation's founding as a lost opportunity to rethink the role of juries. Akhil Amar proclaims that juries "were at the heart of the Bill of Rights" because they "played a leading role in protecting ordinary individuals against governmental overreaching."(fn5) Nonetheless, Amar chides the founders for missing an opportunity for "rethinking" the role of the jury.(fn6) Amar's criticism implies that the Founding Fathers were strangely obtuse to the jury's democratic potential or at least blinded because the "jury, as a local body, beautifully fit the localism of the Revolution."(fn7)

The historical record reveals, however, that the Revolutionary generation fully grasped the jury's democratic promise yet struggled to reconcile this venerable common-law instrument with the new republic's changed political culture and institutional innovations. The Revolutionary generation embraced juries. Georgia's constitution of 1777 explicitly authorized juries to determine the law as well as the facts of the case.(fn8) More dramatically, early in the Revolution, Virginia enthusiastically experimented with juries in a breath-taking array of settings. Shattering precedent, the Old Dominion's juries sat in eq-uity and admiralty actions, sentenced criminals, and decided the rate of compensation for public officials. Nonetheless, the experiment soon floundered. Administrative problems and confusion over the proper roles of juries soon led to the repeal of many of Virginia's innovations by the mid-1780s.(fn9) In sum, the experiences in Georgia and Virginia provide compelling evidence that juries had been rethought but that doubt, uncertainties, and genuine discomfort about their functioning plagued the new republic. By the late 1790s, Thomas Jefferson despaired that a "germ of rottedness" had infected the institution.(fn10)

This article examines the jury's standing in the national government between 1776 and the Burr treason trial of 1807. One finds none of the Revolutionary innovations that animated Virginia's experimentation; rather, the record clearly reflects unease, disquiet, and concern over the role of juries. The Articles of Confederation lacked anything resembling a national judiciary because the Continental Congress largely defaulted to state judicial institutions. The Northwest Ordinance of 1787, one of the Confederation's greatest political acts, created a scheme of territorial governance that closely resembled the pre-Revolutionary colonial charters and supported no innovative uses of juries.(fn11) Put bluntly, juries played no special role in national governance between 1776 and 1788. Perspective is, however, essential. Waging war, negotiating a difficult peace, fending off financial calamity, and struggling to keep its thirteen constituent states in some semblance of harmony, the Continental Congress had more to worry about than courts and jury trials.

Courts and juries were squarely before the Framers of the new national government. The debates over the federal Constitution, the Bill of Rights, and the construction of the federal judiciary reflect, however, an ambivalence about juries as well as the multiplicity of practices on a national scale. Indeed, the states took such widely divergent paths that the Framers wisely decided to duck the knottier issues rather than run the political gauntlet. The First Congress elected to take the same course. The Judiciary Act of 1789 and its corollary legislation simply allowed federal practice to follow the plethora of state regimes.(fn12)

The problem then devolved to the federal courts, which struggled to accommodate not only national law to local practice, but to reconsider the roles of judge and jury amidst a turbulent political climate. Federal courts were rocked by many of the same stormy issues that eventually fractured the young nation's politics into the First American Party System, including controversies over debt, taxes, dissent, and foreign affairs.

Federal trials during the 1790s, both civil and criminal, faithfully tracked the old-style trial which serviced eighteenth-century notions of deference and hierarchy by blending social standing and political authority.(fn13) The old-style trial studiously avoided finely honed distinctions between law and fact as well as refined ideas about "evidence." To dwell on the jury's "localism" misses the vast differences between trials of yesterday and today.(fn14) Old-style juries relied heavily on their own knowledge of events and persons; they were not rigidly limited to what the "evidences" (i.e., witnesses) said. Verdicts came instantly; often juries never left the courtroom or "deliberated" in any meaningful sense because the point of the trial was not to recover or reconstruct "the truth." The old-style trial centered itself on evaluations of character and reputation. Juries relied on their knowledge of events and, as important, character. In 1774, the First Continental Congress nicely described the primary features of the old-style trial while appealing to the "inhabitants" of Quebec for support in its resistance to British oppression:

[The right of trial by jury] provides that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to attend, shall pass their sentence upon oath against him; a sentence that cannot injure him, without injuring their own reputation, and probably their interest also; as the question may turn on points, that, in some degree, concern the general welfare; and if it does not, their verdict may form a precedent, that, on a similar trial of their own, may militate against themselves.(fn15)

In sum, jurors were expected to be "acquainted" with the character of witnesses and parties because jury verdicts "concern the general welfare." Juries that failed to consider the community's broader interests risked damaging their own reputations and setting precedents that could be turned against them. Nowhere in Congress's 1774 paean to juries is there any mention of a "search for the truth" or the need to find facts based solely on the evidence heard in court. In the 1790s, federal judges still faithfully applied the "good old rule," which expressly recognized the jury's broad power "to determine the law as well as the fact in controversy."(fn16) Put differently, juries could decide a case unfettered by the judges' instructions on law or witnesses' testimonies (if any).

Yet the old-style trial and the free-wheeling, ad hoc decision-making embodied in the "good old rule" were under considerable strain by the mid-1790s. Reformers struggled to find answers. St. George Tucker, one of Virginia's (and the nation's) leading lawyers and judges, lamented the sad decline of trial by jury. The problem rested, Tucker thought, squarely with the types of men who sat on juries.(fn17) Courts habitually impaneled juries consisting largely of "idle loiterers" who were "unfit" to decide the cases presented to them. Often times juries were stacked with parties' friends or neighbors, which permitted "friendship" or "dislikes" to exert an "imperceptible influence" on the outcome. Tucker's solution was dictated by his diagnosis of the problem: replace the "idle loiterers" with men of intelligence, property, and standing.(fn18) In short, the vast discretion reposed in juries required men of the highest character.

Another distinguished Virginian, Thomas Jefferson, was also unsettled by the abuses and torpor that sullied the trial by jury. Jefferson had championed many of Virginia's experiments with juries during the 1770s.(fn19) Yet, while attracted by the jury's democratic po-tential, he was also repelled by its capricious, often emotional...