“…the ancient trial by jury is preferable to any other, and ought to be held sacred”

From Blackstone, on the necessity of civil jury trials:
“Every tribunal (Judge), selected for the decision of facts, is a step towards establishing aristocracy—the most oppressive of all governments.”

From George Mason, Declaration of Rights (the preface to the Virginia Constitution), June, 1776:
” 11.  … in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”

John Adams probably borrowed from this when he drafted the Massachusetts Constitution (that was defeated by the voters in 1778, but passed in 1780):

Part I, Article 15:  “In all controversies concerning property and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred …”

Pretty strong stuff.  Mason was a key actor in the Constitutional Convention until he stormed out and refused to sign it.  The document that was ultimately signed was in large part based upon the Adams draft, which, in turn, borrowed from Mason’s Virginia draft and, going back further, relied heavily on Magna Carta as the source for limitation on governmental powers.

The irony, in some ways, is that leading Virginia lawyers like Mason and Jefferson, many of whom trained in the Inns of Court and were therefore devotees of Coke and his constitutionalism, adopted a Natural Rights philosophy more akin to Blackstone.

Massachusetts lawyers who had almost no training in the Inns, were often heard quoting Blackstone, but Adams based his government theory on Coke, constitutionalism and Magna Carta.  Personally, I think Adams had it right, but maybe I am biased a bit.

By Christopher A. Duggan


2 thoughts on ““…the ancient trial by jury is preferable to any other, and ought to be held sacred”

  1. Bill Wagner

    BUT back then they didn’t have five volumes of statutes and two “Court Rules” volumes limiting what a jury can consider or even hear or limiting what their findings will actually accomplish.


  2. Mark Robinson 2014

    The Civil Jury Trial may seem ancient to some younger people but it only began in England 800 years ago after the Magna Carta and it is still the best dispute resolution process devised by man. We need to keep it!



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