23. The Jury and Consensus Government in Mid-Eighteenth-Century America

William E. Nelson

The Pervasive and Undifferentiated Role of Colonial Courts

Courts were vital to mid-eighteenth-century colonial government, for that government, unlike our own, had no ubiquitous bureaucracy with clear chains of command reaching upward to central political authorities. Because there was no modern bureaucracy, the judiciary and the officials responsible to it (e.g., sheriffs) were the primary link between a colony's central government and its outlying localities. The judiciary alone could coerce individuals by punishing crimes and imposing money judgments. In some colonies, such as Virginia, the judiciary was virtually the whole of local government, but even in colonies where other officials were available, the nonexistence of doctrines of official immunity rendered those officials subject to judicial control. As one of John Marshall's contemporaries observed, "[o]ther departments of the Government" may have been "more splendid," but only the "courts of justice [came] home to every man's habitation."[1]

The vital role of the courts in colonial government did not, however, mean that government performed only functions which we today would classify as judicial. Colonial government regulated its subjects' lives in pervasive detail; government in the Age of Mercantilism sought to insure not only the physical and economic but the moral and social well-being of its subjects.[2] The courts, as a vital part of the government, maintained order, protected life and property, apportioned and collected taxes, supervised the construction and maintenance of highways, issued licenses, and regulated licensees' businesses. Through administration of the settlement law, which permitted localities to exclude undesired newcomers, and the poor law, which made localities liable for the support and hence the general well-being of all who were born and raised in a locality and all newcomers who were not excluded, the legal system fostered community self-definition and a sense of community responsibility for inhabitants.[3] Indeed, in some colonies, the courts of general sessions of the peace, which possessed basic criminal, administrative, and some minor forms of civil jurisdiction, also performed the executive and even the legislative functions of local government.[4]

The work of the courts, in sum, was of an undifferentiated, pervasive character. The undifferentiated character of that work was important for present purposes because it obscured distinctions between legislation, administration, and adjudication drawn by political theorists. Despite Montesquieu's early statement of the modern doctrine of separation of powers,[5] Americans as late as the 1780s generally regarded the courts as part of the executive and did not routinely distinguish the judiciary as an independent branch which exercised only judicial functions: they did not, that is, distinguish law from politics. As one tract observed, "Government is generally distinguished into three parts, Executive, Legislative and Judicial, but this is more a distinction of words than things... . [H]owever we may refine and define, there is no more than two powers in any government, viz., the power is only a branch of the executive, the CHIEF of every country being the first magistrate."[6]

The pervasive character of the courts' work was important because it placed the courts, which are today at the periphery of governmental activity, at the core instead. It insured that men like John Marshall who learned the ways of government in the Revolutionary era would be familiar with the manner in which courts functioned. And it requires, if we are to understand the background and training of the generation of the Founding Fathers, that we too study the workings of mid-eighteenth-century courts and of their most important agency, the jury.

The Law-finding Power of Juries

Although judges with the multifarious duties of mid-eighteenth-century courts were prominent local leaders, they were leaders who had power only to guide, not to command. For juries rather than judges spoke the last word on law enforcement in nearly all, if not all, of the eighteenth-century American colonies. Except in equitable actions, which were nonexistent in some colonies and narrowly limited in the rest, judges could not enter a judgment or impose a penalty without a jury verdict. And, in the cases in which they sat, eighteenth-century juries, unlike juries today, usually possessed the power to determine both law and fact.[7]

Although the common law of eighteenth-century England recognized several devices for controlling jury findings of law and fact, mid-eighteenth-century American courts appear not to have used them extensively in either civil or criminal cases. One device apparently in use in England was special pleading and the exclusion from evidence of all matters immaterial to the special plea. Special pleading had the capacity of framing a single, simple factual question for the jury which the jury could decide without passing upon the law, since the court's prior determination of the legal sufficiency of proffered pleas resolved all questions of law before a case was given to the jury.[8] But there is no evidence that special pleading was widely used in colonial America, except perhaps in early eighteenth-century Maryland.[9]

Litigants usually preferred to try cases not under a special plea but under a plea of the general issue, so called because it imported an absolute and general denial of every allegation and put all the allegations in issue before the jury. When the general issue was pleaded, juries did not confront only evidence directly relevant to a single issue, but instead heard evidence on several issues and during deliberation had to decide how those issues related to each other.[10] Thus, jurors found not only facts but also the legal consequences of facts; that is, absent other restrictions they decided the law. The result was that although special pleading had the potential to reduce the power of juries to determine law as well as fact, its disuse in colonial America prevented it from attaining that potential.

A second common-law device to control juries' findings of law was the special verdict, by which a jury merely stated its factual conclusions without expressing any opinion about which party should win. The court then applied the law to the facts and rendered judgment. This procedure was not especially effective in controlling the law-finding powers of colonial American juries, however, since all the litigants had to agree to it. Any party could as a matter of right demand a general verdict in which the jury applied the law to the facts.[11] When it was used, counsel on both sides usually would draft notes for the verdict that the jury then rendered; but even then the verdict could be entered on the record only if objections by counsel for both litigants were resolved to their mutual satisfaction. Litigants probably used special verdicts chiefly in complex factual cases where both sides were at least as interested in a judicial declaration of law for their future guidance as in a resolution of the pending dispute.[12] In typical cases, especially if one of the parties anticipated that the jury would render a favorable general verdict, special verdicts were rare.

Furthermore, it was not clear that an unwilling jury could be forced to return a special verdict even if both parties desired one. John Adams, for instance, denied that juries were "under any legal or moral or divine Obligation to find a Special Verdict where they themselves are in no doubt of the Law."[13] The Maryland Provincial Court apparently shared that view, for after the jury in Smith's Lessee v. Broughton[14] returned a general verdict in favor of the defendant even though the court, with both parties' consent, had instructed it to find a special verdict, the Maryland court rejected the plaintiffs argument that the jury's disobedience warranted an arrest of judgment.[15]

Some scholars believe that the demurrer to the evidence and the compulsory nonsuit, somewhat similar and overlapping procedures, were also available to prevent juries from applying law to facts.[16] Although either party could claim through a demurrer to the evidence that his opponent's evidence was insufficient to support an allegation, it appears that defendants demurred more commonly than plaintiffs, often claiming at the close of a plaintiffs affirmative case that the evidence did not support the cause of action.[17] When such demurrers were interposed, the judge, circumventing the jury, would rule on the legal sufficiency of the plaintiffs evidence. According to an early nineteenth-century case in South Carolina, the nonsuit similarly lay "wherever it appears that the evidence is insufficient to make out the plaintiffs case, or where there is a total failure of proof necessary for that purpose." In such a case, a trial court was directed to grant a defense motion for nonsuit "whether the plaintiff consent or not."[18]

However, neither the compulsory nonsuit nor the demurrer to evidence effectively reined jury power in eighteenth-century America. Before 1800, published reports include no case in which the compulsory nonsuit was used to prevent a jury from determining an issue of law otherwise before it.[19] The demurrer to evidence, though extant in five states, similarly failed to keep cases away from the jury because procedural disadvantages discouraged its use.[20]

Thus, due to the apparent infrequency of special pleading and the ineffectiveness of demurrers to the evidence and procedures for compulsory nonsuits and special verdicts, juries usually must have returned general verdicts in lawsuits not decided by default. In the absence of modern procedural devices such as judicial instructions on law and evidence and the practice of setting aside verdicts contrary to law or evidence, this meant that juries in both civil and criminal cases were usually called upon to find both law and fact. Although these modern devices were in use in England by the time of Bright v. Eynon[21] and Appleton v. Sweetapple,[22] neither device was an effective instrument for jury control in pre-Revolutionary America.

Instructions to the jury were ineffective for several reasons. First, it appears that in many cases instructions were brief and rudimentary. In Massachusetts lawyers could and did assume that jurors were "good judges of the common law of the land,"[23] since "[t]he general Rules of Law and common Regulations of Society, under which ordinary Transactions arranged themselves, ... [were] well enough known to ordinary Jurors."[24] Accordingly juries might be directed that as to many matters, they "need[ed] no Explanation [since] your Good Sence & understanding will Direct ye as to them."[25] In Connecticut the court merely summarized the opposing claims without commenting on the law involved in the case,[26] while in New Hampshire one judge told a jury "to do justice between the parties not by any quirks of the law ... but by common sense as between man and man."[27] Likewise, in one criminal case in colonial New York, Chief Justice Mompesson informed the jury that "there are some points [of law] I am not now prepared to answer,"[28] while in another case the court informed the jury only that the evidence from the prosecution's witnesses seemed "so ample, so full, so clear and satisfactory" that it should convict the prisoner "if you have no particular reasons in your own breast, in your own consciences to discredit them."[29] Similarly, in South Carolina civil litigation in the 1780s, one jury was instructed "to find a general verdict, or a special one, ... as they thought proper,"[30] while another jury was told "to give what they thought reasonable" in "damages."[31] In other cases, no instructions were given at all; in Virginia, for example, according to one commentator, there were "numerous cases" in which the jury "retired without a word said by the court upon the subject" of the case.[32]

Instructions were also ineffective because they were often contradictory. One potential source of contradiction was counsel, who on summation could argue the law as well as the facts, at least in Georgia, Massachusetts, New York, Pennsylvania, South Carolina, and Virginia, and probably in other colonies for which no direct evidence is available. Most confusing of all was the court's seriatim charge. Nearly every court in eighteenth-century America sat with more than one judge upon the bench, and it appears to have been the general rule for every judge who was sitting to deliver a charge if he wished to do so. Perhaps the most revealing case is Georgia v. Brailsford, where the Supreme Court of the United States sat in 1793 with a Philadelphia jury in an original action brought by the state of Georgia against the defendant Brailsford. There Chief Justice John Jay, reporting perhaps upon his understanding of the general state of American law, told the jury that it was "fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous" and to have the court "entertain no diversity of sentiment" and "experience ... no difficulty in uniting in the charge."[33] Such unanimity was not always the case. In both Massachusetts and South Carolina there are examples from the Revolutionary period of judges giving conflicting instructions to juries,[34] and as late as 1803 Alexander Addison, a common pleas judge in Pennsylvania, was successfully impeached for refusing to permit other judges on his court to address juries.[35] Only in Maryland does the routine practice by counsel of preserving exceptions to objectionable instructions suggest that trial judges were required to deliver a single, correct set of instructions or face the prospect of reversal for error.[36]

Of course, whenever jurors received conflicting instructions, they were left with power to determine which judge's interpretation of the law and the facts was correct. Even when the court's instructions were unanimous, however, juries could not be compelled to adhere to them. Once jurors had received evidence on several factual issues and on the parties' possibly conflicting interpretations of the law, a court could compel them to decide in accordance with its view of the case only by setting aside any verdict contrary either to its statement of the law or to the evidence. By the 1750s English courts, upon motion of the losing party, would set aside such a verdict and order a new trial,[37] but most eighteenth-century American jurisdictions did not follow English practice.

In Massachusetts Erving v. Cradock[38] made clear the court's lack of jurisdiction to set aside a verdict contrary to its instructions. Similarly, the Connecticut Supreme Court in the 1780s denied several new-trial motions on the ground that "[i]t doth not vitiate a verdict, that the jury have mistaken the law or the evidence: for by the practice of this state, they are judges of both."[39] The Massachusetts and Connecticut rule appears to have been followed throughout New England.[40] Maryland and Virginia also followed the same practice. In Maryland, the provincial court denied one motion in arrest of judgment which alleged that the "Jury [had] reject[ed] law, reason, and evidence"[41] and another motion for a new trial even though the jury had failed to follow instructions given by the court with the consent of both counsel.[42] In Virginia the leading case was the Parson's Cause,[43] although an earlier case had also declined to set aside a verdict which the defendant claimed was contrary to the law.[44]

The same rule also appears to have been followed in four other states, although the evidence is somewhat less clear. In Proprietor v. Keith,[45] a seventeenth-century Pennsylvania prosecution for seditious libel, the court left to the jury all issues of law and fact, including the question whether the publication was actually seditious. In a 1773 civil case in Pennsylvania, the reporter made special note of the fact that "it was agreed by counsel, that the opinion of the court should be conclusive to the jury"[46] — a note implying that the opinion would not have been conclusive absent the agreement. In another case the reporter noted that "the jury were of the same opinion" as the court,[47] thereby suggesting that juries might sometimes have been of a different view. In South Carolina motions for new trials on the ground that verdicts were against the law were made on four reported occasions in the 1780s and denied without exception, although the courts noted the special circumstances of each case and never articulated a general rule concerning the jury's power to determine the law.[48] In Georgia the Constitution of 1777 barred judges from interfering with the jury's power to determine the law,[49] while New Jersey did the same by statute in 1784.[50] Both these provisions probably confirmed preexisting colonial practice.

Only in New York does evidence exist that judges and other informed commentators believed that a court could grant a new trial if the jury in a civil matter ignored the law, and nearly all this evidence arises from a single 1763 case, Forsey v. Cunningham.[51] The supreme court denied a new-trial motion in Forsey, but several of the justices and Lieutenant Governor Cadwallader Colden all subsequently contended in letters that courts could set aside verdicts that were against law or evidence.[52] The apparent inconsistency between the justices' statements and their action in Forsey can be resolved in several ways,[53] but whatever the inconsistency, it does not appear that colonial New York courts routinely granted new trials in civil cases. Indeed, acting as counsel in his own cause, Robert Livingston in 1784 denounced the new-trial motion as a "new-fangled doctrine of Lord Mansfield" and added that "no single authority" was to be found in its support, in a case of a trial at bar, by a struck jury, in term time."[54] Other lawyers writing about New York practice in that and the next decade still spoke with confusion about the relative powers of court and jury,[55] and as late as 1800 judges did not fully agree that they could set aside a verdict against law or evidence.[56] In criminal cases, of course, King v. Zenger established the power of juries to determine law as well as fact,[57] although convictions were set aside in a few cases because juries misapplied the law.[58]

Thus, the various eighteenth-century procedural devices for controlling the power of the jury were only infrequently used and partially effective. It accordingly seems safe to conclude that juries in most, if not all, eighteenth-century American jurisdictions normally had the power to determine law as well as fact in both civil and criminal cases. Statements of contemporary lawyers, moreover, buttress this conclusion; Zephaniah Swift of Connecticut and Robert Treat Paine of Massachusetts said that "[t]he jury were the proper judges, not only of the fact but of the law that was necessarily involved"[59] in each case; that the "Jury ha[d] a right to do as they please[d]";[60] and that "no verdicts ... [were] thrown out."[61]

Even more telling, perhaps, are statements by three of the most eminent lawyers in late eighteenth-century America — John Adams, Thomas Jefferson, and John Jay. In the early 1770s Adams observed in his diary: "It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue." Adams argued that even a verdict contrary to the court's directions should stand, for it was "not only... [every juror's] right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the court."[62] In 1781-82 Thomas Jefferson painted an equally broad picture of the power of juries over the law in his Notes on Virginia. "It is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges," Jefferson wrote. "But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact."[63] As late as 1793 John Jay, sitting as chief justice of the United States, informed a civil jury that while the court usually determined the law and the jury found the facts, the jury nevertheless had "a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy." "[B]oth objects," Jay concluded, "are lawfully, within your power of decision."[64]

Shared Values as the Basis of Eighteenth-Century Law

That eighteenth-century juries often decided cases after receiving rudimentary, conflicting, or no instructions from the court suggests that many jurors came to court with preconceptions about the substance of the law. This point was explicitly made in the 1788 Connecticut case of Pettis v. Warren.[65] In a black slave's suit for freedom, one juror was challenged for having a preexisting opinion "that 'no negro, by the laws of this state, could be holden a slave.'" Affirming the trial court's overruling of the challenge, the Connecticut Supreme Court held that "[a]n opinion formed and declared upon a general principle of law, does not disqualify a juror to sit in a cause in which that principle applies." Indeed, the court observed that the jurors in every case could "all be challenged on one side or the other, if having an opinion of the law in the case is ground of challenge,"[66] since, as John Adams had once noted, "[t] he general Rules of Law and common Regulations of Society ... [were] well enough known to ordinary Jurors."[67] Jurors, the Connecticut court believed, were "supposed to have opinions of what the law is," since they sat as "judges of law as well as fact."[68]

One might infer further that jurors came to the court with similar preconceptions about the law, at least as it applied to disputes that frequently came before them. Indeed, one cannot escape this inference without abandoning all efforts to understand how eighteenth-century government functioned. If jurors came to court with different and possibly conflicting opinions about substantive law, one would expect to find, first, that juries had difficulty reaching unanimous verdicts and that mistrials due to hung juries were correspondingly frequent and, second, that different juries at different times would reach different, perhaps inconsistent verdicts, thereby making the law so uncertain and unpredictable that people could not plan their affairs. In fact, no such evidence exists. On the contrary, the available evidence suggests that juries had so little difficulty reaching verdicts that they often heard and decided several cases a day.[69] No one in the mid-eighteenth century complained about the inconsistency of the jury verdicts, and as soon as such complaints were heard in the century's last decade,[70] the system of jury law-finding began to disintegrate.[71]

Although we have no direct evidence, most men probably did not desire to serve as jurors.[72] At a time of difficult travel, few men would have cared to attend court sessions, and those who did probably were pursuing business interests from which jury duty was an unwelcome distraction. In short, there is every reason to think that eighteenth-century citizens avoided jury duty as eagerly as citizens today and that the chore was therefore distributed among as much of the eligible population as could be conscripted.[73] Although some groups (notably women, blacks, servants, religious dissenters, and anyone who did not own land or pay taxes) may have been systematically excluded from juries, it does not seem unreasonable to infer that juries contained a random and representative cross section of the remaining population.[74]

That conclusion suggests a final inference. If juries in fact mirrored the white, male, landowning, and taxpaying population and if upon coming to court nearly all jurors shared similar ideas about the substance of the law, then perhaps a body of shared ideas about law permeated a large segment of the population of every territory over which a court that sat with a jury had jurisdiction. Colonial government may have been able to derive policies from and otherwise function on the basis of those shared values.

Those who live amid the twentieth-century cacophony of conflicting interests may find it difficult to imagine how a government acting only in the absence of serious conflict could ever function effectively. The eighteenth-century Anglo-American world, however, was sufficiently different from our own so that government in that era might have so functioned.

Several differences should be noted. First, the primitive character of the economy meant that most communities could afford only a few salaried officeholders.[75] Indeed, many men did not have enough wealth and time even to participate in elections "without manifest injury to their crops."[76] As a result, competition for local leadership positions was often understandably slight,[77] and local governments lacked substantial salaried bureaucracies that could enforce decisions. Part-time police officials such as deputy sheriffs and constables enforced government decisions, so long, that is, as they did not contravene the wishes of neighbors with whom they had close economic and social ties.[78] The ultimate enforcement body — the militia — was merely the community itself organized as a quasi-military body which would, of course, not act against the community's wishes. Colonial economic conditions, in short, reduced conflict and competition in local politics and precluded the rise of coercive institutions that might have been used by one portion of a community seeking to promote its interests at the expense of others.

Second, colonial American communities differed tremendously. Religion remained important in eighteenth-century life, and America could afford room for almost any religious community.[79] Religious differences were not the only ones among the communities. Important economic differences also existed, for while most communities were agricultural, some were either mercantile or chiefly engaged in fishing. Finally, inarticulable differences in life-style and ambience distinguished communities, as any visitor of the restored colonial towns of Sturbridge, Massachusetts, and Williamsburg, Virginia, can see, or as any reader of the diaries of eighteenth-century travelers like Dr. Alexander Hamilton can learn.[80]

Colonials did not find it especially difficult to change their residence from one community to another. Benjamin Franklin, for example, moved from Boston to Philadelphia with relative ease,[81] while thousands of colonial Americans found the move from established towns to the frontier not at all insuperable.[82] As a result, most colonials who dissented from their own community's conception of right and justice could move without great difficulty to a more congenial community. Newly arriving immigrants were also able to identify and settle in communities that welcomed their religious beliefs, life-styles, and economic skills.[83] The tendency of people to live in communities they found congenial was important, particularly because it enabled communities to retain their identity by facilitating the departure of those whose personal ethical codes would have diluted that identity.

But while colonial Americans could readily move between communities, they generally seem not to have established the kind of sustained intercommunity contact likely to produce conflict. American communities had long since abandoned schemes of subjugating each other or seizing each other's wealth; the Dutch of Manhattan and the Puritans of Long Island, for example, learned how to coexist when they each abandoned thoughts of conquest and developed their primary social and economic communication with their respective compatriots in the Hudson Valley and in New England rather than with each other.[84] The availability of land,[85] which made territorial quarrels unnecessary, and the lack of a developed transportation and communication network, which made sustained contact difficult, also help account for the infrequency of disputes between communities. Geographically proximate communities were thus able to remain distinct,[86] to pursue their own conception of right, and to avoid intercommunity disputes that legal institutions dependent on local community support would have been incapable of resolving.[87]

Finally, colonial politics existed within an established constitutional structure which colonials could not control. Parliament, in which colonials had no direct voice, alone possessed the power to decide many fundamental social and economic issues, and for the first sixty years of the eighteenth century it was willing to abide by decisions reached in the preceding century that were often favorable to the colonies. Thus, much of the grist for genuine political conflict was removed from the realm of imperial politics; absent a radical restructuring of the Anglo-American system, there was simply no point in building a political organization around the issue of whether, for example, Anglicans would be tolerated in Massachusetts[88] or whether Americans would be free to trade with French Canada without restriction.[89]

Provincial politics were not radically different. Americans controlled their colonial legislatures, but they could not effectively enact legislation that significantly altered the structure of colonial society since such legislation would almost always be vetoed by a colonial governor or by London.[90] As a result, colonial legislation usually consisted of mere administration: raising and appropriating small amounts of tax money, distributing the even smaller amounts of government largess, and legislating as necessary to keep the few governmental institutions functioning.[91] While provincial political conflict commonly occurred, it rarely involved important social issues.[92] Of course, occasional conflicts grew from religious differences, such as the division in Pennsylvania politics between Quaker and anti-Quaker parties, and from the rivalry between seaboard and backcountry areas, such as the 1740s land-bank dispute in Massachusetts and the 1760s Regulator movement in the Carolinas.[93] But since these disputes could not be locally resolved within the British power structure, they quickly degenerated into mere personal and factional conflicts between men seeking personal advancement.[94] Provincial political conflict may have been widespread, but as shrewdly observant colonial political writers vehemently announced, it departed from the ideal polity of consensus[95] — a polity which may have existed in many eighteenth-century local communities.

Taken together, these facts may have helped to sustain a political order in colonial America radically different from the political order of America today. The stable imperial constitution combined with primitive colonial economies to remove most social and economic issues from imperial and provincial politics. Before Independence, most newly arising socioeconomic conflicts were resolved and new socioeconomic decisions taken at the local level. The primitiveness of the colonial economy had another influence: by keeping the social elite small and depriving it of effective military and bureaucratic power necessary to coerce the people at large, the colonial American economic system denied colonial leaders the opportunity to exploit their localities in their own self-interest. Colonial leaders generally had to govern and resolve social tensions according to values commonly accepted in their localities. Finally, the real differences between localities and the ease with which people could move to a community whose ideas they shared preserved each community's distinct identity. As a result, the colonial American polity may on the whole have consisted of a series of local communities whose inhabitants jointly defined standards of right and justice and insured that the community lived by those standards.

Notes

This chapter is adapted and reprinted, with permission, from William E. Nelson, The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence, 76 Mich. L. Rev. 893 (1978).

1. See P. Bonomi, A Factious People (New York: Columbia Univ. Press, 1971), pp. 145, 227; C. Sydnor, Gentlemen Freeholders (Chapel Hill: Univ. of North Carolina Press, 1952), pp. 83-84, 86-93; Annals of Congress, vol. 18 (Washington, D.C.: Gales & Seaton, 1834), p. 110 (remarks of Sen. Hillhouse).

2. For example, Parliament passed the Navigation Acts to increase the wealth of the entire empire (see generally, O. Dickerson, The Navigation Acts and the American Revolution [Philadelphia: Univ. of Pennsylvania Press, 1951]; L. Harper, The English Navigation Laws [New York: Octagon Books, 1939]), and colonial legislatures passed inspection acts to promote the sale of colonial products abroad (see J. Goebel and T. Naughton. Law Enforcement in Colonial New York [New York: Commonwealth Fund, 1944], p. 41 n. 201; O. Handlin and M. Handlin, Commonwealth, rev. ed. [Cambridge: Belknap, 1969], pp. 64-65).

3. See Bonomi, A Factious People, p. 36 n. 27; R. Ireland, The County Courts in Antebellum Kentucky (Lexington: Univ. Press of Kentucky, 1972), pp. 18-31; W. Nelson, Americanization of the Common Law, p. 15; C. Sydnor, American Revolutionaries in the Making (New York: Free Press, 1965), pp. 80-85; M. Creech, Three Centuries of Poor Law Administration (Chicago: Univ. of Chicago Press, 1936), pp. 8-75; J. Benton, Warning Out in New England (Free-port, N.Y.: Books for Libraries Press, 1970), pp. 9, 118-21.

4. See Ireland, The County Courts in Antebellum Kentucky, p. 18; Nelson, Americanization of the Common Law, p. 15; Sydnor, American Revolutionaries in the Making, p. 80; Bockelman, Local Government in Colonial Pennsylvania, and Carr, The Foundations of Social Order: Local Government in Colonial Maryland, in B. Daniels, ed., Town and County (Middletown, Conn.: Wesleyan Univ. Press, 1978), pp. 91-93, 216-21. Local courts had fewer powers, however, in New York and South Carolina (see Bonomi, A Factious People, pp. 35-36; M. Sirmans, Colonial South Carolina [Chapel Hill: Univ. of North Carolina Press, 1966], pp. 250-52).

5. For a discussion of Montesquieu, see M. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), pp. 76-97.

6. Four Letters on Interesting Subjects (Philadelphia, 1776), p. 21.

7. See Katz, The Politics of Law in Colonial America, 5 Perspectives in American History 257, 262-65 (1971); Nelson, Americanization of the Common Law, p. 21.

8. See Nelson, Americanization of the Common Law, pp. 21-22 and sources cited therein.

9. Litigants in Massachusetts rarely continued special pleading beyond defendant's initial plea and the plaintiffs joinder of issue or joinder in demurrer (see ibid., p. 23), and the published colonial cases suggest that special pleading was also rare in Pennsylvania and Virginia. The only special pleading case reported in pre-Revolutionary Pennsylvania, Swift v. Hawkins, 1 Dall. 17 (Pa. 1768), involved merely a joinder of issue to a plea of payment in a writ of debt. No cases of special pleading are recorded in T. Jefferson, ed., Reports of Cases Determined in the General Court of Virginia from 1730 to 1740; and from 1768 to 1772 (Charlottesville: O. F. Carr, 1829), the only volume of pre-Revolutionary Virginia cases.

10. A plea of the general issue did not frame a single, precise factual question for two reasons. First, a typical complaint alleged several facts, all of which a general denial put in issue. Second, courts did not restrict the parties (as they did in the case of a special plea) to proof only of facts tending to verify their allegations. The test of admissibility of evidence under the general issue was not relevance to a single factual question but whether as a matter of law the proposed evidence ought to constitute a good defense to the plaintiffs action (Nelson, Americanization of the Common Law, pp. 22-23).

11. See generally Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 307-10 (1966); L. Wroth and H. Zobel, eds., "Introduction" to Legal Papers of John Adams, vol. 1 (Cambridge: Belknap, 1965), p. xlvii.

12. This is at least my sense after an extensive, albeit unsystematic, search of Massachusetts courts from the mid-eighteenth century.

13. Wroth and Zobel, Legal Papers of John Adams 1: 230.

14. 1 H. & McH. 33 (Md. Provincial Ct. 1714). As recorded, the disposition of the case is ambiguous and subject to misinterpretation if read in isolation. Because the final entry in Broughton is "[j]udgment on the verdict of nonsuit," the case has been read to grant a compulsory nonsuit "by implication" (Henderson, Background of the Seventh Amendment, p. 301 n. 25). In fact, this literal reading of the entry is impossible: the verdict in Broughton was for the defendant, the plaintiff was the moving party, and a plaintiff could not nonsuit himself (see note 17, infra). Thus, the phrase "[j]udgment on the verdict of nonsuit" in Broughton probably indicates the entry of judgment for defendant, as dictated by the verdict, despite the plaintiffs motion in arrest of judgment on the ground that the jury's general verdict violated the agreement of the parties. An evaluation of the case found in the index to the volume further confirms this conclusion.

15. For a New York case in which a jury returned a general verdict after the parties had agreed on a special one, see Brown v. Clock (N.Y. Sup. Ct. 1695).

16. See Henderson, Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 300-301, 304-5 (1966).

17. Although a plaintiff could theoretically demur to a defendant's evidence (see Kissam v. Burrell, Kirby 326, 328 [Conn. Super. Ct. 1787]; Smith v. Steinbach, 2 Cai. Cas. 158, 171 [N.Y. 1805]; Lessee of the Proprietary v. Ralston, 1 Dall. 18, 18 [Pa. Sup. Ct. 1773]), he rarely advanced his interest by doing so.

18. Hopkins v. De Graffenreid, 2 S. C. L. (2 Bay) 441, 445 (1802). English authority existed for nonsuiting a plaintiff even after a jury had rendered a verdict in his favor if a nonsuit would have been appropriate prior to submission of the case to the jury. See, e.g., Abbot v. Plumbe, 1 Dougl. 216, 99 Eng. Rep. 141 (K.B. 1799); Bird v. Randall, 1 Bl. W. 373, 96 Eng. Rep. 210 (K.B.), reargued, 1 Bl. W. 387, 96 Eng. Rep. 218 (K.B. 1762).

19. The only states in which nonsuit cases have been found are Maryland, New Jersey, New York, Pennsylvania, and South Carolina (see Henderson, Background of the Seventh Amendment, p. 301). In Maryland, the earliest reported case occurred in 1802 (see Webb's Lessee v. Beard, 1 H. & J. 349 [Gen. Ct. 1802]).

20. As the Pennsylvania Supreme Court implied in Hurst v. Dippo, 1 Dall. 20 (Pa. 1774), the demurrer to the evidence as "disused" in most colonies. The most severe disadvantage was that the demurrant had to admit all the facts shown in the evidence against him and all adverse inferences that could be drawn from those facts.

21. 1 Burr. 390, 2 Keny. 53, 96 Eng. Rep. 1104 (K.B. 1757). For the English practice on rejection of jury verdicts, see generally Henderson, Background of the Seventh Amendment, pp. 311-12; Note on the Development of the Right to a New Trial in England, in J. Goebel and J. Smith, eds.. The Law Practice of Alexander Hamilton: Document and Commentary (New York: Columbia Univ. Press, 1964-81), vol. 3.

22. 3 Dougl. 137, 140-41, 99 Eng. Rep. 579, 580 (K.B. 1782).

23. James Sullivan to Elbridge Gerry, Dec. 25, 1779, Massachusetts Historical Society, quoted in Nelson, Americanization of the Common Law, p. 26.

24. Wroth and Zobel, Legal Papers of John Adams 1: 230.

25. Grand Jury Charge (1759), Cushing Papers, box 1, Massachusetts Historical Society, quoted in Nelson, Americanization of the Common Law, p. 26.

26. See Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 601 (1939).

27. See G. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: Univ. of North Carolina Press, 1969), p. 297.

28. Queen v. Makemie (1707), in P. Force, ed., Tracts ..., 4: 44, no. 4, quoted in Goebel and Naughton, Law Enforcement in Colonial New York, p. 666.

29. King v. Hughson (1741), Horsmander Papers, box 120, New-York Historical Society Library, quoted in Goebel and Naughton, Law Enforcement in Colonial New York, p. 667.

30. Pledger v. Wade, 1 S.C.L. (1 Bay) 35, 36 (1786).

31. Eveleigh v. Administrators of Stitt, 1 S.C.L. (1 Bay) 92, 92 (1789). See also Liber v. Executors of Parsons, 1 S.C.L. (1 Bay) 19 (1785).

32. Commonwealth v. Garth, 3 Leigh 761, 773, 30 Va. 825, 838 (General Ct. 1831) (Leigh's amicus curiae brief). See also Nelson, Americanization of the Common Law, p. 26.

33. 3 U.S. (3 Dall.) 1, 4 (1794).

34. See Pateshall v. Apthorp, Quincy 179 (Mass. 1765); Bromfield v. Little, Quincy 108 (Mass. 1764); Hanlon v. Thayer, Quincy 99 (Mass. 1764); De-rumple v. Clark, Quincy 38 (Mass. 1763); Jackson v. Foye, Quincy 26 (Mass. 1762); Cooke v. Rhine, 1 S.C.L. (1 Bay) 16 (1784).

35. In one Pennsylvania case, the reporter noted that "[t]he Court were unanimous and clear in their opinions" (Boehm v. Engle, 1 Dall. 15, 16 [Pa. 1767]). We may infer that such unanimity was worthy of mention.

36. See, e.g., Coursey v. Wright, 1 H. & McH. 394 (Md. Provincial Ct. 1771); Joce's Lessee v. Harris, 1 H. & Mc.H. 196, 197 (Md. Provincial Ct. 1754); Crow's Lessee v. Scott, 1 H. & Mc.H. 182, 184 (Md. Provincial Ct. 1751).

37. See text at notes 21-22, supra.

38. Quincy 553 (Mass. 1761). On the new trial motion in Massachusetts, see also Nelson, Americanization of the Common Law, pp. 27-28.

39. Wittner v. Brewster, Kirby 422, 423 (Conn. Super. Ct. 1788). In addition, see Carpenter v. Child, 1 Root 220 (Conn. Super. Ct. 1790); Pettis v. Warren, Kirby 426 (Conn. Super. Ct. 1788); Taylor v. Geary, Kirby 313 (Conn. Super. Ct. 1787); Wickham v. Waterman, Kirby 273 (Conn. Super. Ct. 1787); Woodruff v. Whittlesey, Kirby 60 (Conn. Super. Ct. 1786).

40. Howe, Juries as Judges of Criminal Law, p. 591.

41. Keech's Lessee v. Dansey, 1 H. & McH. 20, 21 (Md. Provincial Ct. 1704).

42. Smith's Lessee v. Broughton, 1 H. & McH. 33 (Md. Provincial Ct. 1714). See note 14, supra. But see Miller's Lessee v. Hynson, 1 H. & McH. 84 (Md. Provincial Ct. 1734), where the jury attached an erroneous conclusion of law to its special factual findings. Under these circumstances, the court set the verdict aside and ordered a new trial.

43. Reverend James Maury sued in Parson's Cause to collect that portion of salary which the defendant, through Patrick Henry, claimed was barred by an act of the House of Burgesses. The court instructed the jury that the burgesses' act, which had been subsequently disallowed by the Privy Council, was void ab initio and hence that the plaintiff deserved his full salary, but when the jury awarded damages of one penny, the court denied Maury's motion for a new trial on the ground that the verdict contradicted the evidence (James Maury to John Camm, Dec. 12, 1763, in J. Fontaine, Memoirs of a Huguenot Family [Baltimore: Genealogical Publishing Co., 1867], pp. 418-24 [discussing Parson's Cause (1763)]).

44. Waddill v. Chamberlayne, Jeff. 10 (Va. 1735). It is unclear, however, whether the court agreed with the jury or believed that it lacked the power to dismiss a jury verdict.

45. Reported in S. Pennypacker, Pennsylvania Colonial Cases (Philadelphia: R. Welsh, 1892), p. 117. See Testimony of Judge Edward Tilghman, in Report of the Trial of the Honorable Samuel Chase (New York: Da Capo Press, 1970), p. 27.

46. Anonymous, 1 Dall. 20, 20 (Pa. 1773).

47. Lessee of Albertson v. Robeson, 1 Dall. 9 (Pa. 1764). In Boehm v. Eagle, 1 Dall. 15, 16 (Pa. 1767), the reporter said that the "jury was conformable to [the court's] opinion." And in Lessee of the Proprietary v. Ralston, 1 Dall. 18, 19 (Pa. 1773), the reporter plainly implied that the jury was determining the law when "[a] verdict passed for the plaintiff, by which the sense of the jury was that the non-performance of conditions of settlement, did not void the grant." Cf. Hurst v. Dippo, 1 Dall. 20, 21 (Pa. 1774).

48. Steel, qui tam v. Roach, I S.C.L. (1 Bay) 62 (1788); Bourke v. Bulow, 1 S.C.L. (1 Bay) 49 (1787); Pledger v. Wade, 1 S.C.L. (1 Bay) 35 (1786); Mounier v. Meyrey, 1 S.C.L. (1 Bay) 24 (1785). See also White v. McNeily, 1 S.C.L. (1 Bay) 11, 12 (1784), where the jury's apportioning of damages among joint tortfeasors "was at first doubted as a deviation from the old common law rule ... [that the] jury could not sever." The court, "upon mature consideration," sanctioned the verdict, but it is unclear whether the court recognized the jury's power to decide law or simply considered the jury's verdict a better rule.

49. Ga. Const. of 1777, sec. 411.

50. An Act for regulating and shortening the Proceedings in the Courts of Law, 1784 N.J. Laws, ch. 32, sec. 14. New Jersey's act prohibited trial courts from vacating jury verdicts but did make verdicts subject to reversal by the court of error.

51. N.Y. Sup. Ct, 1763.

52. See the statements of judges Jones and Livingston in "Report of the Case between Forsey and Cunningham," New-York Gazette; or, The Weekly Post-Boy, Jan. 31, 1765, at 1, col. 3, and at 2, col. 1; Cadwallader Colden to the Earl of Halifax, Dec. 13, 1764, in E. O'Callaghan, ed., Documents Relative to the Colonial History of the State of New York, vol. 7 (Albany: Weed, Parsons and Co., 1856), pp. 682-84.

53. Possible explanations for the New York Supreme Court's action in Forsey are (1) that the court did not consider the verdict to be against law or evidence and hence would not set it aside on that ground, or (2) that the court did consider the verdict to be against evidence but held the granting of a new trial under such conditions to be an act of discretion which it chose not to exercise in the instant case.

54. J. Kent, An Address Delivered before the Law Association of the City of New York (Oct. 21, 1836), in (pts. 1-2) 1 Colum. Jur. 110, 122, at 123 (1885).

55. Compare Goebel and Smith, The Law Practice of Alexander Hamilton 1: 60, 118, and W. Wyche, A Treatise on the Practice of the Supreme Court of Jurisdiction 2d ed., 1784 (New York: Arno, 1972), pp. 168, 176.

56. In the two cases of Wilkie v. Roosevelt, 3 Johns. Cas. 66 (N.Y. Sup. Ct. 1803); 3 Johns. Cas. 206 (N.Y. Sup. Ct. 1802), judges Thompson, Radcliff, and Kent ruled in favor of a new trial; Chief Judge Lewis and Judge Livingston dissented. The Wilkie juries clearly expressed their feelings on the issue of vacating verdicts by thrice defying the court's instructions; after the third trial the litigants accepted the jury's perverse verdict. The case is discussed in Goebel and Smith, The Law Practice of Alexander Hamilton 2: 228-31.

57. See Goebel and Naughton, Law Enforcement in Colonial New York, pp. 239-40, 278-79, 588-89, 666, 669; see, e.g., People v. Barrett, 1 Johns. 66 (N.Y. Sup. Ct. 1806).

58. See Goebel and Naughton, Law Enforcement in Colonial New York, pp. 278-79; see, e.g., People v. Townsend, 1 Johns. Cas. 104 (N.Y. Sup. Ct. 1799).

59. Z. Swift, A System of the Law of the State of Connecticut (New York: Arno, 1795-96), 1: 410, 2: 257-59.

60. Lyon v. Cobb (Bristol County Ct. of C.P. 1769), quoted in Nelson, Americanization of the Common Law, p. 28 (argument of counsel).

61. Quincy v. Howard (Bristol County Ct. of C.P. 1770), quoted in Nelson, Americanization of the Common Law, p. 28 (argument of counsel).

62. Wroth and Zobel, Legal Papers of John Adams 1: 230.

63. T. Jefferson, Notes on the State of Virginia, ed. J. Randolph (1853), p. 140.

64. Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794).

65. Kirby 426 (Conn. Sup. Ct. 1788).

66. Id., at 427.

67. Wroth and Zobel, Legal Papers of John Adams 1: 230.

68. Kirby at 427.

69. Wroth and Zobel, "Introduction," Legal Papers of John Adams 1: xlvii. Most extant eighteenth-century court records show that courts rarely met for terms exceeding several days and that they often disposed of more than 100 cases during those terms, many of them by jury verdicts.

70. See M. Horwitz, Transformation of American Law (Cambridge: Harvard Univ. Press, 1977), p. 28; Nelson, Americanization of the Common Law, p. 165; Swift, System of Law for the State of Connecticut 2: 257-59.

71. Between 1790 and 1820 courts in nearly every state for which evidence exists began to grant motions for new trials in civil cases where juries returned verdicts contrary to law, instructions, or evidence.

72. Under eighteenth-century law, jurors were selected by one of several largely random processes: they were chosen by lot from a list of freeholders, elected by the voters of the jurisdiction, or summoned by the sheriff from among the bystanders at court.

73. The one available local study indicates, in fact, that between one-fourth and one-third of all adult males served on juries. See Nelson, Introductory Essay: The Larger Context of Litigation in Plymouth County, 1725-1825, in D. Konig, ed., Legal Records of Plymouth County, 1686-1859, vol. 1 (Wilmington: M. Glazier, 1978), p. 25.

74. Cf. C. Williamson, American Suffrage (Princeton, N.J.: Princeton Univ. Press, 1960), pp. 20-39, which concludes that between one-half and three-fourths of all adult white males were qualified to vote in most localities in eighteenth-century America.

75. Virginia justices, for example, received neither salary nor fee for their services (Sydnor, Gentlemen Freeholders, p. 84). The fees paid to Massachusetts judges and judicial officers were not particularly high either (see Wroth and Zobel, "Introduction" to Legal Papers of John Adams 1: lxix-lxxi).

76. Freeholders' Appeal to the Governor, quoted in Sydnor, Gentlemen Freeholders, p. 33.

77. That local officials had to be compelled by law to serve evinces the lack of competition for many local offices, (see Nelson, Americanization of the Common Law, p. 38; cf. Greenberg, The Effectiveness of Law Enforcement in Eighteenth-Century New York, 19 Am. J. Legal Hist. 173, 174-86 [1975] [finding qualified men willing to serve as law enforcement officers was difficult]). At times, even legislative elections were not competitive (see Bonomi, A Factious People, p. 190).

78. See Greenberg, The Effectiveness of Law Enforcement, pp. 175-79; Nelson, The Legal Restraint of Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760-1775, 18 Am. J. Legal Hist. 7-9, 30-32 (1974).

79. Puritan communities prevailed, of course, in New England, as Anglican communities did throughout the South, but Dutch Calvinists established communities in New York. Quakers settled in Pennsylvania, and Baptists and Presbyterians scattered communities along the frontier. Other sorts of Protestant communities also existed, as well as Roman Catholic communities in Maryland and even a Jewish community in New York. See H. Grinstein, The Rise of the Jewish Community of New York, 1654-1860 (Philadelphia: Jewish Publication Society of America, 1945); H. Browne, Catholicism in the United States, in The Shaping of American Religion, eds. J. Smith and A. Jamison (Princeton, N.J.: Princeton Univ. Press, 1961), pp. 72, 74-75.

80. See Alexander Hamilton, Gentlemen's Progress, ed. C. Bridenbaugh (Chapel Hill: Univ. of North Carolina Press, 1948).

81. See C. Van Doren, Benjamin Franklin (New York: Viking, 1938), pp. 37-44.

82. C. Grant, Democracy in the Connecticut Frontier Town of Kent (New York: Columbia Univ. Press, 1961), pp. 28-103, discusses one example of the ease of settlement. In particular, Grant shows that in the twenty-two years following Kent's founding in 1738, 772 different men bought land in the town, 61 percent of whom took up residence (ibid., p. 56).

83. News of the different colonies' willingness to receive immigrants filtered back to Europe in vast quantities. See M. Hansen, The Atlantic Migration, 1607-1860 (Cambridge: Harvard Univ. Press, 1940), pp. 32-52; Conway, Welsh Emigration to the United States, in 7 Perspectives in American History 175, 185-88 (1973).

84. See D. Fox, Yankees and Yorkers (New York: New York Univ. Press, 1940), pp. 57-151.

85. See Hansen, The Atlantic Migration, p. 45. Until the middle of the eighteenth century, even the smaller and older colonies like Connecticut had free land on which new towns could be founded (see Grant, Democracy in the Connecticut Frontier Town of Kent, pp. 3-11).

86. See C. Nettels, The Emergence of a National Economy, 1775-1815 (New York: Holt, Rinehart, and Winston, 1962), pp. 38-40.

87. See Bonomi, A Factious People, pp. 24-28.

88. Pressure from London forced Massachusetts to treat Anglicans as a separate denomination exempt from religious taxation. See C. Bridenbaugh, Mitre and Sceptre: Transatlantic Faiths, Ideas, Personalities, and Politics, 1689-1775 (New York: Oxford Univ. Press, 1962), pp. 73-74.

89. The Navigation Acts, of course, prohibited trade between the colonies and French Canada. See note 2, supra.

90. For example, English authorities overrode Massachusetts's land-bank legislation. See J. Schutz, William Shirley, King's Governor of Massachusetts (Chapel Hill: Univ. of North Carolina Press, 1961), p. 40.

91. See Nelson, Americanization of the Common Law, p. 14.

92. See generally B. Bailyn, The Origins of American Politics (New York: Knopf, 1968); S. Katz, Newcastle's New York (Cambridge: Belknap, 1968), pp. 44-58; Schutz, William Shirley, King's Governor of Massachusetts.

93. See J. Hutson, Pennsylvania Politics, 1746-1770 (Princeton, N.J.: Princeton Univ. Press, 1972), p. 130; see Schutz, William Shirley, King's Governor of Massachusetts, pp. 37-40; see R. Brown, The South Carolina Regulators (Cambridge: Belknap, 1963), pp. 38-63.

94. See Hutson, Pennsylvania Politics, pp. 130-77; Schutz, William Shirley, King's Governor of Massachusetts, pp. 48-57, 62-63.

95. See Bailyn, The Origins of American Politics, pp. 64-65.

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