23. The Jury and Consensus Government in
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."
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. 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. 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.
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, 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."
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 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.
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. But there is no evidence that special pleading was
widely used in colonial America, except perhaps in early eighteenth-century
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. 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
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. 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. 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." The Maryland Provincial Court
apparently shared that view, for after the jury in Smith's Lessee v.
Broughton 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
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.
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. 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."
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. The demurrer to evidence, though extant in five
states, similarly failed to keep cases away from the jury because procedural
disadvantages discouraged its use.
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 and Appleton v.
Sweetapple, 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," 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." 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." In Connecticut the court merely
summarized the opposing claims without commenting on the law involved in the
case, 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." 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,"
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." 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," while another jury was told "to give what they
thought reasonable" in "damages." 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.
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." 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, 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. 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.
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,
but most eighteenth-century American jurisdictions did not follow English
In Massachusetts Erving v. Cradock
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." The Massachusetts and Connecticut rule appears to
have been followed throughout New England.
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" 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. In Virginia the leading case was
the Parson's Cause, although an earlier
case had also declined to set aside a verdict which the defendant claimed was
contrary to the law.
The same rule also appears to have been followed in four other states,
although the evidence is somewhat less clear. In Proprietor v.
Keith, 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" —
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, 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. In Georgia the Constitution of 1777
barred judges from interfering with the jury's power to determine the
law, while New Jersey did the same by statute
in 1784. 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. 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. The apparent inconsistency between
the justices' statements and their action in Forsey can be resolved in
several ways, 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." 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, and as late
as 1800 judges did not fully agree that they could set aside a verdict against
law or evidence. In criminal cases, of course,
King v. Zenger established the power of juries to determine law as well
as fact, although convictions were set aside
in a few cases because juries misapplied the law.
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" in each case; that
the "Jury ha[d] a right to do as they please[d]"; and that "no verdicts ... [were] thrown
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." 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." 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."
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. 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,"
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." 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."
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. 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, the system
of jury law-finding began to disintegrate.
Although we have no direct evidence, most men probably did not desire to
serve as jurors. 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. 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.
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. Indeed, many men did not have
enough wealth and time even to participate in elections "without manifest
injury to their crops." As a result,
competition for local leadership positions was often understandably
slight, 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. 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
Second, colonial American communities differed tremendously. Religion
remained important in eighteenth-century life, and America could afford room
for almost any religious community. 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.
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,
while thousands of colonial Americans found the move from established towns to
the frontier not at all insuperable. 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. 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. The availability of land, 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, 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
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
or whether Americans would be free to trade with French Canada without
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. 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. While provincial political conflict commonly
occurred, it rarely involved important social issues. 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. 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.
Provincial political conflict may have been widespread, but as shrewdly
observant colonial political writers vehemently announced, it departed from the
ideal polity of consensus — 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
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.
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
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.
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,
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
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.
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
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:
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 
[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
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,
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.