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Wednesday, May 6, 2015


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USC Professor Points Out: Magna Carta Didn’t Confer Right to Jury




Does the right to trial by jury in the United States have its roots in the Magna Carta?

The prevailing understanding, among the populace, is that it does. But a professor of law and history at the USC Gould School of Law says, in essence, that the notion is poppycock.

His view, I’ve found, is a mainstream one among academics.

The professor is Dan Klerman. His discourse took place last Thursday during a panel discussion staged by the Los Angeles County Law Library at its main location, the downtown Mildred L. Lillie Building.

Klerman participated in one of two back-to-back panel discussions on the Magna Carta, held in connection with what the library terms “Law Week,” its extended commemoration of “Law Day.” May 1 was designated as “Law Day” in a 1958 presidential proclamation by Dwight D. Eisenhower, with that designation echoed by a joint resolution of Congress in 1961 proclaiming an annual observance.

This year—which marks the 800th anniversary of King John affixing the royal seal to the Magna Carta at Runnymede on June 15, 1215—the Law Day theme was “Magna Carta: Symbol of Freedom Under Law.”

(I’ve never attended any more fascinating MCLE panel discussions than those two last week. Thanks to efforts of the library’s relatively new executive director, Sandra Levin, the library has, in a short time, become a dynamic institution, no longer merely a static repository of books.)

Klerman clerked for then-United States Supreme Court Justice John Paul Stevens (since retired) in 1993-94. The professor’s stance, as it happens, contradicts an observation by his erstwhile mentor in U.S. v. Booker (2005) 543 U.S. 220, the most recent federal high court opinion alluding to the right to trial by jury having been embodied in the Magna Carta.

Stevens says in that opinion:

 “Framers of the Constitution understood the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury in criminal cases….The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta.”

In McKeiver v. Pennsylvania (1971) 403 U.S. 528, the Supreme Court rejects the contention that a juvenile offender is entitled to trial by jury. In a dissent, Justice William O. Douglas (joined by Justices Hugo Black and Thurgood Marshall) quotes, with approval, a Family Court judge in Rhode Island as saying, in a written ruling granting a juvenile’s motion for a jury trial, that “the child, the same as the adult, is in the category of those described in the Magna Carta”—that is, “freemen.”

An appendix to Douglas’s dissent contains large portions—nearly 2,900 words—from the Rhode Island judge’s ruling, including his response to the contention that if a juvenile were judged by his “peers,” it would mean a panel comprised of juveniles. “The phrase ‘judgment of his peers’ means at common law, a trial by a jury of twelve men,” the ruling says, adding: “ ‘Judgment of his peers’ is a term expressly borrowed from the Magna Charta, and it means a trial by jury.”

In Glasser v. U.S. (1942) 315 U.S. 60, Justice Frank Murphy declares: “Since it was first recognized in Magna Carta, trial by jury has been a prized shield against oppression….”

Justice William Strong, in Strauder v. State of West Virginia (1879), 100 U.S. 303, quotes Blackstone as saying, in his Commentaries: “The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter.”

“When Magna Charta declared that no freeman should be deprived of life, etc., ‘but by the judgment of his peers or by the law of the land’ it referred to a trial by twelve jurors,” Justice Marshall Harlan asserts in Thompson v. Utah (1898) 170 U. S. 343.

A short-lived California Supreme Court opinion contained similar language. A Jan. 2, 1987 concurring opinion by then-Chief Justice Rose Bird (who was about to leave office, along with two colleagues, following voter rejection in November) says:

“The use of juries composed of lay citizens is of Anglo-Saxon derivation, originating with the signing of the Magna Carta in 1215.”

Her opinion did not stand; a rehearing was granted after Bird and her two cohorts exited the court.

A 2013 opinion of the Alabama Supreme Court says the Magna Carta “guaranteed a right to trial by jury in both civil and criminal matters”; a New Jersey Supreme Court that same year embraces an earlier decision of the court which terms trial by jury “as ‘one of the most cherished’ [rights] and tracing its roots back to the Magna Carta”; a 2011 Ohio Supreme Court decision quotes an earlier case as hailing trial by jury as “one of the most fundamental and long-standing rights in our legal system, having derived originally from the Magna Carta.”

President Lyndon B. Johnson’s message to Congress on April 28, 1966, includes these words:

“Trial by a freely selected jury of one’s peers is not a new right. It has its roots in the Magna Carta.”

The USC law professor prefaces his argument that no such roots exist with this recitation:


“In 1215, the barons revolted against [King] John. And Magna Carta was essentially a peace treaty between the barons and the king. The barons agreed to be loyal to King John and King John agreed not to do the sort of things that angered the barons in the first place.”

The right to trial by jury is generally thought to be traceable to Chapter 39 of the charter, which reads (as translated from Latin, in which it was written):

“No freemen shall be taken or imprisoned or disseised [deprived of land] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

Klerman declares that where the document “says ‘law of the land,’ it’s referring to the new court that King John…had set up, the common law court.”

He continues:

“The other aspect—judgment of the peers—that meant the old feudal court, because in the old feudal court, the judges were fellow vassals of the same lord. So in a feudal court, it wasn’t the lord that would judge the vassals, but the vassals would judge each other.”

The barons, Klerman explains, “were the king’s vassals.”

(John W. Parker’s 1844 book, “The Lord and the Vassal,” explains that vassals were “feudal holders under [lords], who held their lands under certain prescribed conditions,” with “obligations of service” imposed upon the vassals and “corresponding duties of protection” imposed on the lords.)

“It is important to recognize,” Klerman says of the judging of barons by other barons, that “this is not trial by jury.”

Chapter 39, he declares, “was a specification that deprivation of land or liberty had to be through judgment of law, but it didn’t specify the method of proof that would be used in this law court—and, in fact, jury trials would not have been the most common method that would have been used.”

He notes:

“Jury trials, at this point, were unknown in criminal cases. Criminal cases were resolved by ordeal or battle.”

Klerman says that while jury trials did take place in some civil cases, this was a “new procedure,” rarely utilized. (And, as will be discussed in a future column, these juries took quite a different form from those today.)

By no means is Klerman the first to challenge the notion that the roots of the jury trial system stretch to the Magna Carta; what he related is well established among historians, though not broadly known.

Scottish lecturer and historian William Sharp McKechnie’s “Magna Carta: A Commentary on the Great Charter of King John” was first published in 1905, and a significantly revamped version was issued in 1914. The latter edition says:

“One persistent error, adopted for many centuries, and even now hard to dispel, is that the Great Charter guaranteed trial by jury.”

A footnote explains: “The source of this error was the identification of jury trial with the judicium parium [judgment of peers] of c. 39.”

Pollock & Maitland’s 1909 treatise on “The History of English Law Before the Time of Edward I” comments that “there can hardly be a doubt” that Chapter 39 of the Magna Carta merely “expresses a claim by the barons for a tribunal of men of baronial rank which shall try even the civil causes in which barons are concerned.”

In the November, 1914 issue of the Michigan Law Review, North Carolina Chief Justice Walter Clark remarks in an article entitled, “Some Myths of the Law”:

“The much vaunted doctrine that trial by jury was provided for in Magna Carta is without the slightest foundation in fact.”

He declares: “What the barons really stipulated for was special privileges for themselves.”

A future U.S. Supreme Court justice, Felix Frankfurter, teamed with Thomas G. Corcoran, later a key advisor to Presidents Franklin Roosevelt and Lyndon Johnson, in writing “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury,” published in the June, 1926 issue of the Harvard Law Review. The article says:

“That the modern institution of trial by jury derives from Magna Carta is one of the most revered of legal fables. The belief is [quoting a 1910 historical essay] an obstinate example of ‘the inevitable habit of reading later ideas into earlier institutions.’ ”

In a footnote, the authors take Harlan to task for his 1898 observation in Thompson (mentioned above), saying that the “erroneous identification of judgment of peers with trial by jury can be found far back in legal history,” and scoffing that Harlan’s utterance came “long after scholars had exposed this ancient error.”

Two U.S. Supreme Court opinions—both by Justice Byron White—draw attention to the rejection by scholars of the traditional view.

In Duncan v. State of La. (1968) 391 U.S. 145 (holding that states may not deny jury trials where a defendant faces possible imprisonment of as long as two years), White writes for the majority in saying:

“[B]y the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta.”

Standing alone, that language gives no indication that the “impressive credentials traced by many to Magna Carta” were in doubt. However, a footnote points out: “Historians no longer accept this pedigree,” citing Pollock & Maitland.

In the 1970 case of Williams v. Florida,  399 U.S. 78 (spurning the theory that juries need necessarily be comprised of 12 members), White repeats that any declaration that the Magna Carta spawns a right to trial by jury is an assertion of “fact that historians now dispute.” He cites Pollock & Maitland, as well as the article by Frankfurter and Corcoran.

White’s allusions to historians’ current view were apparently overlooked by Stevens when crafting his 2005 opinion in Booker. Too, in Walton v. Arizona (1990) 497 U.S. 639, in a dissenting opinion, Stevens quotes White’s utterance in the body of his opinion in Duncan, but neglects to draw attention to the rather significant footnote.

California Supreme Court Justice Stanley Mosk also missed the footnote in Duncan. In the 1969 case of In re M., 70 Cal.2d 444, he cites Duncan for the proposition that the right to a jury trial is traceable to the Magna Carta.

It is clear, upon examination, that antecedents of trial by jury existed in England long before 1215; that the Magna Carta did not mention “jury” let alone create a right to trial by one; and that the jury, as we know it, was created well after 1215.

How did the modern jury actually come into existence?

Are other rights generally believed to be derived from the Magna Carta—rights such as due process and imposition of taxes only by popular consent—actually traceable to that document signed at Runnymede? Or are these conceptions also founded on myths?

More later.


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