Trial by jury as a fundamental right of Englishmen had been extended to Virginia by the charter of 1606, but Tudor and early Stuart England had seen a trend to limit the use of juries in favour of more summary forms of justice. The resulting uncertainty in the mother country over the use of juries crossed the Atlantic with the settlers. In the Chesapeake colonies, with their thinly scattered population, it was difficult and expensive to assemble a jury, and for much of the seventeenth century juries tended to be dispensed with, even in civil cases. The magistrates of Puritan New England, whose reverence for biblical law exceeded their reverence for the English common law, showed a strong preference for summary justice - a preference not, however, shared by Rhode Island, whose settlers had moved there from the Bay colony in the hope of escaping from the rigours of magisterial justice, and who not unnaturally possessed a special fondness for juries. In the second half of the century, however, as freemen became increasingly resentful of magisterial domination, and as fears grew about threats to liberty under the later Stuarts, juries became an increasingly established feature of public life throughout the New England colonies, to the point that civil juries came to be used far more extensively than they were in England itself.
Jury service, the holding of local office, voting for, and membership in, an assembly - all this exposed settlers in British America to a considerably wider range of opportunities in the management of their affairs than were available for the creole population of Spanish America. Spaniards found such active popular participation in matters of government and justice both alarming and odd, to judge from the reactions of one of them whose ship ran aground on Bermuda in 1639. `As in England,' he noted, `authority here is placed in the hands of the humblest and lowest in the Republic, and not entrusted to educated persons having an aptitude for office ... The Judges and Governor appoint twelve persons of the Republic and instruct them to consider all matters and documents in the causes that have been heard in their presence, and to give their verdict. These twelve persons then leave the Sessions house and are conducted by one of the other officials to the church and are there left locked in with orders not to be let out until they have decided the cases.'
20 January 2013
Trial by Jury in the American Colonies
From Empires of the Atlantic World: Britain and Spain in America 1492-1830, by John H. Elliott (Yale U. Press, 2006), Kindle Loc. 2595-2608: