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

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

Description

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 official 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 wellbeing 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 jury.

Source Publication

The Bill of Rights: Original Meaning and Current Understanding

Source Editors/Authors

Eugene W. Hickok, Jr.

Publication Date

1991

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

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