The palladium of justice: origins of trial by jury

The Palladium of Justice: Origins of Trial by Jury. Leonard W. Levy. (Chicago: Ivan R. Dee, 1999. Pp. 114. $18.95.) Professor Levy's work on civil liberties in early America has immeasurably enriched our understanding that Founding Fathers' conceptions of judicial process and a fair trial differ dramatically from our own. But this tiny book, lacking footnotes and original research, will at best serve those who want to celebrate evolution of right to a trial by jury without considering complications of exercising this right in specific instances. The Palladium of Justice would have fit well into American celebration of George Bancroft and others in mid-nineteenth century, for it is Whig history at its most unembarrassed. We have on page three a sharp juxtaposition of accusatorial system of justice in British Isles with approach taken on Continent. By no coincidence, writes Levy, the liberties of subject were to thrive in England and be throttled on Continent(3). After a quick survey of feudal modes of justice, temporary introduction of inquisitorial methods during Tudor-Stuart period, triumph of jury's right to decide law as well as facts in libel cases such as those of Bushell and Zenger, Levy applauds guarantee of jury trial in early state and United States Constitutions and wraps it all up with a discussion of 1804 New York case of Harry Croswell, allowing jury to decide criminality of an alleged libel and permitting truth as a defense if published with good motives for justifiable ends (105). What is most interesting is what is left out or brushed aside during this march of progress. The harshness and class bias of English juries and sentences and law in eighteenth century is conspicuous by its absence. The case of William Penn and jury which acquitted him is glorified. The myriad less prominent unfortunates who were shuffled through trials much like defendants in inner-city courtrooms today go unnoticed. Levy only mentions in passing couple of hundred offenses that crown, and later colonies and states, prosecute before a magistrate without a jury. Vagrancy, assaults, drunkenness, swearing, disorderly conduct, smuggling, and violations of liquor laws and Sabbath laws were among them (72). Needless to say, these offences, for which convicted could be whipped, fined, or sentenced to labor, were vast majority in which those outside elite encountered law. …