Except for lawsuits for tax refunds, jury trials are forbidden in lawsuits against the federal government.1 In Damsky v. Zavatt,2 the government sued in New York to foreclose its tax liens on property transferred from a delinquent taxpayer’s wife to her husband and other third parties. The transferees sought a jury trial under the Seventh Amendment of the U.S. Constitution, which provides that where the value in controversy exceeds $20, the right to a jury trial in suits at common law “shall be preserved.”
The Damsky court, relying on U.S. Supreme Court Justice Joseph Story’s conclusion in Parsons v. Bedford3 that the Constitution’s framers did not intend to extend the right to a jury to equitable causes of action, held that foreclosures are an equitable remedy, and the transferees were not entitled to a jury trial on the foreclosures and the related issue of the wife’s tax liability.4 At the time of the American Revolution, there had been jury trials for tax debts in the Court of the Exchequer, so the husband was entitled to a jury trial on his separate tax liability.
JURY TRIALS DURING THE AMERICAN REVOLUTION
Prior to the American Revolution, colonial tax cases were bench trials in admiralty courts.5 In England, however, jury trials in tax cases were held in regular courts. The difference angered the colonists, as is revealed by draft instructions written by John Adams to Boston’s representatives in general court published in the New York Journal on June 29, 1769:
In the 41 Sec. of the statute of the 4th of George III, we find that “all the forfeitures and penalties inflicted by this,
or any other act of Parliament, relating to the trade and revenues of the British colonies or plantations in America … may be prosecuted, sued for and recovered in any Court of Admiralty, in the said colonies.”
[This] hardship is more severe as we see in the same page of the statute, and the section immediately preceding, “that all penalties and forfeitures which shall be incurred in Great Britain, shall be prosecuted, sued for, and recovered in any of his Majesty’s Courts of Record in Westminster, or in the Court of Exchequer in Scotland” … a contrast which stares us, in the face! A partial distinction that is made between the subject in Great Britain, and the subject in America! The Parliament in one section, guarding the people of the realm, and securing to them, the benefit of a trial by jury and the law of the land, and by the next section depriving Americans of those important rights. Is not this distinction a brand of disgrace upon every American? A degradation below the rank of an Englishman? And, with respect to us, a repeal of the 29th Chapter of Magna Charta? “No freeman shall be taken or imprisoned or disseized of his freehold, or liberties, or outlawed or exiled, or any otherwise destroyed, nor will we pass upon him, nor condemn him, but lay lawful judgment of his peers, or the law of the land.”
[T]he formidable powers of these courts, and their distressing course of proceedings, have been severely felt within the past year, many of their fellow citizens have been worn out with attendance upon them, in defense against information for extravagant and enormous penalties. And we have the highest reason to fear from past experience that if no relief is obtained for us, the properties and liberties … and the morals too, of this unhappy country, will be ruined, by these courts, and the persons employed to support them.6
THE LEGEND OF THE JURY TRIAL
As you’ll soon see, jury trials got a foothold in England in the 12th century, supplanting the use of religious ordeals which relied on divine intervention as a mechanism for resolving disputes. It was the final chapter in the centuries of influence of religion as a source of legal authority.
Laws of the Creator
Ancient laws were deemed to have come from one of many gods. At the top of the obelisk of Hammurabi’s Code (1810-1710 B.C.E.) is an engraving portraying Hammurabi being handed his laws from the sun god Shamash while seated on a throne. Laws sourced to a god carried the implication that violators would be punished by the god. Below is a table of ancient published laws and the gods to which they were attributed.7
Attributing laws to a god effectively avoids the debate over whether a particular government action is proper. In 1873, the U.S. Supreme Court ruled that the Constitution did not prevent the State of Illinois from barring a married woman from practicing law.8 Justice Joseph P. Bradley argued in his concurring opinion that “[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things and cannot be based upon exceptional cases.”9 Years later, as an advocate before the Supreme Court, Ruth Bader Ginsburg argued in Frontiero v. Richardson10 against a military rule that a husband could not qualify as a dependent of his wife, an Air Force officer. In Ginsburg’s brief, she referenced the Bradwell statement about the law of the Creator, stating that “[t]he method of communication between the creator and the jurist is never disclosed.”11
Draco’s Jury Trials in Greece
Jury trials were first developed in Greece in 623 B.C.E. by Draco, an Athenian legislator. He used jury trials to stop the blood feuds between families who reciprocated by killing each other off one by one. He created a court system of jury trials for the categories of intentional killings, unintentional killings, justified killings, killings of slaves, and killings of foreigners.12 Juries consisted of 51 men — 12 from each of Greece’s four main tribes and three of the nine archon magistrates.13 Conviction for intentional killing could lead to death or eternal exile and confiscation of property.14
Rome Went to Greece for its Laws
In the fifth century B.C.E., Rome sent 10 envoys – the Decemviri – to Athens to study its laws.15 In 449 B.C.E, the Decemviri drew up and published in Rome a list of laws from Greece known as the Twelve Tables.16 More than 300 years later, rules under the Lex Acilia Repetundarum were developed for trying certain crimes. The rules included securing a relatively small body of jurors to determine the guilt or innocence of a person charged with crimes of misconduct while holding provincial public office. Many provisions in the Lex Acilia Repetundarum were taken from Greek law, including having judges preside over the proceedings.17
Jury of Peers
The right to a jury of peers in the 1215 Magna Carta originally appeared in a 1037 edict of German Emperor Conrad II in the Consitutio de feudis18 in an attempt to quell a war between Aribert, the archbishop of Milan, and the landed class called the vavasours.
Fighting had begun in 1035 when the land of one of the vavasours was confiscated.19 Conrad arrived in 1037 and held a town meeting where the vavasours complained of many legal proceedings in which Aribert had offended them. Conrad ordered Aribert under house arrest, but one of his servants pretended to be Aribert asleep in his bed under the covers while Aribert fled on horseback.20
The Study of Law
In 530 B.C.E., Roman Emperor Justinian ordered creation of the Pandects, a digest of writings from jurists clearly setting forth statements of Roman law.21 Seventeen jurists were selected to cull the most valuable passages from caselaw without repetition, inconsistencies, contradictions, or statements that were obsolete.22
Justinian aim was to remedy the diffusion, indefiniteness, and uncertainty created by judges who were interpreting the laws as they saw fit.23 Justinian gave the Pandects the force of law and, to prevent the same diffusion and uncertainty from reoccurring, forbade everyone from writing commentaries about what had been set forth in the Pandects.24 He also ordered the creation of a multivolume set of institutes for “youth desirous of studying the law.”25
The Pandects’ influence waned over time; once thought lost forever, they were accidentally rediscovered in Pisa in 1070 and provided the basis for the first law school at the University of Bologna in 1088.26 Graduates appear to have traveled to England, bringing with them principles of Roman law, including using juries to resolve disputes.
Jury Trials in Medieval England
Around 1100, the feudal trial system in England consisted of rituals based on the intervention of God to resolve disputes. Trials started with parties at a community meeting where someone was accused of wrongdoing. After preliminary statements, the judge would decide not who was right but the ordeal that would be used to resolve the dispute and, where appropriate, who would carry the burden.27
Three options were available to resolve disputes:
Compurgation, which consisted of a specified number of sworn statements in a specific form regarding the accusation and, later, the character of the party making the claim or denial, all subject to God’s approval or punishment;
Physical ordeal, a physical trial for serious crimes where a witness was put to his innocence by some miracle of God, like floating in a pool of water while tied up; and
Battle, where God gave might to the right. Originally used for all disputes, it was later limited to serious crimes.28
English Kings and the Catholic Church
In 1100, England’s government consisted of the king’s council, from which the king issued laws. Initially, the council consisted of the king and his barons, subtenants who provided military support in the event of war. Henry I added legal scholars called curiales to his governing council. 29
In 1164, the Constitutions of Clarendon provided for 12 men from the countryside to resolve disputes over property rights. In 1166, Henry II instructed judges to take jurisdiction over certain serious crimes by sworn inquest (the grand jury). He also offered sworn inquest as an alternative to battle (the trial jury).30
In 1107, Henry I and Pope Paschal II signed the Concordat of London.31 The Concordat contained three provisions: bishops selected by a pope had to be approved by the crown and swear fealty to the king;32 tax revenues of the bishoprics would be paid to the church; and revenues would not be paid to the church until a bishop was approved by the king.33 In 1166, Henry II created the writ of utrum, which transferred jurisdiction over title to church land away from ecclesiastical courts to the king’s secular courts.
In 1179, Henry II appointed 21 itinerant judges to run royal juries in four circuits throughout the country.34 They handled jury trials requested by the writs de odia atia, a claim that an accusation made against a person was unwarranted and the result of malice. Trial by ordeal could be avoided by filing the writ and paying a fee to the king. A jury of recognitors would be empaneled to render a verdict on whether the accusation was justified. The process amounted to a jury trial on the underlying cause of action.35
By 1215, the year the Magna Carta was introduced, trial juries existed in most civil matters; some years later, the grand jury and trial jury system existed in all criminal cases under English common law.36
Preclusion of jury trials in tax cases at the time of the American Revolution — and today — indicates a concern about their results. In a statute of limitations case, the Supreme Court explained that the government can choose to protect its revenues by limiting access to the courts.
Government has the right to prescribe the conditions on which it will subject itself to the judgment of the courts in the collection of its revenues. If there existed in the courts, state or national, any general power of impeding or controlling the collection of taxes or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary.37
The Supreme Court’s statement implies that, on balance, collection of revenue is more important than court review of government action in the collection of revenue. Long term, that balance should be the other way around.