Creating the Judicial Branch

The Anglo-American Legal Tradition

The Jury Trial

One reason the subject of the judiciary provoked little discussion at the Convention is because the delegates were merely affirming the traditional role the courts had always played in upholding justice in Britain and the colonies. For instance, the Virginia Plan had ensured the trial by jury from the outset, and its necessity was never questioned by anyone. Dickinson used the jury trial as an example of the wisdom that could only be gained through experience: “It was not reason that discovered, or ever could have discovered, the odd, and, in the eyes of those who are governed by reason, the absurd mode of trial by jury. Accidents probably produced these discoveries, and experience has given a sanction to them” (Aug. 13). Well before the United States Constitution was adopted, the sanctity of the jury trial had been enshrined in all of the state constitutions. The right to be tried by a jury of one’s peers was a development in legal theory which had proven so effectual at protecting individual rights that by 1787 no American dared question it.