“The Great Bulwark of . . . Political Liberties”: The Decline of Jury Power and the Rise of Slave Interests in the Early American Republic
It is no stretch to say that “jury” and “fact finder” have become nearly synon- ymous terms in the language of modern American law. Yet this has the unfortunate side effect of obscuring an essential part of the jury’s institutional history—specifically, that until the end of the nineteenth century, juries were regularly called on to decide questions of law as well as fact. Though the decline of the jury’s law-judging role no doubt owes itself to several factors, one in particular remains relatively unexamined: slavery.
More than any other issue, slavery defined divisions in the early American republic. Fugitive slave laws, in particular, sowed discord between slaveholders and antislavery interests. It should therefore come as no surprise that citizens of northern states began leveraging the one popular element of the judicial system they had at their disposal to complicate the enforcement of those laws: the jury.
In this Note, I intend to show that the decline in power and purview of the American criminal jury is directly correlated with the rise of slave interests in the federal government. To be clear, I do not endorse the authority of juries to act as judges of legal questions; indeed, there are extremely compelling arguments against taking such a position today. Nor do I argue that the decline of the American jury’s power to consider questions of law was caused solely by the issue of slavery. Instead, I contend that a temporal correlation between the decline of the criminal jury and the rise of slave interests is a likely factor in the loss of jury power in the federal courts. . . . I will argue that these overwhelmingly positive views of criminal juries grew out of local and state concerns about an all-powerful federal judiciary. Juries were seen as a check against federal power, and specifically against federal judges who would be unaccountable to the communities in which they would sit. Juries, empowered to decide questions of fact and law in criminal cases, would serve to protect local standards of justice.
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