The Highest Jury in the Land?

In the United States the jury is often held up as the pinnacle of the judicial process.  Curiously though, the Supreme Court of the United States has only ever seated a jury in one reported case, Georgia v. Brailsford (1794) (there are two other known examples of the Court in this era seating juries in unreported cases, but none after 1797).

Admittedly, under Article 3 Section 2 of the Constitution, the Supreme Court only has original jurisdiction in cases involving foreign diplomats and cases where a state is a party.  But, under the Seventh Amendment, the Supreme Court is technically required to empanel a jury in any original jurisdiction case before it where a jury would have been required at common law.  This appears to not happen often, because most of the original jurisdiction cases seen by the Court have been equity cases that did not require a jury.  However, it is still remarkable both that in 225 years the Supreme Court has only had one reported jury trial, and that the jury trial in question occurred 220 years ago.

Georgia v. Brailsford is probably best known for Chief Justice Jay’s declaration to the jury “that on questions of fact, it is the province of the jury, on questions of law, it is the province of the Court to decide.  But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”   Through Jay’s above words Georgia v. Brailsford is in fact often held to have set up in the right of jury nullification in American courts. 

The case itself was not that remarkable.  Basically, during the Revolutionary War, Georgia passed a law confiscating the debts owed by Georgia citizens to aliens.  After the war two South Carolinians and a British subject who were owed a debt from a Georgia citizen sued to recover the debt.  The Court paneled a “special jury” who heard the arguments before the Court.   

After the arguments the Court gave its opinion of the law to the jury, telling them that in their opinion the Georgia law could not have confiscated the debts owed to the two South Carolinians.  With regard to the debt owed to the British subject the Court said that it was only sequestered while a state of war existed between the former American Colonies and Great Britain, that the debt always remained the property of the British subject, and that the debt should be returned to him now that a state of peace existed between the two countries.  Then Chief Justice Jay made the comment generally thought of as authorizing jury nullification, before sending the jury off to deliberate.   

After deliberating the jury agreed with the Court and ordered that the debt confiscated by Georgia be returned to all three original creditors.  

Today, apparently for reasons of practicality (which may also include a perceived impracticality of empaneling a jury), in those rare instances when the Court needs to determine matters of fact in an original jurisdiction case it appoints a “special master” who serves as a fact finder and reports what their investigation uncovered to the Court. 

While this system of “special masters” might be more convenient for the Supreme Court, one wonders whether or not this system itself may be unconstitutional, or at the very least against the spirit of the system authorized by the framers to allow juries to decide the original jurisdiction cases before the Supreme Court.  

In any case, it does not appear that the 220 year legal drought of no published Supreme Court opinions with jury verdicts will be ending any time soon.