Free Press v. Fair Trial: Supreme Court Decisions since 1807

By Douglas S. Campbell | Go to book overview

Burr v. U.S.

Aaron Burr v. The United States of America Docket No. 14692g 25 Fed. Cas. 49 ( 1807)


Background

Unlike all other cases in this book, the Burr decision did not come to the United States Supreme Court through an appeal from a lower court. Rather, it constitutes a decision by Chief Justice John Marshall in his role as judge in a circuit court of original jurisdiction, a role assigned to him by the Judiciary Act of 1789. Yet, without doubt, Marshall's rulings on a pretrial motion in this case are commonly considered the first constitutionally important statements defining impartial jurors.

No one would question the assertion that the early post-Revolutionary American legal establishment, such as it was, based its notion of an impartial jury on William Blackstone's revisions of Sir Edward Coke's seminal definition in The First Part of the Institutes of the Laws of England, or A Commentary upon Littleton, not the Name of the Author only, but of the Law Itself ( 1656). By the beginning of the nineteenth century, Coke's definitive work was in its thirteenth edition. To understand the background of Marshall's rulings, therefore, it is necessary first to look at Coke and Blackstone.

Coke, in section 234 of what is popularly known as Coke upon Littleton, says an impartial juror has three "properties":

First, he ought to bee dwelling most neere to the place where the question is moved. Secondly, he ought to bee most sufficient both for understanding, and competencie of estate. Thirdly, he ought to bee least suspicious, that is, to be indifferent as he stands unsworne: and then hee is accounted in the law liber et legalis homo; otherwise he may be challenged, and not suffered to be sworn. (156A)

The most famous of these conditions Coke repeats twice in section 234: "He that is of a jury, must be. . . also one that has such freedome of mind as he stands indifferent as hee stands unsworn" (155B).

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