Academic journal article The Historian

The Legacy of Forsey V. Cunningham: Safeguarding the Integrity of the Right to Trial by Jury

Academic journal article The Historian

The Legacy of Forsey V. Cunningham: Safeguarding the Integrity of the Right to Trial by Jury

Article excerpt

THIS IS THE STORY of a simple lawsuit that originated in the colony of New York in 1763. The case arose out of a dispute over the payment of a debt owed by one merchant to another. It was driven by the political ideology of a dedicated Tory lieutenant governor, who was opposed by those who were just as dedicated to the individual's right to trial by jury, a basic right under English common law. Soon, the simple lawsuit grew out of the control of the parties, as it took on constitutional proportions. In the end, it dovetailed with the Stamp Act Crisis and forced the question of the right to trial by jury to the forefront of the public political sphere, as this issue became a major part of the Stamp Act Crisis.

The Seventh Amendment of the U.S. Constitution provides that "[I]n all suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved." The value of this provision is guaranteed in the subsequent portion of the Amendment: "no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." This right to a jury trial had a long history in the English common law; some authorities argue that the right to trial by jury originated in the Saxon traditions. (1) It was formally accepted into the English tradition in the Magna Carta. (2) It was then transferred by the English kings to their North American colonies through the early charters, and the colonists soon began to appreciate the importance of this right. (3)

In the English tradition, the right to trial by jury had functioned to curb the abuse of political power by kings and the resulting infringement upon individual freedom. Similar events involving abuses of political power also occurred in the colonial New York historical experience. In 1707, Edward Hyde, Lord Cornbury, governor of the colony of New York, in an attempt to deny colonists their freedom of religion, ordered the prosecution of the Reverend Francis Makemie, an itinerant Presbyterian minister, for preaching without a license. Despite Cornbury's best efforts, the trial jury refused to convict Reverend Makemie, thus thwarting Cornbury's abuse of his political power. (4)

Twenty-eight years later, trial by jury once again stood as the buttress against the abuse of political power by a royal governor. In 1735, Governor William Cosby attempted to silence his critics by ordering the prosecution of John Peter Zenger, a printer, whose newspaper repeatedly published attacks upon the governor. Even though the grand jury refused to indict Zenger, the governor pressed his attorney general to pursue the prosecution by use of information. In the end, however, the trial jurors ended Governor Cosby's abuse by acquitting Zenger. (5)

But there was yet one more challenge to the right to trial by jury. The importance of this right--in particular, the tradition limiting the review of the decision of the jury--emerged from the American mind during the 1760s, as the early rumbling of revolutionary sentiments began to resound in the Province of New York. The challenge to this common law right came in the form of Forsey v. Cunningham and the Stamp Act Crisis of 1765. What follows is an examination of the forces and people who participated in Forsey and how that case and the Stamp Act came together to confirm the right to a trial by jury under American constitutional law.


The litigation between Thomas Forsey and Waddel Cunningham arose out of a quarrel over an unpaid debt. (6) The debt, in the amount of 150 [pounds sterling] sterling, was incurred on 27 December 1762 and on 5 February 1763. Cunningham, the representative of the creditor, stabbed Forsey, the debtor, on 29 July 1763, causing life-threatening injuries. (7) Both parties' respective versions of the facts were made public in a set of letters written by Forsey and Cunningham and published in the New York Gazette. …

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