Trial by Jury: A Bulwark of Our Liberties, or a Loathsome Social Disease?

Among the junk mail that keeps arriving in our P O Box we found a flyer advertising an upcoming trial advocacy program that prominently features a bon mot by Thomas Jefferson: 

“I consider trial by Jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” 

Sure enough, that sentiment is a hallowed principle of American law and the stuff of civics lessons. The Seventh Amendment to the Constitution preserves the right to trial by jury as it existed in Britain in the late 18th century when American colonies gained their independence and the Constitution was adopted. But for all the familiar lofty prose about the virtues of trial by jury, once you find yourself in an eminent domain case, whether direct or inverse, all of a sudden, the idea of entitlement to a trial by jury is viewed by the courts as utterly preposterous. Oh sure, a number of state constitutions do provide for a trial by jury in eminent domain, but those state constitutional provisions were adopted to grant condemnees the right to jury trials that was denied them by judges.

If you examine pertinent decisional law you will quickly discover that state courts disfavor the right to trial by jury in eminent domain and inverse condemnation cases and construe this right narrowly. Notwithstanding its state constitutional origins, courts hold that unlike juries in other cases, eminent domain juries are limited to deciding only questions of value, rather than all issues of fact as in other cases. In eminent domain cases tried in federal courts there is no right to a trial by jury at all — not even on the issue of value. Under Federal Rule of Civil Procedure 71A, federal courts may deny jury trials and submit valuation issues to Commissioners. 

So the question is: how come? How do the federal courts evade the plain language of the Seventh Amendment that preserves the right to a trial by jury, which they observe in all other cases? 

If you seek enlightenment in treatises on eminent domain, all you get is confusion.  The preeminent multi-volume treatise, Nichols on Eminent Domain tells us (Vol. 1A, § 4.105[1]) that the procedure whereby the British government acquired privately owned land for public works, did not use common law juries, so there is nothing to preserve. According to Nichols, only jury-like bodies similar to our commissioners were used in a procedure known as “inquest of office.” The Nichols treatise cites Vol. 2 of Blackstone’s Commentaries at p. 259 in support of its position, but if you look up Blackstone, is says nothing of the sort. The inquest of office procedure had nothing to do with compulsory purchase – it was a medieval procedure used in cases of escheat or forfeiture of feudal estates. Similarly, the writ of ad quod damnum referred to by Nichols had nothing to do with government land acquisition. On the contrary, it was a procedure which facilitated relinquishment of land from public to private use. 

The other leading American eminent domain treatise, Lewis Orgel’s Valuation Under Eminent Domain (Vol.2, at 268-271), disagrees with Nichols. It says that juries were used in British eminent domain (or as the Brits call them, compulsory purchase) cases, and were not abolished until after World War I, when the Acquisition of Land (Assessment of Compensation) Act was enacted in 1919..  

So who is right?  

If you check British law, Orgel gets the nod. The British Court of Appeal case, De Keyser’s Royal Hotel v. The King, (1919) 2 Ch. at 222, inquires into British legal history as far as trial by jury in compulsory purchase cases is concerned, and concludes: 

“The second period [of compulsory purchase litigation] begins in 1708.  It appeared to be fully recognised that the land of a subject could not be taken against his will, except under the provision of an Act of Parliament. Accordingly, in 1708, was passed the first of a series of Acts to enable particular lands to be taken compulsorily. By the statute of 7 Anne c. 26, which recites that it was necessary to enlarge and strengthen the fortifications of Portsmouth, Chatham and Harwich, and to purchase land for the purpose, and that some proprietors desiring to make an unreasonable gain to themselves might insist on extravagant rates, provision is made for the appointment of Commissioners to survey the lands to be purchased, and in default of agreement with the owners, the true value is to be ascertained by a jury.’” (Emphasis added). 

As for inverse condemnation, government takings of privately held land fell under the rubric of trespass since Britain lacks a written Constitution containing a Takings Clause like our Fifth Amendment. Therefore inverse takings were tried to juries, the same as other trespass cases. The problem of sovereign immunity – how did those Brits get to sue the King? – was solved by a procedure known as a Petition of Right whose existence was noted by Chief Justice Marshall in Marbury v. Madison. Using this procedure, the aggrieved subject supplicated His Majesty for relief in the respectful form of a petition, to which the King always replied: “Let right be done,” whereupon the matter was referred to the courts for a decision on the merits, tried to a jury. 

If you are interested in this topic you will find it discussed by Prof. Keith Davies (Britain’s foremost treatise author) in his paper, The Jury in Eminent Domain, ALI-ABA Program on Eminent Domain, Jan. 4-6, 2001, Coral Gables, Florida, ALI-ABA publication SF54. Also see Eric Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Northwestern L. Rev. 144 (1996) 

So the bottom line of it all would appear to be that the prevailing American rule whereby condemnees are not deemed entitled to trial by jury as a matter of constitutional law, in spite of the provisions of the Seventh Amendment, is ahistorical and stands on feet of clay. As Lewis Orgel put it over a half century ago, eminent domain is the dark corner of the law. And so it is. So what else is new?

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