ABSTRACT
It is a striking paradox that the global development of jury trial is largely attributable to the spread of British imperialism, both in its ideological and territorial aspects. This has had profound consequences for contemporary attitudes to the jury. Blackstone’s account of the jury as ‘the glory of English law’ (1809, p.379) was enthusiastically echoed by the British colonists who carried his Commentaries with them into the remotest territories. To the colonised, on the other hand, the jury often represented little more than arbitrary authority and racism. The roots of this paradox lie in the concept of the jury promulgated by Blackstone, which essentially restricted jury service to the colonists themselves. This selectivity had a spectacular double benefit for British colonists. First it gave them direct, exclusive and unmediated control over local criminal justice, enabling them to assert their authority over both native peoples and other European settlers. Secondly it provided them with the powerful weapon of nullification over imperial legislation and, while palpably demonstrating their Englishness, it also permitted a wide measure of independence from the colonial authorities. In a colonial world in which settlers enjoyed little constitutional power over imperial legislation, jury service represented, as De Toqueville put it, ‘one form of sovereignty’ (cited in Alschuler and Deiss 1994, p.76) and a focus for their political aspirations. This habit of mind led many colonists to value free participation in the jury more highly than the right to vote. According to Jefferson:
Were I called upon to decide whether the people had best be omitted in the legislative or judiciary departments, I would say it is better to leave them out of the legislature. The execution of the laws is more important than the making of them (cited in Boyd 1958, p.283).
