Guest Essayist: Steven H. Aden

“He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.”

Judges are powerful people. Those who preside over criminal courts have the power to fine or imprison convicted defendants, up to limits set out by statute. Depending on their roles, other judges have the power to impose fines for civil wrongs, or to decide weighty matters involving marriage and the custody of children. Lesser judicial offices include administrative judges who preside over disputes relating to compensation for injured workers, social security payments for the injured and elderly, or labor disputes between workers and employers. In light of the power they wield over our everyday lives, who can hold judges accountable? Today and tomorrow, Constituting America considers how the Framers of the Declaration of Independence answered this question, and how their answer led to a system of judicial independence that has become the envy of the world.

To King George and the English at the time of the American Revolution, the sources of authority for all Englishmen, wherever they were in a widening world, were the Crown first, and through him, the Parliament. The Declaration’s “Indictment” of King George III levied two charges that turned on the English government’s refusal to accommodate the Colonists’ demand for courts and judges that were based in the Colonies and answerable for their decisions to the people of the Colonies. First, the Signers of the Declaration charged, “He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” In other words, the King had stymied attempts to establish Colonial courts with any real authority. Criminal trials by jury were available, but often only in England, a daunting journey. After all, it was over 3,000 miles by slow sailing vessel to London, a trip that took four to eight weeks, depending on the wind, and was always hazardous. At the end of that, would a jury comprised of Londoners truly be a “jury of one’s peers?” And what about the right to call witnesses in one’s defense – the foundation of due process? If they couldn’t make the dangerous and lengthy trip with the accused, he was out of luck.

The right to trial by jury, which had been guaranteed in the English Bill of Rights since 1689 (and, in fact, included in the Magna Carta in 1215), was the spark that lit the flame of the Revolution. The right to a jury trial had been recognized in every Colonial charter. The trial of newspaperman John Peter Zenger in 1735 for “seditious libel,” based upon publishing a column critical of the Royal Governor of New York’s decision to remove a judge from the bench, resulted in a verdict of “not guilty” from a jury of Zenger’s peers. The resulting freedom to publish even controversial opinions led to a growing clamor in the Colonies for other liberties. In response, the British Crown began to restrict both the autonomy of Colonial courts and the right to a jury trial.

Two of the “Intolerable Acts” of 1774, enacted by Parliament and approved by King George to punish the Colony of Massachusetts for the Boston Tea Party, included stringent limits on the right to a jury trial. The Massachusetts Government Act granted the royal governor the power to choose judges, and county sheriffs – also appointed by the governor – could appoint jurors, resulting in Royal control over the colony’s judicial system. The Act for the Impartial Administration of Justice granted the governor the power to move a trial to another colony or to Great Britain if he determined that a “fair” trial could not be had at that location, thereby eliminating the right to a trial by one’s peers.

Things were coming to a head. Future president John Adams thundered, “Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” And Thomas Jefferson, the principal author of the Declaration, would later write to essayist Thomas Paine (Common Sense), “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.”

In the next grievance, we’ll consider the second charge against King George and his judges: that he had made judges “dependent on his will alone” for their jobs and salaries.

Steven H. Aden serves as Chief Legal Officer & General Counsel at Americans United for Life. Aden joined Americans United for Life in August 2017, overseeing all legal operations of America’s most effective pro-life organization. Aden is a highly experienced litigator, having appeared in court against Planned Parenthood and the abortion industry dozens of times and appointed by the attorneys general of six states to defend pro-life laws. A prolific author and analyst on sanctity of life issues and constitutional jurisprudence, Aden is admitted to the bars of the District of Columbia, Virginia, and Hawaii (inactive), and is a member of the bars of the U.S. Supreme Court and numerous federal circuit and district courts. He has practiced law since 1990 and earned his J.D. (cum laude) from Georgetown University Law Center and his B.A. from the University of Hawaii.


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