23 Wash. & Lee L. Rev. 1 (1966)
Jury Trial of Crimes

handle is hein.journals/waslee23 and id is 3 raw text is: Washington and Lee Law Review
Member of the National and Southern Law Review Conferences
Volume XXIII                  Spring 1966                     Number i
Lxwis F. POWELL, JR.*
No freeman shall be taken or imprisoned or disseized or outlawed
or banished or in any way destroyed-except by legal judgment of his
peers or by the law of the land. These ringing words, written into
Magna Carta 750 years ago, have often been referred to as the his-
torical basis for our right to trial by jury.
It matters little today that the words were not written for this
purpose or that trial by jury as we know it did not exist in 1215. Great
traditions are often more important than historic facts. Lord Coke, in
the debates on the Petition of Right in 1628, attributed the right to
trial by jury to Magna Carta. It has since been viewed as the corner-
stone of that right throughout the English speaking world.
Today, however, there are some who think that trial by jury in
criminal cases is outmoded. Although most critics have only urged
its abandonment in civil cases,' the growing use of administrative
procedures and of the contempt power to enforce law directly sug-
gests that trial by jury may be facing a period of critical re-examina-
*B.S. 1929, LL.B. 1931, Washington and Lee University, LL.M. 1932, Harvard
University. President, American Bar Association 1964-65. This article is based on
a talk made on July 15, 1965, at Sun Valley, Idaho, before the Ninth Circuit Judi-
cial Conference. George C. Freeman, Jr., of the Virginia Bar, contributed signifi-
cantly to the preparation of this article.
'For a recent discussion of the civil jury system see Sacks, Preservation of the
Civil Jury System, 22 Wash. & Lee L. Rev. 76 (1965).
2Serious efforts have been made in recent times to avoid or to limit Constitu-
tional provisions stating that the trial of all crimes shall be by jury. For example,
the federal government argued, unsuccessfully, that civilians accompanying the
armed forces overseas in peacetime should be tried by courts-martial since jury trials
would be inexpedient. See Kinsella v. Singleton, 361 U.S. 234 (196o); Reid v. Covert,
354 U.S. '. (1957)- There has also been a steady expansion in recent years of the
contempt power of the courts and the imposition of more severe penalties for
contempt. See, e.g., United States v. Barnett, 376 U.S. 681, 739-53 (1964) (Gold-
berg, J., dissenting).

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