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111 W. Va. L. Rev. 791 (2008-2009)
The True Right to Trial by Jury: The Founders' Formulation and Its Demise

handle is hein.journals/wvb111 and id is 797 raw text is: THE 'TRUE' RIGHT TO TRIAL BY JURY: THE
FOUNDERS' FORMULATION AND ITS DEMISE
Jon P. McClanahan*
1.      IN TRODUCTION   ................................................................................... 791
II.     THE BRITISH INFLUENCE ON THE EARLY AMERICAN RIGHT TO
T RIA L  BY  JURY  .................................................................................... 796
A.      Historical Evolution of the Role of the Jury in Britain .......... 796
B.      Tension between Britain and Colonial America
Regarding Administration of Justice ..................................... 799
III.    FOUNDERS' CONCEPTION OF THE RIGHT TO TRIAL BY JURY ............. 803
A.      Prevailing Theories on the Nature of the Right to Trial by
Jury  ........................................................................................  804
B.      The Founders' Conception of the Right of the Jury to
D ecide  Issues  of  Law  ............................................................. 808
IV.     EROSION OF THE JURY'S RIGHT TO DECIDE ISSUES OF LAW IN
THE  NINETEENTH   CENTURY ............................................................... 813
A.      Early Recognition of the Right to Decide Issues of Law ........ 814
B.      Tracing the Rapid Demise of the Jury's Right to Decide
Issues  of  Law   .......................................................................... 819
V.      AN INEVITABLE CONCLUSION? EVALUATING THE DEMISE OF
THE RIGHT OF THE JURY TO DECIDE ISSUES OF LAW IN LIGHT
OF FOUNDERS' CONCEPTION OF THE JURY ......................................... 824
I. INTRODUCTION
[S]hould the melancholy case arise that the judges should give
their opinions to the jury against one of these fundamental [con-
stitutional] principles, is a juror obliged to give his verdict gen-
erally, according to this direction, or even to find the fact spe-
cially, and submit the law to the court? Every man, of any feel-
ing or conscience, will answer, no. It is not only his right, but
his duty, in that case, to find the verdict according to his own
best understanding, judgment, and conscience, though in direct
opposition to the direction of the court.'
*   Jon P. McClanahan, Judicial Clerk for the Honorable Roger L. Gregory, United States Court
of Appeals for the Fourth Circuit; Adjunct Professor, University of North Carolina School of Law.
I thank Richard Myers for his invaluable advice and mentoring throughout the preparation of this
Article.

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