Citizen
William Blackstone in his Commentaries on the laws of England, referenced what you speak, silence was actually used against the defendant, silence equated to guilt... We have come along way..
Not in until 1963 in Gideon V Wainwright did the Supremes rule that indigent defendants were entitled to counsel. Some 176 years after the Constitution was ratified.
I can only imagine how many innocent indigent folks were sent away for lack of proper counsel.
Regarding a jury of ones peers, said term is not found in the text of the 6th amendment, however a jury of ones peers, means by " fellow citizens"..
See Strauder v West Virginia (1874) Supreme Court...
The non- citizen could NEVER be tried by a jury of his peers, since he is indeed NOT A CITIZEN... Hence the reason I stated he should be tried by a panel of justices..
My .02
Regards
CCJ
This is where knowledge of history comes into play.
The Sixth Amendment dates from 1791. December 15th, if I recall.
But, trial by jury in English history goes back way, way further. And, if the reader will dig into it, he will see how, or perhaps more importantly, why it became a jury of his peers. No, not peers as in fellow citizens. Peers as in, "others who are not members of the government", and "not a member of a higher social caste wanting to keep a member of a lower caste in his place, or personally interested in maintaining a social status-quo." Who is left? Equals. Peers.
Roll the clock back to the late 1100's. Herny II wants to expand his royal power into the countryside. (Now, the implications of that is quite startling--the king's power was not unlimited?) So, Henry decided to send royal judges on circuit--eyres they were called. At that time, trial by battle, and trial by ordeal were the legal custom. Once a month or once a quarter (I forget), the Lord of the Manor held a sort of social business meeting for his serfs. One part of these gatherings was that this was time accusations were laid. Henry's plan was to offer the king's justice. Instead of trial by battle or ordeal, you could transfer jurisdiction of your case to the royal judge. But, you had to ask. It had to be by your consent.
As a side note. I am convinced that your consent to be tried by a government judge was the forerunner of pleading to an indictment. Pleading to an indictment was so massively important to English government in the late 1500's, that defendants were tortured into pleading. Now, watch closely. Government didn't care
what you plead, only
that you plead. Government didn't torture the defendants to plead guilty. Government didn't care whether you plead guilty or not guilty. They wanted the plea itself. Now, I ask myself, how could a defendant's refusing to plead be so important or so dangerous to government, that government would resort to torture to get a plea? Why not just try him anyway? Oh, something legally very, very important to government was in play there. And, no, I don't know what it was. If anybody does, or can even give an uncertain clue, please chip in.
Back to Henry's royal judges. So, the judges, being all new at this--never tried before--had to sorta improvise. So, they hit on the idea of getting a number of people who knew of the matter to tell the judge. This evolved over time into a large number of people (20-23) making a formal accusation. Think: forerunner to today's grand jury. Then came a sub-group of that bunch rendering a verdict. Plenty of room for trouble there. A fellow who served on that early version of a grand jury, who then served on the early version of a jury wasn't likely to change his mind. If he indicted the defendant, he was likely to convict the defendant. So, it went across history. Refinement added to reform added to rectifying an opportunity for injustice.
Skip ahead to June of 1215. A bunch of seriously annoyed barons have backed King John into a corner in a meadow along the Thames river a bit south of Windsor castle. Magna Carta. "Sign this paper, your majesty, or we're gonna have a new king around here." John signed. Or, at least affixed his seal. Now, Magna Carta was re-issued, and re-confirmed a number of times in the next, oh, hundred and fifty years. I don't know whether the original contained what I am about to mention, or whether a later re-issue. But, one of those contained a guarantee of "...trial by the country..." Some say that means trial by a jury of one's peers. Lysander Spooner, for example, in his essay
Trial by Jury draws that conclusion. Other's seem to hold "trial by country" means tried for a violation of the common law, meaning this was a way of saying the king could not just make up laws that violated the common law. According to this view, jurors would also decide whether the alleged offense was within the king's power to make into an offense--was it just?--or was the king's law a violation of English common law/legal custom dating to the exit of the Romans? According to this view, Magna Carta was acting as a brake on the king enforcing his own made up laws.
I don't see why it can't be both. King John was, in fact, one of the four son's of Henry II, the youngest. (One of his older brothers was Richard the Lionheart.) So, by 1215, we've only moved a few decades and, if I recall, two kings--Henry, Richard the Lionheart, and younger brother John. No reason at all that "trial by country" is not a reference to the early, and still evolving jury system we know today.
No, I don't think
peers means fellow
only citizen. I think peers had an evolving meaning, as complex as the evolution of the jury system. I think we cheat ourselves of the lessons of history if we fail to seek out those lessons. In the end, I think the concept encapsulated in
jury of his peers--since we don't have a caste system anymore--is: somebody who isn't government. We can add other criteria--impartiality, minimum IQ, whatever. But, in the end, the crucial criteria is
not government.
