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222 Years Later, Justices Rehear the Supreme Court's Only Jury Trial

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By Casey C. Sullivan, Esq. on September 20, 2016 1:59 PM

The 1794 Supreme Court case of Georgia v. Brailsford doesn't get much attention these days. It's not one of the Court's best cases, or worst cases. It didn't play a major role in shaping modern practice and it doesn't have much to do with today's legal disputes. Most lawyers have probably never heard of it. If they have, it is likely because Brailsford is the only Supreme Court jury trial ever reported.

But in the early days of the republic, and of the Court, Brailsford was a landmark case, one dealing with international law, the role of the new states in the federal government, and even the legitimacy of the Court. So yesterday, on the case's 222nd anniversary, three Supreme Court justices gathered in the same Philadelphia courtroom where the case was originally heard to reenact the dispute.

An Early Supreme Court Case and a "Very Big Deal"

The marks of the early republic are all over Brailsford: the dispute arose over loans made by a British merchant two years before the War of Independence; the hearing was held in the City Hall of Philadelphia, now Old City Hall, where the Supreme Court sat between 1791 and 1780; only four justices were present, out of the six then on the Court; and the Court, as it sometimes did during its early years, empaneled a jury, though Brailsford was the only jury trial ever reported out.

"In 1794, this case was a very big deal," Chief Justice John Roberts said at the reenactment, according to SCOTUSblog's Mark Walsh. The chief justice was joined by Justices Breyer and Alito, who took part in the reenactment as part of the United Kingdom-United States Legal Exchange, organized by the American College of Trial Lawyers.

Revisiting the Rare Supreme Court Jury

In 1774, Samuel Brailsford loaned money to several American colonists, who became just Americans shortly thereafter. When the war had ended, Brailsford attempted to collect, but the state of Georgia intervened, claiming its right to the debt.

To decide the case, the Court empaneled a jury of merchants, adopting a practice established in Britain by Lord Mansfield just a few decades earlier. Indeed, Brailsford's language about the role of the jury and its ability to decide questions of law, not just fact, has been taken up by advocates of jury nullification. Those same comments would, 101 years later, cause Justice Harlan to wonder, in Sparf v. United States, whether Brailsford had simply been misreported.

Where in 1794, the arguments in Brailsford lasted four days, yesterday's reenactment took a more expedited approach. The attorneys reenacting the arguments were given ten minutes each. As in the 1794 hearing, their job was to sway both the justices and the jury. The reenactment brought together a mock jury fitting for the occasion, including two members of the Supreme Court of the United Kingdom, as well as a host of right honorable lords and ladies from throughout the British judiciary.

As in the original case, the Chief Justice acknowledged that the jury had "a right to take upon yourselves to judge of both [law and fact], and to determine the law as well as the facts in controversy," quoting Chief Justice John Jay. And they did, deciding like the merchant jury 222 years before them that Brailsford was entitled to recover his debt.

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