For much of American history, the right to a jury meant a right to 12 jurors. The 12-juror requirement was inherited from centuries of English common law, carried to America, and adopted by the 13 original colonies. But in 1970, the Supreme Court did away with the requirement, reasoning that trial courts should have leeway to call in fewer members of the community for jury service. The justices, writing in 1970, noted that they did not find anything in the records of the Constitutional Convention to suggest that the founders cared, one way or another, about the number of jurors impaneled for trial.
In the intervening decades, constitutional historians have uncovered a wealth of archival documents revealing what 18th century Americans really thought about the question. The founders cared, to put it mildly. When the Constitution was ratified, if you wanted to signal someone was receiving second-class justice—that constitutional protections didn’t apply—you gave them fewer than 12 jurors. Fewer jurors meant you weren’t worthy of the dignity of a constitutional trial.
Nowhere is that understanding clearer than in the so-called “slave courts” of the Carolinas. These courts originated in the 1690 Act for the Better Ordering of Slaves and operated for more than 150 years outside constitutional protection, explicitly denying enslaved people the trial rights that white Americans enjoyed. And here’s what’s revealing: enslaved people facing trial in these courts received as few as three and as many as five jurors—but crucially, never 12.
Courts of the era were explicit about what that meant. A trial with fewer than 12 jurors was, in the words of South Carolina Chief Justice John Belton O’Neall, “not a trial by jury, in any sense in which the words have ever been legally used.”
Slave courts tried criminal cases against both enslaved and free Black Americans. Surviving records indicate that the most frequently tried cases involved charges of petty larceny or disorderly conduct, with an average sentence of “fifty lashes at the whipping post”—sometimes administered in weekly installments when the pain proved unbearable in a single session. But these courts also wielded the power to impose the death penalty. When they did, taxpayer money compensated slaveowners for what amounted to government destruction of their property. Perversely, many slaveowners actually initiated capital cases against the people they enslaved, preferring execution and taxpayer compensation to the continued ownership of anyone they deemed “recalcitrant.”