The language of the law. Part Latin, part Anglo-Saxon, all confusing.It was Wednesday, October 24, 1770. The place was Boston, Massachusetts. British Captain Thomas Preston was about to go on trial, charged with issuing the order to fire that resulted in five deaths in what became known as the Boston Massacre. He was defended by John Adams and Josiah Quincy Jr., while the prosecution team consisted of Samuel Quincy (older brother of defense lawyer Josiah) and Robert Treat Paine.
It was an odd case in many ways. The Loyalists didn’t want Preston prosecuted at all, but they did so in the name of the Crown. The Patriots wanted Preston convicted of murder, but they defended him vigorously in what they hoped would showcase colonial justice.
But the one thing that wasn’t unusual in any way about that trial was the inability to field enough jurors from the panel called to court for that session of the Superior Court of Judicature. And that’s where Preston caught the break of his life: finding 12 jurors required seating five talesmen — and every last one of them was a merchant and a Loyalist. To put it mildly, the deck was stacked in Preston’s favor. Five days and many witnesses later, Preston was acquitted of all charges.1
The word talesman is sprinkled all over court records from colonial times forward. Drawn from the Latin tales de circumstantibus (such of the bystanders or such persons as are standing round2), it means a “person summoned to act as a juror from among the by-standers in the court.”3
The practice had its origins in 16th century England when the jury system was literally in danger of collapse because so few jurors could be secured for trials. In some cases, a tales was sought — an order to the sheriff to go out and find a number of men (usually eight or 10) to fill the jury panel.4 By statute enacted in 1543, either side in a civil case where there weren’t enough jurors could ask the court to seat enough of the bystanders to fill up the jury box.5 By the 1550s, talesmen were authorized in criminal cases as well.6
It was carried over through the common law into the colonies and talesmen are recorded in published court opinions in America starting in the late 18th century. In 1796 North Carolina, in a murder trial, the court described most of the jurors as “talesmen, summoned this morning since the sitting of the court.”7 In Maryland in 1809, talesmen were twice summoned on the request of the attorney for the State in a rape case before a jury could be seated.8 In Iowa, one court noted in 1864 that “when the requisite number of jurors cannot otherwise be obtained, the sheriff shall select talesmen to supply the deficiency.”9
Occasionally, the notion of the talesman was incorporated in statutory law as well. In Mississippi, for example, talesmen were provided for by law and the statute expressly provided that “tales jurors shall be entitled to the same per diem10 allowance as (regularly-called) jurors.”11 In Kansas, if there were’t enough grand jurors, the law allowed for talesmen even there.12
Talesmen were easy to come by in most jurisdictions. Court days were social events in early America. In addition to transacting whatever business folks had in town and stocking up on supplies, court days were times for horse races and gossip, for finding out the news, and for the pure entertainment of seeing who was suing whom.13
But that entertainment could come at the price of being dragged in as a juror, even if the person might otherwise be excused. An 1818 North Carolina case saw a port commissioner — who would have been excused from regular jury service — denied an exemption where he was snagged as a talesman. The court held that “in as much as no one can be summoned as a Talesman, except a by-stander at the court, no inconvenience can result to the community from compelling a person to serve in that capacity; for the very fact of his being a by-stander proves, that he has not then any official or professional engagements, which require his attention.”14 In other words, if he hadn’t been lollygagging around the courthouse and been doing his job, he’d have been excused.
Later statutes tended to require that the talesmen not be drawn from the bystanders at court but from the surrounding area at large. The concern was that some folks were basically serving as professional jurors, or that the bystander crowd would be packed with supporters of one side or the other. That was the law in effect in California in 1911 when an entire panel of talesmen was rounded up and standing by for the trial of the McNamara brothers for the dynamiting of the Los Angeles Times building, only to be discharged when the defendants entered a surprise guilty plea on the eve of trial.15
So if your ancestor shows up in a court record as a talesman, in the early years, chances are he was hanging around the courthouse when the sheriff came looking for jurors. In later years, he may have been rounded up from the general community when the well of potential jurors ran dry.
But don’t think the notion of talesmen has gone out the window, and don’t be surprised by a hand on your shoulder if you’re walking past a courthouse one day. Talesmen have been pressed into service recently as well — very recently — in Colorado in January 2008,16 in Vermont that same month17 and in Middlesex County, Ontario, Canada, as recently as January of this year.18
Just look at it this way… won’t your descendants have fun with your talesman service record?
- Stephen C. O’Neill, “The Summary of the Boston Massacre Trial,” Boston Massacre Historical Society (http://www.bostonmassacre.net/trial/index.htm : accessed 14 Mar 2012). ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 14 Mar 2012), “tales de circumstantibus.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1151, “talesman.” ↩
- William Blackstone, Commentaries on the Laws of England, Book the Third : Of Private Wrongs (Oxford : Clarendon Press, 1765-1769), 364-365; html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu/subject_menus/blackstone.asp : accessed 14 Mar 2012). ↩
- Clinton W. Francis, “The Structure of Judicial Administration and Development of Contract Law in Seventeenth-Century England,” 83 Columbia Law Review (Jan. 1983) 35-137, at 65-66. ↩
- John Proffatt, Treatise on Trial by Jury (San Francisco : Sumner Whitney, 1880), 192; digital images, Google Books (http://books.google.com : accessed 14 Mar 2012). ↩
- State v. Norris, 2 N.C. 429, 431 (1796). ↩
- Burk v. State, 2 H. & J. 426 (Md. App. 1809). ↩
- Emerick v. Sloan, 18 Iowa 139, 140 (1864). ↩
- By the day, for each day. Merriam-Webster Online Dictionary, “per diem” (http://www.merriam-webster.com/ : accessed 14 Mar 2012). ↩
- Chapter XL, § 71, in V.E. Howard and A. Hutchinson, compilers, The Statutes of the State of Mississippi of a Public and General Nature (New Orleans : E. Johns & Co., 1840), 499; digital images, Google Books (http://books.google.com : accessed 14 Mar 2012). ↩
- Kansas General Statutes 1868, chapter 82, § 74. ↩
- See generally Christopher Geist, “The Emergence of Popular Culture in Colonial America,” CW Journal (Spring 2008), online edition (http://www.history.org/foundation/journal/index.cfm : accessed 14 Mar 2012). And see “Daily Life and Work: Court dates and church meetings,” Colonial North Carolina, Learn NC (http://www.learnnc.org/lp/editions/nchist-colonial/cover : accessed 14 Mar 2012). ↩
- State v. Hogg, 6 N.C. 319, 320 (1818). ↩
- See generally “M’Namara Talesmen Excused by Court,” New York Times, 21 Oct 1911; online reprint (http://query.nytimes.com/mem/archive-free/pdf?res=F10616FC3E5D16738DDDA80A94D8415B818DF1D3 : accessed 14 Mar 2012). And see the photograph of the talesmen panel at “The McNamara Brothers Trial,” Clarence Darrow Digital Collection, University of Minnesota Law Library (http://darrow.law.umn.edu/ : accessed 14 Mar 2012). ↩
- “Emergency jury duty leaves people stunned, calling their bosses,” 9News.com (http://www.9news.com : accessed 14 Mar 2012). ↩
- Patrick J. Lyons, “Surprise! Instant Jury Duty for Shoppers,” New York Times, online, 11 Jan 2008 (http://www.nytimes.com : accessed 14 Mar 2012). ↩
- Jame Sims, “Jury corral empty, posse hits the trail,” London (Ont.) Free Press, 18 Jan 2012 (http://http://www.lfpress.com : accessed 14 Mar 2012). ↩
I don’t know where you come up with ideas for posts, but they’re good ones.
I was called for jury duty last summer and although that days jury pool numbered about 45 people, by the time they finally seated 12 jurors and two alternates there were only five of us left. I remember thinking to myself they may have to go out in the hall and grab some “volunteers”. Now I found out it CAN be done. WOW!
It absolutely can be done — and is done!
Thank you for this, yet another fascinating post, fun to read!
Thanks so much for the kind words!