The Vicinage Clause is a provision in the Sixth Amendment to the United States Constitution regulating the vicinity from which a jury pool may be selected. The clause says that the accused shall be entitled to an "impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law".U.S. amend. VI (emphasis added). The Vicinage Clause limits the vicinity of criminal jury selection to both the state and the federal judicial district where the crime has been committed. This is distinct from the venue provision of Article Three of the United States Constitution, which regulates the location of the actual trial.
The Vicinage clause has its roots in medieval English criminal procedure, the perceived abuses of criminal vicinage and venue during the colonial period (when trials for treason were being held in England rather than in the colony where the crime is alleged to have happened) and Anti-federalist objections to the United States Constitution. The clause is one of the few constitutional criminal procedure provisions that has not been incorporated to apply to proceedings in state courts, the other being the Grand Jury Clause of the Fifth Amendment.
The Clause has led to very little litigation, in part because of its overlap (as a practical matter) with the venue provision of Article Three and Rule 18 of the Federal Rules of Criminal Procedure. Further, with the exception of the Court for the District of Wyoming, whose district includes the portions of Yellowstone National Park in Idaho and Montana, no federal judicial district includes the territory of two or more states (except, historically, the District of Potomac, which existed from February 1801 to March 1802).
Background
English law during the Colonial period
The Oxford English Dictionary defines "vicinage" as "A number of places lying near to each other taken collectively; an area extending to a limited distance round a particular spot; a neighbourhood."Oxford English Dictionary, "Vicinage" (2d ed. 1989). The OED cites Thomas Fuller's Church History (1655): "King Ethelred . . . began the tryal of Causes by a Jury of twelve men to be chosen out of the Vicenage." According to Blackstone, in medieval England, the "vicinage of the jury" referred to a jury drawn from the relevant county.Williams v. Florida, 399 U.S. 78, 94 n.35 (1970) (citing 4 William Blackstone, Commentaries *350–51).
A 1543 statute of Henry VIII of England permits treason committed outside the "realm" to be tried "before such commissioners, and in such shire of the realm, as shall be assigned by the King's majesty's commission."35 Henry VIII, cl. 2 (1543). Parliament renewed the statute in 1769.Kershen, 1976, at 806. This law was used to try colonists accused of treason in England.16 Parliamentary History of England from Earliest Period to the Year 1803, at 476–510 (T. Hansard ed. 1813).
A 1772 statute of George III of the United Kingdom permits destruction of dockyards, magazines, ships, ammunition, and supplies committed outside the "realm" to be tried in any "shire or county within this realm".12 George III, cl. 24 (1772). A 1772 statute permitted capital crimes committed in Massachusetts to be tried in England or a neighboring province if "an indifferent trial cannot be had within" Massachusetts.14 George III, cl. 39 (1774).
Protests from the Revolutionary period The Virginia House of Burgesses condemned the renewal of the treason law on May 16, 1769 in the Virginia Resolves: [A]ll Trials for Treason, Misprison for Treason, and for any Felony or Crime whatsoever, committed and done in this his Majesty's said Colony and Dominion, by any Person or Persons residing therein, ought of right to be had, and conducted in and before his Majesty's Courts, held within the said Colony, according to the fixed and known Course of Proceedings; and that the seizing of any Person or Persons, residing in this Colony, suspected of any Crime whatsoever, committed therein, and sending such Person or Persons to Places beyond the Sea, to be tried, is highly derogatory of the Rights of British subjects . . . .Kershen, 1976, at 806; Blume, 1944, at 64–65.
The same resolution referred to the "inestimable Privilege of being tried by a Jury from the Vicinage."Journals of the House of Burgesses of Virginia, 1766–1769, at 214 (J. Kennedy ed. 1906).
The Declaration and Resolves of the First Continental Congress adopted on October 14, 1774, resolved: That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.1 Journals of the Continental Congress 69 (1904).
On October 26, 1774, the Continental Congress approved an address to the people of Quebec, drafted by Thomas Cushing, Richard Henry Lee, and John Dickinson, arguing that: [One] great right is that of trial by jury. This provides, that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses . . . .1 Journals of the Continental Congress 107 (1904).
The United States Declaration of Independence (1776) accuses King George III of "transporting us beyond seas to be tried for pretended offences". (U.S. 1776).
Drafting of the Constitution The New Jersey Plan contained a provision that: "[N]o person shall be liable to be tried for any criminal offense, committed within any of the United States, in any other state than that wherein the offense shall be committed . . . ."Kershen, 1976, at 808. The proposals of Alexander Hamilton and Charles Cotesworth Pinckney were similar. The Committee of Detail and Committee of the Whole amended this language and included it within Article Three, Section Two, Clause Three. Article III provides: "The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed."U.S. Art. III, § 2, cl. 3. This provision received almost no debate in the Constitutional Convention.
The omission of a vicinage right from the United States Constitution was among the objections of the Anti-federalists to the ratification of the Constitution.Crawford v. Washington, 541 U.S. 36, 49 (2004) (citing R. Lee, Letter IV by the Federal Farmer (Oct. 15, 1787), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 469 (1971)). James Madison explained the omission of a vicinage clause in the Virginia Ratifying Convention as follows: It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.Williams, 399 U.S. at 94 n.35 (quoting 3 M. Farrand, Records of the Federal Convention 332 (1911)).
Virginia ratified the Constitution, with a proviso that a Bill of Rights, including a right to "trial by an impartial jury of his vicinage", be added by amendment.Kershen, 1976, at 816–17. North Carolina adopted the same proviso as Virginia, but refused to ratify the Constitution in its absence. New York and Rhode Island ratified the constitution with similar provisos as Virginia (but, in the case of Rhode Island, the Sixth Amendment had already been sent to the states for ratification).Kershen, 1976, at 817 & n.54. The ratifying provisos of Massachusetts did not include a vicinage right; a proviso including a vicinage right was considered and rejected in Pennsylvania.Kershen, 1976, at 817.
Drafting of the Clause
House
James Madison's (A-VA) original draft of the jury provision of the Sixth Amendment provided: The trial of all crimes (except in cases of impeachment, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . . provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.1 Annals of Cong. 435 (1789).
Madison intended this language to replace Article Three, Section Two, Clause Three, rather than be appended to the Constitution.Kershen, 1976, at 818–19. The Committee of Eleven of the House amended Madison's language as follows: The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when on actual service in the time of war, or public danger,) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites . . . . [B]ut if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same State; and if it be committed in a place not within a state, the indictment and trial may be at such place or places as the law may have directed.1 Annals of Cong. 759 (1789).
Aedanus Burke (A-SC) proposed that "vicinage" be replaced by "district or county in which the offence has been committed".Kershen, 1976, at 821. Richard Henry Lee (A-VA) argued that "vicinage" was better, "it being a term well understood by every gentleman of legal knowledge". Rep. Burke's amendment was defeated. As amended by the Committee of Eleven, this language passed the House. The Committee of Three, undertaking the task of transforming the amendments to the body of the Constitution into a separate Bill of Rights, moved the language to Article X and deleted the language concerning crimes not committed within a state.Kershen, 1976, at 821–22.
Senate The Senate debated the Bill of Rights from September 2 to September 9 and returned a version to the House on September 10.Kershen, 1976, at 822. The Senate deleted every clause from the House version of the Sixth Amendment, with the exception of the grand jury indictment clause.Senate Journal, Sept. 4, 1789, 1st Cong., 1st Sess., at 71. A motion to restore the House wording failed.Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., at 77.
Little is known about the Senate debate due to the illness of Senator Samuel Maclay whose journal is a key source for the proceedings of the Senate during the first Congress.Williams, 399 U.S. at 94–95 & n.38. A September 14, 1789 letter from Madison to Edmund Pendleton reports: