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8 which presumptively entitled defendants to a jury of the “neighbourhood” where the crime was allegedly committed. 4 W. Blackstone, Commentaries on the Laws of England 344 (1769) (Blackstone). As a practical matter, this right imposed a venue requirement: trials needed to be held at the location where “the matter of fact issuable” allegedly occurred to allow the “Inhabitants whereof” to serve on the jury. 1 E. Coke, Institutes of the Laws of England §193, at 125 (1628) (Coke).

Both of these requirements were well settled by the founding. See, e.g., Rex v. Harris, 3 Burr. 1330, 1334, 97 Eng. Rep. 858, 860 (K. B. 1762) (Wilmot, J.) (opining that there was “no rule better established” than “ ‘that all causes shall be tried in the county, and by the neighbourhood of the place, where the fact is committed’ ”). Smith contends, however, that the Constitution not only incorporated this right but “elevated” it “to an even higher stature in American law,” and that this enhanced right favors his preferred remedy. Brief for Petitioner 21. The historical record, however, does not support this argument.

There is no question that the founding generation enthusiastically embraced the vicinage right and wielded it “as a political argument of the Revolution.” Prior to the Revolution, Parliament enacted measures to circumvent local trials before colonial juries, most notably by authorizing trials in England for both British soldiers charged with murdering colonists and colonists accused of treason. The