subject: England's Trial by Jury from 9th Century [print this page] England's Trial by Jury from 9th Century England's Trial by Jury from 9th Century
The English King Ethelred the Unready set up an early legal system through the Wantage Code of Ethelred, one provision of which stated that the twelve leading minor nobles of each small district were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.
A jury is a group of persons selected from the community that is charged with hearing a legal case and delivering a verdict on it. Juries are used in both civil and criminal cases, and they base their decisions on testimony and other evidence that is presented at trial.
In the 12th century, Henry II took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "Grand Jury" through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal this sometimes involved tying up the miscreant and putting them in the river. If they floated they were innocent and if they sank they were guilty and killed.
The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became a pretty explicit right in one of the most influential clauses of Magna Carta, signed by King John. Article 39 of the Magna Carta read: It is translated thus by Lysander Spooner in his Essay on the Trial by Jury: "No free man shall be captured, and or imprisoned, or diseased of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgement of his peers, and or by the law of the land." Although it says and or by the law of the land, this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the consuetudinary law, based on the customs and consent of John's subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people. According to some sources, in the time of Edward III, by the law of the land had been substituted by due process of law, which in those times was a trial by twelve peers.
During the mid-14th Century, it was forbidden that persons who had sat on the Presenting Jury (i.e., in modern parlance, the Grand Jury) to sit on the trial jury for that crime. 25 Edward III stat 5., c3 (1353). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding.Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. The Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom. In David Hume's History of England, he tells something of the powers that the kings had accumulated in the times after the Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted.
The case against William Penn and William Mead in the late seventeenth century illustrated the importance of the jury and its rise to power within the judicial system. Penn and Mead were religious dissenters who were given to preaching in public. Around this time, we British were so suspicious of King Charles II's Catholic leanings that they passed laws against preaching in public. Pennand Mead were arrested, and opponents of the king sought to have Penn and Mead prosecuted and imprisoned, which would have embarrassed the king. The court impaneled a jury and, after both sides presented their case, they retired todeliberate, knowing full well that they were expected to deliver verdicts of guilty. Around this time, the judge had a tremendous amount of power over jurors. A judge could keep jurors until they delivered a verdict desired by thejudge, and in some cases, a judge could lock the jury in a room and deprivethe jurors of food and water and other amenities until they delivered the desired verdict. Several members of the jury led by Edward Bushell, refused to deliver a unanimous guilty verdict. The jury was sent off to deliberate againand again, without food, drink, fire, or tobacco, but it still could not deliver a guilty verdict. It did absolve Mead, but the judge ruled that Mead could not be released because he was charged with conspiring with Penn. Penn, from his cage in the courtroom (Mead likewise was kept in a cage), bellowed that"f not guilty be not a verdict, then you make of the jury and Magna Cartabut a mere nose of wax." The Lord Mayor of London threatened to cut Bushell's throat and the jury was sent away for another night without food or drink.The next morning, it returned with not guilty verdicts again, and the judge imposed a fine on each juror. The jurors refused to pay the fine and were sentto jail. Eight jurors eventually relented, but four did not, and they eventually brought their own case against the court from jail. In what became knownas Bushell's Case, the Court of Common Pleas declared that the punishment of the jurors was illegal and that no jury could be punished for its verdict. Penn and Mead, both of whom were sent to jail after the fiasco, were released when Penn's father paid their fines. The four jurors were released from jail after the decision in Bushell's Case, and their ultimate success helped to establish the power of the jury system in England.
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