THE ENGLISH JURY

AND ENGLISH LIBERTY

by

Christopher Hill

B.A., University of Colorado, 1990

A thesis submitted to the

University of Colorado at Denver

in partial fulfillment

of the requirements for the degree of

Master of Arts

History

1999

(c) 1999 by Christopher Hill

All rights reserved

This thesis for the Master of Arts

degree by

Christopher Hill

has been approved

by

Frederick Allen

/-\

\ I ·. ;

) James . WOlf

lfjzqb1 Date

Hill, Christopher (M.A., History)

The English Jury and English Liberty

Thesis directed by Professor Frederick Allen

ABS1RACT

This study will attempt to make three arguments. First, that the initial creation of the jury was a move by an authoritarian monarch locked in a power struggle with the church. The King was able to create in the law this fact-finding body of commoners because of the philosophical climate of a 12th-century revival of rationalism. Second, that the jury quietly grew in stature during a period of weakness in the English monarchy until a more powerfulmonarchy under the Tudors tried to place limits on the jury system through the use of procedural hurdles and outright coercion. And third, that in one of the most ironic twists in the history of the common law, this body founded by a strong king made substantive inroads into the nature of authoritarian prerogative by establishing the concepts of judicial review of legislation and by making the fust serious guarantees of civil liberties for the common individual.

This abstract accurately represents the content of the candidate's thesis. I recommend it for publication.

SFredenck Allen

IV

ACKNOWLEDGMENTS

My profound thanks to the University of Colorado at Denver Department of History, and especially to Professor Frederick Allen, without whose indulgence, encouragement, and patience this work would not have been possible.

CONTENTS

CHAPTER

1. INTRODUCTION .................................................................... 1

2. TWEL VB LAWFUL :MEN .................................................... ! 0

3. TOWARD AN INDEPENDENT BODY ............................... 33

4. THE JURY IN THE MODERN PERIOD: NON-COERCION

AND SANCTION NULLIFICATION .................................... 56

5. CONCLUSION ...................................................................... 73

ANNOTATED BffiLIOGRAPHY ......................................................... 76

VI

CHAPTER ONE

INTRODUCTION

In 17 68, at the height of the European Enlightenment, the English jurist

Blackstone declared that his country's peculiar system of jury trial "ever has been,

and I trust ever will be, looked upon as the glory of the English law." He went on

to assert enthusiastically that the jury guaranteed that the Englishman "(could) not

be affected either in his property, his liberty, or his person, but by the unanimous

consent of twelve of his neighbors." Blackstone's admiration for the jury system is

perhaps understandable given both his homeland's continuing obsession with

liberty and the prevailing mood ofthe eighteenth century. Although the reality of

"liberty" in the sense that the philosophes used it is widely debated today by post­

modernists and other modem-day romantics, Blackstone's time was one in which

the ideas of human rationality and freedom were still exciting ones. Blackstone

believed that the common law was the framework ofEnglish freedom, and he,

rightly or wrongly, considered the jury trial one of the cornerstones upon which

the common law was built.

It is an ironic counterpoint to Blackstone's exuberance to note that the jury

today is nowhere near as widely used as it was during Blackstone's time, and in

England its use is in many cases statutorily prohibited. In the United States, where

trial by jury has been constitutionally protected since the country's inception, an

increasing number of defendants prefer trial by judge to the more traditional appeal

to "twelve good men." This can partly be explained by the expense of the jury trial,

1

and the fact that when found guilty a defendant is often forced to shoulder the

jury's expense as a part of his or her sentence. But trial by jury is also increasingly

out of favor among American and English jurists and legal scholars, because the

outcomes of such trials, especially in civil matters, are extremely difficult to predict

from the merits of any individual case. Furthermore, there are many cases where

for political reasons juries actually refuse to convict in cases where guilt is

overwhelmingly apparent. The case ofO. J. Simpson springs to mind, and

Simpson's acquittal touched off a wave of scholarship in legal journals debating the

logic and utility of sanction nullification in the modem world. Law, many jurists

claim, is simply too complicated and too vital to be left in the hands of the masses,

who are unfamiliar with legal precedent, and who are (in the view of such jurists)

too easily swayed by the pathos engendered by a given defendant.

The somewhat scornful attitude toward the independence of the jury

contained in the polemics against it, however, depend often upon a sort of

arrogance for the modem period that is not necessarily well-placed. A more

circumspect view of history shows that within Blackstone's hyperbole lies an

element of truth. It was precisely the ability of jurors to reject the law with

prejudice which secured the values which modern liberals hold so dear. In the

seminal decision regarding the independence of the jury, Bushel's Case (1670),

jury nullification directly secured religious freedom from a zealous government

bent on declaring faiths unsanctioned by the state as not only heretical but as

unlawful breaches of the peace. Given the facts of the case, it would be difficult

indeed to argue responsibly that political decisions made by juries in modem-day

America are in any way more hazardous than they were when Bushel was jailed.

2

Indeed, when the political dynamics ofEngland and The United States today are

compared to the exceedingly bloody conflicts which faced England during the

seventeenth century, it becomes almost laughable to assert that the modem world

has a lock on political gravity.

Blackstone, from his perspective in the Enlightenment, was able to look

back at the earlier periods in the evolution of the English trial jury and declare that

the jury had made possible much of the freedom he enjoyed. But if Blackstone had

asserted in the passage quoted above that the English trial jury had always been a

respected part of the English judicial system, he would have been very much in

error. In much the same way that the concept of jury trial finds itself under attack

from the legal establishment today, the jury of sixteenth century England was also

roundly excoriated by the jurists of the time. During the seventeenth century, a

changing political climate brought different views of the utility of jury trial. Each of

these movements were shaped by conditions outside ofthe legal sphere.

But how much further can we extend this argument? The study which

follows will be, in effect, an examination of Blackstone's claim, specifically

regarding the role of the jury system in promoting and securing the tradition of

liberty in England, and through it Western Europe and the rest of the world. How

influential was the jury in promoting and securing what we consider liberal? This

essay will argue that while it was not the sole detennining factor in the growth of

the English liberal tradition, it nonetheless had an important part to play, although

not as dramatic a one as Blackstone might have claimed. The development of the

jury was in reality a very slow process, and the jury's full potential as the guarantor

ofliberty was not realized until the early modem period and the English Civil War.

3

Prior to this time, the jury was more important as a defender of local authority, not

so much protecting the rights of the individual against a malicious crown as

protecting the rights of villagers to take care of problems in their own back yards.

To make this case, the study will focus on three aspects oflegal history.

The first section will describe the foundations of the jury system in England after

the Norman conquest. It will briefly examine the earliest threads of jury tradition

on the continent, and then move on to the critical period between the reigns of

Henry II and Henry III, when the jury was codified and eventually used as an

arbiter of guilt and innocence. The second part will examine the period when the

use of the jury became assumed and widespread. This section will examine the

question of whether the independence of the jury and its verdict was indeed

moving in one general direction, or whether the jury was simply an extension of

royal power with jury verdicts forcefully directed by the crown and its agents. The

third section will deal with the period of the English interregnum, when the

principle of sanction nullification left the world of the theoretical and was finally

upheld by Chief Justice Vaughn in Bushel's case of 1660.

While this essay will not be so bold as to state that the jury was the prime

motivating factor in the establishment of English democracy, it will argue that the

use of the jury depended upon an assumption of the rational nature of man, and

that by the time that the supremacy of the legislative branch of government was

established in the Restoration, this assumption had become virtually unquestioned.

If the crown will grant that the commoner is capable of determining guilt in capital

cases, the power of life and death which had heretofore been reserved to the

crown's agents and churchmen makes a subtle but irrevocable shift. The

4

assumption of rationality, moreover, was by no means widespread during the

middle ages. This study will point out that the concept of logic, in the Aristotelian

fashion, was still very novel when the jury was established in England, and that no

area had made much use of public opinion in the administration of justice. The

notion that the individual might be able to determine truth would wait until the

13th century, when Averoes and Aquinas gave it a philosophical grounding. In the

case of the common individual's ability to make such determinations, philosophical

grounding would wait until the Enlightenment, and if one seriously examines the

work ofMichel Foucault and Jacques Derrida, it might be argued that the question

has by no means been laid to rest even today.

Yet in 1166, the Assize of Clarendon would establish the concept of the

grand jury as a fact-finding body, and these "juries of presentment" were

comprised of commoners. It is a delicious irony that these juries, which this study

will argue were pivotal in curbing central authority, were put into place by one of

the strongest monarchs in the history of the British throne, Henry II. It is also

ironic that the model which Henry used for the jury was taken from another strong

monarch of the Norman line, William the Conqueror, who had used a form of jury

to inform on neighbors who were sheltering money from the massive Domesday

tax inquiry.

The transition of the jury from fact-finder to determiner of guilt was a

comparatively sudden one. This study will examine the period of the change, which

was largely spurred by the action ofthe 4th Lateran Council in 1215. In that year,

the council made it a matter of Church law that priests could no longer take part in

trial by ordeal. Under this system, the accused was made to undergo some sort of

5

torment without suffering injury. Until 1215, this was one ofthe two common

methods of proving guilt; the other was trial by combat where it was assumed that

the guilty party would lose. In any event, after the elimination of the ordeal (which

could not take place without the participation of the clergy) it became necessary to

find a new method of determining guilt. On the Continent, the new method was the

increasing use of the Justinian system as practiced by both the ecclesiastical and

laic courts. In England, however, the new method was an extension of the

presenting jury - namely the trial jury.

Why this should have happened will be closely examined in this study. One

possible explanation, which fits in well with the prevailing political climate of the

period, is that the barons who forced the signing of Magna Carta onto King John

doubted their chances for a fair trial under the king whose power they were

actively trying to limit. They may have viewed the Justinian system as a direct

extension of power through the king's agents. It will also be pointed out that the

transition to trial jury was a muddled one; that the first verdicts rendered were in

cases where guilt was manifest, and that the very first example of a final verdict

given by a jury under the new system (regarding an accusation of rape in 1220)

was used because there was literally no other way to determine guilt. Still, the

dynamic movement toward the trial jury had been set in place, and its status as an

arbiter of guilt had been established. By the mid part of the 13th century, the jury

was becoming an accepted and commonplace feature of the English judicial

process.

This study will next tum to the question of why the jury endured over the

succeeding centuries. As will be stressed, the option of abandoning the jury

6

entirely and moving toward the Justinian system was always open to the crown,

and during the 14th century, especially, there were kings interested in judicial

reform. A variety of changes took place in the administration of justice, yet the

jury was untouched. Why should this have been? A simple answer might be that

juries were acting in concert with the wishes of the government, i. e. that juries

were routinely convicting those accused of stirring up dissension or breaking the

king's peace.

Unfortunately, however, the facts do not readily support this conclusion.

Drawing on the work of several historians, this study will show that in cases of

what we would today consider felony, juries acquitted more than 40% of the time.

Considering that the late 13th and early to mid 14th centuries were noted by

contemporaries to have suffered a discernible increase in general lawlessness, it is I

both apparent and striking that juries were not acting as rubber stamps for the

crown. It is clear that during this period juries were acting either independently or

in spite of the authorities.

Why then did the crown continue to favor the jury? There are several

possible explanations. Jury members may have been more frightened of the local

lord, who, it will be shown, had reason for seeking some acquittals. Another

interesting possibility is that society expected a high percentage of not-guilty

verdicts, a conclusion which is bolstered by the comparatively large numbers of

royal pardons given to convicted felons. The other possible explanation which the

study will explore is that the crown had simply no real alternative. Given the extent

of the realm ofEngland, the diffuse organization of feudal society, and the expense

7

of forming some sort of royal police force to investigate breaches of the peace, the

jury may have seemed the most cost -effective method of administering justice.

The third section of this study will examine the attempts made at the

limitation of the jury's independence during the 16th century, and the final moves

which solidified the independence of jury verdicts after the Puritan Revolution in

the 17th century. The data for these periods gives the impression that as though

the crown during the Tudor reigns began to realize the potential power that the

jury system had taken on during the preceding centuries, and made various

attempts to force juries into line with its own desires. However, it is also apparent

that the attempts to limit were met with difficulty.

Coercion took a variety of forms. At its most basic level, judges simply

threw recalcitrant jurors into jail, refusing to release them until the proper verdicts

were reached. Fines were also levied on jurors by judges, and in extreme cases

jurors might be indicted before the star-chamber. However, despite the strength of

the monarchs during this period, there were no serious attempts to end the role of

the jury entirely. By the early modem period, the tradition of the jury was too great

to overcome. Still, the problem of bringing juries into line with the maturing

system of common law would cause consternation among English jurists for more

than a century, and as late as 1600 the highest court was still sanctioning coercion.

The 17th century, obviously, was a period of upheaval in English history,

and we begin to find during these years more radical ideas about the nature of

government and the governed. One ofthe major movements, the Levellers,

believed that the jury system in particular was one of the few bulwarks available in

the English system which might combat tyranny. In the celebrated treason case

8

involving the Leveller leader John Lilbume, the defendant threw himself onto the

mercy of the jury, begging the jurors to acquit because they knew in their hearts

that by spreading a doctrine he had committed no crime. The decision made by the

jurors to agree with Lilbume was one of the turning points in the history of the

jury, and this study will examine the case in depth.

This study will also examine the case which finally ended the practice of

coercion, Bushel's Case, in which jurors who had been jailed for refusing to

convict two Quakers on the charge of disturbing the peace. The law in this case

was quite clear, and the defendants freely admitted that they had violated the letter

and the spirit of the law. Several of the jurors could not bring themselves to

convict a preacher for preaching, and they were imprisoned for their decision to

acquit.

In Bushel's Case, Chief Justice Vaughn opined that the jurors in the

Quaker trial had acted in good faith, and that they must be released from prison.

Much has been made ofVaughn's decision, and this study will examine the strands

of argument both for and against the concept of jury nullification which the

decision codified. In the end, it will try to show that non-coercion effectively ended

the debate over the independence ofthe trial jury, and will show that in subsequent

cases involving treason, the crown's (and Parliament's) power had been effectively

blocked. The jury triumphed over attempts to limit individual liberties and extend

the power of government, and for this reason played a key role in the establishment

of the English liberal tradition.

9

CHAPTER TWO

TWELVE LAWFUL MEN

In 1164, as Henry II began to lay the foundations ofwhat would eventually

come to be known as the English criminal jury, the concept of the jury itself was

not an entirely novel one in the European experience. The Romans, for example,

had found it advantageous in certain civil cases (which invariably took place far

from Rome) to use groups oflocal rustics to sort out the details oflitigation in

cases dealing with property dispute. 1 There was a good deal of logical expedience

(and perhaps cynicism) in the Roman utilization of this system. After all, proper

Roman citizens who acted as prefects could not be expected to know the vagaries

of clan disagreements in the far reaches of the empire, nor could they be expected

to understand the unusual strains of "law" to which the barbarians might be

accustomed. As much as possible, the canny Romans avoided involvement in these

disputes and adopted a hands-off attitude; certain cases, however, dealt with

ownership and with levels of valuation which were directly related to taxation, and

it became unavoidable for the occupying government to become involved. Instead

of wasting time learning particulars, or, for that matter, attempting to teach the

rustics the proper methods of legally settling such disagreements, the Roman

prefects simply ordered locals familiar with the both the dispute and the litigants to

sort out the details and determine ownership.

It should be pointed out here, in the context of this study, that Roman use

of the jury was not widespread; it was not us~d in criminal cases, it was not

respected either by the Romans or by the unfortunate jurors selected to doom their

neighbors,2 and it most certainly was not trusted by the Romans to be of use in

determining any sort of philosophically esoteric concept as truth. 3 On the contrary,

the jury as the Romans used it was more along the lines of an informant body,

ferreting out monies which the locals were trying to hide. Were it not for Rome's

rapacious desire to increase the tax-base it most likely never would have been

utilized at all. Its use in the Roman backwaters, however, may have exposed the

concept to the Franks, who, as the Empire collapsed, incorporated the jury into

parts of their own legal tradition. 4

The Roman-Frank origins of the jury system is a matter of conjecture; we

have no direct records of the transmission of the jury to the Germanic tribes. Still,

it is a logical scenario, and whether it happened this way or not, it is almost certain

that the English jury did not evolve with the English, and was rather imposed onto

the English by their Norman overlords. 5 The Anglo-Saxons simply did not have

such a tradition; judgements were rendered through a system of oath-swearing,

wherein the rank and number of the witnesses, and the strict adherence to legal

format determined guilt or innocence. Whether the Normans came to the jury

system spontaneously, or whether it was transmitted to them through the Franks

from the Romans is not particularly relevant. What is relevant is that they used it,

in the form of the sworn inquest, and thought enough of it to make it an important

part of their legal system, where the Romans considered it merely a tool to be used

in cases where justice was not a vital concern.

When the Normans came to England, they brought with them this tradition

of a rudimentary jury system, and William the Conqueror made use of it in much

the same way that the Romans did. In conducting the remarkable inquiry which led

11

to the creation of Domesday Book, William's operatives made a very thorough

survey of the lands which they had recently acquired. There was no question of

William's motives in making the survey; he was very interested in the rigorous

system of taxation which had been developed by the English and Danish monarchs

who governed England before his arrival, and he wanted to know the value of the

land down to the last kemal of com. As one historian has put it, 'William meant to

be a rich king, instead of a poor Duke. "6 This much the English knew, and made

every attempt to hide wealth from the assessors. To combat this difficulty, the

Conqueror's agents assigned groups of locals to find the hidden valuables and

make detailed report of them. 7 These groups were the very early precursers of the

English jury system.

The early importation of the jury system into England, is however, only one

part of a much larger story. In order to understand the importance of the jury in

terms of the larger issue of English liberty, it is necessary to have a grasp on the

underpinnings of medieval philosophy. It is a fairly common misapprehension that

liberalism as we understand it was born wholly in the European Enlightenment of

the 18th century. In some ways this is correct, and this study will later take up the

question of the early foundations of Enlightenment thought in England in terms of

legislative supremacy and religious tolerance. However, the absolute cornerstone

of the philosophy of liberalism is the belief that the universe is intrinsically

knowable, that it follows rational and understandable patterns of behavior, and that

humans are imbued with the ability to understand that which they see around them.

These ideas, which gained such currency during the 18th century, were not at all

novel to that time. On the contrary, the argument can be traced to Aristotle and the

12

classical period, and it has been one of the central questions of western philosophy

for two thousand years. It has had various incarnations at different times, and

while the Platonist ideal as expressed by St. Augustine had held the ascendancy for

much of the early middle ages, the twelfth century brought a new resurgence of

rationalism, and a renewed interest in expanding the limits of human

intellectualism. 8

The first great figure in this movement, and the one that was widely

recognized during the time ofHenry IT's rule, was Peter Abelard. Abelard believed

that the mind could draw rational conclusions based on the observable patterns of

the surrounding world. He was somewhat ahead of his time, in that the views

which earned for him condemnation would eventually, under a slightly different

guise, earn for Thomas Aquinas sainthood. As lacerated as Abelard was by

churchmen, however, his massive intellect attracted a great number of his

contemporaries. As other thinkers became interested in the possibilities created by

logic, and as Aristotelian texts became available in western and northern Europe by

way of the reconquista in Spain, there was a great shift in European philosophy

toward a favorable view of human rationality. This was precisely the period when

the first substantive steps toward an independent criminal jury in England were

taken.

It would be difficult indeed to prove that Henry II was a disciple of

Abelard, and that this philosophy drove him to create the grand jury. This thesis

does not propose to do anything so rash. However, it is certainly within the bounds

of reasonable argument to say that the shift in philosophical attitude during the

12th century made the creation of the jury far more palatable. Again, while we

13

today consider juries to be rather ho-hum affairs, what they are designed to do is,

in a philosophical sense quite remarkable, and at the time that the jury was created

it was almost revolutionary. By its very nature the use of juries must assume that

the people who sit upon them are rational, and are capable of determining truth in

a very fundamental way. In earlier periods such determinations were exclusively

the province of either the Church or the agents of the crown, which at the time

were considered two sides of the same coin of governance which had been placed

on earth by God. The notion that the individual might be able to determine truth

was still a very novel idea in the 12th century Angevin empire (which included

parts ofFrance as well as England), and would not find careful elucidation until

Averoes, who caused such a panic in the Church at the time ofhis writing that the

works of Aristotle were temporarily banned. 9 In the case of the common

individual's ability to make such determinations, philosophical grounding would

wait until the Enlightenment, and if one seriously examines the work of

contemporary post-structuralists, it is clear that the question has by no means been

laid to rest even today. Considering that Derrida is writing during the post­

Enlightenment period, and furthermore during a cynical age when science's

dependence on rationality is shifting traditional views of God, it is even more

striking just how earth-shaking Christian rationality must have seemed to the

Platonist thinkers whose ideas it gradually replaced.

If Henry were not a rationalist, however, it is difficult to explain just how

he came to create the jury. Even if the philosophical winds of his time were

blowing in this direction, this tenuous atmosphere still cannot by itself explain why

he would have given over such a substantial power to local authority. Juries are

14

expedient, to be sure, but Henry was an enormously powerful king, easily the most

powerful ofEnglish monarchs during his century, and his reign ended the period of

English history known as the "anarchy," when the need for strength in the

monarchy had become so vitally apparent. Henry knew full well the necessity of

central authority, and the extensive reforms of the legal system during his reign

demonstrate the value he placed on the judicial arm of his government. It seems

odd to say the least that he would choose to hand over the vital power of

indictment to commoners, yet this is precisely what he did. There still seems to be

one piece of the puzzle missing.

Perhaps the answer lies in another of the great intellectual controversies of

his time: the balance of power between the Church and the Crown. As creatures

with the benefit of Enlightenment thinking, we tend to view the basic struggle

within government as a polar spectrum with tyranny at one end and popular

sovereignty somewhere near the other, but it was not always so. The seeds of the

modern conception of liberty may have been planted by the philosophical

movement of rationality, but at the time that those seeds were sown, there were no

popular uprisings of the masses demanding a say in their governance. Indeed, the

twelfth century almost completely lacked one of the forces which eventually drove

the movement to limit the crown's authority - a strong capitalist middle class.

Henry was simply unconcerned with the prospect of popular revolt. He was,

however, quite concerned with the very real threat to his authority represented by

the Church.

By the time ofHenry's reign, the Investiture controversy had been largely

laid to rest. The disastrous conflict which had literally forced Germany's Henry IV

15

to his knees in a snowdrift outside of Canossa had been settled by the Concordat

ofWonns in 1122. The Bishops and Abbots were to be elected within the Church

according to canon law. The King, however, was given the power to oversee the

process and to resolve all disputes, and strong Kings were not at all shy about

exercising this power. Henry II, for example, on one occasion told an assembly of

monks: "I order you to hold a free election, but nevertheless I forbid you to elect ·

anyone except Richard, my clerk, the archdeacon ofPoitiers." Henry was a

powerful man, and he was very cautious about the prelates with whom his

temporal power would be shared.

But Henry could not completely control the bishops, as was made very

clear during the fight which led to the murder of Thomas a Becket. And while

Henry had a say over the election of bishops, he had no control whatsoever within

the most obvious challenge to his authority, the ecclesiastical courts. To counteract

the influence of the Church, Henry issued in 1164 an ordinance entitled the

Constitutions of Clarendon, which sought to wrest jurisdiction of certain types of

cases which would be heard by the ecclesiastical courts. While its main thrust

would prevent appeal to Rome without royal permission, and would further the

growing rift between Henry and Becket, buried within it we find the following

curious statement:

"And if the guilty persons are such that no one wishes or dares to accuse them, the sheriff, on being asked by the bishop, shall have twelve lawful men from the neighborhood, or the viii, placed on oath before the bishop to

set forth the truth in the matter according to their knowledge." 10

16

With this sentence was born in England the first example of what we may directly

trace to the English criminal jury. It was not, in its inception, so much a transfer of

power from the king to the commoners as it was a direct assault on the power of

the church, using men whom Henry felt that he could trust.

Henry probably based this body, the so-called accusing jury, on the

tradition of the Norman sworn inquest, and on the juries which had been a part of

his great-great-grandfather's Domesday tax inquiry. Its scope, however, was vastly

different from its predecessors, in that it was to be used specifically in cases

considered criminal, and it was to be used against both commoners and persons of

stature. Note that the wording of the sentence specifically states that the jury will

be used in cases where no one "dares" accuse the guilty party. Clearly this is not

aimed at the average serf or 11Villein. 11 In fact, it was the average lawful villein who

would sit on such juries, in many cases dooming his feudal superiors, and there is

evidence in the records to show that this was precisely the way such juries were

comprised. Another interesting feature is that the sentence cited uses the word

"truth," as the commodity that the jury is designed to find. As has been shown

above, this can be a highly charged concept, certainly not a word that would be

thrown around lightly if the prevailing mood did not accept such an idea.

It is also important to realize that indictment in this context was no small

matter. After indictment there were only two possible methods of determining guilt

or acquittal: combat and ordeal. In the case of combat, where the accused would

often fight a representative of the crown, one party almost certainly died, and that

party was usually the accused, fighting against a professional soldier. In the case of

ordeal, which in England generally involved placing the arm into boiling water for

17

a specified amount of time, acquittal came only when the ann was apparently

unscalded several days later; in other words, proof of innocence depended on a

miracle. In either case, accusation was very, very close to determination of guilt.

The Constitutions of Clarendon also made use of the jury in another

important way, which was more in keeping with its general attack on the Church.

Under the provisions of section nine of the document we find this:

"If a claim is raised by a clergyman against a layman, or by a layman against a clergyman, with regard to any tenement which the clergyman wishes to treat as free alms, but which the layman wishes to treat as lay fee, let it, by the consideration of the king's chief justice and in the presence of the said justice, be settled through the recognition of twelve lawful men

whether the tenement belongs to free alms or to lay fee." 11

The passage here refers to the controversies which arose when the Church claimed

that the title of a given piece of land had been transferred to it by the process of

"free alms" or donation. If an individual claimed that the land had instead been

given or sold to him through the process of''lay fee," the dispute had been

previously settled by the ecclesiastical courts, which, not surprisingly, often found

in favor of the Church. The Constitutions of Clarendon changed this by placing the

determination in the hands of a jury of commoners. The move infuriated

churchmen who were being deprived of a substantial source of revenue, but its

underlying theme is even more stunning. By placing such power in the hands of the

people acquainted with the dispute, Henry assumes that they will make a rational

decision, even if it means that the people must act against the most powerful

spiritual institution that they know. It must be remembered that this is taking place

18

when the Church is not a despised organization~ the popular attacks on simony and

indulgence which were the hallmarks of late 14th century writers like Chaucer and

Langland were still more than two centuries in the future. Yet Henry believed that

given the opportunity, the common man would make fair decisions which could

potentially imperil his mortal soui. 12 That Henry believed that simply finding

against the Church had nothing to do with one's salvation is not surprising, but

that he would assume such a cosmopolitan outlook in the commoner is startling.

The cases covered by the Constitutions were still, however, fairly unusual,

and dealt only with disputes involving the ecclesiastical courts. Two years later

Henry massively expanded the use of the jury system with an ordinance entitled the

Assize of Clarendon, which is generally recognized as the document which

established the jury as a durable feature of the English system. As a point of

reference, the term "Assize" in this context refers to a document designed to give

specific instruction in official administrative procedure, as opposed to "Charter"

(Carta) or "Constitution" which were more general documents describing

agreements between the Crown and its subjects. 13 The Assize later became

associated with the jury which followed the procedure indicated, and eventually

came to be used to describe the court itself Although the Assize of Clarendon

pertained to the dispositions of a variety of types of offenses, and dealt also with

cases of disseisin and land law, it's impact on the new jury system was especially

profound. The very first section of the Assize establishes juries in every district in

the realm, whose duty is to bring charges against any person suspected of crime:

19

" ... King Henry, by the council of all his barons, has ordained that, for the preservation of peace and the enforcement of justice, inquiry shall be made in every county and in every hundred through twelve of the more lawful men of the hundred and four of the lawful men of each vill, put on oath to tell the truth, whether in their hundred or in their viii there is any man accused or publicly known as a robber or murderer or thief, or anyone who has been a receiver of robbers or murderers or thieves, since the lord king

has been king."14

As the phrase ''for the preservation of peace and the enforcement of justice"

suggests, the Assize was primarily designed as a sort of 'law and order' document.

Most of the provisions deal with such matters as delivery to court, flight of

fugitives and aiding and abetting. It cannot in any way be viewed as a liberalizing

document - the tone is quite authoritarian, and establishes strict penalties both for

fugitives and those who help them. It is also unclear how permanent the Assize

was meant to be; in contrast to the Constitutions of Clarendon, which end with the

phrase " ... are inviolably to be observed forever," the Assize says merely that "the

Lord King wills that, during his pleasure, this assize shall be observed in his

kingdom" (italics mine). He may have realized how profound the changes he was

making were, and wanted the ability to alter them at his discretion.

For the change was profound. Here was an enormous shift in criminal

procedure, giving sweeping powers of indictment to groups of commoners held by

no more than their reputations and their oaths. Since many of the provisions of the

Assize led directly from presentment by the jury to ordeal, with no intermediate

steps and limited prospects for appeal, Henry must have realized that many people

indicted by the jury faced summary execution. The infallibility of the ordeal was

already being called into question, and the Church would disavow it within fifty

20

years of the publication of the Assize. As an authoritarian Henry may not have

cared about the unfortunates and criminals who would be condemned, but

nonetheless an important shift toward local power was included in the provisions.

If the crown will grant that the commoner is capable of determining guilt in capital

cases, the power of life and death which had heretofore been reserved to the

crown's agents and churchmen makes a subtle but extraordinary shift. IfHenry had

been a lunatic or an anarchist, such a cedence of power would be understandable,

but Henry was neither. The Assize most likely represents a further attempt to

curtail the power of the ecclesiastical court, because the juries were explicitly

instructed to report their findings to the king' s agents, and not to the local cleric,

because doing so would have placed the matters under Church jurisdiction. It is

also possible that Henry was using the jury as a temporary measure to quickly

eliminate troublemakers, and it has been suggested by the renowned legal scholar

Maitland and others that the Assize could have been designed as an instruction

manual for judges being sent out to take part in the local Eyre, the itinerant courts

sent out yearly by the Crown to provide the king' s justice in the hundreds. 15 The

Assize was never repealed, though. On the contrary, its provisions were

strengthened by the Assize of Northampton in 1176, which both strengthened the

jury and defined its powers and duties more precisely. These two documents,

Clarendon and Northampton, established what would come to be known as the

"Jury of Presentment," or, as we know it today the Grand Jury.

The period between the Assize ofNorthampton and the creation of the

criminal adjudicating or "petty'' jury in the 1220's is murky. The greatest legal

writer of the period, Glanville, who wrote during the 1180s, describes the accepted

21

procedures of his time, but he is primarily concerned with the procedure for

appeal, the earlier system where one person simply accuses another. The record of

how the jury went about the business of declaring suspicion is frustratingly

incomplete in the time of the jury's earliest use. Nonetheless, we can roughly

reconstruct the workings and limitations of the jury during this period through

examination of the Assizes themselves and the earliest records of criminal

proceedings which begin in the 1190's. 16 It seems that the presentation by the jury

was examined by the justices of the eyre, the traveling royal court, who asked

which of the accused were directly suspected by the jury of committing specific

crimes, and which were being presented simply on the basis ofbad reputation, a

distinction explicitly made in the Assize of Clarendon. The latter were given a

milder form of proof than the ordeal, acquittal based on the oaths of character

witnesses. Those appellees whom the jury had specific evidence against were given

either the ordeal or combat, depending on the specifics of the case. In this early

period there was evidently a formula which was roughly followed to determine by

which method guilt or innocence would be discovered - ordeal in cases of medium

seriousness, combat in cases which were capital. Those who underwent the ordeal

and failed were punished by fining, maiming and/or abjuration. Those who failed at

combat, should they have survived, were hanged.

While the power of the jury of presentment was great, and it had become a

fact-finding body, its power was to be exercised only within certain bounds. Again,

what we are looking at here is a type of grand jury, not a convicting or petty jury.

It was somewhat independent, in that the evidentiary rules which place such

strictures on the modern grand jury did not at the time exist; the jury chose where

22

it wanted to go in its investigation and it examined whatever evidence was

available to it. However, the jury acted in concert with the sheriffs and the justices,

who, it may be inferred, had some ability to steer the decisions of the juries.

Furthermore, the juries, while able to come close to deciding an appellee's future,

did not have the ability to make the final statement: "Yes, he is guilty." Verdicts

were medial, not final, during this period. 17

How and when, then, did the change take place? The move from the jury's

role as a fact-finder to one of truth-finder, or arbiter of guilt, took place with

comparative suddenness, and it was caused by a number of factors working in

tandem. First, and most urgent, was the decision of the Fourth Lateran Council of

the Church in 1215 to eliminate the participation of clergy in the ordeal. It seems

that the faith in miracle-on-demand which had been the foundation of the ordeal's

legitimacy was on the wane during the twelfth century. 18 When the Council ended

the involvement of the Church, the ordeal was also effectively ended, for without

the priest to sanctify the affair, any basis for trust in the veracity of the result

evaporated. We might say that this event, in keeping with a theme of this study,

was a something of a triumph for rationality, but it left the people in charge of the

European justice systems at something of a loss. The Council did not ordain any

new practice to take the place of the ordeal- it merely eliminated the old method

of determining guilt. In legal history, this was to be a moment of very great import,

for it led to the development of two very different, and very influential legal

systems.

On the continent, the vacuum was filled by the increasingly widespread use

of Roman law in the tradition of Justinian, which was finally breaking free of the

23

initial contempt in which it had been held by the Church of the early middle

ages. 19 Under the Justinian system, guilt or innocence is determined by a judge or

a panel of judges acquainted with the law, who assign a verdict based on the

particulars of a given case. The system survives to this day in the overwhelming

majority of continental European countries and those parts of the world colonized

by them. Justinian law replaces the church's role with judges appointed by the

crown or the state. Although it relies on rationality, it differs crucially in

philosophy from the evolving English system, in that rational arbitration can only

follow proper training, and that from the commoner's perspective one overlord has

simply been replaced by another.

In England, however, a very different route was chosen, and part of that

route, of course, involved the criminal jury. During the twenty-year period

following the Council's decision of 1215, England wrestled with two competing

methods of determining guilt. While the ordeal had been ended, trial by combat

had not, and it was still employed in those cases where it was determined the

proper procedure. But during the interim period between the Assize of

Northampton and the Lateran Council, the jury had gradually been acquiring

another function - the determination of the type of proof which would be necessary

following the jury's decision to present.20 By the early 1200's, juries were

routinely deciding whether proof should be determined via the ordeal, or by less

personally hazardous methods like purgation, a surviving form of oath-swearing.

Juries were also being used in personal appeals. During the period before Henry,

appeal generally led directly to combat, but after the 1180s it became possible to

purchase a writ claiming that the appeal had been brought de odio et atia, or

24

"through hate and malice," forcing the sheriff to assemble a jury which would

determine whether there were sufficient facts to support the allegation. If none

were found, or the evidence was determined to be insufficient, the jury could clear

the appellee. Again, these verdicts were medial; those who were found to be under

reasonable suspicion were sent to combat for final disposition. Still, the increasing

use of juries indicates continuing acceptance of their verdicts by both the Crown

and the populace.

Another factor which might have led to the move of jury from fact-finding

to truth finding body in England may have involved another event of that year: the

drafting ofMagna Carta and the political situation which led to it. The liberal tone

of Magna Carta is unmistakable, and one of its provisions states the following:

''No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgement of his peers and by the law of the

land."21

It may well be that this provision was included because the barons who forced the

humiliating document onto King John may have disliked their chances for a fair

trial under the king whose powers they were actively trying to limit. The jury

system, insofar as it was used, was an accepted practice in England. Even if the

English had been disposed to adopt the Justinian model which was becoming

increasingly popular in Europe at this time, they might have viewed the Justinian

model with its appointed judges as an extension of royal power which under the

circumstances was something to be avoided.

25

Despite these factors however, the move to jury as truth-finder was a fluid

one - there was no assize which expressly stated that the verdict of a petty jury was

to be adopted and accepted as proof of guilt or innocence. There was virtually no

legal activity in England during the years of 1215-1217; there were no eyres held

during the turbulent period leading up to the accession of Henry ill. In 1218 a

nationwide eyre was begun, and in early: 1219 instructions were sent to the

Justices. The instructions stated that the ordeal had been abolished and that the

crown's legal team had not as yet detemuned what should replace it. In serious

cases where there was ample evidence of guilt, the justices were advised to hold

the accused in prison. Those accused of medium crimes, where the ordeal would

have been required, were permitted to abjure. Those accused of minor offences

were to be released on pledges of good behavior.

There is only one extant record of an eyre during this period - from York

during the 1218-1219 session, and it was unfortunately begun before the new

instructions were sent out. There are hints, however, that the justices were moving

in the direction of accepting medial verdi~ts (i.e. jury verdicts) as final. As legal

historian Roger Groot points out in his work on the Eyre of this period, there is

one case ofuxoricide (murder of a woman by her husband) where the man did not

raise the hue and cry, but instead fled to a local church. The case was brought to

the justices at the eyre, and the man was hanged. This was obviously a case of

manifest guilt, which under the provisions of the Assize ofNorthampton precluded

the accused from "making his law," or buying a writ to adjudicate his case.

However, the way in which the accused was brought to the attention of the justices

was most likely via a presenting jury. If this is so (and assumption here does not

26

equal proof), then it would demonstrat~ that the justices were accepting a jury

verdict and giving it the force of final juogement, which would be a significant

move. The first verdict of a jury actually'recorded involved a case where there was

literally no other choice but to accept th'e verdict of the jury as final, or to release

the appellee, and there was substantial eVidence that the accused was guilty of

rape, a capital offense. The convicted m~n was hanged. 22

I

These cases however represent the minority of those tried. The instructions

of 1219 indicated that great numbers of persons should be jailed awaiting trial, and

this is precisely what happened. The numbers of persons imprisoned became so

great that the justices began hunting for ways to clear out the jails. By the early

1220s the method devised was to offer a choice to the suspect. Continued

imprisonment and fine, or the acceptance of the verdict of a jury with the power to

acquit. The Crown did not feel that it could impose a verdict by a jury, but it did

feel that if the accused could be compelled to take the verdict of his peers, this was

fair.

Unfortunately (from the crown's point of view), many defendants refused

to place their lives in the hands of their countrymen, presumably because they

realized that their neighbors knew them and already believed them to be as guilty

as sin. The impasse was resolved by the introduction of an augmented jury, which

included twenty-four knights. This was clearly coercive, because such juries

instantly demonstrated a proclivity for hanging. 23 Given the choice between these

augmented juries and at least the slim possibility of mercy shown by their fellow

villagers, defendants chose the latter. In later periods, coercion took on more

drastic overtones; under the process of peine forte et dure heavy weights were

27

placed upon the accused until he or she1

submitted to the jury's verdict. Should the

accused die under peine, which did happen, at least his or her lands were not

forfeited since there was no conviction. Recalcitrant suspects were rare, though,

and by the 1230s the petty jury had become fairly routine.

At this time trial by jury continued to exist alongside of trial by combat,

which was still used with some frequency in capital cases. Indeed, in an amazing

tribute to the common law's adherence to tradition, combat in the form of the duel

existed as a legal remedy until the 19th century, but during the period under

examination here it was already being phased out of mainstream usage. There are

two plausible explanations for this. The first lies in simple expediency. Battle often

involved a somewhat lengthy procedure of appeal, and the justices may have been

inclined to limit the time that the accused took up jail space. The other potential

explanation is more circumspect. While trial by battle was a very traditional

Norman institution, it was at best a messy business and it kept alive the idea that

disagreements could and should be settled privately. This attitude ~ndermined the

growing conviction in England that central authority was the key to orderly,

profitable governance. The use of combat was the vestigal remnant of the tradition

of the blood feud, which the Crown had been actively discouraging since Henry II

issued the Writ of Right. England of the twelfth and thirteenth century was not

Normandy during the tenth~ since the time of the Conqueror all vassals had sworn

allegiance directly to the Crown, and all lands in tenement were held, directly or

indirectly ofthe king. It is surely understandable then that as the central control of

the Crown solidified in England, the crown would have tried to extend its authority

into the settlement of legal disputes. The directed jury, while granting a degree of

28

authority to the hundreds, did so in a fairly novel fashion under the auspices of the

Crown. It gave the jurors a connection to the king, and weakened in them the

instinct to settle matters on their own. For whatever reason, though, the use of

combat steadily declined throughout the 13th century, and by the tum of the 14th

it was practically unheard of 24

With the rise of the jury, however, new problems rose with it. If the Crown I

through the workings of the justices sought to popularize the petty jury, as all

evidence indicates that it was doing, the populace needed to trust in the

impartiality of the jury system. As might be expected, even in the earliest

presenting juries there are cases where the accused claimed that presentments on

the basis of suspicion were actually brought about de odio, or based on prejudice.

This was an important distinction since presentment based on reputation required a

much lower burden to gain acquital. Should such a defendant be convicted in a

capital crime, punishment by the rope was swift and sure, yet the justices in almost

all cases refused to intervene. 25

Inconsistency, however, was a two-way street. For every conviction based

on prejudice, juries acquitted their neighbors based on mercy, which at first glance

should not have pleased the authorities. Yet from the earliest period jury verdicts

were almost sacrosanct; indeed, considering that they replaced the holy ordeal, in a

way they were. Why the justices continued to accept the acquitting verdicts of

juries, even in cases where guilt was manifest, is a crucial question in any inquiry

into why the jury endured. It is arguable the justices endowed the jury with a

measure of independence precisely because it had replaced ordeal, and they wanted

29

to equate the two in the minds of the populace, simply in the interest of

expedience.

The question of why the commoners continued to accept, with a few

exceptions, the jury system which the crown wanted, is not nearly so interesting as

why the crown would have continued to want it when it became evident that juries

would not always act in the clear interest of the sovereign .. The commons were

not in much of a position to have done anything about it, but the Crown could

probably have tossed the system in favor of the Justinian model. From the

beginning of the widespread use of the petty jury, however, not only did the

Crown push the use of the jury, but it laid a foundation for jury independence and

sanctity. Considering that the jury would eventually be used against the king, and

would be a factor in the drastic limitation of his power, this is one ofthe great

ironies of legal history. Why the king and his justices should have pursued this

policy will be addressed in the next section of this study.

Footnotes

1See Jenks, Edward, A Short History of the English Law (London: Methuen & Co., 1949) pp 47- 48.

2ibid. See also Pollack and Maitland, The History of English Law (Cambridge: The Cambridge University Press, 1969) 114-116.

3Difficult to prove, but a reasonable assumption considering the importance which the Romans placed on justice as an administrative tool in the capitol. Their highly­developed system of plea was not much exported into the hinterland, but the

30

Roman jury (except in cases of malfeasance when it was comprised of the entire senate) was never used as a legal procedure in Rome itself

4Pollack and Maitland, 142. Also, Charles Homer Haskins, The Normans in European History (New York: W. W. Norton and Co., 1966) 110.

5There are a variety of sources to support this conclusion. See Pollack and Maitland, vol. 1, 138-149; Jenks, 125-128; Haskins, Normans, 110-114. 6Jenks, 27.

7 Haskins, 110.

8For more on the philosophy of the middle ages, see Leff, Medieval Thought (London: Hazel Watson and Viney Ltd., 1968).

9ibid. 297.

1°Constitutions of Clarendon, paragraph 6. From Sources of English Constitutional History, vol. 1, Carl Stephenson, trans. and ed. (New York: Harper and Row, 1972) 73.

11ibid. paragraph 9. Sources, 75.

12This is worth closer examination for someone with access to the Pipe Rolls dealing with free-alms cases during this period. If it turns out that juries empowered under the Clarendon Constitutions were finding in favor of Church and individual equally, it would indicate that Henry was not attempting to coerce or bribe jurors to find against churchmen, and would show that he really did believe in the individual's ability to deem rationally and fairly.

13Jenks, 22-23.

14Assize ofClarendon, paragraph 1. Sources, 76.

15Pollack and Maitland, 137.

31

16The information here owes a great debt to Roger D. Groot's ''The Early Thirteenth Century Criminal Jury," frofl1. Twelve GoodMen and True, Cockburn and Green, eds. (Princeton: University Press, 1988).

17"b"d 8 1 1 . .

18Haskins, 111. Also Hollister, 246.

19For a fuller (and excellent) description of the attitude toward the Roman system, see Jenks, 20.

20Green, Thomas Andrew, Verdict According to Conscience (Chicago: University ofChicago Press, 1985) 14.

21Magna Carta, section 39. Sources, 121.

22Groot, 27.

23ibid. 25-26.

24see Gies, Frances and Joseph, Life in a Medieval Village (New York: Harper Perrenial, 1991) chapter 9.

25Groot, p27.

32

CHAPTER THREE

TOWARD AN INDEPENDENT BODY

As we have seen, the decision to. establish the trial jury as a part of the

common law was based on a combination of politics and pragmatism. But the

question of why the jury would continue to find favor in the eyes of the crown

through the high middle ages and into the modern period is an interesting one, to

which there is no single concrete answer. As the years passed, the jury no doubt

assumed the status of a perennial feature of criminal procedure, with roots

stretching into the mists of time. Indeed, Matthew Hale, whose History of the

Common Law of England in 1713 was the first attempt at a comprehensive history

of the common law, believed that the jury system had preceded by centuries the

Norman conquest, having been created by Alfred the Great during the 9th

century. 1 A more canny William Blackstone, writing 60 years later, would admit

that the assignation of the jury to Alfred was more a reflection of esteem for Alfred

than historical fact:

Just as we are apt to impute the invention of(the Jury) to the superior genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute every thing: (so) the tradition of antient Greece placed to the account of their one Hercules whatever atchievement was performed superior

to the ordinary prowess of mankind." 2

Yet Blackstone, too, threw up his hands when trying to pin down the actual

circumstances of the jury's birth. In a world where a tiny fraction of the population

33

is literate, and where historical records were at all times spotty and somewhat '

biased, three or four generations at most would have been required to virtually

obliterate the memory of a time when the jury did not exist. As an illustration of

this, it is worth recalling that in Henry's Clarendon documents, he supports the

creation of the jury by claiming that juries had been part of "the recognized

customs and rights of the kingdom, "3 even though modem scholarship can

demonstrate that this, if not entirely inaccurate, is a substantial stretching of

historical fact.

Yet tradition by itself cannot explain the endurance of the jury during the

critical period when the tradition had yet to establish itself, nor can it explain why

the jury endured when other elements of official policy were later discarded by the

vigorous monarches of the Tudor period. During the transitional years between the

fourth Lateran council ( 1215) and around 123 0 or so, the criminal trial jury

evolved as a stopgap measure in the period of turmoil when King John's reign was

ending and the rule of his child successor Henry was in regency. Henry ill was not

a strong king, and when not engaged in hopelessly complex foreign intrigues, he

was constantly embroiled in struggles with his barons. Even had he shown interest

in legal reform, which he did not, he most likely could not have mustered the

cooperation to implement the serious procedural reforms necessary to eliminate

thejury.4

His son Edward I, however, was not only an able and ruthless ruler, he was

intensely interested in the law and carried out serious structural changes within its

administration. His statute of Quo Warranto, for example, which obliged local

barons to prove by the production of specific royal charter their right to try

34

defendants who were their tenants, was aimed at eliminating the private

jurisdiction of legal matters which his vassals claimed. In this matter and others he

broke with the long-standing tradition which constrained the English monarch

from creating new law. In short, Edward was a centralizer. The elimination of the

criminal jury, which during his reign was only around sixty years old, and which

was the epitome of local legal discretion, might very well have appealed to his

nature. Clearly the jury had to be fulfilling some role which he found appealing.

The most facile explanation would be that the jury was acting in concert

with the crown's wishes; that it was returning a high percentage of guilty verdicts,

or at least that there was a general satisfaction with the level of societal order. A

variety of sources, however, indicate that this was not the case. The Statute of

Winchester (1285), which was signed by Edward himself, complains that "from

day to day, robberies, murders, burnings and thefts be more often used than they

have heretofore." The statute even goes on to state that, "Felonies escape

presentment by the oaths of jurors who would see felonies committed on strangers

pass unpunished rather than accuse the offenders, many of whom are persons of

the same community. "5 Not only is it clear that Edward is aware of the increasing

crime rate, but he places part of the blame for it on the part of juries. Speaking to

the increasing rate offelony ten years earlier, the Statute of Westminster (1275)

had made the same lament, "the peace is less kept, and the laws less used, and

offenders less punished than they ought to be. "6 Modem estimates put the number

of homicides in London during the early 14th century in the neighborhood of 12

per hundred thousand, roughly thirty times the rate in Britain today, and the

number of murders in the countryside was substantially greater than in London.

35

The problem was severe enough that an entire category of inquests was created to

investigate the problems in localities experiencing dramatic upsurges in criminal

activity. These commissions, coined as "trailbastons" in the vernacular, were given

the task of rooting out and punishing "malefactors and peacebreakers who are

moving about the woods and parks committing murders, depredations, burnings

and other misdeeds to the peril of travelers and dwellers." 7 It seems fairly certain I

that the crown was concerned with the disorderly behavior of its subjects.

As to the question of whether juries were returning large numbers of guilty

verdicts during this apparent crime wave, there is substantial evidence that they

were not. On the contrary, it can be demonstrated that in cases of felony, defined

here as homicide, theft, arson, and accomplice to these crimes, during the 13th and

14th centuries, juries chose to acquit defendants in the overwhelming majority of

cases, despite the fact that contemporary observers complained about the

increasing rates of lawlessness, and, at times, attributed this problem to the

leniency of juries. In his excellent analysis ofthe trailbaston inquests conducted in

Lincolnshire county in 1328-1332, Bernard William McLane, professor of history

at the University of Rochester (New York), leaves little doubt that criminal juries,

even under these extraordinary circumstances, were far more inclined to acquit

defendants than to convict them. Of the 193 felony defendants tried at the 1328

session, only 34 were convicted, meaning that fully 81% were acquitted and set

free. 8

Furthermore, the jurors who sat for these cases were not necessarily drawn

from the lower social classes who might have had blood relations with the accused.

Instead, there were substantial numbers of gentry who performed jury duty, and

36

they cast their votes to acquit alongside of their less well-heeled compatriots.

Admittedly, the percentage of gentry trial jurors was lower than the percentage of

those who sat on presenting juries, but given the fact it took only one juror to hang

the proceedings, and that roughly 25% of the trial jurors had backgrounds in either

the gentry or in royal service in some capacity, it seems impossible to believe that

leniency was a purely lower-class phenomenon. 9

McLane puts forth several possible explanations for the behavior of the

trailbaston juries. He notes that many of the jurors often could not have had much

previous knowledge of the particulars of the cases, because they were drawn from

communities removed from the scenes of the crimes. Since the only punishment for

felony was hanging, jurors may have been willing to give defendants the benefit of

the doubt, except in cases where evidence was overwhelming. Although McLane

does not mention it, this hypothesis squares well with the sheer volume of cases

heard by juries in a very short period of time; this constraint may have precluded

the ability of jurors to determine beyond reasonable doubt the truth of the

allegations. Another possible explanation lies in the chance that many of the jurors

had ulterior motives. There have been several studies which suggest that the same

individuals who were committing violent felonies were also working at times as

11enforcers11 for the local gentry, and there is one study which shows that several

members of a notorious 14th century outlaw gang went on to find employment

working for the crown. Under these circumstances the gentry might have been

loath to convict, and the townspeople who rounded out the juries might have been

concerned for their own safety if they tried to find well-connected defendants

guilty. This is a troubling explanation, but one that is certainly understandable: the

37

trailbaston was by nature temporary and would soon be dissolved, but gang

members who were not caught would still be in the neighborhood months and

years later. 1 0

At the conclusion of the trailbaston sessions the situation with regard to a

high crime rate and jury leniency seems to have been largely unchanged. In the

later 14th century we still find complaints about the level of criminal activity, and

we also see evidence that the leniency of juries was perceived as a contributing

factor. From his late 14th century pulpit in Rochester, bishop Thomas Brinton

summed up the attitude, saying:

If a voluntary murderer or most notorious thief who according to every law ought to pay the just penalty of his wickedness, is captured in order that justice may be done upon his person, as though in compassion, they strive to keep him from danger, some saying, 'He is young: if a youth has gone wrong, the old man will

1 be able to amend.' Others

declare, 'He is of our blood: if the law proceeds against him,

the whole of our clan will be shamefully disgraced. '11

Given all of this, then, we are still left with the original question: if the jury

was an ineffective tool of the judicial system, why was its continued use

supported? One explanation might be simple greed on the part of the crown. Since

the only penalty available for felony was the rope, and since the penalty for

trespass (misdemeanor in today's parlance) invariably involved a fine which was

• paid to the king's courts, it may have made more fiscal sense to reduce the charge

and collect the fee. Dead men, after all, can no longer pay taxes. There is indeed

evidence that juries were inclined to do precisely this, to reduce the severity of the

38

defendant's crime before convicting, and' the percentage of convictions on trespass

were much higher than that on felony. 1 ~ This explanation, however, falls apart for

a number of reasons. First, the penalty for felony generally included the forfeiture

of the convict's assets, which was one reason why defendants were occasionally

willing to die under peine fort et dure rather than submitting to the decision of the

jury. Since the fines associated with trespass were reasonably low, the crown

would have increased its revenue by pus~ng for felony convictions, in which case

we would see a much higher percentage of defendants hanged. Second, if the

trailbastons were in any way intended as a fund-raising device, then the same

cynical government which had instituted them would have cynically extended their

time in session. Third, as McLane points out, there is little reason to seriously

suspect that the strong wording of such documents as Winchester and Westminster

were "simply rhetorical flourishes advanced by members of the royal bureaucracy

to justify the expansion of its influence atJ.d increase its sources of revenue." 13 On

the contrary, if the crown had wanted to do so it could far more easily have simply

eliminated the jury altogether, replacing it with a system which was more favorable

to its own aims.

A more intriguing explanation for why the jury continued to find support in

the eyes of the crown has been recently advanced by Duke University legal

historian Cynthia Herrup. Although her work deals primarily with the disparity

between the numbers of accused felons and actual guilty verdicts and subsequent

hangings in early modern England, many of the contributing factors which she lists

in support of her views existed during the high middle ages, and it is therefore

worth examining her hypothesis in the context of the earlier debate. Herrup's main

39

contention is that the government continued to support the jury not in spite of its

leniency, but because of it. She begins by citing an article written by Douglas Hay

during the 1970's which made the claim that the upper classes in Britain favored

leniency by juries because through it the gentry were able to prove the moral

superiority of their class. The Marxist overtones of this conclusion have been

disputed in recent years, but the fundamental behavior of the gentry which Hay

documented has been generally accepted by legal historians. As Henup puts it, 11

the importance of his questions - regardless of the final judgment of his answers -

can no longer be contested. 11 14

Henup believes that during the 16th century members of the upper classes

believed themselves to be, above all else, men of God. She shows how

Protestantism deeply penetrated into the heart ofEnglish society, producing an

interesting dichotomy in the law and its application. On the one hand, the severity

of the written law reflected the belief that crime was a serious matter because it

was sin. Yet, on the other hand, Protestant theology was based on the concept that

all men were sinners, and that the possibility of redemption was always possible so

long as there was life. Laws, then, were written harshly with the general

understanding that the application of the law would be far more lenient than its

letter. In this way law and application can be viewed in much the same way as the

two separate testaments of the Bible: the Old Testament represents the law while

the New Testament represents redemption.

The whole legal system, Henup claims, evolved to satisfy this dichotomy.

In order for a defendant to be brought to trial on felony charges, at least twelve of

twenty grand jurors needed to believe not only that the evidence for guilt was

40

manifest, but that the appropriate punishment for the crime was death. Then, a

unanimous decision ofthe twelve trialj~rors was necessary. A panel of judges then

needed to state that they also agreed with the verdict in order to pronounce

sentence. Even at this point, there were still the possibilities of royal pardon, which

was exercised in a significant percentage of cases, or, failing that, convicted felons

might also be able to obtain benefit of clergy, which would save them from the

gallows. In total, as many as thirty or more persons in various societal stations

needed to agree that a defendant deserved death, and at each level of the

proceedings jurors and magistrates had the option of either dismissing the charges

or reducing the crime to the level of misdemeanor, which would carry a sentence

no worse than a hefty fine, corporal punishment and a fairly short stay in gaol.

In her review of trial records, Herrup notes that a significant number of

defendants were released due to mitigating factors, youth being one of the most

common. Popular media today seem to relish portraying the English justice system

in history as being exceedingly bloodthirsty, hanging children for simple theft to

the applause of teeming throngs, but Herrup's research paints a very different and

far more compassionate picture. Had the authorities been interested in seeing

greater numbers of people put to death there were any number ofways to

streamline the process. Further, if the crown wanted to impose severity it could

have either eliminated the ancient role of benefit of clergy, or stopped granting

such a large number of pardons. That it did neither is somewhat demonstrative of a

desire on the part of the government to have leniency shown in as many cases as

possible.

41

The 17th century, of course, was not the 14th century, and placing

Herrup's thesis in the context ofEnglanq during the reign ofEdward I is somewhat

problematic. The intervening years saw an astonishing number of changes: the

Black Death and the Peasants' Revolt; the rise of the middle class and the end of

feudalism; the disillusioning Wars of the Roses; and the Protestant Reformation, to

list just a few of the highlights. During the period which Herrup examines, England

was in many respects a proto-modem nation-state. England under Edward I was

part of a larger feudal "empire," with far different aspirations and fears.

Nevertheless, there are elements ofHerrup's thesis which fit in the earlier period.

Although the Reformation and its analysis of man's place in the cosmos was still

more than a hundred years in the future, the 14th century in England saw dramatic

moves in its direction. The 1300's saw the first wave of the Black Death strike

Europe, and its result would lead directly to the Statute of Laborers and,

indirectly, to the sermons of John Ball and the Peasant's Revolt. Wycliff would test

the theological boundaries of trans-substantiation and would complain of the

increasingly distant, temporally powerful and rapacious church. Both Jan Hus and

Martin Luther would claim to be his ideological descendants. Popular writers like

Chaucer and Langland, both members of the literate establishment, would echo

WyclifPs themes in subtle yet pointed verse. England in the 14th century seemed

determined to question the fundamental necessity of church hierarchy; this was not

quite the Reformation, but the assumed brotherhood of man upon which much of

Herrup's argument rests was demonstrably evolving at this time.

The structural aspects of the jury system of the 14th century was also

roughly comparable to that of the 16th century. Although the evidentiary rules

42

which limited the access of information to trial jurors had not yet come into being, I

McLane's research into the distances jurors travelled to take part in trials indicates

that jurors had already ceased to be self-informing, as their predecessors under

kings John and Henry had been. 15 The presence of jurors who also were familiar

with the defendant may have mitigated this somewhat, as they no doubt told their I

fellows the particulars of cases with which they were acquainted. Still, since

conviction rested upon unanimous agreement, the impartiality of jurors from

outside of the neighborhood could conceivably have lent itself to giving the benefit

of the doubt where possible. And there were also the layers of interlocked

procedure: presentment, unanimous trial verdict, benefit of clergy, royal pardon.

McLane's study shows that in Lincolnshire each of these were used to find

defendants not guilty, or, if convicted, to save them from the gallows.

On close examination, the system during the 14th century seems to favor

leniency, as it did during the 16th century. Again, if the king had been determined

to streamline the procedure to increase the number of convictions on felony he

could have done so. Given that the jury was a much younger entity during this

period, without the attached prestige of three or four centuries of tradition, it

would have been far easier for the king to eliminate the jury in the early 14th

century than it would have been for one of the Tudor monarches. An extension of

Herrup's thesis, then, is worthy of consideration.

Another possible explanation for the endurance of the trial jury despite its

propensity for leniency is that from an administrative standpoint the crown simply

may not have had the resources to use any other system. To understand why this

would be, we must once again recall the circumstances of the jury's establishment,

43

and we must delve into the history of the court system before Henry II wrested

control of it from the bishops. The infrastructure which supported the ecclesiastical

courts had been developing in Saxon En~land for more than four centuries before

the Norman conquest. As early as the 7th century local kings had given bookland,

or arable property exempt from standard rents and taxation, to the Church in

return for the local performance of judicial functions. 16 The kingdom ofWessex

endowed churches in each of the hundreds, further integrating the church into

individual localities, and by the 1Oth century most manors endowed a church,

bringing Church administration down to the level of the village. The pastors of

these small churches reported to the bishop either directly or through the

increasingly comprehensive system of self-supporting monasteries. By the time of

the conquest the church was a ubiquitous feature of the English countryside, and

one of its primary duties was the correction of sinners. For the rank and file

offender of the early middle ages, the Church was often the only court system he

or she would ever know, and determination of guilt and punishment was the

responsibility of the bishop through his agents in the abbeys and local parishes.

By the high middle ages, the parish church had become the center of village

activity; its walls were a storehouse, courtroom, and a meeting hall; its bells

marked the passage of the day; its ceremonies the most important moments in life;

its calendar the relaxation of feast days and festivals. 17 The Church was the most

universal feature of medieval English life, and its infrastructure extended to all

levels of society: pope, cardinal, archbishop, bishop, abbot, monk, wandering friar,

humble parish priest. If the changes wrought by the constitutions of Henry II had

removed some of the Church's jurisdiction, its authority in the areas in which it still

44

exercised control were strengthened by centuries-old custom. Moreover, the

ecclesiastical courts continued to develop an increasingly sophisticated procedural

system. There were three primary methods of fact-finding available to the court:

the declaration of oaths, or, if all else failed, ordeal; a modem evidentiary system

involving witnesses and documents; and a sworn inquest of twelve impartial

observers drawn from both the Church and the laity. 18 One study shows that the

ecclesiastical system of summons, with its threat of excommunication, was at least

as effective of the secular system of outlawry and confiscation. 19 The courts, in

general, acted with dispatch and efficiency, and, it is interesting to note, with a

good deal of mercy. This is not to say that the ecclesiastical courts were free of

difficulties. Indeed, the system was so complex, with so many concurrently active

tribunals, that the possibility of the sort of abuses which Chaucer would describe in

his prologue to The Summoner's Tale was ever-present. If anything, the

ecclesiastical system was overburdened with structure. Furthermore, the appellate

system had no method of limiting the types of evidence given in secondary and

tertiary appeals, meaning that cases were tried over and over again from the start,

which in some cases drew out the proceedings indefinitely.20 However, it is safe

to say that at the time the Constitutions of Clarendon were written, the

infrastructure of the ecclesiastical court system was extremely well-established.

In contrast to this reasonably functional and centralized system of

dispensing justice, we see two separate and comparatively disorganized legal

structures: the royal and the manorial courts, which, as time went on, found

themselves increasingly in competition with each other. These bodies not only

lagged behind the ecclesiastical system in terms of procedural sophistication, but

45

also in physical pervasiveness. Part of the reason for this lay in the complex i

political and economic nature of the feudal system, which tended to act against

centralization at both the royal and manorial level. While the bonds which

connected feudal society through blood, marriage and oath led to an unusual '

intimacy between families and regions, t~ey also deterred the accumulation of

political (and by extension, legal) power!based on geographic locale.

As an example of this complexity, we might look to the relationship

between the Kings ofEngland and the Kings of France. Because the English throne

had been held from the time of the conquest by the Normans, who held the duchy

ofNormandy by the sufferance of the French King, the Kings of England were

nominally subservient to the Kings ofFrance until the 14th century. In reality

however, the struggle between the French and the English over the rule of large

sections of modem-day France would dominate the political discourse of both of

these countries for more than three centuries. Both monarches had economic '

interests in the region, and both justified 'their claims through tradition and

intermarriage; war was inevitable. King John's inability to hold his French

territories against the French King, and his need to continually raise funds to

pursue his campaigns on French soil, was a principal contributing factor in the

drafting ofMagna Carta. Yet in a way he owed his crown to the King ofFrance,

since in 1199 he needed the approval of Louis to succeed his brother, Richard; he

even paid the French Court a heavy relief for this honor, as any vassal would to

secure the approval of a petition.21 Later in the 13th century, when his son Henry

m was confronted with the rebellion of de Montfort (who was both French by

birth and the founder of the English Parliament) and the humiliating Provisions of

46

Oxford, the English monarch relied on the pious king Louis IX, his feudal

overlord, for adjudication ofthe matter.

By virtue of this same complexity, the relationship between Henry and his

vassals was often difficult to fathom. The barons who had accompanied William in

his adventure across the Channel did so with the understanding that they submitted

to his feudal superiority in exchange for reward in the form of conquered English

estates. This relationship, however, did not necessarily preclude other obligations

which they still held in France. Their descendents often had estates on both sides of

the Channel, and often had competing feudal obligations. When combined with the

extremely complicated economic arrangements which dictated who was allowed to

occupy which pieces of land and under what terms, it is easy to see how alien the

concept of the centralized State was to t~e Medieval mind.

William had made great strides in extending his own authority over his

vassals, and succeeding Kings, when strong, had furthered their ancestor's work.

Still, the English barons who held estates in England logically assumed that the

ancestral right which they gained through the conquest to adjudicate matters in

areas which they owned was sacrosanct. Given that the disposition of cases often

included fines paid directly to the manor, the Barons jealously guarded their

jurisdiction. The infrastructure necessary to apply justice in the manor courts,

however, was not sophisticated, and usually centered around existing legal

structures, particularly the hallmote and Hundred Court. These ancient structures,

based on village and district, respectively, had for time out of mind dispensed

secular justice within the community. Upon taking over a manor, the Norman lord

would titularly place himself at the court'~ head. But there were difficulties with

47

this scheme. Since the holdings of indivi~ual Barons were often spread over

enormous geographical areas, it was difficult for them to understand the day-to­

day workings of their estates and the villages which they controlled. This was

finessed, to a degree, by the offices of the bailiff, who took care of an individual

manor, and the steward, whose job was to oversee and keep order on the totality

of the lord's demesne. But the steward, the high-ranking official who physically

oversaw the hallmote, had many sundry manors under his care, and the bailiff, who

at least resided in the locale, was not particularly powerful and, as he was

appointed solely by the lord, had no firm connection to the villagers.

The most influential villager, the reeve, who was often a villein (the English

term denoting serfdom), occasionally took part in the manor courts and hallmotes,

but his loyalties were divided. Primarily he was a farmer; his administrative duties

usually ended with securing the lord's ha~est, a job which generally worked to the

benefit of the village as well as the lord. J'he duties of the reeve were time­

consuming, however, and sometimes poorly compensated, which is one reason

why many people chosen for the position preferred to pay a fine rather than take

on the additional workload. 22 Since the reeve was at heart a villager, he hadn't the

inherent devotion to the lord which might have led him to take the job out of a

sense of honor. For the same reason, he was not necessarily interested in seeing

justice done for the lord, especially when that justice might be to the detriment of

his neighbors and friends. On the contrary, the court roles contain examples of

reeves colluding with villagers against the local manor, which is not surprising

since the reeve was usually selected by his fellows on the basis of his leadership

abilities as well as his expertise in husbandry. 23

48

Two other elements of the attituoe of the villagers are important to gain an

understanding of the difficulties the manor faced in exerting its will with respect to

the villagers. The first is a general distrust toward outsiders. Feudal England was in

truth a very large kingdom comprised of very small communities. The cohesiveness

of these communities stemmed in part frpm their ancient origins; many if not most

of the villages in England had been in more or less continuous settlement since the

time of the Saxon invasions of the 6th century. They had seen a variety oflocal

rulers and distant kings; the Normans, who spoke another language and who had

alien mannerisms, were but another in a line of outsiders claiming control over the

lives of the villagers who were tied to the land by tradition as much as by

villeinage. Local control of the manor was transient; the village and its inhabitants

endured. The lord might command obedience, but he could not demand blind

respect, much less affection.

This may partially explain the oc~asional occurrence of lords losing suits

within their own manor courts, although to the modem mind this seems strange

indeed, rather like the jurors finding against the judge. Yet it did happen. For

example, in a case in Sussex in 1315, the tenants of the Bishop of Chichester

brought suit at the Bishop's hallmote claiming that they were not bound to perform

certain cartage of the Bishop's goods (dung, as it happens), and after three inquests

the court found in favor of the claimants, basing the decision on local custom. A

minor case, to be sure, but not an isolated one. 24 Even more striking are the cases

where the communities as a whole acted in concert to bring civil claims against the

manor for control ofland or adjustment of rents. Theoretically, the villagers held

the land at the sufferance oflord. In practice, however, they believed that they had

49

certain rights granted to them by traditidn, and there are cases where their claims

were upheld. An example here is the case of the tenants of a lord in Wiltshire in

1295, who refused to pay more than the:traditional amount when taking over lands

upon the deaths of parents. They did not deny that they needed to pay this fee,

only that the amount had been set by custom, and that it was not within the

purview of the lord to adjust the rate. The Wiltshire court roll does not indicate the

final disposition of the case, but the outcome is not so important as the fact that

the villagers felt that they had the right to bring the suit. 25

I

The adherence to custom which :granted such rights is the other aspect of

the medieval English village which made it difficult for the lord to assert himself

against his villeins. His overriding concern for order and stability compelled him to

allow a certain latitude toward the interpretation of the law. The alternative was

worse than his occasional losses. In total~ suffice it to say that the system of manor

courts which had no person with both ticls to the village and loyalty to the lord, I

coupled with the traditional understanding of justice as based within a semi-

autonomous community, made it difficult for the baron to insinuate himself into the

workings of local justice.

The first section of this study observed how the institution of the jury was

tied to the attempt of the King to diminish the power of the ecclesiastical courts,

but one of the recurring themes of English constitutional documents from the

middle ages is the attempt to wrest jurisdiction from the manor courts as well. By

the end of the thirteenth century, most all cases involving what we would today

consider felony or serious misdemeanor had been subsumed under the bailiwick of

the royal courts, and the King was rapidly moving to subsume the lucrative civil

50

cases as well. Yet while the crown was making the concerted effort to absorb all I

jurisdictions into his own, it faced the same difficulties in dispensing local justice

that the barons did. Indeed, given the much larger area which the king controlled,

he was even further removed than the barons were and faced a greater challenge.

The king had at his disposal two institutions to handle the caseload. These were

the central royal courts in most shires and hundreds, and the eyres, true circuit

courts in which the royal representative periodically rode from village to village

lending the King's authority to the verdicts of the jury. His local representative was

the Sheriff, or Shire Reeve, but where the manor's bailiff might be responsible for

several of the lord's villages, the sheriff might be responsible for several hundred.

There is simply no way that he could have had more than a cursory acquaintance

with the individual communities within his jurisdiction. The problem of local

enforcement, once again, falls to the presenting jury, made up of freemen, sworn to

do justice on behalf of the king. The jury may have endured simply because there

was no other body in existence which might have taken on its responsibilities.

Assembling a new infrastructure with clear loyalty to the crown, especially in

matters of enforcement, may have been an administrative impossibility.

One more item needs to be mentioned here, specifically the king's

motivation in law enforcement. Clearly the king was interested in keeping the

peace for moral reasons, and in the 13th century the keeping of the peace also

began to have an economic motivation, since the earliest seeds of capitalism were

germinating at this time. 26 Industry needs peace in order to prosper, and the king

needed industry to prosper if he was to continue to collect revenue from it.

Edward I's concern with violent felonies is therefore understandable. But the king

51

!

also had the motive of eliminating local corruption, which both cost him directly

and which infuriated his subjects. The best way to achieve this end was to rely on I

presenting juries with direct knowledge bfthe offenders. To return to the example

of the trailbaston, these courts were not only interested in the rising rate of felony,

they were also charged with rooting out graft. A substantial number of the cases

(although by no means a majority) cited !in McLane's study dealt with precisely this

problem. It is interesting to note that 83% of the officials brought before the bar

for various forms of misconduct were found guilty.27 Edward I most likely felt I I

that the locals, as was their tradition, would police themselves for their own

common good. The king didn't have to worry about the occasional (or frequent)

acquittal of felons - the villagers had to live with the murderers, after all - so long

as the juries were fulfilling the more important symbolic duty of extending royal

control in the shires.

The succeeding century and a half saw little substantial change in the

procedural workings of the presenting and criminal trial juries, although there was

in some ways increasing dissatisfaction with the system. By the 1400's, the

monarchy had problems simply maintainiing orderly succession; the Wars of the

Roses, which were the outstanding political feature of this period, would drag on

for the better part of a hundred years. When the dust settled, and Henry Vll had

established for the Tudor family a solid grip on the throne, England had emerged

into the early modem period as a more centralized bureaucratic-state. As part of

the reforms of his reign, Henry turned his attention to the jury and found much that

he disapproved of The procedural changes which he made will be discussed in the

next section of this study, but it is worth noting here that in an effort to influence

52

the outcomes of cases he limited the amount of infonnation which the jury might

consider in its deliberations, and he created the Star-Chamber to deal with, among

other things, recalcitrant jurors who refused to find by the principles laid out in his

procedural refonns. Yet the jury was now more than three centuries old, and had

assumed its place as a timeless feature of the common law. Officials and magnates

sought its protection in much the same way as did the common man. What had

once been an imposition of the crown designed to extend royal authority had

become a device which insulated the individual from the caprice of a strong

government.

Still, Blackstone's assertion that the jury was the central guardian of

English liberties was a long way from reality. The medieval jury had survived its

infancy, and while it had been perhaps influential in maintaining local autonomy,

the truly liberal aspects of the jury would wait until the English Revolution of the

17th century, the true assertion of consent of the governed, and the cases of

Lilbume and Bushel, which will be taken up in the next section of this study.

Footnotes

1Matthew Hale, The History of the Common Law of England, Charles Gray, ed. (Chicago: Chicago University Press, 1971).

2Blackstone, William, Commentaries on the Laws of England, vol. 3 (London, 1768) p. 350.

3 Constitution of Clarendon, Introduction.

53

4This generalization is a fair reading of the historical facts. The most important documents of Henry ill's reign, arguably, were the Charter ofthe Forest, which was issued when he was a child, and the1Provisions of Oxford, which were forced upon him by de Montfort's rebellion, and which resulted in a diminution of his powers.

5Statute of Winchester, 1285, introduction.

6Statute of Westminster, 1275, introduction.

7 Calendar of Patent Rolls, 1301-1307, p. 343.

8Bernard William McLane, "Juror Attitudes toward Local Disorder: The Evidence ofthe 1328 Lincolnshire Trailbaston Procedings," published in Twelve GoodMen and True, Cockburn and Green, eds. pp. 36-64.

9ibid. p. 42.

10ibid., pp. 53-64.

11 G.R Owst, Literature and Pulpit in Medieval England (Oxford: Oxford University Press, 1966).

12There are a variety of sources on this. See especially Green, Verdict According to Conscience, epilogue and conclusion.

13 McLane, p. 38.

14 Cynthia Herrup, "Law and Morality in Seventeenth Century England," Past and Present, no. 106, p.l04.

15 McLane, p. 57.

1~obert E. Rodes, Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (Notre Dame: The University ofNotre Dame Press, 1977), pp. 16-20.

54

17 George Caspar Romans, English Vill~gers of the 13th Century (New York: Russell and Russell, 1960), p. 384.

18Rodes, p. 143-146.

19B. Woodcock, Medieval Ecclesiastical Courts in the Diocese ofCanturbury (Oxford: Oxford University Press, 1952).

20 d Ro es, p. 142.

21King, Edmund, England 1175-1425 (New York: Scribners, 1979) p. 125

22Homans, pp. 298-301.

23 "b"d 1 1 .

24Homans, p. 320. See also Francis and Joseph Gies, Life in a Medieval Village (New York: Harper Perennial, 1991), pp 183-185.

25 Romans, p. 321.

26 As an example ofthe increasingly capitalist nature ofthe 13th century in England, the automation of textile manufacturing through the use of the fulling mill began during this period. Fulling mills required a substantial investment in start-up outlay, and the revenues generated formed the basis of the 13th and 14th century economy in many areas in southern England.

27McLane, chart p. 55.

55

CHAPTER FOUR

THE JURY IN~ MODERN PERIOD: I i

NON-COERCION AND S!ANCTION NULLIFICATION I I

The early modem period in Engl~sh history, falling roughly between the

years of 1500 and 1800, would see the jury at both the nadir and zenith of its

influence. As the period opened, the jury as an institution found itself under

increasing criticism from observers who :felt jurors to be inefficient, simple-minded,

and overly prone to leniency. Yet, by the middle of the 17th century the court

would support a finding of not guilty in a celebrated case of treason, in which the

defendant, John Lilbume had clearly violated the letter of the law. Within a decade

after this decision, another high court w<;>uld remove the coercive potential of

judges to direct the verdicts of juries through force, establishing the independence I

of juries which has, with some modi:ficat~on, survived to this day. Both ofthese

decisions were caught up in the circums~ances surrounding the Puritan Revolution.

To understand the prevailing political climate ofthe period and its effect on the

application of the law through the jury, it will perhaps be instructive to examine the

writings of some of the principle legal scholars of the time. Before doing so,

however, this study must first touch upon the procedural changes which had been

made as the common law emerged from the late middle ages.

As was mentioned in the preceding section, what had been the jury's main

appeal under a succession of embattled monarchs now became its greatest

drawback; it represented an independent force within an emerging, centralized

56

I

bureaucratic state. The ennui with whic~ earlier kings had accepted deficiencies in I I

the jury system had been replaced by thd intense desire of the early modem I

I

monarch to regulate all official duties wi~hin his realm. The attack was never I

completely overt; during the sixteenth cJntury the king was loath to dissolve a I

legal entity which had existed now for Jore than three centuries. But we can begin

to see a growing impatience with the workings of the jury as early as the reign of

Henry VII.

Henry's major move against the jury was the creation of a court which

could operate outside of the common law, yet would have the authority to deal

with abuses within the common law system. The court was called the "Star

Chamber," the name deriving from the stars painted on the ceiling of the

courtroom. Star Chamber would become synonymous with unchecked royal

prerogative. As we can see by the act which created the Star Chamber, jurors were

one of the prime targets of its authority, land its legitimacy was in part derived by

assumed misuses of the jury in history:

... The king, our sovereign lord, remembereth how, by unlawful maintenances, giving ofliveries, signs and tokens, and retainders by indenture, ... untrue demeanings 6f sherriffs in making of panels and other untrue returns, by taking of money by juries, by great riots and unlawful

assemblies, the policy and good nlle of this realm is almost subdued. 1

(italics mine)

Henry continues to mine the same vein throughout the text of the statute, claiming

that the record of abuses has led to a grqwing number ofbreaches ofthe peace:

57

bureaucratic state. The ennui with which earlier kings had accepted deficiencies in

the jury system had been replaced by the intense desire of the early modem I

monarch to regulate all official duties within his realm. The attack was never

completely overt; during the sixteenth century the king was loath to dissolve a

legal entity which had existed now for more than three centuries. But we can begin

to see a growing impatience with the workings of the jury as early as the reign of

HenryVIT.

Henry's major move against the jury was the creation of a court which

could operate outside of the common law, yet would have the authority to deal

with abuses within the common law system. The court was called the "Star

Chamber," the name deriving from the stars painted on the ceiling of the

courtroom. Star Chamber would become synonymous with unchecked royal

prerogative. As we can see by the act which created the Star Chamber, jurors were

one of the prime targets of its authority, :and its legitimacy was in part derived by

assumed misuses of the jury in history:

... The king, our sovereign lord, remembereth how, by unlawful maintenances, giving of liveries, signs and tokens, and retainders by indenture, ... untrue demeanings of sherriffs in making of panels and other untrue returns, by taking of money by juries, by great riots and unlawful

assemblies, the policy and good rule of this realm is almost subdued. 1

(italics mine)

Henry continues to mine the same vein throughout the text of the statute, claiming

that the record of abuses has led to a growing number of breaches of the peace:

57

I

... whereby the laws ofth~ land in execution may take little effect, to the increase of murders, robberies, perjuries, and unsureties of all men living, and losses of their lands ahd goods, to the great displeasure of

Almighty God?

It is clear that Henry bases his decision ro create the Star Chamber on the history

of abuses which he claims have existed in earlier periods and have been recently

accelerating. Yet how accurate was this portrayal of the state of affairs during the

fifteenth century? It was not completely out of line, but it certainly overstated the

problem of increasing lawlessness. If we' were to accept at face value the claim of

every age that crime is on the rise, the percentage of the population engaged in

felony today would most certainly exceed one hundred percent. Most studies of

the subject of felony in England indicate that rate ofviolent crime in that land

reached its high point at some point in the high middle ages. If anything, felony

was declining, not increasing, when Henry created the Star Chamber.

Henry also made other attempts at the limitation of the jury's authority, but

these were largely brushed aside. In 1495 he sought to eliminate the power of the

grand jury in capital cases, but the statute was quickly removed by the growing

power of Parliament, and here we glimpse another view of the utility of the jury.

While Henry may have chafed at the power of the independent jury, the judges

who would have had to do the king's bidding in their place were less than

enthusiastic about taking on the responsibility. The judges may have agreed with

the king that abuses within the jury system were troubling, but they had no desire

to take on the magnates within their preCincts who brought the pressure against

the juries to bear. John Spelman, a sixteenth century judge and legal historian,

58

summed up the situation: "The judges squght refuge from the evils of mankind and '

the agonies of decision by umpiring the ancient game strictly according to the I

rules, and by refusing to meddle with qu~stions offact."3 Spelman and his

contemporaries clearly understood the shield that the juries represented to their

own peace, and were loath to have that shield removed for the benefit of the king.

By the end of the sixteenth century and the reign of Henry's granddaughter

Elizabeth, we find that a considerable degree of restraint has been placed upon the

jury in terms of procedural rules which ~xpanded the power of the bench, making

the jury a body similar to its present-day descendant. By this time, the jury is no

longer self-informing~ that is to say, its members no longer gather information

before the trial, and they tend more to listen during the proceedings than to

speak. 4 The judge has gained the power to regulate what information about the

crime is available to the jury, and the instructions for the jury have become more

explicit. There are three primary explan~tions for this change: first, that juries too

frequently find in favor of manifestly guilty defendants~ secondly, that the jurors

are acting in a corrupt fashion~ and thirdly, that the jurors available to the court are

simply too rustic, illiterate, and foolish to deem carefully in the matters placed

before them. 5 As an outgrowth of this perspective, we see an increasing

willingness on the part of judges to prod jurors in the direction it desires, whether

for acquittal, or, more often, guilt. This coercion took several forms~ jurors might

be fined or imprisoned for failure to reach the "proper" verdict, or they might, in

cases of treason, be bound over to Star Chamber.

We should expect to see, then, that the jury during the 16th century began

to convict in higher percentages. There is substantial evidence that it did so. At the

59

time, there were two potential methods by which a jury might acquit a defendant.

It could either dismiss the charge completely, rendering an outright acquittal, or, as i

we saw during the earlier periods, it might render what is known as a "partial"

verdict. By this, the jury would reduce the charge considered and then find guilty

of the lesser charge. In his excellent analysis ofHome Circuit records from 1560-

1670, noted University ofMaryland legal historian J. S. Cockburn has

demonstrated that acquittals by both methods fell sharply and then rose again.

Determining a causal reason for the change in acquittal rates is difficult, but

Cockburn puts forth two possible explanations. First, there was an increasing rate

of literacy in England during this time, and jurors may have been better acquainted

with their rights as the 16th century drew to a close. Before this, judges may

simply have not informed jurors that it was within their prerogative to lessen the

severity of the charges. Also, Cockburn finds evidence that the number of repeat

jurors, who had more experience in knowing the remedies available, increased as

the propensity for rendering partial verdicts returned to their pre-16th century

levels. Again, this may simply have been a coincidence, but it is certainly a curious

one.6

One other development of the late 16th century should be mentioned here.

It was during this period that the practitioners of the common law began searching

through the quasi-historical documents available to them in an effort to legitimize

their claims before the bar. One reason for the rise of legal antiquarianism stems

from the nature of the common law itself Since the common law evolved during

the middle ages, and was based primarily on precedent within living memory, most

of its decisions dealt with medieval matters: law between vassal and king, villein

60

and baron. Sixteenth century society, however, was evolving so rapidly that many

of the concepts enshrined within the coriunon law were already obsolete. A

growing and increasingly wealthy middle class, combined with the advent of

widespread private property, forced the :lawyers of the period to scour the records

for analogous cases. This practice would have a great impact on the development

of the modem common law system. Afterwards, the increasing use of ahistorical

legal precedent would aid in the rapid expansion in complexity of case law, and

would provide a foundation for more radical claims about the authority of the

jury_?

The seventeenth century would yield for the modem historian of the

English legal system an enormous bounty. In the turbulent years which would

produce the execution of a king, the establishment of a commonwealth, and the

restoration of a royal family we are given competing perspectives on the common

law and the jury system. Here, for the first time are arguments which ring true for

present-day analyses of political philosophy; questions regarding the divine right of

kings, the supremacy oflegislative power, the economic rights of men and the

power balance between government and governed. In the field of legal philosophy,

two arguments were put forward to question the legitimacy of monarchy and of

the common law, and each relied on a very careful reading of history to buttress its

conclusions.

The first of these belongs to the historian and philosopher Sir Edward

Coke, who published his first opinions qn the common law in 1600. Coke's version

of history claimed that the common law tradition stretched back before the

Norman conquest of 1066, and that the common law itself was nothing more than

61

the accumulation ofwisdom over the agbs. The law was the embodiment of human I

I reason given force solely by its continuetl existence; the law's legitimacy

I

strengthened by the simple passage of d~ys. 8 The accumulated wisdom of the law,

therefore, far surpassed the wisdom of any individual, regardless of his position.

"Our days upon the eartq are but as a shadow in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many !successions of ages, by long and continual experience, fined and refined ... And therefore it is ... that no man ought to

take it on himself to be wiser than the laws. n9

Furthermore, Coke argued, attempts to change the institutions of the law were

generally more to the detriment of the society than to its benefit, because such

changes acted against the gathering fore~ of history.

But there is a paradox here. Coke expands on the ideas of his

contemporaries who claim that the law evolves through the custom and precedent

which are reflected in the opinions of judges. The unwritten law, therefore, is as

important (or more so) as the statutes enacted by king and parliament. But if the

law is not to be changed by the actions of any given man, how are the judges able

to act? The paradox is resolved by the assumed ambiguity of the unwritten law - if

a judge's ruling is upheld by other judges in later years, then the ruling was correct.

The reasoning here is somewhat circular, but the overall argument was appealing

to many groups active in the law; not surprisingly, judges found it particularly

agreeable.

62

Coke's notion of legal history as ihaving a force of its own was also an

attractive idea to those parliamentariansiwho would behead king Charles later in '

the century. Since the king had made thb effort to place himself above the law, and

had acted with increasing indifference both to the law as determined by judges and

the statutes enacted by Parliament, he showed himself to be acting outside of

custom. Coke's history argued that since the law preceded even the Normans, the

new Scottish occupants of the throne cl~arly had no right to dismiss it.

Despite the underlying links between common law and jury, however,

Coke spends little or no time overtly describing the role of the jury or its authority.

As an element of English custom, of course, Coke's philosophy would argue that

attempts to remove the jury as a part of.the legal process would run counter to

progress. But Coke is more concerned with the larger framework of the English

justice system. His reading ofhistory, however, would have a profound impact on

another group which was growing in England at the time, and which made the

most radical claims about the role of the jury - the Levellers.

As a distinct group, the Levellers originated in Cromwell's New Model

Army in 164 7. Their initial aims dealt with issues common to private soldiers;

payment, stationing on foreign soil without their consent, and the circumstances of

their severance from the army. However, in their first major pamphlet, The Case of

the Armie Truly Stated, they also called for the dissolution of Parliament and for

changes to the structure of future Parliaments. They disliked especially the House

ofLords, and argued for its abolition.

The Levellers were the first majer movement in English history to seriously

advocate what we today would consider democratic ideals. In The Foundations of

63

Freedom, or an Agreement of the People (1649), they argued that government

derived its authority from the people, that the powers in government should be

separated from each other, and that individuals had inalienable rights beyond the

authority of any governmental interference. Primarily, their aim was to alter the

inequitable structures of society, or, failing that, to remove the statutory obstacles

which prevented the commoner from having a fair chance in the system. One of

their pamphlets, The Bloody Project, gives a concise overview of their aims, and it

is worth a lengthy quotation here to illustrate their goals. It is also of interest to

note how many of these ideas, which earned their author's arrest in 1648, are now

embodied in the American Bill of Rights:

Parliaments should have no power to punish any person for doing that which is not against a known declared Law, or to take away general property, or to force men to answer to questions against themselves, or to order tryals, or proceed by any other ways then by twelve sworn men. Who would not rejoyce to have such boundaries?

Then, that the proceedings in Law might be rectified, and all Laws and the duty of Magistrates written and published in English: That the Excise might have a speedy end, and no taxes but by way of subsidies: That Trade might be free, and a less burthensome way for the maintenance of Ministers be established, then that of Tythes; and that work and necessaries be provided for all kind of poor people. Certainly for the obtaining of these things a man may justly adventure his life; all these being for a common

good. 10

Although there were several strains ofLeveller thought, for the purposes of

this study the most important was led by a man named John Lilburne, who was

born to a family of modest means in 1615. Lilburne received the basic grammar

school education before being made an apprentice in the cloth industry. His

64

primary influences were, by his own accpunt, religious texts and histories, and his '

later political thought would be greatly ihrormed by the application of both of I I

these subjects. By the time that the Lev¢llers became a distinct and identifiable I

group, Lilbume was no stranger to political and religious controversy. In 1637 he

was jailed for printing anti-Anglican tra~ts, for which he was sentenced to

flogging. The Leveller philosophy whicH he helped to develop based itself upon an

assumed prehistoric community lacking the rigid hierarchy ofthe early-modem

nation state. The basis for this belief lay in the Calvinist interpretation of scripture

which holds that the ultimate relationship is the one between God and individual,

and that all others obscure and subvert the divine order. Levellers believed that the

reduction in the power of the monarch within the state was not only desirable, but

necessary:

"Upon a due search into the causes of God's heavy judgements, we find (a) that injustice and oppression, have been the common national sins, for which the Lord hath threatne,d woes, confusions and desolations, unto any People or Nation; Woe (saith God) to the oppressing City. Zeph. 3. 1. II 11

Lilbume agreed with Coke's view of the developing nature and

immutability of the common law, but he differed with Coke on two important

issues. First, he claimed that the jury preceded the organized judicial system.

Second, in a radical departure from Coke, he claimed that the Normans had done

everything within their power to subvert the role of the jury. How he might have

squared this belief with the widely-known Magna Carta, which was written by

65

I

!

barons who were for the most part ofNbrman descent, and forced upon King I

John, also of (partially) Norman descent~ and which guarantees (under certain

circumstances) the right to trial by one's peers, is never made clear. In actuality, by

the time of the Angevin kings the entire pusiness of who precisely the Normans

were had become a troublesome question. King John was related to the Conqueror

through his grandmother, but his mother Eleanor came from the region of

Aquitaine- not English, to be sure, but not Norman either. The very word

"English" is problematic when applied to the middle ages, because it assumes a

larger cultural and political community which was an alien concept to the time.

Lilburne does not trouble himself about the murky distinctions which his

labels implied. Although he never states it implicitly, it is probable that he believed

the Magna Carta had been forced on John by local Englishmen, but even this by

itself is a wild misreading of historical fact. Most likely, Lilburne believed in the

eternal nature of the jury because he wanted to do so, since the jury was the one

facet of the English legal tradition where the people were given a voice.

It should be noted here that the Levellers were not the only people who felt

that the common law had evolved into a: method for oppressing the lower classes.

As many scholars, including respected British social historian Christopher Hill,

have noted, admission to the Inns of Court was almost exclusively limited to the

gentry, and there were a variety of contemporary observers who found the

situation troubling. Lawyers themselves were widely disliked: as one proverb put

it, "If you go to law for a nut, the lawyers will crack it, divide the shell between

you, and chop up the kernal for themselves." 12 Dick the Butcher's line, "The first

thing we do, let's kill all the lawyers," in Henry VI, Part 11, may have summed up

66

the general attitude toward the bar duriqg the period when Shakespeare wrote it.

The jury was a way of combatting the e*clusive nature of law which developed as I

more and more aspects of commerce wJre bound to it, and the number oflawyers !

rose.

The deep reservoir of spiritual f~eling latent in the Leveller view of law led I

them to make profound judgments abou~ the usage of the jury in overturning those I

I aspects of the law which perverted the divine ideal. For example, they strongly

opposed the Tudor-Stuart statutes which made theft a capital offense. The law

books of the Bible, such as Leviticus and Exodus, make clear the necessity for

approximate parity in crime and punishment; hanging teenagers for theft of food,

which happened in seventeenth century ¥ngland, was clearly wrong. Many of the

tracts published by the Levellers deal with this theme: "That it shall not be in their

(the government's) power to make or continue any Law, for taking away any mans

life, except for murther, or other the like hainous offences destructive to humane I

Society." 13 The Levellers were by no rrieans the only people at the time who

objected to the extreme punishments exacted from defendants whose crimes were

comparatively minor, but they were the only group to claim the jury should be

invoked as a hedge against such draconian measures.

In his mature years, Lilburne had no difficulties in justifying the execution

of the English monarch, whom he viewe'd as the latest in a long line of tyrannical

Norman oppressors. However, he also disagreed with the Long Parliament which

replaced Charles because its Members were inclined to, in his view, overstep their

mandate by interceding in the prosecutiqn of criminals. This, under Lilburne's

philosophy, made the Parliament no better than the king who they replaced. His

67

I

tracts on this subject in the late 1640's v?ould lead to his imprisonment for treason, '

and would lead to his most radical declaration as to the authority of the jury

system. I

In mounting his defense against the charges, Lilburne first exhausted the I I

appeals to the bench which were derived from the fundamental tenets of Leveller

thought: that the court, as a representative of an oppressive regime, had no right to

try him; that the language in which the indictment against him was written (legal

French) was unintelligible to the layman; and that his lack of familiarity with the

proceedings demanded that he be represented by council paid for by the State. His

requests were met by a bench clearly influenced by Coke's version of history. In

denying Lilbume's appeals, Judge Lermin stated:

"But you must know that the law ofEngland is the law of God ... It is the law that has been maintained by our ancestors, by the tried rules of reason, and the prime laws of nature; for it does not depend on statutes, or written and declared words or lines. If you refuse to hold up your hand (in plea),

I

you do willfully deprive yourseWofthe benefit of one of the main

proceedings and customs of the laws of England. l4

Lilbume, once he finally agreed to enter a plea, did raise several salient

points as to the nature of the factual evidence against him, but in a remarkable

speech to the bench, he claimed, "The jury by law are not only judges of fact, but

oflaw also: and you that call yourselves judges of the law, are no more but

Norman intruders; and in deed and in truth, if the jury please, are no more but

ciphers, to pronounce their verdict." 15 (italics mine).

68

Here Lilburne claims that the judge has no real authority in the matter, and

that the jury has the right to determine matters of law as well as matters of fact. I

Considering the disrepute in which the jt;Iry had been held during the preceding I

centuries of common law, this was an astounding and revolutionary idea. At this I

I

time in the evolution of political philosophy in England, the question of even

judicial review ofParliamentary statutes: was by no means certain. To make the I

case that the uneducated people who comprised most juries should be given this

power with no formal training in legal precedent or procedure was radical in the

extreme. The jury acquitted Lilburne of all charges. It is recorded that even the

jailers who escorted him from the courthouse joined in the riotous cheers of the

teeming crowd gathered outside.

The most amazing chapter of this story would not be written for another

twenty years. After the Restoration of t4e English king, Parliament once again

passed into the hands of Anglicans inter~sted in rooting out the radical strains of

English Protestantism. One troublesome group to which it turned its attention was

the Quakers, who refused to take oaths of allegiance and denied the hierarchical

structure of the Anglican church. The Quakers, although a small minority, were an

annoying one, and one which was gaining converts. Lilburne himselfwould

become a Quaker before he died. In an effort to stamp out the Quakers, or at least

stem the tide of conversion, Parliament passed the Conventicles Act (1664)

declaring the public preaching of Quaker sermons as unlawful assembly and

incitement to riot. Penalties under this statute consisted of seven years

transportation or a fine of up to the fantastic sum of 100 pounds. The most famous !

69

i of the Quaker prosecutions under the A?t was lodged against William Penn, who

was indicted for holding a public meeting on August 14, 1670. I

Penn is an interesting figure in English history. His father was a highly I

successful admiral in the navy, who sho~ed extraordinary political acumen by I

supporting first Cromwell and then Chafles, the man who would be restored to the

' English throne. He had very high expec~ations for his son, who was installed in

school at Oxford, in the hope that he would pursue a career in law. Young

Willia.tl\ however, had other ideas. Wh~n he returned from Oxford at the age of

18, he declared that he had become a Qilaker, a decision which promptly moved

his father to banish him from the family home. Although he eventually reconciled

with his father, he never renounced the Quaker faith, and he used a substantial part

of the family fortune defending other Quakers jailed under the Conventicles Act.

In the trial which followed his own indictment, Penn, echoing the

sentiments ofLilbume, addressed the jurors, "The question is not whether I am

guilty of this indictment, but whether this indictment be legal." Unlike the Lilbume

case, however, Penn freely conceded the facts of the allegations against him, so

when the jury refused to convict, there could be no doubt that they had done so I

because they disagreed with the law. Following the custom of the day, the

presiding judge fined four members of the jury for failing to convict in a case

where guilt was manifest, and he threw them into jail until the fines were paid. The

jury foreman, Edward Bushel, refused to pay, and languished for several months in

Newgate prison. He brought a writ of hhbeas corpus on the grounds that the judge

had no right to imprison him for his actions as a jury member. Bushel ultimately

prevailed in 1770, and the judge who took the writ, Chief Justice Vaughn of the

70

Court of Common Pleas, wrote a famous opinion which declared the coercion of

jurors illegal. The ruling stood the test df time, and juries since then have had

within them the assumed right to deny conviction based upon their own !

conscience. The concept of the jury as a! law-finding body had become a part of the I

common law.

1 Sources, p 299.

2"b"d 1 1 .

Footnotes

3 Reports of John Spellman, 2: 106-107.

4Thayer, J.B. A preliminary Treatise on Evidence at the Common Law (1898), 90-129.

5cockbum, J. S. "Twelve Silly Men? The Jury Trial at Assizes, 1560-1670," Twelve GoodMen and True, 158-159.

6ibid., 170-173.

7 Gray, History of the Common Law, Introduction, xx.

8Greene, p 63.

9Coke, Seventh Reports, Calvin's Case.:From the edition edited by Thomas and Fraser (London, 1826).

10Haller p 144.

71

11ibid., p 106.

121. W. Ives, ed. The English Revolutioh 1600-1660, p. 115.

13Haller p 325 (XXI).

14State Trials, 4: 1289- 90. Reprinted In Green, Verdict According to Conscience, p 171.

15ibid. p 1379.

72

CHAPTER FIVE:

CONCLUSION I

The combination of the Lilburne' and Bushel cases represents a substantial '

milestone in the advancement of civillib,erties. In the first instance, a law duly I

enacted by Parliament restricting the freedom of the press was in effect overturned

by a group of private citizens. These citizens, moreover, had no formal legal

training or expertise; they simply reacted in a rational manner to a law which they

considered unjust. Before Lilburne, judges might have pushed juries to acquit in

cases where the judge found the law distasteful. But in the English system at the

time (and arguably, to an extent, today) judges served at the pleasure of the

crown; if they had aspirations to higher position they needed to be cognizent of

political forces which had the ability to destroy their careers. The Lilburne jurors,

on the other hand, were under no such pressure. In this, the Levellers were correct

- the jury was the only place w}lere the individual had the ability to influence the

greater wheels of government, unfettere~ by anything but the voice of his own

conscience. The sole difficulty with this scheme was the potential for coercion by

the bench, which was at times strongly interested in seeing particular verdicts.

Bushel's Case eliminated this possibility~ guaranteeing the freedom for juries to

make decisions based purely on reason.

This study began with a quote from Blackstone, and the reader is now I

(hopefully) in a position to determine whether Blackstone was right. In a sense, he

was. The jury did guarantee a measure of freedom to the Englishman. But

73

Blackstone was also wrong when he claimed that the jury had "ever been looked I

upon as the glory of the English law." The jury has been at various times favored i

and despised, and its ability to seriously limpact legislation was a comparatively I

recent development. Still, the jury's abili~ to act with independence, coming as late

as it did, was a welcome addition to a ceuntry with no written constitution. Extra­

governmental review of statute, in whatever form it might have taken, was a very I

substantial development on the long road to freedom.

The final question remaining in any study such as this one is obvious - what

impact does this all have on the modern world? In a sense, it means nothing, and

does nothing beyond providing the comfort of simply knowing. But legal history,

particularly regarding a judicial system that relies on precedent, as the common law

continues to do in both the United States and England, is not necessarily esoterica.

The potential for infringement on individual liberties has never been as high as it is

now. The electronic age which continues to make life easier has also brought forth

a dizzying array of possibilities for the infringement of privacy. The Bill of Rights

is a comforting document, but its interpretation always relies on judges who are

part of a much larger structure of government. As the erosion of search and

seizure laws in the 1980's demonstrated, we must never trust completely in the

benevolent attitude of government toward individual freedom. If the jury has done

anything worthwhile in history, it has allowed the individual a direct say in the laws

which govern his or her fellows. Pruden~e dictates vigilance, and insofar as the

jury continues to provide such vigilance,' it should not be lightly curtailed or

abandoned. Through a better understanding of the role the jury has played in the

advancement of liberty, it is hoped that citizens today will be more inclined to

74

i protect the independence of the jury, despite the drawbacks which today bring its

I

utility into question.

75

I ANNOTATED! BIBLIOGRAPHY

I

Artz, Frederick B., The Mind of the Middle Ages (New York: Alfred Knopf, 1958).

This survey gives a fascinating o;verview of medieval thought, tracing the patterns of philosophy from lateiantiquity to the dawn of the renaissance. While the main focus is on Western Europe, their are also chapters on Byzantium and the Islamic world. Artz's prose is very accessible, as is the arrangement of the book.

Aquinas, Thomas, Treatise on Law (Chicago: Henry Regnery Company (Gateway Edition), 1970).

Aquinas' treatise on law is a must for anyone seriously interested in the medieval attitude toward law and its legitimacy in society. This particular treatise, taken from his Summa Theologica, attempts to demonstrate that laws are reflections of God's will only insofar as they are just. The underlying message is that there is a higher law than the laws of man, and that unjust laws are illegitimate. Aquinas was not the first to make such a claim, but his spin on the subject is another milestone on the road to individual liberty. The reading isnot simple, but it is rewarding.

Barlow, Frank, The Feudal Kingdom oj;England: 1042-1216, fourth ed. (London: Longman Press, 1988).

An outstanding exploration of the changes wrought by the Normans in their conquest of England. The book covers the period from the reign of Edward the Confessor to the end of the reign of John, including the conquest, the anarchy, the Angevin empire and the signing ofMagna Carta. His discussion of the solidification of the common law under Henry TI is exceptionally good. Barlow's story-like style masks a work of excellent scholarship and presents history in a very readable fashion.

76

I Bigelow, Melville Madison, History of frocedure in England (Boston: Little, Brown & Co., 1880).

1

A dated but still useful edition cbvering the evolution of legal procedures at the common law from 1066-12q4. Some background into the pre-Norman English legal structures, but primarily useful as a comprehensive overview of early Norman law. ·

' I

Bede, The Ecclesiastical History of the l(vtiddle Ages, Judith McLure and Roger Collins, eds., Bertram Colgrave, trans. (New York, Oxford University Press, 1994). I

Bede's History, while biased, is bne of the most comprehensive early I

chronicles of England, and provides information for students of any aspect I

of English history during the early middle ages. Colgrave's translation is I

readable, and the index to this edition is extremely well done. I

Bellamy, J.G., The Law of Treason in the Later Middle Ages (Cambridge (England): Cambridge University Press,

1

1970).

Any student of English legal history needs some grounding in the law of treason, as it was one of the fewi medieval laws covered by statute, and much of what was then considerbd treason came to be known as the modern conception of felony. B~llamy's exhaustive study gives this grounding, and then some. An e*cellent resource which includes a fine chapter on the origin of the English State Trial.

Blackstone, William, Commentaries on the Laws of England, vol. 3 (London, 1768). :

Like Maitland in the 19th centurY, Blackstone's 18th century Commentaries is one of the finest books ever produced on the history and usage of the English common law. Even today, more than two centuries later, the prose still reads well, and the author's insights into the law and the English people are valuable. A wonderful accomplishment and cornerstone of the legal historian's library.

I

Brooke, Christopher, The Twelfth Cent~ry Renaissance (London: Harcourt Brace & World, Inc., 1969).

1

77

I

I

I

This illustrated volume gives a fair overview of the Haskins' thesis, and then examines several medieval 'friters, including Abaelard, Heloise, John of Salisbury, Gratian, and Geoffrey of Monmouth. The reading is interesting and informative, but ~omewhat brief

I I

' I

Carre, Meyrick H., Realists and Nominalists (London: Oxford University Press, I

1961). '

Although at times somewhat d~, this informative volume gives an excellent analysis of the changing philosophical trends during the middle ages, by studying the writings o~ Augustine, Abaelard, Aquinas, and Ockham. 1

--------,The Riverside Chaucer, 3rd ed.~ Larry D. Benson, ed. (Boston: Houghton Mifflin Company, 1987).

No bibliography dealing with m~dieval England would be complete without reference to Chaucer's Canterb~ry Tales. The Summoner's and Pardoner's

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Tales are especially important fQr seeing the Church/State conflict which informed much of the transfer of power from the ecclesiastical courts to the laic. This Riverside edition is exceptionally good, with copious notes and an excellent glossary. ·

I Cheney, Christopher R., The English CJ,urch and its Laws (London: Variorum Reprints, 1982).

A specialized sourcebook of Church documents from the 12th to 14th centuries in England. Many of t~e entries in this slim volume are somewhat obscure, and they are not offered in translation, but the commentaries on the documents are worthwhile rJading.

Cockburn, J. S., and Green, T. A, eds., iTwelve Good Men and True; The Criminal Trial Jury in England, 1200-iBOO (Princeton: Princeton University Press, 1988).

This superb anthology, with articles from some of the finest names in the study ofEnglish legal history, c~vers many aspects ofthe evolution ofthe criminal trial jury. Although the 6onclusions reached in the entries are not always in agreement with each Jther, the articles are all very well done and

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~bought-provoking. One ofthe 'nest books available on the history ofthe

jury. I

Frank, Joseph, The Levellers: A Histori1 of the Writings of Three 17th-Century Social Democrats" John Lilbume, Richprd Overton, William Walwyn (New York: Russell & Russell, 1955).

A fairly comprehensive examinahon of the writings of three famous Levellers, this book is at once aA overview and an in-depth analysis.

I Gies, Joseph and Frances, Life in a Medieval Village (New York: Harper and Row, 1991).

The finest of husband-and-wife team Gies' Life series for students interested in the evolution ofme:dieval English law. The chapter on village justice is well-informed and hig~y enjoyable reading. The bibliography to this book is also quite valuable for providing direction for further study.

Green, Thomas Andrew, Verdict Accorc/ing to Conscience (Chicago: University of · Chicago Press, 1985).

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Professor Green's study of the English trial jury's development represents the culmination of a lifetime's w~rk on the subject. The book attempts to show how the development of t~e jury guaranteed a degree of local control over the criminal justice system, !and, for the most part, succeeds brilliantly. An indispensable volume for anyone interested in the history of the jury system.

Haller, William, and Davies, Godfrey, eds., The Leveller Tracts; 1647-1653 (Gloucester (Mass.): Peter Smith, 1964).

This exhaustive compilation of~eveller writings during the mid 17th­century is an invaluable sourcebqok for anyone interested in this early movement of Social Democrats.lThe introduction is very good, and the modern reader is often struck by how familiar the aims of the Levellers sound today.

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Haskins, Charles Homer, The Normans fn the European History (New York: Norton, 1915). !

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This book is an excellent, although brief, overview of the Normans' movement through Europe. whlle not limited to England, the chapters dealing with the Normans in Nohnandy and Britain contain some choice nuggets of information on the f~undations of the English common law and the roots of the jury system.

Haskins, Charles Homer, The Renaissance of the Twelfth Century (New York: Meridian Books, 1960).

While controversial, Haskins' 1927 masterpiece still makes excellent reading for the serious student of the medieval world. Haskins' thesis claims that the twelfth century saw a revival of the arts and sciences, and a renewed interest in the Greek and Latin classics, which preceded the Italian renaissance by several centuries. The scholarship is superb, the writing sharp, and the conclusions intriguing. A fine work.

Herrup, Cynthia B., "Law and Morality in 17th-Century England." Past and Present, 101, 102-123.

Herrup's superb and thought-provoking article provides evidence that the leniency shown by jurors during the Stuart period was related to the pervasive protestant attitude in England.

Hollister, C. Warren, ed. The Twelfth-Century Renaissance (New York: John Wiley and Sons, 1969).

The late Dr. Hollister designed this collection of essays as an adjunct to University history classes, and its entries provide fine information on Charles Homer Haskins' original:thesis of change during the 12th century, and also includes papers on the Humanities and Philosophy in Europe during the period in study.

Romans, George Caspar, English Villagers ofthe 13th Century (New York: Russell & Russell, 1960).

Originally published in 1941, Dr .. Romans' lengthy volume is still excellent reading for anyone interested in medieval English life at the village level. The style is extremely engaging, and the topics presented are fascinating.

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Hurnard, Naomi, The King's PardonfJ Homicide Before A.D. 1307 (London: Oxford University Press, 1969).

Dr. Hurnard's outstanding work explores, as the title would suggest, how the King's Pardon developed in Medieval England, demonstrating that leniency in capital cases was for lmany reasons advantageous to both the crown and the populace. The b9ok is fairly exhaustive, and is probably the finest available on the subject. Excellent insights into the nature of English

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society as reflected through the law during this period.

Ives, E.W., ed., The English Revolution; 1600-1660 (New York: Barnes and Noble, Inc., 1969).

Although this collection of essays covers a variety of topics relating to the Puritan Revolution, and each is well done, it is especially interesting to legal historians for its papers oniSocial Change and the Law, by lves, and the Levellers, by Brian Manning! lves also writes an excellent overview of the issues in the war.

Jenks, Edward, Law and Politics in the Middle Ages (New York: Burt Franklin Press, 1970).

A fine history of the law in Engl~nd during the high middle ages, first published in 1897. If not as staggering an accomplishment as Pollack and Maitland's History of English Ltlw, Jenks' book is in some ways more accessible to the reader because its organization is more logical and its index easier to use. A bit dated, but still well-worth a look.

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Keefe, Thomas K., Feudal Assessments land the Political Community under Henry II and His Sons (Berkeley: University of California Press, 1983).

While not directly relevant to th~ study of English law per se, this fine volume, and the statistical evide*ce which it provides, helps to complete the picture ofEnglish nobility dl!ring the crucial years when control of local courts was wrested by Henry II from the aristocracy.

Knowles, David, The Evolution of Medieval Thought (Baltimore: Helicon Press, 1962). I

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A surprisingly readable history Jf the philosophy of the middle ages. In his preface to the book, Knowles admits that he is only touching on the major currents of philosophy during thb period under examination, but for all of that it still packs a surprising a~ount of material into what is, for the genre, a surprisingly accessible form. 1

Langland, William, The Vision of Piers Plowman (London: Guernsey Press, 1987). I

Langland's brilliant alliterative pbem is essential reading for anyone interested in virtually any aspect! of English Society, including law, during the high middle ages. This Everx,man edition provides a complete and unedited copy of the so-called "B" text, cast into modem lettering but in the original language. It also coritains an excellent commentary on the

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poem and a fine glossary for tho'se interested in translating the original manuscript into modem English.:

Leff, Gordon, Medieval Thought; Saint1Augustine to Ockham (Baltimore: Penguin Books, 1958).

Like many works on the history bf philosophy, this is a book which seems longer than it actually is. Leff examines the changing patterns of medieval thought, focussing primarily on ~cholasticism and skepticism. Although difficult reading, the book repay~ perseverance with a solid grounding in the philosophical arguments whibh formed the backdrop for many intellectual developments of the htedieval world, including the evolution of law.

Pollack, Frederick, and Maitland, F.W., !The History of English Law (Cambridge (England): Cambridge University Press, 1968).

First published more than a cen~ry ago, this comprehensive study, like Blackstone's Commentaries on tfle Laws of England, has a serious claim to be the finest book on the common law ever written. The prose is beautiful, and in its 1200 pages virtually e\fery aspect of English law is examined. A must for any serious student ofl~gal history.

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Rodes, Robert E. Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (Notr¢ Dame: Notre Dame University Press, 1977).

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A fine overview of the organiza~ional structures of the Roman Catholic Church in England, covering the Anglo-Saxon period to the 15th Century. Topics include the philosophy atltd application of Canon Law, Diocesan and Parish administration, and the eJolving Papacy. The book also gives good background into how the church structures evolved in England, and offers insights into how the ecclesiastical courts functioned.

I Samaha, Joel B., "Hanging for Felony: The Rule of Law in Elizabethan Colchester." The Historical Journal, 21!, 4 (1978), 763-782.

Dr. Samaha's article examines a Q-year period in Colchester, England, during the 16th century, and tries to show why the number of hangings for felony was so low. He argues th~t the legal system itself, with so many interlocking layers ofprocedure;necessarily in agreement required to carry out capital punishment, kept the, number ofhangings low, and that this state of affairs was desirable to ~he crown. A very interesting article.

Stenton, Doris Mary, English Society in the Early Middle Ages (Middlesex: Penguin Books, 1951).

Lady Stenton's book on English social structure is well researched and well thought-out. Of interest to legal :historians is the section dealing with the aristocracy, in which the author argues that the jury system grew out of the system ofknights in the hundred courts. The rest ofthe work is also

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interesting, and provides the reader an enjoyable introduction into medieval civilization in Britain.

Stenton, Frank, The First Century of Er~;glish Feudalism: 1066-1166 (Oxford: The Clarendon Press, 1961).

This outstanding volume was originally prepared from the Ford lecture series at Oxford in 1929. The u~dated version cited makes use of new evidence. On the whole, it examines specifically the changing relationships between the king and his vassals' and among the barons in the first century of the Norman conquest. For legal history, of special interest is the chapter dealing with the thegns and knights, as it examines the change in local judicial administration. ·

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Stephenson, Carl, and Marcham, Frede~ck, eds. and trans. Sources of English Constitutional History: A Selection of J?ocuments from AD 660 to the Present (New York: Harper and Row, 1937). 1

An outstanding sourcebook for English Constitutional documents in translation. Although many of the documents are edited for length, the relevant portions always seem te be included, and the sheer number of documents makes this work inv~luable.

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