The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 4

THE JURY

It is in this complicated interplay of royal and local institutions that the origins of the jury are to be sought; so we can now appropriately turn from the study of the vill and the hundred to the growth of the system of presentment which was so prominent a part of their constitution, and to the later transformation of that system into a method of trial as well as accusation. At the same time, the county’s loss of effective jurisdiction over pleas of land was intimately connected with the rise of the royal writ, and this will be almost synonymous with the use of an assize or a jury of twelve. The criminal jury, therefore, can be treated here because it grew out of the natural expression of the vill and the hundred; but the civil jury in the old real actions was based (as we shall see) upon a somewhat different, though related, idea, which only came to an end with the abolition of real actions. The modern civil jury, it must be remembered, is descended from the old criminal jury through the action of trespass, which was at first partly criminal and later entirely civil in its character.

The discussion may well open with Maitland’s definition of the jury: a jury is a body of neighbours summoned by a public officer to answer questions upon oath.1 It will be seen that there is nothing in this definition which restricts the jury to judicial proceedings; on the contrary, the definition deliberately makes room for the fact that the jury, like so many institutions, was an administrative device which only later became confined to courts of law.

The story is complicated because several different lines of development were being pursued simultaneously, and so it is particularly necessary to have the outlines clearly in mind while the details of this chapter are being studied. The subject will be dealt with in the following order:

• 1. Early prototypes of the jury;
• 2. The jury for royal administrative inquiry;
• 3. The jury for the trial of property cases;
• 4. The jury for royal criminal inquiry;
• 5. Ancient modes of trial;
• 6. The jury as a new mode of trial;
• 7. Post-mediaeval problems.

1.

Early prototypes of the jury

SUPPOSED ANGLO-SAXON ORIGINS

Ever since the seventeenth century when juries began to express sentiments against the government, there has been a tendency for the jury to become, at least in popular thought, a safeguard of political liberty. It is only natural, therefore, that its history should have been idealised and traced back for patriotic reasons to the supposed golden age of Anglo-Saxon institutions. Various theories have been proposed. According to one the jury is descended from the doomsmen who find the judgment and declare the law and custom in the ancient communal courts. This explanation, however, is by no means satisfactory, for the doomsmen did not find facts (for which there was other machinery available) but declared the law which applied to a state of facts which had already been established. A second suggestion would seek the origin of the jury in the compurgators, of whom we shall speak later; this is open to the objection that the compurgators were summoned by a party and not by a public officer, and could not be compelled to act unless they cared to.

ENGLISH AND SCANDINAVIAN JURIES

A third and more plausible suggestion would see an origin of the jury in a remarkable passage in the laws of King Ethelred promulgated at Wantage, which probably dates from about the year 997.1 It is this:

It cannot be denied that we have here a remarkable anticipation of the Assize of Clarendon which later was to establish as a regular procedure the presentment of suspected criminals by the hundred. There are one or two other traces in various parts of Scandinavia which may point in the same direction, and by the fourteenth century Sweden certainly had a developed system of presenting juries, and indeed had also created a trial jury (called the Nämnd) both in civil and criminal proceedings.2 The origin and the growth of the nämnd seem to be quite independent of the corresponding institutions in England, and in fact it is not unprecedented to find that two different systems independently come to substantially the same conclusion; but when the historian sees the similarity of the conclusions he must beware of assuming that they are the result of direct contact, unless that contact can be proved by independent evidence. It may well be that this passage in the laws of Ethelred, enacted with a view to the Scandinavian institutions prevailing in that portion of England which had been occupied by the Danes, represents an independent tendency of Scandinavian law. Moreover, before we are entitled to see here an origin of the jury, it will be necessary to establish continuity between the Law of Wantage and the jury as it existed after the Norman Conquest. This it is impossible to do, and here is the second lesson for those who would undertake historical investigation. The appearance of a principle or institution in one age, followed by the appearance of the same or a similar institution at a considerably later age, must not lead one to suppose that the later is derived from the earlier. Before this conclusion would be justified further evidence of continuity must be adduced; in the case now before us there is a gap of nearly two hundred years between the Wantage enactment and the next appearance of the presenting jury. Until that gap has been filled by showing continuity between the Anglo-Danish institution and the jury which is continuous from Anglo-Norman times, it would be unsafe to look to Ethelred’s law for the origin of the grand jury.1

2.

The jury for royal administrative inquiry

FRANKISH JURIES

The history of the jury has now been settled by the famous researches of Brunner,2 supplemented by those of Haskins,3 who from newly discovered evidence partly filled the gap which Brunner had to admit. This history certainly goes back to the early ninth century, when we find the Emperor Louis the Pious, son and successor of Charlemagne, ordering in 829 that for the future the royal rights shall not be ascertained through the production of witnesses, but by the sworn statement of the best and most credible people of the district.4 It seems that the government had little faith in the production of witnesses by parties who were disputing its claims; such testimony, it was felt, was sure to be interested. Instead, the Emperor undertook to compel the most considerable people of the county to declare upon oath what the customary royal rights were, and it may very well be that this method was more likely to produce the truth than the voluntary testimony of witnesses supporting their friends against the government. If we put ourselves for a moment in the place of a contemporary, we might imagine that there would be some grumbling at superseding an ancient institution of witness proof by the high-handed proceeding of compelling people selected by the government to speak on oath, whether they wished to or not. It might have seemed, perhaps, that the administration had usurped dangerous powers and was settling disputes in its own favour by unorthodox methods. To such an objection, if ever it were raised, history has given an answer: in the course of a thousand years this drastic administrative machine has been transplanted to an unknown continent, where by a strange twist of history it has become the constitutional bulwark of the public against the executive.

It has been suggested that Louis the Pious did not invent this, and that there was some precedent for the device as early as a law of Valentinian I (369), but the argument here is not quite so convincing—at least to Romanists, who are rather loath to admit the paternity of the jury. But from Louis the Pious onwards the evidence is clear enough, until the failure of the line of Charlemagne, when we come to a very obscure period—the darkest moment of the dark ages—and it was here that Brunner had to admit that there was a gap in his evidence.

3.

The jury for the trial of property cases

NORMAN JURIES AND ASSIZES

This gap has been filled to some extent (though not entirely) by the discoveries of Professor Haskins, who has accepted Brunner’s theory that the institution was carried over from the crumbling empire of the Carolingians to the new duchy of Normandy, and that the dukes used it there in much the same way as the emperors had before them.1

At first the jury had been used by the government only as a particularly drastic means of establishing its own rights. This indicates some dissatisfaction with existing methods of proof, and it is clear that this dissatisfaction was shared by litigants as well, for the next stage in the history shows us private persons seeking as a favour from the duke or the King the privilege of having their rights ascertained by means of an “inquisition”, as the institution was then called. In other words, the jury of administrative inquiry was on the point of becoming a jury of trial in civil procedure. Some lords, both lay and ecclesiastical, even went so far as to introduce the jury into their private courts without royal or ducal permission (as far as we can see). The crown therefore was in peril of losing its monopoly of jury trial, although it retained and developed the natural advantage of finding it easier to compel the attendance of jurors than did most other lords.

Henry I while he was duke of Normandy occasionally bestowed the privilege of trial by inquisition (or jury) upon a favoured church, such as Bayeux;2 Duke Geoffrey3 carried the process a step further and by means of an enactment, called an assize, made trial by inquisition the general method for all important litigation of a civil character.

INQUISITIONS IN ENGLAND

Very soon after the Norman Conquest the inquisition appears in England as an administrative device for obtaining all sorts of information useful to the government from an unwilling populace. The officers of William the Conqueror were told to—

and the answers were collected in Domesday Book. The Constitutions of Clarendon, which settled the controversy of Church and State in 1164, recount that—2

Here we have the principle of the inquisition used to ascertain even such vague matters as the customary political relations between Church and State.

ASSIZES IN ENGLAND

Henry II, when he became King of England, adopted the same policy as his father Geoffrey, and by a series of enactments, likewise called assizes, threw open trial by inquisition to the whole public, who could choose between half a dozen different procedures, according to the nature of their cases. Thus, the Constitutions of Clarendon, c. 9, in 1164 allowed a recognition or inquest to determine whether particular land was held by ecclesiastical or lay tenure.3 Two years later another assembly at Clarendon seems to have established the assize of novel disseisin.4 In 1176 mort d’ancestor was created,5 and probably in 1179 came the most striking extension of inquest trial6 when it was allowed as a matter of course (at the option of the defendant) to replace battle in the most solemn of all actions, the writ of right.

From this time onwards the word “assize” takes several new meanings; it began by signifying a solemn session of a council or a court, and soon came to mean an enactment made at such a meeting; among the most important of these assizes were those establishing trial by inquisition, and so it soon became customary to describe the inquisition of twelve men as an assize, while the various procedures leading up to this form of trial (which we should now call forms of action) were likewise called assizes. Finally, travelling justices were established in the thirteenth century in order to try these assizes more speedily, and these justices were naturally called justices of assize, and their sessions in the provinces were called the assizes.

All of this history (with the exception of the Law of Wantage) has therefore been concerned with the use of the inquisition as a means of trying royal rights, and later, by royal favour, the rights of litigants who have been fortunate enough to acquire the privilege, and finally its extension to everybody who makes use of certain procedures called assizes—whose nature we shall discuss more fully in treating of the forms of action. Nothing, so far, has been said of the jury in criminal trials, and to this aspect of the question we must now turn.

4.

The jury for royal criminal inquiry

CRIMINAL LAW: THE GRAND JURY

A great deal of information of value to the King could be obtained by compelling the inhabitants of a small community to answer questions, to inform against evil-doers, to disclose mysterious crimes, and to tell of their suspicions. Here we come to royal rights which are not matters of property or custom, but rather possible sources of jurisdiction, and therefore of profit. An inquisition, vill by vill, had established the enormous tax-return called Domesday Book, but the inquiry into crime and criminals was also a matter of deep concern to the Crown, not merely as a matter of public policy but also as a source of revenue, for criminal jurisdiction with its fines and forfeitures was always lucrative.

By this means the transition was effected, and in the Assize of Clarendon (1166) we find the establishment of a definite system of inquisitions as part of the machinery of criminal justice which have come down to our own day1 as “grand juries”.

5.

Ancient modes of trial

THE ORDEALS

An attentive study of this document will show the difficulties which confronted the government in the administration of criminal justice. The presenting jury from every hundred would very soon provide the royal officers with a goodly number of suspicious characters. But suspicion is not proof, and the presentment by the hundred, like its modern descendant, indictment by grand jury, is merely an accusation and not a conviction. Having found the suspects, how is the question of their guilt or innocence to be determined? The document we have just quoted mentions two methods, “making one’s law” and “going to the water”. We must now for a moment describe these and one or two other methods of trial then in use, for it was the limitations and uncertainties of the ancient methods which led to the development of the modern petty jury.

The most ancient of these was the ordeal, which took a variety of different forms. Its origin must date from before the introduction of Christianity, but the practice was so deep-rooted that the Church, in this as in other cases, felt bound to adopt it. In consequence we find the ordeal surrounded by Christian ceremonies which must, no doubt, have added considerably to its moral effectiveness—and perhaps even to its practical value as a psychological test of truth-telling. Of the several forms of ordeal in use the ordeal of hot iron was that most common for freemen. It was administered at the most solemn moment of the Mass; a special ritual was prescribed in the old service books telling us how the heated iron was to be carried by the accused over a distance of nine feet; then—

Another variant was the ordeal of boiling water, where the accused had to plunge his hand into a bowl of boiling water and take out a stone; his guilt or innocence was ascertained by inspecting his hand after three days. The ordeal of cold water was more often applied to the unfree. The accused was solemnly exhorted by the priest during Mass to confess his guilt if he were guilty; if he persisted in maintaining his innocence then—

Still another variety of ordeal was that of the cursed morsel, which was used only for the trial of clergy. This consisted in making the accused swallow a piece of food in which was concealed a feather or such like; if he was successful, he was innocent, but if he choked he was guilty. Although the Church adopted the ordeals which it found in use among the populace, some of the more critical clergy had misgivings. Then also there was obviously the possibility of the priest manipulating the ordeal, and Peter the Chanter, a celebrated theologian of the university of Paris (ob. 1197), suggests that he had some sort of moral responsibility for the rightness of the result.1 Its abolition was rendered all the more difficult by the system of fees which grew up around it—always a powerful obstruction in the way of reform. A particular church, like St. Peter’s, Northampton, might have a monopoly of the proceedings;2 elsewhere, the archdeacon might be entitled to dues—as at Coventry where he received thirty pence for each ordeal.3

In the great majority of cases the ordeal was the accused’s mode of defence; yet on rare occasions we may find a prosecutor offering to undergo an ordeal himself in proof of his accusation,4 and in two cases of 1202 the accused was given the choice of bearing the iron himself or of letting the accuser do it—and naturally elected the latter procedure.5 Countless varieties of ordeal are still in use in different parts of the world among primitive tribes.6

WAGER OF LAW

The “wager of law” which we have just mentioned, although still essentially an ordeal, contained features which give the impression that its principle was rather more rational. The party who was called upon to make his law had to find a number of people, twelve or some other number fixed by the court according to circumstances, and then take a solemn oath that he was innocent. His companions, or “compurgators” as they were called, then swore that the oath which he had taken was clean.7 In other words, the court calls upon the accused to produce a specified number of people (occasionally from a particular class or even from the names on a given list) who are prepared to swear that in their opinion his oath is trustworthy. They do not swear to the facts of the case, but merely to their judgment that the accused is a credible person. Wager of law, therefore, reduces itself to a character test; in the earlier period when there were strong religious sanctions surrounding the oath it is clear that a disreputable person would have difficulty in finding compurgators. Cases of failure to make one’s law do occur from time to time in the records.8 The Church used it considerably under the title of “Canonical Purgation” in circumstances where other modes of proof were impossible, and long after the Reformation it survived in ecclesiastical courts. Opinion as to its value seems always to have been divided. The passage we have quoted from the Assize of Clarendon1 makes it clear that the Crown had little respect for it, at least as a defence to criminal charges. On the other hand, certain towns, and notably the city of London, stubbornly retained compurgation as a defence to charges even of felony. They seem to have regarded it as a valuable privilege, which is surely not without significance, for business interests, then as now, must have had the firm enforcement of criminal law often in mind. It should perhaps be noted that the privilege was restricted to actual members of the city and was not extended indiscriminately to all the inhabitants. The “great law” of London must have been a severe test. City officials chose the compurgators, eighteen east of Walbrook and eighteen west of Walbrook, subject to challenges by the accused; if the charge was homicide, the failure of any one of the thirty-six compurgators would be enough to send the accused to the gallows.2

In civil matters, however, there are signs that it had a place; contemporaries seem to have regarded it as superior in some cases to witness proof.3 The citizens of London as late as 1364 obtained a statute preserving their right to wage law as a defence to debts which were claimed on the evidence of a merchant’s books—it is significant that a mercantile community should consider compurgation successfully performed as more weighty evidence than a merchant’s accounts.4 In the actions of debt and detinue wager of law as a defence lasted until the nineteenth century. The courts in such cases endeavoured to substitute jury trial as far as possible, both by developing alternative actions and by strictly defining those few cases in which it lay. It was not finally abolished until 1833.5

TRIAL BY BATTLE

The Normans introduced trial by battle—unless, indeed, “trial by battle may well have been known in the Danelaw throughout the tenth century”.6 In civil cases it was not fought between the parties themselves, but between their respective champions. The ancient formula suggests that the champion was originally a witness who was also a tenant bound by homage to defend his lord’s title, and that a judicial duel between contradictory witnesses was allowed to decide the rights of the parties. The champion’s regular oath (which soon became a matter of mere form)1 stated that his father on his deathbed had informed him that the plaintiff had the right which was then in dispute, and charged him to maintain that right with all his power. We have already mentioned that when the county court recorded its proceedings for the purpose of review by the Court of Common Pleas, a party might dispute the accuracy of the record and compel the county to defend it by battle. We very soon find from the rolls that there was a professional band of champions who undertook business all over the country; courts would arrange the dates of battle so that the champions could fit in their engagements conveniently. Some very great landowners, such as the larger monasteries, were so constantly involved in litigation that they maintained their own full-time champions. The names of these champions constantly appear on the rolls, and we sometimes hear of a champion’s “master” or manager,2 and of a champion who abandoned his client because the other side offered him a premium.3 It is therefore not surprising that a bishop should have regarded a champion as unsuitable for holding a rectory.4 But in criminal cases battle was a much more serious affair. It lay when a private person brought a criminal charge against another, and was fought by the accuser and accused in person. It was deadly; if the defeated defendant was not already slain in the battle he was immediately hanged on the gallows which stood ready. As it only lay in these private proceedings (called “appeals of felony”) there was no question of trial by battle where the accused had been indicted or where the Crown was a party.5

A curious incident in 1774 throws light upon the perverse uses to which history can be put, especially by those who have given but little thought to it. Events in Boston decided the English Government to improve the administration of justice in Massachusetts by means of a bill which inter alia abolished battle on appeals of murder. This proposal roused opposition in England from those who affected to regard trial by battle as a great pillar of the constitution, and in the end it was withdrawn on the more liberal grounds that parliament ought not to restrain the liberties of the colonies.1 A last attempt to bring an appeal of murder in 1819 was frustrated by a hasty act abolishing appeals and also trial by battle in real actions.2

These, then, were the methods of proof available to the justices when confronted by the crowd of suspects brought before them through the presentment of the juries of the hundreds and vills.3 As for those whose guilt was beyond question, no difficulty arose. They had already been dealt with by very summary methods (which can hardly be called a trial) immediately upon their capture.4

It will be seen that there was very little choice. A criminal could be tried by battle only at the suit of a private prosecutor, and not at suit of the Crown; as for compurgation, the Assize of Clarendon tells us that a successful defence by this means was not very convincing, and even imposes punishment upon those who thereby clear themselves, if they are of bad character generally. Only the ordeal remained, and this was no doubt the general method of trial at the end of the twelfth century—tempered perhaps by the discretion of the justices, who may have allowed their private judgment upon the guilt or innocence of the accused to overrule the result of the ordeal if it turned out obviously unsatisfactory.

ABOLITION OF THE ORDEAL

The opposition within the Church to trial by ordeal5 which dates from the days of Agobard, bishop of Lyons (d. 840), was particularly constant at Rome. Remoter provinces, however, were faced by a more primitive populace. Regino of Prüm (c. 906) admitted the ordeal into his work on canon law, and so did Burchard of Worms later still (1008-12), who was so dismayed at the prevalence of perjury, that the ordeal seemed to him preferable to the oath as a mode of trial.6 A century later still, in 1116, Ypres received a charter abolishing both ordeals and trial by battle.7 It was yet another century before reform reached England when Innocent III in the Fourth Lateran Council (1215) forbade clergy from performing any religious ceremonies in connection with ordeals. This, of course, robbed the ordeal of all religious sanction, and to all intents and purposes abolished it as a regular means of trial (although it seems that in some localities it still persisted with the connivance of disobedient clergy). Henry III’s government immediately recognised the decree, and appreciated the extremely difficult position which it created, for the only remaining method of trying suspected criminals had been forbidden by the Church. A writ to the Justices in Eyre was therefore issued in 1219 giving temporary instructions how to proceed until further order was taken. It reads as follows:

From this writ it will be seen that the justices were to be guided entirely by suspicion, and were to reach their conclusions as to the reasonableness of that suspicion solely from their own discretion. A rough scale was recommended whereby those suspected of greater crimes were to be imprisoned instead of suffering judgment of life or limb (as would have been the case if they could have been regularly convicted); those suspected of medium crimes were to be banished; lesser crimes were leniently treated, the suspect being simply bound over. This was only meant to be temporary, and obviously could be nothing more, for the whole compromise was based upon the fallacy that a half-proof of guilt was equivalent to a proof of half-guilt. The Crown, however, seems never to have given any further guidance to its justices, at least as far as the available sources show. The Church had abolished the one lawful means of trial, and the only suggestion which the Crown had made was a false and unworkable compromise.

The problem was therefore left to be solved in a way typical of English law—the justices were to make such experiments as they saw fit and gradually feel their way towards a solution.

6.

The jury as a new mode of trial

EVOLUTION OF THE PETTY JURY

Various devices which they tried have been traced with some success through the rolls. Even before the crisis of 1219 occasional cases are to be found of the presentment juries giving what has been called a “medial judgment”, that is to say, declaring what ordeal ought to be assigned. Again, a jury might be summoned to declare whether an appeal was brought “maliciously out of hate and spite” (de odio et atia). This issue was very frequently introduced by appellees who had purchased this concession from the Crown, and in fact came to be really conclusive as to the main question. It was, moreover, a first step in the direction of a criminal trial by jury, for after some years of hesitation it was realised that if a jury could by its verdict declare that an appeal was brought maliciously, there was no valid reason why it should not answer the straight question whether the prisoner was guilty or innocent.1 We soon find that this last step was taken. It must be remembered that all these proceedings took place in the course of eyres in the early years of the thirteenth century, when that institution was in its most vigorous period. On such an occasion the King’s justices had before them a very considerable number of jurors making presentments from vills and hundreds, from boroughs and the county itself. A presentment would be made by the representatives of one of these vills or hundreds,2 and in order to get a final verdict on the guilt or innocence of the prisoner the justices hit upon the device of associating with the presenting jury the juries of the four neighbouring vills; “afforced” in this way, the larger body then proceeded to answer the question whether the prisoner was guilty of the crime for which he had been indicted.

At first the judges exercised a good deal of discretion in making up the trial jury;3 at times they did not even trouble to add any further jurors at all, but merely inquired of the presenting jury whether the prisoner was guilty. At other times we find a very large body of jurors associated together as a trial jury—in one case we even find a jury of eighty-four persons. It seems, however, that in the early stages such a large body of jurors did not sit together, but was examined unit by unit, the verdict of the representatives from each of the different communities being taken separately. From the numerous verdicts so obtained (sometimes contradictory4 and sometimes expressed in terms of hesitation) the court formed its own conclusion and proceeded to judgment accordingly. Nor can we always say that these composite juries are giving verdicts in the modern sense of the word, for at times they merely provide the court with material upon which the court itself bases its finding of guilty or not guilty.

AN EXAMPLE OF THE NEW CRIMINAL PROCEDURE

In order to illustrate the old and the new procedures the following case is translated in full, since it contains numerous points of interest. It occured in 1220 immediately after the writ mentioned above. Since Henry III was under age there was no court of king’s bench in regular session; hence, although it was a criminal case, it seems to have been heard in the court of common pleas upon a writ of false judgment which enabled royal courts to review the judgments of seignorial courts, although at a later stage of the proceedings the king’s council (representing the king’s bench during the minority) took part in forming the decision. The text from the plea roll is printed in Maitland’s Select Pleas of the Crown (Selden Society), no. 192.1

It would be difficult to find one case which illustrated more points of mediaeval law than this one. Note the words of felony, and the vouching to warranty in the court below, and the way in which the appellee and his warrantors successively take seisin of the mare while the appellant recites his accusation; the method of recording pleas in courts which do not themselves bear record, and the possibility of verifying the record by battle;1 note also that Hamo offers the King one mark (13s. 4d.) to have an inquest, as alternative to the ancient production of one witness who heard and another who saw. The king’s court did not stand on technicalities. The issue of the truth or otherwise of the record brought from the court below is not even considered, and Pateshull (for it was Bracton’s hero who was on the bench2 ) went straight to the points at issue—the ownership of the mare and the fraud of Elias.

Hamo had purchased the privilege of having his charges investigated by a jury, and the roll shows us four juries of eight summoned from the four neighbouring vills. The proceedings, however, were singularly unlike a modern jury trial. It is true that the parties themselves were examined, but it was before the juries were summoned. The juries did not sit together, but returned four separate (and conflicting) reports—we can hardly call them verdicts. They say that they are sure of some things; others they “rather think” are true; some other statements they believe because “everybody says so”. They were not asked, and did not say, whether anyone was guilty or innocent. Nor were they witnesses, for none of them claimed to have direct knowledge of the happenings which they relate.

Such a proceeding can only be described as an inquisition. The court examined the parties, and examined thirty-two jurors, and upon the evidence so obtained, itself decided upon the guilt of Elias. If this system had become permanently established, we should have had a regular inquisitorial procedure, such as that described on the continent by Beaumanoir,3 with a judge deciding questions of fact as well as law, and examining parties and groups of local representatives whose function was not to state facts, nor to decide the question of guilt or innocence, but merely to retail the gossip of the countryside. Before the writ of 1219 the accused would have gone to his ordeal: but now the court finds him guilty on the unsworn statements of the parties, and on the juries’ sworn returns.1

TRIALS ON INDICTMENT

This was a logical development in cases of appeal, where the substitution of an inquest for battle or ordeal was frequently obtained. The case of indictment, however, presents a somewhat different situation, for the countryside has already spoken once. At times we find justices in eyre acting in a high-handed manner. Thus in 1221, in Warwickshire, they had before them Thomas de la Hethe, who was presented by the grand jury as an associate of a notorious felon named Howe Golightly; but Thomas refused to put himself on the country. Notwithstanding his refusal, the court declined to permit him any sort of ordeal, but realising the gravity of the situation they empanelled an impressive jury of twenty-four knights. The knights said he was guilty, and he was therefore hanged.2 Even a villein who refused jury trial might have this panel of twenty-four knights.3

So large and distinguished a trial jury clearly shows the court’s apprehension at compulsorily depriving a man of his right to trial by ordeal; but sometimes the situation was not so difficult. In this same year, 1221, an indictment found that the carcase of a stolen cow had been discovered in William’s shed. William did not claim any particular sort of trial, but said that the thing was put there by his lord who hoped that William would be convicted and so the lord get his land as an escheat for felony. The serjeant who arrested William stated that the lord’s wife had arranged for his arrest. In such a case the court simply asked the indictors for more information, and they related the whole story and so William was acquitted by the court, and the lord committed to gaol.4

In the case the court quickly detected the plot and merely needed confirmation. But what of cases of real doubt? It was these which caused the gravest difficulty after the abolition of the ordeals. Courts were naturally afraid to compel jury trial, and yet there seemed little else to do. If the case arose in a general eyre where a thousand or more jurymen and officials were present, it would be fairly easy to assemble a large collection of jurors (as was done by Pateshull in trying Elias), question them, and pronounce the prisoner guilty or not as a result. But if the proceedings were upon gaol delivery, for example, before non-professional judges with limited jurisdiction, that plan was less feasible. In most cases prisoners were persuaded to put themselves (more or less voluntarily) upon a jury. If they did not, there seemed no alternative but to keep them in prison, for if they were not convicted, they were still not acquitted.

THE INSCRUTABLE JURY

Under such circumstances, a jury was just a newer sort of ordeal. The judges, after the brief period of hesitation already mentioned, cease to play the part of inquisitors and no longer undertake to examine it or weigh its report; the jury states a simple verdict of guilty or not guilty and the court accepts it, as unquestioningly as it used to accept the pronouncements of the hot iron or the cold water. Since it is taken by consent there is no need to look too closely at the method by which the verdict was reached. At first, the jury was no more regarded as “rational” than the ordeals which it replaced, and just as one did not question the judgments of God as shown by the ordeal, so the verdict of a jury was equally inscrutable. It is but slowly that the jury was rationalised and regarded as a judicial body.

JURY TRIAL BECOMES COMPULSORY

The Crown did not feel too confident, however; the petty jury in criminal trials was a makeshift expedient and an innovation. Under the old law a prisoner could undoubtedly have been compelled to submit to the ordeal and to abide by any construction which the justices might place upon the outcome of it; but was it reasonable to compel a man to submit to trial by jury? Even the Crown felt that this was unreasonable, and it soon became customary to put the astonishing question to the prisoner whether he consented to trial by jury. If he refused to say the necessary words and “put himself upon the country” it seemed as though nothing further could be done. If such a prisoner could have spoken the language of modern constitutional law he would very likely have raised a doubt whether trial by jury in criminal cases was “due process of law”, for the time-honoured methods of trial were the ordeals, and the petty jury was a new-found device of very recent origin. Put in a quandary by a prisoner’s refusal to plead, a court could only exercise its discretion by adopting one or another of several high-handed courses. Sometimes, as we have already noted, it would cast the responsibility on a larger jury of twenty-four knights; alternatively, it might allow the prisoner to abjure the realm, even for homicide,1 while for lesser charges a prisoner could purchase (for 20s.) the privilege of merely finding sureties.2

Towards the close of the century the Crown felt strong enough to impose jury trial by sheer force, and the Statute of Westminster I, c. 12 (1275), provided—

This statute begins with a threat and concludes with an argument; could there be any better indication of the government’s difficulty in imposing trial by jury? It is surely noteworthy that in 1275 it was found expedient to declare by statute that the petty jury was now “the common law of the land” even if the rigours of that common law were to be confined to “notorious felons”. Conservatives perhaps found comfort in the proviso that jury trial or its painful alternative was not to extend to those whose reputation was not too bad. As is well known, the words “prison forte et dure” by some unaccountable means became transformed into “peine forte et dure”, and finally into a form of torture which, by the sixteenth century, took the barbarous form of placing the accused between two boards and piling weights upon him until he accepted trial by jury or expired. Felons whose guilt was obvious sometimes heroically chose to die in this manner rather than plead, be convicted and hanged, for a prisoner who died under peine forte et dure had never been tried and never convicted, and consequently his goods and chattels could not be forfeited to the Crown. It was abolished in 1772.2

RATIONALISATION OF JURY TRIAL

By the middle of the thirteenth century, moreover, the justices had finally chosen the simpler procedure. Instead of taking separate verdicts from numerous vills and hundreds, they selected a petty jury of twelve from among the numerous jurors present in court, and took the verdict of these twelve. It regularly happened that at least some of these twelve had also been members of the presenting jury, for it must be remembered that the whole principle of jury trial was to get information useful to the Crown from those people most likely to have it—the principle of the ancient inquisition. It is at this point that we first find signs of a rational approach to jury trial. The indictors were under some pressure to maintain their accusation and a subsequent acquittal occasionally landed the indictors themselves in prison.1 It is therefore clear that a prisoner could not expect a disinterested verdict from a petty jury consisting wholly or partly of indictors. Those with sufficient court influence could obtain certain procedural favours. Thus, Prince Edward (afterwards Edward II) sent a letter in 1305 to Brabazon, J., on behalf of one of his friends who was indicted for murder, asking that he be tried by a fresh jury on which none of the indicting jurors were present.2 We sometimes find prisoners challenging petty jurors on the ground that they had sat on the grand jury—a challenge which shows that the petty jury is now regarded (by prisoners at least) as no longer representative of the countryside, but as a truly judicial body which should be free from fear and interest. Such challenges were unsuccessful. As late as 1341 the court refused to allow a petty juryman to be challenged on the ground that he had been a member of the presenting jury: “if the indictors be not there it is not good for the King”, it was said.3 The commons in parliament protested against the practice in 1341 and again in 1345,4 but not until 1352 did a statute allow challenge to be made on this ground.5

THE JURY AS REPRESENTATIVES

From this it will be seen that in its origin the jury is of a representative character; the basis of its composition in the early days, when its structure was determined by the vill or the hundred, was clearly the intention to make it representative of the community. Its object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned, and some at least of them from the hundred where the fact lay.6 In civil cases these requirements were much modified by legislation,7 and finally abolished in 1705.8 They applied also to criminal cases, but by Lord Hale’s time it was no longer the practice to challenge a jury for lack of hundredors,1 as long as it came from the proper county.

The county requirement was less tractable, for procedure could only be conducted through a sheriff. Problems abounded, moreover. By some ancient oversight there were roads, bays, creeks and harbours in England, as late as 1816,2 which were not in any county; felonies committed there (like those on the high seas) could not be tried by jury until 1536 when a statute gave the crown power to appoint a county by commission.3 Further, in 1549 a statute explained that if A wounded B in one county, and B died in another, then A could not be tried, because a jury of the first county will know nothing of the death, and the jury of the second county will know nothing of the wounding.4 Likewise, a felon in one county may be hanged, but his accessory who received him in another cannot be tried because a jury there will not know of the conviction.5

The representative idea of the jury was wearing very thin now that some of its consequences were being abrogated by the acts of 1536, 1549 and others.6 Survivals lasted into the nineteenth century: pickpockets in stage-coaches could be tried in any county along the route only after 1826,7 and the completely rational view of jury trial finally triumphed in 1856 when a trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.8 Its character was certainly not that of witnesses;9 it was indeed expected to speak of its own knowledge, but that does not necessarily mean that its knowledge must be as strictly first-hand as that of a modern witness. There is no trace of a requirement that jurymen should themselves have witnessed the events in question. Indeed, that would often be impossible, especially in property cases—such as occurred in 1222 when a jury had to find the terms of a verbal lease made in 1170.10 Bracton has introduced some confusion at this point. He was writing a very big book and had a tendency to fill in the gaps of native English law from other sources, and so there is always difficulty in distinguishing between Bracton as the expositor of contemporary practice and Bracton the idealiser and scholar of foreign learning. In one passage1 he gives us a list of challenges which can be used against jurymen, and seems to have imported the exceptions against witnesses which were available in canon law, and used them as challenges against jurors.2 However this may be, he is surely describing contemporary practice faithfully when he shows us how the justices will help the jury to express an uncertain verdict in more satisfactory form, adding:

Clearly, therefore, the jury spoke as representative of the countryside rather than as a body of witnesses.

EARLY OPINION ABOUT THE JURY

Bracton seems to be fairly satisfied with the jury as an institution, but other writers of almost the same date confirm the impression conveyed by the statute which we have just quoted. The Mirror of Justices, which was a vigorous criticism of the administration of the law written about 1290, contains a violent attack on the jury.3 In those parts of France also, where the jury for a time took root, there were protests against it as oppressive.4

From the reign of Edward I onwards the function of the jury was slowly being judicially defined; questions of law began to be separated from questions of fact,5 and gradually unanimity was required—although for some time there were doubts whether a verdict by eleven jurors was not sufficient, in which case the twelfth might be committed to prison.6

In 1468 Fortescue gives us a picture of jury trial which is to all intents and purposes in modern form. By this date he is able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath.1 A century later, Sir Thomas Smith gives a vivid account of a jury trial and shows not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury.2 Although this was becoming the practice, relics of the older order survived, and we have the perennial spectacle of trouble caused by casual reform which did not make a clean sweep of the past. Just as Fortescue harked back to an obsolete conception of the jury in saying that a man who volunteered to give evidence would be punished for maintenance (for he ought to have waited until the jury went to his house in the country to ask him what he knew3 ), so too, while Sir Thomas Smith was describing the jury as a purely judicial body, and statute was compelling the attendance of witnesses,4 jurors were still allowed to use their own knowledge in reaching a verdict,5 and might reach a verdict although no witnesses and no evidence had been produced.6

THE EARLY HISTORY SUMMARISED

From one common origin, therefore, we have derived several varieties of jury. On the criminal side the royal inquisition became the grand jury for presenting criminals, and when the older forms of trial ceased to function then a trial jury for indicted prisoners was assembled from the indictors and the neighbouring vills: simultaneously, many appellees avoided trial by battle by purchasing from the crown the privilege of a jury, and so we get the trial jury for felonies. On the civil side the royal inquisition became available to private litigants for the trial of right to real property, and the petty assizes, with the “grand assize”, were clearly the model for jury trial in writs of entry and other real actions. Somewhere between these two lines of development there lies the action of trespass. According to one view it derives from the appeals of felony; others trace it to the petty assizes. However that may be, jury trial almost immediately became normal in trespass, both for the trial of misdemeanours and of torts. In the end, trespass and its derivatives supplanted the old real actions (and also the old personal actions of debt, detinue, etc.) with the result that all the civil trial juries now in use descend directly from the jury in trespass, as likewise the juries for the trial of misdemeanours.

7.

Post-mediaeval problems

THE REVIEW OF VERDICTS

Even as Fortescue wrote, however, jury trial, both civil and criminal, had already entered upon its decline, and there were numerous complaints of the corruption and partiality of jurors. The heavy expense falling on jurors was evidently a problem. Jurors attending the eyre at Bedford in 1330 seem to have been paid out of a county rate levied for the purpose.1 Whether this was done elsewhere, and for other occasions, is not known. Wealthy litigants certainly seem to have felt it proper (perhaps even prudent) to contribute fairly handsomely to the expenses of jurors—and jurors had themselves to pay fees in an eyre.2 Surviving household accounts show that litigants incurred considerable expense in the matter of jurors,3 and it is obvious that the line between legitimate contributions to the expenses of a costly journey, and corrupt practices, was difficult to draw. It therefore became more and more necessary to devise means for reversing verdicts.

The only ancient method available was by attaint.4 This consisted in summoning a jury of twenty-four, and the proceedings were not merely a reconsideration of the facts in dispute, but also a criminal trial of the first jury for perjury. This was only logical at a time when every jury spoke out of its own knowledge of the facts involved in the case. Their function was to tell upon oath the facts which they knew; it was not their duty to act as impartial judges of evidence produced before them. If such jurymen returned a verdict which was demonstrably false, and in spite of their own better knowledge of the facts, then it was obvious that they had committed perjury and deserved the punishment provided for attainted juries:

Attaint first appears as a remedy against the false verdicts given by members of the “assizes” in actions of novel disseisin, mort d’ancestor and the like. In these actions the defendant had always been compelled to accept trial by assize, and so it was but reasonable that he should have a means of punishing untruthful jurors. In writs of right, on the other hand, it was the demandant who might be compelled (at the tenant’s choice) to submit to the “grand assize”. Here, too, the writ of attaint could be brought.1 In other cases, however, both civil and criminal, it was possible to argue that the parties had voluntarily (in form at least) put themselves upon a jury, and that since they had chosen this form of trial they were not entitled to any relief if it turned out unsatisfactorily. Attaint was extended by statute first to one action and then to another, and finally in 1361 to every action tried by jury;2 but never to criminal trials. In London, local legislation wisely reduced the penalty upon attaint.3 But as for the common law, Queen Elizabeth’s Secretary of State, Sir Thomas Smith, wrote in 1565:4

As the character of the jury slowly changed, the logic of the action of attaint became less apparent. As the middle ages proceed the custom grows of assisting the jury by producing evidence in court in their presence. From quite an early date the witnesses named in a deed, if still living, were summoned to sit with the jury (and it became a rule that if they did so, then the jury was immune from attaint);5 but gradually, first in one case and then in another, it became customary to examine other witnesses in the presence of the jury. As a result the jury speaks less and less out of its own knowledge and becomes instead a judge of the evidence placed before it. The situation in respect to attaint thus becomes very different. A jury may return an erroneous verdict as a result of inadequate or inaccurate evidence, or a misunderstanding of the true import of the evidence adduced; but such an error of judgment in making a wrong deduction from evidence which may have been conflicting, insufficient or improperly presented is surely not sufficient reason for the severe penalty provided in the old action of attaint. It is no longer a question (at least in many cases) of deliberate perjury, but only of a more or less excusable error of judgment. It is only natural to find, therefore, that the action of attaint falls into disuse, as the quotation from Sir Thomas Smith has shown. This, however, did not help the situation. The more the jury becomes a judge of facts which parties attempt to prove before them, the more room there is for honest mistake, more especially as there is practically no trace of a law of evidence at this period. In short, there was an increasing need of some machinery for revising the verdicts of petty juries—more especially in civil actions, which always received in the middle ages more careful attention than criminal matters. Occasionally we find an appeal to Parliament where even an attainting jury was alleged to be prejudiced.1

THE PUNISHMENT OF OBSTINATE JURORS

In the sixteenth century examples are to be found of various prerogative courts undertaking to punish jurymen who found verdicts manifestly against the evidence.2 In an age when political trials were becoming more frequent, it became a serious matter that verdicts could be set aside and jurors punished in courts which were really a disguised form of the Council. In Crompton’s treatise on the jurisdiction of courts (1594) we read:

Throckmorton’s prominent share in Wyatt’s rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury’s verdict was purely political. From now onwards the jury enters on a new phase of its history, and for the next three centuries it will exercise its power of veto on the use of the criminal law against political offenders who have succeeded in obtaining popular sympathy.

BUSHEL’S CASE

A very famous case on this matter was Bushel’s Case2 in 1670, where Chief Justice Vaughan in his judgment defined the position and duties of the jury. Although he retained the ancient view that a jury may depend upon its own knowledge, yet he gave a larger place to their independence. He insisted upon the ancient law; in his opinion the jury was not bound to follow the direction of the court, for the very good reason that if they returned a wrong verdict it was the jurors who were punished by attaint, and not the judge who directed it. Every jury sat with the shadow of attaint overhanging it, and this was ample sanction. Acting, therefore, under so great a peril, the jury must be left completely free from directions by the bench and from any subsequent punishment in Star Chamber or elsewhere, with the sole exception of the ancient proceeding of attaint. In other words, there was just enough of the doctrine of attaint left to enable the court to say that there was adequate means of dealing with a dishonest jury, and therefore of declaring in general terms the jury’s right to independence. The judgment of Vaughan was very ingenious in its combination of anti-quarianism and logic. Under the circumstances these were no doubt proper weapons in the defence of juries against political interference. But Vaughan knew, as well as everybody else, that for practical purposes attaint was obsolete, and that his judgment therefore amounted to a declaration of the irresponsibility of the jury. However useful this might have been in certain types of political trial, it was obvious that it worked hardship in private litigation. The courts were well aware of this, and were already at work even before Bushel’s Case in search of some means of setting aside obviously unsatisfactory verdicts.

NEW TRIALS

They began to devise rules under which a new trial could be ordered.1 The mediaeval law on the subject of new trials was not very promising. The only early grounds which they admitted were misconduct of the jurymen, such as eating and drinking before returning their verdict, and even then the verdict was not necessarily set aside.2 Where damages or costs awarded by a jury were manifestly too high or too low, the court would sometimes fix its own figure, in the fifteenth and sixteenth centuries, without ordering a new trial or a new inquiry of damages.3

The amount of discretion which jurors might exercise varied with the form of action. Thus in an action on the case in 1615 to recover damages which by covenant had been fixed at a certain rate, a jury saw fit to award only about half the sum due. Coke declared that “there may be divers reasons why in equity they ought not to give so much damage as this amount, for it seems here that the jurors are chancellors” in the matter of assessing damages, and entitled to use an uncontrolled discretion. He agreed, however, that if it had been an action of debt the plaintiff would have recovered in full.4 During the Commonwealth, there was the striking case of Wood v. Gunston in 1655, when the Upper Bench allowed a motion for a new trial when a jury had awarded unreasonably high damages in an action for slander (once again, an action on the case), against the direction of the court.5 There was certainly no authority for this; a Commonwealth precedent of course carried little weight after the Restoration, and it was a long time before juries lost their arbitrary power over damages.6

For a time the courts took refuge in the distinction between trials at nisi prius and trials at bar; the former being regarded as less solemn, the verdicts were liable to be set aside; but Lord Holt in Argent v. Darrell (1700)7 while admitting that new trials were often granted after verdicts at nisi prius, declared that “there never was a new trial after a trial at bar in ejectment”. By 1757 Lord Mansfield was able to say in Bright v. Eynon8 that new trials were frequently granted, although there is no trace of it in the books, because the old reports do not give any account of decisions upon motions. This fortunate omission no doubt assisted matters greatly, and it soon became easy to believe that the practice of granting new trials was established.1 Thus was a revolutionary reform quietly effected without leaving many traces in the books; as we have seen, the work was half done by 1700, and declared to be complete in 1757. It need hardly be said that all through mediaeval times down to our own day, a jury was always at liberty to find a special verdict by stating the facts (often at great length and drafted by counsel as an agreed statement of facts) as it found them, and leaving it to the court to determine whether this verdict was in law a determination for the plaintiff or the defendant.

From all this it is clear (in spite of Vaughan’s judgment in Bushel’s Case) that for practical purposes the jury depended very largely, if not entirely, upon the evidence placed before it in court. This was certainly true of the seventeenth century and probably true of a large part of the sixteenth century. The further question when jurors were excluded from using their own sources of information, is more difficult to answer. An indirect solution has been attempted, but the result is not conclusive.2 Even within the last hundred years expressions are to be found suggesting that, at least in criminal cases, a jury was entitled to make use of its (by now, very exiguous) “general knowledge”.3 However, the survival of a theory is not always reconcilable with contemporary facts, and the principle of Bushel’s Case was no doubt felt to be politically desirable without necessarily endorsing all of Vaughan’s reasoning—which even for his own day may have seemed (like some of his other views) somewhat artificial.

Juries, in fact, came to rely on evidence offered by parties, and it was this circumstance which made necessary the development of a law of evidence; this will be discussed at a later stage.4

CONSTITUTIONAL POSITION OF THE JURY

We have now traced in brief the history of local institutions in their judicial aspect, together with the points of contact between them and the central government. It is at these points of contact that we first find signs of the development of the jury. For quite a long time the machinery of the jury was the regular means of communication between royal officials and the local public. Nor was this merely in judicial affairs; administration, police and fiscal matters, were all likely to be conducted through some form or other of the jury. From these beginnings as an administrative machine for extorting truth on any matter of royal concern from a reluctant countryside, the jury soon acquired a representative character. This idea of the jury representing the public of a particular locality had enormous consequences in an age when representative institutions were rapidly developing.1 From the presenting jury of the hundred and the county it was a short step to the House of Commons in its most primitive aspect, which at first consisted of representatives from such local communities as the county and the borough, all sitting together at the King’s summons to hear and to do what he should command. An early meeting of Parliament must have resembled to some extent an enormous eyre; all the lords and notables of the land together with representatives from the local communities met together in the presence of the King or his justices for the transaction of all sorts of business, judicial, administrative and fiscal. The seventeenth-century pamphleteers had some grounds for regarding the Commons as the “Grand Inquest of the Nation”.2

As for the jury, this representative aspect served as the foundation for its later irresponsibility, which in turn created a situation of exceptional difficulty. On the one hand, ancient history and current convenience both insisted upon the necessity of the jury’s independence; a representative institution, be it a jury, a parliament or a congress, must necessarily have certain immunities if it is to do its duty, and within the broad limits set by the writ of attaint, juries were independent. On the other hand, slowly changing practice was altering the character of the jury by transforming it into a judge of facts; in this aspect of its work irresponsibility was out of place. The decisions of the judges themselves on matters of law were subject to proceedings in error; why, then, should the decisions of a jury on matters of fact be completely irreversible? Both functions were essentially the same, that is to say, an exercise of judgment, as Vaughan was keen enough to see in Bushel’s Case. It was inevitable therefore that the practice should arise of setting aside verdicts for erroneous conclusions as to facts, in the same way as decisions upon law could be reversed if they were erroneous. As far as purely private litigation is concerned, this was inevitable and entirely desirable.

The division between law and fact upset some of those ancient forms of the common law which had survived from an earlier age. The ordeals of fire or water or battle resulted in a decision of the general issue whether the accused was guilty or not guilty; no separation of law from fact could be imposed upon the judgment of God. The verdict of the jury necessarily occupied the same position. In time it became clear that the general issue in criminal pleadings could only be retained if some preliminary device were employed to separate the law from the facts. This became all the more necessary as the law—for example, of larceny—hardened into a logical, but technical dogma.1 The device adopted was for the judge to direct the jury, explaining to them what facts would constitute the crime laid in the indictment. In the light of this exposition the jury continued to give its general verdict. Some difficulty arose, however, in trials of a political character, for here the jury retained its old representative character to a marked degree, and there has been a natural feeling that here if anywhere the jury’s independence ought to be most jealously guarded. A remarkable illustration of the feeling that a jury is likely to be more independent (or at least more representative of national feeling) than a judge is to be seen in Fox’s Libel Act2 of 1792, which reduced the position of the bench in libel cases (which were frequently apt to have a political character) to a minimum by allowing the jury not only to find the facts but also to declare whether those facts in law amounted to a libel.3

[1]Pollock and Maitland, i. 117.

[1]The translation here given is from Stubbs, Select Charters. (For another version see A. J. Robertson, Laws of the Kings of England, 65, 319-320.) For comments see Holdsworth, i. 12 n. 10 (who identifies the twelve thegns with the twelve freemen of the hundred mentioned above, p. 90), and Vinogradoff, English Society in the Eleventh Century, 6. The hundred in the Danish part of England was called a wapontake.

[2]For a description of the nämnd, see A. Engelmann (ed. R. W. Millar), History of Continenta Civil Procedure, 225-232.

[1]For an attempt in this direction, see N. D. Hurnard, The Jury of Presentment and the Assize of Clarendon, English Historical Review (1941), lvi. 374-410. For differing views, see Sir Frank Stenton, Anglo-Saxon England, 502-504, and A. L. Poole, Domesday to Magna Carta, 397-398. It may be mentioned here that the significance of the very obscure synodal jury used in the Church’s criminal procedure is proper to this inquiry. See a few references in Taswell-Langmead, English Constitutional History (ed. Plucknett), 86.

[2]H. Brunner, Entstehung der Schwurgerichte (Berlin, 1872). For a criticism of Brunner, see Ernst Mayer, Geschworenengericht (1916).

[3]C. H. Haskins, Norman Institutions (Harvard University Press, 1918).

[4]Monumenta Germaniae Historica, Capitularia, ii. no. 188, translated in Pound and Plucknett, Readings, 141.

[1]Michel de Boüard, De la Neustrie carolingienne à la Normandie féodale: continuité ou discontinuité? Bulletin of the Institute of Historical Research, xxviii. 1, argues persuasively against Carolingian survivals, and for Norman originality.

[2]For a similar concession by William I in England, see Bigelow, Placita Anglo-Normannica, 33 (translated in Pound and Plucknett, Readings, 141-142).

[3]From 1145 to 1150 (for the former date see Haskins, 130, and also Normannia, i. 223-224). Geoffrey was also count of Anjou, and the question of priority between Anjou and Normandy in the development of the jury is still open: see Chartrou, L’Anjou de 1109 à 1151 (Paris, 1928), 156, and cf. Halpben. Institutions judiciaires angevines, Revue d’Anjou (n.s.), xlvi. 372 ft.

[1]Text in Stubbs, Select Charters.

[2]Ibid.

[3]Translated in Pound and Plucknett, Readings, 74. Cf. Thome, The Assize Utrum, Columbia Law Review, xxxiii. 428.

[4]Pollock and Maitland, i. 145.

[5]Assize of Northampton, c. 4 (text in Stubbs, Charters).

[6]This date is suggested by J. H. Round in English Historical Review, xxxi. 268-269.

[1]The grand jury has been abolished (except in very few cases) in England, Administration of Justice (Miscellaneous Provisions) Act, 1933.

[1]Stubbs, Charters; the Constitutions of 1164 had already told juries to present sinners to the bishop. Above, pp. 18, 109 n. 1.

[1]This and other forms are translated in Sayre, Cases on Criminal Law, 28-32, from Liebermann, Gesetze. See generally, Lea, Superstition and Force, and much illustrative material in A. L. Poole, Obligations of Society, 82 ff.

[2]For a contemporary picture, see Sayre, 29.

[1]Migne, Patrologiae Latinae Cursus, ccv. 230-1.

[2]F. M. Stenton, Acta Episcoporum, Cambridge Historical Journal, iii. 12 (date before 1166).

[3]Pope Alexander III (1159-1181) relates, and condemns, the practice: c. 3, X. 5. 37; Maitland, Domesday Book and Beyond, 282.

[4]D. M. Knowles, The case of St. William of York (1154), Cambridge Historical Journal, v. 175.

[5]Lady Stenton, Lincolnshire Assize Roll (Lincoln Record Society, vol. 22), nos. 595, 843; A. L. Poole, Obligations of Society, 82.

[6]Cf. M. M. Kovalevskii, Coutume contemporaine: droit ossetien (1893); Patetta, Le Ordalie (1890); E. Jobbé-Duval, Les Idées primitives dans la Bretagne contemporaine (1920).

[7]There is a long discussion in City of London v. Wood (1701), 12 Mod. 669, showing the extent to which it had been rationalised by that date.

[8]See for example The Court Baron (Selden Society), 123. Maitland, ibid., 17, argues that compurgation was difficult to perform.

[1]Above, p. 113.

[2]See Borough Customs (Selden Society), i. 38.

[3]Esmein, Histoire du droit français (ed. Génestal), 91, 92. Parties might voluntarily accept this mode of proof, Y.B. 16 Edward III (Rolls Series), ii. 118.

[4]Statute 38 Edw. III, stat. 1, c. 5. (Compare Plymouth Colonial Records, ix. 49.) Leicester seems to have had difficulties with wager of law (Borough Customs, i. 164). In the Exchequer, jury trial was replaced by wager of law at the petition of the Commons in 1376, Rot. Parl., ii. 337 no. 92. See below, p. 160.

[5]Civil Procedure Act, 1833 (3 & 4 Will. IV, c. 42), sec. 13.

[6]Pollock and Maitland, i. 39 n. 5. The standard work is G. Neilson, Trial by Combat; cf. H. C. Lea, Superstition and Force, chap. ii. Much illuminating material is discussed in V. H. Galbraith, Death of a Champion, Studies presented to F. M. Powicke, 283. Cf. C. de Smedt’s two articles on the Duel judiciaire in Etudes of 15 Nov. 1894 and 15 Jan. 1895.

[1]“Concerning the oath of champions, forasmuch as the demandant’s champion is frequently prejured in swearing that he or his father saw the seisin of his lord (or the lord’s ancestor) and that his father ordered him to defend it, it is provided that henceforth the champion of the demandant shall not be compelled to swear to this; but the oath shall be retained in all other respects.”—Westminster I, c. 41 (1275). Personal battle by a tenant is very rare; Bracton’s Note Book, no. 980.

[2]Bracton’s Note Book, no. 185. For a deed retaining a champion at the annual fee of 6s. 8d. by the bishop of Hereford (1276), see Swinfield’s Household Expenses (Camden Society, o.s. 39), 201.

[3]Bracton’s Note Book, no. 1038.

[4]Ibid., no. 1416; see also Round, Family Origins, 117 ff.

[5]But see Sir Maurice Powicke in Magna Carta Commemoration Essays (ed. H. E. Malden), 100 n. 1; Hoveden, Chronica (Rolls Series), iv. 176.

[1]Parliamentary History, xvii. 1291.

[2]59 Geo. III. c. 46. And see Ashford v. Thornton, 1 Barn. & Ald. 405.

[3]For full contemporary descriptions of these archaic modes of trial, see Pound and Plucknett, Readings, 134-141; English Historical Review, xvi. 730.

[4]Below, p. 427.

[5]See H. C. Lea, Superstition and Force; S. Grelewski, La Réaction contre les ordalies en France. E. Vacandard, L’Église et les ordalies (in his Études de critique et d’histoire religieuse (1905), i. 191 ff) Agobard had also attacked trial by battle, but it survived since there were no ecclesiastical ceremonies which were essential to it.

[6]P. Fournier and G. Le Bras, Collections canoniques, i. 409-10.

[7]F. L. Ganshof, Droit urbain en Flandre, Revue d’Histoire du Droit, xix. 388; cf. St. Omer (1227), ibid., 403.

[1]The text is printed by Wells, Origin of the Petty Jury, Law Quarterly Review, xxx. 97 ff.; Patent Rolls, 1216-1225, 186.

[1]For an early example, see Eyre Rolls of Gloucestershire, Warwickshire and Staffordshire (ed. D. M. Stenton, Selden Society, vol. 59), no. 751.

[2]Frequently both; the vill would present to the hundred, and the hundred presented in the county.

[3]Lady Stenton discusses several cases in Eyre Rolls (Selden Society, vol. 53), pp. lxviii-lxxi.

[4]For a case in 1221 where a jury was contradicted by the vills and amerced, see Eyre Rolls (Selden Society, vol. 59), no. 822.

[1]Bracton, f. 151 b; Eyre Rolls (Selden Society, vol. 56), xvii; cf. Bracton’s Note Book, no. 824.

[2]Not fought; “to wage” is to give security.

[3]Lawful excuses for not appearing.

[1]An averment was allowed by 1 Edw. III, stat. 1, c. 4 (1327); cf. Y.B. 11-2 Edward III (Rolls Series), 326 (1337).

[2]Cf. below, p. 235.

[3]Beaumanoir, c. 40 (ed. Salmon, 1899), §§ 1224-1260. The work was written in the years about 1283.

[1]The same general result followed in Normandy: Summa de legibus Normanniae (ed. Tardif), lxxvi. 2.

[2]Maitland, Select Pleas of the Crown, no. 157; also in Eyre Rolls (Selden Society, vol. 59), no. 767 and in 2 Hale, P.C. 322.

[3]Eyre Rolls (Selden Society, vol. 59), no. 728.

[4]Maitland, Select Pleas of the Crown, no. 170.

[1]As in 1221, Eyre Rolls (Selden Society, vol. 59), no. 877.

[2]Ibid., no. 1239.

[1]But one appealed (which is not at the suit of the king) of robbery, who stands mute of malice, as found by an inquest, will be hanged as undefended: Y.B. 21 Edward III, Pasch. no. 26 (1347). In Normandy if a married woman was appealed, her husband could, but need not, defend her by battle; if he did not, she could be imprisoned until she accepted jury trial: R. Génestal, La femme mariée, [1930] Revue historique de droit français, 480.

[2]By 12 Geo. III, c. 20, which substituted a conviction; by 7 & 8 Geo. IV, c. 28 (1827), a plea of not guilty was to be entered. See Thayer, Preliminary Treatise on Evidence, 74; Stephen, History of Criminal Law, i. 297-300. The year books generally call it “penance”. Cf. A. Esmein, History of Continental Criminal Procedure, 94 ff.

[1]Y.B. 30 & 31 Edward, I, 522 (1302); s.c. Eyre of Kent, i. 112. Until 1 Edward III, stat. 2, c. 11, persons indicted and then acquitted could take proceedings in church courts against the grand jurymen for defamation (cf. p. 428 below). For a civil action of conspiracy against indictors see G. O. Sayles, Cases in King’s Bench (Selden Society), i. 76 (1281). So unwilling were indictors to present in view of this peril that the Crown in 1304 forbad the use of actions for conspiracy against them: Calendar of Chancery Warrants, i. 241-242 (cf. Y.B. 32 & 33 Edward I, 462). The same result was reached on principle (the warrant being unknown then) in Floyd v. Barker (1607), 12 Co. 23. Much new material is furnished in Sayles, op. cit., iii. intro. liv ff.

[2]Letters of Prince Edward (ed. Hilda Johnstone, for the Roxburghe Club, 1931), 37.

[3]Y.B. 14-15 Edward III, 260, 261.

[4]Rot. Parl., ii. 128 no. 14, 134 no. 67, 140 no. 30.

[5]25 Edward III, stat. 5, c. 3.

[6]Y.B. 48 Edward III, Michs. no. 17 (1374).

[7]35 Hen. VIII, c. 6 (1544); 27 Eliz. I, c. 6 (1585); 21 James I, c. 13 (1624); 16 & 17 Charles II, c. 8 (1664).

[8]4 Anne, c. 16.

[1]Hale, History of Pleas of the Crown, 272.

[2]53 Geo. III, c. 100.

[3]28 Hen. VIII, c. 15.

[4]For analogous complications see State v. Hall, 114 N.C. 909 (North Carolina, 1894).

[5]2 & 3 Edw. VI, c. 24, which abolished both rules.

[6]Such as 35 Hen. VIII, c. 2 (1544), which made treason committed abroad triable by the king’s bench and a jury of the county where it was sitting.

[7]7 Geo. IV, c. 64.

[8]19 Vict., c. 16.

[9]Cf. below, p. 433.

[10]Eyre Rolls (Selden Society, vol. 59), no. 1477. In 1312 a jury was called to say whether the chapter of Winchester cathedral assented to an alienation made before 1238: Y.BB. Edward II (Selden Society), x. 40-41.

[1]Bracton, f. 186; translated in Pound and Plucknett, Readings, 149-154. (Cf. Y.B. 20-21 Edward I, 170-172, and Reniger v. Fogossa, Plowd. 12.)

[2]For a very interesting draft list of challenges in a case of c. 1293, see N. Denholm-Young, Seignorial Administration, 117-118.

[3]Mirror of Justices (Selden Society, vol. 7), bk. V, ch. I, §§ 19, 35, 77, 126, 134, 136 (Readings, 154).

[4]See the French political song, in Leroux de Lincy, Recueil de chants historiques, i. 218 (translated in Readings, 154).

[5]For an interesting early case, see Y.B. 21 & 22 Edward I, 273 (Readings, 155); see further, pp. 417-418 below.

[6]29 Ass. 4; 41 Ass. 11 (Readings, 155, 156); Sayles, King’s Bench (Selden Society), ii. 90; Winfield History of Conspiracy, 196.

[1]Fortescue, De Laudibus Legum Anglie (c. 1468), chaps. 25, 26 (translated and edited by S. B. Chrimes). In 1277 a party got the court’s permission to show his title deeds to the jury, Casus Placitorun (Selden Society), 94; and in 1312 counsel addressed a civil jury: Y.BB. Edward II (Selden Society), xi. 20.

[2]Smith, De Republica Anglorum (ed. Alston), 94-103. For some intriguing glimpses of “evidence” to a jury, see Y.B. 27 Henry VIII, Michs. no. 3, f. 24 (1535).

[3]Y.B. 28 Henry VI, Pasch. no. 1. Thayer, On Evidence, 124 ff., shows clearly how trial procedure was hampered through the danger of witnesses incurring the penalties of conspiracy and maintenance.

[4]5 Eliz. I, c. 9 (1563).

[5]“Some of the jurors knew this to be true”—Reniger v. Fogossa (1550), Plowden, 5.

[6]Ibid., 12. For the growth of the modern jury-trial with witnesses see below, p. 433.

[1]Rolls from the office of the sheriff of Beds. and Bucks., 1332-1334, ed. G. H. Fowler (Quarto Memoirs of the Bedfordshire Historical Record Society, vol. 3), 79, § 64.

[2]Fleta,i. 19.

[3]N. Denholm-Young, Seignorial Administration, 113 ff., for the thirteenth century. For the eighteenth century, an attorney’s diary in the Salt Library, Stafford, records on 6 and 7 Feb. 1710 over £200 “spent on the jury”. (Information from S. A. H. Burne, Esq.)

[4]There was also a procedure called “Certification” which called upon members of a petty assize to come back and elucidate an obscure verdict: Fitzherbert, New Natura Brevium, 181A, Panel v. Moor (1556), Plowd. 91. It was occasionally used to accuse the assize of a false oath: Bracton’s Note Book, no. 63 (1219).

[5]Fortescue, De Laudibus, cap. xxvi; cf. Bracton, f. 292 b.

[1]Glanvill (ed. Woodbine) ii. 19, and the notes thereon. By the time of Bracton, attaint no longer lay against a grand assize.

[2]34 Edw. III, c. 7; in 1532 the statute 23 Hen. VIII, c. 3 (in Pound and Plucknett, Readings, 160-163), extended the penalties of attaint to a party who relied on a false verdict. (Note that this statute refers to the jury of twenty-four as the “grand jury”; this confusing usage is exceptional.)

[3]Thayer, On Evidence, 151.

[4]De Republica Anglorum (ed. Alston), 111; first published in 1583. For an attaint in 1568 see L. Hotson, Justice Shallow, 160-161.

[5]Y.B. 20-21 Edward I, 110.

[1]Paston Letters (1904), ii. 231. There is much interesting matter on the legal history of jurors’ misconduct in Winfield, History of Conspiracy, 175-199.

[2]Statute authorised the Council in the Marches to punish Welsh jurors: 26 Hen. VIII, c. 4 (1534), and the courts of law recognised the similar jurisdiction of the English Council: 2 Hawkins, P.C., c. 22, s. 20; Winfield, op. cit., 196.

[1]Crompton, Authoritie et jurisdiction des Courts, f. 32 b. His date “1544” is an obvious slip for 1554, when in fact the trial took place. It is fully reported in Holinshed, Chronicles, under that date, but his account of the jury’s imprisonment states that the fines were £220 on five jurors and £60 on three others.

[2]Vaughan, 135; it was returned to a habeas corpus that Bushel was one of a jury which acquitted William Penn of unlawful assembly against full and manifest evidence, wherefore Bushel had been committed to prison.

[1]On new trials, see E. Jenks, According to the Evidence (in Cambridge Legal Essays), 197 ff.

[2]See 1 Dyer, 37 b, and 2 Dyer, 218 a (in Pound and Plucknett, Readings, 160).

[3]G. T. Washington, Damages in Contract at Common Law, Law Quarterly Review, xlvii 354-359 (1931). Printed records show judges doing this as early as Edward I: Sayles, King’s Bench (Selden Society), ii. cxi.

[4]Hixt v. Goats, 1 Rolle, 257. Note that the “equitable” element which Lord Mansfield stressed in actions on the case is already attracting attention. For an early example, see Brevia Placitata, 207-208.

[5]Style, 466.

[6]See the first edition (New York, 1847) of Theodore Sedgwick, Damages, 201-202, in Pound and Plucknett, Readings, 168.

[7]Salk. 648; Thayer, On Evidence, 171. There was a special reason for this, since a plaintiff could bring a new ejectment.

[8]1 Burr. 390; he explained that equity would relieve against unjust verdicts by ordering a new trial at law, and that common law courts felt bound to follow this lead.

[1]Note that the lack of reported decisions on a point is sometimes an advantage.

[2]Jenks, According to the Evidence, in Cambridge Legal Essays (1926), 191-201. Cf. Winfield, History of Conspiracy, 185.

[3]R. v. Rosser (1836), 7 C. & P. 649.

[4]Below, p. 436.

[1]For an excellent historical sketch of the idea of representation, see M. V. Clarke, Medieval Representation (1936), especially ch. xiii.

[2]But things went too far when the Commons were said to “indict” when they started an impeachment.

[1]A very similar situation arose in property cases when the jury was asked to say whether there had been a disseisin—a proposition even more technical and artificial than the law of larceny.

[2]32 Geo. III, c. 60.

[3]Below, p. 500.