Trial by jury in the United Kingdom
Encyclopedia
The history of trial by jury in Engand is influential because many British
colonies, including the United States
, adopted the English
common law
system in which trial by jury is an important part. Many traditions, such as the jury consisting of twelve members, originated in England. See also juries in England and Wales.
occupation: “The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘thing
’ to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like Njal, the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as it principal officers, twelve hereditary ‘law men.’ The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.”
The English king Æthelred the Unready issued a legal a legal code at Wantage, which states that the twelve leading thegn
s (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These 'juries' differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.
took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "grand jury
" through his Assize of Clarendon
. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred
to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal
.
The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became a pretty explicit right in one of the most influential clauses of Magna Carta
, signed by King John
. Article 39 of the Magna Carta read:
Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.
It is translated thus by Lysander Spooner
in his Essay on the Trial by Jury:
"No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land."
Although it says and or by the law of the land, this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the consuetudinary law, based on the customs and consent of John’s subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people.
According to some sources, in the time of Edward III, by the law of the land had been substituted by due process of law, which in those times was a trial by twelve peers.
During the mid-14th Century, it was forbidden that persons who had sat on the Presenting Jury (i.e., in modern parlance, the Grand Jury
) to sit on the trial jury for that crime. 25 Edward III stat 5., c3 (1353). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding. Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. The Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom.
In David Hume
's History of England, he tells something of the powers that the kings had accumulated in the times after the Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:
Many English colonies adopted the jury trial system including the United States
. Jury trials in criminal cases were a protected right in the original Constitution
and the Fifth
, Sixth
, and Seventh Amendment
s of the U.S. Constitution extend the rights to trial by jury to include the right to jury trial for both criminal and civil matters and a grand jury for serious cases.
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
colonies, including the United States
Trial by jury in the United States
Trial by jury in the United States of America is a fundamental part of the American justice system. It has been speculated that jury trials encourage harsh punishment in the United States.-History:...
, adopted the English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system in which trial by jury is an important part. Many traditions, such as the jury consisting of twelve members, originated in England. See also juries in England and Wales.
Anglo-Saxon England
According to George Macaulay Trevelyan in A Shortened History of England (1959), during the VikingViking
The term Viking is customarily used to refer to the Norse explorers, warriors, merchants, and pirates who raided, traded, explored and settled in wide areas of Europe, Asia and the North Atlantic islands from the late 8th to the mid-11th century.These Norsemen used their famed longships to...
occupation: “The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘thing
Thing (assembly)
A thing was the governing assembly in Germanic and introduced into some Celtic societies, made up of the free people of the community and presided by lawspeakers, meeting in a place called a thingstead...
’ to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like Njal, the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as it principal officers, twelve hereditary ‘law men.’ The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.”
The English king Æthelred the Unready issued a legal a legal code at Wantage, which states that the twelve leading thegn
Thegn
The term thegn , from OE þegn, ðegn "servant, attendant, retainer", is commonly used to describe either an aristocratic retainer of a king or nobleman in Anglo-Saxon England, or as a class term, the majority of the aristocracy below the ranks of ealdormen and high-reeves...
s (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These 'juries' differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.
Later Middle Ages
In the 12th century, Henry IIHenry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
" through his Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...
. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred
Hundred (division)
A hundred is a geographic division formerly used in England, Wales, Denmark, South Australia, some parts of the United States, Germany , Sweden, Finland and Norway, which historically was used to divide a larger region into smaller administrative divisions...
to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal
Trial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
.
The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became a pretty explicit right in one of the most influential clauses of Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, signed by King John
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
. Article 39 of the Magna Carta read:
Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.
It is translated thus by Lysander Spooner
Lysander Spooner
Lysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...
in his Essay on the Trial by Jury:
"No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land."
Although it says and or by the law of the land, this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the consuetudinary law, based on the customs and consent of John’s subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people.
According to some sources, in the time of Edward III, by the law of the land had been substituted by due process of law, which in those times was a trial by twelve peers.
During the mid-14th Century, it was forbidden that persons who had sat on the Presenting Jury (i.e., in modern parlance, the Grand Jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
) to sit on the trial jury for that crime. 25 Edward III stat 5., c3 (1353). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding. Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. The Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom.
In David Hume
David Hume
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism. He was one of the most important figures in the history of Western philosophy and the Scottish Enlightenment...
's History of England, he tells something of the powers that the kings had accumulated in the times after the Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:
- One of the most ancient and most established instruments of power was the court of Star Chamber
Star ChamberThe Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
, which possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offenses, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men who all of them enjoyed their offices during pleasure: And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question, whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. While so many terrors hung over the people, no jury durst have acquitted a man, when the court was resolved to have him condemned. The practice also, of not confronting witnesses to the prisoner, gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an instance, during all these reigns, that the sovereign, or the ministers, were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown. And as the practice was anciently common of fining, imprisoning, or otherwise punishing the jurors, merely at the discretion of the court, for finding a verdict contrary to the direction of these dependent judges; it is obvious, that juries were then no manner of security to the liberty of the subject.
Early modern period
The first paragraph of the Act that abolished the Star Chamber repeats the clause on the right of a citizen to be judged by his peers:Abolition of the Star Chamber
July 5, 1641
An act for the regulating of the privy council, and for taking away the court commonly called the star-chamber.
- WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land…
Many English colonies adopted the jury trial system including the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. Jury trials in criminal cases were a protected right in the original Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and the Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, Sixth
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, and Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
s of the U.S. Constitution extend the rights to trial by jury to include the right to jury trial for both criminal and civil matters and a grand jury for serious cases.