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The English jury and English liberty

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Title:
The English jury and English liberty
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Hill, Christopher
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Denver, CO
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University of Colorado Denver
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English
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vi, 84 leaves : ; 28 cm

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Jury -- England ( lcsh )
Tudor, House of ( lcsh )
Civil rights -- England ( lcsh )
Kings and rulers -- Great Britain ( lcsh )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 76-84).
Thesis:
History
General Note:
Department of History
Statement of Responsibility:
by Christopher Hill.

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|University of Colorado Denver
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|Auraria Library
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Full Text
THE ENGLISH JURY
AND ENGLISH LIBERTY
by
Christopher Hill
B.A., University of Colorado, 1990
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
History


(c) 1999 by Christopher Hill
All rights reserved


This thesis for the Master of Arts
degree by
Christopher Hill
has been approved
by
Date


Hill, Christopher (M.A., History)
The English Jury and English Liberty
Thesis directed by Professor Frederick Allen
ABSTRACT
This study will attempt to make three arguments. First, that the initial creation of
the jury was a move by an authoritarian monarch locked in a power struggle with
the church. The King was able to create in the law this fact-finding body of
commoners because of the philosophical climate of a 12th-century revival of
rationalism. Second, that the jury quietly grew in stature during a period of
weakness in the English monarchy until a more powerfulmonarchy under the
Tudors tried to place limits on the jury system through the use of procedural
hurdles and outright coercion. And third, that in one of the most ironic twists in
the history of the common law, this body founded by a strong king made
substantive inroads into the nature of authoritarian prerogative by establishing the
concepts of judicial review of legislation and by making the first serious
guarantees of civil liberties for the common individual.
This abstract accurately represents the content of the candidate's thesis. I
recommend it for publication.
Signed
Frederick Allen
IV


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


CONTENTS
CHAPTER
1. INTRODUCTION..........................1
2. TWELVE LAWFUL MEN....................10
3. TOWARD AN INDEPENDENT BODY...........33
4. THE JURY IN THE MODERN PERIOD: NON-COERCION
AND SANCTION NULLIFICATION............56
5. CONCLUSION...........................73
ANNOTATED BIBLIOGRAPHY.......................76
vi


CHAPTER ONE
INTRODUCTION
In 1768, at the height of the European Enlightenment, the English jurist
Blackstone declared that his country's peculiar system of jury trial "ever has been,
and I trust ever will be, looked upon as the glory of the English law." He went on
to assert enthusiastically that the jury guaranteed that the Englishman "(could) not
be affected either in his property, his liberty, or his person, but by the unanimous
consent of twelve of his neighbors." Blackstone's admiration for the jury system is
perhaps understandable given both his homeland's continuing obsession with
liberty and the prevailing mood of the eighteenth century. Although the reality of
"liberty" in the sense that the philosophes used it is widely debated today by post-
modernists and other modern-day romantics, Blackstone's time was one in which
the ideas of human rationality and freedom were still exciting ones. Blackstone
believed that the common law was the framework of English freedom, and he,
rightly or wrongly, considered the jury trial one of the cornerstones upon which
the common law was built.
It is an ironic counterpoint to Blackstone's exuberance to note that the jury
today is nowhere near as widely used as it was during Blackstone's time, and in
England its use is in many cases statutorily prohibited. In the United States, where
trial by jury has been constitutionally protected since the country's inception, an
increasing number of defendants prefer trial by judge to the more traditional appeal
to "twelve good men." This can partly be explained by the expense of the juiy trial,
1


and the fact that when found guilty a defendant is often forced to shoulder the
jury's expense as a part of his or her sentence. But trial by jury is also increasingly
out of favor among American and English jurists and legal scholars, because the
outcomes of such trials, especially in civil matters, are extremely difficult to predict
from the merits of any individual case. Furthermore, there are many cases where
for political reasons juries actually refuse to convict in cases where guilt is
overwhelmingly apparent. The case of O. J. Simpson springs to mind, and
Simpson's acquittal touched off a wave of scholarship in legal journals debating the
logic and utility of sanction nullification in the modem world. Law, many jurists
claim, is simply too complicated and too vital to be left in the hands of the masses,
who are unfamiliar with legal precedent, and who are (in the view of such jurists)
too easily swayed by the pathos engendered by a given defendant.
The somewhat scornful attitude toward the independence of the jury
contained in the polemics against it, however, depend often upon a sort of
arrogance for the modem period that is not necessarily well-placed. A more
circumspect view of history shows that within Blackstone's hyperbole lies an
element of truth. It was precisely the ability of jurors to reject the law with
prejudice which secured the values which modern liberals hold so dear. In the
seminal decision regarding the independence of the jury, Bushel's Case (1670),
jury nullification directly secured religious freedom from a zealous government
bent on declaring faiths unsanctioned by the state as not only heretical but as
unlawful breaches of the peace. Given the facts of the case, it would be difficult
indeed to argue responsibly that political decisions made by juries in modem-day
America are in any way more hazardous than they were when Bushel was jailed.
2


Indeed, when the political dynamics of England and The United States today are
compared to the exceedingly bloody conflicts which faced England during the
seventeenth century, it becomes almost laughable to assert that the modem world
has a lock on political gravity.
Blackstone, from his perspective in the Enlightenment, was able to look
back at the earlier periods in the evolution of the English trial jury and declare that
the jury had made possible much of the freedom he enjoyed. But if Blackstone had
asserted in the passage quoted above that the English trial jury had always been a
respected part of the English judicial system, he would have been very much in
error. In much the same way that the concept of jury trial finds itself under attack
from the legal establishment today, the jury of sixteenth century England was also
roundly excoriated by the jurists of the time. During the seventeenth century, a
changing political climate brought different views of the utility of jury trial. Each of
these movements were shaped by conditions outside of the legal sphere.
But how much further can we extend this argument? The study which
follows will be, in effect, an examination of Blackstone's claim, specifically
regarding the role of the jury system in promoting and securing the tradition of
liberty in England, and through it Western Europe and the rest of the world. How
influential was the jury in promoting and securing what we consider liberal? This
essay will argue that while it was not the sole determining factor in the growth of
the English liberal tradition, it nonetheless had an important part to play, although
not as dramatic a one as Blackstone might have claimed. The development of the
jury was in reality a very slow process, and the jury's full potential as the guarantor
of liberty was not realized until the early modem period and the English Civil War.
3


Prior to this time, the jury was more important as a defender of local authority, not
so much protecting the rights of the individual against a malicious crown as
protecting the rights of villagers to take care of problems in their own back yards.
To make this case, the study will focus on three aspects of legal history.
The first section will describe the foundations of the jury system in England after
the Norman conquest. It will briefly examine the earliest threads of jury tradition
on the continent, and then move on to the critical period between the reigns of
Henry II and Henry III, when the jury was codified and eventually used as an
arbiter of guilt and innocence. The second part will examine the period when the
use of the jury became assumed and widespread. This section will examine the
question of whether the independence of the jury and its verdict was indeed
moving in one general direction, or whether the jury was simply an extension of
royal power with jury verdicts forcefully directed by the crown and its agents. The
third section will deal with the period of the English interregnum, when the
principle of sanction nullification left the world of the theoretical and was finally
upheld by Chief Justice Vaughn in Bushel's case of 1660.
While this essay will not be so bold as to state that the jury was the prime
motivating factor in the establishment of English democracy, it will argue that the
use of the jury depended upon an assumption of the rational nature of man, and
that by the time that the supremacy of the legislative branch of government was
established in the Restoration, this assumption had become virtually unquestioned.
If the crown will grant that the commoner is capable of determining guilt in capital
cases, the power of life and death which had heretofore been reserved to the
crown's agents and churchmen makes a subtle but irrevocable shift. The
4


assumption of rationality, moreover, was by no means widespread during the
middle ages. This study will point out that the concept of logic, in the Aristotelian
fashion, was still very novel when the jury was established in England, and that no
area had made much use of public opinion in the administration of justice. The
notion that the individual might be able to determine truth would wait until the
13th century, when Averoes and Aquinas gave it a philosophical grounding. In the
case of the common individual's ability to make such determinations, philosophical
grounding would wait until the Enlightenment, and if one seriously examines the
work of Michel Foucault and Jacques Derrida, it might be argued that the question
has by no means been laid to rest even today.
Yet in 1166, the Assize of Clarendon would establish the concept of the
grand jury as a fact-finding body, and these "juries of presentment" were
comprised of commoners. It is a delicious irony that these juries, which this study
will argue were pivotal in curbing central authority, were put into place by one of
the strongest monarchs in the history of the British throne, Henry H It is also
ironic that the model which Henry used for the jury was taken from another strong
monarch of the Norman line, William the Conqueror, who had used a form of jury
to inform on neighbors who were sheltering money from the massive Domesday
tax inquiry.
The transition of the jury from fact-finder to determiner of guilt was a
comparatively sudden one. This study will examine the period of the change, which
was largely spurred by the action of the 4th Lateran Council in 1215. In that year,
the council made it a matter of Church law that priests could no longer take part in
trial by ordeal. Under this system, the accused was made to undergo some sort of
5


torment without suffering injury. Until 1215, this was one of the two common
methods of proving guilt; the other was trial by combat where it was assumed that
the guilty party would lose. In any event, after the elimination of the ordeal (which
could not take place without the participation of the clergy) it became necessary to
find a new method of determining guilt. On the Continent, the new method was the
increasing use of the Justinian system as practiced by both the ecclesiastical and
laic courts. In England, however, the new method was an extension of the
presenting jury namely the trial jury.
Why this should have happened will be closely examined in this study. One
possible explanation, which fits in well with the prevailing political climate of the
period, is that the barons who forced the signing of Magna Carta onto King John
doubted their chances for a fair trial under the king whose power they were
actively trying to limit. They may have viewed the Justinian system as a direct
extension of power through the king's agents. It will also be pointed out that the
transition to trial jury was a muddled one; that the first verdicts rendered were in
cases where guilt was manifest, and that the very first example of a final verdict
given by a jury under the new system (regarding an accusation of rape in 1220)
was used because there was literally no other way to determine guilt. Still, the
dynamic movement toward the trial jury had been set in place, and its status as an
arbiter of guilt had been established. By the mid part of the 13 th century, the jury
was becoming an accepted and commonplace feature of the English judicial
process.
This study will next turn to the question of why the jury endured over the
succeeding centuries. As will be stressed, the option of abandoning the jury
6


entirely and moving toward the Justinian system was always open to the crown,
and during the 14th century, especially, there were kings interested injudicial
reform. A variety of changes took place in the administration of justice, yet the
jury was untouched. Why should this have been? A simple answer might be that
juries were acting in concert with the wishes of the government, i. e. that juries
were routinely convicting those accused of stirring up dissension or breaking the
king's peace.
Unfortunately, however, the facts do not readily support this conclusion.
Drawing on the work of several historians, this study will show that in cases of
what we would today consider felony, juries acquitted more than 40% of the time.
Considering that the late 13 th and early to mid 14th centuries were noted by
contemporaries to have suffered a discernible increase in general lawlessness, it is
both apparent and striking that juries were not acting as rubber stamps for the
crown. It is clear that during this period juries were acting either independently or
in spite of the authorities.
Why then did the crown continue to favor the jury? There are several
possible explanations. Jury members may have been more frightened of the local
lord, who, it will be shown, had reason for seeking some acquittals. Another
interesting possibility is that society expected a high percentage of not-guilty
verdicts, a conclusion which is bolstered by the comparatively large numbers of
royal pardons given to convicted felons. The other possible explanation which the
study will explore is that the crown had simply no real alternative. Given the extent
of the realm of England, the diffuse organization of feudal society, and the expense
7


of forming some sort of royal police force to investigate breaches of the peace, the
jury may have seemed the most cost-effective method of administering justice.
The third section of this study will examine the attempts made at the
limitation of the jury's independence during the 16th century, and the final moves
which solidified the independence of jury verdicts after the Puritan Revolution in
the 17th century. The data for these periods gives the impression that as though
the crown during the Tudor reigns began to realize the potential power that the
jury system had taken on during the preceding centuries, and made various
attempts to force juries into line with its own desires. However, it is also apparent
that the attempts to limit were met with difficulty.
Coercion took a variety of forms. At its most basic level, judges simply
threw recalcitrant jurors into jail, refusing to release them until the proper verdicts
were reached. Fines were also levied on jurors by judges, and in extreme cases
jurors might be indicted before the star-chamber. However, despite the strength of
the monarchs during this period, there were no serious attempts to end the role of
the jury entirely. By the early modem period, the tradition of the jury was too great
to overcome. Still, the problem of bringing juries into line with the maturing
system of common law would cause consternation among English jurists for more
than a century, and as late as 1600 the highest court was still sanctioning coercion.
The 17th century, obviously, was a period of upheaval in English history,
and we begin to find during these years more radical ideas about the nature of
government and the governed. One of the major movements, the Levellers,
believed that the jury system in particular was one of the few bulwarks available in
the English system which might combat tyranny. In the celebrated treason case
8


involving the Leveller leader John Lilbume, the defendant threw himself onto the
mercy of the jury, begging the jurors to acquit because they knew in their hearts
that by spreading a doctrine he had committed no crime. The decision made by the
jurors to agree with Lilbume was one of the turning points in the history of the
jury, and this study will examine the case in depth.
This study will also examine the case which finally ended the practice of
coercion, Bushel's Case, in which jurors who had been jailed for refusing to
convict two Quakers on the charge of disturbing the peace. The law in this case
was quite clear, and the defendants freely admitted that they had violated the letter
and the spirit of the law. Several of the jurors could not bring themselves to
convict a preacher for preaching, and they were imprisoned for their decision to
acquit.
In Bushel's Case, Chief Justice Vaughn opined that the jurors in the
Quaker trial had acted in good faith, and that they must be released from prison.
Much has been made of Vaughn's decision, and this study will examine the strands
of argument both for and against the concept of jury nullification which the
decision codified. In the end, it will try to show that non-coercion effectively ended
the debate over the independence of the trial jury, and will show that in subsequent
cases involving treason, the crown's (and Parliament's) power had been effectively
blocked. The jury triumphed over attempts to limit individual liberties and extend
the power of government, and for this reason played a key role in the establishment
of the English liberal tradition.
9


CHAPTER TWO
TWELVE LAWFUL MEN
In 1164, as Henry II began to lay the foundations of what would eventually
come to be known as the English criminal jury, the concept of the jury itself was
not an entirely novel one in the European experience. The Romans, for example,
had found it advantageous in certain civil cases (which invariably took place far
from Rome) to use groups of local rustics to sort out the details of litigation in
cases dealing with property dispute. ^ There was a good deal of logical expedience
(and perhaps cynicism) in the Roman utilization of this system. After all, proper
Roman citizens who acted as prefects could not be expected to know the vagaries
of clan disagreements in the far reaches of the empire, nor could they be expected
to understand the unusual strains of law to which the barbarians might be
accustomed. As much as possible, the canny Romans avoided involvement in these
disputes and adopted a hands-off attitude; certain cases, however, dealt with
ownership and with levels of valuation which were directly related to taxation, and
it became unavoidable for the occupying government to become involved. Instead
of wasting time learning particulars, or, for that matter, attempting to teach the
rustics the proper methods of legally settling such disagreements, the Roman
prefects simply ordered locals familiar with the both the dispute and the litigants to
sort out the details and determine ownership.
It should be pointed out here, in the context of this study, that Roman use
of the jury was not widespread; it was not used in criminal cases, it was not
respected either by the Romans or by the unfortunate jurors selected to doom their
10


neighbors, and it most certainly was not trusted by the Romans to be of use in
determining any sort of philosophically esoteric concept as truth. On the contrary,
the jury as the Romans used it was more along the lines of an informant body,
ferreting out monies which the locals were trying to hide. Were it not for Romes
rapacious desire to increase the tax-base it most likely never would have been
utilized at all. Its use in the Roman backwaters, however, may have exposed the
concept to the Franks, who, as the Empire collapsed, incorporated the jury into
parts of their own legal tradition. ^
The Roman-Frank origins of the jury system is a matter of conjecture; we
have no direct records of the transmission of the jury to the Germanic tribes. Still,
it is a logical scenario, and whether it happened this way or not, it is almost certain
that the English jury did not evolve with the English, and was rather imposed onto
the English by their Norman overlords.^ The Anglo-Saxons simply did not have
such a tradition; judgements were rendered through a system of oath-swearing,
wherein the rank and number of the witnesses, and the strict adherence to legal
format determined guilt or innocence. Whether the Normans came to the jury
system spontaneously, or whether it was transmitted to them through the Franks
from the Romans is not particularly relevant. What is relevant is that they used it,
in the form of the sworn inquest, and thought enough of it to make it an important
part of their legal system, where the Romans considered it merely a tool to be used
in cases where justice was not a vital concern.
When the Normans came to England, they brought with them this tradition
of a rudimentary jury system, and William the Conqueror made use of it in much
the same way that the Romans did. In conducting the remarkable inquiry which led
11


to the creation of Domesday Book, Williams operatives made a very thorough
survey of the lands which they had recently acquired. There was no question of
Williams motives in making the survey; he was very interested in the rigorous
system of taxation which had been developed by the English and Danish monarchs
who governed England before his arrival, and he wanted to know the value of the
land down to the last kemal of com. As one historian has put it, William meant to
be a rich king, instead of a poor Duke.^ This much the English knew, and made
every attempt to hide wealth from the assessors. To combat this difficulty, the
Conquerors agents assigned groups of locals to find the hidden valuables and
n
make detailed report of them. These groups were the very early precursers of the
English jury system.
The early importation of the jury system into England, is however, only one
part of a much larger story. In order to understand the importance of the jury in
terms of the larger issue of English liberty, it is necessary to have a grasp on the
underpinnings of medieval philosophy. It is a fairly common misapprehension that
liberalism as we understand it was bom wholly in the European Enlightenment of
the 18th century. In some ways this is correct, and this study will later take up the
question of the early foundations of Enlightenment thought in England in terms of
legislative supremacy and religious tolerance. However, the absolute cornerstone
of the philosophy of liberalism is the belief that the universe is intrinsically
knowable, that it follows rational and understandable patterns of behavior, and that
humans are imbued with the ability to understand that which they see around them.
These ideas, which gained such currency during the 18th century, were not at all
novel to that time. On the contrary, the argument can be traced to Aristotle and the
12


classical period, and it has been one of the central questions of western philosophy
for two thousand years. It has had various incarnations at different times, and
while the Platonist ideal as expressed by St. Augustine had held the ascendancy for
much of the early middle ages, the twelfth century brought a new resurgence of
rationalism, and a renewed interest in expanding the limits of human
O
intellectualism.
The first great figure in this movement, and the one that was widely
recognized during the time of Henry Hs rule, was Peter Abelard. Abelard believed
that the mind could draw rational conclusions based on the observable patterns of
the surrounding world. He was somewhat ahead of his time, in that the views
which earned for him condemnation would eventually, under a slightly different
guise, earn for Thomas Aquinas sainthood. As lacerated as Abelard was by
churchmen, however, his massive intellect attracted a great number of his
contemporaries. As other thinkers became interested in the possibilities created by
logic, and as Aristotelian texts became available in western and northern Europe by
way of the reconquista in Spain, there was a great shift in European philosophy
toward a favorable view of human rationality. This was precisely the period when
the first substantive steps toward an independent criminal jury in England were
taken.
It would be difficult indeed to prove that Henry II was a disciple of
Abelard, and that this philosophy drove him to create the grand jury. This thesis
does not propose to do anything so rash. However, it is certainly within the bounds
of reasonable argument to say that the shift in philosophical attitude during the
12th century made the creation of the jury far more palatable. Again, while we
13


today consider juries to be rather ho-hum affairs, what they are designed to do is,
in a philosophical sense quite remarkable, and at the time that the jury was created
it was almost revolutionary. By its very nature the use of juries must assume that
the people who sit upon them are rational, and are capable of determining truth in
a very fundamental way. In earlier periods such determinations were exclusively
the province of either the Church or the agents of the crown, which at the time
were considered two sides of the same coin of governance which had been placed
on earth by God. The notion that the individual might be able to determine truth
was still a very novel idea in the 12th century Angevin empire (which included
parts of France as well as England), and would not find careful elucidation until
Averoes, who caused such a panic in the Church at the time of his writing that the
works of Aristotle were temporarily banned.^ In the case of the common
individuals ability to make such determinations, philosophical grounding would
wait until the Enlightenment, and if one seriously examines the work of
contemporary post-structuralists, it is clear that the question has by no means been
laid to rest even today. Considering that Derrida is writing during the post-
Enlightenment period, and furthermore during a cynical age when sciences
dependence on rationality is shifting traditional views of God, it is even more
striking just how earth-shaking Christian rationality must have seemed to the
Platonist thinkers whose ideas it gradually replaced.
If Henry were not a rationalist, however, it is difficult to explain just how
he came to create the jury. Even if the philosophical winds of his time were
blowing in this direction, this tenuous atmosphere still cannot by itself explain why
he would have given over such a substantial power to local authority. Juries are
14


expedient, to be sure, but Henry was an enormously powerful king, easily the most
powerful of English monarchs during his century, and his reign ended the period of
English history known as the "anarchy," when the need for strength in the
monarchy had become so vitally apparent. Henry knew full well the necessity of
central authority, and the extensive reforms of the legal system during his reign
demonstrate the value he placed on the judicial arm of his government. It seems
odd to say the least that he would choose to hand over the vital power of
indictment to commoners, yet this is precisely what he did. There still seems to be
one piece of the puzzle missing.
Perhaps the answer lies in another of the great intellectual controversies of
his time: the balance of power between the Church and the Crown. As creatures
with the benefit of Enlightenment thinking, we tend to view the basic struggle
within government as a polar spectrum with tyranny at one end and popular
sovereignty somewhere near the other, but it was not always so. The seeds of the
modern conception of liberty may have been planted by the philosophical
movement of rationality, but at the time that those seeds were sown, there were no
popular uprisings of the masses demanding a say in their governance. Indeed, the
twelfth century almost completely lacked one of the forces which eventually drove
the movement to limit the crown's authority a strong capitalist middle class.
Henry was simply unconcerned with the prospect of popular revolt. He was,
however, quite concerned with the very real threat to his authority represented by
the Church.
By the time of Henrys reign, the Investiture controversy had been largely
laid to rest. The disastrous conflict which had literally forced Germanys Henry IV
15


to his knees in a snowdrift outside of Canossa had been settled by the Concordat
of Worms in 1122. The Bishops and Abbots were to be elected within the Church
according to canon law. The King, however, was given the power to oversee the
process and to resolve all disputes, and strong Kings were not at all shy about
exercising this power. Henry n, for example, on one occasion told an assembly of
monks: I order you to hold a free election, but nevertheless I forbid you to elect
anyone except Richard, my clerk, the archdeacon of Poitiers. Henry was a
powerful man, and he was very cautious about the prelates with whom his
temporal power would be shared.
But Henry could not completely control the bishops, as was made very
clear during the fight which led to the murder of Thomas a Becket. And while
Henry had a say over the election of bishops, he had no control whatsoever within
the most obvious challenge to his authority, the ecclesiastical courts. To counteract
the influence of the Church, Henry issued in 1164 an ordinance entitled the
Constitutions of Clarendon, which sought to wrest jurisdiction of certain types of
cases which would be heard by the ecclesiastical courts. While its main thrust
would prevent appeal to Rome without royal permission, and would further the
growing rift between Henry and Becket, buried within it we find the following
curious statement:
And if the guilty persons are such that no one wishes or dares to accuse
them, the sheriff, on being asked by the bishop, shall have twelve lawful
men from the neighborhood, or the vill, placed on oath before the bishop to
set forth the truth in the matter according to their knowledge.*
16


With this sentence was bom in England the first example of what we may directly
trace to the English criminal jury. It was not, in its inception, so much a transfer of
power from the king to the commoners as it was a direct assault on the power of
the church, using men whom Henry felt that he could trust.
Henry probably based this body, the so-called accusing jury, on the
tradition of the Norman sworn inquest, and on the juries which had been a part of
his great-great-grandfathers Domesday tax inquiry. Its scope, however, was vastly
different from its predecessors, in that it was to be used specifically in cases
considered criminal, and it was to be used against both commoners and persons of
stature. Note that the wording of the sentence specifically states that the jury will
be used in cases where no one dares accuse the guilty party. Clearly this is not
aimed at the average serf or "villein." In fact, it was the average lawful villein who
would sit on such juries, in many cases dooming his feudal superiors, and there is
evidence in the records to show that this was precisely the way such juries were
comprised. Another interesting feature is that the sentence cited uses the word
truth, as the commodity that the jury is designed to find. As has been shown
above, this can be a highly charged concept, certainly not a word that would be
thrown around lightly if the prevailing mood did not accept such an idea.
It is also important to realize that indictment in this context was no small
matter. After indictment there were only two possible methods of determining guilt
or acquittal: combat and ordeal. In the case of combat, where the accused would
often fight a representative of the crown, one party almost certainly died, and that
party was usually the accused, fighting against a professional soldier. In the case of
ordeal, which in England generally involved placing the arm into boiling water for
17


a specified amount of time, acquittal came only when the arm was apparently
unscalded several days later; in other words, proof of innocence depended on a
miracle. In either case, accusation was very, very close to determination of guilt.
The Constitutions of Clarendon also made use of the jury in another
important way, which was more in keeping with its general attack on the Church.
Under the provisions of section nine of the document we find this:
If a claim is raised by a clergyman against a layman, or by a layman
against a clergyman, with regard to any tenement which the clergyman
wishes to treat as free alms, but which the layman wishes to treat as lay fee,
let it, by the consideration of the kings chief justice and in the presence of
the said justice, be settled through the recognition of twelve lawful men
whether the tenement belongs to free alms or to lay fee.* *
The passage here refers to the controversies which arose when the Church claimed
that the title of a given piece of land had been transferred to it by the process of
free alms or donation. If an individual claimed that the land had instead been
given or sold to him through the process of lay fee, the dispute had been
previously settled by the ecclesiastical courts, which, not surprisingly, often found
in favor of the Church. The Constitutions of Clarendon changed this by placing the
determination in the hands of a jury of commoners. The move infuriated
churchmen who were being deprived of a substantial source of revenue, but its
underlying theme is even more stunning. By placing such power in the hands of the
people acquainted with the dispute, Henry assumes that they will make a rational
decision, even if it means that the people must act against the most powerful
spiritual institution that they know. It must be remembered that this is taking place
18


when the Church is not a despised organization; the popular attacks on simony and
indulgence which were the hallmarks of late 14th century writers like Chaucer and
Langland were still more than two centuries in the future. Yet Henry believed that
given the opportunity, the common man would make fair decisions which could
potentially imperil his mortal soul. That Henry believed that simply finding
against the Church had nothing to do with ones salvation is not surprising, but
that he would assume such a cosmopolitan outlook in the commoner is startling.
The cases covered by the Constitutions were still, however, fairly unusual,
and dealt only with disputes involving the ecclesiastical courts. Two years later
Henry massively expanded the use of the juiy system with an ordinance entitled the
Assize of Clarendon, which is generally recognized as the document which
established the jury as a durable feature of the English system. As a point of
reference, the term Assize in this context refers to a document designed to give
specific instruction in official administrative procedure, as opposed to Charter
(Carta) or Constitution which were more general documents describing
agreements between the Crown and its subjects. The Assize later became
associated with the jury which followed the procedure indicated, and eventually
came to be used to describe the court itself. Although the Assize of Clarendon
pertained to the dispositions of a variety of types of offenses, and dealt also with
cases of disseisin and land law, its impact on the new jury system was especially
profound. The very first section of the Assize establishes juries in every district in
the realm, whose duty is to bring charges against any person suspected of crime:
19


...King Henry, by the council of all his barons, has ordained that, for the
preservation of peace and the enforcement of justice, inquiry shall be made
in every county and in every hundred through twelve of the more lawful
men of the hundred and four of the lawful men of each vill, put on oath to
tell the truth, whether in their hundred or in their vill there is any man
accused or publicly known as a robber or murderer or thief, or anyone who
has been a receiver of robbers or murderers or thieves, since the lord king
has been king.^
As the phrase Tor the preservation of peace and the enforcement of justice
suggests, the Assize was primarily designed as a sort of Taw and order document.
Most of the provisions deal with such matters as delivery to court, flight of
fugitives and aiding and abetting. It cannot in any way be viewed as a liberalizing
document the tone is quite authoritarian, and establishes strict penalties both for
fugitives and those who help them. It is also unclear how permanent the Assize
was meant to be; in contrast to the Constitutions of Clarendon, which end with the
phrase ...are inviolably to be observed forever, the Assize says merely that the
Lord King wills that, during his pleasure, this assize shall be observed in his
kingdom (italics mine). He may have realized how profound the changes he was
making were, and wanted the ability to alter them at his discretion.
For the change was profound. Here was an enormous shift in criminal
procedure, giving sweeping powers of indictment to groups of commoners held by
no more than their reputations and their oaths. Since many of the provisions of the
Assize led directly from presentment by the jury to ordeal, with no intermediate
steps and limited prospects for appeal, Henry must have realized that many people
indicted by the jury faced summary execution. The infallibility of the ordeal was
already being called into question, and the Church would disavow it within fifty
20


years of the publication of the Assize. As an authoritarian Henry may not have
cared about the unfortunates and criminals who would be condemned, but
nonetheless an important shift toward local power was included in the provisions.
If the crown will grant that the commoner is capable of determining guilt in capital
cases, the power of life and death which had heretofore been reserved to the
crowns agents and churchmen makes a subtle but extraordinary shift. If Henry had
been a lunatic or an anarchist, such a cedence of power would be understandable,
but Henry was neither. The Assize most likely represents a further attempt to
curtail the power of the ecclesiastical court, because the juries were explicitly
instructed to report their findings to the kings agents, and not to the local cleric,
because doing so would have placed the matters under Church jurisdiction. It is
also possible that Henry was using the jury as a temporary measure to quickly
eliminate troublemakers, and it has been suggested by the renowned legal scholar
Maitland and others that the Assize could have been designed as an instruction
manual for judges being sent out to take part in the local Eyre, the itinerant courts
sent out yearly by the Crown to provide the kings justice in the hundreds. ^ The
Assize was never repealed, though. On the contrary, its provisions were
strengthened by the Assize of Northampton in 1176, which both strengthened the
jury and defined its powers and duties more precisely. These two documents,
Clarendon and Northampton, established what would come to be known as the
Jury of Presentment, or, as we know it today the Grand Jury.
The period between the Assize of Northampton and the creation of the
criminal adjudicating or petty jury in the 1220's is murky. The greatest legal
writer of the period, Glanville, who wrote during the 1180s, describes the accepted
21


procedures of his time, but he is primarily concerned with the procedure for
appeal, the earlier system where one person simply accuses another. The record of
how the jury went about the business of declaring suspicion is frustratingly
incomplete in the time of the jurys earliest use. Nonetheless, we can roughly
reconstruct the workings and limitations of the jury during this period through
examination of the Assizes themselves and the earliest records of criminal
proceedings which begin in the 1190's. ^ It seems that the presentation by the jury
was examined by the justices of the eyre, the traveling royal court, who asked
which of the accused were directly suspected by the jury of committing specific
crimes, and which were being presented simply on the basis of bad reputation, a
distinction explicitly made in the Assize of Clarendon. The latter were given a
milder form of proof than the ordeal, acquittal based on the oaths of character
witnesses. Those appellees whom the jury had specific evidence against were given
either the ordeal or combat, depending on the specifics of the case. In this early
period there was evidently a formula which was roughly followed to determine by
which method guilt or innocence would be discovered ordeal in cases of medium
seriousness, combat in cases which were capital. Those who underwent the ordeal
and failed were punished by fining, maiming and/or abjuration. Those who failed at
combat, should they have survived, were hanged.
While the power of the jury of presentment was great, and it had become a
fact-finding body, its power was to be exercised only within certain bounds. Again,
what we are looking at here is a type of grand jury, not a convicting or petty jury.
It was somewhat independent, in that the evidentiary rules which place such
strictures on the modem grand jury did not at the time exist; the jury chose where
22


it wanted to go in its investigation and it examined whatever evidence was
available to it. However, the jury acted in concert with the sheriffs and the justices,
who, it may be inferred, had some ability to steer the decisions of the juries.
Furthermore, the juries, while able to come close to deciding an appellees future,
did not have the ability to make the final statement: Yes, he is guilty. Verdicts
1 n
were medial, not final, during this period.
How and when, then, did the change take place? The move from the jurys
role as a fact-finder to one of truth-finder, or arbiter of guilt, took place with
comparative suddenness, and it was caused by a number of factors working in
tandem. First, and most urgent, was the decision of the Fourth Lateran Council of
the Church in 1215 to eliminate the participation of clergy in the ordeal. It seems
that the faith in miracle-on-demand which had been the foundation of the ordeals
legitimacy was on the wane during the twelfth century. When the Council ended
the involvement of the Church, the ordeal was also effectively ended, for without
the priest to sanctify the affair, any basis for trust in the veracity of the result
evaporated. We might say that this event, in keeping with a theme of this study,
was a something of a triumph for rationality, but it left the people in charge of the
European justice systems at something of a loss. The Council did not ordain any
new practice to take the place of the ordeal it merely eliminated the old method
of determining guilt. In legal history, this was to be a moment of very great import,
for it led to the development of two very different, and very influential legal
systems.
On the continent, the vacuum was filled by the increasingly widespread use
of Roman law in the tradition of Justinian, which was finally breaking free of the
23


initial contempt in which it had been held by the Church of the early middle
ages. Under the Justinian system, guilt or innocence is determined by a judge or
a panel of judges acquainted with the law, who assign a verdict based on the
particulars of a given case. The system survives to this day in the overwhelming
majority of continental European countries and those parts of the world colonized
by them. Justinian law replaces the churchs role with judges appointed by the
crown or the state. Although it relies on rationality, it differs crucially in
philosophy from the evolving English system, in that rational arbitration can only
follow proper training, and that from the commoners perspective one overlord has
simply been replaced by another.
In England, however, a very different route was chosen, and part of that
route, of course, involved the criminal jury. During the twenty-year period
following the Councils decision of 1215, England wrestled with two competing
methods of determining guilt. While the ordeal had been ended, trial by combat
had not, and it was still employed in those cases where it was determined the
proper procedure. But during the interim period between the Assize of
Northampton and the Lateran Council, the jury had gradually been acquiring
another function the determination of the type of proof which would be necessary
following the jurys decision to present. By the early 1200's, juries were
routinely deciding whether proof should be determined via the ordeal, or by less
personally hazardous methods like purgation, a surviving form of oath-swearing.
Juries were also being used in personal appeals. During the period before Henry,
appeal generally led directly to combat, but after the 1180s it became possible to
purchase a writ claiming that the appeal had been brought de odio et atia, or
24


through hate and malice, forcing the sheriff to assemble a jury which would
determine whether there were sufficient facts to support the allegation. If none
were found, or the evidence was determined to be insufficient, the jury could clear
the appellee. Again, these verdicts were medial; those who were found to be under
reasonable suspicion were sent to combat for final disposition. Still, the increasing
use of juries indicates continuing acceptance of their verdicts by both the Crown
and the populace.
Another factor which might have led to the move of jury from fact-finding
to truth finding body in England may have involved another event of that year: the
drafting of Magna Carta and the political situation which led to it. The liberal tone
of Magna Carta is unmistakable, and one of its provisions states the following:
No freeman shall be captured or imprisoned or disseised or outlawed or
exiled or in any way destroyed, nor will we go against him or send against
him, except by the lawful judgement of his peers and by the law of the
land.21
It may well be that this provision was included because the barons who forced the
humiliating document onto King John may have disliked their chances for a fair
trial under the king whose powers they were actively trying to limit. The jury
system, insofar as it was used, was an accepted practice in England. Even if the
English had been disposed to adopt the Justinian model which was becoming
increasingly popular in Europe at this time, they might have viewed the Justinian
model with its appointed judges as an extension of royal power which under the
circumstances was something to be avoided.
25


Despite these factors however, the move to jury as truth-finder was a fluid
one there was no assize which expressly stated that the verdict of a petty jury was
to be adopted and accepted as proof of guilt or innocence. There was virtually no
legal activity in England during the years of 1215-1217; there were no eyres held
during the turbulent period leading up to the accession of Henry III. In 1218 a
nationwide eyre was begun, and in early 1219 instructions were sent to the
Justices. The instructions stated that the ordeal had been abolished and that the
crowns legal team had not as yet determined what should replace it. In serious
cases where there was ample evidence of guilt, the justices were advised to hold
the accused in prison. Those accused of medium crimes, where the ordeal would
have been required, were permitted to abjure. Those accused of minor offences
were to be released on pledges of good behavior.
There is only one extant record of an eyre during this period from York
during the 1218-1219 session, and it was unfortunately begun before the new
instructions were sent out. There are hints, however, that the justices were moving
in the direction of accepting medial verdicts (i.e. jury verdicts) as final. As legal
historian Roger Groot points out in his work on the Eyre of this period, there is
one case of uxoricide (murder of a woman by her husband) where the man did not
raise the hue and cry, but instead fled to a local church. The case was brought to
the justices at the eyre, and the man was hanged. This was obviously a case of
manifest guilt, which under the provisions of the Assize of Northampton precluded
the accused from making his law, or buying a writ to adjudicate his case.
However, the way in which the accused was brought to the attention of the justices
was most likely via a presenting jury. If this is so (and assumption here does not
26


equal proof), then it would demonstrate, that the justices were accepting a jury
verdict and giving it the force of final judgement, which would be a significant
move. The first verdict of a jury actually recorded involved a case where there was
literally no other choice but to accept the verdict of the jury as final, or to release
the appellee, and there was substantial evidence that the accused was guilty of
i 99
rape, a capital offense. The convicted man was hanged.
These cases however represent the minority of those tried. The instructions
of 1219 indicated that great numbers of persons should be jailed awaiting trial, and
this is precisely what happened. The numbers of persons imprisoned became so
great that the justices began hunting for ways to clear out the jails. By the early
1220s the method devised was to offer a choice to the suspect. Continued
imprisonment and fine, or the acceptance of the verdict of a jury with the power to
acquit. The Crown did not feel that it could impose a verdict by a jury, but it did
feel that if the accused could be compelled to take the verdict of his peers, this was
fair.
Unfortunately (from the crowns point of view), many defendants refused
to place their lives in the hands of their countrymen, presumably because they
realized that their neighbors knew them and already believed them to be as guilty
as sin. The impasse was resolved by the introduction of an augmented jury, which
included twenty-four knights. This was clearly coercive, because such juries
instantly demonstrated a proclivity for hanging. Given the choice between these
augmented juries and at least the slim possibility of mercy shown by their fellow
villagers, defendants chose the latter. In later periods, coercion took on more
drastic overtones; under the process of peine forte et dure heavy weights were
27


placed upon the accused until he or she submitted to the jurys verdict. Should the
accused die under peine, which did happen, at least his or her lands were not
forfeited since there was no conviction. Recalcitrant suspects were rare, though,
and by the 1230s the petty jury had become fairly routine.
At this time trial by jury continued to exist alongside of trial by combat,
which was still used with some frequency in capital cases. Indeed, in an amazing
tribute to the common law's adherence to tradition, combat in the form of the duel
existed as a legal remedy until the 19th century, but during the period under
examination here it was already being phased out of mainstream usage. There are
two plausible explanations for this. The first lies in simple expediency. Battle often
involved a somewhat lengthy procedure of appeal, and the justices may have been
inclined to limit the time that the accused took up jail space. The other potential
explanation is more circumspect. While trial by battle was a very traditional
Norman institution, it was at best a messy business and it kept alive the idea that
disagreements could and should be settled privately. This attitude undermined the
growing conviction in England that central authority was the key to orderly,
profitable governance. The use of combat was the vestigal remnant of the tradition
of the blood feud, which the Crown had been actively discouraging since Henry II
issued the Writ of Right. England of the twelfth and thirteenth century was not
Normandy during the tenth; since the time of the Conqueror all vassals had sworn
allegiance directly to the Crown, and all lands in tenement were held, directly or
indirectly of the king. It is surely understandable then that as the central control of
the Crown solidified in England, the crown would have tried to extend its authority
into the settlement of legal disputes. The directed jury, while granting a degree of
28


authority to the hundreds, did so in a fairly novel fashion under the auspices of the
Crown. It gave the jurors a connection to the king, and weakened in them the
instinct to settle matters on their own. For whatever reason, though, the use of
combat steadily declined throughout the 13 th century, and by the turn of the 14th
94
it was practically unheard of.
With the rise of the jury, however, new problems rose with it. If the Crown
through the workings of the justices sought to popularize the petty jury, as all
evidence indicates that it was doing, the populace needed to trust in the
impartiality of the jury system. As might be expected, even in the earliest
presenting juries there are cases where the accused claimed that presentments on
the basis of suspicion were actually brought about de odio, or based on prejudice.
This was an important distinction since presentment based on reputation required a
much lower burden to gain acquital. Should such a defendant be convicted in a
capital crime, punishment by the rope was swift and sure, yet the justices in almost
95
all cases refused to intervene.
Inconsistency, however, was a two-way street. For every conviction based
on prejudice, juries acquitted their neighbors based on mercy, which at first glance
should not have pleased the authorities. Yet from the earliest period jury verdicts
were almost sacrosanct; indeed, considering that they replaced the holy ordeal, in a
way they were. Why the justices continued to accept the acquitting verdicts of
juries, even in cases where guilt was manifest, is a crucial question in any inquiry
into why the jury endured. It is arguable the justices endowed the jury with a
measure of independence precisely because it had replaced ordeal, and they wanted
29


to equate the two in the minds of the populace, simply in the interest of
expedience.
The question of why the commoners continued to accept, with a few
exceptions, the jury system which the crown wanted, is not nearly so interesting as
why the crown would have continued to want it when it became evident that juries
would not always act in the clear interest of the sovereign.. The commons were
not in much of a position to have done anything about it, but the Crown could
probably have tossed the system in favor of the Justinian model. From the
beginning of the widespread use of the petty jury, however, not only did the
Crown push the use of the jury, but it laid a foundation for jury independence and
sanctity. Considering that the jury would eventually be used against the king, and
would be a factor in the drastic limitation of his power, this is one of the great
ironies of legal history. Why the king and his justices should have pursued this
policy will be addressed in the next section of this study.
Footnotes
*See Jenks, Edward, A Short History of the English Law (London: Methuen &
Co., 1949) pp 47- 48.
ibid. See also Pollack and Maitland, The History of English Law (Cambridge:
The Cambridge University Press, 1969) 114-116.
'I
Difficult to prove, but a reasonable assumption considering the importance which
the Romans placed on justice as an administrative tool in the capitol. Their highly-
developed system of plea was not much exported into the hinterland, but the
30


Roman jury (except in cases of malfeasance when it was comprised of the entire
senate) was never used as a legal procedure in Rome itself.
^Pollack and Maitland, 142. Also, Charles Homer Haskins, The Normans in
European History (New York: W. W. Norton and Co., 1966) 110.
^There are a variety of sources to support this conclusion. See Pollack and
Maitland, vol. 1, 138-149; Jenks, 125-128; Haskins, Normans, 110-114.
^ Jenks, 27.
^Haskins, 110.
Q
For more on the philosophy of the middle ages, see Leff, Medieval Thought
(London: Hazel Watson and Viney Ltd., 1968).
9ibid. 297.
^Constitutions of Clarendon, paragraph 6. From Sources of English
Constitutional History, vol. 1, Carl Stephenson, trans. and ed. (New York: Harper
and Row, 1972) 73.
^ibid. paragraph 9. Sources, 75.
1 2
This is worth closer examination for someone with access to the Pipe Rolls
dealing with free-alms cases during this period. If it turns out that juries
empowered under the Clarendon Constitutions were finding in favor of Church and
individual equally, it would indicate that Henry was not attempting to coerce or
bribe jurors to find against churchmen, and would show that he really did believe in
the individuals ability to deem rationally and fairly.
13 Jenks, 22-23.
^Assize of Clarendon, paragraph 1. Sources, 76.
^Pollack and Maitland, 137.
31


l^The information here owes a great debt to Roger D. Groot's The Early
Thirteenth Century Criminal Jury, from Twelve Good Men and True, Cockbum
and Green, eds. (Princeton: University Press, 1988).
17ibid. 8.
^Haskins, 111. Also Hollister, 246.
^For a fuller (and excellent) description of the attitude toward the Roman system,
see Jenks, 20.
70
Green, Thomas Andrew, Verdict According to Conscience (Chicago: University
of Chicago Press, 1985) 14.
71
Magna Carta, section 39. Sources, 121.
22Groot, 27.
23ibid. 25-26.
74
See Gies, Frances and Joseph, Life in a Medieval Village (New York: Harper
Perrenial, 1991) chapter 9.
2^Groot, p27.
32


CHAPTER THREE
TOWARD AN INDEPENDENT BODY
As we have seen, the decision to establish the trial jury as a part of the
common law was based on a combination of politics and pragmatism. But the
question of why the jury would continue to find favor in the eyes of the crown
through the high middle ages and into the modem period is an interesting one, to
which there is no single concrete answer. As the years passed, the jury no doubt
assumed the status of a perennial feature of criminal procedure, with roots
stretching into the mists of time. Indeed, Matthew Hale, whose History of the
Common Law of England in 1713 was the first attempt at a comprehensive history
of the common law, believed that the jury system had preceded by centuries the
Norman conquest, having been created by Alfred the Great during the 9th
century. A more canny William Blackstone, writing 60 years later, would admit
that the assignation of the jury to Alfred was more a reflection of esteem for Alfred
than historical fact:
Just as we are apt to impute the invention of (the Jury) to the
superior genius of Alfred the Great; to whom, on account of
his having done much, it is usual to attribute every thing: (so)
the tradition of antient Greece placed to the account of their
one Hercules whatever atchievement was performed superior
to the ordinary prowess of mankind."
Yet Blackstone, too, threw up his hands when trying to pin down the actual
circumstances of the jury's birth. In a world where a tiny fraction of the population
33


is literate, and where historical records were at all times spotty and somewhat
biased, three or four generations at most would have been required to virtually
obliterate the memory of a time when the jury did not exist. As an illustration of
this, it is worth recalling that in Henry's Clarendon documents, he supports the
creation of the jury by claiming that juries had been part of "the recognized
customs and rights of the kingdom,"-^ even though modem scholarship can
demonstrate that this, if not entirely inaccurate, is a substantial stretching of
historical fact.
Yet tradition by itself cannot explain the endurance of the jury during the
critical period when the tradition had yet to establish itself, nor can it explain why
the jury endured when other elements of official policy were later discarded by the
vigorous monarches of the Tudor period. During the transitional years between the
fourth Lateran council (1215) and around 1230 or so, the criminal trial jury
evolved as a stopgap measure in the period of turmoil when King John's reign was
ending and the rule of his child successor Henry was in regency. Henry III was not
a strong king, and when not engaged in hopelessly complex foreign intrigues, he
was constantly embroiled in struggles with his barons. Even had he shown interest
in legal reform, which he did not, he most likely could not have mustered the
cooperation to implement the serious procedural reforms necessary to eliminate
the jury
His son Edward I, however, was not only an able and ruthless ruler, he was
intensely interested in the law and carried out serious structural changes within its
administration. His statute of Quo Warranto, for example, which obliged local
barons to prove by the production of specific royal charter their right to try
34


defendants who were their tenants, was aimed at eliminating the private
jurisdiction of legal matters which his vassals claimed. In this matter and others he
broke with the long-standing tradition which constrained the English monarch
from creating new law. In short, Edward was a centralizer. The elimination of the
criminal jury, which during his reign was only around sixty years old, and which
was the epitome of local legal discretion, might very well have appealed to his
nature. Clearly the jury had to be fulfilling some role which he found appealing.
The most facile explanation would be that the jury was acting in concert
with the crown's wishes; that it was returning a high percentage of guilty verdicts,
or at least that there was a general satisfaction with the level of societal order. A
variety of sources, however, indicate that this was not the case. The Statute of
Winchester (1285), which was signed by Edward himself, complains that "from
day to day, robberies, murders, burnings and thefts be more often used than they
have heretofore." The statute even goes on to state that, "Felonies escape
presentment by the oaths of jurors who would see felonies committed on strangers
pass unpunished rather than accuse the offenders, many of whom are persons of
the same community."^ Not only is it clear that Edward is aware of the increasing
crime rate, but he places part of the blame for it on the part of juries. Speaking to
the increasing rate of felony ten years earlier, the Statute of Westminster (1275)
had made the same lament, "the peace is less kept, and the laws less used, and
offenders less punished than they ought to be."^ Modem estimates put the number
of homicides in London during the early 14th century in the neighborhood of 12
per hundred thousand, roughly thirty times the rate in Britain today, and the
number of murders in the countryside was substantially greater than in London.
35


The problem was severe enough that an entire category of inquests was created to
investigate the problems in localities experiencing dramatic upsurges in criminal
activity. These commissions, coined as "trailbastons" in the vernacular, were given
the task of rooting out and punishing "malefactors and peacebreakers who are
moving about the woods and parks committing murders, depredations, burnings
n
and other misdeeds to the peril of travelers and dwellers." It seems fairly certain
l
that the crown was concerned with the disorderly behavior of its subjects.
As to the question of whether juries were returning large numbers of guilty
verdicts during this apparent crime wave, there is substantial evidence that they
were not. On the contrary, it can be demonstrated that in cases of felony, defined
here as homicide, theft, arson, and accomplice to these crimes, during the 13th and
14th centuries, juries chose to acquit defendants in the overwhelming majority of
cases, despite the fact that contemporary observers complained about the
increasing rates of lawlessness, and, at times, attributed this problem to the
leniency of juries. In his excellent analysis of the trailbaston inquests conducted in
Lincolnshire county in 1328-1332, Bernard William McLane, professor of history
at the University of Rochester (New York), leaves little doubt that criminal juries,
even under these extraordinary circumstances, were far more inclined to acquit
defendants than to convict them. Of the 193 felony defendants tried at the 1328
session, only 34 were convicted, meaning that fully 81% were acquitted and set
free.8
Furthermore, the jurors who sat for these cases were not necessarily drawn
from the lower social classes who might have had blood relations with the accused.
Instead, there were substantial numbers of gentry who performed jury duty, and
36


they cast their votes to acquit alongside of their less well-heeled compatriots.
Admittedly, the percentage of gentry trial jurors was lower than the percentage of
those who sat on presenting juries, but given the fact it took only one juror to hang
the proceedings, and that roughly 25% of the trial jurors had backgrounds in either
the gentry or in royal service in some capacity, it seems impossible to believe that
leniency was a purely lower-class phenomenon.^
McLane puts forth several possible explanations for the behavior of the
trailbaston juries. He notes that many of the jurors often could not have had much
previous knowledge of the particulars of the cases, because they were drawn from
communities removed from the scenes of the crimes. Since the only punishment for
felony was hanging, jurors may have been willing to give defendants the benefit of
the doubt, except in cases where evidence was overwhelming. Although McLane
does not mention it, this hypothesis squares well with the sheer volume of cases
heard by juries in a very short period of time; this constraint may have precluded
the ability of jurors to determine beyond reasonable doubt the truth of the
allegations. Another possible explanation lies in the chance that many of the jurors
had ulterior motives. There have been several studies which suggest that the same
individuals who were committing violent felonies were also working at times as
"enforcers" for the local gentry, and there is one study which shows that several
members of a notorious 14th century outlaw gang went on to find employment
working for the crown. Under these circumstances the gentry might have been
loath to convict, and the townspeople who rounded out the juries might have been
concerned for their own safety if they tried to find well-connected defendants
guilty. This is a troubling explanation, but one that is certainly understandable: the
37


trailbaston was by nature temporary and would soon be dissolved, but gang
members who were not caught would still be in the neighborhood months and
years later. ^
At the conclusion of the trailbaston sessions the situation with regard to a
high crime rate and jury leniency seems to have been largely unchanged. In the
later 14th century we still find complaints about the level of criminal activity, and
we also see evidence that the leniency of juries was perceived as a contributing
factor. From his late 14th century pulpit in Rochester, bishop Thomas Brinton
summed up the attitude, saying:
If a voluntary murderer or most notorious thief who
according to every law ought to pay the just penalty of his
wickedness, is captured in order that justice may be done
upon his person, as though in compassion, they strive to
keep him from danger, some saying, 'He is young: if a youth
has gone wrong, the old man will,be able to amend.' Others
declare, 'He is of our blood: if the law proceeds against him,
the whole of our clan will be shamefully disgraced.'* *
Given all of this, then, we are still left with the original question, if the jury
was an ineffective tool of the judicial system, why was its continued use
supported? One explanation might be simple greed on the part of the crown. Since
the only penalty available for felony was the rope, and since the penalty for
trespass (misdemeanor in today's parlance) invariably involved a fine which was
paid to the king's courts, it may have made more fiscal sense to reduce the charge
and collect the fee. Dead men, after all, can no longer pay taxes. There is indeed
evidence that juries were inclined to do precisely this, to reduce the severity of the
38


defendant's crime before convicting, and the percentage of convictions on trespass
were much higher than that on felony. This explanation, however, falls apart for
a number of reasons. First, the penalty for felony generally included the forfeiture
of the convict's assets, which was one reason why defendants were occasionally
willing to die under peine fort et dure rather than submitting to the decision of the
jury. Since the fines associated with trespass were reasonably low, the crown
would have increased its revenue by pushing for felony convictions, in which case
we would see a much higher percentage of defendants hanged. Second, if the
trailbastons were in any way intended as a fund-raising device, then the same
cynical government which had instituted them would have cynically extended their
time in session. Third, as McLane points out, there is little reason to seriously
suspect that the strong wording of such documents as Winchester and Westminster
were "simply rhetorical flourishes advanced by members of the royal bureaucracy
to justify the expansion of its influence and increase its sources of revenue." On
the contrary, if the crown had wanted to do so it could far more easily have simply
eliminated the jury altogether, replacing it with a system which was more favorable
to its own aims.
A more intriguing explanation for why the jury continued to find support in
the eyes of the crown has been recently advanced by Duke University legal
historian Cynthia Herrup. Although her work deals primarily with the disparity
between the numbers of accused felons and actual guilty verdicts and subsequent
hangings in early modem England, many of the contributing factors which she lists
in support of her views existed during the high middle ages, and it is therefore
worth examining her hypothesis in the context of the earlier debate. Herrup's main
39


contention is that the government continued to support the jury not in spite of its
leniency, but because of it. She begins by citing an article written by Douglas Hay
during the 1970's which made the claim that the upper classes in Britain favored
leniency by juries because through it the gentry were able to prove the moral
superiority of their class. The Marxist overtones of this conclusion have been
disputed in recent years, but the fundamental behavior of the gentry which Hay
documented has been generally accepted by legal historians. As Herrup puts it,"
the importance of his questions regardless of the final judgment of his answers -
can no longer be contested." ^
Herrup believes that during the 16th century members of the upper classes
believed themselves to be, above all else, men of God. She shows how
Protestantism deeply penetrated into the heart of English society, producing an
interesting dichotomy in the law and its application. On the one hand, the severity
of the written law reflected the belief that crime was a serious matter because it
was sin. Yet, on the other hand, Protestant theology was based on the concept that
all men were sinners, and that the possibility of redemption was always possible so
long as there was life. Laws, then, were written harshly with the general
understanding that the application of the law would be far more lenient than its
letter. In this way law and application can be viewed in much the same way as the
two separate testaments of the Bible: the Old Testament represents the law while
the New Testament represents redemption.
The whole legal system, Herrup claims, evolved to satisfy this dichotomy.
In order for a defendant to be brought to trial on felony charges, at least twelve of
twenty grand jurors needed to believe not only that the evidence for guilt was
40


manifest, but that the appropriate punishment for the crime was death. Then, a
unanimous decision of the twelve trial jurors was necessary. A panel of judges then
needed to state that they also agreed with the verdict in order to pronounce
sentence. Even at this point, there were still the possibilities of royal pardon, which
was exercised in a significant percentage of cases, or, failing that, convicted felons
might also be able to obtain benefit of clergy, which would save them from the
gallows. In total, as many as thirty or more persons in various societal stations
needed to agree that a defendant deserved death, and at each level of the
proceedings jurors and magistrates had the option of either dismissing the charges
or reducing the crime to the level of misdemeanor, which would carry a sentence
no worse than a hefty fine, corporal punishment and a fairly short stay in gaol.
In her review of trial records, Herrup notes that a significant number of
defendants were released due to mitigating factors, youth being one of the most
common. Popular media today seem to relish portraying the English justice system
in history as being exceedingly bloodthirsty, hanging children for simple theft to
the applause of teeming throngs, but Herrup's research paints a very different and
far more compassionate picture. Had the authorities been interested in seeing
greater numbers of people put to death there were any number of ways to
streamline the process. Further, if the crown wanted to impose severity it could
have either eliminated the ancient role of benefit of clergy, or stopped granting
such a large number of pardons. That it did neither is somewhat demonstrative of a
desire on the part of the government to have leniency shown in as many cases as
possible.
41


The 17th century, of course, wasi not the 14th century, and placing
Herrup's thesis in the context of England during the reign of Edward I is somewhat
problematic. The intervening years saw an astonishing number of changes: the
Black Death and the Peasants' Revolt; the rise of the middle class and the end of
feudalism; the disillusioning Wars of the Roses; and the Protestant Reformation, to
list just a few of the highlights. During the period which Herrup examines, England
was in many respects a proto-modem nation-state. England under Edward I was
part of a larger feudal "empire," with far different aspirations and fears.
Nevertheless, there are elements of Herrup's thesis which fit in the earlier period.
Although the Reformation and its analysis of man's place in the cosmos was still
more than a hundred years in the future, the 14th century in England saw dramatic
moves in its direction. The 1300's saw the first wave of the Black Death strike
Europe, and its result would lead directly to the Statute of Laborers and,
indirectly, to the sermons of John Ball and the Peasant's Revolt. Wycliff would test
the theological boundaries of trans-substantiation and would complain of the
increasingly distant, temporally powerful and rapacious church. Both Jan Hus and
Martin Luther would claim to be his ideological descendants. Popular writers like
Chaucer and Langland, both members of the literate establishment, would echo
Wycliffs themes in subtle yet pointed verse. England in the 14th century seemed
determined to question the fundamental necessity of church hierarchy; this was not
quite the Reformation, but the assumed brotherhood of man upon which much of
Herrup's argument rests was demonstrably evolving at this time.
The structural aspects of the jury system of the 14th century was also
roughly comparable to that of the 16th century. Although the evidentiary rules
42


which limited the access of information to trial jurors had not yet come into being,
McLane's research into the distances jurors travelled to take part in trials indicates
that jurors had already ceased to be self-informing, as their predecessors under
kings John and Henry had been. ^ The presence of jurors who also were familiar
with the defendant may have mitigated this somewhat, as they no doubt told their
i
fellows the particulars of cases with which they were acquainted. Still, since
conviction rested upon unanimous agreement, the impartiality of jurors from
outside of the neighborhood could conceivably have lent itself to giving the benefit
of the doubt where possible. And there were also the layers of interlocked
procedure: presentment, unanimous trial verdict, benefit of clergy, royal pardon.
McLane's study shows that in Lincolnshire each of these were used to find
defendants not guilty, or, if convicted, to save them from the gallows.
On close examination, the system during the 14th century seems to favor
leniency, as it did during the 16th century. Again, if the king had been determined
to streamline the procedure to increase the number of convictions on felony he
could have done so. Given that the jury was a much younger entity during this
period, without the attached prestige of three or four centuries of tradition, it
would have been far easier for the king to eliminate the jury in the early 14th
century than it would have been for one of the Tudor monarches. An extension of
Herrup's thesis, then, is worthy of consideration.
Another possible explanation for the endurance of the trial jury despite its
propensity for leniency is that from an administrative standpoint the crown simply
may not have had the resources to use any other system. To understand why this
would be, we must once again recall the circumstances of the jury's establishment,
43


and we must delve into the history of the court system before Henry II wrested
control of it from the bishops. The infrastructure which supported the ecclesiastical
courts had been developing in Saxon England for more than four centuries before
the Norman conquest. As early as the 7th century local kings had given bookland,
or arable property exempt from standard rents and taxation, to the Church in
return for the local performance of judicial functions. ^ The kingdom of Wessex
endowed churches in each of the hundreds, further integrating the church into
individual localities, and by the 10th century most manors endowed a church,
bringing Church administration down to the level of the village. The pastors of
these small churches reported to the bishop either directly or through the
increasingly comprehensive system of self-supporting monasteries. By the time of
the conquest the church was a ubiquitous feature of the English countryside, and
one of its primary duties was the correction of sinners. For the rank and file
offender of the early middle ages, the Church was often the only court system he
or she would ever know, and determination of guilt and punishment was the
responsibility of the bishop through his agents in the abbeys and local parishes.
By the high middle ages, the parish church had become the center of village
activity; its walls were a storehouse, courtroom, and a meeting hall; its bells
marked the passage of the day; its ceremonies the most important moments in life;
its calendar the relaxation of feast days and festivals.1^ The Church was the most
universal feature of medieval English life, and its infrastructure extended to all
levels of society: pope, cardinal, archbishop, bishop, abbot, monk, wandering friar,
humble parish priest. If the changes wrought by the constitutions of Henry II had
removed some of the Church's jurisdiction, its authority in the areas in which it still
44


exercised control were strengthened by centuries-old custom. Moreover, the
ecclesiastical courts continued to develop an increasingly sophisticated procedural
system. There were three primary methods of fact-finding available to the court:
the declaration of oaths, or, if all else failed, ordeal; a modem evidentiary system
involving witnesses and documents; and a sworn inquest of twelve impartial
observers drawn from both the Church and the laity. One study shows that the
ecclesiastical system of summons, with its threat of excommunication, was at least
as effective of the secular system of outlawry and confiscation. ^ The courts, in
general, acted with dispatch and efficiency, and, it is interesting to note, with a
good deal of mercy. This is not to say that the ecclesiastical courts were free of
difficulties. Indeed, the system was so complex, with so many concurrently active
tribunals, that the possibility of the sort of abuses which Chaucer would describe in
his prologue to The Summoner's Tale was ever-present. If anything, the
ecclesiastical system was overburdened with structure. Furthermore, the appellate
system had no method of limiting the types of evidence given in secondary and
tertiary appeals, meaning that cases were tried over and over again from the start,
which in some cases drew out the proceedings indefinitely. However, it is safe
to say that at the time the Constitutions of Clarendon were written, the
infrastructure of the ecclesiastical court system was extremely well-established.
In contrast to this reasonably functional and centralized system of
dispensing justice, we see two separate and comparatively disorganized legal
structures: the royal and the manorial courts, which, as time went on, found
themselves increasingly in competition with each other. These bodies not only
lagged behind the ecclesiastical system in terms of procedural sophistication, but
45


also in physical pervasiveness. Part of the reason for this lay in the complex
political and economic nature of the feudal system, which tended to act against
centralization at both the royal and manorial level. While the bonds which
connected feudal society through blood, marriage and oath led to an unusual
i
intimacy between families and regions, they also deterred the accumulation of
political (and by extension, legal) powerjbased on geographic locale.
As an example of this complexity, we might look to the relationship
between the Kings of England and the Kings of France. Because the English throne
had been held from the time of the conquest by the Normans, who held the duchy
of Normandy by the sufferance of the French King, the Kings of England were
nominally subservient to the Kings of France until the 14th century. In reality
however, the struggle between the French and the English over the rule of large
sections of modern-day France would dominate the political discourse of both of
these countries for more than three centuries. Both monarches had economic
interests in the region, and both justified their claims through tradition and
intermarriage; war was inevitable. King John's inability to hold his French
territories against the French King, and his need to continually raise funds to
pursue his campaigns on French soil, was a principal contributing factor in the
drafting of Magna Carta. Yet in a way he owed his crown to the King of France,
since in 1199 he needed the approval of Louis to succeed his brother, Richard; he
even paid the French Court a heavy relief for this honor, as any vassal would to
secure the approval of a petition. 1 Later in the 13 th century, when his son Henry
III was confronted with the rebellion of de Montfort (who was both French by
birth and the founder of the English Parliament) and the humiliating Provisions of
46


Oxford, the English monarch relied on the pious king Louis IX, his feudal
overlord, for adjudication of the matter.
By virtue of this same complexity, the relationship between Henry and his
vassals was often difficult to fathom. The barons who had accompanied William in
his adventure across the Channel did so with the understanding that they submitted
to his feudal superiority in exchange for reward in the form of conquered English
estates. This relationship, however, did not necessarily preclude other obligations
which they still held in France. Their descendents often had estates on both sides of
the Channel, and often had competing feudal obligations. When combined with the
extremely complicated economic arrangements which dictated who was allowed to
occupy which pieces of land and under what terms, it is easy to see how alien the
concept of the centralized State was to the Medieval mind.
William had made great strides in extending his own authority over his
vassals, and succeeding Kings, when strong, had furthered their ancestor's work.
Still, the English barons who held estates in England logically assumed that the
ancestral right which they gained through the conquest to adjudicate matters in
areas which they owned was sacrosanct. Given that the disposition of cases often
included fines paid directly to the manor, the Barons jealously guarded their
jurisdiction. The infrastructure necessary to apply justice in the manor courts,
however, was not sophisticated, and usually centered around existing legal
structures, particularly the hallmote and Hundred Court. These ancient structures,
based on village and district, respectively, had for time out of mind dispensed
secular justice within the community. Upon taking over a manor, the Norman lord
would titularly place himself at the court's head. But there were difficulties with
47


this scheme. Since the holdings of individual Barons were often spread over
enormous geographical areas, it was difficult for them to understand the day-to-
day workings of their estates and the villages which they controlled. This was
finessed, to a degree, by the offices of the bailiff, who took care of an individual
manor, and the steward, whose job was to oversee and keep order on the totality
of the lord's demesne. But the steward, the high-ranking official who physically
oversaw the hallmote, had many sundry manors under his care, and the bailiff, who
at least resided in the locale, was not particularly powerful and, as he was
appointed solely by the lord, had no firm connection to the villagers.
The most influential villager, the reeve, who was often a villein (the English
term denoting serfdom), occasionally took part in the manor courts and hallmotes,
but his loyalties were divided. Primarily he was a farmer; his administrative duties
usually ended with securing the lord's harvest, a job which generally worked to the
benefit of the village as well as the lord. The duties of the reeve were time-
consuming, however, and sometimes poorly compensated, which is one reason
why many people chosen for the position preferred to pay a fine rather than take
on the additional workload 22 Since the reeve was at heart a villager, he hadn't the
inherent devotion to the lord which might have led him to take the job out of a
sense of honor. For the same reason, he was not necessarily interested in seeing
justice done for the lord, especially when that justice might be to the detriment of
his neighbors and friends. On the contrary, the court roles contain examples of
reeves colluding with villagers against the local manor, which is not surprising
since the reeve was usually selected by his fellows on the basis of his leadership
abilities as well as his expertise in husbandry.2^
48


Two other elements of the attitude of the villagers are important to gain an
understanding of the difficulties the manor faced in exerting its will with respect to
the villagers. The first is a general distrust toward outsiders. Feudal England was in
truth a very large kingdom comprised of very small communities. The cohesiveness
of these communities stemmed in part from their ancient origins; many if not most
of the villages in England had been in more or less continuous settlement since the
time of the Saxon invasions of the 6th century. They had seen a variety of local
rulers and distant kings; the Normans, who spoke another language and who had
alien mannerisms, were but another in a line of outsiders claiming control over the
lives of the villagers who were tied to the land by tradition as much as by
villeinage. Local control of the manor was transient; the village and its inhabitants
endured. The lord might command obedience, but he could not demand blind
respect, much less affection.
This may partially explain the occasional occurrence of lords losing suits
within their own manor courts, although to the modem mind this seems strange
indeed, rather like the jurors finding against the judge. Yet it did happen. For
example, in a case in Sussex in 1315, the tenants of the Bishop of Chichester
brought suit at the Bishop's hallmote claiming that they were not bound to perform
certain cartage of the Bishop's goods (dung, as it happens), and after three inquests
the court found in favor of the claimants, basing the decision on local custom. A
minor case, to be sure, but not an isolated one.^ Even more striking are the cases
where the communities as a whole acted in concert to bring civil claims against the
manor for control of land or adjustment of rents. Theoretically, the villagers held
the land at the sufferance of lord. In practice, however, they believed that they had
49


certain rights granted to them by tradition, and there are cases where their claims
were upheld. An example here is the case of the tenants of a lord in Wiltshire in
1295, who refused to pay more than the traditional amount when taking over lands
upon the deaths of parents. They did not deny that they needed to pay this fee,
only that the amount had been set by custom, and that it was not within the
purview of the lord to adjust the rate. The Wiltshire court roll does not indicate the
final disposition of the case, but the outcome is not so important as the fact that
the villagers felt that they had the right to bring the suit.
i
The adherence to custom which granted such rights is the other aspect of
the medieval English village which made it difficult for the lord to assert himself
against his villeins. His overriding concern for order and stability compelled him to
allow a certain latitude toward the interpretation of the law. The alternative was
worse than his occasional losses. In totals suffice it to say that the system of manor
courts which had no person with both ties to the village and loyalty to the lord,
coupled with the traditional understanding of justice as based within a semi-
autonomous community, made it difficult for the baron to insinuate himself into the
workings of local justice.
The first section of this study observed how the institution of the jury was
tied to the attempt of the King to diminish the power of the ecclesiastical courts,
but one of the recurring themes of English constitutional documents from the
middle ages is the attempt to wrest jurisdiction from the manor courts as well. By
the end of the thirteenth century, most all cases involving what we would today
consider felony or serious misdemeanor had been subsumed under the bailiwick of
the royal courts, and the King was rapidly moving to subsume the lucrative civil
50


cases as well. Yet while the crown was making the concerted effort to absorb all
jurisdictions into his own, it faced the same difficulties in dispensing local justice
that the barons did. Indeed, given the much larger area which the king controlled,
he was even further removed than the barons were and faced a greater challenge.
The king had at his disposal two institutions to handle the caseload. These were
the central royal courts in most shires and hundreds, and the eyres, true circuit
courts in which the royal representative periodically rode from village to village
lending the King's authority to the verdicts of the jury. His local representative was
the Sheriff, or Shire Reeve, but where the manor's bailiff might be responsible for
several of the lord's villages, the sheriff might be responsible for several hundred.
There is simply no way that he could have had more than a cursory acquaintance
with the individual communities within his jurisdiction. The problem of local
enforcement, once again, falls to the presenting jury, made up of freemen, sworn to
do justice on behalf of the king. The jury may have endured simply because there
was no other body in existence which might have taken on its responsibilities.
Assembling a new infrastructure with clear loyalty to the crown, especially in
matters of enforcement, may have been an administrative impossibility.
One more item needs to be mentioned here, specifically the king's
motivation in law enforcement. Clearly the king was interested in keeping the
peace for moral reasons, and in the 13 th century the keeping of the peace also
began to have an economic motivation, since the earliest seeds of capitalism were
germinating at this time. Industry needs peace in order to prosper, and the king
needed industry to prosper if he was to continue to collect revenue from it.
Edward I's concern with violent felonies is therefore understandable. But the king
51


I
also had the motive of eliminating local corruption, which both cost him directly
and which infuriated his subjects. The best way to achieve this end was to rely on
presenting juries with direct knowledge of the offenders. To return to the example
of the trailbaston, these courts were not only interested in the rising rate of felony,
they were also charged with rooting out graft. A substantial number of the cases
(although by no means a majority) cited |in McLane's study dealt with precisely this
problem. It is interesting to note that 83% of the officials brought before the bar
for various forms of misconduct were found guilty. Edward I most likely felt
i
I
that the locals, as was their tradition, would police themselves for their own
common good. The king didn't have to worry about the occasional (or frequent)
acquittal of felons the villagers had to live with the murderers, after all so long
as the juries were fulfilling the more important symbolic duty of extending royal
control in the shires.
The succeeding century and a half saw little substantial change in the
procedural workings of the presenting and criminal trial juries, although there was
in some ways increasing dissatisfaction with the system. By the 1400's, the
monarchy had problems simply maintaining orderly succession; the Wars of the
Roses, which were the outstanding political feature of this period, would drag on
for the better part of a hundred years. When the dust settled, and Henry VII had
established for the Tudor family a solid grip on the throne, England had emerged
into the early modem period as a more centralized bureaucratic-state. As part of
the reforms of his reign, Henry turned his attention to the jury and found much that
he disapproved of. The procedural changes which he made will be discussed in the
next section of this study, but it is worth noting here that in an effort to influence
52


the outcomes of cases he limited the amount of information which the jury might
consider in its deliberations, and he created the Star-Chamber to deal with, among
other things, recalcitrant jurors who refused to find by the principles laid out in his
procedural reforms. Yet the jury was now more than three centuries old, and had
assumed its place as a timeless feature of the common law. Officials and magnates
sought its protection in much the same way as did the common man. What had
once been an imposition of the crown designed to extend royal authority had
become a device which insulated the individual from the caprice of a strong
government.
Still, Blackstone's assertion that the jury was the central guardian of
English liberties was a long way from reality. The medieval jury had survived its
infancy, and while it had been perhaps influential in maintaining local autonomy,
the truly liberal aspects of the jury would wait until the English Revolution of the
17th century, the true assertion of consent of the governed, and the cases of
Lilbume and Bushel, which will be taken up in the next section of this study.
Footnotes
* Matthew Hale, The History of the Common Law of England, Charles Gray, ed.
(Chicago: Chicago University Press, 1971).
9
Blackstone, William, Commentaries on the Laws of England, vol. 3 (London,
1768) p. 350.
Constitution of Clarendon, Introduction.
53


^This generalization is a fair reading of the historical facts. The most important
documents of Henry EH's reign, arguably, were the Charter of the Forest, which
was issued when he was a child, and the,Provisions of Oxford, which were forced
upon him by de Montfort's rebellion, and which resulted in a diminution of his
powers.
^Statute of Winchester, 1285, introduction.
^Statute of Westminster, 1275, introduction.
^ Calendar of Patent Rolls, 1301-1307, p. 343.
0
Bemard William McLane, "Juror Attitudes toward Local Disorder: The Evidence
of the 1328 Lincolnshire Trailbaston Procedings," published in Twelve Good Men
and True, Cockbum and Green, eds. pp. 36 64.
9ibid. p. 42.
^ibid., pp. 53-64.
^G.R Owst, Literature and Pulpit in Medieval England (Oxford: Oxford
University Press, 1966).
1
There are a variety of sources on this. See especially Green, Verdict According
to Conscience, epilogue and conclusion.
^McLane, p. 38.
^ Cynthia Herrup, "Law and Morality in Seventeenth Century England," Past and
Present, no. 106, p.104.
^ McLane, p. 57.
1 ^Robert E. Rodes, Jr., Ecclesiastical Administration in Medieval England: The
Anglo-Saxons to the Reformation (Notre Dame: The University of Notre Dame
Press, 1977), pp. 16-20.
54


1 n
George Caspar Homans, English Villagers of the 13th Century (New York:
Russell and Russell, 1960), p. 384.
18Rodes, p. 143-146.
^B. Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canturbury
(Oxford: Oxford University Press, 1952).
2^Rodes, p. 142.
2 ^ King, Edmund, England 1175-1425 (New York: Scribners, 1979) p. 125
22Homans, pp. 298-301.
23 ibid.
^Homans, p. 320. See also Francis and Joseph Gies, Life in a Medieval Village
(New York: Harper Perennial, 1991), pp 183-185.
2^ Homans, p. 321.
2^ As an example of the increasingly capitalist nature of the 13 th century in
England, the automation of textile manufacturing through the use of the fulling
mill began during this period. Fulling mills required a substantial investment in
start-up outlay, and the revenues generated formed the basis of the 13 th and 14th
century economy in many areas in southern England.
22McLane, chart p. 55.
55


CHAPTER FOUR
THE JURY IN THE MODERN PERIOD:
j
NON-COERCION AND SANCTION NULLIFICATION
i
I
The early modem period in English history, falling roughly between the
years of 1500 and 1800, would see the jury at both the nadir and zenith of its
influence. As the period opened, the jury as an institution found itself under
increasing criticism from observers who felt jurors to be inefficient, simple-minded,
and overly prone to leniency. Yet, by the middle of the 17th century the court
would support a finding of not guilty in a celebrated case of treason, in which the
defendant, John Lilbume had clearly violated the letter of the law. Within a decade
after this decision, another high court would remove the coercive potential of
judges to direct the verdicts of juries through force, establishing the independence
of juries which has, with some modification, survived to this day. Both of these
decisions were caught up in the circumstances surrounding the Puritan Revolution.
To understand the prevailing political climate of the period and its effect on the
application of the law through the jury, it will perhaps be instructive to examine the
writings of some of the principle legal scholars of the time. Before doing so,
however, this study must first touch upon the procedural changes which had been
made as the common law emerged from the late middle ages.
As was mentioned in the preceding section, what had been the jury's main
appeal under a succession of embattled monarchs now became its greatest
drawback; it represented an independent force within an emerging, centralized
56


bureaucratic state. The ennui with which earlier kings had accepted deficiencies in
the jury system had been replaced by the! intense desire of the early modem
|
monarch to regulate all official duties within his realm. The attack was never
i
completely overt; during the sixteenth century the king was loath to dissolve a
legal entity which had existed now for more than three centuries. But we can begin
to see a growing impatience with the workings of the jury as early as the reign of
Henry VII.
Henry's major move against the jury was the creation of a court which
could operate outside of the common law, yet would have the authority to deal
with abuses within the common law system. The court was called the "Star
Chamber," the name deriving from the stars painted on the ceiling of the
courtroom. Star Chamber would become synonymous with unchecked royal
prerogative. As we can see by the act which created the Star Chamber, jurors were
one of the prime targets of its authority, and its legitimacy was in part derived by
assumed misuses of the jury in history:
...The king, our sovereign lord, remembereth how, by unlawful
maintenances, giving of liveries, $igns and tokens, and retainders by
indenture,... untrue demeanings of sherriffs in making of panels and other
untrue returns, by taking of money by juries, by great riots and unlawful
assemblies, the policy and good iule of this realm is almost subdued. *
(italics mine)
Henry continues to mine the same vein throughout the text of the statute, claiming
that the record of abuses has led to a growing number of breaches of the peace:
57


bureaucratic state. The ennui with which earlier kings had accepted deficiencies in
the jury system had been replaced by the intense desire of the early modem
i
monarch to regulate all official duties within his realm. The attack was never
completely overt; during the sixteenth century the king was loath to dissolve a
legal entity which had existed now for more than three centuries. But we can begin
to see a growing impatience with the workings of the jury as early as the reign of
Henry VII.
Henry's major move against the jury was the creation of a court which
could operate outside of the common law, yet would have the authority to deal
with abuses within the common law system. The court was called the "Star
Chamber," the name deriving from the stars painted on the ceiling of the
courtroom. Star Chamber would become synonymous with unchecked royal
prerogative. As we can see by the act which created the Star Chamber, jurors were
one of the prime targets of its authority, and its legitimacy was in part derived by
assumed misuses of the jury in history .
...The king, our sovereign lord, remembereth how, by unlawful
maintenances, giving of liveries, signs and tokens, and retainders by
indenture,... untrue demeanings of sherriffs in making of panels and other
untrue returns, by taking of money by juries, by great riots and unlawful
assemblies, the policy and good rule of this realm is almost subdued. *
(italics mine)
Henry continues to mine the same vein throughout the text of the statute, claiming
that the record of abuses has led to a growing number of breaches of the peace:
57


...whereby the laws of the land in execution may take little effect, to
the increase of murders, robberies, perjuries, and unsureties of all men
living, and losses of their lands and goods, to the great displeasure of
Almighty God.^
It is clear that Henry bases his decision to create the Star Chamber on the history
of abuses which he claims have existed in earlier periods and have been recently
accelerating. Yet how accurate was this portrayal of the state of affairs during the
fifteenth century? It was not completely out of line, but it certainly overstated the
problem of increasing lawlessness. If we were to accept at face value the claim of
every age that crime is on the rise, the percentage of the population engaged in
felony today would most certainly exceed one hundred percent. Most studies of
the subject of felony in England indicate that rate of violent crime in that land
reached its high point at some point in the high middle ages. If anything, felony
was declining, not increasing, when Henry created the Star Chamber.
Henry also made other attempts at the limitation of the jury's authority, but
these were largely brushed aside. In 1495 he sought to eliminate the power of the
grand jury in capital cases, but the statute was quickly removed by the growing
power of Parliament, and here we glimpse another view of the utility of the jury.
While Henry may have chafed at the power of the independent jury, the judges
who would have had to do the king's bidding in their place were less than
enthusiastic about taking on the responsibility. The judges may have agreed with
the king that abuses within the jury system were troubling, but they had no desire
to take on the magnates within their precincts who brought the pressure against
the juries to bear. John Spelman, a sixteenth century judge and legal historian,
58


summed up the situation: "The judges sought refuge from the evils of mankind and
the agonies of decision by umpiring the ancient game strictly according to the
I
rules, and by refusing to meddle with qujestions of fact."'* Spelman and his
contemporaries clearly understood the shield that the juries represented to their
own peace, and were loath to have that shield removed for the benefit of the king.
By the end of the sixteenth century and the reign of Henry's granddaughter
Elizabeth, we find that a considerable degree of restraint has been placed upon the
jury in terms of procedural rules which expanded the power of the bench, making
the jury a body similar to its present-day descendant. By this time, the jury is no
longer self-informing; that is to say, its members no longer gather information
before the trial, and they tend more to listen during the proceedings than to
speak.^ The judge has gained the power to regulate what information about the
crime is available to the jury, and the instructions for the jury have become more
explicit. There are three primary explanations for this change: first, that juries too
frequently find in favor of manifestly guilty defendants; secondly, that the jurors
are acting in a corrupt fashion; and thirdly, that the jurors available to the court are
simply too rustic, illiterate, and foolish to deem carefully in the matters placed
before them.- As an outgrowth of this perspective, we see an increasing
willingness on the part of judges to prod jurors in the direction it desires, whether
for acquittal, or, more often, guilt. This coercion took several forms; jurors might
be fined or imprisoned for failure to reach the "proper" verdict, or they might, in
cases of treason, be bound over to Star Chamber.
We should expect to see, then, that the jury during the 16th century began
to convict in higher percentages. There is substantial evidence that it did so. At the
59


time, there were two potential methods by which a jury might acquit a defendant.
It could either dismiss the charge completely, rendering an outright acquittal, or, as
i
we saw during the earlier periods, it might render what is known as a "partial"
verdict. By this, the jury would reduce the charge considered and then find guilty
of the lesser charge. In his excellent analysis of Home Circuit records from 1560-
1670, noted University of Maryland legal historian J. S. Cockbum has
demonstrated that acquittals by both methods fell sharply and then rose again.
Determining a causal reason for the change in acquittal rates is difficult, but
Cockbum puts forth two possible explanations. First, there was an increasing rate
of literacy in England during this time, and jurors may have been better acquainted
with their rights as the 16th century drew to a close. Before this, judges may
simply have not informed jurors that it was within their prerogative to lessen the
severity of the charges. Also, Cockbum finds evidence that the number of repeat
jurors, who had more experience in knowing the remedies available, increased as
the propensity for rendering partial verdicts returned to their pre-16th century
levels. Again, this may simply have been a coincidence, but it is certainly a curious
one.^
One other development of the late 16th century should be mentioned here.
It was during this period that the practitioners of the common law began searching
through the quasi-historical documents available to them in an effort to legitimize
their claims before the bar. One reason for the rise of legal antiquarianism stems
from the nature of the common law itself. Since the common law evolved during
the middle ages, and was based primarily on precedent within living memory, most
of its decisions dealt with medieval matters: law between vassal and king, villein
60


and baron. Sixteenth century society, however, was evolving so rapidly that many
of the concepts enshrined within the common law were already obsolete. A
growing and increasingly wealthy middle class, combined with the advent of
widespread private property, forced the lawyers of the period to scour the records
for analogous cases. This practice would have a great impact on the development
of the modem common law system. Afterwards, the increasing use of ahistorical
legal precedent would aid in the rapid expansion in complexity of case law, and
would provide a foundation for more radical claims about the authority of the
7
jury/
The seventeenth century would yield for the modem historian of the
English legal system an enormous bounty. In the turbulent years which would
produce the execution of a king, the establishment of a commonwealth, and the
restoration of a royal family we are given competing perspectives on the common
law and the jury system. Here, for the first time are arguments which ring true for
present-day analyses of political philosophy; questions regarding the divine right of
kings, the supremacy of legislative power, the economic rights of men and the
power balance between government and governed. In the field of legal philosophy,
two arguments were put forward to question the legitimacy of monarchy and of
the common law, and each relied on a very careful reading of history to buttress its
conclusions.
The first of these belongs to the historian and philosopher Sir Edward
Coke, who published his first opinions on the common law in 1600. Coke's version
of history claimed that the common law tradition stretched back before the
Norman conquest of 1066, and that the common law itself was nothing more than
61


the accumulation of wisdom over the agles. The law was the embodiment of human
j
reason given force solely by its continued existence; the law's legitimacy
1 s
strengthened by the simple passage of days. The accumulated wisdom of the law,
therefore, far surpassed the wisdom of any individual, regardless of his position.
"Our days upon the earth are but as a shadow in respect of the old
ancient days and times past, wherein the laws have been by the wisdom of
the most excellent men, in many [successions of ages, by long and continual
experience, fined and refined... And therefore it is... that no man ought to
take it on himself to be wiser than the laws."^
Furthermore, Coke argued, attempts to change the institutions of the law were
generally more to the detriment of the society than to its benefit, because such
changes acted against the gathering force of history.
But there is a paradox here. Coke expands on the ideas of his
contemporaries who claim that the law evolves through the custom and precedent
which are reflected in the opinions of judges. The unwritten law, therefore, is as
important (or more so) as the statutes enacted by king and parliament. But if the
law is not to be changed by the actions of any given man, how are the judges able
to act? The paradox is resolved by the assumed ambiguity of the unwritten law if
a judge's ruling is upheld by other judges in later years, then the ruling was correct.
The reasoning here is somewhat circular, but the overall argument was appealing
to many groups active in the law; not surprisingly, judges found it particularly
agreeable.
62


Coke's notion of legal history as having a force of its own was also an
attractive idea to those parliamentarians! who would behead king Charles later in
the century. Since the king had made the effort to place himself above the law, and
had acted with increasing indifference both to the law as determined by judges and
the statutes enacted by Parliament, he showed himself to be acting outside of
custom. Coke's history argued that since the law preceded even the Normans, the
new Scottish occupants of the throne clearly had no right to dismiss it.
Despite the underlying links between common law and jury, however,
Coke spends little or no time overtly describing the role of the jury or its authority.
As an element of English custom, of course, Coke's philosophy would argue that
attempts to remove the jury as a part of the legal process would run counter to
progress. But Coke is more concerned with the larger framework of the English
justice system. His reading of history, however, would have a profound impact on
another group which was growing in England at the time, and which made the
most radical claims about the role of the jury the Levellers.
As a distinct group, the Levellers originated in Cromwell's New Model
Army in 1647. Their initial aims dealt with issues common to private soldiers;
payment, stationing on foreign soil without their consent, and the circumstances of
their severance from the army. However, in their first major pamphlet, The Case of
the Armie Truly Stated, they also called for the dissolution of Parliament and for
changes to the structure of future Parliaments. They disliked especially the House
of Lords, and argued for its abolition.
The Levellers were the first major movement in English history to seriously
advocate what we today would consider democratic ideals. In The Foundations of
63


Freedom, or an Agreement of the People (1649), they argued that government
derived its authority from the people, that the powers in government should be
separated from each other, and that individuals had inalienable rights beyond the
authority of any governmental interference. Primarily, their aim was to alter the
inequitable structures of society, or, failing that, to remove the statutory obstacles
which prevented the commoner from having a fair chance in the system. One of
their pamphlets, The Bloody Project, gives a concise overview of their aims, and it
is worth a lengthy quotation here to illustrate their goals. It is also of interest to
note how many of these ideas, which earned their author's arrest in 1648, are now
embodied in the American Bill of Rights:
Parliaments should have no power to punish any person for doing
that which is not against a known declared Law, or to take away general
property, or to force men to answer to questions against themselves, or to
order tryals, or proceed by any other ways then by twelve sworn men. Who
would not rejoyce to have such boundaries?
Then, that the proceedings in Law might be rectified, and all Laws
and the duty of Magistrates written and published in English: That the
Excise might have a speedy end, and no taxes but by way of subsidies: That
Trade might be free, and a less burthensome way for the maintenance of
Ministers be established, then that of Tythes; and that work and necessaries
be provided for all kind of poor people. Certainly for the obtaining of these
things a man may justly adventure his life; all these being for a common
good.1^
Although there were several strains of Leveller thought, for the purposes of
this study the most important was led by a man named John Lilbume, who was
bom to a family of modest means in 1615. Lilbume received the basic grammar
school education before being made an apprentice in the cloth industry. His
64


primary influences were, by his own account, religious texts and histories, and his
later political thought would be greatly informed by the application of both of
these subjects. By the time that the Levellers became a distinct and identifiable
. I
group, Lilbume was no stranger to political and religious controversy. In 1637 he
was jailed for printing anti-Anglican tracts, for which he was sentenced to
flogging. The Leveller philosophy which he helped to develop based itself upon an
assumed prehistoric community lacking the rigid hierarchy of the early-modern
nation state. The basis for this belief lay in the Calvinist interpretation of scripture
which holds that the ultimate relationship is the one between God and individual,
and that all others obscure and subvert the divine order. Levellers believed that the
reduction in the power of the monarch within the state was not only desirable, but
necessary:
"Upon a due search into the causes of God's heavy judgements, we
find (a) that injustice and oppression, have been the common national sins,
for which the Lord hath threatned woes, confusions and desolations, unto
any People or Nation; Woe (saith God) to the oppressing City. Zeph. 3.
j 11
Lilbume agreed with Coke's view of the developing nature and
immutability of the common law, but he differed with Coke on two important
issues. First, he claimed that the jury preceded the organized judicial system.
Second, in a radical departure from Coke, he claimed that the Normans had done
everything within their power to subvert the role of the jury. How he might have
squared this belief with the widely-known Magna Carta, which was written by
65


t
barons who were for the most part of Norman descent, and forced upon King
i
John, also of (partially) Norman descent; and which guarantees (under certain
circumstances) the right to trial by one's peers, is never made clear. In actuality, by
the time of the Angevin kings the entire business of who precisely the Normans
were had become a troublesome question. King John was related to the Conqueror
through his grandmother, but his mother Eleanor came from the region of
Aquitaine not English, to be sure, but not Norman either. The very word
"English" is problematic when applied to the middle ages, because it assumes a
larger cultural and political community which was an alien concept to the time.
Lilburne does not trouble himself about the murky distinctions which his
labels implied. Although he never states it implicitly, it is probable that he believed
the Magna Carta had been forced on John by local Englishmen, but even this by
itself is a wild misreading of historical fact. Most likely, Lilburne believed in the
eternal nature of the jury because he wanted to do so, since the jury was the one
facet of the English legal tradition where the people were given a voice.
It should be noted here that the Levellers were not the only people who felt
that the common law had evolved into a method for oppressing the lower classes.
As many scholars, including respected British social historian Christopher Hill,
have noted, admission to the Inns of Court was almost exclusively limited to the
gentry, and there were a variety of contemporary observers who found the
situation troubling. Lawyers themselves were widely disliked: as one proverb put
it, "If you go to law for a nut, the lawyers will crack it, divide the shell between
you, and chop up the kemal for themselves."^ Dick the Butcher's line, "The first
thing we do, let's kill all the lawyers," in Henry VI, Part II, may have summed up
66


the general attitude toward the bar during the period when Shakespeare wrote it.
The jury was a way of combatting the exclusive nature of law which developed as
more and more aspects of commerce were bound to it, and the number of lawyers
rose.
The deep reservoir of spiritual feeling latent in the Leveller view of law led
i
them to make profound judgments about the usage of the jury in overturning those
i
I
aspects of the law which perverted the divine ideal. For example, they strongly
opposed the Tudor-Stuart statutes which made theft a capital offense. The law
books of the Bible, such as Leviticus and Exodus, make clear the necessity for
approximate parity in crime and punishment; hanging teenagers for theft of food,
which happened in seventeenth century England, was clearly wrong. Many of the
tracts published by the Levellers deal with this theme: "That it shall not be in their
(the government's) power to make or continue any Law, for taking away any mans
life, except for murther, or other the like hainous offences destructive to humane
Society."^ The Levellers were by no means the only people at the time who
objected to the extreme punishments exacted from defendants whose crimes were
comparatively minor, but they were the only group to claim the jury should be
invoked as a hedge against such draconian measures.
In his mature years, Lilbume had no difficulties in justifying the execution
of the English monarch, whom he viewed as the latest in a long line of tyrannical
Norman oppressors. However, he also disagreed with the Long Parliament which
replaced Charles because its Members were inclined to, in his view, overstep their
mandate by interceding in the prosecution of criminals. This, under Lilbume's
philosophy, made the Parliament no better than the king who they replaced. His
67


I
tracts on this subject in the late 1640's would lead to his imprisonment for treason,
and would lead to his most radical declaration as to the authority of the jury
system. '
I
In mounting his defense against the charges, Lilburne first exhausted the
i
i
appeals to the bench which were derived from the fundamental tenets of Leveller
thought: that the court, as a representative of an oppressive regime, had no right to
try him; that the language in which the indictment against him was written (legal
French) was unintelligible to the layman; and that his lack of familiarity with the
proceedings demanded that he be represented by council paid for by the State. His
requests were met by a bench clearly influenced by Coke's version of history. In
denying Lilbume's appeals, Judge Lermin stated:
"But you must know that the law of England is the law of God... It is the
law that has been maintained by our ancestors, by the tried rules of reason,
and the prime laws of nature; for it does not depend on statutes, or written
and declared words or lines. If you refuse to hold up your hand (in plea),
you do willfully deprive yourself of the benefit of one of the main
proceedings and customs of the laws of England. ^
Lilbume, once he finally agreed to enter a plea, did raise several salient
points as to the nature of the factual evidence against him, but in a remarkable
speech to the bench, he claimed, "The jury by law are not only judges of fact, but
of law also: and you that call yourselves judges of the law, are no more but
Norman intruders; and in deed and in truth, if the juiy please, are no more but
ciphers, to pronounce their verdict."^ (italics mine).
68


Here Lilbume claims that the judge has no real authority in the matter, and
that the jury has the right to determine matters of law as well as matters of fact.
I
Considering the disrepute in which the jury had been held during the preceding
l
centuries of common law, this was an astounding and revolutionary idea. At this
i
time in the evolution of political philosophy in England, the question of even
judicial review of Parliamentary statutes; was by no means certain. To make the
case that the uneducated people who comprised most juries should be given this
power with no formal training in legal precedent or procedure was radical in the
extreme. The jury acquitted Lilbume of all charges. It is recorded that even the
jailers who escorted him from the courthouse joined in the riotous cheers of the
teeming crowd gathered outside.
The most amazing chapter of this story would not be written for another
twenty years. After the Restoration of the English king, Parliament once again
passed into the hands of Anglicans interested in rooting out the radical strains of
English Protestantism. One troublesome group to which it turned its attention was
the Quakers, who refused to take oaths of allegiance and denied the hierarchical
structure of the Anglican church. The Quakers, although a small minority, were an
annoying one, and one which was gaining converts. Lilbume himself would
become a Quaker before he died. In an effort to stamp out the Quakers, or at least
stem the tide of conversion, Parliament passed the Conventicles Act (1664)
declaring the public preaching of Quaker sermons as unlawful assembly and
incitement to riot. Penalties under this statute consisted of seven years
transportation or a fine of up to the fantastic sum of 100 pounds. The most famous
69


of the Quaker prosecutions under the Act was lodged against William Penn, who
was indicted for holding a public meeting on August 14, 1670.
Penn is an interesting figure in English history. His father was a highly
successful admiral in the navy, who showed extraordinary political acumen by
supporting first Cromwell and then Charles, the man who would be restored to the
English throne. He had very high expectations for his son, who was installed in
I
school at Oxford, in the hope that he would pursue a career in law. Young
William, however, had other ideas. When he returned from Oxford at the age of
18, he declared that he had become a Quaker, a decision which promptly moved
his father to banish him from the family home. Although he eventually reconciled
with his father, he never renounced the Quaker faith, and he used a substantial part
of the family fortune defending other Quakers jailed under the Conventicles Act.
In the trial which followed his own indictment, Penn, echoing the
sentiments of Lilbume, addressed the jurors, "The question is not whether I am
guilty of this indictment, but whether this indictment be legal." Unlike the Lilbume
case, however, Penn freely conceded the facts of the allegations against him, so
when the jury refused to convict, there could be no doubt that they had done so
because they disagreed with the law. Following the custom of the day, the
presiding judge fined four members of the jury for failing to convict in a case
where guilt was manifest, and he threw them into jail until the fines were paid. The
jury foreman, Edward Bushel, refused to pay, and languished for several months in
Newgate prison. He brought a writ of habeas corpus on the grounds that the judge
had no right to imprison him for his actions as a jury member. Bushel ultimately
prevailed in 1770, and the judge who took the writ, Chief Justice Vaughn of the
70


Court of Common Pleas, wrote a famous opinion which declared the coercion of
i
jurors illegal. The ruling stood the test of time, and juries since then have had
within them the assumed right to deny conviction based upon their own
conscience. The concept of the jury as aj law-finding body had become a part of the
common law.
|
I
Footnotes
^Sources, p 299.
2ibid.
^ Reports of John Spellman, 2: 106-107.
^Thayer, J.B. A preliminary Treatise on Evidence at the Common Law (1898),
90-129.
^Cockbum, J. S. "Twelve Silly Men? The Jury Trial at Assizes, 1560-1670,"
Twelve Good Men and True, 158-159.
6ibid., 170-173.
n
Gray, History of the Common Law, Introduction, xx.
^Greene, p 63.
^Coke, Seventh Reports, Calvin's Case From the edition edited by Thomas and
Fraser (London, 1826).
10Hallerp 144.
71


^ibid., p 106.
I
^1. W. Ives, ed. The English Revolution 1600-1660, p. 115.
13HaUer p 325 (XXI).
^State Trials, 4: 1289 90. Reprinted in Green, Verdict According to
Conscience, pi71.
15ibid. p 1379.
72


CHAPTER FIVE:
CONCLUSION
The combination of the Lilbume and Bushel cases represents a substantial
milestone in the advancement of civil liberties. In the first instance, a law duly
!
enacted by Parliament restricting the freedom of the press was in effect overturned
by a group of private citizens. These citizens, moreover, had no formal legal
training or expertise; they simply reacted in a rational manner to a law which they
considered unjust. Before Lilbume, judges might have pushed juries to acquit in
cases where the judge found the law distasteful. But in the English system at the
time (and arguably, to an extent, today) judges served at the pleasure of the
crown; if they had aspirations to higher position they needed to be cognizent of
political forces which had the ability to destroy their careers. The Lilbume jurors,
on the other hand, were under no such pressure. In this, the Levellers were correct
- the jury was the only place where the individual had the ability to influence the
greater wheels of government, unfettered by anything but the voice of his own
conscience. The sole difficulty with this scheme was the potential for coercion by
the bench, which was at times strongly interested in seeing particular verdicts.
Bushels Case eliminated this possibility, guaranteeing the freedom for juries to
make decisions based purely on reason.
This study began with a quote from Blackstone, and the reader is now
(hopefully) in a position to determine whether Blackstone was right. In a sense, he
was. The jury did guarantee a measure of freedom to the Englishman. But
73


Blackstone was also wrong when he claimed that the jury had "ever been looked
upon as the glory of the English law." The jury has been at various times favored
i
and despised, and its ability to seriously iimpact legislation was a comparatively
i
recent development. Still, the jury's ability to act with independence, coming as late
as it did, was a welcome addition to a country with no written constitution. Extra-
governmental review of statute, in whatever form it might have taken, was a very
substantial development on the long road to freedom.
The final question remaining in any study such as this one is obvious what
impact does this all have on the modem world? In a sense, it means nothing, and
does nothing beyond providing the comfort of simply knowing. But legal history,
particularly regarding a judicial system that relies on precedent, as the common law
continues to do in both the United States and England, is not necessarily esoterica.
The potential for infringement on individual liberties has never been as high as it is
now. The electronic age which continues to make life easier has also brought forth
a dizzying array of possibilities for the infringement of privacy. The Bill of Rights
is a comforting document, but its interpretation always relies on judges who are
part of a much larger structure of government. As the erosion of search and
seizure laws in the 1980's demonstrated, we must never trust completely in the
benevolent attitude of government toward individual freedom. If the jury has done
anything worthwhile in history, it has allowed the individual a direct say in the laws
which govern his or her fellows. Pmdence dictates vigilance, and insofar as the
jury continues to provide such vigilance,1 it should not be lightly curtailed or
abandoned. Through a better understanding of the role the jury has played in the
advancement of liberty, it is hoped that Citizens today will be more inclined to
74


protect the independence of the jury, despite the drawbacks which today bring its
i
utility into question.
I
i
75


ANNOTATED! BIBLIOGRAPHY
i
Artz, Frederick B., The Mind of the Middle Ages (New York: Alfred Knopf,
1958).
This survey gives a fascinating overview of medieval thought, tracing the
patterns of philosophy from late i antiquity to the dawn of the renaissance.
While the main focus is on Western Europe, their are also chapters on
Byzantium and the Islamic world. Artz's prose is very accessible, as is the
arrangement of the book.
Aquinas, Thomas, Treatise on Law (Chicago: Henry Regnery Company (Gateway
Edition), 1970).
Aquinas' treatise on law is a must for anyone seriously interested in the
medieval attitude toward law and its legitimacy in society. This particular
treatise, taken from his Summa Theologica, attempts to demonstrate that
laws are reflections of God's will only insofar as they are just. The
underlying message is that there is a higher law than the laws of man, and
that unjust laws are illegitimate. Aquinas was not the first to make such a
claim, but his spin on the subject is another milestone on the road to
individual liberty. The reading is not simple, but it is rewarding.
Barlow, Frank, The Feudal Kingdom of England: 1042-1216, fourth ed. (London:
Longman Press, 1988).
An outstanding exploration of the changes wrought by the Normans in
their conquest of England. The book covers the period from the reign of
Edward the Confessor to the end of the reign of John, including the
conquest, the anarchy, the Angevin empire and the signing of Magna Carta.
His discussion of the solidification of the common law under Henry II is
exceptionally good. Barlow's story-like style masks a work of excellent
scholarship and presents history in a very readable fashion.
76


Bigelow, Melville Madison, History of Procedure in England (Boston: Little,
Brown & Co., 1880).
A dated but still useful edition covering the evolution of legal procedures at
the common law from 1066-12(^4. Some background into the pre-Norman
English legal structures, but primarily useful as a comprehensive overview
of early Norman law.
I
Bede, The Ecclesiastical History of the fiddle Ages, Judith McLure and Roger
Collins, eds., Bertram Colgrave, trans. (New York, Oxford University Press,
1994). i
Bede's History, while biased, is one of the most comprehensive early
chronicles of England, and provides information for students of any aspect
of English history during the early middle ages. Colgrave's translation is
readable, and the index to this edition is extremely well done.
Bellamy, J.G., The Law of Treason in the Later Middle Ages (Cambridge
(England): Cambridge University Press,11970).
Any student of English legal history needs some grounding in the law of
treason, as it was one of the few' medieval laws covered by statute, and
much of what was then considered treason came to be known as the
modem conception of felony. Bellamy's exhaustive study gives this
grounding, and then some. An excellent resource which includes a fine
chapter on the origin of the English State Trial.
Blackstone, William, Commentaries on the Laws of England, vol. 3 (London,
1768).
Like Maitland in the 19th century, Blackstone's 18th century
Commentaries is one of the finest books ever produced on the history and
usage of the English common law. Even today, more than two centuries
later, the prose still reads well, and the author's insights into the law and
the English people are valuable. A wonderful accomplishment and
cornerstone of the legal historian's library.
Brooke, Christopher, The Twelfth Century Renaissance (London: Harcourt Brace
& World, Inc., 1969).
77


This illustrated volume gives a fair overview of the Haskins' thesis, and
then examines several medieval ^writers, including Abaelard, Heloise, John
of Salisbury, Gratian, and Geoffrey of Monmouth. The reading is
interesting and informative, but somewhat brief
i
Carre, Meyrick H., Realists and Nominalists (London: Oxford University Press,
1961). |
Although at times somewhat dry, this informative volume gives an
excellent analysis of the changing philosophical trends during the middle
ages, by studying the writings of Augustine, Abaelard, Aquinas, and
Ockham. !
-------, The Riverside Chaucer, 3rd ed.; Larry D. Benson, ed. (Boston: Houghton
Mifflin Company, 1987).
No bibliography dealing with medieval England would be complete without
reference to Chaucer's Canterbury Tales. The Summoner's and Pardoner's
Tales are especially important for seeing the Church/State conflict which
informed much of the transfer of power from the ecclesiastical courts to the
laic. This Riverside edition is exceptionally good, with copious notes and
an excellent glossary.
i
Cheney, Christopher R., The English Church and its Laws (London: Variorum
Reprints, 1982).
A specialized sourcebook of Church documents from the 12th to 14th
centuries in England. Many of the entries in this slim volume are somewhat
obscure, and they are not offered in translation, but the commentaries on
the documents are worthwhile reading.
Cockbum, J. S., and Green, T. A., eds., Twelve Good Men and True; The
Criminal Trial Jury in England, 1200-1800 (Princeton: Princeton University
Press, 1988).
This superb anthology, with articles from some of the finest names in the
study of English legal history, coyers many aspects of the evolution of the
criminal trial jury. Although the conclusions reached in the entries are not
always in agreement with each other, the articles are all very well done and


thought-provoking. One of the finest books available on the history of the
jury.
Frank, Joseph, The Levellers: A History of the Writings of Three 17th-Century
Social Democrats" John Lilbume, Richard Overton, William Walwyn (New York:
Russell & Russell, 1955).
A fairly comprehensive examination of the writings of three famous
Levellers, this book is at once an overview and an in-depth analysis.
Gies, Joseph and Frances, Life in a Medieval Village (New York: Harper and
Row, 1991).
The finest of husband-and-wife team Gies' Life series for students
interested in the evolution of medieval English law. The chapter on village
justice is well-informed and highly enjoyable reading. The bibliography to
this book is also quite valuable for providing direction for further study.
Green, Thomas Andrew, Verdict According to Conscience (Chicago: University of
Chicago Press, 1985).
I
Professor Green's study of the English trial jury's development represents
the culmination of a lifetime's work on the subject. The book attempts to
show how the development of the jury guaranteed a degree of local control
over the criminal justice system, land, for the most part, succeeds brilliantly.
An indispensable volume for anyone interested in the history of the jury
system.
Haller, William, and Davies, Godfrey, eds., The Leveller Tracts; 1647-1653
(Gloucester (Mass.): Peter Smith, 1964).
i
This exhaustive compilation of Leveller writings during the mid 17th-
century is an invaluable sourcebook for anyone interested in this early
movement of Social Democrats. iThe introduction is very good, and the
modem reader is often struck by how familiar the aims of the Levellers
sound today.
i
Haskins, Charles Homer, The Normans in the European History (New York:
Norton, 1915).
79


This book is an excellent, although brief, overview of the Normans'
movement through Europe. While not limited to England, the chapters
dealing with the Normans in Normandy and Britain contain some choice
nuggets of information on the foundations of the English common law and
the roots of the jury system.
Haskins, Charles Homer, The Renaissance of the Twelfth Century (New York:
Meridian Books, 1960).
While controversial, Haskins' 1927 masterpiece still makes excellent
reading for the serious student of the medieval world. Haskins' thesis
claims that the twelfth century saw a revival of the arts and sciences, and a
renewed interest in the Greek and Latin classics, which preceded the Italian
renaissance by several centuries. The scholarship is superb, the writing
sharp, and the conclusions intriguing. A fine work.
Herrup, Cynthia B., "Law and Morality in 17th-Century England." Past and
Present, 107, 102-123.
Herrup's superb and thought-provoking article provides evidence that the
leniency shown by jurors during the Stuart period was related to the
pervasive protestant attitude in England.
Hollister, C. Warren, ed. The Twelfth-Century Renaissance (New York: John
Wiley and Sons, 1969).
The late Dr. Hollister designed this collection of essays as an adjunct to
University history classes, and its entries provide fine information on
Charles Homer Haskins' original thesis of change during the 12th century,
and also includes papers on the Humanities and Philosophy in Europe
during the period in study.
Homans, George Caspar, English Villagers of the 13th Century (New York:
Russell & Russell, 1960).
Originally published in 1941, Dr. Homans' lengthy volume is still excellent
reading for anyone interested in medieval English life at the village level.
The style is extremely engaging, and the topics presented are fascinating.
80


Humard, Naomi, The King's Pardon for Homicide Before A.D. 1307 (London:
Oxford University Press, 1969).
Dr. Humard's outstanding work explores, as the title would suggest, how
the King's Pardon developed in Medieval England, demonstrating that
leniency in capital cases was for many reasons advantageous to both the
crown and the populace. The bdok is fairly exhaustive, and is probably the
finest available on the subject. Excellent insights into the nature of English
society as reflected through the
aw during this period.
Ives, E.W., ed., The English Revolution; 1600-1660 (New York: Barnes and
Noble, Inc., 1969).
Although this collection of essays covers a variety of topics relating to the
Puritan Revolution, and each is well done, it is especially interesting to
legal historians for its papers on (Social Change and the Law, by Ives, and
the Levellers, by Brian Manning! Ives also writes an excellent overview of
the issues in the war.
Jenks, Edward, Law and Politics in the Middle Ages (New York: Burt Franklin
Press, 1970).
A fine history of the law in England during the high middle ages, first
published in 1897. If not as staggering an accomplishment as Pollack and
Maitland's History of English Law, Jenks' book is in some ways more
accessible to the reader because its organization is more logical and its
index easier to use. A bit dated, but still well-worth a look.
Keefe, Thomas K., Feudal Assessments \and the Political Community under Henry
II and His Sons (Berkeley: University of California Press, 1983).
While not directly relevant to the study of English law per se, this fine
volume, and the statistical evidence which it provides, helps to complete
the picture of English nobility during the crucial years when control of local
courts was wrested by Henry II from the aristocracy.
Knowles, David, The Evolution of Medieval Thought (Baltimore: Helicon Press,
1962).
81


A surprisingly readable history of the philosophy of the middle ages. In his
preface to the book, Knowles admits that he is only touching on the major
currents of philosophy during the period under examination, but for all of
that it still packs a surprising amount of material into what is, for the genre,
a surprisingly accessible form.
Langland, William, The Vision of Piers Plowman (London: Guernsey Press, 1987).
Langland's brilliant alliterative poem is essential reading for anyone
interested in virtually any aspect of English Society, including law, during
the high middle ages. This Everyman edition provides a complete and
unedited copy of the so-called "B" text, cast into modem lettering but in
the original language. It also contains an excellent commentary on the
poem and a fine glossary for those interested in translating the original
manuscript into modem English:
Leff, Gordon, Medieval Thought; Saint Augustine to Ockham (Baltimore: Penguin
Books, 1958).
Like many works on the history of philosophy, this is a book which seems
longer than it actually is. Leff examines the changing patterns of medieval
thought, focussing primarily on scholasticism and skepticism. Although
difficult reading, the book repays perseverance with a solid grounding in
the philosophical arguments which formed the backdrop for many
intellectual developments of the medieval world, including the evolution of
law.
Pollack, Frederick, and Maitland, F.W., The History of English Law (Cambridge
(England): Cambridge University Press, 1968).
First published more than a century ago, this comprehensive study, like
Blackstone's Commentaries on the Laws of England, has a serious claim to
be the finest book on the common law ever written. The prose is beautiful,
and in its 1200 pages virtually eyery aspect of English law is examined. A
must for any serious student of legal history.
Rodes, Robert E. JrEcclesiastical Administration in Medieval England: The
Anglo-Saxons to the Reformation (Notre Dame: Notre Dame University Press,
1977).


A fine overview of the organizational structures of the Roman Catholic
Church in England, covering the Anglo-Saxon period to the 15th Century.
Topics include the philosophy and application of Canon Law, Diocesan and
Parish administration, and the evolving Papacy. The book also gives good
background into how the church structures evolved in England, and offers
insights into how the ecclesiastical courts functioned.
i
Samaha, Joel B ., "Hanging for Felony: The Rule of Law in Elizabethan
Colchester." The Historical Journal, 2lj, 4 (1978), 763-782.
Dr. Samaha's article examines a 2-year period in Colchester, England,
during the 16th century, and tries to show why the number of hangings for
felony was so low. He argues that the legal system itself, with so many
interlocking layers of procedure ^necessarily in agreement required to carry
out capital punishment, kept thei number of hangings low, and that this
state of affairs was desirable to the crown. A very interesting article.
Stenton, Doris Mary, English Society in the Early Middle Ages (Middlesex:
Penguin Books, 1951).
Lady Stenton's book on English social structure is well researched and well
thought-out. Of interest to legal historians is the section dealing with the
aristocracy, in which the author argues that the jury system grew out of the
system of knights in the hundred courts. The rest of the work is also
interesting, and provides the reader an enjoyable introduction into medieval
civilization in Britain.
Stenton, Frank, The First Century of English Feudalism: 1066-1166 (Oxford: The
Clarendon Press, 1961).
This outstanding volume was originally prepared from the Ford lecture
series at Oxford in 1929. The updated version cited makes use of new
evidence. On the whole, it examines specifically the changing relationships
between the king and his vassals and among the barons in the first century
of the Norman conquest. For legal history, of special interest is the chapter
dealing with the thegns and knights, as it examines the change in local
judicial administration.
83


I
Stephenson, Carl, and Marcham, Frederick, eds. and trans. Sources of English
Constitutional History: A Selection of Documents from AD 660 to the Present
(New York: Harper and Row, 1937). 1
An outstanding sourcebook for English Constitutional documents in
translation. Although many of the documents are edited for length, the
relevant portions always seem to be included, and the sheer number of
documents makes this work invaluable.
84


Full Text

PAGE 1

THE ENGLISH JURY AND ENGLISH LIBERTY by Christopher Hill B.A., University of Colorado, 1990 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts History 1999

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(c) 1999 by Christopher Hill All rights reserved

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This thesis for the Master of Arts degree by Christopher Hill has been approved by Frederick Allen /-\ \ I ; ) James WOlf lfjzqb1 Date

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Hill, Christopher (M.A., History) The English Jury and English Liberty Thesis directed by Professor Frederick Allen ABS1RACT This study will attempt to make three arguments. First, that the initial creation of the jury was a move by an authoritarian monarch locked in a power struggle with the church. The King was able to create in the law this fact-finding body of commoners because of the philosophical climate of a 12th-century revival of rationalism. Second, that the jury quietly grew in stature during a period of weakness in the English monarchy until a more powerfulmonarchy under the Tudors tried to place limits on the jury system through the use of procedural hurdles and outright coercion. And third, that in one of the most ironic twists in the history of the common law, this body founded by a strong king made substantive inroads into the nature of authoritarian prerogative by establishing the concepts of judicial review of legislation and by making the fust serious guarantees of civil liberties for the common individual. This abstract accurately represents the content of the candidate's thesis. I recommend it for publication. Fredenck Allen IV

PAGE 5

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

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CONTENTS CHAPTER 1. INTRODUCTION .................................................................... 1 2. TWEL VB LAWFUL :MEN .................................................... 0 3. TOWARD AN INDEPENDENT BODY ............................... 33 4. THE JURY IN THE MODERN PERIOD: NON-COERCION AND SANCTION NULLIFICATION .................................... 56 5. CONCLUSION ...................................................................... 73 ANNOTATED BffiLIOGRAPHY ......................................................... 76 VI

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CHAPTER ONE INTRODUCTION In 17 68, at the height of the European Enlightenment, the English jurist Blackstone declared that his country's peculiar system of jury trial "ever has been, and I trust ever will be, looked upon as the glory of the English law." He went on to assert enthusiastically that the jury guaranteed that the Englishman "(could) not be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors." Blackstone's admiration for the jury system is perhaps understandable given both his homeland's continuing obsession with liberty and the prevailing mood ofthe eighteenth century. Although the reality of "liberty" in the sense that the philosophes used it is widely debated today by post modernists and other modem-day romantics, Blackstone's time was one in which the ideas of human rationality and freedom were still exciting ones. Blackstone believed that the common law was the framework ofEnglish freedom, and he, rightly or wrongly, considered the jury trial one of the cornerstones upon which the common law was built. It is an ironic counterpoint to Blackstone's exuberance to note that the jury today is nowhere near as widely used as it was during Blackstone's time, and in England its use is in many cases statutorily prohibited. In the United States, where trial by jury has been constitutionally protected since the country's inception, an increasing number of defendants prefer trial by judge to the more traditional appeal to "twelve good men." This can partly be explained by the expense of the jury trial, 1

PAGE 8

and the fact that when found guilty a defendant is often forced to shoulder the jury's expense as a part of his or her sentence. But trial by jury is also increasingly out of favor among American and English jurists and legal scholars, because the outcomes of such trials, especially in civil matters, are extremely difficult to predict from the merits of any individual case. Furthermore, there are many cases where for political reasons juries actually refuse to convict in cases where guilt is overwhelmingly apparent. The case ofO. J. Simpson springs to mind, and Simpson's acquittal touched off a wave of scholarship in legal journals debating the logic and utility of sanction nullification in the modem world. Law, many jurists claim, is simply too complicated and too vital to be left in the hands of the masses, who are unfamiliar with legal precedent, and who are (in the view of such jurists) too easily swayed by the pathos engendered by a given defendant. The somewhat scornful attitude toward the independence of the jury contained in the polemics against it, however, depend often upon a sort of arrogance for the modem period that is not necessarily well-placed. A more circumspect view of history shows that within Blackstone's hyperbole lies an element of truth. It was precisely the ability of jurors to reject the law with prejudice which secured the values which modern liberals hold so dear. In the seminal decision regarding the independence of the jury, Bushel's Case (1670), jury nullification directly secured religious freedom from a zealous government bent on declaring faiths unsanctioned by the state as not only heretical but as unlawful breaches of the peace. Given the facts of the case, it would be difficult indeed to argue responsibly that political decisions made by juries in modem-day America are in any way more hazardous than they were when Bushel was jailed. 2

PAGE 9

Indeed, when the political dynamics ofEngland and The United States today are compared to the exceedingly bloody conflicts which faced England during the seventeenth century, it becomes almost laughable to assert that the modem world has a lock on political gravity. Blackstone, from his perspective in the Enlightenment, was able to look back at the earlier periods in the evolution of the English trial jury and declare that the jury had made possible much of the freedom he enjoyed. But if Blackstone had asserted in the passage quoted above that the English trial jury had always been a respected part of the English judicial system, he would have been very much in error. In much the same way that the concept of jury trial finds itself under attack from the legal establishment today, the jury of sixteenth century England was also roundly excoriated by the jurists of the time. During the seventeenth century, a changing political climate brought different views of the utility of jury trial. Each of these movements were shaped by conditions outside ofthe legal sphere. But how much further can we extend this argument? The study which follows will be, in effect, an examination of Blackstone's claim, specifically regarding the role of the jury system in promoting and securing the tradition of liberty in England, and through it Western Europe and the rest of the world. How influential was the jury in promoting and securing what we consider liberal? This essay will argue that while it was not the sole detennining factor in the growth of the English liberal tradition, it nonetheless had an important part to play, although not as dramatic a one as Blackstone might have claimed. The development of the jury was in reality a very slow process, and the jury's full potential as the guarantor ofliberty was not realized until the early modem period and the English Civil War. 3

PAGE 10

Prior to this time, the jury was more important as a defender of local authority, not so much protecting the rights of the individual against a malicious crown as protecting the rights of villagers to take care of problems in their own back yards. To make this case, the study will focus on three aspects oflegal history. The first section will describe the foundations of the jury system in England after the Norman conquest. It will briefly examine the earliest threads of jury tradition on the continent, and then move on to the critical period between the reigns of Henry II and Henry III, when the jury was codified and eventually used as an arbiter of guilt and innocence. The second part will examine the period when the use of the jury became assumed and widespread. This section will examine the question of whether the independence of the jury and its verdict was indeed moving in one general direction, or whether the jury was simply an extension of royal power with jury verdicts forcefully directed by the crown and its agents. The third section will deal with the period of the English interregnum, when the principle of sanction nullification left the world of the theoretical and was finally upheld by Chief Justice Vaughn in Bushel's case of 1660. While this essay will not be so bold as to state that the jury was the prime motivating factor in the establishment of English democracy, it will argue that the use of the jury depended upon an assumption of the rational nature of man, and that by the time that the supremacy of the legislative branch of government was established in the Restoration, this assumption had become virtually unquestioned. If the crown will grant that the commoner is capable of determining guilt in capital cases, the power of life and death which had heretofore been reserved to the crown's agents and churchmen makes a subtle but irrevocable shift. The 4

PAGE 11

assumption of rationality, moreover, was by no means widespread during the middle ages. This study will point out that the concept of logic, in the Aristotelian fashion, was still very novel when the jury was established in England, and that no area had made much use of public opinion in the administration of justice. The notion that the individual might be able to determine truth would wait until the 13th century, when Averoes and Aquinas gave it a philosophical grounding. In the case of the common individual's ability to make such determinations, philosophical grounding would wait until the Enlightenment, and if one seriously examines the work ofMichel Foucault and Jacques Derrida, it might be argued that the question has by no means been laid to rest even today. Yet in 1166, the Assize of Clarendon would establish the concept of the grand jury as a fact-finding body, and these "juries of presentment" were comprised of commoners. It is a delicious irony that these juries, which this study will argue were pivotal in curbing central authority, were put into place by one of the strongest monarchs in the history of the British throne, Henry II. It is also ironic that the model which Henry used for the jury was taken from another strong monarch of the Norman line, William the Conqueror, who had used a form of jury to inform on neighbors who were sheltering money from the massive Domesday tax inquiry. The transition of the jury from fact-finder to determiner of guilt was a comparatively sudden one. This study will examine the period of the change, which was largely spurred by the action ofthe 4th Lateran Council in 1215. In that year, the council made it a matter of Church law that priests could no longer take part in trial by ordeal. Under this system, the accused was made to undergo some sort of 5

PAGE 12

torment without suffering injury. Until 1215, this was one ofthe two common methods of proving guilt; the other was trial by combat where it was assumed that the guilty party would lose. In any event, after the elimination of the ordeal (which could not take place without the participation of the clergy) it became necessary to find a new method of determining guilt. On the Continent, the new method was the increasing use of the Justinian system as practiced by both the ecclesiastical and laic courts. In England, however, the new method was an extension of the presenting jury -namely the trial jury. Why this should have happened will be closely examined in this study. One possible explanation, which fits in well with the prevailing political climate of the period, is that the barons who forced the signing of Magna Carta onto King John doubted their chances for a fair trial under the king whose power they were actively trying to limit. They may have viewed the Justinian system as a direct extension of power through the king's agents. It will also be pointed out that the transition to trial jury was a muddled one; that the first verdicts rendered were in cases where guilt was manifest, and that the very first example of a final verdict given by a jury under the new system (regarding an accusation of rape in 1220) was used because there was literally no other way to determine guilt. Still, the dynamic movement toward the trial jury had been set in place, and its status as an arbiter of guilt had been established. By the mid part of the 13th century, the jury was becoming an accepted and commonplace feature of the English judicial process. This study will next tum to the question of why the jury endured over the succeeding centuries. As will be stressed, the option of abandoning the jury 6

PAGE 13

entirely and moving toward the Justinian system was always open to the crown, and during the 14th century, especially, there were kings interested in judicial reform. A variety of changes took place in the administration of justice, yet the jury was untouched. Why should this have been? A simple answer might be that juries were acting in concert with the wishes of the government, i. e. that juries were routinely convicting those accused of stirring up dissension or breaking the king's peace. Unfortunately, however, the facts do not readily support this conclusion. Drawing on the work of several historians, this study will show that in cases of what we would today consider felony, juries acquitted more than 40% of the time. Considering that the late 13th and early to mid 14th centuries were noted by contemporaries to have suffered a discernible increase in general lawlessness, it is I both apparent and striking that juries were not acting as rubber stamps for the crown. It is clear that during this period juries were acting either independently or in spite of the authorities. Why then did the crown continue to favor the jury? There are several possible explanations. Jury members may have been more frightened of the local lord, who, it will be shown, had reason for seeking some acquittals. Another interesting possibility is that society expected a high percentage of not-guilty verdicts, a conclusion which is bolstered by the comparatively large numbers of royal pardons given to convicted felons. The other possible explanation which the study will explore is that the crown had simply no real alternative. Given the extent of the realm ofEngland, the diffuse organization of feudal society, and the expense 7

PAGE 14

of forming some sort of royal police force to investigate breaches of the peace, the jury may have seemed the most cost -effective method of administering justice. The third section of this study will examine the attempts made at the limitation of the jury's independence during the 16th century, and the final moves which solidified the independence of jury verdicts after the Puritan Revolution in the 17th century. The data for these periods gives the impression that as though the crown during the Tudor reigns began to realize the potential power that the jury system had taken on during the preceding centuries, and made various attempts to force juries into line with its own desires. However, it is also apparent that the attempts to limit were met with difficulty. Coercion took a variety of forms. At its most basic level, judges simply threw recalcitrant jurors into jail, refusing to release them until the proper verdicts were reached. Fines were also levied on jurors by judges, and in extreme cases jurors might be indicted before the star-chamber. However, despite the strength of the monarchs during this period, there were no serious attempts to end the role of the jury entirely. By the early modem period, the tradition of the jury was too great to overcome. Still, the problem of bringing juries into line with the maturing system of common law would cause consternation among English jurists for more than a century, and as late as 1600 the highest court was still sanctioning coercion. The 17th century, obviously, was a period of upheaval in English history, and we begin to find during these years more radical ideas about the nature of government and the governed. One ofthe major movements, the Levellers, believed that the jury system in particular was one of the few bulwarks available in the English system which might combat tyranny. In the celebrated treason case 8

PAGE 15

involving the Leveller leader John Lilbume, the defendant threw himself onto the mercy of the jury, begging the jurors to acquit because they knew in their hearts that by spreading a doctrine he had committed no crime. The decision made by the jurors to agree with Lilbume was one of the turning points in the history of the jury, and this study will examine the case in depth. This study will also examine the case which finally ended the practice of coercion, Bushel's Case, in which jurors who had been jailed for refusing to convict two Quakers on the charge of disturbing the peace. The law in this case was quite clear, and the defendants freely admitted that they had violated the letter and the spirit of the law. Several of the jurors could not bring themselves to convict a preacher for preaching, and they were imprisoned for their decision to acquit. In Bushel's Case, Chief Justice Vaughn opined that the jurors in the Quaker trial had acted in good faith, and that they must be released from prison. Much has been made ofVaughn's decision, and this study will examine the strands of argument both for and against the concept of jury nullification which the decision codified. In the end, it will try to show that non-coercion effectively ended the debate over the independence ofthe trial jury, and will show that in subsequent cases involving treason, the crown's (and Parliament's) power had been effectively blocked. The jury triumphed over attempts to limit individual liberties and extend the power of government, and for this reason played a key role in the establishment of the English liberal tradition. 9

PAGE 16

CHAPTER TWO TWELVE LAWFUL MEN In 1164, as Henry II began to lay the foundations ofwhat would eventually come to be known as the English criminal jury, the concept of the jury itself was not an entirely novel one in the European experience. The Romans, for example, had found it advantageous in certain civil cases (which invariably took place far from Rome) to use groups oflocal rustics to sort out the details oflitigation in cases dealing with property dispute. 1 There was a good deal of logical expedience (and perhaps cynicism) in the Roman utilization of this system. After all, proper Roman citizens who acted as prefects could not be expected to know the vagaries of clan disagreements in the far reaches of the empire, nor could they be expected to understand the unusual strains of "law" to which the barbarians might be accustomed. As much as possible, the canny Romans avoided involvement in these disputes and adopted a hands-off attitude; certain cases, however, dealt with ownership and with levels of valuation which were directly related to taxation, and it became unavoidable for the occupying government to become involved. Instead of wasting time learning particulars, or, for that matter, attempting to teach the rustics the proper methods of legally settling such disagreements, the Roman prefects simply ordered locals familiar with the both the dispute and the litigants to sort out the details and determine ownership. It should be pointed out here, in the context of this study, that Roman use of the jury was not widespread; it was not in criminal cases, it was not respected either by the Romans or by the unfortunate jurors selected to doom their

PAGE 17

neighbors, 2 and it most certainly was not trusted by the Romans to be of use in determining any sort of philosophically esoteric concept as truth. 3 On the contrary, the jury as the Romans used it was more along the lines of an informant body, ferreting out monies which the locals were trying to hide. Were it not for Rome's rapacious desire to increase the tax-base it most likely never would have been utilized at all. Its use in the Roman backwaters, however, may have exposed the concept to the Franks, who, as the Empire collapsed, incorporated the jury into parts of their own legal tradition. 4 The Roman-Frank origins of the jury system is a matter of conjecture; we have no direct records of the transmission of the jury to the Germanic tribes. Still, it is a logical scenario, and whether it happened this way or not, it is almost certain that the English jury did not evolve with the English, and was rather imposed onto the English by their Norman overlords. 5 The Anglo-Saxons simply did not have such a tradition; judgements were rendered through a system of oath-swearing, wherein the rank and number of the witnesses, and the strict adherence to legal format determined guilt or innocence. Whether the Normans came to the jury system spontaneously, or whether it was transmitted to them through the Franks from the Romans is not particularly relevant. What is relevant is that they used it, in the form of the sworn inquest, and thought enough of it to make it an important part of their legal system, where the Romans considered it merely a tool to be used in cases where justice was not a vital concern. When the Normans came to England, they brought with them this tradition of a rudimentary jury system, and William the Conqueror made use of it in much the same way that the Romans did. In conducting the remarkable inquiry which led 11

PAGE 18

to the creation of Domesday Book, William's operatives made a very thorough survey of the lands which they had recently acquired. There was no question of William's motives in making the survey; he was very interested in the rigorous system of taxation which had been developed by the English and Danish monarchs who governed England before his arrival, and he wanted to know the value of the land down to the last kemal of com. As one historian has put it, 'William meant to be a rich king, instead of a poor Duke. 6 This much the English knew, and made every attempt to hide wealth from the assessors. To combat this difficulty, the Conqueror's agents assigned groups of locals to find the hidden valuables and make detailed report of them. 7 These groups were the very early precursers of the English jury system. The early importation of the jury system into England, is however, only one part of a much larger story. In order to understand the importance of the jury in terms of the larger issue of English liberty, it is necessary to have a grasp on the underpinnings of medieval philosophy. It is a fairly common misapprehension that liberalism as we understand it was born wholly in the European Enlightenment of the 18th century. In some ways this is correct, and this study will later take up the question of the early foundations of Enlightenment thought in England in terms of legislative supremacy and religious tolerance. However, the absolute cornerstone of the philosophy of liberalism is the belief that the universe is intrinsically knowable, that it follows rational and understandable patterns of behavior, and that humans are imbued with the ability to understand that which they see around them. These ideas, which gained such currency during the 18th century, were not at all novel to that time. On the contrary, the argument can be traced to Aristotle and the 12

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classical period, and it has been one of the central questions of western philosophy for two thousand years. It has had various incarnations at different times, and while the Platonist ideal as expressed by St. Augustine had held the ascendancy for much of the early middle ages, the twelfth century brought a new resurgence of rationalism, and a renewed interest in expanding the limits of human intellectualism. 8 The first great figure in this movement, and the one that was widely recognized during the time ofHenry IT's rule, was Peter Abelard. Abelard believed that the mind could draw rational conclusions based on the observable patterns of the surrounding world. He was somewhat ahead of his time, in that the views which earned for him condemnation would eventually, under a slightly different guise, earn for Thomas Aquinas sainthood. As lacerated as Abelard was by churchmen, however, his massive intellect attracted a great number of his contemporaries. As other thinkers became interested in the possibilities created by logic, and as Aristotelian texts became available in western and northern Europe by way of the reconquista in Spain, there was a great shift in European philosophy toward a favorable view of human rationality. This was precisely the period when the first substantive steps toward an independent criminal jury in England were taken. It would be difficult indeed to prove that Henry II was a disciple of Abelard, and that this philosophy drove him to create the grand jury. This thesis does not propose to do anything so rash. However, it is certainly within the bounds of reasonable argument to say that the shift in philosophical attitude during the 12th century made the creation of the jury far more palatable. Again, while we 13

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today consider juries to be rather ho-hum affairs, what they are designed to do is, in a philosophical sense quite remarkable, and at the time that the jury was created it was almost revolutionary. By its very nature the use of juries must assume that the people who sit upon them are rational, and are capable of determining truth in a very fundamental way. In earlier periods such determinations were exclusively the province of either the Church or the agents of the crown, which at the time were considered two sides of the same coin of governance which had been placed on earth by God. The notion that the individual might be able to determine truth was still a very novel idea in the 12th century Angevin empire (which included parts ofFrance as well as England), and would not find careful elucidation until Averoes, who caused such a panic in the Church at the time ofhis writing that the works of Aristotle were temporarily banned. 9 In the case of the common individual's ability to make such determinations, philosophical grounding would wait until the Enlightenment, and if one seriously examines the work of contemporary post-structuralists, it is clear that the question has by no means been laid to rest even today. Considering that Derrida is writing during the post Enlightenment period, and furthermore during a cynical age when science's dependence on rationality is shifting traditional views of God, it is even more striking just how earth-shaking Christian rationality must have seemed to the Platonist thinkers whose ideas it gradually replaced. If Henry were not a rationalist, however, it is difficult to explain just how he came to create the jury. Even if the philosophical winds of his time were blowing in this direction, this tenuous atmosphere still cannot by itself explain why he would have given over such a substantial power to local authority. Juries are 14

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expedient, to be sure, but Henry was an enormously powerful king, easily the most powerful ofEnglish monarchs during his century, and his reign ended the period of English history known as the "anarchy," when the need for strength in the monarchy had become so vitally apparent. Henry knew full well the necessity of central authority, and the extensive reforms of the legal system during his reign demonstrate the value he placed on the judicial arm of his government. It seems odd to say the least that he would choose to hand over the vital power of indictment to commoners, yet this is precisely what he did. There still seems to be one piece of the puzzle missing. Perhaps the answer lies in another of the great intellectual controversies of his time: the balance of power between the Church and the Crown. As creatures with the benefit of Enlightenment thinking, we tend to view the basic struggle within government as a polar spectrum with tyranny at one end and popular sovereignty somewhere near the other, but it was not always so. The seeds of the modern conception of liberty may have been planted by the philosophical movement of rationality, but at the time that those seeds were sown, there were no popular uprisings of the masses demanding a say in their governance. Indeed, the twelfth century almost completely lacked one of the forces which eventually drove the movement to limit the crown's authority -a strong capitalist middle class. Henry was simply unconcerned with the prospect of popular revolt. He was, however, quite concerned with the very real threat to his authority represented by the Church. By the time ofHenry's reign, the Investiture controversy had been largely laid to rest. The disastrous conflict which had literally forced Germany's Henry IV 15

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to his knees in a snowdrift outside of Canossa had been settled by the Concordat ofWonns in 1122. The Bishops and Abbots were to be elected within the Church according to canon law. The King, however, was given the power to oversee the process and to resolve all disputes, and strong Kings were not at all shy about exercising this power. Henry II, for example, on one occasion told an assembly of monks: "I order you to hold a free election, but nevertheless I forbid you to elect anyone except Richard, my clerk, the archdeacon ofPoitiers." Henry was a powerful man, and he was very cautious about the prelates with whom his temporal power would be shared. But Henry could not completely control the bishops, as was made very clear during the fight which led to the murder of Thomas a Becket. And while Henry had a say over the election of bishops, he had no control whatsoever within the most obvious challenge to his authority, the ecclesiastical courts. To counteract the influence of the Church, Henry issued in 1164 an ordinance entitled the Constitutions of Clarendon, which sought to wrest jurisdiction of certain types of cases which would be heard by the ecclesiastical courts. While its main thrust would prevent appeal to Rome without royal permission, and would further the growing rift between Henry and Becket, buried within it we find the following curious statement: "And if the guilty persons are such that no one wishes or dares to accuse them, the sheriff, on being asked by the bishop, shall have twelve lawful men from the neighborhood, or the viii, placed on oath before the bishop to set forth the truth in the matter according to their knowledge." 10 16

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With this sentence was born in England the first example of what we may directly trace to the English criminal jury. It was not, in its inception, so much a transfer of power from the king to the commoners as it was a direct assault on the power of the church, using men whom Henry felt that he could trust. Henry probably based this body, the so-called accusing jury, on the tradition of the Norman sworn inquest, and on the juries which had been a part of his great-great-grandfather's Domesday tax inquiry. Its scope, however, was vastly different from its predecessors, in that it was to be used specifically in cases considered criminal, and it was to be used against both commoners and persons of stature. Note that the wording of the sentence specifically states that the jury will be used in cases where no one "dares" accuse the guilty party. Clearly this is not aimed at the average serf or 11Villein. 11 In fact, it was the average lawful villein who would sit on such juries, in many cases dooming his feudal superiors, and there is evidence in the records to show that this was precisely the way such juries were comprised. Another interesting feature is that the sentence cited uses the word "truth," as the commodity that the jury is designed to find. As has been shown above, this can be a highly charged concept, certainly not a word that would be thrown around lightly if the prevailing mood did not accept such an idea. It is also important to realize that indictment in this context was no small matter. After indictment there were only two possible methods of determining guilt or acquittal: combat and ordeal. In the case of combat, where the accused would often fight a representative of the crown, one party almost certainly died, and that party was usually the accused, fighting against a professional soldier. In the case of ordeal, which in England generally involved placing the arm into boiling water for 17

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a specified amount of time, acquittal came only when the ann was apparently unscalded several days later; in other words, proof of innocence depended on a miracle. In either case, accusation was very, very close to determination of guilt. The Constitutions of Clarendon also made use of the jury in another important way, which was more in keeping with its general attack on the Church. Under the provisions of section nine of the document we find this: "If a claim is raised by a clergyman against a layman, or by a layman against a clergyman, with regard to any tenement which the clergyman wishes to treat as free alms, but which the layman wishes to treat as lay fee, let it, by the consideration of the king's chief justice and in the presence of the said justice, be settled through the recognition of twelve lawful men whether the tenement belongs to free alms or to lay fee." 11 The passage here refers to the controversies which arose when the Church claimed that the title of a given piece of land had been transferred to it by the process of "free alms" or donation. If an individual claimed that the land had instead been given or sold to him through the process of''lay fee," the dispute had been previously settled by the ecclesiastical courts, which, not surprisingly, often found in favor of the Church. The Constitutions of Clarendon changed this by placing the determination in the hands of a jury of commoners. The move infuriated churchmen who were being deprived of a substantial source of revenue, but its underlying theme is even more stunning. By placing such power in the hands of the people acquainted with the dispute, Henry assumes that they will make a rational decision, even if it means that the people must act against the most powerful spiritual institution that they know. It must be remembered that this is taking place 18

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when the Church is not a despised the popular attacks on simony and indulgence which were the hallmarks of late 14th century writers like Chaucer and Langland were still more than two centuries in the future. Yet Henry believed that given the opportunity, the common man would make fair decisions which could potentially imperil his mortal soui. 12 That Henry believed that simply finding against the Church had nothing to do with one's salvation is not surprising, but that he would assume such a cosmopolitan outlook in the commoner is startling. The cases covered by the Constitutions were still, however, fairly unusual, and dealt only with disputes involving the ecclesiastical courts. Two years later Henry massively expanded the use of the jury system with an ordinance entitled the Assize of Clarendon, which is generally recognized as the document which established the jury as a durable feature of the English system. As a point of reference, the term "Assize" in this context refers to a document designed to give specific instruction in official administrative procedure, as opposed to "Charter" (Carta) or "Constitution" which were more general documents describing agreements between the Crown and its subjects. 13 The Assize later became associated with the jury which followed the procedure indicated, and eventually came to be used to describe the court itself Although the Assize of Clarendon pertained to the dispositions of a variety of types of offenses, and dealt also with cases of disseisin and land law, it's impact on the new jury system was especially profound. The very first section of the Assize establishes juries in every district in the realm, whose duty is to bring charges against any person suspected of crime: 19

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" ... King Henry, by the council of all his barons, has ordained that, for the preservation of peace and the enforcement of justice, inquiry shall be made in every county and in every hundred through twelve of the more lawful men of the hundred and four of the lawful men of each vill, put on oath to tell the truth, whether in their hundred or in their viii there is any man accused or publicly known as a robber or murderer or thief, or anyone who has been a receiver of robbers or murderers or thieves, since the lord king has been king." 14 As the phrase ''for the preservation of peace and the enforcement of justice" suggests, the Assize was primarily designed as a sort of 'law and order' document. Most of the provisions deal with such matters as delivery to court, flight of fugitives and aiding and abetting. It cannot in any way be viewed as a liberalizing document the tone is quite authoritarian, and establishes strict penalties both for fugitives and those who help them. It is also unclear how permanent the Assize was meant to be; in contrast to the Constitutions of Clarendon, which end with the phrase ... are inviolably to be observed forever," the Assize says merely that "the Lord King wills that, during his pleasure, this assize shall be observed in his kingdom" (italics mine). He may have realized how profound the changes he was making were, and wanted the ability to alter them at his discretion. For the change was profound. Here was an enormous shift in criminal procedure, giving sweeping powers of indictment to groups of commoners held by no more than their reputations and their oaths. Since many of the provisions of the Assize led directly from presentment by the jury to ordeal, with no intermediate steps and limited prospects for appeal, Henry must have realized that many people indicted by the jury faced summary execution. The infallibility of the ordeal was already being called into question, and the Church would disavow it within fifty 20

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years of the publication of the Assize. As an authoritarian Henry may not have cared about the unfortunates and criminals who would be condemned, but nonetheless an important shift toward local power was included in the provisions. If the crown will grant that the commoner is capable of determining guilt in capital cases, the power of life and death which had heretofore been reserved to the crown's agents and churchmen makes a subtle but extraordinary shift. IfHenry had been a lunatic or an anarchist, such a cedence of power would be understandable, but Henry was neither. The Assize most likely represents a further attempt to curtail the power of the ecclesiastical court, because the juries were explicitly instructed to report their findings to the king' s agents, and not to the local cleric, because doing so would have placed the matters under Church jurisdiction. It is also possible that Henry was using the jury as a temporary measure to quickly eliminate troublemakers, and it has been suggested by the renowned legal scholar Maitland and others that the Assize could have been designed as an instruction manual for judges being sent out to take part in the local Eyre, the itinerant courts sent out yearly by the Crown to provide the king' s justice in the hundreds. 15 The Assize was never repealed, though. On the contrary, its provisions were strengthened by the Assize of Northampton in 1176, which both strengthened the jury and defined its powers and duties more precisely. These two documents, Clarendon and Northampton, established what would come to be known as the "Jury of Presentment," or, as we know it today the Grand Jury. The period between the Assize ofNorthampton and the creation of the criminal adjudicating or "petty'' jury in the 1220's is murky. The greatest legal writer of the period, Glanville, who wrote during the 1180s, describes the accepted 21

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procedures of his time, but he is primarily concerned with the procedure for appeal, the earlier system where one person simply accuses another. The record of how the jury went about the business of declaring suspicion is frustratingly incomplete in the time of the jury's earliest use. Nonetheless, we can roughly reconstruct the workings and limitations of the jury during this period through examination of the Assizes themselves and the earliest records of criminal proceedings which begin in the 1190's. 16 It seems that the presentation by the jury was examined by the justices of the eyre, the traveling royal court, who asked which of the accused were directly suspected by the jury of committing specific crimes, and which were being presented simply on the basis ofbad reputation, a distinction explicitly made in the Assize of Clarendon. The latter were given a milder form of proof than the ordeal, acquittal based on the oaths of character witnesses. Those appellees whom the jury had specific evidence against were given either the ordeal or combat, depending on the specifics of the case. In this early period there was evidently a formula which was roughly followed to determine by which method guilt or innocence would be discovered ordeal in cases of medium seriousness, combat in cases which were capital. Those who underwent the ordeal and failed were punished by fining, maiming and/or abjuration. Those who failed at combat, should they have survived, were hanged. While the power of the jury of presentment was great, and it had become a fact-finding body, its power was to be exercised only within certain bounds. Again, what we are looking at here is a type of grand jury, not a convicting or petty jury. It was somewhat independent, in that the evidentiary rules which place such strictures on the modern grand jury did not at the time exist; the jury chose where 22

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it wanted to go in its investigation and it examined whatever evidence was available to it. However, the jury acted in concert with the sheriffs and the justices, who, it may be inferred, had some ability to steer the decisions of the juries. Furthermore, the juries, while able to come close to deciding an appellee's future, did not have the ability to make the final statement: "Yes, he is guilty." Verdicts were medial, not final, during this period. 17 How and when, then, did the change take place? The move from the jury's role as a fact-finder to one of truth-finder, or arbiter of guilt, took place with comparative suddenness, and it was caused by a number of factors working in tandem. First, and most urgent, was the decision of the Fourth Lateran Council of the Church in 1215 to eliminate the participation of clergy in the ordeal. It seems that the faith in miracle-on-demand which had been the foundation of the ordeal's legitimacy was on the wane during the twelfth century. 18 When the Council ended the involvement of the Church, the ordeal was also effectively ended, for without the priest to sanctify the affair, any basis for trust in the veracity of the result evaporated. We might say that this event, in keeping with a theme of this study, was a something of a triumph for rationality, but it left the people in charge of the European justice systems at something of a loss. The Council did not ordain any new practice to take the place of the ordeal-it merely eliminated the old method of determining guilt. In legal history, this was to be a moment of very great import, for it led to the development of two very different, and very influential legal systems. On the continent, the vacuum was filled by the increasingly widespread use of Roman law in the tradition of Justinian, which was finally breaking free of the 23

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initial contempt in which it had been held by the Church of the early middle ages. 19 Under the Justinian system, guilt or innocence is determined by a judge or a panel of judges acquainted with the law, who assign a verdict based on the particulars of a given case. The system survives to this day in the overwhelming majority of continental European countries and those parts of the world colonized by them. Justinian law replaces the church's role with judges appointed by the crown or the state. Although it relies on rationality, it differs crucially in philosophy from the evolving English system, in that rational arbitration can only follow proper training, and that from the commoner's perspective one overlord has simply been replaced by another. In England, however, a very different route was chosen, and part of that route, of course, involved the criminal jury. During the twenty-year period following the Council's decision of 1215, England wrestled with two competing methods of determining guilt. While the ordeal had been ended, trial by combat had not, and it was still employed in those cases where it was determined the proper procedure. But during the interim period between the Assize of Northampton and the Lateran Council, the jury had gradually been acquiring another function the determination of the type of proof which would be necessary following the jury's decision to present. 20 By the early 1200's, juries were routinely deciding whether proof should be determined via the ordeal, or by less personally hazardous methods like purgation, a surviving form of oath-swearing. Juries were also being used in personal appeals. During the period before Henry, appeal generally led directly to combat, but after the 1180s it became possible to purchase a writ claiming that the appeal had been brought de odio et atia, or 24

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"through hate and malice," forcing the sheriff to assemble a jury which would determine whether there were sufficient facts to support the allegation. If none were found, or the evidence was determined to be insufficient, the jury could clear the appellee. Again, these verdicts were medial; those who were found to be under reasonable suspicion were sent to combat for final disposition. Still, the increasing use of juries indicates continuing acceptance of their verdicts by both the Crown and the populace. Another factor which might have led to the move of jury from fact-finding to truth finding body in England may have involved another event of that year: the drafting ofMagna Carta and the political situation which led to it. The liberal tone of Magna Carta is unmistakable, and one of its provisions states the following: ''No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgement of his peers and by the law of the land."21 It may well be that this provision was included because the barons who forced the humiliating document onto King John may have disliked their chances for a fair trial under the king whose powers they were actively trying to limit. The jury system, insofar as it was used, was an accepted practice in England. Even if the English had been disposed to adopt the Justinian model which was becoming increasingly popular in Europe at this time, they might have viewed the Justinian model with its appointed judges as an extension of royal power which under the circumstances was something to be avoided. 25

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Despite these factors however, the move to jury as truth-finder was a fluid one there was no assize which expressly stated that the verdict of a petty jury was to be adopted and accepted as proof of guilt or innocence. There was virtually no legal activity in England during the years of 1215-1217; there were no eyres held during the turbulent period leading up to the accession of Henry ill. In 1218 a nationwide eyre was begun, and in early: 1219 instructions were sent to the Justices. The instructions stated that the ordeal had been abolished and that the crown's legal team had not as yet detemuned what should replace it. In serious cases where there was ample evidence of guilt, the justices were advised to hold the accused in prison. Those accused of medium crimes, where the ordeal would have been required, were permitted to abjure. Those accused of minor offences were to be released on pledges of good behavior. There is only one extant record of an eyre during this period from York during the 1218-1219 session, and it was unfortunately begun before the new instructions were sent out. There are hints, however, that the justices were moving in the direction of accepting medial (i.e. jury verdicts) as final. As legal historian Roger Groot points out in his work on the Eyre of this period, there is one case ofuxoricide (murder of a woman by her husband) where the man did not raise the hue and cry, but instead fled to a local church. The case was brought to the justices at the eyre, and the man was hanged. This was obviously a case of manifest guilt, which under the provisions of the Assize ofNorthampton precluded the accused from "making his law," or buying a writ to adjudicate his case. However, the way in which the accused was brought to the attention of the justices was most likely via a presenting jury. If this is so (and assumption here does not 26

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equal proof), then it would that the justices were accepting a jury verdict and giving it the force of final juogement, which would be a significant move. The first verdict of a jury actually'recorded involved a case where there was literally no other choice but to accept th'e verdict of the jury as final, or to release the appellee, and there was substantial eVidence that the accused was guilty of rape, a capital offense. The convicted was hanged. 2 2 I These cases however represent the minority of those tried. The instructions of 1219 indicated that great numbers of persons should be jailed awaiting trial, and this is precisely what happened. The numbers of persons imprisoned became so great that the justices began hunting for ways to clear out the jails. By the early 1220s the method devised was to offer a choice to the suspect. Continued imprisonment and fine, or the acceptance of the verdict of a jury with the power to acquit. The Crown did not feel that it could impose a verdict by a jury, but it did feel that if the accused could be compelled to take the verdict of his peers, this was fair. Unfortunately (from the crown's point of view), many defendants refused to place their lives in the hands of their countrymen, presumably because they realized that their neighbors knew them and already believed them to be as guilty as sin. The impasse was resolved by the introduction of an augmented jury, which included twenty-four knights. This was clearly coercive, because such juries instantly demonstrated a proclivity for hanging. 23 Given the choice between these augmented juries and at least the slim possibility of mercy shown by their fellow villagers, defendants chose the latter. In later periods, coercion took on more drastic overtones; under the process of peine forte et dure heavy weights were 27

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placed upon the accused until he or she1submitted to the jury's verdict. Should the accused die under peine, which did happen, at least his or her lands were not forfeited since there was no conviction. Recalcitrant suspects were rare, though, and by the 1230s the petty jury had become fairly routine. At this time trial by jury continued to exist alongside of trial by combat, which was still used with some frequency in capital cases. Indeed, in an amazing tribute to the common law's adherence to tradition, combat in the form of the duel existed as a legal remedy until the 19th century, but during the period under examination here it was already being phased out of mainstream usage. There are two plausible explanations for this. The first lies in simple expediency. Battle often involved a somewhat lengthy procedure of appeal, and the justices may have been inclined to limit the time that the accused took up jail space. The other potential explanation is more circumspect. While trial by battle was a very traditional Norman institution, it was at best a messy business and it kept alive the idea that disagreements could and should be settled privately. This attitude the growing conviction in England that central authority was the key to orderly, profitable governance. The use of combat was the vestigal remnant of the tradition of the blood feud, which the Crown had been actively discouraging since Henry II issued the Writ of Right. England of the twelfth and thirteenth century was not Normandy during the since the time of the Conqueror all vassals had sworn allegiance directly to the Crown, and all lands in tenement were held, directly or indirectly ofthe king. It is surely understandable then that as the central control of the Crown solidified in England, the crown would have tried to extend its authority into the settlement of legal disputes. The directed jury, while granting a degree of 28

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authority to the hundreds, did so in a fairly novel fashion under the auspices of the Crown. It gave the jurors a connection to the king, and weakened in them the instinct to settle matters on their own. For whatever reason, though, the use of combat steadily declined throughout the 13th century, and by the tum of the 14th it was practically unheard of 24 With the rise of the jury, however, new problems rose with it. If the Crown I through the workings of the justices sought to popularize the petty jury, as all evidence indicates that it was doing, the populace needed to trust in the impartiality of the jury system. As might be expected, even in the earliest presenting juries there are cases where the accused claimed that presentments on the basis of suspicion were actually brought about de odio, or based on prejudice. This was an important distinction since presentment based on reputation required a much lower burden to gain acquital. Should such a defendant be convicted in a capital crime, punishment by the rope was swift and sure, yet the justices in almost all cases refused to intervene. 25 Inconsistency, however, was a two-way street. For every conviction based on prejudice, juries acquitted their neighbors based on mercy, which at first glance should not have pleased the authorities. Yet from the earliest period jury verdicts were almost sacrosanct; indeed, considering that they replaced the holy ordeal, in a way they were. Why the justices continued to accept the acquitting verdicts of juries, even in cases where guilt was manifest, is a crucial question in any inquiry into why the jury endured. It is arguable the justices endowed the jury with a measure of independence precisely because it had replaced ordeal, and they wanted 29

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to equate the two in the minds of the populace, simply in the interest of expedience. The question of why the commoners continued to accept, with a few exceptions, the jury system which the crown wanted, is not nearly so interesting as why the crown would have continued to want it when it became evident that juries would not always act in the clear interest of the sovereign .. The commons were not in much of a position to have done anything about it, but the Crown could probably have tossed the system in favor of the Justinian model. From the beginning of the widespread use of the petty jury, however, not only did the Crown push the use of the jury, but it laid a foundation for jury independence and sanctity. Considering that the jury would eventually be used against the king, and would be a factor in the drastic limitation of his power, this is one ofthe great ironies of legal history. Why the king and his justices should have pursued this policy will be addressed in the next section of this study. Footnotes 1 See Jenks, Edward, A Short History of the English Law (London: Methuen & Co., 1949) pp 4748. 2 ibid. See also Pollack and Maitland, The History of English Law (Cambridge: The Cambridge University Press, 1969) 114-116. 3 Difficult to prove, but a reasonable assumption considering the importance which the Romans placed on justice as an administrative tool in the capitol. Their highly developed system of plea was not much exported into the hinterland, but the 30

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Roman jury (except in cases of malfeasance when it was comprised of the entire senate) was never used as a legal procedure in Rome itself 4 Pollack and Maitland, 142. Also, Charles Homer Haskins, The Normans in European History (New York: W. W. Norton and Co., 1966) 110. 5 There are a variety of sources to support this conclusion. See Pollack and Maitland, vol. 1, 138-149; Jenks, 125-128; Haskins, Normans, 110-114. 6 Jenks, 27. 7 Haskins, 110. 8For more on the philosophy of the middle ages, see Leff, Medieval Thought (London: Hazel Watson and Viney Ltd., 1968). 9 ibid. 297. 1 Constitutions of Clarendon, paragraph 6. From Sources of English Constitutional History, vol. 1, Carl Stephenson, trans. and ed. (New York: Harper and Row, 1972) 73. 1 1ibid. paragraph 9. Sources, 75. 12 This is worth closer examination for someone with access to the Pipe Rolls dealing with free-alms cases during this period. If it turns out that juries empowered under the Clarendon Constitutions were finding in favor of Church and individual equally, it would indicate that Henry was not attempting to coerce or bribe jurors to find against churchmen, and would show that he really did believe in the individual's ability to deem rationally and fairly. 13Jenks, 22-23. 14Assize ofClarendon, paragraph 1. Sources, 76. 1 5 Pollack and Maitland, 137. 31

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16 The information here owes a great debt to Roger D. Groot's ''The Early Thirteenth Century Criminal Jury," frofl1. Twelve GoodMen and True, Cockburn and Green, eds. (Princeton: University Press, 1988). 17"b"d 8 1 1 . 18Haskins, 111. Also Hollister, 246. 19For a fuller (and excellent) description of the attitude toward the Roman system, see Jenks, 20. 20 Green, Thomas Andrew, Verdict According to Conscience (Chicago: University ofChicago Press, 1985) 14. 21Magna Carta, section 39. Sources, 121. 22 Groot, 27. 23ibid. 25-26. 24see Gies, Frances and Joseph, Life in a Medieval Village (New York: Harper Perrenial, 1991) chapter 9. 25 Groot, p27. 32

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CHAPTER THREE TOWARD AN INDEPENDENT BODY As we have seen, the decision to. establish the trial jury as a part of the common law was based on a combination of politics and pragmatism. But the question of why the jury would continue to find favor in the eyes of the crown through the high middle ages and into the modern period is an interesting one, to which there is no single concrete answer. As the years passed, the jury no doubt assumed the status of a perennial feature of criminal procedure, with roots stretching into the mists of time. Indeed, Matthew Hale, whose History of the Common Law of England in 1713 was the first attempt at a comprehensive history of the common law, believed that the jury system had preceded by centuries the Norman conquest, having been created by Alfred the Great during the 9th century. 1 A more canny William Blackstone, writing 60 years later, would admit that the assignation of the jury to Alfred was more a reflection of esteem for Alfred than historical fact: Just as we are apt to impute the invention of(the Jury) to the superior genius of Alfred the Great; to whom, on account of his having done much, it is usual to attribute every thing: (so) the tradition of antient Greece placed to the account of their one Hercules whatever atchievement was performed superior to the ordinary prowess of mankind." 2 Yet Blackstone, too, threw up his hands when trying to pin down the actual circumstances of the jury's birth. In a world where a tiny fraction of the population 33

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is literate, and where historical records were at all times spotty and somewhat biased, three or four generations at most would have been required to virtually obliterate the memory of a time when the jury did not exist. As an illustration of this, it is worth recalling that in Henry's Clarendon documents, he supports the creation of the jury by claiming that juries had been part of "the recognized customs and rights of the kingdom, 3 even though modem scholarship can demonstrate that this, if not entirely inaccurate, is a substantial stretching of historical fact. Yet tradition by itself cannot explain the endurance of the jury during the critical period when the tradition had yet to establish itself, nor can it explain why the jury endured when other elements of official policy were later discarded by the vigorous monarches of the Tudor period. During the transitional years between the fourth Lateran council ( 1215) and around 123 0 or so, the criminal trial jury evolved as a stopgap measure in the period of turmoil when King John's reign was ending and the rule of his child successor Henry was in regency. Henry ill was not a strong king, and when not engaged in hopelessly complex foreign intrigues, he was constantly embroiled in struggles with his barons. Even had he shown interest in legal reform, which he did not, he most likely could not have mustered the cooperation to implement the serious procedural reforms necessary to eliminate thejury. 4 His son Edward I, however, was not only an able and ruthless ruler, he was intensely interested in the law and carried out serious structural changes within its administration. His statute of Quo Warranto, for example, which obliged local barons to prove by the production of specific royal charter their right to try 34

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defendants who were their tenants, was aimed at eliminating the private jurisdiction of legal matters which his vassals claimed. In this matter and others he broke with the long-standing tradition which constrained the English monarch from creating new law. In short, Edward was a centralizer. The elimination of the criminal jury, which during his reign was only around sixty years old, and which was the epitome of local legal discretion, might very well have appealed to his nature. Clearly the jury had to be fulfilling some role which he found appealing. The most facile explanation would be that the jury was acting in concert with the crown's wishes; that it was returning a high percentage of guilty verdicts, or at least that there was a general satisfaction with the level of societal order. A variety of sources, however, indicate that this was not the case. The Statute of Winchester (1285), which was signed by Edward himself, complains that "from day to day, robberies, murders, burnings and thefts be more often used than they have heretofore." The statute even goes on to state that, "Felonies escape presentment by the oaths of jurors who would see felonies committed on strangers pass unpunished rather than accuse the offenders, many of whom are persons of the same community. 5 Not only is it clear that Edward is aware of the increasing crime rate, but he places part of the blame for it on the part of juries. Speaking to the increasing rate offelony ten years earlier, the Statute of Westminster (1275) had made the same lament, "the peace is less kept, and the laws less used, and offenders less punished than they ought to be. 6 Modem estimates put the number of homicides in London during the early 14th century in the neighborhood of 12 per hundred thousand, roughly thirty times the rate in Britain today, and the number of murders in the countryside was substantially greater than in London. 35

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The problem was severe enough that an entire category of inquests was created to investigate the problems in localities experiencing dramatic upsurges in criminal activity. These commissions, coined as "trailbastons" in the vernacular, were given the task of rooting out and punishing "malefactors and peacebreakers who are moving about the woods and parks committing murders, depredations, burnings and other misdeeds to the peril of travelers and dwellers." 7 It seems fairly certain I that the crown was concerned with the disorderly behavior of its subjects. As to the question of whether juries were returning large numbers of guilty verdicts during this apparent crime wave, there is substantial evidence that they were not. On the contrary, it can be demonstrated that in cases of felony, defined here as homicide, theft, arson, and accomplice to these crimes, during the 13th and 14th centuries, juries chose to acquit defendants in the overwhelming majority of cases, despite the fact that contemporary observers complained about the increasing rates of lawlessness, and, at times, attributed this problem to the leniency of juries. In his excellent analysis ofthe trailbaston inquests conducted in Lincolnshire county in 1328-1332, Bernard William McLane, professor of history at the University of Rochester (New York), leaves little doubt that criminal juries, even under these extraordinary circumstances, were far more inclined to acquit defendants than to convict them. Of the 193 felony defendants tried at the 1328 session, only 34 were convicted, meaning that fully 81% were acquitted and set free. 8 Furthermore, the jurors who sat for these cases were not necessarily drawn from the lower social classes who might have had blood relations with the accused. Instead, there were substantial numbers of gentry who performed jury duty, and 36

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they cast their votes to acquit alongside of their less well-heeled compatriots. Admittedly, the percentage of gentry trial jurors was lower than the percentage of those who sat on presenting juries, but given the fact it took only one juror to hang the proceedings, and that roughly 25% of the trial jurors had backgrounds in either the gentry or in royal service in some capacity, it seems impossible to believe that leniency was a purely lower-class phenomenon. 9 McLane puts forth several possible explanations for the behavior of the trailbaston juries. He notes that many of the jurors often could not have had much previous knowledge of the particulars of the cases, because they were drawn from communities removed from the scenes of the crimes. Since the only punishment for felony was hanging, jurors may have been willing to give defendants the benefit of the doubt, except in cases where evidence was overwhelming. Although McLane does not mention it, this hypothesis squares well with the sheer volume of cases heard by juries in a very short period of time; this constraint may have precluded the ability of jurors to determine beyond reasonable doubt the truth of the allegations. Another possible explanation lies in the chance that many of the jurors had ulterior motives. There have been several studies which suggest that the same individuals who were committing violent felonies were also working at times as 11enforcers11 for the local gentry, and there is one study which shows that several members of a notorious 14th century outlaw gang went on to find employment working for the crown. Under these circumstances the gentry might have been loath to convict, and the townspeople who rounded out the juries might have been concerned for their own safety if they tried to find well-connected defendants guilty. This is a troubling explanation, but one that is certainly understandable: the 37

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trailbaston was by nature temporary and would soon be dissolved, but gang members who were not caught would still be in the neighborhood months and years later. 1 0 At the conclusion of the trailbaston sessions the situation with regard to a high crime rate and jury leniency seems to have been largely unchanged. In the later 14th century we still find complaints about the level of criminal activity, and we also see evidence that the leniency of juries was perceived as a contributing factor. From his late 14th century pulpit in Rochester, bishop Thomas Brinton summed up the attitude, saying: If a voluntary murderer or most notorious thief who according to every law ought to pay the just penalty of his wickedness, is captured in order that justice may be done upon his person, as though in compassion, they strive to keep him from danger, some saying, 'He is young: if a youth has gone wrong, the old man will1 be able to amend.' Others declare, 'He is of our blood: if the law proceeds against him, the whole of our clan will be shamefully disgraced. '11 Given all of this, then, we are still left with the original question: if the jury was an ineffective tool of the judicial system, why was its continued use supported? One explanation might be simple greed on the part of the crown. Since the only penalty available for felony was the rope, and since the penalty for trespass (misdemeanor in today's parlance) invariably involved a fine which was paid to the king's courts, it may have made more fiscal sense to reduce the charge and collect the fee. Dead men, after all, can no longer pay taxes. There is indeed evidence that juries were inclined to do precisely this, to reduce the severity of the 38

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defendant's crime before convicting, and' the percentage of convictions on trespass were much higher than that on This explanation, however, falls apart for a number of reasons. First, the penalty for felony generally included the forfeiture of the convict's assets, which was one reason why defendants were occasionally willing to die under peine fort et dure rather than submitting to the decision of the jury. Since the fines associated with trespass were reasonably low, the crown would have increased its revenue by for felony convictions, in which case we would see a much higher percentage of defendants hanged. Second, if the trailbastons were in any way intended as a fund-raising device, then the same cynical government which had instituted them would have cynically extended their time in session. Third, as McLane points out, there is little reason to seriously suspect that the strong wording of such documents as Winchester and Westminster were "simply rhetorical flourishes advanced by members of the royal bureaucracy to justify the expansion of its influence atJ.d increase its sources of revenue." 13 On the contrary, if the crown had wanted to do so it could far more easily have simply eliminated the jury altogether, replacing it with a system which was more favorable to its own aims. A more intriguing explanation for why the jury continued to find support in the eyes of the crown has been recently advanced by Duke University legal historian Cynthia Herrup. Although her work deals primarily with the disparity between the numbers of accused felons and actual guilty verdicts and subsequent hangings in early modern England, many of the contributing factors which she lists in support of her views existed during the high middle ages, and it is therefore worth examining her hypothesis in the context of the earlier debate. Herrup's main 39

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contention is that the government continued to support the jury not in spite of its leniency, but because of it. She begins by citing an article written by Douglas Hay during the 1970's which made the claim that the upper classes in Britain favored leniency by juries because through it the gentry were able to prove the moral superiority of their class. The Marxist overtones of this conclusion have been disputed in recent years, but the fundamental behavior of the gentry which Hay documented has been generally accepted by legal historians. As Henup puts it, 11 the importance of his questions regardless of the final judgment of his answers can no longer be contested. 11 14 Henup believes that during the 16th century members of the upper classes believed themselves to be, above all else, men of God. She shows how Protestantism deeply penetrated into the heart ofEnglish society, producing an interesting dichotomy in the law and its application. On the one hand, the severity of the written law reflected the belief that crime was a serious matter because it was sin. Yet, on the other hand, Protestant theology was based on the concept that all men were sinners, and that the possibility of redemption was always possible so long as there was life. Laws, then, were written harshly with the general understanding that the application of the law would be far more lenient than its letter. In this way law and application can be viewed in much the same way as the two separate testaments of the Bible: the Old Testament represents the law while the New Testament represents redemption. The whole legal system, Henup claims, evolved to satisfy this dichotomy. In order for a defendant to be brought to trial on felony charges, at least twelve of twenty grand jurors needed to believe not only that the evidence for guilt was 40

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manifest, but that the appropriate punishment for the crime was death. Then, a unanimous decision ofthe twelve was necessary. A panel of judges then needed to state that they also agreed with the verdict in order to pronounce sentence. Even at this point, there were still the possibilities of royal pardon, which was exercised in a significant percentage of cases, or, failing that, convicted felons might also be able to obtain benefit of clergy, which would save them from the gallows. In total, as many as thirty or more persons in various societal stations needed to agree that a defendant deserved death, and at each level of the proceedings jurors and magistrates had the option of either dismissing the charges or reducing the crime to the level of misdemeanor, which would carry a sentence no worse than a hefty fine, corporal punishment and a fairly short stay in gaol. In her review of trial records, Herrup notes that a significant number of defendants were released due to mitigating factors, youth being one of the most common. Popular media today seem to relish portraying the English justice system in history as being exceedingly bloodthirsty, hanging children for simple theft to the applause of teeming throngs, but Herrup's research paints a very different and far more compassionate picture. Had the authorities been interested in seeing greater numbers of people put to death there were any number ofways to streamline the process. Further, if the crown wanted to impose severity it could have either eliminated the ancient role of benefit of clergy, or stopped granting such a large number of pardons. That it did neither is somewhat demonstrative of a desire on the part of the government to have leniency shown in as many cases as possible. 41

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The 17th century, of course, was not the 14th century, and placing Herrup's thesis in the context ofEnglanq during the reign ofEdward I is somewhat problematic. The intervening years saw an astonishing number of changes: the Black Death and the Peasants' Revolt; the rise of the middle class and the end of feudalism; the disillusioning Wars of the Roses; and the Protestant Reformation, to list just a few of the highlights. During the period which Herrup examines, England was in many respects a proto-modem nation-state. England under Edward I was part of a larger feudal "empire," with far different aspirations and fears. Nevertheless, there are elements ofHerrup's thesis which fit in the earlier period. Although the Reformation and its analysis of man's place in the cosmos was still more than a hundred years in the future, the 14th century in England saw dramatic moves in its direction. The 1300's saw the first wave of the Black Death strike Europe, and its result would lead directly to the Statute of Laborers and, indirectly, to the sermons of John Ball and the Peasant's Revolt. Wycliff would test the theological boundaries of trans-substantiation and would complain of the increasingly distant, temporally powerful and rapacious church. Both Jan Hus and Martin Luther would claim to be his ideological descendants. Popular writers like Chaucer and Langland, both members of the literate establishment, would echo WyclifPs themes in subtle yet pointed verse. England in the 14th century seemed determined to question the fundamental necessity of church hierarchy; this was not quite the Reformation, but the assumed brotherhood of man upon which much of Herrup's argument rests was demonstrably evolving at this time. The structural aspects of the jury system of the 14th century was also roughly comparable to that of the 16th century. Although the evidentiary rules 42

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which limited the access of information to trial jurors had not yet come into being, I McLane's research into the distances jurors travelled to take part in trials indicates that jurors had already ceased to be self-informing, as their predecessors under kings John and Henry had been.15 The presence of jurors who also were familiar with the defendant may have mitigated this somewhat, as they no doubt told their I fellows the particulars of cases with which they were acquainted. Still, since conviction rested upon unanimous agreement, the impartiality of jurors from outside of the neighborhood could conceivably have lent itself to giving the benefit of the doubt where possible. And there were also the layers of interlocked procedure: presentment, unanimous trial verdict, benefit of clergy, royal pardon. McLane's study shows that in Lincolnshire each of these were used to find defendants not guilty, or, if convicted, to save them from the gallows. On close examination, the system during the 14th century seems to favor leniency, as it did during the 16th century. Again, if the king had been determined to streamline the procedure to increase the number of convictions on felony he could have done so. Given that the jury was a much younger entity during this period, without the attached prestige of three or four centuries of tradition, it would have been far easier for the king to eliminate the jury in the early 14th century than it would have been for one of the Tudor monarches. An extension of Herrup's thesis, then, is worthy of consideration. Another possible explanation for the endurance of the trial jury despite its propensity for leniency is that from an administrative standpoint the crown simply may not have had the resources to use any other system. To understand why this would be, we must once again recall the circumstances of the jury's establishment, 43

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and we must delve into the history of the court system before Henry II wrested control of it from the bishops. The infrastructure which supported the ecclesiastical courts had been developing in Saxon for more than four centuries before the Norman conquest. As early as the 7th century local kings had given bookland, or arable property exempt from standard rents and taxation, to the Church in return for the local performance of judicial functions. 16 The kingdom ofWessex endowed churches in each of the hundreds, further integrating the church into individual localities, and by the 1Oth century most manors endowed a church, bringing Church administration down to the level of the village. The pastors of these small churches reported to the bishop either directly or through the increasingly comprehensive system of self-supporting monasteries. By the time of the conquest the church was a ubiquitous feature of the English countryside, and one of its primary duties was the correction of sinners. For the rank and file offender of the early middle ages, the Church was often the only court system he or she would ever know, and determination of guilt and punishment was the responsibility of the bishop through his agents in the abbeys and local parishes. By the high middle ages, the parish church had become the center of village activity; its walls were a storehouse, courtroom, and a meeting hall; its bells marked the passage of the day; its ceremonies the most important moments in life; its calendar the relaxation of feast days and festivals. 17 The Church was the most universal feature of medieval English life, and its infrastructure extended to all levels of society: pope, cardinal, archbishop, bishop, abbot, monk, wandering friar, humble parish priest. If the changes wrought by the constitutions of Henry II had removed some of the Church's jurisdiction, its authority in the areas in which it still 44

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exercised control were strengthened by centuries-old custom. Moreover, the ecclesiastical courts continued to develop an increasingly sophisticated procedural system. There were three primary methods of fact-finding available to the court: the declaration of oaths, or, if all else failed, ordeal; a modem evidentiary system involving witnesses and documents; and a sworn inquest of twelve impartial observers drawn from both the Church and the laity. 18 One study shows that the ecclesiastical system of summons, with its threat of excommunication, was at least as effective of the secular system of outlawry and confiscation. 19 The courts, in general, acted with dispatch and efficiency, and, it is interesting to note, with a good deal of mercy. This is not to say that the ecclesiastical courts were free of difficulties. Indeed, the system was so complex, with so many concurrently active tribunals, that the possibility of the sort of abuses which Chaucer would describe in his prologue to The Summoner's Tale was ever-present. If anything, the ecclesiastical system was overburdened with structure. Furthermore, the appellate system had no method of limiting the types of evidence given in secondary and tertiary appeals, meaning that cases were tried over and over again from the start, which in some cases drew out the proceedings indefinitely. 20 However, it is safe to say that at the time the Constitutions of Clarendon were written, the infrastructure of the ecclesiastical court system was extremely well-established. In contrast to this reasonably functional and centralized system of dispensing justice, we see two separate and comparatively disorganized legal structures: the royal and the manorial courts, which, as time went on, found themselves increasingly in competition with each other. These bodies not only lagged behind the ecclesiastical system in terms of procedural sophistication, but 45

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also in physical pervasiveness. Part of the reason for this lay in the complex i political and economic nature of the feudal system, which tended to act against centralization at both the royal and manorial level. While the bonds which connected feudal society through blood, marriage and oath led to an unusual intimacy between families and regions, also deterred the accumulation of political (and by extension, legal) power!based on geographic locale. As an example of this complexity, we might look to the relationship between the Kings ofEngland and the Kings of France. Because the English throne had been held from the time of the conquest by the Normans, who held the duchy ofNormandy by the sufferance of the French King, the Kings of England were nominally subservient to the Kings ofFrance until the 14th century. In reality however, the struggle between the French and the English over the rule of large sections of modem-day France would dominate the political discourse of both of these countries for more than three centuries. Both monarches had economic interests in the region, and both justified 'their claims through tradition and intermarriage; war was inevitable. King John's inability to hold his French territories against the French King, and his need to continually raise funds to pursue his campaigns on French soil, was a principal contributing factor in the drafting ofMagna Carta. Yet in a way he owed his crown to the King ofFrance, since in 1199 he needed the approval of Louis to succeed his brother, Richard; he even paid the French Court a heavy relief for this honor, as any vassal would to secure the approval of a petition.21 Later in the 13th century, when his son Henry m was confronted with the rebellion of de Montfort (who was both French by birth and the founder of the English Parliament) and the humiliating Provisions of 46

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Oxford, the English monarch relied on the pious king Louis IX, his feudal overlord, for adjudication ofthe matter. By virtue of this same complexity, the relationship between Henry and his vassals was often difficult to fathom. The barons who had accompanied William in his adventure across the Channel did so with the understanding that they submitted to his feudal superiority in exchange for reward in the form of conquered English estates. This relationship, however, did not necessarily preclude other obligations which they still held in France. Their descendents often had estates on both sides of the Channel, and often had competing feudal obligations. When combined with the extremely complicated economic arrangements which dictated who was allowed to occupy which pieces of land and under what terms, it is easy to see how alien the concept of the centralized State was to Medieval mind. William had made great strides in extending his own authority over his vassals, and succeeding Kings, when strong, had furthered their ancestor's work. Still, the English barons who held estates in England logically assumed that the ancestral right which they gained through the conquest to adjudicate matters in areas which they owned was sacrosanct. Given that the disposition of cases often included fines paid directly to the manor, the Barons jealously guarded their jurisdiction. The infrastructure necessary to apply justice in the manor courts, however, was not sophisticated, and usually centered around existing legal structures, particularly the hallmote and Hundred Court. These ancient structures, based on village and district, respectively, had for time out of mind dispensed secular justice within the community. Upon taking over a manor, the Norman lord would titularly place himself at the head. But there were difficulties with 47

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this scheme. Since the holdings of Barons were often spread over enormous geographical areas, it was difficult for them to understand the day-to day workings of their estates and the villages which they controlled. This was finessed, to a degree, by the offices of the bailiff, who took care of an individual manor, and the steward, whose job was to oversee and keep order on the totality of the lord's demesne. But the steward, the high-ranking official who physically oversaw the hallmote, had many sundry manors under his care, and the bailiff, who at least resided in the locale, was not particularly powerful and, as he was appointed solely by the lord, had no firm connection to the villagers. The most influential villager, the reeve, who was often a villein (the English term denoting serfdom), occasionally took part in the manor courts and hallmotes, but his loyalties were divided. Primarily he was a farmer; his administrative duties usually ended with securing the lord's a job which generally worked to the benefit of the village as well as the lord. J'he duties of the reeve were time consuming, however, and sometimes poorly compensated, which is one reason why many people chosen for the position preferred to pay a fine rather than take on the additional workload. 22 Since the reeve was at heart a villager, he hadn't the inherent devotion to the lord which might have led him to take the job out of a sense of honor. For the same reason, he was not necessarily interested in seeing justice done for the lord, especially when that justice might be to the detriment of his neighbors and friends. On the contrary, the court roles contain examples of reeves colluding with villagers against the local manor, which is not surprising since the reeve was usually selected by his fellows on the basis of his leadership abilities as well as his expertise in husbandry. 23 48

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Two other elements of the attituoe of the villagers are important to gain an understanding of the difficulties the manor faced in exerting its will with respect to the villagers. The first is a general distrust toward outsiders. Feudal England was in truth a very large kingdom comprised of very small communities. The cohesiveness of these communities stemmed in part frpm their ancient origins; many if not most of the villages in England had been in more or less continuous settlement since the time of the Saxon invasions of the 6th century. They had seen a variety oflocal rulers and distant kings; the Normans, who spoke another language and who had alien mannerisms, were but another in a line of outsiders claiming control over the lives of the villagers who were tied to the land by tradition as much as by villeinage. Local control of the manor was transient; the village and its inhabitants endured. The lord might command obedience, but he could not demand blind respect, much less affection. This may partially explain the occurrence of lords losing suits within their own manor courts, although to the modem mind this seems strange indeed, rather like the jurors finding against the judge. Yet it did happen. For example, in a case in Sussex in 1315, the tenants of the Bishop of Chichester brought suit at the Bishop's hallmote claiming that they were not bound to perform certain cartage of the Bishop's goods (dung, as it happens), and after three inquests the court found in favor of the claimants, basing the decision on local custom. A minor case, to be sure, but not an isolated one. 24 Even more striking are the cases where the communities as a whole acted in concert to bring civil claims against the manor for control ofland or adjustment of rents. Theoretically, the villagers held the land at the sufferance oflord. In practice, however, they believed that they had 49

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certain rights granted to them by traditidn, and there are cases where their claims were upheld. An example here is the case of the tenants of a lord in Wiltshire in 1295, who refused to pay more than the:traditional amount when taking over lands upon the deaths of parents. They did not deny that they needed to pay this fee, only that the amount had been set by custom, and that it was not within the purview of the lord to adjust the rate. The Wiltshire court roll does not indicate the final disposition of the case, but the outcome is not so important as the fact that the villagers felt that they had the right to bring the suit. 25 I The adherence to custom which :granted such rights is the other aspect of the medieval English village which made it difficult for the lord to assert himself against his villeins. His overriding concern for order and stability compelled him to allow a certain latitude toward the interpretation of the law. The alternative was worse than his occasional losses. In suffice it to say that the system of manor courts which had no person with both ticls to the village and loyalty to the lord, I coupled with the traditional understanding of justice as based within a semiautonomous community, made it difficult for the baron to insinuate himself into the workings of local justice. The first section of this study observed how the institution of the jury was tied to the attempt of the King to diminish the power of the ecclesiastical courts, but one of the recurring themes of English constitutional documents from the middle ages is the attempt to wrest jurisdiction from the manor courts as well. By the end of the thirteenth century, most all cases involving what we would today consider felony or serious misdemeanor had been subsumed under the bailiwick of the royal courts, and the King was rapidly moving to subsume the lucrative civil 50

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cases as well. Yet while the crown was making the concerted effort to absorb all I jurisdictions into his own, it faced the same difficulties in dispensing local justice that the barons did. Indeed, given the much larger area which the king controlled, he was even further removed than the barons were and faced a greater challenge. The king had at his disposal two institutions to handle the caseload. These were the central royal courts in most shires and hundreds, and the eyres, true circuit courts in which the royal representative periodically rode from village to village lending the King's authority to the verdicts of the jury. His local representative was the Sheriff, or Shire Reeve, but where the manor's bailiff might be responsible for several of the lord's villages, the sheriff might be responsible for several hundred. There is simply no way that he could have had more than a cursory acquaintance with the individual communities within his jurisdiction. The problem of local enforcement, once again, falls to the presenting jury, made up of freemen, sworn to do justice on behalf of the king. The jury may have endured simply because there was no other body in existence which might have taken on its responsibilities. Assembling a new infrastructure with clear loyalty to the crown, especially in matters of enforcement, may have been an administrative impossibility. One more item needs to be mentioned here, specifically the king's motivation in law enforcement. Clearly the king was interested in keeping the peace for moral reasons, and in the 13th century the keeping of the peace also began to have an economic motivation, since the earliest seeds of capitalism were germinating at this time. 26 Industry needs peace in order to prosper, and the king needed industry to prosper if he was to continue to collect revenue from it. Edward I's concern with violent felonies is therefore understandable. But the king 51

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! also had the motive of eliminating local corruption, which both cost him directly and which infuriated his subjects. The best way to achieve this end was to rely on I presenting juries with direct knowledge bfthe offenders. To return to the example of the trailbaston, these courts were not only interested in the rising rate of felony, they were also charged with rooting out graft. A substantial number of the cases (although by no means a majority) cited !in McLane's study dealt with precisely this problem. It is interesting to note that 83% of the officials brought before the bar for various forms of misconduct were found guilty. 27 Edward I most likely felt I I that the locals, as was their tradition, would police themselves for their own common good. The king didn't have to worry about the occasional (or frequent) acquittal of felons the villagers had to live with the murderers, after all so long as the juries were fulfilling the more important symbolic duty of extending royal control in the shires. The succeeding century and a half saw little substantial change in the procedural workings of the presenting and criminal trial juries, although there was in some ways increasing dissatisfaction with the system. By the 1400's, the monarchy had problems simply maintainiing orderly succession; the Wars of the Roses, which were the outstanding political feature of this period, would drag on for the better part of a hundred years. When the dust settled, and Henry Vll had established for the Tudor family a solid grip on the throne, England had emerged into the early modem period as a more centralized bureaucratic-state. As part of the reforms of his reign, Henry turned his attention to the jury and found much that he disapproved of The procedural changes which he made will be discussed in the next section of this study, but it is worth noting here that in an effort to influence 52

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the outcomes of cases he limited the amount of infonnation which the jury might consider in its deliberations, and he created the Star-Chamber to deal with, among other things, recalcitrant jurors who refused to find by the principles laid out in his procedural refonns. Yet the jury was now more than three centuries old, and had assumed its place as a timeless feature of the common law. Officials and magnates sought its protection in much the same way as did the common man. What had once been an imposition of the crown designed to extend royal authority had become a device which insulated the individual from the caprice of a strong government. Still, Blackstone's assertion that the jury was the central guardian of English liberties was a long way from reality. The medieval jury had survived its infancy, and while it had been perhaps influential in maintaining local autonomy, the truly liberal aspects of the jury would wait until the English Revolution of the 17th century, the true assertion of consent of the governed, and the cases of Lilbume and Bushel, which will be taken up in the next section of this study. Footnotes 1 Matthew Hale, The History of the Common Law of England, Charles Gray, ed. (Chicago: Chicago University Press, 1971). 2Blackstone, William, Commentaries on the Laws of England, vol. 3 (London, 1768) p. 350. 3 Constitution of Clarendon, Introduction. 53

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4 This generalization is a fair reading of the historical facts. The most important documents of Henry ill's reign, arguably, were the Charter ofthe Forest, which was issued when he was a child, and the1Provisions of Oxford, which were forced upon him by de Montfort's rebellion, and which resulted in a diminution of his powers. 5 Statute of Winchester, 1285, introduction. 6 Statute of Westminster, 1275, introduction. 7 Calendar of Patent Rolls, 1301-1307, p. 343. 8 Bernard William McLane, "Juror Attitudes toward Local Disorder: The Evidence ofthe 1328 Lincolnshire Trailbaston Procedings," published in Twelve GoodMen and True, Cockburn and Green, eds. pp. 36-64. 9 ibid. p. 42. 10 ibid., pp. 53-64. 11G.R Owst, Literature and Pulpit in Medieval England (Oxford: Oxford University Press, 1966). 12 There are a variety of sources on this. See especially Green, Verdict According to Conscience, epilogue and conclusion. 13 McLane, p. 38. 14 Cynthia Herrup, "Law and Morality in Seventeenth Century England," Past and Present, no. 106, p.l04. 15 McLane, p. 57. E. Rodes, Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (Notre Dame: The University ofNotre Dame Press, 1977), pp. 16-20. 54

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17 George Caspar Romans, English of the 13th Century (New York: Russell and Russell, 1960), p. 384. 1 8 Rodes, p. 143-146. 19 B. Woodcock, Medieval Ecclesiastical Courts in the Diocese ofCanturbury (Oxford: Oxford University Press, 1952). 20 d Ro es, p. 142. 21King, Edmund, England 1175-1425 (New York: Scribners, 1979) p. 125 22Homans, pp. 298-301. 23 "b"d 1 1 24 Homans, p. 320. See also Francis and Joseph Gies, Life in a Medieval Village (New York: Harper Perennial, 1991), pp 183-185. 25 Romans, p. 321. 26 As an example ofthe increasingly capitalist nature ofthe 13th century in England, the automation of textile manufacturing through the use of the fulling mill began during this period. Fulling mills required a substantial investment in start-up outlay, and the revenues generated formed the basis of the 13th and 14th century economy in many areas in southern England. 27 McLane, chart p. 55. 55

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CHAPTER FOUR THE JURY MODERN PERIOD: I i NON-COERCION AND S!ANCTION NULLIFICATION I I The early modem period in history, falling roughly between the years of 1500 and 1800, would see the jury at both the nadir and zenith of its influence. As the period opened, the jury as an institution found itself under increasing criticism from observers who :felt jurors to be inefficient, simple-minded, and overly prone to leniency. Yet, by the middle of the 17th century the court would support a finding of not guilty in a celebrated case of treason, in which the defendant, John Lilbume had clearly violated the letter of the law. Within a decade after this decision, another high court w<;>uld remove the coercive potential of judges to direct the verdicts of juries through force, establishing the independence I of juries which has, with some survived to this day. Both ofthese decisions were caught up in the surrounding the Puritan Revolution. To understand the prevailing political climate ofthe period and its effect on the application of the law through the jury, it will perhaps be instructive to examine the writings of some of the principle legal scholars of the time. Before doing so, however, this study must first touch upon the procedural changes which had been made as the common law emerged from the late middle ages. As was mentioned in the preceding section, what had been the jury's main appeal under a succession of embattled monarchs now became its greatest drawback; it represented an independent force within an emerging, centralized 56

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I bureaucratic state. The ennui with earlier kings had accepted deficiencies in I I the jury system had been replaced by thd intense desire of the early modem I I monarch to regulate all official duties his realm. The attack was never I completely overt; during the sixteenth cJntury the king was loath to dissolve a I legal entity which had existed now for Jore than three centuries. But we can begin to see a growing impatience with the workings of the jury as early as the reign of Henry VII. Henry's major move against the jury was the creation of a court which could operate outside of the common law, yet would have the authority to deal with abuses within the common law system. The court was called the "Star Chamber," the name deriving from the stars painted on the ceiling of the courtroom. Star Chamber would become synonymous with unchecked royal prerogative. As we can see by the act which created the Star Chamber, jurors were one of the prime targets of its authority, land its legitimacy was in part derived by assumed misuses of the jury in history: ... The king, our sovereign lord, remembereth how, by unlawful maintenances, giving ofliveries, signs and tokens, and retainders by indenture, ... untrue demeanings 6f sherriffs in making of panels and other untrue returns, by taking of money by juries, by great riots and unlawful assemblies, the policy and good nlle of this realm is almost subdued. 1 (italics mine) Henry continues to mine the same vein throughout the text of the statute, claiming that the record of abuses has led to a grqwing number ofbreaches ofthe peace: 57

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bureaucratic state. The ennui with which earlier kings had accepted deficiencies in the jury system had been replaced by the intense desire of the early modem I monarch to regulate all official duties within his realm. The attack was never completely overt; during the sixteenth century the king was loath to dissolve a legal entity which had existed now for more than three centuries. But we can begin to see a growing impatience with the workings of the jury as early as the reign of HenryVIT. Henry's major move against the jury was the creation of a court which could operate outside of the common law, yet would have the authority to deal with abuses within the common law system. The court was called the "Star Chamber," the name deriving from the stars painted on the ceiling of the courtroom. Star Chamber would become synonymous with unchecked royal prerogative. As we can see by the act which created the Star Chamber, jurors were one of the prime targets of its authority, :and its legitimacy was in part derived by assumed misuses of the jury in history: ... The king, our sovereign lord, remembereth how, by unlawful maintenances, giving of liveries, signs and tokens, and retainders by indenture, ... untrue demeanings of sherriffs in making of panels and other untrue returns, by taking of money by juries, by great riots and unlawful assemblies, the policy and good rule of this realm is almost subdued. 1 (italics mine) Henry continues to mine the same vein throughout the text of the statute, claiming that the record of abuses has led to a growing number of breaches of the peace: 57

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I ... whereby the laws land in execution may take little effect, to the increase of murders, robberies, perjuries, and unsureties of all men living, and losses of their lands ahd goods, to the great displeasure of Almighty God? It is clear that Henry bases his decision ro create the Star Chamber on the history of abuses which he claims have existed in earlier periods and have been recently accelerating. Yet how accurate was this portrayal of the state of affairs during the fifteenth century? It was not completely out of line, but it certainly overstated the problem of increasing lawlessness. If we' were to accept at face value the claim of every age that crime is on the rise, the percentage of the population engaged in felony today would most certainly exceed one hundred percent. Most studies of the subject of felony in England indicate that rate ofviolent crime in that land reached its high point at some point in the high middle ages. If anything, felony was declining, not increasing, when Henry created the Star Chamber. Henry also made other attempts at the limitation of the jury's authority, but these were largely brushed aside. In 1495 he sought to eliminate the power of the grand jury in capital cases, but the statute was quickly removed by the growing power of Parliament, and here we glimpse another view of the utility of the jury. While Henry may have chafed at the power of the independent jury, the judges who would have had to do the king's bidding in their place were less than enthusiastic about taking on the responsibility. The judges may have agreed with the king that abuses within the jury system were troubling, but they had no desire to take on the magnates within their preCincts who brought the pressure against the juries to bear. John Spelman, a sixteenth century judge and legal historian, 58

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summed up the situation: "The judges squght refuge from the evils of mankind and the agonies of decision by umpiring the ancient game strictly according to the I rules, and by refusing to meddle with offact." 3 Spelman and his contemporaries clearly understood the shield that the juries represented to their own peace, and were loath to have that shield removed for the benefit of the king. By the end of the sixteenth century and the reign of Henry's granddaughter Elizabeth, we find that a considerable degree of restraint has been placed upon the jury in terms of procedural rules which the power of the bench, making the jury a body similar to its present-day descendant. By this time, the jury is no longer that is to say, its members no longer gather information before the trial, and they tend more to listen during the proceedings than to speak. 4 The judge has gained the power to regulate what information about the crime is available to the jury, and the instructions for the jury have become more explicit. There are three primary for this change: first, that juries too frequently find in favor of manifestly guilty secondly, that the jurors are acting in a corrupt and thirdly, that the jurors available to the court are simply too rustic, illiterate, and foolish to deem carefully in the matters placed before them. 5 As an outgrowth of this perspective, we see an increasing willingness on the part of judges to prod jurors in the direction it desires, whether for acquittal, or, more often, guilt. This coercion took several jurors might be fined or imprisoned for failure to reach the "proper" verdict, or they might, in cases of treason, be bound over to Star Chamber. We should expect to see, then, that the jury during the 16th century began to convict in higher percentages. There is substantial evidence that it did so. At the 59

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time, there were two potential methods by which a jury might acquit a defendant. It could either dismiss the charge completely, rendering an outright acquittal, or, as i we saw during the earlier periods, it might render what is known as a "partial" verdict. By this, the jury would reduce the charge considered and then find guilty of the lesser charge. In his excellent analysis ofHome Circuit records from 15601670, noted University ofMaryland legal historian J. S. Cockburn has demonstrated that acquittals by both methods fell sharply and then rose again. Determining a causal reason for the change in acquittal rates is difficult, but Cockburn puts forth two possible explanations. First, there was an increasing rate of literacy in England during this time, and jurors may have been better acquainted with their rights as the 16th century drew to a close. Before this, judges may simply have not informed jurors that it was within their prerogative to lessen the severity of the charges. Also, Cockburn finds evidence that the number of repeat jurors, who had more experience in knowing the remedies available, increased as the propensity for rendering partial verdicts returned to their pre-16th century levels. Again, this may simply have been a coincidence, but it is certainly a curious one. 6 One other development of the late 16th century should be mentioned here. It was during this period that the practitioners of the common law began searching through the quasi-historical documents available to them in an effort to legitimize their claims before the bar. One reason for the rise of legal antiquarianism stems from the nature of the common law itself Since the common law evolved during the middle ages, and was based primarily on precedent within living memory, most of its decisions dealt with medieval matters: law between vassal and king, villein 60

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and baron. Sixteenth century society, however, was evolving so rapidly that many of the concepts enshrined within the coriunon law were already obsolete. A growing and increasingly wealthy middle class, combined with the advent of widespread private property, forced the :lawyers of the period to scour the records for analogous cases. This practice would have a great impact on the development of the modem common law system. Afterwards, the increasing use of ahistorical legal precedent would aid in the rapid expansion in complexity of case law, and would provide a foundation for more radical claims about the authority of the jury_? The seventeenth century would yield for the modem historian of the English legal system an enormous bounty. In the turbulent years which would produce the execution of a king, the establishment of a commonwealth, and the restoration of a royal family we are given competing perspectives on the common law and the jury system. Here, for the first time are arguments which ring true for present-day analyses of political philosophy; questions regarding the divine right of kings, the supremacy oflegislative power, the economic rights of men and the power balance between government and governed. In the field of legal philosophy, two arguments were put forward to question the legitimacy of monarchy and of the common law, and each relied on a very careful reading of history to buttress its conclusions. The first of these belongs to the historian and philosopher Sir Edward Coke, who published his first opinions qn the common law in 1600. Coke's version of history claimed that the common law tradition stretched back before the Norman conquest of 1066, and that the common law itself was nothing more than 61

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the accumulation ofwisdom over the agbs. The law was the embodiment of human I I reason given force solely by its continuetl existence; the law's legitimacy I strengthened by the simple passage of 8 The accumulated wisdom of the law, therefore, far surpassed the wisdom of any individual, regardless of his position. "Our days upon the eartq are but as a shadow in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many !successions of ages, by long and continual experience, fined and refined ... And therefore it is ... that no man ought to take it on himself to be wiser than the laws. n9 Furthermore, Coke argued, attempts to change the institutions of the law were generally more to the detriment of the society than to its benefit, because such changes acted against the gathering of history. But there is a paradox here. Coke expands on the ideas of his contemporaries who claim that the law evolves through the custom and precedent which are reflected in the opinions of judges. The unwritten law, therefore, is as important (or more so) as the statutes enacted by king and parliament. But if the law is not to be changed by the actions of any given man, how are the judges able to act? The paradox is resolved by the assumed ambiguity of the unwritten law -if a judge's ruling is upheld by other judges in later years, then the ruling was correct. The reasoning here is somewhat circular, but the overall argument was appealing to many groups active in the law; not surprisingly, judges found it particularly agreeable. 62

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Coke's notion of legal history as ihaving a force of its own was also an attractive idea to those parliamentariansiwho would behead king Charles later in the century. Since the king had made thb effort to place himself above the law, and had acted with increasing indifference both to the law as determined by judges and the statutes enacted by Parliament, he showed himself to be acting outside of custom. Coke's history argued that since the law preceded even the Normans, the new Scottish occupants of the throne had no right to dismiss it. Despite the underlying links between common law and jury, however, Coke spends little or no time overtly describing the role of the jury or its authority. As an element of English custom, of course, Coke's philosophy would argue that attempts to remove the jury as a part of.the legal process would run counter to progress. But Coke is more concerned with the larger framework of the English justice system. His reading ofhistory, however, would have a profound impact on another group which was growing in England at the time, and which made the most radical claims about the role of the jury the Levellers. As a distinct group, the Levellers originated in Cromwell's New Model Army in 164 7. Their initial aims dealt with issues common to private soldiers; payment, stationing on foreign soil without their consent, and the circumstances of their severance from the army. However, in their first major pamphlet, The Case of the Armie Truly Stated, they also called for the dissolution of Parliament and for changes to the structure of future Parliaments. They disliked especially the House ofLords, and argued for its abolition. The Levellers were the first majer movement in English history to seriously advocate what we today would consider democratic ideals. In The Foundations of 63

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Freedom, or an Agreement of the People (1649), they argued that government derived its authority from the people, that the powers in government should be separated from each other, and that individuals had inalienable rights beyond the authority of any governmental interference. Primarily, their aim was to alter the inequitable structures of society, or, failing that, to remove the statutory obstacles which prevented the commoner from having a fair chance in the system. One of their pamphlets, The Bloody Project, gives a concise overview of their aims, and it is worth a lengthy quotation here to illustrate their goals. It is also of interest to note how many of these ideas, which earned their author's arrest in 1648, are now embodied in the American Bill of Rights: Parliaments should have no power to punish any person for doing that which is not against a known declared Law, or to take away general property, or to force men to answer to questions against themselves, or to order tryals, or proceed by any other ways then by twelve sworn men. Who would not rejoyce to have such boundaries? Then, that the proceedings in Law might be rectified, and all Laws and the duty of Magistrates written and published in English: That the Excise might have a speedy end, and no taxes but by way of subsidies: That Trade might be free, and a less burthensome way for the maintenance of Ministers be established, then that of Tythes; and that work and necessaries be provided for all kind of poor people. Certainly for the obtaining of these things a man may justly adventure his life; all these being for a common good. 10 Although there were several strains ofLeveller thought, for the purposes of this study the most important was led by a man named John Lilburne, who was born to a family of modest means in 1615. Lilburne received the basic grammar school education before being made an apprentice in the cloth industry. His 64

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primary influences were, by his own accpunt, religious texts and histories, and his later political thought would be greatly ihrormed by the application of both of I I these subjects. By the time that the Levllers became a distinct and identifiable I group, Lilbume was no stranger to political and religious controversy. In 1637 he was jailed for printing anti-Anglican for which he was sentenced to flogging. The Leveller philosophy whicH he helped to develop based itself upon an assumed prehistoric community lacking the rigid hierarchy ofthe early-modem nation state. The basis for this belief lay in the Calvinist interpretation of scripture which holds that the ultimate relationship is the one between God and individual, and that all others obscure and subvert the divine order. Levellers believed that the reduction in the power of the monarch within the state was not only desirable, but necessary: "Upon a due search into the causes of God's heavy judgements, we find (a) that injustice and oppression, have been the common national sins, for which the Lord hath threatne,d woes, confusions and desolations, unto any People or Nation; Woe (saith God) to the oppressing City. Zeph. 3. 1. II 11 Lilbume agreed with Coke's view of the developing nature and immutability of the common law, but he differed with Coke on two important issues. First, he claimed that the jury preceded the organized judicial system. Second, in a radical departure from Coke, he claimed that the Normans had done everything within their power to subvert the role of the jury. How he might have squared this belief with the widely-known Magna Carta, which was written by 65

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I barons who were for the most part ofNbrman descent, and forced upon King I John, also of (partially) Norman and which guarantees (under certain circumstances) the right to trial by one's peers, is never made clear. In actuality, by the time of the Angevin kings the entire pusiness of who precisely the Normans were had become a troublesome question. King John was related to the Conqueror through his grandmother, but his mother Eleanor came from the region of Aquitainenot English, to be sure, but not Norman either. The very word "English" is problematic when applied to the middle ages, because it assumes a larger cultural and political community which was an alien concept to the time. Lilburne does not trouble himself about the murky distinctions which his labels implied. Although he never states it implicitly, it is probable that he believed the Magna Carta had been forced on John by local Englishmen, but even this by itself is a wild misreading of historical fact. Most likely, Lilburne believed in the eternal nature of the jury because he wanted to do so, since the jury was the one facet of the English legal tradition where the people were given a voice. It should be noted here that the Levellers were not the only people who felt that the common law had evolved into a: method for oppressing the lower classes. As many scholars, including respected British social historian Christopher Hill, have noted, admission to the Inns of Court was almost exclusively limited to the gentry, and there were a variety of contemporary observers who found the situation troubling. Lawyers themselves were widely disliked: as one proverb put it, "If you go to law for a nut, the lawyers will crack it, divide the shell between you, and chop up the kernal for themselves." 12 Dick the Butcher's line, "The first thing we do, let's kill all the lawyers," in Henry VI, Part 11, may have summed up 66

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the general attitude toward the bar duriqg the period when Shakespeare wrote it. The jury was a way of combatting the e*clusive nature of law which developed as I more and more aspects of commerce wJre bound to it, and the number oflawyers rose. The deep reservoir of spiritual latent in the Leveller view of law led I them to make profound judgments the usage of the jury in overturning those I I aspects of the law which perverted the divine ideal. For example, they strongly opposed the Tudor-Stuart statutes which made theft a capital offense. The law books of the Bible, such as Leviticus and Exodus, make clear the necessity for approximate parity in crime and punishment; hanging teenagers for theft of food, which happened in seventeenth century ngland, was clearly wrong. Many of the tracts published by the Levellers deal with this theme: "That it shall not be in their (the government's) power to make or continue any Law, for taking away any mans life, except for murther, or other the like hainous offences destructive to humane I Society." 13 The Levellers were by no rrieans the only people at the time who objected to the extreme punishments exacted from defendants whose crimes were comparatively minor, but they were the only group to claim the jury should be invoked as a hedge against such draconian measures. In his mature years, Lilburne had no difficulties in justifying the execution of the English monarch, whom he viewe'd as the latest in a long line of tyrannical Norman oppressors. However, he also disagreed with the Long Parliament which replaced Charles because its Members were inclined to, in his view, overstep their mandate by interceding in the prosecutiqn of criminals. This, under Lilburne's philosophy, made the Parliament no better than the king who they replaced. His 67

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I tracts on this subject in the late 1640's v?ould lead to his imprisonment for treason, and would lead to his most radical declaration as to the authority of the jury system. I In mounting his defense against the charges, Lilburne first exhausted the I I appeals to the bench which were derived from the fundamental tenets of Leveller thought: that the court, as a representative of an oppressive regime, had no right to try him; that the language in which the indictment against him was written (legal French) was unintelligible to the layman; and that his lack of familiarity with the proceedings demanded that he be represented by council paid for by the State. His requests were met by a bench clearly influenced by Coke's version of history. In denying Lilbume's appeals, Judge Lermin stated: "But you must know that the law ofEngland is the law of God ... It is the law that has been maintained by our ancestors, by the tried rules of reason, and the prime laws of nature; for it does not depend on statutes, or written and declared words or lines. If you refuse to hold up your hand (in plea), I you do willfully deprive yourseWofthe benefit of one of the main proceedings and customs of the laws of England. l4 Lilbume, once he finally agreed to enter a plea, did raise several salient points as to the nature of the factual evidence against him, but in a remarkable speech to the bench, he claimed, "The jury by law are not only judges of fact, but oflaw also: and you that call yourselves judges of the law, are no more but Norman intruders; and in deed and in truth, if the jury please, are no more but ciphers, to pronounce their verdict." 15 (italics mine). 68

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Here Lilburne claims that the judge has no real authority in the matter, and that the jury has the right to determine matters of law as well as matters of fact. I Considering the disrepute in which the jt;Iry had been held during the preceding I centuries of common law, this was an astounding and revolutionary idea. At this I I time in the evolution of political philosophy in England, the question of even judicial review ofParliamentary statutes: was by no means certain. To make the I case that the uneducated people who comprised most juries should be given this power with no formal training in legal precedent or procedure was radical in the extreme. The jury acquitted Lilburne of all charges. It is recorded that even the jailers who escorted him from the courthouse joined in the riotous cheers of the teeming crowd gathered outside. The most amazing chapter of this story would not be written for another twenty years. After the Restoration of t4e English king, Parliament once again passed into the hands of Anglicans in rooting out the radical strains of English Protestantism. One troublesome group to which it turned its attention was the Quakers, who refused to take oaths of allegiance and denied the hierarchical structure of the Anglican church. The Quakers, although a small minority, were an annoying one, and one which was gaining converts. Lilburne himselfwould become a Quaker before he died. In an effort to stamp out the Quakers, or at least stem the tide of conversion, Parliament passed the Conventicles Act (1664) declaring the public preaching of Quaker sermons as unlawful assembly and incitement to riot. Penalties under this statute consisted of seven years transportation or a fine of up to the fantastic sum of 100 pounds. The most famous 69

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i of the Quaker prosecutions under the A?t was lodged against William Penn, who was indicted for holding a public meeting on August 14, 1670. I Penn is an interesting figure in English history. His father was a highly I successful admiral in the navy, who extraordinary political acumen by I supporting first Cromwell and then Chafles, the man who would be restored to the English throne. He had very high for his son, who was installed in school at Oxford, in the hope that he would pursue a career in law. Young Willia.tl\ however, had other ideas. he returned from Oxford at the age of 18, he declared that he had become a Qilaker, a decision which promptly moved his father to banish him from the family home. Although he eventually reconciled with his father, he never renounced the Quaker faith, and he used a substantial part of the family fortune defending other Quakers jailed under the Conventicles Act. In the trial which followed his own indictment, Penn, echoing the sentiments ofLilbume, addressed the jurors, "The question is not whether I am guilty of this indictment, but whether this indictment be legal." Unlike the Lilbume case, however, Penn freely conceded the facts of the allegations against him, so when the jury refused to convict, there could be no doubt that they had done so I because they disagreed with the law. Following the custom of the day, the presiding judge fined four members of the jury for failing to convict in a case where guilt was manifest, and he threw them into jail until the fines were paid. The jury foreman, Edward Bushel, refused to pay, and languished for several months in Newgate prison. He brought a writ of hhbeas corpus on the grounds that the judge had no right to imprison him for his actions as a jury member. Bushel ultimately prevailed in 1770, and the judge who took the writ, Chief Justice Vaughn of the 70

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Court of Common Pleas, wrote a famous opinion which declared the coercion of jurors illegal. The ruling stood the test df time, and juries since then have had within them the assumed right to deny conviction based upon their own conscience. The concept of the jury as a! law-finding body had become a part of the I common law. 1 Sources, p 299. 2"b"d 1 1 Footnotes 3 Reports of John Spellman, 2: 106-107. 4 Thayer, J.B. A preliminary Treatise on Evidence at the Common Law (1898), 90-129. 5cockbum, J. S. "Twelve Silly Men? The Jury Trial at Assizes, 1560-1670," Twelve GoodMen and True, 158-159. 6 ibid., 170-173. 7 Gray, History of the Common Law, Introduction, xx. 8 Greene, p 63. 9 Coke, Seventh Reports, Calvin's Case.:From the edition edited by Thomas and Fraser (London, 1826). 10 Haller p 144. 71

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11ibid., p 106. 121. W. Ives, ed. The English Revolutioh 1600-1660, p. 115. 13Haller p 325 (XXI). 14State Trials, 4: 128990. Reprinted In Green, Verdict According to Conscience, p 171. 15ibid. p 1379. 72

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CHAPTER FIVE: CONCLUSION I The combination of the Lilburne' and Bushel cases represents a substantial milestone in the advancement of civillib,erties. In the first instance, a law duly I enacted by Parliament restricting the freedom of the press was in effect overturned by a group of private citizens. These citizens, moreover, had no formal legal training or expertise; they simply reacted in a rational manner to a law which they considered unjust. Before Lilburne, judges might have pushed juries to acquit in cases where the judge found the law distasteful. But in the English system at the time (and arguably, to an extent, today) judges served at the pleasure of the crown; if they had aspirations to higher position they needed to be cognizent of political forces which had the ability to destroy their careers. The Lilburne jurors, on the other hand, were under no such pressure. In this, the Levellers were correct the jury was the only place w}lere the individual had the ability to influence the greater wheels of government, by anything but the voice of his own conscience. The sole difficulty with this scheme was the potential for coercion by the bench, which was at times strongly interested in seeing particular verdicts. Bushel's Case eliminated this guaranteeing the freedom for juries to make decisions based purely on reason. This study began with a quote from Blackstone, and the reader is now I (hopefully) in a position to determine whether Blackstone was right. In a sense, he was. The jury did guarantee a measure of freedom to the Englishman. But 73

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Blackstone was also wrong when he claimed that the jury had "ever been looked I upon as the glory of the English law." The jury has been at various times favored i and despised, and its ability to seriously limpact legislation was a comparatively I recent development. Still, the jury's to act with independence, coming as late as it did, was a welcome addition to a ceuntry with no written constitution. Extra governmental review of statute, in whatever form it might have taken, was a very I substantial development on the long road to freedom. The final question remaining in any study such as this one is obvious what impact does this all have on the modern world? In a sense, it means nothing, and does nothing beyond providing the comfort of simply knowing. But legal history, particularly regarding a judicial system that relies on precedent, as the common law continues to do in both the United States and England, is not necessarily esoterica. The potential for infringement on individual liberties has never been as high as it is now. The electronic age which continues to make life easier has also brought forth a dizzying array of possibilities for the infringement of privacy. The Bill of Rights is a comforting document, but its interpretation always relies on judges who are part of a much larger structure of government. As the erosion of search and seizure laws in the 1980's demonstrated, we must never trust completely in the benevolent attitude of government toward individual freedom. If the jury has done anything worthwhile in history, it has allowed the individual a direct say in the laws which govern his or her fellows. dictates vigilance, and insofar as the jury continues to provide such vigilance,' it should not be lightly curtailed or abandoned. Through a better understanding of the role the jury has played in the advancement of liberty, it is hoped that citizens today will be more inclined to 74

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i protect the independence of the jury, despite the drawbacks which today bring its I utility into question. 75

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I ANNOTATED! BIBLIOGRAPHY I Artz, Frederick B., The Mind of the Middle Ages (New York: Alfred Knopf, 1958). This survey gives a fascinating o;verview of medieval thought, tracing the patterns of philosophy from lateiantiquity to the dawn of the renaissance. While the main focus is on Western Europe, their are also chapters on Byzantium and the Islamic world. Artz's prose is very accessible, as is the arrangement of the book. Aquinas, Thomas, Treatise on Law (Chicago: Henry Regnery Company (Gateway Edition), 1970). Aquinas' treatise on law is a must for anyone seriously interested in the medieval attitude toward law and its legitimacy in society. This particular treatise, taken from his Summa Theologica, attempts to demonstrate that laws are reflections of God's will only insofar as they are just. The underlying message is that there is a higher law than the laws of man, and that unjust laws are illegitimate. Aquinas was not the first to make such a claim, but his spin on the subject is another milestone on the road to individual liberty. The reading isnot simple, but it is rewarding. Barlow, Frank, The Feudal Kingdom oj;England: 1042-1216, fourth ed. (London: Longman Press, 1988). An outstanding exploration of the changes wrought by the Normans in their conquest of England. The book covers the period from the reign of Edward the Confessor to the end of the reign of John, including the conquest, the anarchy, the Angevin empire and the signing ofMagna Carta. His discussion of the solidification of the common law under Henry TI is exceptionally good. Barlow's story-like style masks a work of excellent scholarship and presents history in a very readable fashion. 76

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I Bigelow, Melville Madison, History of frocedure in England (Boston: Little, Brown & Co., 1880). 1 A dated but still useful edition cbvering the evolution of legal procedures at the common law from 1066-12q4. Some background into the pre-Norman English legal structures, but primarily useful as a comprehensive overview of early Norman law. I Bede, The Ecclesiastical History of the l(vtiddle Ages, Judith McLure and Roger Collins, eds., Bertram Colgrave, trans. (New York, Oxford University Press, 1994). I Bede's History, while biased, is bne of the most comprehensive early I chronicles of England, and provides information for students of any aspect I of English history during the early middle ages. Colgrave's translation is I readable, and the index to this edition is extremely well done. I Bellamy, J.G., The Law of Treason in the Later Middle Ages (Cambridge (England): Cambridge University Press,11970). Any student of English legal history needs some grounding in the law of treason, as it was one of the fewi medieval laws covered by statute, and much of what was then considerbd treason came to be known as the modern conception of felony. exhaustive study gives this grounding, and then some. An e*cellent resource which includes a fine chapter on the origin of the English State Trial. Blackstone, William, Commentaries on the Laws of England, vol. 3 (London, 1768). : Like Maitland in the 19th centurY, Blackstone's 18th century Commentaries is one of the finest books ever produced on the history and usage of the English common law. Even today, more than two centuries later, the prose still reads well, and the author's insights into the law and the English people are valuable. A wonderful accomplishment and cornerstone of the legal historian's library. I Brooke, Christopher, The Twelfth Renaissance (London: Harcourt Brace & World, Inc., 1969). 1 77

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I I I This illustrated volume gives a fair overview of the Haskins' thesis, and then examines several medieval 'friters, including Abaelard, Heloise, John of Salisbury, Gratian, and Geoffrey of Monmouth. The reading is interesting and informative, but brief I I I Carre, Meyrick H., Realists and Nominalists (London: Oxford University Press, I 1961). Although at times somewhat this informative volume gives an excellent analysis of the changing philosophical trends during the middle ages, by studying the writings Augustine, Abaelard, Aquinas, and Ockham. 1 --------,The Riverside Chaucer, 3rd Larry D. Benson, ed. (Boston: Houghton Mifflin Company, 1987). No bibliography dealing with England would be complete without reference to Chaucer's Tales. The Summoner's and Pardoner's I Tales are especially important fQr seeing the Church/State conflict which informed much of the transfer of power from the ecclesiastical courts to the laic. This Riverside edition is exceptionally good, with copious notes and an excellent glossary. I Cheney, Christopher R., The English CJ,urch and its Laws (London: Variorum Reprints, 1982). A specialized sourcebook of Church documents from the 12th to 14th centuries in England. Many of entries in this slim volume are somewhat obscure, and they are not offered in translation, but the commentaries on the documents are worthwhile rJading. Cockburn, J. S., and Green, T. A, eds., iTwelve Good Men and True; The Criminal Trial Jury in England, 1200-iBOO (Princeton: Princeton University Press, 1988). This superb anthology, with articles from some of the finest names in the study ofEnglish legal history, many aspects ofthe evolution ofthe criminal trial jury. Although the 6onclusions reached in the entries are not always in agreement with each Jther, the articles are all very well done and 78

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One ofthe 'nest books available on the history ofthe jury. I Frank, Joseph, The Levellers: A Histori1 of the Writings of Three 17th-Century Social Democrats" John Lilbume, Richprd Overton, William Walwyn (New York: Russell & Russell, 1955). A fairly comprehensive examinahon of the writings of three famous Levellers, this book is at once aA overview and an in-depth analysis. I Gies, Joseph and Frances, Life in a Medieval Village (New York: Harper and Row, 1991). The finest of husband-and-wife team Gies' Life series for students interested in the evolution ofme:dieval English law. The chapter on village justice is well-informed and enjoyable reading. The bibliography to this book is also quite valuable for providing direction for further study. Green, Thomas Andrew, Verdict Accorc/ing to Conscience (Chicago: University of Chicago Press, 1985). I Professor Green's study of the English trial jury's development represents the culmination of a lifetime's on the subject. The book attempts to show how the development of jury guaranteed a degree of local control over the criminal justice system, !and, for the most part, succeeds brilliantly. An indispensable volume for anyone interested in the history of the jury system. Haller, William, and Davies, Godfrey, eds., The Leveller Tracts; 1647-1653 (Gloucester (Mass.): Peter Smith, 1964). This exhaustive compilation writings during the mid 17th century is an invaluable sourcebqok for anyone interested in this early movement of Social Democrats.lThe introduction is very good, and the modern reader is often struck by how familiar the aims of the Levellers sound today. I I Haskins, Charles Homer, The Normans fn the European History (New York: Norton, 1915). 79

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This book is an excellent, although brief, overview of the Normans' movement through Europe. whlle not limited to England, the chapters dealing with the Normans in Nohnandy and Britain contain some choice nuggets of information on the of the English common law and the roots of the jury system. Haskins, Charles Homer, The Renaissance of the Twelfth Century (New York: Meridian Books, 1960). While controversial, Haskins' 1927 masterpiece still makes excellent reading for the serious student of the medieval world. Haskins' thesis claims that the twelfth century saw a revival of the arts and sciences, and a renewed interest in the Greek and Latin classics, which preceded the Italian renaissance by several centuries. The scholarship is superb, the writing sharp, and the conclusions intriguing. A fine work. Herrup, Cynthia B., "Law and Morality in 17th-Century England." Past and Present, 101, 102-123. Herrup's superb and thought-provoking article provides evidence that the leniency shown by jurors during the Stuart period was related to the pervasive protestant attitude in England. Hollister, C. Warren, ed. The Twelfth-Century Renaissance (New York: John Wiley and Sons, 1969). The late Dr. Hollister designed this collection of essays as an adjunct to University history classes, and its entries provide fine information on Charles Homer Haskins' original:thesis of change during the 12th century, and also includes papers on the Humanities and Philosophy in Europe during the period in study. Romans, George Caspar, English Villagers ofthe 13th Century (New York: Russell & Russell, 1960). Originally published in 1941, Dr .. Romans' lengthy volume is still excellent reading for anyone interested in medieval English life at the village level. The style is extremely engaging, and the topics presented are fascinating. 80

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I Hurnard, Naomi, The King's PardonfJ Homicide Before A.D. 1307 (London: Oxford University Press, 1969). Dr. Hurnard's outstanding work explores, as the title would suggest, how the King's Pardon developed in Medieval England, demonstrating that leniency in capital cases was for lmany reasons advantageous to both the crown and the populace. The b9ok is fairly exhaustive, and is probably the finest available on the subject. Excellent insights into the nature of English I society as reflected through the law during this period. Ives, E.W., ed., The English Revolution; 1600-1660 (New York: Barnes and Noble, Inc., 1969). Although this collection of essays covers a variety of topics relating to the Puritan Revolution, and each is well done, it is especially interesting to legal historians for its papers oniSocial Change and the Law, by lves, and the Levellers, by Brian Manning! lves also writes an excellent overview of the issues in the war. Jenks, Edward, Law and Politics in the Middle Ages (New York: Burt Franklin Press, 1970). A fine history of the law in during the high middle ages, first published in 1897. If not as staggering an accomplishment as Pollack and Maitland's History of English Ltlw, Jenks' book is in some ways more accessible to the reader because its organization is more logical and its index easier to use. A bit dated, but still well-worth a look. I Keefe, Thomas K., Feudal Assessments land the Political Community under Henry II and His Sons (Berkeley: University of California Press, 1983). While not directly relevant to study of English law per se, this fine volume, and the statistical evide*ce which it provides, helps to complete the picture ofEnglish nobility dl!ring the crucial years when control of local courts was wrested by Henry II from the aristocracy. Knowles, David, The Evolution of Medieval Thought (Baltimore: Helicon Press, 1962). I 81

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I A surprisingly readable history Jf the philosophy of the middle ages. In his preface to the book, Knowles admits that he is only touching on the major currents of philosophy during thb period under examination, but for all of that it still packs a surprising of material into what is, for the genre, a surprisingly accessible form. 1 Langland, William, The Vision of Piers Plowman (London: Guernsey Press, 1987). I Langland's brilliant alliterative pbem is essential reading for anyone interested in virtually any aspect! of English Society, including law, during the high middle ages. This Everx,man edition provides a complete and unedited copy of the so-called "B" text, cast into modem lettering but in the original language. It also coritains an excellent commentary on the I poem and a fine glossary for tho'se interested in translating the original manuscript into modem English.: Leff, Gordon, Medieval Thought; Saint1Augustine to Ockham (Baltimore: Penguin Books, 1958). Like many works on the history bf philosophy, this is a book which seems longer than it actually is. Leff examines the changing patterns of medieval thought, focussing primarily on and skepticism. Although difficult reading, the book perseverance with a solid grounding in the philosophical arguments whibh formed the backdrop for many intellectual developments of the htedieval world, including the evolution of law. Pollack, Frederick, and Maitland, F.W., !The History of English Law (Cambridge (England): Cambridge University Press, 1968). First published more than a ago, this comprehensive study, like Blackstone's Commentaries on tfle Laws of England, has a serious claim to be the finest book on the common law ever written. The prose is beautiful, and in its 1200 pages virtually e\fery aspect of English law is examined. A must for any serious student history. I I Rodes, Robert E. Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (Notr Dame: Notre Dame University Press, 1977). 82

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I A fine overview of the structures of the Roman Catholic Church in England, covering the Anglo-Saxon period to the 15th Century. Topics include the philosophy atltd application of Canon Law, Diocesan and Parish administration, and the eJolving Papacy. The book also gives good background into how the church structures evolved in England, and offers insights into how the ecclesiastical courts functioned. I Samaha, Joel B., "Hanging for Felony: The Rule of Law in Elizabethan Colchester." The Historical Journal, 21!, 4 (1978), 763-782. Dr. Samaha's article examines a Q-year period in Colchester, England, during the 16th century, and tries to show why the number of hangings for felony was so low. He argues the legal system itself, with so many interlocking layers ofprocedure;necessarily in agreement required to carry out capital punishment, kept the, number ofhangings low, and that this state of affairs was desirable to crown. A very interesting article. Stenton, Doris Mary, English Society in the Early Middle Ages (Middlesex: Penguin Books, 1951). Lady Stenton's book on English social structure is well researched and well thought-out. Of interest to legal :historians is the section dealing with the aristocracy, in which the author argues that the jury system grew out of the system ofknights in the hundred courts. The rest ofthe work is also I interesting, and provides the reader an enjoyable introduction into medieval civilization in Britain. Stenton, Frank, The First Century of Feudalism: 1066-1166 (Oxford: The Clarendon Press, 1961). This outstanding volume was originally prepared from the Ford lecture series at Oxford in 1929. The version cited makes use of new evidence. On the whole, it examines specifically the changing relationships between the king and his vassals' and among the barons in the first century of the Norman conquest. For legal history, of special interest is the chapter dealing with the thegns and knights, as it examines the change in local judicial administration. 83

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Stephenson, Carl, and Marcham, eds. and trans. Sources of English Constitutional History: A Selection of J?ocuments from AD 660 to the Present (New York: Harper and Row, 1937). 1 An outstanding sourcebook for English Constitutional documents in translation. Although many of the documents are edited for length, the relevant portions always seem te be included, and the sheer number of documents makes this work 84