History of Trial by Jury

A typical modern day 12 person Jury.

Trial by Jury has traditionally been seen as the cornerstone of democracy and the rule of law in this country. This led Lord Devlin to dramatically comment in 1956 that trial by jury is “the lamp which shows that freedom lives”. However, this cornerstone has only been cemented for a few centuries. The origins of Trial by Jury, and more generally the swearing of 12 men to account for facts, goes back much further and even pre-dates the Norman conquest of 1066.

A jury is a body of people that are sworn to account for facts and to furnish courts of law with true and honest information. This idea was not unique to England and was used across ancient empires and within England and Normandy long before the Norman conquest.

At this early time, these bodies were called inquests. Its long history is attributable to the fact that without it, there was no efficient way to collect information about the number of livestock in an area or who owned which piece of land and where the boundary of that land was.

An inquest could also be held where 12 knights were summoned to provide information as to suspected criminals in their area. This process became known as the Grand Jury, as it was more general. The Petty Jury was a jury within a specific trial and will be discussed below.

The Petty Jury made its first proper appearance within 12th Century criminal cases. It became more prominent due to the fact that the Church disallowed the practice in 1215 of the Water and Fire ordeals as methods of proving guilt or innocence. Trial by Battle remained at this point but was already out of favour and the Jury was primed and ready to take over. My blog post on the ordeals can be found here.

Following on from this in the later 1200s and 1300s, Trial by Jury became significantly more common in all trials of wrongdoing in the courts. Furthermore, there was also discussion as to the nature of the Jury. Were the jurors to be treated like witnesses and individually examined or treated as a collective body? Case law in the 14th and 15th Century cemented the idea of the Jury as a collective institution.

To prevent improper influences and to preserve the honesty of their information, it quickly became very serious to communicate with a juror once they were sworn. The Jury was sequestered away from the influence of outside items or information. It was taken to the extreme and in a case of the late 1500s, 4 jurors were fined for possessing raisins and plums while sworn. It makes the modern day s.8 of the Contempt of Court Act 1981, which protects the confidentiality of Juries, seem mild.

In early Trial by Jury cases, if the jurors were not unanimous the judge could step in to decide one way or another. By 1367, case law strongly affirmed that unanimous verdicts were a necessity. This has eventually over the centuries gone back to majority verdicts being officially allowed, with the most recent law being contained in s.17 of the Juries Act 1974.

The state of affairs outlined above lasted for several centuries. There were a string of Juries Acts, prominent among them: 1825, 1850, 1949, and 1974, the latter being the most recent and currently in force edition. The general thrust of this string of legislation was to codify and make amendments to the law surrounding Juries which until that point was mainly contained within case law.

Early English Law – Court, Trial and Proof

An open-air court in progress.

The early English courts and their system of administering justice bare no real resemblance to our modern day equivalents, they are truly antiquities of legal history.

A 12th Century court would have been held in the open-air and upon the most significant hill in the area. A local man of power, such as the Sheriff, would have presided over the court but the largest local landowners were bound by custom to attend and be the ‘doomsmen’ (judgment-men) of the court.

The sheriff would take care of the procedures of the court and pronounce the overall sentence but the doomsmen were the ones to find the appropriate doom to fit the facts.

If the two litigants contradicted each other in fact then there was yet no capacity for the holding of cross-examinations and judging the worth of a witness statement. In these circumstances, recourse would be to the supernatural, to prove ‘by God’ that one or the other was correct. This took three forms; (1) oath and oath-helpers, (2) ordeal and, after 1066, (3) trial by battle.

(1) If a man was accused of some offence, he would be required to swear on his word, his oath, the truth (typically that he was innocent). Rarely was his single oath allowed to clear him of the offence. Usually, a number of oath-helpers were needed.

These were people that could give witness to the character of the accused and claim that his oath was ‘clean’. A great deal of early legal procedure focuses on complex mathematical calculations as to the number of oath-helpers needed and the quality of them.

It seems, at first glance, that you could just call a bunch of friends to acquit you but there were strict ceremonial rules and phrases that had to be followed for oath-helpers. One mispronunciation or stutter and the accused’s adversary would win.

(2) If the charge was criminal, the accused might not be able to use his oath and oath-helpers. The ordeal was more explicitly judgment by God and came in the forms of Water and Fire. A man was lowered into a pit of water that had been blessed to accept innocent people but reject the guilty. If you sunk in the water, you were fished out and innocent but if you floated, you were guilty.

For Fire a white hot iron rod was placed in a man’s hand and he was told to take three paces. His hand would then be bandaged and looked at three days later. If the wound was clean, he was innocent, if it had fouled, he was guilty.

(3) Again, if a criminal accusation was made, the accused and accuser might have to fight in a battle. As long as they were not maimed, too young or too old, they could fight.

If the claim was regarding land then the litigants could choose a champion each to fight in their names. This was meant to be one of their people but in reality the hiring of professional champions became commonplace. If not regarding land, then they must fight in person.

The accuser has an entire day to prove his claim; not by killing the accused but making him give in. If he cannot do so within the day then his claim is false and he has lied to the court.

These forms of trial and proof were slowly frowned upon and taken out of the administration of justice. The ordeals required participation by priests and the Church made the decision to stop ordeals in 1215.

This did not affect trial by battle but in a couple of decades, this had fallen out of favour as well. Interestingly, trial by battle was not officially abolished until 1818 when a litigant threw down a gauntlet in anger in front of the judges of the King’s bench.

The oath-helpers changed their name to become compurgators and were more readily local people. This is one of the foundations of the development of trial by jury, which will be looked at in detail in a later post.