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Twelve Good Men and True
The Criminal Trial Jury in England, 1200â"1800
By J. S. Cockburn, Thomas A. Green PRINCETON UNIVERSITY PRESS
Copyright © 1988 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05511-4
CHAPTER 1
The Early-Thirteenth-Century Criminal Jury
Roger D. Groot
The most important event in the history of the criminal jury was the abolition of the ordeal by edict of the Roman church in 1215. That act removed the most common method of proof from the English criminal process and so necessitated a search for its successor. The trial jury was that successor.
My contribution to this volume is about the decision to use a jury verdict in place of the ordeal and about the problems faced and the solutions found in implementing that decision. Because the post-1215 events depended so heavily and directly upon the jury forms extant before the abolition of the ordeal, I begin with them. But because that material is examined in detail elsewhere, the treatment is cursory.
I break the succeeding period into three parts: the 1218–19 phase of the 1218–22 eyre, the 1219–21 interim, and the 1221–22 phase of the 1218–22 eyre. The first phase of the eyre is distinct because it was conducted without the ordeal and, I believe, without a true trial jury. But that phase is important to jury development because it used, for the first time, quasi-convicting verdicts as a basis for sanctions. These quasi-convicting verdicts, which demonstrated a new, stronger attitude about public harm from criminality, were one more step toward the convicting jury.
The true trial jury first appears at Westminster during the 1219–21 interim, specifically at the end of Hilary term 1220. It began in approvers' appeals, a specialized kind of prosecution with a specialized non-convicting jury procedure, the inquest de fidelitate. The first convicting juries grew out of this inquest. At this stage the convicting jury was limited by specialization and by the fact that the court at Westminster did not have juries readily available.
The first opportunity to use the new trial jury in general criminal prosecutions, and in courts with juries at hand, came in the second phase of the eyre of 1218–22. As that phase of the eyre moved from one session to the next, the justices, the juries, and the defendants, whose interests obviously conflicted, explored the limits of the new system. This caused its application at each session to vary from the last. Publicly prosecuted defendants were tried by jury at Worcester, and the trial jury was extended to appeals at Gloucester. But this extension of the final-verdict jury to appeals was an addition to procedure; it did not replace the older, non-convicting jury verdicts that had long been part of the process of appeals. By the end of the Gloucester session, the trial jury had developed the form it would have as long as the eyre system lasted: twelve hundredors and four vills. But the trial jury did not work well at Gloucester, because defendants regularly refused to put themselves upon it.
The judicial response, at Warwick, was an experiment with forced juries of the hundredors plus twenty-four knights. Because the jury might have been abandoned at that point, the decision to continue with some form of it indicates the depth of the commitment to the concept of lay judging. As a result of the Warwick experiment, defendants again began to accept trial by their communities — the hundredors and vills. This placed the power of judgment back in the hands of the visne (neighborhood) — commoners who could judge both the crime and the accused.
* * *
Before 1215
In the mid twelfth century, most criminal prosecutions were privately initiated. In their simplest form, these prosecutions — appeals — began with a formal complaint by the injured party. The accused — the appellee — denied the accusation. Proof was made by judicial combat between the appellor and the appellee.
The form of publicly initiated prosecutions at this time is still debated. Some data suggest that a form of communal accusation, a prehistoric jury, initiated prosecution of crimes not pursued by appeal. More recent scholarship, however, argues strongly for the existence of prosecution initiated upon the complaint of a public official. Whichever was the case, Henry II reformed the public prosecution system in 1166, and the criminal jury can be traced from that date. King Henry ordained, in the Assize of Clarendon, that twelve lawful men of each hundred, and four of each vill, should report to the royal justices or sheriffs those persons reputed to have committed certain serious crimes. The reported persons were to make proof by ordeal. Those who failed in their proof were to be mutilated; those who succeeded were nonetheless required to abjure England if the community reported most evilly about them.
We know that this assize was applied and that it was strengthened by the Assize of Northampton in 1176, but we know very little about the actual mechanics of its application. Glanvill, writing in the 1180s, discussed criminal prosecutions primarily in terms of appeals. To the extent that he discussed public prosecution, he seems to describe a variant of the Assizes of Clarendon and Northampton. He implies that the initial report of the jurors was scrutinized by the justices for substance so that the jurors were required first to report all of those reputed to be criminals and then to designate which of them the jurors themselves suspected. The latter group was required to make proof by ordeal; the remainder were probably assigned an easier proof, compurgation, but this is not clear.
From 1194 on we have an unbroken, although quite incomplete, set of judicial records. These records, because they were made contemporaneously with the hearing of the case, yield a clearer picture of procedure than do the earlier materials. At this time, felony prosecution was largely administered by the eyre, a periodic visitation of each county by the royal justices. The sheriff was notified that an eyre was imminent, and he was responsible for insuring that each hundred in his county was represented by twelve leading men and that each vill was represented by its reeve and four other men. When the justices arrived the hundred jurors were apprised of the articles of the eyre — the list of matters about which they were required to report to the justices. Felonies were always included.
The hundred jurors reported felonies in their hundred by delivering to the justices their veredicto, their responses to the articles. The veredicta reported felonies in two ways: a report of the felony itself, a presentment, or a report that an appeal, a private prosecution, had been made. A presentment that could actually be tried — one in which the hundred jury had reported a felony and named a defendant, and the defendant was present — could proceed directly to condemnation if the suspect had confessed before local officials or if the suspect was manifestly guilty.
In all other cases the accused could and did deny. Proof, if there was to be any, would be by ordeal. But not all presented persons were awarded an ordeal. There are many instances of hundred juries presenting someone and then stating that the person was "not suspected"; there was no ordeal in such cases:
Gilbert of Sausthorpe, accused of [burglary], offers himself and is not suspected by the jurors and therefore let him be under pledges.
An ordeal was adjudged in two instances: first, when the hundred jurors alone brought forth supporting evidence:
Andrew of Burwarton is suspected by the jurors of the death of a certain Hervey because he concealed himself on account of that death, and therefore let him purge himself by the judgment of water.
and second, when the hundred jurors accused and were joined by four vills in suspecting the accused:
William de Lusby and Robert Fitebant, accused of [burglary], are suspected of it by the jurors and the four neighboring vills. And therefore let William purge himself by the water; Robert is a clerk and a deacon....
The jurors' statement about Andrew's concealment may have been spontaneously reported or may have been discovered when the justices, after accusation and suspicion, inquired into the basis of the suspicion. If these inquiries did not produce supporting evidence, the four vills were consulted. If they joined the hundred jurors in suspecting the defendant, he, like William de Lusby, went to the ordeal. If they did not join in the hundredors' suspicion, the defendant avoided the ordeal.
The ability of the jurors to accuse but not suspect, illustrated by the first example, is probably derived from the Assizes of Clarendon and Northampton. A duty to report crime can be and was rigorously enforced, but the assizes had also reinforced the principle that communal statements about defendants were important. In particular, one cleared by the ordeal was to abjure if his evil reputation was attested by lawful men. It is implicit that such a person avoided abjuration if lawful men declared favorably about him. Between the assizes and the early thirteenth century, jurors apparently had learned that a favorable statement could precede the judgment awarding the ordeal. By the early 1200s, jurors could fully perform their reporting function, thus avoiding amercement, and yet spare the accused the ordeal; if hundredors were unwilling to do so, the vills still could. In fact, the favorable statement, "not suspected," from either source did more. Abjuration after purgation, introduced in the assizes, had become part of the general practice, so when a jury returned an accused as not suspected, he was spared both the ordeal and abjuration.
In sum, only when a hundred jury suspected and either produced extrinsic evidence or was joined in suspicion by the four vills did the defendant go to an ordeal. So by 1215 presenting juries were more than simply accusing juries. After accusing, these jurors decided which defendants should make proof by ordeal and which should not. This screening of defendants, ostensibly a statement about guilt or innocence, was just that when the hundredors produced evidence. When they did not but were joined in suspicion by the vills, the verdict was probably as much a statement about the defendant's character — about the likelihood that he would do what he was accused of — as about factual guilt or innocence. Nonetheless, an adverse verdict was medial only; it sent the defendant to the ordeal but did not convict.
While presenting juries were acquiring this adjudicatory power, there was a simultaneous jury development in private criminal prosecutions — appeals. An appeal was an accusation made by the victim against the alleged perpetrator. The paradigmatic proof in an appeal was combat between the appellor and the appellee, but the ordeal was appropriate if either party was unable to fight. When an appellor formally pleaded his appeal in the county court, the appellee was attached to reappear before the itinerant royal justices. Generally the appeal would lie dormant in the county until an eyre, but occasionally appellors would remove appeals into the central royal courts. When an appeal was so removed, and the parties were present, a judgment awarding proof — combat or ordeal — could be granted. To avoid such a judgment, the appellee had somehow to challenge the appeal. From the time of the earliest records, an appellee could plead that the appeal had been made from hate and spite (de odio et atia) and buy a writ to have a jury decide the issue. Upon plea and payment, the case could be remanded to await an eyre, or the sheriff could be ordered to bring a jury to Westminster or to hold the inquest and make a return. In this way an appellee could always defer a judgment awarding physical proof. A de odio verdict favorable to the appellee forestalled a judgment awarding proof; a verdict unfavorable to the appellee permitted that judgment. If the appeal was not removed to the central courts, it would be heard at the next eyre. At the eyre the appellee could plead the de odio issue and purchase a jury verdict. But at the eyre a jury was immediately available. The substantive possibilities upon a plea de odio were the same, but the outcome was immediate rather than deferred.
The de odio issue ostensibly asked whether the appeal was motivated by hate and spite, but it actually raised the essential question of guilt or innocence. Generally the issue was framed alternatively: Is this appeal made from hate and spite or from just cause? For example, in 1208 a central court writ ordered the sheriff of Sussex to inquire whether the appellee was in Chichester at the time of the crime (alibi), or the appeal was made from hate over certain land, or the appellee was guilty. The issue framed for an eyre jury followed the same pattern. At Lincoln in 1202 an appellee purchased an inquest to inquire whether he was appealed from just cause or from hate and spite; the jury answered that he was appealed from hate and spite and unjustly. Since the primary question in these de odio inquests, whether by writ or at eyre, was about guilt or innocence, a jury returning a verdict unfavorable to the appellee was saying that the crime had (probably) occurred and that the appellee was (probably) the perpetrator. These de odio juries screened defendants in the same way that the presenting juries did. Of course, an unfavorable de odio verdict was medial only, the appellee was still adjudged physical proof.
This is not the entire story of the pre-1215 jury, but it does cover the two major forms: the presenting jury reporting accusations and the de odio jury, whether specially formed pursuant to writ or at eyre. Every presented person, and every appellee who sought a jury, was spared physical proof until a jury had viewed the case and found against him. There are also scattered cases in which appellees who did not seek juries were put upon them by justices. The feature distinguishing them from apparently identical cases is not obvious, but at least these cases tell us that the justices had power sua sponte to ask for jury verdicts. Of course, these appellees generally would have gone to the ordeal if there had been no jury referral. The worst outcome of the referral was an unfavorable verdict, and that would simply place the appellee in his prior position. But there are instances of jury referral that increased the appellee's risk. Some appeals were concorded and some retracted; most often the appellor simply failed to appear at eyre to prosecute. Concords and retractions ordinarily acquitted the appellee, while failures to prosecute continued cases indefinitely. Nullified appeals were similar. Infrequently, for some reason not discernible from the cases, an appeal not actively prosecuted or a nullified appeal was referred to a jury. The starkest of these unsought inquest cases are those in which, in the usual course, the appellee would have been acquitted. When the justices referred such cases to the jury, the prosecution was exceeding its usual bounds. Of course, while these juries could almost acquit, they could not convict.
* * *
The 1218–19 Phase
Judicial activity virtually ceased in 1214, and it resumed late in 1217 after the accession of Henry III. In the interim, Magna Carta had been granted, rescinded, and reissued. In addition, the Fourth Lateran Council had in 1215 forbidden the ordeal. There was little in Magna Carta that directly affected the development of the jury. The edict of the Church, however, meant that the only criminal cases that could go to conviction were instances of confession, manifest criminality, and appeals between able-bodied males.
In late 1218a major nationwide eyre commenced. Instructions were sent to the justices during January 1219. These instructions, noting that the ordeal had been abolished and that an appropriate judicial response had not been determined before the eyre, provided that those accused of major crimes about which there was strong suspicion of guilt should be committed to prison for safekeeping; that those accused of medium crimes, for which the ordeal would have been appropriate, should be permitted to abjure the realm; and that those accused of minor crimes about which there was no strong suspicion should be placed under good-conduct pledges. Other cases were specifically left to the discretion of the justices.
(Continues...)
Excerpted from Twelve Good Men and True by J. S. Cockburn, Thomas A. Green. Copyright © 1988 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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