The Medieval Origins of Trial by Jury

Leonard W. Levy

Leonard W. Levy is the Pulitzer Prize–winning author of Origins of the Fifth Amendment: The Right Against Self-Incrimination, Original Intent and the Framers' Constitution, and numerous other works on constitutional history. He was formerly the Earl Warren Professor of Constitutional History at Brandeis University and a professor of humanities and history at the Claremont Graduate School. In the section below he describes the origins of the right to trial by jury in the Middle Ages. Surprisingly for this bulwark of individual liberty, trial by jury grew out of a desire by English kings, particularly Henry II, to assert their authority and protect their prerogatives. In England, the royal "inquest" slowly began to replace primitive trial methods, such as trial by ordeal or battle, which were common throughout Europe in the Dark Ages. Eventually, the peculiar forms of the inquest, including the formal presentment of charges and the questioning of a representative group, grew into the grand and petty juries that exist today. Originally a group of witnesses, chosen because of their familiarity with the defendant or the matter under dispute, the jurors gradually became the impartial arbiters of truth.

Source

Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury. Chicago: Ivan R. Dee, 1999. Copyright © 1999 by Leonard W. Levy. Reproduced by permission of the publisher.

Primary Source Text

Trial by jury is the mainstay of the accusatorial system of criminal justice. Accusatorial procedure antedated the Norman Conquest [of England in 1066]. From the early Middle Ages, civil and ecclesiastical authorities throughout western Europe had employed substantially similar accusatorial procedures. The latter half of the twelfth century and the first half of the thirteenth was a period of transition that witnessed profound transformations of procedure. Old forms of trial, once universal, broke down and newer ones emerged. In England the new forms, presentment (the formal statement of an offense, presented to authority) and trial by jury, preserved the accusatorial character of the old; on the Continent and in the ecclesiastical courts, inquisitorial procedure was triumphant. By no coincidence, the liberties of the subject were to thrive in England and be throttled on the Continent.

Community courts and community justice prevailed in England at the time of the Norman Conquest. The legal system was ritualistic, dependent upon oaths at most stages of litigation, and permeated by both religious and superstitious notions. Legal concepts were so primitive that no distinction existed between civil and criminal cases or between secular and ecclesiastical cases. Proceedings were oral, very personal, and highly confrontative. Juries were unknown. One party publicly "appealed," or accused, the other in front of a community meeting at which the presence of both was obligatory. Absence meant risking fines and outlawry. After the preliminary statements of the parties, the court rendered judgment, not on the merits of the issue or the question of guilt or innocence, but on the manner by which it should be resolved. Judgment, in other words, preceded trial, because it was a decision on what form the trial should take. It might be by compurgation [sworn character witnesses], by ordeal, or, after the Norman Conquest, by battle. Excepting trial by battle, only one party was tried or, more accurately, was put to his "proof." Proof being regarded as an advantage, it was usually awarded to the accused party; in effect, he had the privilege of proving his own case.

Trial by exculpatory oath and compurgation, also called canonical purgation, consisted of a sworn statement to the truth of one's claim or denial, supported by the oaths of a certain number of fellow swearers. Presumably they would not endanger their immortal souls by the sacrilege of false swearing. Originally the oath-helpers swore from their own knowledge to the truth of the party's claim. Later they became little more than character witnesses, swearing only to their belief that his oath was trustworthy. If he rounded up the requisite number of compurgators and the cumbrous swearing in very exact form proceeded without a mistake, he won his case. A mistake "burst" the oath, proving guilt.

Ordeals were usually reserved for more serious crimes, for persons of bad reputation, for peasants, or for those caught with stolen goods. As an invocation of immediate divine judgment, ordeals were consecrated by the church and shrouded with solemn religious mystery. The accused underwent a physical trial in which he called upon God to witness his innocence by putting a miraculous sign upon his body. Cold water, boiling water, and hot iron were the principal ordeals, all of which the clergy administered. In the ordeal of cold water, the accused was trussed up and cast into a pool to see whether he would sink or float. On the theory that water which had been sanctified by a priest would receive an innocent person but reject the guilty, innocence was proved by sinking—and with luck a quick retrieval; guilt was proved by floating. In the other ordeals, one had to plunge his hand into a cauldron of boiling water or carry a red-hot piece of iron for a certain distance, in the hope that three days later, when the bandages were removed, a priest would find a "clean" wound, one that was healing free of infection. How deeply one plunged his arm into the water, how heavy the iron or great the distance it was carried, depended mainly on the gravity of the charge.

The Normans brought to England still another ordeal, trial by battle, paradigm of the adversary system, which gave to the legal concept of "defense" or "defendant" a physical meaning. Trial by battle was a savage yet sacred method of proof which was also thought to involve divine intercession on behalf of the righteous. Rather than let a wrongdoer triumph, God would presumably strengthen the arms of the party who had sworn truly to the justice of his cause. Right, not might, would therefore conquer. Trial by battle was originally available for the settlement of all disputes, from debt and ownership to robbery and rape, but eventually was restricted to cases of serious crime. In this particular form of proof there was a significant exception to the oral character of the old procedures. The accusation leading to battle, technically known as an "appeal of felony," had to be written, and nothing but the most exact form, giving full particulars of the alleged crime, would be accepted. The indictment, or accusation, by grand jury would later imitate the "appeal" in this respect.

Whether one proved his case by compurgation, ordeal, or battle, the method was accusatory in character. There was always a definite and known accuser, some private person who brought formal suit and openly confronted his antagonist. There was never any secrecy in the proceedings, which were the same for criminal as for civil litigation. The judges, who had no role whatever in the making of the verdict, decided only which party should be put to proof and what its form should be; thereafter the judges merely enforced an observance of the rules. The oaths that saturated the proceedings called upon God to witness to the truth of the respective claims of the parties, or the justice of their cause, or the reliability of their word. No one gave testimonial evidence, nor was anyone questioned to test his veracity.

The Inquest

It was the inquest, a radically different proceeding, that eventually supplanted the old forms of proof while borrowing their accusatorial character. An extraordinarily fertile and versatile device, the inquest was the parent of our double jury system, the grand jury of accusation and the petty jury of trial. Fortunately for the history of freedom, the inquest, a Norman import, was also one of the principal means by which the monarchy developed a centralized government in England. The survival of the inquest was insured by its close ties to royal power and royal prosperity; its particular English form was founded on the old accusatorial procedures. The word "inquest" derives from the Latin inquisitio, or inquisition, but beyond the similarity in name shared nothing with the canon law procedure, which became, in fact, its opposite and great rival. The inquest was also known as the recognitio, or recognition, which meant a solemn answer or finding or declaration of truth. The inquest was just that, an answer or declaration of truth, a veri dictum, or verdict by a body of men from the same neighborhood who were summoned by some official, on the authority of the crown, to reply under oath to any inquiries that might be addressed to them. Men of the same locality were chosen simply because they were most likely to know best the answers to questions relating to the inquest—who had evaded taxes, who owned certain lands, who was suspected of crime, and who knew of misconduct among the king's officers. . . .

Reforms of Henry II

What was an irregular and in some respects an extraordinary procedure became under King Henry II (1154–1189) normal and systematic. A man of powerful will, administrative genius, and reforming spirit, Henry II greatly increased the jurisdiction of the royal courts, and wherever they traveled on eyre [circuit] through the kingdom, the inquest followed. Henry II disliked and distrusted the traditional forms of proof. More boldly than his predecessors, he regarded breaches of peace or threats to life and limb as offenses of a public nature, warranting more than merely private retribution. Crimes of a serious nature he took to be offenses against the king's peace, requiring settlement in the king's courts by the king's system of justice, whenever possible, rather than by the older proofs only; and the king's system was founded on the inquest, the representative verdict of the neighborhood. What was once only an administrative inquiry became the foundation of the jury of accusation and the jury of trial in both civil and criminal matters. . . .

Henry II did not abolish older forms of proof; he sought, instead, to supersede them in as many instances as possible, by discrediting them and by making available to litigants an alternative and more equitable form of proceeding. Innovations began in 1164 when the Constitutions of Clarendon prescribed the use of a recognition by twelve sworn men to decide any dispute between laymen and clergy on the question whether land was subject to lay or clerical tenure. The Constitutions of Clarendon provided also that laymen should not be sued in ecclesiastical courts on untrustworthy or insufficient evidence, but that if the suspect were someone whom no one might dare to accuse, the sheriff on the request of the bishop must swear a jury of twelve to declare the truth by bringing the accusation. In the Constitutions of Clarendon, then, one sees the glimmering of the civil jury in cases of land disputes and of the grand jury of criminal presentment or accusation.

Origins of the Grand Jury

The Assize, or ordinance, of Clarendon, which Henry II promulgated two years later, on the centennial of the Conquest, provided for the firm foundation of the grand jury and instituted a variety of significant procedural reforms. The king instructed the royal judges on circuit, or eyre, to take jurisdiction over certain serious crimes or felonies presented to them by sworn inquests, the representative juries of the various localities. Twelve men from each hundred of the county and four from each vill or township of the hundred were to be summoned by the sheriff to attend the public eyre. They were enjoined to inquire into all crimes since the beginning of Henry II's reign, and to report under oath all persons accused or suspected by the vicinage. The parties who were thus presented, if not already in custody, would be arrested and put to the ordeal of cold water. Even if absolved, those of very bad reputation were forced to leave the realm. In certain cases, then, mere presentment was tantamount to a verdict of banishment, but generally was not more than an accusation that was tried by ordeal. The Assize of Northampton, issued in 1176, recodified the Assize of Clarendon, extended the list of felonies, and substituted maiming for hanging as the punishment of the accused felon who was "undone" at the ordeal; he also lost a foot, his right hand, his chattels, and was banished. In actuality he usually fled to the forest if he could to live as an outlaw to escape the ordeal or banishment. The Assize of 1176 made permanent, at least at the pleasure of the king, the revised procedure of accusation by twelve knights of the hundred or twelve freemen of the hundred and four of the vill.

The Assizes of Clarendon and Northampton, by establishing what became the grand jury, offered a royally sanctioned option to the old system of private accusations by appeals of felony. Trial by battle, which was begun by an "appeal of felony" in criminal cases, continued, but it was undermined by the king's jury of criminal presentment as the model way of beginning a criminal trial. . . .

Civil Juries

Reform of the machinery of civil justice at the expense of trial by battle was one of Henry II's foremost achievements. Once again his instrument was the sworn inquest or jury. Its use in cases of property disputes contributed to the stability of land tenures, extended the jurisdiction of the royal courts at the expense of the feudal courts, aided the cause of justice at the same time that fees for the privilege of using the royal courts contributed to the king's exchequer, and sapped trial by battle in civil cases. The Constitutions of Clarendon in 1164 provided the precedent for turning to twelve men of the countryside for a verdict on a question concerning property rights. Such questions, especially in relation to the possession and title of land, produced the most common and surely the most important civil actions. For their solution Henry II gradually introduced what became the trial jury.

In 1166 the assize of novel disseisin, or recent dispossession, established the principle that no one might be evicted or dispossessed of his land without the approval of a jury verdict. This assize created a legal remedy for one who had been dispossessed. He could obtain a writ commanding the sheriff to summon twelve freemen of the vicinity who presumably knew the facts of the case, put them under oath, and then in the presence of the itinerant royal judges require them to render a verdict on the question whether the tenant had been dispossessed. A verdict in the tenant's favor restored him to possession of his land. If, however, a lord seized the land of a tenant who died before the tenant's heirs might take possession of it, the assize of novel disseisin provided no remedy. The assize of mort d'ancestor, instituted in 1176, did so. The heir might obtain a writ that put before a jury the question whether the decedent died in possession of the land and whether the claimant was his rightful heir. In the same reign, the assize of darrein presentment provided for a verdict by jury on questions involving rival claims to the possession of certain "advowsons," or ecclesiastical benefices, which were regarded as a form of real estate. . . .

By the time of Magna Carta in 1215, the inquest in civil cases was becoming fairly well established as the trial jury, though in criminal cases it was scarcely known at all. The petty or possessory assizes of novel disseisin, mort d'ancestor, and darrein presentment had proved to be so popular that chapter eighteen of Magna Carta guaranteed that the circuit court would sit several times a year in each county for the purpose of obtaining verdicts on disputes that they settled. Civil disputes of virtually any description, not merely those named in the petty assizes, might be referred to the verdict of local recognitors if both parties would consent to the procedure.

Juries and Criminal Cases

On the criminal side of the law, Magna Carta in chapter thirty-six provided that the writ de odio et atia, which by 1215 had become known as the writ of life and limb, should be granted without charge. It was by no means uncommon by then for a person accused by private appeal to demand a jury verdict on any number of "exceptions," such as the writ of life and limb, in the hope of getting the appeal quashed. In such cases, however, the jury decided only the question whether the "exception" was valid; the main question of guilt or innocence, which the appeal had raised, was still settled by battle if the exception was not sustained. Criminal accusations, which were presented in accord with the grand inquest provided by the Assize of Clarendon, were tried by ordeal. Magna Carta, in chapter twenty-eight, ensured that no one could be put to the ordeal unless formally accused by the jury of presentment before the royal judges on circuit. This was the implication of the provision that "credible witnesses," members of the presenting jury, must corroborate that fact that there had been an indictment. The celebrated chapter twenty-nine did not guarantee trial by jury for the simple reason that its use in criminal cases was still unknown in 1215. At best that chapter ensured that the indictment and trial by whatever was the appropriate test, whether battle or ordeal, must precede sentence.

The course of history was affected at the same time by events in Rome. The Fourth Lateran Council in 1215 forbade the participation of the clergy in the administration of ordeals, thereby divesting that proof of its rationale as a judgment of God. As a result, the ordeal died as a form of trial in western Europe, and some other procedure was needed to take its place. . . .

With the ordeal abolished, battle remained the only means of trying a criminal case. But the movement of the law was away from battle. The same reasons of "equity" that led [Ranulf de] Glanville [chief justice to Henry II] in 1187 to say that the right to a freehold "can scarcely be proved by battle" spurred the search for an alternate means of proving an accusation of crime. Thus Magna Carta had made the writ of life and limb free but still reflected traditional thinking in terms of ordeals and battle. Battle could never be had, however, in cases where one of the parties was aged, crippled, sick, or a woman. . . .

Not only was there no way to try those who could not engage in battle; there was the greater quandary of what should be done with persons who had been accused by the sworn verdict of a grand inquest. Battle was possible only in the case of a private appeal of felony. According to [Sir James Fitzjames] Stephen, "When trial by ordeal was abolished and the system of accusation by grand juries was established, absolutely no mode of ascertaining the truth of an accusation made by a grand jury remained." Nevertheless, compurgation and suit by witnesses lingered for a long time.

The crown's bewilderment was revealed in a writ of 1219 giving instructions to the circuit judges: "Because it was in doubt and not definitely settled before the beginning of your eyre, with what trial those are to be judged who are accused of robbery, murder, arson, and similar crimes, since the trial by fire and water has been prohibited by the Roman Church," notorious criminals should be imprisoned, those accused of "medium" crimes who were not likely to offend again should be banished, and those accused of lesser crimes might be released on "pledge of fidelity and keeping our peace." The writ concluded, "We have left to your discretion the observance of this aforesaid order according to your own discretion and conscience," a formula that left the judges further perplexed but free to improvise.

Origins of the Petty Jury

Treating an accusation as a conviction, when an accusation was little more than an expression of popular opinion, was a makeshift that fell so short of doing justice that it could not survive. In retrospect it seems natural that the judges on circuit should have turned to a sworn inquest for help. An eyre was a great event, virtually a county parliament. Present were the local nobles and bishops, the sheriffs and bailiffs, the knights and freeholders, and a very great many juries. From every hundred of the county there was a jury of twelve men, and from every township four representatives. Surrounded by the various juries, the judge in a criminal case could take the obvious course of seeking the sense of the community. The original jury of presentment was already sworn, presumably knew most about the facts, and was a representative group. The jurors' indictment had not necessarily voiced their own belief in the prisoner's guilt; it rather affirmed the fact that he was commonly suspected. Although practice varied considerably at first, the judges began to ask the jury of presentment to render a verdict of guilty or not guilty on their accusation. Because the jury of presentment was more likely than not to sustain its indictment, even though the jurors had sworn only that the accused was suspected and not that he was guilty, the judges usually swore in the representatives of the surrounding townships and asked whether they concurred; the jury of another hundred might also be conscripted to corroborate the verdict. In effect a body of the countryside gave the verdict.

This practice of enlarging the original jury of presentment or seeking a series of verdicts from different juries was common during the thirteenth century. What became the petty jury was thus initially larger than the grand jury. The practice was too cumbersome, the body too unwieldy. Twelve was the number of the presenting jury and twelve the jury in many civil cases; gradually only twelve jurors were selected to try the indictment, but they always included among their number some of the original jury of presentment. The unfairness inherent in this practice, and the theory that the accused must consent to this jury, eventually led to a complete separation of the grand jury and the trial jury.

Consent and the Petty Jury

Consent, even if induced by coercion, was an ancient feature of accusatory procedure. . . . But no man would be likely to consent to the verdict of accusers if they sought his conviction. And no man, it was thought, should be forced to accept the verdict of accusers; acceptance should be voluntary. While ordeals were still in use, if an accused refused to submit himself to the proof, he was considered to have repudiated the law and might therefore be punished as if he had outlawed himself. But the inquest acting as a trial jury was a novel and extraordinary device, and thus the reasoning that had branded as outlaws those who rejected the ordeal now seemed repugnant when it was applied to a man who refused to put himself to the test of a jury. He might think the jury would not fairly decide, or that his chances of getting a verdict of not guilty, for whatever reasons, were hopeless. . . .

In cases of no consent, some judges proceeded with the trial anyway; others treated the prisoner as if he were guilty; but most felt that it was unreasonable to compel a man to submit unless he consented. If he refused to consent, the law was nonplussed, the proceedings stymied. At length, in 1275 a statute supplied the answer: extort his consent. The statute read, "that notorious felons who are openly of evil fame and who refuse to put themselves upon inquests of felony at the suit of the King before his justices, shall be remanded to a hard and strong prison as befits those who refuse to abide by the common law of the land; but this is not to be understood of persons who are taken upon light suspicion." . . .

The other path taken by the notion of consent led to the emergence of the petty jury in criminal cases. This was the outcome of permitting the prisoner to challenge members of the presenting jury who were impaneled to serve on his trial jury. . . . With increasing frequency defendants challenged petty jurors who had first served as their indictors, though the king's justices resisted the challenges because indictors were more likely to convict. For that very reason in the 1340s the Commons twice protested against the inclusion of indictors, but it was not until 1352 that the king agreed to a statute that gave the accused a right to challenge members of the petty jury who had participated in his indictment. As a result of this statute, the two juries became differentiated in composition and function. From about 1376 the custom of requiring a unanimous verdict from twelve petty jurors developed; by that time the size of the grand jury had been fixed at twenty-three, a majority of whom decided whether accusations should be proffered.

A Fair Trial, for Its Time

By the middle of the fifteenth century, criminal trials were being conducted by rational principles that seem quite modern. Although the law of evidence was still in its rudimentary stages, the trial jury was no longer regarded as a band of witnesses, men who of their own knowledge or from knowledge immediately available from the neighborhood, might swear to the guilt or innocence of the accused. The jury was beginning to hear evidence that was produced in court, though the jurors still continued to obtain facts by their own inquiry. As late as the 1450s it was common for the jurors to visit a witness at his home in the country to take his testimony, but they were also beginning to pass judgment on evidence given in their presence in court. More important, they were regarded as a body of objective men, triers of fact, whose verdict was based on the truth as best they could determine it. . . .

Of course, trial by the local community could be trial by local prejudice, but at least the prisoner knew the charges against him, confronted his accuser, and had freedom to give his own explanations as well as question and argue with the prosecution's witnesses. He suffered from many disadvantages—lack of counsel, lack of witnesses on his own behalf, lack of time to prepare his defense—yet the trial was supremely fair, judged by any standard known in the Western world of that day.