A Concise History of the Common Law. Theodore F. T. Plucknett

were still not acquitted.

THE INSCRUTABLE JURY

      Under such circumstances, a jury was just a newer sort of ordeal. The judges, after the brief period of hesitation already mentioned, cease to play the part of inquisitors and no longer undertake to examine it or weigh its report; the jury states a simple verdict of guilty or not guilty and the court accepts it, as unquestioningly as it used to accept the pronouncements of the hot iron or the cold water. Since it is taken by consent there is no need to look too closely at the method by which the verdict was reached. At first, the jury was no more regarded as “rational” than the ordeals which it replaced, and just as one did not question the judgments of God as shown by the ordeal, so the verdict of a jury was equally inscrutable. It is but slowly that the jury was rationalised and regarded as a judicial body.

JURY TRIAL BECOMES COMPULSORY

      The Crown did not feel too confident, however; the petty jury in criminal trials was a makeshift expedient and an innovation. Under the old law a prisoner could undoubtedly have been compelled to submit to the ordeal and to abide by any construction which the justices might place upon the outcome of it; but was it reasonable to compel a man to submit to trial by jury? Even the Crown felt that this was unreasonable, and it soon became customary to put the astonishing question to the prisoner whether he consented to trial by jury. If he refused to say the necessary words and “put himself upon the country” it seemed as though nothing further could be done. If such a prisoner could have spoken the language of modern constitutional law he would very likely have raised a doubt whether trial by jury in criminal cases was “due process of law”, for the time-honoured methods of trial were the ordeals, and the petty jury was a new-found device of very recent origin. Put in a quandary by a prisoner’s refusal to plead, a court could only exercise its discretion by adopting one or another of several high-handed courses. Sometimes, as we have already noted, it would cast the responsibility on a larger jury of twenty-four knights; alternatively, it might allow the prisoner to abjure the realm, even for homicide,¹ while for lesser charges a prisoner could purchase (for 20s.) the privilege of merely finding sureties.²

Towards the close of the century the Crown felt strong enough to impose jury trial by sheer force, and the Statute of Westminster I, c. 12 (1275), provided—

      “that notorious felons who are openly of evil fame and who refuse to put themselves upon inquests of felony at the suit of the King¹ 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.”

      This statute begins with a threat and concludes with an argument; could there be any better indication of the government’s difficulty in imposing trial by jury? It is surely noteworthy that in 1275 it was found expedient to declare by statute that the petty jury was now “the common law of the land” even if the rigours of that common law were to be confined to “notorious felons”. Conservatives perhaps found comfort in the proviso that jury trial or its painful alternative was not to extend to those whose reputation was not too bad. As is well known, the words “prison forte et dure” by some unaccountable means became transformed into “peine forte et dure”, and finally into a form of torture which, by the sixteenth century, took the barbarous form of placing the accused between two boards and piling weights upon him until he accepted trial by jury or expired. Felons whose guilt was obvious sometimes heroically chose to die in this manner rather than plead, be convicted and hanged, for a prisoner who died under peine forte et dure had never been tried and never convicted, and consequently his goods and chattels could not be forfeited to the Crown. It was abolished in 1772.²

RATIONALISATION OF JURY TRIAL

By the middle of the thirteenth century, moreover, the justices had finally chosen the simpler procedure. Instead of taking separate verdicts from numerous vills and hundreds, they selected a petty jury of twelve from among the numerous jurors present in court, and took the verdict of these twelve. It regularly happened that at least some of these twelve had also been members of the presenting jury, for it must be remembered that the whole principle of jury trial was to get information useful to the Crown from those people most likely to have it—the principle of the ancient inquisition. It is at this point that we first find signs of a rational approach to jury trial. The indictors were under some pressure to maintain their accusation and a subsequent acquittal occasionally landed the indictors themselves in prison.¹ It is therefore clear that a prisoner could not expect a disinterested verdict from a petty jury consisting wholly or partly of indictors. Those with sufficient court influence could obtain certain procedural favours. Thus, Prince Edward (afterwards Edward II) sent a letter in 1305 to Brabazon, J., on behalf of one of his friends who was indicted for murder, asking that he be tried by a fresh jury on which none of the indicting jurors were present.² We sometimes find prisoners challenging petty jurors on the ground that they had sat on the grand jury—a challenge which shows that the petty jury is now regarded (by prisoners at least) as no longer representative of the countryside, but as a truly judicial body which should be free from fear and interest. Such challenges were unsuccessful. As late as 1341 the court refused to allow a petty juryman to be challenged on the ground that he had been a member of the presenting jury: “if the indictors be not there it is not good for the King”, it was said.³ The commons in parliament protested against the practice in 1341 and again in 1345,⁴ but not until 1352 did a statute allow challenge to be made on this ground.⁵

THE JURY AS REPRESENTATIVES

From this it will be seen that in its origin the jury is of a representative character; the basis of its composition in the early days, when its structure was determined by the vill or the hundred, was clearly the intention to make it representative of the community. Its object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned, and some at least of them from the hundred where the fact lay.⁶ In civil cases these requirements were much modified by legislation,⁷ and finally abolished in 1705.⁸ They applied also to criminal cases, but by Lord Hale’s time it was no longer the practice to challenge a jury for lack of hundredors,¹ as long as it came from the proper county.

      The county requirement was less tractable, for procedure could only be conducted through a sheriff. Problems abounded, moreover. By some ancient oversight there were roads, bays, creeks and harbours in England, as late as 1816,² which were not in any county; felonies committed there (like those on the high seas) could not be tried by jury until 1536 when a statute gave the crown power to appoint a county by commission.³ Further, in 1549 a statute explained that if A wounded B in one county, and B died in another, then A could not be tried, because a jury of the first county will know nothing of the death, and the jury of the second county will know nothing of the wounding.⁴ Likewise, a felon in one county may be hanged, but his accessory who received him in another cannot be tried because a jury there will not know of the conviction.⁵

The representative idea of the jury was wearing very thin now that some of its consequences were being abrogated by the acts of 1536, 1549 and others.⁶ Survivals lasted into the nineteenth century: pickpockets in stage-coaches could be tried in any county along the route only after 1826,⁷ and the completely rational view of jury trial finally triumphed in 1856 when a trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.⁸ Its character was certainly not that of witnesses;⁹ it was indeed expected to speak of its own knowledge, but that does not necessarily mean that its knowledge must be as strictly first-hand as that of a modern witness. There is no trace of a requirement that jurymen should themselves have witnessed the events in question. Indeed, that would often be impossible, especially in property cases—such as occurred in 1222 when a jury had to find the terms of