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2014 Magna Carta and the Right to Trial by Jury Thomas J. McSweeney William & Mary Law School, [email protected]
Repository Citation McSweeney, Thomas J., "Magna Carta and the Right to Trial by Jury" (2014). Faculty Publications. 1722. https://scholarship.law.wm.edu/facpubs/1722
Copyright c 2014 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Randy J. Hollan
Foreword by John G. Roberts,Jr., LAW ChiefJustice of the United States
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Dust jacket image credits:
King John of England (r.ll99-1216). 1215 Exemplar of Magna Carta. Great Charter of Liberties. Manuscript on parchment, June 1215. Courtesy of Lincoln Cathedral, England (front cover) The signing of Magna Carta illustrated in Cassell's History of England, Volume l. London: Cassell, 1903. General Collections, Library of Congress (back cover) England's Lord ChiefJustice Edward Coke bars King James I from the "King's Court" making the court, by law, independent of the executive branch of government. Bronze doors of Supreme Court, Washington, D.C. Collection of the Supreme Court of the United States (inside front flap)
MAGNA CARTA AND THE RIGHT TO TRIAL BY JURY Thomas J McSweeney'
Magna Carta is often invoked as the primal source of the right to trial by jury. The influential English legal commentator Sir Wi lli am Blackstone trumpeted Magna Carta's guarantee of trial by jury.2 American constitutio nal debates reg ularly cited Magna Carta in connection with th e ri ght to jury trial. And linkages between jury trial rights and Magna Carta continue today. T he United States Supreme Court wrote as recently as 2005 that in England, "th e right to a jury trial had been enshrined since the Magna Carta."3 Lawyers invoke Magna Carta's her itage in their briefs and summations injury trials. Magna Carta is often identifi ed as the origin of the right to a jury trial in popular writing as we ll. ' Digging d eepe r into the history of Magna Carta, however, reveals a more compli cated reality. Magna Carta's ·: judgment of his peers" language, which many associate with the jury trial right, did not guarantee tri al by jury. The lin ks between Magna Carta and th e jury trial guarantee were actuall y fo rged centuries aft er th e issuance of the original document in 1215.
The English Jury Before 1215 T he history of the common law jury begins about fifty years before Magna Car ta, during the reign of King Henry II (r. 11 54-11 89). Henry became king at the end of a long and destructive civil war, a tim e wh en one chronicl er said that "Christ and his saints slept."'' T he memory of the civil war and the disorder it caused may have been in H enry's mind wh en he began th e reforms of land law and criminal law that would ultimately come to be seen as the beginnings of the common law;" Henry proposed many of his reforms as a way to restore the
Medieval jury depicted in Grand Coutumier de Normandie [Customary Law of Normandy]. Illustrated manu script on vellum, ca. 1450-1 470. Law Library, Library of Congress
139 Magna Carta: Muse and Mentor
kingdom to its state befo re the civil wa r7 [t is also possible that he was rn o ti va ted to steal jud icial busin ess frorn the many local courts that existed th roughout England.HW hateve r the reason, Hen ry insti tuted new proced ures hJr his royal courts, procedures which mack the co u rts easier to use and more access ible, eve n to people at: the low end of the socia l scale.'' O n the civil side, I !enry introduced new procedures called ass izes. T he first o f these assizes was the assize utrum, whi ch Henry p robabl y autho ri zed in 11 64 as part of an o ngoin g fight he was havin g with his bisho ps. In that year, H enry iss ued a text call ed the Constitutio ns o f Clarendon, which he claimed was a state men t o f the "customs, liberti es, and d igni ties o f his p redecessors . .. which ough t to be obse rved and kep t in the kingd om" concerning the relatio nship be tween the crown and the Churc h . 111 Chapter nine of the co nsti tutions dealt with the iss ue of land held by the Church. In the twelfth cen tury, it was f·~t irl y cornmon fo r land holders to d onate land to the Church . Do nations of land to Chu rch bodies like parish chu rches o r rn onaste ri es we re tho ught to be good fo r one's soul and created a relatio nshi p with the parish or monaste ry that co n tinued after the do no r's death , as the priests and mon ks wc>Ldd re rn e rn ber the do nor in their prayers . Ce rtain types o f land owned by the Church, kn own as land held as free alms, were exem pt: from the jurisd icti on o f the king's courts. 11 According to the Church 's cano n law, disputes concerning land held as free alrn s could no t be heard in the king 's co urt:, o nl y in th e co urts of the Church, which we re extensive in the twelfth c e n t u r y . ' ~ Henry recogni zed the Church's excl usive jurisdiction over land held in free alms. T he questi o n was, what happened when it was n 't clear whether the land was held as free alms or lay lee? Did the royal court o r the ecclesias ti cal court get to decide who had _ju risdiction? l11 chapter nine o f the Constitutio ns of· Clarendo n, Hem y answered that it was the royal co urt that had the ri ght to decide. Chapter nine connnancl ed that "1fa d ispute shall arise be tween a clerk and a layman, or between a layman and a cle rk, in res pect or any holding which the cl erk desires to treat as free alms, bu t: th e layman as lay k e, it shall be determined by the recognition o r twelve lawful tp en thmugh th e deliberatio n, in the presence of the kin g's chi ef 1 1 justice, whether the ho ldi11 g pertains to free alms o r to lay fee." : T he ass ize u.tru:m (Lati11 fo r "whethe r," since the assize decides whethe r the land is held in lay k e or fr ~ e alm s) was the new p rocedure that H enry introduced to decide iss ues o f lay fee o r free alms. T he ass ize was begun by royal wri t, a tra d iti o nal LOo l of royal ad ministratio n, and in clu ded a key role fo r laymen. Wri ts were essen tia ll y sho rt docume nts issued by the royal chancery in the kin g's name that: comma1tded o ne o f· the king's offi cials or subjects to do something. T hey
140 Magna Carta and the Right to Trial by Jury
had been used in England since Anglo-Saxon times. Instead o r being an individ ualized command from the king, the assize utrum used a standard fo rm. Any of the king's subjects could purchase a writ or command in this gene ral form, and a cl e rk coulcllill in the specifi c infonnation. 11 T he writ took the fo ll owin g form:
The king to the she riff, greetin g. If A. shall have give n you security e tc. , summon , by good sunnnone rs , twelve free and law rul me n of the viii of N. that they be before ourjustices at the first assize wh e n they sha ll have CO lli e into those pans, pre pared to recogni1.e on oath wh. e th e r te n acres of land with appurtenances in N. is the lay fee of the sa id A. or free alms belo nging to the church of N. which B. , the cl eri c, holds; and in the meantime le t them vi ew that land and cause their names to be recorded in writing, a nd summon by good summoners the said B. , cleric, that he be th e re at the time to hear that recognition, and have the re the surn lll o ners and this writ. 'vVitn ess, etc. ''•
Writs such as these emerged as mainstays of the royal courts. By introducing the jury-the twelve free and lawrul me n who were commanded to CO lli e hear the case-into the assize u.tru.111 , the jury too became a mainstay or English law. His torians debate the origin of He nry's idea to use juries. Was the jury silllply a con tinuatioll of trial procedures that had been used in England's counLy courts since Anglo-Saxo11 tillles? Or was it an institution or roya l powe r that was transported frolll Nonnandy with th e Norman Conquest? There is evide nce lo r both points o f view T he assi1.e lt.Lrum orders the sheriff to stllnmon "twelve free ancllaw hd 1n en of the viii. " T hey were to come fi ·om th e local conHnunity, and wo uld be expected to know 141 Magna Carta: Muse and Mentor something about the dispute.''' The twelve all had to be male; women only served on juries in very limi ted circumstances i11 the middle ages . ~ 0 The twelve men all had to be fi ee. A large proportion of England's population was unfi·ee in this period. The unfree were subject to humiliating d isabili ti es and were disqualified fi"OITI service on inquests orjuries and, in most cases, could not use the king's c ourts. ~ ' The twelve men also had to be "lawful" (Lat. legalis). In this period, one mean ing of the term "law," or lex in Latin, was "oath," and legalis essentially means "wo rthy of making an oath." Oath-worthin ess was important in medieval En gland. Oaths were required in many social and legal contexts. A person who lost his status as a legalis ltmno, or law-worthy rnan, by breaking an oath or bringing a htlse claim in the king's courts, was subject to severe social and legal disab ili t i es . ~ 2 IL was important that the twe lve men be law-worthy, since the writ indicated that they were to be placed under oath. / These twelve men were known in docume nts of the time by several diffe rent names: the inquest (inquisitio) , the recognition (mcognitio; the writ says that they be "prepared to recogn ize"), the assize ( assisa, after the statute-li ke docume nts, also ca ll ed ass izes, that f-irst authorized their use) , and, less often in the twelfth century than the thirteenth, the jury (jurata, from Latin juramentum, " oath") .~ :1 The basic elements of· the assize utrutn--the standard-form writ and the jury of twelve-were copied during Henry II 's reign to create many new procedures for the king's courts, most of which decided questions relatin g to land. The assize of novel disseisi11 , whi ch was probably authorized around ll66, ca ll ed a jury of twelve to de cide wh ether the person who was currently in possess ion of a piece ofland had force fu ll y ej ected the last hold e r. ~ · ' The assize ofrnort d 'ancestor, established in the Assize of Northampton in 11 76, asked the jury whether the plaintiff was the nearest heir of t.he last person to die se ised (essentially in possession) of a piece of lancl. 25 The grand assize was a procedure authorized in l 179 that all owed a person who oth e r~ wise wou ld have to fi.ght ajuclicial duel to determine his right to land to instead elect an assize of twelve men to decide the issu e.~(; By the time Magna Carta was issued in 12 15,juries had become the primary way of deciding land cases in the royal courts. Henry II And Criminal Juries At the same time he was introducing swon1 groups of twelve me n to decide land cases, H enry expe rime nted wi th juries to deal with the problem of crime.27 In 11 66, Hen ry met with his barons at his hunting lodge at Clarendon and iss ued a text ki lOWil as the Assi1.e of Clare ndo n (not to be confused with the Constitutions of Clarendon) . Through this document, Henry drafted local people into the roy al administration to root out criminals. The assize o rdered that "inquiry shall be 142 Magna Carta and th e Right to Tri al by Jury THE 'l'i 1't·T R Y A L , Of Lieutenant Colonel · Jolin Lilburn. John Lilburne (1614?-1657). The Tryal of Lieutenant Colonel John By an E:maordinar)' or Special Commiffion ofo Lilburn. .. th e 24th, 25th, and ;~ud Termint• at the Gui/J-H•/1 of Lo~J.. the Yf' 26th of October, 1649. London: H. lSth, and ~6t h . ofOfl.ber, 1649. ' "4t 1> • · Hills, 1710. Law Li brary, Library of Bcingexa&ly Pen'd and taken in Short-Hand 4 was poflible to be done in fi 1ch a Croud and N ~/~ Congress and Tranfcribcd with an Indifferent and E~en H 01 J•. both in Reference to the Court, and the l'ri lo~~r? that fo Matter of Faa, as it was there Declar d' might trn ly come to Publick View. e >. ln whith iscontain'd theNamcsof.,JJ the Judges Gra d I j. lnqudt, and Jury of Life am! o~ath. , n _,.By TifEODORUsvA.TA'X ----m;!i"~tconbCtDition-. ------.... L,.Jo, : Printed for and Sold by H. Hiih in B' • {i ' . lt:t~~:.- rJIIrt, made th roughout the several counties and th roughou t the several hundreds ... whether there be in their hund red o r viii any man accused or notori ously suspect o f being a robber o r murderer o r thief, o r any who is a receive r o f robbe rs o r murdere rs o r thieves, sin ce the lord king has been k in g. " ~ H T his inquiry was to be made "th rough twelve o f'the n10re lawful me n o f the hund red and thro ugh (o ur of· the more lawful men o r each vill. "211 Local people from the hund reds (s ubdivi sio ns or cou11ti es) and vi li s (subd ivisions of hundreds) would be call ed togethe r to inf·o rm the king who had cornmi tted robbery, murder, or theft in their locality so they could be tri ed by the king'sjusti ces. T he king'sjusti ces wo uld pe riodically visit. the coulllies and askjurors from the hundred and the viii to present the m with a list. of suspected cri m inals. f orgery, treason, and arson we re later added to the li st o f' crimes the juro rs we re to present.. :111 T hese new juries we re generall y called juries of presentme nt, the ancestor o f' the mod ern grand jury. T heir role was to present lo r tri al people who we re 143 Magna Carta: Muse and Mentor suspected of particular crimes. Altho ugh the juries of presentme nt d id not decide the fi 11 al iss ue of guilt or innocence, they played a role in determining who would go to trial. The trial itself would not be by jury. Instead, the accused were to "go to the ordeal ofwate r. ":11 Judicial ordeals we re a common way o f trying suspected criminals in the twelfth century. Surviving ordeal liturgies paint a picture of cere rn o nics where a great deal of reli gious pressure was placed on the accused to co nfess. · ~~ An accused man heard a mass at whi ch he was reminded that God would judge him justl y. Be fore he took communio n, he was reminded that he sh ould not take it if he had "clone o r consen ted to o r know who did this thing."T1 He took an oath, in the presence of a priest:, that he had not committed the crirn e o f wh ich he was accused, and by the Father and the Son and the Holy Spirit, by the clay ofterriblejuclgrnenl, by the lour eva ngelists, by the t:we nty-k>U r elders, who with unwearied voice do not. cease to praise God, by the t>ve lve apostles, by the victory or t.h e martyrs, by the invocation of yo ur holy baptism, that, if . yo u are culpable concerning this tJ1in g, either in deed or otherwise, with a heart hardened by the suggestion of the devi l, do not presumptuously come to this judgment; the water will not accept yo u, and in this sign of the cross of Christ your 1 mali ce will appear; and the virtue ofalrnighty God will be m By that point, if the accused lwei not confessed , he wo uld go into the wate r. u· he sa11 k, he was adjudged innocent, and was pulled out of the water. If he f-l oated, he was held to be gu il ty. Early on, those fo und guil ty by the o rdeal we re mutilated and banished from th e realm . By the early th irteenth century, anyo ne convicted or a fe lony was hanged .:\!; Although Jh e presentingjttry did not, strictly speaking, decide the final questi on of gttil t or innocence, it was more than simply a jury o f accusatio n. T he jnry had many ways o f preventing the accused from going to the ordeal. A jury of present me nt. could present a. Ill an as havin g been accused of a crime, but th en tell the jus ti ce t.h 144 Magna Cart a and the Right to Tri al by Jury the four vills closest to the scene of the crime. IC and only if, th ey also suspected him, he would proceed to the ordeaJ. :IR In this way, the jurors of the vill could e f~ fective ly veto the presentment of the hundred jurors. Thus, by the early thirteenth century, a person accused by the jury of presentment wo uld only go to the ordeal if both th e jury of the hundred and the juries of th e four neighboring vills, a total 1 of thirty-two people, said they suspected the individual. :\' The jury of presentment could not convict a person on its own, but it could essentially acquit one. Although presen tment became an important institution of Engli sh criminal law in the decades afte r 1166, it was not the only, or eve n primary, way o f bring ing suspected felons into court in the late twelfth century. The appeal or fe lony was a method by which a private party could accuse anothe r party or a fe lo ny. Guilt or innocence wo uld ordinarily be settl ed by trial by battle between the accuser and the accused, but trial by o rdeal was also avail abl e if one of the parties was unable to undertake trial by battle. The appeal of fe lony might end in a jury trial, h owever. A d efe ndant wh o did not want to go to battle or o rdeal could challe nge the appeal by means o f a writ de orlio el alia (of hatred and spite) . T he wri t called a jury together to decide a limited question: whether the de fendant was "appealed out of hatred a nd spite or because he was guil ty." 11 ' If the jury decided that the p ri vate accuser had brought the a ppeal o ut of hatred and spi te, the defendant was set free. If it decided he was guilty, he still we nt to the o rdeal or trial by battle ." 11 The j u ry in a case of hatred and spite, like a presenting jury, could acquit the d efendant, but could not convi ct him. Writs rlr1orlio ellllill were fa irly commo n . T hey cost mo ney to obtain , but de kiicl Thus, the best historical evidence indicates that, by 12 1[>, juries had become regul ar parts or the administration ofjustice, both civil and criminal, in England. They we re used widely in land cases and were used t.o fe rret o11t criminals. However, people in 121!) probably would not have thought, as later gen<.:ra ti ons did, especially from the seventeenth century onwards, that the jury was a great: 145 Magna Carta: Muse and Mentor bulwark of liberty aga i11 st the crown . .Ju ries certainly all owed the pref-e re nces of the local community to e nt.er into th e exercise ofjust.icc. Presen tin g juries could prevent. suspects !"rom going t.o the ordeal. Bu t juries served not so much as protect.i011 agaiJJ SLro yal power, but as extensions of it.. T he jury of presentmen t was a method the crown used t.o keep tabs o n th e country with its limited resources by compelling members of t.h e local community to wo rk {() r the king. What is more, jury service was l~1r from popular. Jury service was considered an onero us task, one where people were fo rced to d o the king's work, and was widely resented . .Jmors o l't.cn h1il ed to appear o n the appointed cl ay and were lined fo r t.h e ir non-appearance. In some cases, parties simply gave up because t.h ey were u1J abl e to ge t. eno ughjurors to fill the jury: 11 T he wealthy purchased exemptio n fro m jury service from the king, which fo rced lower gentry <\ li d free peasants to ta ke on a larger share of the jury work in the county. Today's com pl aints abo utjury duty have a long history. In 12 15, when Magna Carta was d rahed, juries were mo re apt to be seen as the means by which the king co-opted locals into the roya l administrati on than as in strumenls o f' popular part.i cipa t.i o n. It is no surprise that, in the years immediately f(>ll owing Mag1m Carta 's iss uance, no o ne, includ in g those who had been involved in drafting th e charter, tho ught. that it contained a guarantee o f trial by jury. Magna Carta And The Jury Chapter ~9 o f' the 12 15 ve rsio 11 of' Magna Carta is 0 11 e o f' the most famo us sec ti o JJ S o f' the charte r. It was included i11 a ll subsequent reiss ues o f the charte r, evcnt.ua ll y becom i11 g chapter 29 o f t.h e revised 1225 ve rsio n, which was the ve r sio n o f Magm1 Ca rta that ca me to be regarded as England's first st.atut.e. It reads: No free man shall be t.aken o r imprisoned o r d isse ised [deprived o f' his land] o r o utlawed , or exil ed, or in any way ruined , no r will we go against or send against hin1 , except by the lawful judgme nt. of' hi s peers, or by the la w of the l At. first blush, t.h c wo rds ': judgm en t o f h is peers" appear to guarantee t.ri al by jury. By the e ighteenth century, they were certainly read that way. However, there arc several problems with this in terpretation. In o rder to read chapter 39/29 o f the charte r as p;u.nm nleeinp; trial by jury, it wo uld have to read "except by the lawful judgm ent o f' his peers nnrl by the law o f' the Janel. " Ins l.eacl , the text o f th e charter provides "or by t.h e law or the Janel. " The tex t. as we have it guaran tees that a free man will be tried in one o f' two ways, but it ofl'crs them as alternatives. T he king 146 Magna Carta and th e Right to Trial by Jury John Lil burne reading from Coke's Institute at his trial. Frontispiece from John Li lburne (1614?- 1657). Th e Tryal of Lieutenant Colonel John Lilburn. ... the 24th, 25th, and 2 6th of October, 1649. London: H. Hills, 171 0. Law Library, Li brary of Congress 147 Magna Carta: Muse and Mentor need not try the l"ree man by judgment of his peers; he can opt to try him by the law of t.h e land instead. The "or" in chapter 39/29 has ca used trouble for g-enerations of lawye rs and scholars who want to read Magna Carta as the o rigin of the jury ri ght. They have gone to great. lengths to get around it. F W. Maitland, the lather of English legal history, argued that the Latin word vdused in the passage could also mean "and." 1n Wh il e he produced evidence that vel could, at times, mean "and," that was a rare usage of" th e wo rd.lt is much more likely that the drafters meantjudgmcnt of peers and law of. the ];uJd t.o be alternatives. A guarantee ofjudgrnent. of peers art he law of the land seems strange to us today. What would it mean to be tried by the lawful judgment of one's peers, but 11 ot in accord with' the law of the land? This is only a problem because we tend to read th e phrase "law of the l 148 Magna Carta and th e Right to Tri al by Jury heard in the bishop of Bath 's court in ll2.l. Wh il e the bishop was sitting in his court, celebrating the feast of the apostles Pe ter ;mel Paul , he received a wri t from the king's son \1\lilliam o rdering him to 'jusLl y seize Modbert of the htitd which Gre nta o f Stoke has held ," land that was, at the time, bein g held by the priory of St. Pete r. ''" T he bishop said that. he agreed "to do what 1 have been o rde red by 1h e son of· my lo rd by this le tt.e r, if it is just. However, my friends and lords, who are solemnly gathered in this court on the occasio n o r the aposto li c f·cast.-day, 1 beg you to disc uss which is the mo re just cause in this n1atte r. "''' After th e prior and Modbert produced witnesses and a charter, the bishop put. it. to "those amongst you whom we kn ow to be neither advocates nor supporters of the parlies" to "diligently study the case and decide by what fin aijudgrnent it shall be so l ved . " ';~ T he "older ;mel mo re learned in the law" then left, consulted , a11d made a ju dg ni e nt."1 T his was a f· ~tirl y common pattern in courts of the period. T he parties to the case entered the bishop's court-no t consti tuted specifi call y as a law co urt, but simply as the co ll ected body of the bishop's vassals- and expected to be judged not. by the bishop, but by his vassals, their peers. Evidence suggests thai this type of trial by one's peers, by the peopl e beneath th e lord wh o made up the lord's court, was the standard form in most courts in England_ -,, T he barons we re si m ply askin g for that mode of trial to be extended to them in the king's court, that they not be judged by the king, but by their peers, their fe ll ow barons. Sif"tin g th rough th e histori cal evidence, it seems most li kely that chapler 39/29 was o nly meant to require that the accused wo uld be tried either by peers, o n the one hand, o r by oi·cleal or battle, on th e other. It forecl osed the poss ibili ty that the accused could simply be declared guilty by an act of the king's wi ll , withoul any trial at all , but it d id not guarantee that the tri al wo uld be by_ jury. T his re sponded to a specifi c gri evance that the barons had againsl .J o hn.'•'•.J ohn was ac cused of too o rten actin g o n his own to determine that someone merited punish me ilt, rather than p utti ng the matter to his CO llll.'''i T he drafters of· Magna Carta wa nted guarantees that they woul d onl y be deprived or their land or arrested by j udgment rather than the whim o r the Kin g, but they do not. seem to have bee 11 ove rl y CO II cem ed with the juclglll ent's exact form . .Judgme nt. co uld be had by peers, by o rdeal, or by battl e, any of the fo rms conuuonly used in England in !he ea rl y thirteellth centllry. Magna Carta guaranteed a trial, but. not a trial by jury. The Fourth Lateran Council And The Criminal Jury Magna Ca rl a was no t the only mo men tous event of 12 15. In Novembe r o r the sa lll e yea r, li ve mo n ths arter Magna Carta was iss ued , Pope lnnocenl Ill (r. 11 98-1 2 16) opened a gene ral council o r the Western Church, ca ll ed 1h e 149 Magna Carta: Muse and Mentor Fourth Lateran Council. 57 The council's ambitio us agenda included substantial reform o f the Western Church , and the council had an important impact, fo r good a nd ill, on subsequent European history. It was the first council to require Jews and Muslims to wear distinctive, identify ing clothing, for in s t ance . '•~ It also call ed for substantial reforms to the administration of canon law, including 9 the introduction of additional righ ts for accused parties. 5 It was the counci l's program of separating the sacr·ed from the secular-of requiring priests to sep arate themselves from the secul ar li fe and forbidding them to marry and par ticipate in certain types of occupations that it saw as too worldly-which proved to have signifi can t implications for trial by jury in England. Canon 18 p laced certain restrictions on clerics, including a mandate tha t clerics were not to "bestow any b lessing o r consecration on a purgation by ordeal pf boiling water or of cold water or of the reel-hot iron . . . "6° Canon 18 did not forbid judicial o rdeals altogethe r; it simp ly said that cl erics could not offer a blessing in the m. But the blessing was crucial to th e ceremony, and without it, the ordeal could not function. If God was to participate in the ordeal, the ordeal pit must be blessed by a priest, and th e accused was often given the Eu charist before the ordeal, wh ich required the participation of a priest as we l1 .6 1 The priest's participation was a criticall y important part of the agreed-upon me thod of resolving disputes, and without it the courts were at a loss. A pressing problem that now faced the English royal courts was what should be clone with people who were suspected of serious crimes if they could not be tried by ordeal. This issue did not affect the royal courts immediately, h owever~ Just months after Magna Carta was issued in june of 1215, civi l war broke out between .J ohn and the barons. By October of 1216, however, J ohn had died (of natural caus es) and his son, Henry III, at nine years of age, was crowned king. The war carn e to an end in September of 1217 and the kingdom settled into an uneasy peace. T he king's courts had not operated regularly since the war began, but in November of 1218 the regency government prepared to send out the first eyres-groups of justices sent to the counties as travelling courts- since 1209."2 It was only then that the courts were laced with the question of what to do about the trial of felons. The eyre was already unde rway on .January 26, 1219, whe n Peter des Roches, the young king's guardian, and Hube rt de Burgh, his justiciar, sent a letter telling the eyre justices how to proceed in cases of"robbery, murder, arson, a nd sirnilar 1 1 things." ;' Des Roches and de Burgh wrote to the justices that 'judgme n t by fire 1 1 and water is forbidden by the Roman Church." ,' They were not sure what should re pl ace it, however. Their instructions to the justices were to put otl tryi ng these 150 Magna Carta and th e Right to Tri al by Jury suspects until they could corne up with a solution. They ordered the justices to do difh;rent things with respect to different classes of criminals: those who are accused of the aforesaid greater crimes, and who are sus pected of those things of wh ich they are accused and in regard to whom, although they might abjure the realm, there is still suspicion that after wards they rnight do ill , shall be held in our prison and safely guarded, so that: they do not incur peril of life or limb by reason of our prison. Those who are accused of medium crimes touching which the judgment of f-ire and water would be suitable if it: were not forbidden, and touch ing whom if they abjure our realm there would be no suspicion of evildo ing afterwards, shall abjure our kingdom. Those who are charged with lesser crimes and in regard to whom there is no suspicion, shall find safe and secure pledges to keep our all egiance and peace and thus shall be loosed in our land.';', The most problematic of these categories, frorn the justices' perspective, were those "accused of the aforesaid greater crimes," who were to be kept in prison. Prison was not generall y used as a punishment in twelfth- and thirteenth-century England, and the prisons were not designed for long-term incarceration. The justices d idn't have any way to try these peopl e, and keeping them locked up indefinitely did not seem practical. Casting about for alternatives, the justices made greater use of inquests de orlio et atia, even in cases where the defendan t had not asked for oneY; The justices began to adapt these inquests to suit their curre nt needs. Recall that an inquest de orlio et atia traditionall y could acquit, but not convict. The justices of 1218 sentenced some people based on a guilty verdict from a jury brought by writ of de odio et atia. They did not sentence them to hang, however, but instead to pay a fine.';7 The justices seemed to be wary of using the jury to sentence an accused felon to death, but they were wi lling to mete out a lesser punishment to felons on the basis ofajury verdict. These unasked-f01 ju ri es presumably all eviated some of the strain on the prisons. Two suspects were hanged on the weight of a jury verdict in 1218, but the verdict was declared to be illegal by the justices of the central courts at Westminste r. T heir heirs complained and the court agreed that the two men were "hanged wickedly and unjustly because ... they could not be condernned through the verdict of the jurors."tik The justices and the kin g's council re-asserted that the jury could onl y be used to ask intermediate questions, li ke whether an appeal was brought out of hatred and spite, not to determine guilt. This example offers more evidence t.hat Magna Carta's 'judgme 11t of his peers" did not yet resemble the comrn on lawjury. 151 Magna Carta: Muse and Mentor In the winter of 1220, thc jnsti ces at Westrninsterwent a step hHt her towards using juries to convict. Some appeals were brought by people known as approvers, felons who had turned state's evide 11 ce. Felons who were ca ught might save their necks by conf·essin g and agreeing to bring appeals of fel o ny against others, generally the felo ns ' accornplices.';9 The approve r would then have to hghtjuclicial duels against them. He wo nld be ke pt at public expense while he brought. the appeals, and if he survived the nurnber of appeals and duels he had agreed upon with the king's offi cials-the /Jmcton treatise gives t.he sample number as fi ve, so it is unlikely tha t. he wo uld- he would be granted his "lif"e and members," but not much more. 70 T he approver would be fo rced to abjure the realm for the rest of his lif'C and wo uld be mutila t.ecl-probably losin g his nose or an ear-as a ve ry tangible mark or his crime., to warn peopl e who migh t come across him that he was a convi cted felon.71 T he party accused by an approver could respond that he need not answer "a conf-essed thie f, one who ought to have no ri gh t to speak against a law-abiding man .. ." n l-Ie would bring a writ: rle jirlelitale to prove that he was "a law-abiding man and within the assise of the lo rd king etc. and in frankpledge or has a lord who avows hirn." 71 He wo uld make his proof to a jury.Just. as in the procedure for the writ. rle orlio el ati.a, the jury could acqui t, b ut not convi ct. If the jury decided that the accused was a law-abidi ng man and need not answer, 1h e 11 he would be released. If it d ecided he was not. a law-abiding man, he wo uld still go to the duel to try to prove his innocence that way. At. the bench at Westminste r in 1220, the justi ces we re confronted with sorn e problema ti c cases. In one or th em, a wo man who had confessed to theft , named AIi ce, had made a deal wi t.h t.h e court to act as an a pprove r. Technicall y she could not. be an approver, because a woman was barred f"rom hgh ting a judicial duel, 7 1 but th e courL all owed he r to make her accusations anyway. · All o f those she ac cused wo ul d, therefore, be sent to the ordeal, sin ce it was used as an alternative to j1.1d ic ial combat. in appeals where that fo rm of proo f" was unavailabl e. But the ordeal had been fo rbidde n by the Late ran Council. T he justi ces mi gh t have left the peopl e appealed by Ali ce in prison while the king's council decided what to do with t.h ern; what they did instead was give them the optio n o r a speedier trial. The court. asked the defe ndants if" they would empower the jury to decide both innocence a11d guilt. The roll or the court tell s us that "they placed themselves 7 upon the ve rdictforgoorl anrl ill ( rle bono et malo) ." " They probably shouldn 't have. T he e 11 t.ry te lls t iS that a ll t. he jurors said that th ey were thieves, and laconi call y 71 e 11ds with the wo rd s-usjmulanltt:r ("they were hangecl ") . ; This was not the most auspicio us beginning for the criminal jury tri al, at leas t. not if" we be li eve that the criminaljury's role is to ddcndl"l1e rights of the accused. 152 - Magna Carta and the Right to Tri al by Jury By 1220, the justices had cl early decided it was permissibl e to give accused per sons, in cases brought both by appeal and by presentment, the option o f' putting themselves on the jury "fo r good and ill. " ln cases ol" presentment, the justi ces would simply all ow the jury o f· presentment, the jury that had ori ginall y pre sen ted the accused as suspected of a fe lony, to sit: as a trial jury. T he procedure fo ll owed was very similar to that that had previously been fo ll owed fo r ordeals. Recall that the twelve hundred jurors and the j urors of the fo ur nearest vi lis which each sent: fo ur men and their reeve to the court-had Lo agree that the person was suspected in o rder to send the ind ividual to the o rdeal. When the courts started using juries to convict, they similarl y required that the hundred and the four vi li s, a total of thirty-two people, agree that the suspect was gu il ty in o rder to convict. 77 The trial by jury f·or good or ill was initiall y optio nal; the suspected f'e lo n could choose to accept the jury or to go back to prison. But when an accused fe lon announced that "he does not wish to place himself upon the country" in 122 1, the justices responded by f·or-c i ng a jury upo n him. T hey added twenty-lour knights to the twe lve hundred jurors, making a trial jury o f' thirty-s ix, which gave a ve rdict against hirn. 7H Trial by jury had theref·o re been establi shed as the ordinary way to try fel o llS in the roya l courts by 122 1. T here are two po ints that are important to notice about these earl y !'rial juries. First, trial byjury was not designed to protect the accused from the kin g and his judicial machinery by givin g him trial by his neighbors. IJ anythi ng, it re presented a decrease in the procedural safeguards the accused received . By sim ply adopting the jury of presentment as the trial jmy, the royal courts had taken a step out or the process. Under the pre- 12 15 system, if the juries of the hundred and the four nearest vi li s said they suspected the accused, he still had a chance to save his neck if he succeeded at the ordeal. The tri al jury Look the ordeal out of the process and left the accused at the me rcy of his neighbo rs. Second, the justices of the royal courts were relu ctant Lo usejurors Lo try accused f'e lons. T he large size of th e. early trial juries probably re fl ected a clis cornf·()l't among the justices with leaving the fina l questi on o f guilt or innocence in the hands of' the defe ndant's neighbo rs instead or in the hands o f' God. There was thus no sense that the accused had a righ t Lobe tried by a jury o r his peers. If' anythi ng, contemporari es thought that trial byjury was a troubling development. Connecting Magna Carta With The Jury Over tim e, people in England came t.o think of trial by jury as a protecti o n against royal tyranny and, over time, they began to associate it with Magna Car ta. In some ways, this was a natural connectio n to rnake. As earl y as the fo ur teenth century, the jury of presentment was coming to be thought o r as part o r 153 Magna Carta: Muse and Mentor the procedural guarantees of chapter 29 of Magna Carta. l.n a statute of 135 1, parliament expanded upo11 the guarantee of chapter 29 by adding that "from hencdonh none shall be taken by pe tition or suggestion made to our lord the Kin g, or to his council , unless it be by indictment or presentme nt of" good and lawful peopl e o f" the s • 6 1) ' 111' . ~ Die Veneti1, qda D«tmbris, 1U7. Rtfolvcd , &c. 'Tbll tbt PrtftJt,/1 ,,J l'rAOict 1j Flt1i11! '' lmlrift• i nt~ · A · PofHcripc. !filii'>,,., Ytr 154 Magna Carta and the Right to Trial by Jury statute is the f-irst known use of the phrase "due process of law," so important to the Arnerican constituti onal traditio n. Magna Carta was important to the political battles of the thirteenth and, to a lesser extent, fi.mrteenth centuries, but after that it receded h·om the politi cal scene. It arose fi·om its dormancy in the political battles ofthe sevent:eentlr century, heralded by Chidjustice Sir Edward Coke, who fo ught a protracted battle against King.James I over the proper relationshi p between the king and the law. In his ln~titull's o{ the !.awes o{ i',"nglnnd, Coke read tire wo rds "or by the law of the land" in chapter 29 to be a guarantee that a person would not be taken or imprisoned except. by "presentment of good and lawfull men .""2 Coke, like tJ·re authors of the fourteentl1-century statutes, thus found the grand jury guaranteed in Magna Carta. Coke's arguments about the connection between Magna Carta and tl1ejury were extended by William Penn, the Q uaker leader and founder of Pennsylvania, who, during his trial For illegal assem bly, selectively misread Coke's gloss on chapter 29's words "by lawfu l judgement" to guarantee trial by jury in criminal cases, as we ll . Coke though t tl1 at. the provision appli ed only to the trial of peers by the House of Lords, but where Coke had "Lords," Penn substituted 'jury."K:' Coke's "the Lords must heare no evidence, but: in the pres ence, and hearing of tl1e prisoner" becomes "The jury ough t to hear no evidence, but in the hearing and presence ofthe prisoner" in Penn's writ.ings."1 Penn exported this view of Magna Carta to Ameri ca. When Penn drew up the Funrlrunental [,aws o{ \1\,h t Nt;{u j nsey in 1676, he included the following provision: T hat no Proprietor, freeholder o r in habi tan t of the said Province of vVest New .J ersey, shall be deprived or condemned of: life, limb, liberty, estate, property or any ways hurt. in his or their privileges, freedoms or fran chises, upon any account whatsoever, without a clu e t.ryal , and .Judgment passed by twelve good and lawful men or his neighborhood fi rs t had."'' T he language clearl y draws upon chapter 29 of Magna Carta, but in place o r the phrase "lawfi.rljudgment of h is peers or by the law of the land," we have ;'d ue trial, and judgmen t passed by twelve good and lawfu l men of his neighbo rh ood," language that cl early con templates a tri alju ry.H<; Other colo nial acts would do the I 7 sa me.H It thus became a truism in America that Magna Carta guaranteed a ri ght. to trial by jury in criminal cases. T he grand jury and the criminal trial jury are enshrined in the United States Constitution. T he fifth amendment's guarantee that "[n]o person shall be held to answer f·or a capital , or otherwise inf ~nnous crime, unless on a presenunent. or ind ictmem of a Grand Jury" echoes language Coke used in the Institutes to gloss chapter 29. H" It applies only 10 !Ccle ral courts . T he sixth amendmen t., which has been incorporated against. the states, as we ll , guarantees trial by jury in criminal I ~ ( 155 Magna Carta: Muse and Mentor 4 1 0-0 PI ~ r o . (j DUNCA:'IJ v. LOGI S fANA. The histcwy or tr·inl by jtrr·y in crirllinnl cnsc•s hns been frc<] ucn tly tolcl .'·· H is suflic ient for present purposes to say tlr n.t by till' time our Constitution ll'fiS ll'ritten. jury ti·inl in <·riminnl cases had bee n in existence in E11 ~ l n nJ fur St'\'t' l'H l ce nturies and carried imprc~s i ve crcdPrrl ials lmrcd b)' rrrnn y to :\!a ~ nn Cnrtn. ''' rts preser vation nnd propt r operation U-~ a protection ngnins t. arhitrnry rnle \\'C rt' 1\ Jnonl-{ the mn.jor ohjec li vt'S of the rcvolu tionn.ry sPltk·mcnt which wn s cxp r es~r d in the llPrlnrntion nn d Dill or Tli ihts or 168!). In the 18th cent rrr y Bl nekston c eorrld 'nitc: 1'0ur lnw hn ~ therefore w isP iy pl nC1.' rl thi ~ Sri'OIJ!! nnd two-fold barrier. of n preSt'n tmcnL 1111d a. trinl hy jnry, brwcen th e Iiberti<'> of thr peo ple nnd tiH• p c ro ~n liv e of t h r. erCJ\\' 11 . Tt wns JH' Cl'~:-:n r y. for prc spr· vin v; IIH' ndmi rn bll' hn ln. nc·C' of onr r·o nst itut.ion . to vPSt the cxc<'lltivc power of tlw lnws in lhc prine c: nnd yet this power rni ~ h t he d nn~c r ous nnd d Pst ru c li\'f~ 10 thnt vP ry constitution. if t' Xf.' ttcri ,,· ithout c'hcck or co ntrol. by ju ::; ti ccs of oyr.,. und term iner occn~ i o unll y named by th e crow n; who mi ~ ht thPn. ns in Fmncf' or Turkry. imprisott, di :.~ patr-h. or· rxilo nny rnnn thnt was ohltOxious to th e ~O \'PI'Itl! W llL , by Ult instnnr dcclarnlion thnt sueh is their· ll' il l nn d pll'astrr·c·. Rrrt tloe founders of tht• l •: n ~ Ji sh lnw hn.vr . with cxr-e ll cnt forrcn". c·cmlri \'c:d 1-h ~-h f 1«'-'! thnL t.l1< · truth of ,.,·cry accusntion . ll'hc rh er· ,. .., 1, t ( • prefPrTrrl in th e shnpr of indictment. infor·mation. or appeal. should nfwn,·nrds he confirmed hy th r unn ni 0 !U f .. ..l'iM.o mous snn·rni!P of twC'hrr of h i~ NJtmls and nci~ hh o ur ·:-s . 1 ye.& ·re.e. ~' indifTC"rPn tl y c h o~Pn nnd supr l'i or to nll suspicion ." ' Pj:_J 1 r ~ b lf 0l K '(' r:. 1\\ . M~ ,.}/twj I ~ WttA ' ) 1 r(JIJIt~. L()JJJ t.; t-t• -r,... J (J t J / 73rt-n.j r:!;. 110 1J ' ) United States Supreme Court. Duncan v. Lou isiana (1968). Printed document with hand-written notes. Byron R. W hite Papers, Manuscript Division, Li brary of Congress 156 Magna Cart a and the Right to Trial by Jury cases. By the time the constitution was written, both of these guarantees were wide ly understood as having their origins in Magna Carta. More curio us is the seventh amendmen t, which guarantees trial byjury in all civil cases "at common law, where the value at issue shall exceed t\ve n ty dollars." Civil juries had never been guar anteed in the English co u rL~ . In 1- ~t c t , the proced ures associated with some of the commo n-law writs d id not incl ude a j ury. T he writ of debt is the p rimary example, but there were do ub t~ as late as the late fo urteentJt century as to whether a jury was the proper procedure for a writ of trespass, as we lJ.H!J Neve rtheless, some members or the constitutional conven tion co nnected the civil jury Lo Magna CartaY0 Others noticed that it was very d iffi cul t to base the ri ght to a civil jury in the co mmon-law tradition, and almost impossible to fi nd its origin in Magna Carta.\'1 Conclusion Magna Carta was not originall y in tended to guarantee trial by jury. It could not have been; juries were an unusual tri al m ethod at the Li me the charter was wri t ten. Far from thinking that tri al by one's neighbors was an important safeguard against royal ty ranny, contem porari es worried that a guilty verd ict by a jury of the neighborh ood migh t not be suffi cien t to send a man to the noose. T hat does not take anyth ing away from Magna Carta's importance to the An glo-American legal tradition, however. Magna Carta is signi(·icant today prilllarily because of the ways people have creati vely rein terpreted and even misinte rpreted the text ove r th e cen turies. Later gene ratio ns, who saw the j ury as a "valuabl e safeguard to li berty" and the "pall adium o f free government," read the jury in to chapte r :~9 / ~9 of Magna Carta, and fro m there the legend of Magna Carta and the jury en te red our Ame ri can constitutional t r ad i t i o n _\! ~ 157