The most prude form of what we know today as the jury system is actually more than a millennium old. The jury system became a key selling point for the institution of common law. Where the establishment of common law occurred, boasts myriad theories; likewise, it is difficult to trace the first instance of a jury trial. Despite such verities, however, I shall provide insight into answering such questions, and in doing so focus primarily on the Anglo-Saxon tradition of these institutions. Understanding where common law and its parts originate is essential in understanding the Anglo-Saxon mentality of trial by ordeal. Justice by this method was fairly common when individual judges still resided over the courts, and juries had not yet experienced the widespread establishment that they enjoy today. As juries grew in popularity, however, trial by ordeal lost an equal amount of favoritism. Thus, with the incorporation of juries into common law, common law itself was altered in a definitive, unprecedented and seemingly more equality provoking manner, and western legal tradition has been since forever altered.
Sir Frederick Pollock confers that common law can find some of its deepest roots during the time in which “German tribes…confronted the Roman legions” (The Genius of Common Law 8). Contrary to the likelihood of such an assertion, numerous more sources prefer to attribute the true establishment of England’s famed common law to the reign of Henry II. In the time during which he reigned in the twelfth century, Henry II instituted numerous policy changes with regards to the law. He altered both the civil and criminal aspects of it. Most noticeably though, was his instituted shift from a Hammurabi’s Code type system of laws in which individuals were forced to pay some form of compensation for all their crimes, to a more extreme system where “serious offences [such] as felonies [became instead] punishable by death” (John Hudson, The Formation of the English Common Law, 19). Also during Henry’s reign, the law is presumed to have altered its form to a more recognizable form to that of today’s common law, through changes that “were characterized by processes of categorization and routinization, in particular the routine royal treatment of a wide range of cases” (Hudson 22).
The common law further developed over the next several centuries, and ultimately eighteenth and nineteenth century England possessed an easily manageable and finite set of laws by which judges could act and take note. Common law seems mostly to have been based upon precedent and tradition, but also reveals ties to ancient custom. Michael Lobban says that advocates of the common law “sought to analyse the law in terms of principle, showing the principle through history” (The Common Law and English Jurisprudence 1760-1850 12). This principle, however, left room for creativity, for Lobban also claims that the common law was “based on a system of forms which allowed lawyers to look outside the law for solutions to legal problems.” (80). For example, judges and lawyers could simply set a precedent based on current political or social influences. Common law was in this way privileged, for not many other institutions of jurisprudence incorporated such unique and unorthodox methods of providing for justice.
With the establishment of common law in effect, it is equally as important to discover where and when jury bodies were first established, and ultimately incorporated into standard legal procedure. Determining at what point in history juries truly emerged, arouses confrontation. There were in fact juries during the ninth century, tasked with “royal administrative inquiry,” as well as during the days of the Romans and Socrates, but juries could even have been around long before this time (Theodore F. T. Plucknett, A Concise History of the Common Law, 109). Plucknett asserts, “The appearance of a principle or institution in one age, followed by the appearance of the same or a similar institution at a considerably later age, must not lead one to suppose that the later is derived from the earlier” (109). Hence we have justification for the assertion that juries, at least those that most closely resemble those of today’s, and in keeping with the theme thus far, originated somewhere in Anglo-Saxon history. In all likelihood, and with the utilization of what written records exist, the first credibly known and recognized establishment of juries was by King Ethelred in the year 997. If we fast-forward to the time of Henry II, such juries were termed “assizes,” and at that time began to embrace the traditional composition of twelve men.
James R. Stoner asserts that Montesquieu, in taking account of English jurisprudence, believes that the “power [of the institution] is lodged not in a judiciary but in juries” (Common Law and Liberal Theory 156). Montesquieu calls English judges simply mouthpieces for the law, and that “the genius of the English [judicial] system seems to be…juries” (Stoner 156). Juries undoubtedly had a dire effect on English law, as well as the rest of the world’s perception of law, for the notion in itself crossed long-held expectations that the power of decision in legal proceedings be placed in the hands of a select or privileged one or few. Specifically for this reason, western legal tradition has been warped with the incorporation of juries. No longer did individuals always have to face judges, who were oftentimes rewarded for the number of convictions they made. Individuals had an opportunity to appeal to the public, even their peers. An early version of the jury was called the “wager of law” (Plucknett 115). It involved requiring the individual accused of committing a crime to find a set number of individuals, oftentimes twelve, determined by the court that could swear under oath to the verity of what the defendant claimed, essentially through means of familiarization and comfort with that person’s moral character.
Theodore Plucknett calls juries simply “a new mode of trial”, different from “ancient” modes of trial (107). Juries have become the most important characteristic of western legal tradition throughout the many years. Undoubtedly the largest, most noticeable impact that the advent of juries has had has been the abolition of ordeals. Additionally, the periodic phasing out of biased judges ensued over time, although slowly. Initially, juries could be intimidated and corrupted through various forms of vice. Likewise, juries could sometimes be punished, even executed if they “found verdicts manifestly against the evidence” (Plucknett 133). The power of judges in cases tried by juries fell to the wayside, and, besides sentencing power, all they were left with under such circumstances was the ability to instruct the jurors on what was required, in terms of evidence, to constitute a conviction of certain crimes. This provided room, however, for a lack of determination to result, and therefore a mistrial to take place.
Unmistakably, trial by ordeal most certainly provided a conclusive determination relating to guilt and innocence. Trial by ordeal was adopted by the very powerful and influential Church of England, and subsequently advocated there on out until its eventual abolition. Because the Church engaged in trying criminals through trial by ordeal, the act gained a particularly significant and symbolic meaning, for the premise of God’s watchful eye being present gained “practical value as a psychological test of truth-telling” (Plucknett 114). It was seen that, in the case of a trial by ordeal, the ultimate determination of guilt or innocence was absolute and truthful, for whatever determination resulted was a decision by God, and the legitimacy of this Supreme Being’s verdict could in no way be questioned.
Ordeals had, for a long time, been the chief method of trying individuals accused of crimes. Ordeals usually involved archaic and crude methods. An older type of ordeal which was usually less painful for the suspected criminal was trial by battle. “In civil cases it was not fought between the parties themselves, but between their respective champions,” states Plucknett, as he points out that the actual suspect did not have to fight, but could inquire the help of a friend or hire a trained fighter, to fight for him (Plucknett 116). Both sides would dual, and the loser was afforded the guilt in the case. Ordeals were not usually this simple, however. One kind of ordeal required the suspect to reach his or her hand into a pail of boiling water and to remove a stone from it, whereby “his guilt or innocence was ascertained by inspecting his hand after three days” (Plucknett 114). In the overwhelming majority of cases, a person’s hand would not have healed in those three, short days, and they were presumed guilty at that point.
This system was assumed to work under the power of God; however, there is no scientific or other logical explanation that can support this form of trial. There existed countless types and variations of ordeals, but the same legal inconsistencies struck every time. Eventually, ordeals began to lose their popularity due to a determined rampancy of inconclusiveness, ultimately yielding to the establishment of juries. This flip-flopping of legal order could not expect an immediate, complete implementation overnight. However, as one more jury formed and provided legal services, one less trial by ordeal took place. In this way, the rate of growth of trials by jury was inversely proportional to the downfall of trials by ordeal.
Fairness is what the introduction of juries proposed to establish; or, at least a greater extent of justice than trial by ordeal in terms of the logical determination of guilt and innocence. Trial by jury began to be phased out over time in a way that resembled the opposite of trial by jury’s immensely popular growth. The institutions of law manifested in England, where common law essentially originated, began to shape, through precedents like trial by jury, into what is today’s modern western legal tradition. Most westerners today cannot fathom a trial for a capital crime that is not afforded at least the right to a trial by jury. It just makes sense, is what most people reason. It didn’t always make sense though, for there existed a time in western legal tradition when everyone, regardless of their religious beliefs, was forced to accept the verdict of God, which was believed to be determined through a trial by ordeal. Looking back, a person could only hope, or pray, that their wound healed fast enough or that they floated to the surface of a lake while bound. The overwhelming majority of the time, God found you guilty.
Works Cited
Hudson, John. The Formation of the English Common Law. New York: Addison Wesley Longman, 1996.
Lobban, Michael. The Common Law and English Jurisprudence 1760-1850. Oxford: Clarendon Press, 1991.
Plucknett, Theodore F. T. A Concise History of the Common Law. Boston: Little, Brown and Company, 1956.
Pollock, Sir Frederick. The Genius of the Common Law. New York: AMS Press, Inc, 1967. Stoner, James Reist, Jr. Common Law and Liberal Theory. Lawrence: University Press of Kansas, 1992.
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