Jury: Legal Aspects

In 1166, during the reign of Henry II in England, the Assize of Clarendon directed juries of twelve people in each community to reveal and accuse members of the community believed to have committed crimes. These juries, the progenitors of modern grand juries, did not decide criminal cases; their function was to serve, in the absence of professional police forces, as the king's eyes and ears. The trial of criminal accusations was by battle, by wager of law (formal oath taking by the accused and by others who vouched for him), and—most commonly—by ordeal. The ordeal took many forms—for example, carrying a heated iron a specified distance so that authorities later could inspect the wound to see whether it was infected or healed. An accused who passed the ordeal was acquitted.

In 1215, the Fourth Lateran Council under Pope Innocent III outlawed the ordeal, and in England, jury trial emerged as its replacement. Initially, judges had sufficient doubts about this procedure that they required the accused's consent before using it, but they ordered the accused to be pressed under stones until he either consented or died. Within about a century, it was established that the common law jury consisted of twelve people, no more and no less. (Sir Edward Coke later noted the mystic significance of the number twelve, which echoed the number of tribes of Israel and the number of Christ's disciples.) It was also quickly established that a jury could convict or acquit only by unanimous vote. Traveling justices sometimes carried juries from town to town in carts until they reached agreement.

Juries initially were self-informing, relying on their own knowledge and investigation rather than on evidence presented in court. The earliest jurors thus were witnesses as much as they were judges. Even in 1671, long after jurors had come to base their verdicts on courtroom evidence, Chief Justice John Vaughan's opinion in Bushell's Case, 124 Eng. Rep. 1006 (Common Pleas 1671), declared that jurors could rely on their personal knowledge as well.

This landmark case arose when William Penn (later the founder of Pennsylvania) and William Meade were charged with unlawful assembly and disturbing the peace. They had preached Quaker doctrine on the streets of London, generating a tumultuous response. When the jurors refused to convict, the court fined them for disregarding the evidence and the court's instructions. One juror, Edward Bushell, was imprisoned for refusing to pay the fine. He filed for a writ of habeas corpus, and in a ruling that effectively ended longstanding controversy about the issue, Chief Justice Vaughn declared that judges could neither punish nor threaten to punish jurors for their verdicts. Bushell's Case established the principle of noncoercion of jurors.

Although, after Bushell's Case, judges could not force jurors to convict, a common law judge who disapproved a jury's verdict of guilty had an effective means of preventing the defendant's punishment. The judge could recommend a pardon with full assurance that the Crown would grant it as a matter of course. In addition, judges guided juries by commenting freely on the evidence. In America, this practice ended in the nineteenth and twentieth centuries (Lerner).

The Framers' enthusiastic support for the jury stemmed mainly from the role that American juries had played in resisting English authority before the Revolution. These juries greatly hindered the enforcement of English revenue laws and all but nullified the law of seditious libel. The jury was revered as the most democratic institution in the colonies.

The most noted of the pre-Revolutionary cases was that of John Peter Zenger, a New York printer tried on charges of seditious libel in 1735. Zenger's paper, the first journal of political criticism in America, directed most of its barbs toward the royal governor of New York. One of the governor's supporters, Chief Justice James De Lancey, appointed another supporter to represent Zenger at his trial. After the proceedings had begun Andrew Hamilton of Philadelphia, widely regarded as the foremost lawyer in the colonies, "rose dramatically from his chair in the City Hall courtroom and announced . . . that he would participate in Zenger's defense" (Katz, p. 22). Hamilton argued that the truth of Zenger's publication was a defense, and although his argument was manifestly unsound under the law of the era, he maintained that the question was for the jury to decide. The jury's acquittal brought "three huzzas" from spectators in the courtroom.

The English responded to their difficulties with American juries by extending the jurisdiction of admiralty courts (nonjury courts) and by declaring that colonists charged with treason would be tried in England. The Declaration of Independence listed as one of its grievances against George III his "depriving us . . . of the benefits of trial by jury."