Introduction
Trial by Jury is a means of arriving at the truth or falsity of an allegation made in a suit. Trial by Jury is one mode of trying the dispute and there are numerous other methods. It is also not the oldest method of trial as there were other older methods such as trial by ordeal, trial by battle etc. But these methods relied upon an appeal to the supernatural or to the fear of divine wrath and there was no real logical connection between satisfying the form and proving the truth or untruth. The jury was introduced as convenient method of legal procedure and its greater popularity rendered it popular with the increase of civilisation.
Although the jury was for long the proud boast of Englishmen as one of their indigenous institution, it’s only half true. The origin of jury system dates back to Frankish Inquest introduced by the Charlemagne of France. It was brought to England by William I after the Norman conquests. William used the inquests for collecting information about the land and the revenue from each land. Only with the help of the verdict these inquests he was able to compile the Doomsday Book which was one of the earliest examples of excellent civil administration. The Jury System in England reached its height during the reign of Henry II who was the great grandson of William I. He considered to be the father of jury system in England and there was no formal title given to him.
Although the jury system had its origin in France, it cannot be denied that the system reached its maturity and developed the form in which it adorns today in English common law tradition based on custom. In fact, in the chapter titled ‘Trial by Jury’ in his Commentaries, Blackstone traces the beginning of the jury thus- “……… a trial that hath been used time out of mind in this nation and seems to have coeval with the first civil government thereof.”
The introduction of civil juries in England was as a result of two of Henry’s innovation related to the trial of questions relating to the ownership and possession of land. The development of civil jury is discussed elaborately in the coming pages.
Older modes of Trial
The trial by jury is not the oldest mode of trial prevailed in England. In older days, the cases were decided not by the reasoning the evidence offered to the court, but by certain methods of proof. The parties were free to choose the mode of proof in some cases while in others the court would instruct the mode of proof. Some major modes of trial are given below
Trial by Ordeal
In this mode, the accused is subjected to horrible experiences. The rationale behind this mode is that the good will intervene and save the accused if he was innocent. Trial by ordeal includes ordeal by fire, ordeal by water etc.
Trial by Star Chambers
They originated from the meetings of King’s Councils which comprised of Privy Councillors and common law judges. They supplemented the activities of common law and equity, both in civil and criminal matters. They punished the activities that were not exactly offence but activities which were morally reprehensible. They didn’t refer to precedents and the punishments were given arbitrarily. This mode was abolished in 1640 by the Habeas Corpus Act due to growing public resentment.
Trial by Battle
Trial by Battle is actually a government sanctioned duel. This was used in the absence of any witnesses or confessions. In this mode, a fight will be held between two parties of the dispute and the winner will have the right to say. It slowly ceased to exist after the enactment of Assize of Clarendon by Henry II in 1166.
Trial by Compurgation
This is applied if a defendant denies the charges against him on oath by using a set form of words. Here, the defendant has to obtain a certain set of compurgators on his behalf failing which he would lose the case. The compurgators won’t testify about the facts and circumstances of the case but would be pleading the trustworthiness of the claim of innocence made of the defendant. This mode was abolished in 1833. Trial by witness is also similar this mode of proof.
Theories of origin of trial by jury
There were various and conflicting opinions expressed by the writers as to the origin of the institution, some writers were even of the opinion that it was a hopeless task to attempt to enquire into its origin. Bourguignon says, Son origine se perd dans la nuit des temps, which means its origin is lost in the mists of time. Du Cange and Hicks were of the opinion that it was introduced by the Normans, who themselves borrowed the idea from Goths.
Meyer in his work, The Origin and the Progress of Judicial Institutions in Europe, looks upon the jury as the partly a modification of the Grand Assize established by Henry II and partly an erection of the feudal courts erected in Palestine by the Crusaders and he fixes upon the reign of Henry III as the era of introduction into England. Reeves, in his History of English Law, depicted that it was when Rollo led his followers into Normandy, they carried with them this mode of trial from North. He opined that it was used in Normandy in all cases of small importance and when Normans came to England they endeavoured it to substitute in the place of Saxon tribunals. According to him it was a novelty introduced by them soon after the Conquest and that it did not exist in the Anglo-Saxon times.
Mr Sergeant Stephan says,” We owe the germ of this to the Normans, and it was derived by them from the Scandinavian tribunals, where the judicial number of twelve was always held in great reverence.”Many eminent have writers strongly maintained that the English jury system is of indigenous origin and was not derived either directly or indirectly from any other tribunal that existed in the Continent. Others have considered that the Anglo Saxon compurgators who were the sworn witnesses to facts, the twelve thegns of Etherlreds law, the system of trial in local courts by the whole body of the Shire or Hundred, contained the germ of English jury system.
The theory which presents few difficulties and which is supported by very weighty arguments is it has its origin from Normans. Whatever may be the remote source of this institution, the two points to be highlighted is that, firstly the system of inquest by sworn recognitors makes its first appearance in England soon after the Norman Conquests. Secondly, this system in England, from the first worked in close combination with the previously existing procedure of shire-moot. The developed form of jury system is definitely an English institution.
Frankish Inquistio- Predecessor of Jury System
Even though the jury system is the pride of English law, and is esteemed as a shield of their liberties, it is, in its origin, not English but Frankish and not popular but royal.
Charlemagne became the master of continental Europe after his long conquest which lasted for many years. Tired of conquests, he undertook another difficult task of constructive statesmanship and he proved to be a genius in this respect. The means employed by him for keeping in touch with local population proved to be the foundation stone of jury system which later became an essential part of English legal system. His plan to communicate with the local population was by sending commissioners at stated intervals to every community in the realm. It was their duty to procure full information from the inhabitants of all matters pertaining to administration of public affairs. The connection between sending commissioners and jury system may be less but it’s real.
After the death of Charlemagne, that part of his empire which lay west of Rhone and the Meuse, was then occupied by the Franks, was allotted to his second son, Charles. He and other Frankish Kings who succeeded him accomplished so little of note that it might be said of them, as Napoleon said of Merovingian, “What an effort for half page of history!” And yet they contributed an important process for the evolution of jury system. This was through the development of the inquisition, or the inquest of twelve men in each community who were compelled to furnish on oath the same information which, under the system inaugurated by Charlemagne, itinerant commissioners had formally been appointed to obtain.
In the process of inquisition, the practise was to summon together by an authority a group of people who were most likely, as neighbours, to know and tell truth, and to tell it under oath. The inquest usually contained twelve people. The inquest was to declare what rights the king have or ought to have in the district, what lands belonged to him, and what return he should receive from them. The inquest was also required to inform the king whether there was any misconduct by any of his officers and whether there had been any murders, robberies or other grave crimes which threatened the king’s peace. Thus the Frankish Kings had developed a system of trial and public administration based on the verdict of the neighbours rather than the trial by battle or ordeal. Though inquisition originated in France, it was not practised in Frankish Courts. It was only when the inquisition had been transplanted to England, it began its remarkable growth which evolved itself into the modern jury system.
Norman Conquest and Transplantation of inquisitio to England
The inquisition was in full practise among the Franks at the time of Northmen invasion. They began their raids before the death of Charlemagne and after his death, the came in large numbers that the Franks were unable to defeat them. During the first half of the tenth century, Charles the Simple granted to Rollo, the leader of Northmen, a large territory in the north of Gaul, on condition of homage and accept Christianity. The Northmen then came to known as Norman and their territory came to known as Normandy.
The Normans were not slow in adopting the French political institutions of the Franks which lengthened the arm of royal prerogative. During the period between the settlement of Normandy and the conquest of England, the Normans became familiar with the Frankish inquisition, and employed it as a powerful tool of public administration and justice. It was extended to operate on a variety of subjects and it eventually became an unavoidable part of the administrative machinery of Normans.
When Normans invaded England, they carried the inquisition with them. One of the first acts William the Conqueror did was to take a census of the people, lands, conditions and affairs of his new possessions. It was based on this verdicts of the inquests that the great Doomsday Book was compiled. Various administrative services such as the fixing of taxes, services to be exacted were determined by the sworn answer of selected persons of the neighbourhood. In some instances the crown bestowed some favoured churches the right to protect its land by inquest. This was done in order to protect the bishop in the way that when his title was attacked, he could himself upon the verdict of his neighbour instead of abiding the risk of judicial combat. In some cases the right of inquest was also sold to rich and powerful nobles. The institution never lost its royal character until the century after the Conquest, when Henry II promulgated those wonderful constitutions which were revolutionary in the law of procedure, and really made him the father of jury system, though the honour of such an application was never accorded to him.
It is the Conquest which laid the seed of modern jury system in the form of inquests.
The Development of Civil Jury in England
Henry II was the great grandson of William the Conqueror, and the first of the Plantagenets. He became the king of England at the age of twenty-one but had ruled as the duke of Normandy and had acquired considerable experience in the science of government.
The introduction of civil jury in England was the result of two innovations of Henry II. These reforms were in the areas related to the trial of questions relating to ownership and procession of land.
These reforms where first instituted by the series of assizes which are known as petty or possessory assizes. Those assizes were four in number: Darrein Presentment and Utrum (1164), Novel Disseisin (1166), Mort d’ Ancestor (1176). The ordinances directed that the Chancery should issue a writ, to the sheriff of the county in which the land in dispute lay, to summon twelve men of good repute to give a verdict to the justices to take the assizes when they came into the county. This verdict was an answer to the question contained in the writ, which normally required the assize to say whether disseisin of the land in dispute had taken place.
According to assize of utrum, a writ of remedy under which a jury of twelve lawful men was to decide whether the land in question was alms or free. The incident behind the proclamation of this act was a series of disputes with the Church in which the claims of the church conflicted with the claims of the State. The church argued that litigation of the lands which had been given away as alms to God and the saints should come before the spiritual courts. But the basic question which to notice was that whether the land was alms free or lay free and his question could not be settled either by the church or the crown. In this situation, Henry thought of inquisition. The speakers would be outsiders such that they would be impartial. Henry, therefore declared that the issue should be solved by the way of inquest, in the presence of his justiciar. This was probably the first use of inquest or jury in common practise.
The next reform was the assize of novel disseisin which is regarded as the immediate parent to the jury system. It was provided by royal edict y Henry II at the great council held at Clarendon in 1166. According to this assize, if any person was disseised of his free tenement without a judgement, he was to have a remedy by royal writ. A jury would be summoned and it was to answer in the presence of King’s justices, the question of seisin and disseisin. If the verdict was for the plaintiff, he would be restored his land.
This assize was an irrelevant assault upon the ancient customs and traditions of that day. It was such a radical departure from the existing modes that even the lawyers find it difficult to adjust to it. But, it was intrinsically fair, just and efficient, as compared to other modes of proof existed during those times.
In 1175, Henry instituted another possessory assize, the assize of mort d’ancestor. It was instituted at the council of Northampton. According to this assize, if a man died in possession of a land, and was not holding as a mere life tenant, his heir was entitled to obtain the possession, even though the netter right to the title might be in another. The verdict of the inquest decides whether the dead man died seised and whether the claimant was his heir.
In 1175 itself, another assize was provided which was the assize of darrein presentment, which stands to the right of advowson as the assize of novel disseisin stands to the writ of right for land. These were the important petty assizes.
The second important reform was the grand assize of about 1179, which was an alternative to trial by battle. After the fairly launching of novel disseisin, Henry decreed that no man need to answer for his free tenement without a royal writ. In case of a proprietary action for land in feudal court where the mode of proof was trial by battle, the defendant can have the whole proceeding removed into king’s court, and the question of title will be determined by an inquest. The procedure of grand assize was to issue a writ to the sheriff of the county where the land lay to summon four knights to elect twelve more who are to say whether or not the defendant had truthfully alleged that he had been illegally or wrongfully deforced from the land which he claimed to be his.
Petty assizes and grand assizes were different in nature. The great difference between petty assize and grand assize was that, the petty assizes only raises the issue of recent disseisin or dispossession while the grand assize was intended to settle the question of better title to the land in dispute. Another distinction was that the writ commencing proceedings by way of possessory assize was the writ commencing the action, while the grand assize was available only after the issue of writ of right. The petty assizes were novel forms of action while the grand assize was purely a mode of trial.
The features common to both petty assizes and grand assize were, firstly, the verdict embraced such law as was necessary to a statement of the fact of disseisin in the one case or of ownership in the other and secondly the jurors, or assize as they were more technically called, spoke their own language.