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

A Concise History of the Common Law

(often at great length and drafted by counsel as an agreed statement of facts) as it found them, and leaving it to the court to determine whether this verdict was in law a determination for the plaintiff or the defendant.

From all this it is clear (in spite of Vaughan’s judgment in Bushel’s Case) that for practical purposes the jury depended very largely, if not entirely, upon the evidence placed before it in court. This was certainly true of the seventeenth century and probably true of a large part of the sixteenth century. The further question when jurors were excluded from using their own sources of information, is more difficult to answer. An indirect solution has been attempted, but the result is not conclusive.² Even within the last hundred years expressions are to be found suggesting that, at least in criminal cases, a jury was entitled to make use of its (by now, very exiguous) “general knowledge”.³ However, the survival of a theory is not always reconcilable with contemporary facts, and the principle of Bushel’s Case was no doubt felt to be politically desirable without necessarily endorsing all of Vaughan’s reasoning—which even for his own day may have seemed (like some of his other views) somewhat artificial.

Juries, in fact, came to rely on evidence offered by parties, and it was this circumstance which made necessary the development of a law of evidence; this will be discussed at a later stage.⁴

CONSTITUTIONAL POSITION OF THE JURY

We have now traced in brief the history of local institutions in their judicial aspect, together with the points of contact between them and the central government. It is at these points of contact that we first find signs of the development of the jury. For quite a long time the machinery of the jury was the regular means of communication between royal officials and the local public. Nor was this merely in judicial affairs; administration, police and fiscal matters, were all likely to be conducted through some form or other of the jury. From these beginnings as an administrative machine for extorting truth on any matter of royal concern from a reluctant countryside, the jury soon acquired a representative character. This idea of the jury representing the public of a particular locality had enormous consequences in an age when representative institutions were rapidly developing.¹ From the presenting jury of the hundred and the county it was a short step to the House of Commons in its most primitive aspect, which at first consisted of representatives from such local communities as the county and the borough, all sitting together at the King’s summons to hear and to do what he should command. An early meeting of Parliament must have resembled to some extent an enormous eyre; all the lords and notables of the land together with representatives from the local communities met together in the presence of the King or his justices for the transaction of all sorts of business, judicial, administrative and fiscal. The seventeenth-century pamphleteers had some grounds for regarding the Commons as the “Grand Inquest of the Nation”.²

As for the jury, this representative aspect served as the foundation for its later irresponsibility, which in turn created a situation of exceptional difficulty. On the one hand, ancient history and current convenience both insisted upon the necessity of the jury’s independence; a representative institution, be it a jury, a parliament or a congress, must necessarily have certain immunities if it is to do its duty, and within the broad limits set by the writ of attaint, juries were independent. On the other hand, slowly changing practice was altering the character of the jury by transforming it into a judge of facts; in this aspect of its work irresponsibility was out of place. The decisions of the judges themselves on matters of law were subject to proceedings in error; why, then, should the decisions of a jury on matters of fact be completely irreversible? Both functions were essentially the same, that is to say, an exercise of judgment, as Vaughan was keen enough to see in Bushel’s Case. It was inevitable therefore that the practice should arise of setting aside verdicts for erroneous conclusions as to facts, in the same way as decisions upon law could be reversed if they were erroneous. As far as purely private litigation is concerned, this was inevitable and entirely desirable.

The division between law and fact upset some of those ancient forms of the common law which had survived from an earlier age. The ordeals of fire or water or battle resulted in a decision of the general issue whether the accused was guilty or not guilty; no separation of law from fact could be imposed upon the judgment of God. The verdict of the jury necessarily occupied the same position. In time it became clear that the general issue in criminal pleadings could only be retained if some preliminary device were employed to separate the law from the facts. This became all the more necessary as the law—for example, of larceny—hardened into a logical, but technical dogma.¹ The device adopted was for the judge to direct the jury, explaining to them what facts would constitute the crime laid in the indictment. In the light of this exposition the jury continued to give its general verdict. Some difficulty arose, however, in trials of a political character, for here the jury retained its old representative character to a marked degree, and there has been a natural feeling that here if anywhere the jury’s independence ought to be most jealously guarded. A remarkable illustration of the feeling that a jury is likely to be more independent (or at least more representative of national feeling) than a judge is to be seen in Fox’s Libel Act² of 1792, which reduced the position of the bench in libel cases (which were frequently apt to have a political character) to a minimum by allowing the jury not only to find the facts but also to declare whether those facts in law amounted to a libel.³