23.11.2023

John Morgan ‘The Jury’ 1861: an obviously jaundiced portrayal

Defend and extend the jury system

Acquittals of pro-Palestine activists, BLM protestors and XR campaigners have infuriated the Tory press and seen a judicial backlash. Mike Macnair argues for juries and their right to hear ‘lawful excuse’

There have recently been a number of high-profile cases in which juries have “perversely” - from the point of view of the Tory press and at least a section of the judiciary - acquitted protestors. The case of the ‘Colston four’, who pulled down a statue of a slave-trader as part of the Black Lives Matter campaign, got a lot of hostile press attention. Since then acquittals have continued, especially in climate-change protest cases: for example, very recently of Extinction Rebellion protestors who damaged HSBC Bank’s London HQ.¹

The problem with this from the point of view of the government is essentially political. Conviction in the crown court labels the person convicted as a ‘criminal’ in a way in which a juryless magistrates’ court (which deals mainly with traffic and low-level regulatory offences) does not. And an ‘exemplary’ severe sentence in the crown court can be trumpeted in the press and at least hoped to deter repetition of the conduct. Some opponents of ‘perverse’ acquittals have suggested extending the magistrates’ court’s sentencing powers. But this does not substitute for the political, ‘criminalising’ and publicity effects of crown court conviction.

A section at least of the judiciary thinks that they have found a way around this ‘problem’. This is to threaten protestors with conviction for contempt of court² if they introduce legal or moral arguments the judges disagree with, or remind jurors of the historical rule that jurors are to decide according to their consciences,³ and of the rule in Bushell’s case (1670) that judges may not punish juries for failing to find a verdict according to his direction.

There has been useful campaigning work to fight against this judicial approach.⁴ The point of this article is to provide some historical context to the struggle over judicial control over juries, which has a long history, and to argue that the defence - and restoration - of jury trial should be a fundamental aim of the workers’ movement: as we say in the CPGB’s Draft programme, “Defend and extend the jury system. Anyone charged with an offence that carries the possibility of a prison sentence can elect for a jury trial.”⁵

Origins

Go back to the early Middle Ages and all sorts of disputes - both what moderns would call ‘civil’ and what we would call ‘criminal’ - were decided by groups of the ‘notables’ of a locality (kingdom, shire/county, borough). Around 1100, systems of this sort began to be replaced by forms of professionalised law. The major variety across western Europe was the ‘canon law’ - that of the Roman Catholic church.

Here decisions were taken by professional judges sitting alone, subject to rules of law, and were appealable - from the bishop’s court to the archbishop’s court, from the archbishop’s court to the pope in Rome (and also directly to the pope, who would then appoint ‘judges delegate’ in the province to hear the case and report back to him). The system of decision by judges sitting alone was notoriously dodgy. Archdeacons were responsible for local enforcement of church criminal law, and a joke of the 1100s posed an imaginary examination question in theology: “Can an archdeacon be saved?” - ie, will a church court judge inevitably go to hell?⁶ Canon law procedure was ferociously dilatory and expensive, because judges sitting alone were untrustworthy, and so appealing had to be easy - and easy appeals produced cost and delay.

The government of the English king, Henry II (1154-89) came up with an alternative approach that tried to avoid these problems. Rather than appeals, the equivalent of modern supreme court judges had to ride round the country, sitting and hearing cases in each county (‘eyres’). Questions of fact were decided by means that could not be contradicted, and thus involved no judicial discretion: thus trial by battle (witnesses on each side, or in privately prosecuted criminal cases prosecutor and defendant, fought each other with spiked clubs) or in publicly prosecuted criminal cases trial by ordeal (the defendant might be made to carry a piece of hot iron blessed by a priest over a set distance, or be tied up and thrown in a blessed pond, and so on, with the results ‘deciding’ guilt or innocence).⁷ And in a limited range of cases, where the facts were likely to be publicly known, like land boundaries or recent possession and dispossession of land, panels of locals were summoned to swear to this public knowledge.⁸ The point of this overall scheme was to avoid both dodgy decisions by individual judges, and appeals leading to cost and delay.

In 1166 the ‘Assize of Clarendon’ (a law made by a meeting of the king’s council at Clarendon Palace, Wiltshire) ordered panels of locals to be summoned to swear to ‘present’ (accuse) persons who were generally believed to be armed robbers, and so on, thus bringing the jury form (later called the ‘grand jury’) into criminal law. The accused would be put to the ordeal. But juries also became available as an alternative to trial by battle in privately prosecuted criminal cases. In 1215 the church prohibited the clergy from blessing the hot iron, cold water, etc in the ordeal, and some alternative had to be found. After some hesitation, the jury form was adopted for this purpose: the ‘petty jury’. Meanwhile, the use of juries in land claims was gradually extended beyond its original context.

The whole point of these choices was to avoid judicial fact-finding and thus the normal consequences produced in terms of arbitrary judicial behaviour by judges sitting alone, and subject to appeals, cost and delay. It was not originally aimed at constitutional liberty or egalitarianism. However, by the mid-1300s trial by jury was beginning to become associated with the “judgment of peers (equals)” guaranteed by Magna Carta, chapter 29, and forms of juryless procedure could be objected to as denying ‘due process of law’.⁹ This evolution did see jury trial as an egalitarian form through the idea of ‘peers’. It is reflected in the guarantee of jury trial in the 7th amendment to the US constitution.

It is a corollary of this regime that judges could not just overrule juries. If the jury was guilty of misconduct, a procedure called the ‘attaint’ could be used. Here a new jury of 24 was summoned to decide whether the original jury of 12 was guilty of perjury. Thus, for an early example, in Urse de Cadiho v Ralph fitz Ralph (1204), de Cadiho successfully sued Ralph fitz Ralph for ‘novel disseisin’ (recent dispossession of land), but Ralph brought attaint. Unusually, the attaint jury tells us the story: Ralph’s great-aunt, who had given him the land, died and, while the family was out at her funeral, Urse de Cadiho broke in and put one of his employees in; when they got back, the family ejected him. On this basis the first jury was convicted of perjury: Urse never really had such possession as to properly be said to be dispossessed.¹⁰

The attaint procedure was gradually extended by statute,¹¹ and was still ‘live’ in the 1500s. Thus, for example, in Regina v Ingersall (1593) the Court of Queen’s Bench held that attaint was available for the prosecutor in an ‘information qui tam’ (a kind of prosecution) for a misdemeanour (a lesser criminal offence); but that the special verdict found by the attaint jury in the present case did not amount to a conviction of the first jury, because it was entitled to disbelieve the whole evidence of a witness who was shown to be wrong on a single point.

In 1665, however, chief justice Hyde said in King’s Bench that “jurors ought to be fined if they would go against the hare and direction, take bit in mouth and go headstrong against the court; and said, that by the grace of god he would have it tried, seeing the attaint is now fruitless”.¹² The last actual report of an attaint case is from 1639, so Hyde was probably not wrong to think the procedure had gone out of use.¹³ But that should not imply that the judges should take control. The underlying idea of the attaint - that judges were not entitled to overrule juries - resurfaced in different forms.

Judge control

The feudal regime in decline became more authoritarian - among other means by developing judicial controls over juries. The Court of Wards, used to extract the royal feudal revenue from the landowning class, asserted at least from the 1590s a power to fine and imprison jurors who refused to find a verdict for the crown. This practice was complained of by the 1641 Grand Remonstrance. The Court was abolished by the Long Parliament in 1645, and this abolition was retained at the Restoration with the 1660 Tenures Abolition Act, which asserted that

… it hath beene found by former experience that the Courts of Wards and Liveries and Tenures by Knights service either of the King or others, or by Knights service in Capite or Soccage in Capite of the King and the consequents upon the same have beene much more burthensome grievous and prejudiciall to the Kingdome then they have beene beneficiall to the King …¹⁴

The Court of Star Chamber claimed a general disciplinary power over jurors. It was abolished in 1641, along with similar ‘prerogative’ courts and the jurisdiction of the Privy Council in England; the statute criminalised any executive or judicial attempt to revive it. This statute had been agreed by Charles I (albeit under political duress) before the outbreak of the civil war, and was not repealed in 1660.¹⁵

In spite of these concessions, the Restoration government was concerned to crack down on religious dissent, and had difficulty with juries failing to convict people as a result. Two months after chief justice Hyde’s statement quoted above, the King’s Bench in Wagstaff ruled that that criminal trial jurors could be fined and imprisoned for refusing to convict under the ‘Conventicles’ legislation, which prohibited non-Anglican religious meetings, “contrary to their evidence, which in the opinion of the [trial] Judge [Kelyng J] was full and pregnant” or failing to follow the direction of the trial judge “on a matter of law” (unspecified).¹⁶

The political nature of the case is indicated by the government having hired the former Cromwellian chief justice, John Glynne, and Richard Cromwell’s solicitor-general, John Maynard, as their counsel to defend the practice, attempting to establish a constitutional consensus for it. Maynard argued that “trust must be laid some where” (hence, in the judge), and Twisden J extended this: “The judge is intrusted with the liberties of the people, and his saying is the law.”

They did not succeed in settling a consensus. The fall of the Earl of Clarendon, who was lord chancellor and effective prime minister, in August 1667 opened a political door, and Clarendon was impeached in November for treason by subverting the constitution, and fled to France. On December 11, the House of Commons heard a committee report on the conduct of Kelyng, now chief justice of King’s Bench:

That the Proceedings of the Lord Chief Justice, in Cases now reported, are Innovations in the Trial of Men for their Lives and Liberties; and that he hath used an arbitrary and illegal Power, which is of dangerous Consequences to the Lives and Liberties of the People of England; and tends to the introducing of an arbitrary Government.

That, in the Place of Judicature, the Lord Chief Justice hath undervalued, vilified, and contemned, Magna Charta, the great Preserver of our Lives, Freedoms, and Property.

That he be brought to Trial, in order to condign Punishment, in such manner as the House shall judge most fit and requisite.¹⁷

On December 13 Kelyng was heard in his own defence, and the Commons decided not to impeach him, but nonetheless “Resolved, &c That the Precedents and Practice of Fining or Imprisoning Jurors is illegal.” And “Ordered, That the Lord St John have Leave to bring in a Bill for declaring the Fining and Imprisoning of Jurors illegal”.¹⁸

The bill died in the usual process of parliamentary delays. But the threat of it, and the threat to impeach Kelyng, had their effect. In 1670 in Bushell’s Case the Court of Common Pleas led by chief justice Vaughan ordered habeas corpus to release jurors who had been imprisoned until they paid fines for failing to convict Quakers contrary to the judge’s direction.¹⁹ The core of Vaughan’s elaborate argument, which also involves a lot of technical law, is that there is no reason to suppose that the trial judge’s assessment of the evidence is actually better than the jury’s.

Conversely, if the trial judge’s view of the case is to overrule the jury’s, why bother with juries at all? This point is, at the end of the day, the fundamental answer to all arguments for judicial control of ‘perverse’ verdicts.

Libel law

Bushell’s Case was not universally accepted by lawyers,²⁰ but politically it killed the practice of imprisoning and fining jurors for failing to convict contrary to judicial direction. The issue of judicial control resurfaced in a different form after France during the Seven Years War (1756-63) abandoned the Jacobites and with them the hope of feudal restoration in Britain. This, in turn, allowed the Tories, who had been tainted with Jacobitism and hence in opposition since 1714, gradually back into office and into judicial appointments. A section of the Whigs gradually became ‘Torified’; another section started to revive 17th century constitutional arguments for liberty.

In this context, sharp arguments emerged about the relative roles of judge and jury in criminal libel (seditious libel, which allegedly undermined the government; defamatory libel by allegedly defaming government ministers and other officials; blasphemous libel by writing that allegedly undermined Christianity).²¹ A new mechanism of judicial control was developed. This was to rule that certain questions posed by an indictment or information (charge against the defendant) were questions of law, not questions of fact. The famous lawyer, Sir Edward Coke, had said: “ad quaestionem facti non respondent judices [the judges do not answer a question of fact]; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores [jurors do not answer a question of law]”.²² Now the 18th century judges argued that the question whether a published statement was libellous (seditious, defamatory or blasphemous) was a question of law; hence the jury could be forced to give a special verdict only on whether the defendant published it.²³

The claim here is as unsound as the argument for judicial punishment of juries before Bushell’s Case. That seditious libel consists of publications that tend to undermine the government is certainly a question of law (19th century judges cut the definition down). That this tends to undermine the government, so as to be seditious libel, is a claim about the actual likely effect of this statement - a claim that a judge cannot make without finding facts to the exclusion of the jury.

This version of judicial control was defeated by political action, though Lord Camden (chief justice of common pleas 1762-66, and lord chancellor 1766-70) opposed the majority view of the judges and in House of Lords debate in 1792 backed the eventual legislation. Fox’s 1792 Libel Act asserted the right of juries to give general verdicts in libel cases. Until recently, it was regarded as constitutionalising the right to trial by jury in defamation cases; but the legal profession has recently managed to get rid of it.²⁴

Fox’s Libel Act was not broad enough. It simply asserted the right of juries to give general verdicts in criminal libel cases. It did not strike down the practice of judges turning questions of fact into ‘questions of law’ and thereby undermining jury trial. Defendants in accident cases (employers, railway companies …) have been enthusiastic supporters of the practice, beginning in the early 19th century: it helped them to escape liability.²⁵ The result is also to increase the costs of jury trial itself and gradually undermine the advantages of the common law procedure. Eroded in this way, civil jury trial in general was suspended in 1918 and again in 1939 as a war measure, and not reinstated by the 1945 Labour government.²⁶

This, in turn, produces a tendency to marginalise the criminal jury trial, and radically increase general public ignorance of the law. The legal profession thus appropriates the law as its own exploitable private property, and the monarchs franchise to the profession the sale and denial of justice in violation of the Magna Carta.

It can thus be seen that the recent ‘contempt’ rulings are merely the latest version of the judicial power attempting to take over the role of the jury for the benefit of government and of the paying customers (the wealthy). The objection to them in principle is at its core the same objection that Vaughan made to fining jurors in 1670, and Lord Camden made to the majority judges’ enforced special verdicts in 1770-71 and 1792. The indictment for criminal damage puts in issue whether the defendant “without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence” (1971 Criminal Damage Act). On such an indictment, it is impossible for the judge to exclude evidence or argument to the jury that sets up a “lawful excuse” without finding facts.

If it is to be ruled that “lawful excuse” does not include the prevention of crime, in the form of Israeli war crimes in the occupied territories or deterring corrupt payments to UK political parties to procure breaches of UK obligations under climate-change agreements, that needs to be openly legislated - just as, if the government is to insist that Rwanda is a ‘safe country’, they need to legislate explicitly that black is white, and so on. The recent ‘contempt’ rulings are thus not only a usurpation of the constitutional role of the jury, but also a usurpation of the legislative power in the interests of the executive and animated by judicial bias in favour of the views of the Tory press, manifest in the nature of the rulings.

The fundamental lesson of this long history is that the judiciary are not, as Alexander Hamilton claimed in 1788, the branch of government “least dangerous to the political rights of the constitution”.²⁷ Judges can and do actively subvert political rights, and vigilance against them is essential.

Left silence

The left and the workers’ movement has largely stood silent in this country, as trial by jury has been gradually undermined over the past century and a half. Important steps were, in fact, taken by Labour governments - by Attlee and, more recently, by Blair-Brown (though ‘reforms’ of libel begun under them were actually carried into effect by the Conservative-Liberal Democrat coalition in 2013).

This failure to defend jury trial, and indeed its practical undermining, reflects in the majority of the workers’ movement commitments to managerialist forms of socialism, whether these are to be Fabian, Kautskyite²⁸ or Soviet-bureaucratic: not to the concept of socialism as democratic self-government. Managerialist socialism can all too easily succumb to the supposed ‘efficiency gains’ of anti-democratic procedures; including judicial fact-finding. But in reality judicial fact-finding is as unreliable as, and more dilatory and expensive than, common law procedure was.

Jury trial is not self-government in the full sense, but it is nearer to self-government than fact-finding by judge alone (or by judge sitting with ‘assessors’, as they did in early Soviet ‘People’s Courts’).

Within the far left, failure to defend jury trial reflects the general economism that tends to ignore constitutional questions on the basis of the delusion that, by setting these on one side, masses can be mobilised in street action or strikes, and then led by the nose into making a revolution.

It does not work - and the result is the inability of the left to pose a political alternative to capitalist class rule. The case of the left’s failure to defend trial by jury is one among many examples of this.

‘Climate activists acquitted in clothes donated by Stella McCartney’ The Times November 17. See also extinctionrebellion.uk/2023/10/30/jury-acquits-extinction-rebellion-for-treasury-fire-engine-action-and-crown-drops-remaining-trials-after-judge-suggests-not-in-public-interest; realmedia.press/palestine-action-crown-court-acquittal.↩︎
Eg, www.palestineaction.org/resistance-repression (February 12); www.itv.com/news/london/2023-03-03/insulate-britain-protesters-jailed-after-flouting-court-order-at-trial; ‘Fears over right to protest after woman with sign at climate trial prosecuted’ The Guardian September 19.↩︎
G Woodbine and SE Thorne (eds) Bracton Vol 3, Cambridge MA 1968, pp63, 336-38; later medieval usage is in N Doe Fundamental authority in late medieval English law Cambridge 1990, pp146-48. For general discussion, see TA Green Verdict according to conscience Chicago 1985.↩︎
Eg, goodlawproject.org/case/silencing-of-protesters; ‘Charge us with contempt too, say 40 people, if climate activist prosecuted’ The Guardian August 17.↩︎
communistparty.co.uk/draft-programme/3-immediate-demands.↩︎
RC van Caenegem, ‘Public prosecution of crime in twelfth-century England’, in CNL Brooke et al (ed) Church and government in the Middle Ages Cambridge 1976, pp41-76.↩︎
R Bartlett Trial by fire and water Oxford 1988. The increase in the use of battle and the ordeals, as opposed to other methods of proof, in the time of Henry II, is noteworthy.↩︎
M Macnair, ‘Vicinage and the antecedents of the jury’ Law and History Review Vol 17, pp537-90 (1999).↩︎
Eg, Criminal and Civil Justice Act 1352.↩︎
Curia Regis Rolls London 1926, Vol 3, pp131, 134 and 138.↩︎
Extensions are conveniently listed in Blackstone’s Commentaries Vol 3 (1768) at avalon.law.yale.edu/18th_century/blackstone_bk3ch25.asp.↩︎
God did not permit: Hyde died (aged 70) a few days after he made this statement.↩︎
Cf also St Bar v Williams (1674) at p352, where the court says that attaint juries had in the past refused to give verdicts, and “it would not be so, were the judgment not so penal; and because of that the new trials were introduced”.↩︎
HE Bell The court of wards and liveries Cambridge 1953, pp148, 158-59; Tenures Abolition Act 1660, preamble.↩︎
TA Green (see note 3 above), pp140-43; ‘Habeas Corpus Act 1641’ Statutes of the Realm, Vol 5, 1628-80: www.british-history.ac.uk/statutes-realm/vol5 pp110-12.↩︎
The reporter, Thomas Raymond, was plainly sceptical: he cross-referred to an earlier case in which he had noted the conviction of the infamous Richard Empson, executed in 1510, after being charged among other offences with fining juries for refusing to convict according to direction.↩︎
Journals of the House of Commons Vol 9, p35.↩︎
Ibid p37.↩︎
This has been extensively reported (see note 4 above).↩︎
JH Langbein, ‘The criminal trial before the lawyers’ University of Chicago Law Review Vol 45, pp263-316.↩︎
The fourth variety, obscene libel, gave rise to legal-constitutional argument in 1707 and 1727, but was not part of the late 1700s jury control arguments.↩︎
The tag is over-general, as JB Thayer already argued in 1890: ‘Law and fact in jury trials’ Harvard Law Review Vol 4, pp147-75 (1890). The principle Coke’s tag attempts to express is, on the one hand, that judges were bound to decide questions of law appearing on the face of the record, not otherwise; and, on the other hand, that juries might under the Statute of Westminster II, 1285, elect to give a special verdict and thus dump on the judge’s questions of law that have arisen at the trial - though they might give a general verdict (at the risk of being attainted if a second jury thought the first jury’s view of the law was so perverse as to amount to perjury).↩︎
See the discussion in RH Helmholz and TA Green Juries, libel and justice Los Angeles 1984.↩︎
The Libel Act was repealed by the 2009 Coroners and Justice Act, while the right to jury trial in civil proceedings was abolished by the 2013 Defamation Act. See ‘Luke Cooper’s case shows damage of abolishing trial by jury in libel cases’ The Guardian June 28 2012.↩︎
D Ibbetson Historical introduction to the law of obligations Oxford 1998, pp173-74.↩︎
P Devlin Trial by jury London 1956, chapter 7.↩︎
Federalist Papers No78: avalon.law.yale.edu/18th_century/fed78.asp.↩︎
‘Kautskyite’ is less obvious, but it is in fact clear that Kautsky was already committed to the independent role of legal and other ‘experts’ in the 1893 Parliamentarism and democracy (see B Lewis (trans) Karl Kautsky on democracy and republicanism Chicago 2020) and continued to be so later.↩︎