Trial by jury has become an almost mystical symbol of English freedoms. It is thought to have been enshrined in the constitution by King John in Magna Carta in 1215. This adds to the mystique as the Barons are seen as noble citizens extracting liberties from a tyrannical king. John’s reputation as the worst monarch in English history helps paint a picture of gallant free men fighting against a powerful dictator and winning against the odds.
It is, perhaps, no coincidence that the tales of Robin Hood, another avenger of the weak against the mighty, are set in the same period. As jury trial is under threat, it is worth considering the history and the importance of it and why, without sentimentality, it remains crucial.
The real origins of trial by jury seem to be lost in the mists of time. Scholars have tried to find it in the oath taking by Anglo-Saxons when one party to a suit needed to provide up to twelve men who would take an oath supporting his account. On the other hand, the most famous legal historians of the 19th century, Pollock and Maitland, argued that juries evolved from the Norman adoption of Frankish inquests. They wrote “it had in it the germ of all that becomes most distinctively English in the English law of the later Middle Ages, the germ of trial by jury”.
The evidence they supply for this argument is that juries were a royal rather than a popular evolution. They did not come out of the communal county courts, but directly from the king, which is how the Frankish kings had used it in the 9th century. It was utilised by kings in place of trial by battle, hence pacifying the realm. This type of justice was introduced to England by the Normans, but never widely used. It was used for enforcing royal rights, but also for exposing the wrongdoing of royal officials, hence bolstering the position of the monarch.*
Nonetheless, there is no clear early formalisation of the jury with which we are now familiar, until after the Assize of Clarendon in 1166, which established the ‘Grand Jury’, although it is anachronistic to call it by this name in the 12th century.
