Editing Jury trial (section)

===England and Wales===
{{main|Juries in England and Wales}}
[[File:Trial by Jury Usher.jpg|thumb|Drawing from a 1920 edition of [[W. S. Gilbert]]'s ''[[Bab Ballads]]'']]

According to [[G. M. Trevelyan|George Macaulay Trevelyan]] in ''A Shortened History of England'', during the [[Vikings|Viking]] occupation:

{{quote|"The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ''[[Thing (assembly)|thing]]'' [governing assembly] to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like [[Njáll Þorgeirsson]], the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as its main officers, twelve hereditary 'law men.' The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans."}}

The English king [[Æthelred the Unready]] set up an early legal system through the [[Wantage Code]] of Ethelred, one provision of which stated that the twelve leading [[thegn]]s (minor nobles) of each [[Hundred (county division)|wapentake]] (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.<ref>{{cite web|url=http://www.britannia.com/history/narsaxhist2.html |title=Narrative History of England |publisher=Britannia.com |access-date=2008-09-06}}</ref>

In the 12th century, [[Henry II of England|Henry II]] took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. As with the Saxon system, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "[[grand jury]]" through his [[Assize of Clarendon]]. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their [[Hundred (county division)|hundred]] to a "justice in eyre", a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a [[trial by ordeal]].

The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed.<ref>{{Cite news |date=2019-02-09 |title=Trial by ordeal: When fire and water determined guilt |language=en-GB |work=BBC News |url=https://www.bbc.com/news/uk-45799443 |access-date=2022-06-07}}</ref> The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became an explicit right in one of the most influential clauses of [[Magna Carta]]. Article 39 of Magna Carta read:

{{blockquote|{{Lang|la|Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.}}}}

It is translated thus by [[Lysander Spooner]] in his ''Essay on the Trial by Jury'':

{{blockquote|No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.}}

Although it says "and or by the law of the land", this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the [[Custom (law)|consuetudinary law]], based on the customs and consent of John's subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people.

According to some sources,{{who|date=April 2021}} in the time of Edward III, "by the law of the land" had been substituted "by due process of law", which in those times was a trial by twelve peers.

In 1215, Magna Carta<ref>[http://www.fordham.edu/halsall/source/magnacarta.html Magna Carta of 1215]</ref> further secured defendants the right to a judgement of "reputable men of the neighbourhood"/"their equals" by stating that

{{Blockquote|For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.

To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these.

If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way.}}

During the mid-14th century, persons who had sat on the [[presenting jury]] (i.e., in modern parlance, the [[grand jury]]) were forbidden to sit on the trial jury for that crime. ([[25 Edw. 3]]. Stat 5. c. 3) (1353). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding.<ref>{{citation|url=http://works.bepress.com/cgi/viewcontent.cgi?article=1013&context=nancy_marder |title=Juries and Technology: Equipping Jurors for the Twenty-First Century |first=N. S. |last=Marder |publisher=Brooklyn Law Review |year=2000}}</ref> Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom. In [[David Hume]]'s ''History of England'', he tells something of the powers that the kings had accumulated in the times after Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:

{{Blockquote|One of the most ancient and most established instruments of power was the court of [[Star Chamber]], which possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offenses, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men who all of them enjoyed their offices during pleasure:  And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question, whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. While so many terrors hung over the people, no jury durst have acquitted a man, when the court was resolved to have him condemned. The practice also, of not confronting witnesses to the prisoner, gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an instance, during all these reigns, that the sovereign, or the ministers, were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown. And as the practice was anciently common of fining, imprisoning, or otherwise punishing the jurors, merely at the discretion of the court, for finding a verdict contrary to the direction of these dependent judges; it is obvious, that juries were then no manner of security to the liberty of the subject.}}

The first paragraph of the act that abolished the Star Chamber repeats the clause on the right of a citizen to be judged by his peers:

{{Blockquote|WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land&nbsp;...}}

In 1670 two [[Quakers]] charged with [[unlawful assembly]], [[William Penn]] and [[William Mead (merchant)|William Mead]], were found not guilty by a jury. The judge then fined the jury for [[contempt of court]] for returning a verdict contrary to their own findings of fact and removed them to prison until the fine was paid. Edward Bushel, a member of the jury, nonetheless refused to pay the fine. Bushel petitioned the [[Court of Common Pleas (England)|Court of Common Pleas]] for a writ of ''[[habeas corpus]]''. The ruling in the ''[[Bushel's Case]]'' was that a jury could not be punished simply on account of the verdict it returned.

Many [[British Empire|British]] colonies, including the [[Juries in the United States|United States]], adopted the [[England|English]] [[common law]] system in which trial by jury is an important part. Jury trials in criminal cases were a protected right in the original [[United States Constitution]] and the [[Fifth Amendment to the United States Constitution|Fifth]], [[Sixth Amendment to the United States Constitution|Sixth]], and [[Seventh Amendment to the United States Constitution|Seventh Amendment]]s of the U.S. Constitution extend the right to a jury trial for both criminal and civil matters and a grand jury for serious cases.