Greece, Rome, and the Bill of Rights (32 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

BOOK: Greece, Rome, and the Bill of Rights
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"It was Germanic only in so much as feudalism was Germanic; it was not one of the immemorial liberties of the Teuton, if indeed he ever had any. Nor was it Roman, although the rationalization of feudal custom under the influence of Roman law seems to have played some part in its definition and development."

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Later, King Henry II (11541189) established the Grand Assize, a court of four knights and twelve neighbors, who ruled on challenged claims to land. This extended to settlement of disputes the practice of information-gathering under oath. This procedure could occur only in royal courts because only the king had sufficient authority to compel anyone to take an oath. In land disputes, for example, the local landowners who might be expected to be most aware of all the facts could be bound under oath to swear who had the best claim to the land in question. The first disputant to get twelve oaths, including his own, in his favor won.
Henry II has been described as a man of powerful will, administrative genius, and reforming spirit. In increasing greatly the power of the royal courts, he regarded as of public consequence the kinds of breaches of the peace and threats that formerly had been considered private matters. "What was once only an administrative inquiry became the foundation of the jury of accusation and the jury of trial in both civil and criminal matters."
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The Church also added a major thrust toward the establishment of trial by jury in England. In November 1215, in the early years of the reign of Henry III, Pope Innocent III prohibited church officials from taking part in trial by ordeal, whereby a person's innocence was determined by subjecting the person to horrible physical torture. If he survived, then he was innocent. Trial by ordeal included such practices as walking barefoot over hot iron plow-shares, carrying hot iron weights barehanded, or reaching into a pot of boiling water. Although technically Pope Innocent's prohibition applied only to the clergy, in effect it ended the practice altogether. On the Continent, where legal theory was more advanced, a new system was quickly devised. In England, the itinerant judges mostly

 

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improvised. If a prisoner wanted to be judged by his neighbors, he could ''put himself upon his country" by pleading not guilty and accepting the jurors' verdict.
Gradually the character of the jurors changed from the neighbors most likely to know the facts firsthand to those bound to attend only to the evidence as presented in court and to ignore everything they might know about the case from other sources. As this expectation has evolved in the present day, those who confess to prior knowledge about the case or acquaintance with the parties or their attorneys are likely to be dismissed from service on the jury for that trial.
Why Twelve?
Many theories have been offered to explain the number twelve in a jury. Among these are the twelve apostles, the twelve tribes of Israel, and the twelve patriarchs. One Englishman explains it much more simply: that in addition to wanting a number sufficient to pose an overwhelming preponderance of evidence, the British simply had an early abhorrence of the decimal system, as evidenced by the fact that until recently there were twelve pence to the shilling.

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In 1970 the U.S. Supreme Court ruled in the case of
Williams v. Florida
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that the defendant's rights under the Sixth Amendment as applied through the Fourteenth Amendment had not been violated because Mr. Williams had been convicted of robbery by a Florida jury of only six members. In that decision, the Court considered at length whether the constitutional guarantee of trial by jury required trial by exactly twelve persons. It held that it did not, offering extensive documentation to suggest that the precise size of juries was no more than an historical accident.
One source cited in the opinion
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notes that in the Frankish Empire juries are recorded with the numbers of 66, 41, 20, 17, 13, 11, 8, 7, 53, 15, and many others. Among the Normans the number varied also, so that twelve does not prevail even there. "It seems to have been the recogni-

 

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tions under Henry II that established twelve as the usual number; even then the number was not uniform." Then the opinion avers:
Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment [grand] jury from the hundred, from which the petit [trial] jury developed. Other, less circular but more fanciful reasons for the number 12 have been given, "but they were all brought forward after the number was fixed,"

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and rest on little more than mystical or superstitious insights into the significance of "12." Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.," is typical.

One of the ancient kings of Wales, Morgan of Gla-Morgan, is said to have adopted trial by a jury of twelve in
A.D.
725, "For as Christ and his twelve apostles were finally to judge the world, so human tribunals should be composed of the king and twelve wise men."
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King Morgan apparently did not consider whether this implies that there will be a Judas on every jury.
"In short," the Court concludes, "while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place." The Court then determines that this "accidental feature" had not been immutably codified into the Constitution. The opinion addresses also the question of whether a 12-person jury is more advantageous that a smaller one to the defendant and concludes that it is not necessarily so. "We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to the mystics.'"
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The Value of the Jury System
In 1968 the U.S. Supreme Court in
Duncan v. Louisiana
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affirmed the right of criminal defendants to jury trial "in

 

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order to prevent oppression by government," even if the sentence were only sixty days and a fine of $150. That decision offered an eloquent defense of the jury system laced with historical references.
The Court noted that many trace the history of trial by jury back to Magna Carta and quoted with approval Blackstone's
Commentaries on the Laws of England
(349350). Blackstone compares the English jury system with the power of the Crown, who might, "as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure." The founders of English law, by contrast, contrived that "the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion."
This right came with the English to the colonies, and the colonists resented any royal interference with it. As early as the Stamp Act Congress on October 19, 1765, among the resolutions stating "the most essential rights and liberties of the colonists" was the declaration that trial by jury was an inherent and invaluable right of every British subject in the colonies. The First Continental Congress, in its resolve of October 14, 1774, objected to trials conducted before judges of the Crown alone and to trials held in England for crimes alleged to have occurred in the colonies: "That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." The Court also quotes the Declaration of Independence with its objections to the king's making "judges dependent on his will alone" and to his "depriving us in many cases of the benefits of Trial by Jury."
The Court noted that jury trial was protected by Article III, Section 2, of the Constitution, almost immediately bolstered by the Bill of Rights. Then it offered its own eloquent defense:

 

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The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.... Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

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The value of the jury may be seen also in a more immediate and personal perspective. In addition to affording ordinary citizens the occasion to express their faith in government and to protect their fellow citizens, the jury system may also protect oneself. In remarks to prospective jurors, one judge observes: "It is an assurance of your guarantee that if chance or design brings you into a court of law in any civil or criminal entanglement, your rights and liberties will be regarded in the same light of justice and protected by the same manner of consideration that you administer here in the faithful discharge of your duty as jurors."
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The use of a jury introduces flexibility into the legal system and may bring the law into closer accord with justice in the context of one's own community. This can be double-edged. In 1735 John Peter Zenger, a New York newspaper publisher, was accused of seditious comments against the British colonial governor, William Cosby, including charges that Cosby was limiting the right of the

 

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