Abstract
The ancient common law system of England is still prevalent in many nations associated with—or previously associated with—the United Kingdom, not simply in England and Wales. Findings of fact at common law were the sole prerogative of the jury for many centuries. This chapter addresses restraints upon jurors’ conduct and jury verdicts that evolved over many centuries, imposed by an increasingly active judiciary in the interest of preventing injustices stemming from jury verdicts that were unsupported by competent evidence, biased, or otherwise should not be allowed to stand in the interests of justice.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
King James Version (Cambridge), Lev. 19: 1, 15.
- 2.
To be sure, some summings-up may be more balanced than others, and fear of reversal for giving a slanted summing-up keeps most United States federal judges from commenting upon the evidence, even though they have the power to do so.
- 3.
In criminal cases, the jury were accusers (akin to the modern grand jury), with a duty to make presentment of those believed to have committed serious crimes to the royal justices. Trial by ordeal, or, later, by jury, followed and resulted in the ultimate judgment against those presented.
- 4.
Mitnick (1988).
- 5.
The Saxon Mirror (A Saxon chronicle). Langbein et al. (2009).
- 6.
- 7.
De Bracton, Henry (attrib.). Bracton: De Legibus Et Consuetudinibus Angliæ. Bracton Online English, Harvard Law School Library. http://bracton.law.harvard.edu/Unframed/English/v2/309.htm.
- 8.
Baker (2002), p. 5.
- 9.
Trial by combat continued in certain criminal cases (appeal of felony) in theory until 1819 (though it had become extinct in the seventeenth century). Jury trial in presented cases was not possible unless the defendant consented “to be tried by God and my Country (i.e., my fellow Englishmen)”. Those who did not consent freely, however, were subjected to being pressed by heavy stones laid upon a plank on top of them while stretched out on their backs, until they consented or suffocated. This was the practice of Peine forte et dure (which most commentators think resulted from an unfortunate, but lost in the mists of time, miscommunication of the law French Prison forte et dure). Many accused felons “consented”, but those with substantial property holdings often did not, for death by pressing did not work forfeiture of estate or corruption of the blood, as a jury’s felony conviction would have done, thus preserving family assets for the unfortunate accused’s family. See Langbein et al. (2009), pp. 61–62.
- 10.
Langbein et al. (2009), p. 72.
- 11.
One of the things that makes the study of English legal history so interesting is the patchwork of clever mechanisms invented over the years to make a creaky system work efficiently, in spite of itself. Examples include, in addition to the nisi prius writ, the invention of “trespass on the case” (which essentially enabled the evolution of tort law), and the action of assumpsit and the Bill of Middlesex (both of which were devised to divert cases from Common Pleas to King’s Bench). In many cases, there was created a “legal fiction”, which is a euphemistic common-law term for a convenient falsehood that no one ever challenges.
- 12.
Baker (2002), pp. 84–85.
- 13.
Klerman, Daniel, Was the jury ever self informing, quoted in Mulholland and Pullan (2003), pp. 66–67.
- 14.
Baker (2002), pp. 75–76.
- 15.
Ibid., p. 135.
- 16.
Ibid., p. 136.
- 17.
Ibid.
- 18.
Ibid., pp. 82–83.
- 19.
Ibid., p. 84.
- 20.
Ibid.
- 21.
Ibid.
- 22.
Emphasis added. Ibid., pp. 84–85.
- 23.
Lord Mansfield’s title is not misprinted in the text. Perhaps unique in the history of the British peerage, he was granted letters patent for two separate earldoms, both “of” the same place name—Mansfield—but located in different counties. He was childless, and the first earldom was created in 1776, with a remainder to his niece. The second was created in 1792, with a remainder to his nephew. The titles merged in one holder in 1843. The eighth and present Earl was trained as a barrister. See: http://en.wikipedia.org/wiki/Earl_of_Mansfield_and_Mansfield.
- 24.
Oldham (2004), p. 10.
- 25.
See, e.g., Price v. Neal, 3 Burrow 1354, 97 E.R. 871 (1762) (finality of payment in negotiable instruments law) and Carter v. Boehm, 3 Burrow 1905, 97 E.R. 1162 (1766) (duty uberrimae fidei in insurance law).
- 26.
English and Scots law slowly began a process of merger following the Acts of Union 1706 (England with Scotland) and 1707 (Scotland with England). That process of merger still continues and is still uneasy. See, e.g., Eden (2003), pp. 117–118.
- 27.
See Smalkin and Smalkin (2005).
- 28.
By the Statute of Westminster 1275, the time prior to the reign of Richard I.
- 29.
Baker (2002), p. 103.
- 30.
Ibid., pp. 202–203.
- 31.
Ibid.
- 32.
Oldham (2004), p. 16. In 1815, trial by jury in civil cases was extended by parliament to Scotland by statute, 55 Geo. III. c. 42, where it remains available.
- 33.
Blackstone, William. 1763-69. Commentaries on the Laws of England. Oxford, pp. 379–381. As quoted in Langbein et al. (2009), pp. 458–459.
- 34.
As quoted in Langbein et al. (2009), p. 431.
- 35.
Langbein et al. (2009), pp. 432–433.
- 36.
Ibid.
- 37.
Oldham (2004), p. 29.
- 38.
1. Burrow 390, 97 E.R. 365 (1757).
- 39.
Wood v. Gunston, Sty. 462, 82 E.R. 865 (1655).
- 40.
Oldham (2004), p. 28
- 41.
As set forth in Langbein et al. (2009), p. 446.
- 42.
1 Burrow 390, 393, 97 Eng. Rep. 365, 366.
- 43.
Baker (2002), p. 85; see also Civil Procedure: Power of Trial Judge to Grant New Trial Where Verdict is Against Weight of the Evidence. 1961. Duke Law Journal: 308–315.
- 44.
See, e.g., Aetna Casualty & Insurance Co. v. Yeatts, 122 F.2d 350 4th Cir. (1941).
- 45.
Ibid., p. 92.
- 46.
1 Q. B. 273 CA (1966).
- 47.
See Wolfram (1973), p. 639. Thus, if Congress, for example, creates a right to redress (as it has) for violation of a federal statute regulating safety standards for mobile homes (which it has power to do under the Interstate Commerce Clause of the Constitution), a federal court must gaze back in time to decide whether, had there been such a thing in England as a mobile home in 1791, and had the law presented a remedy like that prescribed by Congress for safety defects in its construction, the remedy would have sounded in law or equity. Although it sounds quite absurd, this is the way in which entitlement to a jury trial in cases asserting a federal statutory right is decided, and it illustrates why a sound understanding of English legal history still is worthy of study, even in the twentieth century, and even in the United States.
References
Baker, John H. 2002. An Introduction to English Legal History. IV ed. London, Dayton: Butterworths LexisNexis.
Eden, Sandra. 2003. Cautionary Tales: The Continued Development of Smith v. Bank of Scotland. Edinburgh Law Review 7: 107-118.
Langbein, John H., Renee Lettow Lerner, and Bruce P. Smith. 2009. History of the Common Law: The Development of Anglo-American Institutions. Austin: Wolters-Kluwer Law & Business. New York: Aspen Publishers.
Mitnick, John M. 1988. From Neighbor-Witness to Judge of Proof: The Transformation of the English Civil Juror. The American Journal of Legal History 32: 201-235.
Mulholland, Maureen, and Brian Pullan. 2003. Judicial Tribunals in England and Europe, 1200-1700, vol. 1. Manchester: Manchester University Press.
Oldham, James. 2004. English Common Law in the Age of Mansfield. Chapel Hill: University of North Carolina Press.
Smalkin, Frederic N., and Frederic N. C. Smalkin. 2005. The Market for Justice, the ‘Litigation Explosion’, and the ‘Verdict Bubble’: A Closer Look at Vanishing Trials. Federal Courts Law Review 8: 1-23.
Wolfram, Charles W. 1973. The Constitutional History of the Seventh Amendment. Minnesota Law Review 57: 639-747.
Acknowledgment
The Author gratefully acknowledges the assistance of University of Baltimore Law School student Andrew Adkins, MA (East Ang), in the preparation of this chapter.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Smalkin, F.N. (2015). Judicial Control of Juries and Just Results in the Common Law System: A Historical Perspective. In: Pineschi, L. (eds) General Principles of Law - The Role of the Judiciary. Ius Gentium: Comparative Perspectives on Law and Justice, vol 46. Springer, Cham. https://doi.org/10.1007/978-3-319-19180-5_6
Download citation
DOI: https://doi.org/10.1007/978-3-319-19180-5_6
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-19179-9
Online ISBN: 978-3-319-19180-5
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)