Jury system

			THE AMERICAN JURY BULWARK OF DEMOCRACY		About the Project Constitutional Rights Foundation Chicago Chicago Historical Society National Endowment for the Humanities
AN ONLINE RESOURCE GUIDE
Origins of the American Jury
Lessons and Activities Jury Trials for the Classroom Resources from the Chicago Historical Society Web Resources Print Resources Site Index HISTORY AND PURPOSE Origins of the American Jury Formation of the American Jury STRUCTURE Introduction to Trial by Jury Grand Jury Right of the Accused to Trial by Jury Jury Selection: Voir Dire Jury of One's Peers Jury Deliberation ISSUES Evidence Jury Nullification Jury Trials and the Media Jury Damage Awards Comparative Jury Systems FUTURE Jury in American Society Jury Reform Future of the American Jury			The tradition of trial by jury in this country is older than the Republic itself, having arisen from traditions that were rooted in English life by the thirteenth century. How did the jury come about? For what purposes was it designed, and what ends did it end up serving? This section of "The American Jury" provides resources and classroom strategies for examining the origins, powers, and purposes of the jury as it developed in England. It also includes activities and resources that allow students to compare the jury system with other legal systems designed to reach fair, workable, and acceptable verdicts in criminal and civil cases.		LIST OF LESSONS Trial by Oath, Combat, and Ordeal: Comparing Justice Processes What's the Big Idea? A Four-Lesson Unit on Trial Systems in Different Cultures: Unit objectives Lesson One Lesson Two Lesson Three Lesson Four The document in MS format LINKS TO RELEVANT SITES Jury Trial: General historical background. Laws of William the Conqueror, Section 6, c. 1066. Trials by oath and ordeal. Magna Carta, Section 39, 1215. Traditional, but historically discounted, foundation for the jury. Assize of Clarendon, [Section 6], 1164. Twelve lawful men of presentment.
			PRINT RESOURCES Constitutional Rights Foundation. "Merry Old England: Picking the Best Process," Of Codes and Crowns: The Development of Law (1992), pp. 42-49. Constitutional Rights Foundation. Of Codes and Crowns: The Development of Law, Teacher's Guide (1992), pp. 51-64. Kalven, Harry, Jr., and Hans Zeisel. The American Jury (1966), pp. 1-32. Green, Thomas Andrew. "The Criminal Trial Jury: Origins and Early Development-An Interpretive Overview," Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (1985), Ch. 1, pp. 3-27. Landsman, Stephan. "The Civil Jury in America: Scenes from an Unappreciated History," 44 Hastings Law Journal 579 (1993), pp. 579-619.
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RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta. 42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King's rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused. 43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a ''strong and two-fold barrier . . . between the liberties of the people and the prerogative of the crown'' because ''the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.'' 44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitu tion 45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases. 46 ''Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.''' 47

''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 overzealous prosecutor and against the compliant, biased, or eccentric judge. . . . [T]he jury trial provisions . . . reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.'' 48

Because ''a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,'' the Sixth Amendment provision is binding on the States through the due process clause of the Fourteenth Amendment. 49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair, 50 it is possible for a defendant to waive the right and go to trial before a judge alone. 51

The Attributes and Function of the Jury .--It was previously the position of the Court that the right to a jury trial meant ''a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.'' 52 It had therefore been held that this included trial by a jury of 12 persons 53 who must reach a unanimous verdict 54 and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage. 55 However, as it extended the guarantee to the States, the Court indicated that at least some of these standards were open to re-examination, 56 and in subsequent cases it has done so. In Williams v. Florida, 57 the Court held that the fixing of jury size at 12 was ''a historical accident'' which, while firmly established when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of common-law background 58 or by any ascertainment of the intent of the framers. 59 Being bound neither by history nor framers' intent, the Court thought the ''relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial.'' The size of the jury, the Court continued, bore no discernable relationship to the purposes of jury trial--the prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage accrued to the defendant by having a jury composed of 12 rather than six, which was the number at issue in the case, or that the larger number appreciably increased the variety of viewpoints on the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility that a cross-section of the community will be represented on it, but the Court did not speculate whether there was a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the offense. 60

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts. 61 Applying the same type of analysis as that used in Williams, four Justices acknowledged that unanimity was a common-law rule but observed for the reasons reviewed in Williams that it seemed more likely than not that the framers of the Sixth Amendment had not intended to preserve the requirement within the term ''jury.'' Therefore, the Justices undertook a functional analysis of the jury and could not discern that the requirement of unanimity materially affected the role of the jury as a barrier against oppression and as a guarantee of a commonsense judgment of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of proof beyond a reasonable doubt, and is not necessary to preserve the feature of the requisite cross-section representation on the jury. 62 Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard, would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting minorities. 63 Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and that it should not be departed from; however, because it was the due process clause of the Fourteenth Amendment which imposed the basic jury-trial requirement on the States, he did not believe that it was necessary to impose all the attributes of a federal jury on the States. He therefore concurred in permitting less-than-unanimous verdicts in state courts. 64 Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause, Supp.1 has been held to be a standard mandated by the Sixth Amendment. Supp.2 The Court has further held that the Fifth Amendment Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact. Supp.3 Thus, a district court presiding over a case of providing false statements to a federal agency in violation of 18 U.S.C. Sec. 1001 erred when it took the issue of the ''materiality'' of the false statement away from the jury. Supp.4

Criminal Proceedings to Which the Guarantee Applies .--Although the Sixth Amendment provision does not differentiate among types of criminal proceedings in which the right to a jury trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available 65 or by the nature of the offense. 66 This line has been adhered to in the application of the Sixth Amendment to the States 67 and the Court has now held ''that no offense can be deemed 'petty' for purposes of the right to trial by jury where im prisonment for more than six months is authorized.'' 68 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months. Supp.5 The Court has also made some changes in the meaning attached to the term ''criminal proceeding.'' Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment. 69 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial. 70 But more recently the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the Fifth and Sixth Amendments, 71 and the same type of analysis could be used with regard to other sanctions. In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt. 72 But in Bloom v. Illinois, 73 the Court announced that ''[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial.'' At least in state systems and probably in the federal system as well, there is no constitutional right to a jury trial in juvenile proceedings. 74 In capital cases there is no requirement that a jury impose the death penalty 75 or make the factual findings upon which a death sentence must rest. 76

Footnotes

[Footnote 42] Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5 Harv. L. Rev. 249, 265 (1892), and the Court has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968).

[Footnote 43] W. Forsyth, History of Trial by Jury (London: 1852).

[Footnote 44] W. Blackstone, Commentaries on the Laws of England *349-*350 (T. Cooley 4th ed. 1896). The other of the ''two-fold barrier'' was, of course, indictment by grand jury.

[Footnote 45] In Art III, Sec. 2.

[Footnote 46] Duncan v. Louisiana, 391 U.S. 145, 153 (1968).

[Footnote 47] Thompson v. Utah, 170 U.S. 343, 349 -50 (1898), quoting 3 J. Story, Commentaries on the Constitution of the United States 1773 (1833).

[Footnote 48] Duncan v. Louisiana, 391, U.S. 145, 155-56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). While federal judges may comment upon the evidence, the right to a jury trial means that the judge must make clear to the jurors that such remarks are advisory only and that the jury is the final determiner of all factual questions. Quercia v. United States, 289 U.S. 466 (1933).

[Footnote 49] Duncan v. Louisiana, 391 U.S. 145, 158 -59 (1968).

[Footnote 50] Id. at 159. Thus, state trials conducted before Duncan was decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631 (1968).

[Footnote 51] Patton v. United States, 281 U.S. 276 (1930). As with other waivers, this one must be by the express and intelligent consent of the defendant. A waiver of jury trial must also be with the consent of the prosecution and the sanction of the court. A refusal by either the prosecution or the court to defendant's request for consent to waive denies him no right since he then gets what the Constitution guarantees, a jury trial. Singer v. United States, 380 U.S. 24 (1965). It may be a violation of defendant's rights to structure the trial process so as effectively to encourage him ''needlessly'' to waive or to penalize the decision to go to the jury, but the standards here are unclear. Compare United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S. 759 (1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), cert. denied, 408 U.S. 942 (1972).

[Footnote 52] Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 53] Thompson v. Utah, 170 U.S. 343 (1898). Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900); Rassmussen v. United States, 197 U.S. 516, 519 (1905; Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 54] Andres v. United States, 333 U.S. 740 (1948). See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 55] Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as being based on Article II, Sec. 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976), approved a state two-tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632. See also North v. Russell, 427 U.S. 328 (1976).

[Footnote 56] Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); DeStefano v. Woods, 392 U.S. 631, 632 -33 (1968).

[Footnote 57] 399 U.S. 78 (1970). Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116, while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the States. Id. at 117.

[Footnote 58] The development of 12 as the jury size is traced in Williams, 399 U.S. at 86 -92.

[Footnote 59] Id. at 92-99. While the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word ''jury'' all its common-law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a ''vicinage'' requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their ''accustomed requisites.'' But see id. at 123 n.9 (Justice Harlan).

[Footnote 60] Id. at 99-103. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. While readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six.

[Footnote 61] Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968), and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972), involved a pre-Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at hard labor.

[Footnote 62] Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine-to-three in jury decisions would be permissible. Id. at 365.

[Footnote 63] Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380 , 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall).

[Footnote 64] Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979), however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was ''close'' and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (Burch held retroactive).

[Footnote 1 (1996 Supplement)] See In re Winship, 397 U.S. 358, 364 (1970).

[Footnote 2 (1996 Supplement)] Sullivan v. Louisiana, 508 U.S. 275 (1993).

[Footnote 3 (1996 Supplement)] United States v. Gaudin, 115 S. Ct. 2310 (1995).

[Footnote 4 (1996 Supplement)] Gaudin, 115 S. Ct. at 2320.

[Footnote 65] District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888).

[Footnote 66] District of Columbia v. Colts, 282 U.S. 63 (1930).

[Footnote 67] Duncan v. Louisiana, 391 U.S. 145, 159 -62 (1968); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

[Footnote 68] Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384 , 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, supra, at 76; Williams v. Florida, 399 U.S. 78, 117 , 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are ''petty,'' although it is possible that such an offense could be pushed into the ''serious'' category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90-day driver's license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542 - 44 (1989).

[Footnote 5 (1996 Supplement)] Lewis v. United States, 116 S. Ct. 2163 (1996).

[Footnote 69] United States v. Zucker, 161 U.S. 475, 481 (1896).

[Footnote 70] Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).

[Footnote 71] Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

[Footnote 72] E.g., Green v. United States, 356 U.S. 165, 183 -87 (1958), and cases cited; United States v. Burnett, 376 U.S. 681, 692 -700 (1964), and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court's supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver.

[Footnote 73] 391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court's presence, the court's injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory).

[Footnote 74] McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

[Footnote 75] Spaziano v. Florida, 468 U.S. 447, 459 (1984).

[Footnote 76] Hildwin v. Florida, 490 U.S. 638, 640 -41 (1989) (per curiam) (''the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury''); Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating factor); Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite findings as to existence of aggravating and mitigating circumstances).

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The Avalon Project at Yale Law School

Statutes of William The Conqueror

(Stubbs' "Charters," p. 83-85.)

Here is shown what William the king of the English, together With his princes, has established since the Conquest of England.

1. Firstly that, above all things, he wishes one God to lie venerated throughout his whole kingdom, one faith of Christ always to be kept inviolate, peace and security to be observed between the English and the Normans.

2. We decree also that every free man shall affirm by compact and an oath that, within and without England, he desires to be faithful to king William, to preserve with him his lands and his honour with all fidelity, and first to defend him against his enemies.

3. I will, moreover, that all the men whom I have brought with me, or who have come after me, shall be in my peace and quiet. And if one of them shall be slain, the lord of his murderer shall seize him within five days, if he can; but if not, he shall begin to pay to me forty six marks of silver as long as his possessions shall hold out. But when the possessions of the lord of that man are at an end the whole hundred in which the slaying took place shall pay in common what remains.

4. And every Frenchman who, in the time of my relative king Edward, was a sharer in England of the customs of the English, shall pay according to the law of the English what they themselves call "onhlote" and "anscote." This decree has been confirmed in the city of Gloucester.

5. We forbid also that any live cattle be sold or bought for money except within the cities, and this before three faithful witnesses; nor even anything old without a surety and warrant. But if he do otherwise he shall pay, and shall afterwards pay a fine.

6. It was also decreed there that if a Frenchman summon an Englishman for perjury or murder, theft, homicide, or " ran"-as the English call evident rape which can not be denied-the Englishman shall defend himself as he prefers, either through the ordeal of iron, or through wager of battle. But if the Englishman be infirm he shall find another who will do it for him. If one of them shall be vanquished he shall pay a fine of forty shillings to the king. If an Englishman summon a Frenchman, and be unwilling to prove his charge by judgment or by wager of battle, I will, nevertheless, that the Frenchman purge himself by an informal oath.

7. This also I command and will, that all shall hold and keep the law of Edward the king with regard to their lands, and with regard to all their possessions, those provisions being added which I have made for the utility of the English people.

8. Every man who wishes to be considered a freeman shall have a surety, that his surety may hold him and hand him over to justice if he offend in any way. And if any such one escape, his sureties shall see to it that, without making difficulties, they pay what is charged against him, and that they clear themselves of having known of any fraud in the matter of his escape. The hundred and county shall be made to answer as our predecessors decreed. And those that ought of right to come, and are unwilling to appear, shall be summoned once; and if a second time they are unwilling to appear, one ox shall be taken from them and they shall be summoned a third time. And if they do not come the third time, another ox shall be taken: but if they do not come the fourth time there shall be forfeited from the goods of that man who was unwilling to come, the extent of the charge against him,-" ceapgeld" as it is called,-and besides this a fine to the king.

9. I forbid any one to sell a man beyond the limits of the country, under penalty of a fine in full to me.

10. I forbid that any one be killed or hung for any fault but his eyes shall be torn out or his testicles cut off. And this command shall not be violated under penalty of a fine in full to me.

Henderson's Note

The laws of William the Conqueror, is probably the sum and substance of all the enactments made by that sovereign. Especially interesting are the reference in § 6 to the wager of battle-the first mention of that institution in English law-and the law against capital punishment in § 10.

The Avalon Project at Yale Law School

Constitutions of Clarendon. 1164.

(Stubbs' "Charters," p. 135.)

In the year 1164 from the Incarnation of our Lord, in the fourth year of the papacy of Alexander, in the tenth year of the most illustrious king of the English, Henry II., in the presence of that same king, this memorandum or inquest was made of some part of the customs and liberties. and dignities of his predecessors, viz., of king Henry his grandfather and others, which ought to be observed and kept in the kingdom. And on account of the dissensions and discords which had arisen between the clergy and the Justices of the lord king, and the barons of the kingdom concerning the customs and dignities, this inquest was made in the presence of the archbishops and bishops, and clergy and counts, and barons and chiefs of the kingdom. And these customs, recognized by the archbishops and bishops and counts and barons and by the nobler ones and elders of the kingdom, Thomas Archbishop of Canterbury, and Roger archbishop of York, and Gilbert bishop of London, and Henry bishop of Winchester, and Nigel bishop of Ely, and William bishop of Norwich, and Robert bishop of Lincoln, and Hilary bishop of Chichester, and Jocelin bishop of Salisbury, and Richard bishop of Chester, and Bartholemew bishop of Exeter and Robert bishop of Hereford, and David bishop of Mans, and Roger elect of Worcester, did grant; and, upon the Word of Truth did orally firmly promise to keep and observe, under the lord king and under his heirs, in good faith and without evil wile,-in the presence of the following: Robert count of I`eicester, Reginald count of Cornwall, Conan count of Bretagne, John count of Eu, Roger count of Clare, count Geoffrey of Mandeville, Hugo count of Chester, William count of Arundel, count Patrick, William count of Ferrara, Richard de I~uce, Reginald de St. Walelio, Roger Bigot, Reginald de Warren, Richer de Aquila, William de Braiose, Richard de Camville, Nigel de Mowbray, Simon de Bello Campo, Humphrey de Bohen Matthew de Hereford, Walter de Medway, Manassa Biseth -steward, William Malet, William de Curcy, Robert de Dunstanville, Jocelin de Balliol, William de Lanvale William de Caisnet, Geoffrey de Vere, William de Hastings Hugo de Moreville, Alan de Neville, Simon son of Peter William Malduit-chamberlain, John Malduit, John Marshall, Peter de Mare, and many other chiefs and nobles of the kingdom, clergy as well as laity.

A certain part, moreover, of the customs and dignities of the kingdom which were examined into, is contained in the present writing. Of which part these are the paragraphs;

§ 1. If a controversy concerning advowson and presentation of churches arise between laymen, or between laymen and clerks, or between clerks, it shall be treated of and terminated in the court of the lord king.

§ 2. Churches of the fee of the lord king cannot, unto all time, be given without his assent and concession.

§ 3. Clerks charged and accused of anything, being summoned by the Justice of the king, shall come into his court, about to respond there for what it seems to the king's court that he should respond there; and in the ecclesiastical court for what it seems he should respond there; so that the Justice of the king shall send to the court of the holy church to see in what manner the affair will there be carried on. And if the clerk shall be convicted, or shall confess, the church ought not to protect him further.

§ 4. It is not lawful for archbishops, bishops, and persons of the kingdom to go out of the kingdom without the permission of the lord king. And if it please the king and they go out, they shall give assurance that neither in going, nor in making a stay, nor in returning, will they seek the hurt or harm of king or kingdom.

§ 5. The excommunicated shall not give a pledge as a permanency, nor take an oath, but only a pledge and surety of presenting themselves before the tribunal of the church, that they may be absolved.

§ 6. Laymen ought not to be accused unless through reliable and legal accusers and witnesses in the presence of the bishop, in such wise that the archdean do not lose his right, nor any thing which he ought to have from it. And if those who are inculpated are such that no one wishes or dares to accuse them, the sheriff, being requested by the bishop, shall cause twelve lawful men of the neigh bourhood or town to swear in the presence of the bishop that they will make manifest the truth in this matter, according to their conscience.

§ 7. No one who holds of the king in chief, and no one of his demesne servitors, shall be excommunicated, nor shall the lands of any one of them be placed under an interdict, unless first the lord king, if he be in the land, or his Justice, if he be without the kingdom, be asked to do justice concerning him: and in such way that what shall pertain to the king's court shall there be terminated; and with regard to that which concerns the ecclesiastical court, he shall be sent thither in order that it may there be treated of.

§ 8. Concerning appeals, if they shall arise, from the archdean they shall proceed to the bishop, from the bishop to the archbishop. And if the archbishop shall fail to render justice, they must come finally to the lord king, in order that by his command the controversy may be terminated in the court of the archbishop, so that it shall not proceed further without the consent of the lord king.

§ 9. If a quarrel arise between a clerk and a layman or between a layman and a clerk concerning any tenement which the clerk wishes to attach to the church property but the layman to a lay fee: by the inquest of twelve lawful men, through the judgment of the chief Justice of the king, it shall be determined, in the presence of the Justice himself, whether the tenement belongs to the church property, or to the lay fee. And if it be recognized as belonging to the church property, the case shall be pleaded in the ecclesiastical court; but if to the lay fee, unless both are holders from the same bishop or baron, the case shall be pleaded in the king's court. But if both vouch to warranty for that fee before the same bishop or baron, the case shall be pleaded in his court; in such way that, on account of the inquest made, he who was first in possession shall not lose his seisin, until, through the pleading, the case shall have been proven.

§ 10. Whoever shall belong to the city or castle or fortress or demesne manor of the lord king, if he be summoned by the archdean or bishop for any offense for which he ought to respond to them, and he be unwilling to answer their summonses, it is perfectly right to place him under the interdict; but he ought not to be excommunicated until the chief servitor of the lord king of that town shall be asked to compel him by law to answer the summonses. And if the servitor of the king be negligent in this matter, he himself shall be at the mercy of the lord king, and the bishop may thenceforth visit the man who was accused with ecclesiastical justice.

§ 11. Archbishops, bishops, and all persons of the kingdom who hold of the king in chief have their possessions of the lord king as a barony, and answer for them to the Justices and servitors of the king, and follow and perform all the customs and duties as regards the king; and, like other barons, they ought to be present with the barons at the judgments of the court of the lord king, until it comes to a judgment to loss of life or limb.

§ 12. When an archbishopric is vacant, or a bishopric, or an abbey, or a priory of the demesne of the king, it ought to be in his hand; and he ought to receive all the revenues and incomes from it, as demesne ones. And, when it comes to providing for the church, the lord king should summon the more important persons of the church, and, in the lord king's own chapel, the election ought to take place with the assent of the lord king and with the counsel of the persons of the kingdom whom he had called for this purpose. And there, before he is consecrated, the person elected shall do homage and fealty to the lord king as to his liege lord, for his life and his members and his earthly honours, saving his order.

§13. If any of the nobles of the kingdom shall have dispossessed an archbishop or bishop or archdean, the lord king should compel them personally or through their families to do justice. And if by chance any one shall have dispossessed the lord king of his right, the archbishops and bishops and archdeans ought to compel him to render satisfaction to the lord king.

§14. A church or cemetery shall not, contrary to the king's justice, detain the chattels of those who are under penalty of forfeiture to the king, for they (the chattels) are the king's, whether they are found within the churches or without them.

§ 16. Pleas concerning debts which are due through the giving of a bond, or without the giving of a bond, shall be in the jurisdiction of the king.

§ 16. The sons of rustics may not be ordained without the consent of the lord on whose land they are known to have been born.

Moreover, a record of the aforesaid royal customs Anna dignities has been made by the foresaid archbishops and bishops, and counts and barons, and nobles and elders of the kingdom, at Clarendon on the fourth day before the Purification of the blessed Mary the perpetual Virgin; the lord Henry being there present with his father the lord king. There are, moreover, many other and great customs and dignities of the holy mother church, and of the lord king, and of the barons of the kingdom, which are not contained in this writ. And may they be preserved to the holy church, and to the lord king, and to his heirs, and to the barons of the kingdom, and may they be inviolably observed for ever.

Henderson's Note

The list of articles laid before Thomas Becket in 1164, for finally refusing to sign which that prelate went into his long exile.

The custom of appealing to Rome-a custom which had begun under Henry I. whose brother was papal legate for England-had assumed alarming dimensions under Henry II. The king had almost no jurisdiction over his clerical subjects. And, to make matters worse, the clergy did not refrain from crimes which called for the utmost severity of the law. In ten years we hear of more than one hundred unpunished cases of murder among them. It was to put a stop to such lawlessness that Henry caused the constitutions of Clarendon to be drawn up by two of his justiciars. They contain nothing new, no right that did not belong by precedent to the crown. It was the way. in which the struggle with Becket was carried on, not the weakness of the King's standpoint that caused the latter to fail in his endeavours. Public sympathy turned against him and, in 1174, he was obliged to expressly permit appeals to Rome. Papal influence was to increase in England until it reached its zenith under Innocent III.liege lord and collector of tribute.

Source:
Henderson, Ernest F.
Select Historical Documents of the Middle Ages
London : George Bell and Sons, 1896.

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