Trial by Jury in Old Times.
By Thomas Frost.
When we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in England, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the Crown, endeavoured to obtain a conviction. It was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. An interesting illustration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of Sir Nicholas Throckmorton, in 1554, on a charge of high treason, in conspiring the death or deposition of the Queen, and the seizure by force of arms of the Tower of London. The prosecution was conducted by Serjeant Stanford and the Attorney-General, Griffin, the former leading; and it is noteworthy that both they and Chief Justice Bromley questioned the prisoner in much the same manner as is still customary in France and Belgium, striving to procure evidence that would convict him out of his own mouth. The endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of Winter and Crofts, who, however, were not called as witnesses.
The jury, after several hours’ deliberation, returned a verdict of not guilty, upon which the Lord Chief Justice addressed them in threatening tones, saying, “Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the Queen’s highness and yourselves also. Take good heed what you do.” The jury were firm, however, and the foreman replied to the remonstrance of the bench, “We have found him not guilty, agreeable to all our consciences.” Then the Attorney-General rose, and addressing the court, said, “An it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, I pray you for the Queen that they and every one of them may be bound in a recognizance of £500 a-piece, to answer to such matters as they shall be charged with in the Queen’s behalf, whensoever they shall be charged or called.” The court went beyond even this audacious request, for they actually committed the jury to prison! Four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the Star Chamber and severely dealt with, three being ordered to pay a fine of £2,000 each, and the others £200 each.
In the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future “good behaviour.” A decision of the Lord Chancellor, the two Chief Justices, and the Chief Baron, in the reign of James I., sets forth that when a person is found guilty on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the Star Chamber, “for their partiality in finding a manifest offender not guilty.” In 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. Chief Justice Kelying in that year having fined a grand jury of the County of Somerset, for not finding a true bill against a man accused of murder; but, says the report, “because they were gentlemen of repute in the county, the court spared the fine.” This case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the House of Commons, however, and that assembly resolved “that the precedents and practice of fining or imprisoning jurors for verdicts is illegal.”
Notwithstanding this resolution of the House of Commons, William Penn, and another member of the Society of Friends, named Mead, being indicted at the Old Bailey for having, with other persons unknown, unlawfully and tumultuously assembled in Gracechurch Street, in the City of London, the Recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. The indictment set forth that Penn, by agreement with and abetment of Mead, did in the open street speak and preach to the persons there assembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the King and the law, and to the great terror and disturbance of many of His Majesty’s liege subjects. The trial took place before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses had deposed that Penn had preached, and that Mead was there with him, the Recorder summed up the evidence, and the jury retired to consider their verdict. They were absent a considerable time, at length returning with the verdict that Penn was “guilty of speaking in Gracechurch Street.”
“Is that all?” the Recorder asked.
“That is all I have in commission,” replied the foreman.
“You had as good say nothing,” observed the Recorder, and the Lord Mayor added, “Was it not an unlawful assembly? You mean he was speaking to a tumult of people there.”