Magna Carta and jury trial
Medieval criminal trialsThe original clause 39 of the Great Charter of June 1215 reflected a privilege negotiated by the barons to ensure that their disputes with the King — mainly over land — would be settled after advice from men of their own rank and status. Criminal trials at the time took the form of ‘ordeals’ by fire or by water; supervised by the local priest. God was the judge, and he would ensure that the innocent survived — thus, suspects dunked in ponds were declared guilty if they drowned.
On the Laws and Customs of England
Perhaps the most ambitious legal work of the medieval period, this treatise focuses on property rights and criminal law. The work is headed by a miniature of a king holding a sword and a sealed charter.View images from this item (1)
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Letter of King Charles I ordering that Edward Coke’s papers be confiscated
This letter from King Charles to the Secretary of State, Sir Francis Windebank (d. 1646), authorised the confiscation of Coke’s papers.View images from this item (1)
The Second Part of the Institutes of the Lawes of England
In this text, Edward Coke provided an extensive clause-by-clause analysis of Magna Carta. Eulogising the charter, Coke wrote that, ‘It is called Magna Charta, not that it is great in quantity … but in respect of the great importance and weightinesse of the matter.’View images from this item (5)
Professor Justin Champion and Geoffrey Robertson QC discuss the reinvention of Magna Carta in the 17th century and its use against the Stuart kings. They explore Magna Carta as a legal document, its use as a symbol against tyranny, and the role of Sir Edward Coke.
Magna Carta in the Stuart eraMeanwhile, Magna Carta was sidelined: King John (r.1199-1216) rejected it only 10 weeks after Runnymede and, although re-issued, the document rarely featured in the courts until Parliament’s struggle against the Stuart kings in the 17th century. The first key date is 1616, when the Chief Justice, Edward Coke (1552-1634), was dismissed by King James I (r.1603–25) after he had ventured to suggest that the King was not above the law. Coke took himself off to the Inns of Court to write The Institutes of the Lawes of England — a great constitutional text which instructed lawyers and law students that Magna Carta was the basis of the common law, and a precedent for the independence of the law courts from royal control. In 1628 he drafted an updated version of the Charter, called The Petition of Right which parliamentarians demanded that the King (now Charles I) should ratify. He pretended to agree, but then reneged and instead abolished Parliament for 11 years, jailing some of the more outspoken MPs under his executive powers. Magna Carta’s promise of a fair trial was not a right that this King was prepared to grant to anyone: his private court, the Star Chamber, tortured and jailed Puritan preachers as well as one low-born activist, John Lilburne (1614-57).
Portrait of Sir Edward Coke by an unknown artist
Lawyer, writer and politician Sir Edward Coke was a leading figure in reviving interest in Magna Carta in the 17th century.View images from this item (1)
The Petition of Right
The Commons asserted their interpretation of the law by presenting Charles with a ‘Petition of Right’, rather than a formal bill, implying that they were claiming the subject’s existing rights, rather than creating new ones.View images from this item (1)
Sketches of regimental banners from the English Civil Wars
As this design shows, parliamentary banners made frequent allusion to Magna Carta as a protection of the rights of the subject against royal oppression.View images from this item (5)
A Perfect Narrative of the Whole Proceedings of the High Court of Justice in the Tryall of the King in Westminster Hall
This publication is one of the best contemporary accounts of the trial of King Charles I in 1649.View images from this item (1)
'The Royal Oake of Brittayne' in The Compleat History of Independency
In this engraving an armoured Cromwell directs the ignorant multitude to cut down the ‘Royall Oake’. From one branch of the tree hangs ‘Magna Charta’, the ‘Statutes’ and Edward Coke’s ‘Reportes’. The allegory: if continued unchecked, Cromwell’s rule would result in godless, lawless tyranny.View images from this item (1)
John LilburneTrial by jury then had its great champion — John Lilburne (1614–1657) — ‘Freeborn John’ as he was known to his ‘Leveller’ followers. Cromwell twice had him tried for treason and each time Lilburne relied on Coke’s Institutes and Magna Carta to persuade the jury — his peers from London’s tradesmen — to fulfil their historic role and save him from death at the hands of the government which he had criticised. After finding him ‘not guilty of any crime meriting death’, the jurors were threatened by the Lord Chancellor and required to explain their verdict: they refused. Later, in 1670, a jury at the Old Bailey declined to obey the judge’s direction to convict two Quakers, William Penn (1644-1718) and William Mead, despite having them locked up for days without food or fire or chamber-pot. The Court of Common Pleas, who heard the jury’s appeal, was forced to acknowledge that the right to trial by one’s peers, as stated in Magna Carta, entailed a right to acquit, irrespective of the judge’s view that the defendant was guilty.
John Lilburne reading from Coke's Institutes at his trial for treason
Lilburne invoked Magna Carta as a symbol of the fundamental laws of England during his trial for high treason in 1649. In this image he is shown reading from Sir Edward Coke’s Institutes.View images from this item (11)
‘Wilkes and liberty’The juries in the Old Bailey and in the High Court acted at the end of the 18th century to curb attacks on radicals by King George III (r.1760–1820) and his ministers. Chants of ‘Wilkes and liberty’ rang loudly from the London mob as they cheered Lord Erskine, a great jury advocate, after he won acquittals in cases brought against the outspoken MP John Wilkes (1725-97) and the publishers of Thomas Paine’s Rights of Man (1791). The government soon responded by ‘vetting’ and bribing jurors in order to obtain convictions in cases of sedition: Jeremy Bentham’s first book, The Elements of the Art of Packing, as applied to Special Juries, etc was an attack on this system of rigging jury trials. At the same time, Charles James Fox (1749-1806) and his supporters in Parliament were quoting Magna Carta in order to ensure that pro-government judges in civil cases did not direct juries to convict. Fox’s Libel Act ensured that the jury, not the judge, would decide whether publications critical of the government could be banned as seditious libels.
Radical Newspaper: The North Briton no. 45
This appendix of The North Briton no.45, published by radical politician and newspaper editor John Wilkes in 1769, contains a detailed account of Wilkes’s prosecution for illegally criticising King George III. Wilkes invoked Magna Carta in his defence.View images from this item (1)
The problems of jury trialsThese fine words are, of course, an exaggeration. Juries can go very wrong, especially in ‘terrorist’ cases (see the ‘Birmingham Six’ and the ‘Guildford Four’). They give no reasons for their verdicts, and their deliberations are swathed in unnecessary secrecy. In civil actions they have been virtually abolished – recently (and at the instance of Fox’s descendants, the Liberal Democrats) in libel cases. Jury trials are regarded as too expensive and time-consuming, and free speech is once again at the mercy of judges. In crime, too, the jury has a reduced role. 97% of criminal cases are decided by lay justices or district judges, who may impose prison sentences of up to a year (in cases of contempt of court, heard by judges alone, the sentence may be two years).
Nonetheless, for serious cases, the modern jury – thanks to the re-interpretation of Magna Carta in the 17th century – retains its independence from government and is an important safeguard against oppressive prosecutions. This means that an ordinary, everyday sense of mercy is built into our criminal justice arrangements, in a way that defies strict logic but has won popular acceptance over the centuries. Jury independence means it can ignore the strict letter of the law, and deliver verdicts based on sympathy or humanity and sometimes (given the absurdity of some laws) on common sense.
European Convention for the Protection of Human Rights and Fundamental Freedoms
These articles come from a pan-European treaty (1950) demonstrating a commitment to enforce the freedoms expressed in the Universal Declaration of Human Rights.View images from this item (2)
Jury trial and the Human Rights ActSo why is the basic right to jury trial not included in our Human Rights Act? Because Parliament in 1998 adopted the European Convention on Human Rights, a lowest-common-denominator set of liberties which excluded any mention of juries because Napoleon had abolished them throughout Europe. This has become an important argument in favour of the government’s proposal for a British Bill of Rights. It should have a clause which updates Magna Carta and provides that no person should lose his or her liberty for more than a year without having at least the option of being tried by a jury.
Human Rights Act 1998
The purpose of the Human Rights Act was to incorporate into UK law the rights and freedoms guaranteed under the European Convention on Human Rights (1953).View images from this item (1)
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