And Justice for All?

By Leonard A. Sloane and John F. Broadhurst

Leonard A. Sloane is Past President of the Pennsylvania Trial Lawyers Association and a partner in the Media firm of  “Eckell Sparks” The author would like to thank John F. Broadhurst for his excellent assistance in preparing this article.

The American jury system is deeply rooted in centuries-old legal traditions. However, throughout its history it has frequently been the subject of criticism. There are those who believe that jurors are unable to deal with complicated legal issues, and others who complain that the American jury system is outmoded. A look at the jury system from its very beginnings in ancient Athens, through Roman times and the medieval period in Europe, up to modern England will show the reader the well thought-out principles behind the American jury system as we know it today.

At the end of the article is a short summary of two countries with legal systems characterized by an absence of jury trials—the People’s Republic of China and the Soviet Union. It is my intention in this section to show that the American trial system surpasses not only those of its Western progenitors but also the systems of the world’s major communist nations.

Juries of the Classical World

Greece

The right to trial by jury, like any other forum for free expression and thought, can develop only under a form of governance that allows for individual rights and civil liberties. The democracy of Athens and the Republic of Rome were the first two governments in world history that attempted to serve as guarantors of the freedom on which a legitimate jury system depends. The history of trial by jury, like so many other aspects of western civilization, begins with the Greeks, particularly with the classical age of Athens in the fourth and fifth centuries B.C. A comprehensive study of the Athenian democracy cannot be entered into here; however, a cursory overview will increase our understanding of history’s first jury system.

Athens was the first purely democratic government and many historians would say the last. Democracy is, in principle, the rule of society by the demos or populus as the Romans termed it, or the “government of the people” as President Lincoln would later state in his most famous address.
In Athens, each male adult who was a citizen of the community (polis) was or could be an active member in the affairs of state. This “state” was in fact a small town; the population rarely exceeded 20,000 citizens. In such a small community, the dispensation of justice became a primary concern in the lives of everyday Athenians.

The Athenian government, being essentially the “voice of the people” (vox populi), had all of its affairs conducted in what modern observers would call a general assembly. The administration of communal affairs was undertaken only after the citizens had met in open forum, debated legislation and policy, and then resolved upon a course of action. There was no “national” government, no Congress, no Senate, no bureaucracy; in short, there was no single unifying force to which all would submit. In Athens, the collective will of the people—the majority of the assembly was the government. Nowhere was vox populi more influential in everyday affairs than in the administration of civil justice.

Before discussing the procedures of the Athenian jury system, however, one must be aware that the entire system of Athenian justice was run by people whom the modern observer would rightly label amateurs. On any given day a citizen of Athens could find himself in judgment of a case of law about which he knew absolutely nothing. Furthermore, the common farmer or artisan of today could find himself delivering an oration in his own defense tomorrow, armed only with whatever wit and forensic skills his informal education had developed. There simply was no professional group of lawyers or legal experts who provided counsel in the event of a court appearance. Parties conducted their own cases, with the only assistance being the possible use of a professional speechwriter who was not a legal scholar but a trained rhetorician whose style of writing could lead to an impassioned speech in the persuasion of the jury.

Let us now examine the development of the Athenian jury system and the process through which one presented a case before fellow citizens. As was mentioned above, the democracy of Athens was run by meetings of the general assembly. In early Greek history (fifth century B.C.), the people also assembled to hear and decide on cases of civil law; however, as society grew in complexity and trials multiplied in number, constant appeal to the general assembly became increasingly difficult. The problem confronting the Greeks was, how can a society secure popular control of trials without having recourse to the assembly? The answer was found in the jury system.

No legal system has the capacity to settle every dispute between aggrieved parties in a Court of law. Americans today understand this fact, and the Greeks of over 2,000 years ago understood it as well. The Athenians set up an efficient system of judicature for what is today called “small claims.”  Cases involving small pecuniary damages were brought to a body of 30 lot-elected officials who rendered an unappealable decision.  In more important cases, it was also possible to resolve the matter without going before a jury, for there was a class of traveling arbitrators before whom civil cases of importance could be brought. The role of this popularly elected body (Diaetetae) was to bring parties to an agreement or render a decision upon the point at issue. Either party, however, could appeal the decision to the popular jury.

These arbitrators were the nearest approach to judges that we find in the Athenian state, and it is well to note how they were appointed. They were selected by lot from citizens at least 60 years of age, and those men who were chosen could only be exempted because they were away from Athens or because they were holding a higher office in the state. All cases of importance that could not be settled out of court or by the arbitrators were heard by the jury of Athens, and it is to the jury itself which we now must turn.

At the beginning of every year, 6,000 male citizens over the age of 30—well over 25 percent of the polis were elected by lot to serve as jurors. These 6,000 were divided, again by lot, into ten sections of 500 each, thus leaving 1,000 jurors ascribed to no section and therefore used as reserves. Each man knew to which section he belonged, but he was not informed as to the nature of the case or the date on which it would be presented.

In order for a case to be brought before a jury, which could range in number from 100 to over 1,000, both the plaintiff and defendant had to appear before an officer of the assembly (archon) to state the nature of the case as well as the damages sought. The assembly officer made no comments and offered no opinions; he merely listed the case on a court document, designating the names of the parties, the cause of dispute, and the date of trial.

On the day of the trial, the assembly officer selected one of the ten juries and the case was presented. The plaintiff spoke first in an uninterrupted appeal to the passions and emotions of a jury wholly ignorant of the law. Speeches were often pure demagoguery, lacking the evidence and cogency of tightly reasoned thought. The defendant next delivered his speech/presentation in a style restrained only by his sense of propriety. It was common for the criminal defendant to call in his weeping children and wife in the hope of persuading the jury to vote for acquittal.  Socrates, the very founder of the dialectic now used in classrooms and courts the world over, lost his own plea to the jury largely because he did not employ the flowery language and bombastic style to which the Greeks were accustomed. Plato, who was a witness to the most famous trial in history (399 B.C.), quotes Socrates—

It is not a lack of arguments that has caused my condemnation, but a lack of effrontery and impudence, and the fact that I have refused to address you in the way which would give you most pleasure. You would have liked to hear me weep and wail, doing and saying all sorts of things which I regard as unworthy of myself, but which you are used to hearing from the other people. (Plato’s Apology)

Socrates was correct. The Athenian jury was used to hearing impassioned, albeit nonsensical, speeches. Moreover, the members of the jury enjoyed listening to and participating in a judicial system that often bordered on theater.

In deliberating upon a decision, citizens of the jury listened to the speeches and testimonies given, examined all available evidence, and then rendered a verdict for which only a majority was needed. Form of punishment was also decided upon by the jury, but the jury could only choose from the sentences which both the plaintiff and defendant offered. None of the sentences reached by the jury was subject to appeal, and once the people had spoken, the case was closed. In this sense, the jurors decided not only facts and law, but actually were the law.

The amazing feature of the Athenian legal system, as embodied in the jury, was the celerity with which it decided cases. All cases brought before a jury, even those of capital offense, were decided in one day. Clearly, a trial procedure conducted in such great haste did not always achieve the goal of justice. But, if any principle could be said to have been more venerated by the Greeks than justice, it would be the principle of the sovereignty of the people.

If the reader has formed an opinion of the Athenian jury as being an injudicious body, let us consider two very noteworthy aspects of the system that gave it a high level of respectability in the ancient world. First, the use of an extremely large number of jurors and their selection on the very day of the trial provided a safeguard against influence peddling and bribery.  Second, and of equal importance, was the fact that the popularly selected jury excluded the possibility of the courts falling under the control of social cliques or special interest groups.

In reflecting on the Athenian jury system one must disassociate himself or herself from the ideals of the Greek philosophers Socrates, Plato, and Aristotle. The jury system, as it actually was in Athens, was not the system the philosophers had envisioned. Instead, what developed in Greece was a jury system based on the deeply ingrained concept of democratic rule. The Greeks knew that trial by jury often falsely condemned innocent men and women, but that was not the concern foremost on their minds. The Athenian jury was an extension of government – not a separate entity – which saw to it that popular and not kingly power would have dominion over all Athenian citizens.

In closing, the Greeks formed the first judicial system in western civilization that adhered to the principle of a trial by jury, and although their system was not without failings, it did ensure against the calumny and corruption that have plagued societies throughout history. Now we turn to the Roman World, a world which bequeathed to posterity the efficient and systematized pattern of law that has formed the basis for almost every subsequent legal system in the Western world.
Rome

According to tradition, Rome was founded in 753 B.C. Roman law makes two claims on our attention. In its first life, it was the law of the city of Rome and, in its ultimate maturity, of the entire Roman Empire.  But it was more than this. It was the most original product of the Roman mind. In almost all their intellectual endeavors, the Romans were the eager pupils of the Greeks, but in law they were, and knew themselves to be, the masters (Bruce W. Frier, The Rise of the Roman Jurists).

The Romans were the masters of law, and as we shall see, they increased its complexity and efficiency to levels previously unknown. The Romans, unlike any other people before or since, approached the law with an eclectic outlook. Borrowing practices and procedures from the diverse civilizations which they encountered, Roman legal theorists and lawyers formed an expansive and flexible legal system that was the amalgamation of law in the ancient world.

Roman history covers the wide expanse of more than 1,000 years—from the Monarchy through the Republic and culminating in the era of the Principate (or Empire), which lasted half a millennium. The period on which this essay will focus is the latter stages of the Republic and the first century of the Empire, an epoch that is referred to by the majority of historians as the Classical Age of Roman Law (80 B.C.— A.D. 110). The reason I have singled out this era is because of the profound influence it had on the minds of the founders of the American Republic, which in large measure was patterned after the Roman government before Julius Caesar. President John Adams wrote that “the Roman constitution formed the noblest people and the greatest power that has ever existed.”

The Roman system, much like the Greek, was operated to a large degree by common citizens. It was part of the philosophy of the Romans that the duty of a citizen included taking his share of the burdens of the law— acting as judge, arbitrator, or juror and supporting his friends in their legal affairs by coming forward as a witness, as a surety, or in whatever other capacity he may be needed. Many a familiar passage of Latin verse testifies to this. Here is the poet Juvenal’s recipe for the good citizen—“be a good soldier, good guardian, honest arbiter, unperjured witness.” Horace’s answer to the question Who is a good man? was— “the man who keeps the resolution of the Senate, the Statutes and the law, before whom many great suits are brought to judgment; when he is surety affairs are safe, when he is witness causes are upheld…”

Another aspect of Roman law that bears resemblance to the Athenian system was the use of rhetorical performances in court which very often had very little to do with the law case at issue. According to historian J. A. Crook, Greco-Roman litigation was a public spectacle. Pliny, the famous Roman orator, gives a portrait of the style lawyers employed in a cause célèbre before the centumvirt or court of the one hundred—“I plied on every canvas, indignation, rage, distress and sailed the seas of that tremendous action like a ship before the gale.”3

Before examining the courts and juries of Rome, one must divorce himself from the American conception of “equality before the law,” for to the Roman mind one’s relation to law was inextricably bound to one’s formal legal status. Gaius, the most famous of Roman jurists, set up a table of statutes for which there was an accordingly different set of rights and duties under the law. A few examples from his institutes are revealing of the Roman judiciary—

1. People (male and female) are either slaves, or they are free.
2. Free people are either free by birth, or free by grant of freedom from slavery.
3. Free people are also either Roman citizens, or coloniary Latins or peregrines of a particular community or they are vagrant.
4. Roman citizens are either independent in their own power (sui juris)—or in the power of someone else (alieni juris).
5. Persons in their own power are either under guardianship or caretakership (minors and women).4

This belief listing does not exhaust the complexities of statuses and corresponding rights; however, it does hint of the challenges the Romans faced in compiling a legal format which would encompass nearly 150 million persons in a world empire.

For our purposes, it is best to concentrate on the two most frequently used courts in the Roman Republic—the courts of the urban and peregrine praetors. Although the courts bore his title, the praetor actually played the role of a bureaucrat, not that of a judge or juror. The office of praetor was filled by a popularly elected official serving for only one year, whose job it was to draw up the guidelines or “formula” of the trial. In the classical period, Roman civil trials were characterized by an historically distinctive two-part format.  The first part of the trial took place “at law” (in iure) before the praetor, who acted as the only presiding magistrate. The opposing parties were summoned to appear before the praetor and were to describe the alleged offense. The praetor, upon hearing the two parties, set down in writing precisely what grievances and claims were pertinent to the case. Once the praetor had itemized the claims to be heard and the format to be followed, this formula was then submitted to the court, thereby giving the judges the exact procedure and pattern that the case had to follow.

Furthermore, it was the responsibility of the praetor to bring the parties to an agreement concerning the citizens who would serve as judges. Plaintiff and defendant alike actively participated in the selection of judges, usually numbering from one to five. The judges, like the members of the Athenian jury, were ordinary laymen with no training in the law; however, the Roman judges did seek the advice of learned “jurists” in rendering a decision “in accord with truth and respect for the laws” (cum veritate et legum observatione).5 Once the formula had been drawn up and the judges chosen, the duty of the praetor was fulfilled.

The second step in civil cases was the actual presentation before the judges.  The plaintiff’s lawyer spoke first, followed by the attorney for the defense. After a period in which evidence was presented and witnesses questioned, the Roman barristers engaged in what was called the altercatio, essentially a brief exchange of argument concerning the more salient aspects of the case.  The altercatio had a question and answer format between advocates and was used to impress both positive and negative points on the judges.

In reaching a decision concerning a case, a Roman judge consulted the only legal experts available, the jurists. The jurists of Rome are by no means comparable to the judges of the American legal system. Roman jurists were advisers learned in the law; they gave advice to the judges concerning legality, custom, and precedent. Such advice was not binding; however, it was actively sought and of considerable value to the judges, for if it could be demonstrated that the judges acted with prejudice or partiality, legal action could be brought against them.

In most civil cases, judges were given up to ten days to issue a verdict. If the allotted time had expired and the judge or judges had still not reached a decision, a retrial could be called in which presentations and the questioning of witnesses would be reevaluated.

Although a retrial could certainly be called, it was by no means common. Roman judges and juries were (during the trial) thought of as public servants, and as such they always attempted to reach a judicious decision without recourse to further hearings.

Nowadays, a trial by jury presupposes the right to an attorney. The Romans were the first in history to recognize this right, calling for the widespread availability of “free” legal advice. Roman lawyers/orators were not permitted to accept fees for their services, yet it is interesting to note that the name of Marcus Cicero appeared in countless Roman wills. This, it seems, was one of the many ways of circumventing the antiquated tradition of “free” legal advice.

The Roman judicial system, however complex it may have been, had a rather simple method of retribution or recompense. A verdict of guilty in the majority of all civil cases of the classical era had only an economic form of punishment. Damages were assessed and fines were issued in accord with the judge’s ruling, a ruling for which there was no appeal. The only other route that could be taken was the formula arbitraria, a clause that allowed the judge to convict “unless the thing be restored.”6

Judgment given, the duty of the judge was over. If the convicted party did not obey the judgment, it was up to the plaintiff to take further steps. The plaintiff was not given physical assistance from the authorities, but the legal consequences for the recalcitrant defendant were severe. First, after 30 days the plaintiff could bring an “action on the judgment.” This action was really no action at all but merely an interim period before allowing the plaintiff the more effectual “personal execution.” The personal execution phase had two parts. First, the plaintiff could seize the judgment debtor and keep him in private imprisonment until the debt was discharged. Second, the plaintiff was authorized entry into the whole of the debtor’s property and granted permission to sell it. Such seemingly drastic measures were often needed in a legal systems that had no police force in the modern sense or even a prison system for the detention of offenders.

Capital and treason trials in Roman law worked according to the same general pattern, yet there were a few distinct differences. The reader must keep in mind, however, that the legal procedure which we are now examining pertains only to law in the city of Rome itself, and in relation only to Roman citizens. Law and court procedure concerning noncitizens or citizens living in a colony or province will be discussed in a later section.

The most important difference in the trial of capital offenses or cases of infamia was the use of a large number of jurors. The centumviral court called for more than 100 jurors (often near 200) selected from the wealthiest and most politically prominent elements of the Roman aristocracy. The use of centumviral juries represents a moment in Roman legal history when the state was beginning to take a hand in the actual appointment of judges, instead of leaving it a matter to be agreed upon by the parties involved. In this court, as in the Athenian system, the jury decided the case.

A second forum for cases of great importance was a trial before the Roman Senate. Such cases were rare, but nevertheless, the Senate did act as a channel for the courts in times of crisis. In the late Republic, the Senate was continually having to act and react in its relations to political leaders who posed a potential threat to the stability of the government and, therefore, the legal framework. From Tiberius Gracchus to Sulla down to Julius Caesar himself, the administration of the law was affected by the great political upheavals of the day. Yet the Roman system for the most part was able to adjust to the changing tide of political events.

Trial by jury during the Republican era was in the strictest sense not separated from politics, but it was nonetheless able to perform extremely well and virtually autonomously. The entire reasoning underlying the jury system of the Republic was the firm belief the Romans had in individual rights which citizenship provided. Roman feeling about civil liberties was so strong that when these rights and liberties dissipated under Imperial rule, the emperors maintained the facade of Republican institutions in order to buttress their government with popular support.

The Roman legal framework for the many provinces and colonies of the Empire was similar to the framework used in the city of Rome. There were, however, two important differences— (1) the authority of the governor and (2) the right of appeal which every Roman citizen had. In all Roman provinces, the governor was the chief administrative official of the government and the sole judge in capital trials. His ruling, not the verdict of a jury, decided most major criminal law cases. In such cases, each Roman citizen had what was called the provocatio ad populum, or appeal to the people. This appeal mandated that the defendant have his case brought to Rome and decided upon by a jury of his peers (fellow Romans) before any sentence could be executed. The provocatio ad populum was an appeal that Jesus Christ could have exercised had he been a citizen of Rome. The Roman Empire had a similar appeal to the emperor, although as a practical matter this could only be used by defendants who had wealthy, influential patrons back in the capital.

The practice of Roman law changed considerably after the second century A.D., for it is in the later years of the Empire that we find an increasing growth of political influence. It is, in my opinion, a maxim of legal history that with the increased centralization of political power comes a corresponding diminution in the expression of liberty, and it is liberty on which the jury system depends.

The Republic of Rome, a government that the founders of our nation venerated, set up the ideal of an equitable justice system which has served as a model for many legitimate modern systems throughout the world. The basic principles of this system, as historian Bruce Frier relates, are

1. strong separation of law from politics, and a consequent emphasis on the independence of the judicial system from political influence as well as on the division between legislative and judicial functions of government;

2. a conception of law as a selfconsistent body of rules that are applied in individual cases and that, because of their existence, both limit the discretion of the judicial system and help to prevent it from intruding into politics;

3. an emphasis on procedural regularity and fairness as the primary end and competence of a judicial system; and

4. a belief that “fidelity to law” means primarily obedience to established rules and likewise a conviction that changes in law must be channeled through the political process.7

England

The second phase of this historical survey of the trial by jury leads us to consider the western half of continental Europe and England. We now focus attention on the European nations, which in large measure can be considered heirs to the legacy of the Greeks and Romans.

At the height of its power, Rome encompassed the modern-day nations of Italy, France, Spain, and England, as well as much of western Germany.  Wherever Roman legions marched, so too went the laws of Rome. However, after the collapse of the Empire, Western Europe became factionalized, and the legal codes of the continent developed with the rising feudalism of the age.  Clearly, an essay of this length cannot trace the development of every jury system in Europe; therefore, I will focus on the development of the jury in England.

There is great dispute among historians concerning the “origin” of the modern jury system. Many scholars assert that the Norman conquest of England (A.D. 1066) marks the first step in its establishment.  Others, however, consider the jury of Norman England barbaric and highly inequitable, therefore representing only a fragment of what we today consider a jury system.

A discussion of the English jury will necessarily deal with the changes effected by various historical figures. The changes and innovations, which took centuries to achieve, were the results of kings’ and politicians’ efforts-not the workings of legal scholars and philosophers. Therefore, to examine the jury system is to become acquainted with the leaders who developed and gave force to movements of change.

After the withdrawal of the last Roman legions in A.D. 448, no overall legal organization was present in England until the reign of King Alfred in the late ninth century. Upon his ascension to the throne, Alfred divided all of England into counties, the counties into hundreds, and the hundreds into tithings.  Ten neighboring householders formed one tithing, with every householder answering for the conduct of his family.  Those persons not registered with one tithing or another were punished as outlaws within the legal framework.

When conflicts arose demanding the voice of a judicial body, the entire tithing met and decided the issue. An assemblage of all those registered in the tithing was formed, and once the parties had presented their respective cases (without the aid of a lawyer) a sentence was issued.  The sentencing was not issued by a judge but by the citizens of the community. Herein lies the very rudiments of what would later develop into the trial by jury.

Following the death of King Alfred (A.D. 901) continual internecine wars arose, laying waste this popular albeit crude system of justice. The succeeding two centuries in British legal history were marred by the now infamous trial by ordeal. Trial by ordeal and by the oaths of compurgators were by no means the foundation of the modern jury; however, it is revealing to examine briefly the system (or lack thereof) that led to the reforms of William the Conqueror.

In the pre-Norman era of Britain, guilt or innocence in criminal matters was determined by two principal methods, oaths of compurgators and the trial by ordeal. If the accusation dId. not involve a crime of violence or if there were no immediate witnesses to the act itself, the reeve (or headman) of the district (similar to the Roman praetor) would ask more than 25 neighbors and relatives of the accused to swear an oath concerning the defendant’s honesty and credibility. If 12 compurgators swore to the defendant’s credibility, the accused was proclaimed innocent and the charges dropped.

Cases with an insufficient number of witnesses and cases in which the accused was charged with a violent crime were proved by ordeal. Common methods were ordeals of boiling water and cold water.  In the former, the accused had to place his head or arm, depending on the seriousness of the offense, into a bucket of scalding water.  The accused was found innocent only if the burns showed no signs of infection after three days.  The ordeals of cold water required that the accused be thrown into a lake or river, with his thumbs tied to his toes. If the water “rejected” the accused – that is, if the accused floated – the accused’s case was lost.

After 1066, these modes of trial continued, with some enduring for a few centuries in varying degrees. Some disappeared altogether with the conquest by the Normans.

In 1070 an inquest into the laws of England was conducted by King William, as he intended to rule the English by these already existing laws. The king also summoned a jury in every county consisting of the sheriff, the bailiff of each manor, the county priest, and several wealthy denizens of the county. This jury was required to determine under oath the value and manner of holding of all of the property within the district. The result of these surveys was known as Domesday Book, an extensive record of population and land holdings throughout England. This surveying of the land holdings and the establishment of a jury in its execution would eventually put the monarchy and the aristocracy/clergy at odds with one another.

Later in William’s reign this jury, on a few occasions, heard cases in which the format was surprisingly similar to a modern trial jury. Such cases arose over the assessment of property owned by the church yet desired by the monarchy. Bishops whose land had been surveyed and granted to the king demanded a trial at which they could present official evidence of ownership. Trial was granted, and the jury oftentimes ruled in favor of the church, while the king allowed the decision to stand as law. Cases of this nature were infrequent, and by the end of William’s rule the jury had still not permeated the nation with regard to criminal and civil cases. However, King William was the first monarch to appoint professional justices, and he is credited with the separation of ecclesiastical and secular courts of England.

William’s reason for separating the courts of England is not an example of kingly justice or beneficence, rather it was merely the crown’s way of placating and quelling a populace that had recently been conquered. The king and his magistrates had no conception of an abstract separation of powers or the notion of a self-styled limited monarchy. Such theories were to be later espoused by the enlightenment philosophers Montesquieu and Locke, not by a usurper struggling to maintain order.

Henry II, who ruled England from 1154 to 1189, introduced more substantive legal changes than any other king had hitherto attempted. In fact, if a single person could be thought of as creating the British jury, Henry would be that person.

The first of a series of great enactments that have come down to us from this period was the Constitutions of Clarendon (1164). This document was the first in British legal history that attempted to formulate trial by jury. One provision was directed at powerful individuals who were intimidating others in order to escape prosecution—”The sheriff shall cause 12 legal men of the neighborhood to take an oath in the presence of the bishop that they will declare the truth about it [the case]….” This jury was also empowered to declare the verdict and offer the form of punishment, thereby going far beyond the realm of William’s ‘survey” juries. The selection of the jury was done by way of property qualifications and status within the community. However aristocratic this jury may have been, it was nevertheless a jury founded on the principle of the freedom and independence of the jurors.

Perhaps even more important among the many reforms of King Henry II was the establishment of the Grand Assize, a court intended to give a person whose possession of land was challenged an alternative to appearing before a judge or panel of judges, all of whom worked for the crown. The court had 16 jurors, four of whom were knights. In addition to having property qualifications, all jurors were responsible with familiarizing themselves with the case at issue.

The selection of the jury bears a similarity to the manner of selecting a judge in the Roman Republic. In Rome, the aggrieved parties had to agree on the choice of judges. In England, the parties could challenge the selection of jurors if they had just cause to question their credibility.  Moreover, the Grand Assize was the first in British history to open the forum to middle-class citizens.

The trial jury in criminal cases was brought into use after the civil jury; however, it was used so rarely and within such a limited sphere of action that further note of it would be premature. One must keep in mind that the jury system of England developed as an “accidental check” on the absolute power of the crown. It was granted from above not demanded from below.

Magna Carta and Beyond

On June 15, 1215, King John of England met the barons near Runnymeade on the Thames and granted them the Magna Carta, a document officially sanctioning, for all the world to see, the right of a trial by jury. The Magna Carta presented for the first time in modern history the principles upon which an equitable judicial system could be founded. The charter did not, as we have seen, introduce the jury into England. It did, however, proclaim the right of every British citizen to have a trial by a jury of his peers— “No freeman shall be taken or imprisoned or desseised or exiled or in any way destroyed… except by the lawful judgment of his peers or by the law of the land.”

Most modem historians would take issue with the thesis that the Magna Carta established the trial by jury, but the evidence is rather strong that after its promulgation trial by jury was more frequently used. The composition of the jury after the Magna Carta was in most cases the same as the Grand Assize, the only exception being that the four knights were no longer called to serve as jurors.

One curious note to the trial by jury in the twelfth and thirteenth centuries was the fact that many of the accused parties summoned before a jury or their peers simply refused to appear, thereby leaving the other party without a channel for the process of law. In 1215, however, a statute was enacted that made evasion increasingly difficult. The prison forte et dure (prison hard and long) of the statute brought recalcitrant parties into court en masse. Trial by jury seemed an attractive alternative to imprisonment, bound in heavy chains and given meager food rations.

By the end of Henry III’s reign in 1272, it was not uncommon for criminal cases to be presented to an enlarged jury of 24 or 84 members, particularly in cases of great social and political importance. The increase in the number of jurors commensurate with the significance of the trial is a pattern, which as we noticed, had been used in ancient Greece and Rome. Trials with such large juries needed a majority vote in order to reach a verdict. Conversely, in the standard jury of 12, a unanimous decision was needed to ensure settlement of a criminal trial. With the need for a unanimous decision, great pressure was placed on the jurors by the magistrates of the court. There were many trials in which one or two jurors were imprisoned for dissenting from the majority, and once they were no longer a part of the jury, count of the decision was retaken with “unanimity.” Cases such as these seriously undermined the credibility and force of the Magna Carta; clearly, the judicial system of England was for the most part in the hands of the monarchy.

The right of appeal in England was used infrequently, perhaps because judges were often likely to render a more severe sentence.

At this point, a comparison of the development of the English jury system with the Roman system will clarify what I have come to see as a fundamental principle in the maintenance of justice in a trial by one’s peers.

The jury system of Rome was developed by the Senate during the Republican era, a time when the liberty of the people was matched by a corresponding freedom of the judiciary. With the transition into the era of the Principate, however, we observe an increased centralization of government along with an increased politicization of the court system.

The transition was quite different in England. The British jury system was granted and in part supported by the crown and was only reluctantly acted upon by the people. As popular involvement increased, so too did political opposition to the crown. The paradox, however, is that after the jury had been established and reformed over several centuries, it fell into disuse by the tacit consent of the people and the government.

Thus, in Rome the jury had taken centuries to develop its level of efficiency and withered only after civil war and revolution.  In England, however, it developed under the monarchy and withered not by faction or war but by the will of the people. The underlying theme to this comparison is that in order for a jury system to have the permanence and effectiveness it needs, it must be both politically independent and popularly supported. Lacking either one, its stability is undermined; lacking both, it will either disappear or remain a jury in name only.

The Early Modern Period

The early modern English jury was generally of the same composition as its medieval counterparts. The names of the jurors were made public days before the trial. In the fifteenth and sixteenth centuries the parties not only had a right to question the jurors for the purpose of obtaining information on which to base challenges, but they also had a right to inform jurors of their position before the day of the trial. By the late seventeenth century (1682), however, parties could be punished for using this technique to influence the jury’s verdict.

The year 1772 marks another important stage in the progression of the British legal system. It was in that year that prison forte et dure – was abolished. After 1772 the accused either stood as convicted by his refusal to plead, or his refusal to plead was taken as a plea of not guilty.8
The defense in criminal cases usually operated at a considerable disadvantage. Criminal defendants were not generally permitted the assistance of counsel even though the prosecution might have as many as four lawyers. The reason for not permitting criminal defendants representation by an attorney is revealed in an excerpt from an early trial—

“The only Reason … why a prisoner is allowed on counsel in matter of Fact or in any thing but matter in law, when life or member is concerned, is only this, the Evidence whereby he shall be condemned, ought to be so plain and evident, that all the counsel in the world may be presumed able to say nothing against it or in his defense.”

In addition, the British court worked with the assumption that the judge would be the prisoner’s attorney.

The defendant had several other difficult obstacles to overcome in mounting a defense. He could not testify in his own behalf, nor could he solicit the aid of his spouse.  It was not until the seventeenth century that the defendant was permitted to call witnesses.  Moreover, up until the time of Cromwell’s rule (mid-seventeenth century), all official court papers were in Latin, which made court procedure and precedent even more difficult for the masses. The use of the King’s Court and the Star Chamber also ensured that the jury would be subject to the crown. With the odds thus stacked against the defense, it was extremely difficult to get an acquittal.

In many cases, the judge or judges presiding over a trial would reject the decision of the jury until it reached the decision desired by the crown. This high-handed style of justice eventually gave impetus to judicial reforms in England. Several juries of criminal and civil cases defied the government and asserted their autonomy in rendering a decision in opposition to the crown. It is quite possible that if these select juries had not defied the crown, the English jury would have remained a mere channel for monarchical power. Alexis de Tocqueville wrote expressing this exact sentiment—

“If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under the Tudors; and the civil jury did in reality, at that period, save the liberties of England.”

With the British liberties thus saved, let us now turn to the English legal system after 1789.

England After 1789

The British jury system after the Glorious Revolution of 1688 had acquired a level of independence which was hitherto unparalleled.  With its newfound independence, the British jury by the 1850’s seemed to be a hallmark of western civilization; yet by the mid-twentieth century, the jury in England had once again fallen into a state of relative disuse. Scholarly estimates are that by the mid-1860’s, 85 percent of indictable offenses were tried summarily by the magistrates, without a jury, at the defendant’s request.

The reason for this disuse is twofold. First, since 1883 jury trial has been used in ordinary course only in cases of libel, slander, malicious prosecution, and false imprisonment. In other cases, a party desiring a trial by jury must request it, the aim being to reduce the number of jury trials. Second, defendants are offered enticements to choose summary trial. The sentencing power of a magistrate is generally limited to certain moderate pecuniary lines and lengths of imprisonment.

The English jury system has seen considerable liberal reforms in the past 30 years, but the fact remains that in the modern era the British trial by jury has gone largely by the wayside. The jury trial today is used perhaps less than at any other time since the Glorious Revolution.  The English trial by jury is still operative, but if the level of its employment is any indication of its value, then I fear that it is not doing very well.

The Chinese and Soviet Legal Systems

With our examination of the Athenian, Roman, and English jury systems, we have examined the very essence of the Western legal tradition of trial by jury. We will not trace the history of the Chinese and Soviet legal systems; instead, we will concentrate on their trial systems as they operate today.  Our purpose here is to examine two modern legal systems that, unlike the American system, do not have strong traditions of independent juries.

China

There is an inherent tension between the theory and practice of Chinese law that may lead to great confusion for the western observer.  Realizing this difficulty, I will present a fairly comprehensive overview of procedure as it would appear in a general civics text; then I will pierce the facade of the Chinese jury system and highlight several notable contradictions and injustices found in the Chinese constitution and governmental actions.

The court system of the People’s Republic of China (PRC) is composed of three levels of Peoples’ Courts, the Local People’s Courts, the Special Peoples’ Courts, and the Supreme People’s Court. Established in January 1980 in a wave of post-Mao reforms, they differ only marginally with the court system established by the promulgation of the constitution in 1954.  The 1980 Organic Reform Law has provisions concerning judicial independence, equality before the law, public open trials, the right of defense, and collegiate system, and the two-trial (one appeal) system.

Each division of the court system has a president and a vice-president, each elected every five years. The power of the president extends in theory only so far as the constitution permits.  The president and his administrators supervise lower court procedure and the constitutionality of the tripartite division of criminal, civil, and economic People’s Courts.

Let us now examine the stages by which a case is brought to trial.  Upon the voicing of a grievance by private citizens or public officials, police and citizen committees form an investigation team which gathers information through the use of interviews, evidence examination, and eyewitness accounts. (The investigators must respect Article 90 of the Constitution of the People’s Republic— “The homes of citizens of the People’s Republic of China shall be inviolable, and privacy of correspondence shall be protected by law.”)

If sufficient evidence has been found to warrant a trial, the police proceed to the second stage of procedure—the drawing up of charges. The police and investigative committees must submit all evidence and materials to the procurator, who then reviews the evidence and determines the validity of the case. In its specifically designated role of supervising the administration of criminal justice, the procuracy is empowered to carryout investigation of criminal cases, oversee the activities of the police in the criminal process, institute prosecution, scrutinize the trial activities of the courts, and supervise the execution of judgment and the activities of correctional facilities. (Article 5, Constitution of the People’s Republic of China)

After the procurator has drawn up a charge, the move to trial then goes through the informal stage of mediation, a stage that normally obviates the need for a trial. Mediation committees composed of private and public figures perform the functions of settling civil disputes and disposing of minor criminal cases at the grassroots level. Such committees are also responsible for conducting legal and moral education as well as propaganda. Although not mandated by law, the process of mediation relieves the judicial system of the great burden of petty civil cases; since 1980 it has been estimated that close to 90 percent of all civil cases in China have been resolved through mediation.

If mediation fails to produce a settlement, the case is brought to trial. The format of the trial is inquisitorial, not adversarial as in the American court system. One presiding judge, appointed by the People’s Congress, and two elected laymen, called assessors, participate in each trial. This panel decides both questions of law and questions of fact, unlike the American jury trial in which the judge decides the law while the jury decides the facts.

The defendant presents his case alone or with the help of an attorney and then prepares for questioning by the panel.  During the period of questioning, the judge and assessors consult with one another to ascertain the veracity of the testimony with respect to the available evidence. Once a decision is reached, the defendant is informed and given the opportunity to appeal to a higher court.

The description, thus far, has been intentionally vague and brief, for that is exactly as it would be found in Chinese texts of government. When Westerners ask the Chinese about their legal system, they are presented with a copy of the Chinese constitution; but the constitution – although replete with liberal, democratic ideals  is not at all a blueprint for the daily operations of Chinese justice. Let us now probe below the surface and consider the contradictions that are a mainstay in Communist China’s system of justice.

One striking difference between the Chinese and Western legal systems concerns the powers of the police. In China the police are empowered by law to order fines, impose detention, and issue reprimands. Furthermore, the police are tacitly authorized by the government to send vagrants, “counter-revolutionaries,” and “rightists’ to labor camps for protracted terms without a trial. Such sanctions are not uncommon in China; they serve as an arm of justice which has no cost to the government.

Police and administrative sanctions are not issued surreptitiously, as one might expect, but with the complete knowledge and approbation of a great majority of the populace. Only a very few cases are not disposed of through the application of administrative sanctions and move on to the stage of judicial trial. These cases usually fall into two categories— (1) where the offense is so serious that the penalty of several years at a work camp is considered too lenient and (2) when some extraordinary circumstance is present so a greater degree of publicity and formality is necessary.10

Since sanction and mediation are used to resolve 90% of all cases, it is clear that the Chinese constitution’s provision that every citizen is entitled to a trial actually means “one citizen in ten.”

Detention or arrest of a citizen in China in theory only occurs after the procuracy has issued a warrant stating expressly the cause and legal justification. Article 89 of the Constitution states— “Freedom of the person of citizens of the People’s Republic of China may not be infringed. No citizen may be arrested except by decision of a people’s court or with the approval of a people’s procuracy.”11  The words of the constitution are unequivocal, yet a statute promulgated by the chairman of the Communist Party is equally unequivocal, “In any one of the following situations, a public security organ may adopt emergency measures to detain immediately (without obtaining a warrant) an offender whom it is necessary to investigate…”12 The constitution of the Republic and the statute of the party chairman are clearly at odds. To see how the charade is carried one step further, read Article 7 of the Arrest and Detention Act of the PRC and consider it in relation to the constitution of China and in relation with any liberal interpretation of the meaning of arrest. “When a public security organ detains an offender, within 24 hours after detention it will notify the people’s procuracy of the corresponding level about the facts of and the reasons for detention (arrest), within 48 hours after receipt of notification, the people’s procuracy shall either approve or not approve an arrest; if the people’s procuracy does not approve an arrest [already executed], the public security organ (police) shall release the detained [arrested] person immediately upon receipt of notification.”13 If any doubt remains that the principles of the constitution are flouted by the Communist Party in China, note Article 5 of the PRC Labor Reform Act— “Organs of reform through labor shall put into effect strict control of all counterrevolutionary and other criminal offenders during the period that they are being held, and the organs must not be apathetic or relax their vigilance…14 Keep in mind, however, that confinement or detention of a citizen without the permission of the procurator is “unconstitutional.”

I could enumerate countless other contradictions between Chinese theory and practice of detention, but additional references would be superfluous. I will now proceed to the paradox of search and seizure in the Chinese legal framework.

According to the Constitution of the PRC, “the homes of citizens shall be inviolable and privacy of correspondence shall be protected by law.” There is a means of subterfuge, however, and it is the Arrest and Detention Act. Citizens across the wide expanse of mainland China can read the constitution with admiration, yet what they are not given to read are the statutes and edicts enacted by the ruling party. Article 10 of the Arrest and Detention Act, in another overt expression of unconstitutionality, states— “When the arresting or detaining organ considers it necessary to take into custody mail or telegrams of an offender who has been arrested or detained, it may notify the postal and telecommunications organs to do so.”15

Western observers often ask, How could such inconsistencies continue unnoticed? There are several reasons— Chinese criminal law remains uncodified; there is no system for publication of judicial decisions (no reporters, no precedents); and important substantive laws are often unpublished or, if published, very vague.

The right of attorney, one of the very few provisions in the constitution which is respected, lacks effectiveness simply because China has an incredible paucity of lawyers for a nation of more than one billion people. As of mid-1983, the Chinese legal system was operating with less than 13,000 attorneys.16

Viewed in this context, the right of attorney is not a right at all for the vast majority of citizens who simply cannot find a lawyer. In fact, most Chinese citizens represent themselves in court if their case ever is presented before a judge; they may have legal counsel if they are fortunate enough to know a lawyer or to be presented with a “government attorney.”  They often refuse counsel because they fear the judge will hand down a more serious sentence if they exercise their right to an attorney.

There is general consensus among Western scholars that the criminal process in Communist China is arbitrary, highly politicized, and responsive to class and status differences in its treatment of cases. Contrary to the constitution, the court and institution of proceedings are not public.  There is no independent judiciary – indeed some would argue no judiciary at all – and little separation of powers.  The entire criminal process in China today tends to be dominated by the police, under strong party control. The judiciary which is operative today appears to be little more than an arm of the governmental administrative bureaucracy.

In summary, the Chinese courts do not do very much. Few cases reach the court, and those that do usually have no unclear or disputed facts.  In addition, since the early 1960’s, the court, procuracy, and police have often followed the practice of consulting with each other during the investigation stages and engaging in a kind of group decision making.  “Thus, in many ways, the criminal trial often resembles the last act of a morality play rather than an event where facts are determined and decisions of guilt and innocence are made.”17

Soviet Union