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The Exclusion of the Clergy from Criminal Trial Juries: An Historical Perspective

  • Rosemary Pattenden (a1)

Schedule 1 to the Juries Act 1974 provides that ‘[a] man in holy orders; a regular minister of any religious denomination [and] [a] vowed member of any religious order living in a monastery, convent or other religious community’ is ineligible to serve on a criminal (and also a civil) jury. This has been the law since 1972. For the remainder of this century members of the clergy have been eligible, but not compellable, jurors. In practice they did not serve. The change effected in 1972 is a reversion to the position which probably prevailed in the Middle Ages. Aside from the occasional official report, the liability of religious functionaries to serve on juries in criminal trials has been rarely written about. The last time it happened was in 1882. The object of this article is to fill the lacuna by tracing the history of the clergy's ineligibility for jury service in criminal trials and the reasons for it.

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1 Erle, T. The Jury Laws and Their Amendment (London. 1882).

2 Initially homicide, robbery, theft and concealing someone who had committed these crimes. By the reign of Edward II (1307–1327) arson, burglary, larceny and counterfeiting had been added.

3 Harding, A. The Law Courts of Medieval England (London. 1973). p 57.

4 Skayer, J (ed). Dictionary of the Middle Ages, vol ii (New York. 1986). p 183.

5 Nichols, F (ed). Britton. vol i (Oxford. 1865. reprinted 1983), p 347.

6 None of the legal treatises published from 1503 onwards, which are considered below, indicates any difference in jury disqualifications for civil and criminal proceedings.

7 The hundred was the subdivision of the county used as the unit of administration in criminal matters.

8 Nichols, (ed) Britton. vol i. p 178. See also the Statute of Marlbridge 1267 (52 Hen 3. c 10) (Sheriff 's Turns).

9 Stephenson, C. and Marcham, F. (ed). Sources of English Constitutional History (revised edn. New York, 1972). p 73.

10 Ibid., p 77.

11 Ibid., p 77.

12 Mansi, J.. Sacrorum Conciliorum Nova et Amplissima Collectio. vol 22 (Venice. 1778). p 1006. The text of canon 18 is to be found later in the text below.

13 Pollock, F. and Maitland, F.. The History of English Law before the time of Edward I (2nd edn.) vol ii (Cambridge. 1968). p 599.

14 The Eyre was the periodic visitation of the royal justices from county to county to hear civil and criminal causes.

15 Groot, R.. ‘The Early-Thirteenth-Century Criminal Trial’ in Cockburn, J. and Green, T. (ed). Twelve Good Men and True (Princeton. 1988). p 17.

16 Green, T.. Verdict According to Conscience (Chicago. 1985). pp 13, 15.

17 Skayer, J. (ed). Dictionary of the Middle Ages, vol ii. p 183.

18 The Eyre of 1194 gives the composition of the grand jury as twelve knights or if knights were wanting. twelve freemen: Stephenson, and Marcham, (ed). Sources of English Constitutional History, p 104. The Constitutions of Clarendon (1164), the Assize of Clarendon (1166) and the Assize of Northampton (1176) added four men of each settlement of the hundred: Sources of English Constitutional History, pp 74. 77:1. 80:1.

19 Overlap between the grand jury and petty jury was stopped in 1352 by 25 Edward 3. stat 5. c 3 (Challenge of Jurors).

20 Given, J. Society and Homicide in the Thirteenth Century in England (Stanford. 1977). p 95: Bellamy, J. Crime and Public Order in England in the Later Middle Ages (London. 1973). p 145.

21 Bracton, De Legibus et Consuetudinibus Angliae. ed Woodbine, , rev and tr S Thorne. vol ii (Cambridge. Mass. 1968). pp 309. 310.

22 Stubbs, W.. Selected Charters (9th edn) (Oxford. 1913). p 354.

23 Poole, A.. Obligations of Society in the XII and XIII Centuries (Oxford. 1946). pp 28 ff.

24 Pollock, and Maitland, . The History of English Law before the time of Edward I (2nd edn). vol i. pp 433438. 458.

25 Baldwin, J. ‘The Intellectual Preparation for the Canon of 1215 Against Ordeals’ (1961) 26 Speculum 613. esp at 631.

26 Contrary to Deut 6:16 and Matt 4:7.

27 Mansi, J.. Sacrorum Conciliorum Nova et Amplissima Collectio. vol 22. p 1006 (trans by P Pattenden).

28 Canons of the Council of Oxford. 17 April 1222. See Powicke, F. and Cheney, C. (ed) Councils and Synods II. Part I (1205–1265) (Oxford. 1964). Nos 12. 13.

29 Gratian, EgDecretum C 23. q 8. c 29 in Richter-Friedburg, A. (ed). Corpus luris Canonici. vol i (Lipsiae. 1879). cols 963. 964.

30 Lecky, W. History of European Morals (3rd edn). vol ii (London. 1877). p 39.

31 stephenson, and Marcham, (ed). Sources of English Constitutional History, p 75: 11 (italics added): Stubbs, . Selected Charters, p 166.

32 Cheney, . From Becket to Langton (Manchester. 1956). p 24.

33 Gibbs, M. and Lang, J.. Bishops and Reform 1215–1272 (London. 1932). p 167.

34 This was how burning at the stake for heresy was justified. The Church determined who was a heretic: the secular authorities carried out the punishment.

35 Powell, E.. Kingship, Law and Society (Oxford. 1989). p 77.

36 Dawson, J. A History of Lay Judges (Cambridge. Mass. 1960). pp 123126: Green, T.. ‘A Retrospective on the Criminal Trial Jury 1200–1800’ in Cockburn, and Green, (ed). Twelve Good Men and True. p 360.

37 Cp Nichols, (ed) Britton. vol i. p 347.

38 Aquinas, T.. Summa Theologiae 2a2ae. ed O'Rourke, K. (London. 1964). q 89. art 10, p 233. I am grateful for information received from the Rt Revd John Jukes and the Revd Gordon Read.

39 Ibid.,

40 Gratian, . Decretum. C 22. q 5. c 22. in Richter-Friedburg, (ed). Corpus Iuris Canonici. vol i. col 889 (trans P Pattenden). Tyler, J. notes in Oaths, Their Origin, Nature and History (London. 1834). p 30. that before the French Revolution the custom. of exempting clerics from taking a corporal oath prevailed in France and much of the Continent, and that in his day Spanish priests were still forbidden to swear on the Gospels.

41 Palmer, R.. ‘Conscience and the Law. The English Criminal Jury’ (1986) 84 Mich LR 787 at 793. Repentance, reputation, reparation and recidivism were all considered relevant to the conviction decision.

42 Bartlett, R.. Trial by Fire and Water (Oxford. 1986). pp 7881.

43 Year Books of 30&31 , Edward I. ed A Horwood. RS (1863). p 531. Cp Year Books of 12&13 Edward III. ed Pike, L. RS (1885). p 291. Freemen could, however, be tried by knights.

44 Tardif, M. (ed). Coutumiers de Normandie. vol i (Paris. 1903). p 22.

45 Gabel, L.. Benefit of Clergy in England in the Later Middle Ages (Northampton. 1929). p 25.

46 Ecclesiastical courts had jurisdiction over laymen who committed ecclesiastical offences such as blasphemy and adultery.

47 Deeretales Gregorii IX. lib iii. tit L. in Richter-Friedburg, (ed). Corpus luris Canonici. vol ii. cols 657. 658.

48 Matt 6: 24: Luke 16: 3.

49 Richter-Friedburg, (ed). Corpus luris Canonici. vol ii. cap iv. col 658.

50 Occasional attempts were made to prevent pluralism: see eg Cal Papal Letters. 1.155. July 1236. quoted by Gibbs, M. and Lang, J.. Bishops and Reform 1215–1272. pp 166. 167.

51 Putnam, B. (ed). Proceedings before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (London. 1938). p lxxxi.

52 See Gibbs, and Lang, . Bishops and Reform 1215–1272. p 165.

53 Johnson, J.. The Laws and Canons of the Church of England, vol ii (Oxford. 1851). p 220.

54 Plucknett, T.. ‘Commentary on the Indictments’ in Putnam, (ed). Proceedings before the Justices of the Peace in the Fourteenth and Fifteenth Centuries, pp cliv ff. Presentments for trespass could be tried before the sheriff's tourn. the royal justices or justices of the peace: p civ.

55 Pollock, and Maitland, . The History of English Law before the time of Edward I (2nd edn). vol i. pp 435. 440.

56 13 Edward 1. st 2. c 38 (Juries).

57 2 Henry 5. st 2. c3 (Jurors).

58 But not all. It was. for example, possible for a man to be both parish priest and lord of the manor: Richardson, H.. ‘The Parish Clergy of the Thirteenth and Fourteenth Centuries’ in (1912) Transactions of the Royal Historical Society (3rd series). 88 at 117.

59 Fitzherbert, . Natura Brevium. vol ii (9th edn) (London. 1794). p 166.

60 ‘The king to the Sheriff, etc. Because master R Clerk, at this time continually abideth in our service, or in the service of the venerable father I. bishop of Ely: we command you. that him the said R by reason of the lands and tenements which he holds in the county aforesaid, you put not or cause to be put any assises, juries or recognizances, so long as he abides in the service of us, or of the same bishop, as aforesaid.’

61 Registrum Brerium (4th edn) (London. 1637). p 170. The first edition appeared in 1531.

62 Dalton, . The Office and Authoritie of Sherifs (London, 1623), p 121.

63 I am grateful to Professor Baker for this suggestion.

64 See generally Briden, T. and Hanson, B.. Moore's Introduction to English Canon Law (3rd edn.London 1992). pp 106f. Cp Blackstone, . Commentaries on the Laws of England (London. 1768). vol i. p 364.

65 Degge, S.. The Parson's Counsellor (London. 1676). p 136: Nelson, W.. The Rights of the Clergy in Great Britain (London. 1709). p 170. Jury service is not mentioned in either work.

66 Proceedings by attaint involved a jury of 24 determining whether a jury of 12 had given a false verdict.

67 Beecher's Case (1577) 4 Leon 190. 74 E R 813.

68 Cf Cripps, H., A Practical Treatise on the Law relating to the Church and Clergy (5th edn)( London. 1869). p 70.

69 3 & 4 Edward 6, reproduced in Gibson, E.. Codex Juris Ecclesiastici Anglicani (Oxford. 1761). p 151.

70 Juries Act 1825 (6 Geo 4. c 50). s 25. and the Juries Act 1870 (33 & 34 Vict, c 77). s 20. required, respectively, ten and six days' notice of the duty to attend court as a prospective juror.

71 Gibson, . Codex Juris Ecclesiastici Anglicani. p 151.

72 Toleration Act 1688 (1 Will & Mar. c 18). s 11 (italics added). See also the Nonconformist Relief Act 1779 (19 Geo 3. c 44).

73 Roman Catholic Relief Act 1791 (31 Geo 3. c 32). s 8. Unitarians were given the same privileges by the Doctrine of the Trinity Act 1813 (53 Geo 3. c 160).

74 Italics added.

75 Blackstone, . Commentaries on the Laws of England. vol iv. p 364. For the last point he gives as his source Fitzherbert, 's Natura Brevium and the Regisirum Brevium. The statutory reference is to the Juries Act 1285.

76 Blackstone, . Commentaries on the Laws of England. vol iv. p 344.

77 Langbein, J.. ‘The English Criminal Trial Jury on the Eve of the French Revolution’ in Schioppa, A. (ed). The Trial Jury in England, France, Germany 1700–1900 (Berlin. 1987). p 24: Beattie, J.. Crime and the Courts in England 1660–1800 (Oxford. 1986). p 389.

78 Chitty, J.. A Practical Treatise on the Criminal Law. vol i (London. 1816). p 502.

79 Langbein, , ‘The English Criminal Trial Jury on the Eve of the French Revolution’, p 24.

80 The attitude to jury service was similar in the seventeenth century: see Herrup, C.. The Common Peace (Cambridge. 1987). pp 134. 135.

81 The Times. 13 October 1788. p 3.

82 King, P.. ‘“Illiterate Plebeians. Easily Misled“:Jury Composition. Experience and Behaviour in Essex. 1735–1815’ in Cockburn, J. and Green, T. (ed). Twelve Good Men and True (Princeton. 1988). p 259.

83 Duncomb, G.. Trials per Pais: or, The Law of England concerning Juries by Nisi Prius. etc (8th edn). vol i (London. 1766). p 105.

84 Sheppard, W.. An Epitome of all the Common and Statute Laws of the Nation (London. 1656). p 1049.

85 Jurors Act 1543 (35 Hen 8. c 6).

86 In the seventeenth century extensive use was made of talesmen: Cockburn, J.. A History of English Assizes 1558–I714 (Cambridge. 1972). p 118.

87 Blackstone, . Commentaries on the Laws of England, vol iv. p 348.

88 Anon, . The Complete Juryman (London. 1752), p 97.

89 Duncomb, . Trials per Pais. vol i. p 84.

90 Williams, T. The Excellency and Praeheminence of the Law of England (London. 1680). p 160.

91 Marowe, T.. De Pace Terre & Ecclesie & Conseruacione Eiusdem, Westminster Primer, Capitulo Primo.Putnam, B. (ed). Oxford Studies in Social and Legal History, vol vii (Oxford. 1924). p 366.

92 Lambart, . Eirenarcha or the Office of Justice of the Peace (London. 1619). p 396.Hume, D. in Commentaries on the Law of Scotland Respecting Crimes, vol ii (Edinburgh. 1968 reprint), p 313. cites President Balfour and Lord Haddington as saying the same thing about kirkmen in Scotland.

93 The Complete Justice, A Compendium of the particulars incident to Justices of the Peace (London. 1638). p 119.

94 The Office and Authority of a Justice of the Peace (7th edn) (London. 1721). p 389: Phipp, J.. British Liberty; or, a Sketch of the Laws in Force Relating to Court-Lects, and Petty-Juries (London. 1739). p 11; Burn, R.. The Justice of the Peace and Parish Officer (14th edn). vol ii (London. 1789). p 580. Gentleman of the Law, Conductor Generalis or, the Office, Duty and Authority of the Justice of the Peace (London. 1801). p 219 (compiled from Burn).

95 Shaw, J.. Parish Law (5th edn) (London. 1743). p 354.

96 Anon. The Complete Juryman (London, 1752). p 38.

97 Coke, E. The Second Part of the Institutes of the Laws of England, vol i (London. 1641.)

98 Beecher's Case (1517) 4 Leon 190. 74 E R 813.

99 1662–1725. vicar of Cranbrook.

100 Johnson, J.. The Clergyman's Vade-Mecum (2nd edn) (London. 1707). p 125. The first edition was published in the previous year.

101 Hume, . Commentaries on the Law of Scotland Respecting Crimes, vol ii. p 314.

102 Juries Act 1825 (6 Geo 4. c 50). The Act is discussed in Cary, H.. A Practical Treatise on the Law of Juries and Jurors (London. 1826).

103 Italics added.

104 Jurors (Scotland) Act 1825 (6 Geo 4. c 22). s 2.

105 Religious Disabilities Act 1846 (9 & 10 Viet, c 59).

106 Juries Act 1870 (33 & 34 Vict, c 77). See also s 9.

107 The process is described by King, J.. The Management of Private Affairs (Oxford. 1908). pp 222. 223.

108 Re Dutton [1892] 1 QB 486.

109 This was because the exemptions were stated in the Juries Act 1870. s 9. to apply to ‘any juries or inquests whatever’. Willes J said in his judgment (at 489) that before 1870 there were no exemptions from service upon coroners' juries.

110 The Coroners Act 1887 (50 & 51 Vict, c 71). s 3. laid down that persons summoned to serve on a coroner's jury should be ‘good and lawful men’.

111 Erle, T.. The Jury Laws and Their Amendment (London. 1882). p 85.Jervis, J.. A Practical Treatise on the Office and Duties of Coroners (2nd edn) (London. 1854). p 250. gives only ‘aliens, convicts and outlaws’ as unable to sit on coroners' juries.

112 Bill 111.

113 Hansard. HC. 12 May 1872. col 701.

114 Ibid., col 702.

115 Clause 20.

116 The Times. 15 May 1872. p 9.

117 Clause 5.

118 Erle, T.. A Complete Juries Bill (London. 1874). pp 8. 9.

119 Erle, T.. The Jury Laws and Their Amendment (London. 1882).

120 Ibid., pp 84 ff

121 Report of the Select Committee on Special and Common Juries. Parliamentary Papers 18671868. vol xii. p 57.

122 Ibid., pp 9. 14. 43. 51. 57. 65.

123 Ibid., p 43.

124 Ibid., p 14.

125 The Time, 6 06 1873.

126 Skyme, T.. History of the Justices of the Peace (Chichester. 1994). p 452. estimates that about a quarter of all justices of the peace were clergymen.

127 The last attempt at reform was on 22 April 1874. The Bill (no 18) was withdrawn on 30 July 1874.

128 (1913) Cd 6817.

129 Para 270.

130 For full details, see Memorandum by the Home Office to the Departmental Committee on the Law and Practice Relating to Jury, Service (1963). p 13. See also Report of the Departmental Committee on Jury Service (1965) (Cmnd 2627). para 89. Disputes were settled by a magistrates' court: Juries Act 1922 (12 & 13 Geo5. c 11). s 1(5).

131 Juries Act 1922. s 2(2). The argument that this provision implied eligibility is weakened by the fact that those disqualified by a criminal conviction (Juries Act 1870. s 10) had also to serve if their name appeared in the jurors book: Rv Kelly [1950] 2 KB 164 at 173. [1950] 1 All ER 806at810.(1950) 34 Cr App Rep 95at104. CCA.

132 Juries Act 1922. s 8(1). (2)(b).

133 Hansard. HC. 9 05 1922. cols 2103. 2104.

134 Ibid., col 2107.

135 (1965) Cmnd 2627.

136 Ibid., para 89.

137 Ibid., para 101.

138 Ibid., para 120.

139 The one change it made was to remove the italicised words in the following sentence: ‘[a] vowed member of any religious order (whether of men or of women ) living in a monastery, convent or other religious community’.

140 (1993) Cm 2263. para 27. See also recommendation no 216.

141 See the Juries Act 1974. s 9. which allows a person to apply for ‘good reason’ to be excused jury service. and Sch 1. Pt III (amended by the Criminal Justice and Public Order Act 1994. s 42). which gives ‘A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service’ automatic exemption from jury service. Of itself religious belief is not a ‘good reason’ for the purposes of s 9: it may be a ‘good reason’ if the applicant's religious beliefs prevent him from performing his duty as a juror properly: R v Guildford Crown Court, ex parte Sklerfin [1990] 1 QB 683 at 695. [1989] 3 All ER 7 at 10. DC.

142 Lord Chancellor's Department. Home Office. Law Officer's Department. June 1996. p 47.

143 Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c 55). s 1(2). Sch 1. Pt III. Group E.

144 These include the Baptist Union of Great Britain. the General Assembly of Unitarian and Free Christian Churches, the Seventh-day Adventist Church and the Congregational Federation. Reform and Liberal Rabbis would also like the option to serve on juries. On the other hand, the Codex luris Canonici 1983. canon 289. para 2. requires a Roman Catholic bishop, priest or deacon to decline jury service whenever this is possible.

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