February 03, 2016

Horse 2067 - Why Is It "Twelve Men of Virtue True" On A Jury?

As the law currently stands in the state of New South Wales, where I live, the number of jurors required in a criminal trial of sufficient seriousness is twelve. For a civil trial you only need four and in the coroner's court, you need six.
Usually, the amount of jurors that you need to find someone guilty of an offence is eleven of the twelve. I have even heard tales that this arises because there is always one Judas in a group of twelve who disagrees.
When I heard ABC Radio National's "The Law Report" yesterday, they brought up the somewhat bumpy story of trial by jury in the early days of the colony of New South Wales. It is kind of remarkable to think that any sort of legal system would hold, in a land which had been settled and taken by force and to where the British Empire was sending it criminals.

Link: The Law Report, ABC Radio National

Coming back to that requirement for tweleve jurors in a criminal case. I wanted to know where that came from, and of course having piqued my interest, this was something that I simply couldn't let go of until I chased it to the very end.

Numbers of jurors in criminal proceedings
(1) Except as provided by section 22, in any criminal proceedings in the Supreme Court or the District Court that are to be tried by jury, the jury is to consist of:
(a) 12 persons
- Section 19, Jury Act (NSW), 1977¹

All crimes and misdemeanours prosecuted in the Supreme Court, the circuit courts, or courts of quarter sessions shall be tried by a jury consisting of twelve men chosen and returned according to the provisions of this Act. 
- Section 27, Jury Act (NSW), 1912²

the said officer shall in open Court draw from the box one number at a time and shall repeat aloud the corresponding name from the said lists until twelve men shall answer which said twelve men being duly sworn shall be deemed and taken to be the special jury. 
- Section 24, Jury Act (NSW), 1828³

The NSW Jury Act 1977 replaces the existing NSW Jury Act 1912; which itself replaces the existing NSW Jury Act 1828.
Rather than look at Acts which replace Acts which replaces Acts, I decided that the best course of action would be to find what the original act said. Obviously there must be one somewhere.

Hunting around the place and finding nothing, I found a mention of a US Supreme Court case which might finally point me to the beginning of all of this. This was the case of Thompson V State of Utah and was heard by Justice John Marshall Harlan. Harlan is one of those Supreme Court judges who was vocal in his dissent with regards to anti-discrimination legislation following the end of slavery and the US Civil War.

In this case, Thompson and his friend Jack Moore were charged, tried and found guilty of grand larceny. They had stolen a calf belonging to a Heber Wilson. Thompson was found guilty while Utah was still a territory. On appeal and after Utah was admitted as a state in the Union, it was again tried but this time with a jury of only eight people. Thompson who was found guilty a second time then appealed to the United States Supreme Court, on the basis that because the Utah state court only provided a jury of eight people, that this was unlawful.

The case was first tried when Utah was a territory, and by a jury composed of twelve persons. Both of the defendants were found guilty as charged, and were recommended to the mercy of the court. A new trial having been granted, the case was removed for trial to another county. But it was not again tried until after the admission of Utah into the Union as a state.
At the second trial the defendant was found guilty. He moved for a new trial upon the ground, among others, that the jury that tried him was composed of only eight jurors; whereas by the law in force at the time of the commission of the alleged offense a lawful jury in his case could not be composed of less than twelve jurors.
- Thompson V State of Utah, J Harlan, 25th Apr 1898.

Justice Harlan goes on to say that:
When Magna Charta declared that no freeman should be deprived of life, etc., 'but by the judgment of his peers or by the law of the land,' it referred to a trial by twelve jurors.
The law of England hath afforded the best method of trial that is possible of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of the judge and jury, and by the inspection and direction of the judge. 
- Thompson V State of Utah, J Harlan, 25th Apr 1898.

If you actually read through the text of Magna Carta, no such assertion that a jury must consist of twelve jurors is ever made. In fact, most of Magna Carta which is mainly about asserting the rights of the barons and landed gentry, only affords the right of trial by jury to "free men" in section 39. There is no mention of the number twelve.

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
- Section 39, Magna Carta. 1215

I have noticed this in a number of cases and arguments in law, that refer to things which supposedly exist in English law but when you actually bother to investigate, are totally untrue. Magna Carta is often wrongly attributed as the spring from which all sorts of fancy things arise; most of which it never dealt with or never thought about.

You have to go even further back into English legal history to find the first mention of the number twelve, with respect to legal matters:

inquiry be made through the several counties and through the several hundreds by twelve more lawful men of the hundred and by four more lawful men of each vill, upon oath that they will tell the truth, whether in their hundred or in their vill there is any man cited or charged as himself being a robber or murderer or thief or any one who has been a receiver of robbers or murderers
or thieves since the lord king was king. 
- Section 1, The Assize of Clarendon 1166.

The Assize of Clarendon was an 1166 act of Henry II of England and this act with absolute certainty would have been written in either Latin or French. It wasn't until about Edward III that a King of England could even speak English and Henry IV when English was actually spoken by a king in an English court.
An assize is something akin to what we'd now call a circuit court, where travelling magistrates or even the monarch themselves would hear and try cases. In the 1166 act, twelve "of the more lawful men" of the locality were summoned by the king's sheriff to determine, upon their own knowledge, who was entitled to the property which was in dispute or to decide matters of guilt in crimes against the person.
What I don't know at this point is whether or not the 1166 act was proscriptive to finally standardise the courts in England, or descriptive and merely described in law what was already common practice.

Either way, the idea that people would bring their law "thing" (and I use the word as originally intended) to the courts and have that "thing" heard by the court.
A "thing" in the legal sense, is that travelling court or assembly where elders, barons, lawspeakers and people like the King and appointed knights and what have you, would meet to decide "things".
The word "thing" is still used in the names of modern assemblies. Iceland has the Althing, the "all-thing"; Denmark has the Folketing or the "folk-thing"; Norway has the Storing which is the "great-thing" and even the Isle of Man has their "thing in the meadow" which is the Tynwald.
Presumably, all of these places borrowed from each other and cross traded ideas; since England was invaded by Jutes, Saxons, Vikings and Normans, then by 1166, the idea of courts and juries was well established. I can only suggest that they share the number twelve as the number of "men of virtue true" because they shared Christian roots; twelve being the number of Christ's disciples.

What ever the actual story is, because the The Assize of Clarendon was passed in 1166, it falls into the realm of English law known as "time immemorial"; being everything before 6th July 1189, which is the date of Richard I's ascendancy to the throne and thanks to the 1275 Statute of Westminster.
811 years had passed since the The Assize of Clarendon until the current Jury Act but the current act and every act in those 811 years all called for a jury of twelve. It works.


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