Though David Lammy is confident God is on his side over curbing jury trials, and Sarah Sackman thinks it’s such a good idea we should do it whatever the state of the courts, their attempts at “modernisation” are already coming apart. They shouldn’t be surprised; the opponents of jury trial in this country always come a cropper.
For some, legal rights are airy substances to be extended or restricted as necessity dictates. But legal right, at least in England, is the written record of the inheritance of the people. Thus Burke, in the Reflections:
You will observe, that from the Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right.
Now, I understand that Mr Lammy and Ms Sackman quite rightly do not hold with people inheriting anything, unless they are the children of, e.g., Charlie Falconer or Ralph Miliband, but the English are curiously stubborn on the matter, and have resisted to the point of blood many times when their liberties are robbed from them. The English present Mr Lammy and Ms Sackman with an unpleasant obstacle to their designs. Perhaps a brief historical tour will give our gentle governors some context to our concerns.
The direct forerunner of our juries is truly venerable. In legal terms, it is at least as old as the reign of Athelred the Unready, whose Wantage Code created a self-informing jury of twelve thegns in each district to investigate crimes. This must surely have fallen into partial abeyance under the Normans, but it is they who preserved the text in both Old English and a Latin translation, and Henry II renewed the practice via his Grand Assizes. It is this jury in the background of Magna Carta’s jury clause, and which has a direct historical continuity to our own. It is over a thousand years old by that mark.
Magna Carta — and its spinoff the Forest Charter — were the end result of a kickback against a government only slightly less unpopular than Sir Keir’s. John time and again trampled on ancient rights, until even Normans and Angevins chose to side with England. We may question their motives, but need not question the history — it is fairly simple stuff — and the legal protections of Magna Carta are worth some reclamation even now, offering protection to every class of person, even the villein. Yet jury trial interests us, so let us remind ourselves of the relevant clause:
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.
Perhaps Mr Lammy seeks to reintroduce villeinage — in which case he must at least guarantee me my implements of work, per the Charter — but if not, it is this judgement by equals, by peers, that was so important that the Barons guaranteed it not only to themselves but to every freeman. No freeholder, no burgess, nor no merchant could simply be robbed or kidnapped by the state. The Grand Assize and the free jury were guaranteed to the heirs of the free men of England in perpetuity.
Recall that Henry III was brought to renew this charter many times; recall that the House of Commons itself, that now sorely-degraded body, was first called by de Montfort because the untitled man had as much right as the titled to have his view represented, and to defend his right in Parliament.
Jury trial did not go away, but it was obscured for two centuries by the growing power of bodies, of which the greatest and most infamous was the Star Chamber. The Star Chamber interests us because it was, precisely, the rule by, uh, “experts” that Ms Sackman defended in her speech to the Commons. Privy counsellors (such as Mr Lammy is now), special appointees, and the prince himself gave judgement without jury and without appeal. Now, the Tudors and Stuarts had the wisdom to reserve this sort of attention for the most serious crimes, for threats against national security and the like, which at least plausibly might require rapid and efficient judgement. Mr Lammy and Ms Sackman take the opposite tack, and want expert triage applied to the poster of memes instead. In fairness, in many ways funny pictures suggesting Mr Lammy is a moron prone to leaving the prison door open for rapists are at least as distressing as the Gunpowder Plot, if not quite so explosive.
Now, the Long Parliament eventually took issue with the Star Chamber, abolishing it in 1641 at the same time as it guaranteed and widened the right of habeas corpus. They targeted it because of its treatment of John Lilburne, who in many ways was not an admirable man, but who was an Englishman and a brave one. Let us consider what the Caroline Star Chamber did to him, as an object lesson in English history where jury trial is set aside.
Lilburne was asked to enter a plea — but not to any charge. He refused. He further refused to take the Chamber’s ex officio oath, which implied a requirement to self-incriminate, which he knew he was not bound to do. As a result for this contempt, he was fined a bankrupting sum, whipped, pilloried, and kept in prison. Alas for Mr Lammy, we do not have the whip back yet, but perhaps if an English freeman were to refuse to cooperate with a juryless court, we could pillory him on television and Twitter, before bankrupting him by compounding “court fees” and keeping him on a permanent remand. Eventually, by way of punishment for printing unlicensed literature, he was again flogged, this time whilst being dragged behind an ox cart back to the pillory. After a further period of imprisonment, he was released. This all was, the would-be censors of Twitter will be glad to hear, for a crime mandating three or fewer years of imprisonment, and so offers a model procedure for our latter-day Rt Hons.
You may be aware that the Long Parliament did not stop with the Habeas Corpus Act, and the military tumour they had bred ended up executing the King. That was criminal, no doubt, but can be directly traced back, in part, to the sheer monstrosities of the Star Chamber’s abuses. The damage wrought by the theft of the English inheritance corrupted the whole body until a King’s blood was spilt.
The Stuarts did not for some time heed the lesson here. The 1688 Bill of Rights makes thirteen charges against James II’s government; of these, seven had to do with the erection of special courts, the bypassing of the proper places of trial, and other corruptions of the judicial system. Some were directly related to the resurrection of star chambers: pre-trial penalties and cruel and unusual punishments, for instance, were the fruit of James’s special courts. Additionally, the corruption of the jury system was raised by name, with non-freeholders set to judge freeholders. The list of remedies legislated answered all of these. Though the question of a Catholic succession may have spurred the Glorious Revolution on, the material complaints of the English people then were chiefly over the judicial power being removed into the hands of the executive and their agents, and the cruelties that rapidly followed. James II could not bring himself to crush such cruelties, and so lost his Seal in the Thames.
Now, the system has — barring its evolution from a dual grand and trial jury into a pure trial jury through the latter medieval period — remained intact since without serious molestation. If arraigned by the state, the presumptively not guilty subject has the protection of his peers against being kangarooed. His fellow subjects will want him punished if it seems that he has committed the crime; they will release him if it does not. No-one has seriously thought, during the period of Britain’s greatest prosperity and success, to steal the entailed inheritance of the monarch’s subjects. Only a desperate government, financially and morally bankrupt, could have thought to do so, and since 1688 we have not groaned under any gang so tyrannous, intellectually decrepit, or hopeless.
Ms Sackman now says that criminals must not be allowed to game the courts by having a jury empanelled — but we use the courts with juries to determine who the criminals are, which Ms Sackman seems to resent. Perhaps God has told Mr Lammy it is time for a new Star Chamber to do justice swiftly, without the ugly obstacle of stupid common Englishmen, but I suspect James II might have offered the same justification.
The concrete record of history is that these ambitions end at Runnymede, Lewes, and Naseby; they are exposed behind the ox cart, they are beaten at Reading and at Concord, and the power and dignity of the abusers sinks into the mud of the Thames with the Great Seal. I do not know if Mr Lammy or Ms Sackman are students of history, but what history says is: beware.
