Bushell's Case and the Juror's Soul
(2012) 33(3) Journal of Legal History 251-290
73 Pages Posted: 22 Jun 2013 Last revised: 3 Jul 2015
Date Written: December 7, 2012
In November 1670, Chief Justice John Vaughan established, in Bushell’s Case, that jurors could no longer be judicially fined for reaching a conclusion with which the trial judge disagreed. This case has traditionally been taken as a foundational moment in the history of jury power; but in the last few decades its significance has been downplayed by legal historians, who have pointed to the continued existence of judicial control of juries. This article, drawing on recent work on conscience as a juridical concept in early-modern England, seeks to rehabilitate Bushell’s Case, and does so by situating it within its wider discursive setting. Bushell’s Case, taken together with the concurrent pamphlet literature, offers a positive model of jury trial which downplays the jury’s relationship either with the judge’s or with the sovereign’s laws in favour of a focus on the juryman’s soul. Whatever the practical limitations of the idea, this reconceptualisation of jury trial is an important moment in the history of jury power, and one which warrants study on its own terms.
Keywords: juries, legal history, verdicts according to conscience
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