Actually, that's the wrong question, since the law-enforcement lobby would make it very, very expensive to abolish the police through legal channels, and any violent attempt to bypass legal channels would probably end up having the opposite effect.

What I mean is this: if we pushed the Rothbardian button* and made all the cops go away tomorrow, how much would it cost to implement a private libertarian replacement, where person and property are protected, and victimless so-called crimes are nobody's business but the nonexistent victims?

Gil Guillory, et al. have crunched the numbers. He summarizes on LRC. Here's my summary of his summary (dollar amounts are per annum per household):

* Murray Rothbard, For a New Liberty, final chapter, "A Strategy for Liberty":

"The libertarian, then, should be a person who would push the button, if it existed, for the instantaneous abolition of all invasions of liberty."

** If the payouts were capped at your homeowner's insurance deductible, it would only be $25.

In the summer of 1940, with Hitler's troops moving through France to encircle Switzerland, Ludwig von Mises sat beside his wife Margit on a bus filled with Jews fleeing Europe. To avoid capture, the bus driver took back roads through the French countryside, stopping to ask locals if the Germans had been spotted ahead — reversing and finding alternative routes if they had been.

Mises was two months shy of his fifty-ninth birthday. He had left Vienna some years earlier, escaping only days before the Nazis ransacked his apartment, confiscated his records, and froze his assets. He had hoped to be safe in Geneva. Now nowhere in Europe seemed safe. Not only was he a prominent intellectual of Jewish descent; he was widely known to be an archenemy of National Socialism and of every other form of socialism. Some called him "The Last Knight of Liberalism."

Failing to catch him in Vienna, the Nazis tried to snatch him in Switzerland. Again they did not succeed. Mises did not assume his luck would last.

[keep reading]

Mr B forwarded me this:

I'm reminded of a recent unfortunate week at A.W.A.D guest-hosted by a sesquipedalian judge:

Monday

aposematic

Tuesday

pleochroic

Wednesday

pastiche

Thursday

haboob

Friday

resipiscent

Lew Rockwell points to some "Latin You Should Know" from Neatorama.com.

Among the Latin phrases, I found this common-law term I learned from reading Murray Rothbard on property theory:

Cuius est solum eius est usque ad coelum et ad inferos: "Whoever owns the land it is theirs up to the sky and down to the depths." The state of Kansas used this law in the 1970s to argue that airlines could not serve liquor when flying over Kansas, a dry state. "Kansas," Attorney General Vern Miller said, "goes all the way up and all the way down." (If that’s true, Kansas can lay claim to, and prohibit drinking in, about 82,282 square miles of western China.)

There's plenty wrong with the Kansas interpretation, but there's even more wrong with Neatorama's snide aside about western China.

Here's my summary of Rothbard on the ad coelum rule:

Property Units: Rothbard versus Common Law

Rothbard's main departure from common law tradition is his disagreement with the common-law principle "that every landowner owns all the airspace above him upward indefinitely unto the heavens and downward into the center of the earth. In Lord Coke's famous dictum: cujus est solum ejus est usque ad coelum; that is, he who owns the soil owns upward unto heaven, and, by analogy, downward to Hades."

But according to Rothbard, the ad coelum rule never made any sense in the context of homesteading: "If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn't."

So Rothbard rejected ad coelum, but we needn't side with Rothbard to reject both the Kansas interpretation (pro–ad coelum) and the Neatorama interpretation (anti–ad coelum).

What's wrong with the Kansas Attorney General's argument is that ad coelum is a common law property precedent, and the state of Kansas does not own the entire territory of Kansas, according to common law. Even if you recognize the state government as a legitimate property owner (which Rothbardians don't, of course), its property is limited to those areas not owned by the citizens and residents of Kansas. The irony of the state's mouthpiece citing common law as an excuse to extend the reach of its "dry law" is that alcohol prohibition is itself a violation of common-law property rights.

But Neatorama's parenthetical commentator is wrong at a much more rudimentary level, because ad coelum establishes a three-dimensional property boundary in the shape of a cone, not a cylinder. The point of the cone starts at the theoretical center of the planet; its supposedly infinite reach is only heavenward, not bidirectional.

Lord Coke's dictum extends ownership "upward unto heaven, and, by analogy, downward to Hades."

China isn't Hades.

[This article is excerpted from the first two chapters of The Enterprise of Law by Bruce Benson.]

Anyone who would even question the "fact" that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers.

	$15
"No one would voluntarily recognize a legal system that was not expected to treat him fairly."

This study will use economic theory to compare institutions and incentives that influence public and private performance in the provision of law and its enforcement. Some critics may contend that law is not an appropriate subject for "economic analysis," because it is not produced and allocated in exchange markets. To be certain, economics has a great deal to say about market institutions, but its relevance and scope are not so narrowly limited. Economic theory requires only that scarce resources be allocated among competing uses. Clearly, the enterprise of law — the use of police services, court time, and all other inputs in the process of making law and establishing order — requires scarce resources that must be allocated. Beyond that, economic theory explains human behavior by considering how individuals react to incentives and constraints.

Using economic theory, then, it can be convincingly demonstrated that private-sector (i.e., market or voluntary) institutions are capable of establishing strong incentives that lead to effective law making and law enforcement. The resulting legal constraints facilitate interaction and support social order by inducing cooperation and reducing violent confrontation. It can also be shown that public-sector institutions create incentives that can lead to substantial inefficiencies in the provision of these same functions. In fact, our modern reliance on government to make law and establish order is not the historical norm.

FULL ARTICLE

Here's a typical irony. Defenders of current anti-prostitution laws often make 2 claims: one is absurd on its face; the other is often more compelling to anyone who isn't a principled libertarian.

The first claim is that anti-prostitution laws are meant to help the prostitutes themselves — protect them from their terrible lives, protect them from their terrible pimps, protect them from their terrible customers, etc.

But anyone can think beyond two steps of cause and effect can tell you that it is the criminal status of their trade that makes these women so vulnerable to less-than-ethical pimps and johns. Recognize self-ownership and contract rights, and they are no more vulnerable than any other private service worker. (OK, maybe they'd still be more vulnerable than a telecommuter, but no more so than, say, a massage therapist or a chiropractor.)

The second claim — the one that many otherwise liberally inclined people are often sympathetic to — is that prostitution ruins neighborhoods. Here the prostitution prohibitionists are appealing to our images of streetwalkers. The irony is that streetwalkers may also be a creation of the prohibitionists.

From the most recent Weekend Edition at Mises.org:

IV. Saving Our Boys from Alcohol and Vice

One of organized womanhood's major contributions to the war effort was to collaborate in an attempt to save American soldiers from vice and Demon Rum. In addition to establishing rigorous dry zones around every military camp in the United States, the Selective Service Act of May 1917 also outlawed prostitution in wide zones around the military camps.

[…]

At that point, the new Secretary of War, the progressive former mayor of Cleveland Newton D. Baker, became disturbed at reports that areas near the army camps in Texas on the Mexican border, where troops were mobilized to combat the Mexican revolutionary Pancho Villa, were honeycombed with saloons and prostitution. Sent by Baker on a fact-finding tour in the summer of 1916, scoffed at by tough army officers as the "Reverend," Fosdick was horrified to find saloons and brothels seemingly everywhere in the vicinity of the military camps. He reported his consternation to Baker, and, at Fosdick's suggestion, Baker cracked down on the army commanders and their lax attitude toward alcohol and vice.

[…]

Employing the argument of health and military necessity, Fosdick set up a Social Hygiene Division of his commission, which promulgated the slogan "Fit to Fight." Using a mixture of force and threats to remove federal troops from the bases if recalcitrant cities did not comply, Fosdick managed to bludgeon his way into suppressing, if not prostitution in general, then at least every major red light district in the country. In doing so, Fosdick and Baker, employing local police and the federal Military Police, far exceeded their legal authority. The law authorized the president to shut down every red light district in a five-mile zone around each military camp or base. Of the 110 red light districts shut down by military force, however, only 35 were included in the prohibited zone. Suppression of the other 75 was an illegal extension of the law. Nevertheless, Fosdick was triumphant: "Through the efforts of this Commission [on Training Camp Activities] the red light district has practically ceased to be a feature of American city life."[35] The result of this permanent destruction of the red light district, of course, was to drive prostitution onto the streets, where consumers would be deprived of the protection of either an open market or of regulation.

Murray N. Rothbard, "World War I as Fulfillment: Power and the Intellectuals"

(emphasis added, of course)

Well, you might say, the federal government of the United States can't possibly be to blame for streetwalkers, since they could be found in London in the 19th century, and probably elsewhere throughout the history of cities.

My guess is that brothel-based prostitution is the norm wherever it is legal (and call girls, after the invention of the telephone), and that streetwalking is a black-market phenomenon … throughout the history of cities.

Virginia Warns New York Over Gun Buys

5/10/2007

"[Virginia] Attorney General Robert F. McDonnell is warning New York to stop, by the summer, sending private agents into Virginia to look for illegal gun sales, saying that the agents could face legal action. Because of a Virginia law that goes into effect in July, New York Mayor Michael R. Bloomberg (R) and his agents could be charged with a felony if they continue to target Virginia gun dealers with undercover sting operations, McDonnell said." (Washington Post, Thursday)

This could get interesting.

FEE Timely Classic

"Guns, Gun Laws, and Liberty" by Lawrence W. Reed

Ludwig von Mises at a conference on inflation and war, White Sulphur Springs, West Virginia, April 5-8, 1951:

I want to ask a question. What is a loophole? If the law does not punish a definite action or does not tax a definite thing, this is not a loophole. It is simply the law. Great Britain does not punish gambling. This is not a loophole; it is a British law. The income-tax exemptions in our income tax are not loopholes. The gentleman who complained about loopholes in our income tax — he did not refer to the exemptions — implicitly starts from the assumption that all income over fifteen or twenty thousand dollars ought to be confiscated and calls therefore a loophole the fact that his ideal is not yet attained. Let us be grateful for the fact that there are still such things as those the honorable gentleman calls loopholes. Thanks to these loopholes this country is still a free country and its workers are not yet reduced to the status and the distress of their Russian colleagues.

I do not want to assert that our laws are perfect and do not require any amendment. Let us discuss this problem in detail and let us examine every instance according to its merits. But do not confuse the issue involved by resorting to the meaningless slogan "elimination of loopholes."

Anything in bold italics is my emphasis:

Prices provide suppliers of goods and services with clear signals of what consumers want, and relative prices are an important source of information that markets use to represent the relative value of alternative uses of resources. Willingness to pay a high price to a supplier typically means that the producer is doing a very good job of providing for consumers. If that high price generates high profits, then the producer is able to employ more resources and produce more of the desired commodity. [Profits also draw competition, which will ultimately lower the prices of the most-desired commodities. -bk]

Non-price Measures of Performance. Because legislators do not enjoy a clear information source like prices when determining how to allocate publicly employed resources, they are forced to consider less reliable measures of performance. Typically, this means using some statistical representation of the "quality" of work being done by a bureau, since market prices do not place a direct value on the work. For instance, the function of police in the minds of most citizens is to "fight crime." But how can we tell if they are doing a good job in order to justify a particular budget? They must demonstrate their effectiveness like any other bureau. What statistic is readily available to demonstrate that police are fighting crime? The number of arrests is a natural measure, and other legal sector bureaucrats rely on similar statistics.

The important question is, what incentives does reliance on statistical measures of effectiveness provide? When the price that consumers are willing to pay measures effectiveness, producers have strong incentives to provide the quality of goods or services that consumers desire. If a private security firm is hired to protect a home or business, then that firm will have incentives to prevent crime through watching and wariness. Private individuals who join neighborhood watch groups do so largely to set up patrols that deter criminals and thus prevent crimes.

But public police must produce arrest statistics and have no strong incentives to watch or patrol. Public police have incentives to wait until a crime is committed in order to make an arrest. Prosecutors have similar incentives to bargain for convictions on lesser charges, perhaps with concurrent sentences, in order to generate conviction statistics. All such incentives arise because these bureaucracies are not market institutions. (pp. 131f)

One very anti-socialist (but useful) definition of socialism might be the organized externalization of all costs. By that definition, anarcho-capitalism would be the opposite: the internalization of all costs.

I'm guessing most readers of this blog already know what the Tragedy of the Commons is. It's hard to believe that anyone can know what that term refers to and still support any degree of socialism, but the strange truth is that the man who coined the term (as recently as 1968, believe it or not) was anything but libertarian: Garrett Hardin found privatizing "objectionable," considered talk of rights and freedom meaningless, declared ethics to be situational at best, and advocated "mutual coercion mutually agreed upon" (a new phrasing for an old appeal to democratic social-contract theory, since by "mutual" he really means "majority"). The solution to the tragedy of the commons, apparently, is far fewer individual rights and far greater social power. Specifically, he advocated a sort of environmentalist eugenics: "The only way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed, and that very soon."

(Is it unfair to accuse him of eugenics? Am I just misapplying a loaded word to a straightforward concern about overpopulation? "At the moment, to avoid hard decisions many of us are tempted to propagandize for conscience and responsible parenthood. The temptation must be resisted, because an appeal to independently acting consciences selects for the disappearance of all conscience in the long run…." In other words, any appeal to voluntary action means a natural deselection of the best individuals. Therefore some overarching authority needs to control who gets to breed and when. I didn't make any of this up!)

For a radically different take on the tragedy of the commons, applied in a radically different field of study, here is Bruce Benson on the government court system:

Economists often suggest that the solution for a commons problem is allocation by willingness to pay — that is, price allocation. This would reduce litigation by discouraging the frivolous, low-valued use of the justice system. But several justice groups would vehemently resist such a change. For example, "lawyers are reluctant to accept any rules that discourage litigation, since litigation is their bread and butter. While the tragedy of the common may have a disastrous effect on litigants, it is a bonanza for tens of thousands of lawyers who graduate from law school each year."[62] Actually, not all litigants view the consequences of the allocation system as disastrous. There are special interest groups who benefit substantially because they can use the judicial system with its current rationing mechanism. Neely cited some of the "endless" number of examples of such "frivolous disputes" or "non-disputes."[63] For instance, in most landlord and tenant disputes the only issue is back rent, and the court will ultimately decide that the landlord is right and the tenant wrong.[64] The tenant can refuse to pay and threaten to go to court, however, forcing the landlord to bear court costs, which may be greater than the benefit of gaining the back rent. So the landlord simply gives up. If the loser of such cases had to pay the court costs of the winners, fewer cases would be threatened or brought.

In the insurance industry, if a company wants to reduce its settlement when a house and its contents have been destroyed by fire, then the company can demand proof of the fair market value of the house's contents, forcing litigation for full recovery.[65] In order to avoid the court costs, the policyholder may be forced to settle for less than he is legally owed. One of the most significant court costs arises directly from the commons problem, as rationing by waiting leads to court delay. Sufficient delay substantially reduces the value of the ultimate award and benefits some groups.

The longer a loser can delay a decision in a civil case, the longer he can use the money he will have to pay. Given that judgments do not include the full cost of litigation, many litigants who expect to lose have incentives to litigate. This can be a substantial benefit for insurance companies, but it can also be significant for other political interests. For example, slightly over one-fifth of the civil cases concluded in New York City in the 1979–1980 fiscal year were brought against the city government.[66] Neely reported: "New York City cannot afford an efficient court system because it would be bankrupt beyond bail-out if all the suits go to trial in one or two years."[67] When faced with several years in delay, a plaintiff may also have strong incentives to settle out of court for much less than he might otherwise receive. This benefits insurance companies, New York City, and many others who face large liabilities. Delay may also benefit guilty criminals, because prosecutors have incentives to settle and reach an agreeable plea bargain. The longer the court delays, the strong is a criminal's bargaining position.

Political pressure to maintain the common pool character of the courts and, more generally, the entire justice system comes from many sources, ranging from business interests to governments to those involved in the legal process to those outside the law. In fact, there are many "special interests that actively seek mediocre, if not downright incompetent, court performance."[68] Any change in the current system makes the transfer of wealth from some group to another more (or perhaps less) efficient, and someone's interests suffer. The public sector justice system will continue to be inefficient because it will continue to be part of the political battleground over the allocation of property rights and wealth. (pp. 118f)

---

[62] Richard Neely, Why Courts Don't Work, p. 61

[63] Ibid., pp. 168–170.

[64] Ibid., p. 169.

[65] Ibid., p. 108.

[66] Ibid., p. 16.

[67] Ibid., p. 17.

[68] Ibid., p. 241.

A friend of mine who is well aware of (and even often sympathetic to) my "politics" and penchant for attacking sacred cows (though not sacred chaos) was nevertheless caught off guard by some recent rancor I expressed toward MADD — Mothers Against Drunk Driving.

While I was able to sketch what I knew of the history of MADD and the legislation they've pursued, I still wish I'd had this much more thorough article to point to:

Fighting MADD

Where an idealist will go home after winning a war, a mercenary will prolong and seek out conflict, so long as he continues to get paid. But the money would only continue to roll in if the public perceived there was still a need for war, and a huge part of MADD's budget is dedicated to keeping that perception in place.

MADD's core statement, the one that gets the most attention, the one that is most repeated by the media, is this: Drunk drivers kill 16,000 Americans a year. It's an impressive statement. It gives the impression that crazed drunks are swarming the roads, seeking out innocent victims to plow into, laughing maniacally all the while. With so many homicidal maniacs loose, an organization like MADD seems entirely necessary and even noble.

The only problem is that statement is a flat-out lie. And they know it's a lie.

(via Ender)

I do take issue with the article … for being too easy on the founder:

Disturbed by the shift from attacking drunk driving to attacking drinking in general, the founder of MADD later joined the liquor lobby, declaring, "I worry that the movement I helped create has lost direction. (The .08 legislation) ignores the real core of the problem. If we really want to save lives, let's go after the most dangerous drivers on the road."

The description of how MADD ousted its founder and transformed its mission is reminiscent of Cato and Rothbard, but the MADD founder can't pretend that her own mission to raise the minimum drinking age from 18 to 21 is consistent with a distinction between drunk driving and drinking itself.

As the author says about blood-alcohol laws,

It's the only legal circumstance I can think of where someone is arrested and imprisoned for presenting the mere possibility of committing a crime. It's akin to the police randomly stopping and testing lower-income people for hunger. If they are hungry, they're arrested for shoplifting, because there's a possibility a poor hungry person will steal a loaf of bread from a nearby supermarket.

Damn straight. But then why let the founder off the hook for chronological profiling? Statistics about age and accident are no more relevant to criminal law than statistics about race and robbery. Either an individual has harmed someone or he hasn't. The odds of his cohort doing something similar should have no bearing on the determination of his own guilt or innocence.

For a much more plumbline treatment of this question, please see Lew Rockwell's great classic,

I'll close with this critical point from "Fighting MADD":

How are they getting away with this sinister nonsense? They're powerful. They're a sacred cow with an aura of untouchability. What politician is going to call what the public perceives to be a well-meaning group of tragedy-stricken widows a gang of frauds and liars? That's why the president of MADD is always selected from members who've had a loved one killed by a drunk driver. The perception of MADD as an organization of victims must be maintained.

OK, last Bensonian post for the weekend.

I don't think Bruce Benson is an Austrian, but he published extensively in the Journal of Libertarian Studies when it was being run by Murray Rothbard, so he's likely to be familiar with the basic Misesian framework.

In particular, Benson sounds like he's well aware of Mises's Law of Intervention — that early coercive interventions into voluntary exchange create unanticipated consequences, consequences unwanted by the interventionists themselves, who then have to create ever more interventions in a frantic effort to stave off failure, creating new unanticipated and undesired consequences, etc. Round and 'round she goes.

After discussing the peculiar creation of "rules of evidence" — rules to keep a jury ignorant of certain types of prejudicial evidence — Benson quotes John H. Langbein, describing this judicial innovation as "one whose origins have yet to be explained.[97]"

Benson replies:

The explanation lies in forces set in motion hundreds of years earlier and is reflected in the transformation from a system of privately enforced customary tort law to publicly produced criminal law. Each change initiated by government created problems that required additional change. When law is deliberately designed, whether well-intended or not, there will always be manifestations that the designers did not anticipate. When some of those manifestations prove to be undesirable, new rules are designed, which will also have unanticipated consequences. (p. 66)

[97] John H. Langbein, "Shaping the Eighteenth-Century Criinal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (Winter 1983): 76.

Why was crime increasing? Well, the evergreen answer is that it is in the king's interest to criminalize whatever will increase court revenues. But there's a particular historical answer for the era in question:

International military involvement served as a major impetus for the development of public prosecution and police during the eighteenth and nineteenth centuries (as well as prisons and other public institutions of criminal justice.) The economy — and particularly the London economy, because it was strongly influenced by government demand for war materials (or lack of demand, as employment often declined immediately after a war)[84] — could not quickly absorb the large influx of veterans following a war. Furthermore, according to many observers, the soldiers were "unaccustomed to ordinary labor and were unwilling to take it up again when they came home."[85] Instead

the conclusions of wars in the eighteenth century brought "a great harvest of crime," as was said in 1819. … The peace brought back to England large numbers of disreputable men who had spent several years being further brutalized by service in the armed forces, without any provision being made for the reentry into the work force. The same complaint was voiced after every war.[86]

The failure of the existing crime control apparatus was in part a function of the kinds of crime the returning veterans generally committed. They had had considerable on-the-job training in organized violence. [...] Large-scale gang crime was a new phenomenon, and it was this type of crime that proved to be the most difficult for the criminal justice system to handle. (p. 64)

[84] J.M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), p. 228.

[85] Ibid., p. 229.

[86] Ibid., p. 226.

More on the evolution of the jury:

By the mid-sixteenth century, familiarity with the crime was no longer required to be a jury member. Langbein suggested that "this transformation of the active medieval juries into passive courtroom triers is among the greatest mysteries of English legal history, still no better understood than [a century ago]."[99] But it is really no great mystery when we realize that the recognition of duty to perform law enforcement functions was originally built on restitution and reciprocity. Widespread criminalization under the Norman kings ultimately undermined even the king's jury system. (pp. 66f)

In other words, the active medieval jury referred to on page 58 came out of the culture of tort (wrong against a person) rather than crime (wrong against "society," the king, the state). In the more individualist tort context, it didn't make sense to bring in strangers. In the more "societal" crime context, it did.

Furthermore,

In 1730 London, it was common to empanel two twelve-man juries to try all the roughly 150 felony cases in a session of Old Bailey (royal assizes typically empaneled a single jury that heard all cases). The juries' sittings were staggered so that one could hear evidence on a series of cases while the other was out deliberating on other cases. Many cases lasted only a few minutes, with evidence presented, and little dispute. Most jurors were experienced, having served before, so judicial instruction of the jury was perfunctory. (p. 67)

In other words, transaction costs! The nature of juries changed as a result of increasing transaction costs, changed in such a way as would lower those costs. As "crime" was rising (see next post), and criminal courts were ever busier, it was faster and cheaper to reuse the same jury on multiple cases, basically eliminating the possibility that jury members would already be familiar with the facts of any particular case.

Finally:

Another factor leading to plea bargaining was the insistence on trial by jury rather than by judge. Recall that juries initially were resisted as they were used to expand the power of the kings, but distrust of judges also was substantial. In the context of the criminal law as it developed to assist the kings, mistrust for one of the king's institutions, juries, was clearly not as great as mistrust for another, royal judges. Juries became widely viewed as the only potential safeguard against the further manipulation of law enforcement for the political and financial benefit of the kings. (p. 70)

[99] Langbein, "The Origins of Public Prosecution at Common Law," p. 314. See also Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), p. 105.

Those of you who, like me, come from the Tucker/Spooner tradition of libertarian thought, might find this history of trial juries quite sobering:

Jury Trials

Most civil cases were jury trials by the reign of Edward I. These juries, which consisted of men of the community who presumably had witnessed or had knowledge of the facts, were empaneled by the sheriff to hear the pleading and render a verdict. Trial by ordeal effectively ended for criminal cases in 1215, and "neither the law nor the lawyer knew what to do about the indicted men overflowing the inadequate jails."[65] Writs had developed for obtaining jury trials in a few criminal cases, but not for most criminal trials. For instance, an accused could obtain a write to have a jury determine whether the accuser had made changes because of malice or to determine whether an inquisitional jury had acted maliciously. These juries were called petty juries to distinguish them from the grand or inquisitional juries. This set the stage for criminal jury trials.

The prevailing opinion of the day was that trial by jury meant a guilty verdict, so there was considerable resistance to acceptance of a jury trial. The justices began to search for ways to force defendants to accept a jury trial. Some defendants were locked in a prison for a year and a day with little food and water, but still many refused the trial. In 1275, the first statue of Westminster declared that those accused of a felony who refused to accept a jury inquest would be "put in strong and hard imprisonment." Accused felons were loaded with heavy chains and stones, placed in the worst part of the prison, given a little water one day and a little bread the next, until they agreed to trial by jury or died. Many chose to die. If found guilty in a trial, the accused would be executed and forfeit all property to the crown. Death under "hard and severe pressure" meant that he was not convicted and his property went to his family.

The composition of the petty jury gradually began to change toward the end of the thirteenth century. Rather than the same men setting as an inquisitional and petty jury, the grand jury was augmented by men randomly chosen from neighboring communities. Occasionally, such juries would even reach not-guilty verdicts. The witness-bearing character still dominated, however, and throughout the thirteenth century petty juries were groups sworn to tell what they knew about a case. The presentment jury and petty jury would not be completely separated until the mid-fourteenth century, and it would be another five hundred years before juries could be characterized as impartial.[66]

---

[65] Lyon, A Constitutional and Legal History of Ancient England, p. 450.

[66] Ibid., p. 452.

Bruce Benson, The Enterprise of Law, pp. 58f.