Pages 1261-1280 V
Bill Long 6/7/06
Finishing on Talesman
Make sure when you spell the word talesman that you are differentiating it in your mind from talisman, which is another wonderful word in English. I learned talisman first when I was doing graduate study in religion and magic in antiquity. We talked about amulets, charms, and other special objects as "talismen." I was surprised when I began to study law in 1996 to discover that talisman appeared to be a favorite word of Justice William Brennan on the US Supreme Court (actually, he used the word talismanic). It wouldn't be the last time that I noted similarities between the study of religion and law..
Returning to the Talesman
We ended the previous essay on the point that service on a medieval jury (say from about 1200-1500) was onerous not only because of the demands on the jurors' time but also because of the danger of allegations of attaint. Here is how Francis explains the jury system at that time.
"Jurors' attendance was secured by distraint of property. This sanction had, however, been weakened in 1299 by legislation aimed at curbing abuses of the writ of distraint by local sheriffs. A system of fines replaced loss of distrained property as the principal sanction against nonattending jurors. Jurors were frequently adjudged insufficient to distrain or were assessed at a nominal sum that they would willingly forfeit. Also, the sheriff was not above using his position for profit. Sales of juror exemptions were common, and influential locals upon whom the sheriff depended for reelection might be routinely overlooked. The traditional apathy of the Crown did little to help matters. Since the forfeited distraints went to the King, he had little interest in improving the effectiveness of process. The bar and bench were largely divorced from the mechanics of process. And while much of the attorney's time was spent in overseeing each step in the execution of process, his energies were primarily directed toward ensuring that the defendant, rather than the jurors, appeared in court. Only a statutory expedient in the sixteenth century saved the entire jury system from collapse. If enough qualified jurors were not returned, legislation provided that either the plaintiff or the defendant could request that jurors be empanelled from among bystanders present at the nisi prius trials" 83 Columbia Law Review (1983) at 65-66.
There are a number of points in this illuminating quotation which might call for comment, but my focus will be on the statutory "expedient" in the sixteenth century and its results. Faced with the realities described by Francis, Henry VIII had a statute passed specifically sanctioning the institution of these tales de circumstantibus (35 H VIII, ch. 6, sec. 6 (1543)).
The Problem with Talesmen
As is often the case in law, as with life in general, the solving of one problem leads to discovery of others. By selecting men standing around to fill out the deficiencies in juries, litigants could be assured of a more hasty trial. Yet, the problems posed by having a tales were immense. Already in the early 17th century the illustrious common law commentator Edward Coke could complain about the "insufficient jurors" who were now constituting these panels. After the Interregnum (1649-60) reformers took up the cause once again of jury make-up. The reason for reform was that the tales were, in general, people who might not be the most qualified to serve on juries. Like "wannabes" of all eras, they were mostly people who didn't have much to do and figured that life was more interesting (and potentially more profitable) if they hung around courthouses than anywhere else.
Other seventeenth century reformers noted that desires to evade jury service (who wouldn't try to do so?) meant that juries were increasingly composed of people who could neither read nor write and easily fell sway to the blandishments or arguments of counsel or their fellow jurors. As a result, the Hale Commission Report (1652) proposed that jurors had to have more substantial property holdings (though I don't know precisely how much) as well as be able to read and write. This didn't eliminate the institution of the tales, and the problem of uninformed, incompetent and partial juries continued well into the next century. Indeed, if you "froze" the common law legal system somewhere in the 18th century, one might conclude that the jury was the weakest link in the system. It took reformers such as Jeremy Bentham in the early 19th century and a series of judicature acts later in that century and the 20th century to bring a sense of widespread confidence in the workings of the common law legal system. Some might say that the jury system today is still deficient, but I don't think that argument, in general, will "fly."
How can I ever win a spelling bee, allegedly the reason I am studying the dictionary with such interest, if I spend all my time plumbing the depths of individual words? Oh, well, I take pleasure in going more slowly. My approach to words confirms my approach to learning as we age. We learn just as much, and much more actually, than younger people, but we just learn "deep." I wouldn't trade "deep" for anything right now.
Copyright © 2004-2007 William R. Long