Double Jeopardy (V): Early History, Background, Framing

Origins of the Guarantee

The Double Jeopardy Clause of the Fifth Amendment protects a person from being placed twice in jeopardy for the ‘‘same offense.’’ While the exact origins of this guarantee against double jeopardy are not known, there can be no doubt that it possesses a long history. Ancient Jewish law contained references to principles encompassed by double jeopardy law; early Greek and early Roman law provided some form of protection against double jeopardy; and a prohibition against double jeopardy, emanating from a reading given to a verse in the Old Testament by Saint Jerome in 391, entered canon law as early as 847.

English Common Law

By the second half of the eighteenth century, the protection against double jeopardy was firmly established in English common law through the pleas of autrefoits acquit (a former acquittal), autrefoits convict (a former conviction), and pardon. Indeed, in his Commentaries, published between 1765 and 1769, William Blackstone, perhaps the most influential writer on the common law, stated that the principle that ‘‘no man is to be brought into jeopardy of his life, more than once for the same offense,’’ upon which the pleas are based, constitutes a ‘‘universal maxim of the common law.’’

Various theories have been offered to explain the introduction of the double jeopardy principle into the common law. One theory postulates that it came from the Continent through canon law or through Roman law. Another theory suggests that the twelfth-century power struggle between Thomas a` Becket, Archbishop of Canterbury, and King Henry II, which ended in Henry’s retreating from his claim that the royal courts could punish clerics after they were convicted of a crime and stripped of their clerical status in an ecclesiastical court, led to the introduction of the principle. Still another theory claims that the protection against double jeopardy merely evolved over hundreds of years from Anglo–Saxon criminal procedure.

The scope of the common law’s protection against double jeopardy in the hundred years following the Norman Conquest in 1066 cannot be ascertained. The available evidence suggests that the earliest rulers paid little heed to questions of double jeopardy. For example, the Charter of Liberties issued by Henry I in 1101 did not contain a protection against double jeopardy, and in 1163, Henry II claimed he could try a cleric for murdering a knight despite the cleric’s acquittal of that offense in an ecclesiastical court.

Some cases decided at the beginning of the thirteenth century apparently recognized some protection against double jeopardy, but Magna Carta, which was originally issued by King John in 1215, contained no protection against double jeopardy. It is clear, however, that by the middle of the century the principle against double jeopardy had entered the common law. Nevertheless, its subsequent development and emergence into modern double jeopardy law was slow, perhaps because the power to prosecute for offenses had not yet coalesced in the state. At least since the Norman Conquest, criminal prosecutions could be brought not only by the king, but also by a private person in an action against another individual demanding punishment for the particular wrong the person suffered rather than for the offense against the public. By its very nature, the protection against double jeopardy constitutes a limitation upon the power of the state to prosecute and punish an individual, so the state’s gathering of the power to prosecute individuals is a prerequisite to a true double jeopardy situation.

Modern double jeopardy law began to emerge in England in the last half of the seventeenth century. By that time prosecutions by the king had begun replacing private prosecutions as the preferred method of prosecution. In addition, Edward Coke’s Institutes had been published posthumously in 1641 and 1644. Coke detailed the pleas of autrefoits acquit, autrefoits convict, and pardon and described the basis for double jeopardy, clarifying the concept and emphasizing its importance. Moreover, during the late 1600s, English courts began dealing with a variety of double jeopardy issues, expanding the protection against double jeopardy considerably. Among other things, the Court of King’s Bench held that a prosecutor could not seek a new trial following an acquittal (The King v. Read ) and that an acquittal in another country barred a subsequent prosecution for the same offense in England (Rex v. Hutchinson). It also prohibited the practice frequently engaged in by trial judges of discharging the jury when an acquittal appeared imminent in order to afford the prosecutor the opportunity to bring a stronger case in a new trial (The King v. Perkins).

Double Jeopardy Protection in America before the Adoption of the Fifth Amendment

While double jeopardy law continued developing in England during the seventeenth century, it began to take root in the North American colonies. The first colonial enactment containing an express guarantee against double jeopardy appeared in 1641 when the Massachusetts Bay Colony enacted a detailed charter of liberties that served as the model for other colonies and constituted a forerunner of the federal Bill of Rights. The Massachusetts Body of Liberties of 1641 guaranteed that ‘‘[n]o man shall be twise sentenced by Civill Justice for one and the same Crime, offense, or Trespasse.’’

Shortly thereafter, Connecticut, in its Code of 1652, adopted a provision against double jeopardy that it took from the Body of Liberties. In addition, the Fundamental Constitutions of Carolina, a document drafted by John Locke but never adopted, included a clause stating that ‘‘[n]o cause shall be twice tried in any one court, upon any reason or pretence whatsoever.’’

After the Revolutionary War, the former colonies formed the United States of America under the Articles of Confederation. The articles, however, contained neither a Bill of Rights nor an express protection against double jeopardy. Most state constitutions at that time also did not contain an express guarantee against double jeopardy. The first state constitution to incorporate a protection against double jeopardy was the New Hampshire Constitution of 1784. It provided that ‘‘[n]o subject shall be liable to be tried, after an acquittal, for the same crime or offense.’’ In 1790, Pennsylvania ratified a new constitution containing a clause providing that ‘‘[n]o person shall, for the same offense, be twice put in jeopardy of life or limb.’’

Courts in several of the colonies and, after independence, the states recognized a prohibition against double jeopardy through decisional law. For example, courts in Virginia and New York acknowledged the English common law pleas of a former conviction and a former acquittal. Courts in Connecticut (Hannaball v. Spalding, 1 Root 86, Conn. Super. Ct., 1783; Coit v. Geer, 1 Kirby 269, Conn. Super. Ct., 1787) and Pennsylvania (Respublica v. Shaffer, 1 Dall. 236, Pa. Ct. Oyer and Terminer, 1788) also recognized a protection against double jeopardy.

The Adoption of the Fifth Amendment Guarantee against Double Jeopardy

As originally adopted, the U.S. Constitution did not contain a bill of rights. Its failure to do so caused great concern among the country’s populace and many of its leaders, including Thomas Jefferson. When the First Congress convened in 1789, Representative James Madison sought to rectify this omission by introducing a series of proposed amendments, including all those that ultimately became the Bill of Rights. One of Madison’s proposed amendments provided that ‘‘[n]o person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offense.’’ A select committee of the House of Representatives redrafted the proposal to read: ‘‘No person shall be subject, [except] in case of impeachment, to more than one trial or one punishment for the same offense.’’

During the debates on this proposal in the House, several representatives opposed the provision because they believed its language prohibiting more than one trial for the same offense contradicted established law and would, for instance, prevent a convicted individual from obtaining a new trial if prejudicial error infected the individual’s initial trial. One representative, arguing that the objective of a guarantee against double jeopardy is to preclude multiple punishments for a single offense, sought to amend the proposal by striking the words ‘‘one trial or,’’ but his proposed amendment was soundly defeated. An attempt to amend the proposal by inserting the words ‘‘by any law of the United States’’ after the words ‘‘same offense’’ also failed. The House subsequently adopted the proposed amendment concerning double jeopardy as submitted by the select committee and sent it and other proposed amendments to the Senate for its concurrence.

The Senate rewrote the proposed amendment on double jeopardy by substituting the phrase ‘‘be twice put in jeopardy of life or limb by any public prosecution’’ for the words ‘‘except in case of impeachment, to more than one trial or punishment.’’ It later deleted the words ‘‘by any public prosecution’’ and, after joining the provision with several others, approved it in its current form. The House agreed to the Senate’s version, and Congress submitted it to the states (along with other proposed amendments) for ratification. The states ratified the double jeopardy provision (as well as nearly all the other proposed amendments) in 1791, making it part of the Fifth Amendment.

DAVID S. RUDSTEIN

References and Further Reading

• Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. New York: Oxford University Press, 1997, 297–314.
• Friedland, Martin L. Double Jeopardy. Oxford, England: Clarendon Press, 1969, 1–16.
• Hunter, Jill. ‘‘The Development of the Rule Against Double Jeopardy.’’ Journal of Legal History 5(1) (1984):3–19.
• Rudstein, David S. Double Jeopardy: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger, 2004, 1–15.
• Sigler, Jay A. Double Jeopardy: The Development of a Legal and Social Policy. Ithaca, NY: Cornell University Press, 1969, 1–37.

Cases and Statutes Cited

• Coit v. Geer, 1 Kirby 269 (Conn. Super. Ct. 1787)
• Hannaball v. Spalding, 1 Root 86 (Conn. Super. Ct. 1783)
• The King v. Perkins, Holt. K.B. 403, 90 Eng. Rep. 1122 (1698)
• The King v. Read, 1 Lev. 9, 83 Eng. Rep. 271 (1660)
• Respublica v. Shaffer, 1 Dall. 236 (Pa. Ct. Oyer and Terminer 1788)
• Rex v. Hutchinson, 3 Keble 785, 84 Eng. Rep. 1011 (1677)
• (discussed in Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K.B. 1688))

See also Bill of Rights: Structure; Bills of Rights in Early State Constitutions; Colonial Charters and Codes; Constitutional Convention of 1787; Double Jeopardy: Modern History; Madison, James; Magna Carta; Massachusetts Body of Liberties of 1641; New Hampshire Constitution of 1784; Ratification Debate, Civil Liberties in; State Constitutions and Civil Liberties