History of Double Jeopardy

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

During the constitutional convention James Madison sought to enlarge the definition by making the right against double jeopardy applicable to all crimes not just capital felonies. Yet Madison's original draft of the Double Jeopardy Clause was perceived by some as too restrictive. It provided that "No person shall be subject ... to more than one punishment or one trial for the same offense.”  Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the language of the Fifth Amendment was modified to address this concern, the final version ratified by the states left other questions for judicial interpretation.

“The controversy between Henry II and Archbishop Thomas à Becket – and Henry’s concession in 1176 probably was primarily responsible for bringing about the adoption of the concept of double jeopardy in the common law.”

In 1487 King Henry VII passed an act3 allowing, where there had been a charge of murder, both a crown prosecution (prosecution by indictment) as well as what was then often utilized, an appeal by a private party (private prosecution) for either a jury trial or the simpler and more decisive trial by combat4. This act did not authorize repeated prosecutions by the Crown nor by private parties but only a second prosecution by the other party if the first prosecution had resulted in an acquittal.  It was only repealed in 1819, after a successful application of it the previous year when the courts allowed an appeal, albeit trial by combat, in the case of Ashford v. Thornton (1818), after an acquittal of the said Thornton for murder.

Double jeopardy did come fully into force in the twentieth century.