Historical Origins of Plea Bargaining at Common Law

辩诉交易在日本的历史学界乃至刑法学者中并不为人所知。本项目旨在探究英国辩诉交易的历史渊源。j·s·考克伯恩教授在伊丽莎白一世和詹姆斯一世统治时期的《巡回巡回巡回法庭档案》中发现了许多与辩诉交易有关的事实，他得出结论，在16世纪和17世纪的英国存在辩诉交易。但是这种观点遭到了阿舒勒的批评，他坚持认为它起源于19世纪的美国。我回顾了这一争议并亲自检查了材料，并与Cockburn教授一起得出结论，在16世纪末和17世纪初的英国存在辩诉交易。我的理论的证据是许多修改过的起诉书暗示辩诉交易，传讯的数量突然增加，每个审判陪审团传讯的囚犯数量也突然增加，等等。我还提出，早期辩诉交易的原因至少有一个与现代美国相同，即法官和治安官员数量少，犯罪数量多。

Plea bargaining is not known among the historians and even the scholars of the criminal law in Japan. This project aims to search historical origins of plea bargaining in England.Professor J. S. Cockburn found in Assize Records of the Home Circuit for the reigns of Elizabeth I and James I many facts suggesting plea bargaining, and he concluded that there was plea bargaining in sixteenth and seventeenth centuries England. But this opinion was criticized by A. W. Alschuler, who had insisted its origins in nineteenth century America.I have reviewed this controversy and examined the material by myself, and concluded with Professor Cockburn that there was plea bargaining in late sixteenth and early seventeenth centuries England. The evidence of my theory is many altered indictments suggesting plea bargaining, suddenly increased number of arraignments, and also suddenly increased number of prisoners arraigned before each trial jury, and so on.I have also suggested that at least one reason of the early plea bargaining was the same with modern American one, that is, the large number of crimes out of proportion to the small number of judges and peace officers.