Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/819

 JURY 785 matters within the hundred, including, says Stubbs, &quot;all the pleas of the crown, the trial of malefactors and their receivers, as well as a vast amount of civil business.&quot; This is the historical grand jury. The petty jury, as it is called, which is the real jury of trial, appears to have arisen as an alternative to the trial by ordeal. A person accused by the inquest of the hundred was allowed to have the truth of the charge tried by another and different jury. 1 &quot; There is,&quot; says Forsyth, &quot; no possibility of assigning a date to this alteration.&quot; &quot;In the time of Bracton (middle of the 13th century) the usual mode of determining innocence or guilt was by combat or appeal. But in most cases the appellant had the option of either fighting with his adversary or putting himself on his county for trial &quot; the exceptions being murder by secret poisoning, and certain circumstances presumed by the law to be conclusive of guilt. Some doubt has been expressed whether the twelve jurors who tried the crime were not identical with the accusing jurors, but the separation between the two juries was at any rate complete in the reign of Edward III. (Forsyth, p. 206). 2 So far we have arrived at the establishment of the jury system in its modern form, alike in civil and in criminal proceedings ; and, whatever differences may be traceable in the history of the civil and criminal jury respectively, their subsequent development is one. And there is one great feature by which the jury at the stage we have now reached is distinguished from the jury of modern times. The jury still certify to the truth from their knowledge of the facts, however acquired. In other words, they still retain the character of witnesses. The complete withdrawal of that character from the jury is connected by Forsyth with the ancient rules of law as to proof of written instruments, and a peculiar mode of trial per sectam. When a deed is attested by witnesses, you have a difference between the testimony of the witness, who deposes to the execution of the deed, and the verdict of the jury as to the fact of execution. It has been contended with much plausibility that in such cases the attesting witnesses formed part of the jury. Forsyth doubts that conclusion, although he admits that, as the jurors themselves were originally mere witnesses, there was no distinction in principle between them and the attesting witnesses, and that the attesting witnesses might be associated with the jury in the discharge of the function of giving a verdict. However that may be, in the reign of Edward III., although the witnesses are spoken of &quot;as joined to the assize,&quot; they are distinguished from the jurors. The trial per sectam was used as an alternative to the assize or jury, and resembled in principle the system of compurgation. The claimant proved his case by vouching a certain number of witnesses (secta), who had seen the transaction in question, and the defendant rebutted the presumption thus created by vouching a larger number of witnesses on his own side. In cases in which this was allowed, the jury did not interpose at all, but in course of time the practice arose of the witnesses of the secta telling 1 The distinction between the functions of the grand jury, which pre sents or accuses criminals, and the petty jury, which tries them, has suggested the theory that the system of compurgation is the origin of the jury system the first jury representing the compurgators of the accuser, the second the compurgators of the accused. 2 The number of the jury (twelve) is responsible for some un founded theories of the origin of the system. This use of twelve is not confined to England, nor in England or elsewhere to judicial insti tutions. &quot; Its general prevalence,&quot; says Hallam (Middle Ages, chap, viii.), &quot;shows that in searching for the origin of trial by jury we cannot rely for a moment upon any analogy which the mere number affords.&quot; In a Guide to English Juries, by a Person of Quality, 1682 (attributed to Lord Somers), the following passage occurs : &quot;In analogy of late the jury is reduced to the number of twelve, like as the prophets were twelve to foretell the truth ; the apostles twelve to preach the truth; the discoverers twelve, sent into Canaan to seek and report the truth; and the stones twelve that the heavenly Hierusalem is built on.&quot; Lord Coke indulged in similar speculations. their story to the jury. In these two instances we have the jury as judges of the facts sharply contrasted with the witnesses who testify to the facts ; and, with the increasing use of juries and the development of rules of evidence, this was gradually established as the true principle of the system. In the reign of Henry IV. we find the judges declaring that the jury after they have been sworn should not see or take with them any other evidence than that which has been offered in open court. But the personal knowledge of the jurors was not as yet regarded as outside the evidence on which they might found a verdict, and the stress laid upon the selection of jurymen from the neigh bourhood of the cause of the action shows that this element was counted on, and, in fact, deemed essential to a just consideration of the case. Other examples of the same theory of the duties of the jury may be found in the language used by legal writers. Thus it has been said that the jury may return a verdict although no evidence at all be offered, and again, that the evidence given in court is not binding on the jury, because they are assumed from their local connexion to be sufficiently informed of the facts to give a verdict without or in opposition to the oral evidence. A recorder of London, temp. Edward VI., says that, &quot; if the witnesses at a trial do not agree with the jurors, the verdict of the twelve shall be taken and the witnesses shall be rejected.&quot; Forsyth suggests as a reason for the continuance of this theory that it allowed the jury an escape from the attaint, by which penalties might be imposed on them for delivering a false verdict. They could suggest that the verdict was according to the fact, though not according to the evidence. With the disuse of attaints, the contrary rule came in, and it was established that where a juryman is acquainted with material facts he should tell the court in order that he may be sworn as a witness ; and it was clearly laid down by Lord Ellenborough that, if a judge directed the jury that they might be guided by their own knowledge of the facts independently of the evidence, such a direction would be wrong. The ordinary jury in civil and criminal trials has now been traced down to the point at which its constitution became stereotyped. An important point still wants some historical explanation. The rule requiring a unanimous verdict has been variously accounted for, but Mr Forsyth s explanation appears conclusive. He regards the rule as intimately connected with the original character of the jury as a body of witnesses, and with the conception common in primitive society that safety is to be found in the number of witnesses, rather than the character of their testimony. The afforcing of the jury above described marks an inter mediate stage in the development. Where the juries were not unanimous new jurors were added until twelve were found to be of the same opinion. From the unanimous twelve selected out of a larger number to the unanimous twelve constituting the whole jury was a natural step, which, however, was not taken without some hesitation. In some old cases we find that the verdict of eleven jurors out of twelve was accepted, but it was decided in the reign of Edward III. that the verdict must be the unanimous opinion of the whole jury. Diversity of opinion was taken to imply perversity of judgment, and the law sanctioned the application of the harshest methods to produce unanimity. The jurors were not allowed to eat or drink but by leave of the justices ; and they might be carried round the circuit in carts until they agreed. These rough enforcements of an unanimous verdict have been softened by later practice, but the rule itself remains. We may now turn to the jury in actual operation. And let us notice first the various kinds of jury known to English law. 1. The Grand Jury. The origin of this has been ex- XIII. 99