Page:Popular Science Monthly Volume 26.djvu/309

Rh that the person murdered was English. As this last was a task usually attended with great difficulty, it became the practice of the people of the hundred to discover the criminal, and, when found, to accuse him of the crime; but as these accusers, when they bad apprehended the accused, were found liable to be prejudiced against him, the custom grew of choosing twelve, who might be taken, not only from the hundred, but from the whole body of the county, whose functions were to decide as to the guilt or innocence of the accused. Under the first Henry the jurors, though still witnesses, and deciding exclusively from their own knowledge, began to be called judges—a fact which seems to indicate that the office of deciding began to be recognized as the principal part of their duty. In the following reign, Henry II recognized the value of the jury system as a check upon the power and rapacity of the barons; and, consequently, in the tenth year of his reign, was enacted the first legislation on record establishing the right of trial by jury. In the constitutions of Clarendon, passed in that year, it was provided that laymen should not be accused unless by certain legal accusers, the witnesses, and that if the offenders were such whom no one wished or desired to accuse, that then twelve men should be sworn "who should declare the truth according to their conscience."

It is noted as a curious fact that the jury system, whose great value has always been as a means of checking the encroachments of the crown upon popular liberty, should thus have been first officially introduced to the world as a means of strengthening the crown in its endeavors to check the encroachments of others. And it may be noted as an equally curious fact that the importance of the jury, as thus first established, was in gaining convictions rather than in evading them. Jurors, however, were still witnesses—"deciding by what they had seen and heard." Indeed, it was not until the reign of Henry VI (fifteenth century) that jurors were of sufficient intelligence to listen to and decide upon extraneous evidence; and not until the reign of Anne (eighteenth century) that it was enacted that the want of "hundredors" should not be a cause of challenge to the jury.

From this brief recital it will be seen that the last stage in the development of the modern jury was reached when, in the fifteenth century, the jurors began to listen to the evidence of others, and ceased to rely upon their own. The importance of the jury prior to this period has been very much overstated. The reference to it in Magna Charta does not warrant all the eloquence that has been expended upon it. The events which gave rise to Magna Charta and the condition of the people of England at that time preclude the idea that the jury system owes its existence, or at any rate its place in Magna Charta, to the "freedom-loving instincts of the Anglo-Saxons." A proper conception of the jury itself, as it then existed, equally precludes the idea that it possessed the importance, even in the eyes of those who obtained the charter, which people in later times have been