Page:The Green Bag (1889–1914), Volume 02.pdf/333

300 JURIES AS THEY WERE AND ARE.

HERE are curious things to be told regarding juries, both as to their ancient and modern history. Valuable as the institution is, we have little or no certain knowledge of its origin. Not only have the Normans, the Saxons, the Gauls, the Romans, and even the Trojans, in turn had ascribed to them the honor of being the inventors of the system, and in turn been dispossessed of it, but some writers, acting like those foolish old testators who make a point of leaving their money to persons already having more than they know what to do with, declare that to Alfred the Great — a sovereign already lauded as the inventor of half the noblest institutions of England — the entire credit of the whole matter is due.

Whoever was the inventor, or what the period of the birth of the system, it is quite certain that very few traces of it are to be found anterior to the reign of Henry II. From the time of William to that of Henry II., the mode of administering justice was very simple. In civil cases a little hard swearing on one side or the other soon settled the matter; while as to criminals, by "fighting it out," a far more speedy result was, we doubt not, obtained than is arrived at in our courts of justice at the present day. In Henry's reign, however, the simplicity of all judicial proceedings was much broken in upon by the passing of a famous statute, usually called the Grand Assize. This statute ordained that in all cases in which the ownership of land, the rights of advowson, or the claims of vassalage came in question, four knights of the county should be summoned, who joining with them twelve men, neighbors of those whose rights were in dispute, should hear from them," upon their oaths, the truth of the matter in question.

If these twelve could not agree in the tale they told the knights, the minority were dismissed, and others chosen in their stead; and this was repeated until twelve men were found whose tale was uniform, and then according to it judgment was given.

This singular mode of adjudicating appears to have ever since been held in great estimation; for although other species of trial by jury soon after sprung up, the grand assize was not set aside, but continued to be put in practice now and then down to the year 1838, when, for the last time, four knights girt with their swords, and twelve recognitors, met in the Court of Common Pleas at Westminster, and were addressed by the Lord Chief-Justice Tindal as "gentlemen of the grand inquest and recognitors of the grand assize." The institution was shortly after abolished by act of Parliament.

During the time of Edward I. the jury system was greatly improved, and to a certain extent resembled that of the present day. Knights of the shire were summoned by the sheriff, — the origin of the present grand jury, — twelve of whom had to be unanimous in presenting the guilt of a prisoner to the petty jury who were to try him. The petty jury, indeed, differed from a modern one in one important particular; for those composing it, after being sworn to act truly, heard no evidence from others, but each separately delivered a verdict founded on his own knowledge of the matter, and was thus a witness as well as a juryman. If the twelve could not agree, the minority were, as in the grand assize, turned aside, and others chosen in place of them, and this was done until the twelve presented a uniform verdict.

It may amuse the reader to know that the first civil matter tried by a jury, properly so called, of which any record has descended to us, was an action by the parson of Chipping-Norton against another parson for turning him out of his house on a Sunday.

It was not until the time of Henry VI. that witnesses were allowed to be called, to inform the consciences of the jury respecting