25 



JURY. 



JUUV. 



records ever since the Conquest as a totally different institution from 

 the trial by jury. The trial per sectatorea or per pares in the county 

 court, which has sometimes been confounded with the trial by jury, 

 was in truth a totally different tribunal. The sectatores or pares were, 

 together with the sheriff or other president, judges of the court ; and 

 it appears to have been the common course with the Gothic nations 

 that twelve assessors should be present with the king or judge to 

 decide judicial controversies. (Du Cange, ' Gloss.,' ad vocem ' Pares.') 

 The pares euri<e resembled permanent assessors of the court, like the 

 tcabini mentioned in the early laws of France and Italy, much more 

 nearly than sworn jurors indiscriminately selected, and performing a 

 subordinate part to the judge. On the other hand, the incidents of 

 the mode of trial prevalent in Normandy long before the Conquest 

 correspond in a striking manner with those of our trial by jury as it 

 existed for centuries afterwards. Thus in Normandy offenders were 

 convicted or absolved by an inquest of good and lawful men summoned 

 from the neighbourhood where the offence was surmised to have been 

 committed. The law required that those were to be selected to serve 

 on such inquest who were best informed of the truth of the matter ; 

 and friends, enemies, and near relatives of the accused were to be ex- 

 rluded. So also in the Norman Writ of Right, those were to be sworn 

 as recognitors who were born and had ever dwelt in the neighbourhood 

 where the land in question lay, in order that it might be believed that 

 they knew of the truth of the matter, and would speak the truth 

 respecting it. (' Grand Coustumier,' cap. 68, 69, 103.) These inci- 

 dents, though unlike our present mode of trial (which, as will presently 

 iown, has entirely altered its character within the last four 

 centuries), are nearly identical with the trial by jury as it is described 

 first by Glanville and afterwards by Bracton, and correspond almost 

 verbally with the form of the jury process, which hag continued the 

 same from very early times to the present day, by which the sheriff is 

 commanded to return "good and lawful men of the neighbourhood, by 

 whom the truth of the matter may be better known, and who are not 

 akin to either party, to recognise upon their oaths," 4c. On the other 

 hand (as Madox remarks, in his ' History of the Exchequer," p. 1'JJi. 

 " if we compare the laws of the Anglo-Saxon kings with the forms of 

 law process collected by Glanville, they are as different from one 

 another as the laws of two several nations." 



Though there are some traces of the trial by jury in the four reigns 

 which immediately succeeded the Norman Conquqst, it was not till a 

 century afterwards, in the reign of Henry II., that this institution 

 became fully established and was reduced to a regular system. Its 

 introduction into frequent use at this period was probably owing to 

 the law or ordinance for the trial by assize in pleas of Land QT real 

 actions, made by Henry II. This law has not come down to our times, 

 but it is fully described by Glanville (lib. ii. cap. 7), and the greater 

 part of the treatise of that writer is occupied by an account of the 

 practical machinery of the trial by twelve men, which he warmly 

 eulogises and represents as having been introduced in opposition to 

 the unsatisfactory mode of trial by battle or duel. In the reign of 

 Henry II. it appears also that a jury was sometimes used in matters of 

 a criminal nature the proceeding in such cases being noticed as an 

 inquiry per juratam patriie rel riclneti, or per jurantetitum legallum 

 Thus in the ' Constitutions of Clarendon/ enacted in 1164, 

 it is directed that " if no person appeared to accuse an offender before 

 the archdeacon, the sheriff should, if requested to do so by the bishop, 

 cause twelve lawful men of the neighbourhood or of the township to be 

 sworn, who might declare the truth according to their conscience." 

 These however were probably accusatory juries, similar to our grand 

 inquests, and not juries employed for the actual trial or " deliverance " 

 of criminals, which do not seem to have been commonly used until a 

 later period. 



The law of Henry II. introduced the trial by assize or jury hi real 



actions as a mode of deciding facts which the subject might claim as a 



matter of right. Glanville calls it " a certain royal benefit conferred 



upon the people by the clemency of the sovereign with the advice of 



the nobility." Accordingly we find in the 'Rotuli Curia; Regis' in the 



time of Richard I. and John, many instances of trials by jury being 



claimed by parties, though it appears from these curious records that 



at this period the trial by battle was still in frequent use. lu the reign 



of John we first begin to trace the use of juries for the trial of criminal 



accusation*. At first it seems to have been procured by the accused as 



a special favour from the crown, a fine, or some gift or consideration, 



being paid in order to purchase the privilege of a trial by a jury. 



il instances of this ki.nd will be found collected hi the notes and 



illustrations to Palgrave's ' Commonwealth of England,' vol. ii., p. 186. 



The payment of a fine took place also not unfrequently in civil cases, 



wli' n- any variation from the regular course was required ; see ' Rotuli 



Kegis,' vol. i., pp. 354, 375; vol. ii.,pp. 7J, !>:!. :>7, 101, 114. It 



ic clear, however, from Bracton and Fleta, that at the end of the 



13th century the trial by jury in criminal cases had become usual, the 



form of the proceedings being given by them in detail. (Bracton, 



i Introduced originally as a matter of favour and indulgence, 



it gained ground with advancing civilisation, gradually superseding the 



indent and barbarous customs of battle, ordeal, and wager of 



law, until at length it became, both in civil and criminal cases, the 



ordinary mode of determining facts for judicial .purposes. 



It is right to notice the popular and remarkable error that the 



stipulation for the judiciwn parium in Magna Charta referred to the 

 trial by jury. Sir Edward Coke in his commentary upon Magna 

 Charta expressly distinguishes between the trial by peers and the trial 

 by jury (2nd Inst. 48-9) ; but Blackstone says, " The trial by jury is 

 that trial by the peers of every Englishman, which, as the grand 

 bulwark of his liberties, is secured to him by the Great Charter." 

 (' Commentaries,' vol. iv., p. 349.) This is confounding two distinct 

 modes of trial. The judicium partum was the feudal mode of trial, 

 where the pares or conrassalli ejusdem domini sat as judges or assessors 

 with the lord of the fee to decide controversies arising between 

 individual pares. It was a phrase perfectly understood at the period 

 of Magna Charta, and the mode of trial had been in use long before in 

 France and all parts of Europe where feuds prevailed. (Du Cange, 

 ' Gloss.', ad vocem ' Pares.') It was essentially different from the trial by 

 jury, which could never be accurately called judicium parium. We 

 read frequently in the records of those times (and even in Magna 

 Charta itself), of juratores, of reredictum or juratnentiim legaliuai 

 /lominiim, and jurata ricineti or patria, all of which expressions refer 

 to a jury ; but not a single instance can be found in any charter, or in 

 any ancient treatise or judicial record, in which the jury are called 

 pares, or their verdict jndicium. (Reeves's ' History of the Law,' vol. 

 i., p. 249.) In the records of the 'Curia Regis 'in the first year of 

 John's reign, among numerous entries otPonit se super juratam ririmti. 

 or patrlff, are also entries of Ponit se super pares suos de codem feodo, 

 plainly indicating a distinction between the two modes of trial. (' Rotuli 

 Curise Regis,' vol. ii., p. 90.) 



Until about the reign of Henry VI. the trial by jury was to all 

 intents and purposes a trial by witnesses. The present form of the 

 jurors' oath is that they shall " give a true verdict, accord I >HJ to the 

 evidence." At what precise time this form was introduced is uncertain ; 

 but for several centuries after the Conquest, the jurors both in civil 

 and criminal cases were sworn merely to speak the truth. (Glanville, 

 lib. ii., cap. 17 ; Bracton, lib. iii., cap. 22 ; lib. iv., p. 287, 291 ; 

 Britton, p. 135.) Hence their decision was accurately termed 

 neredictum, or verdict ; whereas the phrase " true verdict " in the 

 modern oath is not only a pleonasm, but is etyuiologically incorrect, 

 and misdescribes the office of a juror at the present day. Many other 

 incidents of the trial by jury, as recorded in ancient treatises, con- 

 clusively show that the jury were merely witnesses. They were 

 brought from the neighbourhood where the disputed fact was suggested 

 to have occurred, because, as the form of the jury process says, they 

 were the persons " by whom the truth of the matter might be better 

 known;" no doubt upon the principle that Vicini i-icitiorum pnesu- 

 muntur scire. Again, if the jurors returned by the sheriff in the first 

 instance declared in open court that they kuew nothing of the matter 

 in question, others were summoned who were better acquainted with 

 it. (Glanville, lib. ii., cap. 17.) They might be excepted against by 

 the parties upon the same grounds as witnesses in the Court Christian. 

 They were punished for perjury if they gave a wilful false verdict ; 

 and for cratum igtiorantia if they declared a falsehood or hesitated about 

 their verdict upon a matter of notoriety, which all of the country (dc 

 patrid) nu'ght and ought to have known. (Bracton, p. 290.) And 

 ancient authors solemnly admonish judges to "take good heed in 

 inquisitions touching life and limb, that they diligently examine the 

 jurors from what source they obtain their knowledge, lest peradventuro 

 by their negligence in this respect Barabbas should be released and 

 Jesus be crucified." (Bracton, lib. iii. cap. 21 ; Fleta, lib. i., cap. 

 34.) It is also remarkable, as one of the numerous circumstances 

 which show the character of the jury in the earlier periods of the 

 history of the institution, that though all other kinds of murder might 

 be tried by a jury, murder by poison was excepted, " because," say the 

 ancient writers, " the crime is so secret that it cannot be the subject 

 of ^knowledge by the country." (Bracton, lib. iii., cap. 18 ; Fleta, 

 lib'i., cap. 31.) 



The original principle and character of the trial by jury in criminal 

 cases in Scotland appear to have been the same as in England. The 

 following extract is taken from a curious paper delivered to the. 

 Speaker of the House of Commons, and recorded on the Journals at 

 the date 4th June, 1607. (' Cornui. Journ.', vol. i., p. 378.) "In 

 Scotland criminal cases are not governed by the civil law ; but ordancs 

 (a word printed by mistake for some other) and juries pass upon life 

 and death, very near according to the law here (in England). Which 

 jury being chosen out of the Four Halfs about (as the Scottish law 

 terms it), which is to say, out of ah" places round about that are 

 nearest to that part where the fact was committed, the law doth 

 presume that the jury may the better .discern the truth of the fact by 

 their own knowledge ; and therefore they are not bound to examine 

 any witnesses, except out of their own disposition they shall please to 

 examine them in favour of the party pursuer ; which is likewise very 

 seldom or almost never used. It is of truth that the judge may either 

 privately beforehand examine such witnesses as either the party 

 pursuer will offer unto him, or such others as in his own judgment 

 he thinks may best inform him of the truth ; ,-iucl then when the jury 

 in publicly called and admitted, he will cause these depositions to be, 

 produced and read ; and likewise if the party pursuer desire any witness 

 there present to be examined, he will publicly do it in presence of the 

 jury and both parties." It will be observed, that the mode of com- 

 mencing the introduction of evidence to juries as described in this 



