JURY. 



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place, the poorer class of people, who, above all 

 others, fill the annals of criminal trials, must be 

 excluded from the jury by reason of their want of 

 information and comparatively small interest in the 

 public welfare, by which means that equality is, in 

 most cases destroyed (thus, in England, to be a juror, 

 a person must have a certain income ; the same is the 

 case in France, where attention is also paid to parti- 

 cular circumstances of rank) ; so that, from the infinite 

 gradations and varieties of property, education, 

 opinions, and innumerable outward circumstances in- 

 stead of full equality, the greatest inequality often 

 subsists between the jurors and the accused. The 

 various means by which it has been attempted, in 

 France, to remedy tiie defects of the jury, and which, 

 nevertheless, have produced no better criminal juris- 

 diction, satisfactorily prove their entire insufficiency 

 in this respect. See Assizes, and Appeal. 



1. History of the Institution. It has evidently been, 

 from the beginning', a truly popular trial, and not, as 

 Rogge has lately asserted (Gerichtsivesen der Ger- 

 manen, 1820), a modification of the ancient process ol 

 compurgation. These institutions compurgation and 

 jury have, indeed, many external similarities, and 

 may, in some cases, have become blended with each 

 other ; but, in their nature, they are entirely separate. 

 This appears evident from the circumstauce that, in 

 England, juries and compurgations occur at the same 

 time. Criminal actions against the clergy were pro- 

 secuted under tlie direction of the bishop, with twelve 

 of the clergy as jurors, but were begun by the 

 accused with twelve compurgators swearing to his 

 innocence, and commonly ended in his acquittal, till 

 an end was put to this disorder by law, in 1576. (See 

 Blackstone's Comment, on Laws of England, vol. iv.) 

 It has long been known in Germany, and has lately 

 been proved by Feuerbach (Betrachtungen uber die 

 Mundlichkeit und Oejfentlichkeit der Gerichtigkeits- 

 pflege, 1825), that the most ancient constitution of 

 the German laws, and in Bavaria as late as the 

 fifteenth century, consisted in the men of the com- 

 munes finding judgment under the guidance and pro- 

 tection of an officer. As there must be some fixed 

 number, that of twelve is as good as any other, and 

 has been preferred from time immemorial; but the 

 agreement of the twelve jurors consisted, at first, in 

 many cases and places, in the circumstance, that the 

 votes of all the men present, and capable of giving 

 an opinion, were asked, and the matter decided as 

 soon as a majority of twelve votes was obtained for 

 an opinion. One person could, therefore, cancel the 

 vote of another juror, by declaring himself of another 

 opinion, and commanding the juror to leave his seat. 

 Some traces of this regulation are still to be found' in 

 England. In the house of lords, the whole body of 

 nobles vote ; but a valid condemnation is obtained 

 only when a majority of twelve votes is declared for 

 conviction. But in the courts of assizes, the place 

 of absent jurors is immediately supplied from the 

 people present, and if these twelve cannot agree, 

 according to the original constitution, the trial must 

 be by new jurors, who are chosen from time to time 

 till an unanimous vote of twelve is obtained. In 

 important causes in the county courts, all the free- 

 men of the county were, in former days, summoned, 

 which is termed judgment per omnes comitatus probos 

 homines. (Reeves' History of the English Law, 

 1814, vol. i. 84.) But it was very naturally soon 

 found better to summon only a fixed number of men 

 to this service, and thus arose the number of twelve, 

 who could only unanimously give a valid decision. 

 The oldest vestige of this change is found under 

 Henry II., in the constitutions of Clarendon, in 1164, 

 and of Northampton, in 1174. Contests about landed 

 property, as well as criminal accusations, were to be 



decided by the oath of twelve respectable men of the 

 neighbourhood (per sacramentum duodecim milititm 

 de hundredo, or liberorum legalium hominum dc vici- 

 neto) . From this time, the trial by jury has remained 

 essentially unaltered in England, and has gradually 

 become the only form of process, partly by the aboli- 

 tion of the criminal courts which judged without 

 jury, partly by the abrogation of the methods of 

 criminal prosecution in which no trial by jury existed. 

 Of the last, there remains only the pronouncing of 

 punishment in the way of legislation, termed an 

 attainder (at(inctura'), or bill of pains and penalties. 

 There were, besides, several other ways of terminat- 

 ing a criminal trial without a jury, but between 

 which, not the accuser, but the accused, was entitled 

 to choose. In the times of the Anglo-Saxons, the. 

 ordeals of red hot iron and boiling water were in 

 vogue, besides which there was the consecrated 

 bread. The clergy prepared a piece of bread or 

 cheese, an ounce in weight, which was easily swal- 

 lowed by the innocent, but which stuck in the throat 

 of the guilty, and choked him. Of such a morsel, 

 Godwin, earl of Kent, died in the reign of Edward 

 the Confessor; and, according as the accused was 

 suspected or hated, it was well known how to pre- 

 pare the morsel. Under the Norman dominion, this 

 ordeal was supplanted by the wager of battle. The 

 wager of battle (vadiatio duelli) was used even in 

 civil cases, and, according to the most ancient cus- 

 tom, it depended on the accused, if the accuser had 

 supported his accusation by witnesses, to choose 

 whether he would have recourse to this means, or 

 swear to his innocence with twice as many compur- 

 gators as the accuser had produced, though not above 

 twelve. This was called vadiatio legis (wager of 

 law). In civil causes, the wager of battle disap- 

 peared in the thirteenth century, when Henry II. 

 introduced into the assizes a trial by jury. But in 

 penal prosecutions, on the contrary, it continued 

 much longer. The accused is still asked how he 

 will be tried; and, though the answer "by the 

 law of the land,'' or " by the country" (per legem 

 terree, or per patriam) has become a mere formality, 

 yet, as late as 1819, a singular trial for murder took 

 place, in which it stood at the option of the accused 

 to challenge the accuser to the wager of battle. (See 

 Kendall's Appeal of Murder, London, 1819, and 

 Appeal.) A court of justice, moreover, formerly, 

 existed in England, which judged without jury, 

 called the star-chamber (camera stellata) a name 

 respecting the derivation of which antiquarians are 

 not agreed. It consisted of some lords, both tem- 

 poral and spiritual, members of the privy council, 

 and two judges of the supreme court of West- 

 minster, and had properly jurisdiction only of some 

 particular cases, rebellion, perjury, the official mis- 

 conduct of sheriffs, &c. , but extended its jurisdiction 

 farther and farther, and became, especially under 

 'Henry VII. and Henry VIII., an instrument of the 

 most arbitrary power. After it had long been a 

 subject of terror and hatred, it was entirely abolished 

 under Charles I., in 1641. The trial by jury has 

 since been regarded in England as one of the funda- 

 mental pillars of the constitution. By the Habeas 

 Corpus act (see Habeas Corpus Act) of the reign of 

 Charles II., greater security has been provided, that 

 the trial by jury shall be withheld from no one ; it is 

 only to be lamented, that the petition for such an 

 order is attended with extraordinary expense. 



II. History of the Jury in France. In the article 

 France, some of the cruelties are mentioned, which 

 are chargeable to the administration of penal justice 

 in France before the revolution. Judicial despotism, 

 united with ignorance and corruption, was exhibited 

 in horrid forms. The laws were severe. The ordi- 



