JURY. 



283 



able to oppose any obstacles of importance to such 

 HII abuse of the judicial office. Algernon Sidney 

 and lord Russell were condemned to death by the 

 verdict of a jury. For common criminal cases, there 

 can hardly be any more uncertain, fluctuating form 

 of decision than the trial by jurors, who, without 

 imparting to others the grounds of their verdict, or 

 even settling any just grounds in their own minds, 

 decide on the honour, freedom and life of their fellow 

 citizens. In the first place, the actual existence of 

 a crime need not be proved according to fixed rules. 

 Suppose the case of a man being missed, or of a 

 corpse being found the jury are persuaded that a 

 murder must have been committed, and pronounce 

 some suspected person guilty, when it is' possible 

 that the missing man still lives, or that the dead man 

 perished without personal violence. Some years 

 since, David Evans was executed in London as the 

 murderer of his wife, because an apothecary, who 

 had never practised as a surgeon, maintained that 

 the woman died in consequence of a wound on her 

 head, while a surgeon in actual practice asserted, on 

 the contrary, that the wound had nothing to do with 

 her death, and that this was occasioned by an inflam- 

 mation of the bowels. (Morning Chronicle, 1818, 

 February 24.) In the second place, the jury give 

 their verdict on the slightest and most remote evi- 

 dence, when the offence in question is an injury to 

 property, a theft, robbery, fraud, or the like. The 

 instances in which the innocence of persons con- 

 demned for such offences subsequently appears are 

 therefore constantly increasing, and the explanation 

 of this circumstance is to be found in the character 

 of the jury, who are taken mostly from men of busi- 

 ness in the mkldle classes, who feel more hostility to 

 a thief qr a swindler than to a murderer. The jury 

 act, in fact, the part of legislators : when the penalty 

 imposed by the law appears to them too severe, as, 

 for instance, the punishment of death for stealing 

 property to the amount of forty shillings, they settle 

 at their own pleasure the degree of the offence, so as 

 to avoid the strictness of the law ; and it has hap- 

 pened that a jury has declared a man who had stolen 

 ten guineas (210 shillings) guilty of theft to the 

 amount of thirty-nine shillings. The personal feelings 

 of the jury towards the accused, and the light in 

 which they regard the offence, often determine what 

 the verdict will be, before the trial is begun. It 

 has been proposed, in Germany, to make juries 

 give their reasons for their verdicts ; but this only 

 proves that the nature of this institution is not 

 understood. An exhibition of their reasons comports 

 as little with their nature as a further examination 

 by a different tribunal. The verdict of the jury 

 comes like a decree of destiny, without being capable 

 of justification, examination", or amendment ; for the 

 whole of the decision rests on things which cannot 

 be a second time exhibited in exactly the same 

 modifications the deportment of the accused and 

 the witnesses, the individual and momentary disposi- 

 tions of the jurors. Even in England, doubts of the 

 importance of the trial by jury are by degrees 

 excited, and there is an approximation to the funda- 

 mental views of the German criminal process, which 

 aims at exciting the moral feelings of the criminal 

 by solitude and examination, and producing a con- 

 fession, which makes the accused his own judge. No 

 criminal is so hardened as never to experience a 

 state of mind when the burden of conscience is too 

 heavy for him, and he desires to reconcile himself to 

 the law and his inward judge. To produce this 

 effect is the aim of the criminal judges of Germany; 

 and certainly it is at least as conformable to the high 

 dignity of the administration of justice as the trial by 

 ury. The abridgment of the length of the process, 



and the publicity of the administration of penal 

 justice, are different tilings, and, though they are 

 commonly united witli the trial by jury, are advan 

 tages which may be imbodied with any other system. 

 The views suggested in the previous part of this 

 article, written, as has been already observed, by a 

 civilian unaccustomed to the practical operation of 

 the trial by jury, deserve the consideration of minds 

 accustomed to a different course of jurisprudence, 

 not only from their theoretical acuteness, but from 

 their development of supposed practical defects in 

 the trial by jury. It seems fit, therefore, to give 

 another exposition of this subject, which is main- 

 tained by persons educated under the common Jaw, 

 and to suggest some of the reasons why it is deemed 

 the bulwark of public liberty, and the best safeguard 

 of private rights under our forms of free government. 

 The remaining part of this article is to be considered 

 as independent of the foregoing ; not so much as 

 presenting a counter view, but as presenting the true 

 grounds on which the institution was established, 

 and is still dear to the free inhabitants of Britain 

 and America. 



I. The Origin of the Trial by Jury. It has been 

 traced back by antiquarians to a very early period in 

 British history, and seems, indeed, in some form, if 

 not coeval with the origin of the civil government in 

 England, at least to have been used time out of mind 

 in that kingdom. It is lost among the early Saxon 

 colonies ; and probably was derived from the mode 

 of administering justice by the peers of the litigant 

 parties in the feudal institutions of Italy, France, and 

 Germany. Mr Justice Blackstone (3 Comm. 349, 

 350) considers that this tribunal was universally 

 established among all the northern nations, and so 

 interwoven with their very constitution, that the 

 earliest accounts of the one give us also some traces 

 of the other. Mr Wynne (Eunomus, Ding. 3, s. 50) 

 seems to entertain a different opinion, and, after 

 stating that its origin is obscure (caput inter nubila 

 condit), he asserts, that it is the noblest form of 

 policy that was ever invented on earth, and comes 

 nearest the impartiality of heaven. But, whatever 

 may be the origin of the trial, it is of very high 

 antiquity. And Magna C/iarta (ch. 29) referred to 

 it as an existing institution, and provided that no 

 person should be hurt, either in his person or pro- 

 perty, unless by the judgment of his peers or the 

 laws of the realm (nisi per legate judicimn parium 

 suorum vel per legem terra). 



II. The different Kinds of Juries. Juries are of 

 two sorts, viz. grand juries and petty juries. The 

 former may consist of any number more than twelve, 

 and less than twenty-four persons. The office of the 

 grand jury is to accuse persons who are supposed to 

 be guilty of an offence. It may, therefore, properly 

 be called the Jury of accusation. The petty or petit 

 jury consists of twelve persons only, and may properly 

 be called the jury of trials, both in civil and criminal 

 cases. 



III. We shall first consider the organization, 

 functions, and proceedings of the grand jury. The 

 mode of accusation is by a written statement in 

 solemn form, describing the offence, with all the 

 proper accompaniments of time and circumstances, 

 and certainty of act and person, which is called an 

 indictment, or by a mode less formal (which is usually 

 the spontaneous act of the grand jury), called a 

 presentment, and which is afterwards put into solemn 

 form by some proper officer. No indictment or 

 presentment can be made except by the concurrence 

 of at least twelve of the jurors. The grand jury 

 may accuse upon their own knowledge ; but it is 

 generally done upon the testimony of witnesses under 

 oath, and other evidence produced and heard before 



