What is the origin of this very remarkable and characteristic system? That is a question which has engaged the attention of many learned men. The fullest discussion of the subject is contained in Forsyth’s Trial by Jury, published in 1852, and more concise notices of the various theories that have been advanced will be found in Stubbs’s Constitutional History, vol. i., and in Freeman’s Horman Conquest, vol. V. Until quite recently this, like all other institutions, was popularly regarded as the work of a single legislator, and in England it is one of the achievements usually assigned to Alfred. It is needless to say that there is no historical foundation whatever for such a supposition, nor is it much more correct to regard it as “copied from this or that kindred institution to be found in this or that German or Scandinavian land,” or brought over ready made by Hengist or by William. “Many writers of authority,” says Canon Stubbs, “have maintained that the entire jury system is indigenous in England, some deriving it from Celtic tradition based on the principles of Roman law, and adopted by the Anglo-Saxons and Normans from the people they had conquered. Others have regarded it as a product of that legal genius of the Anglo-Saxons of which Alfred is the mythic impersonation, or as derived by that nation from the customs of primitive Germany or from their intercourse with the Danes. Nor even when it is admitted that the system of recognition was introduced from Normandy have legal writers agreed as to the source from which the Normans themselves derived it. One scholar maintains that it was brought by the Norsemen from Scandinavia; another that it was derived from the processes of the canon law; another that it was developed on Gallic soil from Roman principles; another that it e,ame from Asia through the crusades,” or was borrowed by the Angles and Saxons from their Slavonic neighbours in northern Europe. The true answer is that forms of trial resembling the jury system in various particulars are to be found in the primitive institutions of all nations. That which comes nearest in time and character to trial by jury is the system of recognition by sworn inquest, introduced into England by the Normans. “That inquest,” says Mr Stubbs, “is directly derived from the Frank capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian code, and thus own some distant relationship with the Roman jurisprudence.” However that may be, the system of recognition consisted in .questions of fact, relating to fiscal or judicial business, being submitted by the officers of the crown to sworn witnesses in the local courts. It is pointed out by Mr Freeman that the Norman rulers of England were obliged, more than native rulers would have been, to rely on this system for accurate information. They needed to have a clear and truthful account of disputed points set before them, and such an account was sought for in the oaths of the recognitors. The Norman Conquest, therefore, fostered the growth of those native germs common to England with other countries out of which the institution of juries grew. Recognition, as introduced by the Normans, is only, in this point of view, another form of the same principle which shows itself in the compurgators, in the frithbocJc, in every detail of the action of the popular courts before the Conquest. Admitting with Mr Stubbs that the Norman recognition was the instrument which the lawyers in England ultimately shaped into trial by jury, Mr Freeman maintains none the less that the latter is a distinctively English thing. Mr Forsyth comes to substantially the same conclusion. Noting the jury germs of the Anglo-Saxon period, he shows how out of those elements, which continued in full force under the Anglo-Normans, was produced at last the institution of the jury. “As yet it was only implied in the requirement that disputed questions should be determined by the voice of sworn witnesses taken from the neighbourhood, and deposing to the truth of what they had seen or heard.” What was wanting was to mould the procedure into shape, and that it did not attain until a century after the Conquest.

The inquest by recognition, which was employed generally for the ascertainment of facts, as for example in assessing taxation, is exemplified in legal matters by the process known as the assize or the great assize, applicable to questions affecting freehold or status. Defendant in such an action was enabled by an enactment of Henry II. to decline the trial by combat and choose the trial by assize, which was conducted as follows. The sheriff summoned four knights of the neighbourhood, who being sworn chose twelve lawful knights who were most cognizant of the facts, who should determine on their oaths which had the better right to the land. If they all knew the facts and were agreed as to their verdict, well and good; if some or all were ignorant, the fact was certified in court, and new knights were named, until twelve were found to be agreed. The same course was followed when the twelve were not unanimous. New jurors, as they may be called, were added until the twelve were agreed. This was called afforcing the assize. At this point the knowledge on which the jurors acted was their own personal knowledge, acquired independently of the trial. “So entirely,” says Forsyth, “did they proceed upon their own previously formed view of the facts in dispute that they seem to have considered themselves at liberty to pay no attention to evidence offered in court, however clearly it might disprove the case which they were prepared to support.” The use of recognition is prescribed by the constitutions of Clarendon for cases of dispute as to lay or clerical tenure. See Forsyth, p. 131; Stubbs, vol. i. p. 617.

In criminal cases there appears to be a more complete approximation to the jury in Anglo-Saxon times in the twelve senior thegns, who, according to an ordinance of Aethelred II. were sworn in the county court that they would accuse no innocent man and acquit no guilty one. The twelve thegns were a jury of presentment or accusation, like the grand jury of later times, and the absolute guilt or innocence of those accused by them had to be determined by subsequent proceedings—by compurgation or the ordeal. Whether this is the actual origin of the grand jury or not, the assizes of Clarendon and Northampton establish the criminal jury on a definite basis. By the articles of visitation of 1194, four knights are to be chosen from the county who by their oath shall choose two lawful knights of each hundred or wapintake, or, if knights be wanting, free and legal men, so that the twelve may answer for aU matters within the hundred, including, says Stubbs, “all the pleas of the crown, the trial of malefactors and their receivers, as well as a vast amount of civil business.” This is the historical grand jury. The petty jury, as it is called, which is the real jury of trial, appears to have arisen as an alternative to the trial by ordeal. A person accused by the inquest of the hundred was allowed to have the truth of the charge tried by another and different jury. “There is,” says Forsyth, “no possibility of assigning a date to this alteration.” “In the time of Bracton (middle of the 13th century) the usual mode of determining innocence or guilt was by combat or appeal. But in most cases the appellant had the option of either fighting with his adversary or putting himself on his county for trial ”—the exceptions being murder by secret poisoning, and certain circumstances presumed by the law to be conclusive of guilt. Some doubt has been expressed whether the twelve jurors who tried the crime were not identical with the accusing jurors, but the separation between the two juries was at any rate complete in the reign of Edward III. (Forsyth, p. 206).

So far we have arrived at the establishment of the jury system in its modern form, alike in civil and in criminal proceedings; and, whatever differences may be traceable in the history of the civil and criminal jury respectively, their subsequent development is one. And there is one great feature by which the jury at the stage we have now reached is distinguished from the jury of modern times. The jury still certify to the truth from their knowledge of the facts, however acquired. In other words, they still retain the character of witnesses. The complete withdrawal of that character from the jury is connected by Forsyth with the ancient rules of law as to proof of written instruments, and a peculiar mode of trial per sectam. When a deed is attested by witnesses, you have a difference between the testimony of the witness, who deposes to the execution of the deed, and the verdict of the jury as to the fact of execution. It has been contended with much plausibility that in such cases the attesting witnesses formed part of the jury. Forsyth doubts that conclusion, although he admits that, as the jurors themselves were originally mere witnesses, there was no distinction in principle between them and the attesting witnesses, and that the attesting witnesses might be associated with the jury in the discharge of the function of giving a verdict. However that may be, in the reign of Edward HL, although the witnesses are spoken of “as joined to the assize,” they are distinguished from the jurors. The trial per sectam was used as an alternative to the assize or jury, and resembled in principle the system of compurgation. The claimant proved his case by vouching a certain number of witnesses (secta), who had seen the transaction in question, and the defendant rebutted the presumption thus created by vouching a larger number of witnesses on his own side. In cases in which this was allowed, the jury did not interpose at all, but in course of time the practice arose of the witnesses of the secta telling their story to the jury. In these two instances we have the jury as judges of the facts sharply contrasted with the witnesses who testify to the facts; and, with the increasing use of juries and the development of rules of evidence, this was gradually established as the true principle of the system. In the reign of Henry IV. we find the judges declaring that the jury after they have been sworn should not see or take with them any other evidence than that which has been offered in open court. But the personal knowledge of the jurors was not as yet regarded as outside the evidence on which they might found a verdict, and the stress laid upon the selection of jurymen from the neighbourhood of the cause of the action shows that this element was counted on, and, in fact, deemed essential to a just consideration of the case. Other examples of the same theory of the duties of the jury may be found in the language used by legal writers. Thus it has been said that the jury may return a verdict although no evidence at all be offered, and again, that the evidence given in court is not binding on the jury, because they are assumed from their local connexion tobe sufficiently informed of the facts to give a verdict without or in opposition to the oral evidence. A recorder of London, temp. Edward VI., says that, “if the witnesses at a trial do not agree with the jurors, the verdict of the twelve shall be taken and the witnesses shall be rejected.” Forsyth suggests as a reason for the continuance of this theory that it allowed the jury an escape from the attaint, by which penalties might be imposed on them for delivering a false verdict. They could suggest that the verdict was according to the fact, though not according to the evidence. With the disuse of attaints, the contrary rule came in, and it was established that where a juryman is acquainted with material facts he should tell the court in order that he may be sworn as a witness; and it was clearly laid down by Lord Ellenborough that, if a judge directed the jury that they might be guided by their own knowledge of the facts independently of the evidence, such a direction would be wrong.

The ordinary jury in civil and criminal trials has now been traced down to the point at which its constitution became stereotyped. An important point still wants some historical explanation. The rule requiring a unanimous verdict has been variously accounted for, but Mr Forsyth’s explanation appears conclusive. He regards the rule as intimately connected with the original character of the jury as a body of witnesses, and with the conception common in primitive society that safety is to be found in the number of witnesses, rather than the character of their testimony. The afforcing of the jury above described marks an intermediate stage in the development. Where the juries were not unanimous new jurors were added until twelve were found to be of the same opinion. From the unanimous twelve selected out of a larger number to the unanimous twelve constituting the whole jury was a natural step, which, however, was not taken without some hesitation. In some old cases we find that the verdict of eleven jurors out of twelve was accepted, but it was decided in the reign of Edward III. that the verdict must be the unanimous opinion of the whole jury. Diversity of opinion was taken to imply perversity of judgment, and the law sanctioned the application of the harshest methods to produce unanimity. The jurors were not allowed to eat or drink but by leave of the justices; and they might be carried round the circuit in carts until they agreed. These rough enforcements of an unanimous verdict have been softened by later practice, but the rule itself remains.

We may now turn to the jury in actual operation. And let us notice first the various kinds of jury known to English law.

1. The Grand Jury.— The origin of this has been ex plained above. This is the jury which presents indictments for trial by the petty or ordinary jury. The sheriff is directed to summon twenty-four or more persons, out of whom the jury may be chosen; but not more than twenty-three are to be chosen, so that twelve may be a majority. The verdict of less than twelve, although a majority of the whole body, cannot be accepted, but the verdict of twelve is sufficient although the others may dissent. The grand jury, after a general charge from the judge, consider the bills of indictment in private, hearing such of the witnesses as they think fit. If they consider that a prima facie case is made out against the accused, they return the indictment into court as a true bill, which then becomes the foundation of the process before the petty jury. If they think otherwise they ignore the bill, or send it back into court torn up. They have thus a kind of veto on the cases submitted for trial. As these for the most part have been previously investigated by magistrates who have committed the accused for trial, the utility of the grand jury depends very much on the character of the justices’ courts. As a review of the discretion of stipendiary magistrates in committing cases for trial, the judgment of the grand jury is admittedly superfluous; and even when the committing justice is an unlearned magistrate, it seems very doubtful if much is gained by subjecting his open decisions to the control of a secret tribunal. It used to be urged by the defenders of the system that it secures the attendance of the landed gentry and the county justices at the assizes—a kind of argument which is no longer so cogent as it once was. Mr Forsyth thinks that the grand jury will often baffle “the attempts of malevolence” by ignoring a malicious and unfounded prosecution, but they may also defeat the ends of justice, and they have done so ere now, by shielding a criminal with whom they have strong political or social sympathies. The qualification of the grand jurymen is that they should be freeholders of the county,—to what amount appears to be uncertain.

2. The Coroner's Jury is undeterminate in number, but the finding must be that of twelve at least of the jurymen. Persons found guilty on this inquest may be put on trial before a petty jury at assizes.

3. Special and Common Juries.— This distinction belongs properly to civil trials. The practice of selecting special jurors to try important cases appears to have sprung up, without legislative enactment, in the procedure of the courts. Forsyth says that the first statutory recognition of it is so late as 3 Geo. II. c. 25, and that in the oldest book of practice in existence (Powell’s Attorney's Academy, 1623) there is no allusion to two classes of jurymen. The Acts, however, which regulate the practice allude to it as well established. The statute now in force (33 & 34 Vict. c. 7) defines the class of persons entitled and liable to serve on special juries thus :—every man whose name shall be on the juror’s book for any county, &c., and who shall be legally entitled to be called an esquire, or shall be a person of higher degree, or a banker or merchant, or who shall occupy a house of a certain rateable value (e.g. i .£100 in a town of 20,000 inhabitants, £50 elsewhere), or a farm of £300, or other premises at £100. A special juryman receives a fee of a guinea for each cause. Either party may obtain a special jury, but must pay the additional expenses created thereby unless the judge certifies that it was a proper case to be so tried. For the common jury any man is qualified and liable to serve who has £10 by the year in land or tenements of freehold, copyhold, or customary tenure; or £20 on lands or tenement held by lease for twenty-one years or longer, or who being a house holder is rated at £30 in Middlesex or £20 in any other county. See 6 Geo. IV. c. 50; and 33 & 34 Vict. c. 77 (the Juries Act). A schedule to the last-cited Act contains a list of the numerous classes of persons exempted from service, which include members of the legislature and judges, ministers of various denominations, and practising lawyers of all grades. These are juries invariably employed in the superior courts. In the county court the jury consists of five.

Formerly aliens were entitled to be tried by a jury de medietate linguae — half being Englishmen and half foreigners, not necessarily of the same country as the accused. This privilege has been abolished by the Naturalization Act.

A jury of matrons is resorted to, in a writ de ventre inspiciendo, or when a female prisoner, condemned to death, pleads pregnancy in stay of execution.

From the beginning parties have been allowed to challenge the jury. In civil and criminal cases a challenge/or cause is allowed; in criminal cases only,...