Jury, a chosen body of men whose duty it is either to judge or determine certain questions of fact submitted to them, or to inquire into the existence of certain alleged facts. Upon the jury a very large proportion of the whole procedure for the trial of actions in England and America rests. Its intrinsic importance has made the inquiries into its early origin and history interesting; and they are the more so, because they are found to be closely interwoven with investigations into the political, legal, and social institutions of many nations. Different writers have come to very different conclusions, perhaps because they began from different points of departure, and viewed their facts under different aspects. In almost all the results thus presented there is some truth; but we apprehend that they have erred in attributing the institution of juries to some one or two only of the many origins from which it has arisen, and the many influences which have combined to give to it its present form in England and in the United States. Its principal source has been found in the of Athens, or in the judices of Rome, or in the compurgators of the Saxons, or in the trial by the vicinage of the Romans, or in the Norwegian Gulathing. We apprehend that it would be, if not impossible, at least so difficult to determine which among all these things may be considered as having contributed most to form the trial by jury, that the inquiry is not worth the time and labor it costs; for it must end in the conclusion that all have contributed, and importantly, to this result. The essence of the trial by jury is the determination of questions arising in actions at law by a select body of persons, who, without holding permanent judicial offices, come from among the people for this purpose, and, after their work is done, return to them. In Asia we find no- thing of this at any time; and nothing of it in history, until the of Athens was regulated if not introduced by Solon. The di-casts were a large body of men, numbering some thousands, who were selected or appointed from among the freemen of Athens, in some way under if not by the archons. From this large body a smaller number was selected, perhaps by lot, for each case, to hear and determine the questions which might arise in that case, under the direction of a presiding archon or other magistrate. Before proceeding to hear any case, they were sworn to discharge their duty faithfully. After hearing the case, they gave their votes by depositing them in urns or vases, from which the presiding magistrate took them and announced the verdict. In this there is much resemblance to the jury of our own day; the principal difference being in the large number who sat in each case, which appears to have been sometimes as many as 500. This body the advocates addressed, beginning their speeches with . (as we see in Demosthenes, AEschines, and Lysias), in the same manner as our advocates say, "Gentlemen of the jury." It cannot be doubted, we think, that the judicial procedure of Rome was, to a great extent, derived from and formed by that of Athens. "We are accustomed to translate the word judex by "judge," but there was no officer or magistrate known to the Romans who discharged precisely the duties which with us belong to the judge; the praetor came nearest to it; but judex would be much better translated by the word juryman. When the plaintiff (actor) came before the praetor or other magistrate having jurisdiction, he made his complaint, and the defendant (reus) answered it. The praetor then referred the case to the judices to determine the facts; usually stating, in this reference, that such or such conclusions of law would follow from such or such conclusions of fact. The number of judices usually sitting is not known, and sometimes even an important case was tried before a single judex; as we know that Cicero delivered his oration Pro Quintio before one judex, assisted by a consilium. The judices generally were aided by jurisconsults who sat with them.
The whole number of persons from whom could be selected the judices of each case was in Rome as in Athens large, amounting to some thousands; but by whom or on what principle it was appointed, or how or by whom the smaller number was appointed for each case, is not certainly known. There was sometimes an agreement of the parties as to the judex or judices, who were sometimes called arbitri, and who then answered to our arbitrators; and there was a method of objecting to judices appointed by lot or otherwise (recusatio judicis), which answered very exactly to our challenges. As we know that, as soon as Rome conquered a province, it introduced at once the provisions and the forms of its own law (its jura et instituta), in part perhaps because the province might be thus most effectually bound to the empire, and in part also because they were always better than those of the conquered nation; and as we know therefore that institutions, which resembled in so many particulars our jury, were in full force in England for more than three centuries, it would seem to be unreasonable to deny them an important influence in creating the trial by jury. But, on the other hand, the Saxons brought into England the trial by compurgators.
Then the party accused, or in later times the party plaintiff or defendant, appeared with his friends, and they swore, he laying his hand on theirs and swearing with them, to the innocence of the accused, or to the claim or defence of the party. Little is certainly known either of the origin or of the extent, in point of time or of country, over which the trial by compurgators prevailed; but it must have had great influence upon the subsequent forms of procedure. If in nothing else, it fixed the number of the traverse jury at 12, that being the common number of compurgators, whence the old mediaeval phrase jurare duodecima manu; and this was a great improvement on the varying and sometimes very large number in Greece and Rome. Besides this, however, recent investigation has shown, among the Norman legal usages, traces of trial by jury, more numerous and more nearly resembling that trial as now conducted, than anything known to have existed among the Anglo-Saxons. Moreover, it is now known that, with much variety of form, modes of trial essentially similar to that by jury prevailed among both the Teutonic and Scandinavian nations, from a very remote antiquity.
We regard it therefore as certain that all these influences contributed to establish this mode of trial in England, and to shape it as we know it to exist there. Indeed, it was not until all of them had had an opportunity of completing their work, that we find what we should now call a jury certainly existing. Glanville represents it, in one of its most important forms and purposes, as introduced in the reign of Henry II.; he calls it "a royal benefit conferred upon the people by the goodness of the sovereign, with the advice of the nobility." So many of the attendant circumstances indicate that it was a Norman institution, bestowed upon his English subjects by a Norman king, that Sir Francis Palgrave has not hesitated to consider our jury trial as derived directly from Norman law. - One mistake in regard to a clause in Magna Charta is so common, and perhaps so important, that it should be corrected. The great charter says that no freeman shall be arrested or imprisoned, or exiled, or otherwise destroyed, nisi per legale judicium parium suorum, vel per legem terrce. This has been held to mean, "unless by lawful trial by jury;" and an argument has been drawn from it against the legality of any conclusive procedure against any person but on the finding of a jury.
But the judicium parium of Magna Charta did not mean a judgment or verdict of a jury. Even in Magna Charta itself we read of juratores; and the phrase veredictum lega-lium hominum, and others by which a jury is indicated, are common in the law language of that day. But the judicium parium was the peculiar and well known feudal process, by which the lord with his vassals sat to try questions of title between others of his vassals. It is quite probable, however, that the alternative phrase, per legem terra, was intended to include trial by jury. - In Greece and Rome, in the Teutonic and Scandinavian nations, and probably among the Normans, the agreement of a majority of a jury, or of the body which represented a jury, was sufficient; but from the earliest times unanimity has been required in an English traverse jury, and also in this country. The origin of this peculiarity is quite unknown. The most plausible conjecture, for which indeed there is some authority, is, that originally there were or might be more than 12 jurymen, but the agreement of that number was required; and when the number of the jury finally settled down at 12 and no more, unanimity became requisite.
There have been, in perhaps all ages, doubts whether the advantages of this rule were sufficient to compensate for the mischiefs which sometimes result from it; but no very strenuous effort has ever been made to change it. In Scotland, however, by statute 22 and 23 Victoria, the verdict of nine or more of the jurors may be received if unanimity is found impossible after three hours' deliberation. - There is, in respect to the evidence on which a jury acts, a circumstance strikingly illustrative of the change which has taken place in the constitution and in the functions of a trial jury. Now, they have nothing to do but to hear and weigh the evidence offered to them in open court; and anything beyond this is a departure from their duty; and if one of their number happens to know anything about the facts of the case, he ought not to communicate it to the others, and they ought not to be influenced by it, unless he is sworn as a witness and examined as a witness; so anxious is the law to keep from the jury all evidence which does not rest upon an oath, and has not been submitted to examination.
It is however certain that, in the beginning of jury trials, and until the 15th century, the jury themselves were the witnesses, and the only witnesses, they being selected to determine the questions of the case because they were supposed to know the facts, and no other witnesses being examined, and no evidence whatever being offered to them. Nor was it until about the middle of the 16th century that there is any trace of any process known to the law for the summoning of witnesses. (See Summers v. Mosely, 2 Crompton and Meeson, p. 485.) - As the jury must not pay any attention to any evidence not lawfully before them, so they must not go beyond the evidence, and inquire into the law, for that is the exclusive province of the court. In civil cases, no one has ever doubted this; that is, no one has ever doubted that in civil cases it was the duty of the court to state the law to the jury, and the duty of the jury to receive and obey the law thus given to them.
But of late a question has arisen in regard to criminal trials, which has assumed, at least in many of the United States, an aspect of much importance. There are those who insist that in all criminal cases the juries shall be judges of the law as well as of the fact; and such is the rule by decision in some states and by statute in some others, and it prevails generally in prosecutions for libel by express constitutional or statutory provisions. - Juries are either grand juries or petit juries. Nearly all that has been said in this article relates only to petit juries, which are sometimes called traverse juries, and sometimes trial juries. A grand jury tries no question, and finds no verdict. The proper authority of the state, usually the attorney for the government, brings before the grand jury a case of supposed crime or wrong, with a bill of indictment, and the evidence on the subject. This they consider ex parte, or without hearing the accused; and if they think that the evidence is sufficient, they approve or "find" the bill, and present the accused to the court. If they do not think it sufficient, they "ignore" the bill (as it is termed), and no indictment is presented.
The usual method of "finding" a bill is for the foreman (whom the jury choose) to write on the back of the bill, " A true bill," with his signature and the date; and when a bill is rejected, the foreman writes upon it: "Ignoramus" with signature and date. Sometimes the government attorney prepares no bill, but brings before them the case and evidence, and prepares a bill only when they direct him to do so. The grand jury are the exclusive judges of the weight and force of the testimony offered before them. The grand jury is generally more numerous than the petit jury. The more usual number is 23; originally it was 24, but as unanimity is not necessary, although at least 12 must agree to an indictment, to avoid the inconvenience of having 12 for and 12 against a bill, one less than 24 is the common number. Besides bills of indictment, and specific offenders, the grand jury may present to the court any public wrongs they think should be brought to its notice, and sometimes exercise a wide liberty in this respect.
None are present with the grand jury during their deliberations but the officer of the government; and it is a part of their oath that they shall keep secret "the commonwealth's counsel, their fellows', and their own." But there is a reasonable limit to this, for it is no uncommon thing for a grand juror to take the witness stand in a trial of a case, and testify as to what some person has said as a witness before the jury. A grand jury constitute a regular body, recognized as such by the law, having what may be called a jurisdiction coextensive with that of the court to which they make presentments. - Jurors, both grand and petit, are returned by the sheriff of each county (or, for the United States courts, by the marshal of each district), in obedience to a writ, called a venire, which commands him to summon to come (ut facias venire, in the old law Latin) to the court at the appointed time the proper number of persons. The authorities of every city and town, or sometimes county, put into a box the names of all persons therein, or a certain proportion thereof, qualified and bound to serve as jurors. Usually these are all persons qualified to vote, with some special exemptions.
From the number so returned the requisite number for grand and petit jurors is drawn by lot, and the persons so selected are then summoned by the sheriff or marshal. The whole list or schedule of a jury is called the "panel." (In the Scotch law, the word "pannel" means the accused, or the party on trial.) The grand jury is "impanelled" when sworn and organized. A petit jury is impanelled when the names are called over, and the first 12 who are present, and are not excused or objected to, are sworn, and set apart as the jury. It is common in most of our courts having much business to impanel two juries; that sitting on the right hand of the court being called " the first jury," and that on the left hand " the second jury." Sometimes, when the urgent pressure of business requires it, a third jury is impanelled. The purpose in impanelling more than one jury is, that while one is charged with a case and is deliberating, another case may be tried before another jury. Upon trials before a jury, the court are the exclusive judges of the admissibility or competency of evidence; but if it be admitted, the jury are the judges of its value.
For about a quarter of a century changes of an important nature have been gradually creeping into the system of jury trial in the United States by statutory modifications. One of these very generally adopted is the trial of cases by fewer than 12 in all courts not of record; usually six, but sometimes a still smaller number. One more important, however, is the trial of all questions of fact as well as of law in all civil cases by the judge without a jury, unless a jury is demanded by one of the parties or specially ordered by the court. Where this change has been introduced it is found that in the large majority of cases the parties are satisfied to submit their disputes to the court. - We may remark that the institution of the grand jury certainly existed, substantially the same or nearly the same as at present, among the Saxons; and it is from this grand jury that some suppose the petit or trial jury to be derived; and doubtless this is in some degree true.