Chapter 21

“In short, it is suggested to us, that the history of human society is that of a development following very slowly one general law, and that the variety of forms of life—of domestic and civil institution—is ascribable mainly to the unequal development of the different sections of mankind.... The first thing to be done is to inform ourselves of the facts relating to the least developed races. To begin with them is to begin with history at the farthest-back point of time to which, except by argument and inference, we can reach. Their condition, as it may to-day be observed, is truly the most ancient condition of man” (Studies in Ancient History, 2nd series, 9, 15).

On this basis we might draw up tables of consecutive stages, of which the simplest may be taken from Post:—

“Four types of organization: the tribal, the territorial, the seignorial, and the social. The first has as its basis marriage and relationship by blood; the second, neighbouring occupation of a district; the third, patronage relations between lord and dependants; the fourth, social intercourse and contractual relations between individual personalities” (Post,Grundriss, i. 14).

This may be supplemented from Friedrichs in regard to initial stages of family organization. He reckons four stages of this kind: promiscuity, loose relations, matriarchal family, patriarchal family, modern, bilateral family (Z. f. vgl. R. wissenschaft). This mode of grouping similar phenomena as a sequence of stages leads to a conception of universal history of a peculiar kind. And as such it has been realized and advocated by Kohler (seee.g.his article in Helmolt’sWorld’s History, Eng. trans. i.). Prompted by this conception several representatives of comparative jurisprudence have found no difficulty to insert such a peculiar institution as group-marriage into the general and obligatory course of legal evolution. It is to be noticed, however, that Kohler himself has entered a distinct protest against McLennan’s and Post’s view that the more rudimentary a people’s culture is, the more archaic it is, and the earlier it has to be placed in the natural sequence of evolution. This would create difficulties in the case of tribes of exceedingly low culture, like the Ceylon Veddahs, who live in monogamous and patriarchal groups. According to Kohler’s view, neither the mere fact of a low standard of culture, nor the fact that a certain legal custom precedes another in some cases in point of time, settles the natural sequence of development. The process of development must be studied in cases when it is sufficiently clear, gaps in other cases have to be supplied accordingly, and the working together of distinct institutions, especially in cases when there is no ethnic connexion has to be especially noticed. These are counsels of perfection, but Kohler’s own example shows sufficiently that it is not easy to follow them to the letter. One thing is, however, clearly indicated by these and similar criticisms; it is, at the least, premature to sketch anything like a course of universal development for legal history. We have grave doubts whether the time will ever come for laying down any single course of that kind. The attempts made hitherto have generally led to overstating the value of certain parts of the evidence and to squeezing special traits into a supposed general course of evolution.

(f) Another group of thinkers is therefore content to systematize and explain the material from the point of view, not of universal history, but ofcorrespondence to economic stages and types. This is, as we have seen, the leading idea in Dargun’s or Hildebrand’s investigations. It is needless to go into the question of the right or wrong of particular suggestions made by these writers. The place assigned to individualism and collectivism may be adequate or not; how far can be settled only by special inquiries. But the general trend of study initiated in this direction is certainly a promising one, if only one consideration of method is well kept in view. Investigators ought to be very chary of laying down certain combinations as the necessary outcome of certain economic situations. Such combinations or consequences certainly exist; pastoral husbandry, the life of scattered hunting groups, the conditions of agriculturists under feudal rule, certainly contain elements which will recur in divers ethnical surroundings. But we must not forget a feature which is constantly before our eyes in real life: namely, that different minds and characters will draw different and perhaps opposite conclusions in exactly similar outward conditions. This may happen in identical or similar geographical environment; let us only think of ancient Greeks and Turks on the Balkan peninsula, or of ancient Greeks and modern Greeks for that matter. But even the samehistorical mediumleaves, as a rule, scope for treatment of legal problems on divers lines. Take systems of succession. They exercise the most potent influence on thestructure and life of society. Undivided succession, whether in the form of primogeniture or in that of junior right, sacrifices equity and natural affection to the economic efficiency of estates. Equal-partition rules, likegavelkindorparage, lead in an exactly opposite direction. And yet both sets of rules coexisted among the agriculturists of feudal England; communities placed in nearly identical historical positions followed one or the other of these rules. The same may be said of types of dwelling and forms of settlement. In other words, it is not enough to start from a given economic condition as if it were bound to regulate with fatalistic precision all the incidents of legal custom and social intercourse. We have to start from actual facts as complex results of many causes, and to try to reduce as much as we can of this material to the action of economic forces in a particular stage or type of development.

(g) The psychological diversities of mankind in dealing with the same or similar problems of food and property, of procreation and marriage, of common defence and relationship, of intercourse and contrast, &c., open another possibility for the grouping of facts and the explanation of their evolution. It may be difficult or impossible to trace the reasons and causes of synthetic combinations in the history of society. That is, we can hardly go beyond noting that certain disconnected features of social life appear together and react on each other. But it is easier and more promising to approach the mass of our material from theanalyticalside, taking hold of certain principles, or rules, or institutions, and tracing them to their natural consequences either through a direct systematization of recorded facts or, when these fail, through logical inferences. Some of the most brilliant and useful work in the historical study of law has been effected on these lines. Mommsen’s theory of Roman magistracy, Jhering’s theory of the struggle for right, Kohler’s view of the evolution of contract, &c., have been evolved by such a process of legal analysis; and, even when such generalizations have to be curtailed or complicated later on, they serve their turn as a powerful means of organizing evidence and suggesting reasonable explanations. The attribute of “reasonableness” has to be reckoned with largely in such cases. Analytical explanations are attractive to students because they substitute logical clearness for irrational accumulation of traits and facts. They do so to a large extent through appeals to the logic and to the reason common to us and to the people we are studying. This deductive element has to be closely watched and tested from the side of a concrete study of the evidence, but it seems destined to play a very prominent part in the comparative history of law, because legal analysis and construction have at all times striven to embody logic and equity in the domain of actual interests and forces. And, as we have seen in our survey of the literature of the subject, recent comparative studies tend to make the share of juridical analysis in given relative surroundings larger and larger. What is so difficult of attainment to single workers—a harmonious appreciation of the combined influences of common origin, reception of foreign custom, recurring psychological combinations, the driving forces of economic culture and of the dialectical process of legal thought, will be achieved, it may be hoped, by the enthusiastic and brotherly exertions of all the workers in the field.

Bibliography.—Of the principal works of reference may be mentioned:Zeitschrift für vergleichende Rechtswissenschaft, edited by Bernhöft, Cohn and Kohler (1878- );Nouvelle revue historique de droit français et étranger, edited by Dareste, Esmein, Appert, Fournier, Tardiff and Prou (1877- ); A. Pictet,Les Origines indo-européennes(i. 1859, ii. 1863); Fustel de Coulanges,La Cité antique(1890); W. E. Hearn,The Aryan Household(1879); R. v. Jhering,Vorgeschichte der Indoeuropäer(1894); B. W. Leist,Graekoitalische Rechtsgeschichte(1884),Alt-arisches Jus Gentium(1889),Alt-arisches Jus Civile(1892-1896); Hruza,Geschichte des griechischen und römischen Familienrechtes(1893); O. Schrader,Urgeschichte und Sprachvergleichung(1890),Reallexikon des indo-germanischen Altertumskunde(1901); B. Delbrück,Die indo-germanischen Verwandtschaftsnamen(1889),Das Mutterrecht bei den Indogermanen; Sir H. S. Maine,Ancient Law, with notes by Sir F. Pollock (1906),Village Communities(1871),Early History of Institutions(1875),Early Law and Custom(1883); M. H. d’Arbois de Jubainville,Études de droit celtique(1895),La Famille celtique(1905); J. J. Bachofen,Das Mutterrecht(1861),Antiquarische Briefe(1880); J. F. McLennan,Studies in Ancient History(1876),Patriarchal Theory(1885),Studies in Ancient History(2nd series, 1896); Giraud Teulon,Origines de la famille et du mariage(1884); L. H. Morgan, “Systems of Consanguinity” in the publications of the Smithsonian Institution, vol. xvii. (1869);Ancient Society(1877); E. B. Tylor,Primitive Culture(1871); Lord Avebury (Sir J. Lubbock),Origin of Civilization(1870); J. Lippert,Kulturgeschichte der Menschheit(1887); W. Robertson Smith,Kinship and Marriage in Arabia(1885); F. Bernhöft,Staat und Recht der römischen Königszeit im Verhältniss zu verwandten Rechten(1882); A. H. Post,Aufgaben einer allgemeinen Rechtswissenschaft(1891),Die Anfänge des Staatsund Rechtslebens(1878),Bausteine einer allgemeinen Rechtsgeschichte auf vergleichend-ethnologischer Basis(1881),Einleitung in das Studium der ethnologischen Jurisprudenz(1886),Grundlagen des Rechts und Grundzüge seiner Entwickelungsgeschichte(1882),Studien zur Entwicklungsgeschichte des Familienrechts(1889),Afrikanische Jurisprudenz(1887),Grundriss der ethnologischen Jurisprudenz(1894); Wilken,Das Matriarchat im alten Arabien(1884); M. M. Kovalevsky,Coutume contemporaine et loi ancienne(1893),Gesetz und Gewohnheit im Kaukasus(1890),Tableau du développement de la famille et de la propriété(1889); Dargun, “Mutterrecht und Raubehe,” in Otto Gierke’sUntersuchungen zur deutschen Staats- und Rechtsgeschichte(1883); R. Hildebrand,Das Problem einer allgemeinen Entwicklungsgeschichte des Rechts und der Sitte(1894),Recht und Sitte auf den verschiedenen wirtschaftlichen Kulturstufen(1896); E. Grosse,Die Formen der Familie und der Wirtschaft(1896); E. A. Westermarck,History of Human Marriage(1894),The Origin and Development of the Moral Ideas(1906); C. N. Starcke,Die primitive Familie(1888); G. Tarde,Les Transformations du droit(2nd ed., 1894); Steinmetz,Ethnologische Studien zur ersten Entwicklung der Strafe(1894); J. Kohler,Das Recht als Kulturerscheinung: Einleitung in die vergleichende Rechtswissenschaft(1885),Shakespeare vor dem Forum der Jurisprudenz(1884), “Das chinesische Strafrecht,”Beitrag zur Universalgeschichte des Strafrechts(1886),Rechtsvergleichende Studien über islamitisches Recht, Recht der Berbern, chinesisches Recht und Recht auf Ceylon(1889),Altindisches Prozessrecht(1892),Zur Urgeschichte der Ehe(1897),Kulturrechte des Alten Amerikas, das Recht der Azteken(1892),Das Negerrecht(1895); Kohler and Peisker,Aus dem babylonischen Rechtsleben(1890),Hammurubi’s Gesetz(1904); A. Lang,The Secret of the Totem(1905); P. J. H. Grierson,The Silent Trade(1903); J. G. Frazer,Lectures on the Early History of the Kingship(1905); R. Dareste,Études d’histoire de droit(1889),Nouvelles études d’histoire de droit(1896); Lambert,La Fonction du droit civil comparé(1903); Fritz Hommel,Semitische Alterthumskunde(Eng. trans.,The Ancient Hebrew Tradition as illustrated by the Monuments, 1897); H. C. Lea,Superstition and Force(1866); A. Hellwig,Das Asylrecht der Naturvölker(Berliner juristische Beiträge, 1893); F. Seebohm,Tribal Custom in Anglo-Saxon Law(1902).

(P. Vi.)

JURJĀNĪ,the name of two Arabic scholars.

1.Abū Bakr ‘Abdu-l-Qāhir ibn ‘Abdur-raḥmān Ul-Jurjānī(d. 1078,) Arabian grammarian, belonged to the Persian school and wrote a famous grammar, theKitāb ul-‘Awāmil ul-Mi’a or Kitāb Mi’at ‘Āmil, which was edited by Erpenius (Leiden, 1617), by Baillie (Calcutta, 1803), and by A. Lockett (Calcutta, 1814). Ten Arabic commentaries on this work exist in MS., also two Turkish. It has been versified five times and translated into Persian. Another of his grammatical works on which several commentaries have been written is theKitāb Jumal fin-Nahw.

For other works see C. Brockelmann’sGesch. der Arabischen Litteratur(1898), i. 288.

2.‘Alī ibn Maḥommed ul-Jurjānī(1339-1414), Arabian encyclopaedic writer, was born near Astarābād and became professor in Shīrāz. When this city was plundered by Tīmūr (1387) he removed to Samarkand, but returned to Shīrāz in 1405, and remained there until his death. Of his thirty-one extant works, many being commentaries on other works, one of the best known is theTa‘rifāt(Definitions), which was edited by G. Flügel (Leipzig, 1845), published also in Constantinople (1837), Cairo (1866, &c.), and St Petersburg (1897).

(G. W. T.)

JURY,in English law, a body of laymen summoned and sworn (jurati) to ascertain, under the guidance of a judge, the truth as to questions of fact raised in legal proceedings whether civil or criminal. The development of the system of trial by jury has been regarded as one of the greatest achievements of English jurisprudence; it has even been said that the ultimate aim of the English constitution is “to get twelve good men into a box.”1In modern times the English system of trial by juryhas been adopted in many countries in which jury trial was not native or had been strangled or imperfectly developed under local conditions.

The origin of the system in England has been much investigated by lawyers and historians. The result of these investigations is a fairly general agreement that the germ of jury trial is to be found in the Frankish inquest (recognitioorinquisitio) transplanted into England by the Norman kings. The essence of this inquest was the summoning of a body of neighbours by a public officer to give answer upon oath (recognoscere veritatem) on some question of fact or law (jus), or of mixed fact and law. At the outset the object of the inquiry was usually to obtain information for the king,e.g.to ascertain facts needed for assessing taxation. Indeed Domesday Book appears to be made up by recording the answers of inquests.

The origin of juries is very fully discussed in W. Forsyth’sHistory of Trial by Jury(1852), and the various theories advanced are more concisely stated in W. Stubbs’sConstitutional History(vol. i.) and in E. A. Freeman’sNorman Conquest(vol. v.). Until the modern examination of historical documents proved the contrary, the jury system, like all other institutions, was popularly regarded as the work of a single legislator, and in England it has been usually assigned to Alfred the Great. This supposition is without historical foundation, nor is it correct to regard the jury as “copied from this or that kindred institution to be found in this or that GermanorScandinavian land,” or brought over ready made by Hengist or by William.2“Many writers of authority,” says 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 mythical 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 came 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 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. Freeman points out 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.3The 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 thefrith-borh(frank-pledge), in every detail of the action of the popular courts before the conquest. Admitting with Stubbs that the Norman recognition was the instrument which the lawyers in England ultimately shaped into trial by jury, Freeman maintains none the less that the latter is distinctively English. 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.” The conclusions of Sir F. Pollock and F.W. Maitland, expressed in theirHistory of English Law, and based on a closer study, are to the same effect.

This inquest then was a royal institution and not a survival from Anglo-Saxon law or popular custom, under which compurgation and the ordeal were the accepted modes of trying issues of fact.

The inquest by recognition, formerly an inquest of office,i.e.to ascertain facts in the interests of the crown or the exchequer, was gradually allowed between subjects as a mode of settling disputes of fact. This extension began with the assize of novel disseisin, whereby the king protected by royal writ and inquest of neighbours every seisin of a freehold. This was followed by the grand assize, applicable to questions affecting freehold or status. A defendant in such an action was enabled by an enactment of Henry II. to decline trial by combat and choose trial by assize, which was conducted as follows. The sheriff summoned four knights of the neighbourhood, who being sworn chose the twelve lawful knights most cognisant of the facts, to 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 knights were added until the twelve were agreed. This was called afforcing the assize. At this time 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 (1166) for cases of dispute as to lay or clerical tenure. See Forsyth, p. 131; Stubbs, i. 617.

This procedure by the assize was confined to real actions, and while it preceded, it is not identical with the modern jury trial in civil cases, which was gradually introduced by consent of the parties and on pressure from the judges. Jury trial proper differs from the grand and petty assizes in that the assizes were summoned at the same time as the defendant to answer a question formulated in the writ; whereas in the ordinary jury trial no order for a jury could be made till the parties by their pleadings had come to an issue of fact and had put themselves on the country,posuerunt se super patriam(Pollock and Maitland, i. 119-128; ii. 601, 615, 621).

The Grand Jury.—In Anglo-Saxon times there was an institution analogous to the grand jury in criminal cases, viz. the twelve senior thegns, who, according to an ordinance of Æthelred 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 ordeal. Whether this is the actual origin of the grand jury or not, the assizes of Clarendon (1166) and Northampton (1176) establish the criminal jury on a definite basis.

In the laws of Edward the Confessor and the earlier Anglo-Saxon kings are found many traces of a public duty to bringoffenders to justice, by hue and cry, or by action of thefrith-borh, township, tithing or hundred. By the assize of Clarendon it is directed that inquiry be made in each county and in each hundred by twelve lawful (legaliores) men of the hundred, and by four lawful men from each of the four vills nearest to the scene of the alleged crime, on oath to tell the truth if in the hundred or vill there is any man accused (rettatus aut publicatus) as a robber or murderer or thief, or receiver of such. The assize of Northampton added forgery of coin or charters (falsonaria) and arson. The inquiry is to be held by the justices in eyre, and by the sheriffs in their county courts. On a finding on the oath aforesaid, the accused was to be taken and to go to the ordeal. 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 wapentake, or, if knights be wanting, free and legal men, so that the twelve may answer for all 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.” The process thus described is now regarded as an employment of the Frankish inquest for the collection offama publica. It was alternative to the rights of a private accuser by appeal, and the inquest were not exactly either accusers or witnesses, but gave voice to public repute as to the criminality of the persons whom they presented. From this form of inquest has developed the grand jury of presentment or accusation, and the coroner’s inquest, which works partly as a grand jury as to homicide cases, and partly as an inquest of office as to treasure trove, &c.

The number of the grand jury is fixed by usage at not less than twelve nor more than twenty-three jurors. Unanimity is not required, but twelve must concur in the presentment or indictment.4This jury retains so much of its ancient character that it may present of its own knowledge or information, and is not tied down by rules of evidence. After a general charge by the judge as to the bills of indictment on the file of the court, the grand jury considers the bills in private and hears upon oath in the grand jury chamber some or all the witnesses called in support of an indictment whose names are endorsed upon the bill. It does not as a rule hear counsel or solicitors for the prosecution, nor does it see or hear the accused or his witnesses, and it is not concerned with the nature of the defence, its functions being to ascertain whether there is a prima facie case against the accused justifying his trial. If it thinks that there is such a case, the indictment is returned into court as a true bill; if it thinks that there is not, the bill is ignored and returned into court torn up or marked “no bill,” or “ignoramus.” Inasmuch as no man can be put on trial for treason or felony, and few are tried for misdemeanour, without the intervention of the grand jury, the latter has a kind of veto with respect to criminal prosecutions. The grand jurors are described in the indictment as “the jurors for our lord the king.” As such prosecutions in respect of indictable offences are now in almost all cases begun by a full preliminary inquiry before justices, and inasmuch as cases rarely come before a grand jury until after committal of the accused for trial, the present 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 intervention of the grand jury is in most cases superfluous; and even when the committing justices are not lawyers, it is now a common opinion that their views as to the existence of a case to be submitted to a jury for trial should not be over-ridden by a lay tribunal sitting in private, and in this opinion many grand jurors concur. But the abolition of the grand jury would involve great changes in criminal procedure for which parliament seems to have no appetite. Forsyth thinks that the grand jury will often baffle “the attempts of malevolence” by ignoring a malicious and unfounded prosecution; but it may also defeat the ends of justice by shielding a criminal with whom it has 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—and they are summoned by the sheriff, or failing him by the coroner.

Thecoroner’s jurymust by statute (1887) consist of not more than twenty-three nor less than twelve jurors. It is summoned by the coroner to hold an inquestsuper visum corporisin cases of sudden or violent death, and of death in prisons or lunatic asylums, and to deal with treasure trove. The qualification of the coroner’s jurors does not depend on the Juries Acts 1825 and 1870, and in practice they are drawn from householders in the immediate vicinity of the place where the inquest is held. Unanimity is not required of a coroner’s jury; but twelve must concur in the verdict. If it charges anyone with murder or manslaughter, it is duly recorded and transmitted to a court of assize, and has the same effect as an indictment by a grand jury,i.e.it is accusatory only and is not conclusive, and is traversable, and the issue of guilt or innocence is tried by a petty jury.

The Petty Jury.—The ordeal by water or fire was used as the final test of guilt or innocence until its abolition by decree of the Lateran council (1219). On its abolition it became necessary to devise a new mode of determining guilt as distinguished from ill fame as charged by the grand jury. So early as 1221 accused persons had begun to put themselves on the country, or to pay to have a verdict for “good or ill”; and the trial seems to have been by calling for the opinions of the twelve men and the four townships, who may have been regarded as a second body of witnesses who could traverse the opinion of the hundred jury. (See Pollock and Maitland, ii. 646.) The reference tojudicium pariumin Magna Carta is usually taken to refer to the jury, but it is clear that what is now known as the petty jury was not then developed in its present form. “The history of that institution is still in manuscript,” says Maitland.

It is not at all clear that at the outset the trial by the country (in pais; in patria) was before another and different jury. The earliest instances look as if the twelve men and the four vills were thepatriaand had to agree. But by the time of Edward I. the accused seems to have been allowed to call in a second jury. A person accused by the inquest of the hundred was allowed to have the truth of the charge tried by another and different jury.5“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 country for trial”—the exceptions being murder by secret poisoning, and certain circumstances presumed by the law to be conclusive of guilt.6But the separation must have been complete by 1352, in which year it was enacted “that no indictor shall be put in inquests upon deliverance of the indictees of felonies or trespass if he be challenged for that same cause by the indictee.”

The jurors, whatever their origin, differed from the Saxon doomsmen and the jurats of the Channel Islands in that they adjudged nothing; and from compurgators or oath-helpers inthat they were not witnesses called by a litigant to support his case (Pollock and Maitland, i. 118). Once established, the jury of trial whether of actions or indictments developed on the same lines. But at the outset this jury differed in one material respect from the modern trial jury. The ancient trial jury certify to the truth from their knowledge of the facts, however acquired. In other words, they resemble witnesses or collectors of local evidence or gossip rather than jurors. The complete withdrawal of the witness 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 trialper 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 III., although the witnesses are spoken of “as joined to the assize,” they are distinguished from the jurors. The trialper sectamwas 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 thesectatelling 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 to be 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 theattaint, by which penalties might be imposed on them for delivering a false verdict in a civil case. They could suggest that the verdict was according to the fact, though not according to the evidence.

In England the trial jury (also called petty jury or traverse jury) consists of twelve jurors, except in the county court, where the number is eight. In civil but not in criminal cases the trial may by consent be by fewer than twelve jurors, and the verdict may by consent be that of the majority. The rule requiring a unanimous verdict has been variously explained. Forsyth 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 old notion seems to have been that to justify an accusation, or to find a fact, twelve sworn men must be agreed. The afforcing of the jury, already 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 large number to the unanimous twelve constituting the whole jury was a natural step, which, however, was not taken without hesitation. In some old cases 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 while considering their verdict were not allowed a fire nor any refreshment, and it is said in some of the old books that, if they failed to agree, they could be put in a cart and drawn after the justices to the border of the county, and then upset into a ditch. These rude modes of enforcing unanimity has been softened in later practice, but in criminal cases the rule of unanimity is still absolutely fixed.

In civil cases and in trials for misdemeanour, the jurors are allowed to separate during adjournments and to return to their homes; in trials for treason, treason-felony and murder, the jurors, once sworn, must not separate until discharged. But by an act of 1897 jurors on trials for other felonies may be allowed by the court to separate in the same way as on trials for misdemeanour.

These rules do not apply to a jury which has retired to consider its verdict. During the period of retirement it is under the keeping of an officer of the court.

At common law aliens were entitled to be tried by a juryde medietate linguae—half Englishmen, half foreigners, not necessarily compatriots of the accused. This privilege was abolished by the Naturalization Act 1870; but by the Juries Act 1870 aliens who have been domiciled in England or Wales for ten years or upwards, if in other respects duly qualified, are liable to jury service as if they were natural-born subjects (s. 8).

A jury of matrons is occasionally summoned, viz. on a writde ventre inspiciendo, or where a female condemned to death pleads pregnancy in stay of execution.

The jurors are selected from the inhabitants of the county, borough or other area for which the court to which they are summoned is commissioned to act. In criminal cases, owing to the rules as to venue and that crime is to be tried in the neighbourhood where it is committed, the mode of selection involves a certain amount of independent local knowledge on the part of the jurors. Where local prejudice has been aroused for or against the accused, which is likely to affect the chance of a fair trial, the proceedings may be removed to another jurisdiction, and there are a good many offences in which by legislation the accused may be tried where he is caught, irrespective of the place where he is alleged to have broken the law. As regards civil cases, a distinction was at an early date drawn between local actions which must be tried in the district in which they originated, and transitory actions which could be tried in any county. These distinctions are now of no importance, as the place of trial of a civil action is decided as a matter of procedure and convenience, and regard is not necessarily paid to the place at which a wrong was done or a contract broken.

The qualifications for, and exemptions from, service as a petty juror are in the main contained in the Juries Acts 1825 and 1870, though a number of further exemptions are added by scattered enactments. The exemptions include members of the legislature and judges, ministers of various denominations, and practising barristers and solicitors, registered medical practitioners and dentists, and officers and soldiers of the regular army. Persons over sixty are exempt but not disqualified. Lists of the jurors are prepared by the overseers in rural parishes and by the town clerks in boroughs, and are submitted to justices for revision. When jurors are required for a civil or criminal trial they are summoned by the sheriff or, if he cannot act, by the coroner.

Special and Common Juries.—For the purpose of civil trials in the superior courts there are two lists of jurors, special andcommon. The practice of selecting special jurors to try important civil 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’sAttourney’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 Juries Act 1870 (33 & 34 Vict. c. 77) defines the class of persons entitled and liable to serve on special juries thus: Every man whose name shall be on the jurors’ 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.£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 an order for 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 householder is rated at £30 in the counties of London and Middlesex, or £20 in any other county. A special jury cannot be ordered in cases of treason or felony, and may be ordered in cases of misdemeanour only when the trial is in the king’s bench division of the High Court, or the civil side at assizes.

Challenge.—It has always been permissible for the parties to challenge the jurors summoned to consider indictments or to try cases. Both in civil and criminal cases a challenge “for cause” is allowed; in criminal cases a peremptory challenge is also allowed. Challenge “for cause” may be either to thearray,i.e.to the whole number of jurors returned, or to thepolls,i.e.to the jurors individually. A challenge to the array is either aprincipalchallenge (on the ground that the sheriff is a party to the cause, or related to one of the parties), or a challenge forfavour(on the ground of circumstances implying “at least a probability of bias or favour in the sheriff”). A challenge to the polls is an exception to one or more jurymen on either of the following grounds: (1)propter honoris respectum, as when a lord of parliament is summoned; (2)propter defectum, for want of qualification; (3)propter affectum, on suspicion of bias or partiality; and (4)propter delictum, when the juror has been convicted of an infamous offence. The challengepropter affectumis, like the challenge to the array, either principal challenge or “to the favour.” In England as a general rule the juror may be interrogated to show want of qualification; but in other cases the person making the challenge must prove it without questioning the juror, and the courts do not allow the protracted examination on thevoir direwhich precedes everycause célèbrein the United States. On indictments for treason the accused has a right peremptorily to challenge thirty-five of the jurors on the panel; in cases of felony the number is limited to twenty, and in cases of misdemeanour there is no right of peremptory challenge. The Crown has not now the right of peremptory challenge and may challenge only for cause certain (Juries Act 1825, s. 29). In the case of felony, on the first call of the list jurors objected to by the Crown are asked to stand by, and the cause of challenge need not be assigned by the Crown until the whole list has been perused or gone through, or unless there remain no longer twelve jurors left to try the case, exclusive of those challenged. This arrangement practically amounts to giving the Crown the benefit of a peremptory challenge.

Function of Jury.—The jurors were originally the mouthpiece of local opinion on the questions submitted to them, or witnesses to fact as to such questions. They have now become the judges of fact upon the evidence laid before them. Their province is strictly limited to questions of fact, and within that province they are still further restricted to matters proved by evidence in the course of the trial and in theory must not act upon their own personal knowledge and observation except so far as it proceeds from what is called a “view” of the subject matter of the litigation. Indeed it is now well established that if a juror is acquainted with facts material to the case, he should inform the court so that he may be dismissed from the jury and called as a witness; and Lord Ellenborough ruled that a judge would misdirect the jury if he told them that they might reject the evidence and go by their own knowledge. The olddecantatumassigns to judge and jury their own independent functions:Ad quaestionem legis respondent judices: ad quaestionem facti juratores(Plowden, 114). But the independence of the jurors as to matters of fact was from an early time not absolute. In certain civil cases a litigant dissatisfied by the verdict could adopt the procedure by attaint, and if the attaint jury of twenty-four found that the first jury had given a false verdict, they were fined and suffered the villainous judgment. Attaints fell into disuse on the introduction about 1665 of the practice of granting new trials when the jury found against the weight of the evidence, or upon a wrong direction as to the law of the case.

In criminal cases the courts attempted to control the verdicts by fining the jurors for returning a verdictcontra plenam et manifestam evidentiam. But this practice was declared illegal in Bushell’s case (1670); and so far as criminal cases are concerned the independence of the jury as sole judges of fact is almost absolute. If they acquit, their action cannot be reviewed nor punished, except on proof of wilful and corrupt consent to “embracery” (Juries Act 1825, s. 61). If they convict no new trial can be ordered except in the rare instances of misdemeanours tried as civil cases in the High Court. In trials for various forms of libel during the 18th century, the judges restricted the powers of juries by ruling that their function was limited to finding whether the libel had in fact been published, and that it was for the court to decide whether the words published constituted an offence.7By Fox’s Libel Act 1792 the jurors in such cases were expressly empowered to bring in a general verdict of libel or no libel,i.e.to deal with the whole question of the meaning and extent of the incriminated publication. In other words, they were given the same independence in cases of libel as in other criminal cases. This independence has in times of public excitement operated as a kind of local option against the existing law and as an aid to procuring its amendment. Juries in Ireland in agrarian cases often acquit in the teeth of the evidence. In England the independence of the jury in criminal trials is to some extent menaced by the provisions of the Criminal Appeal Act 1907.

While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. The rules as to admissibility of evidence, largely based upon scholastic logic, sometimes difficult to apply, and almost unknown in continental jurisprudence, coupled with the right of an English judge to sum up the evidence (denied to French judges) and to express his own opinion as to its value (denied to American judges), fetter to some extent the independence or limit the chances of error of the jury.

“The whole theory of the jurisdiction of the courts to interfere with the verdict of the constitutional tribunal is that the court is satisfied that the jury have not acted reasonably upon the evidence but have been misled by prejudice or passion” (Wattv.Watt(1905), App. Cas. 118, per Lord Halsbury). In civil cases the verdict may be challenged on the ground that it is against the evidence or against the weight of the evidence, or unsupported by any evidence. It is said to be against the evidence when the jury have completely misapprehended the facts proved and have drawn an inference so wrong as to be in substance perverse. The dissatisfaction of the trial judge with the verdict is a potent but not conclusive element in determining as to the perversity of a verdict, because of his special opportunity of appreciating theevidence and the demeanour of the witnesses. But his opinion is less regarded now that new trials are granted by the court of appeal than under the old system when the new trial was sought in the court of which he was a member.

The appellate court will not upset a verdict when there is substantial and conflicting evidence before the jury. In such cases it is for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury. Under modern procedure, in order to avoid the risk of a new trial, it is not uncommon to take the verdict of a jury on the hypothesis that there was evidence for their consideration, and to leave the unsuccessful party to apply for judgment notwithstanding the verdict. The question whether there was any evidence proper to be submitted to the jury arises oftenest in cases involving an imputation of negligence—e.g.in an action of damages against a railway company for injuries sustained in a collision. Juries are somewhat ready to infer negligence, and the court has to say whether, on the facts proved, there was any evidence of negligence by the defendant. This is by no means the same thing as saying whether, in the opinion of the court, there was negligence. The court may be of opinion that on the facts there was none, yet the facts themselves may be of such a nature as to be evidence of negligence to go before a jury. When the facts proved are such that a reasonable man might have come to the conclusion that there was negligence, then, although the court would not have come to the same conclusion, it must admit that there is evidence to go before the jury. This statement indicates existing practice but scarcely determines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is relevant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connexion as cause and effect (seeEvidence). As regards damages the court has always had wide powers, as damages are often a question of law. But when the amount of the damages awarded by a jury is challenged as excessive or inadequate, the appellate court, if it considers the amount unreasonably large or unreasonably small, must order a new trial unless both parties consent to a reduction or increase of the damages to a figure fixed by the court; seeWattv.Watt(1905), App. Cas. 115.

Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree.

There is much force in the arguments of Bentham and others against the need of unanimity—the application of pressure to force conviction on the minds of jurors, the indifference to veracity which the concurrence of unconvinced minds must produce in the public mind, the probability that jurors will disagree and trials be rendered abortive, and the absence of any reasonable security in the unanimous verdict that would not exist in the verdict of a majority. All this is undeniably true, but disagreements are happily not frequent, and whatever may happen in the jury room no compulsion is now used by the court to induce agreement.

But, apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury system deserves all the encomiums which have been passed upon it. In criminal cases, especially of the graver kind, it is perhaps the best tribunal that could be devised. There the element of moral doubt enters largely into the consideration of the case, and that can best be measured by a popular tribunal. Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. But in civil causes, where the issue must be determined one way or the other on the balance of probabilities, a single judge would probably be a better tribunal than the present combination of judge and jury. Even if it be assumed that he would on the whole come to the same conclusion as a jury deliberating under his directions, he would come to it more quickly. Time would be saved in taking evidence, summing up would be unnecessary, and the addresses of counsel would inevitably be shortened and concentrated on the real points at issue. Modern legislation and practice in England have very much reduced the use of the jury both in civil and criminal cases.

In the county courts trial by jury is the exception and not the rule. In the court of chancery and the admiralty court it was never used. Under the Judicature Acts many cases which in the courts of common law would have been tried with a jury are now tried before a judge alone, or (rarely) with assessors, or before an official referee. Indeed cynics say that a jury is insisted on chiefly in cases when a jury, from prejudice or other causes, is likely to be more favourable than a judge alone.

In criminal cases, by reason of the enormous number of offences punishable on summary conviction and of the provisions made for trying certain indictable offences summarily if the offender is young or elects for summary trial, juries are less called on in proportion to the number of offences committed than was the practice in former years.

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