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 (see e.g. his article in Helmolt's _World'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 of _correspondence 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 same
_historical medium_ leaves, as a rule, scope for treatment of legal
problems on divers lines. Take systems of succession. They exercise the
most potent influence on the structure 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, like _gavelkind_ or
_parage_, 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 the
_analytical_ side, 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's
_Untersuchungen 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.)
JURJANI, the name of two Arabic scholars.
1. ABU BAKR 'ABDU-L-QAHIR IBN 'ABDUR-RAHMAN UL-JURJANI (d. 1078,)
Arabian grammarian, belonged to the Persian school and wrote a famous
grammar, the _Kitab ul-'Awamil ul-Mi'a or Kitab Mi'at 'Amil_, 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 the _Kitab Jumal fin-Nahw_.
For other works see C. Brockelmann's _Gesch. der Arabischen
Litteratur_ (1898), i. 288.
2. 'ALI IBN MAHOMMED UL-JURJANI (1339-1414), Arabian encyclopaedic
writer, was born near Astarabad and became professor in Shiraz. When
this city was plundered by Timur (1387) he removed to Samarkand, but
returned to Shiraz 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 the _Ta'rifat_ (_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."[1] In modern times the English system of trial by
jury has 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 (_recognitio_ or _inquisitio_) 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's _History of
Trial by Jury_ (1852), and the various theories advanced are more
concisely stated in W. Stubbs's _Constitutional History_ (vol. i.) and
in E. A. Freeman's _Norman 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 German or Scandinavian 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.[3] 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 _frith-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 their _History 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 bring offenders to justice,
by hue and cry, or by action of the _frith-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
of _fama 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.[4] This 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.
The _coroner's jury_ must by statute (1887) consist of not more than
twenty-three nor less than twelve jurors. It is summoned by the coroner
to hold an inquest _super visum corporis_ in 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 to _judicium
parium_ in 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 the _patria_
and 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.[6] But 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 in that 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
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 III., 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 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 the _attaint_, 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 jury _de 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 writ _de 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 and common. 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's _Attourney'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 the _array_, i.e. to the whole number of jurors
returned, or to the _polls_, i.e. to the jurors individually. A
challenge to the array is either a _principal_ challenge (on the ground
that the sheriff is a party to the cause, or related to one of the
parties), or a challenge for _favour_ (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 challenge _propter affectum_ is,
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 the _voir dire_ which precedes
every _cause célèbre_ in 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 old _decantatum_ assigns 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 verdict _contra 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.[7] By 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" (_Watt_ v. _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 the
evidence 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 (see EVIDENCE). 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; see _Watt_ v. _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.
_Scotland._--According to the _Regiam Majestatem_, which is identical
with the treatise of Glanvill on the law of England (but whether the
original or only a copy of that work is disputed), trial by jury
existed in Scotland for civil and criminal cases from as early a date
as in England, and there is reason to believe that at all events the
system became established at a very early date. Its history was very
different from that of the English jury system. There was no grand
jury under Scots law, but it was introduced in 1708 for the purpose of
high treason (7 Anne c. 21). For the trial of criminal cases the petty
jury is represented by the criminal "assize." This jury has always
consisted of fifteen persons and the jurors are chosen by ballot by
the clerk of the court from the list containing the names of the
special and common jurors, five from the special, ten from the common.
Prosecutor and accused each have five peremptory challenges, of which
two only may be directed against the special jurors; but there is no
limit to challenges for cause. The jury is not secluded during the
trial except in capital cases or on special order of the court made
_proprio motu_ or on the application of prosecutor or accused. The
verdict need not be unanimous, nor is enclosure a necessary
preliminary to a majority verdict. It is returned viva voce by the
chancellor or foreman, and entered on the record by the clerk of the
court, and the entry read to the jury. Besides the verdicts of
"guilty" and "not guilty," a Scots jury may return a verdict of "not
proven," which has legally the same effect as not guilty in releasing
the accused from further proceedings on the particular charge, but
inflicts on him the stigma of moral guilt.
Jury trial in civil cases was at one time in general if not prevailing
use, but was gradually superseded for most purposes on the institution
of the Court of Session (1 Mackay, _Ct. Sess. Pr._ 33). In this, as in
many other matters, Scots law and procedure tend to follow continental
rather than insular models. The civil jury was reintroduced in 1815
(55 Geo. III. c. 42), mainly on account of the difficulties
experienced by the House of Lords in dealing with questions of fact
raised on Scottish appeals. At the outset a special court was
instituted in the nature of a judicial commission to ascertain by
means of a jury facts deemed relevant to the issues in a cause and
sent for such determination at the discretion of the court in which
the cause was pending. The process was analogous to the sending of an
issue out of chancery for trial in a superior court of common law, or
in a court of assize. In 1830 the jury court ceased to exist as a
separate tribunal and was merged in the Court of Session. By
legislation of 1819 and 1823 certain classes of cases were indicated
as appropriate to be tried by a jury; but in 1850 the cases so to be
tried were limited to actions for defamation and nuisance, or properly
and in substance actions for damages, and under an act of 1866 even in
these cases the jury may be dispensed with by consent of parties.
The civil jury consists as in England of twelve jurors chosen by
ballot from the names on the list of those summoned. There is a right
of peremptory challenge limited to four, and also a right to challenge
for cause. Unanimity was at first but is not now required. The jury if
unanimous may return a verdict immediately on the close of the case.
If they are not unanimous they are enclosed and may at any time not
less than three hours after being enclosed return a verdict by a bare
majority. If after six hours they do not agree by the requisite
majority, i.e. are equally divided, they must be discharged. It was
stated by Commissioner Adam, under whom the Scots civil jury was
originated, that in twenty years he knew of only one case in which the
jury disagreed. Jury trial in civil cases in Scotland has not
flourished or given general satisfaction, and is resorted to only in a
small proportion of cases. This is partly due to its being
transplanted from England.
_Ireland._--The jury laws of Ireland do not differ in substance from
those of England. The qualifications of jurors are regulated by
O'Hagan's Acts 1871 and 1872, and the Juries Acts 1878 and 1894. In
criminal cases much freer use is made than in England of the rights of
the accused to challenge, and of the Crown to order jurors to stand
by, and what is called "jury-packing" seems to be the object of both
sides when some political or agrarian issue is involved in the trial.
Until the passing of the Irish Local Government Act 1898, the grand
jury, besides its functions as a jury of accusation, had large duties
with respect to local government which are now transferred to the
county councils and other elective bodies.
_British Empire._--In most parts of the British Empire the jury system
is in force as part of the original law of the colonists or under the
colonial charters of justice or by local legislation. The grand jury
is not in use in India; was introduced but later abolished in the Cape
Colony; and in Australia has been for most purposes superseded by the
public prosecutor. The ordinary trial jury for criminal cases is
twelve, but in India may be nine, seven, five or three, according to
certain provisions of the Criminal Procedure Code 1898. In countries
where the British Crown has foreign jurisdiction the jury for criminal
trials has in some cases been fixed at a less number than twelve and
the right of the Crown to fix the number is established; see _ex p.
Carew_, 1897, A.C. 719. In civil cases the number of the jury is
reduced in some colonies, e.g. to seven in Tasmania and Trinidad.
_European Countries._--In France there is no civil jury. In criminal
cases the place of the grand jury is taken by the _chambre des mises
en accusation_, and the more serious crimes are tried before a jury of
twelve which finds its verdict by a majority, the exact number of
which may not be disclosed. In Belgium, Spain, Italy and Germany,
certain classes of crime are tried with the aid of a jury.
_United States._--The English jury system was part of the law of the
American colonies before the declaration of independence; and grand
jury, coroner's jury and petty jury continue in full use in the United
States. Under the Federal Constitution (Article iii.) there is a right
to trial by jury in all criminal cases (except on impeachment) and in
all civil actions at common law in which the subject matter exceeds
$20 in value (amendments vi. and vii.). The trial jury must be of
twelve and its verdict must be unanimous; see Cooley, _Constitutional
Limitations_ (6th ed.), 389. The respective provinces of judge and
jury have been much discussed and there has been a disposition to
declare the jury supreme as to law as well as fact. The whole subject
is fully treated by reference to English and American authorities, and
the conflicting views are stated in _Sparf_ v. _United States_, 1895,
156 U.S. 61. The view of the majority of the court in that case was
that it is the duty of the jury in a criminal case to receive the law
from the court and to apply it as laid down by the court, subject to
the condition that in giving a general verdict the jury may
incidentally determine both law and fact as compounded in the issues
submitted to them in the particular case. The power to give a general
verdict renders the duty one of imperfect obligation and enables the
jury to take its own view of the terms and merits of the law involved.
The extent to which the jury system is in force in the states of the
union depends on the constitution and legislation of each state. In
some the use of juries in civil and even in criminal cases is reduced
or made subject to the election of the accused. In others unanimous
verdicts are not required, while the constitutions of others require
the unanimous verdict of the common law dozen. (W. F. C.)