Traces of the trial by jury, in the form in which it existed for several centuries after the Conquest, are more distinctly discernible in the ancient customs of Nor mandy than in the few and scanty frag ments of Anglo-Saxon laws. The trial by twelve compurgators, which was of canon ical origin, and was known to the Anglo Saxons and also to many foreign nations, resembled the trial by jury only in the number of persons sworn; and no con clusion can be drawn from this circum stance, as twelve was not only the com mon number throughout Europe for canonical and other purgations, but was the favourite number in every branch of the polity and jurisprudence of the Gothic nations. (Spelman's Gloss., tit. Jurata ; also Edinburgh Review, vol. road. p. 115.) For this reason Mr. Hal lam justly observes (Middle Ages, voL p. 401) that in searching for the origin of trial by jury, " we cannot rely for a mo ment upon any analogy which the mere number affords." Besides this, the trial by compurgators under the name of Wager of Law continued to be the law of England until it was abolished, in 1833, by 3 & 4 Wm. IV. C. 42, § 13, and is treated by all writers and noticed in ju dicial records ever since the Conquest as a totally different institution from the trial by jury. The trial per sectatores or per pares in the county court, which has sometimes been confounded with the trial by jury, was a different tribunal. The sectatores or pares were, together with the sheriff or other president, judges of the court,—as are the suitors (sectatores) in the county courts at present ; and it appears to have been the common course with the Gothic nations that twelve as sessors should be present with the king or judge to decide judicial controversies. (Du Cange, Gloss., ad vocem Pares.) The pares curia resembled permanent assessors of tha court, like the scabini mentioned in the early laws of France and Italy, much more nearly than sworn jurors indiscriminately selected, and per forming a subordinate part to the judge. On the other hand, the incidents of the mode of trial prevalent in Normandy be fore the Conquest correspond; in a strik ing manner with those of our trial by jury as it existed for centuries afterwards. In Normandy offenders were convicted or absolved by an inquest of good and law ful men summoned from the neighbour hood where the offence was supposed to have been committed. The law required that those were to be selected to serve on such inquest who were best informed of the truth of the matter ; and friends, ene mies, and near relatives of the accused were to be excluded. Also in the Norman Writ of Right, those were to be sworn as recognitors who were born and had even dwelt in the neighbourhood where the land in question lay, in order that it might be believed that they knew of the truth of the matter and would speak the truth respecting it. (Grand Coustumier, cap. 68, 69, 103.) These incidents, though unlike our present mode of trial (which has entirely altered its character -within the last four centuries), are nearly identical with the trial by jury as it is described first by Glanville and after wards by Bracton, and correspond almost verbally with the form of the jury pro cess, which has continued the same from very early times to the present day ; by which the sheriff is commanded to re turn " good and lawful men of the neigh bourhood, by whom the truth of the mat ter may be better known, and who are not akin to either party, to recognize upon their oaths," &c. On the other hand (as Madox remarks, in his History of the Exchequer, p. 122), " if we compare the laws of the Anglo-Saxon kings with the forms of law process collected by Glan ville, they are as different from one an other as the laws of two several nations." Though there are some traces of the trial by jury in the four reigns which im mediately succeeded the Norman Con quest, it was not till a century afterwards, in the reign of Henry IL, that this insti tution became fully established and was reduced to a regular system. Its intro duction into frequent use at this period was probably owing to the law or ordi nance for the trial by assize in pleas of land or real actions, made by Henry IL This law has not come down to our times, but it is fully described by Glanville (lib. ii. cap. 7), and the greater part of the treatise of that writer is occupied by an account of the trial by twelve men which he warmly eulogises and represents as having been introduced in opposition to the unsatisfactory mode of trial by battle or duel. In the reign of Henry II. it appears also that a jury was sometimes used in matters of a criminal nature—the proceeding in such cases being noticed as an inquiry per eel vicineti, or per juramentum legalism hominum. Thus in the 'Constitutions of Clarendon,' enacted in 1164, it is directed that "if no person appeared to accuse an offender before the archdeacon, the sheriff should, if requested to do so by the bishop, cause twelve lawful men of the neighbourhood or of the township to be sworn, who might declare the truth according to their conscience." These however were pro bably accusatory juries, similar to our grand inquests, and not juries employed for the actual trial or " deliverance" of criminals, which do not seem to have been commonly used until a later period.
The law of Henry II. introduced the trial by assize or jury in real actions as a mode of deciding facts which the subject might claim as a matter of right. Glan ville calls it "a certain royal benefit con ferred upon the people by the clemency of the sovereign with the advice of the nobility." Accordingly we find in the Rotuli Curie Regis in the time of Rich ard I. and John, many instances of trials by jury being claimed by parties, though it appears from these curious records that at this time the trial by battle was still in frequent use. In the reign of John we first begin to trace the use of juries for the trial of criminal accusations. At first it seems to have been procured by the accused as a special favour from the crown, a fine, or some gift, or con sideration being paid in order to purchase the privilege of a trial by jury. Several instances of this kind are collected in the Notes and Illustrations to Palgrave's Commonwealth of England, vol. ii. p.186. The payment of a fine took place also not unfrequently in civil cases where any variation from the regular course was required. (Retell Curia Regis, voL i.
pp. 354, 375 ; vol. ii. pp. 72, 92, 97, 101, 114.) It is clear, however, from Bracton and Fleta, that at the end of the thirteenth century the trial by jury in criminal cases had become usual, the form of the proceedings being given by them in de tail. (Bracton, p. 143.) Introduced ori ginally as a matter of favour and indul gence, it gradually superseded the bar barous customs of battle, ordeal, and wager of law, until at length it became, both in civil and criminal cases, the or dinary mode of determining facts for ju dicial purposes.
It is a common error that the stipulation for parium in Magna Charts referred to the trial by jury. Sir Ed ward Coke, in his commentary upon Magna Charta, expressly between the trial by peers and the trial by jury (2nd Inst. ; but Blackstone says, " The trial by jury is that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter." (Com., vol. iv. p. 349.) This is confound ing two distinct modes of trial. The judicium parium was the feudal mode of trial, where the pares or convassalli ejus dent domini sat as judges or assessors with the lord of the fee to decide controversies arising between individual pares or peers. It was a phrase perfectly understood at the period of Magna Charta, and the mode of trial had been in use long before in France and all parts of Europe where feuds prevailed. (Du Cange, Gloss., v. Pares.) It was essentially different from the trial by jury, which could never be accurately called judicium parium. We read frequently in the records of those times (and even in Magna Charts itself ) of juratores, of veredictum or juramentum legalium hominum, and jurata vicineti or patrice, all of which expressions refer to a jury ; but not a single instance can be fond in any charter, or in any ancient treatise or judicial record, in which the jury are called pares, or their verdict judicium. (Reeves's History of the Law, vol. i. p. 249.) In the records of the Curia Regis' in the first year of John's reign, among numerous entries of Ponit se su per juratum vicineti or patrice, are also entries of Ponit se super pares suos de eodem feodo, which plainly indicates a distinction between the two modes of trial. (Rotuli Curie Regis, vol. ii. p. 90.) Until about the reign of Henry VI. the trial by jury was a trial by witnesses. The present form of the jurors' oath is that they shall " give a true verdict, according to the evidence." At what time this form was introduced is uncertain ; but for se veral centuries after the Conquest the jurors both in civil and criminal cases were sworn merely to speak the truth. (Glanville, lib. ii. cap. 17 ; Bracton, lib. iii. cap. 22; lib. iv. p. 287, 291 ; Brit ton, p. 135.) Hence their decision was accurately termed veredictum, or verdict, that is a "thing truly said r whereas the phrase " true verdict" in the modern oath is not an accurate expression. Many other incidents of the trial by jury, as re corded in ancient treatises, conclusively show that the jury were merely wit nesses. They were brought from the neighbourhood where the disputed fact was suggested to have occurred, because, as the form of the jury process says, they were the persons " by whom the truth of the matter might be better known." Again, if the jurors returned by the sheriff in the first instance declared in open court that they knew nothing of the mat ter in question, others were summoned who were better acquainted with it. (Glanville, lib. ii. cap. 17.) They might be excepted against by the parties upon the same grounds as witnesses in the Court Christian. They were punished for perjury if they gave a wilfully false verdict ; and for crassa ignorantia if they declared a falsehood or hesitated about their verdict upon a matter of notoriety, which all of the country (de patrid) might and ought to have known. (Bracton, p. 290.) And ancient authors strongly admonish judges to " take good heed in inquisitions touching life and limb, that they diligently examine the jurors from what source they obtain their knowledge, lest peradventure by their negligence in this respect Barrabas should be released end Jesus be crucified." (Bracton, lib. iii. cap. 21; Fleta, lib. i. cap. 34.) It is one of the numerous circumstances which show the character of the jury in the earlier periods of the history of the insti tution, that though all other kinds of murder might be tried by a jury, murder by poison was excepted, "because," say the ancient writers, " the crime is so secret, that it cannot be the subject of knowledge by the country." (Bracton, lib. iii. cap. 18; Fleta, lib. i. cap. 31.) The original principle and character of the trial by jury in criminal cases in Scotland appear to have been the same as in England. The following extract is taken from a curious paper delivered to the Speaker of the House of Commons, and recorded on the Journals at the date 4th June, 1607. (Comm. Journ., vol. i. p. 378.) " In Scotland, criminal causes are not governed by the civil law ; but ordanes* and juries pass upon life and death, very near according to the law here (in England). Which jury being chosen out of the Four Halfs about (as the Scottish law terms it), which is to say, out of all places round about that are nearest to that part where the fact was committed, the law doth presume that the jury may the better discern the truth of the fact by their own knowledge ; and therefore they are not bound to examine any witnesses, except out of their own disposition they shall please to examine them in favour of the party persuer; which is likewise very seldom or almost never used. It is of truth that the judge may either privately beforehand examine such witnesses as either the party per suer will offer unto him, or such others as in his own judgment he thinks may best inform him of the truth ; and- then when the jury is publicly called and admitted, he will cause these depositions to be produced and read ; and likewise if the party persuer desire any witness there present to be' examined, he will publicly do it in presence of the jury and both parties." The mode of commencing the Introduction of evidence to juries, as de scribed in this document, bears a strong resemblance to the growth of the pro ceeding in England.