The earliest traces of the examination of witnesses or of evidence being laid before juries in England, which formed the com mencement of a total change in their cha racter, occur in the reign of Henry VI. The change was not effected suddenly, or by any particular act of parliament, but was introduced by slow degrees ; and though distinctly discernible in the reign of Henry VI., was not completely effected before the times of Edward VI. and Mary. Fortescue, in the 26th chapter of his work De Laudibus Legum An glim,' written at the end of the reign of Henry VI., and about the year 1470, ex pressly mentions that witnesses were ex amined and sworn before the jury ; but he calls the jury indiscriminately testes and juratores, and makes frequent allu sions to their character as witnesses. Shortly after Fortescue's time, namely, in the year 1498, there is a reported case between the Bishop of Norwich and the Earl of Kent (Year-Book, 14 Henry VII.), in which a jury had been seta rated by a tempest "while the parties were showing their evidence ;" and one question raised for the opinion of the court was, whether, when the jury came together again, they were competent to proceed with the case and to give a ver dict. The objection pressed was that the jury had separated before the evidence was given ; to which it was answered that "the giving the evidence was wholly im material, and made the matter neither better nor worse ; that evidence was only given in order to inform the consciences of the jury respecting the rights of the parties ; but that if neither party chose to give evidence, still the jury would be bound to deliver a verdict" In the reign of Henry VII., it appears from records printed in Rastell's Entries that demurrers to evidence were an ac knowledged form of proceeding, which shows that at that time evidence of some kind was given, and consequently that the character of the jury had been in some degree changed from that of witnesses to that of judges of facts upon testimony. The proofs mentioned in these records are called evidentia ; and it is most probable that at first the only evidence given con sisted of deeds, writings, and of deposi tions of absent witnesses taken before the justices of the peace or other magistrates, and that oral testimony was not common until a later period. The entire absence of all mention of evidence or witnesses, as contradistinguished from jurors, in treatises, reports, records, or statutes, pre viously to the sixteenth century, strongly corroborates the fact of the early charac ter of the trial by jury. There is no trace of any rules of evidence, nor of any positive law compelling the attendance of witnesses, or punishing them for false tee,* timony or non-attendance, nor of the ex istence of any process against them before the statute 5 Eliz. c. 9 (1562). In the case of Summers v. Mosely, reported in 2 Crompton and Meeson, p. 485, Mr. Baron Bayley says that be had been unable to find any precedents of the common Sub pena ad lestificanclum of an earlier date than the reign of Elizabeth, and expresses a conjecture that this process may have originated with the above-mentioned sta tute. The Subpoena ad testcandum does not appear in the registers of Writs and Process until the reign of James I. (Wesfs Symbokography.) Witnesses were examined orally upon the trial of Sir Thomas More, in the reign of Henry VIII.; but the reported state trials in the reigns of Edward VI. and Mary show that the practice in that respect was then by no means settled. In the reign of Elizabeth, however, there is abundant proof from Sir Thomas Smith's Com monwealth of England,' and other autho rities, that oral testimony was used with out reserve (except in state prosecutions) both in civil and criminal trials; and consequently it cannot be doubted that about the middle of the sixteenth century the trial by jury had fully assumed the character in which we are now familiar with it, namely, an institution deciding facts for judicial purposes by means of testimony or evidence produced before the jury This view of the original character and office of the jury seems to Account for the practice of fining or otherwise punishing juries by the court when they gave an unsatisfactory verdict, a practice which was partially continued, though not with out remonstrance by legal authorities, after the nature of the institution had been changed. If juries, who were merely witnesses sent for to inform the court of facts whith they were presumed to know, returned a wilfully false ver dict, they were guilty of a contempt of justice, and might properly be punished ; but when their character was changed, and their verdict depended not on their own knowledge of the facts, but upon the impressions produced on their minds by the evidence, such a punishment became injustice ; and though occasionally prac tised in the sixteenth century, was de clared to be illegal soon after the Restora tion by the judgment in Bushell's case, reported in Vaughan's Reports, p. 135. The juries now in use in England in the ordinary courts of justice are grand juries, petty or common juries, and special juries. There is also the coroner's jury. [CoaovEri.] Grand juries are exclusively incident to courts of criminal jurisdiction ; their office is to examine into charges of crimes brought to them at assizes or ses sions, and if satisfied that they are true, or at least that they deserve more parti cular examination, to return a bill of indictment against the accused, upou which he is afterwards tried by the petty jury. [INDICTMENT; LAW, CRIMINAL.] A grand jury must consist of twelve at the least, but in practice a greater num ber usually serve, and twelve must always concur in finding every indictment. No further qualification is required for grand jurors (except in the case of grand jurors at the sessions of the peace, 6 Geo. IV. c. 51, § 1) than that they should be free holders, though to what amount is uncer tain; or freemen, lawful liege subjects, and not aliens or outlaws. (Hawkins, Pleas of the Crown, chap. 25, sect. 16.) Until the end of the thirteenth century the only qualification required for petty or common juries, for the trial of issues in criminal or civil courts, was that they should be "free and lawful men ;" free men, as holding by free services or free burgesses in towns ; and lawful men, that is, persons not outlawed, aliens, or minors, but entitled to the full privileges of the law of England. By the statute of West minster 2, _passed in the thirteenth year of Edward I. (1296), it was enacted that no man should be put on juries who had not some freehold of the value of 20s. a year within the county, or 40s. without it; and this qualification was raised to 40s. in counties by the stet. 21 Edward I. The object of these statutes was to pro tect poor persons from being oppressed and injured by being summoned on juries, and also to obviate the evil of the non attendance of jurors, which frequently occurred from their inability to leave their agricultural or handicraft occupa tions. The stat. 2 Henry V. however was intended to secure the intelligence and responsibility of jurors by requiring a property qualification ; and it enacted that no person should be a juror in capital trials, nor in any real actions or personal actions where the debt or damages de clared for amounted to 40 marks, unless he had lands of the yearly value of 40s. ; and if he had not this qualification he might be challenged by either party. This continued to be the qualification of common jurors until the passing of the statute 6 George IV. c. 50, which re pealed all former statutes upon this sub ject, and entirely remodelled the law respecting juries. By this statute " every
man (with certain specified exceptions) between the ages of twenty-one years and sixty years who has within the county in which he resides 10/. a year in free hold lands or rents, or 20/. a year in leaseholds for unexpired terms of at least twenty-one years, or who, being a house holder, is rated to the poor-rate in Middle sex on a value of not less than of 301., and in any other county of not less than 201., or who occupies a house containing not less than fifteen windows, is qualified and liable to serve on juries in the su perior courts at Westminster and the courts of the counties palatine for the trial of issues to be tried in the county where he resides, and also to serve on grand juries at the sessions of the peace, and on petty juries, for the trial of issues triable at such sessions in the county in which he resides." The exceptions are :— peers, judges of the superior courts, clergymen, Roman Catholic priests, dis senting ministers following no secular employment but that of a schoolmaster, serjeants and barristers at law, and doc tors and advocates of the civil law actu ally practising ; attorneys, solicitors, and proctors actually practising; officers of courts actually exercising the duties of their respective offices ; coroners, gaolers, and keepers of houses of correction ; members and licentiates of the College of Physicians actually practising; sur geons, being members of one of the royal colleges of surgeons in London, Edin burgh, or Dublin, and actually practising ; apothecaries certificated by the Apothe caries' Company, and actually practising ; officers in her Majesty's navy or army on full pay ; pilots licensed by the Trinity House; masters of vessels in the buoy and light service ; pilots licensed by the lord-warden of the cinque-ports, or under any act of parliament or charter; house hold servants of the sovereign ; officers of customs and excise; sheriffs' officers, high constables, and parish clerks.
Lists of all persons qualified to be jurors are made out by the churchwardens and overseers of each parish, and fixed on the church door for the first three Sundays in September in each year; these are afterwards allowed at a petty sessions and then delivered to the high constable, who returns them to the next quarter sessions for the county. The clerk of the peace then arranges the lists in a book, which is called the Jurors' Book' for the ensuing year. and afterwards de livers it to the sheriff. From this book the names of the jurors are returned in panels to the different courts.
Special juries are composed of such persons as are described in the 'Juror's as esquires, and persons of higher degree, or as bankers or merchants; and it is the duty of the sheriff to make a distinct list of such persons, which is called the Special Jurors' List.' When a special jury is ordered by any of the courts, which must always be the result of a special application of one of the par ties, 48 names are taken by ballot from this list in the manner particularly de scribed in the statute, which are after wards reduced to 24 by means of each party striking out 12 ; and the first 12 of these 24 who answer to their names in court are the special jury for the trial of the cause.
The mode of objecting to a jury by the parties is by challenge, though in modern practice this course is seldom resorted to, having yielded to the more convenient usage of privately suggesting the objection to the officer who calls the jury in court ; upon which the name objected to is passed over as a matter of course without dis cussion. This practice, though a less troublesome and obnoxious mode of effect ing the object of obtaining a jury indif ferent between the parties than a formal challenge, is strictly speaking irregular, and being considered to take place by consent, and as a matter of favour, cannot be insisted upon as a right. Challenges are of two kinds : challenges to the array, and challenges to the polls. The chal lenge to the array is an objection to the whole panel or list of jurors returned for some partiality or default in the sheriff or the under-sheriff by whom it has been arrayed. Challenges to the polls are objec tions to particular jurors, either on the ground of incompetency (as if they be aliens, or of insufficient qualification within the provisions of the Jury Act, 6 Geo. IV. cap. 50), or of bias or par tiality, or of infamy. Upon these chal lenges the cause of objection must in each case be shown to the court ; but in trials for capital offences the accused is entitled to challenge peremptorily (that is, without giving any reason) thirty-five jurors. The king, however, as nominal prosecu tor, has no right of peremptory challenge, though he is not compelled to show his cause of challenge until the panel is gone through, and unless a full jury cannot be formed without the person objected to.
The trial by jury, originally introduced into the law of France in criminal cases by the National Assembly, was retained in the French code. Au account of the proceeding and of the qualifications and formation of the jury will be found in the Code d' Instruction Criminelle, livre tit. 2, chap. iv. and v. [ConF.s, Las CI14Q-] Of late years the advantage of the trial by jury has been frequently the subject of debate among German and French jurists, and in particular the pro priety of its introduction has been dis cussed in the various commissions issued with a view to reforming the laws of se veral of the German States. The French code is the law of the Rhenish Province of Prussia, and the trial by jury in criminal eases exists there.
In Scotland all crimes are tried by jury, with the exception of certain breaches of police regulations and petty depredations, which are summarily adjudicated on. The number on a criminal jury or " as size" is fifteen, and the verdict is that of the majority. It may be " guilty," "not guilty," or " not proven"—the last as well as the second being an acquittal. In the course of the improvements of the court of session, projected and partly executed in the years 1808 and 1809, an attempt was made to introduce the trial by jury into civil proceedings in Scotland ; but great opposition was made to it in that country, and the proposition was not at that time carried into effect. But in the year 1815 a statute (55 Geo. III. c. 42) though then still much op in Scotland, which established a jury court not as a separate and inde pendent tribunal, but as subsidiary to the court of session, for the trial of par ticular questions of fact to be remitted for trial by the judges of the court of session at their discretion. In order to meet a conscientious difficulty much insisted upon in petitions from Scotland against this measure, namely, that it would be often impossible for a jury to give a unanimous verdict unless some of the members violated their oaths, it was pro vided by the act that if the jury are not unanimous in twelve hours, they shall be discharged, and a new trial granted. The judges of this court, called the ' Lords Commissioners of the Jury Court in Civil Cases,' were appointed by commission, and consist of a chief judge and two other judges. The stat. 59 Geo. III. c. 35, which recites that the introduction of the trial by jury in civil cases by the former act had been found beneficial, made a variety of improvements in the machinery of the jury court. By the stat. 11 Geo. IV. & 1 Wm. IV. c. 69, the jury court as a separate tribunal was abolished. and the trial by jury was united with the ordinary administration of justice in the court of session.