Another objection is the doubt as to whether the jury is the best means of arriving at deter minations of fact. This controversy has been bittery fought, one side maintaining that the jury is not fitted, either by training or capacity, to decide fairly and intelligently doubtful ques tions of fact, and that one of its most import ant functions, that of assessing damages, is not properly performed, especially where the re quirement of unanimity necessarily leads to compromise verdicts. On the other hand it is argued that ,the jury, if properly drawn, rep resents the average intelligence of the com munity, and that when it does so, no fairer tribunal can be discovered, and not, perhaps, very consistently, that in civil matters control of the case is really in the judge, who by care ful instructions can usually so direct the jury as to bring about an intelligent verdict, or, as a last resort, can set aside one which is clearly wrong, and award a new trial.
A verdict of acquittal in a criminal proceed ing finally disposes of the charge against the defendant both by the common law and, in this country, by the provisions of the Federal Con stitution (and of most, if not all, of the State constitutions) that no person shall 93e subject for the same offense to be twice put in jeopardy of life or limb?' Doubtless from this arose the doctrine that in criminal cases the jury are judges both of law and fact, which caught the popular fancy,. is not without the weight of respectable judicial authority to sustain it, from the time of Junius, who upheld it in opposition to Lord Mansfield, has been a favorite doctrine of popular leaders, and only in recent years may be regarded as finally disposed of. The doc trine was discussed by Chief Justice Mitchell, of Pennsylvania, in a capital case in 1891, and pronounced by him to be °unsound in every point of view, historical, logical, or and in 1895 the Supreme Court of the United States (speaking by Mr. Justice Harlan) reached the same conclusion and held that in the courts of the United States it is the duty of the jury in criminal cases to receive the law from the court, and to apply it as given by the court, subject to the condition that by a general ver dict a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case. Mr. Justice Gray filed a long and able dissenting opinion concurred in by Mr. Justice Shiras, and in this i case, reported in 156 United States Reports (page 51), all the arguments on both sides can be found.
The grand jury is, historically, a sort of representative committee of the people of the district throughout which the jurisdiction of the court extends, charged with the duty of report ing to the court offenses which have been com mitted which they consider should be inquired into, and persons whom they believe to have committed criminal acts for they should be punished. Its development into the modern
grand jury is not well understood. The highest authorities on our early legal history say of it, °The details of this process will never be known until large piles of records have been system atically perused. This task we must leave for the historian of the 14th century.)) The grand jury as an existing institution consists of a number of persons drawn from the same class as the ordinary or petit jurors. At the common law the number summoned was 23. They are sworn to the faithful discharge of their duties, and the court then delivers a charge to them, calling their attention to the duties they are to perform, either generally or with reference to any matters of special public in terest falling within their jurisdiction to which the court thinks proper to direct their attention, and they can then proceed to business. All in dictments are submitted to them and, according as they determine, after hearing the prosecutor's evidence, whether they are well founded or not, they endorse them ("true bill') or 'aignoramusp (or equivalent words). In the former case the accused is held for trial, in the latter dis charged. It is the custom for them to make report to the court on such matters as seem to them of public interest and importance, and to make such recommendations as seem good to them. The report made by them of any offense from their own knowledge or observation, with out a bill of indictment laid before them, is called a Presentment. See Venter.
For the history of the origin and develop ment of the jury, consult Pollock and Mait land, 'History of English Law' (Boston 1899); Thayer, 'Preliminary Treatise on Evidence at the Common Law) (chaps. ii—iv, ib. 1898) ; Stephen, 'Commentaries on the Laws of Eng land) (Bk. V., ch. xiv) ; Stubbs, 'Constitutional History of England' (Oxford 1883) ; Cooley, 'Constitutional Limitations' ; Lesser, Develop ment of the Jury System' (1893) ; Forsyth, 'Trial by Jury' ; Edwards, G. J., 'The Grand Jury Considered from an Historical, Political and Legal Standpoint' (Philadelphia 1906) ; Hamilton, T. F., (Handbook for Grand. Jurors' (Albany 1906) ; Sackett, Frederick, 'Instruc tions to Juries> (3 vols., Chicago 1908) ; Train, A. C., Jury System: Defects and Pro posed Remedies> (Philadelphia 1910). For a discussion of the merits of the institution under modern conditions which is generally accepted as full and impartial, consult 'The System of Trial by Jury,' Amer.y the late Mr. Justice Samuel F. Miller (21 r Law Review, 859). For the origin of the grand jury, Pollock and Mait land, 'History of English Law' (Bk. II, ch. ix, § 4).