The number of persons composing juries of inquiry and accusatory juries was arbitrary, and might consist of more or occasionally of fewer than twelve men.
The third specie] of jury is the institution by which disputed facts are to be decided for judicial purposes in tho administration of civil or criminal justice, and which is in modern times familiar to us under the denomination of trial by jury. Juries of this description have been considered to exercise the sane] functions as the dicasOr (bocaceraf) of the Athenians and the the Romano, and our trial by jury has accordingly sometimes been considered to have been derived imme diately from Rome, and ultimately from Greece. The precise time at which this species of trial originated in England has been the subject of much animated discuesion ; and iu particular the question whether it was known to the Auglo-Saxona, or was introduced by the Conqueror, has been warmly debated. Coke and Spelman, among earlier legal anti quaries, and, in later times, Nicholson (Preface to Wilkinee ' Anglo Saxon Laws), Blackstone, and Turner (` Anglo-Saxons,' vol. iv., b. xi., c. 9), maintain with much confidence the existence of this institution before the Conquest. On the other hand, Hickos (` Dissent. Epist.; p. 34), Reeves (' History of the English Law,' vol. I., p. 24), and several other learned w•riters,contend that it was introduced by the Conqueror, or at least that it Was derived from the Norman's, and was not of Anglo Saxon origin. The Latter opinion is adopted by Sir Francis Palgravc, llistory of the English Commonwealth,' v. p. 243. Without entering minutely into this controversy, it may be stated that the traces of the trial by jury, in the form in which it existed for several centuries after the Conquest, are more distinctly dis cernible in the ancient customs of Normandy than in the few and scanty fragments of AnglooSaxon laws which have descended to our time. The trial by 12 compurgators, which was of canonical origin and was known to the Anglo-Saxons and also to many foreign anthem, resembled the trial by jury only in the number of persons sworn ; and no conclusion can be drawn from this circumstance, as 12 was not only the common number throughout Europe for attendee) and other purgatious, but was t11clavouritclnumber in every branch of the polity end jurisprudence of the Gothic nations. (Spelman, ' Glom, tit. ' Jurata.) Betides this, the trial by compurgaton under the name of Wager of Law continued to be the law of EngLaud till abolished, in 183; and is treated by all writer, and noticed in judicial records ever since the Conquest as a totally different institution from the trial by jury. The trial pee sectatores or per pares in the county court, which has sometimes been confounded with the trial by jury, was in truth a totally different tribunal. The sectatores or pares were, together with the sheriff or other president, judges of the court ; and it appears to have been the common course with the Gothic nations that twelve assessors should be present with the king or judge to decide judicial controversies. (Du Cange, Gloss.; ad vocem Pares.') The pares curice resembled permanent assessors of the court, like the scabini mentioned in the early laws of France and Italy, much more nearly than sworn jurors indiscriminately selected, and performing a subordinate part to the judge. On the other hand, the incidents of the mode of trial prevalent in Normandy long before the Conquest correspond in a striking manner with those of our trial by jury as it existed for centuries afterwards. Thus in Normandy offenders were
convicted or absolved by an inquest of good and lawful men summoned from the neighbourhood where the offence was surmised 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, enemies, and near relatives of the accused were to be ex cluded. So also in the Norman Writ of Right, those were to be sworn as recognitors who were born and had ever 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 Constumier,' cap. 68, 69, 103.) These inci dents, though unlike our present mode of trial (which, as will presently be shown, 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 afterwards by Bracton, and correspond almost verbally with the form of the jury process, which has continued the same from very early times to the present day, by which the sheriff is commanded to return "good and lawful men of the neighbourhood, by whom the truth of the matter may be better known, and who are not akin to either party, to recognise upon their oaths," &c. On the other hand (as .1Iadox 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 Glanville, they are as different from one another as the laws of two several nations." Though there are some traces of the trial by jury in the four reigns which immediately succeeded the Norman Conquest, it was not till a century afterwards, in the reign of Henry II., that this institution became fully established and was reduced to a regular system. Its introduction into frequent use at this period was probably owing to the law or ordinance for the trial by assize in pleas of land or real actions, made by Henry II. 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 practical machinery 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 vises being noticed as an inquiry per juratam patrim rel ricineti, 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 probably 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.