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. Glanville calls it " a certain royal benefit conferred upon the people by the clemency of the sovereign with the advice of the nobility." Accordingly we find in the 'Retuli Curim Regis' in the time of Richard 1. and John, many instances of trials by jury being claimed by parties, though it appears from these curious records that at this period 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 consideration, being paid in order to purchase the privilege of a trial by a jury. Scueral instances of this kind will be found 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 ; see ' llotuli Curia: Regis,' vol. L, pp. 351, 375; vol ii., pp. 72, 92, 97, 101, 114. It is quite clear, however, from Bracton and Fleta, that at the end of the 18th century the trial by jury in criminal cases had become usual, the form of the proceedings being given by them in detail. (Bracton, p. 143.) Introduced originally as a matter of favour and indulgence, it gained 5round with advancing civilisation, gradually superseding the more ancient and barbarous customs of battle, ordeal, and wager of law, until at length it became, both in civil and criminal cases, the ordinary mode of determining facts for judicial purposes.
It is right to notice the popular and remarkable error that the stipulation for the judicium purism, in Magna Charts referred to the trial by jury. Sir Edward Coke in his commentary upon Magna Charta expressly distinguishes between the trial by peers and the trial by jury (2nd Inst. 48-9) ; 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." (' Commentaries,' vol. iv., p. 349.) This is confounding two distinct modes of trial. The judicium parism was the feudal mode of trial, where the pares or courassalli ejusdem doneini sat as judges or assessors with the lord of the fee to decide controversies arising between individual pares. 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.', ad vocem Pares?) It was essentially different from the trial by jury, which could never be accurately called judicium, ;swim. We read frequently in the records of those times (and even in Magna Charta itself), of juratores, of reredictum or juramentuse legalism hominum, and jurata ricineti or pa-trice, all of which expressions refer to a jury ; but not a single instance can be found 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 Posit se super juratam, ricineti or interim, are also entries of Posit se super pares sues de cotton feodo, plainly indicating a distinction between the two modes of trial. (` Rotuli Curios voL ii., p. 90.) Until about the reign of Henry Yl. the trial by jury was to all intents and purposes 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 precise time this form was introduced is uncertain ; but for several 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 ; Britton, p. 135.) Hence their decision was accurately termed veredictum, or verdict ; whereas the phrase "true verdict" in the modern oath is not only a pleonasm, but is etymologically incorrect, and misdescribes the office of a juror at the present day. Many.other incidents of the trial by jury, as recorded in ancient treatises, con clusively show that the jury were merely witnesses. They were brought from the neighbourhoodwhere 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 ;" no doubt upon the principle that Picini ricisorum prcesu muster scirc. if the jurors returned by the sheriff in the first instance declared in open court that they knew nothing of the matter 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 wilful false verdict; and for crasser ignorantia if they declared a falsehood or hesitated about their verdict upon a matter of notoriety, which all of the country (de Paull) might and ought to have known. (Bracton, p. 290.) And ancient authors solemnly 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 Barabbas should be released and Jesus be crucified." (Bracton, lib. iii. cap. 21; Fleta, lib. i., cap. 34.) It is also remarkable, as one of the numerous circumstances which show the character of the jury in the earlier periods of the history of the institution, 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 cases are not governed by the civil law ; but ordanes (a word printed by mistake for some other) and juries pass upon life and death, very near according to the law here (in England). Which jury being chosen out of the Four Haifa 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 cloth 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 pursuer ; 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 pursuer will offer unto him, or such others as in his own judgment ho 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 pursuer desire any witness there present to be examined, he will publicly do it in presence of the jury and both parties." It will be observed, that the mode of com mencing the introduction of evidence to juries as described in this elesenneetat bean a strong raestribLenee to the growth of the proceeding Is England.