Page:The American Cyclopædia (1879) Volume IX.djvu/743

JURY 723 that day. But the indicium parium was the peculiar and well known feudal process, by which the lord with his vassals sat to try questions of title between others of his vassals. It is quite probable, however, that the alterna- tive phrase, per legem terrce, was intended to include trial by jury. In Greece and Rome, in the Teutonic and Scandinavian nations, and probably among the Normans, the agreement of a majority of a jury, or of the body which represented a jury, was sufficient; but from the earliest times unanimity has been required in an English traverse jury, and also in this country. The origin of this peculiarity is quite unknown. The most plausible conjecture, for which indeed there is some authority, is, that originally there were or might be more than 12 jurymen, but the agreement of that number was required; and when the number of the jury finally settled down at 12 and no more, unanimity became requisite. There have been, in perhaps all ages, doubts whether the advan- tages of this rule were sufficient to compensate for the mischiefs which sometimes result from it ; but no very strenuous effort has ever been made to change it. In Scotland, however, by statute 22 and 23 Victoria, the verdict of nine or more of the jurors may be received if una- nimity is found impossible after three hours' de- liberation. There is, in respect to the evidence on which a jury acts, a circumstance striking- ly illustrative of the change which has taken place in the constitution and in the functions of a trial jury. Now, they have nothing to do but to hear and weigh the evidence offered to them in open court; and anything beyond this is a departure from their duty; and if one of their number happens to know anything about the facts of the case, he ought not to commu- nicate it to the others, and they ought not to be influenced by it, unless he is sworn as a witness and examined as a witness ; so anxious is the law to keep from the jury all evidence which does not rest upon an oath, and has not been submitted to examination. It is however cer- tain that, in the beginning of jury trials, and until the 15th century, the jury themselves were the witnesses, and the only witnesses, they be- ing selected to determine the questions of the case because they were supposed to know the facts, and no other witnesses being examined, and no evidence whatever being offered to them. Nor was it until about the middle of the 16th century that there is any trace of any process known to the law for the summon- ing of witnesses. (See Summers n. Mosely, 2 Crompton and Meeson, p. 485.) As the jury must not pay any attention to any evidence not lawfully before them, so they must not go be- yond the evidence, and inquire into the law, for that is the exclusive province of the court. In civil cases, no one has ever doubted this; that is, no one has ever doubted that in civil cases it was the duty of the court to state the law to the jury, and the duty of the jury to receive and obey the law thus given to them. But of late a question has arisen in regard to criminal trials, which has assumed, at least in many of the United' States, an aspect of much importance. There are those who in- sist that in all criminal cases the juries shall be judges of the law as well as of the fact; and such is the rule by decision in some states and by statute in some others, and it prevails generally in prosecutions for libel by express constitutional or statutory provisions. Juries are either grand juries or petit juries. Nearly all that has been said in this article re- lates only to petit juries, which are sometimes called traverse juries, and sometimes trial ju- ries. A grand jury tries no question, and finds no verdict. The proper authority of the state, usually the attorney for the government, brings before the grand jury a case of supposed crime or wrong, with a bill of indictment, and the evidence on the subject. This they consider ex parte, or without hearing the accused ; and if they think that the evidence is sufficient, they approve or " find " the bill, and present the accused to the court. If they do not think it sufficient, they "ignore" the bill (as it is termed), and no indictment is presented. The usual method of "finding" a bill is for the foreman (whom the jury choose) to write on the back of the bill, " A true bill," with his signature and the date; and when a bill is rejected, the foreman writes upon it: "Igno- ramus," with signature and date. Sometimes the government attorney prepares no bill, but brings before them the case and evidence, and prepares a bill only when they direct him to do so. The grand jury are the exclusive judges of the weight and force of the testimony of- fered before them. The grand jury is gener- ally more numerous than the petit jury. The more usual number is 23 ; originally it was 24, but as unanimity is not necessary, although at least 12 must agree to an indictment, to avoid the inconvenience of having 12 for and 12 against a bill, one less than 24 is the common number. Besides bills of indictment, and specific offend- ers, the grand jury may present to the court any public wrongs they think should be brought to its notice, and sometimes exercise a wide liberty in this respect. None are present with the grand jury during their deliberations but the officer of the government ; and it is a part of their oath that they shall keep secret " the commonwealth's counsel, their fellows', and their own." But there is a reasonable limit to this, for it is no uncommon thing for a grand juror to take the witness stand in a trial of a case, and testify as to what some person has said as a witness before the jury. A grand jury constitute a regular body, recognized as such by the law, having what may be called a jurisdiction coextensive with that of the court to which they make presentments. Jurors, both grand and petit, are returned by the sheriff of each county (or, for the United States courts, by the marshal of each district), in obe- dience to a writ, called a venire, which com-