grand jury must consist of not less than twelve, nor more than
twenty-three, good and lawful men of the county. But any
person who prefers an indictment is entitled to have it presented
to the grand jury. Officers of the court lay the indictments before
the grand jury. The charges are then called bills, and if the
grand jury considers that there is no prima facie case the foreman
endorses the bill with the words “no true bill,” and it is then
presented to the judge. The jury are then said to have ignored
the bill, and if the person charged is in custody he is released,
but is liable to be indicted again on better evidence.
As a means of constitutional protection in times of monarchical aggression this practice had no doubt a great value, but in the present day, when few offenders are tried without a preliminary inquiry by justices, the functions of a grand jury are of secondary importance, and the jurors’ time is perhaps needlessly occupied. The institution of the grand jury prevented the crown in the days of its great power from removing a person whom it wished to get rid of from among his neighbours, and placing him on trial in a strange place where the influence of the crown was greater. This is still true to a certain extent, as great injustice may be caused to a man by removing him from his neighbours and trying him at a distance from his friends, and from the witnesses whom he might call for his defence. In Ireland, for instance, the greatest injustice might be done by removing an Orangeman from Belfast and trying him in a Roman Catholic county or vice versa. But it has its evils where the area from which the jurors are drawn is small, such as a town of a few thousand inhabitants. In that case a man charged, say, with fraud, may be protected by his friends from being properly punished for that fraud. But where justice requires, an order may be made for the trial of the offence in another county or at the central criminal court.
In many colonies the Scottish system has been adopted, by which the ordinary form of accusation is by indictment framed by the public prosecutor, and a grand jury is only impannelled in cases where an individual claims to prosecute an offence as to which the public officials decline to proceed. In England criminal informations by the attorney-general, or by leave of the court without the intervention of a grand jury, are permitted in cases of misdemeanour, but are now rarely preferred.
If a coroner’s jury, on inquiring into any sudden death, finds that murder or manslaughter has been committed, that finding has the same effect as an indictment by a grand jury, and the man charged may be tried by the petty juryCoroner’s courts. accordingly. The law and procedure of the coroner’s courts are now regulated by the Coroners Act 1887. When there is a dead body of a person lying within the area of his jurisdiction, and there is reasonable cause to suspect that such person died a violent or unnatural death, or a sudden death of which the cause is unknown, or has died in prison, the coroner is entitled to hold an inquest, and if the verdict or inquisition finds murder or manslaughter, it is followed by trial in the same way as if the person accused had been indicted.
When an indictment is found by the grand jury (twelve at
least must concur) the person charged is brought before the
court, the indictment is read to him, he is asked
whether he is guilty or not guilty. If he pleads guiltyTrial by
jury.
he is then sentenced by the court; if he pleads not
guilty, a petty jury of twelve is formed from the panel or list of
jurors who have been summoned by the sheriff to attend the
court. He is tried by these jurors in open court. The common
law method of trial of crimes by a jury of twelve, native to
English law, has been in modern times transplanted to European
countries. It was not the original form of trial, for it was preceded
by wager of battle (which was not finally abolished
till 1819); and by ordeal, which was suppressed as to criminal
trials in 1219 in consequence of the decree of the Lateran Council
(1216). The first was allowed only on an appeal by an individual
accuser; the second was resorted to on an accusation by public
fame, which the accused was allowed to meet by submitting to the
ordeal. It was after 1219 that trial by the jury of twelve (known
as trial in pais) began to develop. At the outset the accused
used to be asked how he would be tried, and could not be directly
compelled to plead to the charge or to accept trial by a jury;
which led to the indirect pressure known as the peine forte et dure,
which fell into disuse after the Revolution and was formally
abolished in 1772. But it was not until 1827 that refusal to
plead was treated as a plea of not guilty, entailing a trial by a
jury, and some old-fashioned officials still ask the old question
“How will you be tried?” to which the old answer was “By
God and my country.”
The original trial jury or inquest certainly acted on its own knowledge or inquiries without necessarily having evidence laid before it in court. The impartiality of the jurors was to some extent secured by the power of challenge. The exact time when the jury came into its present position is difficult accurately to define. On the trial before the petty jury the procedure and the rules of evidence differ in very few points from an ordinary civil case. The proceedings as already stated are accusatory. The prosecutor must begin to prove his case. Confessions (which are the object sought by French procedure) are regarded with some suspicion, and admissions alleged to have been made by the accused are not admitted unless it is clear that they were not extracted by inducements of a temporal nature held out by persons in authority over him. During the spring assizes of 1877 a prisoner was charged with having committed a murder twenty years before, and the counsel for the prosecution, with the consent of the judge, withdrew from the case because the only evidence, besides the prisoner’s own confession, was that of persons who either had never known him personally or could not identify him. The accused may not be interrogated by the judge or the prosecuting counsel unless he consents to be sworn as a witness. In this respect the contrast between a criminal trial in England and a criminal trial in France is very striking. The interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to English lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. He is entitled to cross-examine the witnesses for the prosecution and to call witnesses in his defence. At the conclusion of the evidence and speeches the judge sums up to the jury both as to the facts and the law, and the jury by their verdict acquit or convict. Immediate discharge follows on acquittal; sentence by the judge on conviction.
Justices of the peace may under many statutes convict in a summary manner (without the intervention of a jury) for offences of minor importance. The procedure for punishing summary offences is before two justices,Summary trials. or a stipendiary magistrate. This proceeding must not be confused with the preliminary inquiry already mentioned before justices for an indictable offence, nor with the procedure before justices in relation to civil matters, such as the recovery of small sums of money. The proceeding begins either by the issue of a warrant for the arrest of the person charged, in which case a sworn information must be filed, or by a summons directing the person charged to appear on a certain day to answer the complaint made by the prosecutor. The justices hear the case in open court; the person charged can make his defence either in person or by his solicitor or counsel, he can cross-examineProcedure for summary offences. the witnesses for the prosecution, call his own witnesses, and address the justices in his defence. The justices, after hearing the case, either acquit or convict him, and in case of conviction award the sentence. If the sentence is a fine, and the fine is not paid, the person convicted is liable to be imprisoned for the term fixed by the justices, not exceeding a scale fixed by an act of 1879, the maximum of which is one month. The imprisonment may be with or without hard labour.
Of late years this summary jurisdiction of the justices has received very large extensions, and many offences which were
