that they were not witnesses called by a litigant to support his
case (Pollock and Maitland, i. 118). Once established, the jury
of trial whether of actions or indictments developed on the same
lines. But at the outset this jury differed in one material
respect from the modern trial jury. The ancient trial jury
certify to the truth from their knowledge of the facts, however
acquired. In other words, they resemble witnesses or collectors
of local evidence or gossip rather than jurors. The complete
withdrawal of the witness character from the jury is connected
by Forsyth with the ancient rules of law as to proof of written
instruments, and a peculiar mode of trial per sectam. When a
deed is attested by witnesses, you have a difference between the
testimony of the witness, who deposes to the execution of the
deed, and the verdict of the jury as to the fact of execution. It
has been contended with much plausibility that in such cases
the attesting witnesses formed part of the jury. Forsyth doubts
that conclusion, although he admits that, as the jurors themselves
were originally mere witnesses, there was no distinction in
principle between them and the attesting witnesses, and that
the attesting witnesses might be associated with the jury in the
discharge of the function of giving a verdict. However that
may be, in the reign of Edward III., although the witnesses are
spoken of “as joined to the assize,” they are distinguished from
the jurors. The trial per sectam was used as an alternative to
the assize or jury, and resembled in principle the system of
compurgation. The claimant proved his case by vouching a
certain number of witnesses (secta), who had seen the transaction
in question, and the defendant rebutted the presumption thus
created by vouching a larger number of witnesses on his own
side. In cases in which this was allowed, the jury did not
interpose at all, but in course of time the practice arose of the
witnesses of the secta telling their story to the jury. In these
two instances we have the jury as judges of the facts sharply
contrasted with the witnesses who testify to the facts; and, with
the increasing use of juries and the development of rules of
evidence, this was gradually established as the true principle
of the system. In the reign of Henry IV. we find the judges
declaring that the jury after they have been sworn should not see
or take with them any other evidence than that which has been
offered in open court. But the personal knowledge of the
jurors was not as yet regarded as outside the evidence on which
they might found a verdict, and the stress laid upon the selection
of jurymen from the neighbourhood of the cause of the action
shows that this element was counted on, and, in fact, deemed
essential to a just consideration of the case. Other examples
of the same theory of the duties of the jury may be found in the
language used by legal writers. Thus it has been said that the
jury may return a verdict although no evidence at all be offered,
and again, that the evidence given in court is not binding on
the jury, because they are assumed from their local connexion
to be sufficiently informed of the facts to give a verdict without
or in opposition to the oral evidence. A recorder of London,
temp. Edward VI., says that, “if the witnesses at a trial do not
agree with the jurors, the verdict of the twelve shall be taken
and the witnesses shall be rejected.” Forsyth suggests as a
reason for the continuance of this theory that it allowed the jury
an escape from the attaint, by which penalties might be imposed
on them for delivering a false verdict in a civil case. They
could suggest that the verdict was according to the fact, though
not according to the evidence.
In England the trial jury (also called petty jury or traverse jury) consists of twelve jurors, except in the county court, where the number is eight. In civil but not in criminal cases the trial may by consent be by fewer than twelve jurors, and the verdict may by consent be that of the majority. The rule requiring a unanimous verdict has been variously explained. Forsyth regards the rule as intimately connected with the original character of the jury as a body of witnesses, and with the conception common in primitive society that safety is to be found in the number of witnesses, rather than the character of their testimony. The old notion seems to have been that to justify an accusation, or to find a fact, twelve sworn men must be agreed. The afforcing of the jury, already described, marks an intermediate stage in the development. Where the juries were not unanimous new jurors were added until twelve were found to be of the same opinion. From the unanimous twelve selected out of a large number to the unanimous twelve constituting the whole jury was a natural step, which, however, was not taken without hesitation. In some old cases the verdict of eleven jurors out of twelve was accepted, but it was decided in the reign of Edward III. that the verdict must be the unanimous opinion of the whole jury. Diversity of opinion was taken to imply perversity of judgment, and the law sanctioned the application of the harshest methods to produce unanimity. The jurors while considering their verdict were not allowed a fire nor any refreshment, and it is said in some of the old books that, if they failed to agree, they could be put in a cart and drawn after the justices to the border of the county, and then upset into a ditch. These rude modes of enforcing unanimity has been softened in later practice, but in criminal cases the rule of unanimity is still absolutely fixed.
In civil cases and in trials for misdemeanour, the jurors are allowed to separate during adjournments and to return to their homes; in trials for treason, treason-felony and murder, the jurors, once sworn, must not separate until discharged. But by an act of 1897 jurors on trials for other felonies may be allowed by the court to separate in the same way as on trials for misdemeanour.
These rules do not apply to a jury which has retired to consider its verdict. During the period of retirement it is under the keeping of an officer of the court.
At common law aliens were entitled to be tried by a jury de medietate linguae—half Englishmen, half foreigners, not necessarily compatriots of the accused. This privilege was abolished by the Naturalization Act 1870; but by the Juries Act 1870 aliens who have been domiciled in England or Wales for ten years or upwards, if in other respects duly qualified, are liable to jury service as if they were natural-born subjects (s. 8).
A jury of matrons is occasionally summoned, viz. on a writ de ventre inspiciendo, or where a female condemned to death pleads pregnancy in stay of execution.
The jurors are selected from the inhabitants of the county, borough or other area for which the court to which they are summoned is commissioned to act. In criminal cases, owing to the rules as to venue and that crime is to be tried in the neighbourhood where it is committed, the mode of selection involves a certain amount of independent local knowledge on the part of the jurors. Where local prejudice has been aroused for or against the accused, which is likely to affect the chance of a fair trial, the proceedings may be removed to another jurisdiction, and there are a good many offences in which by legislation the accused may be tried where he is caught, irrespective of the place where he is alleged to have broken the law. As regards civil cases, a distinction was at an early date drawn between local actions which must be tried in the district in which they originated, and transitory actions which could be tried in any county. These distinctions are now of no importance, as the place of trial of a civil action is decided as a matter of procedure and convenience, and regard is not necessarily paid to the place at which a wrong was done or a contract broken.
The qualifications for, and exemptions from, service as a petty juror are in the main contained in the Juries Acts 1825 and 1870, though a number of further exemptions are added by scattered enactments. The exemptions include members of the legislature and judges, ministers of various denominations, and practising barristers and solicitors, registered medical practitioners and dentists, and officers and soldiers of the regular army. Persons over sixty are exempt but not disqualified. Lists of the jurors are prepared by the overseers in rural parishes and by the town clerks in boroughs, and are submitted to justices for revision. When jurors are required for a civil or criminal trial they are summoned by the sheriff or, if he cannot act, by the coroner.
Special and Common Juries.—For the purpose of civil trials in the superior courts there are two lists of jurors, special and
