Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/820

786 J U II Y plained above. This is the jury which presents indictments for trial by the petty or ordinary jury. The sheriff is directed to summon twenty-four or more persons, out of whom the jury may be chosen ; but not more than twenty- three are to be chosen, so that twelve may be a majority. 1 The verdict of less than twelve, although a majority of the whole body, cannot be accepted, but the verdict of twelve is sufficient although the others may dissent. The grand jury, after a general charge from the judge, consider the bills of indictment in private, hearing such of the witnesses as they think fit. If they consider that & prima fade case is made out against the accused, they return the indictment into court as a true bill, which then becomes the foundation of the process before the petty jury. If they think other wise they ignore the bill, or send it back into court torn up. They have thus a kind of veto on the cases submitted for trial. As these for the mast part have been previously investigated by magistrates who have committed the accused for trial, the utility of the grand jury depends very much on the character of the justices courts. As a review of the discretion of stipendiary magistrates in committing cases for trial, the judgment of the grand jury is admittedly superfluous ; and even when the committing justice is an unlearned magistrate, it seems very doubtful if much is gained by subjecting his open decisions to the control of a secret tribunal. It used to be urged by the defenders of the system that it secures the attendance of the landed gantry and the county justices at the assizes a kind of argument which is no longer so cogent as it once was. Mr Forsyth thinks that the grand jury will often baffle " the attempts of malevolence" by ignoring a malicious and unfounded prosecution, but they may also defeat the ends of justice, and they have done so ere now, by shielding a criminal with whom they have strong political or social sympathies. The qualification of the grand jurymen is that they should be freeholders of the county, to what amount appears to be uncertain. 2. The Coroners Jury is undeterminate in number, but the finding must be that of twelve at least of the jurymen. Persons found guilty on this inquest may be put on trial b afore a petty jury at assizes. 3. Special and Common Juries. This distinction belongs properly to civil trials. The practice of selecting special jurors to try important cases appears to have sprung up, without legislative enactment, in the procedure of the courts. Forsyth says that the first statutory recognition of it is so late as 3 Geo. II. c. 25, and that in the oldest book of practice in existence (Powell s Attorney s Academy, 1623) there is no allusion to two classes of jurymen. The Acts, however, which regulate the practice allude to it as well established. The statute now in force (33 <fe 34 Viet. c. 7) defines the class of persons entitled and liable to serve on special juries thus : every man whose name shall be on the juror s book for any county, &c., and who shall 1)3 legally entitled to ba called an esquire, or shall be a person of higher degree, or a banker or merchant, or who shall occupy a house of a certain rateable value (e.g., 100 in a town of 20,000 inhabitants, 50 elsewhere), or a farm of 300, or other premises at 100. A special juryman receives a fee of a guinea for each cause. Either party may obtain a special jury, but must pay the additional expenses created thereby unless the judge certifies that it was a proper case to be so tried. For the common jury any man is qualified and liable to serve who has 10 by the year in land or tenements of freehold, copyhold, or customary tenure ; or 20 on lands or tenement held by lease for twenty-one years or longer, or who being a house- 1 Blackstone puts the principle as being that no man shall be con victed except by the unanimous voice of twenty-four of his equals or neighbours twelve on the grand, and twelve on the petty jury. holder is rated at 30 in Middlesex or 20 in any other county. See G Geo. IV. c. 50; and 33 & 34 Viet. c. 77 (the Juries Act). A schedule to the last-cited Act contains a list of the numerous classes of persons exempted from service, which include members of the legislature and judges, ministers of various denominations, and practising lawyers of all grades. These are juries invariably em ployed in the superior courts. In the county court the jury consists of five. Formerly aliens were entitled to be tried by a jury de medietate linguseha[ being Englishmen and half foreign ers, not necessarily of the same country as the accused. This privilege has been abolished by the Naturalization Act. A jury of matrons is resorted to, in a writ de venire inspiciendo, or when a female prisoner, condemned to death, pleads pregnancy in stay of execution. From the beginning parties have been allowed to challenge the jury. In civil and criminal cases a challenge/o?- cause is allowed ; in criminal cases only, a peremptory challenge is also allowed. In the former case the challenge may be either to the array, i.e., to the whole number of jurors returned, or to the polls, i.e., to the jurors individually. A challenge to the array is either a, -principal challenge (on the ground that the sheriff is a party to the cause, or related to one of the parties), or a challenge for favour (on the ground of circumstances implying " at least a probability of bias or favour in the sheriff"). A challenge to the polls is an exception to one or more jurymen on either of the following grounds : (1) propter honoris respectum, as when a lord of parliament is summoned ; (2) propter defectum, for want of qualification; ($} propter affectum, on suspicion of bias or partiality ; and (4) propter delictum, when the juror has been convicted of an infamous offence. The challenge propter affectum is, like the challenge to the array, either principal challenge or " to the favour." Prisoners in criminal trials were by common law entitled to a per emptory challenge without cause shown to the number of thirty-five jurors ; and so the law remains, after some fluctuation, in the case of treason. In other cases it is limited to twenty. The crown is no longer entitled to a peremptory challenge as at common law ; but the cause of challenge need not be assigned by the crown until the whole list has been gone through, or unless there remain no longer twelve jurors left to try the case, exclusive of those challenged an arrangement which practically amounts to giving the crown the benefit of a peremptory challenge. One other special point remains to be mentioned. The province of the jury is to judge of facts ; they have nothing to do with the law which they must take from the presiding judge at the trial. The old decantatum assigns to each his own independent function : " Ad qusestionern legis judices respondent, ad qusestionem facti juratores." But, while the jury are supposed in legal theory to be absolute masters of the questions of fact, in practice they are largely controlled by the judges. Not only does the judge at the trial decide as to the admissibility of questions, but he advises the jury as to the logical bearing of the answers on the issue. Further, after a jury has given its verdict, it may be challenged in the courts on the ground that it is against the evidence, or on the ground that there was no evidence to go before the jury. A verdict is said to be against the evidence when the jury have completely misapprehended the facts proved, when the logical con clusion to be drawn from the facts is the opposite of that which the jury have drawn. The court will not disturb the verdict of a jury on this ground when the judge who presided at the trial is not dissatisfied with the verdict. And it has been ruled emphatically that, when there is con flicting testimony as to the point at issue, it is exclusively