at least) as no longer representative of the countryside, but as a truly judicial body which should be free from fear and interest. Such challenges were unsuccessful. As late as 1341 the court refused to allow a petty juryman to be challenged on the ground that he had been a member of the presenting jury: “if the indictors be not there it is not good for the King”, it was said.3 The commons in parliament protested against the practice in 1341 and again in 1345,4 but not until 1352 did a statute allow challenge to be made on this ground.5
THE JURY AS REPRESENTATIVES
From this it will be seen that in its origin the jury is of a representative character; the basis of its composition in the early days, when its structure was determined by the vill or the hundred, was clearly the intention to make it representative of the community. Its object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned, and some at least of them from the hundred where the fact lay.6 In civil cases these requirements were much modified by legislation,7 and finally abolished in 1705.8 They applied also to criminal cases, but by Lord Hale’s time it was no longer the practice to challenge a jury for lack of hundredors,1 as long as it came from the proper county.
The county requirement was less tractable, for procedure could only be conducted through a sheriff. Problems abounded, moreover. By some ancient oversight there were roads, bays, creeks and harbours in England, as late as 1816,2 which were not in any county; felonies committed there (like those on the high seas) could not be tried by jury until 1536 when a statute gave the crown power to appoint a county by commission.3 Further, in 1549 a statute explained that if A wounded B in one county, and B died in another, then A could not be tried, because a jury of the first county will know nothing of the death, and the jury of the second county will know nothing of the wounding.4 Likewise, a felon in one county may be hanged, but his accessory who received him in another cannot be tried because a jury there will not know of the conviction.5
The representative idea of the jury was wearing very thin now that some of its consequences were being abrogated by the acts of 1536, 1549 and others.6 Survivals lasted into the nineteenth century: pickpockets in stage-coaches could be tried in any county along the route only after 1826,7 and the completely rational view of jury trial finally triumphed in 1856 when a trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.8 Its character was certainly not that of witnesses;9 it was indeed expected to speak of its own knowledge, but that does not necessarily mean that its knowledge must be as strictly first-hand as that of a modern witness. There is no trace of a requirement that jurymen should themselves have witnessed the events in question. Indeed, that would often be impossible, especially in property cases—such as occurred in 1222 when a jury had to find the terms of a verbal lease made in 1170.10 Bracton has introduced some confusion at this point. He was writing a very big book and had a tendency to fill in the gaps of native English law from other sources, and so there is always difficulty in distinguishing between Bracton as the expositor of contemporary practice and Bracton the idealiser and scholar of foreign learning. In one passage1 he gives us a list of challenges which can be used against jurymen, and seems to have imported the exceptions against witnesses which were available in canon law, and used them as challenges against jurors.2 However this may be, he is surely describing contemporary practice faithfully when he shows us how the justices will help the jury to express an uncertain verdict in more satisfactory form, adding:
“If the jurors are altogether ignorant about the fact and know nothing concerning the truth, let there be associated with them others who do know the truth. But if even thus the truth cannot be known, then it will be requisite to speak from belief and conscience at least.”
Clearly, therefore, the jury spoke as representative of the countryside rather than as a body of witnesses.
EARLY OPINION ABOUT THE JURY
Bracton seems to be fairly satisfied with the jury as an institution, but other writers of almost the same date confirm the impression conveyed by the statute which we have just quoted. The Mirror of Justices, which was a vigorous criticism of the administration of the law written about 1290, contains a violent attack on the jury.3 In those parts of France also, where the jury for a time took root, there were protests against it as oppressive.4
From the reign of Edward I onwards the function of the jury was slowly being judicially defined; questions of law began to be separated from questions of fact,5 and gradually unanimity was required—although for some time there were doubts whether a verdict by eleven jurors was not sufficient, in which case the twelfth might be committed to prison.6
In 1468 Fortescue gives us a picture of jury trial which is to all intents and purposes in modern form. By this date he is able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath.1 A century later, Sir Thomas Smith gives a vivid account of a jury trial and shows not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury.2 Although this was becoming the practice, relics of the older order survived, and we have the perennial spectacle of trouble caused by casual reform which did not make a clean sweep of the past. Just as Fortescue harked back to an obsolete conception of the jury in saying that a man who volunteered to give evidence would be punished for maintenance (for he ought to have waited until the jury went to his house in the country to ask him what he knew3), so too, while Sir Thomas Smith was describing the jury as a purely judicial body, and statute was compelling the attendance of witnesses,4 jurors were still allowed to use their own knowledge in reaching a verdict,5 and might reach a verdict although no witnesses and no evidence had been produced.6
THE EARLY HISTORY SUMMARISED
From one common origin, therefore, we have derived several varieties of jury. On the criminal side the royal inquisition became the grand jury for presenting criminals, and when the older forms of trial ceased to function then a trial jury for indicted prisoners was assembled from the indictors and the neighbouring vills: simultaneously, many appellees avoided trial by battle by purchasing from the crown the privilege of a jury, and so we get the trial jury for felonies. On the civil side the royal inquisition became available to private litigants for the trial of right to real property, and the petty assizes, with the “grand assize”, were clearly the model for jury trial in writs of entry and other real actions. Somewhere between these two lines of development there lies the action of trespass. According to one view it derives from the appeals of felony; others trace it to the petty assizes. However that may be, jury trial almost immediately became normal in trespass, both for the trial of misdemeanours and of torts. In the end, trespass and its derivatives supplanted the old real actions (and also the old personal actions of debt, detinue, etc.) with the result that all the civil trial juries now in use descend directly from the jury in trespass, as likewise the juries for the trial of misdemeanours.
7.
Post-mediaeval problems
THE REVIEW OF VERDICTS
Even as Fortescue wrote, however, jury trial, both civil and criminal, had already entered upon its decline, and there were numerous complaints of the corruption and partiality of jurors. The heavy expense falling on jurors was evidently a problem. Jurors attending the eyre at Bedford in 1330 seem to have been paid
