JURY, a certain number of men sworn to inquire into and try a matter of fact, and to declare the truth upon such evidence as shall appear before them.

Jury Trial. The method of trial by jury is one of the most ancient of judicial institutions; so ancient, indeed, that its origin lies beyond the commencement of authentic history amongst the nations of Europe, particularly in the north. In the earliest of the Scandinavian [7:12:650]• histories, it is spoken of or referred to as familiarly known. The oldest code of Iceland, composed in the beginning of the tenth century, also treats of it as an existing institution; and so also does the most ancient Norwegian code, the precise date of which has not been ascertained. Kofod Ancher, a sagacious critic and eminent lawyer, does not scruple to admit the authority of the Edda, from which it would appear that Odin had introduced this method of trial into Scandinavia. But all that the Edda says is, that Odin ordained the twelve Asagods to adjudge all causes in the metropolis of Asgard. It is curious to observe, however, that the old juries invariably consisted of twelve; a number which seems to characterise the institution as one of high antiquity; for as the verdict was commonly given by the majority, an uneven number would have been preferable, to avoid the contingency of an equality of votes. Saxo informs us, that Ragnar Lodbrok, who, according to Torfoeus, governed Denmark between the years 750 and 790, first instituted trial by jury; but the authority of this monastic writer is not such as to induce us to attach much importance to his statement. In fact, the Edda is a much better historical authority than Saxo; and, according to that record, trial by jury is several centuries older than the commencement of Ragnar Lodbrok’s reign, in the year 750 of our era. But the precise antiquity of this institution cannot now be determined. We find that it was in existence at the earliest dawn of northern history, and spoken of as a mode of trial then familiarly known; but beyond this all is conjecture. We can trace it as far back as a thousand years; this is the farthest limit to which legal antiquaries have carried their researches, the history of northern Europe, before that period, being involved in Cimmerian darkness.

It seems pretty certain, however, that, though trial by jury was early known in Scandinavia, yet it was not so generally resorted to before the beginning of the tenth century as afterwards. In these rude times, trial by battle often superseded trial by jury. Men of rank, or in other words warriors, always preferred it; they would have deemed it pusillanimous to submit any cause in which they were concerned to the decision of a jury. The weak and the aged alone claimed the benefit of this mode of trial; and women frequently appealed to it. Even after it had become common, the trial by battle, when demanded with certain legal formalities, was admitted in preference. In Scandinavia, however, this species of trial is of pagan origin; that is, it was in use prior to the introduction of Christianity into that northern region. But as the relations of society multiplied, and differences increased both in number and nicety, the inconvenience of such a mode of trial began to be felt. The jus fortioris, barbarous in itself, had no powers of adaptation. A man sometimes became involved in a new law-suit before he bad recovered of his last wounds; some were prevented by the infirmity of age from prosecuting a cause in itself just; others had no male relations to espouse it for them; and a third class, though firmly convinced of the justice of their cause, were as fully persuaded of the superior strength or dexterity of their adversaries. Thus, the trial by battle became gradually unpopular; and hence, when the Christian faith began to be generally received, it rapidly declined, though without being entirely abolished.

In this state of things trial by jury would, in all probability, have become universal, if the clergy, who soon acquired great influence both with sovereigns and subjects, had not introduced a new mode of deciding causes. This was the Christian ordeal, which was more the result of circumstances than of any preconcerted design. The clergy had to preach a new faith to people slow of belief; and, as the arguments which they advanced in support of it were chiefly founded upon recorded or traditionary miracles, their sceptical hearers naturally asked, “Show us one such miracle, and we will believe.” The validity of this reasoning has always been admitted by the Catholic clergy, who, accordingly, set about working miracles. Hence the origin of the Christian ordeal, which agreed with the trial by battle in this, that it was an appeal to heaven, though in a less rude and barbarous form. To a miracle said to have been performed by Bishop Pappo in Jutland, where, according to the legend, he put his hand in an iron glove red-hot, and withdrew it unhurt, is attributed the introduction of this method of trial into Denmark. This is a point which Ancher considers as established. But, whatever may have been the occasion of introducing it, the clergy endeavoured to substitute for every other kind of trial that which they called “the judgment of God ;” and from this period the ordeal was frequently employed in all the countries of the north, particularly in Denmark, and in that part of Sweden called Scancy or Scania. In the code of laws still preserved, and known under the name of Shaanshe Lov, or Lex Scanica, the crdeal of hot iron is expressly ordered to be employed, particularly in cases of theft. This mode of trial subsisted during two centuries and a half; but, though frequently employed during that period, it was always regarded with suspicion and distrust by the greater number of the laity. It afforded occasions for jugglery and deception to which the most ignorant could scarcely be altogether blind. By a little dexterity of management, the innocent might be condemned, and the guilty suffered to escape.

We have already seen that the insufficiency of the trial by battle was early felt, and that, as society advanced, the law of the stronger fell into disuse. The same fate likewise awaited the trial by ordeal, which, being substituted in its stead, long retarded the adoption of trial by jury. But, whilst each of these three modes struggled for pre-eminence, that by jury was always considered as the most normal or regular; and hence the appellation of law, which, in Denmark, was applied to a jury of a particular description. The trial by battle, and the ordeals, were no doubt recognised and admitted by the law; but every one felt that the trial by the country was the only one to which the term legal could with propriety be applied. That form of trial was the law, κaτsξοχ ι ην, although the other forms were not contrary to the law; and this superior legality the ancients vindicated, in the strongest manner, by the term they employed. Thus, in the history of the northern judicatories, we recognise, first, the trial by battle ; secondly, the trial by ordeal ; and, thirdly, the trial by jury. This, however, is to be considered only as the order of general usage or practice; for, although some theorists have assumed that trial by battle is the most ancient mode, there is sufficient evidence to prove that which we have already stated, that amongst the northern nations trial by jury is at least of equal antiquity. In fact, it cannot be said that the most ancient codes sanction any other form of trial than that by jury. In none, not even in those of the tenth century, is the trial by battle even mentioned; and very few have prescribed the ordeals, which, being ecclesiastical inventions, must consequently be sought for chiefly in the ecclesiastical codes. But all the ancient laws abound with references to jury trial, and contain elaborate regulations respecting its form, applications, contingencies, and uses. ∙ Hence it may, with some confidence, be concluded that the trial by jury is the most ancient strictly legal mode of trial which obtained in the countries of the north.

The time was when it would have been considered necessary to inquire whether any enactment respecting jury trial occurs in the Sachsenspiegel ; a code which, according to an opinion once universal amongst jurists, had been [7:12:651]compiled in the time of Charlemagne. But Couring, in his work De Origine Juris Germanici, has demonstrated that the Sachsenspiegel was compiled subsequently to the year 1230, though soon after that period; and this is also the period to which a philologist, unaided by history or jurisprudence, would refer that compilation. In fact, the Sachsenspiegel itself contains evidence that it was composed after the council of Lateran, held in the year 1215; for it mentions a prohibition against matrimony in the fifth remove, which was first issued by that council under Innocent IΠ., though the bull on the same subject was not published until 1230; and hence it is probable that the Sachsenspiegel was not compiled until after that year. But as jury trial had been introduced into Britain, and other northern countries, long before this period, it follows that the authority of the Sachsenspiegel (a crude collection of ancient customs, moral precepts, legendary divinity, and nursery tales), is of no avail whatever in the present question. Yet, even in this code, something may be found analogous to the institution of jury trial, though, upon examination, it will be found difficult to determine whether the mode of trial indicated in the Sachsenspiegel should not be considered as τvager of law, rather than trial by jury in the strict acceptation of the terms.

The case is quite different with respect to the ancient Saxon as well as Frisian law, two codes (if that which may easily be printed on a sheet of paper deserves the name of code) of high antiquity. The Saxon law is written in Latin, a language unknown in Saxony before the time of Charlemagne. It was discovered in the library of Fulda, and first edited at Basil by John Herald, in the year 1557. It is a Christian code, addressed to the Saxons, over whom the ancestors of Charlemagne had no authority, and with whom they had little or no intercourse. Spelman (see his Glossary under the term Lex Saxonurn) attributes this code to Harald Bluetooth, king of Denmark, who reigned about the middle of the tenth century; and in this opinion he is supported by Adam of Bremen, Helmold, and Albert. But are the laws which Harald gave to the Transalbians and Frisians identical with the Leges Saxonum of Fulda, and with the Frisian laws which Siccama edited? We cannot say that this is certain; but it is at least highly probable, and such undoubtedly was the opinion of Spelman. Mr T. G. Repp, who has discussed this subject with much learning and ability, sums up his reasoning by stating that the Capitularia and the Leges could not emanate from the same legislator; that the Capitularia are justly attributed to Charlemagne, who could not, therefore, be the author of the Leges ; that, as the Leges abrogate an enactment of the Capitularia, the former are consequently of more recent date; and that, as there is only a question as to two legislators, if Charlemagne be not the author, the Leges must he ascribed to Harald.

From these codes, if they may be called such, we find that the Saxons had no juries in the strict modern acceptation of the term. They had only wagers of law. A man, when accused of a crime, either paid a certain fine, or, if he wished to establish his innocence, he convened a certain number of persons, before whom he cleared himself by oath of the crime with which he was charged. From the words used in the Saxon and Frisian law, it is not clear in what manner the conjuratores were bound to swear; but it seems probable that they only affirmed upon oath their belief that the accused was innocent. The number of the conjuratores varied according to the magnitude of the crime; and the fine, in case the accused tailed to prove his innocence, varied in the same ratio. For crimes of the least aggravated kind only three compurgators were required; for those of a more heinous character six were necessary; and for such as were marked by peculiar atrocity, eleven, the accused himself being the twelfth. Lut there were some crimes for which no fine was deemed a sufficient expiation; and in these cases no wager of law is mentioned, because it was not allowed. From the nature and constitution of this mode of expurgation, it is obvious that unanimity was indispensable. This seems to be implied in the words Undecima manu jurat; nor could it well be otherwise, seeing that the accused chose his own jurors or compurgators.

Although Norway derived from Sweden the stock of its actual population, and the first seeds of civilization, yet, strangely enough, there are preserved Norwegian codes of higher antiquity than any now extant in Sweden. The history of Norwegian law has been divided into three periods; the first commencing in the reign of Hakon Athelstane, about the year 940; the second in the reign of Magnus, about 1274; and the third in 1397, at the union of Calmar. During all these periods, the trial by jury was more or less used, and invariably prescribed by law. In the first and second periods its use was universal, scarcely any cause of importance being decided without the intervention of a jury; but in the second period, the authority of the jury was modified by the judges acquiring greater authority in every judicial decision, and exercising, as they still do, an influence on the verdict; and, during the third, this authority and influence increased so greatly, that, by the end of the seventeenth century, the functions of the jury had become almost nominal, and, in many cases, were entirely superseded. The constitution of Norwegian juries is clearly explained in Lagaboetir’s amended Law of Gulathing (b. i. c. 2 and 3), promulgated by King Magnus; thing, in the Scandinavian countries, signifying an assembly of the deputies of the people. The Logman or Lawman presided, and his function originally was to recite the laws of the land, which he knew by heart; but after the promulgation of King Magnus’s code, he had only to state the king’s written law, to interpret it, and to point out the portion which applied to each particular case. It is not certain by whom, practically, juries were most frequently selected; but, from the northern codes, it appears that they might be chosen, first, by the deputies from their own number; secondly, by the lawman; thirdly, by the officers of the crown; and, lastly, by the parties themselves. It seems prqþable, however, that in Norway, juries were commonly chosen by the deputies. In the old Saxon, Danish, and Icelandic laws, a simple majority of the jury decided finally, and without appeal, in every case brought before them. But Magnus, in the event of a difference of opinion, gave the power of decision, not to the majority, but to the lawman along with the minority; reserving to himself the privilege of reversing their verdict, in the last resort, and, if he so pleased, affirming the deliverance of the majority. Further, by the code of this prince, the lawman was for the first time constituted a judge; the judicial authority of the crown was extended; unanimity was not insisted on, any more than in other Scandinavian laws; the king was virtually constituted supreme judge; and it was-provided, that in all cases where the law did not decide, that was to be considered as the law which the jurors agreed upon.

We find jury trial described in the ancient codes of Sweden, a country where the regulations respecting it are in some instances stricter and more detailed than in Norway, where this institution has been more fully developed for the trial of every description of causes, and wĥere, also, it has longer subsisted in full force. There were several kinds or species of jury in Sweden, viz the Lawman’s, the Bishop’s, and the Hundred’s jury; but in all, the decision of the majority was final. The circumstances and ceremonies attending the election of jurors, [7:12:652]the qualifications which rendered them eligible, the parties who elected them, the oath which they took before proceeding to try a case, and the validity of their deliverance or verdict, together with the functions of the lawman, will all be found stated and explained in Mr Repp’s very curious book, to which the reader is referred. The king’s jury consisted of twelve, and constituted a species of appeal court; it took cognisance of all offences against the public law of the state calculated to disturb or molest the people; and its decision was in every case final. No servant could be a juror; they required to be men having a fixed residence; and persons of infamous character or lawless habits were also excluded. The absence of a juror subjected the absentee to a heavy fine. Causes of every description appear to have been tried by Swedish juries. Important questions of property, as well as criminal cases of every kind, were referred to their decision; they formed a sort of mixed tribunal, by which the law as well as the fact was determined; and, in particular circumstances, they acted as a court of review, as in the case of the king’s jury on the Landsthing, before which causes o. great importance came ultimately for decision. In fact, the only limitation (if limitation it maybe called) in the authority of the jury to judge and decide, consisted in this, that cases of minor importance which occurred between terms, were adjudicated by the magistrate or the lawman, whilst all causes of moment were reserved for the cognisance of the jury.

The subject of Danish juries has been ably treated by Peter Kofod Ancher, for many years professor of the civil law in the university of Copenhagen, a writer who, in his Dansh Lovhistorie (Copenhagen, 1769-1776, in 2 vols. 4to), has surveyed ancient judicial institutions with a scrutinising eye. Ancher is by no means an admirer of this form of trial; but, as he is a conscientious and critical historian, he takes pains to place every fact in its true light, without reference to his own particular views or opinions. According to him, there were four kinds of persons employed in the ancient courts of Denmark to adjudicate causes; and these were either regular jurors, or conjuratores in a wager of law, or persons who, from the principles on which they were nominated, resembled these. He then proceeds to consider each of the four classes separately, viz. first, the Tingmaend or Thingmen, that is, those who frequent a Thing, or are enjoined by law to be present at it; secondly, the Naevningcr, or regular juries, an institution of very high antiquity in Denmark; thirdly, the Sandemcend or Truthsmen, who were employed for deciding important causes, and took cognisance of homicide, cutting and maiming, rape, armed aggression, disputes respectingboundaries, and questions in which church property was concerned; and, lastly, the Wager of Law in Denmark. For ample details under each of these heads, we refer to Anchor’s work above mentioned, and also to the distinct and satisfactory abridgment of his investigations, given by Mr Repp in his book on Ancient Juries. It is sufficient to state here, that in Denmark trial by jury was not resorted to excepting in causes of importance, and that particular care was taken that none but good and impartial men should be chosen as jurors. They were selected from the inhabitants of a district generally; no friend or relative of the parties could be chosen; and they required to be men of substance, “three-marks-men,” who could pay a compensation to the injured party, in case they found a wrong verdict. The number of Danish jurors was originally twelve, a number common to all the northern countries; but, at subsequent periods, the law of Denmark in this respect was somewhat changed. In Scania the jurors were twelve, but the accused was permitted to challenge three; and the Scanian law provided that the prosecutor should either nominate fifteen, or that, if three were challenged, he should pray a tales to complete the number twelve. The Jutland law, chary of numbers, provided that there should only be eight jurors in each hundred, or two in each quarter; but kindred jury, as it was called, consisted of twelve, as well as juries which took cognisance of forgery, arson, and highway robbery. By the law of Erik, the number of jurors in the more important class of cases was thirteen, and in the less important seven, that is, twelve, and the half of twelve, with one additional to secure a majority. In fact, the basis of all the numbers of jurors is the number twelve. In Denmark, as in Sweden and in Iceland, the cause was decided by the suffrages of the majority of the jurors impannelled in each case.

From these historical notices, it appears that trial by jury, in one or other of the various forms under which it is found, was not only of great antiquity amongst the northern nations, but employed to an extent of which, in this country, we have hitherto had no adequate conception. Nor can it be doubted that, for the institution which we now justly regard as the palladium of liberty, and one of the best safeguards against the arbitrary abuse of power, and which time and experience have enabled us to adapt to a more advanced state of society, we are indebted to those nations which we are perhaps a little too prone to undervalue, and which, even at a period of comparative barbarism, seemed to have fully divined the benefits which might accrue from this mode of deciding causes, whether civil or criminal. For accounts of the origin, progress, and improvement of jury trial in our own country, we must refer the reader generally to its history, and, in a particular manner, to the different institutional writers. (See Repp’s Historical Treatise on Trial by Jury, Wager of Law, and other co-ordinate Institutions ; also Blackstone’s Commentaries on the Law of England, b. iii. c. 22, § 6.) (a.)