During the reign of King Henry II., the law provided for a tribunal called the assise, which was comprised of twelve knights, who were empanelled to determine by their testimony a disputed question concerning lands, etc. According to Canon Stubbs, by this law Henry II. became the inventor of the system of trial by jury. These jurors were selected from the county or hundred in which the cause of action accrued and the party resided, and it was necessary as a qualification that they should have personal knowledge of the facts of the controversy, and, indeed, they were a jury of witnesses, and for many years trial by jury was, in fact, trial by witnesses, the only disqualification being perjury, serfdom, near relationship, enmity and intimacy; and if it was found, after they were summoned, that they did not know the facts in dispute, others were summoned until at least twelve were found who knew and agreed upon the facts; and if the jurors when chosen were not unanimous, others were to be added to the number until twelve agreed. This was called afforcing the jury, and a verdict was conclusive.

Afterwards, about the year 1200, the "attaint" originated in England, which was a remedy for trial in civil actions, and was tried by a jury of twenty-four, and the jury so summoned were called attainters, and a contrary finding by them to that of the original jury amounted to a conviction of the original jury; but this gradually fell into disrepute and became obsolete, and it was then the Courts adopted the ancient precedent of directing the sheriff to summons a new jury; and in the year 1655 it is supposed that the question of new trials was adopted by the English judiciary. The system, requiring as a qualification that the juror be one who had knowledge of the facts in issue, maintained in England until about the time of the reign of George III., although in 1670 it was held that where a juror had knowledge of facts material to an issue he must inform the Court and be sworn as a witness, although prior to that there had been no use for witnesses other than a jury. But Lord Ellenborough, in case of Rex vs. Sutton, 4 Maule & S., 532. laid down the principle that a judge who tolerated a verdict based on facts not brought out by the evidence, but founded purely on the jury's knowledge, was clearly in the wrong, and

by the statute of 6 Geo. IV., Chapter 50, the qualifications of a juror were changed, simply requiring him to be a good and lawful resident from the body of the county. This principle

still remains.

The institution of the jury and jury trials had about arrived at its maturity upon the settlement of the colonies in this country, and the common law of England was brought by the colonists to this country as a part of the jurisprudence. The right of trial by jury was held to be an inalienable right by the colonists, both in civil and criminal cases, although it is a curious fact that the Constitution of the United States, as originally adopted, in no wise refers to trial by jury for civil cases. The champions of the Constitution were successful in securing its adoption in the original form, but the pressure of public opinion was so strong that the first Congress presented a provision amending the Constitution, which is in Article VII. of the amendments, and the same provision is contained in the Constitutions of most of the states of the Union.

Originally, criminal prosecutions were both presented and tried by a body similar to our grand jury, but in about the year 1215, after the abolition of the Ordeal, petit juries were used for the trial of criminal accusations which had been presented by the grand jury. When this system first became in vogue, the accused was allowed, for a consideration, a jury when he asked for it, but afterwards this law was changed, until now, by the laws of England and by the laws of every state in the Union, criminals are given the right to a trial by jury. In Scotland, the jury system existed from an early date, and in criminal cases a jury always consists of fifteen, a majority of whom was sufficient to convict. In Ireland, and almost all of the colonies of Great Britain, the jury exists substantially as in the mother country. In Portugal, the jury, by the act of 1838, was limited to six, while a verdict must receive at least the assent of two-thirds. In Belgium, trial by jury of all criminal and political charges, and for offenses of the press, is constitutionally guaranteed since its separation from Holland. Italy also provides for trial by jury in criminal cases. Sweden, the jury is never summoned except in cases affecting the liberty of the press. In Norway, trial by jury in criminal

In

cases was established in 1887, and a majority may render a verdict. In Russia, since 1864, they have a jury system, but poorly executed. In Switzerland, all crimes against the confederation must be tried by jury, and it is said, upon good authority, that the jury system is in vogue in all the South American states, in criminal cases, their civil jurisprudence being based on the Roman law. The Hawaiian Islands provide for a jury of twelve in both civil and criminal cases, nine of whom may render a verdict. In France, no civil jury or grand jury exist, while in criminal cases trial by jury is constitutionally guaranteed. In Prussia, the law provides a jury in criminal cases, and a verdict of the majority of a jury composed of twelve.

It is claimed, and there are many interesting articles written upon this subject, that the right of trial by jury originated in the Magna Charta, which, in the popular version, is usually rendered that "No man shall be deprived of life, liberty or property, save by the judgment of his peers and the law of the land." High authorities, as Blackstone and Coke, disagree upon this proposition; but the later modern authorities and writers upon this subject agree that the trial by the judicium parium is of far greater antiquity than that by the jury, for it was brought over from the continent by the Anglo-Saxons and had flourished for long years afterwards; and Forsyth, in his modern work upon jury trials, says: "That it is a popular and remarkable error that the stipulation for the judicium parium in Magna Charta referred to the trial by jury." It was a phrase perfectly understood at the period of Magna Charta, and the mode of trial had been in use long before in France, and in all parts of Europe where feuds prevailed. It was essentially different from the trial by jury, which could never be accurately called judicium parium. We read frequently in the records of those times (and even in Magna Charta itself), of juratores, of veredictum, all of which expressions refer to a jury; but not a single instance can be found in any charter in which the jury are called pares or their verdict judicium.

Hence that term, pares, properly applies to the members of the feudal and county Courts. And it seems, from the weight of authority upon this proposition, that trial by the judicium

parium, as mentioned in the Magna Charta, had no connection whatever with the trial by jury, but, according to Judge Cooley, "was the peculiar and well-known feudal process, by which the lord with his vassals sat to try questions of title between others of his vassals" (pares). It is quite probable, however, that the alternative phrase, per legem terræ, was intended to include trial by jury.

I have thus far, in the limited time given me, attempted to trace the original history of the jury system down to the present time, and in doing so I have been greatly aided by the work of M. A. Lesser, of the New York bar, on Jury Trials, pub-` lished in 1894.

The study of the origin and development of this wonderful system is a most interesting one, and one which should receive the attention of every lawyer of the present day; and it seems from an investigation that the institutions of the Normans, as introduced into England, really furnished the foundations for our present jury system.

Canon Stubbs, in his Constitutional History of England, says: "Many writers of authority have maintained that the entire jury system is indigenous in England, some deriving it from Celtic tradition, based upon the principles of Roman law, and adopted by the Anglo-Saxons and Normans from the people they had conquered; others have regarded it as a product of that legal genius of the Anglo-Saxons, of which Alfred is the mythic impersonation, or as derived by that nation from the customs of primitive Germany, or from their intercourse with the Danes. Nor even, when it is admitted that the system of recognition was introduced from Normandy, have legal writers agreed as to the source from which the Normans themselves derived it. One scholar maintains that it was brought by the Norsemen from Scandinavia; another, that it was derived from the processes of the canon law; another, that it was developed on Gallic soil from Roman principles; another, that it came from Asia through the Crusades." An American authority insists that it is "undoubtedly a development of English institutions and civilization." Again, it is suggested that it was borrowed by the Angles and Saxons from their Slavonic neighbors in northern Europe; it has been traced to the assises

de Jerusalem of Godfrey de Bouillon; it is even claimed to be of divine origin; and finally, a French scholar despairingly exclaims: "Son origine se perd dans la nuit de temps." (Its origin is lost in the darkness of the ages.)

There is at this time, among attorneys and writers, a great difference of opinion as to whether the present jury system should continue to be maintained as a part of our jurisprudence, or whether it should be abolished entirely, or whether it should be modified. While many arguments can be advanced, and are advanced, and plausible arguments at that, showing why the jury system should be abolished, still I believe that a system which has been maintained in this country and in England for so many years, and against the results and operation of which so little can really be said, must have such merit that it should remain a part of our jurisprudence.

It is claimed that juries, summoned as they are from the body of the county, and from all walks of life, and brought into the court-room to hear the testimony, cannot give it the consideration it deserves, and that it would be much better to have the evidence in a case submitted to persons whose minds are trained to listen to arguments and testimony, and to weigh and distinguish between what is material and what is not.

Many eminent lawyers and jurists have written articles and papers containing strong arguments that the jury system should be abolished. In 1882, Albert Stickney, a prominent lawyer of the New York bar, wrote a strong article, which was published in the November number of the Century Magazine, entitled, “Is the Jury System a Failure?" which was followed later, in April, 1883, by a very caustic letter in reply to criticisms upon his former article.

Mr. William L. Scott, of the St. Louis bar, in Article XX., American Law Review, page 661, also attacks the system in a strong letter. And from an investigation it will be found, I think, that opinion is very evenly divided, whether the jury system, in its present form in this country and England, should be either abolished or at least amended.

It is claimed by many that the rule of unanimity of verdicts should be changed, so that a majority verdict, in civil actions at least, should be received. But Mr. Stickney, in his article,