Front Page Titles (by Subject) SECTION II: Of the Petty Jury—and the Grand Jury. - An Historical View of the English Government
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SECTION II: Of the Petty Jury—and the Grand Jury. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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Of the Petty Jury—and the Grand Jury.
From the progressive alterations, which have been mentioned, in the English courts of justice, it is natural to conclude, that the judges were continually advancing in experience and knowledge, and that the forms of judicial procedure were daily attaining higher degrees of perfection. Of all the institutions relative to the management of judicial business, which may be considered as the effect of that improvement, those of the petty jury, and the grand jury, are most deservedly the boast of English jurisprudence; and as, in the period which we are now examining, both of them appear to have arrived at their complete establishment, a review of the circumstances from which they proceeded, and of the steps by which they were introduced, may not be improper.
1. I had formerly occasion to observe, that, under the government of the Anglo-Saxon princes, the chief magistrates of the several<289> counties and hundreds, found it unnecessary, in the determination of law-suits, to call a full meeting of the courts over which they presided; and, for the greater dispatch of the business, as well as for the ease and convenience of the people, were accustomed to select a certain number of the freemen, or allodial proprietors, in each particular cause, to assist in giving a decision. Hence the first idea of the petty jury was probably suggested.
In a subsequent period, a similar practice was adopted in the courts of a barony. When the vassals of a superior had acquired hereditary fiefs, they were no longer under the necessity of submitting to his arbitrary will; and in regulating their conduct, as well as in distributing justice among them, he found it expedient to act with their advice and concurrence. To have assembled the whole of his vassals, for the determination of every law-suit, would have been too great a hardship upon them; but a moderate number were convened, in order to satisfy the parties, and to give weight and authority to the sentence.
The calling, occasionally, a number of the vassals, in each case, to assist the superior, was<290> a more natural expedient, than the appointment of certain permanent assessors. It was attended with no trouble or expence; for every vassal was bound not only to fight for the superior, but also to perform such other services as might be requisite, in order to support his authority and dignity. According to the simple notions of that age, these persons were sufficiently qualified to determine the points referred to their decision; more especially as they might receive advice and direction from the magistrate. In some respects they were held even preferable to every other sort of judges; being men of the same rank and condition with the parties; and, from their situation, having frequently access to know the state of the controversy, as well as the circumstances of the facts in question.
The introduction of juries in the courts of a barony, arose from the establishment of hereditary fiefs; for, so long as vassals held their land precariously, or even were not secure of transmitting it to their posterity, they had too much dependence upon their superior, to dispute his authority, either in settling their differences or punishing their offences. We may<291> easily suppose, therefore, that, under the Anglo-Saxon government, this mode of procedure was not very common; because the custom of securing landed estates to the heirs of a vassal was then far from being general. It is from the reign of William the Conqueror, that we may date the remarkable extension of jury-trials; proceeding partly from the imitation of Norman or French customs; but still more from the completion of the feudal system, and the consequent multiplication of hereditary fiefs.
It merits attention, that this institution had been hitherto limited to the hundred and county courts, and to those of a feudal barony, but never had taken place in the judiciary proceedings of the national council. The causes which came under the cognizance of the Wittenagemote were not so numerous, as to create much trouble to its members, or to suggest the measure of devolving that branch of business upon any sort of committee, or partial meeting, in place of the full assembly.
Upon the establishment of the Anglo-Norman parliament, its ordinary judicial business<292> was, in a short time, committed to the aula regis; a court which at first consisted of several members, but was afterwards held by a single magistrate, the deputy judge of the sovereign. This tribunal was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron-courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury. As the vassals of the crown were usually more independent of the king, than the rear-vassals were of their immediate superior; it is not likely, that, while justice was administered by the pares curiae to the latter, the former would submit to the decisions of a single magistrate, named at pleasure by the sovereign. We find, accordingly, that, by a general law in the reign of Henry the second, either party in a law-suit was allowed to decline the customary mode of trial by single combat, and to demand that his cause should be determined by an assize or jury of twelve persons. From this time forward, there can be no doubt that jury-trials were admitted in all the courts of ordinary jurisdiction. They are expressly re-<293>cognised and established by the great charters of king John, and of Henry the third.*
When the office of the grand justiciary was abolished, in the reign of Edward the first, and when the powers of the aula regis were distributed to the king’s bench, the common pleas, and the exchequer, it was natural for these courts to follow the same forms of procedure which had been observed by that high tribunal to which they were substituted. The former practice of determining law-suits by a jury, was doubtless viewed, at the same time, in the light of a privilege, which the nation would not have been willing to resign. The number of judges, in each of the courts of Westminster-hall, was much inferior to that of the ordinary assize; and, as they were not men of the same rank with the parties, it was not likely that the same degree of confidence would be reposed in them. To have transferred the powers of an institution so popular as that of juries, to a set of courts constituted in this manner, would, notwithstanding the late advances of prerogative, have been a<294> dangerous measure. What is called the petty jury was therefore introduced into these tribunals, as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or fiscal.
In the high court of parliament, however, this method of trial was never admitted: being neither found requisite for the convenience of the members, nor conducive to the interest of parties. It was not requisite for the convenience of the members; because the trials which came before parliament were few, and speedily brought to an issue. It was not conducive to the interest of parties; because they were better secured from partiality and oppression, by a judgment of the whole house, consisting of all the crown vassals, than they could expect to be from a decision given by a limited number of those vassals, arbitrarily appointed by the president.
It has been questioned, whether an institution, similar to that of the petty jury in England, had place in any of the nations of antiquity. Among the Greeks and Romans, as<295> far back as we can trace the history of their judicial establishments, it does not appear that the inhabitants of certain districts were ever invested with jurisdiction, or that a part of their number were in each trial selected by the ordinary magistrate to assist him in giving a decision. The ordinary courts of Greece and Rome were composed of a chief magistrate, and of certain assessors; but these last were permanent officers, appointed, as it should seem, from year to year, or for the same period with the magistrate himself.
The Roman judex pedaneŭs,7 indeed, was nominated for each trial; but he was originally no more than a commissioner for taking a proof of the facts in question; and, although he was afterwards empowered, in many cases, to determine the law, as well as the fact, the intention of his appointment was not to give weight and authority to the decision, but merely to relieve the magistrate and his assessors from a part of their labour.
Among the Gothic nations of modern Europe, the custom of deciding law-suits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the<296> hundred, and afterwards in the baron-courts of every feudal superior. The same custom, however, does not appear, in any European kingdom except England, to have been extended to those great courts, which, upon the advancement of civilized manners, arose out of the national council, and were invested with the principal branches of ordinary jurisdiction.
The cour de roy, in France, was not, like the court of the grand justiciary in England, reduced under the direction of a single magistrate; but consisted of an indefinite number of the same persons who sat in the national assembly. The parliament of Paris, formed out of the cour de roy, was likewise composed of as many of the nobles as chose to attend; with the addition of a body of lawyers, who, it was understood, were to direct the forms of procedure, and to take upon them the drudgery of the business.* The parliament<297> of Toulouse, which was authorised at the same time, and the other parliaments which were afterwards formed in particular districts, conducted themselves upon the same principles with the parliament of Paris; and, as all of them were composed of a numerous council of judges, the intervention of a jury, to prevent erroneous judgments, or even to secure the parties from oppression, was the less necessary.
This observation is applicable to the principal courts of the German empire. The aulic council was composed of an indefinite number of the same persons who had a right to sit in the diet. The imperial chamber was a numerous council of judges. In both of these tribunals, therefore, the assistance of a jury was probably thought unnecessary.
In Scotland, the court of the grand justiciary came to be established upon the same plan as in England; and admitted, in like manner, the form of jury-trials. But upon the division of the powers of that court into different branches, the civil tribunal, then introduced, was a committee of parliament; that is, a committee of those crown-vassals of<298> whom juries had been composed. By one or two variations of that model, was formed the present court of session, which was made to consist of fifteen ordinary judges, the usual number of jurymen in Scotland; with a view, it should seem, to supersede the use of jury-trials: and as this mode of judicial procedure was laid aside in the principal civil tribunal, the example appears to have been quickly followed in the inferior civil courts of the kingdom. In the court of justiciary, however, which consisted of a smaller number of judges, and consequently in the inferior criminal courts, the ancient practice of jury-trials was continued.
Beside the circumstance now mentioned, relating to the constitution of the principal courts of justice in several European kingdoms, the influence of the ancient Roman law, as delivered in the compilations of the emperor Justinian, was another more general cause, which contributed to the disuse of juries through the greater part of Europe. Upon the revival of letters in Europe, that improved system of jurisprudence was recommended and propagated by the clergy; was taught,<299> under their direction, in almost all the universities; and its decisions and forms of procedure were considered by the civil magistrate as models for imitation. The Gothic institution of juries, which had been unknown to the Romans, was therefore brought more and more into discredit; and, that the whole cognizance of a law-suit should be committed to judges, who, by being set apart for that purpose, and by devoting themselves to this employment, might become peculiarly qualified for the exercise of it, was regarded as an improvement in the state of judicial policy.
In England, where, from circumstances that will be mentioned hereafter, the Roman system was less incorporated with the common law than in other countries, the custom of jury-trials has, accordingly, been most religiously maintained. But even in England, this custom has been totally excluded from ecclesiastical tribunals, from those of the two universities, and from all other courts in which, from particular causes, the maxims and principles of the civil law have been adopted.
Scotland was, in some degree, under the influence of opposite systems; and seems, upon<300> that account, to have held a middle course. Like the nations upon the continent, she was led into a close imitation of the Roman decisions and forms of procedure; while, by her vicinity to England, she was induced to borrow many regulations and customs from that more cultivated and powerful country. Thus the Scottish tribunals imitated the English, by retaining a jury-trial in criminal prosecutions; but followed the practice of the Romans, by neglecting that institution in the greater part of civil actions. In the former, it was natural to entertain a greater suspicion of the court than in the latter; because in a criminal trial, the king, who nominates the judges, and to whom they must look for preferment, is always a party; whereas in a civil action, or controversy between private individuals, the crown has no interest; and there is commonly no circumstance to influence the magistrate upon either side, or lay him under a temptation to gross partiality.
It is not likely that the institution of juries would, in any country, be very acceptable to the sovereign; since it limited the power of those judges whom he appointed, and of whom<301> he had, in some measure, the direction. We may easily imagine, therefore, that, according as, among any people, the prerogative was exalted or depressed, its influence would be exerted, more or less effectually, in discouraging this mode of trial; and hence we may discover an additional reason for the continuance of juries in England. As the English were successful in reducing the power of the monarch within moderate bounds, and acquired proportionably higher notions of liberty; they became, of course, the more attached to that method of distributing justice, by which the disposal of their lives and fortunes was committed to their fellow citizens, rather than to officers in the nomination of the crown. They became not only the more passionately fond of this privilege, which had been handed down to them from their ancestors, but at the same time the more capable of maintaining it. There is no reason, indeed, to believe that this circumstance alone would have been sufficient to retain, in England, the practice of jury-trials; for other European states have had also the good fortune to restrain the prerogative, and to establish a popular government.<302> But this circumstance undoubtedly co-operated, with the other causes formerly mentioned, in rendering the people of England more tenacious of that ancient appendage of the feudal policy, and more jealous of every attempt, from whatever pretences, either to limit the power of juries, or to exclude them from the decision of particular causes.
2. In order to secure the regular distribution of justice, it is not enough that courts are properly constituted, and that judges are attentive to the determination of law-suits. The magistrate must also be informed of those cases which require his interposition; and measures must be taken for bringing them under his examination. A distinction, however, in this respect, may be observed between that branch of judicial business which relates to civil, and that which relates to criminal causes. In a controversy between private individuals, each party is likely to prove sufficiently attentive to his own interest; and may therefore be left to vindicate his own rights as he shall think fit. But when a crime is committed, which requires a punishment for the sake of a public example, there is danger that<303> the interest of the community will be neglected; that no information of the fact will be given to the judge; and that no person will take upon him the trouble, the odium, and the expence, of bringing an accusation. It is here that some regulation is necessary, to prevent the disorders that might be apprehended, from permitting criminals to pass with impunity.
Among the Romans, not only the person injured, but any one of the people, was allowed to prosecute a public offence. As the crime was understood to affect the whole community, any one of its members, being in some degree a sufferer, was entitled, upon that account, to come forward and claim redress.
It requires but little sagacity to discover, that this mode of prosecution was liable to great abuses. It was likely, on the one hand, to produce negligence in prosecuting crimes; and, on the other, to encourage unjust and groundless prosecutions. Few people were found so public-spirited, as to undertake the disagreeable task of convicting criminals, from the view of promoting the interest of society, while many were tempted to become public accusers, from secret motives of resentment<304> or malice, or even for the purpose of obtaining a pecuniary composition from the person whom they had found an opportunity to prosecute. To prevent this latter enormity, severe penalties were inflicted upon such as brought an unjust accusation of a public offence. In particular, it was enacted, that he who failed in proving his accusation, should suffer the same punishment to which, if he had been successful, the defendant would have been subjected: a regulation which, if strictly enforced, must have put an end to every capital prosecution: for who is there that will hazard his own life, upon the uncertainty of prevailing in any criminal trial?
In the modern feudal nations, the judge himself was originally the public prosecutor. Every feudal lord, whether a sovereign prince or a subject, was excited to punish offences within his demesne; not only from the desire of repressing disorders, but also from that of procuring fines and amerciaments. As representing the community, of which he was the leader and executive officer, he first brought an accusation against those whom he suspected of crimes: as the chief magistrate, he after-<305>wards examined the proof, and gave judgment in the cause.
The mischief attending this practice must have soon become notorious. It can hardly be supposed that the same person would acquit himself with propriety in the twofold character of an accuser and a judge. Even in the course of a speculative debate, men usually acquire a prejudice in favour of those tenets which they are endeavouring to support; and find it extremely difficult to preserve a degree of candour in judging of such as are advanced upon the opposite side. What shall we say then of a person who is engaged in preparing a public accusation; who sets out with a strong suspicion, that the defendant is guilty; who converses with informers, likely to employ every artifice to strengthen that opinion; and who, to pass over his pecuniary interest, involved in the issue of the cause, has exerted himself in collecting and arranging all the facts and arguments in confirmation of his hypothesis? How is it possible to avoid that blind zeal and prepossession, that eagerness to convict the defendant, acquired in the capacity of a prosecutor; and to behave with that impartiality, coolness, and<306> moderation, which are essentially requisite in the distribution of justice?
To prevent this dreadful enormity, and at the same time to secure a proper attention to the public interest, the prosecution of crimes was, in all the feudal countries, reduced into a separate employment by the appointment of a procurator or factor to act in the name of the sovereign. Hence the attorney-general in England, and the king’s advocate in Scotland, were appointed to manage the judicial business of the crown, before the principal tribunals; and a similar institution, from the same views of expediency, was even extended to inferior courts.
But, previous to the prosecution of offences, there must be information of their existence; and frequently, too, the immediate interposition of the magistrate is necessary, to apprehend and imprison the offender. In a rude nation, however, especially if it is of considerable extent, many crimes are likely to be hid from the public eye, and to escape the examination of any court. It appears, accordingly, that, in modern Europe, this branch of police had early become an object of general attention.<307> To make inquiry concerning the commission of public offences, and to transmit an account of them to the criminal court, was one great purpose of the appointment of coroners;8 a set of officers who had place not only in England and Scotland, but in the greater part, if not in all, of the feudal kingdoms upon the continent.
The office of the coroners, in England, is of so great antiquity, that the commencement of it is entirely lost in obscurity. It seems to have been an immemorial custom of the Anglo-Saxons, that several persons of distinction should be named by the freeholders in each county, with power to secure and imprison criminals of all sorts, to the end that they might be brought to a trial. From this employment, these officers, as in after times the justices of the peace, found the means of assuming a criminal jurisdiction, which, from small beginnings, became gradually more and more extensive. Another branch of business, devolved upon the coroner, and which may be regarded as an appendage or consequence of the former, was that of ascertaining and determining the value of the fines, amerciaments,<308> and forfeitures, or of any other emoluments, which accrued to the sovereign, either from the condemnation of public offenders, or from the right of the crown to all the goods, of which no other proprietor could be found.
When the coroner had occasion to inquire into the truth of any fact, either with a view to determine those matters which fell under his own jurisdiction, or in order to transmit an account of it to some other criminal court, he proceeded, in the same manner that was customary in the courts of the hundred, and of the county, by the assistance of an inquest or jury; and the number of jurymen, who, in those cases, were called from the neighbouring townships, was not less than was employed in other judicial investigations.
After the Norman conquest, when the aula regis drew to itself the cognizance of the greater part of crimes, it became the duty of the coroner to certify to that court his inquisition concerning those offences which fell under its jurisdiction; and upon this information, the most authentic that could well be procured, a trial before the grand justiciary was commenced.<309> Upon the establishment of the king’s bench, and of the commissions of oyer and terminer and gaol delivery, the like certification, and for the same purpose, was made by the coroner to those tribunals.
But in proportion to the advancement of the prerogative, the authority of the coroner, an officer elected by the county, was diminished; his jurisdiction was daily subjected to greater limitations; and his reports became gradually more narrow and defective: whether it be that, by having a fellow-feeling with the inhabitants, he endeavoured to screen them from justice, or that, from the rust and relaxation to which every old institution is liable, his operations became tardy and inaccurate; certain it is, that he came to overlook the greater part of the offences which require the interposition of the magistrate, and his inquisition was at length confined to a few of those enormous crimes, which excite universal indignation and resentment.
To supply the deficiency of the coroner’s inquest, the sheriff, who had come, in a great measure, under the appointment of the crown, was directed, upon the meeting of judges in<310> the circuits, or of the other criminal courts, to call a jury, in order to procure information concerning the crimes committed in particular districts. Hence the origin of what is called the grand jury, by whose inquisition the judges were authorised to proceed in the trial of public offenders.
It is probable, that when the grand jury were first called, they made an inquiry at large concerning every fact which ought to become the subject of a criminal trial, and of their own proper motion delated the persons whom they found to deserve an accusation; but, by degrees, when the agent for the crown had been led to suspect any particular person, he was accustomed to lay before them the immediate question, how far that suspicion was well founded? Hence the two methods of finding the fact; by presentment, and by indictment.9
It seems evident, from what has been observed, that the original purpose of the inquisition by the coroner, and of a presentment by the grand jury, was to prevent offenders from being overlooked, and from escaping a trial. When the custom of preferring indictments to the grand jury was introduced, the intention<311> of that measure was, probably, to avoid the trouble and expence of a fruitless prosecution. But whatever was originally intended by this practice, the necessity of procuring the previous approbation of a jury, by one or other of the forms above mentioned, was productive of the highest advantage to the people, that of securing them from groundless or frivolous accusations. If a person is known to have committed a crime, or lies under a strong suspicion of guilt, the voice of the whole neighbourhood will probably call aloud for justice, and demand an immediate trial of the offender. But if, on the contrary, an innocent man is attacked, if he is threatened with a prosecution, from apparently malicious motives, or for the purpose of serving a political job, it is most likely that his fellow citizens will view this proceeding with indignation; that they will consider his misfortune as, in some measure, their own; and that, from a principle of humanity and justice, as well as from a regard to their own interest, they will be excited to stand forth as the protectors of innocence.
This is a new instance, perhaps more conspicuous than any that we have had occasion<312> to observe in the history of the English government, of a regulation whose consequences were not foreseen at the time when it was introduced. The great benefit arising to society from the interposition of the grand jury is not only totally different, but even diametrically opposite to that which was originally intended by it. The original purpose of that institution was to assist the crown in the discovery of crimes, and by that means to encrease the number of prosecutions. But when an accurate police had been established in the country, there was little danger that any crime of importance would be concealed from the public; and it became the chief end of the grand jury to guard against the abuses of the discretionary power with which the officers of the crown are invested, that of prosecuting public offences.
The employment of the coroner in Scotland was the same as in England; and he appears to have used the same forms in the exercise of his jurisdiction. With the assistance of a jury, he inquired into the commission of crimes, and either punished them by his own authority, or transmitted information concerning them<313> to the competent court. The negligence of this officer seems, in that country, to have likewise produced the interposition of the sheriff, or chief magistrate of particular districts, by calling a jury for the same purpose. By a statute in the reign of Alexander the second,10 it is enacted, that no prosecution, at the instance of the crown, shall proceed against any person, unless by an accusation, upon the inquisition of a jury, consisting of the chief magistrate of the place, and three respectable persons in the neighbourhood. This rule continued till near the end of the sixteenth century; when, in consequence of the establishment of the court of session, and from other causes, the investigation of judicial matters, by a jury, came to be much more limited than it had formerly been. By an act of the Scottish parliament, in 1587, certain commissioners, instead of the inquest formerly called, were appointed in the several counties, for inquiring into public offences; and indictments, framed upon the report of these commissioners, were put into a list, which got the name of the porteous roll.* <314>
The same statute empowered the king’s advocate to prosecute crimes of his own proper motion;† and, as he was the person employed to raise indictments, upon the information transmitted by the commissioners, he naturally assumed the privilege of determining whether the facts laid before him ought to be the ground of a prosecution or not. Thus in Scotland the ancient grand jury was abolished; and criminal actions, at the instance of the public, came, in all cases, to be directed at the discretion of a crown officer.
The attorney-general, in England, and the master of the crown-office, have acquired, in like manner, a power of prosecuting by information, without any previous authority of a grand jury; but this mode of prosecution is confined to misdemeanours tending to disturb the government, or the peace and good order of society, and is never extended to crimes of a capital nature.
How far the nations upon the continent were possessed of a similar provision, to secure the people from unjust and groundless prosecutions, it is not easy to determine. That in<315> the greater part of them the coroner’s inquest was employed for bringing to light those disorders which required the interposition of a criminal court, there is no room to doubt. But when, from the circumstances which have already been pointed out, the method of trial by the petty jury had fallen into disuse, it is not likely that a previous inquest would still be employed to judge of the necessity or expediency of commencing a criminal accusation. From the rapid advancement of the prerogative in these nations, the sovereign was freed from any restraint in this branch of administration, and an unbounded liberty of trying public offences was committed to the officers of the crown. To whatever causes it may be ascribed, the English grand jury is now the only institution of the kind that remains in Europe; and perhaps, as it is modelled at present, there cannot be found, in the annals of the world, a regulation so well calculated for preventing abuses in that part of the executive power which relates to the prosecution of crimes.<316>
[* ]Magna Charta reg. Johan. c. 21. M. C. reg. Hen. III. c. 32.
[7. ]A lesser judge appointed by a magistrate to decide a legal case.
[* ]Soon after the establishment of the parliament of Paris, the king dispensed with the attendance of the dignified clergy. The ordinary lay barons afterwards absented themselves, without any express dispensation; and there remained only the princes of the blood, and peers, who retained the privilege of attending that court on solemn occasions.
[8. ]Officers of a county, district, or municipality (formerly also of the royal household), originally charged with maintaining the rights of the private property of the crown.
[9. ]A presentment is a report or return made by a jury, after holding an inquisition, or from some other knowledge. An indictment is a written accusation against a person, charging him with serious crime triable by jury.
[10. ]Alexander II, the Peaceful, king of Scotland (r. 1214–49).
[* ]See act of Parliament, 1587. ch. 82.
[† ]Ch. 77.