THE ORIGINS OF THE JURY

Manawatu Herald, Volume XLIII, Issue 2334, 24 September 1921, Page 1

THE ORIGINS OF THE JURY

FROM THE HUE AND CRY

ONWARDS

GRAND AND COMMON JURORS.

The origins of the jury system are lost in the vast distances of centuries, but certain it is that parallels of the system existed in the early Anglo Saxon days. Different times different localities, have dinfl'erent customs, and thus authorities point to several institutions as the germs of the modern system. A very rudimentary form of grand’jury —and yet a form which still persists as a means of bringing an offender to justice —was the hue and cry. In certain localities in the Anglo-Saxon days the “hundred”, a division of one hundred or so families, had upon it the duty of bringing before the authorities the offenders against good practice. In other “tithing”, based upon the principle that each member of the tithing, or division of ten families, was responsible to the King Tor the good behaviour of the others, was the system, and as the idea became more refined and definite the twelve senior tliegns, or landholders under the King, were sworn that “they would accuse no innocent person and acquit no guilty one”, thus becoming, as it were, a permanent grand jury; but in no case was the absolute guilt or innocence determined by the hue and cry, by the hundred, the tithing, or senior tliegns, and, as the usual rule, the final lest of guilt or innocence was left to the ordeal, by fire fir water. If the grand jury made a mistake, the accused man suffered in any case. The ordeal persisted up to the thirteenth century, when it was abolished by the Lateral Council . In bygone days property disputes were frequently decided by the.rulings of knights, who acted as often as not upon their knowledge of I lie facts, and not upon the evidence, or by combat in the lists. The scliocdboy of today, though the fact strikes him not at till, follows the Vlanlagonef system very closely, but applied to modern social complexities Ihitl system would fail very disastrously.

Throughout the centuries, then, the Grand Jury appears to have served the purpose of accusing no innocent person and acquitting no guilty one, but of judging no one its to absolute guilt or innocence. In old-time Scottish law there was no place for the Grand Jury, which was not introduced until early in the 18th century for the consideration of high treason. The Scottish Jury now consists of fifteen persons, five of whom are special jurymen, and the verdict need not be .unanimous, nor is enclosure necessarily a preliminary to a majority verdict, but the difference between the Scottish and English system* lies in the three verdicts which a Scottish jury may bring—“ Guilty”. “Not Guilty”, and “Not Proven”. The third has legally the same force as the second in releasing the prisoner f#om futher proceedings, but leaves upon him the stigma of moral guilt. Authorities have pointed to periods of years in which there has been no single disagreement, though how there could be such a disagreement in a jury of uneven number, when a majority verdict is accepted, does not readily meet the eye.

As to whether, in view of the preliminary hearing of evidence by a magistrate in practically every criminal case which goes before a common jury, the Grand Jury has many years ago outlived its usefulness, opinions very greatly differ. Australia has done away with the Grand Jury system. The lead was given by Victoria over forty years ago; Western Australia followed twenty years later, and other States also adopted the revisal, so that at the present the Grand Jury has been for moh?t purposes superseded by thcS Public Prosecutor. India jjever had the Grand Jury, and though the system was introduced into Cape Colony it was later abolished. The jury system of today, the common jury, was, however, apparently rather of French than English origin, and, moreover, appears to have had its origin in the settlement of Royal disputes. It is supposed to have been evolved from a proceeding of the Frankish kings, who, when their rights were in dispute, called for an “inquest”,’ at which the old-, est and best men of the land gave evidence on oath. The Normans brought the procedure to England and their first important use of it was in the preparation of the Domesday Book. Probably to Henryll. many generations of English-speak-ing peoples owe the priviledge of trial by jury, for he, by a series of “assizes”, put the Royal remedy at the disposal of all his subjects. The juryman of to-day takes an oath to deliver a true verdict according fo the evidence placed bei fore him, and if he is false to his

oath he has little but his conscience to reckon with, but up to three hundred years ago, in the days when brimstone and hell fire were very firmly believed in, the juryman had more to fear than the. wrath to come if he found falsely, and sometimes if he found truely, for the Crown had an unpleasant power of severely punishing jurors who brought in a verdict of which it did not approve Needless to say punishment was-generally meted out when the verdict went against the Crown. In one very famous case away back in the dusty law history of 1554, the jury brought in a verdict against the Crown with the result that three of its members were lined £2OOO apiece and five others 1,000 marks apiece

but the other four, with marked politeness, apologised and heard nothing more. The case was called on again and the next jury, having learnt from second hand experience returned a verdict for the Crown. That such was a regular practice is shown by the references taint”, a process by which an offending jury might be tried by another jury of twenty-four for bringing in a false verdict. The lining of jurors was declared, illegal in the famous Bushell case in IG7O, one of the classic cases of English law, but

that the law still remembers the bad old days is shown in section ITG of the present Juries Act, which provides that no writ of attaint may be commenced against tiny juror, the same being “utterly abolished”. Formerly an alien had the right to claim to be tried by a jury half of whose number were his own countrymen, or so many as the district could furnish, except in the cases (if treason, but the priviledge was abolished in England in 1870 and in,New Zealand in 1008. Mixed juries, however, are permitted in certain cases when the defendants arc Natives, for instance, in civil cases where only one party consents to be tried by a Maori jury, or in

cases in which one parly is a Maori

and the oilier not, and the Maori claims -trial by a mixed jury. In such events the jury consists of six Maoris and six Europeans. In criminal cases wherein a Maori has committed an offence against another Maori, the accused may be tried by a Maori jury if lie so desires. The law lays down that a. man may be tried by his peers, but the principle is qualified by the definition which is placed upon the term “peers”. A peer of the realm of New Zealand, should he find himself in such an uncomfortable position, mav not claim trial at the hands of his peers, and in England the priviledge is limited to cases ol (reason and felony, and is not extended to eases of misdemeanour. 1