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Show 26 INTHODUCTlO~. which was imposed upon the twelve .. euwr thane~ of every hundred the duty of di covering and pre enting the perpetrators of all crimes within their eli trict- a cu ~totn reviYed by the constitution of Clarendon, enacted A. D. 11 G·!, by which twelve lawful men of the neighborhood w 're to be sworn by the sheriff, on the requi ~ ition of the bi l10p to investiO'ate all cases of suspected criminality as to whieh no 0 individual dared to make an accusation. AL fir ·'t thi.· nccu.- ing jury seems also to have served lhe purpo e of a jury of triaL In what way the grand jury came to be f'eparated from the petit jury, and how the former came to be increa. ed to a number not exceeding twenty-three, of wh01n at lea t twelve must concur in order to .flnd an indictment, i .. a point which still remains for the inve tigation of legal antiqnarie :* The trial by jury, though of the progre of i L... develop· ment little js known, appears to have taken on sn b. tantially its existing form, both in civil and criminal ca ... es, nearly contemporaneou -ly with the new organization of the Engli h courts, with the ri e of the legal profes ... ion a di~tinct from that of the clergy, and with the comn1enc 'ment of the cries of Engli h statutes and law report. -all of which, as well as the existing constitution of the British Ilou:e of Commons, may be considered a .. dating fi·on1 the acces ion of Echrnrd I., A. D. 1272, or somewhat le. than six bunch·ed year ago. In certain ca e of great importance thi · trial took pine and still takes place in bank, a ., it i call d ; that i ~ , in '""e .. tmin· ster I-Iall, before all the judges of the court in which the su it is pending; t but in general, the trial is had * ~ee Forsyth's .Trial b~ J'ury, ch. x. sec. 1. . t . own to the tmlC of Elizabeth all cases occurring in 1\Iidcllese:x county, m whiCh Westminster lies, were thus tried in bank. INTHODuCTION. 27 in the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commi, sioners . ent into the counties for that purpose, and who, under the new system, were the successors of the justice in eyre, or itinerant ju tices, who had formed a part of the ancient Aula R egis. Originally, separate comInissions appear to have is .. ued for criminal and ci vii casesfor the forn1er a co1n n1i sion of oyer and terminer, (to hear und determine,) and of general jail delivery; and for the latter a commis ion of a ~ size, so called from the name of a peculiar kind of jury trial introduced a ... a sub titute for trial by battle, in real actions, that i:·, pleas r elating to land, villainage, and ad vow on . In the time in which land, villains, and the right of presentation to pari he .. , con tituted the chief wealth, these real actions consti tutcd also the chief bu iness of the Common Pleas, which then had exclusive juri ~diction of civil con trover 'ies; but to thi commis ion of assize was annexed another, called a con1mi ion of nis·i prius, au thorizing the com1ni ioners t.o try all que tions of fact arising in any of the courts of 'V e tlninster. 'l'hi latter co mini sion wa so calleu because the wriL j ~ ·ued to the sheriff of the county in which the cause of action wa alleged to have originated, to smnmon a jury to try the ca e, directed such jury to be ummoned Lo appear at ''re. t1nin ter on a day na1ned, unless before (in Latin, n·~·s i prius) that day com1nis ioners should c01ne into the county to try the ca e there. lienee the tern1 n·isi pTius employed by lawyer to designate a trial by jury before one or more judo·e~ , commis ioned to hold such trials within certain circuit ' out who. e directions to the jury, and other poin Ls of law decided by thCin in the cour e of the trial, are liable afterwards to be reviewed by the whole bench. |
