In the beginning private vengeance was the moving cause of all criminal procedure. The aggrieved party made a direct appeal to the county and the issue was fought out, the complainant and defendant appearing in person or by champions. This was exceedingly unsatisfactory for many reasons, among others that not seldom a rich man would hire all the champions within reaching distance and the poor man be left without any, which suggests the somewhat similar practice of many wealthy litigants at the present day. But this mode of individual redress colored all English procedure and is the direct cause which makes English criminal trials in so many ways resemble private litigation. Private vengeance was at the bottom of it.
When the "county" or the public were the accusers, a mere accusation was practically equivalent to a conviction subject to the chance of the defendant's escaping by a favorable termination of "the ordeal of water." But "the ordeal" in time died out, just as did wager of battle, and something had to take its place. This was the jury.
From very early times we find "grand" or "accusing" juries presenting charges for the trial jury to dispose of, although the accusing jury frequently acted as trial jury as well. By 1212 it had become customary to submit a charge found by a presenting jury to a larger combination jury which included the original body which had presented the charge. This enlarged jury, usually composed of a jury from another "hundred" and "the four vills," delivered a unanimous verdict. By 1300 it had begun to be the privilege of an accused to "challenge" those who had presented the charge against him, but it was the approved practice to try an accused by some at least of those who had presented him.
"The four knights were called, who came to the bar girt with swords (above their garments) and were charged—to choose twelve knights girt with swords for themselves and the others—and the justices ordered the parties to go with the knights into a chamber to choose or to declare their challenges of the others chosen by the four, for after the return of the panel so made by the four knights the parties shall have no challenge to panel or polls before the justices." (1406) Y.B. 7 H. IV, 20, 28.
The idea seemed to be that unless there were a few on the jury who had already formed a provisional opinion as to his guilt the prosecution would not have a fair chance. In Willoughby's case in 1340, Parning, J. naively remarked, "In such case the inquest should be taken by the indictors (the accusors) and others. Certainly if the indictors be not there it is not well for the King." In 1351 by St. 25 Edw. III, c. 3, it was enacted that "no indictor be put on an inquest upon the deliverance of one indicted for trespass or felony, if he be challenged for this cause by the party indicted." Persons "presented" or accused could "put themselves" upon different counties, that is to say, could submit their case to juries drawn from such counties, with certain limitations, as they might elect. Thus we find a case where one having been "presented" by an accusing jury "puts himself on the County of Surrey and on all men in England who know him." At Easter came riding twenty-four knights from Surrey at the king's summons who promptly found him to be a robber, and, says the record, "Since he put himself upon these, let him be hanged."
There is a criminal case in Y.B. 30 & 31 Edw. I, 528, which throws a good light on the procedure of the time. W. was the stabler of J.'s horse and had been kicked, while trying to mount, so that he died. The horse thereupon became forfeit to the king as a deodand. The jury accused J. of keeping the horse in spite of this and also charged him with having buried W. without calling in the coroner. This he denied and "put himself on the county." The judge, addressing the jury, which was probably the same that had made the accusation, charged as follows:
"If W. died from the kick of the horse, the horse would be deodand. If not it would be John's. If the king should lose through you what rightly belongs to him, you would be perjured. If you should take away from John what is his, you would commit a mortal sin. Therefore, by the oath you have made, disclose and tell us the truth, whether the said W. died of the horse's kick or not. If you find that he did, tell us in whose hands is the deodand horse and what he is worth; and whether the said W. was buried without a view of the coroner."
All things considered—a pretty good charge.
Gradually, and in large measure because the "ordeal" had disappeared and the grand jury as a distinct body had been fully established, no method of ascertaining the truth of an accusation was left, and a mere presentment in fact amounted to a conviction, so that the need of some other jury to pass upon the issue was apparent. Out of this need the modern petty jury developed.
In course of time the accusing jury became as it is now, a distinct and separate body, deliberating secretly, its members being no longer permitted to sit as trial jurors. They acted on common report, their own personal information, and upon the application of injured parties, and initiated most criminal proceedings. It was necessary for some one to ferret out crime and hold the perpetrators for trial, and the jury did practically the whole business. As the years went on the jury became more and more a purely ex parte accusing body with practically no judicial supervision and receiving about what it saw fit as evidence. From time to time the powers and the character of the grand jury has been fiercely assailed. Two centuries ago it came near receiving a knock-out blow, but it had become too firmly established. In Shaftsbury's case, 8 How. St. Tr. 759 (1681), they were in fact compelled to receive their evidence publicly in court, but their vigorous protests and the failure of the attempt left the body all the more securely entrenched in English procedure.—Condensation from Prof. J.B. Thayer's masterly chapter on "Trial by Jury and Its Development" in his "Preliminary Treatise on the Law of Evidence."