The system of trial by jury is thought to be a product of the Common Law; and it has been sought to show that it was indigenous in England and traceable back to Alfred the Great and to Anglo-Saxon times. The supposed Anglo-Saxon origin of the jury system has been completely disproved by Messrs. Pollock and Maitland in their excellent history of early English Law, who have distinctly traced it to the Franks, from whom it was borrowed by William the Conqueror or his immediate Norman successors for their own selfish purposes, and not with any view to the improvement of the law of England. There are those who find its real source in the system of judices selected by the praetor in the Roman Law for the determination of the facts in legal controversies when he himself had settled the law applicable thereto. But, however it originated, the system of trial by jury, which was not of much importance before the days of the Stuarts, or indeed before the latter part of the Eighteenth Century, when it first assumed the important part in the administration of justice which it yet retains, has become one of the most cherished features of our American Jurisprudence. In fact, notwithstanding that the institution existed in England at least as farback as the reign of Richard I, it would seem as if its present function in the administration of the law had only been fully developed first in our colonial times in America.
In the days of the Plantagenets and Tudors, and to a more limited extent in the time of the Stuarts and early Hanoverians, the jury was not the independent body which it is commonly supposed to have been; and it could not therefore have been the bulwark of liberty, or in any way instrumental in the promotion of human freedom. The jury was summoned by the sheriff according to his own will and pleasure from the freeholders or Norman landholders of each county; and the sheriff was the appointee from year to year of the sovereign. It is not quite apparent, therefore, how the jurymen could have been other than creatures of the royal pleasure, whenever the sovereign, or his ministers, or his favorites, thought proper for their own purposes to intervene in their selection. And, in fact, in the history of England, for 700 years from the Norman Conquest down to the reign of George III, the intelligent inquirer seeks in vain for any evidence of the development of human liberty through the instrumentality of the jury system. It is absurd in the extreme, therefore, to speak of the system of trial by jury as the bulwark of liberty. That the system served that purpose in the latter part of the Eighteenth, and during the early part of the Nineteenth Century may be admitted. Indeed, one of the best evidences of its efficacy in that regard is the fact that, among the nations governed by the Code Napoleon, wherever constitutional institutions have been established, the system of trial by jury to a greater or less extent has also been introduced.
Immediately upon the Declaration of Independence, indeed a month before that document was promulgated, the first formal enunciation of the principle was made in June of 1776, in the first Constitution adopted by the State of Virginia, which was the first of all our State constitutions. There, in the very first clause of that fundamental ordinance it was stated that “the legislative, executive and judiciary departments of the State shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” And the principle so enunciated was promptly adopted by all the other States, and finally fashioned our Federal Constitution. Possibly it might not be difficult to trace the source of the theory back to the Roman Republic, which had the Comitia Centuriata and a Senate to make laws, Consuls to execute and enforce them, and Praetors to administer them in the daily transactions of the people. And possibly it would be possible to trace it still farther back – to the Republican Commonwealth of Athens, which had its Assembly of the People to make laws, the Archons to carry them into effect, and the High Court of the Areopagus, the governmental institution of the ancient world, to administer justice.