There are two types of juries. The first, the petit jury, is used in both civil and criminal cases. In civil cases its task is generally to determine liability to pay money damages； in criminal cases its task is to determine punishable guilt, and it usually does so with a minimum of criticism. There its position as a bulwark of liberty, a protector against executive oppression, and a mode of lessening the rigors of too-strict legislation is secure. In England, where the use of the civil jury has been greatly reduced by legislation, the criminal jury remains in its traditional form. It is a noteworthy fact, however, that the jury is not now and has never been required to be used in equity cases.
The civil jury, however, is subject to much criticism. It appears, sometimes, to be a means whereby individuals can obtain unjust judgements against corporate defendants, for the jury may tend to ally itself with the underdog. The jury is, in many instances, incompetent to handle involved testimony, particularly on technical matters. In this country, nevertheless, accusations of bias, incompetence, capriciousness, unpredictability, delay, and expense usually have gone unheeded.
The trial jury, to speak for the moment in its defense, is presented with a difficult task. It must reconstruct history. It must determine the facts of a past transaction. If its verdicts seem excessive, one must keep in mind the impossibility of determining the money value of such intangibles as pain and suffering or loss of reputation. Any criticism of the jury must also take into account possible alternative methods of finding facts. And in such deliberations it must not be forgotten that jury verdicts do not create precedents.
The second type of jury is the grand jury. It differs from the trial or petit jury in that it does not decide questions of guilt or innocence. Its function is accusatory. When a possible offender is brought before a magistrate, and the magistrate believes there is suspicion of guilt, the matter is presented to the grand jury for investigation. If the grand jury finds enough evidence to warrant a trial, it will issue a true bill of indictment5 and the case will proceed. If the evidence is insufficient, the case will be dismissed. On occasion, the grand jury is charged with a special commission to investigate specific types of possible criminal activity among the general population or among governmental officials, and such investigations may also result in indictments. The grand jury has been abolished in England and in approximately one-half of the states in the U. S. Its existence, however, is guaranteed by the Constitution in federal cases.
Both types of juries fit the classic definition given by Frederick Maitland6 many years ago： that a jury is a body of neighbors summoned under oath by a public official to answer questions. The trial jury answers the question of guilt or innocence, liability or nonliability； the grand jury determines whether there is enough evidence to warrant a criminal trial. Not only do these juries fit the same definition, but they derive, ultimately and in the distant past, from the same origins.
The foundation of the jury system goes back a thousand years to the French empire of the Carolingian kings. Those monarchs, as part of their successful attempt to unite their empire, developed a procedure called the inquest, or inquisition, to determine the nature and extent of royal rights. They called together the people of the countryside and required them to relate their understanding of the immemorial rights of the king. The rights being ascertained, they were adopted by the central administration. There was neither accusation, verdict, nor judgement in these proceedings, but the inquest fixed the right of the state to obtain information from its citizens.