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Page 59
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SECTION III. The Oaths Of Jurors
The oaths that have been administered to jurors, in England, and which are their legal guide to their duty,all(so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law.
The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors “shall swear, with their hands upon a holy thing, that they will condemn no manthat is innocent, nor acquit any that is guilty.”—4Blackstone,302. 2Turner’s History of the AngloSaxons,155.Wilkins’ Laws of the Anglo-Saxons,117.Spelman’s Glossary,word Jurata.
Blackstone assumes that this was the oath of the grand jury (4Blackstone,302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest.
Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,
“Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division,to administer impartial justice,proceeded to the examination of that cause which was submitted to their jurisdiction.”
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So...previous to the Norman Conquest in England the law of the land (legem terrae) was the common law, and there was but one type of jury, not two, and before moving on, at this time, it seems appropriate to return to the American adaptation of Trial by Jury, according to the common law, whereby an American judge offers an opinion concerning the demarcation line between the two juries: 1. Petty or trial Jury, and 2. Grand or inquest jury (gate keeper).
https://supreme.justia.com/cases/federal/us/1/236/
U.S. Supreme Court
RESPUBLICA v. SHAFFER, 1 U.S. 236 (1788)
Court of Oyer and Terminer, at Philadelphia
February Sessions, 1788
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It is a matter well known, and well understood, that by the laws of our country, every question which affects a man's life, reputation, or property, must be tried by twelve of his peers; and that their unanimous verdict is, alone, competent to determine the fact in issue.
If then, you undertake to enquire, not only upon what foundation the charge is made, but, likewise, upon what foundation it is denied, you will, in effect, usurp the jurisdiction of the Petty Jury, you will supercede the legal authority of the court, in judging of the competency and admissibility of witnesses, and, having thus undertaken to try the question, that question may be determined by a bare majority, or by a much greater number of your body, than the twelve peers prescribed by the law of the land. This point has, I believe, excited some doubts upon former occasions but those doubts have never arisen in the mind of any lawyer, and they may easily be removed by a proper consideration of the subject.
For, the bills, or presentments, found by a grand Jury, amount to nothing more than an official accusation, in order to put the party accused upon his trial: 'till the bill is returned, there is, therefore, no charge from which he can be required to exculpate himself; and we know that many persons, against whom bills were returned, have been afterwards acquitted by a verdict of their country.
Here then, is the just line of discrimination: It is the duty of the Grand Jury to enquire into the nature and probable grounds of the charge; but it is the exclusive province of the Petty Jury, to hear and determine, with the assistance, and under the direction of the court, upon points of law, whether the Defendant is, or is not guilty, on the whole evidence, for, as well as against, him.
You will therefore, readily perceive, that if you examine the witnesses on both sides, you do not confine your consideration to the probable grounds of charge, but engage completely in the trial of the cause; and your return must, consequently, be tantamount to a verdict of acquital, or condemnation.
But this would involve us in another difficulty; for, by the law it is declared that no man shall be twice put in jeopardy for the same offence: and, yet, it is certain that the enquiry, now proposed by the Grand Jury, would necessarily introduce the oppression of a double trial.
Nor is it merely upon maxims of law, but, I think, likewise, upon principles of humanity, that this innovation should be opposed. Considering the bill as an accusation grounded entirely upon the testimony in support of the prosecution, the Petty Jury receive no bias from the sanction which the indorsement of the Grand Jury has conferred upon it. But, on the other hand, would it not, in some degree, prejudice the most upright mind against the Defendant, that on a full hearing of his defence, another tribunal had pronounced it insufficient? which would then be the natural inference from every true bill.
Upon the whole, the court is of opinion, that it would be improper and illegal to examine the witnesses, on behalf of the Defendant, while the charge against him lies before the Grand Jury.
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