THE TRIAL BY JURY. In the early history of trial by jury, the jurors were witnesses ac quainted with some or all of the facts in controversy between the parties litigant ; they came together and compared their respective impressions of the facts and arrived at a collective judgment as to the facts in issue. Sometimes not being sufficiently advised as to what constituted the facts, it became necessary to examine witnesses, and thus the jury system gradually came to what it is to-day,—a body of men appointed to hear the evidence and determine the true facts and, under the instruction of the court, the legal effect thereof.
When the parties have actually "put themselves up on the country", that is, in legal terminology', have asked for a trial by jury, a jury trial is awarded and the writ of venire facias (you shall cause to come) is sues, addressed to the sheriff of the county of the venue,—that is, the county where thc facts are alleged to have occurred, and commanding him to summon a jury from the body of his county'.
The venire facias directs the sheriff to have the jury before the superior court at Westminster at the time stated in the writ, nisi prius (unless before) the justices of the superior court came into his county to try the cause there upon their semi-annual circuit (which was always done), in which case he should have the jury in the assize town of his own county, where the justices in Eyre came. When the trial is to be so had, with the venire facias was sued out another writ, called in the King's Bench, the distringas, and in the Common Bench, the habeas corpus. The next step was to make up at the proper offices the record of nisi pins, which is a transcription from the issue roll, and contains a copy of the pleadings and the issue. The prius record is thcn delivered to the judges of assize and nisi prizts and serves for their guidance as to the issue to be tried on the circuit.
As a rule the trial by jury was usually' held at nisi prius, yet in causes of great significance and difficulty the inquest by jury was allowed to bc taken before the four judges in the superior court, before whom the pleadings took place, as in the ancient practice. The proceeding is then technically said to be a "trial at bar", as distinguished from a trial at nisi pries.