The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924086340076 CORNELL UNIVERSITY LIBRARY 924 086 340 076 In compliance with current copyright law, Cornell University Library produced this replacement volume on paper that meets the ANSI Standard Z39.48-1992 to replace the irreparably deteriorated original. 1999 CORNELL UNIVERSITY LIBRARY THIS BOOK IS ONE OF A COLLECTION MADE BY BENNO LOEWY 1854-1919 AND BEQUEATHED TO CORNELL UNIVERSITY THE HISTORICAL DEVELOPMENT or THE JURY SYSTEM BT MAXIMUS A. LESSEE, A. M., LL. B. cum laude. OF THB NEW TOBK BAB; InstruDtor of PoliMcal Science, N. T. Evenvng High School. EOOHESTEE, N. Y. THE IjAWTEES' CO-OPEBATITE PUBLISHING CO. 1894 Entered according to Act of Congress in the year eighteen hundred and ninety-four, by MAXIMUS A. LBSSEK, In the Office of the Librarian of Congress, at Washington, D; C. E. B. ANDBEWS, PBINTEE, BOCHESTEK, N. Y. TO THE MEMORY OF WHOSE LIFE WAS ONE LONG UNSBLBTSH MANITESTATION OS' LOTE FOB HIS KIITDKED, TO WHOSE FOND INDULGENCB I AM INDEBTED FOB THE EDUCATIONAL ADVAN- TAGES IT HAS BEEN MT FOBTUNB TO ENJOY, THIS OFFSPEING OF MT MIND IS BETBEENTIALLY INSCKIBED. The noUest invention for the support of justice ever produced.— De LOLME. A trial that hath been used time out of mind in this nation, ar^d seems to have been coeval with the first ciiril government tftereo/.— Blackstoni!. A.n institution admirable in itself, and the best calculated for the pres- ervation of liberty and the administrcUvm of justice, that ever was devised by the wit of mon.— Home. The law of England ?ias established the trial by judge and jury, in the conviction that it is the mode best calculated to ascertain the truth, and do the greatest amount of justice, in the great majority of coses.— Bentham. The judgment by jurors is the true guaranty of individu/jl liberty in England, and in every other country in the world where men aspire to free- dom.— Sikres. (France). I deem that the best judicial system, which associates uiith the principal judge assessors, not selected, but clwsen by lot ; for, in such matters, ignorance which judges by sense is better than science which judges by opinion.— B^c- CABiA. (Italy). Not without cause do men require an external guaranty for the correct decision of questions of fact, and maintain that no better guarantee can be found than in " the agreement of the convictions of a certain number of irreproachable and independent men standing above the suspicion of par- ttolity."— Waltheb. (Germany). Springing up under the feudal despotism of the Plantagenets, it has sur- vived alike their rule, that of the House of Tudor, and of the House of Stuart, and now flowrishes with all its original vigor, under the icisest and mildest form of monarchy of which history makes mention; while during the same period, transplanted to a different hemisphere, it has struck deep its roots into the new soil, and is, perhaps, the most cherislied institution of the great- est exemplar of free and intelligent government that the world has ever seen, —Sedgwick. (America). PEEFAOE. THE purpose of this treatise is to present — in a form as concise as the interest of the subject and a proper regard for accur- acy permit — the curious history of the English Jury, an institu- tion which, whatever its defects, must still be regarded as a fundamental factor in any system of jurisprudence based on the common law, and is the object of interested inquiry in countries where other systems prevail. The mode of treatment adopted is designed to render the work sufficiently accurate for the lawyer or the student, and withal sufficiently lucid for the general reader. The author's claim for consideration is predicated on origi- nality in the treatment and presentation of the materials at hand, rather than on originality of research ; although in the latter respect he has taken pains to familiarize himself with foreign authorities not accessible in our own tongue, as well as to resort — with a view to verifying the sources whereon the conclusions of others are based, and on points affecting the genesis of the jury — to obscure records contained in " Many a quaint and curious volume of forgotten lore." Originally read as an essay before the Academy of Political Science of Columbia College while a member thereof, with a simultaneous view to its service as a thesis to secure a higher academic degree from the College of the City of New York, the interest of his subject so grew upon the author, whilst its ramifi- cations seemed so uncircumscribable, that at times he felt like exclaiming, with Gcethe's pupil in magic : " Die loh rief , die Geister, " Werd' ieh nun nicht los." Continued investigation and successive revision gradually expanded the work into the form in which it is now submitted to the public. The subject of the treatise is not sufficiently " practical"—*, e. readily convertible into current coin of the realm — to have caused the hope of mundane emoluments to call it into being. Con- ceived, executed and completed as aforesaid, it has been virtually a labor of love, and as such the author prefers it to be judged. New Yoek, May, 1894. M. A. L. TABLE OF CONTENTS. I. General Chahactbeistics of the Jury 1 II. The Dikasts op Gkebce _■. 14 III. The JxjDiCEs OF Rome 29 IV. The Tribunals oe the Ancient Germans 47 V. The iNSTiruTiONS op the Britons _. 53 "VI. The System op the Anglo-Saxons 62 VII. Forms op Trial and Tribunals among the Saxons 74 VIII. The Institutions op the Normans.. 87 IX. The Assise op Henry II. and the Civil Jury.. 100 X. Growth op the Criminal Jury 134 XI. On the Meaning op Judicium Parium.. 162 XII. Present Aspect op the Jury 171 APPENDIX Provisions in United States and State Constitutions -225 Addenda. 233 Index , 241 NOT3E.— Wherever, in a passage quoted verbatim from an author, a portion appears enclosed in [ ], the part so enclosed is to be understood as an addendum or interpolation of mine, in farther explanation or elab- oration of the text of the author cited. HISTOEIOAL DEYELOPMEI^T OF THE JUEY SYSTEM. CHAPTEK ir GENERAL CHARACTERISTICS OF THE JURY. The subject we propose to investigate is the historical genesis and gradual development of an institution which, to-day, is an inseparable element of English Jurispru- dence and an important factor in the administration of justice,' wherever the English or common law, " . . . . the State's collected will. O'er thrones and globes elate, . Sits empress, crowning good, repressing ill." This purpose is not free from difficulties, for, while the nature and functions of the tribunal, as to-day exist- ent, are sufficiently well comprehended, still the origin of that institution and the successive steps by which it was evolved are less clearly understood and subject to considerable misconception, as is evinced by the many and conflicting theories advanced in explanation thereof. 1 " The subject of our next inquiries will be the nature and method of the trial by jury, called also the trial per pofe, or by the country. . . . We are apt to impute the invention of this, and some other pieces of jurid- ical polity, tp the superior genius of Alfred the Great ; to whom, on ac- count of his having done much, it is usual to attribute everything. . . . 2 HISTOET OF THE JTJET SYSTEM. It is the object of this treatise to reconcile, as far as may- be, these various views, to give to each well sustained suggestion its proper weight and effect during the for- mative period, and to trace its influence in the produc- tion of the result. The method of treatment is, in general, chronological; for the English jury is so closely interwoven with the historical and political development of the English nation, that every component which contributed to the formation and completion of the latter, had a concomitant effect upon the former; ' ac- cordingly, the history and features of each foreign factor will be described in connection with that period of our history at which it first made itself felt. For to the jury may be truly applied, what Maine says of law,' that it is a matter of growth, the result of the needs of the community in which it originated; and an institution — as another writer* well observes — which "does not owe its existence to any positive law; it is not the creature of an Act of Parliament establishing the form and defining the functions of the new tribunal. It arose . . . silent- ly and gradually out of the usages of a state of society which has forever passed away." We will, in the first place, regard its general aspect and characteristics as beheld to-day, and then proceed to consider whether, and in what respects, it is resembled by institutions of Whereas the truth seems to be that this tribunal was universally estab- lished among all the northern nations. ... Its establishment, how- ever, and use in this island, of what date soever it be . . . was always so hig-hly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it."— Blackstone's Commen- taries, bk. III. 0. 23. 2 " Jury trial in its modem form is certainly a product of English social and political forces."— Prof . Pomeroy, Johns. Cycl., vol. II. art. Jwry. sAncient Law, c. EC.; cf. id., c. V. ■"Forsyth, Trial by Jury (pub. 1853, c. 1, 8 1. GENBKAL OHAKACTEEISTICS OF THE JUET. 3 early days. The body with, which we have to deal — in the language of an able Scotch jurist' — "is the institu- tion by which disputed facts are to be decided for judi- cial purposes in the administration of civil or criminal justice, and which is in modem times familiar to us under the denomination of trial by jury. . . . The etymological derivation of the term is obviously from juro, to swear, whence we find this institution called in forensic Latin jurata, and the persons composing it jurats . . When the object is inquiry only, this tribunal is sometimes called on inq'uest or inquisition, as in the instance of a grand jury or coroner's inquest; but when facts are to be determined by it for judicial purposes, it is always styled a jury." This board of inquiry, then, is composed of "a body of men taken from the community at large, summoned to find the truth of disputed facts. Their office is to decide upon the effect of evidence and thus inform the court truly upon the question at issue, in order that the latter may be enabled to pronounce a right judgment. But they are not the court itself nor do they f orrn part of it; and have nothing to do with the sentence which follows the delivery of their verdict." ' While, concern- ing the third characteristic element of oar jury, De Lolme wrote' that they who have the power to discrimi- nate between disputed facts and "to whom the law has thus exclusively delegated the prerogative of deciding that a punishment is to be inflicted, — those men with- 'Maoclachlan, Eng. Cyol. in. 24. ^AA queestlonem facti, rum respondent judiees ; ad quoBstlonem legis, non respon dent juratores.— Co. Litt., 295 6. See Broom's Legal Maxims, o. II. § 1. 1 Forsyth, Trial t>y Jury, e. T. § 2. 8 Const, of Eng., tk. 1, c. XIH. 4: HISTOET OF THE JTTRT SYSTEM. out whose declaration the executive and the judicial powers are both thus bound down to inaction, do not form among themselves a permanent body, who may- have had time to study how their power can serve to promote their private views or interest; they are men selected at once from among the people, who perhaps never were before called to the exercise of such a func- tion, nor foresee that they ever shall be called to it again." In other words, the jury is the sole judge of the weight of evidence adduced and the arbiter of compensation for contracts broken or injuries sustained, and is com- posed of men selected by lot and "sworn to declare the facts of a case as they are delivered from the evidence placed before them," ° — its province being to determine the truth of facts or the amount of damages in civil, and the guilt or innocence of the accused in criminal, cases. This province is confined by the following limitations:" (1) It is restricted to the consideration of matters proved by evidence at the trial;" 9 Bouvier, Law Diet. 1. 770. '0 cf. Prof. Eobertson, art. Jury, Bnc. Brit. Xm. > 1 The jury is sworn to try all causes "according to the law and the evi- dence." — Hilllard, Am. Law, II. 344. Where there is no conflict of evidence, the case is to he decided by the court without reference to the jury. Mitchdl r.W'tUiams, 11 Mees. & W. 205; Halpin v. Third Ave. B. Co. 8 Jones & S. 175. So, where the sole question mooted at trial ia the sufElcienoy of a de- fense in law: Woarms y. Baiier, 26 N. T. S. E. 936, afSrmed 11 Daly, 333. But a nonsuit is not warranted "unless it appears that the plaintiff is not entitled to recover, after giving him the benefit of the most favor- able view that a jury would be warranted in taking of the evidence." McNally v. Phmnix Ins. Co. 137 N. T. 389. On the other hand, if "at the close of the cause, a prima facie case be estabhshed on the part of the plaintiff, and it is undisputed by the de- fendant, it has been always usual to direct a verdict for the plaintiff." PeopU V. Cook, 8 N. Y. 75. GENERAL CHAEAOTEEISTICS OF THE JUEY. 5 (2) It is subject to the instructions of the judge, con- cerning the rules of law applicable;" (3) It is influenced by the directions of the judge, as to weight, Talue, and materiality of evidence;" (4) It is affected by the selection of the jurors from the locality of the action, whence they discharge their duties with a certain amount of independent local knowledge, whilom "counted on, and deemed essential to a just consideration of the case." Two other qualifications may 15e added. After the rendition of a verdict in a civil case, it is still within the power of the trial judge to modify or even annul the same, in a proper case; for instance, "because the verdict 12 " It is the duty of the judgre who presides at a trial, to determine what matters shall be presented to the Jury, or received by the court as evidence. . . . Such evidence as is permitted to be detailed to a judge or jury is said to be competent; its effect upon the minds of the triers depends upon its credibility. Much testimony is admitted as competent, which is not credible, and many facts are rejected as incompetent, which might have produced belief." Pomeroy, Mun. JDaw, § 241. Similarly, "there may be . . . witnesses who are competent, that is, who may be admitted to be heard; and yet, after being: heard, may prove not to be credible, or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses, as well as of the truth of the fact." Bl. Com., bk. IV. c. X.Y. 13 " The province of a jury is to settle facts at issue between litigant parties, while that of the court is to apply to these [facts] the appropri- ate rules of law, and thereby fix the rights of the parties and provide a remedy for the injuries complained of." Washburn, Study & Pr. of the law (5th ed.), p. 24T. "To keep the facts of the case before the jury, apart from the false- hood and coloring of parties, is the most useful function of the modern judge, whose influence is also considerable as a restraint upon the pleader." Grote's Greece, pt. II. v. XLVI. " The parts of a judge in hearing are four: To direct the evidence; to moderate length, repetition, or impertinency of speech; to recapitulate, select, and collate the material points of that which hath been said; and to give the rule, or sentence." Lord Bacon, Essay on Judicature. 6 HISTOET OF THE JTJKY SYSTEM. is for excessive or insufficient damages, or otherwise con- trary to the evidence or contrary to law." " Again, in a criminal case, a verdict of conviction, even when accompanied by a recommendation of mercy, does not control the sentence to be meted out by the pre- siding magistrate, who may impose the highest or lowest or any intermediate penalty prescribed by law as proper for the offense committed. How, then, did this institution, whose features as cur- rently administered have just been described, originate? What are the sources from whence it arose, and the forces by which it was developed ? Did it spring forth, like Minerva from the brain of Jupiter, ready for action and fully equipped with forensic vesture and legal arm- ament, or was its development the result of the gradual accretion of successive strata of growth ? As s bated above, various and conflicting theories are advanced to answer these queries. "Many writers of authority," says Canon Stubbs," "have maintained that the entire jury system is indige- nous in England," some deriving it from Celtic tradition based on the principles of Roman law, and adopted by the Anglo-Saxons ani Normans from the people they had conquered, others have regarded it as a product of that legal genius of the Anglo-Saxons of which Alfred is the mythic impersonation," or as derived by that nation from the customs of primitive Germany or from H N. T. Code CiT. Proced., § 999. And an appeal may be taken from the ;iuage'8 order, granting or refusing- a new trial on such grounds. » Const. Hist, of Eng. vol. I. c. XIII. (pp. 655-656). '6 " The English jury is of indigenous growth." Eorsyth, Trial by Jury, p. 13. " of. Blackstone, ante, page a, note 1; Hume, Hist, of England, u. II. Dean, British Const., o. I. GENEEAL CHAKACTEEISTICS OF THE JUET. 7 their intercourse with the Danes. !N"or even, when it is admitted" that the system of recognition was intro- duced from Normandy, have legal writers agreed as to the source from which the Normans themselves derived it. One scholar maintains that it was brought by the Norsemen from Scandinavia;" another, that it was de- rived from the processes of the Canon Law; another, that it was developed on Gallic soil from Koman princi- plesj another, that it came from Asia through the Crusades." An American authority insists that it "is undoubtedly a development of English institutions and civilization."" Again, it is suggested that it was bor- rowed by the Angles and Saxons from their Slavonic neighbors in northern Europe; it has been traced to the assises de Jerusalem of Godfrey de Bouillon;" it is even claimed to be of divine origin;" and, iiually, a French scholar "' despairingly exclaims: "Son origine se perd dans la nuit de temps ! " '8 This is the view of Eeeves (Hist. Eng. Law, I. 24), and Palgrave cf . art. Jury, by P. W. Whitrldge, Lalor's Cycl. Polit. Science, II. 653. '*". . Their institution being ascribed by Bishop Nicholson to Woden himself." Bl. Comm. bk. III. c. XXIII. 23 Bourgoignon, Menwire sur le Jury. 8 HISTOET OF THE JUKY SYSTEM. According to Eobertson," " the true ans-57er is, that forms of trial resembling the jury system inyarious par- ticulars are to be found in the primitive institutions of all [Aryan] nations." That which comes nearest in time and character to trial by jury is the system of recognition by sworn inquest, introduced into England by the Normans . . . the instrument which the lawyers in England ultimately shaped into trial by jury." The name "Eecognition," Bracton tells us,°° is deduced from the fact that the participants "acknowl- edged" a disseisin or dispossession by their verdict, and the inquest itself was "directly derived from the Frank capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian Code and thus own some distant relationship with the Koman jurispru- dence." " This is the system which, Lord Campbell writes,"' "in the fifth Norman reign had nearly super- seded the simple juridical institutions of our Anglo- Saxon ancestors;" while an eminent American jurist, after, observing that investigation has shown among Nor- man legal usages " traces more closely resembling our 24 Art. Jury, Enoyol. Brit. XTII. 25 " The jury does not owe its existence to any preoonoelved theory of jurisprudence, hut . . . gradually grew out of forms previously in use, and was composed of elements long f amiUar to the people of this country." Forsyth, Trial hy Jury, p. 6. Professor Freeman, in his essay on The Growth of the English Con- stitution (c. I.) comments on the close and striidng likeness between the earliest political institutions of the Greek, the Italian, and the Teu- ton, cf . the same autho r's Norman Conquest, vol. V. p. 451. 26 De Legibus et Comuetudinibus AnglicB, I. 5. 2' Stubhs, supra, citing Brunner, Sohwurgerioht, p. 87; Palgrave, Eng. Com., p. 271. 28 Lives of the Chief Justices of England, vol. I. 29 The great storehouses for Norman and Anglo-Norman jurisprudence are the compilation called 'Grand Coustumier' and the Botiili NormannioB, GENERAL CHAKACTEKISTICS OF THE JUBT. 9 form of jury trial than anything afforded by the system of the Anglo-Saxons, concludes : "We regard it, therefore, as certain that all these in- fluences contributed to establish this mode of trial in England, and to shape it as we know it to exist there. Indeed, it was not until all of them had had an oppor- tunity of completing their work, that we find what we should now call a jury." " A due regard for the definiteness of legal phraseology calls for some comment on the meaning of Law and Fact, terms so frequently employed in the course of this work. Law, in its widest sense, is a rule of action ; in its technical sense, it is a general rule of human action, taking cognizance only of external acts, enforced by a determinate human authority paramount within a state." Whether the rule so enforced be moral or per- nicious, is impertinent to the question. " The existence of law is one thing, its merit or demerit another."" on the former of wtieh the iui-isprudence of the Isle of Jersey still is based; thus in criminal cases an appeal may be taken from the verdict of a petit police jury to the grand jury, called the Grand EnguSte. 30 Cooley, Am. Cycl. IX. pp. 721, 722. 31 Cf . Holland, El. of Jurisp. o. II. III. Bishop Hooker (Eccles. Polity, bk. I.) beautifully says : " Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power." 32 Austin on Jurisp. (Eng. ed.) 220, note. In accordance with this view, the finale of the familiar definition, "commanding what is right and pro- hibiting what is wrong,"— laid down by "theorthodox Judge Blackstone," as Gibbon calls him— is now generally eschewed, as paradoxical per se as well as erroneous in fact, "for though the municipal law may seldom or never command what is wrong, yet in ten thousand instances it forbids what is right" (Chase's Blackstone, 9, notes). Of ten, too, it commands or forbids an act, of which neither right nor wrong is predicable, e. g. the imposition of import duties under, and the prohibition of export duties 10 HISTORY OF THE JUET SYSTEM. Acaiu, "although human actions are the subject-matter about which law is conversant, they are not essential to its existence; for the rule is the same, whether its appli- by, the Federal Constitution. So with sanitary and (generally) police regulations. The whole body of law is either Public or Private. Public law com- prises International and Political or Municipal Law, the latter being the jus civile of the Institutes of Justinian and defined (Kent, Com. pt. III. leet. 20) as ''a rule of civil conduct, which is prescribed by the supreme power in a state," and regulates the intercourse of such state with its people and of the people with one another. American Municipal Law is, as to its object, divisible into Federal and State, and, as to its origin, into Common (or " unwritten ") and Statute (or "written") law. Private Law comprises Civil Law, Criminal Law, the Lawof Procedure (civil and criminal), and Sanitary and Supervisory regulations, now generally classified under the head of "police power." For the distinction be- tween Law and Equity, see post, chap. "V. note 15, chap. VIII. note 12; for that between Customary and Enacted law, see Maine, Early Hist, of Institutions, lect. XIII. between Prospective and Retrospective (and, under the latter head, ex post facto) laws, see Chase's Blackstone, U, 12, notes 4-6. The history and development of the Common Law are considered in the treatise of Judge O. W. Holmes, Jr. (" On the Common Law "),— also in Beeves' very technical but trustworthy History of the English Law, and in the first part of Spenoe's Equitable Jurisdiction of the Court of Chan- cery,— and learnedly discussed in the Introduction to Prof. Bigelow's "Placita Anglo-N(ynnannica, or Cases from William I. to Bichard I.," cov- ering the period 1066-1195. The BotuU Gmrim Regis [King's Bench], edited by Palgrave, extend fromll95 to 1199. The "State Trials" (edited by Har- grave, later by Howell) include cases, mostly in King's Bench, from 1163 to 1830. The Tear Books form a continuous record of cases in King's Bench, Common Pleas, Exchequer and Assises from 1292 to 1537. At the latter date, ofBoial reports ceased in England for more than three centuries, and private persons (casually until 1785, thereafter regularly) published reports, generally known by the names of their editors. In 1865, systematic reporting was resumed, the " Law Reports " being pub- lished under the supervision of an ofBcial Council of Law. In the United States, there are usually offtoial reporters for the highest courts, cases in the others being generally published by private enterprise, often with OfBoial sanction. Cf. Soule, Lawyer's Eeference Manual; Wallace, The Law Eeporters. See, generally, the learned paper on the materials of English Legal History, by Prof. F. W. Maitland, in Pol. Sci. Quart., vol. IV., pp. 496-.518, 628-647. In this connection a note of Sedgwick (Stat. & Const. Law, u. II.) is of interest : " As late as the middle of the 14th century, all the oral pro- GENEEAL CHAEAOTEEISTICS OF THE JUEY. 11 cation is called forth or not. . . . The rule con- tinues in abstraction and theory, until an act is done on which it can attach. . . . The maxim, ex facto oritur jus'^ must be understood in this sense; and the duty of judicial tribunals, consequently, embraces the investigation of doubtful or disputed facts, as well as the application of the principles of jurisprudence to such as are ascertained."" Fact is a term most difficult to define — so much so that Mr. Justice Stephen (in the third edition of his Digest of the Law of Evidence) abandoned the attempt previously made. Webster's definition (ed. 1859) is: ''Anything done, or that comes to pass; an act; a deed; an effect produced or achieved; an event." Negatively, a learned American jurist" suggests that "nothing is a question of fact which is not a question of the existence, reality, truth of something." Anything which is the ceedings in open court were in the French tongue, when by the 36th Edward III. c. XV. (1362), the English was introduced. . . . For nearly 300 years [from 1363 to the Commonwealth] English was the language of oral discussion, French of the reports, and Latin of the records; French also heing mainly the language of the statutes from 1275, till the acces- sion of Kichard III. (1483). . . . Nor did the Latin disappear from the records till 4 Geo. II. c. 26 (1731)." See, as to " English Legal History " generally, a learned paper by Prof. F. W. Maitland, in Political Science Quarterly, vol. IV. nos. 3 and 4. 33 A court does not charge a jury with matter of law in the abstract, but only upon the law as growing out of some supposition of fact: Bushell's Case, Vaughan 135. 34 Best Ev. (Chamberlayne's ed.), § 1. ssProf. Thayer, "Law and Fact" in Jury Trial, 4 Harvard Law Bev. 152. Cf. Bentharo (Jud. Ev. 49,50): "The existence of a certain state of things is a positive or afSrmative fact, the non-existence of it is a negative fact. But the only really existing facts are positive ones,— for a negative fact is nothing more than the non-existence of a positive fact; and the non-existence of a negative fact is equivalent to the exist- ence of the correspondent and opposite positive fact." See post, chap. XII. note 50, as to what facts are relevant to each other. 12 HISTOET OF THE JUET SYSTEM. subject of testimony is "matter of fact," while "matter of law " is the general law of the land of which courts take judicial cognizance." Evidence is the means or method by which a fact under judicial examination may be proved or disproved." " Whether there be any evidence, is a question for the judge. Whether sufficient evidence, is for the jury." '^ In any event, it is clear that the formula of Coke, herein aboTe quoted," "was never meant to be taken absolutely. ... It relates to issues of fact, and not to the incidental questions that spring up before the parties are at issue. The jury has to do with only a limited class of questions of fact, namely, questions of ultimate fact." " In general, issues of fact, and only issues of fact, are to be tried by jury; when they are so tried, the jury and not the court are to find the facts,*" and the court and not the jury is to give the rule of law;" the jury are not to refer the evidence to the judge 36 Cf . Best Ev. (Chamberlayne's ed.) 6, note 1. 31 1 Greenl. Bv. o. I. 38 Per BuUer, J., Company of Carpenters v. Bayward, Doug. 375. Cf Chandler v. Boeder, 65 TJ. S. 24 How. 2M, 16 L. ed. 633. 39 ^nte, note 6. It recurs Co. Litt. 155b, 226a; 8 Coke 155o, etc. Accord- ing to Biener (Bng. Gesohw. I. o. 2, 5) this maxim first took shape in England in the sixteenth century. In BusheU's case, supra, Vaughan, Ch. J., refers to It rather deprecatingly as a " sing-song," decantatum. 40 Thus in 1612 it was decided to he the office of jurors "to adjudge upon their evidence concerning matter of fact, and thereupon to give their verdict." Littleton's Case, 10 Coke, 566. " Non est juratorijyus juMcare, was the judgment in a case (Dyer, 106b) decided in ]55i. Already in the Tear Books many cases occur, through- out the 13th and In the 14th century, " in which the need of entering special matter [on the record] is pointed out, in order to prevent the laymen from passing on questions of law." See the learned essay on " The Jury and its Development " (by Prof. Jas. B. ThayerJ in 5 Harvard Law Key., where such cases are set out at pp. 313-316. GENERAL CHAKACTBKISTICS OP THE JURY. 13 and ask his judgment upon that, but are to find the facts which the evidence tends to establish, and may only ask the court for judgment upon these." " « Ibid, pp. U9, 150; of. chap. XII. note 47. CHAPTER II. THE DIKA8TS OF GREECE. The development of the jury may justly be said to measure the march of ciyilization. "In the early stages of society . . . causes are decided by persons of station and authority, without reference to any sup- posed special qualification on their part; it is only as civilization advances and laws become more complicated, that the study and application of them assumes the form of a distinct profession." ' Among the Oriental nations, no traces of jury trial are discoverable. With the Jews and Phoenicians (who may be taken as fair representatives) the administration of justice was monopolized by the priests, who were judges both of law and fact,' paying but little deference ' Best, Ev. S 83, note. 2 "For all manner of [civil] trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing which another chal- lengeth to be his, the cause of both parties shall come before the judges; and wlwm the judges shall condemn, he shall pay double unto his neigh- bor." Exodus, XXII. 9. The judges here referred to must not be confounded with Samuel and his fifteen predecessors (among whom Deborah), who under that appel- lation directed the affairs of Palestine at intervals during the four and a half centuries between the death of Joshua and the reign of SavU. Their office "was rather that of the military dictator, raised on an emergency to the command of the national forces. What his judicial functions could have been, seems very doubtful, as all ordinary cases would fall under the cognizance of the municipal judicatures." MUmau, History of the Jews, bk. VI. For further particulars concerning the judicial system under the Jewish theocracy, see the learned treatise on Mosaisches Becht, by J. D Michaelis (2d ed. 1785). It appears that judges were generaUy taken from the tribe of Levi, that their persons were sacrosanct, and that butchers were debarred from the dispensation of justice, "as in England 14: THE DIKASTS OF GEEECE. 15 to precedent and deciding each case withoiit much refer- ence to any general principles. In ancient Egypt, justice was administered by a presi- dent and thirty associates, ten being selected by the king from each of the three great cities (Heliopolis, Thebes and Memphis) respectively. The pleadin gs and proceed- ings were all in writing, no advocates being admitted, "on the ground that they darkened the administration of the laws," and that by their exclusion "the clever and tricky had no undue advantage over the simple and honest, as they could not avail themselves of rhetorical flourishes and appeals to the passions." Judgment was pronounced by the president placing an image of Truth, suspended from a golden chain round his neck, upon the pleadings of the party in whose favor the court had decided." "The essence of the trial by jury is the determination of questions [of fact] arising in actions at law by a select body of persons, who, without holding permanent jiadi- where the laws likewise secluded butchers from serving on the magis- tracy of the twelve [i. e., the jury] because the necessary forbearance or compassion for blood or pain may not be expected from tUem." (Vol. in. § 161.) Criminal cases were tried by the elders of the city at its gate. Vide Deut. XXI. 19; Josh. XX. 4; Jerem. XXVI. 10. sBiodoruB Siculus, cited In Forsyth's Hortensius (Am. ed. 1882) pp. 15, 16. Thereon seems to be predicated the notion of Sir Thomas More, in whose ideal republic advocates find no place. "They have no lawyers aoiong them, for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws; and therefore they thinJc it is much better that every man should plead his own cause and trust It to the judge." More's Utopia, bk. II. (Alden's ed.) p. 82, where we also read that " they have but few laws, and . . . very much condemn other nations, whose laws, together with the commentaries on tliem, swell up to so many volumes." cf . post, note 11. 16 HISTOET OF THE JUET SYSTEM. cial offices, come from among the people for this pur- pose and, after their work is done, return to them. In Asia we find nothing of this at any time; and nothing of it in history, until the dixdar/jpcov of Athens." * From this body our jury is said to be derired, accord- ing to the view maintained in a treatise published in the 18th century by Dr. Pettingal.' Forsyth' dismisses it without much ado as an "ingenious" theory; but the American jurist just quoted' appears to regard it with much favor, and it is approvingly cited as authority and summarized by Mr. Will." According to this theory,' the origin of the jury must be sought with the ancients, while the accepted rendition of the Greek dudazac (as of the Eoman/Mifjces), and the conception annexed to them, viz : "Presidents of courts," are erroneous; for in Athens these functions were performed by the * Cooley, Am. Cycl., vol. IX. art. Jury. The learned author would seem in error, however, when he regards the institution as "regulated if not introduced by Solon." The founda- tion was indeed laid by him; but the dikasteries were first popularized and made instruments for the conviction of criminals by Kleisthenes, while the credit of extending their functions to disputes between man and man and providing for their permanency by means of a fixed rate of compensation belongs to Pericles. "The building, afterward so spac- ious and stately, was erected on a Soloniau foundation, though it was not itself Solouian." Grote's Greece, pt. 11. c. XXXI., cf . id., o. XII. s "An enquiry into the use and practice of juries among the Greeks and Komans," (Lond. 1769) by John Pettingeil, D. D. 6 Trial by Jury, c. I. note at p. 12. ■> Cooley, sujyra. 8 Wharton, Law Lex. (5th ed.) p. 516. 9 This view is sustained by one of the greatest of historical authorities. "The free citizens of Athens and Borne enjoyed, in all criminal cases, the invaluable privilege of being tried by their country." Gibbon, Home, 0. 44. It is also maintained by Hermann (Pol. Antiq. of Greece), Felton (notes to Arist. Clouds), Liddell and Scott (Gr. Lex.), and other eminent scholars. THE DIKASTS OF GREECE. 17 Archons respectively." Hence -wheneTer "dvdps^ dcxdarac" are addressed by the Greek orators, they are to be considered aa men whose duty it was, after hearing the witnesses and other evidence, as also the addresses ol the advocates," to report their opinion and verdict to the presiding Archon — the term being virtually equiva- lent to our "gentlemen of the Jury." That the direct influence of the Greek — ^through the medium of the Roman — on the formation of the British 10 Thus the term 'judges' ia applied hy Kennedy "to the six junior archons, to avoid the uncouth title of 'Thesmothetes.' It does not in- deed . . . convey a perfect idea of the official duties which they had to discharge, yet it is hy no means inappropriate, seeing that the most important part of them were of a judicial nature." Orations of Dem., II. 48, note 3. 1 ' There were anciently no lawyers in Greece to argue the case, but the parties to a suit, or their friends, were wont to plead their own cause. "The addresses of orators or parties," Grote tells us, "formed the prominent part of the procedure, and the depositions of witnesses only a very suhordinate part." And the prejudice of the populace against the Sophists was mainly due to the fact, that "at a time when every citizen pleaded his own cause before the dikastery, they imparted, to those who were rich enough to purchase it, a peculiar sldll in the common weap- ons, which made them like fencing masters or professional swordsmen amidst a society of untrained duellists." (Hist, of Greece, c. XL VI.) And again : " The dikast heard little of the naked facts, the appro- priate subjects for his reason— but he was abundantly supplied with the plausible falsehoods, calumnies. Irrelevant statements and suggestipns, etc., of the parties"— there being no judge to restrict the evidence, re- strain the pleaders, regulate the trial, and instruct the jurors. "We see in the remaining productions of the Attic orators how much there is of plausible deception, departure from the true issue, and ap- peals to sympathies, antipathies, and prejudices of every kind, addressed to the dikasteries," to whose members, however, continual practice pre- sumably imparted considerable skiU in the detection of fallacies. But frequently, the historian thinks, it cannot be doubted that "success de- pended less upon the intrinsic merits of a case than upon apparent airs of innocence and truth telling, dexterity of statement, an d good general character, of the parties, their witnesses, and the friends who addressed the court on their behalf. . . . This is true of Home as well as of Athens." Ibid. 2 18 HISTORY OF THE JTTEY SYSTEM. Jury could at best have been extremely slight, will ap- pear when we consider the effect and fate of the Eoman dominion over Britain; " but the deductions drawn in reference to the functions and characters of the dikasts are plausible, and will be found fully sustained by the comprehensive description of that institution to be found in Grote's "History of Greece," extracts from which are subjoined — presenting in a terse and masterly manner the essential elements of the Athenian institu- tion, '^ and graphically contrasting its characteristic features with those of the modern tribunal. For service as dikasts, during the period best known to history, "6000 citizens above thirty years of age were annually selected by lot oub of the whole number, 600 from each of the ten tribes: 5000 of these citizens were arranged in ten panels or decuries of 500 each, the re- maining 1000 being reserved to fill up vacancies in case of death or absence among the former. The whole 6000 took a prescribed oath, couched in very striking words; after which every man received a ticket in- scribed witli his own name as well as with a letter desig- nating his decury. . . . Each of these decuries sit- ting in judicature was called the Helisea." " "When 15 Post, chap. V. " It should be observed that what is here said of the dikasts, applies to Attica and its dependencies only. Thus in Sparta they appear to have been unknown, judicial and jural functions being: merged in the hands of the Gerontes. During the hegemony of Athens, however, suitors were wont to be summoned from all parts of Greece, and compelled to submit to the Athenian jurisdiction and methods of trial, (of. Forsyth, Hortensius, c. II.) '■i Grote's Greece, pt. U. c. XXXI. The extracts collated below are from c. XL VI. Helisea, originally a public place or haU, in which the chief law court sat for the trial of state offenses; then, a name applied the court itself. THE DIKASTS OF GREECE. 19 causes (civil or criminal) were ready to be tried, the archons determined by lot the decury, and next the court in which it was to officiate — so that the case each was to try remained unknown until the time of trial. "The dikasteries proyided under the system of Peri- cles [467-428 B. O.J Taried in number of members; we never hear of less than 200 members — most generally of 500 — and sometimes also of 1000, 1500, 2000 members on important trials. " Bach man received pay, . . . after his day's business was over, of three oboli" or half a drachma" — i. e. about nine cents, though the pur- chasing value was several times that amount. "The dikasteries established by Pericles were inaccessible both to corruption and intimidation; their number, their secret suffrage, and the impossibility of knowing be- forehand what individuals would sit in any particular cause, prevented both the one and the other. And be- sides that, the magnitude of their number, extravagant to our ideas of judicial business, . . . served farther to render the trial solemn and the verdict imposing on the minds of parties and spectators. . . . From aXi)5 (confertus), crowded, thronged, cf. Felton's edition of Aris- tophanes' Clouds, note 86S. Here it is further stated that the men constituting these bodies were citizens above the age of thirty, called Heliasts, and "were also members of the popular assembly, and thus performed both legislative and judi- cial functions." This suggests an analogy with the Anglo-Saxon tithing and frankpledge [/post, chap. VI.]. " In such cases the dlkastery was formed by the union of several decuries. Though each panel (decury) nominally included 500 members, they probably seldom all attended. — Hermann's Pol. Antiq. of Greece, p. 265. 16 Anciently the Heliastio fee was but one obol: "For the first juror's obol I received. You got a go-cart on the Feast of Zeus." Aristophanes, Clouds, 864, 865. It may be noted that as late as 1633 (according to Powell's "At- torney's A.cademy," published that year) jurors in London received a fee of eightpence each, and talesman f ourpence only. 20' HISTOET OF THE JUET SYSTEM. "Taking the general working oi the dikasteries, we shall find that they are nothing but jury trial applied on a scale broad, systematic, unaided, and uncontrolled, beyond all other historical experience — and that they tlierefore exhibit in exaggerated proportions both the excellences and the defects characteristic of the jury system, as compared with decision by trained and pro- fessional judges. All the encomiums which it is custom- ary to pronounce upon jury trial will be found predi- cable of the Athenian dikasteries in a still greater degree; all the reproaches which can be addressed on good ground to the dikasteries will apply to modern juries also, though in a less degree. . . . "But in Athens the dikasts judged of the law as well as of the fact. The laws were not numerous, and were couched in few, for the most part familiar, words. To determine how the facts stood, and whether, if the facts - were undisputed, the law invoked was properly appli- cable to them, were parts of the integral question sub- mitted to them, and comprehended in their verdict. Moreover, each dikastery construed the law for itself without being bound to follow the decisions of those which had preceded it, except in so far as such analogy might really influence the convictions of the members." They were free, self-judging persons — unassisted by the schooling, but at the same time untrammeled by the awe-striking ascendancy, of a professional judge — obeying the spontaneous inspirations of their own con- " This is in a measure true of the modern jury, particularly as regards verdicts in cases of tort. Thus, in suits brought to recover damages for personal injuries, or for breach of promise to marry, one jury will find the plaintiff entitled to thousands of dollars, another— in a case involv- ing the same issues— may award the muniflcent sum of six cents. THE DIKASTS OF GEEECE. 21 sciences, and recognizing no authority except the lawa of the city, with which they were familiar. . . . "As to the effects of jury trial in diffusing respect to the laws and constitution — in giving to every citizen a personal interest in enforcing the former and maintain- ing the latter — in imparting a sentiment of dignity to small and poor men, through the discharge of a func- tion exalted as well as useful — in calling forth the patri- otic sympathies, and exercising the mental capacities of every individual — all these effects were produced in a still higher degree (than hy our jury even) by the dikas- teries of Athens; from their greater frequency, numbers, and spontaneity of mental action, without any profes- sional judge, upon whom they could throw the responsi- bility of deciding for them. . . , "As an organ for judicial purposes, the Athenian dikasteries were thus a simple and plenary manifestation of jury trial, Avith its inherent excellences and defects both brought out in exaggerated relief. They insured a de- cision at once uncorrupt, public-minded, and imposing — together with the best security which the case admit- ted against illegal violences on the part of the rich and great. Their extreme publicity — as well as their simple and oral procedure, divested of that verbal and ceremo- nial technicality which marked the law of Rome even at its outset — was no small benefit. And as the verdicts of the dikasts, even when wrong, depended upon causes of misjudgment common to them with the general body of the citizens, so they never appeared to pronounce un- justly, nor lost the confidence of their fellow citizens generally. But whatever may have been their defects as judicial instruments, as a stimulus both to thought 22 HISTOET OF THE JTTET SYSTEM. and speech, their efiBcacy was unparalleled, in the cir- cumstances of Athenian society. • . . The sus- ceptibilities of the Athenian mind, as well as the pre- vious practice and expansire tendencies of democratical citizenship [instituted by Solon, about 600 B. C] were also essential conditions — and that genuine taste for sit- ting in judgment and hearing both sides fairly, which, however Aristophanes" may caricature and deride it, was alike honorable and useful to the people. . . ." The method of setting this legal apparatus in motion was as follows :'° "Every one to whose lot it fell to serveas juryman received, after taking the oath, a tablet, in- scribed with his name and the number of the division to which he was to belong during the year. On the morning of every court day, recourse was again had to lots to decide in which courts the divisions should re- spectively sit for that day, and the suits of which they should take cognizance, since there were many which could be decided only in certain courts. The number of these courts of justice is uncertain; most of them, however, were in the Agora, and were distinguished by numbers and colors. Staves with corresponding marks were handed to the jurymen at the entrance of each court, as symbols of their judicial power, and at the same time tickets, on presenting which, from the time of Pericles, they received their fees" from the public paymasters. "The establishment of these paid dikasteries at Athens was thus one of the most important and prolific events IS Instances are quoted in Browne, Law and Lawyers in Literature. Also post. 19 Hermann, Polit. Antlq. of Greece, p. 265. THE DIKASTS OF GEEECE. 23 in all Grecian history. The pay helped to furnish a maintenance for old citizens, past the age of military service. Elderly men were the best persons for such a service, and were preferred for judicial purposes both at Sparta and, as it seems, in heroic Greece. Never- theless, we need not suppose that all the dikasts were either old or poor, though a considerable proportion of them were so, and though Aristophanes selects these qualities as among the most suitable subjects for his ridicule. ... As the fact stands, we may suppose that the 6000 Heliasts who filled the dikasteries were composed of the middling and poorer citizens indiscrim- inately; though there was nothing to prevent the richer, if they chose to serve." "" More recent investigators, however, value less highly the character of the dikasts and take a less roseate view of the efiicacy of the dikasteries. Thus the learned author of "Hortensius the Advocate" thinks that "the constitution of the courts of law at Athens was radically bad," and quotes Bishop Thirl wall to the effect that it " introduced uncertainty and confusion into all the rela- tions and transactions of private life, and contributed more than any other cause to the public disasters, while it corrupted the character of the people." The large number of dikasts, who "were taken indiscriminately from all the classes, so that they included a lai-ge pro- portion of the lowest," is dwelled upon, as well as "the kind of scene that would take place when such a mob has to decide important questions affecting the property and even lives of individuals." " The course of civil procedure seems to have been for 20 Grote's Greece, o. XLVI. 31 Forsyth's Hortensiufl (Am. ed.). o. II. pp. 30-31. 24 HISTOEY OF THE JUET SYSTEM. the plaintiff to call upon a magistrate who had jurisdic- tion of the subject-matter or cause of action involved, and to procure a summons for the appearance of the de- fendant, which the latter had usually to make within five days. Then a preliminary hearing occurred, in order to determine whether the plaintifE could make out a prima facie case, and on an adjourned day the dep- ositions of both ' parties, their witnesses and other proofs were submitted to him, not that he might pass thereon, but in order to preserve them for the trial be- fore a dikastery; for the latter heard no evidence that had not been submitted to the magistrate in the pre- liminary proceeding, although it might and often did require witnesses to appear in person, to certify (under dikasterial scrutiny) to the truth of the depositions theretofore made. The verdict was given by each dikast depositing in one of two urns a bean, pebble, or brass ball, indicative of his verdict. " There was thus a proceeding injure and one injudicio, akin to what we shall note hereafter in Eoman juris- prudence, but divested of the technical details that char- acterized the latter." "The Athenians, a people versatile in character and gifted with extraordinary quickness of intellect, de- lighted in the excitement of forensic contests, but this was not the only attraction which rendered the oflSce of a dikast or juror acceptable to them. Pericles intro- duced the custom of paying each of them for his attend- ance, and the demagogue Cleon, whose great object was to ingratiate himself with the populace, trebled the 2«M., pp. 33-34. »3 cf , post, chap. nr. THE DIKASTS OF GEEEOE. 25 amount ... so that the exercise of their judicial functions became, to a large number of the citizens, a means of livelihood as well as of amusement." " Accordingly Socrates complains that the lower orders of the state, rather than enter the maritime service of the same, prefer to stay at home and sit as dikasts, and breathe the fulsome incense of adulation, in which the sophists and other orators indulged, and which pre- tended to exalt the humble dikast to the rank of a demi- god. "And a god in some sense he was; for to no earthly tribunal lay there an appeal from him; his person was irresponsible, his decrees irreversible; and if ever there was a despotism complete in itself, 'pure, unsophisticat- ed, dephlegmated, defalcated' despotism, it was that of an Athenian court of judicature." " And Aristophanes (in his "Wasps") depicts an amiable old gentleman, Philocleon, who "cannot sleep for think- ing of the bench. . . . There, with his staff in his hand, and his judicial cloak on his shoulders, his de- light is to sit all day earning his three obols, and having his ears tickled with the gross flattery by which litigant parties in Athens sought to conciliate the favor of the judges." The plot of the play turns on the unremitting efforts of Bdelycleon to cure his sire of dikastomania." Again, in a small state like Athens, "where the jury on each trial bore no inconsiderable proportion to the whole number of citizens, many of these who sat as s* Hortensius, p. 25. 25 Id., p. 26. 26 Id., pp. 26-30. Philoeleon gives an amusing account of Ms daily experiences, concluding:: " Tremblingly the father sues for grace and pardon then. As though I were a god to grant forgiveness auto men." 26 HISTOET OF THE JURY SYSTEM. dikasts must have heen cognizant beforehand of the facts of the case; and no doubt the verdict was often given, not upon the evidence adduced in court, but on the private information which they themselves pos- sessed" " — in this respect bearing a striking resemblance to the English jury in olden times."' In criminal trials, inasmuch as "the coffers of the state were replenished by the fines set upon those who were convicted, and a large portion of the money thus obtained was expended upon public shows and festivals" — a disposition having its counterpart, centuries later, in Eome with its panes ef circenses — " the temptation to give an unfavorable verdict was almost irresistible, and small was the chance of escape if the accused happened to be wealthy! " " At all times were they, or many of them, ''swayed by party feelings and private animosities," which not only influenced their verdict, but also the sentence that it was likewise their province to pronounce thereafter. Thus the proud reply of Socrates to the inquiry what sentence he deserved (according to Plato, in Apologia Socratis) : "If I am to receive my deserts, I ought to have the highest honors paid me, and be entertained at the public expense in the Prytaneum," so exasperated the dikasts that they immediately condemned him to death." And so the wisest of the Greeks came to drink the cup of hemlock. We have treated the dikastery thus extensively, be- cause it is the first institution known to history which "Id., p. 38. 28 Tide chap. IX. " Hortenaius, p. 27. 30 Id., pp. 31, 35, citing Cicero, de Orat. I. 54. THE DIKASTS OF GREECE. QY presents characteristic features of jury trial," and also because it was so important a factor in the development of Athenian politics." It clearly possessed one essential 31 " 6 SiKaarin — a judge, or rather a juror; at least the Athenian dikasts, like the Boman juAices, came nearer the latter than the former, the presiding- judge heing 'o itpiTiit." Ijddell & Scott, Greek Lexicon. The derivation of the name is from Siktj, right; but "as in early times right was thought to rest upon usage, the original signification of ■Si/nj was custom, usage, manner or fashion," and the SUairTai hence were those who determined and declared this. 3' Thus the dikasts, whose functions were called into action in criml- Dal as well as civil causes, afford a marked instance of steadiness of pur- pose, power of discrimination, and fidelity to principle, in the trial of the accusation of ^scbines against Ktesiphon— for illegally proposing and causing the senate to decree the honor of a puhlio coronation for Demosthenes, in recognition of his patriotic services to the state, — on which occasion the orator delivered his famous oration De Corona. "It was manifest that Ktesiphon was but the nominal defendant; the real object of attack was Demosthenes, his whole policy and administration. ... A jury (of not less than Ave hundred) was impanelled by the archon." Kennedy's Demosthenes, vol. 11. p. 5. It may be noticed that, under the Athenian law, this indictment was allowed to lie dormant far seven years by the prosecutor, the accused meanwhile making no effort to cause the former either to drop it or bring it on for trial, which finally took place 330 B. C. "The indictment now preferred by ^schines against Ktesiphon only procured for Demos- thenes a new triumph. When the suffrages of the dikasts were counted, iGschines did not obtain as much as one fifth. He became liable, there- fore, to the customary fine of 1000 drachmae," incurred under the stand- ing regulation of Attic Law, rather than pay which he went into exile, whence he never returned. Grote's Greece, c. XCV. Both as illustrative of the manner in which statutes were then drawn, and as affording an idea of the nature of the law whose passage was the cause of the indictment aforesaid, an extract from that stately document is subjoined (Kennedy, II. 49-50): "In the arohonship of Buthykles, on the twenty-second of Pyanepsion in the presidency of the CEneian tribe, Ktesiphon son of Leosthenes of Anaphlystus moved: Whereas Demosthenes son of Demosthenes of Pasania" has performed various meritorious acts of a public nature, which are duly enumerated, therefore "the council and people of Athens resolve to honor Demosthenes son of Demosthenes of Paeania, with pub- lic praise— and to crown him with a golden crown, and to proclaim the crown . . . at the Dyonlsian festival." Tor the terms of the indict- ment, see Id., pp. 26-28. 28 HISTOET 01- THE JUET SYSTEM. element of the jury — selection of its members from the community at large; but on the other hand, would also seem to have exercised judicial functions. Still, its numerical strength seems to preclude it from being con- sidered a court, which is a select and limited body; while it may plausibly be inferred to have been the function of the presiding magistrate to concentrate the minds of that numerous assemblage on the issue, to draw their attention to the legal points involved and rules of law applicable (which, however simple and non-technical, must have been subject to misconception or contrariety of opinion), to finally submit the question to their de- cision, and to declare and record the judgment or sen- tence in accordance with their verdict. If this view " be accepted, the quasi-judical functions of the dikasts were simply incidental and subordinate to, however insepara- bly connected with, their duties as jurors. 33 It seems to coincide with the opinion of Jud^ Cooley: "Before pro- ceeding to hear any case, they [the dikasts] were sworn to discharge their duty faithfully. After hearing the case, they gave their votes by depositing them in urns or vases, from which the presiding [arohon or other] magistrate took them and announced the verdict. In this there is much resemblance to the jury of our own day; the principal difference being in the large number who sat in each case." Am. Cycl. IX. 721. CHAPTER III. THE JTJDICES OP ROME. The judicial procedure of Eome, though scientifically elaborated at an early date, and far more restricted by ceremonial forms and addicted to nice technicalities than that of the Greeks, "was, to a great extent, derived from and formed by that of Athens. "We are accus- tomed to translate the word 'judex' by 'judge,' but there was no oflBcer or magistrate known to the Romans who discharged precisely the duties which with us be- long to the judge; the prastor came nearest to it; but judex ' will be much better translated by the word ' jury- man."" This view coincides in a general way with that advanced long since by Dr. Pettingal,' who main- tained that among the Romans the judices originally never signified judges or presidents of the court, but "a, body of men quite distinct from the prsetor or judex questionis," who corresponded to our judge of the bench and was equivalent to the archon, i^ye/iiov dixdavspicov." A brief historical and analytical study of Roman ju- risprudence is requisite for the proper understanding of of the institution under consideration, aside from its in- structiveness for the student of law generally. 1 The term is derived from }us (right, law) and dieo (I tell, declare)— the ^'udices, therefore, being those who determined or laid down the right. This corresponds to the derivation of ' dikast,' ante. s Cooley, Am. Cyol. IX. art. Jury. 'cf. onte, p. 11. «The magistrate last mentioned ofSciated at criminal trials only.— See post, page 37. 29 30 HISTOET OF THE JUET SYSTEM. "In Eome," writes a modern German jurist of emi- nence', "the administration of Justice between man and man constituted an attribute of sovereignty, and as such was exercised originally by the kings and subsequently by the consuls. The sharp demarcation between what we distinguish as executive and judicial functions was not a part of Eoman civil polity." In course of time, it became customary for the consuls to delegate this civil jurisdiction to two praetors" as their peculiar sphere of utility, which designation, however, in nowise excluded the latter from participation in affairs of state, nor the other praetors— or the consuls — from the exercise of ju- dicial authority. With the acquisition of new provinces, additional praetors were appointed to administer justice in each, so that at the fall of the republic their number was sixteen. "It appears, moreover, as a very ancient institution, that the functions of the oflSciating \recMs sprechendeii\ magistrate did not comprise the complete control of the proceeding from first to last, but were limited to its in- itiation and orderly disposition; the proceeding, accord- ingly, did not terminate in a final decree or sententia [judgment], but in a judicium [verdict], which — de- pending on the direction of the magistrate as to what, and by whom, questions shall be adjudged — was a de- termination either by some standing tribunal or by (one or more) judices specially assigned. . . . Hence every lawsuit consisted of two successive divisions, the pro- 5 Von Keller, RSmischer Civil-Process (5th ed.) § 1. 6 These were respectiTely the prceUir urbanus (qui inter elves jusdielt), and the prcEtor peregrinvs (qui inter dves et peregrinos jusdieit). Id. g 2 (p. 6). THE JtfDICES OF EOME. 31 ceeding injure^ and that in judicio [the former being conducted before the magistrate, the latter before a pri- vate citizen acting as judex or arbiter] ; which systematic partition constituted the so-called ordo judiciorum pri- vatorum or the ordinary civil procedure." ' The permanent tribunals above referred to were the Decemviri {litiius judicandis or Judices Xviri) and the Gentumviri. ' As ' judges ' of the second class, the Ju- dices privati proper, are mentioned judices, arbitri and recuperatores ; of whom the former two (except at a very ancient period the arbitri) were never more numerous ' Every place where the court according to law and custom pronounces judgment, is termed jus ; and what is there transacted by or before It, is done in jure. Id., § 3, (p. 13). 8 Our authority then proceeds to state that various exceptions to this method of procedure were recognized in the course of time, chiefly in cases ivide Id. § 81] of trusts or^ei commisso, questions of manumission and emancipation, guardianship, funereal regulations and testamentary dispositions, and some others "wherein the court would conduct the proceeding from first to last without any judicium, and pronounce final judgment. This was the so-called extraordinaria eognitin or the proced- ure extra ordinsTn*' — which term is also, in another and more compre- hensive sense, applied to the court's jurisdiction in granting relief analogous to our ^ Provisional Remedies.* " These exceptions became more and more extended in the first cen- turies of the empire, till finally at the end of the third century the old system was wholly abrogated, the distinction between jus and judicium abolished, and the ordinary merged in the extraordinary procedure." Bom. Civ. Proc., 1 1 (pp. 5, 6). » Of the centumviral court (Judices CvirO, Prof. Morey writes that, "although it seems to have existed from very early times down to the later empire, very little is definitely known. It was a permanent tribu- nal made up of over a hundred members (from 105 to 180) presided over by the praetor, and exercising the same kind of authority as that exer- cised by the judices. The causes that came under its cognizance were probably those more closely related to the old jus civile, as questions re- garding Quiritarian ownership [as to which see ibid, pp. 74 and 283, #], and certain questions relating to status and inheritance. The an- tiquity of this court is evident from the fact that a spear, the ancient symbol of ownership, continued (as Gains declares) to be set up in its place of meeting."— Outlines Eoman Law, p. 390 (N. T. 188i). 32 HISTORY OF THE JtJET SYSTEM. than one, while the last class always consisted of a larger number, for each case tried by them." It is with the "judex " that we are more particularly concerned, and it may here be premised that the term yaries in meaning at different periods of Roman history, besides designating a variety of 'triers' at any one period. In this connection an able American authority," which succinctly embodies the results of the most recent re- searches, may be advantageously followed. "An important feature of the Judicial system of Eome during the time of the republic and the empire was the fact that the pronouncing of judgment was not, as a general thing, left to the magistrate, but to private per- sons invested by the magistrate with a judicial commis- sion to try the case in hand. Such persons were generally called jMi^tces. They bore some resemblance to the En-- glish jurors in being chosen from the non-official class of citizens and in dealing more especially with the facts of the case. But in Rome there was generally one judex only, who was appointed in a civil case and to whom was left the whole investigation and decision, after the issue had been joined before the magistrate. The per- son to whom the case was referred was sometimes called an arliter" when a greater degree of latitude was al- io KBm. Civ. Proc, § i {p. 20). " JMorer, Outl. Kom. Law, pp. 390, 391. '2 " When the judex was directed to decide according to equity and good conscience, without strict reference to the instructions of the mag- lstrate,"^uia, in actions boncBfldei (as contradistinguished from the ordi- nary actions strieti juris), which were suits of a quasi-equitahle character and adapted to the enforcement of obligations mutual or reciprocal in their nature— "he was called an arbtLer." Pomeroy, Munic. Law, § 108. These arbitri must not he confounded with arbitrators (arbitri ex com- promiso), which, in our law, " are jiidges chosen by the parties to decide the matters submitted to them, finally and without appeal." Per Grier, J., BurcheU v. March, 58 U. S. 17 How. 344, 15 L. ed. 96. THE JUDICES OF EOME. 33 lowed in pronouncing the sentence. When several per- sons were commissioned to decide a case, they were called recuperatores." " Hence (until the reign of Diocletian) there prevailed the distinction between those who exer- cised jurisdiction (jus dicer e) and those who pro- nounced judgment {judicium) — which "proceeding in judicio was simply a private investigation, conducted by the person appointed as judex with a view to ascertain whether the claims of theplaintifE were well founded." '* With the judex there was originally always — and subse- quently, probably at the option of? the praetor or the judex, upon the suggestion of the parties — joined a con- silium of "assessors, who gave legal advice and assist- ance to those administering justice^" as the intricacies of a case required." The form, development, and final extinction of the system of judices, in the progress of Eoman jurispru- dence, may be considered in three stages, and the same authority will be followed. " The most ancient mode of procedure . . . was the actio sacramenti . . . [which] represents a mock combat followed by a refer- ence of the case to arbitration. " The feigned quarrel was followed by the interference of the magistrate, who called out to both disputants to 18 As to Becuperatores, cf. post, note 2i, " Morey, Outl. Kom. Law, 28. 1 5 Thus Cicero delivered his oration Pro Quintio— in a suit which con- cerned a sponsio pr^dicialis or bail bond— before a single jtidex assisted by a consiliiim. So Aulus Gellius (JVoctes Atticae, XII. 13, refers to the addition of • persons learned in the law ' to the panel : "Denique ut tanto minvs esset p&ricvXi ne imperiti judicairent, solebant aUqtuincto ils units aut plures judieii soeii jvrisperiti ad^ngi, quorum con- sU/io omnia agerent," 3 34 HISTOET OF THE JTJBT SYSTEM. let go their holds. ... An altercation then ensued between the parties as to their respective titles, and each challenged the other to stake a sum of money upon the truth of his assertion. This stake was called sacramen- tum, from which the action took its name. . . . The sum forfeited did not go to the successful party, but to the public worship {ad sacra puUica). " The final step in the process was the reference of the disputed question to a private person, called the judex, or arliter. The property in dispute was assigned to the temporary possession of .one party, who gave surety to the other for its restoration in the event of his losing the suit" — herein resembling our action of re- plevin. " The jiidex simply decided as to which of the litigants was right in his claim. The part performed before ^e judex was called proceeding injudicio. " The execution of the judgment formed no part of the actio sacramenti. Neither the magistrate nor the judex enforced the claims of the plaintiff." " By the law of the XII Tables, "after the defendant had been condemned by the judex in a certain amount, he was allowed thirty days in which to satisfy the judgment. If he failed at the expiration of that time, he was liable to the manus injectio. That is, he was seized by the plaintiff and brought before the magistrate. If he could find no snvetj (vindex) his person was adjudged (addicius) to the plaintiff. He was thrown into chains and con- fined in the plaintiff's house for sixty days, during which time the amount of his debt was proclaimed on three successive market days. On the third occasion, if he 16 Morey, Outl. Kom. Law. pp. 17-19. THE JUDICES OF EOME. 35 obtained no surety, he might he sold into slavery, or slain, and his body divided among his creditors." " The ancient form of civil procedure {Jegis actio) was thus a judicial wager encouraged by the state to foster arbitra- tion between litigants, and enabling the prevailing party to enforce the claims adjudged to him. It has been set forth at large in these pages, since, in the words of Sir Henry Sumner Maine, the actio sacramenti was "the un- doubted parent of all the Eoman actions, and consequently of most of the civil remedies now in use in the world." " The second stage in the development of the Judex oc- curred, when the Formulary System, which dispensed with the legal fictions and symbolic forms of the early procedure, had been substituted for the legis actiones. The new system took its name from, and was based on, ih.& formula, "which was a legal document drawn up by the praetor after hearing the claims of both parties, containing instructions [charges] to the judex as to the points at issue, and the mode of deciding the case ac- cording to the facts which should be proved. . . . The separation of questions of law from questions of fact, though not clearly defined in this proceeding, was yet involved in it. This distinction was undoubtedly an outgrowth from the ancient distinctions between pro- ceedings iwywre and [those] injudicio. With the decay of symbolism, the proceeding w/Mre was translated from a sacred and technical ceremony into a series of direc- " Id., p. 28, quoting : " On the third market day let him be cut into pieces ; if any one cut too much or too little, it will not he a crime.'' Cf . an interesting note on the " Koman Lawof Debtor and Creditor," in Grote's Greece, pt. n. app. to c. XI. 18 Early Hist, of Institutions, p. 26Z.—"Fietio," says the same authority^ "Is properly a term of pleading, and signifies a false averment on the part of the plaintiff [e. g. Koman citizenship] which the defendant was not allowed to traverse." Ancient Law, c. II. 36 HISTOEY OF THE JUET SYSTEM. tions founded upon the legal aspect of the case, and set- ting forth the points at issue; while the proceeding inju- dicio came to be an elaborate and careful investigation of the facts in the case. In this way the formulary system, in its application to civil cases, brought into prominence one of the most essential features of the jury system." " 19 Morey, Outl. Bom. Law, pp. 86, 87. The author cites Ortolan to the effect that the formulary system was "nothing hut an ingenious method of constituting and directing a jury in civil cases." The statement of the subject-matter of the controversy was termed the demonstratio; plaintiff's claim was contained in the in- tentio; the praetor's charge to Hie judex, in the adjudicatio, or (if pecun- iary damages were demanded) in the condemnatio. The eaceptio (which plaintiff might meet by a replicatio, to be met in turn by a dwplieatio), presented the case from the standpoint of the defendant. The typical names for the parties in the formula were, respectively, Aulus Ag&riua and Numerius Negidius. A general outline, under the formulary system, of the mode of proced- ure in a Roman lawsuit (actio)— by which plaintiff (actor) and defendant (rem) submit the issues of their case to a praetor or other public func- tionary—may here be advantageously appended: "These magistrates possessed two kinds of jurisdiction, the one ordi- nary, the other extraordinary. In the former they were the sole judges of the law. "Actions were commenced before them; the parties made their allegations or pleadings which were reduced to writing; the issue was joined, or. In other words, the law and facts stated upon one side were denied on the other, and the cause was ready for trial. . . . "This termination of the allegations of the parties, which the English and American procedure calls the joining of issue, the Eoman lawyers denominated the litis contestatio. After the plaintiff and defendant had thus met in a definite issue, the next division of the formula was the adjudication, or sending the cause to the judex for decision upon the facts and final judgment [judieiuni], . . . "The magistrate at this point [i. e. issue joined] rendered his decision [fententia] upon the law (which was necessarily conditional in its charac- ter) defining the legal rule applicable to the case and showing how, if the facts should be established in one way or another, the judgment should be given. All this was done before the evidence was introduced to pro ve the facts. Here the judicial functions of the magistrate ended, and he transmitted the cause to a judex, agreed upon by the parties or appointed by himself, who heard the proofs, decided the facts, and gave a final judgment under the guidance of the rule of law laid down by the magis- trate. The proceedings before him were similar to those before our juries; witnesses were examined, counsel argued, and a verdict was ren- dered." Pom., Munic. Law, gS 106, 163; vide also Eorsyth, c. TTT, § 1; Cooley, Am. Cyol. IX. 722. THE JUDICE3 OF BOMB,. 37 We now proceed to the consideration of the third and final stage. The decay of republican institutions and the deyelopment of imperialism of necessity also affected powerfully the judicial arm of the government. "The formulary system of the republic was inconsistent with the spirit of the new government. The old system not only involved the separation of questions of law and questions of fact, but it admitted a body of non-profes- sional citizens to a share in the administration of jus- tice. This system had been continued in the early Em- pire in accordance with the general tendency to preserve the constitutional /orms [while destroying inch by inch the inner life\ of the republic. But the revolution of Diocletian and Constantine resulted in bringing the ad- ministration of justice entirely under the control of the emperor and the officers expressly appointed by him. This is seen both in the decay of the formulary system and in the duties of the pedanei judices. "The formulary system was in harmony with the old republican idea that the functions of government should be exercised by the citizens, or by the magistrates chosen by citizens. . • . This whole procedure, in- volving the separation of jus and judicium and the exercise of judicial functions on the part of private citi- zens, was overthrown by Diocletian. The change not only grew out of the autocratic tendency of the new government; but was in part rendered recessary by the decay of the public spirit of the citizens, who avoided, as irksome, all share in public duties. "Hitherto the magistrate might, in exceptional cases, assume the entire control of a case, and thus dispense with the service of a, judex. It was by ordering the ex- 38 HISTOET OF THE JUET SYSTEM. elusive use of this kind of procedure, which was called '^extraordinary/ that Diocletian abolished the formulary system which was involved in the 'ordinary' method of procedure. By a constitution of the emperor," all offi- cers having jurisdiction were instructed to decide all questions — even those of fact which had previously been referred to the judices. Even the word 'judex' was no longer used in the old sense, but was applied to the magistate who exercised both/ws andi judicium. "In order to relieve the provincial governors from an excess of judicial business, Diocletian granted to them the right to refer cases of minor importance to subordi- nate officers {judices pedanei)" — probably so termed, be- cause sitting, as it were, ad pedes, at the feet of the gov- ernors. They "were not judices in the old sense of the word, but, according to the opinion of Ortolan, perman- ent magistrates entrusted with the special duty of con- ducting such cases as the governor might see fit to refer to them," and this without any separation into jus and judicium. "No other view of the character of these officers," our authority concludes, "seems consistent with the autocratic spirit which permeated the whole imperial system." " The prevalence of the judex in Eoman jurisprudence may thus be chronologically tabulated, in three epochs or stages: I. From the adoption of the XII Tables" (450 B. C.) to the lex Mbutia and leges Julim (passed about 100 B. 20 And an edict of Constantine. See post, p. 41. 21 Morey, Outl. Kom. Law, pp. 140-142. 22 These "must be regarded as a compilation of the customary law of Rome, "hitherto preserved and administered by the aristocratic or patri- cian class. . . . Our knowledge of the law previous to the formation of this code is, in great part, a matter of speculation." id., p. 25. cf.p.43. THE JUDICES OF EOME. 39 C. and 30 B. 0. respectiyely, probably under Julius as ■well as Augustus Caesar). This may be designated as the formative period, in which the judicial wagers prevailed. II. Prom the Laws mentioned — by which the intro- duction of the Formulary System was effected — to the reign of Diocletian (about 300 A. D). This is the period in which the jzidicium had its fullest sway and perfect development. III. From Diocletian to the Justinian Code; which {533 A. D.) confirmed, and perpetuated for all countries whose jurisprudence is based on the civil law, the mer- ger of the ordinary in the extraordinary jurisdiction of the magistrate, whereby the court decides both the law and the facts of a civil case. It remains to consider the manner of selection of the judex. "The whole number of persons," says Cooley,'" "from whom could be elected the judices of each case was as in Athens large, amounting to some thousands; but by whom and on what principle they were appointed, or how and by whom the smaller number was selected for each case, is not certainly known." There was some- times an agreement of the parties as to the judex or ju- dices, and there was a method of objecting to judices appointed by lot or otherwise, which {recusatio judicis) answered very exactly to our challenges." S3 Am. Cycl. IX. art. Jury, !* With regard to the recuperaf ores, " it is generally supposed that it ■was not necessary for them to be drawn from the usual judicial lists, from which the j'udices and the arbiters must be selected." — Morey, Outl. Eom. Law, p. 390. They appear to have been selected by the praetor, after each party had rejected a certain number from the panel [thus bearing some re- semblance to our " struck " jury].— Von KeUer, R8m. Civ. Proo. 8 9 (p. 44.) Concerning the choice ot judices, the same authority states that plain- tiff had the right to suggest one from a limited number of persons as a 4:0 HISTOBT OF THE JUBT SYSTEM. An eminent writer on the law of evidence" concludes that "the principal and characteristic circumstance in which the trial by a Eoman differed from that of a mod- ern Jury, consisted in this — that in the former case nei- ther the prsetor, nor any other officer distinct from the jury, presided oyer the trial proper to determine as to the competency of witnesses, the admissibility of evi- dence, and to expound the law as connecting the facts with the allegations to be proved on the record."" What has hereinbefore been stated has reference to civil suits only. However, the analogy " between our jurors and the judices, whose province it was in criminal trials to determine the question of guilt or innocence, is in many respects even stronger. While always more numerous than the corresponding body with us, there was never such an association of lawyers (assessores) with the panel, as was frequently the case with their civil juror. Another peculiar] ty they possessed was, that they could exercise the prerogative of mercy; just as our juries may commend a defendant whom they have tried and convicted to the mercy of the court. The prosecution of crimes, in the early days of the re- public, chiefly took place before the community at large, assembled in its various comitia or tribal assemblies. In certain cases, however, such as high treason {crimen IcBSCB majesiatis) the senate early acquired and continued proper judex (jiuiicem ferre adversaria) which selection was formally conflrmed by the prastor. Under Augustus, a permanent register of jurors (Album judicum ee- lectorum) was established.— Id. § 10. 25 Starkie, Bv., I. 5, note d. 26 This defect seems, however, to some extent to have been remedied by associating a consilium of assessors with the jury.— ef . ante, page 29. 2' of. Forsyth, note to p. 46. THE JITDICES OF EOME. 41 to exercise criminal jurisdiction. As the population in- creased and crimes multiplied, the prosecuting apparatus of the comitia was found cumbersome and impracticable, and accordingly "this inconvenient method of conduct- ing criminal trials was superseded by the custom of making each particular case subject to a special trial [questio) which was conducted before a select body of judices under the direction of a qusestor, specially com- missioned to preside in the given case. " The custom of creating a special commission to try each case soon gave way to the organization of several permanent tribunals (questiones perpetuce) each having jurisdiction over a certain class of crimes. Every crim- inal trial was thus conducted before a legal magistrate and a body of judices, or, in modern phrase, before a judge and jury. These two elements of the criminal court were distinct in character and functions. It was the duty of the magistrate, who was either a praetor or an officer called judex questionis, to conduct the trial according to the law which applied to the case. It was the duty of the jurors, who were private citizens selected for the occasion, to decide upon the guilt or innocence of the accused according to the evidence."" That the ancient institution was not free from modem vices, like jury-fixing, is shown by a passage in Cicero's second Letter to Atticus: "Hoc tempore CatiUnam, com- petitorem nostrum, defendere cogitamus; judices habe- mus, quos voluimus, summa accusatoris voluntate." " SBMorey, OutL Kom. Law, pp. 87-88. 59 Translation: At this time I am thinking of defending Catiline, my rival [for the consulship!; I have secured the jurors that I wanted, with the full consent of the prosecutor.— This was P. Clodius Pulcher, who had preferred against Catiline an accusation for extortion, alleged to 4:2 HISTOET OF THE JUET STSTEiL In Eome, as in Greece, the intervention of the jury was originally made use of only in state trials, since this was the means by which the jealous citizens of those democracies could guard against encroachments on the rights and liberty of the individual — the application of the principle to civil controversies following, by analogy, at a much later date. A brief survey of the successive Eoman laws governing criminal prosecutions may hence not prove uninteresting — for the alternate admission and exclusion, and the ultimate recognition, of the com- mons as an element in this tribunal, vividly illustrate the struggle for supremacy between the classes compos- ing the community of Eome, and in many respects con- stitute a historical prototype for the conflicts between crown and commons in England many centuries after- ward. For criminal trials other than capital, the first fixed court {questio perpetua) was established in the year 149 B. 0. by the Lex Calpurnia de repetundi, which confined the selection of the judices to members of the senatorial order; the Lex Sempronia, however (129 B. C.) pre- scribed their selection from the knights (eguifes) alone. By the Lex Servilia it was (104 B. 0.) enacted that ac- cuser and accused should severally propose 100 judices, and that each might reject 50 from the list of the other, so that 100 would remain to try the alleged crime. Sulla (80 B. C.) restored the judicium to the senators, and established nine permanent courts for the trial of as many criminal offenses respectively. But the Lex have been practiced while propraetor in Africa, 67 B. C. " Oodius, in fact, was bribed to g-ive up the cause . . . and Torquatua taking- his place, Catihne was acquitted im/amia jMiJicum." (Prichard & Bernard's Select letters of Cicero, note at p. 100). THE JUDICES OF ROME. 43 Aurelia (70 B. C.) vested it in the three orders jointly — senators, knights and Tribuni ^rarii — the last named (representatives of the plebs or commons) being the most respected plebeians, who acted as treasurers of the tribes and collected the arbitrary tax for the payment of the troops. The Lex Judiciaria of Caesar abolished this third class, but that of Antony restored its functions and, moreover, removed the pecuniary qualification thereto- fore required, thus extending its membership to the cen- turions (or army officers) as representatives of the sol- dier element. Augustas added a fourth class — termed Ducenarii, who tried the trivial ofEenses — and Caligula a fifth, since by this time (analogous to our own expe- rience) the judicium or jury duty had come to be re- garded as a burden rather than a privilege, which each one sought to carry as little and lightly as possible." And the Lex Pompeia de arribitu required that 80 ju- dices be selected by lot for each criminal trial, of which 30 The gradual growth, temporary authority, and final decadence of the power of the Roman judex are summarized by Gibbon as follows "The task of courenlng: the citizens for the trial of each offender be- came more difJoult as the citizens and the offenders continually multi- plied ; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. . . By these inquisitors the trial was prepared and directed ; but they would only pronounce the sentence of the majority of judges, who with some truth have been compared to the English juries. To discharge this important though burdensome oflBce, an annual list of ancient and respectable citizens was formed by the prsetor. After many constitu- tional struggles, they were chosen in equal numbers from the senate, the equestrian order, and the people; 460 were appointed for single ques- tions ; and the various rolls or decurice of judges must have contained the names of some thousand Romans, who represented the judicial au- thority of the state. In each particular cause, a suf^cient number was drawn from the urn ; their integrity was guarded by an oath ; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant. . . . In his civil jurisdiction, the preetor of the city was truly a judge, and 44 HISTOET OF THE JDET SYSTEM. number the accuser and the accused might reject (chal- lenge) 30 in all; thus, on the trial of Clodius, there were 56judices. The method of voting was for the members of each class to deposit their Totes in a separate urn, the result of each being taken separately and the whole added together, so that it was known how each class Toted, though their individual votes remained unknown. The Eoman institution had some similarity with the Greek in the selection of its members, their standing and stated compensation, and differed from it — while agreeing with the modern body — in the full separation of law and fact, the existence of a dual process for their determination respectively, and in that the jurors had no direct influence on the judgment {sententia). The characteristic elements of our jury are: (1) the facts in a case are decided by individuals distinct and separate from the judge or magistrate, and (2) these individuals are chosen freely from the community of the citizens at large. "The Eomans possessed the first of these feat- ures; the origin of the second is to be found in the tribal customs of the German peoples . . . who settled in Britain."" The Eoman and the English method are well contrast- almost a legislator ; but as soon as he had prescribed the action of law, he of ten referred to a delegate the determination of the fact. . . . But whether he acted alone, or with the advice of his council, the most ab- solute powers might be trusted to a magistrate who was annually chosen by the votes of the people. The rules and precautions of freedom have required some explanation; the order of despotism is simple and inani- mate. Before the age of Justinian, or perhaps of Diocletian, the decurkB of Boman judges had sunk to an empty title ; the humble advice of the assessors might be accepted or despised; and in each tribunal the civi) and criminal jurisdiction was administered by a single magistrate, who was raised and disgraced by the wiU of the Emperor."— Decline and Fall of the Boman Empire, chap. H. 31 Pomeroy, Johns. Cycl. n. art. Jury. THE JUDICES OF EOME. 45 ed by the American jurist just quoted. '' "With us there is one trial; the testimony is offered before judge and jury together; at its conclusion the court pronounces the law in the form of an oral charge, and the jury consider the facts in the light of the directions received from the bench. The Eoman procedare required in fact two trials: At one the legal principle was discussed and de- cided by a magistrate, and reduced to a written form, which supplied the place of a charge; at the other the facts were determined, and a decision made, settling the rights of the parties, by a lay judge. The proceeding before the magistrate was said to be injure; that before the judge was in judicio. It is thus evident that, by the Eoman procedure, the questions of law and those of fact were even more completely separated in judicial trials than by our own. . . ." "Thus the institution," continues the same authority, "existed for centuries, during the republic and under a portion of the emperors, the extraordinary power of the praetors constantly increasing and supplanting the ordinary, until, by an edict of the Emperor Constantius (A. D. 352), the latter was abolished, and the only method of trial became that in which all the questions" of law or of fact, similar to the power of equity judges or chancellors to-day, "were left to the same magistrate for decision. This practice was incorporated in the final codification of the Eoman law under Justinian [A. D. 533], and has descended to us as one of its essential features, particularly distinguishing it from the common law of England. With the change made in the Eoman jurisprudence by the imperial policy, the separation of 82 Id., Munic. Law, §§ 107, 109. 46 HISTOEY OF THE JUET SYSTEM. the questions of la-w and fact disappeared in European states, to re-appear centuries after, wliile the English jury trial was reaching, through many progressive stages,'^ its present well defined form." " 33 1. 6. The Compurgators, Sectatores, etc. (post, chap. VII,) the Eeoog- nitcrs (chap. VIII.) and the Assise (chap. IX.). 3* Upon concluding this topic, we cannot refrain from appending an appreciative tribute to the Boman praetor from the pen of the late Prof. Pomeroy (Mun. Law, § 609) recognizing his rank as a potent fac- tor in the progress of jurisprudence and a promoter of civilization. Af- ter EiUuding to the glory and grandeur of the Roman triumphators, ho concludes with this singularly eloquent peroration: "But the togaed praetor on his judgment seat was the exponent of a deeper, wider, more vital force; a force which penetrated beyond the reach of armies, and conquered when those armies were overthrown. He represented the Boman Intellectual power, the genius for organiza- tion, the ideas of order, of civilization, of right and justice. He created Jurisprudence which followed close upon the advancing limits of Em- pire, destroying old national systems, and making a people's subjugation complete. He has left a work whose effect on the world's civilization has far surpassed that of Grreek philosophy and literature, or of Boman conquest. Indeed, his life is prolonged to our own times. The Roman empire has crumbled, the forum is deserted, but the Boman praetor has ascended the judicial tribunals of all modern nations. He sits by the Bide of the English chancellor; his spirit animates the decisions of British and American judges; he speaks with Holt, and Mansfield, and StoweU, with Kent, and Story. His influence will never cease while nations are impelled by sentiments of justice and equity, and their laws are formed upon a basis of practical morality." CHAPTER IV. THE TRIBUNALS OF THE ANCIENT GERMANS." We haye seen that one essential feature of jury trial, the selection of the triers from the body of the com- munity, originated or prevailed among the Teutons. On the other hand, "it is evident," to quote an Ameri- can publicist," "that this important element of the jury trial — the separation of the law from the fact,' and the dual tribunal for their decision — was not borrowed from the Anglo-Saxon ancestors of the English nation. On the contrary, the German tribes . . . had not at- tained to the conception of any such refinement in the administration of justice. It was the very central prin- ciple of their primitive civil polity, that the decision of all private controversies . . . was committed to the collective freemen gathered together in their local as- semblies." This system of self-government was carried to an advanced degree of development by the Saxons in England." The impression produced on the Eomans by their contact with the ancient Germans, and the oldest ac- ' For a brief account of the old Scandinavian trial Institution, see post, chap. VI., note 20. > Pomeroy, Johns. Cycl. II., art. Jury. 3 In the first chapter of his essay on The Growth of the Eng-liah Con- stitution, Prof. Freeman presents an interesting account of the public assembhes of TJri and Appenzell, in whose deliberations every male adult citizen participates to the present day, and wherein "we may see the Institutions of our own forefathers, the institutions which were once common to the whole Teutonic race, institutions whose outward form has necessarily passed away from greater states, but which contain the germs out of which every free constitution in the world has grown." 47 48' HISTOET OF THE JUET SYSTEM. count of the institutions of the latter, are recorded by Tacitus in his immortal work De Situ ac Populis Ger- manicB; and in the following passage therefrom, enthu- siastic legal antiquaries have claimed to discover the germ of the jury, which reached its full development on British soil: "Miffuntur in isdem conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis ex plebe comites, consilium simul et auctoritas, adsunt."* So an old writer' on the jury states, that "traces of this mode of trial in Germany have been thought to be visible in the hundred co-assessors, mentioned by Taci- tus as chosen out of the Ingenui, which the lord of a territory had when he sat in judgment. This number (says Mr. Carte') prevailed undoubtedly among the Saxons, as in all the northern nations, till succeeding times gave occasion to some alternations." It would seem, however, as if the writer confounded with this juridical institution the political and territorial division of the Hundred — which, indeed, prevailed among the various Germanic nations and was restored in England by King Alfred.' It is, however, clear from recent investigations that this view must, if adopted at all, be taken with much * Tac. Germ. XII. Freeman's transl. Eng. Const., o. I. "In the same assembly chiefs are chosen to administer justice through the districts and villages. Bach chief in so doing has a hundred com- panions of the commons assigned to him, as at once his counsellors and his authority." 6 In Bees' Cycl. vol. XX., tit. Jury. 6 A writer on English history whose work is mainly valuable as a storehouse of historical data; published 1744-1755. 'See post, chap. VII. So Maine (Early Law and Customs, 144) speaks of " the oldest and most nearly universal of the organized Teu- tonic courts, the court of the hundred," in which the Salic Law was the manual " for the use of the free judges." THE TRIBUNALS OF THE ANCIENT GERMANS. 49 qualification. Waitz, in his Constitutional History of Germany/ elal)orately discusses the question, and his commentary on the passage quoted may he thus summarized : the heads of each district {principes) chosen in the popular assembly of the tribe {in conciliis) did not themselves pronounce judgment, but arranged aud supervised the session of the court by summoning the " judges," causing the attendance of the parties and their witnesses, and seeing to the execution of the ver- dict or judgment ; but it was the centeni or hundred attendants, who found the decision (cowsi7iwm) and gave it validity and force (auctoritas).- The effect of all this is that, in number and in the primitive system of juris- prudence with which they had to deal, this institution strikingly resembled the Greek dikasteries, less distinctly the Uoman judices, and thus remotely the modern Eng- lish jury. A corroboration of this view is furnished in this state- ment of Mr. Stubbs:' "The primitive German courts were tribunals of fully qualified members of the community, a selection, it might be, from a body of equally competent companions, able to declare the law or custom of the country and to decide what, according to that custom, should be done in the particular case brought before them. They were not set to decide what was the truth of facts, but to determine what action was to be taken upon proof given . . . furnished by three means : the oaths of the parties . . . and their compurgators, the production of witnesses, and the use of the ordeal," practices which will be more fully con- 8 Verfassungs-Geschiolite, vol. 1. 154, 238, 333 ff . • Eng. Const. Hist. o. XIII. 4 50 HISTOBY OF THE JUET SYSTEM. sidered when we come to the consideration of Anglo- Saxon jurisprudence.'" The whole topic is admirably discussed by Forsyth," in various passages which we have collated from his history of Trial by Jury : " The Germanic courts of justice in their earliest form . . . were composed of the freemen of the dis- trict, and presided over by the Graf or count incomes). All had a right to attend and take part in the judg- ment," though in practice the attendance doubtless became limited to persons of peculiar ability and apti- tude, whose opinion would tend to carry more weight than that of the average 'citizen,' until the latter began to feel his own superfluity and vacated the field. Before this, however, the practice had arisen for the president to select certain freemen (usually seven, and never less than three) to act with him when holding court. These among the Franks were called Racfnn- hurgen, among the Lombards Arimannen, both being designated in old records by the Latin equivalent of boni homines. This segregation naturally but un- intentionally produced a class of lawmen, so that "at a later period ... we find judges duly appointed to the ofiBce and called scaiini {i. e. Schoffen or 'Urtheiler')" who, however, did not at first ex- clude the freemen, but seem to have sat with them as joint members of the court. The chief difEerence be- tween them was, that it was optional to the latter to •"Post, chaps. VI. and VII. i: Forsyth, o. in. 8 1. id. § 2. Cf. Savigny, Hoem. Eechtsgeseh. I. o. IV. art. 3. 12 Consult Brenner on "SchceffengerUMe" forfurther particulars. THE TEIBUlfALS OF THE AIJCIENT GEBMAliS. 51 attend or not . . . -while the smStm were obliged to sit, by yirtue of their office. This change seems to have been introduced by or about the time of Charlemagne," who ruled from 768 to 814, since in the capitularies" and edicts of that monarch the term " scalini" first occurs. " They were chosen by the presiding ' comes ' or ' missus,' with the assent of the people generally ; and the number required to form a court was seven . . . but on solemn and important occasions they were increased to twelve." This presiding magistrate "had, however, no voice in the decision ; and his duties, like those of the archon at Athens and prsetor at Rome, were merely ministerial . . . The scabini, on the contrary, were both court and jury. They determined the question of innocence or guilt, or whatever fact might be in dispute, and they also awarded and pronounced the judgment . . . Usually the court itself, in convicting an offender, did no more than sentence him to undergo the ordeal, which gave him still a chance to escape ;, and amongst the old Saxons of the continent the judges (in number seven) might themselves be challenged to fight, by the culprit and six of his friends." The explanation of the fact that an institution of the common ancestors of the English and Germans, at the start characterized by the selection of triers from the community at large, should flourish on English soil and ultimately develop into the jury, while falling into gradual desuetude in Germany and finally becoming ob- solete, must be sought in the successive stimuli — above all, the Norman invasion — which afEected it in Britain ; 13 Cf. ante, chap. I. p. 8. Post, chap. VUL 52 HISTOET OF THE J0ET SYSTEM. while, on the other hand, its decay on the continent may be attributed to the gradual exclusion of the free- men (at first voluntary, but afterwards compulsory) from the ancient tribunal, and to the establishment of the institution of the scabini in Germany by Charle- magne. These were the sole judges of fact as well as law. They absorbed the whole judicial functions of the court, and, therefore, in the opinion of our authority," " there was no room for another body distinct from them, whose ofBce should be conclusively to determine questions of fact for them. And when the principle was once established of thus making the court consist entirely of a limited number of duly qualified judges, the transition ... to single judges . . . who decided without the intervention of a jury, was a natural and almost necessary consequence."" 1* Forsyth, ante. >' The adrent and subsequent supremacy of the scabini is suggestive of the creation of the judices pedanei following the disestablishment of the jwdKB proper, in Eoman jurisprudence. Cf. ante, chap. HI. p. 33, 34. CHAPTER V. THE INSTITUTIONS OF THE BRITONS. "It is an important fact as regards the history of the spread of the Roman law in the west of Europe," ob- serves Dr, Kaufmann in his preface to the first Ameri- can edition of Mackeldey's Modern Civil Law/ that this law as it existed before Justinian, was introduced only into those countries which were converted into Roman provinces, as was the case with Great Britain. . . . Britain, as a Roman province, was placed under a governor with very extensive powers ; so that the regulations introduced by him had necessarily a deep and lasting effect." For a more perfect understanding of this influence and its consequences, as well as for a just conception of the ground on which the various factors that ultimately produced the jury had to operate, and of the successive stages of evolution through which it passed, it will be necessary to go to some extent into the early history of England ; as well as to consider the various modes of trial which preceded, but were ultimately replaced by, or merged or found a substitute in, or were developed into, the trial by jury. 1 Commenting on this work, Mr. Cooke, in the appendix to his Treatise on Common and Civil law in TTnited States Jurisprudence, says that its "learning and clear observation, as well as forcihle illustration of the history and influence of the Civil Law in England, entitle it to a high place in the literature and philosophy of English jurisprudence." 53 5i HISTORY OF THE JUET SYSTEM. The first inhabitants of Britain were a Gallic or Celtic race, who settled the island from the continent. Hume" informs us that "the southeast parts had already, before the age of Cffisar, made the first and most requisite step towards a civil settlement; and the Britons, by tillage and agriculture, had there increased to a great multi- tude. (Caesar, lib. IV.) . . . The Druids," who were their priests," performed also the duties of secular judges and had "great authority among them. . . . They possessed both civil and criminal jurisdiction; they decided all controversies among states," — for the Britons were divided into a number of petty but querulous tribes, under limited monarchial governments, — " as well as among private persons, and whoever refused to submit to their decree was exposed to the most severe penalties." Indeed, their influence was so deeply rooted, that the Romans found it impossible to substi- tute for the Druidical system their own laws, until they resorted to stringent penal enactments — with them an exceptional expedient. Caesar first invaded Britain in 55 B. C, and, during the century following, military expeditions to the island were made by various commanders. But it was left to 2 Hist, of Eng. 0. 1. 3 "The Druids," Palgrave writes, "were the priests of the Britons, and probably the lawgivers of the people. . . . Beyond a few particulars which have been preserved by Greek and Komau writers, we know little concerning their tenets. The doctrines of the Druids were not reduced into writing, but preserved by oral tradition; and when the Druidical priesthood was extinguished, their lore was lost." Hist. Anglo Sazons, 0. 1, pp. 4, 5. Their tenets were usually communicated in the form of proverbial triads— each containing "three facts, precepts, or definitions." Id. note to p. 5. Cf. Ca2sar, de hello QaUico, § 1; also 6, 13, for the Druidical functions. THE INSTITUTIONS OF THE BEITONS. 65 C. Julius Agricola to establish the supremacy of the Romans on a firm basis and bring order into chaos. When peace was restored, and the frontiers defended by forts against the inroads of the Caledonian tribes, the soldier-statesman "introduced laws and civility among the Britons* . . . reconciled them to the Eoman language and manners, instructed them in letters and science, and employed every expedient to render those chains which he had forged both easy and agreeable to them (Tacitus' Agricola). The inhabitants . . . were gradually incorporated as a part of that mighty Empire . . . and during the reign of all the Roman emperors such a profound tranquillity prevailed in Britain that little mention is made of the affairs of that island by any historian. . . . The natives, dis- armed, dispirited and submissive, had lost all desire, and even idea, of their former liberty and independ- ence." ' To such an extent, then, was the Roman dominion established in the island, and the sway of Roman insti- tutions acknowledged, that the latter had virtually be- come British institutions and "the law of the land." " * "As soon as Koine conquered a province, it introduced at once the provisions and the forms (jura et instituta) of its own law, because the province might be thus most effectually bound to the empire, and also because they were always better than those of the conquered nation; and as we know therefore that institutions, which resembled in so many particulars our jury, were in full force in England for more than three centuries, it would seem unreasonable to deny them an important in- fluence in creating the trial by jury." Cooley, Am. Cyel. IX. 722. 6 Hume's England, o. I. 6 Prof. TFowler, in treating of The Development of the English Lan- gruage, summarizes the Roman Conquest as follows: "Urged on by curiosity and ambition, Julius Csesar invaded Britain in the year 55 B. C. Though the Britons met him even in the waves with a determined resist- ance, yet their impetuous valor could not withstand Boman discipline. 56 HISTOET OF THE J0EY SYSTEM. Accordingly it is not surprising to read' that "we are not to look upon the civil law altogether as a foreign commodity, with respect to England; some of the particu- lar laws thereof having been enacted for deciding con- troversies which arose here in England, and bearing date from this country. The greatest part of this island was governed wholly by the civil law, for the space of about three hundred years, to wit: from the reign of the Emperor Claudius to that of Honorius [A. D. 41-395]; during which time some of the most eminent among the Eoman lawyers, as Papinian, Paulus, and Ulpian, whBse opinions are collected in the body of the civil law, sat in the seat of judgment, here in England, and dis- tributed justice to the inhabitants." And the law thus administered was embodied in Justinian's Code." But during these centuries the mighty empire was de- caying and gradually nearing dissolution, and the time And in subsequent years, though they fought for independence under the brave Caraotaous and the heroine Boadicea, the Boman legions still triumphed. Agricola completed the conquest of the island. Pursuing a liberal policy, he seems to have directed all the energies of his mind to civilize and improve the fierce natives. He assisted them to build tem- ples; he inspired them with a love of education; and he persuaded some of their chiefs to study letters. Boman dress and language and litera- ture spread among the natives. Boman law and magistracies were every- where established, and British lawyers as well as British ladies have obtained the panegyrics of the Boman classics." £ng. Gram. § 63. 1 Straban, preface to Domat's Civil Law. 8 With the rise of the Italian universities and the consequent revival of learning at the close of the llth century, the study of the civil law was resumed with zeal on the continent, and the English clergy (not to be outdone by its continental brethren) caused ■Vacarius to lecture thereon at the University of Oxford. Two parties were formed— a clerical one as promoters of the civil, and a laical party upholding the common law. The latter, in 1152, prevailed upon King Stephen to issue a proclamation "forbidding the study of the laws then newly imported from Italy," and, says Kent, "the rivalship and even hostility, which soon afterwards arose between the civil and common law, between the THE INSTITUTIONS OF THE BEITONS. 67 came when it could no longer spare an army contingent for distant Britain, but must concentrate all its power in the ancient capital, to prevent its overthrow by the aggressive barbarians. Accordingly, about the year 448, during the patricianship of .^tius, the last Eoman legion was withdrawn, and with it Roman authority and government abandoned the island forever — "notwith- standing the entreaties of the inhabitants, who were hard pressed by the Picts and Scots, so that in the end they were obliged to call in the assistance of the Angles and Saxons.'" At the present time, the effect of the Roman occupa- tion can alone be traced in the privileges of municipal clergy and laity, tended to check that system in England, and to confine its influence to those courts which were under the more immediate superintendence of the clergy." Com. pt. HI. chap. XXni. See also Beeves, vol. I. p. 68; Cooley's Bl. Com. Intro. S 1, p. 19. Again, "when the clergy attempted to establish as a law the legitimaMo per subsequensmatrimoniam, which . . . was a purely canonical insti- tution,"— legitimating a child, bom out of lawful wedlock, by the sub- sequent valid marriage of its parents— "the nobility rose as one man and protested ... in the memorable words '■nolumus leges A.nglios mvtari, quos IvMv.sque usitatoB sunt et approbatce' . . . and thus the dispute was decided in favor of the common law." Cooke, Com. & Civ. Law in tr. S. pp. 232, 233. The very championship of the civil law on part of the clergy became a ground of objection to it with the popular party, which seemed appre- hensive of the establishment of an imperium in imperio. 9 Schmitz, Man. Ancient Hist. o. XX. 8 6. In commenting on the changes wrought by the decadence of the Eoman empire in its provincial dependencies, this writer remarks: "The countries which Rome had ruled over during the previous five hundred years, and even Italy itself, had been invaded and conquered by barbar- ians of the Teutonic race, who established in Britain, Gaul, Spain, the south of Germany, Italy, and the north of Africa new and independent kingdoms, and laid the foundations of an entirely new state of things. . . . They could not destroy everything, for it is a law of history that, wherever a barbarous nation conquers a civilized people and rules over it, the barbarians gradually adopt the civilization of the conquered, and become absorbed by them." 68 HISTOET OF THE JtJET SYSTEM. corporations'" and in the existence of the Christian re- ligion, which Eoman intercourse with the Britons had established. The inquiry, therefore, is patent: What in Britain for several centuries, so generally to Yanish, as to baffle the searching scrutiny of legal antiquaries and, almost, "Like the baseless fabric of a dream. Leave not a rack beliind? " The solution of this problem must be sought in the condition of the Britons themselves, in the character of their Saxon subjugators, and in their subsequent perse- cution and annihilation, as illustrated by the history of those times. "When the Britons, characterized as "a people so long disused to arms [that they] had not yet acquired any union among themselves, and were desti- tute of all afEection to their new liberties, and of all national attachments and regards,"" were left by the Romans to shift for themselves and threatened with an invasion by the Picts and Scots, Vortigern (within a year after the final departure of the Eomans) felt com- pelled to summon aid from the continent. 10 "Though the rapid progress in civilization, which the Britons had be- gun to make under the Boman government was interrupted by the Saxons, some of its effects are yet visible at the present day. Municipal institutions with their privileges, which constitute the foundation of political freedom, owe their establishment in Great Britain, as well as throughout Europe, to the Eomans." Dr. Kaufmann's note to Maoket- dey's Civ. Law. And at the present day, remarks Clhancellor Kent, "it exerts a very considerable influence upon our own municipal law and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate's or consiatorial courts." 1 Kent, Com. 515; cf . post, note 15, and chap. VIII. note L 11 Hume's England, c. I. THE INSTITUTIONS OF THE BEITONS. 59 ". . . Not sparkling ardent flame, As when Caractacus to battle led Silurian swains, and Boardicea taught Her raging troops the miseries of slaves. Then, sad relief, from the bleak coast that hears The German Ocean roar, deep-blooming, strong, And yellow-haired, the blue eyed Saxon came." " The valiant but barbaric German tribes from allies soon became masters. Eeinforced from time to time by swarms of their brethren from the continent, the Angles and Saxons waged a war of extermination against the Britons, who, with the valor of desperation, resisted with something like their ancient vigor. But the su- perior strength and experience of the invaders tri- umphed ; the few natives who were not killed were forced to seek refuge among the inaccessible fastnesses of Cornwall and Wales, and thus, writes Hume," "was established, after a violent contest of near a hundred and fifty years, the Heptarchy, or seven Saxon King- doms in Britain ; and the whole southern part of the island, except Wales and Cornwall, had totally changed its inhabitants, language, customs, and political insti- tutions. The Britons, under the Eoman dominion, had made such advances towards art and civil manners, that they built twenty-eight considerable cities within their province, besides a great number of villages and county seats. (Bede, lib. I.) But the fierce conquerors, by whom they were now subdued, threw everything back into ancient barbarity ; and those few natives, who were not either massacred or expelled their habitations, were reduced to the most abject slavery There 12 Thomson's "Liberty," IV. 664-670. " History of England, c. I. 60 HISTOET OF THE JUKT SYSTEM. have been found in history few conquests more ruinous than that of the Saxons/* and few reTolutions more vio- lent than that which they introduced." Accordingly, in view of these data, it can no longer cause any surprise that so little remained to attest the prevalence of Eoman civilization and laws;" and that, " Cf. the statement of Br. Kaufmann, in the preface aforesaid : "A hundred and fifty years after [the suhjeotiou of the Britons] yre find that, in consequence of the continual wars, the inhabitants, language, customs, and political institutions of the country had become totally changed." 15 At a period after the Norman Conquest, however, the Bomaa law was destined to be revived and become once more a potent factor in the administration of justice, by the learned ecclesiastical chancellors who had studied that law at its source and now engrafted many of its princi- ples on the English stock, building up the so-called equity jurisdiction of the court of chancery, as a remedy for cases which the common law failed to reach, or— as Grotius has it— for the correction of that wherein the law, by reason of its universality, is deficient. "In this manner did the influence of the civil and canon law gradually increase. . . . They by degrees, gradually interwove themselves into the municipal law, and furnished it with helps towards improving its native stock. The law ot personal property was in a great measure borrowed from the imperial, and the rules of the descent of lands wholly from the canon law." Beeves, Hist. Eng. Law, I. p. 81. " Equity jurisprudence is nothing but the body of rules devised by enlightened chancellors during several centuries, for the purpose of evading the harsh and rigid rules of the common law, and for the pro- tection of rights not recognized by it." E. Y. Hayne, N. Am. Eeview, V. 139, p. 349. And, as late as 1704, when in the great case of Coggs v. Bernard, 2 Ld. Eaym. 909, Lord Holt laid the foundation of the Law of Bailment, " he borrows most, perhaps all, of his principles from the civil law . . . with the modifications required to adapt them to the common law." Parsons, Contracts, c. XI. note a. In speaking of the civil and canon law. Beeves further observes that they, as before them the Norman laws, "obtained here by sufferance and long usage. Such parts of them as were fitting and expedient, were quietly permitted to grow into practice ; while such as were of an ex- travagant kind occasioned clamour, were called usvurpations, and, as such, were strongly opposed. What was suffered to establish itself, either in the clerical courts, or by mingling with the secular customs, became so far part of the common law of the realm, equally with the THE INSTITUTIONS OF THE BRITONS. 61 above all, the tender plant of trial by one's fellows, shel- tered by the ante-Saxon inhabitants of England, should have withered and died (but not beyond resurrection) under the cruel touch of the northern barbarians." Norman ; for though of later birth, it had gained its authority by the same title, a length of immemorial prescription." Hist. Bug. Law, vol. 1. c. II. And see chap. VIII, note 3. Maine (Ancient Law, c. I.) considers the "ascription of English law to immemorial unwritten tradition," and the "descent of Koman jurispru- dence from a code [the Twelve Tables] " as equally "theoretical ;" and moreover, expresses the belief "that remedial Equity is everywhere older than remedial Legislation." (Id. c. II.) A recent writer concludes : " It may be safely asserted that at no time from the organization of Britain as a Eoman province to the end of the Anglo-Norman period did the Eoman law cease to be an important element of the legal institutions of England. The actual incorporation of the 'Koman law into the substance of the English common law is shown from the works of the early text-book writers. The revival of the scientific study of the civil law under Vaoarius and his successors resulted in the desire to reduce the prevailing customs to a systematic form . . ." citing Spence to the effect that there is scarcely a principle of law incorporated in the treatise of Bracton that has survived to our own time, which may not be traced to the Boman law. Morey, Outlines of Eoman Law, pp. 201, 202 ; id. p. 190, concl. paragraph. And in Lane v. CoUon, 12 Mod. 482, " Lord Holt admitted that the laws of all nations were raised out of the ruins of the civil law, and that the principles of the English law was borrowed from that system." Kent, Com., pt. m. ed. xxni. While, as to the prevalence of the canon law, Blackstone observes : "At the dawn of the reformation, in the reign of King Henry VIII. it was enacted in parliament that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordi- nances, and synodals provincial," then in force and not repugnant to the common law, "should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England." Com., Intro. § III. And this branch of our jurisprudence is applied without the co-opera- tion of a jury. 16 Burke, in his History of Civilization in England (vol. II. e. II. note 28) remarks that " there are few things in our history so irrational, as the admiration expressed by a certain class of writers for the institu- tions of our barbarous Anglo-Saxon ancestors;" and that to find the origin of jurors in the system of compurgators is as absurd as the action of tracing the origin of the House of Commons to the Witenagemot. "It is now well understood that trial by jury did not exist till long after the [Norman] Conquest." CHAPTER VI. THE SYSTEM OP THE ANGLO-SAXONS. As regards the manner of men who now directed the destinies of England — for under that name (derived from the Angles) the island is henceforth known — and who indelibly impressed their characteristics upon it, and concerning their status in the scale of civilization, a graphic description is afforded us by the same histo- rian. They "were little removed from the original state of nature ; the social confederacy among them was more martial than civil ; they had chiefly in view the means of attack and defense against public enemies, not those of protection against their fellow citizens; their possessions were so slender and so equal that they were not exposed to great danger, and the natural bravery of the people made every man trust to himself and to his particular friends for his defense. . . . An insult upon any man was regarded by his relations and asso- ciates as a common injury ; they were bound by honor, as well as by a sense of common interest, to revenge his death or any violence which he had suffered ; they retal- iated on the aggressor by like acts of violence ; and if he were protected, as was natural and usual, by his own clan, the quarrel was spread still wider and bred endless disorders in the nation.'" Such, then, was the state of civilization which the Saxons enjoyed, and such the social and political struc- ture which superseded the administration of the I Hume's England, appendix I. 62 THE SYSTEM OF THE ANGLO-SAXONS. 63 Eomans. For almost four centuries tlie seven Anglo- Saxon kingdoms — true to the characteristics of their founders — present a history of uninterrupted warfare, bloodshed and internecine strife, though Christianity had meanwhile prevailed among them. Wessex, how- ever, gradually acquired the hegemony, and in A. D. 827 its King Egbert succeeded in securing his acknowl- edgment as supreme head of the Heptarchy, with which event the history of the English nation properly begins. Concerning their civil and social condition at this period, after a sojourn of four hundred years on English soil, it appears that "though they had been so long set- tled in the island [they] seem not as yet to have been much improved beyond their German ancestors, either in arts, civility, knowledge, humanity, justice, or obe- dience to the laws. . . . Bounty to the Church atoned for every violence against society."" It cannot be doubted that, under ordinary circumstances, nation- alization would have paved the way to improvements in the administration of justice, which, under the primi- tive system and the constant wars of the Saxons, had sadly degenerated. For, since "their language was everywhere nearly the same, their customs, laws, insti- tutions, civil and religious ... a union also in government opened to them the agreeable prospect of future tranquillity. . . . But these flattering views were soon overcast by the appearance of the Danes, who, during some centuries, kept the Anglo-Saxons in perpetual inquietude, committed the most barbarous ravages upon them, and at last reduced them to griev- ous servitude."' s Id. e. I. s Id. c. n. 64 HISTOBT OF THE JUBT SYSTEM. The first great land-mark in the history of English law is the reign of King Alfred (871-901) who, after he had restored peace, and either settled the Danes in or expelled them from the country, turned his attention to the administration of justice, which had become a mere name. His political and juridical institutions are recorded by Hume,* as follows: "That he might render the execution of justice strict and regular, he divided all England into counties ; these counties he divided into hundreds, and the hundreds into tithings.' Every householder was answerable for the behavior of his family .... Ten neighboring householders were formed into one corporation, who, under the name of a tithing, decennary or fribourg, were answerable for each other's conduct, and over whom one person, called a tithingman, headbourg or borsholder, was appointed to preside. Every man was punished as an outlaw who . did not register himself in some tithing. " By this institution every man was obliged from his own interest to keep a watchful eye on the conduct of his neighbors ; and was in a manner surety for the be- havior of those who were placed under the division to which he belonged. Whence these decennaries received the name of frankpledges." The borsholder sum- ilbid. ' In these assemWies not only judicial business, but all that affected the interests of the local communities which they represented, was transacted. Pomeroy, Mun. Law, § 388. 6 The object of these small communities was, that each man should be in pledge or surety (fiorh), as well to his fellows as to the state. As each tithing was composed of a small number of members, neig-hbors to each other, it was possible that each individual should be under the the constant and close scrutiny and espial of the rest of the association. Thus all the individuals united in a single tithing, were joined together by a bond of common interest and common fear; they were, in a THE SYSTEM OF THE ANGLO-SAXONS. 65 moBed together the whole decennary to assist him in deciding any lesser difEerence which occurred among the members. In appeals from the decennary, or in contro- versies arising between members of different decennaries, the case was brought before the Hundred, which con- sisted of 10 decennaries or 100 families of freemen, and which was regularly assembled once in four weeks for the deciding of causes. (Leg. Edw. c. 2). "Their method of decision deserves to be noted, as being " — at least in our historian's opinion — ''the origin of juries. . . . Twelve freeholders were chosen, who, having sworn (together with the hundred or pre- siding magistrate of that division) to administer impar- tial justice, proceeded to the examination of that cause which was submitted to their jurisdiction. And besides these monthly meetings of the hundred, there was an annual meeting appointed . . . for the inquiry into crimes, the correction of abuses, and other matters of public concern.' If a further appeal were desired, or in controversies between members of different hun- dreds, the case was brought before the freeholders of the county (or shire)' over whom the bishop togetheiv^ measure, isolated from the rest of the state ; they were hound to present their fellow, if charged with an offense, before the court . . they were to clear him of the charge, if possible, by oath, and to aid in paying his fine, if declared guilty ; . . theyrecelvedaportionof the compen- sation for his death ; they were his natural compurgators or witnesses." Id. i 401. ' cf . post, chap. X. " The whole of the free male adults of a district might attend and form . . . the court for that district, yet it is by no means improbable that in practice this became limited to a smaller number." Forsyth, Trial by Jury, p. 66. 8 The scirgemot or assembly of the shire bore the same relation to the latter, that the Witenagemot (or great assembly, lit., meeting of the wise) bore to the realm. In New Jersey, the members of county boards 5 66 HISTOET OF THE JUEY SYSTEM. with the alderman presided.' A final appeal lay to the king himself. "Formerly the alderman" possessed both the civil and military authority ; but Alfred . . . appointed also a sheriff" in each county, who enjoyed a co-or- dinate authority with the former in his judicial (as dis- tinguished from the military) function. His office also empowered him to guard the rights of the crown in the county, and to leyy the fines imposed." Such was the system established by Alfred, and are-still termed chosen freeholders. That its memhers (like those of our leg:iBlatures) were not at all remarkable for an exalted character is evi- denced by the fact that "security was provided by the Saxon laws to all members of the Witenagemot, both in going: and returning, eaxept they were notorious thieves and robbers." The consent of this body "was requisite for enacting laws and for ratifying the chief acts of public- administration. The preambles to all the laws of Ethelbert, Ina, Alf redi Edward the Elder, Athelstane, Edmund, Edgar, Ethelred, and Edward the Confessor . . . put this matter beyond controversy." Hume's- History, App. I. In the opinion of Freeman (Eng. Const, u. II.) "The House of Ijords . . . represents, or rather is, the ancient Witenagemot.*' cf . Gneist, Eng. Parliament, c. I. II. ante, chap. V. note 16. 9 " The folk-courts or gemots of the shires were composed of the assembled freemen, presided over by the eolderman or his deputy, the gerefa. In this institution . . . selecting the triers from among the . . . citizens at large had its origin." Pomeroy, Johns. Cycl. II. art. Jury. "> It should be remembered that anciently the alderman (lit. eolderman, i. e. an elder, presbyter) was a noble next in rank to the king, perform- ing ducal functions, and corresponding to the class subsequently desig- nated as earls. He was governor of the shire, the sheriff (scirgerefa, i. e. shire-reeve) being his deputy. " The Teutonic chief who was not a king bore the title of ealdorman in peace and of Heretoga (t. e. duke, German herzog) in war." Freeman, Growth Eng. Const, c. I. Contrasting with these ancient dignitaries those who to-day, in our cities, bear with much abuse " the grand old name of " Alderman, we may indeed exclaim : Facilis descensus Avemi: 11 The distinction between a sheriff (eiee-comes) and a bailiff QyaUimis) was this— that the former might be elected, while the latter always owed his appointment to some superior. THE SYSTEM OF THE ANGLO-SAXONS. 67 adhered to by his successors as far as those turbulent times permitted. For its promotion and perpetuation, as well as for the guidance of the magistrates, on whom the duty to administer it was incumbent, the same king — according to our historical guide" — "framed a body of laws" which, though now lost, served long as the basis of English jurisprudence, and is generally deemed the origin of what is denominated the Common Law." While his judgment concerning the paternity of the system is, that " the similarity of these institutions to the customs of the ancient Germans," and to the Saxon laws during the heptarchy, prevents us from regarding Alfred as the sole author of this plan of gov- ernment, and leads us rather to think that he contented himself with reforming, extending, and executing the institutions which he found previously established." Thus far Hume, whose profound historical researches, combined with his early legal training, certainly entitle his opinion to much weight. But the existence, among the Saxons, of any institution resembling the jury has been hotly contested, and the dispute whether it was known to the Anglo-Saxons or introduced as a result of " Hume's England, c. II. 13 So Beeves writes (Hist. Eng-. Law, voL I. p. 25): " The great and good King AJf red, besides the regulations he made for the better order and government of his people, seeing how various the local customs of the kingdom were, made a collection of them ; and out of them composed his Dom Boe or JJbeir Judicalis. It seems this was intended as a code for the government of his whole kingdom ; and it obtained, with great authority, during several reigns ; being referred to, in a law made by King Athelstan, as an authoritative guide." "Alfred's territorial division corresponded with that recorded by Tacitus of the Germans, with whom each independent tribal territory (cimtas) was divided into districts or hundreds (poBOS), which, in turn, consisted of townships (vicos). Cf. ante, chap. IV. 68 HISTORY OF THE JUET SYSTEM. the Norman Conquest, may be thus summarized : Coke (in his Institutes) Spelman (Glossarium Archaiologi- cum) Blackstone (Com. III. c. 23) Nicholson (pre- face to Wilkin's Anglo-Saxon Laws) and Turner (Hist. Anglo-Saxons, IV". bk. XI. c. 9) ascribe it to Saxon paternity. On the other hand, Hickes (Dissert. Epist. p. 34) Eeeves (Hist. Eng. Law, I. 22, 34) and Pal- grave (Eise and Progress of Commonwealth, I. 243) claim with equal confidence that it was introduced by or at least derived from the Normans, and "was not of Anglo- Saxon origin. So Judge Cooley (Am. Cycl. IX. 723) approvingly observes that "so many of the attendant circum- stances indicate that it was a Norman institution, bestowed upon his English subjects by a Norman king," that Sir Francis Palgrave has not hesitated to con- sider our jury trial as derived directly from Norman law;" and Mr. Macclachlan (Eng. Cycl. III. 24) remai'ks : " Without entering minutely into this con- troversy, it may be stated that the traces of the trial by jury, in the form in which it existed for several cen- turies after the Conquest, are more distinctly discernible in the ancient customs of Normandy than in the few and scanty fragments of Anglo-Saxon law which have descended to our time." 16 Glanville (lib. H. c. 7) terms it regale guoddam tenefldum, " a certain royal benefit, conferred upon the people by the clemency of the sover- eign with the advice of the nobility." Vide chap. IX. Mr. Serjeant Stephen (Com. 3d ed. III. 500, note k) also considers it as the most probable theory that we owe the germ of this institution to the Normanej "and that it was derived by th£m from Scandinavia." (Id. 597, note z.) Cf . post, note 20. THE SYSTEM OF THE AKGLO-SAXONS. 69 The conclnsion reached by Mr. Forsyth" affords per- haps the fairest statement of the case, and may be ad- vantageously quoted in this place: "It may be confi- dently asserted that trial by jury was unknown to our Anglo-Saxon ancestors; and the idea of its existence in their legal system has arisen from a want of attention to the radical distinction between the members or judges composing a court, and a body of men set apart from that court, but summoned to attend in order to deter- mine conclusively the facts of the case in dispute. This is the principle on which is founded the intervention of a jury; and no trace whatever can be found of such an institution in Anglo-Saxon times. "If it has existed," he continues, "it is utterly uncon- ceivable that distinct mention of it should not frequently have occurred in the body of Anglo-Saxon laws" and contemporary chronicles which we possess, extending from the time of Ethelbert (568-616) to the Norman Conquest (1066). Those who have fancied that they discover indications of its existence during that period, 16 Trial by Jury, c. IV. § I. 11 See ante, note 8, for a list of the names of the Ang-Io-Sazon kings, whose laws and ordinances (in a more or less defective state) have de- scended to our own time. The name of Canute might be added, for the sake of completeness. In this connection Beeves observes (vol. I. p. 87): "The first of the Anglo-Saxon laws now in being are those of King Ethelbert. These are the most ancient laws in our realm, and are said to be the most ancient in modern Europe. The next are the laws of Lothaire and Eadric, and of Wihtred, all kings of Kent. Next are those of Ina, king of the West Saxons. After the Heptarchy we have the laws of Alfred, Edward the Elder, Athelstan, Edmund, Edgar, Ethelred and Canute. Besides these, there are canons and constitutions, decrees of councils, and other acts of a public nature." All these are in the Saxon language; and, in the time of EUzabeth, were collected by Lambard (and subsequently edited and Increased by Wilkin) under the title 'Archasonomia; aive, de priscis A.n- glorum Ugibia.' Nicholson's edition is the best and most complete. 70 HISTORY OF THE JUET SYSTEM. have been misled by false analogies and inattention to the distinguishing features of the jury trial which have been previously pointed out. While, however, we assert that it was unknown in Saxon times, it is nevertheless true that we can recognize the traces of a system which paved the way for its introduction, and rendered its adaptation at a later period [the reign of Henry II. J neither unlikely nor abrupt. ... Of the exact mode in which trials were conducted in these [ante- Norman] courts, we know little; but the Anglo-Saxon laws and contemporaneous annals make frequent men- tion of two classes of witnesses, who play a most impor- tant part in the judicial proceedings of the time." These are compurgators and oflBcial witnesses, who, together with other features of their system, will be more fully considered hereafter." With the demise of King Alfred, his system gradually lost ground. "During the reign of eight kings who succeeded Alfred," write Gilmans," "the country suf- fered constant invasions from Denmark, which became so oppressive that in 991 the king, Ethelred II., agreed to pay the Danes 10,000 pounds, called Danegelt, to buy immunity. This sum was raised by a tax on land, the first one recorded in English history." Eleven years later the same king planned and partly executed a general massacre of foreigners in the island (Danemort) which led to a fierce attack from the Danes, to the ex- pulsion of the king, and to the establishment of Sweyn as ruler of England. His son Canute married Ethelred's widow, a sister of the Duke of Normandy, in order, as 18 See post, chap. VII. i» Outl. General Hist. p. 256. THE SYSTEM OF THE ANGLO-SAXONS. 71 it were, to legitimize his title, to strengthen his alli- ances, and to made secure the succession of his line. When Canute, the Dane, mounted the English throne (1014) it might be supposed that he would transplant to, and incorporate in the system of, England the Danish quasi-jury or Nsevninger — an institution common, with modifications, to all the Scandinavian nations"" — which derived its appellation from the fact of being composed of a fixed number of men (usually 13) "named" by the inhabitants of each district; a ma- "> In this connection Beeves makes the following assertion (corre- sponding with that of Blackstone, Com. hk. III. o. 23): "The trial per ctuodecim juratos, called ' nambda,' had obtained among the Scandinavians at a vary early period; but having gone into disuse, was revived and more firmly established by a law of Beignerus, surnamed Lodbrog, about the year A. D. 820. [In fact, he was king of Denmark between 750 and 790. cf . Freeman!. It was about seventy years after this law, that BoUo led his people into Normandy and, among other customs, carried with him this method of trial; it was used there in all causes that were of fimall importance. When the Normans had transplanted themselves into England, they were desirous of legitimating this, as they did other parts of their jurisprudence; and they endeavored to substitute it in the place of the Saxon seetalores, to which tribunal it bore some shew of af- finity." Hist. Eng. Law, c. II. p. 84. For the true genesis of the institu- tion, see post, chap. VIII. So the jurist in Eees' Cyclopedia, vol. XX. observes: "Among the Danes the number [of jurors] was restrained to 12 in the time of Bedner Ladebrog;" but further volunteers the remarkable information— "That this was the established number in Alfred's time, appears from his hang- ing Cad wine for sentencing a man to death, without the consent of the 13 jurors upon whom he had put himself to be tried." The facts concerning these Scandinavian institutions— according to the authorities cited ante, chap. I. note 19— may be summarized as follows: In these kingdoms there assembled annually, or might be summoned in extraordinary session, a national assembly for transacting public affairs, called a Thing. In Norway there was one for the north and one for the south ; in Denmark, one for each district. In Norway thirty-six and in Sweden twelve of the deputies (summoned by the crown to attend the Thing) were set apart for the transaction of judicial business ; in Den- mark twelve were similarly chosen by the inhabitants of each district. The Norwegians were called lOMgrettomen, the Swedish body nambda, and the Danish Tusvninger. In the two former, a law^man originally 72 HISTORY or THE JUEY SYSTEM. jority of those so chosen was competent to render a de- cision (subject to the ratification of the bishop and eight best men of the district) in civil suits; while in criminal cases, the accuser was obliged to convince the Naevn by sworn evidence of the truth of his charge, before the accused would be subjected to a public trial — this insti- tution thus combining the functions of grand and petit jury with the exercise of judicial powers. Canute, however, who was a lineal descendant of Alfred, and desirous of emulating that monarch, adopted a policy of conciliation towards the English. He had his succession to the throne ratified by a general assem- bly (Witenagemot) and publicly consented to restore and observe the Saxon customs and laws. In 1030, he addressed a letter "To all the Nations of the English" — under which designation he also meant to include the presided. A majority sufBced to render a verdict upon a question of guilt or a disputed claim, after hearing the testimony thereon. A critical scrutiny of the data laboriously collected hy Prof. Hepp seems amply to sustain T'orsy th's conclusion that ail these functionaries were ^^j^ldges popularly constituted," and not "men summoned merely to determine /or ffte court disputed questions of fact" upon evidence laid hefore them (Forsyth, p. 22) and whose verdict, anciently in Eng- land, "was nothing more than the conjoint testimony of a fixed number of persons deposing to facts within their own knowledge." (Id. 14.) In these esirly ages, questions of law and fact were generally so simple as to render their formal separation unnecessary. Granted certain facts, and certain legal consequences followed as a matter of course. So far as these functionaries, therefore, determined the facts of a case, they performed jural duties in the modem (not in the ancient English) sense, and so far as they applied the law, they acted judicially. [Like the free judges of Sir H. S. Maine, quoted ante, chap. IV. note 7.] In any event, these institutions were not the archetype of our jury, — for the laws of the Angles, Saxons, and Jutes— who were neighbors and close kin to the Scandinavian nations— show no traces thereof; nor could they have been transplanted to England by the Normans, "and have become the common tribunals of the country, without leaving any record or trace of their existence until the reign of Henry II." {Id. 36.) THE SYSTEM OF THE ANGLO-SAXONS. 73 Danes, Swedes, and Norwegians — in which he said: "Be it known to you all, that I have dedicated my life to God, to govern my kingdom with justice, and to ob- serve the right in all things." That is, he refrained from making any essential innovations or alterations in the systems (political or judicial) to which his several dominions were accustomed, and in consequence Danish rule had no tangible formative effect on English juris- prudence. The last of the Saxon line who ruled in England — chosen by the people when Sweyn's family became ex- tinct — was Edward the Confessor (1042-1066) whom Hume" deems commendable for "his attention to the administration of justice, and his compiling for that purpose a body of laws which he collected from the laws of Ethelbert, Ina, and Alfred. This compilation, though now lost (for the laws that pass under Edward's name were composed afterwards") was long the object of affection to the English nation."" »i Hist, of England, c. III. 82 Namely, "about the end of the reign of William Euf us; and are to be found in the coUeetions of Lambard and Wilkin." I Beeves, p. 27. S3 "The grand design of making a complete code of English law fell to the part of Edward the Confessor; who is said to have collected from the Mercian, West Saxon, and Danish law an uniform body of law to be ob- served throughout the Wngdom. From this circumstance, the charac- ter of an eminent legislator has been conferred on Edward the Confessor by posterity, who have endowed him with a sort of praise nearly allied to that of Alfred; for as one is dignified with the title of legum A.nglieaita- rum Conditnr, the other has been called legum Anglieariarum Bestitutor." Id., vol. L pp. 25, 26. CHAPTER VII. FOEM8 OF TRIA.L AND TRIBUNALS AMONG THE SAXONS. Having examined the social and political status of the Saxons in England, as evidenced by their history and environment, we may expect to find, on consider- ing the Judicial institutions, their personal characteris- tics reflected therein. Here, as there, we distinguish the same primitive system of administration, the same rudimentary ideas of right, the same regard for the effi- cacy of clerical absolution, the same adherence to old and meaningless forms, and the same reverence for the vis major. The judicial system of the Anglo-Saxons' depended for its administration on, and consisted of, four distinct factors or elements : these were, sedatores or suitors of court, the seda or suit of witnesses, official witnesses, and compurgators. These have been generally eon- founded or at least not clearly distinguished, and the misconception of their proper functions has given rise to many ingenious theories. In general it may be said that of all these functionaries the first class only per- formed Judicial duties ; the second and the third were species of witnesses ; the fourth officiated (at least orig- inally) in criminal cases only, while none of them were Ju- rors. A delineation of the functions of each will be given, and a distinction attempted. I "That system was unaffected by the Conquest, and continued in all its vigor for many years after that eyent." Forsyth, c V. § 1. 74 TRIALS AlTD TRIBUNALS AMONG THE SAXONS. 75 The name of Sectatores is applied by Porsytli to the limited number of freemen " who attended the hundred, county and manorial courts,' to try offenses and deter- mine disputes there ; . . . and the obligation to attend was in the nature of a tenure, for neglect of which they might be distrained to appear." For, in accordance with the customs of those days, "to do suit at a county or other inferior court was . . . one of the common tenures by which land was held, and the suitors, called sectatores, or . . . at a later period pares,' were therefore bound to give their attendance." Anciently their number appears to have depended on chance or convenience ; nor do they appear to have acted always under the sanction of an oath ; for to Keeves* ^' it seems that causes in the county and other courts were heard and determined by an indefinite number of persons called sectatores," of whom "the frequent men- tion," he continues, " is no proof of juries, properly so called, being known to our Saxon ancestors." It would seem that this form of judicial tribunal was the modified outcome of a feature of the elaborate county system established by Alfred,' and a result of the alterations necessitated and the encroachments caused by the inces- sant warfare prevalent after the death of that monarch, s Trial by Jury, p. 66 and note. Id. p. 113. 3 "This trial by an indefinite number of sectatores or suitors of court continued for many years after the Conquest; these are the persons meant by the terms pares curiee, and judicium pairlum, so often found in the writings of this [Anglo-Norman^ period." Beeves, Hist. Eng. Law, vol. I. p. 85. Cf. post, chap. XI. Sullivan (Leet. on the Laws of Eng-., ed. 1776, p. 248) says that "the hundred court . . . vanished in Edward the Third's reign." * Hist. Eng. Law (ad ed. 1787) vol. I. p. 24. * Cf. ante, chap. VI. pp. . . . 76 HISTOET OF THE JUEY SYSTEM. which must have greatly affected his system of govern- ment. The ■whole matter, however, is involved in much obscurity, and will be resumed, to some extent, in the chapter treating of the Judicium Pamim. ° Concerning the second of the four classes, Prof. Rob- ertson observes : " The trial per sectam ... re- sembled in princijile the system of compurgation. The plaintiff proved his case by vouching a certain number of witnesses (secta) who had seen the transaction in ques- tion, and the defendant rebutted the presumption thus created by vouching a larger number of witnesses on his own side."' It was thas an application to civil suits of the principle, which governed the system of compurga- tion in relation to criminal causes. At a later period in Saxon history, however, it seems that compurgation was also extended to (and thus superseded the use of the secta in) . ■ . . civil proceedings ; or, at least, that the term " compurgation" was employed to designate both the criminal and the civil {i. e. the sectatory) method. Indeed, the very name of secta became an 6 Post, chap. XT. ' Bnc. Brit. XII, art. Jury. The same writer ailds : "In course of time the practice arose of the witnesses of the secta telling their story to the jury, and with the increasing use of juries and the development of rules of evidence, this was gradually established as the true principle of the system." According to Prof. Thayer (" The Older Modes of Trial," Harv. Law Eev. V. 48-51) the secta appertained to the proceedings preliminary to trial, and was required to show that the plaintiff had a case sufSoient to- put his adversary to proof. The latter might "stake his case on an examination of the complaint-witnesses," and prevailed if they dis- agreed; or he could join issue and proceed to trial regularly. Thus the secta was usually not examined, and later not even produced, and only the f ormulaj was preserved in the pleadings (in England) until 1852. But in New Jersey all decorations still archaically conclude: et inde producit sectam ("and therefore he brings his suit, etc.") TRIALS AND TRIBUNALS AMONG THE SAXONS. 77 alternative term for sedatores — the judges above de- scribed — which led to the confounding of the one with the other, and bred endless confusion and mistake. At a more advanced period of the Anglo-Saxon do- minion, when the defects of their mode of evidence and system of trial becarae perceptible even to their untu- tored minds, an attempt was made to partially remedy these defects by the official appointment in each district of sworn witnesses," whose duty it was to attest therein all sales, endowment of a woman ad ostium ecclesim, and the execution of charters. They were not subject to cross-examination, and their oath was decisive in case of dispute. Later, persons peculiarly qualified by cir- cumstances (though not pre-appointed), were similarly sworn to prove age, ownership of chattels, and the death of one in whose estate dower was claimed.' Hence in the Year Books (16 Edw. II. 507, A. D. 1323) we read complaint that one " may name ses cosyns et ses auns, who by his procurement will decide against us." The most important of the four elements, and that destined to play the largest part in the develophient of trial by jury, was compurgation." Under the Saxon system, in criminal cases the charge of the prosecutor or "accuser" sufficed to put the accused on his defense. This defense was by means of the process of compurga- tion, which was in vogue among the various Teutonic ' Brunner, Schwurz, 54-59, 205. ' Hence, when the Conqueror transplanted the Norman trial by bat- tle or duel to England, any one who might have been a fit, i. n. a sworn, witness for either party in a, real action, could "hazard himself in a duel," as a champion of the cause of his principal. See Forsyth, c. IV. 10 Cf . Keevcs, vol. I. p. 20. Many instances are set forth in 5 Haw. Law Kev. 58-63, showing that by the end of the 16th century it was obsoles- cent, and finally prevailed in actions of detinet end debt only. 78 HISTOET OF THE JURY SYSTEM. nations (twelve being the usual number) and rested on the maxim : " Noiilis Tiomo ingenuus, — cum duodedm ingeiiuis se purget."'^ Compurgators may be defined as persons, who supported by their oaths the credibility of the party accused, pledging their belief in the latter's denial of the charge brought against him."" " These were in no sense witnesses, for they might be wholly ignorant of the real facts in dispute ; nor were they a jury, for no evidence was submitted to their con- sideration. They were merely friends of the party wha summoned them ; they knew his character, and by their united oaths they at once attested that character and their confidence in his truthfulness and the justice of his cause. " This mode of trial was brought into England by the Saxons," and Judge Cooley thus describes it : "Then the party accused — or, in later times, the party plaintiff or defendant — appeared with his friends, and they swore, he laying his hand on theirs and swearing with them, to •' Vide Eogge, Gerichtswesen der Germanen, c. 8. 12 Contrast herewith the Vorath, post, chap. X. This appears to have been the inorimlnating' tody, composed of a numher of freemen who happened to he cognizant of the facts of a particular case whereon they predicated their accusation, to meet which charge the defendant had resort to compurgation as aforesaid. 13 Pom., Johns. Cyd. II. art. Jury. u "The trial by compurgators, under the name of Wager of Law, con- tinued to be the law of England till abolished in 1833." Eng. Cycl. III. 25. For a case wherein (as late as 1817) the tender of wager of law was held admissible, see Chandler's Am. Law Reporter, p. 255,.and note (cf . Chase's Bl. 74, note). So in King v. WiMams, 2 B. & C. 538, its legahty was still 0£Zi) reluctantly recognized in England. Contra, Story, J., Siglar v. Baywood, 21 IT. S. 8 Wheat. 675, 5 L. ed. 713. Starkie (Ey. 76, note ft) observes that the evidence to character, in criminal cases, is the last remnant of the process of compurgation now existent in English law. It was abolished by Stat. 3 and 4 Wm. IV. o. 43. TEIALS AND TBIBITNALS AMONG THE SAXONS. Y9 the innocence of the accused, or to the claim or defence of the party. Little is certainly known either of the origin or of the extent, in point of time or of country, over which the trial by compurgators prevailed ; but it must have had great influence over the subsequent forms of procedure. It fixed the number of the traverse [i. e. the petit or trial] jury at 13, that being the common number of compurgators . . . and this was a great improvement on the varying and sometimes very large number in Greece and Eome."" "Where the compurgators coincided in a favorable dec- laration, there was a complete acquittal. But if the accused was unable to present a sufficient number of these purgers ; or, " if the party had been before ac- cused of larceny or perjury, or had otherwise been ren- dered infamous and was thought not worthy of credit, — he was driven to make out his innocence by an appeal to heaven, in the trial by Ordeal,"" which was practiced either by the boiling water or the red-hot iron ; the former being supplied to the common people, while the latter was reserved for the nobility." The nature of this institution is so curious and interesting, and its pecu- liarities throw so much light on the character of that age, as to warrant a fuller consideration of this primi- tive predecessor and sometime competitor of our crimi- nal jury. If the accused was sentenced to undergo the ordeal by hot water, "he was to put his head into it or his whole arm, according to the degree of the offense: if it " Am. Cyel. IX. art. Jury. 16 Reeves, Hist. 'Eng. Law, voL I. p. 20. J' See Hume's England, app. I. The maxim applied was : Si super de- fendere mm possitjudicio dei, scil agua vel ferro, fient de eoiusbtbia. 80 HISTOEY OF THE JUKT SYSTEM. was by cold water, his thumbs were tied to his toes, and in this posture he was thrown into it. If he escaped unhurt by the boiling water (which might easily be contrived by the art of the priests), or if he sunk in the cold water, which would certainly happen, he was de- clared innocent. If he was hurt by the boiling water or swum in the cold, he was considered as guilty.'"' Where a noble was called upon to subject himself to the ordeal by the hot iron, the hand of the accused — to quote the same authority — "was first sprinkled with holy water ; then taking the iron in his hand he walked nine feet. The method of taking his steps was particu- larly and curiously appointed. At the end of the stated distance he threw down the iron and hastened to the altar ; then his hand was bound up for three days, at the end of which time it was to be opened, and from the appearance of any hurt or not he was declared, in the former case, guilty, and in the latter, acquitted." " Another instance may be quoted from the history of Hume. " When any controversy about a fact became too intricate for those ignorant judges" — the sedatores aforesaid — "to unravel, they had recourse to fortune ; their methods of consulting this oracle were various. One of them was the decision by the cross. . . . When a person was accused of any crime, he first cleared himself by his oath, and he was attended by eleven compurgators. He next took two pieces of wood, one of which was marked with the sign of the cross, and, wrapping both up in wool, he placed them on the altar or on some celebrated ^elic. After some '8 Reeves, Hist. Eng. Law, 1. 21. 19 Ihia. TRIALS AND TKIBUNALS AMONG THE SAXONS. 81 prayers for the success of the experiment, a priest, or in his stead some inexperienced youth, took up one of the pieces of wood, and if he happened upon that which was marked with the figure of the cross, the person was pronounced innocent; if otherwise, guilty." ^° It will be obserTed that it was the priests who had charge of administering these tests of innocence — termed judicia dei" — and they doubtless reaped a rich harvest from the monopoly of this privilege, commensurate with the wealth and the guilt of the accused. And there was still another species of this form of trial, which, as least likely to cause any harm, was generally employed by the clergy to purge themselves when one of their so Hume's England, App. I.; of. Heeves, 1. 32. 21 Ordeals prevailed only for about a century and a half after the Con- quest, and seem to have been the tilUma ratio where an accused was too old or disabled to venture on trial by battle, or "when compurgators or witnesses could not be found or were contradictory." 5 Harv. Law Bev. 64, 65. The whole system of procedure in criminal cases is well summarized by Prof. Pomeroy, as follows : "On the trial ... no evidence, in any true sense of the term, was introduced ; no attempt was made to examine the facts, or weigh the probabilities ; the sole reliance was compurgation and the ordeal. In this also the rank of the accused modified the severity of the scrutiny. The oath of one noble was equivalent to that of six ceorls. If the culprit was a ceorl (churl), he must first call upon his lord to testify whether he had been guilty of crime before the present charge. When the result of this enquiry was favorable, the defendant could clear himself by simple compurgation or simple ordeal. By the first, the oaths of a proper number of his fellows must support his innocence ; by the second, he plunged his hand into boiling water up to the wrist, or carried a hot iron in his naked palm nine paces. If these oaths were procured, or if the ordeal resulted in no serious injury, he was acquitted. When, however, the testimony of his lord marked him as a man of doubtful character, the compurgation was tripled in the number of oaths, and the ordeal in the severity of its infliction. If the result was unfavorable, the accused was condemned, and must redeem himself by the payment of the appointed fines, to the state, and compensation to the injured party, or his relations or tythings."— Mun. Law, §409. 82 HISTOEY OF THE JUET SYSTEM. own members was accused of a crime, and which was called "The Corsnsed, or ordeal of the accursed morsel. This consisted in making the accused person swallow a piece of bread," placed on the altar with great ceremony and preparation, and "accompanied with a prayer that it might choke him if he was guilty. Godwin, the powerful Earl of Kent and father of Harold, was currently believed to have died in the act.'"^ In confining this test of innocence almost exclusively to members of their own order, the priests seem to have- thought that the old legal maxim should properly read "Saltis cleri stiprema lex," or, perhaps, they imagined themselves so exalted above the " common herd" as ta harbor the idea Quod licet Jovi, nonlicet lovi. Such, then, were the Judicia Dei." Eeturning to the consideration of the civil procedure, to which compurgation appears at a later period to have been extended, we learn" that " the assertions of parties in their own favor were admitted as conclusive, provided they were supported by the oaths of a certain number of compurgators ; in important cases the num- ber was twelve, or . . . when added to the oath of the party himself, made up that number."" But even if the required number of purgers were produced by a 22 Forsyth, Trial ty Jury, c. IV. cf . i Bl. Com. c. XVII.; Beeves, 1. 21, 23. 23 " Besides the absurdity and impiety of these presumptuous appeals to miraculous interposition, there can be little doubt that the danger of them was often evaded by management, so as to be more apparent than real." Best, Ev. S 4a, note a. For a curious exemplification thereof, from an old ecclesistical source, see Law Mag. (N. S.) vol. I. p. 8. As to the trial of witches by the ordeal, see some queer Instances in Sir W. Scott's Demonology and Witchcraft, Letter VIII. zi Forsyth, c. IV. p. 92. 25 As to this number, uide chap. VIII. note 25. TRIALS AITD TBIBUJ>fALS AMONG THE SAXONS. 83 party, " his opponent might (in some cases, at all events) overpower the force of their testimony by calling com- purgators on his side, whose oaths were of preponder- ating legal value. These, again, might be met by the accused in the same manner . . . until either party prevailed in the amount of legal value of the witnesses who supported them" . . . Sometimes the number of compurgators was so great as to form a large assembly." Thus, in one case, it is recorded that a certain Ulnothus "adduxit fideles viros plus quam mille, utper juramentum illorum sibi vitidicaret eandem ierram."" A thousand witnesses to prove title to an estate ! The general rule of that day was, that witnesses were counted, not weighed. But, when the number was nearly evenly balanced, a very singular method for determining the superior legal value of the statements of the con- testants was resorted to. A graduated scale of oaths prevailed, and legal credit was given them in accordance with the rank of the witness. The basis of estimation was the amount of wergild (also called man-bot), which was a compensation in money to be paid for personal injury" done to another, according to the value which the law set upon his life.'' Thus the oath of a person '6 " So, in the civil law, either of the litigant parties might in many cases tender an oath, called the ' decisory oathi' to the other ; who was hound under peril of losing his cause, either to take it (in which case he obtained judgment without further trouble) or refer it back to his ad- versary, who then refused it at the like peril or took it with the like prospect of advantage." Best, Ev. §59. SI Hist. Ellens. I. 35. 28 " The state did not regard the lives and persons of all individuals as of equal consequence, but annexed a different value to each, according to their status or rank in society." Pomeroy, Mun. Law, §403. 29 If any further illustration of the influence of the Anglo-Saxon clergy, and of the abject awe they inspired, be needed, it will be found in the fact that " by the laws of Kent, the price of the archbishop's head was higher than that of the king's," the latter being about £1300. Hume's England, app. I. 84 HISTOET OF THE JUET SYSTEM. worth 1200 ishillings was equal to that of six churls, which was the term applied to an ordinary freeman/" each of whom, howeyer, was still considered as weighty as two Welshmen !" Accordingly it causes little surprise, when, cognizant of the system, and conscious of this method of estimat- ing the value of depositions, we read in Hallam that "perjury was the dominant crime of the middle ages; en- couraged by the preposterous rules of compurgation and by the multiplicity of oaths in the ecclesiastical law.'"" As referred to aboye, the points of resemblance be- tween sedatores, compurgators and jurors have been the origin of many ingenious theories, maintaining that our modem jury was derived by a species of evolution from one or the other of these primitive boards of trial; while Turner, in his history of the Anglo-Saxons, fails to ob- serve any distinction whatever between compurgators and jurors. This, concludes Forsyth," is "entirely a mistake, founded on a misconception of the original nature of the office of jurymen. . . . Compurgation so There were two classes of freemen — the noWes or earls and those not noble or churls. The unfree man or serf was termed a theow, and "was a mere chattel ; he had no rights ; could be transferred from one owner to another ; had none of the privileges of freemen ; was not, in fact, an element of the community or state." Pomeroy, Mun. Law, § 375. Nor could the churl become an earl, "for the simple reason that he could not change his forefathers ; but he might, and often did, become a thegn [thane]."— Freeman, Growth Eng. Const., e. I. 3 'Forsyth, pp.73, 56. ef. Pomeroy, Mun. Law, §370. 35 Hist. Middle Ages, Supp. Notes 260. It was this prevalence of perjury, which is said to have led to the pro- ceeding called an Attaint [as to which, see post, chap. IX.] for "it is relat- ed by the old writers that, during a considerable period after the Con- quest, it was difBoult to maintain the Saxon administration of justice in the county courts, by reason of the lapsed integrity of the freeholders, who were usually assembled in these courts as jurymen." Cooley, Am. Cycl. V. 152, art. Common Law. 33 Trial by Jury, e. IV. TRIALS AND TEIBtrHALS AMONG THE SAXONS. 85 was one mode of trial; the jury was another. Each was distinct from the other, and both might and in fact did co-exist together," although, as experience taught men the immense advantage which the latter had over the former as a means of discovering the truth, trial by compiirgators fell gradually into disuse." While an American authority of weight holds it to be "certain that all these influences" contributed to establish this mode of trial in England, and to shape it as we knew it to exist there. Indeed, it was not until all of them had had an opportunity of completing their work, that we "find what we should now call a jury."" We had, in the preceding chapter, traced a historical •outline of the Anglo-Saxon or, rather, ante-Norman •epoch, and have, now completed the consideration of the various phases of its jurisprudence. It may, therefore, not be inappropriate, before taking final leave of this topic, to conclude with a graphic comment on the gen- eral status of the island and its inhabitants, at that period. Hume" observes: "Whatever we may imagine concerning the usual truth and sincerity of men who lived in a rude and barbarous state, there is much more falsehood and even perjury among them, than among civilized nations. Our European ancestors, who em- ployed every moment the expedient of swearing on ex- traordinary crosses and relics, were less honorable in all engagements than their posterity. . . . The gen- eral proneness to perjury was much increased by the usual want of discernment in judges, who could not dis- 34 Cf . ante, note U. 85 And that of the Norman recognitors— as to whom, see chap. IX. 36 Cooley, Am. Cycl. IX. art. Jury. 3' Hist, of Eng-., app. I. 86 HISTOBT OF THE JUEY SYSTEM. cnss an intricate evidence, and were obliged to numbei-, not weigh, the testimony of the witnesses. Hence the ridiculous practice of obliging men to bring compurga- tors, who, as they did not pretend to know anything of the fact, expressed upon oath'° that they believed the person spoke true; and these compugators were in some cases multiplied to the number of three hundred (Praef. Nicol. ad Wilkin, p. II.)" . . . "They [the Anglo-Saxons] were in general a rude, uncultivated people, ignorant of letters, unskilled in mechanical arts, untamed to submission under law and government, addicted to intemperance, riot, and disor- der. Their best quality was their military courage, which yet was not supported by discipline or conduct. Their want of fidelity to the prince, or to any trust re- posed in them, appears strongly in the history of their later period, and their want of humanity in all their his- tory. Even the Norman historians, notwithstanding the low state of the arts in their own country, speak of them as barbarians, when they mention the invasion made upon them by the Duke of Normandy (Gul. Pict. p. 202). The conquest put the people in a situation of receiving slowly, from abroad, the rudiments of science and cultivation, and of correcting their rough and licentious manners." 38 As to the value of oaths in general, see Best, Bv. 9 59, and the au- thorities there referred to in the notes. As illustrative of the multiplicity of oaths pervading the administra- tion of justice even at a more recent period, it has been well observed that "a pound of tea cannot travel regularly from the ship to the con- sumer, without costing half a dozen oaths at the least." Paley's Moral & Pol. Philos. bk. in. pt. I. c. 16. And our own execrable tariff and tariff-administration laws render us to-day justly amenable to similar strictures. 39 And even more; e. g. the case of Mister Ulnothus (ar^, p. 83), who marched to court with more than a thousand men, to prove his claim. CHAPTEE VIII. THE INSTITUTIONS OF THE NORMANS. The accession of "William the N"ornian (1066) consti- tutes the second great landmark in the history of Eng- lish law, and inaugurates the epoch from which may be said to date the science of our jurisprudence. In the •eloquent language of Judge Story/ "some of the most venerable sages of the law belong to this period; the methodical and almost classical Bracton; the neat and perspicuous Glanville; the exact and unknown author of Eleta; the criminal treatise of Britten; the ponderous collections of Statham, Fitzherbert, and Brooke; and, above all, the venerable Year Books themselves, the grand depositaries of the ancient common law, whence the Littletons and the Cokes, the Hobarts and the Hales, of later times, drew their precious and almost in- exhaustible learning . . . This, too, was the age of scholastic refinements and metaphysical subtilties, and potent quibbles, and mysterious conceits;' when special 'Mise. Writings, p. 198, ft : On the Progress of Jurisprudence. 5 So Blaokstone speaks of "the Ingenuity of the same ages, which per- plexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon." 3 Bl. Com., end of c. IV. Among the master-spirits of these ages, Longfellow (in his essay on Dante)— after referring to Alhertus Magnus, and Peter Lombard, "The Wise Master of Sentences," and "the Angelic Doctor, Thomas Aquinas" — mentions Eaymond LuUy, the Doctor llluminatiis, Francis of Mayence, the Magister Aeutus AbgtracMcmum, William Durand, the Doctor BeSDlUr- tissimus, Walter Burleigh, the Doctor Planus et FeirspUsmix, and William 87 »S HISTORY OF THE JUEY SYSTEM. pleading pored oyer its midnight lamp, and conjured up its phantoms to perplex, to bewilder, and sometimes to betray. This, too, was the age of strained and quaint argumentation, when the discussions of the bar were perilously acute and cunning. And yet, though much of the law of these times is grown obsolete, and the task of attempting a general revival of it hopeless, it cannot be denied that it abounds with treasures of knowledge. It affords the only sure foundation, in many cases, on which to build a solid fabric of argument; and no one ever explored its depths, rough and diificult as they are, without bringing back instruction fully proportioned to his labor." = Occam, the Doctor InvincibUis, Singvlaris, et FeneraMis— "men of acute and masculine intellect." There were, moreover, the Doctor Solemnis,t'he Doctor Solidus,the Doctor Fundatis^mus^ and last not least John Duns Scotus, the Doctor Subtilis and founder of "the Formalists, who taught that the end of philosophy is, to find out the quiddity of thinprs— that every thing has a kind of quiddity or quidditive existence,— and that nothingness is divided into absolute nothingness, which has no quiddity or thingness, and relative nothingness, which has no existence out of the understanding." 3 In connection with the note appended to chap. V. (p. 60) — concern- ing the influence of the civil on the common law— the high esteem with which the former was regarded by so eminent an authority ss Mr. Jiis- Uce Story may here be advantageously referred to. In his eulogistic remarks on the occasion of the demise of Hugh S. Legare, U. S. Attorney General, he observed: "I had indeed looked to him with great fondness of expectation. I had looked to see him accom- plish what he was so well fitted to do,— what, I know, was the darling object of his pure ambition— to engraft the civil law upon the jurispru- dence of this country, and thereby to expand the common law to greater usefulness and a wiser adaptation to the progress of society ... by forcing into It the enlarged and liberal principles and just morality of the Roman jurisprudence." Misc. Writings, pp. 820, 822; cf. 1 Kent, Com. 515. Dr. Irving (Intro, to the Civil law) maintains that the influence of the civil law on the laws of England has been much greater than lawyers generally are aware. This coincides with the opinion of Spence and Holt, cited in the Note last referred to. THE INSTITUTIONS OF THE NOKMANS. 89 With the reign of William, the administration of jus- tice becomes more regular and. systematic; the study and propagation of law, more general; and the march of progress and improvement is steady, distinct, and more clearly discernible. It is, howerer, a mistake to suppose that the Conquest wrought any radical change* — such as the triumph of the Saxons made in the system of the Britons — nor should we allow the epithet of "The Con- queror" to mislead us. Conscious of his weak title, he pretended to claim the crown by virtue of the (supposi- tive) will of Edward, and strove to ingratiate himself with his new subjects — so far as the insolence and rapacity of his Norman retainers permitted — by allow- ing the English, in pursuance of the example erstwhile set by Canute, to continue in the enjoyment of their ancient customs and laws. The term "Conqueror," ac- cording to the legal phraseology of that time, was simply intended to convey the idea that he had acquired the throne by purchase (his being a title by testament), and not by descent or, least of all, by the jus belli. ' The correctness of this view is further made manifest, and his policy of pacification corroborated, by the pre- amble to the laws promulgated in the reign of William: " Cez sont les lois e les custumes que It reis Will grant- ud alpople de Engleterre apres le cunquest de la terre; idles meimes que li reis Edward, sun cusin, tint devant lui."' * Of. ante, chap. V.,pp. 55-56; chap. VH. note 1. 5 Conqaestus: id guod a parentfbus rum aceepium, sed labore pretio vel parsimonia comparatum possidemvs. Einc Giilielmus I. dicttur, qui An- gliam conquisivit (i. e. acguisivit "purchased;") non quodsubegit. Spelman's Glossary; of. 2 Bl. Ctom. c. IV., Id. o. XV. 6 Translation : These are the laws and customs which William the king granted to the people of England after the acquisition of that 90 HISTOET OF THE JUET SYSTEM. "Accordingly, " observes Forsyth/ "we find the dis- tinguishing features of Anglo-Saxon jurisprudence retained by the Norman king . . . the wergild, or manbot, for bodily injuries ; the system of mutual sure- tyship (fridborh, improperly rendered frankpledge) ;' the prohibition of suits before the king, unless there was first a failure of justice in the hundred, or county court; the necessity of purchases and sales being made in the presence of legal witnesses; and the use of compurgation and the ordeal." The principal changes made by William the Acquirer were three in number : 1. The separation of spiritual and temporal courts. It suflQces for our purpose to know that " William I. had separated the ecclesiastical jurisdiction from the ciyH by forbidding bishops to hold pleas in the county or hundred courts, and had limited their power to causes of a spiritual nature in their own tribunals'" — thus curtailing to a considerable extent the influence of the clergy upon, and their power of interference with, the judicial system. Still, however, ecclesiastics con- tinued to officiate as judges in secular courts, until the year 1317 ; and, generally, as chancellors, until the period of the Eeformation (1519).'° land : being the same [as those laws] which King Edward, his cousin, oh- served before him.— Thus "was the system of Saxon jurisprudence con- firmed as the law of the country ; and from thenceforth it continued the hasis of the common law, upon which eyery subsequent alteration was to operate." Heeves, vol. I. p. 30. ' Trial by Jury, p. 96. 8 Concerning these institutions, see ante, chap. "VI. p. 47. The Saxon term " fridborh" was, by the ancient jurists, erroneously rendered liberum, in place of pacts, plegiuvi: which was anglicized into frankpledge, instead of "pledge of peace." 9 Mackintosh, Hist, of Eng., Cc. III. 10 Cf. Kaufmann's note to Mackeldey's Modem Civil Law (app. to Cocke's Common and Civil Law in U. S. Jurisprudence, pp. 225-241). THE INSTITUTIONS OF THE NORMANS. 91 2. The appointment of itinerant justiciars, later termed judges in eyre, who visited the different coun- ties to administer justice in the king's name, and thus represented the curia regis throughout the realm, dis- tinct from the hundred and county courts. 3. The introduction of the ISTorman trial by duel, as a means of determining (originally) the question of guilt or innocence in criminal, and (later) the facts at issue in civil cases. By this method, a party would offer to prove his side of the case by producing some person qui hoc vidit vel audivit," and would hazard himself in duel for it, and the other party did the like ; and judgment was entered in favor of that party whose champion pre- vailed, while the vanquished champion was severely punished for having borne false witness. This form of trial was, in the reign of Henry II. (1154r-1189)" still " decisive in pleas concerning freehold; in writs of right; in warranty \i. e. guarantee]; in warranty of land, or of goods sold ; debts upon mortgage or promise; sureties denying their suretyship ; the validity of charters ; the manumission of a villain; [and in] questions concern- ing services."" " est. GlanviUe, deLegibus et ConaiietiuUnibvs Begni ^ngJlae; and see cbap. IX. note 15, for the mode of procedure in trial by battle. ■2 This monarch is by some styled "the founder," and Edward I. (1272- 3307; "the completer" of the common law, of which "it is almost impos- sible to discover the origin ... or even to ascertain the times at which it received its various accessions. Beared on no fixed foundation, and constructed from the accumulations of successive ages, it has been constantly changing during its progress to completion." Prof. Kauf- mann's note to Mackeldey's CSvil Law. Common Law (as defined by Kobinson, Elem. Law, 2, based on Austin) "is that rule of civil conduct which springs from the common wisdom and experience of society, in time becomes an established custom, and flnaUy receives judicial sanc- tion and afiSrmance in the courts of last resort." But see chap. V. note 15; chap. IX. note 2. IS Keeves, Hist. Eng. Law, c. II. p. 83. 92 HISTOET OF THE JURY SYSTEM. Concerning this institution, introduced by the Nor- mans, the comment of Hume'* is of interest : " The practice also of single combat was employed by most nations on the continent as a remedy against false evi- ■dence ; and though it was frequently dropped, from the opposition of the clergy, it was continually revived, from experience of the falsehood attending the testimony of witnesses. It became at last a species of jurispru- dence ; the cases were determined by law, in which the party might challenge his adversary, or the witnesses, ■or the judge himself.'' And though these customs were absurd, they were rather an improvement on the meth- ods of trial which had formerly been practiced among those barbarous nations, and which still prevailed among the Anglo-Saxons." Canon Stubbs, on the other hand, would have it regarded as "a sort of ultimate ex- pedient to obtain a practical decision, an expedient partly akin to the ordeal as a judgment of God, and partly based on the idea that where legal measures had failed, recourse must be had to the primitive law of force."" " Hist. Eng., app. I. Brunner (Schwurz. 189, 197-8) demonstrates its antiquity by reference to a capitulary of Louis the Pious, which (A. D. 819) prescrihes that where two sets of witnesses flatly contradict each other, " eliflantur duo ex ipsis . . quii cum sentis et fustibus in campo de- certent," etc. 1' Of. arete, chap. IV. p. i7. 16 Const. Hist, of Eng., c. XIII. p. 653. Prof. Thayer (5 Harv. Law Hev. .65-70) holds that the champion, who was practically " a complaint wit- ness " [of. chap. VII. note 7], was frequently hired for the occasion, and that resort to "the judicial tattle" was had at odd intervals only. It was considered obsolete, until, to the amazement of mankind, in 1835 a " defendant escaped by means of this rusty weapon," and in 1819 it was :adjudged (Ashford v. Thornton, 1 B. & A. 405) to be still " the constitu- tional mode of trial" in capital cases. Then, at last. Parliament abol- ished this legal spectre by 59 Geo. III. c. 46. THE INSTITUTIONS OF THE NOEMANS. 93 Inasmuch as upon such a test, the combatant of su- perior physique must ordinarily prevail, it naturally suggests the cynical maxim of Frederick the Great that the Almighty is on the side of the heavier battalions. Besides this form of martial trial, however, which so well reflected the valor of its votaries (Eeeves I. 83) there appear to have been used in Normandy and brought over on the Norman advent to the island, cer- tain institutions used for the purpose of a quasi-judicial inquiry on the part of the crown, and from the example of which, by analogy, the later jury was immediately de- rived. Thus there are found existing in England, shortly after the Conquest, Inquisitions ad quod dam- num, which anciently were connected with all grants by the crown;" Inquisitions joos^ mortem, whose purpose was to ascertain, on the demise of a tenant of the king, of what lands he died seised ; Inquisitions de lunatico in- quirendo, instituted to test the mental sanity of a per- son; and Inquests of office, which occurred in cases where the interest of the crown was thought to be affected by some transaction between subject and sub- ject: and these various inquiries were conducted through the agency of persons selected from the body of the com- munity, in whose midst or in whose vicinage the trans- action, which was the subject of investigation, occurred. " 11 Prom the intimate connection of judicature with finance under the Norman Kings, Stubhs (Const. Hist. Eng. 1. 385, 386) concludes "that it was mainly for the sake of the profits that justice was administered at all." The earliest use of the inquisition on English soil seems to have been in the compilation of the ' Doomsday Book ' in 1085, '86, a record of local cus- toms and of the tenure and taxable quality of land, " accomplished by a commission, making inquiry throughout England,. by sworn men of each neighborhood, responsible and acquainted with the facts." 5 Harv. Law Eev. 252; citing Big., Plac. Anglo-Norm. XLIX. Palgr. Com. L 271-273. 18 Cf. Macolaohlan, Bng. Cycl. III. art. Jury. 94 HISTOBY OF THE JOET SYSTEM. So these Inquests are spoken of by Stephen (in the eighth chapter of his monumental History of the Crimi- nal Law of England) as "the usual mode of determining questions of fact" among the Normans. "An inquest was a body of persons representing a certain number of townships or other districts" — the township being rep- resented by four milites and the reeve. They were con- vened by a justice, sheriff, or coroner, as representative of the crown, "and answered upon oath the particular matters proposed to them. They were wont to be se- lected for their knowledge of the facts of a particular case, which they might supplement by inquiry on the spot, or possibly by hearing evidence; for "it was by their oath, and not by the oath of their informants, that the fact to be proved was considered to be estab- lished." Inquests were first introduced in what were then "the commonest and most important of civil causes, namely, trials held in order to determine the right to land." Brunner" has most exhaustively investigated this whole subject, showing that the inquisiiio, "a proced- ure unhnown to the old Germanic law," originated in "the capitularies and documents of the Carlovingian period," and that this Frankish law became a M"orman institution after 912, when EoUo established himself in the territory subsequently Normandy. These capitularies (so called because of their division into chapters, capitula) were promulgated by the kings, after consideration thereof in a general council or as- sembly, and are thus of mixed kingly and popular origin. 19 SchvmrzericM, pp. 84, 88, 129-180, et alitor. See some reference to Capitularies, ante, chap. I. p. 1, chap. IV. p. 47. They have been col- lected by Baluze, in a compilatioa called Capitula/ria Begum Francorum. THE INSTITUTIONS OV THE NOEMANS. 95 The inquisition was, gradually, "applied both in legal controversy and in administration" and "no character- istic of it is that the judge summons a number of the community, selected by him as having presumably a knowledge of the facts in question, and takes of them a [sworn] promise to declare the truth on the questions to be put by him." Thus in 839 A. D. it was provided that, in all matters concerning the royal revenues, "per illos qui in eo comi- tatu meliores ei veraciores esse cognoscunhir—^per illorum testimonium, inquisitio fiat." This, cogently observes a recent commentator, "is not merely ascertaining facts, it is determining controversy by a mode of ' trial; ' taxes are laid, services exacted, personal status fixed, on the sworn answer of selected persons of a certain neighbor- hood. Such persons were likely to know who was in possession of neighboring land and by what title; tliey knew the consuetudines of the region, the free or servile status of the neighbors, their birth, death or marriage. An enlightened principle has now come in as regards revenues which was likely to extend and did extend to judicature, for that was only another part of royal ad- ministration."" It was the influence of the crown alone, whicli could compel parties to give up the time- honored formal procedure of the popular courts, to take an oath, and to produce their witnesses in the royal courts. By this institution, the king simplified, and largely obviated the barbarities or uncertainty of, the procedure theretofore prevalent, and is thus entitled to be called the great law-reformer of those times. The inquisition crossed the channel with the Normans, and so Thayer, 5 Harv. Law Rev. 250. Cf . ante, note 17. 96 HISTOEY OF THE JUEY SYSTEM. early in the thirteenth century, when John lost Aqui- taine to the French, while " dying slowly out in Prance, began its peculiar astonishing development in Eng- land." " In addition to these bodies of general inquiry [inqui- sitoria jurata) there also appear to have arisen, con- temporaneously with the above, certain accusatory tribunals {jurata delatoria) "who presented offenses committed within their district or ward, hundred or county, to the king or his commissioned justices . . . their duty being to charge offenders who, upon such accusation, were put upon their trial before judges. . . . Though involved in much obscurity, there is little doubt that they formed the origin of our present grand juries."" There was no fixed number of members prescribed for either of these two classes of official in- quirers, but the attendance vacillated, and was proba- bly dependent on local usage or convenience ; in most cases, however, the number was greater than twelve. The introduction and establishment of these Inqui- sitions developed with but slight modification of the principle underlying their intervention, the innova- tion termed the ^.Assise, whose history and progress will be more fully considered hereafter,"^ as being the immediate progenitor of the modern jury, and based on the customs of the Normans. For "in Normandy offenders were convicted or absolved," in cases where the trial by battle was inapplicable or impracticable or not customary," or at times when it was interdicted by 21 Thayer, 5 Harv. Law Rev. 251, citing Maine, Early Law and Cus- toms, c. VL 22 Ihid. p. 24. 23 Chapter IX. S4 Cf . the statement of Prof. Stubbs, and of Eeeves, ante. THE INSTITUTIONS OF THE NOEMANS. 97 the clergy," and in causes of small importance gener- ally," "by an inquest of good and lawful men {probi et legales homines), summoned from the neighborhood where the offense was surmised to have been commit- ted. . . . Those were to be selected to serve on such inquest, who were best informed of the truth of the matter ; and friends, enemies, and near relations of the accused were to be excluded. ... In the Nor- man Writ of Eight, those were to be summoned as recognitors," for so these quasi-jurors were called, "who were born and had ever dwelt in the neighborhood where the land in question lay ('Grand Coustumier,' cap. 68, 69, 103);" for this mode of trial prevailed as well, under corresponding circumstances, in civil suits. " The incidents," our authority" continues, "though unlike our present mode of trial (which has entirely altered its character within the last four centuries) are nearly identical with the trial by jury as described by Glanville and Bracton;" while, on the other hand, it conclusively appears, from a comparison of the laws and edicts issued by the king before the Conquest with the forms of law process presented by Granville, that they are as distinct from each other as the laws of two differ- ent nations. '° By virtue of the institution, thus pre- sented as a substitute for the existing inefficient modes of trial, " the power and duty to decide in a particular case " was entrusted " to a limited number of freemen selected from the district, and this number was gener- M Cf . Hume, quoted ante. »6 See chap. VI, note 20, where Reeves traces the system of the Normans to their Scandinavian ancestors. SI Macclachlan, supra. *» Cf . Madoz, Hist. Exchequer, p. 122. 7 98 HISTORY OF THE JUEY SYSTEM. ally twelve or some multiple of twelve." This delegated body," unlike the compurgators, " did not act without knowledge of the facts involved in the dispute," but such knowledge was not acquired by means of any evi- dence submitted to or predicated upon argument heard by them. " They decided entirely upon their own per- sonal knowledge and information. In the selection of these persons, who were called recognitors, care was taken that they should be acquainted with the circum- stances of the case, with the litigant parties, with the situation and ownership of the disputed property. They were, therefore, invariably chosen from the im- mediate vicinity of the parties or of the land in ques- tion. In doubtful cases they were strictly examined, to •discover the amount and source of their knowledge. When appointed, they heard no evidence or allegations, but retired apart, and by comparing their previous in- 29 Twelve— "in which patriarchal and apostolical numher" (says Black- atone hk. 111. c. 33) " Sir Edward Coke [Co. Litt. 155] hath discovered abun- dance of mystery "—appears to have been a favorite number for consti- tuting political and juridical bodies, with the various nations of the Teu- tonic group : thus there was a greneral council of the whole Old-Saxon nation, formed of twelve chosen men from each district. Freeman, Growth of Bug. Const, c. I. note 41 ; cf. HaUam, Mid. Ages, II. 401, who refers to a learned and elaborate essay in Edinb. Eev. XXX. 115. We find it represented among the Scandinavians, later with the Ger- mans, and also in the Saxon compurgators above considered. In fact, this coincidence of numbers has been the cause of drawing many hasty analogies and of forming divers ingenious theories concerning the origin of our jury. As illustrative hereof, is appended a curious passage from a legal treatise, published in 1682 and attributed to*Lord Somers. " In analogy, of late the jury is reduced to the number of twelve, like as the prophets were twelve, to foretell the truth ; the apostles twelve, to preach the truth ; the discoverers twelve, sent into Canaan, to seek and report the truth ; and the stones twelve, that the heavenly Hierusalem is built upon." Guide to English Juries, by a Person of Quality. The early inquisitors and recognitors, however, varied in number from seven and even less to sixty-six. Vide Brunner, Schwurz, 111-112, 273-374, 363-364. THE INSTITUTIONS OF THE NOKMANS. 99 formation, whether acquired by sight of the occurrences or by traditions in the vicinage, or by any other means, they rendered their decision or verdict, vere dictum, upon oath. As they assumed to speak upon oath, from their own personal knowledge, they were liable to the penal- ties of perjury, if they returned a false verdict."" Thus there was substituted, for the mere numerical preponderance of oaths, by irresponsible Compurgators, a decision upon knowledge, by twelve Eecognitors, who " acted upon some cognizance of the facts involved in the dispute, but they derived that information from themselves ; they were, indeed, a jury of witnesses testi- fying to each other." " 30 Pomeroy, Mun. Law, § 125. 31 Id. % ]26. With the establishment of recognitions, there thus existed, simultan- eously, in the Anglo-Norman period, a great variety of modes of trial {leges). Trial by battle (says Thayer, Harv. Law Eev. IV. 158) was the lex vltrata; by the ordeal, Zea; apparent, manifesto, or paribUis; by the oaths of compurgators, lea; probaM,is; by simple oath, lex simplex; by recoJd, lex recordationis; and by inquest or afsise, lex inguisUionis or recogniUonis. " By lex terrcB is meant the procedure of the old popular law." Brun- ner, Schw. 25i. GHAPTEE IX. THE ASSISE OF HENRY II. AND THE CIVIL JURY. Such were the institutions brought over with, or de- veloped as a result of, the Norman Conquest, and which prevailed in general as described — co-ordinately with the Anglo-Saxon institutions — until the reign of the second Henry, by which time the national unity was completed, the distinction between English and Normans had disappeared, and the nation had become one and realized its oneness ; a realization which is necessary before the growth can begin.' Not until the reign of King Henry II., writes Eeeves,' did the trial by jurors become general — the trial by an indefinite number of sectatores continuing for many years after the Conquest. In that reign, many questions of facts relating to property were, instead of as hitherto by duel, tried before duodecim liberos et legates homines,' 1 Cf . Stubbs, Const. Hist, of Bngrland, c. XII. 2 Hist. Bng. La.tr, I. 83-88. This "great and sagacious king" coura- geously set his face against the ancient laws and customs of the realm, and moulded the irregular unsystematized inquisitions into permanent form, (cf . 5 Harv. L. Rev. 354, 356). " What he reorganized, Edward I. defined and completed." (Stubbs, supra.) 3 The Common Law required a juror to be Uber et hgalis homo, and " under the word ' Iwmo,' " writes Blackstone, " though a name com- mon to both sexes, the female is, however, excluded, propter defectum sex'Cis : except when a widow feigns herself with child, in order to ex- clude the next heir, and a suppositious birth is expected to be Intended : then upon the writ de ventre inspi/iiendo, a jury of women is to be impanelled to try the question whether with child or not." 3 Bl. Com. c. XXIII.; cf. Beck's Medical Jurisprudence, 239; Madd. Ch. 11; Cycl. Pol. Sci. II. 659. 100 THE ASSISE OF HENHY II. AND THE CIVIL JUKY. 101 juratos veritatem dicer e* _Tliis . tribunal. -.-Wiis_i;allfiii assisa, Glanville tells us, from the name of the law by. "'wBicF'the application of this mode of trial was pre- scribed. ' The text of this law has not come down to us, so that we are ignorant of its precise scope, or whether it preceded or succeeded the enactments of Clarendon. Prom Glanville (lib. 13, c. I. lib. 2, c. 7, 19) however, — who styles it regalis constitutio, and regale quoddam ieneficium, dementia principis de condlio procerum popiilis induUum ° — it appears to have introduced the trial by assise or Jury in real actions as a mode of de- ciding facts, which the subject might claim as a matter of right; so that, for the trial of all questions involving the seisin (i. e. the lawful possession) of or the right to land, the tenant or defendant might claim the inter- vention of twelve good and lawful men, then termed This Matrons' Inquest is, in modem practice, replaced by a jury of physicians. Thus in New York, the Code of Crim. Proo. (§ 501) provides for the impanelment of six physicians, one or more of whom may be summoned from an adjoining- county, and none of whom "need be qualified to serve as a juror in a court of record." i Mr. WMtridge cites as the earliest appearance of these " twelve free and lawful men, sworn to speak the truth," a suit between Gundolph, bishop of Eochester, and Pichot, king's sheriff, affecting the title to cer- tain lands in Kent (reported Tecctus Roffensis, Thorpe 31). " This is the first case of which we have any record, in which the decision was ren- dered by a limited number of suitors, or pares curus " [see however, as to these, post, chap. XI]. " Mr. Forsyth insists that the twelve here were merely compurgators, while Mr. Starkie thinks the case a precedent which must have had much weight, and which established if it did not introduce the trial by jury." The writer himself concludes "that the practice or custom described in the foregoing account was the beginning from which that institution which was Inoentestably the trial by jury was developed by the Norman lawyers during the time of the Plantag- enefs." Cycl. Pol. Sci. II. 653-654. Bigelow, Plac. Anglo-Norman, 31. 'Of. po8(, note 9. ' Of. ante, chap. VI. note 15, 102 HISTOKT OF THE JURY SYSTEM. recognitors/ while the proceeding, collectively, was .teTmSi~reuaffmtio, assisa, or percognitio. And it also appears that this proceeding, both by analogy and by force of custom, was wont to be resorted to for deter- mining other questions than those concerning land to which it was limited by the statute — namely questions incidentally arising in a recognition {e. g. whether a party was a freeman and therefore entitled to this mode of trial, or what was the usage of a particular locality, or the right of a challenged recognitor to serve on the inquest) — and then the institution was termed s,jurata,^ and the process was said to be per juratam patricB or vicineti, per inquisitionem, or per jur amentum legalium hommum. Hence the assise ' of Henry II. " was in its original constitution nothing more than a body of twelve knights, empanelled to determine by their testimony a disputed question of seisin of land, right to an advowson, or villenage" — i. e. questions of real estate and status. " In it we first find the jury in its distinct form, but the ele- ments of which it was composed were all familiar to the jurisprudence of the time, and . . . except as regards its definite constitution, it involved no idea novel to the minds of our ancestors." " 'i.e. the jurors impanelled In an assise, so called because they "ac- knowledged " tt disseisin by their verdict. Bracton, de Legibits, I. 5. The reeognitia was the " answer " to the inquisitio or inquiry, made by a body of witnesses. 8 See post, chap. X. 9 "The word 'assiga' means nothing more than statute or enactment. Hence the recognition by ivtrors was called an assise, because it was es- tablished by an assise or statute of Henry 11." Eorsyth, p. 122, note ; of. 3 Bl. Com. 0. X.; Stubbs, Const. Hist. u. Xin.pp. 614^618. And in Germany, the tribunal for trying criminal causes is still termed A.s»use. i« Forsyth, pp. 140, 122. THE ASSISE OF HBNET 11. AND THE CIVIL JURY. 103 In accordance with this view, Stubbs" writes: "Henry II., if not the inventor, was the great improver of the system of recognitions by jury." The machinery which had been occasionally used before" — to wit, in the In- quisitions on part of the crown, referred to in the pre- ceding chapter" — "he applied to every description of business. By the ordinance of the grand assise, "the person whose possession of land was impugned [i. e. the defendant or 'tenant,' plaintiff being termed the 'demand- ant'] was empowered to make choice" between_ trial by. " Select Charters, pt. I. p. 34. " So a German scholar writes: "It was enacted unfler Henry It. that in certain civil causes, in which the trial by duel had hitherto been the sole medium of determination, henceforth either party should be justi- fied in evading- it and petitioning the kingr's court to determine hte rig-ht by means of a recognition by twelve trustworthy men from the same hundred (se ponere in assisam et petere recognitUmem per Xll. legcUes hominea)." Bluntschli's Staats-Woerterbuch, voL IX. p. 347. Where the tenant in a writ of right put himself on the grand assise, it was not a question whether the demandant consented, but whether he had a good reason to refuse. Glanv. II. c. 6. 13 Ante, pp. 93-96. 11 There are two theories as to the origin of this phrase: Beeves (I. p. 68) maintains that only the twelve jurors in questions of right, as distin- guished from seisin, were called masnaossisa, because theywereknights, summoned not immediately by the sheriff, but selected by four electors; while Forsyth (p. 125 note) holds that it was termed magna, on account of the important matters with which it had to deal. *'The names of those who were to serve on the grand assise being known beforehand, endeavors to make sure of a favorable verdict were naturally to be anticipated, and in proof of this fact it is to be noticed that three different statutes of Edward III. are directed against the bribing of jurors." Cycl. PoL Soi. n. 654-655; cf. Bentham, Art of Packing AppUed to Special Juries. 16 The course of proceeding was for the demandant, who had been dis- possessed of certain lands, to offer to prove his case by presenting a com- batant "qui hoc indit vel cmdivit" (Glanville); and the champion " must first swear that he knows the land was the right of the party he fought for, or that his father told him he knew it and charged him to bear wit- ness thereof." (Sullivan's Lect. 251.) "As it was supposed that God interfered on behalf of right, a defeat was regarded as a proof of falsehood . . . and hence not only did the party whose champion 104 HISTOKY OF THE JURY SYSTEM. battle, and the examination of his right by a body of twelve sworn knights or freeholders, who were selected by four sworn knights or freeholders [militesY^ sum- moned for this purpose by the sheriff acting under a royal writ.'' . . . Out of these recognitions arose the whole system of trial by jury; the jurors are at first witnesses of the fact; as business increases they are, un- der Edward I., afforced" by the addition of persons bet- ter acquainted with the matter; a further step separates these afiorcing jurors from the original twelve, and the former [afforcers] then engross the character of wit- nesses, the jurors becoming the judges of fact after hear- ing evidence." Indeed, it is said that until about the reign of Henry VI. (1433-1461) trial by jury to all in- tents and purposes was a trial by witnesses. " was vanquished lose his suit, tut the champion was himself punished as guilty of the offense of having- borne false witness. . . . But the ten- ant was not obliged to accept the combat thus offered. He might, un- less a valid objection"— such as descent of both parties from one who once had owned the land — "was taken by bis adversary, avail himself of the enactment of Henry II. and choose the trial by assise, magna assrisa domini regis." Forsyth, Trial by Jury, pp. 124, 125; of. ante, chap. VIII. p. 96 ff. 16 Milites ". . . were the knights or freeholders whom we read of in our old books and Acts of Parliament, who were used in trials of causes and returns of jurors in writs of right." UmfreviUe, Lex Ctoronatoria. "They were called milites because legally compellable to be such, al- though they were not actually knighted." Forsyth, appendix I. " ". . . Twelve legales hnmines . . . were upon oath to decide which party was in the right (utrum A. vel B. maius jus habet in terra ilia)." Bluntschli's Staats-Woerterbuch, in loc. cit. ante, note 32. Glanville (lib. XIII. cc. 1, 2, 14, 16) enumerates eight forms of recogni- tion, based on as many assises, of which only Mort d'Aneestor and Novel Disseisin proceeded by virtue of original writs. In 1258, a great impetus was given to trial by jury by a statute (Westm. II. c. 24) empowering clerks in chancery to issue new writs in emisimiU casu. 18 For an account of the afforcing process, see post, p. 113, i» Macclachlan, Bug. Cycl. III. 26. THE ASSISE OF HENET II. AND THE CIVIL JUET. 105 What, apart from the historical reasons alluded to and the precedent afforded by the oflBcial Inquisitions, was the immediate source of the assise? The ratiocina- tion of Mr. Forsyth" seems conclusive, and may be ad- vantageously transcribed. He concludes that "in the earliest times, disputes respecting lands were decided by the voice of the community of the county or hundred, as the case may be, where the parties lived; that after- wards a select number was substituted for the whole, who gave their testimony upon oath, and therefore were called the 'jurata;' and that this suggested to Henry II. and his councilors" — among whom, facile princeps, Glanville — "the idea of the assise, which was nothing but the jurata in a technical form, and limited to milites or knights who were summoned by a writ of the sheriff in virtue of a precept from the king." And, in another place, he observes that, in suits respecting lands, at that time "the constant practice was to decide the contro- versy by appealing to the knowledge of the neighbor- hood" — decurr&ndum erit ad vicinetum, as Glanville has it — "where the parties resided and the lands lay; and frequently a limited number of persons were sworn who represented the vicinage,"' and who stated on oath to so Trial by Jury, p. 143 ff. SI "Anciently the seisin was oMgred to be deliverefl coram 'parCbvsde vicineto, before the peers or freeholders of the neighborhood, who at- tested such delivery in the body or on the back of the deed. . . . And though afterwards the ocular attestation of the pares was held unneces- sary, and livery [of seisin] might be made before any credible witnesses, yet the tried in case it was disputed (like that of all other attestations) was still reserved to the pa/res or jury of the county." 2 Bl. Com. o. XX.; cf . bk. ni. c. xxin. The reader is also referred, for some interesting comment on the union of jurors and witnesses and on jural functions in general, to Mr. Best's treatise on Evidence (Chamberlayne's ed.) pp. 190-192, 19i, 246. And see post, notes 48, 51, 52. 106 HISTOET OF THE JPEY SYSTEM. whom the property belonged. These were called the proli et legales homines, and their verdict [veredictum vic'ineti] was conclusive of the question in dispute. . . . There was no difference whatever in principle between these inquests and the recognitions by the knights of the assise; and it seems, therefore, that the idea of the latter was derived from the former. In both cases the verdict was the testimony of witnesses cogni- zant of the matter in dispute; and if we substitute a de- terminate number of knights for theproM homines of an ordinary inquest, we have at once the assise." Such was, in its general outline, the assise instituted by Henry II., and the incidents and precedents on which it was based; it remains for us to review the several statutory regulations by which it was affirmed and established on a stable basis. It should be premised that, during the period elapsed since the Conqueror's death, the assumptions of the clergy had — coincident with the growth of the Eoman hierarchy — become greater than ever before; the ecclesiastics claiming ex- emption from the judicial process and the laws of the realm, and asserting the supreme authority of the civil law in their own tribunals, and the exclusive jurisdic- tion of the latter in causes where a member or dependent of the clergy was a party or where ecclesiastical rights were involved. We have referred before" to the impetus which the Eoman Law received by the establishment of the Italian universities at the end of the 11th century, to the lectures upon it which the English clergy caused to be delivered at Oxford, and to the potent manner in which this movement ultimately affected our jurispru- 25 Ante, chap. V. notes 8, 10, 15, THE ASSISE OF HENET 11. AND THE CIVIL JUET. 107 dence by engrafting civil principles upon the common law, and by establishing admiralty and equity jurispru- ' dence. The immediate effect, however, was quite another. For the monarch's determination to check what he con- sidered the clerical tendency towards establishing an imperium in imperio, and to restrain their assumptions within more moderate limits, led in 1152 to King Stephen's prohibition of the study of the civil law, and m 1164 to King Henry's enactment of the Constitutions of Clarendon" (so called from the village of that name) which "were calculated to give a rational limitation to the secular and ecclesiastical jurisprudence; and furnish a basis on which these separate jurisdictions might have been founded, without any inconvenience to the nation or diminution of the temporal authority; and they were with that view confirmed, A. D. 1176, at a council held at Northampton.""* The section in these Constitutions which more imme- diately concerns us, as being the-flrst statutory mention of the jury, is the ninth, providing in disputes between laymen and clerks a recognition by twelve lawful men : " Si calumnia emerserit inter clerictim et laicum vel in- ter laicum et clericum, de ullo tenemento quod clericus ad 53 "Nothing wiH enable us" writes Eeeves, "to judgre so well of the pre- tensions of the clergy, as a perusal of these Constitutions!" which he proceeds to state at length In vol. I. pp. 76-79. "They are contained in sixteen articles; ten of which were considered by the see of Borne as so hostile to the rights of the clergy, that pope Alexander in full consistory passed a solemn condemnation on them; the other six he tolerated, not as good, but less evil." Chapter I. was among the latter, butchapterlX. was one of the condemned ones. GminUtuHo (like ossisa) was originally a name for any legal enactment. 54 Id. Hist. Eng. Law, u. XL 108 HISTOEY OF THE JUBT SYSTEM. eleemosinam velit attrahere, laicus vero adlaicumfeuditm, recognitione cluodecim legalium hominum, per capitalis JustiticB regis considerationem terminabiUir, utrum ien- ementum sit pertinens ad eleemosinam sive ad laicum feudum, coram ipso Justitia regis." Hence the ques- tion, whether an estate was a lay or an ecclesiastical fee> is the most ancient issue referred to a jury. By the statute of Northampton, above referred to as affirming the preceding one, the province of the jury is (in 1176) extended. It is provided by section 4 ; ".,5 . JSt si dominus feodi negatjiceredilus defuncti sai- sinam ejusdam defuncti quam exigunt, Justitim domini regis faciant inde fieri percognitionem per duodecim le- gales homines, qualem sai'sinam defunctus inde Tiabuit diequafuit vivus et mortutts: et sicut recognitum fuerit, ita limredilus ejus restituant. Et si quis contra hocfe- cerit et inde attaintus fuerit, remaneat in misericordia 55 Constltutio Clarenduna, c. IX. rendered by Reeves (I. 78) as follows: If there shall arise any dispute between an ecclesiastic and a layman, or between a layman and an ecclesiastic, about any tenement which the ecclesiastic pretends to in eleemosyn^ [i. e. for charitable uses] and the layman pretends to be a lay fee, it shall be determined by the judgment of the king's chief justice, upon a recognition of twelve lawful men, utrum tenementum gtt pertinens ad eUenwgynwm, sive ad foedum laicum Lwhether such tenement be held as an ecclesiastical or a lay fee]. "Legalis homo : a man possessed of all the rights of a freeman." Stubbs, Select Charters, p. 544. Cf . Spelman, Gloss. Arch. s« Tbahslation : And if the lord of a feof denies to the heirs of a de- cedent the seisin which they demand, the justices of our lord the king shall thereupon by twelve lawful men cause to be made an enquiry, as to what seisin the ;decea8ed had thereof on the day when he was alive and died ; and according to their finding, shall restitution be made to his heirs. And if anyone shall act contrary hereto and be attainted in con- sequence, be shall be dealt with according to the mercy of the king. "To be at the king's mercy was, to lie in such a position that the king might either exercise the right of complete forfeiture or accept a fine in commutation." Stubbs, Select Charters, p. 545. THE ASSISE OF HENKT II. AND THE CIVIL JITET. 109 Thus the question whether an heir was entitled to succeed to the estate of his ancestor, in cases where the lord of the fee denied that such ancestor died seised of an estate of inheritance, was to he submitted to the jury. Whence this proceeding was called an assise of Mort d" Ancestor. And, by the same statute, it is further provided, in section 5 : "Item justitim domini regis faciant fieri recognitionem de dissaisinis factis super Assisam, a tem- pore quo dominus rex venit in Angliam proximo post pa- cem, factum intex: ipsum et regemfilium suum."" By this clause, all cases of disseisin or dispossession from land, claimed to have occurred since the peace of 1173, were directed to be similarly tried by a jury, which was then called an assise of Novel Disseisin. But seven jurors sufBced therein (Bracton 1796). In 1181, the functions of the tribunal were further extended — or, rather, the functions of some of the royal inquests above" referred to were formally revived and legalized — by the enactment of the statute termed the Assise of Arms, whose purpose was to create a permanent militia. "The importance of the assize," writes Stubbs, " as illustrating the constitutional point of recognition by jury for the purpose of taxation . . . depends chiefly on article 9."" So the importance of the ordinance of the Saladin " TransIjAtion : Likewise the king's justices shall cause inquiry to be made concerning: the disseisins made by assise, from the time when the king came to England immediately after the peace between himself and the king his son.— The same phraseology was used in the Assise of the Eorest (1184 ). !8 Ante, chap. VIII. pp. 93-96. 9' Select Charters, p. 154. 110 HISTORY OF THE JUEY SYSTEM. tithe/" passed in 1188, consists, according to the same authority, "in the fact of the employment of local ju- rors to determine the liability of individuals " with ref- erence to the taxation of their personal property, " as had been done in 1181 in the assize of arms."" Thus, by the several statutes aforesaid, the function of the assise was fixed and definitely determined as the trier of disputed facts in the cases enumerated; all of them, too, were passed under Henry II., no doubt influenced by the advice and acting under the counsel of the Justi- ciar," Eanulph Glanville. -; By Magna Charta (1215) the provisions of Clarendon and Northampton were re-affirmed, it being enacted by Cap. 18 : "Recognitiones de nova disseisina, de morie antecessoris, et de ultima pr(BS6ntatione, non capiantur nisi in suis comitatiius et hoc modoj nos, vel si extra reg- num fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemgue comitatwm per quatt- uor vices in anno, qui, cum quatuor militilus cujuslibet comitatus electis per comitatum, capiant in coniitatu et 30 This was "a tax imposed In England and France, In 1188, by Pope Innocent III., to raiae a fund lor the crusade undertaken . . . against Saladln, Sultan of Egypt, then going to l)esiege Jerusalem. By this tax every person -who did not enter himself a crusader, was obliged to pay a tenth of his yearly revenue and of the value of all his moveables, except his wearing apparel, books, and arms. . . . Thus arose the tithing of ecclesiastical benefices for the Pope or other sovereigns." Wharton, Law Lex. 864. 31 Select Charters, 159. 32 As to this officer, see Bispham's Eq. (3d ed.) p. 6; Stubbs, Const. Hist. 346 ff.; Campbell, Lives of the Chief Justices, c. I. He appears, from a few years after the Norman conquest until the latter part of the reign of King John (a period of over 125 years) to have combined the powers of aprime minister or viceroy with those of a chief justice. THE ASSISE OF HENET II. AND THE CIVIL JUEY. Ill in die et loco comitatus assisas pradictas."" The im- portance of this article lies in the fact, that it estab- lished a regular system of administering the law, by providing that two judges, at four stated times each year, were to visit each county, summon before them the parties and the jurors (the latter then being selected by four chosen knights of the county) and hold the assise with reference to the disputed territory or tene- ment ; and the justices so commissioned were termed Judges of Assise. By Cap. 40, the practice of exacting as arbitrary fee for granting recognitions, even when matter of right, was forbidden. While, to insure a more perfect administration of justice, and to secure the jury against being hampered or having its intended sphere of action infracted or its efEorts rendered abortive by ignorant judicial function- aries, it was further ordained in Cap. 45 : "Nos non faciemus justiciaries, constaiularios, vicecomites vel idl- livos, nisi de talibus qui sciant legem regni et earn bene velint observare.'"* That is, the selection of judges, as well as of sheriffs and other executive agents of justice, was to be made from the number of those "learned in the laws of the realm and law-abiding" — a prescription which, parenthetically speaking, might sometimes be advantageously enforced in our country at the present day. 83 Translation: Becognitioiis of Novel Disseisin, of Mort d'Anoea- tor, and of Last Presentment shall not be taken except In their own counties and in manner following : we, or if we shall be out of the kingdom, our ehief justiciar, will send two 'justices into each county four times a year, who, together with four knights chosen in each county by the county, sliall hold the aforesaid assises on the day [stated] and at the county seat. 3* TBANsr.ATiON : We will not appoint justices, constables, sheriffs or 112 HISTORY OF THE JUBY SYSTEM. And, finally, in the middle of the thirteenth century" the jury had become so firmly established, and was re- garded and utilized as so important a factor in the ad- ministration of justice, that Bracton [de Laud. bk. IV. c. 19) devotes much space to the description of the insti- tution and form of trial as then existent, from which it appears that the circumstances which tended to dis- qualify a man from serving as a juror corresponded closely with the disqualifications of witnesses at a later day, — being perjury, serfdom, near relationship, enmity and intimacy. What has been said above about the judges causing to be summoned "the parties and the jurors," no refer- ence whatever being made to witnesses, is strictly true ; for while with us the jury receives information from the witnesses, the witnesses at that time constituted the jury, since, as Forsyth remarks, " this proceeding by .assise,'" was nothing more than the sworn testimony of a certain number of persons, summoned to give evidence tailiffs, except from among those who know the laws of the realm and are willing faithfully to observe them. 3s "The wonderful thirteenth century, the great creative and destruct- ive age throughout the world." Freeman, Eng. Const, u. II. The jury had then become "the one regular common law mode of trial ... by its intrinsic fairness as contrasted with older modes, and by the favor of the crown and the judges." Thayer, 5 Harv. L. Eev. 259.^ 36 An instance of this process may be quoted, from the Chronica Joce- lini de Brakelonda (p. 45) : Cumgue inde summonita esset reeognitio duo- decim miHtum in curia regis facienda, facta est in curia abbatis apud Herlavam per Ucentiam Banulfi de Olanmlla, et juraverunt recogniiores se nunqunm scijJisse illam terram fuisse separatam ab ecciesrio. Tban sl ation : And when thereupon a recognition of twelve knights had been summoned to be held in the king's court, it was held in the abbot's court at Harlow by permission of Banulph de GlanvlUe, and the recognitors swore that they had never known that land to have been separated from the church. Forsyth quotes the following entry of the verdict of an assise, and the THE ASSISE OF HENEY 11. AND THE CIVIL JUET. 113 upon matters within their own knowledge. ... If, however, some did and some did not know [the facts in dispute], the latter only were removed and others sum- moned in their place, until twelve at least were found who knew and agreed upon the facts. Also if the ju- rors when chosen were not unanimous, others were to be added to the number until twelve at- least agreed in favor of the one side or other. This was called afforc- ing the assise."" And, again, "the peculiarity by which their evidence was then distinguished was, that lit was conclusive of the facts in dispute. The veredictuni of a jury was always an estoppel against any averment to the contrary, unless they could be convicted of manifest perjury and fraud — and this could only be done by a subsequent pro- ceeding . ." called an attaint, for anciently new trials were unknown. It consisted in subjecting the action of a jury, which had given an obviously errone- ous verdict, to revision by a second jury ; and, if the latter (by a different verdict) convicted the former of having delivered one falsely, this was held to imply perjury in the first jury, rendered them infamous, and forfeited their lands and chattels to the king — decision rendered in accordance therewith by the court, from the Ho- tuli Curiae Begis : Aisfisa venit recognoacendum, si Robertas ftMv3 WaUerHnjvsteetslneju- dicio dissaisamt Ysabel de Benninton de Itbero tenemento suo in Bennintnn infra assisam, Ju/ratores dicunt quod iion dissaisamt earn ita. Jvdicium : " Bobertus teneat in pace ; et Tsabel pro falsa clamore sit in misericordia." Translation : The assise came to inquire, whether Kobert the son of Walter had unjustly and without a verdict under the [statute of) assise disseised Isabel of Benninton of her freehold in Benninton. The jurors said that he had not thus disseised her. Judgment : Let Kobert peacefully possess [the estate], and Isabel for her false charge be at the mercy [of the king.] 3' Trial by Jury, pp. 127, 128. 8 114: HISTOET OF THE JUET SYSTEM. while the judgment based on their verdict was accord- ingly reversed. "The attaint was a remedy for a corrupt verdict in civil cases, and was tried by a jury of twenty- four ... It deserves notice as one of the many proofs . . . that jurors were originally witnesses- Perjury by a witness was not a crime known to the law of England till the reign of Queen Elizabeth. The only form of that offense . . . was the perjury of jurors, which made them liable to an attaint." Whether this remedy was applicable in criminal cases also, seems doubtful; but if so, it was only at the suit of the crown. (Stephens, Hist. Crim. Law, I. 306, 307, 255.) The attaint (called by Bracton convictio, Inter aitincia) appears to have originated in England, about 1200, from the mere favor of the king, accorded for a consideration to disappointed suitors (Brunner, Schw. 373). It was "a proceeding in which the original parties and also the first jury were parties, and where a larger jury, made up of [24] knights or other more considerable persons than the first, passed again on the same issue." The attaint- jury was bound to proceed on the same evidence upon which the first jury had passed; for if the latter (says Shelley, J., in Jiolfe v. Hampden, Dyer 635) had acted on "pregnant and manifest proof and evidence," al- though "in fact false," the attainters should not be prejudiced thereby but "ought to weigh in their con- sciences what themselves would have done upon the same strong evidence . . . for homines sunt mendaces et non angeli." And it was held in the same case that the plaintiff in attaint could not give more evidence or call more witnesses than he had given to the petit jury, but the defendant might do so to sustain the first ver- dict. See also 11 Assizes, pi. 19. THE ASSISE OF HENKY II. AND THE CIVIL JUEY. 115 A contrary finding of the attainters was thus tanta- mount to a conviction of the first jury of having, in their character as witnesses, given false evidence in the form of a "verdict." A reversal of the original judg- ment followed as of course, and the twelve "perjurers" were punished by imprisonment for at least a year and forfeiture of goods, and also became infamous : "for they shall not afterwards be othesworth " (Bract. 2925). By statutes in 1495, 1531 and 1571, the imprisonment and forfeiture were commuted into a pecuniary penalty, and the attaint limited to cases where the verdict was not less than £40 (Stat. 13 Eliz. c. 35) which remained substantially the law governing attaints until their formal abolition. In the meantime, however, they had — because of the extraordinary expense, delay and uncertainty which the employment of this cumbersome apparatus involved, and which two statutes (11 Hen. VI. c. 4, 15 Id. c. 5) had vainly sought to remedy by increasing the property qualifications of the attaint jurors and imposing new penalties on the others, — gradually fallen into "inno- cuous desuetude." Thus in 1565, Sir Thomas Smith (Com. of Eng. bk. III. c. 2) remarks: "Attaints be very seldom put in use, partly because the gentlemen will not meet to slander and deface the honest yeomen, their neighbors; so that for a long time they had rather pay a mean fine than to appear and makeenquest." A century later. Chief Justice Hyde {Anonymous, 1 Keb. 864) used language to the same effect. In 1757, Lord Mansfield declared (in Bright v. Eynon, 1 Burr. 893) that "the writ of attaint is now a mere sound in every case." While Blackstone (whose Commentaries were published in the 116 HISTOET OF THE JUEY SYSTEM. next decade) treats the institution as practically obso- lete. It received the coup de grace in 1825 by Stat. G-eo. IV. c. 50. § 60, which enacts that attaints shall "hence- forth cease, become Toid, and be utterly abolished." It should be noted that in the early days, consistently enough, the judges themselves were likewise punishable for errors in law — a modified survival of the old Saxon practice [already mentioned, ante, pp. 51, 93] requiring judges to defend their judgments by duel. Several instances are given in Bracton's Note Book. Thus in one case {Id. II. 564) in 1231, involving a very: technical point of procedure, it was held " that the said justices erred . . . and made a false judgment; and there- fore the justices are amerced." " '8 We are mainly indebted for the above definition and description ot the attaint to Prof. Thayer's paper in 5 Harv. L. Rev. pp. 364r-376, •where many other interesting cases may be found. Commenting on the fact that it never g-ained any foothold in criminal trials, he adds (Ibid. 378): " The king, in criminal cases, was no mere ordinary party to an action: the procedure was heavily weighted in his favor. In treason and felony, the accused could not have counsel; later, when witnesses could be had for the king, he could not have them; and still later, when he also could have them, his witnesses could not be- sworn. The Wng, therefore, had small need of the attaint . . . and the doctrine was ancient that one should not be twice put in jeopardy for the same offense. ... The influence of the crown was suflBciently strong to prevent much injustice as against the prosecution. On the other side, the natural sympathy of the jury with accused persons, and the opera- tion of humane maxims and sentiments, secured a tolerable fairness." [But see the remarks of Hargrave, quoted chap. X. p. Ii9]. Later, the practice of fining and imprisoning the jury was adopted as a corrective of perverse convictions or acquittals [as to which see Throck- morton's and another case, post, chap. X.]. As late as 1666, Kelj-ng, C.J., fined a jury £5 apiece for bringing in a verdict of manslaughter when he had directed them to find murder (Kel. 50); and the year following (in Bex V. Windham, 3 Keb. 280) he went to the. extreme of fining eleven ffrand jurors $20 each for refusing to find an indictment for murder. The matter was brought before the House of Commons by the defendant, which, after hearing the Chief Justice in his own defense (6 How. St. Tr. 993), by resolution condemned the fining and imprisonment of jurors as illegal. The whole practice ignominiously petered out in 1670, with THE ASSISE OF HENSY II. AND THE CIVIL JUEY. 117 After attaints had become obsolete, and the fining and imprisonment of jurors had been declared illegal, some other method for revising verdicts against evidence had to be devised. It was then that the courts seized upon the ancient precedent of awarding a new venire — or writ directing the sheriff to summon a new panel of jurors — where the jury had been guilty of misconduct,^" the case of Bushell (Vaughan, 135), one of the jurors who had been fined and imprisoned for acquitting: William Penn on the charge of taking part in an unlawful assembly, whereupon Chief Justice Vaughan ordered his discharge from custody and " pronounced that memorable opinion which ended the fining of jurors for their verdicts and vindicated their character as judges of fact." (Ibid. 382). As to the case last cited see also post, p. 120, and note 48. 39 "AppUoations to set aside verdicts for the misbehavior of jurors are addressed to the sound legal discretion of the court, and cannot ordi- narily be brought to the test of any fixed and definite rule. Each appli- cation must be determined mainly upon its own peculiar facts and cir- cumstances, and should be granted or refused with a view, not so much to the attainment of justice in the particular case as to the ultimate effect of the decision upon the administration of justice in general." HuUMnson v. Consamefra Coal Co. 36 N. J. L. 24. A quotient verdict— i. e. one "rendered upon an agreement for one- twelfth of the aggregate amount of the several estimates by the jurors," —is not Invalid, unless the jurors agree in advance to abide by such a result; and this must be established by extraneous evidence, for the affidavits of jurors themselves are admissible only to support, but not to impeach their verdicts. Moses v. Central Park B. H. Co. 3 Misc. 322, where Judge Pryor learnedly reviews the authorities. But a party " is not allowed to take the chances of a favorable verdict and yet reserve the right to impeach it for known irregularities," per Daly, Ch. J. WaWi V. Matchett, 6 Misc. 114 ; cf . People v. Flack, 57 Hun 96. It is held improper conduct in jurors to receive out of court anything of an evidentiary nature. " This occurs when jurors experiment, visit the locus in quo without the permission of the court, makes evidential statements to their fellows founded on their own personal knowledge, communicate with witnesses or other parties [or counsel] out of court, or consult any book or paper influentially bearing on but not admitted as evidence in the case." 12 Am. & Eng. Enc. Law 379, and notes. Nor should counsel read from a law book to the jury : Lesner v. Per- kins, 39 Hun, 341 — certainly not where " the extracts read were not ex- pressive of the law of the case " and exception is duly taken to the court's approbation of such course. • 118 HISTORY OF THE JUET SYSTEM. such as partaking of food while deliberatiug,"or taking a paper privately from a party in whose favor they sub- sequently found." The introduction of new trials, in assumed reliance on these frail precedents — but really by judicial legisla- tion — may safely be ascribed to the year 1655, when Chief Justice Glynne (in Wood v. Ounston, Styles, 463) after full discussion granted a motion to set aside a ver- dict of £1500 in a slander suit, on the ground that the damages were excessive. For seven years before (in Blade's Case, Styles, 138) the King's Bench had refused to grant such a motion, — although the judge presiding at the trial had certified that "the verdict passed against his opinion," — on the ground that such a procedure was But the effect of misoonduot on a jury la deemed waived, unless promptly complained of by the party aggrieved. "A party cannot he permitted to lie hy after having knowledge of a defect of this kind and speculate upon the result, and complain only when the verdict heeomes unsatisfactory to him." Selleek v. Sugar Sollow Tump, Co. 13 Conn. 453; cf . TalUnte v. Bryan, 68 How. Pr. 303. In People v. Mitchell, the supreme court of California (34 Pao. Eep. 698) set aside a conviction of murder, hecause it appeared that du- ring the trial several jurors had visited a disreputable place kept by one of the defendant's principal witnesses, and had there talked about the case. Such conduct "indicates a lack of that high appreciation of the duties and responsibilities of jurors essential to the purity of the jury system," and, having become notorious before the verdict was rendered, "their freedom of action was foreclosed." In commenting on this subject, after reference to some recent strict- ures of Judge Abbett at the Hunterdon circuit— where a verdict for defendant was set aside, after a trial lasting: a week, because on the fourth day the foreman publicly ofEered to wager that the defendant would prevail.— Mr. Wilbur Larremore editorially observes (N. Y. Law Journal, June 20, 1893) with much point: "In other places besides Hunterdon county. New Jersey, occasional lectures by courts to panels of jurymen upon the general proprieties of their position would not be thrown away." « Cf . eases cited in chap. XII. notes 33 and 34. 41 So in a case in 1409 (Y. B. 11 Hen. IV. 17, pi. 41) decided by Gascoigne, Ch.J. THE ASSISE OF HENET II. AND THE CIVIL J0ET. 119 too arbitrary, and that the defendant might hare his attaint against the jury, " and there is no other remedy in law." By the end of the century, in any event, this method of supervising and revising the verdicts of juries was an established factor in English jurisprudence." Eeturning to the question of reaching a verdict, it is clear (from the ancient identity of jurors with witnesses) that verdicts were for ages predicated upon their own personal knowledge, acquired independently of the trial. "So entirely," observes Forsyth," "did they proceed upon their own previously, formed view of the facts in dispute, that they seem to have considered themselves at liberty to pay no attention to evidence offered in court, however clearly it might disprove the case which they were prepaz'ed to support" by their verdict.** A curious illustration of this state is aflforded, as late as the year 1540, by the record of a case** in the couii; of exchequer chamber. Here Atkins, Counselor, « Prof. Thayer concludes some consideration of the subject of new- trials (5 Harv. L. Kev. 385-388) with this comment concerning the Statute of Frauds : " There is reason to surmise that a leading motive in the enactment [29 Chaa. U. c. 3, A. D. 1676] of that singular and very un- English piece of legislation . . . was found in the uncertainty that hung over everything at a period when the law of proof was so unsettled. The attaint as an operative thing had vanished, while the law of new trials was in Its tender infancy, and the rules of our present law of evi- dence but little developed." 43 Forsyth, p. 131. 44 "The present form of the jurors' oath is that they shall 'give a true verdict, according to the evidence' . . . but for several centuries after the Conquest, the jurors both in civil and criminal cases were sworn merely to speafc the tnttTi (Glan. II. 17; Bract. III. 22). Hence their decis- ion was accurately termed veredictum, or verdict ; whereas the phrase "true verdict" in the modern oath is not only a pleonasm, but is etymol- ogically incorrect, and misdesoribes the ofSce of a juror at the present day." Knight's Eng. Cycl. III. 26. 4* Beniger y. Fogossa, Cam. Scac. (i Edw. VI.) 1 Plowd. 8, 13. 120 HISTOKT OF THE JDKY SYSTEM. observed : " I may put the matter to the Inquest' with- out any witness, and their knowledge shall aid me, and not the knowledge of the witnesses, for they may give a verdict contrary to the witnesses ; and so the witnesses and their testimony is not very material when there is an inquest."" And Robert Brooke, Recorder of London, approvingly refers to these remarks, saying arguendo :" " If witnesses were so necessary then it would follow that the Jurors could not give a verdict contrary to the witnesses, whereas the law is quite otherwise, for when the witnesses for trial of a fact are joined to the inquest, if they cannot agree with the jurors, the verdict of the twelve shall be taken and the witnesses shall be rejected; therefore this point is clear enough." In 1670, however, it was held" that where a juror had knowledge of facts material to an issue, he must inform the court and be sworn as a witness ; and, finally, the principle was definitively and emphatically laid down <6 The learned counsel cites, among other authorities, Coke on Little- ton, 6 1>, Heath's Maxims, 95. Even in more modern practice, the jury might, in some rare and peculiar cases, disregrard testimony; for "it may so lall out that a jury upon their own knowledge may know a thing to he false that a witness swore to be true, or may know a witness to be incompetent or incredible though nothing be objected against him, and may give their verdict accordingly." Hale, Com. Law, c. 12, § II. ■" In the ease last cited. 48 BusheU's Case, Vaughan, 335, 6 How. St. Tr. 999: which also declared the above described attaint proceeding illegal. So, In an anonymous case decided in 1703, it was said: "If a jury give a verdict on their own knowledge, they ought to tell the court so, that they may be sworn as witnesses ; and the lair way is to teU the court before they are sworn, that they have evidence to give." A/nonymous, Salk. 405. And another old report states : "Where among the jury there bo those having peculiar ken, let them leave the jury box and be sworn as witnesses." 1 Summerfleld, 476. S. P. (A. D. 1650) Bennet v. Hartford, Styles, 233. THE ASSISE OF HENKY II. AND THE CIVIL JURY. 121 by Lord Ellenborough, in the reign of George III., that a judge who tolerated a verdict based on facts not brought out by the evidence, but founded on the jury's own peculiar knowledge, was clearly in the wrong. This was in Eex v. Sutton, 4 Maule & S. 632, decided 1816, The further development of the civil jury, and the extension of its functions to other cases than those in- volving property rights, which the Judges instituted by Magna Charta were sent into each county to try, may be collated from the work of Mr. Forsyth," who writes: "Gradually the justices appointed to hold the assise were directed to entertain other questions than those concerning land. And special judges seem to have been from time to time nominated for this purpose dis- tinct from the regular judges of the bench," and termed judges of assise and nisi prius'" — from the two words forming the commencement of the writ by which their jury was summoned. " Thus by Statute 13 Edw. I. c. 30 [A. D. 1285] it is provided that to avoid the delay and expense of bring- ing parties to Westminster, inquisitions of trespass and other pleas, wherein small examination is required, shall be determined before the justices of assise, and . . . 4» Trial by Jury, pp. 148, 149. so The writ recited the character of the case and set a day, on which it was triable at Westminster, Nxei PBitrs venerint jiistitiae in comitatum — unless before that day the judges came into the county where the cause of action arose, which they regularly did. "Trials in these courts were both by assizes and juries, but the former fell gradually more and more into disuse, although as a distinct manner of trial it existed until 1838, and was only abolished by 3 and i Wm. IV. c. 27." Cycl. Pol. Sci. II. 655. In the time of Glanville, remarks Prof. Maitland (Pol. Sci. Quart. IV. 516), the King's Court is " beginning to make itself a tribunal of first instance for all England at the expense of the communal and seigniorial courts." 122 HISTORY OF THK JUEY SYSTEM. in 1306 we find the word ' assisa ' appHed to the trial of an action for false imprisonment. The machinery for this mode of inquiry was ready in the existence of the jurat a, so familiar to the people ... in the de- cision of disputes. And the assisa supplied the model of the form in which it [the juratd] was henceforth to appear." And then the old lawyers said Assisa cadit et vertitur injuratarn (Fleta IV. c. 14). "The transition from a varying number of neighbors assembled in a county or other court, to that of a fixed number, namely twelve, summoned to the assise [or jurata'\ court, was easy and slight; and the verdict of the jury was originally neither more nor less than the testimony of the latter." "While, therefore, with both assise and jurata, the verdict was based on the personal knowledge of the jurors, sitting in the capacity of witnesses," an excep- tion existed even at common law in the cases of deeds" coming in controversy, or requiring to be pro- " Mr. Justice Stephen observes : " It is a matter clear beyond dispute . . . that the jury anciently consisted of persons who were witnesses to the facta, or at least in some measure personally cognizant of them ; and who consequently, in their verdict, gave not (as now) the conclusion of their judgment upon facts proved before them in the cause, but their testimony as to facts which they had antecedently known." Pleading, (5th ed.) lis, 480, and appendix, note 33 [cf . ante, note 31]. Hence it was that the allegations of counsel (unsustained by oath or proof) as to what his witnesses had to say, simply accompanied by their presence in court, were suffered to go to the jury as "evidence." 5 Harv. L. Eev. 307, 317, 361 note. S2 "Anciently . . . when the execution of a deed was put in issue, pro- cess was issued against [its then more numerous] witnesses whose names appeared on the instrument, who, on their appearance in court, seem to have discharged in some respects the functions of a jury." Best, Bv. 8 220— citing Co. Litt. 6b. To the same effect Stephen : " In very ancient times, when the jury were witnesses as to matter of fact, the attesting witnesses to deeds (if a deed came in question) would seem to have been summoned with, and to have acted as a sort of assessors to, the jury." Digest Law THE ASSISE OF HENET 11. AND THE CIVIL J0ET. 123 dnced as the basis of some right. Here the matter must primarily be referred to the attesting witnesses, and the party making profert of the document was obliged " se ponere super testes in carta noviinatos, et super patriam."" " In reality, however, since the jurors themselves were originally witnesses, there was no distinction between them and the attesting witnesses ; so that it is by no means improbable that the latter were at first associated with them in the discharge of the same function, namely the delivery of a verdict, and that gradually in the course of years a separation took place. This separation, at all events, existed in the reign of Edward III. [1337- 1377]. *' As the use of juries became more frequent, and the advantages of employing them in the decision of dis- putes more manifest, the witnesses who formed the secta of the plaintiff began to give their evidence be- fore them, and, like the attesting witnesses in deeds, of Bv., citing: Bracton, 38o; Tortesoue, de Laud. c. XXXII. (Selden's note); cf . Co. Litt. 225. "Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares [i. e. jurors] ; with whom the witnesses (if more than one) were associated and joined in the verdict ; tiU that also was abrogated by the statute of York, 13 Edw. 11. Stat. I. 0. 2." Bl. Com. bk. II. o. XX. In the same connection Washburn may be q.uoted : " The witnesses to a deed, according to Mr. Harrington when commenting (Statutes (4th ed.) p. 175), upon the Statute of York, were anciently a necessary part of the jury, which was to try the validity of such an instrument. This statute provides that if, upon being properly summoned, they do not appear, the jury might proceed without them." Beal Prop. (3d ed.) vol. III. p. 249. 53neta (Commentarius Juris AnglicoM) VI. c. 33. Observe that "a witness to a deed . . . was not necessarily one who had seen it exe- cuted, but one who was willing to give it credit by his name. This may account for its turning out so often, when witnesses were ques- tioned, that they knew nothing about the matter." 5 Harv. L. Kev. 303. 124 HISTOET OF THE J0RY SYSTEM. furnisliecl them with that information which in theory they were supposed to possess previously respecting the cause of quarrel. . . In the reign of Henry VI. [1431- 1471] with the exception of the requirement of personal knowledge in the Jurors derived from near neighborhood or residence, the jury system had become in all its essen- tial features similar to what now exists . . . and this explains the origin of the venue [vicinetumi, which appears in all indictments and declarations at the present day."" 64 Forsyth, o. VII. §§ 1, 3; cf . note 21, ante. To the same effect Sir James Stephen, in his History of the Criminal Jja.v (Lond. 1883) writes : "The steps hy which the jury ceased to be witnesses and hecame judges of the evidence given hy others cannot now be traced without an amount of labor out of proportion to the value of the result. . . . Trial by jury as we tnow it now was well established, at least so far as civil cases were concerned, in all its essential features. In the middle of the fifteenth century." — Vol. I. pp. 260, 263, citing Eortesoue, de Laud, Leg. A.iiglice, c. 26, 37. And in criminal trials, it seems, that even while the jurors were them- selves the witnesses, other witnesses might be and sometimes were called. la. 259. And so, generally, in civil cases tarn juratores Quam testes were ques- tioned at an early period: 6 Uarv. L. Kev. 302-306, 317. The latest case of witnesses to deeds being summoned to act with the jury is here ascribed to 1489. In 1465 we find a clear case (Babington v. Venor, T. B. 5 Edw. lY. 5, 24) where witnesses testify openly to the jury. And there were earlier instances. (See 5 Harv. Jj. Eev. 358-360, where it is remarked " that this feature of a jury trial, in our day so conspicuous and indis- pensable, was then but little considered and of small importance.") The mode of proceeding at trial In Eortescue's time— described in his treatise De Laiidlbus Legum Angliae, 1470 — corresponds closely to that now in vogue. The right to have compulsory process against all witnesses, already recognized by the courts, received formal sanction in 1563 by Stat. 5 Bliz. 0. 9, § 6. Tet the witnesses long continued to be regarded as a subordinate factor in trials, as is apparent from a passage in Coke's Institutes (III. 163) written early in the seventeenth century, when commenting on certain statutes requiring the testimony of two "accusers " (i. e., wit- nesses) in order to justify a conviction of treason. " Evidences of wit- THE ASSISE OF HENEY II. AND THE CIVIL JUET. 125 When, finally, attaints (or prosecutions of the jury lor Terdicts against evidence) fell into disuse, and the practice of new trials was introduced, juries were no longer allowed to give verdicts upon their own know- ledge ; hut were, in such a case, expected to hecome witnesses." With the desuetude of the requirement of nesses to the jury is no part of the trial, for hy law the trial in that case is not hy witnesses, but by the verdict of twelve men; and so [there is] a manifest diversity between the evidence to a jury and a trial by jury." In 23 Assizes, pi. 11, however, the functions of jurors and the distinction between them and "other witnesses" are clearly noticed; while in 12 As- sizes, pi. 11 we read: "The assize came and were charged to say the truth of their knowledge (a lour science), and the witnesses without their knowledge, to say the truth and loyally inform the inquest." '5 " This power of granting new trials, though it may sometimes almost seem to be arbitrary, must be deemed a highly salutary one, as without it the institution of trial by jury would be in danger of losing its hold upon the confidence of the public. It serves as a safeguard against the passions, prejudices and mistakes to which juries are at times subject, inasmuch as they have the ordinary weaknesses of human nature. Where the objection to the verdict is in the amount of the damages allowed, and the court is not only satisfied that there has been a mistake made, but has some test or standard by which to ascertain, approx- imately, what the amount should be, it is not uncommon to leave the matter somewhat to the election of the plaintiff to remit the excess . . or have a new trial granted [to the defendant. While] where the judge upon the trial has correctly instructed the jury as to the law, and they have rendered a verdict which is incompatible with such ruling, it must be obvious that the only way in which this mistake of the law can be corrected, is by granting a new trial." Washburn, Study & Practice of the Law (5th ed.) p. 246. 66 Cf. Best, E V. § 119 and notes. Also notes 21, 48 and 51 of this chapter. "A consequence of this enlargement of the functions of the jury was the creation of a field of activity for the advocate. With the handling of witnesses and the construction of their testimony for the juries, came the opportunity for the whole of the lawyer's forensic activity." Cycl. Pol. Sci. n. 656. The whole doctrine of hearsay evidence, and largely that of exceptions to the admission and rejection of evidence, and requests to charge, rest thereon. " Our singular law of evidence," says Thayer (Harv. L. Eev. V. 249, 273) " is the child of the jury." It is not based on logic, but slowly evolved from judicial experience with unsophisticated minds, which must be tied down to the question at issue by the exclusion of hearsay and irrelevant (though pertinent) tes- timony. 126 HISTOBY OF THE JTJET SYSTEM. such personal knowledge there departed, also, the neces- sity for the jurors to be hundredors of the district where the cause of action arose : the requirement that jurors must be summoned from the hundred or vicmage was abolished in • all civil actions by 4 Anne, c. 16, § 6, and 24 Geo. II. c. 18;" and, by statute of 6 Geo. IV. c. 50, jurors are simply required to be good and lawful men from the body of the county. And in criminal cases the same practice was, by analogy, adopted. Thus, then, we find that, since its introduction, the nature of the jury has completely changed;" for, whilst originally chosen from those familiar with the parties or cognizant of the facts, a corresponding amount of care is now taken to exclude all who are not absolutely ignorant of the matter involved, or who do not come to the trial with their minds free from any convincing impressions in regard to the subject of controversy which is to be determined by their verdict. " 61 y two j uries, that although it is one of the most important, yet it is certainly one of the most ob- scure and inexplicable points of the law of England." Note 20 to bk. III. c. 23, of Bl. Com. An eminent German jurist observes : "The criminal jury"— i. e. the body deciding the question of guilt or innocence of an accused— "con- sisted originally doubtless of the same persons who formed the accusing [now termed the grand] jury. Later, however, a jury was specially summoned and impaneled for rendering a verdict, and the custom arose to reject for this purpose all persons who had already ofSciated as mem- bers of the accusing jury in the case,— which principle of rejection received [in 1351] legislative confirmation under Edward III." Blunt- BChU's Staats-Woerterbuch, vol. IX. 360; cf. post, p. Ii8. » Leg. Ethel. III. 3. For the Latin version, see Cycl. Pol. Sci. III. 655. 134 GEOWTH 01' THE CEIMmAL JUKT. 135 thanes were the inquisitors of crimes committed within their respective districts. " The resemblance of the twelve thanes to a grand jury," concludes Palgrave/ " is sufficiently obvious ; and the principal difference between the Anglo-Saxon echevins [i. e. scabini, here thanes] and the modern inquest of the shire seems to have consisted in the greater stability of the ancient magistracy, who . . . held their office for a definite period." While, with reference to their functions and the result of their accu- eation, another authority* writes : " They were to act the part of public prosecutors, and the accused had to clear himself by the usual method of compurgation, failing which he must submit to the ordeal. . . . Later the judicial combat took place where an accuser came forward to make the charge ; and compurgation, or the ordeal, where the accusation rested not on the assertion of a single prosecutor but on the fama publica of the neighborhood. . . . This office [of thane- inquisitor] however, seems to have fallen in abeyance, at all events after the invasion of the Normans; and accusa- tions of crime were left to the general voice of the neigh- borhood denouncing the guilt of the suspected person." As partially accounting for the disappearance of the accusing thanes, in furnishing a popular substitute for the latter, the existence of the f ridbourg or frankpledge system' in early England must here be recalled, by which each member of a community was a surety for ^English Common-vrealth, I. 213. . ••Forsyth, pp. IM, 1^. I 5Cf. ante, chap. VI.; apd, as to compurgation as a means of criminal defense, Id. note 6, oitin? tetraot from Pom. Mun. Law, § 401. As to " Saxon Tithingraen irf America," see a paper by H. B. Aflams, Johns Hopkins tTniversity (first) series. 136 HISTORY OF THE JUET SYSTEM. every other one's conduct, and thus specially interested in bringing offenders to justice. This led to the introduction of a process termed Vorath, which, analo- gous to compurgation/ consisted in a number of free- men jointly supporting a criminal accusation by mutually pledging their oaths to its truth. Since, however, an accusation thus made was simply based on public rumor and made by irresponsible parties, col- lected at random, and since, moreover, "parties might be fearful or unwilling to make themselves conspicuous as accusers, especially after the introduction [by the Normans] of trial by battle, which compelled them to support their charge by single combat,'" there arose a popular want for a more efficacious and less hazardous process, which was supplied by the intervention of the legislature. It has before' been referred to that the Normans possessed, and had to some extent transplanted to England, certain accusatory bodies termed jurata delatoria — which presented offenders for trial before the king's judges, and probably superseded the Saxon tri- bunals in many parts of the island. Though the num- ber of their members is uncertain, and their functions not clearly defined or regularly exercised, they must have prevailed to a considerable extent during the cen- tury succeeding the Conquest and indubitably formed the basis on which subsequent statutory enactments operated. The introduction, too, of the assise at this period, accelerated the fulfillment of the popular wish for an improvement of criminal functionaries. The first enactment is contained in the Constitution 6 Ante, chap. VII. p. 78. ' Forsyth, p. 194. 8 Ante, chap. vni. p. 96. GEOWTH OF THE CEIMINAL JUKT. 137 of Clarendon — adopted by a parliament of nobles and prelates in 1164, — whereby Henry II. checked the power of the church and narrowed the clergy's exemption from the secular administration of justice.' One of the causes that led to the death of Archbishop A Becket was the withdrawal of his consent to this statute. This document prescribes in Cap. VI. : ''Laid non debent accusari nisi per certos et legates accusatores et testes in prcesentia episcopi, ita quod archidiaconus non perdat jus suum, nee quicquam quod inde habere deieat. jEt si tales fuerint qui culpan- tur, quod non velit vel non audeat aliquis eos accusare, vicecomes requisitus db episcopo faciat jurare duodecim legates homines de vicineto seu de villa, coram episcopo, quod inde veritatem secundum consuetudinem suam manifestdbunt." " It should be remembered, in this connection and for the better interpretation of the import of this clause, that while the (/ert/a or reeve then " acted as the pre- siding officer of the hundred court, which met once at least every month and had both civil and criminal juris- diction . . . the bishop of the diocese had co- ordinate authority with him, and the court had cognizance of ecclesiastical causes, which were entitled to precedence over any other business." " 9 Cf . chap. IX. pp. 107, 108, and notes. Brunner (Schw. 300 ff.) refers to this monarch as " the man who first succeeded in forcing: the ecclesias- tical jurisdiction into narrower limits." But see onte, chap. VIII. p. 90. 10 Thus rendered by Beeves (I. 76) : Laymen ought not to be accused except by certain and legal accusors and witnesses, in presence of the bishop, so that the archdeacon may not lose his right, nor anything which should thereby accrue to him ; and If the oftending persons be such as none will or dare accuse, the sheriff, upon the requisition of the bishop, shall cause twelve lawful men of the vicinage or town to be sworn before the bishop, to declare the truth according -to their consciences. 11 Forsyth, p. 64. 138 HISTOET OF THE JUKT SYSTEM. The more direct application, however, of the princii^le underlying the institution of the assise, or primitive civil jury, to criminal jurisdiction," was accomplished two years later by the assise of Clarendon," which begins with the following enactment : " Im2}7'iinis statidt prmdictus rex Henricus de consiUo omnium baronum suorum, pro pace servanda et justitia tenenda, quod per singulos comitatus inquiratur et per singulos liundredos, per XII. legaliores homines de hun- dredo et per IV. legaliores Jiomines de qualibet villata, per sacramentum quod illi verum dicent : si in liundredo suo vel villata sua sit aliquis homo qui sit rettatus vel publicatus qtcod ipse sit rohator vel murdrator vel latro vel aliquis qui sit receptor rolatorum vel murdratorum vel latronum, postquam dominus rex fuit rex. Et hoc inquirant Justitiw coram se, et vicecomites coram s«."" n Dr. Walther states : " Investig-ations have well settled that the civil jury . . . is older tlianthejuryforthedecisionofcriminalcases,aiid that the latter was formed by analogy from the other." Bluntschli's Staats-Woerterbuch, IX. 346. The reverse was the case with the quasi-jurymen of Rome and Greece, who primarily officiated in criminal trials only.— Vide chap. II. and chap. III. ante. '3 This act of A. D. 1166 is characterized by Stubbs (Select Charters, p. 140) as "a document of the greatest importance to our legal history . . introducing changes into the administration of justice, which were to lead the way to self-government at no distant time "—i. e. by Magna Charta in 1215. The Canon then proceeds to maintain that the knights (milites, cf . chap. IX. note 16), who nominated the recognitors, are the ori- gin of county representatives; and that the necessity of the sberifi, when taking personal property, to have some basis of valuation, first intro- duced the jury system as a machinery of assessment, M Assisa de Clarenduna, § 1. Translation : In the first place the aforesaid King Henry, with the advice of all his barons, for the preservation of peace and the mainte- nance of justice has ordained, that inquiry be made in each county and in each hundred, by twelve lawful men of the hundred and four lawful men of every township— who are sworn to say truly whether in their hun- dred or township there is any man accxised of being or notorious as a GROWTH OF THE CRIMINAL JURY. 139 By virtue of this clause, -writes Stubbs," "twelve law- ful men of eacli hundred, with four lawful men from each township, are sworn to present criminals or reputed criminals of their district, in each county court ; the prisoners so presented being sent at once to the ordeal." In this case, Henry simply utilized the machinery that had existed at least since the time of Edgar," and has been outlined in the previous part of this chapter, "but he adapted it to the principle of recognition ; the twelve lawful men are witnesses, as they were under the older system " — e. a. the vorath and its later modifications or substitutes — "but the process is an inquest under oath, as in the case of the great assize."" And it has been well observed that " the accusation by the commune comitatus was nothing more than the knowledge of the neighborhood {veredictum vicineti), which was constant- ly invoked to decide questions of disputed right, applied to criminal cases, and the statutes of Clarendon merely threw the responsibility upon a smaller number." " The third pillar in the institution of the criminal jury was the Assise or Statute of Northampton, passed 1176, and already referred to in connection with the es- robter or a murderer or a thief, or anybody who is a harborer of robbers or murderers or thieves, since the king began to reign. And this let the justices and the sheriffs inquire, each [ofBoer] before himself. i» Select Charters, pt. I. Similar accusatory juries were prescribed in the Inciuest of Sheriffs (1170) and the Assise of Arms (1181). •6" . . . eapiotureteat ad^isam";— AssisadeClarenduna, §2. II The writer thus continues : " Prom the double character of judge and witness the grand-jury system historically descends ; the permission to traverse the verdict of the grand jury by a new inquest is of later introduction, and is adopted as a consequence of the abolition of the ordeal in the reign of Henry III." See post, note Zi. In England, the jury of presentments for the Liberty of the Savoy (anciently a sanctuary and still a court with peculiar privileges and pro- cedure) consists of sixteen members, like the grand assise. 18 Forsyth, p. 197. 14:0 HISTOEY OF THE JURY SYSTEM. tablishment of the assise and civil jury." This contained the following provision : " Si quis retatus Juerit coram justitiariis domini regis de murdro vel latrocinio vel roberia, vel receptation& liominuvi talia facientium, vel de falsoneria vel iniqua conibustione, per sacramentum duodecim militum de Tiun- dredo — et si milites non adfuerint, per sacramentum duodecim liierorum legalium hominum — et per sacramen- tum quatuor Jiominum de unaquaque villa liimdredi, eat ad judicium aqum, et siperierit alterumpedem amittat." ''' By this statute, therefore, the preceding enactments were re-afBrmed ; with the definite prescription, how- ever, that a person duly indicted by the twelve and thereupon failing to clear himself by the ordeal, was to suffer the loss of one of his limbs. This was the status of the institution at the death of Henry. The next step was taken by Kichard I., whose Ordinance of 1194 provided for the choice of four sworn knights [milites) in each county or shire, who in turn were to choose two for each hundred therein ; the latter two again selected (by co-optation) ten more out of their respective hundred ; and the dozen so chosen constituted the body of presentment for their district. " The plan," writes Stubbs," "partly resembles that used for '9 jimfe, chap. IX. pp. 107-109. !o Tbahslation : If anybody te aecuaed before the king's justices of murder or theft or rohbery, or of harboring men committing these offences, or of forgery or arson, by the oath of twelve knights of the hundred— and if there are no knights, upon the oath of twelve free and lawful men— and by the oath of four men of each township in the hun- dred, let him be subjected to the ordeal by water, and, if he fail therein, suffer the loss of one foot. 21 Stubbs, Select Charters, 27; Hog. Hovenden, 423. of. chap. IX. note W. "These recognitors were obviously witnesses," says Stephen (Hist. Grim. X.aw, I. 256) "as appears from the account given of their proceed- ings " by Glanville, u, 17. GROWTH OF THE OEIMINAL JUET. 141 the nomination of recognitors for the grand assize, and was likewise a check on the power of the sheriff, to whom the nomination seems to have before belonged." In the time of Edward I., however, this privilege was restored to that officer, for it appears that then each bailiff, in anticipation of the advent of the justices in eyre, was to choose four knights, by whom were selected duodecim de melioribus hominis of the bailiwick, to pre- sent under oath to the justices the names of all crimi- nal offenders." These twelve "inconsequence of the oath which they took . . . were called the jurata patricB . . . and for a long time seem to have united the two functions of a grand jury to accuse, and a petit jury to try the accused."" The trial of an accused person by the grand jury itself, though objectionable for uniting in one body the functions of accuser and trier, was certainly preferable to that dangerous and dubious mode of vindication, the ordeal, and probably prevailed in the last quarter of the twelfth and in the first quarter of the thirteenth cen- tury. Earlier already, as a result of the Statutes of Henry II., " the adoption of presentment and ordeal had the effect of abolishing the practice of compurga- tion in the shire-moots. . . . The ordeal in these circumstances, being a resource following the verdict of a [grand] jury acquainted with the fact, could only be «« Fleta, I. o. 19. «3 Forsyth, p. 198. In another place (p. 214) the same authority observes : "These jurors were the representatives of and substitutes for the fama pMrice, or pub- lic rumour, by which in old times when a man was assailed he was said to be male creditus, and was thereupon arrested and put upon his trial. . . . For some time there appears to have been no distinction between this accusing jury and the trying jury." cf . ante, p. 135. 142 HISTOKY OF THE JUEY SYSTEM. applied to those who were to all intents and purposes proved to be guilty. The abolition of the ordeal by the Lateran Council ia 1215 [the year of Magna Charta]'* and the impossibility of securing perfect jiTstice"' by the machinery of the grand jiiry, led the way to the usage of a second [the p'etit] or trial jury, to traverse the de- cisions of the former."" In the reign of John we first begin to trace the use of juries — -i. e. petit juries — for the trial of criminal accu- sations." At first it seems to have been procured by the accused as a special favor from the crown, a fine, or some gift or consideration, being paid in order to pur- 24 "The immediate external impetus for the reform was given by the Fourth Lateran Council of Innocent III. by which the clergy was di- rectly forbidden, with express reference to the previous prohibition of the duel, from participating (as was its custom) in the ceremonial of the ordeal. ... It became necessary, therefore, to devise a substitute for the ordeals, which would provide the accused with other means for defend- ing himself and proving his innocence. . . . Hence we already in 1^1 meet with an institution analogous to the civil jury, so that in cases, to which heretofore the ordeal was applicable, the guilt or innocence of the accused was decided by the verdict of twelve sworn men of the vicinage (veredietum patrks)." Bluntschli, Staats-Woert. IX. p. 349. Stephen, (Hist. Crim. Law, 1. 253, note) instances a case as late as 1679, when Gavan, one of the five Jesuits involved in the Popish Plot, offered "to put him- self upon the trial of ordeal." WMtebread's Case, 7 How. St. Tr. 388. 25 Hence the ancient legists with great solemnity Invoke the judges to "take good heed in inquisitions touching life and limb, that they dili- gently examine the jurors from what source they obtain their knowl- edge, lest per adventure by their negligence in this respect Barabbas should be released and Jesus be crucifled." Bracton, III. c. 18; Fleta, I.c.31. On the other hand, it is reported in a curious old case that "the jurors acquitted a prisoner contrary to the evidence, and for that they were fined and imprisoned, and bound for the good behavior of the prisoner during his life." Wharton's Case, Noy, 48. [Contrast herewith p. 150.] 26 Stubbs, Select Charters, 143. But not without weighty antagonism. Thus we read in the Mirror of Justices of Andrew Home, fish-monger and town clerk of London : " It is an abuse that the justices drive a true man to be tried by the country, when he is ready to defend himself ... by battle." 21 Palgrave, Bng. Com. II. 186; of. Bracton, 143 B. GROWTH OF THE CEIMINAL JUKT. 143 cliase the privilege of a trial ty jury. Art. 36 of Magna Charta declared that such writs shall no longer be sold, but be of right. It appears from Bracton and Fleta " that at the end of the thirteenth century the trial by jury in criminal cases had become usual," the form of the proceeding being given by them in detail. Thus, in a case reported in the Year Books in 1303 (30 & 31 Bdw. I. 52S) — ten years after the oldest one extant — a stable keeper had been kicked to death by the horse of one John, and the latter was duly put to trial, charged with burying the stabler without a coro- ner's inquest and with retaining possession of the horse, although it had become a " deodand" — which was the designation anciently given to a chattel that had imme- diately caused the death of a person, and was deemed forfeited to the crown for pious uses. The accused de- nied both charges and put himself on the jurata patrim for trial. Both parties were represented by counsel. Several challenges were made, and — in accordance with a very early custom, long and tenaciously adhered to, — tried by the unchallenged jurors {trielantur per residues de duodedrri): which practice is worthy of note, because the jurors so examined as to their competence are the 28 "In the time of Bracton . . . the appellee had the option of either fighting with his adversary, or putting himself upon his country for trial (p. 202) ... At first . . . the accused was not entitled to it as a matter of right, but rather hy the Wng's grace and favor, to he purchased by the payment of a certain sum of money or a gift of chat- tels." (p. 200). Forsyth, Trial by Jury. In the King's courts, compurga- tion (5 Harv. L. Eev. 263, 265) is said to have been done away with by the Assise of Clarendon. 29 A curious exception to the right of trial by petit jury existed, at common law. In cases of secret poisoning, where the accused was usu- ally obliged to defend himself by combat— "because," says Bracton (bk. m. c. 18) "the country can know nothing of the fact." 144 HISTORY OF THE JUKY SYSTEM. earliest instance of witnesses publicly testifying before a jury, and the practice supplied a precedent for per- mitting the testimony of other witnesses to be similarly heard at a later period. The judge's quaint charge to the jurors — ^who were then wont to be addressed, "good people " {loni homines) — is preserved : "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 yon 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." The record of this case leaves it in doubt, whether the accusing and the trying jury consisted of the same individuals, or were separate and distinct bodies. The causes that led to the gradual extension of the system of recognitions to criminal cases, and the insti- tution of the criminal jury, have been most ably traced and treated by Brunner,^" and his account may be sum- marized as follows: The legislation of Henry II. — here- tofore set forth — provided for recognitions in civil cases and for juries of accusation [grand juries], but not for criminal triers. As has been seen, however, a practice arose, early in the thirteenth century, to allow an accused (for a consideration) a jury in criminal cases, whenever he asked for it. About the same time, the fourth Lat- 30 Soh-wurgerioht 369-375 et al. cf . Forsyth, Trial by Jury, 3U ; Stephen, Hiat. Criin. Law, I. 353, 354. GEOWTH OF THE CRIMINAL JUEY, 145 eran Council, by forbidding the participation of eccle- siastics in ordeals, drew the ground from under that mode of trial. With the law so unsettled, the judges when next proceeding — on eyre — to their respectiTe ju- risdictions, were in 1219, by a ' temporary ordinance ' of the King's council (Palgrave, Eng. Com. I. 366) Tested with large discretionary powers "to act wisely according to the special circumstances of each case . . . with persons accused of crime," and to clap in prison (pend- ing trial) those most seriously accused, but not so as to imperil life or limb. Eeluctant to encourage trial by duel, the Judges naturally turned to the inquest as the only available alternative. Having once decided on this expedient, it was not long left to the option of an accused to be thus tried or otherwise. Inasmuch as the jury was treated as a substitute for the ordeal — which a homicide taken in flight (Glanv. XIV. cc. 3, 6) or one sixty years old or a woman or maimed (Bract. III. cc. 21, 22) had always been compelled to undergo against his will — the judges now, analogously, sometimes forced a jury on an unwilling prisoner (cogendus quod se defendat per pat- riam) and several persons were thus convicted and hanged. The recusation of jury trial by an "appellee" (as the accused was then technically termed, the prosecuting witness being the "approver" or appellant) arose of course not "from love of the common law" — to which cause Blackstone (Com. bk. I. c. 15) delicately attri- butes the reluctance of " the lower rank of" Englishmen to relinquish "their ancient privilege" of wife-beating, — but from well-founded apprehension that, if his record was malodorous or the evidence of his guilt reasonably 10 146 HISTOEY OF THE JUET SYSTEM. certain, lie stood little or no chance to clear himself {se purgare) by "the country" (who were liable to be punished for an unwarranted acquittal) but might es- cape by hazarding himself in battle {per duellum), or waging his law (vadiare legem). One method of judicial compulsion, which prevailed to the middle of the thirteenth century, was to treat an accused as confessing, if he refused to be tried by jury. This seems to haye been based on a sort of forced analogy with the practice — referred to in Bracton's Note Book (II. cas. 136, 138, 1724) — of hanging without any trial at all criminals taken in the act; the court holding that in such cases non est opus alia proiatione, and adjudging non potest defender e, suspendatttr ["Being unable to de- fend himself, let him be hanged!"] But these irregular practices were not long counte- nanced. In 1375, the Statute of Westminster I. (3 Edw. I. c. 12) was enacted, providing that " notorious felons . . who will not put themselves on inquest for fel- onies . . shall be put in strong and hard imprison- ment as refusing the common law of the land." This impliedly recognizes the necessity of consent, but ex- pressly prescribes fhe peine forte et dure as a penalty for refusing to be tried by a jury, or for declining to plead guilty ("standing mute") to the charge. The character of this alternative may be gathered from Blackstone: "The English judgment of penance for standing mute was as follows: that the prisoner be re- manded to the prison from whence he came; and put in a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of GEOWTH OF THE CEIMINAL JUET. 14:7 iron as he could bear, and more; that he have no suste- nance, save [on alternate days] . . three morsels of the worst bread, and . . three draughts of standing water . . ; and in this situation "the prisoner should remain "till he died or (as anciently the judgment ran) till he answered." And such penance was imposed "with- out any distinction of sex or degree," after a prisoner had been thrice admonished and informed of his fate in court, and, after all, was allowed the benefit of clergy: "thus tender was the law of inflicting this terrible pun- ishment." (Com. bk. IV. c. 25.) More harrowing details may be found in Pike's History of Crime in Eng. (vol. 11. pp. 194, 195, 283-385). And in the face of all this, Sir Edward Coke (Inst. I. fol. 976) blandly proclaims: " The law is the perfection of reason." Yet these bar- barous practices — endured by many persons, often inno- cent, but apprehensive of a miscarriage of justice, in view of the fact that one not formally adjudged guilty did not forfeit his lands to the crown, — were indulged in England from about 1300 to 1772, when it was pro- vided (by stat. 12 Geo. III. c. 20) that all persons who, on their arraignment for felony or piracy shall stand mute or not answer directly to the offense, shall be held convicted as if by verdict or confession, and judgment and execution shall be awarded accordingly, Finally, in 1827, the rules that had been advocated by Bracton, and to some extent followed by the courts, five centuries ago, were enacted into law by stat. 7 & 8 Geo. IV. c. 28, as follows: " If any person, not having the privilege of peerage, being arraigned upon any indictment for trea- son, felony or piracy, shall plead thereto a plea of guilty, he shall by such plea . . be deemed to put himself 148 HISTOET OF THE JUET SYSTEM. upon the country for trial " (§ 1) ; and if such person stands mute of malice, or will not answer directly to the charge, a plea of not guilty may be entered for him, and the plea so entered has the same effect as if the prisoner had actually pleaded (§ 3). "This is also," says Chase (Bl. Com. note to p. 1017) "the general pra ctice in the states of this country." In the reign of Edward III., the separation of the grand and petit jury was an established factor in English criminal jurisprudence. Statute 35 Edw. III. c. 3 proTiding (A. D. 1353) that "no indictor shall be put in inquests upon deliTerance of the indictees of fel- onies or trespass, if he be challenged for such cause by him who is indicted." In other words, no grand juror could also act as trial juror in the same case, if objected to by the accused. After the various enactments enu- merated and changes referred to, it was only a question of time to dispense with the service of the Isnights who acted as elisors, and by a precept of the court directly to authorize the sherifE" of each county to return the name of twenty-four or more persons from whom the grand jury is chosen — which number gradually settled to twenty-three (or one less than two full petit juries), a majority of whom must consent in order to frame a valid indictment; whence it became the custom that, however many attend or actually officiate, twelve at least must concur in presenting an offender." 21 Thus, by the statute of New York, a grand jury must consist of not lees than sixteen nor more than twenty-three members, and (in any case) twelve must concur in order to frame a valid indictment. In Massachu- setts, the limits are thirteen and twenty-three respectively. Its prov- ince is to determine whether indictments shall be brought against alleged criminal offenders. GKOWTH OS" THE GEIMINAL JUKT. 149' According to Hargrave (1 State Trials, 407) anciently,, and especially in the reign of Henry VIII. — Oarlyle's "Hateful Harry" — when the influence of the crown was at its zenith, " to be accused of a crime against the state and to be convicted, were almost the same- thing." A conspicuous exception to this rule was the case of Sir Nicholas Throckmorton {Id. 869) tried in 1554 for high treason, and who conducted his own defense with consummate skill, energy, and presence of mind; for the common law right of a party to appear by counsel did originally not extend to treason or felony — on the singular assumption that the judges (the creatures of the crown) would amply adyise and protect the prisoner, and the curious reasoning that if he were guilty he ought not, and if innocent need not, hare professional advice. As a matter of fact, in this case, as was the rule in those days, court and prosecution combined to contrive the conviction of the prisoner "by persuasions, enforce- ments, presumptions, applying, implying, inferring, conjecturing, deducing of arguments, wresting and ex- ceeding the law, the circumstances, the depositions and confessions." Ibid. But the jury was made of sterner stuff than usual, and after deliberating two hours, acquitted the prisoner. Bromley, Lord Chief Justice, then descended to the level of remonstrating with them, but in vain; and (whereas Griffin, Attorney 'General, had asked that each juror be bound in bhe sum of £500 "to answer to such matters as they shall be charged with in the Queen's behalf") the court went to the extreme of emphasizing 150 HISTORY OF THE JUET SYSTEM. its dissatisfaction with the Terdict by committing the jury to prison." Finally "eight of them (four having submitted and apologized) were brought before the Star Chamber in October (six months and more after the trial) and dis- charged on the payment by way of fiue of £220 apiece, and three, who were not worth so much, of £60 apiece." (Stephen, Hist. Crim. Law, c. XL) The fine of the fore- man and another Juror had at first been fixed at £3000. It is worthy of note that the reverse of this procedure sometimes occurred. Thus Sir Thomas Smith (temp. Elizabeth) mentions a jury whose members were both imprisoned and heavily fined for convicting a defendant of treason contra pleiiam et manifestam evidentiam, (Eng. Com. III. c. I). Another notable acquittal was that of the Seven Bishops in 1688 (13 St. Tr. 183-431), the verdict wherein finally vindicated the independence of the Church of England from pontifical supremacy. " Introduced originally as a matter of favor and in- dulgence," the jury thus "gained ground with advanc- ing civilization, gradually superseding the more ancient and barbarous customs of battle, ordeal, and wager of law, until at length it became, both in civil and crimi- nal cases, the ordinary mode of determining facts for judicial purposes."" 32 Bunyan may have had such practices in mind, -when (in the first part of Pilgrim's Progress, pub. about 1675) Lord Hategood, who presides at the trial of Faithful, thus harangues the prisoner: "Thou runagate {renegade] heretic and traitor, hast thou heard what these honest gen- tlemen"— namely, Envy, Superstition and Pickthaui;,— " have witnessed against thee 7 " And again : " Sirrah, sirrah, thou deservest to live no longer, but to be slain immediately upon the place ; yet that all men may see our gentleness toward thee, let us hear what thou, vile runagate, hast to say." FOr the names of the jurors, vide chap. XII. end of note 55. 33 Maoclachlan, Eng. Cycl. III. 26. GROWTH OF THE CEIMINAL JUET. 151 In the dual form whose growth we have described, the criminal jury existed in the American Colonies of England from the first establishment of an organized government among them; for this, like the civil jury and other political institutions of the motherland, was regarded by the English settlers on the Atlantic coast as an invaluable heritage, and thus firmly established as a juridical factor long before the rise of the United States. In the Declaration of Independence, George III. is arraigned because "he has combined with others, to subject us to a jurisdiction foreign to our [colonial] constitutions, and unacknowledged by our laws; giving his assent to their acts of pretended legislation . , . for depriving us, in many cases, of the benefit of trial by jury." The framers of the Constitution, too, must have looked upon it as an institution which should be preserved while society exists" — and not as one which (as they said of the civil jury) changes in society may cause to be superseded by different modes of trial. °' Accordingly while, as has before been noted, the body of the Constitution contains no provision relative to the perpetuation of the civil jury, a section in that docu- ment explicitly prescribes that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said " Says Pomeroy: "The grand juryi carefully preserved by our Na- tional and state constitutions, appears to be an invincible barrier against official oppression, by making the private citizens themselves the originators of all important accusations; the indictment is a safeguard against unfair concealment and surprises on the trial; while the jury, who must pass upon the questions of guilt or innocence, being drawn from the people, will naturally strive at once to preserve the law invio- late and shield the prisoner from injustice." Mun. Law, § 215. As to Grand Jury in United States, of. Burgess, Pol. Soi. 1. 187, 188. 36 Cf . chap. IX. p. 130. 152 HISTOEY OF THE JTJEY SYSTEM. crimes shall have been committed; but when not com- mitted within any state, the trial shall be at such place or places as the Congress may by law have directed.'"^ And, to make assurance doubly sure, this provision was by constitutional amendment elaborated as follows: "In all criminal prosecutions, the accused shall en- joy the right to a speedy and public trial, by an impar- tial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory pro- cess for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."" Corresponding provisions were embodied by the va- rious states in their constitutions, of which that of New York," being particularly full and explicit, may be quoted as representative of all: "No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service; and the land and naval forces in time of war, or which this state may keep with the con- sent of Congress in time of peace; and in cases of petit larceny, "^ under the regulation of the legislature) unless 36 U. S. Const, art. HI. §§ 2, 3. SI U. S. Const. Amendment VI. »8 N. Y. Const, art. I. § 6. 3» A seeming exception to the constitntionaT gnarantees of trial ty jury exists in the statutory provisions of the various states, prescribing the trial of cases of larceny, vagrancy, idleness, profanity, inebriety, disorder or riotous conduct, before and by justices of the peace and police magistrates. Such statutes are held to be constitutional, though they dispense with trial by jury; since they simply tend to continue and perpetuate a practice prevailing at common law from time immemorial. Duffy y. People, 1 Hill, 355, 6 Hill, 75; FeopU v. MoCarOiy, 45 How. Pr. 97. GROWTH OF THE OEIMLNAi JURY. 153 on preisentment or indictment of a grand jury; and in any trial in any court whatever the party accused shall he allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to he twice put in jeopardy" for the same offense; nor But this power of conviction without a jury cannot be extended to classes of cases other than those in which it has been ordinarily and cus- tomarily employed. Wynehamer v. People, 13 N. Y. 378; Hill v. People, 20 N. T. 363; BaMivin v. New Tork, i2 Barb. 649. The course of procedure prescribed by these statutes must be strictly observed. BeaMestone v. Sprague, 6 Johns. 101. of. Stat. 42 and 43 Vict., cap. 49. Similarly, deserters from the Tederal army or navy are not entitled to trial by a jury, but are subject to the summary process and Draconic methods of military law. In connection with these summary proceediugrs, reference may be made to the causes, for which the superior courts exercise their power of punishing contempts, by an attachment of the person, so far as jurors are concerned. The offenses that render them amenable to this disci- plinary power, as enumerated by BJaclcstone, are: "Those committed by jurymen, in collateral matters relating to the discharge of their office; such as making default when summoned, refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party [cf . chap. XII. p. 190]; and other misbehavior or irregularity of a similar kind; but not in mere exercise of their judicial capacities, as by giving a false or erroneous verdict." Bl. Com. c. XX. This power to punish for contempt any person, guilty of wilful dis- obedience to its lawful mandate or offending its dignity by misconduct in open court, is an inherent prerogative of the judiciary. *o But a prisoner is not "put in jeopardy," where the indictment was too defective to sustain a valid judgment. Confer v. People, 1 Abb. App.Dec. 305 (construing 2 N. Y. Rev. Stat. 701, § 24). Nor was this a bar at common law. Kussell, Crimes. 836; People v. BcDrrett, 1 Johns. 66. So, in case of disagreement, the jury may be discharged by the court and the accused subjected to a new trial. People v. Goodwin, 18 Johns. 187; People v.Reagle, 60 Barb. 527. A new trial, however, cannot be granted where the accused has been acquitted of a felony. People v. Comstocfc, 8 Wend. 549. Nor will a writ of error lie, at the suit of the people, after judgment for the defendant in a criminal case. People v. Corning, 2 N. Y. 9. cf . Bex v. Jones, 8 Mod. 201 (decided 1724). A prisoner sentenced upon a regular trial and conviction, cannot be re-tried. Shepherd v. People, 25 N. Y. 406. of. Batzhy v. People, 29 N. Y. 154. HISTOBY OP THE JURY SYSTEM. shall he be compelled in any criminal case to be a wit- ness against himself;" nor be deprived of life, liberty, oi property without due process of law."" Concerning the (criminal) jury in other countries, where it has been adopted in imitation and emulation of 124 ; Kring v. Missouri, 107 TJ. S. 221, 27 L. ed. 506 ; and vide Hare's Am. Const. Law, 565-571, for a general consideration of the interpretation giren to the phrase " twice put in jeopardy " and kindred questions. But conviction for assault and battery is no bar to indictment for murder, where the person assaulted subsequently dies of the blows. Bums V. People, 1 Park. Crim. Eep. 182. Where a conviction is reversed at the suit of the prisoner, a new trial may be ordered. People v. RvXlof, 5 Park. Crim. Rep. 77. 41 An act requiring parties to make discovery on oath concerning- an indictable offense, but forbidding the answers from being used in evi- dence against said parties, is constitutional. Perrine v. Striker, 7 Paige 598, 4 L. ed. 293. Nor is a person protected from testifying in a criminal case against another, on the ground that his testimony may tend to im- plicate him in a crime, provided he is protected by statute against the use of such testimony on his own trial. People v. Keily, 24 N. Y. 74. A prisoner, by offering himself as a witness, may waive the constitutional privilege. Connors v. People, 50 N. Y. 240. « "Due process of law" simply requires that a party shall have his day in court; the legislature may take away a particular remedy and give a new one. People v. Essex County Supra. 70 N. Y. 228. However, a trial by twelve jurors can not legally be waived by the prisoner in a criminal case. Cancemi v. People, 18 N. Y. 128. [See also, in this connec- tion, chap. XI. note 18.] In the interesting case of Michael Cancemi, which was tried in 1858, one of the jurors was allowed to withdraw and the trial to proceed with the remaining eleven, by the express consent of the prisoner, made in open court. The prisoner applied to the general term of the supreme court for arrest of judgment, claiming that he had been tried and convicted "by a tribunal unknown to the common law and the Constitution;" but the court (per Davies, P. J.) announced to the prisoner that, since "it ap- pears that one of the jurors was withdrawn at your own request and for your own benefit, and at your request the trial proceeded with the remain- ing jurors— wethink, therefore, thatunderthesecircumstances ... it is our duty to proceed and pronounce judgment." Defendant's counsel then carried the case to the court of appeals, and submitted: "That in civil cases, the right of a party interested to waive the forms of of law, and with these trial by jury, is expressly conceded by the consti- tution [of New York]. . . . GROWTH OF THE CEIMINAL JUET. 155 the English system, a few observations may here be added. In the sister country, Scotland, the jury system ex- isted from an early date through the influence of English precedent and was re-afBrmed by appropriate legislation after the union of the two countries in 1603. In criminal cases, the jury has always consisted of 15 persons, a majority of whom is sufficient to convict. A civil jury "was reintroduced into Scotland by 15 George That in criminal eases, particularly felonies, there can be no waiver of atrial by jury, and a party capitally accused cannot submit his case to arbitration, or to any other tribunal than one expressly created by law to try it; nor can the said tribunal be constituted in any other manner than that ordained by law; hence, when the law prescribes that an ac- cused shall be tried by twelve men, he cannot bargain that he shall be tried by live, or ten, or by the judge, without the intervention of any jury at all." Among the authorities cited in support of this position, were the following: "The petit jury must consist precisely of twelve, and is never to be either more or less, and this fact it is necessary to insert upon the record; if, therefore, the number returned beZess than twelve, any verdict must be ineffectual, and the judgment wiU be reversed for error." 1 Chitty, Crim. Law 505. "Twelve jurors must appear on the record to have rendered their ver- dict, otherwise it is eiTOr." Per Mansfield, J., in Bex v. St. Michael, 2 W. Bl. 719. "If only eleven jurors be sworn by mistaie, no verdict can be taken of the eleven; and if it be, it is error." 2 Hale, P. C. 296. "If one of the jurors be sick,so that he cannot deliberate, and a verdict be taken, it is the verdict of the other eleven and will be set aside." Den V. Baldwin, 3 N. J. L. 501. "Judgment was arrested, where it appeared that a case had been tried by thirteen jurors." Wharton, Crim. Law (1846) 618; State v. Fort, 1 N. C. Law Eepos. 510; WTiitehurst v. Davis, Z Hayw. (N. C.) 113. In the last case, per curiam : "It may be said, if thirteen concur in a verdict, twelve must necessarily have given their assent. But any innovation amounting in the least degree to a departure from the ancient mode," must be discountenanced. "A jury must consist of twelve men— no other number is known to the law." Dixon v. Bicharcls, 2 How. (Miss.) 771. See to same effect JoJilison V. State, 6 Blackf . 461; Base v. StaU, 20 Ohio, 31 ; TTorfc v. State, 2 Ohio St. -•!16; Carson v. Com. 1 A. K. Marsh. 290. 156 HISTOEY OF THE JUEY SYSTEM. III. c. 42, in a special court established for the pur- pose," but subsequently abolished." Since 1815, it consists of twelve men, who curiously enough (in contradistinction from the criminal body) were required to be unanimous, until a statute" passed in the reign of the present sovereign prescribed that the verdict of three fourths is to be considered that of the whole body. In Ireland, and in almost all the colonies of Great Britain, the Jury exists substantially as in the mother country.** In Portugal, the number of the jury was limited to eix (by Act of 1838) while a verdict must receive the assent of at least two thirds, leaving it still incumbent on the judge (if he deem it incorrect) to annul it and refer the question to another jury." In Belgium, trial by jury for all criminal and political In accordance with these tenets, the judgment of the general term was set aside, the court of appeals holding substantially that (as submitted by defendant) the law permits a waiver of trial by jury in civU cases, be- cause this concerns only private interests; but it allows no bargain or stipulation of individuals to afleot "the cherished and great principle of trial by jury in criminal cases, which prescribes a Known, certain, uni- form, and permanent rule, that neither legislators, judges, nor citizens can transgress, alter or infringe." •13 Cycl. Pol. Sci. II. 660.' Before 1850, there was practically no oral argument in the Scotch courts, litigation being almost entirely con- ducted by means of written pleadings and briefs, called ' 'minutes of debates." 41 22 & 23 Vict. o. 1. « Cycl. Pol. Sci. n. 660. In Wales the jury originally (by a special statute of Henry VIII.) consisted of six; whereas a Cornish cusUjm to the same effect was (in 1652) declared bad. By recent legislative changes, juries of five have been introduced in the English county courts— an innovation of problematical value. ■•6 Forsyth, c. ZVI. But a more recent authority— H. Moi'se Stephens art. Portugal, in Encyclopsedia Britannioa— does not mention the exist- ence of a jury in Portugal. GKOWTH OF THE OEIMINAL JURY. 157 charges, and for ofEenses of the press, has been consti- tutionally guaranteed ever since its separation from Holland." It was introduced in 1834-, and guaranteed by the constitution of 184.4, in Greece — whose legal system is based on that of Bavaria, the first king (Otho) having been of the house of Wittelsbach." Italy also provides for trial by jury in criminal causes, a majority being sufficient to convict; "but there seems good reason to question the fitness of a large part of the population for the exercise of the functions. . . . ' Not guilty, with extenuating circumstances ' is an amusing but suggestive verdict."" In Sweden, a jury "is never summoned except in cases affecting the liberty of the press ;" but in the country districts there is a curious tribunal, "consisting of a judge and seven to twelve assessors elected by the people, who, if they are unanimously of an opinion different from that of the judge, can outvote him.'"° This form of jury has existed there for many centuries ; a verdict is given by one half of its members, or any greater number, and the judge ; while, when the major- ity is opposed by a minority and the judge, a new trial must take place." In Norway, trial by jury in crimiaal cases was estab- « Bnc. Brit. III. 516. "id., XI. 85. « Id., XIII. 462. But see Morehead v. Brown, 35 N. T. S. E. 766, where, in an action brought by overseers of the poor, to recover a penalty for selling hard cider without a license— the intelligent jury returned, and the appellate court sustained,— a verdict : " We flnde the def ende of two offenses, fifty dollars each." MJ(J., XXII.TIS. 61 Yeaman, The Study of Government, o. XIII. 158 HISTOET OF THE JTIET SYSTEM. listed by law dated Jnly 1, 1887. A majority may render the verdict. In Eussia, the judicial system established by ukase in 1864 — well conceived but poorly executed — provides for elective justices of the peace who decide all controversies involving less than 500 roubles (about three hundred dollars) and all cases of crime punishable by less than six months' imprisonment. "All criminal cases involv- ing severer penalties are tried by juries, whose verdicts can be set aside only by a court of cassation, but are not respected in cases having a so-called 'political' aspect. Political offenses are tried by tribunals com- posed ad Jioc." " In Switzerland, all crimes against the confederation must be tried by jury. The trial of other crimes de- pends on the law of each canton. In Geneva, for instance, a jury exists, which may render a verdict of 'guilty under extenuating circumstances' or guilty ' under very extenuating circumstances.' " And the same authority states that the jury system is in vogue in all the South American states — in criminal cases — their civil jurisprudence being based on the Eoman law. It also prevails in the Hawaiian Islands, whose laws provide for a jury of twelve in both civil and criminal cases, nine of whom may render a verdict. In France," no civil jury or grand jury exists ; while 52 Bno. Brit. XXI. 71. «3Cycl. Pol. Soi. 11.660. M Already iB 1789, Siey6s, in his celeljrated treatise, 'Qu'est ce que le tiers-etat?' said: Lejiigement par juris est U veritable garantde la liberty individueUe en Anglelerre et dans tous Us pays du monde, ou Von aspirera. a etre libre. GEOWTH OF THE CEIMINAJL J0ET. 159 in criminal cases, jury trial is constitutionally guaran- teed in cases of felony only. It was originally established by decree of the Constituent Assembly, September 16, 1791. The trial jurors now "miist vote by secret ballot, and if they find the prisoner guilty by a bare majority, they must state this in their verdict. A similar operation must be gone through with on the questions, whether there are extenuating or aggravating circumstances; whether the fact admits of legal excuse; or whether the prisoner was competent to distinguish right from wrong when he committed the act." " The French in 1791 introduced the criminal jury into the Khenish provinces, which they occupied and main- tained throughout the Napoleonic era, thus familiariz- ing the Germans with the institution. It became so popular that ^thereafter the Prussian government con- cluded to tolerate the institution, and confirmed its establishment by royal decree in 1819; though in Prussia proper it received no foothold until Frederick William IV. promulgated the law of January 3, 1849, as one consequence of the revolution of 1848. "But political ofEenses were withdrawn from its operation in 1851." "^ It was constitutionally recognized by Bavaria and Hesse in 1848, by Wurtemberg and Baden in 1849, and by Austria in 1850. In the latter country felonies only are triable by jury, and eight must concur in order to convict. In Prussia, there was no jury of accusation, corre- sponding to our grand jury, but the public prosecutor for the district presented offenders to the court. The " Forsyth, c. XV; " Cyol. Pol. Soj. II. 660, 160 HISTORY OF THE JUBY SYSTEM. trial jury consisted of twelve, who might give a verdict by a majority ; in case of a bare majority, however, the court could decide ; and where the court was satisfied that a verdict of guilty was erroneously given, it could annul and order a new trial. " When the adoption of an imperial code for the new Empire was pending, Prussia first projDosed the substitu- tion of trial by a judge and assessors, but finally it was guaranteed in all criminal cases "except treason, politi- cal crimes, and offenses of the press."" The German bar association, at its session of 1879, discussed at some length the advisability of transplant- ing the English civil jury to Germany, but deemed it inexpedient — the prevailing opinion being that the change was of too radical a nature to be engrafted on the German judicial system ; while others considered the merits and defects of the civil jury to be so evenly balanced as to render it inadvisable for adoption, since Incidis in Scyllam, cupiens vitare Charytdim. By the code, the power to determine questions both of law and fact is vested in a presiding law-judge, with whom are associated two lay- judges or schoffen [smSiwi]." 6' IMcl. Questions involTing the infringement of a Prussian copyright -were " decided X>y a jury of 'expert^,' long before the general introduc- tion of the jury in that country." Lisher, CiT. Lib. note at p. 234. ss Ibid. The jurors choose the foreman (Strafprocess-Ordnung, § 30i), and a two thirds vote is required to convict (Id. §§ 263, 307). Court, prosecutor or defendant may submit to the jury the question of mitigating circum- stances, the existence whereof shall not be deemed denied, unless seven jurors concur to that effect (Id. §§ 297, 307). The court may reverse the verdict, if in its opinion the jurors have erred to the detriment of the accused (Id. §317). 59 New Jersey presents the anomaly of having a number of lay judges sitting in its highest tribunal— the Court of Errors and Appeals. In each county, moreover, there is a court of common pleas— whose main function is to try criminal offenses of inferior degree— presided over by GEOWTH or THE CEIMINAL JUET. 161 In criminal cases, on the other hand, the efficacy of a jury was generally acknowledged," the provision of the Prussian system being essentially re-embodied in the German Code. For here even the most strenuous supporters of judi- cial superiority must acknowledge the paramount neces- sity of having the question of guilt or innocence decided by one's fellows. In the words of De Lolme :" "Though an accused person may be exposed to have his fate de- cided by persons [the petit jury] who possess not, per- haps, all that sagacity ■which in some delicate cases it is particularly advantageous to meet with in a judge, yet this inconvenience is amply compensated by the exten- sive means of defense with whicli the law has provided him. If a juryman does not possess that expertness which is the result of long practice, yet neither does he bring to judgment that hardness of heart which is, more or less, also the consequence of it." . . . The insti- a law judKC with whom two lay judges are asEOCiated. Inaanmoh as the former Is the predominating factor, the other two are in popular language rather irreverently but graphically styled " wooden judges." 60 As far hack as 1831, Eudhart wrote : " The jury should not only he considered as an excellent means for familiarizing the people with the laws and elevating puhlic life, . . . hut as an essential factor in the constitution of a limited monarchy and an indispensable preservative of the independence and purity of the administration of justice. . . . Public freedom and equity in criminal procedure demand, that the power to convict and the power to punish shall not be united in one person . . . ThebeUef that salaried magistrates are too dependent on the government, affects the reputation of courts and of the administra- tion of justice, which should not only be pure and undeflled, hut should be placed abcme the possibility of a suspicion that it is not so." Cited in Bluntsohli's Staats-Woerterbuoh, art. ' Sehwurgerioht,' . IX. p. 344. And to the same effect (1856) Mitterraaier, Legislation and Practico with Beference to the Penal Trial. 6> Eng. Const, c. XIII. «2 Hence there is— observes Mr. J. Hampden Doughtery, in a paper on "liBgal Dogmatism, Subject of Insanity," published in The Counsellor 11 162 HISTORY OF THE JtJKY SYSTEM. tation in question was established by human wisdom, and is exercised by human agents, and of course is sub- ject to the frailties incident to man and to all his works." (N. Y.) Nov., 1893— a growing tendency in criminal cases, wliere insanity- is interposed as a defense, to leave to the jury the decision of the ques- tion, whether the accused is of sound or unsound mind, as a plain ques- tion of fact, "precisely as the issue which is tendered in every civil case involving mental disorder." cf. ante, p. 133. The old test of sanity— the ability of a person to distinguish right from' wrong- is likewise being gradually repudiated in law, as it has long been discountenanced by the best alienists in medicine. The better doctrine is laid down by Judge John F. Dillon, to the. effect that it is " not sufB- cient to hold the prisoner responsible, that he was able to discriminate right from wrong at the time of the commission of the offense, but that in convicting him the jury must find also that he had the power t<> control his insane impulses." State v. Fdter, 25 Iowa, 67; cf. N. Y. Penal Code, § 21. CHAPTEE XL ON THE MEA.NING OP JUDICIUM PAEIUM. It is a popular fallacy, and one shared even by some legal writers and tacitly acquiesced in by others,' that trial by jury owes, if not its institution, at least its per- manent establishment as a feature in our judicial system, to the following clause in Magna Charta, that great charter of English liberties forced on King John by his barons at Runnymede in 1215 : "Nullus liber homo capiatur, vel imprisonetur, aut ' Thus Blaokstone (Com. m. c. XXm.) ; and Western, in his edition of De liOlme (1841), which was dedicated to, and prepared "with the view of affording useful information to all classes of the subjects of," Her Majesty, permits his author without comment to state that "It was made one of the articles of Magna Charta, that the executive power should not touch the person of the subject hu t in consequence of a judg- ment passed on him hy his peers ; and so great was afterwards the gen- eral union in maintaining this law, that the trial by jury , , . hath been preserved to this day." Eng. Const, bk. II. c. XI. S 2. Even so excellent a scholar as Prof. Pomeroy (Mun. Law, 9 490) seems to share this error. "To the general civilization," he writes, "feudalism has doubtless bequeathed, although it did not originate, the idea that the whole people should interfere in pronouncing judgment between litigant parties, that is, the right of being tried by one's peers. . . . The territorial feudal courts, which were held by each suzerain, were attended by the holders of flefs or pares, who took a part in the actual ^determination of justice between individuals"— leaving it to be inferred that thev are the lineal predecessors of modern jurymen. J. I. C. Hare (as late as 1889) contends " that due process of law is equivalent to the judgment of his peers and law of the land of Magna Charta. The judicium parium suorum was not, as the majority of the court in Hwrtado v. Calif omia, HO TJ. S. 516, 529, 28 L. ed. 832, 236, would seem to have supposed, a right only of the harons, because the guaranty included every freeman, and the yeoman was no less entitled to the ver- dict of bis equals than the peers." Am. Const. Law , 863, 864. But see id. 859. 163 164 HISTOET OF THE JUET SYSTEM. utlegatur, aut exuMur, ant aliquo modo destruatur [nee super eum ibimus nee super eum mitfemus^ nisi per legale judicium parium suorum vel per legem terrcB," — which, in the popular Tersion, is usually rendered that "ISTo man shall be deprived of life, liberty or property, save by the judgment of his peers and the law of the land. '" Hence the purpose of this chapter is to demonstrate — if the delineation of the growth of the jury has not already made clear — the utter baselessness of this theory and to prove that the mode of trial referred to in and sustained by this much abused clause was none other than the judicial determination of questions, in the feudal courts of that time, by the sectatores heretofore" considered. Any other view is a mere chimerical delu- sion — a delusion, however, entertained by Blackstone, and which that high authority did much to nourish and foster when he wrote . of trial by jury : "In Magna Charta it is more than once insisted on as the principal bulwark of our liberties; but especially by chapter 39,* that no freeman shall be hurt in either his person or property, nisi per legale judicium parium suorum vel per legem terrce.'"' 5 "Nor shall we pass upon Mm, nor send upon him" (nee super eum ibimus, nee super ewm mtUemvs) "is interpreted to mean that no man should be condemned, without trial hy his peers, either in the court of King's Bench, where the king is supposed always to be present and to render judgment in his own person, or before any judge whom the king may delegate to try him [in his county]." Bowen, Const, of England and America, 11. s Vide chap. VII. 4 This clause is commonly referred to as chapter 29 of Magna Charta, and printed in a form more or less different from the one given. Our text— as well as that of all other old English statutes quoted in this trea- tise—is taken from Stubbs' "Select English Charters," in which (p. U2) it appears as chapter 39; this being its place in the text of the charter, aa confirmed (1217) by John's son, Henry III. 6 3 Bl. Com. u. XXIII. ON THE MEANING OF JUDICIUM PAEIUM. 165 It is easy, however, aside from the intrinsic defect of this view (which must be manifest to the reader of the preceding pages), to adduce authorities to the contrary. Beeves already seems to have had a correct view of this matter, when, after remarking th As to the selection and qualiflcations of jurymen in these courts, Taney, Ch. J., observed: "The Judiciary Act of 1789, section 20, provides for the manner of ex- amining: jurors, and directs that in all cases— of course, including crimi- nal as well as civil cases,— they shall be designated by lot or otherwise. In each state, according to the mode of forming jurors therein as there practiced, so far as the law of the state shall, under such designation, be practicable by the courts or marshals of the United States; and that jurors shall have the same qualifications as were requisite for jurors by the law of the state of which they are citizens, in the highest court of law in the state." United States v. Beid, 53 XT. S. 12 How. 361, 13 L. ed. 1023. 225 15 226 HISTOET OF THE JXTEY SYSTEM. organic laws of the several states . . . that the pur- pose was not to extend the right, but to forbid any change which would circumscribe it." So in Haines v. Levin, 51 Pa. 414, it is said that con- stitutional guarantees secure the right of trial by jury as then existent, and protect it "from innovations which might destroy its sufficiency as a palladium of the liberties of the citizens." It has been held that the legislature may, in creating a new offense, withhold the right to trial by jury, be- cause it did not fall within the line of cases so triable at common law and "at all events the statute did not ren- der them less numerous." Van Swartotv v. Com. 24 Pa. 131. The contrary view has been sustained in California. The aim of the Constitutional guaranty — says Hare {supra, p. 886) — "is not that the legislature may intro- duce new exceptions, but that there shall be none save those which existed when the organic law was passed, . . . The inquiry should not be : is the instance specifically new, but does it belong to a class in which the accused was entitled to the verdict of his peers?" Hence a view better calculated to promote this object, than that adopted in the case last cited, was taken by the judges in Wyoiehavier v. People, 13 N. Y. 378. Cf. ante, chap. IX. note 65, chap. X. note 38. Louisiana — whose jurisprudence, alone of all the states, is based on the civil or Eoman law — originally pro- vided only for a criminal jury (Old Const, title I. art. 6) : "Prosecutions shall be by indictment or information. The accused shall be entitled to a speedy public trial by an impartial jury of the parish in which the offense was committed, unless the venue be changed." APPENDIX. 227 The Constitntion of 1879 re-enacted the first sentence of this clause in Art. 5, and proTided in Art. 7 : "In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial by an impartial Jury, except that, in cases where the penalty is not necessa- rily imprisonment at hard labor or death, the General Assembly may proTide for the trial thereof by a jury less than twelve in number." The civil jury was engrafted on the judicial system of the state by Art. 116 : ■ "The General Assembly at its first session . . shall provide by general law for the selection of competent and intelligent jurors, who shall have capacity to serve as grand jurors and try and determine both civil and criminal cases, and may provide in civil cases that a verdict be rendered by the concurrence of a less number than the whole." The legislature accordingly (Act of 1880, p. 141) prescribed that nine out of twelve jurors may render a valid verdict in civil cases, while in criminal cases unanimity is required. Turning to the other or common law states, we find provisions for the maintenance of jury trial (differing in detail, but substantially agreeing in principle) as a part of their civil procedure, in the constitutions of all. That of New York has already been cited, ante, chap. IX. By way of comparative illustration, those of two other states are subjoined : "The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property 228 HISTOEY OF THE JUBY SYSTEM. without due process of law." (Iowa, art. I. § 9.) "The right of trial by Jury shall be secured to all; but in all civil cases a jury trial may be waived by the parr ties in the manner to be prescribed by law." (Florida, art. I. § 4.) An outline of the provisions made by the several states of the union is presented by means of reference to those contained in the new Constitution of California which (1879) introduced marked innovations on trial by jury. '^ Art. I. § 7 : " The right of trial by jury shall be secured to all, and remain inviolate," but in civil actions three fourths of the jury may render a verdict/ 2 So by the Constitutions of Ala., Art. I. § 13 Ark., II. 7 Colo., H. 33 Conn., 1. 21 Del., I. i Pla. Deo. Kights, 4 Ga., HI. 13 Idaho, 1. 7 111., II. 5 Ind., 1. 20 lowajl.g Kan.BiUof Eights, 5 Ky., XIII. 8 Me., 1. 20 Md.. XV. 6 Mass., Pt. 1. 15 Mich.. VI. 27 Minn., I. 4 Miss., ni. 31 Mont., III. 23 MOjn.28 Neb., 1.6 Nev.,1.3 N. C, 1. 19 N. Dak., N. H.,Pt. 1.20 N.Y.,I. 2 N. J.. I. 7 Ohio, I. 5 Oregon, 1. 18 Pa., I. 6 E. 1., 1. 15 S. C 1. 11 S. D., Bill of Eights, i 6 Tenn., I. 6 Tex., 1. 15 Va., 1.13 Vt., 11.31 Wash., 1. 21 W.Va., 111.13 Wis., 1. 5 Wyo., 1. 9 Por La.,see ante. Tennessee provides for the right to demand a jury in equity cases, but the provision is practically a dead letter. Also, Ariz. Bill of Eights 8- New Mex. 95. 1. 3 Three fourths Rule prevails also in Idaho (Art. I. S 7, Eev. Stat. 5 3938), Louisiana (cf . ante), Nevada (Art. I. g 3) S. D. (Bill of Eights, 8 6) Texas (Art. V. 9 13), and Wash. (Art. I. g 21). By statute in South Dakota three fourths may render a verdict "in civil cases cognizable by a justice of the peace," other than those affecting real property, though the constitution (Bill of Eights, S 6) empowers the legislature to authorize such in all cases. Similarly, the number of jurors may be decreased by written agreement of the parties, or their consent in open court. In Wyoming.the inviolabilily of the jury Is constitutionally guaranteed " in criminal cases " only. Grand juries shall consist of twelve men, any nine of whom may find a valid Indictment, " but the legislature may change, regulate or abolish the grand jury system." Two thirds may render a verdict in Montana (Art. III. 9 23) "in all APPENDIX. 229 "A trial by jury may be waived, in all criminal cases not amounting to felony, by the consent of both parties expressed in open court, — and in civil actions by the the consent of the parties/ ... In civil actions and cases of misdemeanor, the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court.'" civil actions and in all criminal cases not ammmting to a felony ;" while in Idaho (Art. I. § 7, Eev. Stat. § 7781), "in aU cases of misdemeanors, five sixths of the jury may render a verdict." In California, a movement looking to the same end has heen started of late. [In the New Jersey legislatures of 1882 and 1883, Mr. J. H. Goodwin zealously advocated an amendment aholishing unanimity in civil cases, and harely failed of success.] * Waiver in CivU Actions is likewise permitted by the Constitutions of Ark., Art. H. § 7 Colo., II. 23 Ma., Dec. Eights, 4 Md. IV. 1, 8 Mich., YI. 27 Minn., I. i Nov., I. 3 N. Y., 1. 2 Vt., II. 31 Wash., I. 21 W. Va. II. 13 N. C, V. 13 Pa.,V. 27,Tex.,V. 10 Also Ariz., BiU of Eights, 83. Wis., I. 5 By Statute in Wyoming. According to 20 Am. L. Eev. 671, 672, waiver likewise prevails in 111., Mo. and N. J., while, in New Hampshire, trial hy jury is said to be " the exception and not the rule," ever since the Constitution of 1876, confirm- ing a custom of waiver long indulged in the courts of the state, swept away jury trials in a large class of cases— i. e. in all where the amount in controversy does not exceed $100. So in Massachusetts, there is ordi- narily no jury in a civil suit, " unless insisted on by one party or the other " (chap. XII, note ai.) Waiver in all civil and in "criminal cases not amounting to felony" is allowed in Idaho (Art. I. 9 7) Montana (Art. III. § 23) and North Dakota. Also (by Statute) in South Dakota, in cases arising in courts of justices of the peace. And in New Mexico (Act of July 12, 1851, § 8) the accused may in all cases waive jury trial. In Wyoming, "it is necessary in order to obtain a jury in civil cases, that it be demanded and the jury fee deposited." (Att'y General Potter, in letter dated April Zi, 1893.) By Act of Congress, jury trial prevails in the District of Columbia. The Act organizing Oklahoma territory (passed May 2, 1890) makes no provision for trial by jury. 6 The Number of Jurors may similarly be limited in Colo. (II. 23), Fla. (VI. 12), Idaho (Art. II. § 7, Eev. Stat. S 7781), Iowa a. 9), La. (VI.), Mich. av. 46), Mo. av. 28), Mont. (HI. 23), Neb. (I. 6), N. J. (L V, N. D. (I. 7), Wash. (1. 21), and Wyo. (1. 9.) 230 HISTOET OF THE J0EY SYSTEM. Trial by jury is — by such constitutional proyisions — secured in all common law actions. Edxvards t. Elliott, 36 N. J. L. 449 ; Qrim v. Norris, 19 Cal. 140. This applies only to actions at law or criminal actions, where an issue of fact is made by the pleadings. KoppiTcus V. State Capitol Comrs. 16 Cal. 248. "It cannot be claimed in equity cases, unless such issue be specially framed for a jury under the direction of the court. It cannot be asserted upon an issue of lav^, for that is a matter purely for the court." Ibid. p. 254, per Field, Gli. J. Other cases in which jury trial may not be claimed as a common law right are instanced by Hare (Am. Const. Law, 869-873 and cases cited) as follows: summary pro- ceedings to dispossess tenants; questions arising on quo warranto; cases of admiralty and maritime jurisdiction, even where extended to controTersies not originally within its scope; transgressions amounting to a con- tempt of court; proceedings to assess damages due for property taken for public use, in the exercise of the right of eminent domain; tax assessments; proceedings to determine that a person is insane or an habitual drunk- ard, and to appoint a guardian of his person or property; a summary proceeding to disbar an attorney on account of acts for which he might be indicted and tried by a jury. Ex parte Wall, 107 U. S. 365, 27 L. ed. 552. 'in all these cases — in absence of a statute to the contrary, the action of the court alone "is due process of law. . . . practiced from time immemorial." Such limitation is also authorized, for inferior courts, such as justices of the peace, in Ga,, 111., Iowa, Neb., N. C, Tex. and West Va. (uMe Stim- son's Am. Statute Law, 8 73), APPENDIX. 231 But a municipal corporation, being only the creature of the legislature, cannot claim the constitutional right of trial by jury. Dunmore BorougJi's App. 52 Pa. 374. Criminally, jury trial extends only to prosecutions by indictment or information — not to cases created by statute {Tims v. State, 26 Ala. 165); nor to the trial of ofBcials so created. Boring \. Williams, 17 Ala. 510. A provision that jury trial "shall remain inviolate" does not mean that there must be a jury in all cases. Flint River S. Go. v. Foster, 5 Ga. 194. It does not apply to proceedings before justices of the peace ( Goddard v. State, 12 Conn. 454) nor to summary remedies given by statute, as the summary convictions of vagrants {Flint River S. Go. v. Foster, 5 Ga. 194 ; Byers v. Gam. 42 Pa. 89 ; Haines v. Levin, 51 Pa. 412) nor to proceedings for ascertaining the value of property taken for public uses. Koppikus v. State Gapitol Gomrs. 16 Cal. 248, A legislature may regulate the manner of trial by jury {Richards v. Hintrager, 45 Iowa, 253) or may prescribe a change of venne in certain cases ( Taylor v. Gardiner, 11 E. I. 182) or may substitute new modes of trial by reasonable regulations {Beers v. Beers, 4 Conn. 539 ; also Gurtis v. Gill, 34 Conn. 54) and may even clog the right by onerous conditions, unless the . riglit be thereby totally prostrated. Flint River S. Go. v. Foster, 6 Ga. 194. But a legislature cannot give a tribunal acting without a jury the power to determine legal rights — unless there be some equitable grounds of relief. Haines' App. 73 Pa. 169. Cal. Art. VI. § 19: "Judges shall not charge juries 232 HISTOKT OF THE JUET SYSTEM. with respect to matters of fact, but may state the testi- mony and declare the law." This proyision is followed by Ark. (VII. 33) ; NeT. (VI. 12); S. C. (IV. 26); Tenn. (VI. 9); and Wash. (IV. 16). Under this peculiar provision it has been held, that the court may instruct the jury that testimony has been introduced tending to prove a certain matter (^People v. Vasquez, 49 Cal. 560) but the judge may neither in- struct, nor even express an opinion, upon the weight of evidence, nor on controverted facts. People v. JTing, 37 Cal. 509 ; People v. Dici:, 34 Cal. 663 ; People v. Walden, 51 Cal. 588. So it is error in a court to charge a jury that the existence of a fact raises a presumption of the existence of another fact. McNeil v. Barney, 51 Cal. 603. The policy of this provision is discussed in People v. Taylor, 36 Cal. 255. ADDElsTDA. ^pp. 1, 128, 151) " When the English adopted trial ^7 i^U} tliey were a semi-barbarons people. . . . They soon spread beyond their insular boundaries to every corner of the habitable globe . . . but wher- ever the English have been, they have boasted of the privilege of trial by jury." De Tocqueville, Democracy^ in America. (pp. 78-82, 90) " Ordeals,"— observes the elder Dis- raeli, in a paper on Trials and Proofs of Guilt in Super- stitious Ages, in his "Curiosities of Literature" — "are, in truth, the rude laws of a barbarous people who have not yet sufBciently advanced in civilization to enter into the refined inquiries, the subtile distinctions, and elaborate investigations, which a court of law demands." (pp. 117, 137 note, % 3) In connection with the im- peachability of verdicts for irregularities or misconduct of jurymen, the supreme court of South Carolina recently held {State v. Bennett, 26 S. E. Eep. 886) that a verdict should not be reversed on the affidavit of a juror, who had consented to a verdict of guilty only because he believed that an accompanying recommenda- tion of mercy would assure the defendant's pardon on comniutation of sentence. The court, after observing that "such recommendations can have no effect what- ever upon the verdict regularly and solemnly rendered," concludes that reasons of public policy forbid jurors to 233 234: ADDENDA. declare " an intent different from that actually expressed by their verdict as regularly rendered in open court." Matters extraneous to the record, constituting im- proper conduct of the jiiry, may be shown by affidavits of third parties, such as that the jurors or some of them received improper communications while deliberating on the verdict, Craiu v. Daly, % 'S. Y. Code Eep. 118; that spirituous liquors were circulated among them, Rose V. Smith, 4 Oow. 17; or that they found their ver- dict by separately marking down the amount each favored and then dividing the aggregate by the number of jurors, Harvey v. RicTcett, 15 Johns. 87. In criminal trials, spirituous indulgence not culminat- ing in intoxication will vitiate a verdict, the defendant being entitled to have a juror "consider and pass upon- his case with faculties unimpaired with drunkenness," nor "beclouded by the previous night's debauch." Brown v. State (Ind.) 36 K E. Eep. 1108; cf. Ryan v. Harrow, 27 Iowa, 494; Jones v. State, 13 Tex. 168; State V. Oucuel, 31 N. J. L. 249. (pp. 127 note, f 1, 155, 156) The trial jurors in Scotland — where there are no grand juries — take this quaint oath: " You iifteen swear by Almighty God, as you shall answer to God, at the great day of judgment, you will the truth say and no truth conceal, in so far as you are to pass upon this assize." See an interesting paper on the Criminal Law in Scotland, 6 Am. Law Eev. 427-449, whose author also defends the verdict of Not Proven as logical, and critizes that of ISTot Guilty as superfluous or illogical, in that thus juries often " are compelled to say, proved ' not guilty,' when it is all they can do, with a good conscience, to say ' not proved ' guilty." ADDENDA. 235 (p. 127 note, i" 3) Already before the passage of Pox's Act, the King's Bench had, in 1783, sustained the right of the jury in cases of libel to pass both on the law and the facts. Rex v. Shipley, 4 Dough 73. (p. 127 note, third par.) In connection with the power of a court to reverse verdicts on the facts, the very recent case of Heusner v. Houston, W. S. & P. F. R. Co. 7 Misc. 48, should be noted, where Mr. Justice Bookstaver exhaustively reviews the authorities, and a verdict was set aside by the general term of the common pleas because " evidence was not properly weighed by the jury." Among the many cases cited are Kummer v. Ohris- toplier <& T. Street R. Co. 2 Misc. 298, where Mr. Justice Pryor, writing the opinion, stigmatizes the plaintiff's case as "a fabrication," and, "in view of the prevalent disposition of juries in cases of personal injury to award damages against corporations upon slight or equivocal evidence," deems it the imperative duty of appellate tribunals "not to relax that supervision of their deter- minations which the law exacts of us in the interests of public justice." " By doing so, no right is taken away. The eflfect of setting aside the verdict is simply to subject the case to further consideration by another jury." Per Daly, Ch. J., Clarh v. Merchants Bank, 8 Daly 504. In general it may be observed that larger latitude and greater discretion in dealing with facts and controlling juries is conceded to English judges than to their brethren in the United States. (p. 129 note) The work of Brinton Coxe on Judi- cial Power and Unconstitutional Legislation, just posthumously published, presents the best historical study and critical analysis of the right and power 236 ADDENDA, of the Federal judiciary to declare void an Act of Congress. (pp. 138 note, 228 note) The opinion in Hess v. White (Utah) 33 Pac. Eep. 243, relies upon the assumed anology of the decision of the United States Supreme Court in Hurtado v. California, 110 U. S. 516, 23 L. ed. 232 (cf. ante, p. 168, note 18) and cites with approval this proposition : "Administration and remedial proceed- ings must change, from time to time, with the advance- ment of legal science and the progress of society." Rowan v. State, 30 Wis. 129. (p. 148 note) In Nevada the grand jury consists of twelve, eight of whom are sufficient to find an indict- ment. (Laws of 1893, chap. 46.) (pp. 153 note, 231) Summary convictions for petty offenses, and the confiscation of articles of trifling value employed in the commission of such, by a magistrate, without the intervention of a jury, have been sanctioned by the Federal Supreme Court as practices to which " constitutional provisions, which are intended for the protection of substantial rights," are inapplicable. De minimis nan curat lex. "There is not a state in the Union which has not a constitutional provision entitling persons charged with crime to a trial by jury, and yet, from time immemorial, the practice has been to try persons charged with petty ofienses before a police magistrate, who not only passes upon the question of guilt, but metes out the proper punishment. This has never been treated as an infrac- tion of the Constitution, though technically a person may in this way be deprived of his liberty without the ADDENDA. 237 intervention of a jury. ... So, the summary abate- ment of nuisances without judicial process or proceed- ing was well known to the common law long prior to the adoption of the Constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard." Laivton v. Steele, 152 U. S. 133, 38 L. ed. , citing Gallan v. Wilson, 137 U. S. 540, 32 L. ed. 223; State v. Snbver, 42 N. J. L. 341. (p. 181 note ) The change in the common law rule was wrought in New York by Laws 1872, chap. 475, providing that a juror who had formed or expressed an opinion was nevertheless competent, if he swore that he verily believed himself competent to render an impartial verdict according to the evidence unbiased by his prior opinion, and if the court was satisfied that such opinion would not influence his verdict. This provision was essentially re-enacted in the Criminal Code (§ 376); cf. People V. McGonegal, 136 ¥. Y. 62. But in civil cases, the strict common law rule, insist- ing on total absence of opinion and entire freedom from bias, still prevails; cf. Hoisted v. Manhattan R. Oo. 26 Jones & S. 270. (p. 201 note) Where it is apparent upon the record of a case that the wrongful act complained of was not the proximate cause of injuries sustained, the question at issue is one for adjudication by the court, not for determination by the jury. Scheffer v. Washington City, V. M. & S. R. Co. 105 U. S. 249, 26 L. ed. 1070; Klye V. Healy, 127 N. Y. 555, 562; Rolerton v. New York, 7 Misc. 645. 238 ADDENDA. (p. 228 note) Montana seems to laave been the pioneer, in the United States, in the matter of invading the hoary requirement of unanimity. Its territorial legislature, in January, 1869, passed an act providing that three fourths may render a valid verdict in civil cases. This enactment came incidentally before the Federal Supreme Court in DunpJiy v. Kleinsclimidt, 78 U. S. 11 Wall. 610, 20 L. ed. 223, which, however, refrained from passing on the question of its contraven- ing trial by jury as guaranteed in the United States Constitution. In Kentucky (Laws 1892, chap. 116) three fourths of the Jury may now render a verdict in civil actions. (p. 229 note ) According to the IST. Y. Code Civ. Proc. § 1009, a party may waive his right to the trial of an issue of fact by a jury, by failing to appear at the trial — by filing a written waiver before the trial — by oral consent in open court — by moving, or acquiescing in the adverse party's moving, the trial of an action without a jury; e. g. at special or equity term. Maclcellar V. Rogers, 109 JST. Y. 468. In this event, the decision is of course by the court, except that, upon the consent of the parties, in most cases {id. §§ 1011, 1012) or upon the court's own mo- tion, in a case involving the examination of a long account and not requiring the decision of difficult ques- tions of law {id. §§ 1013, 1015) a referee, who "must be free from all just objections" {id. § 1023) will be appointed to hear and determine all the issues, or to report his findings upon one or more specific questions of fact to the court, subject to its confirmation. When acting in the latter capacity, their functions bear much resemblance to those of the Eoman Judices. ADDENDA. 239 Eeferees — whom an old New York statute reqiiired to be not " more than three or less than one in number" — are "a legislative substitute for a trial by jury" and their report "is to be regarded in the same light as a verdict." Alexander v. Finlc, 13 Johns. 219. Eefer- ences are criticized as costly, cumbersome and procrasti- nating, but defended as obviating for the judiciary the drudgery incident to the examination of long accounts or other minutiae. They may, perhaps, be termed an inadequate surrogate for trial by jury, but a frequently convenient helpmeet to the judge. See, generally. Cooper on Eeferees and Eeferences. Conversely, v/here a party is not entitled to trial by jury as a matter of right, the court may, at its discretion, direct one or more questions of fact, presented by the pleadings, to be tried by a jury. N. Y. Code Civ. Prop. § 971; Church v. Freeman, 16 How. Pr. 394. But a reference in a matrimonial action cannot be ordered except by consent, the question of adultery being triable by jury as a matter of right. Batzel v. Batzel, 10 Jones & S. 561 (cf. Code Civ. Proc. §§ 970, 1757) where Jiulge Preedman remarks: "Al- though the issue or issues evolved by the pleadings were, according to the course of the ecclesiastical law, tried not by a jiiry but by the judge . . . and although the practice of the court of chancery, as it existed -while this state was a colony, dispensed with trial by jury in all cases except when specially directed by the court, the issue of adultery was, in this state, always required to be specially submitted" — by successive enactments of the state legislature— to " a jury of the county, at some circuit court." 24:0 ADDENDA. (p. 234, note) In connection with the legislative .grist-mill, we cannot refrain from translating an apt passage from the Mirza ScJiaffy of Friedrich Boden- stedt: My presence at the Council was required, Upon the Shah's behest: " Now, Mirza, let, on all that hath transpired. Thy judgment be expressed." Quoth I: "I'll speak without equivocation. And not a thought conceal : Full well I heard the mill-wheel's loud vibration — But I beheld no meal 1 " II^DEX. [Z%« Jlgures refer to the pages, inclusive of notes.] A BECKBT,- 137 ABOLITION of the jury discussed, 199-220 Advantages claimed as likely to result from, 317-319 Of grand jury permitted by the Constitution of Wyo- ming -- 328 ACCUSATORY Tkebdnals (primitive), 78, 96, 133 ACTIO, conduct of, in Rome, 36 SA.CBAMKNTI, --- - - 83-35 ■"AD QUABSTIONBM FaCTI, NON RESPONDENT JtJDICES; AD QUABSTIONEM LbGIS, NON RESPONDENT JORATOBES,". .3, 13 ADULTERT, question of, must (in N. T.) be tried by jury,. 239 ADVOWSON, right to an, one of earliest questions referred to a jury, _-- --- -- - 103 ABSCHINES against Ktesiphon, 37 i^ETIUS, last Roman legion withdrawn from Britain by,... 57 AFFOROEMENT of jury, 104,113 AGRICOLA subjugates Britain and establishes Roman law, .55, 56 AiDERMAN, ancient dignity of, 66 ALEXANDER (pope), 107 ALFRED THE Great, 1, 6, 48, 70, 72, 73 Establishes county system and reforms administration of justice, 64r-66 Extant laws of, -- - --66, 69 "Founder" of the Common Law, 67, 73 Hangs Cadwine for alleged refusal of trial by jury, 71 16 341 24:2 INDEX. ALIENS, eligible for jury duty in certain of the United States, - 182 Were essential on a jury de medietate linguae, 219 AMENDMENT (Seventh) of United States Constitution, perpetuates jury in civil cases, 130, 131 Binding on the Federal courts only, 235 ANGLO-SAXONS, 57 Subjugate Britain and establish Heptarchy, 59 Eadicalness of their conquest, 59, 60 Jury unknown to, 61, 68, 69 Their characteristics, ._ 62 At termination of Heptarchy, 63 At Norman conquest, 85, 86 Kings of, whose laws are extant, 66, 69 Characteristics of their judicial system, its four factors, 74-84 Criminal procedure and principal of decision, 80, 81 ANTONY (Marc), privilege of serving as Judices extended by, - 43 APPELLANT and APPELLEE in old criminal law, 145 APPENZELL, popular assembly of, 47 ARBITER, 31, 32. 34 ARBITOATION criticized, 18ft ARBITRATOR defined,.. 32 ARCHAEONOMIA, 69 ARCHBISHOP'S wergild exceeded king's in Kent, 83 ARCHON, judicial functions of, 16, 17, 28, 29 ARIMANNEN.. .., go ARISTOPHANES, dikasterial system ridiculed by,. 19, 22, 23, 25 ASSESSORS joined with juror in Rome, 33 Unknown in criminal cases, 40 "ASSISA VERTITUR IN JURATAM," 122 ASSISE (of Henry n.) 96 Refers to statute, as well as proceedings thereunder,. 101, 102 Difference between, and Jurata, 103, 123 Its form of procedure, 103 INDEX. 243 ASSISE, judges of, Ill Its verdict, - 113 Equivalent to testimony of witnesses, 113-113 Its long survival, 121 In Germany, 103 Of Arms, 109, 139 Of Clarendon, ...138, 139 Of the Forest, 109 Ot Mort d' Ancestor, 109 Of Northampton, . 107,108 Of Novel Disseisin, 108 de Ultima Praesentatione, 110 ATHEISTS disqualified to serve as jurors in Maryland, 183 ATHELSTANE, laws of, extant 66, 69 ATKINS (Counselor) successfully maintains (in 1540) that testimony is not controlling upon jury, 130 ATTAINT, 84 Anciently the only method of reviewing a verdict, 113 Its procedure, development and decline, 114-116 AUGUSTUS, permanent jury lists established by, 40 Extends right to serve as judex, 43 AULUS AGERIUS,.... 56 AULUS GELLIUS quoted,.. 33 AUSTRIA, jury in 159 B. BACON (Lord), quoted, 5 BADEN, jury in 159 BAILIFF, 66,141 BARABBAS, 143 BATTLE, trial by. See Duel. BAVARIA, jury in 159 BEDE, cited, 59 BELGIUM, jury in 156, 157 2M INDEX. BISHOP, anciently presided over assembled freeholders,.-. 61 Exercised judicial veto in Denmark, 68 BOADICEA, -56, 59 Bom HOMINES,- 50, 144 BORH, 64 BORSHOLDER, 64 BRACTON, referred to or cited -61, 87, 97, 114, 116, 142, 143, 145-147, 173 In time of, jurors had same disqualifications as (subse- quently) witnesses, - 112 BRITAIN, Roman law prevalent in, -. 53 As "the law of the land," 55 Administered by Papinian and other civilians, - - . 56 Roman authority withdrawn from, 57 BRITONS, characteristics of the ancient, - 54, 55 After the Roman conquest,-- 58 Their destruction, - --- -.. 59 BRITTON, 87 BROMLEY, Chief Justice, his partisan conduct of Throck- morton's trial, - 149, 150 BROOKE (Recorder of London), 87 Contends that jury is not bound by the testimony, 120 BROUGHAM (Lord), his famous eulogy of trial by jury, 223, 224 BUNYAN (John), quoted,- ---150, 212 BUSHELL'S Case, - 11, 12, 117, 120 BUTCHERS were anciently inhibited judicial functions, -.14, 15 C. €ADWINB 71 CAESAR, legislates restrictively concerning jurors ,- 43 Invades Britain, - - .54, 55 CALEDONIANS, - 55 CALIFORNIA in its constitution of 1879 introduced marked innovations on trial by jury, 228, 229, 233 INDEX. 245 CALIGULA, extension of judex privilege by 43 CANON or Ecclesiastical Law in England, 57, 60, 61 CANUTE, laws of ..- - 69 King of "all the Nations of the English," 70-78, 89 CAPITULARIES, 94 CARACTACUS, -.53, 55 CARLOVINGLysr influences, 95 CATILINE tried before packed jury, 41 CENTUMVIRI, 31 CHALLENGES of Jurors in ancient Rome, 35, 40, 44 Grounds for, anciently and to-day .112, 181, 237 In England originally tried by the unchallenged jurors, 143 CHANCELLORS, anciently ecclesiastics, 90 Not bound by finding of jury, 131 CHANCERY. See Eq-ditt. CHARLEMAGNE institutes the Scabini in Germany, 51, 53 CHRISTIANITY established in Britain by Romans, 5? Prevails in Heptarchy, 63 CHURL. See Eael ahd Churl. CICERO, -,- 33 Pleads before packed jury, 41 CIRCUMSTANTIAL EVIDENCE, the doctrine of, stated,. 138 CIVIL LAW. See Roman Law. CIVILIANS, administer Roman law in England, 56 CIVIL PROCEDURE in ancient Egypt,. 15 In ancient Greece, 34 In Rome, 30, 31, 36, 45 CLARENDON, Constitutions op,... 107, 108, 137 Restrained ecclesiastical jurisdiction and pretensions,... 137 Assise or statute of, provided for indictment by jury, 138, 139 Abolished compurgation in the King's Court, 143 CLAUDIUS, 56 OLEON, 20 246 INDEX. CLODIUS, 37 CONSTITUTION of the United States. See United States. COKE, his formula, 3 Limited and criticized, ...12, 87, 98 Terms the English law " the perfection of reason," 147 Distinguished between trial by jury and by one's peers,. 165 His facetious definition of a corporation, 179 COLONIES, jury In British, 156 COMES, 50, 51 COMMON LAW, its rigidity remedied by developing equity jurisprudence, 60 Its ascription to immemorial tradition questioned, 61 Is really largely based on civil law, 60, 61 Supposititious origin of, under Alfred, 67 Said to be founded by Henry II. and completed by Ed- ward I., 91 Defined, 91 COMMUNE COMITATUS, 139 COMPETENCY and Cbbdibilitt of witnesses distinguished, 5 COMPLAINT-WITNESSES 76, 93 COMPURGATORS, an element of Anglo-Saxon jurispru- dence, 61, 74, 76, 77 Defined, 78 Originally criminal functionaries only, 77 Neither witnesses, jurors, nor judges, 77, 78, 84, 86 Compurgation synonymous with Wager of Law, 78 Form of procedure, ..78, 79 Often led to Ordeal, _ 79 Ultimately extended to civil controversies, 82 Their oaths varied in value, 82, 83 Their number, 83, 83 A factor in development of jury, 84, 85 Flourished also after the Conquest, ._ '90 Gradually superseded by Recognitors, 99 But sporadically long survived as Wager of Law, 78 CONRAD II., edict of, prototype of part of Magna Charta,. 166 INDEX. 247 CONST ANTIKE supersedes Judices by Judges, 37,45 'CONQUEROR,'. 89 CONQUEST of Britain by the Romans, 55 By the Anglo-Saxons, 59 Of England by the Danes, 63 By the Normans, 87 The term defined, i 89 CONSTITUTIO, 107 CONSTITUTIONAL and statutory provisions in New York, bearing on trial by jury, see New York. GuAKANTEES of trial by jury in the United States,. -335-333 Do not extend the right, but secure it "as existent,".326, 330 But Tennessee and two territories expressly permit jury trial in equity cases, 338 Extend to none but common law and criminal actions,.. 230 CONSTITUTIONS of CAROLINA dispensed with unanim- ity of jury, - 133 Of CLARENDON, see Clarendon. CONTEMPT OP COURT, when jurymen are guilty of,... 153 CONVICTIO,. -- 114 CORNWALL and Wales, the final refuge of the Britons,... 59 CORONER convened inquisitions, 94 Oflciates for sheriff when the latter is a party in interest, 133 CORONER'S INQUEST, antiquity and superfluity of,.. 330, 231 CORPORATIONS discriminated against, by juries, 179 Facetiously defined by Coke, 179 CORPUS DELICTI, an element of proof in homicide, 138 CORSNABD OT ossa exeerata, 81, 83 COUNSEL, allegations of, anciently accepted as 'evidence,' 123 Formerly not allowed to those accused of treason or felony, 149 COUNTY System of England established by Alfred,.. 64-66, 75 CRIMES, persons accused of high, were formerly heavily handicapped at trial, 116, 149 Indictments for, found in Saxon times by thane-inquisi- tors, 134. 135 248 INDEX. CRIMES— continued. l,a.tev h J fama publica, 135 By Vorath, - --- 136 Finally by grand jury, - - 137-140- CRIMINAL JURY. See Jtjby, Grand Jury. CRIMINALS (alleged) originally purchased right to trial by jury as a privilege, ._ 143-143 Later were forced to submit to it against their will, 145 And were treated as confessing in case of refusal, 14& Subsequently subjected to torture for standing mute, 146, 147 , Modern practice introduced, 147, 148 CURIA REGIS, 10, 91, 164 Supersedes local tribunals as a court of original jurisdic- '• tion, - -- 121 Compurgation abolished in, by Assise of Clarendon, 14& D. DANEGELT, 70 DANEMORT, 70 DANES, ravage England, 6a Repelled by Alfred, - 67 Conquer England, _ 70 : Had no formative effect on English jurisprudence, 73 DEOBMVIRL - - 31 DECENNARY, ....64, 65 DECLARATION OF INDEPENDENCE arraigns monarch for depriving Americans of the benefit of trial by jury, 151 DECREE deCokona, 27 DEEDS, questions affecting the execution of, anciently triable by their witnesses, 104, 105, 112, 132, 123 Who might know nothing of the matter, 123 DE LOLME eulogizes the jury, 161, 163 "DE MINIMIS NON CURAT LEX".. 286 DEMOSTHENES, dikasterial triumph of, 27 DENMARK, naevninger in ancient, ..71, 72 INDEX. 249 DEODAND, 143, 144, 221 DIKASTS of ancient Greece, 14-28 Their character, 30-23, 25, 2& Composition of dikasteries,.. 18, 19 Judges of law as well as of fact, go, 26 Their organization, _ 23 Their virtues and defects, 21-23, 25, 26 Might have been witnesses of the facts in dispute, 26 Contrasted with jury, .20, 28 With Judices, 44 DIKASTOMANIA, 25 DIOCLETIAN, formulary system overthrown and Judices abolished by 37, 38, 44r DIODORTJS SicuLTJS, cited, 11 DODERIDGE (Judge), provolies the impanelment of a ' dis- tinguished' jury, 211 DOM BOO, - — - 67 DOOMSDAY BOOK, .- 93 DRUIDICAL Tekets, — 54 DRUIDS, British judges, legislators and priests, 54 DDCENARII - - 43 DUEL, trial by (or Battle), 77 Introduced by the Normans, 91, 135, 136 Its establishment and long continuance, 92 "DUB PROCESS OF LAW," --- --- 129 Is not violated by summary convictions for petty ofEences, etc. - -152, 231, 236 The constitutional guaranty of due process of law analyzed, -. - 154, 155 The phrase misinterpreted, 163 Defined and construed, -168, 169 Does not necessarily guarantee trial by jury,. -.168, 169, 230 E. EADRIC. See Lothaik. EALDORMAN or EOLDBRMAN. See Aldekman. EARL AND Chukl, 81, 84 ECCLESIASTICAL LAW. See Canon Law. 250 INDEX. ECHEVINS, 135 EDGAR, laws of, - -68, 139 EDMUND, laws of, extant, - -66, 63 EDWARD The Confessor, laws of,-- 66, 73 The "restorer" of English law, 73 The Elder, laws of, extant, - -66, 69i I., "completer" of the common law, 91, lOO Mentioned, 104, 141, 19S III., in reign of, separation of grand and trial jury , complete, — 148 .' And unanimity established, 198 EGBERT, first king of England, -- 63 EGYPT, judicial system of ancient, 15 ELLENBOROUGH (Lord), finally establishes distinction be- tween jurors and witnesses, _ 131 ENGLAND, origin of the name, 63 EQUITY JiTRisPRUDENCB defined, - --. 60 Development and establishment of, 60, 61 Its scope and limitations,-- 131, 306, 307, 315, 316 Blending of, with law, in American jurisprudence, - - - 206, 307, 219 Tennessee and two territories guarantee jury trial in equity cases, -- 238 ETHELBERT, laws of, 66,78 The most ancient statutes now extant in England, 69 ETHBLRED, laws of, extant, .66, 69 ETHELRED IL, - 70 EVIDENCE, defined - 13 ; Our law of, the resultant of trial by jury, ... 119, 135 Rules of, afiEecting the rendering of verdicts, 138 Distinction between relevancy, credibility and compet- ency of, 5, 204 EXECUTION of judgments in ancient Rome,.. ...34, 85 EXEMPTION from jury service in New York and the states generally, 183, 184 ^'EX FACTO ORITUR JUS," 11 EYRE, judges in, _91, 145 INDEX. 251 F. FACT, defined and distinguished from law, 11, 12 Belevancy of facta,. .._ 204 "FAITHFUL," trial of, in Pilgrim's Progress, 150 The jurors thereat,... 213 FAMA PuBLiCA, 135 Patriae, 141 FEDERALIST (The), 130 FICTIO, 35 FITZHERBERT, 87 FLETA, 87, 143, 143 FLORIDA, constitutional guaranty of trial by jury in, quoted, , 228 FOREIGN JURY defined, 218 FORMALISTS, 88 FORMULA (Coke's), 3, 13; in Roman law, 35 FORMULARY System in Rome, 35, 36,39 FORTESCUE describes jury trial (in 1470) substantially like to-day,. 134 FOX, his Libel Act, 137,334 FRANCE, jury in, ..158-159 FRANCHISE, exercise of the, affected by selecting jurors from poll-lists, 219, 220 FRANKPLEDaB, system of, 64, 65 After the Conquest, 90, 135-186 FRAUDS, Statute of, its origin and character, 119 FREDERICK the Gkeat,. 93 FREDERICK William IV. introduces jury in Prussia,... 159 FREEHOLDERS, derivation of name, 64 Anciently members of popular assembly, 65 Their ' ' lapsed integrity " in Saxon times, 84 See also Milites. FREEMEN, classes of, 84 FRIDBOURG. See Fkankplbdgb. 252 INDEX. G-. GAVAN, involved in Popish Plot, offers to undergo ordeal- 142 GEMOT, - 134 GENERAL VERDICT defined, 136 GEORGE III,, - - 131 Arraigned in Declaration of Independence for interfering with trial by jury, 151 GEREFA or Gerifa. See Rbbvb. GERMANY, primitive tribunals in ancient, 49-51 Methodsof proof therein, 49 Jury in modern, first introduced by the French, 159 Outline of the present jury system in, 160, 161 GERONTES in Sparta, - 18 GLANVILLE, terms jury "regale beneficium," 68, 101 A sage of our law, 87 First describes trial by jury, ■. 97 Referred to or cited,.... 103, 104, 105, 110, 112, 121, 140, 145 Putative father of modern jury,.. 173 His career sketched, 172, 173 His treatise, 173 GODWIN (Earl), reputed to have died under the ordeal, 83 GRAF, in ancient Germany head of district and of its court, 50 GRAND ASSISE, origin of the phrase, 103 See also Magna Assisa. coustumiek, _.. 8, 97 Enqubtb, - 9 Jury, origin of, 96 Anciently subject to fine for failure to indict, 116 Its prototype among the Saxons, .135, 136 Anciently same body as criminal or trial jury, 134^ 141 Its members at first witnesses to the offense charged, 139 Legislation of Edward III. concerning, 148 Its modern form, 148 Eulogy on, 151 Its necessity questioned, 175 INDEX. 253 GRAND ASSISE— continued. Its advantages, 176 Its abolition permitted by the constitution of Wyoming, 228 (See also 168, last note). ORBECE, Dikasts of ancient, 14-28 Jury in modern, 157 GRIFFIN, Attorney General, prosecutes Sir N. Throck- morton, _ 149 GROTIUS, 60 GUNDOLPH against Pichot, case of, alleged earliest in- stance of trial by jury, 101 H. HAMILTON,. 130 HAROLD, 82 HAWAIIAN Islands, jury in, 158 HBADBOURG, 64 HELIAEA and Heliasts, .18-19 HENRY (Patrick), referred to, 169 HENRY I. (emperor), enactment of, confirming judicium parium, 166 HENRY IL, 70, 72, 172, 173 "Founder" of the common law, 91 National unity consummated under, and the law sys- tematized by, 100 Develops the system of recognitions, 103 And assize, 105, 106, 110 Legislation of, affecting grand jury,... 137-139, 141, 144 Trial by jury became general in his reign, 165 HENRY IIL, 139, 164, 198 HENRY VL, 104, 124 HENRY VIIL, 61, 149 HEPTARCHY (Anglo Saxon), established,.. 59 Unified,. 68 254 INDEX. HERETOGA or Herzog, 66 HESSE, jury in, 159 "HIERUSALEM the heavenly," 98 HOBART — 87 HOLT (Lord) quoted,--- --60, 61, 87 HOMAGE, designated a body of Sectatores or feudal judges, 167 HOMICIDE, two elements of proof in, 128 HOMO, meaning of, - - 100 HONORIUS, 56 HORNE'S MIRROR, quoted, 142 HUNDRED "co-assessors" of Tacitus,- 48 , Compared with dikasts and j udices, 49 Political and territorial division of the, 48 ' Established by Alfred 64 Requirement that jurors must come from the, abolished, 125 Also termed Wapentake, 134 CotiET, - - 48, 65 Attended by the Sectatores, -, 75 Maintained after the Conquest, 90 HUNDREDOR, - 65,126 I. IMPEACHMENT, cases of, not triable by jury,- 151, 152 INA, laws of, extant, _69, 73 "IN CONSIMILI OASU." See Writs. " INDE PRODUCIT SECTAM," significance of the phrase, 76 INDIANA, jury in, determines whether one convicted of crime shall be capitally punished,.- -- 208 INGENUI, - -- ....48, 77 "IN MISERICORDIA REGIS," 108, 113 INNOCENT m. (Pope), - HO, 142 INQUEST, - 3, 93, 94 INDEX. 255 INQUEST— continued. Coroner's. See Coroner. Of Sheriffs. See Shbbifps. INQUISITIO, i 102 INQUISITIONS, • 3 Introduced by the Normans, _ 93 Forms, procedure and origin of, 93-97 . Mentioned, 103, 105, 183 INSANITY, question of, how tried, 133, 163 IOWA, constitutional guaranty, of trial by jury in, quoted,.. 227, 338 IRELAND, jury in, 156 ISSUES of fact, 13 Determined by jury, _.. 13, 13 ITALY, jury in, 157 J. JACK CADE'S mob would "hang all the lawyers," 193 JAY, 180 "JEOPARDY, TWICE IN," antiquity of the phrase, 116 Its meaning and limitations, 153, 154 JERSEY, jurisprudence of, based on Grand Couslumier,... 97 JESUS, 143 JEWS, judicial institutions of the ancient, 14, 15 JOHN (King), 96, 110, 164 Trial or criminal jury arose in his reign, 143 JOINDER of Issue in Rome,- 36 JUDEX, original meaning of , 39 Modified meaning, 38 His dominion tabulated, 38, 89 'His growth and decadence portrayed by Gibbon, 43, 44 Bears resemblance to modern Referee 338 Qtjbbtionis, 29, 41 JUDGES, province and powers of, 5, 6, 184r-186, 187 256 INDEX, JUDGES— continued. Among the Jews, - -.. 14 Might anciently be challenged to combat in certain cases, --- - - --51, 93, 116 Functions of jury and, distinguished, -.. 137 In the United States have power to declare unconstitu- tional a legislative enactment, - 129, 335 Their merits and those of juries compared, 176-180 Have usurped the decision of certain questions of fact, 301, 337 Their legitimate functions in certain states encroached on by jury, 308, 332 Advantages of judicial over jural determinations, 209, 315, 216,317 Of Assise,- - Ill And Nisi Prius, 131 In Eyre, -- -.-91, 145 JUDICES of Rome, 39^6 Number of, - - 31-33 Functions of, .-32, 33, 34, 36,238 Development and decline of, 33-39 Aided by Assessors, 83 Selectionof, .- 85 Challenges, 35 In criminal cases, -- -- 40, 44 Legislation affecting, 42, 43 Contrasted with Dikasts and compared with modern jury, 44 Eliminated as a factor in Roman jurisprudence by Dio- cletian and Constantino, 37, 38, 4;- Cbntdmviri, - 31 Decemyiki, .- 31 Fbdanei, 37 Not jurors but judges, ..38, 52 JUDICIA Dei. See Obdbals. JUDICIAL Wagees in ancient Rome, ..33-36, 39 JUDICIUM and Sententia (in Roman law) distinguished, 30, 36 Struggle for, between Patricians and Plebeians, 43-44 INDEX. 257 JUDICIUM Paridm, 71, 73 The meaning of, 163-168 Was a trial by judges (Sectatores),... 164, 165 Of greater antiquity than trial by j iiry, 165 Confirmed by Magna Charta, 166-168 Unanimity not requisite for,.. _. 168 "JURABTINSTITUTA," 55,58 JURA.TA, tried questions incidentally arising in a recogni- tion, - - 103 Said to have originated in the sworn testimony of neighbors,. 105 Distinguished from assise 103, 123 Delatobia, - -.- 96, 136 Pateiab, grand and trial jury combined, ..141, 148 Mentioned, 16 VlCINETI, 167 JURY, its development concomitant with English nation, 3, 233 With civilization,. 10 Theories as to origin of, 6, 7, 16, 48, 65, 67-68, 71 Province of,... 3-5 Its limitations, 4-6 •Characteristics of , 44 Termed by Glanville "regale beneficium," 68 Unknown to Anglo-Saxons, 61, 65, 69 Not to be confounded with Secta or Sectatores, 76, 80, 84 •Civil jury first introduced in real actions under the name Assise 101, 109 Its members originally were witnesses, ...76, 77, 104, 113, 114. 119, 132, 124, 135, 165 Pirmly established in 18th century, 112 Its verdict originally reviewable by attaint only, 113-116 Later, fine and imprisonment served as correctives, 116 ^Finally, the expedient of new trials was devised 117-119 Assise and jurata gradually merged in, 102, 131', 132 Bushell's case vindicates jury as judges of fact, 117 At one time acted conjointly with the witnesses, 123, 125 Distinction between, and witnesses, finally established, 123-124 17 258 INDEX. JURY — continued. Functions of, and judge distinguished, 137 In libel determines both law and fact, - 137 Rules and principles for weighing the evidence and reaching a verdict, 138 Transplanted to America,. 138, 129' Perpetuated by United States Constitution, ISO, 131 Not available in divers heads of jurisprudence, 131 CiiiMiNAL Jury originally same body as grand jury,. ...134. 135 Tounger than civil jury, 138- Originated in reign of John 142 As a purchasable privilege, 143, 14&' Established by end of 13th century except in cases of secret poisoning, 143 Anciently fined and imprisoned for acquitting or con- victing contrary to evidence, 143, 146, 150 Originally tried the tenabllity of challenges, 143- Its evolution traced, 144-148 Transplanted to America, 151 Constitutional provisions and construction 'thereof,.. 151-154 Its prevalence in other countries, 155-161 Not established or guaranteed by Magna Charta, 163, 164 Trial by, not to be confounded with Judicium Parium,.. ..-- 164, 165, 166-167, 168 Conclusions concerning Its development, 171, I73r Its defects and benefits, 173, 174 Contrasted with judges, 176-180 Qualifications and disqualifications for and exemptions from jury service, .181-184, 337 Necessity of competent judicial guidance, 184-187 The principle of unanimity, 187-199' Enforced by confinement, starvation and coercion, 189-191, 198 Abolition of the jury discussed, 199-220 As failing to accomplish the ends of justice, 304, 205 And "not a good method of determimng facts," 207 INDEX. 259 JURY — continued. Encroachment by courts on sphere of jury in divers questions, - - 201, 387 Encroachment by jury on sphere of judge in certain of the United States, 208, 233 In Indiana it determines capital punishment, 308 Advantages claimed for judicial over jural determina- tions, 209, 210, 215-217 Theory of probabilities applied to the correctness of ver- dicts, - 310-311 Quaint and curious juries, 210, 311 Advantages claimed as a result of the abolition of the jury,. 217-319 Constitutionally guaranteed by the United States and the several states and territories, 225-233 The element of unanimity dispensed vfith by several states, ...338, 229 Waiver permissible in a majority of the states, 329 The number may be less than twelve in many of the states, -339, 230 In numerous instances cannot be claimed as a common law right, 330, 331 (See also. Equity), and the right may be clogged by onerous conditions, 231 In a few states judges are constitutionally forbidden to charge juries concerning questions of fact, 283 Demedietate linguae, 319 Foreign. See Fokbign Jury. Of physicians, - - 101 Sheriff's, 133,138 Special or struck. See Special Juky. Of women, 100 JUS, - 31 JUTES - 68 JUSTICIAR, 110 JUSTINIAN,-... 44,53 Code, 39, 45, 56 260 INDEX. K. KING'S BENCH. See Cubia. Regis. KING'S COURT. See Cubia Regis. "KING'S MERCY, at the," 108, 113 KLEISTHENES, dikasteries made available for criminal • prosecutions by, 16 KNIGHTS. See Milites. KTESIPHON, trial of 27 L. "LAST PRESENTMENT," recognition of, Ill LATERAN COUNCIL of 1215 abolishes ordeal,.. .142, 144, 145 LAUGRETTOMEN (of ancient Norway) not jurors but judges, 71-73 LAW, defined, 9 Divisions of, 10 Reports of, 10 Stated and applied by the courts, 11, 12, 187 And Equity blended in American jurisprudence, 206, 207, 219 Tinkering of, by Amerisan legislatures, 221 LAW AND Fact, distinguished, 9-13 Application of law to facts is the province of the court, .201, 387 Which has gradually usurped the determination of such, questions as malice, probable cause, proximate cause,. 201 -LAW OP THE LAND," 51, 164, 168 "LAW'S DELAY" (The), proposed remedies for, 185, 183 Referred to 200 LAWYERS, ancient antipathy to and exclusion of, 15, 17 Their sphere widened with growth of jury,. 125 Comment on their extreme conservatism, 189-193 Their aspect of jury trial swayed by conflicting consider- ations, 193-194 LEGAL FICTIONS in ancient Rome, 33-35 ^'LEGALIS HOMO." 108 INDEX. 261 LEG ARfi (U. S. Attorney General) referred to, 88 LEGIS ACTI0NBS,.._ 33-35 LEGI8 Terrak, 99 See liAW OF THE Land. LEGITIM ATIO per subseqiiens matrimoniam, „ 53 LEVL judges among Jews anciently taken from tribe of, .. 14 LEX AuKELiA, 43 CAiiPURNiA de repetundi, 42 JuDiciARiA (of Caesar), ^ 43 PoMPEiA de ambitu,... 43, 44 Sempronia, 42 Servilia, „. 4a LIBEL, jury in suits for, determines both the law and the fact, - 127, 128, 208- LIBEL ACT (Fox's), - 127, 234 LIBER JtjdicaIiIS. See Dom Boc. "LIBER ET LBGALIS HOMO," 100 LIBERTY OP THE Savoy. 139 LITTLETON, , 87 LOCKE (John), opposed the requirement of unanimity, 132 LOTHAIR and Eadrlc, laws of, extant, 69 LOUIS THE Pious, 92 LOUISIANA until recently provided for a jury in criminal cases only, - 226 In 1880 introduced civU jury without requirement of unanimity, 227 M. MADISON, - 130 MAGNA AssiSA, 103, 104 Chakta 110, 111, 121, 129^ 138, 142, 148 Did not establish trial by jury, 163, 165 Confirmed the ancient trial by Sectatores, 164-166 MAN-BOT. See Wergild. 262 INDEX. MASSACHUSETTS, grand jury in, — - 148 MASTERS of mysticism and scholasticism, --87, 88 MATRONS' Inquest, 100, 101 MILITES, -- 94, 104, 140, 148 Said to be the origin of county representation, 138 See also Fkebholdbiis. MISSUS, --- 47 MISTRIALS, resulting from the requirement of unanimity, - --181, 217 MONTANA, earliest abolished unanimity in the U. S., 237 MORMON, conviction of, for polygamy by a jury of mono- gamists sustained, 170 MOSAIC Law, - /.. 14 MYSTICS, 87,88 N. NAEVNINGER (or Naevn) in ancient Denmark,.- 71 Its functions judicial as well as accusatory and jural, 72 NAMBDA in ancient Sweden,- 71 A judicial body, 72 NEVADA, grand jury in, 236 NEW JERSEY, lay- judges in, 71 NEW TRIALS, introduced as a remedy for erroneous ver- dicts, - .- -117-119 The practice and policy of granting, -- 125 Grounds for, --_■_ 127 Irregularities or misconduct of jury not necessarily ground for, 117, 127, 190, 233, 234 NEW YORK, — 128 Civil Law at one time prevailed in the colony, ..- 131 Constitutional provision for civil jury and judicial con- struction thereof, . ---...181-138 Grand jury in, 148 Constitutional provision for criminal jury and the con- struction thereof, 153-154 INDEX. 263 NEW TOEK— continued. Statutory and constitutional provisions in, generally bearing on trial by jury, 6, 127, 138, 131, 133, 133,148, 153-154, 163, 181, 183, 184, 190. 303, 308, 318, 238, 339, 337, 338, 339 Issue of adultery in, must be tried by jury, 169, 239 NISI PRIUS, - 131 ■"NOLTJMUS I.EGES Akgliak mutari," 57 The phrase criticized, 192 NOBMAN origin of jury, 61, 68 Epoch, characterized by Story,.. 87-88 Conquest, 61, 74, 89, 100 Principal charges wrought by same, 90-92 KORTHAMPTON, Statute of, ..107, 108, 139, 140 NORTH CAROLINA, court of, the first to declare uncon- stitutional a statute encroaching on jury trial, 139 "'NOT PROVEN," Scotch verdict of 127, 334 NORWAY, laugrettomen in ancient, .71-73 Jury in, 157, 158 NUMERIUS NEGIDIUS, 36 o. ■OATHS in Anglo-Saxon law,. 77, 78, 81 In the Civil Law, 83 Graduated scale of, — 83 Perjury prevalent in middle ages because of multiplicity of, 84, 85 OATHSWOBTHT, jurors convicted of rendering an erroneous verdict were anciently deemed not, 115 OFFICIAL or Sworn Witnesses in Anglo-Saxon tribunals,.. 70, 74, 76, 77 After the Conquest, 90 ONUS PROBANDI, 138 OPINION formed by jury, to what extent disqualification for serving, 181, 337 264 USTDEX. ORDEAL, trial by,.... - - 78, 233 An alternative to compurgation and trial by battle, 81 Its divers forms and procedure, 79-83 Preserved after the Conquest, 90 Certain persons compellable to, 145 ORDBSTANCB of king's council (A. D. 1219), -... 145 Of Richard I - 140 Of Saladin Tithe, ...109,110 ORIGIN OF JURY, theories concerning, 6,7, 16,48, 65, 67, 68,71 Conclusions concerning, .171, 172 OSSA EXECRATA. See Coksnaed. OTHO (King of Greece), 157 P. PACKING JURIES in ancient Rome 41 PAPINIAN 56 PARES CURIAE, not jurors but judges (Sectatores) 75, 101, 163, 165 PAULUS, 56 PEERS OF Parliament, exempt from trial by jury for crimes 167, 188 PEINE FoRTB ET Dtire, 146-147 PBNN (William),. 117 PERICLES, function of dikasteries extended to civil suits by, 16 PERCOGNITIO, .102, 108 PERJURY, prevalent in middle ages, 84, 85 Led to establishment of Attaints,.. 84 PETIT JURY. See Jury, also Grand Jury. PETTINGAL (Dr.) theory of, 15, 39 PICTS and Scots, 57, 58 PLACITA Anglo-Normannica, 10 PLATO quoted, 36 INDEX. 265- PLEADINGS, in ancient Egypt, 15 In ancient Greece, .: 24 In Roman jurisprudence,- 36 In Scotland, ._ . 156. POISONING, cases of secret, originally not triable by jury,. 143 POPISH PLOT 142 POPULAR ASSEMBLIES in Athens 18, 19 In certain Swiss cantons, _ _ 4T In ancient Germany, _._ 49 In Saxon England, 63, 64, 65 PORTUGAL, jury in, 15& PRAETOR, functions of, 36, 40, 41, 45 Urbanus UTidperegrinus, ^ 30- Ordinary and extraordinary jurisdiction of, - 30, 81, 36, 37, 38, 45 Eulogized by Pomeroy, 46 PREPONDERANCE OP EVIDENCE, rule stated con- cerning, 128 PROBABILITIES, theory of, applied to the correctness of verdicts, 210-211 "PROBI ET LEGALES HOMINES,'' 97, 106- PROCBEDING IN JURE and IN JUDICIO, among the Greeks, 24 Among the Romans 30, 31, 33-86 Distinction abolished, J. 37, 45' PRUSSIA, jury in. 159, 160' Q. QUALIFICATIONS of Jurors in New York and the states ' generally 181-184 In the Federal courts, 225 QUESTIONES PERPETUAE, 41, 43 QUOTIENT VERDICT, ..117, 234 266 INDEX. R. RACHINBURGBN, -"- - - 50 REASONABLE DOUBT, rule of , stated, -- 128 Where insanity is pleaded, - 133 REOOGNITIO, - 103 RECOaNITION. See Recognitors. RECOGNITORS - -.7, 8, 97, 98 ' Supersede compurgators, 99 Originally the jurors in an assise to try the title to lauds, 103, 108 At first selected by four miliies, 104, 138 , Utilized as a machinery of assessment, _ 110, 138 Were obviously witnesses,.. 140 RECOMMENDATION orMEKCTwith verdict, effect of, 338, 334 REOUPERATORES, 31, 33, 33 REEVE, 94, 134, 137 REFEREES, their character and functions, ..238, 239 REIGNERUS or REDNER (king), revives alleged jury among Scandinavians, 71 RICHARD I, ...140, 173 ROLLO .- 94 ROMAN LAW and Institutions prevalent in Britain, 53, 55 As "the law of the land," 56-57 Original prejudice in England against, ...56, 57 Its revival in the form of admiralty and equity juris- prudence, ...60, 61, 107 Its descent from the Twelve Tables questioned, 61 The sub-structure of the civil law of all nations, 61 At one time prevalent in New York, 131 ROMAN RULE in Britain, 51-57 Its present traces and effects, 57, 58 ROTULI Curiae Regis, lo NOKMAKNIAB, 8 RUDHARTonthe jury, 161 RUSSIA, jurors in, _ 158 INDEX. 267 s. SALADIN TITHE, Ordinance of, 109, 110 SCABmi, .....50,51 Judges of law and of fact,. 53 Later equivalent to Thanes, 135 See also Schceffbn. SCANDINAVIAN Institutions, 2, 7, 71, 73, 168' Origin of jury ascribed to, 7, 71 Gained no foothold in England, ,.. 71-73 SCHOEFFEN, 50 In modern German jurisprudence, 160 A species of, still existent in New Jersey, 160, 161 SCHOLASTIC Mastbks, 87, 88 SCIRGEMOT,.... 65, 66 SCOTLAND, civil and criminal jury in,... 155, 156, 334 SECTA, mode of trial by, among the Anglo-Saxons, 74 A " trial by witnesses,". 76 Must not be confounded with Sectatores, 76 Survives as a term in pleading, 76 SECTATORES, - 71 ■ An element in Anglo-Saxon jurisprudence, 74 Their functions judicial, 75 Equivalent to Pares Curiae, _ 75 Were judges not "learned in the law," 80 Distinguished from compurgators and jurors, 84 Continued after Norman conquest, 100 SEIGNEUR, the presiding officer of a body of Sectatores,.. 167 Akin to Scandinavian law-man, 168 SEISIN (livery of), anciently attested and subsequently tried by the neighbors, 105 SENTENTIA, 30. 36, 44 SEVEN BISHOPS, trial of the, 150 SHAFTESBURY, case of the Earl of, 176 SHERIFF, origin of, 66 268 INDEX. SHERIFF— continued. Distinguished from bailiff, 65 At a later period apparently synonymous 141 Convener of inquests, 94 Empowered to choose elisors of grand jury, 141 And later the grand jury itself, 148 SHERIFF'S JURY, its nature, kinds and various functions, 133 SHERIFFS, INQUEST OF, a statute concerning grand jury, 139 SHIRE-MOOTS, - - 141 SIEYfiS declares the jury a guaranty of liberty, 158 "SILURIAN SWAINS," 55 SOCRATES criticizes dikasts, 25 Condemned by dikasts, 26 SOLON, dikasteries founded by, 16, 23 SOMERS (Lord), -quoted, 98 SOPHISTS, cause of popular prejudice against, 17, 25 SOUTH AMERICA, jury in countries of, 158 SPARTA, no dikasts in, 18 Aged judges preferred, 23 SPECIAL JURY, composition, antiquity and historical im- portance of, 218 SPECIAL VERDICT, defined, 126- Introduction and prevalence of, 201 "STANDING MUTE," ....146, 148 During reign of George HI. deemed equivalent to con- viction or confession, 147 STAR CHAMBER, 150. STATE TRIALS, peculiar practices formerly prevalent at, inEngland, 116, 149, 150 STATHAM, 87 STATUTE of Anne, abolished requirement that jurors must come from vicinage,.. 125. Of Edward III, 143 Of Elizabeth, limited attaints,... 115, INDEX. 269 STATUTE— continued. Established compulsory process against •witnesses, 124 Of George II., ...126.318 Of George III., 147, 319 Of George IV. abolished attaints, 116 Required jurors to come from the body of the county,.. 126 Prescribed entry of plea of not guilty where prisoner stands mute, 148 Limited jury demedietaU lingua, 219 Of Henry VI., regulated attaints, 115 Of Henry VIII., provided for talesmen 180 Of Victoria, abolished jury de medietate linguoe 219 See also Assise, Constitutions. Of Frauds. See Frauds. Of Westminster. See Westminster. Of York. See York. STATUTORY and constitutional provisions in New York, bearing on trial by jury. See New York. STEPHEN (King), forbids study of Civil Law in England, 56, 107 STORY (Judge), on the Norman epoch, 87, 88 On the Civil law, 88 SULLA legislates concerning Judices, 43 SWEDEN, nambda in ancient, 67, 68 Revived by King Redner, 67 Jury in, 157 SWEYN, king of England, 70 His family extinct,. 73 SWITZERLAND, jury in, 158 TACITUS, germ of jury claimed to be found in a passage of, 48 The passage analyzed by Waltz, 99 His " Agricola " cited, 55 His "Germania" referred to, 67 TALESMAN, origin and meaning of, 180 2Y0 INDEX. THANES acted as grand jurors among the Saxons, 134 THEORIES concerning origin of jury,.. 6, 7, 16, 48, 65, 67. 68, 71 THEORY OF PROBABILITIES applied to the correctness of verdicts, 210, 211 THEON or Serf, 84 THESMOTHETES, .— 17 THING or Scandinavian popular assembly, 71 THIRLWALL (Bishop) quoted, 19 THIRTEEN, jury composed of, held unconstitutional, 155 THROCKMORTON (Sir Nicholas), case of, 116, 149, 150 TITHING and Tithiagman, 60 TRIAL, forms of, in Anglo-Norman period, 99 BY BATTLE or Duel. See Duel. New. See New Tbials. BY JURY, essence of, 15, 16 Exceptions to the right of, 131, 132, 152,201, 237 See also Equity. Exemptions from,. 167, 188 See also Waiter. Objections to,. 173 Benefits of, 173, 174 Pour defects incident to, 180 Considered, 180-198 Said to be " itself on trial," 185 Its abolition discussed, 200-220 Reform therein suggested,... 202, 203 Eulogy of "our dual system,"... ..221, 222 Brougham's encomium on, 223, 224 Constitutionally guaranteed in the United States, 235-282 Not claimable as a common law right in numerous in- stances,... 230, 231 See Equity. BY ORDEAL. See Okdeal. Per Sectam. See Sbota. By the Vicinage, 105 BY "WITNESSES. See Secta, Witnesses. INDEX. 271 TEIBUNI AEEARH, 43 "TRUE VERDICT" a pleonasm,. 119 TWELVE, a favorite juridical number, __ _ gg Except in Normandy,... _ _ qq qq Still essential at criminal trials, _ 155 TWELVE TABLES (The), in Roman law, 34, 38 The descent therefrom of Roman jurisprudence ques- tioned, 61 "TWICE IN JEOPARDY." See Jbopakdt. IT. ULNOTHUS and his thousand witnesses, 88, 86 UNANIMITY OF THE JURY, origin of,.. ....188. 197 Generally condemned as an unreasonable requirement,.. .130, 181, 188-197 Has one advantage, 188 And is still not without defenders, 199, 208 Posters disagreement and mistrials, 181, 217 Formerly consummated by confinement, deprivation of sustenance, and coercion, 189-191, 198 Inconsistent with the theory of probabilities,... 191 But mathematically defensible,... 210, 211 Conflicting attitude of lawyers concerning, 193, 194 Results apt to flow from dispensing with the require- ment, 195 Abolished in certain of the United States,.. ...228, 229 UNITED STATES, jury in the,. 128 Constitutional guarantees of trial by jury in, .225-232 CoKSTiTUTiON omits mention of civil jury, 129, 130 Amended accordingly,. 130, 181 Provides for trial by jury in criminal cases, 151, 152 Aifects Federal courts only, 225 Qualifications of jurors in these courts, 225 URI, popular assembly of, 47 :272 INDEX. URTHEILBR, 50 UTOPIA, no lawyers in, 15 VACARIUS first teaches Civil Law in England, .56, 61 VAUGHAN (Chief Justice), vindicates character of jury as judges of fact,.-- 117 See also Bushbll's Case. "VENERABLE SAGES OP THE LAW," 87 VBNUE, origin of the term, -. 124 VERDICT formerly represented the united testimony of the jurors only 76. 77, 104, 105, 112, 119-123 See also Witnesses. Anciently reviewable by attaint alone, 113 Later by fine and imprisonment, 116, 143, 146, 150 Finally by new trial,-- -- -..117-119 Reversible for misbehavior or irregularities of jurors or for mistakes of counsel, 117, 127, 190, 233, 234 Pleonastic use of the term, _ 119 Various kinds of, 126, 127 Grounds for vacating or reversing, 127, 235 Principles established for estimating evidence and pred- icating verdicts thereon, reforms suggested concern- ing,- - -- ...202-203 Procedure of New York affecting, ._ 203 The law of probabilities applied to the correctness of, 310, 211 Effect of recommendation of mercy, accompanying, .233, 234 General. See General Vbbdict. Of Not Proven. See Not Peovbn. Quotient. See Quotibnt Vbedict. Special. See Special Verdict. "VEREDICTUM Patriae, 142 VlCINETI, 139 VICE-COMES. See Sheriff. "VICINAGE, trial by and verdict of, 106 See also Venue. INDEX. 273 VILLENAGE, question of, one of earliest decided by jury,. 103 VORATH, ancient accusatory body, 78, 136, 139 VORTIGBRN, - ._ 58 "W. WACKER. See Vacamos. WAGER OF LAW, equivalent to compurgation, 78 See COMPUGATOKS. WAIVER of trial by jury, generally permissible in civil cases only, ._ _ 132, 154, 155 Prevails in twenty-one of the United States and one terri- tory in civil cases, in three states in civil and criminal cases less than felony, in one territory in all cases, 229 WALES AND CoaNWALL, last resort of the Britons, _ 59 Jury in, 156 WAPENTAKE, 134 WELSHMEN, oaths of, anciently held in low estimation, ... 84 WERGILD, a graduated compensation for loss of life, 83 Retained by the Conqueror, 90 WESTMINSTER, Statute of, 104, 121, 146 WIHTRED, laws of, estant, 69 WILLIAM RuFDS, laws of, _ , 73 The Conqueror, transplants trial by battle to England, 77 His accession, '-... 87 Meaning of " Conqueror," 89 The Lion, 173 WITENAGBMOT, ....61, 68 Prototype of House of Lords, not Commons, 61, 66 Ratifies Canute's title to the crown, 72 WITNESSES, distinction between competency and credi- bility of, .-.- 5 Dikasts might be, 26 Two classes of, in Anglo-Saxon jtirisprudence, 70 18 274: INDEX. WITNESSES— continued. Official or sworn,_. ...70, 74 " Trial" by,. .76, 77, 104, 105, 112, 114, 119-122, 124. 125, 165 Anciently counted, not weighed, __. 83 Except when their oaths were of different legal value, .83, 84 Complaint-witnesses, __.76, 92 Acted conjointly with jury for a time, 123, 125 Final separation of witnesses and j urors, 1 23, 1 24 Compulsory process against, established under Elizabeth, 124 Challenged jurors first testified as witnesses before the jury, _ _ 142, 143 WOMEN, excluded from jury service, __ 100 Jury of,-. --- -- 100 WRIT of Mort d'Ancestor, 104 Of Novel Disseisin, _ 104 Of Venire, 117 de Ventre Inspiciendo 100 WRITS, in consimili casu, 104 Original, -- 104 Royal, -- 104 WURTEMBERG, jury in, 159 WYOMING, constitution of, permits abolition of grand jury, 228 Y. YEARBOOKS, : 10, 12, 87, 143 YORK, Duke of, his Code for New York contained peculiar provisions concerning jury 132 Statute of, 123