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CARSWELL 26 & 28 ADELAIDE STREET, EAST 1876 ."i X Entered accordinR to Act of Congress, in the year 1876. By JAMES COCKCROFT & COMPANY In the office of the Librarian of Congress, at Washington. V \/ ! U Ji&lA ^B* «^\, -1 ^Att-Ait^ ^J*i PREFACE. IN his preface to the present work its author observes that, "It is remarkable that no History of Trial by Jury has ever yet appeared in this country. Several learned essays on its origin have, indeed, from time to time been written, but chiefly in reviews, and the fugitive literature of the day, In Germany the subject of the Jury has of late years occupied much attention, and has been inves- tigated with laborious accuracy. I would especially mention the works of Rogge, Phillips, Gunderman, Welcker, Mittermaier, and Gneist. But no Eng- lish lawyer has hitherto devoted himself to the task of giving a full and historical account of the rise and growth of the Jury System, although it would be unjust not to acknowledge some valuable con- tributions by the late Mr. Starkie, in articles written by him in the Law Review and elsewhere ; and Sir' Francis Palgrave has, in his Rise and Progress of the English Commonwealth, thrown much light on the nature of the earliest form of Jury Trial known to our ancestors. And yet the subject is one which tmwmtwiK mmmmmmf^ iv PREFACE. can be properly discussed by those only who pos- sess competent legal knowledge ; and it might have been thought that it would have attracted the curi- osity, and exercised the pen of our legal writers. But it was, many years ago, made a reproach against us by the late great American jurist, Mr. Justice Story, that we confine ourselves too much to the technicalities of our profession.. He says : " ♦ There is a remarkable difiference in the manner of treating juridical subjects between the foreign and the Eng- lish jurists. The former, almost universally, discuss every subject with an elaborate theoretical fullness and accuracy, and ascend to the elementary principles of each particular branch of the science. The latter, with few exceptions, write practical treatises which contain little more than a collection of the principles laid down in the adjudged cases, with scarcely an attempt to illustrate them by any general reasoning, or even to follow them out into collateral con- sequences. In short, these treatises are but little more than full indexes to the reports, arranged under appropri- ate heads; and the materials are often tied together by very slender threads of connection.' " But in truth we can hardly be surprised at this. An English lawyer has small encouragement to write anything else but a ' practical treatise.' That is the only kind of literature in which he can safely appear as an author, or which gives him a chance of attaining what is supposed to be the great object of his existence — professional success. And the PREFACE. ' V public care little for historical inquiries, except such as are of a popular and amusing kind. I am by no means sanguine that the subject I have chosen will excite sufficient interest to secure it a favorable hearing ; and therefore I can hardly be disappointed in the result. But I am not without hopes that readers, if few, yet fit, may be found, who will care to know something of the origin and development of a system so important in a national point of view as that of the Jury. To such I commend my labors. I have traveled over too wide a field not to fear that I have committed some errors ; but I trust they are neither numerous nor important. And they who best know the difficulties of the in- quiry will be the most lenient in their censure." In the present edition I have taken the liberty of adding a few notes to Mr. Forsyth's text, and of correcting one or two inaccuracies in his chapter upon " Juries in the United States." James Appleton Morgan. July I. 1875, 229 Broadway, New York. i-.\,-?c/i.i««'>-*-V,i CONTENTS. CHAPTER I. THE NATURE OF THE JURY SYSTEM. Sbct. Pagb I. Various Theories respecting the Origin of the Jury ... I II. Causes of mistaken Views on the Subject 5 CHAPTER n. THE ANCIENT TRIBUNALS OF SCANDINAVIA. 15 I. The Norwegian Laugrettomen .16 II. The Swedish Nambd . . . • 19 III. The Danish Tingmzend, Na;vningcr, and Sandemsend . . 23 IV. The Icelandic T61ftar-Quidr 26 CHAPTER III. LEGAL TRIBUNALS OF ANCIENT GERMANY. I. Constitution of the old German Courts of Justice ... 32 II. The Mode of Proof in the ancient Courts of Germany ... 40 CHAPTER IV. THE JUDICIAL SYSTEM OF THE ANGLO- SAXONS. I. Trial by Jury unknown to the Anglo-Saxons . . . .45 II. The Wergild 48 III. The Fridborh 5€^ IV. The Anglo-Saxon Courts 5a viii CONTENTS. SacT, Pack 58 61 70 VIII. Kesul's of the Investigation 76 V. Examples of Anglo-Saxon Civil Trials VI. Of the Compurgators VII. Of the legally appointed Witnesses in the Anglo Saxon Law CHAPTER V. THE ANGLO-NORMAN PERIOD. I. On the legal Changes introduced by the Normans ... 78 II. Modes of Trial in Civil Suits in the Anglo-Norman Times . 82 III. The Meaning and Nature of the Judicium I'arium . . • 9t IV. The Courts established by the Assises dc Jerusalem . • . 95 CHAPTER VI. THE JURY IN THE TIME OF THE PLAN- TAGENETS. I. On the Assize as established by Ilcnry II 101 II. What sugi^csted the idea of Trial by Assize .... ixo III. Subsequent History of the Assize ...... 112 IV. On the Trial by the yurata, and the meaning of the expression Asfcisa vertitur in Juratam 115 CHAPTER VII. THE JURY CEASING TO BE WITNESSES BECOME JUDGES OF EVIDENCE. I. Mode of Trial where Witnesses were named in Deeds . . 125 II. Mode of Trial per Sectam 128 III. On the personal knowledge of the Jury as distinct from the Evidence 130 CHAPTER VIII. JURY SYSTEM IN CIVIL TRIALS. I. The Jury Process 139 II. On Special Juries 143 III. On Challenges 145 IV. On Attaints and New Trials 149 niwiivi I ■ II mr^f'^t^'i^mim^^ CONTENTS. U CHAPTER IX. JURY IN CRIMINAL CASES. Sbct. Pagi I. Ancient Mode of prcscntiinj Offenses 159 II. Rise and Growth of the Jury .System for the Trial of Accusa- tions i6s III. Tii.xl by Jury in Criminal Cases in Jersey 17a CHAPTER X. THE GRAND JURY, AND OTHER MATTERS RELATING TO CRIMINAL TRIALS. I. The Grand Jury 1 78 II. The Coroner's Jury 186 III. Tlic Jury dc Medictate Linguae 189 IV. Cliallcngcs in Criminal Trials ... .... 191 V. Question of new Trial in Cases of Conviction of Felony . . 193 CHAPTER XL REQUIREMENT OF UNANIMITY IN THE JURY. I. Origin of the Rule as to Unanimity 197 II. Question of the Reasonableness of the Rule considered . . 203 CHAPTER XII. I ON THE PROPER PROVINCE OF THE JURY. Y I. Powers and Duties of Juries in England 2ii -^41. Distinction between the Office of the Judge and that of the Jury 235 III. Mixed Questions of Law and Fact 242 IV. Presumptions of Law and Fact 243 V. Utility of Written Pleadings 246 CHAPTER XIII. THE JURY SYSTEM IN SCOTLAND. I. Jury Trial in Civil Cases 249 X CONTENTS. Sbct. PAor II. The Assize in Criminal Trials > 271 III The Verdict of Not Proven 282 CHAPTER XIV. THE JURY IN THE UNITED STATES. 289 CHAPTER XV. TRIAL BY JURY IN FRANCE AND OTHER PARTS OF THE CONTINENT. I Trial by Jury in France 295 II. The Jury in other parts of the Continent 312 CHAPTER XVI. INTRODUCTION OF TRIAL BY JURY INTO THE CRIMINAL PROCEDURE IN GERMANY. I. Syrtem of Cr-minal Procedure which Trial by Jury was intended to supersede 314 II. Introduction of the Jury Trial in Criminal Cases . . . 325 CHAPTER XVIi. ILLUSTRATIONS OF TRIAL BY JURY IN THE CASE OF ENGLISH STATE PROSECUTIONS. 331 CHAPTER XVIIL THE JURY CONSIDERED AS A SOCIAL, POLITI- CAL AND JUDICIAL INSTITUTION. 354 HISTORY OF TRIAL BY JURY. CHAPTER I. THE NATURE OF THE JURY SYSTEM. Section I. Various Theories respecting the Origin of the Jury. THE rise and growth of the Jury system is a sub- ject which ought to interest not only the lawyer but all who value the institutions of England, of which this is one of the most remarkable, being until recently a distinctive feature of our jurisprudence. In the following pages an attempt is made to investi- gate its origin and trace its hiatary, until it.assumed the well-defined form and office with whicn we are so famil- iar, but which long excited the admiration and envy of the nations of Europe, until at last, by slow degrees and to a partial extent, many of them have succeeded in adopting it themselves. The inquiry is more difficult than may at first sight appear. Trial by Jury 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 urose, as I hope to show, silently and gradually, out of «the usages of a state of society which has forever passed NATURE OF JURY SYSTEM. [Ch. / away, but of which it is necessary to have a clear idea, in order to understand how this mode of trial first came into existence. Few subjects have exercised the ingenuity and baffled the research of the historian more than the origin of the jury. No long time has elapsed since the popr.lar opin- ion was — and perhaps it even now prevails — thatnt was an institution established by Alfred the Great ; /and we prided ourselves on the idea that this was one of the legacies of freedom bequeathed to us by our Anglo- Saxon ancestors.* An enlightened spirit of historical criticism applied to the subject has, however, of late years done much to dissipate this delusion ; and it would be unjust not to acknowledge how greatly in this coun- try we are indebted for more correct views to the labors of Reeves. Palgrave, Starkie, and Hallam. But the jur- ists of Germany also deserve the praise of having in- vestigated the question with profound learning and searching accuracy, and the frequent reference made in the course of this treatise to their works will prove how fully I appreciate the services they have rendered in the elucidation of the present inquiry. Numerous have been the theories as to the birth and parentage of this the favorite child of the English law. Some writers have thought the origin so lost in the darkness of antiquity, as to render investigation hope- less. Thus Bourguignon says," " Its origin is lost in the night of time ;" and the late Chief Commissioner Adam declares that " in England it is of a tradition so high that notliing is known of its origin ; and of a perfection ' Amongst the cartoons exhibited as designs for the decoration of the new Houses of Parliament, cne of those which obtained a prize was called the First Trial by Jury. We see there the culprit brought before twelve Saxon jurors sitting in the presence of a judge in the open air. The picture well deserves its reputation as a work of art ; but as the representation of an historical fact it is untrue. * Son origine se perd dans la nuit des temps. M^m iire jur le Jury. I.J THEORIES AS TO ORIGIN. so absolute that it lias remained in unabated rigor from its commencement to the present time."* Spelman was uncertain whether to attribute the origin of the system to the Saxons or the Normans. Du Cange and Hickes ascribed its introduction to the Normans, who them- selves borrowed the idea from the Goths. Blackstone calls it " a trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof; " and he adds, " that cer- tain it is that juries were in use among the earliest Saxon colonies." In his learned work on " The Origin and Progress of the Judicial Institutions of Europe," Meyer regards the jury as partly a modification of the Grand Assize established by Henry II., and partly an imitation of the feudal courts erected in Palestine by the Cru- saders; and he fixes upon the reign of Henry III. as the aera of its introduction into England." The theory of Reeves in his " History of the English Law " is, that when Rollo led his followers into Normandy they carried with them this mode of trial from the North. He says that it was used in Normandy in all cases of small importance, and that when the Normans had transplanted themselves into England they endeavored to substitute it in the place of the Saxon tribunals. He speaks of it therefore as a novelty introduced by them soon after the Conquest, and says that it may be laid down with safety that the system did not exist in Anglo-Saxon times.* Turner, on the other hand, in his " History of the Anglo-Saxons," thinks that it was then in use, " although no record marks the date of its commencement ; " * and he ought to have added, or " notices the fact of its existence." Sir Francis Palgrave says, that a tribunal of sworn wit- nesses elected out of the popular courts and employed ' Treatise on Trial by Jury in Civil Causes (in Scotland). ' Orig. et Progi^s des Inst. Judic. torn. II. c. H. • Hist. English Law, I. c. I ; II. c. 2. * Hist. Ang -Saxons, III. 223. NATURE OF JURY SYSTEM [Ch. for the decision of rights of property, may be traced to the Anglo-Saxon period ; but that in criminal cases the jury appears to have been unknown until enacted by the Conqueror.' The opinion of one of the latest and ablest of our legal writers, Mr. Sergeant Stephen, seems to coincide with that of Reeves, for he says, " The most probable theory seems to be that we owe the germ of this (as of so many of our institutions) to the Normans, and that it was derived by them from Scandinavian tribunals, where the judicial number of twelve was always held in great veneration."* He refers also to the Grand Cous- tumier as justifying the idea that the jury is of Norman origin. But we may remark m passing, that this work was written later than the year 121 5 ; so that what- ever may be the similarity of usage between the two countries which we find therein mentioned, it is more probable that the Norman was derived from the Eng- lish. Some write- s, especially amongst the Germans, attribute the origin o' the English Jury to a national recognition of the principle that no man ought to be condemned except by the voice of his fellow-citizens. And as the ancient courts of justice amongst the Teutonic nations were nothing more than assemblies of freemen, met to- gether for the purpose of deliberating on whatever affected the interests of thegau or district of which they were the inhabitants, including the punishment of offenses and the settlement of civil claims, it has been thought that here is to be found the assertion of the same principle as per- vades the jury-trial, and that therefore the latter is de- rived from and only a modification of the former. But if this be so, how can we account for the fact that in England alone the system was developed into its modern ' Rise and Progress of Eng. CommonT'ealth, I. 256. * Comment. III. 349. I.] CAUSES OF MISTAKEN F/EH^'S. form, and that while amidst all the freedom of Anglo- Saxon institutions it was unknown, it first assumed a distinct and historical character under the reign of a Norman king? We shall see, unless I am mistaken, in the course of our inquiry, that the jury does not owe its existence to any preconceived theory of jurisprudence, but that it gradually grew out of forms previously in use, and was composed of elements long familiar to the peo- ple of this country. Where such diversity of opinion prevails, and so many learned men have professed their inability to pierce the darkness that surrounds the early history of the subject, it well becomes a writer to be diffident of his own view ; but I can not help feeling persuaded that the rise of the jury system may be traced as a gradual and natural se4aence from the modes oi trial in use amongst the Anglo-Saxons and Anglo-Nor- mans, — that is, both before and after the Conquest, — and that therefore in order to understand how it arose, we have only to make ourselves fully acquainted with those modes of trial and the state of society on which they so intimately depended. Section II. Causes of mistaken Views on the Subject In endeavoring to trace the origin of any institution which has come down to us from remote antiquity, we must carefully consider under what aspect it appears when first noticed by contemporary writers. This often differs widely from the form and character which it ac- quires in the slow growth of years, and yet its identity may be proved with as much certainty as that of the river whose well-head is a spring oozing out of a grassy bed, and which swells into a broad expanse of waters before it loses itself in the ocean. We shall only be deceived if we fix our attention upon its maturity rather than its infancy ; upon its end rather than its beginning. In 1* 3 NATURE OF JURY SYSTEM. [Ch. constitutional history this is eminently true. We must deal with institutions as philology does with words. To ascertain the derivation of the latter we resolve them into their earliest known forms, and these are often the only clue whereby we can discover the stock from which they sprung, and the meaning they primarily bore. So in the case of Trial by Jury: — we must determine the point of time when it is first mentioned as an histor- ical fact, and see what were then its characteristic features. We must know its primitive form, and observe in what point of view it was looked upon by the writers of the early ages. The subsequent changes it has under- gone will not throw much light upon its origin — nay, they rather tend to mislead us by suggesting false analogies and wrong points of comparison ; and many a specious but mistaken theory on the subject would have been avoided, if due attention had been paid to the accounts of the true nature of the tribunal which we find in the pages of Glanvill and Bracton, and of which we find in- cidental notice in contemporary annals and records. Again, we must be careful not to attach too much im- portance to seeming analogies, or mistake partial resem- blances for complete identity. It is this which has led so many writers to espouse conflicting views respecting the origin of the jury. By fixing their attention on particular points of two systems, and finding that these in a great measure correspond, they have imagined that the one must have been copied from the other. Thus some think that they discover the archetype of the jury in the Teutonic and Saxon compurgators, who were generally twelve in number, and whose oaths were conclusive of the matter in dispute. Others derive it from the Rachinburgen or Scabini of the continental nations ; others from the sectatores and pares of the an- cient county and feudal courts in this country. One important feature of the institution is by no I.] CAUSES OF MISTAKEN VIEWS. no t^»_ means peculiar to it. I mean the fact that it is a swo^ll tribunal— that its members decide under the solemn sanction of an oath. This was the case with the Dicasts at Athens and the Juoices at Rome, and the same prin- ciple prevailed in the old Norse THING and German Mali.uM, when the right of all the inhabitants of the gau or mark to be present at the judicial proceedings of these periodical assemblies, became in practice lim- ited to a few, as the representatives of the community. But sufficient attention has not been paid to what is the distinctive characteristic of the system ; namely, that the Jury consists of a body of men taken from the community at large, summoned to find the truth of dis- puted facts, who are quite distinct from the judges or court. Their office is to decide upon the effect of evi- dence, and thus inform the court truly upon the question at issue, in order that the latter may be enabled to pro- nounce a right judgment. But they are not the court itself, nor do they form part of it : and they have noth- ing to do with the sentence which follows the delivery of their verdict. Moreover, they are not members of any class or corporation, on whom, as distinct from the rest of their fellow-citizens, is imposed the task of taking part in judicial inquiries. They are called upon to serve as the particular occasion arises, and then re- turn to their usual avocations and pursuits, so as to be absolutely free from any professional bias or prejudice. Few writers, when speculating on the rise of the jury, have kept this principle of its being separate from the court and employed solely to determine questions of fact, steadily in view. They have generally confounded the jurors with the court, and have thus imagined an identity between the former and those ancient tribunals of Europe where a select number of persons — often twelve — were taken from the community and appointed J -J^ m;««^.j- it-f^-- r 8 NATURE OF JURY SYSTEM. [Ch. L 1 to try causes, but who did so in the capacity of Judges, and when satisfied of the evidence awarded and pro- nounced the doom. These are the Geschwornen-Gerichte to which the jur- ists of Germany of late years have been so fond of ap- pealing, as the model upon which they wish to reform their modern courtsof judicature, and which they assume to have been in principle the same as the English Jury.' But a little reflection will convince us that this is not so, and that the distinction above insisted on, is not a mere formal one, but of a radical and important kind. It involves, in fact, the question of the possibility of the tri- bunal continuing to exist. A court of justice where the whole judicial authority is vested in persons taken from time to time from amongst the people at large, with no other qualification required than that of good character, can only be tolerated in a state of society of the most simple kind. As the affairs of civil life become more com- plicated, and laws more intricate and multiplied, it is plainly impossible that such persons, by whatever name they are called, whether judges or jurors, can be compe- tent to deal with legal questions. The law becomes a science which requires laborious study to comprehend it ; and without a body of men trained to the task, and capa- ble of applying it, the rights of all would be set afloat — tossed on a wide sea of arbitrary, flunctuating, and con- tradictory decisions. Hence in all such popular courts as we are describing, it has been found necessary to ap- point jurisconsults to assist with their advice, in matters of law, the uninstructed judges. These at first acted only as assessors, but gradually attracted to themselves and monopolized the whole judicial functions of the court. There being no machinery for keeping separate questions ' See Rogge, Gjrichtswesen der Germanen, and Staais Lexicon, vol. VII. art. Jury I.] CAUSES OF MISTAKEN VIEWS. of law from questions of fact, the lay members felt them- selves more and more inadequate to adjudge the causes that came before them. They were oblig d perpetually to refer to the legal functionary who presided, and the more his authority was enhanced, the more the power of the other members of the court was weakened, and their importance lessened, until it was seen that their attend- ance might without sensible inconvenience be dispensed with altogether. And of course this change was favored by the crown, as it thereby gained the. jmpor^nt object of being able, by means of creatures of its own, to dispose of the lives and liberties of its subjects under the guise of legal forms. Hence arose in Europe, upon the ruins of the old popular tribunals, the system of single judges ap- pointed by the king, and deciding all matters of fact and law, and it brought with it its odious train of secret pro- cess and inquisitorial examinations. But the result was inevitable. The ancient courts of Scandinavia and Ger- many carried in their very constitution the element of their own destruction, and this consisted in the fact that the whole judicial power was iii the hands of persons who had no special qualifications for their office. Far otherwise has been the case in England. Here the jury never usurped the functions of the judge. They were originally called in to aid the court with information upon questions of fact, in order that the law might be properly applied ; and this has continued to be their province to the present day. The utility of such an office is felt in the most refined as well as in the simplest state of jurisprudence. Twelve men of average under- standing are at least as competent now as they were in the days of Henry II. to determine whether there is suffi- cient evidence to satisfy them that a murder has been committed, and that the party charged with the crime is guilty. The increased technicality of the law does not affect their fitness to decide on the effect of proofs. lO NATURE OF JURY SYSTEM. [Ch. Hence it is that the English jury flourishes still in all its pristine vigor, while what are improperly called the old juries of the continent have either sunk into decay or been totally abolished. A near approximation indeed to the proper functions of the jury is to be found in the proceedings of criminal state trials amongst the ancient Romans, although we may be quite certain that the English institution is in no way copied from them.' There we find a presiding judge, who was either the praetor or a judex quaestionis specially appointed by him, and a body of judices taken from a particular class, at one time the equestrian, and at an- other the senatorial, whose duty it was to determine the fact of the guilt or innocence of the accused.* At the close of the evidence they were said to be missi in con- silium by the judge, that is, told " to consider their ver- dict," and to each were given three tablets marked respec- tively with the letters A. for Absolvo, C. for Condemno, and N. L. for Non Liquet, one of which he threw into an urn, and the result of the trial was determined by the majority of the letters that appeared. If the fatal C. prevailed, the praetor pronounced the sentence, with which the judices did not interfere.* So far the course of procedure seems closely analogous to our own. But ' This, however, was not the opinion of Dr. Pettingall, who wrote an in- genious treatise in 1769 to show that the English jury was probably derived from the Greeks and Romans. ' It is difficult to convey to an English reader the precise import of for- eign terms of jurisprudence, without using an awkward periphrasis — and for this reason, that the words nominally equivalent have acquired by usage a diflferent sense amongst us. Thus, although it seems quite correct to render " judices " by "judges," we are so accustomed to associati with the name of the latter our own notions of their peculiar functions, that we are misled when we apply it to the Roman judices, who in many respects corresponded more nearly to our jurymen. So with regard to the Scabini — SchOppen — and Urtheiler of the Teutonic system. They were the " members of the courts " who determined both law and fact, and gave judgment — combin- ing thus the functions of both judge and jury. • See Heinecc. Antiq. Rom. Syntagma, lib. IV. tit. 18. ^] CAUSES OF MISTAKEN ^/ElVS. II the important difference is this. The Roman judices might, without any breach of legal duty, acquit in spite of the most conclusive evidence of guilt ; for they were entitled as representing the sovereign people to exercise the prerogative of mercy, and their verdict in that case implied and was equivalent to a pardon. Their functions therefore were not, like those of the jurymen of later times, restricted to the mere findingoffacts,but extended to the exercise of a power which, with us, is lodged in the supreme executive of the state. We may further add, that when the praetor announced the verdict of the majority, if it was condemno he used the words Videtur Fecisse or Non Jure Videtur Fecisse ; if it was absolvo, the words Non Videtur Fecisse, or Jure Videtur Fecisse ; and perhaps the last form was adopted not only when the facts had been proved against the accused, and there was a legal excuse for the deed, but also when the praeter saw that the acquittal was intended as an act of mercy and a pardon. I believe it to be capable almost of demonstration, that the English jury is of indigenous growth, and was not copied or borrowed from any of the tribunals that existed on the continent. In order to prove this, it will be necessary to examine what those tribunals in ancient times really were, and show wherein the difference be- tween them and our own system consisted ; a difference, in my opinion, of so essential a kind, that writers never could have been so misled as to confound them, if they had not 9ccupied themselves rather with what the jury now is, namely, the sole judge of the effect of evidence produced, and the arbiter of compensation for contracts broken and injuries received — with what it originally was, when its verdict was nothing more than th« con- joint testimony of a fixed number of persons deposing to facts within their own knowledge. Let us therefore now turn our attention to the primae- la NATURE OF JURY SYSTEM. [Ch, I. val courts of justice on the continent, and consider first those oflScandinavia, where the syjtem in many points bore suclTresemblances to our ownyas to have induced some authors to maintain that the Tatter must have been derived from it. CHAPTER II. THE ANCIENT TRIBUNALS OF SCANDINAVIA. A DANISH jurist, Professor Repp of Copenhagen, published some years ago a very learned treatise on the forensic institutions of Scandinavia,* which de- serves to be better known in this country than it is. It supplied a chasm in juridical literature, for previously to its appearance the most crude and imperfect views were held respecting the old Norse tribuna's, and Blackstone and other writers were content to take their scanty in- formation from Saxo Grammaticus, Stjcrnhook, and the Leges Saxonum, a Latin copy of the latter having been discovered in the library of Fulda in the middle of the sixteenth century. Repp, however, has investigated the subject with diligence and accuracy. He examined about forty ancient codes of law in the original languages, and has thrown much light upon what has hitherto been one of the darkest regions of forensic history. Even now it may be said to be still a terra incognita to the English lawyer; and yet the resemblances that occur between the primaeval courts of justice of the Northmen and our own at the present day, are such as might well provoke curiosity, even if they did not secure a careful and discriminating inquiry. Repp, indeed, is so im- ' Historical Treatise on Trial by Jury, Wager of Law, and other co-or- dinate forensic institutions formerly in use in Scandinavia and Iceland. 1832. This work is now very scarce, and it was with great difficulty that I was able to procure a copy. «4 TRIBUNALS OF SCANDJNIVIA. rcn. pressed with this that he does not hesitate throughout his work to speak ot the usual mode of trial amongst them as trial by jury ; and with referenee to the Nor- wegian tribunals, says, that the analogy is so strong as to exclude every doubt in regard to the common origin of the laws respecting "juries" in both countries. I venture, however, to think that he is mistaken in this point, and that his error has arisen from a twofold cause — first, from not sufficiently distinguishing the functions of a judge from those of a juryman in the modern sense of the word ; and, secondly, from not knowing or not remembering that the jurymen of England were origin- ally nothing but witnesses. In the course of the present chapter I shall have occasion to point this out more fully, when the different courts of Scandinavia come separately under our consideration. But it may be here stated generally, that throughout the wh6le of that region the characteristic of the legal tribunals was, that they were composed of twelve per- sons, taken from time to time from amongst the people, who determined questions in dispute upon oath, and whose judgment or verd'ct was decided by the majority. With reference to this mode of triai, Repp says that its antiquity can not now be determined. We discover it with the earliest dawn of Northern history; and even at that early period, as an ancient institut'on. We can trace the undoubted existence of juries (in this sense) as far back as one thousand years ; before that period the history of Northern Europe IS wrapped in Cimmerian darkness, and we can not expect to find authentic records respecting juries, where all other records fail. The use of this tribunal, how- ever, in Scandinavia was not so frequent before the beginning of the tenth century as afterwards. In earlier times it was frequently superseded by trial by battle, which was deemed the most honorable mode of settling ^mn 11] TRIBUNALS OF SCANDINAVIA. '.> disputes ; and as that began to decline on the introduc- tion of Christianity, it was succeeded by compurgation and the ordeal, which last is said to have been first es- tablished in consequence of Bishop Poppo, in the year 950, thrusting his hand into a red-hot iron glove, and drawing it out unscathed, to prove to the Jutlanders that the religion which he preached was divine. The people s?eing this, rushed in crowds to the baptismal font, and in future adopted the ordeal as a means of appealing to Heaven to determine disputed rights. The most ancient codes, however, do not sanction any other mode of trial than that by sworn judges. In none — not even in those of the tenth century — is the trial by battle mentioned, and very few allude to the ordeal. But they abound with notices of the various forms of trial by jurors ; they contain minute and elaborate reg- ulations respecting its form, its application, and its contingencies, and prescribe its use in almost every page.' The jurors, however, of the old Saxons were nothing but compurgators. I'his was the only mode of trial in use amongst them. If a man were accused of a crime, he either paid the legal fine, or proved his innocence by his own oath and that of a certain number of friends pro- portioned to the nature of the offense.* But no men- tion is made of any tribunal of sworn juries or others, acting in a judicial capacity. And this is an important fact, when we consider that frowi them came the invaders and occupants of Britain, to whom, under the name of Anglo-Saxons, we trace up so many of our most cher- ished rights and customs as freemen. ' Repp, Histor. Treatise. ' The Saxon laws are full of such enactments as the following, De ictu nobilis xxx. Solid, vel, si negat, tertia manu juret. De Vulneri« bus. »i*4 ~ l.M.u'v. ^1. tJEt. "^StiiM* . i !'■ ''I 'lilll i 1 6 TRIBUNALS OF SCANDINAVIA. Section I. The Norwegian Laugrettomen. [Ch. In Norway it was different. There causes were de- termined and offenses tried by a body of sworn jurymen in the most ancient times. We have a full account of the constitution of this tribunal in the code or law of Gulathing, published by King Magnus, in the year 1274. But this did not establish the court ; — it merely intro- duced some changes in an institution which had existed long before. In Norway there were two .solemn meet- ing or Things held periodically — the one in the North, called Frosta-THING, and the other in the South, called GULA-THING. The latter assembled in the Island of Guley, where there was a sacred place in which the court was held in the open air. Three persons holding different offices under the crown were authorized by law to nominate a certain number of deputi'^s (called Nefndarmen, or " named-men ") from each district, who attended the Things. In the Gula-thing there were one hundred and thirty-nine of these deputies ; and at the opening of the assembly each of the officers who returned them had to take an oath in the following form : " I certify, laying my hand on the holy book, and I appeal to God, that I nominated such men for Gula-thing as I con- sidered most able and discreet according to my conscience, nor did I therefore receive any gift or favor." From amongst the deputies were chosen (but in what manner is left in uncertainty) thirty-six men to act as jurors, who took their seats within the sacred inclosure, in a space marked off by staves and ropes, called Laugretta, and the jurors themselves were called LAUGRETTOMEN,' which literally means, "Law-amendment-men." This name seems at first sight to imply that they had legisla- tive rather than judicial functions to perform, but this From Laug lex and retta emendatio. , II.] THE NORWEGIAN LAUGRETTOMEN. 17 was not so. In those simple times, the written laws gen- erally specified particular cases, and the consequence was, that others were constantly occurring which the code had left unprovided for. To adjudicate upon such causes was therefore like making new laws, and hence the jurors derived their name. The Thing was presided over by a Ldf^mann or Law-man, one of whose qualifications for the office in old times was, that he could recite by heart the laws of the land; but he had anciently no voice in the decision of the causes that were tried, until an inno- vation in this respect was introduced by King Magnus. The following are some passages taken from his code : " The Thing shall last so long as the Lawman chooses, and during such time as he, with the consent of the jury, deems necessary for adjudging the causes which then are *o be heard. Their number is three times twelve ; their nomination must be so managed that some fit men be chosen from every district. Those who are chosen to be jurors shall, before they enter the court, swear an oath after the following form : " ' I protest before God that I will give such a vote in every cause, as well on the side of plaintiff as defendant, as I consider most just in the sight of God, according to law and my conscience ; and I shall always do the same whenever I shall be chosen as juror.' " This oath every man is to swear before he enters the court, the first time he serves on a jury, but not a second time, though he should be chosen. Every man must go fasting into court, and make his appearance there while the sun is in the east, and remain in the court till noon. No man must bring any drink into court, neither for sale nor in any other way. If those who are outside the sa- cred cords make there such noise and disturbance that the jurors are prevented from hearing casss, or those from pleading who have obtained leave from the lawman and «Yik.~iaifei>AK.-^Al". i8 TRIBUNALS OF SCANDINAVIA. [Ch. the jurors, they shall pay a fine of an ore silver, when ue- tected and convicted, having been previously admonished. " Those who are chosen to serve as jurors shall judge according to law, in all causes that in a lawful manner and course are hiiher (that is to Gula-thing) appealed. But in all cases that the code does not decide, that is to be considered law which all the jurors agree upon. But if they disagree, the lawman prevails with those who ag/ee with him ; unless the king with the advice of the most prudent men shall otherwise decide." Previously to the promulgation of this code the Lcg- mann had merely presided and acted as the legal adviser of the jurors, they being the judges to all intents and purposes. They were not, however, bound to consult iiim, as they were fully entitled to decide cases accord- ing to their own view of the law. Here, however,, he was invested with a most important judicial power, as in the event of any disagreement in opinion among the jurors, he could, by giving his vote on that side, make the judgment of the minority prevail. During the sea- son of the year also when the Thing vas not sitting, he was empowered to act as supreme judge, and hear and decide causes alone. Now, although Repp in his learned v/ork constantly speaks of the proceedings before this tribunal as " trial by jury," and draws attention to the analogy between it and the English jury, we must not allow ourselves to be deceived by the apparent resemblance. The Laugretto- men were in all respects judges, and not merely jurymen, as the word is usually understood. They decided both law and fact, and awarded the sentence which the law prescribed. So far they resembled English juries, that they were not a class of men holding any permanent ju- dicial office, but chosen from time to time, amongst the people, to attend the Thing and administer justice. But this was no more than happened, as we shall see, in the II.] THE SWEDISH NAMED. «9 case of the Rachinburgen of the Teutonic, and the Ariman- nen of the Lombard nations. They were a court of judges popularly constituted, but their functions were manifestly different from those of a body of men sum- moned merely to determine for the court disputed ques- tions of fact, by their own previous knowi ^ : of the case, or upon the evidence of witnesses before them. The Norwegian king, Magnus, seems to have disliked the popular element in this court of the Laugrettomen, and he gave his countenance to trial by wager of law or compurgation, the meaning of which will be hereafter explained. This rendered the use of the court less frequent, although it continued to subsist in a modi- fied form for many ages afterwards ; and remains of it are discovered in the code of King Christain V. of Denmark, which was enacted in the year 1683. Section II. The Swedish Nambd, In Sweden a similar tribunal existed from time im- memorial. In the ancient codes of that country it is most frequently called Nambd ;' and there were several kinds of it. Thus we find mention of the Konungz Nambd, or King's Jury, the Lawman's, the Bishop's, and the Hundred's jury. The first was a court of appeal from the Lawman's court, as that was from the Hun- dred. Causes and offenses of every kind were tried before these courts, and whenever any case of impor- tance occurred, which required judicial investigation, it was the duty of the magistrate to summon an extraor- dinary Thing or meeting, and nominate a Nambd to take cognizance of it. For it was only at a Thing that the • Solemnis full et adhuc est Hyperboreis nostris Nembdae usus, cujus offi- cium ant« fuit de facto tantum cognoscere, examinare, statumque causa ex- ponere, ati constat ex jure nostro. Welt, Themis Romano-Svecica, quoted by Repp. Nimbd, is sometimes spelt Nftmnd and Namd. / (ife>«d4:i:b'.i**i. iik-^i^f "t^^tiiiXt Repp, in his Treatise, p. 132, finds fault with Vogt for speaking of the Sandemaend in his Comment, de Homicidio as judges. He says: " He (Vogt) could not conceive the possibility of a court without them. The trial by jury in its ancient form — the primaeval simplicity of the northern courts — was unintelligible to him." But surely the idea of courts of justice with- out judges would be an absurdity. It matters not, as resperts the name bj which the members ought to be called, whether they are learned lawyers or not. They are, to jU intents and purposes, judges. II.] Tllh. ICELANDIC TOLFTAR-QUIDR. 27 held.' There were, therefore, thirteen of these Things. Over each slnre presided a magistrate called Godi, and three of these nominated for rach Varthing twelve judges, who tried causes in the first instance. From these lay an appeal to the Fiordungs-d6m, a court held about Midsummer at the Althing,* and composed of thirty-six judges nominated by nine Godar (plural of Godi) for each quarter of Iceland. From this a cause might be appealed to the Fimtar-d6m, the fifth court, so called because it was the fifth in number of the courts held at the Althing. This was the tribunal of last resort, and the judges were nominated by the Godar, twelve for each quarter of the island, so that they nominally amounted to forty-eight. The law, however, required that the plaintiff should reject six of these, and the de- fendant another six ; so that the number who actually sat to try a cause was reduced to thirty-six, or three times twelve, which was considered a doubly sacred number. But besides these regular courts, civil and criminal cases were tried by jurors in sets of five, nine, or twelve, according to the nature of the case. The last was called T61ftar-quidr (a nomination of twelve), and was much employed in cases of diapute between the Godars and their Thingmen. In such instances the Godi nominatv'id eleven, and the other party the twelfth, who, however, was obliged to be one of the other two Godar who bore office in that Thing. But this tribunal was not confined to such causes alone. In other cases, eleven of the jurors were always nominated by the Godi, and he himself was the twelfth. And those were held to be the best qualified to serve, who were the nearest neigh- bors to the place where the cause of trial arose. If they did not agree, the judgment of the majority was binding, ' Our knowledge of Icelandic law is chiefly derived from the Gr4g&s the Grey-Goose code. • That is, All-thing, general court. a8 TRIBUNALS OF SCANDINAVIA. [Ch. and it was determined by lot who should first declare his opinion. Nf w according to the expression of Repp these dif- ferent bodies of jurors " were employed for judging of facts," and this may seem to imply that, as in the case of English jurors, their province was confined to this. But this does not seem to be his meaning, for in another part of his work, when speaking of the limited nature cf the Lawman's authority, he says: "Still he was entirely dependent on the Thingmen (deputies of the legislative assembly) in his judgments, and on the juries as a select body or committee of the Thingmen ; or^ rather, the judgment was theirs:, and not his. Such was the case in Iceland." If so, then the Icelandic jurors had exactly the same office as those of Norway or Den» mark ; and what has been already said of the latter will equally apply to them. The truth, however, is, that questions of law and fact in those early ages, w^re gen- erally so simple as to render a separation between them unnecessary. A decision upon the latter involved cer- tain lef;al consequences which were definite and clear, and which were as wel' known to the members of the Thing as to the professed lawyer. The jurors, there- fore, in determining the facts of the case, also ap- plied the law, and were thus both judge and jury com- bined. Legal process, however, in Iceland was by no means deficient in intricacy. It may be interesting to quote one or two cases from the Nidls Saga,' to show that in those primitive times, as well as in our own day, justice was sometimes defeated by technical objections. An eminent lawyer, named Asgrim, had a suit at the Althing against Ulf Uggason, and " there happened to Asgrim a thing which 'arely occurred in any cause in v.'hich he ' Repp, Historical Treatise, 167. II.] THE ICELANDIC TOLFTAR-QUIDR. 29 was concerned ; he was nonsuited for mistaking a point of law. He had nominated five jurors instead of nine. This was pleaded in defense." In another case, Odd Ofeigson prepared his cause for the Althing, and sum- moned nine jurors out of the district ; but it so happened that one of them died, and Odd instantly summoned another in his place out of the district. Against this, an objection was made by two lawyers, Styrmir and Thorarin, who observed : "We do both of us perceive that Odd has here mistaken a point of law in the pre- liminaries of this cause, summoning a juror out of the district in place of the deceased, for this he ought to have done at the Thing; he must accordingly be non- suited." One of them then went up to the court and spoke as follows: " Here are men ready to defend Ospak (the defendant) in this cause. Thou (addressing Odd) hast made a mistake in the preliminaries, and thou must be nonsuited ; thou hast to choose one of two things : either give up the "[?.atter entirely, and proceed no fur- ther, or we will put in our plea, and avail ourselves of the circumstance, that we are a little more versed in the law than thou art," They at the same time stated to him wherein the error lay, whereat, says the Saga, Odd was astonished and greatly vexed, and left the court. Odd's father, Ofeig, was a lawyer of a less formal school ; and he spoke as follows : " How does it happen that Ospak is not outlawed ? Are there not sufficient grounds to condemn him? Has he not, in the first p'ace, com- mitted theft, and then slain Vali ?" To this the court answered : " All this is not denied ; nrr is it pretended that this issue of the cause is grounded in justice or equity ; but there v/as an informality in the preliminaries of the process." Ofeig replied, " What informality could there be of greater moment than the crimes which this man has committed ? Have you not made an oath that -iiwi'li j.li^*l>A^ „';*'{,- ;.U: pothesis is true, that the jury was copied from the courts of Scandinavia. For I hope to show that the form of our jury trial was then first established ; and it is not pretended that the Norman kins sent commissioners like the Decemviri to collect the laws and customs of the North, before he instituted the Grand Assize. If that mode of trial was taken from those countries, it must have gained footing here at the time when the migrating hosts who landed on our shores re- tained the liveliest recollection of the usages of the nations of which they had so recently formed a part. If an identity between the institutions is supposed to be proved by their resemblance, let those who maintain that theory ex- plain why, the more we examine the periods following the Saxon and Danish immigrations into Great Britain, the more certainly we can prove that this mode of trial had then no existence.* ' 1 he most remarkable approximation to our own institution seems to have .< ,;d at an early period in Russia for the trial of criminal cases. In the 'i^\~ .If' tr&nslation of M. Karamsin's Histoire de Russie, we find the follow- ing . \..A plus ancien code des lois russes porte que douze citoyens asser- meiitisdiscutentsuivant leur conscience les charges qui pisentsur un accus^, et laissent anz juges le droit de determiner la peine. CHAPTER III. LEGAL TRIBUNALS OF ANCIENT GERMANY. Section I. Constitution of the old German Courts of Justice. THE earliest courts of the various German tribes were very much alike .' The basis of the Teutonic polity, and what may be called the unit of the system, was the division of the country into districts, called marken, several of which made up a gau. At the head of each gau was a territorial lord, who led forth the military array in war, and sat as president of the courts of justice within his jurisdiction. Thus, so late as the year 1299 the Archbishop of Mayence presided over the landgericht of his province. But as the increasing frequency and number of the tribunals rendered it im- possible for the suzerain to attend all in person, presi- dents were appointed, who were at first chosen by the ■community at large,* but afterwards nominated by the king, until in many instances the office became a kind of hereditary right. The name we find usually applied to ^ For the acccount here given of the old German tribunals, my authori- ties are chiefly Savigny's Geschichte des Romischen Rechts, Rogge's 'GerichUwesen der Germanen, and Grimm's Deutsche Rechts Alterthttmer. The latter work is a mine of antiquarian legal lore. * Eliguntur in iisdem conciliis et principes, qui jura per pagos vicosque reddunt. Tac. Germ. c. 12. CH. III.] OLD GERMAN COURTS, 33 s vicosque these persons is grafio or graf/ for which the Latin -equivalent comes, frequently occurs: other appellations, such as vogt, tunginus, missus regis, missus comitis, are also used ; but at a later period these were superseded by the more general word richter. The meetings at which judicial as well as other pro- •ceedinj^s took place were of two kinds, called " unbid- den " (ungebotene), and " bidden " (gebotene) ; or, as we should say, ordinary and extraordinary. The ordinary were held at stated times, once, twice, or thrice every year, according as the usage varied in dififerent places. This was the " mallum legitimum " of the Franks and the gemot of the Anglo-Saxons. No notice was re- quired in order that the freemen of the district might attend, for the day or days of meeting were known to all ; and if they did not appear, they were liable to a fine. The extraordinary, however, were only sum- moned when there was some special business to be trans- acted ; and previous notice was given of the time and place of meeting. Here, too, it seems that the absen* tees were fined.* The presiding " comes " or *' missus " had, however, no voice in the decision ; and his duties, like those of the archon at Athens and praetor at Rome, were merely ministerial. The members of the court (urtheiler or schdfifen) had the right to determine all questions of law and fact ; and, with the assistance of witnesses in the- «arly ages, no doubt did so. But as the law became * This word has been usually derived from grau, canus, as though the idea of age or seniority were implied. But Grimm suggests the derivation ravo tignum (rafter), doms. Hence ^ravo, contubernalis, comes. Gerefa, from which we have scir-gerefa, or sheriiT has the same root as graf. * Grimm, Deuts, Rechts Alterthttmer. These meetings or courts had varioiis names, derived (i) from the district, or (2) from the presiding offi- cer, or (3) from the persons who attended them. Ta;ts we find them called (i) landgericht, gaugericht, markgericht, stadtgencht, (3) grafen gericht, vogtsgericht, probstgericht, (3) rittergericht, lehengericht, mann gericht. !i '! i 34 TRIBUNALS OF ANCIENT GERMANY. [Ch. more technical, and the transaction^ of mankind more complex, the want of assistance from those who had ap- plied themselves to legal studies would soon be felt. Accordingly we find mention of such persons under the name of Sachibarone, whose ofifice it was to act in the capacity of legal assessors or advisers to the uninstruct- ed members of the court. But when, instead of a cer- tain number of freemen, taken indiscriminately, se- lected persons were, as we shall presently notice, appointed judges, whose office required them to acquaint themselves with the law, the Sachibaro was superseded in his functions, and the name almost entirely disap- oears,' The presiding officer held a staff or wand in his hand, and sat on a chair (stuhl) v/hich was frequently of stone : while the other members of the court were seated beside or Deneath him on a bench.' These, who were in reality the judges, consisted origin- ally, as we have seen, of all the freemen of the commun- ity, whose duty it was to attend the meeting ;* and as it was necessary that every sentence, if not unanimous, should be determined by a majority, three freemen at least must be present to constitute the court. It was in order to obviate the occurrence of either one of two op- posite evils, namely the absence of a sufficient number, or * This is the view which Grimm takes of the meaning of Sachibaro. Deuts. R. Alter. 783. One of the old Bavarian laws was the following : Comes vero secum habeat judicem, qui ibi constitutus est judicare, et lib- rum legis, ut semper rectum judicium judicet. Rogge thinks that this ap- pointment of a judex was peculiar to the Bavarians and Alamanni. See his Gerichtswesen Germ. ch. iii. § 14. * It seems that the president of the tribunal sat cross-legged, to signify the repose and gravity proper to his office. An old law prescribed that he should sit " like a grim-looking lion, with the right foot crossed over the left." See Grimm, D. R. A. 763. ' Hence they were called dingpflichtige and dingmSnner, tV. men whose duty it was to attend the ding or court. It deserves notice that the I^atin equivalent for these words used by the old writers, is veridici. III.] OLD GERMAN COURTS. 35 the conflux of too many at these meetings, that a new custom was introduced. The president, or perhaps in some instances the parties themselves, chose beforehand certain freemen, who were required to form a court for the hearing of the particular case. Their number varied, but was generally seven, and never, for the reason before given, less than three. The name by which those who were thus nominated to act in a judicial capacity were known amongst the old Franks was Rachinburgen.* Savigny applies this term to all the freemen, who, in contradistinction to the numer- ous body of the unfree (unfreien), had the full civic fran- chise ; but Rogge and Grimm think it was restricted to those who were from time to time chosen to discharge judicial functions, and who did not form a separate class in the community, any more than our own jurymen. Perhaps, however, there is no great difference between these two views ; for as all the freemen were competent to fill the office of judges, they were all in one sense Rach- inburgen, or, at all events, might at any time become so by attending the courts. Amongst the Lombards the corresponding name was Arimannen;* and they are both rendered in old charters ' One of two derivations has usually been g'wen of the nrst two syllable* of this word : (i) from racha, i.e. sache. causa, vhence comes recht : (2) from rek or reiks, nobilis, implying the free memberc of the community, which Savigny prefers. Grimm, however, rejects both these, and derives the word from the Gothic ragin, which he says is employed merely to strengthen the idea of the word with which it is compounded. He thinks therefore, that the true interpretation of rachinburgen must be found in the meaning of burgen, which he derives either from burg, oppidum, so that a rachinburg would be civis optimo jure \ or from burg, vadimonium, with reference to the system of mutual suretiship that prevailed amongst the Germans and Anglo-Saxons, as will be afterwards explained. * Thus we find in a grant of the Emperor Henry IV. (a. d. 1084) the words donamus insurper . . . monasterio liberos homines quos vulgo Ari- mannos vocant habitantes in castello S. Viti. Savigny Gesch. i. c. 4. This writer inclines to the derivation of Arimannus from Ehre, signifying not honor in the restricted sense of nobility, but full rights of citizenship, tht 36 TRIBUNALS OF ANCIENT GERMANY. [Ch. and legal documents by the Latin equivalent of boni homines, " good men and true." Before giving judgment, the members of the court retired from the presence of the presiding officer in order to consider their decision, or verdict, as it may be not improperly called.' Such, then, were the Germanic courts of justice in their earliest form. They were composed of the freemen of the district, and presided over by the Graf, or Count. All had a right to attend and take part in the judgment, which therefore, as we may well suppose, was sometimes of a tumultuous character.* At a later period it was different, and we find judges duly appointed to the office, and called Scabini,* 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 difference be- tween them was, that it was optional to the latter to at- tend or not, as they pleased, except at the stated yearly meetings, while the Scabini were obliged to sit by virtue of their office. This change seems to have been intro- duced by or about the time of Charlemagne; for the name does not occur in any documents of an earlier caput of the Romans. The word would thus have the same meaning as Rachinburgen, according to the etymology of the latter, which Savigny pre- fers. And certainly the examples which he adduces strongly bear out the correctness of his view, that both words were applied to the class of freemen generally. ' The existence of this practice, so curiously similar to that of a modern jury, is established by Grimm, who quotes from old annals and records a great variety of instances. D. R. A. 786. * Of this we have an instance in the early part of the seventh century : Comes quidam ex genere Francorum cognomine Dotto, congregati non minima multitudine Francorum, in urbe Torndeo, at erat illi injunctum ad dirimendas resedrat actiones. Tunc. . . .prsesentatus est quidam reus, quern omnis turba acclamabat dignum esse morte. Bouquet, 3, 533, cited by Savigny, I. c. 4, art. 2. ' Scabinus is derived by Grimm from scapan, " to order or decree.' The Italian scabino, Spanish esdavin, and French echevin, are all the same word. L-*S;.V>.t^v-,r.;>?„.> III.] OLD GERMAN COURTS. 37 date,' but they are frequently used in the capitularies of that monarch. 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: "ut nullus ad placitum banniatur (summoned)... exceptis scabineis septem qui ad omnia placita praeesse debent;"* but on solemn and imoortant occasions they were increased to twelve.* Grimm remarks that there is an unmistakable relation between these two numbers so ap- plied — for as seven is the smallest majority that can exist amongst twelve, it was therefore necessary that seven at least should be agreed, to enable the court to pass sen- tence.* But to entitle this argument to weight, it ought first to be shown, that in order to pronounce a valid judgment, the seven, in ordinary cases, were required to be unanimous. Otherwise there seems no reason why any other number greater then seven should not have answered the purpose equally well. Eight or ten admit of majorities consisting of five or six, which would be as efficient as one of seven, unless it were a fundamental rule that seven at least must, in all cases, concur in a decision. This, however, Grimm has not shown, nor do I believe it to have been the fact. While noticing the many points of resemblance be- tween the Scabini, or judges of the Teutonic courts, and the English jury, Savigny mentions one important dif- ference, that the former decided all questions of law and fact alike ; whereas the latter are restricted wholly to the finding of facts, and the law applicable to the case is ' Savigny, lb. • Ut missi nostri, ubicunque malos scabineos inveniunt, ejiciant, et totius populi concensu in loco eonim bones eligant. et cum electi fuerint, jurare faciant, ut scienter injuste judicare non debeant. Capit. ann. 829 ' Capit. ann. 803. * Capit. ann. 819. » Deuts. Rechts. Alter, 777. Sometimes, but not often, we find the number of the court consisting of a multiple of seven or twelve. 38 TRIBUNALS OF ANCIENT GERMANY. [Ch. laid down by the presiding judge.' He observes that this is analogous to the proceedings of the Roman tribu- nals, where the praetor directed the judices as to the law ; and he declares himself unable to account for an agree- ment between the two systems in a practice in which they both differed from the custom of the Teutonic courts, with which the jury has so much in common. But when we come to consider what were the original and proper functions of the English Jury, we shall see that the difficulty felt by Savigny vanishes at once. It never was intended that they should determine any ques- tions of law. They had in fact no judicial duty to per- form. They were summoned to inform the court, which was distinct from themselves, of certain facts of which they had peculiar means of knowledge, and then their of- fice was at an end. 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. But, moreover, Savigny is not quite correct in saying in this sense, that amongst the Romans the question of law was for the praetor, and that of fact for the judices. In civil causes the parties went before the praetor, who seems to have settled what the law was, supposing the facts proved, and he the: appointed a judex to try the case, who might, if he thought fit, call in as assessors per- sons learned in the law to assist him with their advice ; and as they sat not as magistrates on the tribunal, but on benches, as it were ad pedes judicis, they were called Ju- dicis Pcdanei. This is the meaning of the passage in ' Gesch. Rom. Rechts, x. c. 4, art. 2, Die SchOffen. Bernard!, in his Origine de la Legislation Francaise, has confounded the distinction between the Scabini and the Rachinburgen, and imagines that the boni homines were persons chosen to represent the whole community at a trial, and were the judges of fact, while the Scabini were judges of law. If this were so, the tribunal would closely resemble that of the modem jury. But Savigny hat clearly shown that this view is erroneous. III.] OLD GERMAN COURTS. 39 Aulus Gellius : Finally, to prevent all danger of deter- mining questions of law by persons not learned in the law, they used to appoint one or more assessors, learned in the law, by whose advice they (the judges) were bound to determine all questions of law ; ' which Mr. Starkie, by mistake, applies to the judices presided over by a praetor at the public criminal trials, who do, as before noticed, present some curious features of resemblance to a modern jury.* The nearest approach among ourselves to such a tribu- nal as the Scabini, is the House of Lords when it sits as the High Court of Parliament to try a peer, or, in the case of an impeachment, a commoner ; on which occa- sions the Lord High Steward acts as president, but the peers are judges both of law and fact. This, however, is only during the sitting of parliament ; for when such a trial takes place during the recess, it is the court of the Lord High Steward, to which the peers are summoned, ' Denique ut tanto minus esset periculi ne imperiti judicarent, solebant aliquanda iis unus aut plures judicii socii jurisperiti adjungi, quorum con. silio omnia agerent. Noct. Att. xii. 13. See Heinecc. Antiq. Rom. Syntag. iv. tit. 5, 17. * In his Law of Evidence, I 5, n (d), Mr. Starkie says : " Tlie principal and characteristic circumstance in which the trial by a Roman differed from that of a modem jury, consisted in this, that in the former case, neither the praetor, nor any other officer distinct from the jury, presided over the trial to determine as to the competency of witnesses, the admissibility of evidence, and to expound the law as connecting the facts with the allegations to be proved on the record ; but in order to remedy the deficiency, they resorted to this expedient : the jury generally consisted of one or more l&./yers, and thus they derived that knowledge of law from their own members which was necessary to enable them to reject inadmissible evidence, and to give a cor- rect verdict as compounded both of law and fact." The expressions " jury " and " verdict," here used by Mr. Starkie, tend only to mislead. He mis- takes the calling in of assessors by a judge in civil causes, for the addition of lawyers to the panel of judices, who in criminal trials at Rome determined the question of guilt or innocence, and who were, in many respects, analo- gous to modem jurymen; but we never find any jurisperiti added to them. 40 TRIBUNALS OF ANCIENT GERMANY. [Cm. and he is then the sole judge of matters of law, while they are triers of matters of fact.' Section II. 'ii The Mode of Proof in the Ancient Court t of Germany. We have next to consider the mode of proof by which questions were decided amongst the ancient Germans ; and the inquiry deserves particular attention from the important bearing which it has upon the origin of trial by jury amongst ourselves, as it will be hereafter explained. But so much as rebates to the use of compurgation as a means of determining questions of innocence or guilt, as well as other disputes, may be conveniently deferred un- til «ve speak of the judicial system of the Anglo-Saxons,, pf which it was a prominent feature. Here it will be suf- ficient to notice the character and functions of witnesses, not called like the compurgators merely to assert their belief in the credibility of a party, but to depose to cer- tain facts supposed to be within their own cognizance. But it will be necessary to remember that ourattentioa is here directed to a state of society entirely dififerent from any which now exists in Europe ; and we must en- deavor, as far as possible, to divest ourselves of the ideas and prejudices derived from modern systems of judica- ture. One of the most.striking characteristics of the old- en time was the unbounded confidence placed in the oath; or word of a freeman legally competent as a witness. It was in general conclusive of a matter in dispute, and when called for in due form, had all the effect of a deci- sion by a court of justice." But all freemen were not equally competent to give evidence in all cases. Only those who were associated as inhabitants of the same mark (markgenossen) could be witnesses for or against ' See 19, State Trials, 962-964. * See Rogge, Gerichtsw. der Germ. 93-131. Alter. Grimm., Deuts. Rechti. III.] OLD GERMAN COURTS. 4« each other. And of these the competency varied accord- ing to the subject-matter of their testimony. With re- spect to such things as might well be presumed to be of public notoriety within the district, such as the right to the possession of land, as proved by acts of ownership, or offenses against the peace of the community, every one of the markgenossen who possessed a certain amount of property might give evidence, although he had not act- ually seen what had occurred.' Nearness of neighbor- hood in such cases was deemed sufficient to qualify a man for being a witness, for he could hardly in th e times be ignorant of matters of common repute around him. Here we see what credit was given to the testimony of the vicinage; a principle. which had such an important influence upon our own early jurisprudence. Hut besides circumstances and events of general inter- est to the community, to prove which all the free mem- bers were competent witnesses, there were, of course others of a private nature to which the same presumption of public knowledge could not apply. To attest these, therefore, the attendance of persons was required who might be able, when called upon afterwards, to declare what had taken place in their presence. Thus, where the right of succession in a father to a wife's property de- pended on the birth of a living child, witnesses were sum- moned to be present at the lying-in* — a custom which still exists in this country when children are born to the reigning sovereign. So also in the case of entering upon an inheritance (or " being served heir," according to the expression of the Scotch law), the alienation of lands, * Ille homo qui hoc testificare voluerit, commarchanus ejus debet esse, et debet habare sex solidorum pecuniam et similem agrum. Leg. Bainv. T. i6, c. I, § s. Sani si eos (caballos) in re sua damnum sibi facientes invenerit clauseritque. vicinis suis et consortibus contestetur. Leg. Burg. T. 49, c. 3. * — hsereditas matema ad patrem ejus pertineat, eo tamen si testes habet pater ejus quod vidissent ilium infantem oculos aperire ut potuisset culmen domus videre et quatuor parietes. Leg. Alam. T. 92. /iii-'lii^iiZit *^JiS>.i{. -JiHii: 42 TRIBUNALS OF ANCIENT GERMANY [Ch. the manumission of a serf, the buying and selling of chattels, the payment of debts, and contracts generally. And where homicide was committed, even in self-defense or from any other justifiable cause, it was necessary for the slayer immediately to make known what had hap- pened, to the nearest persons he could find, that their testimony as to his conduct and demeanor immediately after the event might exonerate him from guilt. Com- mon prudence, indeed, would dictate to every man the same course at thv? present day. Among the ancient Germans the credibility of all com- petent witnesses was the same. Their testimony was deemed of equal weight, nor was the character of the witness taken into account. Indeed, with one exception, no kind of ciime disqualified him or affected his legal credit. The offenses of which society then took cogni- zance were almost entirely those of violence against per- sons or property. But these could be all atoned for by the payment of a pecuniary compensation or fine, and when this was satisfied there was an end of the matter, and no stain rested upon the character of the offender. The exception to which I allude was the crime of having borne false ./itness : a person guilty of this was incapable of giving testimony again.' At a later period, however, as in the time of Charlemagne, we find it laid down that a witness ought to be one cui ille, contra quern testimo- niare debet, nullum crimen possit indicere.* Except amongst the Lombards, all evidence was given upon oath, and as a natural consequence from v/hat has been already said, it had the same effect as a judgment of the court. It was, in fact, the judgment pronounced by the mouths of witnesses ; for, in most cases, all that was re- quired was to ascertain the truth of the matter in dispute * Leg. Rothar. c. i6. Leg. Bainv. T. 8, c. 5. • See Rogge, Greichts. Germ. • ' Capit. lib. iii. c. 32. III.] OLD GERMAN COURTS. 43 — and this tV jir testimony declared. Hence, no formal judgment on the part of the members of the court (schoffen) was required, and where the law had clearly prescribed what consequences were to flow from proved or admitted facts, their office was superfluous. The facts were found by the witnesses, and their evidence was equivalent to a judicial decision of the question.' Hence, also, we find that their number, like that of the judges, was usually seven," and at a somewhat later period they are spoken of as associated with the presiding missus, or comes, in the trial of causes ; ut adjutores Comitum sint ad justicias faciendas.* And even when it became customary for a defendant to adduce counter evidence on his part, so that there arose a conflict of testimony, this was not weighed and determined by the court, but the credibility of either side was decided by the combat, as an appeal to the God of Truth. Nothing can more clearly prove that the evi- dence was regarded in the nature of a verdict or judg- ment, for usually the court itself, in convicting an offend- er, did no more than sentence him to undergo the ordeal, which gave him still a chance of 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.* Moreover, the witnesses not only deposed to facts, but also gave evidence with respect to value, where an in- jury to property had been committed, or payment of a debt had been withheld. In other words, they deter- mined the amount of damages. For their testimony was conclusive, and the court did not attempt to interfere.' ' This explains what Malblanc says in his Doctrina de Jurejurando : Id enim observavi, olim prsesertim inte Germanos difficulter judices s. arbitros a testibus discerni potuisse. Hence, the witnesses were said to adjudicate, as in an example from an old record quoted by Grimm, testes qui, prsesentes fuerunt, et hanc causam dijudicaverunt. Dents. R. Altev. 859. ' Grimm, ubi supra. " Capit. Louis, ann. 8ia. * Sachsenspiegel, ii. art. 12. Rogge, Gerichtsw. Germ. 89. • Rogge, Gerichtsw. Germ. c. iv. § 28. K Vol. ni. 588, n. (r). » In " The Chronotype — an American Memorial of Persons and Events " — New York, April, 1873. Vol. i. No. 4— we find on page 117, the following: '* In Woodward's * History of Wales from the Earliest Times,' accounts are given of several sovereign Welsh princes and kings of the name of Morgan 46 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. If it had existed, it is utterly inconceivable that dis- tinct 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 (A. D. 568-616) to the Norman Conquest. Those who have fancied that they discover indications of its existence during that period 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 un- known 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 adoption at a later period neither unlikely nor abrupt. This is, in- deed, just what we might expect. Our early jurispru- I ' i.i III i't \ .illi I -il^ warlike, and who constituted themselves formidable barriers against Anglo- Saxon domination and encroachment, some of them living as far back as A. D. 400. To one of these ancient kings — Morgan of Gla-Morgan — about A. D. 725, is accredited the invention and adoption of the Trial by Jury, which he called ' the Apostolic Law.' ' For,' quoth our regal and pious namesake, ' as Christ and his twelve Apostles were finally to judge the world, so human tribunals should be composed of the king and twelve wise men ! And this, it seems, was a century and a half prior to the reign of Alfred the' Great, to whom is generally accredited the honor of originating this form of trial." We find other reference to Woodward's History, but have been unable to procure a copy of the book itself. The Morgan of Gla-Morgan here referred to, was an early chief or king of Wales, who took up arms against Edward II., who laid heavy imposts upon the Welsh to support his war in France. He is referred to as prominent in the records of that country in a black-letter volume in the Astor Library, New York. " The historie of Cambria, now called Wales, written in the British language above two hundred years prist : translated into English by H. Floyd, gentleman : corrected, augmented, and continued out of records and best approved authors, by Daniel Powell Doctor in Divinitie. Imprinted at London by Rafe Newberie and Henrie Denham cum priveligio Regiae magistratis: 1584, pp. 71, 79, 122, 380, 382. His province of Gla-Morgan was captured in A. D. 987, by Meredyth, another Welsh king, and despoiled, " so that no place was free from sword and fire " — Id. And see also Warrington's " History of Wales, p. 337. [Ch. IV.] TRIAL BY JURY UNKNOWN. 47 dence was too imperfect not to be in a tr?.nsitionary state. Its history is analogous to that of our conjtitu- tion which has been formed by the slow growth of ages, and is the result of experience rather than the offspring of theory. But if this be true of our political, it is still more so of our judicial, institutions. The prejudice against any sudden change in them is great. They are interwoven with the usages and customs of the people, whose rights seem to be endangered when the mode of maintaining or enforcing them is altered. It has been well said, that " by far the greatest por- tions of the written or statute laws of England consist of the declaration, the re-assertion, the repetition, or the re-enactment, of some older law or laws, either custom- ary or written, with additions or modifications. The new building has been raised upon the old groundwork ; the institutions of one age have always been modeled and formed from those of the preceding, and their Hneal descent has never been interrupted or disturbed." ' The proof of the non-existence of the jury amongst the Anglo-Saxons must depend upon a careful consider- ation of their judicial system, so far as we are able to understand it ; and this, therefore, must be the subject of our inquiry. But in order to obtain an accurate idea of that system, it is necessary, first, to notice two re- markable features of their society, not indeed peculiar to them, for we find that they existed on the Continent as well as in England, but which seem to have been more fully developed, and to have had more influence upon the national institutions here than elsewhere. These were the Wergild and Frithborh, both intimately con- nected with each other — upon which it will be useful to say a few words. ' Palgrave's English Commonw. 1. 6. 48 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. Section II. The Wergild. The wer-gild (called also man-bot) was a composition in money to be paid for personal injury done to another, according to the value which the law set upon his life.* For amongst the Saxons, and indeed all the nations of the Teutonic familyi every freeman was deemed to pos- sess a certain pecuniary value, which varied according to his rank ; and this determined the amount of compen- sation which he was entitled to receive for a wound or a blow.' We find it mentioned in the earliest Anglo- Saxon laws extant — those of King Ethelbert — which are full of minute regulations on the subject. Every bodily injury, from the loss of a nail to the destruction of life, had its appropriate price, which must be paid by the of- fender ; and it was only on failure of this payment that he could be punished for his wrongful act. A regular tariff of penalties was thus established, which, as will be here- after noticed, gave rise to appellations by which different classes were distinguished. The king had his wergild as well as the lowest ceorl.* The great object of this system of pecuniary compen- sation for acts of violence, was to prevent the wild justice of revenge, and put a check upon the right of feud which was cherished amongst the Teutonic nations as one of the inalienable rights of freedom. When a member of a family was slain, all his surviving relations felt themselves •called upon to avenge his death, and they immediately ' Wer signifies " man," and therefore wer-gild, or wer-geld, means the worth or payment of a man. ' Luitur enim homicidium certo armentorum vel pecorum nuraero. Tac. Germ. c. 21. By one of the Ripuarian laws, leg. ii. tit. xxxvi. De diversis interfectionibus, it was provided, that animals might be given instead of inoney as a wergild, their various values being computed in solidi. Thus, si quis weregildum solvere debet, bovem comutum videntem et sanum jpro duobus solidis tribuat. * See " Ancient Laws and Institutes," tit. Wergilds. i>j>».rLlr'/>,^<»:rt i. t *u ';:3ik^ IV.] THE WERGILD. 49 became the enemies of, and in a state of feud (fd) with the person who had inflicted the wound.' It was there- fore provided that, instead of this lex talonis, so destruc- tive of the peace and well-being of the community, the injured party if he survived, or his relations if he died,* should be content with a money-payment as a com- pensation, or damages for the wrong done to him ; and by a law of Alfred, if any man attempted private redress by vengeance before he had shown his readiness to accept the wergild if offered to him, he was to be severely pun- ished. If, however, the offender refused to pay the legal compensation, he was exposed to the vengeance of the injured party and his friends ; and this alternative was expressed by an old Anglo-Saxon proverb, Bicge spere of side other bare, " Buy off the spear or bear it." * It appears, also, that if an affray took place and seve- ral were killed on both sides, an account was taken and balance struck of the amount of slaughter, and of the numbers and value (wer) of the slain. If on both sides these were equal, then no vengeance could be taken, or demand made of compensation ; but if one side had sus- tained greater loss that the other, it was entitled to com- pensation (wer) or bot or vengeance to the extent of the overplus or excess.* / ' Thus Tacitus tell us of the ancient Germans, Suscipere tain inimicitias «eu patris seu propinqui quaiu amicitias necesse est. De lAoribus Genn. «. 21. ' — recipitque satisfactionem universa domus. Id. * Leg. Edw. Conf. .12. Amongst the Lombards, females were not entitled to share in the compensation because they could not " bear the feud." Quia filise ejus, eo quod foemineo sexu esse probantur, non possunt ipsam faidam levare, ideo prospeximus ut ipsam compositionem non recipiant. Leg. Luitpr. Lang. ii. c. 7. The law seems to have been different elsewhere. Et quia fotmina cum armis defendere nequiverit, duplicem compositionem accipiat Leg. Bainv. iii. c. 13. Perhaps, however, these laws refer to diff- erent wergilds ; the first to payment of compensation in the case of a relative, the last to payment for injury done to the woman herself. ^ See OathB» Anc Laws and Inst. p. 1B3. Leg. (fen. I. c 70, § 9. Si 4 r.-'-j^i ^fn,T T^ I- ; 50 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. But besides the payment to the injured party there was a penalty due to the state, which was called wite^ *' All crimes were by the Anglo-Saxons considered in a twofold light ; first, as a damage or mischief done to the individual; next, as an offense against the peace of the whole state ; the punishment, therefore, was apportioned in a 1 vofold ratio. The injured person, or his relations or gild-brothers, received compensation for the injury done to him or them, in the shape of damages. The state, or thoj.e to whom as an especial privilege the state had delegated this power, received the fine for the breach of the peace." ' Section III. The Frithborh. In the absence of anything like an organized police for the prevention and punishment of crime, the Anglo- Saxons, in common with all the Teutonic nations, en- deavored to secure some of the blessings of a more settled state of society through the medium of the system known in later times by the name of Frank-pledge. This word, however, is incorrect, and suggestive of error, for it is de- rived from Frithborh, the pledge or guarantee of peace — which was corrupted into Freoborh, and translated by the Norman jurists, who were imperfectly, if at all, ac- quainted with Anglo-Saxon, into liberum plegium, in- stead of pacis plegium. It means, therefore, a " peace- pledge," the mutual guarantee by which every member of a tithing as well as of a maeg, or family, became a pledge or surety (borh) to the other members, as well as to the state, for the maintenance of the public peace. se invicem occidant liberi, vel nativitate vel casu servi, unus pro alio jaceat. Si superabundat aliquis eorum in genitura, quserant parentes ejus Wene vel vindictse superplus. Si unius dignitatis et paritatis sint, in eo consistat. > Kemble's Introduction to the Codex Diplomaticus Ms'\ Saxon ici, Ivii A most valuable dissertation upon parts of the Anglo-Saxon law. IV.] THE FRITHBORH. S« In the collection of laws called Leges Edwardi Confes- soris, there is a full account of this universal system of bail. " Another peace the greatest of all there is, where- by all are maintained in former state, to wit, in the es- tablishment of a guarantee which the English call Frith- borgas, with the exception of the men of York, who call it Tenmannetale, that is, the number of ten men. And it consists in this, that in all the vills throughout the kingdom all men are bound to be in a guarantee by tens, so that if one of the ten men offend, the other nine may hold him to do right." ' These members of a tithing were fellow-gildsmen, who if a crime were committed by any of their body, were to arrest him and bring him to justice. If they thought him innocent, they were to clear him by their oaths — or if he were convicted and sentenced, they were to pay the wergild and wite — and if he fled from justice they were to make oath that they had no guilty participation in his escape ; which if they failed to prove, they had to pay a penalty proportioned to the offense. So, on the other hand, they were entitled to receive a part of the compen- sation paid by a wrongdoer, for any injury inflicted on a member of their gild or tithing.* We find also amongst the same laws an enactment which might with some advantage perhaps be revived at the present day in some parts of Ireland, where, owing to connivance or intimidation, the detection of crime has in many districts become so difficult. This provided that the hundred which did not within a month and a day discover the slayer of a person murdered within their boundary, should pay a sum of forty-six ' Leg. Edw. Conf. so. and see Leg. Edg. il, 6 ; Cnut, 20 ; Gul. Conq. iiL »4. * Si quis occidat hujusmodi qui parentes non habent, com*" ionit medietas solvatur Regi et medietas gildonibus. Leg. Alf. Chron. "*' 1 apud Twysden, p. 825. / 5a JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. marks, of which forty went to the king, and the remain- ing six went to the relations of the slain, if the mur- derer were not found and brought to justice within a year.' The original of these societies must be sought for In family unions afterwards extended beyond relation- ship by blood to connection by neighborhood. At first the miEgas or members of the same family were alone responsible for the conduct of each other, and a law of Ethelbert provided that in the event of a homicide fleeing the country, the family (maegas) should pay half the wergild, called there leod, of the slain man. The first mention of gildsmen occurs, I believe, in the laws of Alfred, where it is provided that " if a man kinless of paternal relations fight and slay a man, then, if he have maternal relations, let them pay a third part of the wer; his fellow-gildsmen a third part; and for a third part let him flee (be banished). If he have no maternal relatives let his fellow-gildsmen pay half, and for half let him flee." Section IV. The Anglo-Saxon Courts. The different kinds of Anglo-Saxon courts will next occupy our attention ; but the information we possess respecting them is too scanty to furnish materials for a very satisfactory inquiry.' We have seen that the frithborh was a system of mu- tual bail for the preservation of the public peace. The smallest subdivision for this purpose was the tithing (teething), consisting of ten families, the members of which were responsible for the good conduct of each other, and, on this account, the society was sometimes called wer-borhe or sureties for the payment of the ** wer." The head-man of this community was named » Leg. E Speaking of the Rolls in the Rotuli Cur. Reg. of the tenth year of Richard I., for Hertford, Essex, and Middlesex, Sir F. Palgrave says, in his Introduction to that collection : " These rolls are amongst the earliest connecting links between the Anglo-Saxon law and the English common law, properly so called. From them we learn, that in those couniies which corresponded with the ancisnt kingdom of Essex, the tithing was not a division of territory, but an organization of the inhabitants. The Decenna, Decania, or Frankpledge, answered by its Headborgh : he was the leader and chieftain of the band." * The ordinary derivation of this word is from wappen, arms, and txcan. to touch, signifying that the inhabitants of each hundred did homage to their headman, by touching his spear with their weapons. See Leg. £dw. Conf. c. 33. Phillips, however, in his Gesch. des Angles. Rechts, thinks that the word denotes the mode in which the different hundreds were dis- tinguished by the painting of their arms, taking taecan in the sense of "to mark." * This term, however, is not found earlier than the L^es Edw. Con- fessoris. In the Leg. Hen. I. c. 91, § i, he is called " aldremannus hun- dreti." The origin of the word gerefa has been already explained ; sec ante, p. 33, note. * Ic wille that acle gerefa haebbe a gemot ymbe feower wucan. " I will that each reeve hold a court always (once) in four weeks." Leg. Edw- 54 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. precedence over any other business. Trials by ordeal seenn most frequently to have taken place there. Some- times it was formed by a union of two or more hundreds, as in the case where the litigant parties belonged to differ- ent hundreds, or there was a deficiency in the numbers requisite to constitute a court.* Besides this, there was a scir-gemot, or court of the shire or county, which was held twice every year, or oftener, if occasion required.* It waa convened by the shire-reeve (sometimes called ealdor-man), who presided over it, assisted by the bishop. Here causes were de- cided and business transacted which affected the inhabit- ants of several of the hundreds. The highest court of all was that of the king, in which he himself was present attended by his councilors, or witan. We are not, however, to supp'^se that this was a permanent or fixed tribunal. It wf.:; held as occasion required, and wherever the king happened to be. Of this several instances occur in the Saxon Chronicle and the monkish histories of the time. But it was in general only a court of appeal ; for it was a rule of Anglo-Saxon law that no man should apply for justice to the king un- less he had first sought it in vain in the inferior courts, or, as it was expressed, he had become " nanes rihtes wyrthe innan his hundrede."* Such were the different Anglo-Saxon courts. But with respect to those of the tithing and hundred a question naturally occurs, how territorial divisions founded upon numerical proportions of the inhabitants could be main- tained ? Constant fluctuations would necessarily take place from the increase of families and the migration of ' Si aliquid in Ilundrodis agendorum penuria judicum vel casu aliquo transferendum sit in duas vel tres vel amplius Hundredas. Leg. Hen. i. c. 7- * Leg. Edg. II. 5 ; Cnut, ii. 17 ; Edw. Conf. 35. There were also small town-courts, burhgemote, with limited jurisdiction. * Leg. Cnut. il. 16. IV.J THE ANGLO-SAXON COURTS. 55 residents; and we should imagine that in the course of a very few years an arrangement previously made on this system would be disturbed, and the names derived from the number of families within a given district rendered inappropriate. This difficulty seems to have been pro- vided for by a periodical adjustment in the following manner. It was the duty of all the freemen of a hun- dred to meet twice a year and examine into the state of the tithings to see whether they had their full comple- ment of members, and whether there was a deficiency or excess of numbers.' If this happened, we must suppose, although it is not so expressly stated, that a fresh nu- merical arrangement was made from time to time. It is, however, important to notice that this provision for the meeting of the hundred twice a year does not oc- cur in any of the Saxon laws now extant. But we must not conclude that because it is first mentioned in the Leges Henrici Primi the custom did not prevail before the time of that monarch. These Leges are nothing more than a collection of laws and usages which existed in Anglo-Saxon times; and as the greater part of them continued in force after the Norman invasion, they are spoken of in the present tense as still existing. The compilation seems to have been made by some private person, and must not be regarded as a code of laws pub- lished by the authority of the State.* Although originally, and perhaps always in strict right, the whole of the free male adults of a district might at- ' Speciali tamen plenitudine, si opus est, bis in anno conveniant in hun- dretum suum quicunque liberi, tarn hudefesl quam folgarii, ad dinoscendum, scilicet, inter cetera, si decanie plene sint, vel qui. qunmodo, qua ratione, rccesserint, vel super-accreverint. Leg. Henrici I. c. viii. § I. The tarn hude- fest quam folgarii, mean " as well householders as mere retainers ;" hudefest is a corruption of heorthfest — men who had a dwelling or hearth of their own : folgarii, retainers who lived in the house or on the premises of their iord. See Glossary to Ancient Laws and Inst. * See Phillips, Eng. Reichs u. Rechtsgeschichte, I. 202. 56 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. I liMi: tend and form the monthly or half-yearly court held for that district, yet !'. is by no means improbable that in practice this becanne limited to a smaller number. The analogy of what took place in the continental tribunals^ is, as we have seen, in favor of this supposition, and Grimm seems to be clearly of opinion that there was suih a class of judges amongst the Anglo-Saxons ; but he says that it cannot be affirmed with certainty whether they v/ere designated by any particular name.' There are several passages to be found amongst the Anglo-Saxon laws which throw light upon this question. Thus one of the laws of Etheired provided, "Let doom stand where thanes are of one voice: if they disagree, let that stand which VIII. of them say ;' and let those who are there outvoted pay each of them VI. half-marks.'*^ And an order respecting the '* Dunsaetas," or dwellers in Wales, ran thus: " xn. lahmen* shall administer the law (or, explain it, riht taecar ^ to the British and English VI. English and VI. British (Wylisce). Let them forfeit all they possess if they administer it wrongly, or let them clear themselves that they know no better." Anocher law of Etheired* enacted, that a "gemot (or ' His mistake in thinking that the term " witnesses" (gecorene to gewit- neese) was applied to them will be pointed out hereafter. At a later period after the Norman Conquest, we find those who attended the hundred, county, and manori;., a person whose wer was twelve hundred shil- lings) was equal to that of six ceorls or twyhyndesmen ; and the reason assigned for this by a law of Athelstan, was, because the homicide of a twelfhyndes man could only be fully atoned for by taking vengeance on six ceorls, and his wergild was equal to that of six ceorls. On the same principle we find oaths sometimes desig- nated by the number of hydes of land possessed by the party taking them. Thus the expressions occur, be hand twelftig hyda, and be sixtig hyda, the meaning of which is this : Whoever was the owner of five hydes of land * See Kemble's Introduct. to Cod. Dip. Mvx Sax. ■is*iiW.a-;.- ■ I 62 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. had a wergild of six hundred shillings, and was called a sixhyndes man. Hence the oaths of twelve sixhyndes- men were the oaths of twelve persons owning each five hydes of land, so that they represented sixty hydes, and the aggregate value of their oaths was, in Anglo- Saxon parlance, called be sixtig hyda. In like manner as the twelf hyndesman had a legal value double that of the sixhyndesman, his worth was that of twelve hundred shillings, which represented ten hydes. Twelve such persons, therefore, represented 12 x 10 = 120 hydes of land, and the aggregate value of their oaths or legal cre- dibility was expressed by be hund twelftig hyda. It is, perhaps, hardly correct to call the compurgators witnesses, for they did not make their appearance in court to testify that they had witnessed anything relat- ing to the facts in dispute, but merely to vouch for the trustworthiness of the party on behalf of whom they came forward. But, even now, we use the expression " witnesses to character," and we may, therefore, with equal propriety apply the term to the compurgators, whose office was so closely analogous. They resembled, in some respects, the laudatores of the Roman law. The chief difference between these and the compurga- tors of the English law consisted in this, that the former were produced to show the improbability that a person so supported in his adversity by friends could have been guilty of the crime imputed to him, — while the latter pledged their belief on oath that the accused had not sworn falsely in denying the charge brought against him; and if a sufficient number could be found to do this, he was entiiled to an acquittal. For, in the times of our Anglo-Saxon ancestors, such regard was paid to the sanctity of an oath, and such a repugnance was felt to the idea, that a man of good repute amongst his neighborscouldbewillfuUy forsworn, that if, when charged with a debt or a crime, he denied it on oath in a court of IV.] OF THE COMPURGATORS. 63 justice, and could get a certain number of persons to swear that they believed him, he had judgment given in his favor, unless the opposite party could produce more compurgators on his side.' The oath taken by the accused was as follows : " By the Lord, I am guiltless both in deed and coun- sel of the charge of which N. accuses me." That by the compurgators was: " By the Lord, the oath is clear and unperjured which M. has sworn."* If a man was accused of an offense and ran away, and any one charged the lord (hlaford) with having coun- seled or been privy to his escape, the law was that the lord should " take to him five thanes and he himself the sixth, and clear himself thereof by oath." * If the purga- tion succeeded, the lord was entitled to the wer {i.e. amount of legal compensation due for the crime), but if it failed {i.e. if a sufficient number of proper compurga- tors could not be found), the lord was obliged to pay the wer to the king, and the man who had fled became an outlaw.* But the usual number of compurg^itors was twelve. Thus in the articles of peace between Guthrum, king of ' The system of compurgation was by no means peculiar to the Anglo- Saxons. It was in use amongst all the various nations of the Teutonic family, and twelve seems to have been with them the favorite number of compurgators, although more were often required : Ingenuus, nobilis homo ingenuus — cum duodecim ingenuis se purget. Concil. Tribur. ann. 895. See Bernardi, De I'Orig. de la Legislation Franc. 82, and Rogge, Gerichts wesen der Germanen, Chap. 5. ' Anc. Laws and Inst. tit. Oaths. ' Leg. Ethel, i ; Cnut, Sec. 30, 31 ; Henr. I. 41. § 6. * Id. The expiession in the various laws on this subject is wer, as given in the text : but I apprehend that it is used loosely for wite, which means the penalty due to the king or lord for the public wrong done by crime. The wer belonged properly to the injured party, or his relatives and gilds- men if he were dead ; but it is not unfrequently put for the whole amount payable by the wrongdoer, and then it includes the wite. «4 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. i the invading Danes, and Alfred, about the year 880, we find the following provision : ' " If a king's thane be ac- cused of man-slaying, if he dare to clear himself, let him do that with XII. king's thanes. If any one accuse that man who is of less degree than the king's thane let him clear himself with XI. of his equals and with one king's thane. And so in every suit which may be for more than four " mancuses." * And if he dare not, let him pay for it threefold, as it may be valued." One of the laws of William the Conqueror declared that if a man were accused of robbery and bailed to ap- pear and answer the charge, and in the meantime fled from justice, his bail was to swear with eleven compurga- tors (si jurra sei duzime main) that at the time he of- fered himself as bail he did not know that the man had committed the robbery, and that he had not been privy to his escape.* So also by another law of the same mon- arch, if a man were charged with theft who had hitherto borne a good character, he might clear himself by his own single oath ; but if he had been previously convicted or accused (e hi blasme unt este), he was to make oath " with the twelfth hand ; " and for this purpose fourteen persons were to be named, out of whom he was to choose eleven, making himself the twelfth. — If, however, they refused to swear, he had to undergo the ordeal.* But we must now notice an important feature in this system, which seems to have been intended as a check upon its liability to abuse. Experience must have soon shown that when a man was allowed to choose his own compurgators, it was not difficult for him to select out of a large body of relations or neighbors a sufficient num- ber who would be willing to swear that they believed * Anc. LI. and Inst. 155. * The mancus was equal to thirty pence; * Leg. Gul. Conq. 3. ' Id. 14. See also 15. IV.] OF THE COMPURGATORS. 65 him, whatever his character might be. The oath taken by friends thus rallying round him at his call, was known by the name of ungecorene-ath, or rim-ath, " the un- chosen oath ;" because the witnesses were not chosen or nominated by the opposite party. But afterwards the accused was allowed to name persons of the proper class {/>., kinsmen or fellow-gildsmen of the accused), and out of these the accused or defendant was obliged to choose his compurgators. This was called the eyre ath, or *• chosen oath," because the oath of the accused was sup- ported by the oaths of persons chosen by his adver- sary; and we may well imagine that the latter took <:are to nominate persons who were least likely to be tampered with, or to be influenced by undue feelings of compassion.' It seems also that in some cases a certain number of compurgators were named by the reeve of the district, consisting of relatives and neighbors of the accused, and out of these he was obliged to choose the number re- quired for his compurgation.* This form of procedure was equally called the eyre ath. Here, too, the number out of which the compurgators were to be chosen was generally twelve, or some multiple of twelve, and they were called the equals or peers (gelican) of the accused. If he was a man of bad character, a triple number of per- ' See Gunderman, Enstehung der Jury, n. 55. Phillips, Anglesachs. Recht. £82. ' This was exactly in accordance with the custom that prevailed amongst the nations of the continent, where we find that numerous laws existed, regu- lating the mode of appointing compurgators, who in the Latin versions of those laws are called sacramentales legitimi, or simply sacramen tales. Thus : 5i qualiscunque causa inter homines liberos evenerit et sacramentura landum fuerit, si usque ad XX. solidos fuerit causa ipsa aut amplius, ad Evangelia sancta juret cum xii. aliis suis, id est sacramentalibus. Ita ut vi. Hi nominentur ab illo qui pulsat, et Septimus sit qui pulsatur, et quinque {uales voluerit reus, liberos tamen, ut sint XII. — Leg. Rothar. c. 364. Et .'um XII. sacramentalibus juret, cum quinque nominatis et septem advocatii iLeg. Alam. tit. 77. 5 I ii I' \ 'A 66 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. sons were named, out of whom he was to choose a triple number of compurgators, or if they were not named, and he was unable to procure the required num- ber to vouch for him, he was obliged to undergo the triple ordeal.' But it was not in all cases that compurgation was al- lowed. In some crimes of open violence, or when a man was taken in the mainour with the red hand, or other proofs of guilt upon him, he could not clp-ir himself by- adducing persons to swear to their beli>_ in his inno- cence. The process in this case was different. It was no longer a contest of oath against oath — i.e., the oath of the accuser against the oaths of the accused and his compurgators. The former, indeed, swore to the truth of the charge, and in this he was supported by the oaths of a competent number of friends, but the latter was obliged to submit to the ordeal in order that by the judgment of God his guilt or innocence might be made manifest. An accusation thus fortified by oath was called vorath, or forath ;* and we may now perceive that it makes little difference whether we consider the "twelve senior thanes," mentioned in the law of Ethelred, which has been pre viously noticed,* members of a court of justice, or merely inquisitors to accuse of crime. Their functions in either case would be very nearly, if not altogether, the same. If we regard them as *' accusers," they were obviously equivalent to kind of public vorath — that is, to persons who supported their charge against the accused by joint- ly pledging their oaths to its truth — in which case we ' Northumb. Presb. Leges, c. 51 ; Leg. Ethel, i. i ; Leg. Gul. Conq. c. 17. ' In the old Danish law it was known as the asworen eth, " sworn oath." In the Salic law it is called wedredum. See Gunderman, Enst. der Jury, 35. » Ante, pp. 56, 57. IV.] OF THE COMPURGATORS. 67 have seen that compurgation was not allowed where the accusation related to certain specific acts of violence, and the accused was obliged to resort to the ordeal to clear himself. The vorath was in fact taken as a prim^ facie proof of guilt, and so might be regarded as a judgment of a court condemning the suspected person to undergo the ordeal, in order that the God of Tiuth might interpose and ultimately decide the question of innocence or guilt. If so, then the functions of the thanes as accusers were not dissimilar to those of judges, whose doom in such a case would in Anglo-Saxon times have been the same, namely, that the culprit must abide the issue of the or- deal. And this view is strengthened by the following provision of the same law of Ethelred, which ordains, •* And let every one (accused) buy himself law with XII. ores, half to the lord (landrica), and half to the wapentake ; and let every man of previous bad character (tiht-bysig) go to the threefold ordeal, or pay fourfold." The ordeal was also to be undergone in the following cases: i. Where a person accused was unable to adduce a sufficient number of compurgators ; 2. Where he had been notoriously guilty of perjury on a previous occasion ; 3. Where he was not a freeman ; unless his hiaford, or lord, swore to his belief in his innocence, or bought him off by paying the wergild. But it seems that even when the ordeal was requisite, the accused was obliged previously to take an oath that he was innocent in the sight of the law (mid folcrihte unscyldig).* The ordeal was of three kinds : i. The ordeal of hot iron, in which the accused had to take up and carry for a certain distance a mass of hot iron of a pound weight ; 2. The ordeal of hot water, in which he had to take out of a pitcher of boiling water a stone hanging by a string, at a depth equal to the length of his own hand. In some ' From tihtle (accusation), and bysig (implicated, busied). • Leg. Atheist. I. 23. \ 68 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. cases he had to undergo the triple ordeal (pryfeald lada), in which the Iron was increased to three pounds weight, or the stone was sunk in the water to the depth of his elbow.' 3. The Corsnaed,* or ordeal of the accursed mor- sel. This consisted in making the accused person swallow a piece of bread, accompanied with a prayer that it might choke him if he were guilty. Godwin, the powerful Earl of Kent, and father of Harold, was currently be- lieved to have died in the act of attempting to swallow the corsnaed.* If a party was unable to vouch a sufficient number of compurgators, he was deemed to have taken a false oath, and lost his suit in a civil case, or was convicted in a criminal.* But even if he did produce the requisite number, 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 preponderat- ing legal value. These, again, might be met by the accused in the same manner, and so on, until either party prevailed in the amount of legal value of the witnesses who supported him with their oaths. Sometimes the number of compurgators was so great as to form a large ' Leg. Ina. 77, App. Duncange v. Lada. * From cor, proof, and snaed, morsel or crumb. It was also called ned- bread, or bread that must (ned) he taken. * In the year 1194 (temp. Rich. I.), when the Justices in Eyre for the county of Kent came to Canterbury, it was testified before them that the Abbott of St. Augustines ought to have, and his ancestors had always had, libertatcm legis, scilicet judicii aqux et ignis et duelli. Chron. Thome apud Twysden, fo. 1841. And we find from another chronicler, that in the following year the ordeal was put in force in Canterbury, Mense Decembri Justiciae qui vocantur errantes missi per Angliam ab Archiepiscopo Cantua- riensi fuerunt apud Cantuariam.ihique per ministros regis judicio aquae mun- dati sunt vel pcrierunt criminosi, qui ad regiam periinebant coronam. Gervase, ann. 1195. * An instance of the former occurs in the Hist. Eliens. i, 44 : Cui omnia illata deneganti et contradicenti ut cum jurejurando se purgaret, quod cum facere nequibat, nee qui secum jurare debuerant habere, poterat, decretum est, ut eo expulso Brihtnodus Alderman utrisque hydis uteretur. IV.] OF THE COMPURGATORS. 69 assembly. Thus, in one case, we read of upward? of a thousand attending. ' •' Perjury," says Mr. Hallam, *' was the dominant crime of the middle ages ; encouraged by the preposterous rules of compurgation, and by the multiplicity of oaths in the ecclesiastical law."' Now it is obvious that such a system as that of compurgation could be of real efficacy in promoting the ends of justice, only where unbounded reverence was paid to the sanctity of an oath. But we may be very sure that it must at all times have been a most fallacious test of innocence, and have favored, to an alarming extent, the escape of the guilty. This was at last discovered ; and the only wonder is, that such a mode of trial was allowed to linger so long amongst us. It gradually, however, fell into disuse, and was ultimately restricted to actions of debt, where, until a very recent period, the defendant was allowed " to wage his law," that is deny upon oath the debt, and vouch eleven com- purgators in support of his credibility. The consequence of this was, that plaintiffs avoided, when they could, that form of action, for, as Sir Edward Coke says of his own time, " Men's consciences do grow so large specially (in this case passing with impunity), as they choose rather to bring an action upon the case upon his, the defendant's, promise, wherein, because it is trespass sur le case, he can not wage his law, that an action of debt." * Certain points of resemblance between the compurga- tors and the jury, and especially the coincidence in point of number, have led several authors to the conclusion, that the latter was derived from the former, and was in truth only a modification of the ancient usage in this re- ' Tunc Ulnothus adduxit fideles viros plus quam mille, ut per jurainen turn illorum sibi vindicaret eandem terrain. Hist. Eliens. i, 35. ' Midd. Ages. Suppl. Notes, p. 260. ' Co. Litt. 295. b. The party himself was sworn de fidelitate, and ths eleven compurgators, de credulitate. \ I 70 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. spect.* But this is, I believe, entirely a mistake, founded on a misconception of the original nature of the office of jurymen. We shall show, indeed, hereafter that they were witnesses, but not to character, only to facts. Com- purgation 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 compurgators gradually fell into disu« e. Section VII. Of the legally appointed Witnesses in the Anglo-Saxon Law. We must next notice a clas^. of witnesses appointed by law to attest bargains, whose existence has not hith- erto attracted the attention it deserves, with reference to the subject of our inquiry. They seem to have stood in the place of modern public notaries, for the purpose of supplying evidence of transactions, and so preventing perjury and fraud. We have already had occasion to de- scribe them as they existed amongst the old Germans, and the Anglo-Saxon laws enable us to give a more par- ticular account of their functions. The earliest mention of these witnesses occurs, I be- lieve, in one of the laws of Athelstan (a. D. 924-940), which enacted that there should be named in every reeve's jurisdiction* as many men as were known to be unlying, that they might be for witness in every suit. " And be the oaths of these unlying men according to the worth ' Amongst others, Rogge has advance ! this opinion with great confidence, in his learned and useful treatise, Greichtswesen der Germanen, chap. viii. % 44 ; and Turner, in his Hist, of the Anglo-Saxons, has altogether con- founded the compurgators with the jury. * The original is manung, which seems to have comprised all who re- sided within the jurisdiction of the reeve, and owed obedience to his sum- mons. See Anc. Laws and Inst. p. 223. IV.] OF LEGALLY APPOINTED WITNESSES. 71 of the property without dispute. ' They were also liable to punishment if they bore false testimony. " But if it be found that any of these (the appointed witnesses) have given wrongful witness, let his witness never again stand for aught, and let him also give XXX. shillings as wite (or penalty.") ' But the most explicit information on the subject is contained in the laws of Edgar, which provided as fol- lows : ' •* This then is what I will ; that every man be under surety within the towns (burgs) and without ; and let wit- ness be appointed to every tov/n and to every hundred. " To every town let there be chosen XXXIII. as wit- nesses (gecorene to gewitnesse).* " To small towns and in every hundred XI., unless ye desire more. " And let every man with these witnesses buy and sell every of the chattels he may buy or sell, either in a town or in a wapentake ; and let every of the 1 when he is first chosen as witness give the oath that he never, neither for love nor for fear, will deny any of those things of which he was witness, nor declare any other thing in witness save that alone which he saw or heard ; and of such sworn men let there be at every bargain two or three as witness. " And he who rides in quest of cattle, let him declare to his neighbors about what he rides ; and when he comes home, let him also declare with whose witness he bought the cattle." In the simple state of society which existed in the time of our Saxon forefathers, transactions between man ' Leg. Athels. I. 10. * Leg. Edg. Supp, , and see Leg. Edw. I. 5 ; Edm. Cone. Culint. 5 ; Ethelr. I, 3 ; Cnut, Secul. 24; Edw. Conf. 38 ; Gul. Conq. I. 45 ; III. 10. ' These are the gewitnesse, whom Grimm confounds with the members of the court. See ante, page 56, note i. 'l\ WW IRPUI^ IJ yiLJI^i '^wn!PPiB!J!!PPBWBPW!ipfl)Bf»l!^^ J% 72 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. and man were conducted with a publicit)' and openness of which we have now no example. Sir Francis Pal- grave has well and eloquently described the mode in which evidence was thus perpetuated in early times.' "The forms, the festivities, and the ceremonies accom- panying the hours of joy, and the days of sorrow, which form the distinguishing epocVs in the brief chronicle of domestic life, impressed them upon the memory of the people at large. The parchment migh . be recommended by custom, but it was not required bylaw ; and they had no registers; to consult, no books to open. By the de- claration of the husband at the church-door the wife was endowed in the presence of the assembled relations, and before all the merry attendants of the bridal train. The birth of the heir was recollected by the retainers who had participated in the cheer of the baronial hall ; and the death of the ancestor was proved by the friends who had heard the wailings of the widow, or who had followed the corpse to the grave." Payments were made in the presence of the Hundred court, that all the district might be able afterwards to testify to the fact,* ar; i the charters and deeds were usually witnessed b}^ a number of persons the most interested in the grant, and therefore the most likely to remember it. On one occasion when a hyde of land was given by the monasteiy of Ely to CEdnoth, a monk of Ramsey, for his good offices in terminating a troublesome dispute, he cut off four pieces of turf, and laid them on the altar of Gregory in his convent, in the presence of a crowd of witnesses, in hujus merae donationis argumentum.* Secrecy and concealment were deemed to be almost conclusive evidence of fraud or crime — and as such they were treated by the ' English Commonwealth, I. 248. * — dederunt ci eandem pecuniam apud Brandune coram testimonio totivu Hundreti in quo ilia terra jacet. Hist. Eliens. I. 46. ■ Hist. Ramcs. c. 42, ■Wr ' ■ '™""ii>" W "■ ^ ■•}!^*' \V?^ OF LEGALLY APPOINTED WITNESSES. 73 Anglo-Saxon law. Thus if a person being on a journey were to make a bargain suddenly without any previous intention (unmyndlunge), and without having declared it when he rode out, he was to make it known on his re- turn, and if it was for live stock, he was with witness of b's township to bring it to the common pasture. And if he did not do this before five days he was to forfeit the cattle, " because he would not declare it to his neigh- bors," even although he had really bought them in the presence of legally named witnesses, and the ealdor of the hundred were satisfied that this was true.* So also if a man from afar, or a stranger, were to go out of the highway into some by-path or wood, and did not then shout or blow a horn, he was to be accounted a thief, either to be slain, or redeemed with his wergild. " And so late as the reign of Henry II., in cases of rape, the woman was to go to the nearest town immediately after the outrage, and make known to trustworthy per- sons the injury she had suffered — showing the marks of violence and state of her clothes if torn. She was then to go before the headman of the hundred and do the same, and also publicly declare the ill-usage she had received at the next county court.' \ \ all this, the usage of the Anglo-Saxons corres- ponded closely with that of the Teutonic nations of the Continent. And, although I am not aware that there is extant amongst the laws of the former any distinct statement that hundredors generally were competent witnesses with respect to matters of common interest or notoriety within the hundred, as we have seen was the case with respect to the markgenossen of Germany, this may, 1 think, be inferred with sufficient certainty from the whole tenor of those laws, as well as from incidental • Leg. Edg. Supp. 8, 9, 10 ; and see Leg. Gul. Conq, la • Legg. Withrofd, 28 ; Ine, 20. • Glanv. Tract, de Leg. xiv. c. 6. 74 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. mention of such testimony in the old chronicles. And what has been before said on the subject of the conclu- siveness and legal effect of the evidence thus given, ap- plies with equal force to the Anglo-Saxon witnesses. Their testimony was decisive of the matter of dispute. It was a verdict not to be questioned or gainsaid.' When one of the legally appointed witnesses appeared in court to give evidence respecting a transaction which he had attested, he took the following oath:' " In the name of Almighty God ! as I here for N. in true witness stand, unbidden and unbought, so I with my eyes oversaw, and with my ears overheard, that which I with him say." And the defendant was himself obliged to take an oath, corresponding to the plea of nil debet, in the following form : " In the name of the living God, I owe not to N. scot (sceatt) or shilling, or penny or penny's worth ; but I have discharged to him all that I owed him so far as our verbal contracts were at first." It may be asked whether there was not also an oath denying the alleged contract altogether (corresponding to the plea of nunquam indebitatus); for that which has just been cited amounts merely to a plea that whatever contract may have been made has been satisfied by pay- ment. We find no such form, and perhaps for the fol- lowing reason. The onus of proof lay upon the plaintiff, who to establish his demand must have called the attest- ing witnesses to the transaction. If he had none, then the requisition of tbc law had not been complied with, ' Postea vero evoluto tempore, et defuncto Rege jedgaro, visus est idem Leon.icuu subdoia calliditate, omnem conventionem, qiiam cum Episcopo fecera^, annullare si posset, sed legales viri sedricus Ruf'is et Leonricus de Berle et Sivirthus vecors, qui liuic rei intererant et tester fuerant. eum ■^on- victum leddiderunt. — Hist. Eli«ns. i. 6. '^ Anc, Laws and Inst. Oaths, p. i8i. .^•!lv IV.] OF LEGALLY APPOINTED WITNESSES. 75 id :h and he failed in his suit.' If he had, the mere denial of the defendant would avail nothing, as it would be very difficult, if not impossible, for him to call witnesses to prove a negative ; that is, that there never had been such a contract as the plaintiff alleged. Although we have no express information on the point, we may reasonably conclude that compurgation was not allowed in cases where the plaintiff could prove his demand by calling the legal witnesses who had at- tested the contract. Otherwise the absurdity would follow, that the oath of a defendant, backed by relatives or friends whom he vouched for a belief in his integrity, would be sufficient to discredit the positive testimony of those whom the law had appointed as trustworthy wit- nesses. And this view is confirmed by what we know of wager of law in later times. This was not permitted when the debt -claimed was secured by a deed or other specialty which spoke for itself, but only, as Coke says," " when it groweth by word, so as he may pay or satisfy the party in secret, whereof the defendant having no tes- timony of witnesses may wage his law." In his *' Geschichte des Angelsachsischen Rechts," ' Phillips considers these witnesses as having judicial functions to perform ; and indeed treats them as identi- cal with the court which took cognizance of disputes aris- ing ou"" of tiansactions which they had attested. I can not, however, think that this view is correct. The passages which he cites from the Anglo-Saxon laws are those which i ' If, for instance, the ownership of cattle were in dispiue, and the party who asserted that he had bought them could not produce the requisite num- ber of legal witnesses, he was obliged to restore tl;'^ n to the former pro- prietor. Leg. Sec. Cnut, 24, and compare Leg. Gul. Conq. i : Quod si aliquis rem postmodum calumniatus fuerit et nee testes habuerit nee war- rantum, et rem reddat et forisfacturam cui de jure competit, < Co, Litt 294, b. * Sect. 50. Grimm also confounds the witnesses with the court in his Deuts. Rechts Alter. 779. See ante, p. 71. 76 JUDICIAL SYSTEM OF ANGLO-SAXONS. [Ch. \> 'I have been already quoted or referred to ; and they cer- tai'ily do not prove it. They nowhere say that the wit- nesses liad to act as judges ; and in the following instance at least they are spoken of as different and distinct : Aluricus iL;itur candcm terram Brihtnoto Abbati liberavit in mariu primum coram XXIV. Judicibusin praedicto loco, deinde etiam similiter fecit coram testibus legalibus.' In so far, however, that their evidence was conclusive, it may be taken to have been equivalent to .. judicial sen- tence, and this has perhaps misled Phillips and others to suppose that they did pronounce such a sentence in the character of judges. Originally, indeed, there may have been no difference between these two characters ; for when all the freemen of the hundred attended the gemot, or court, they nec- essarily included those who could give evidence upon the matters that came before it. These were as much members of the court as the rest ; and their testimony, therefore, on a disputed question was the judicial decis- ion upon it. But afterwards, when the court consisted of a limited number, the judges and witnesses n^ust have been different persons, although the effect of the evi- dence of the latter remained the same. Section VIII. Results of the Investigation. Let us now see at what polnl we have arrived in :ia the investigation of the judicial syMtem of the Anglo- Saxons. I. We find that courts existed presided over by a reeve, who had no voice in the decision, and that the number of persons who sat as judges was frequently twelve, or some multiple of that number. 2. The as- sertions of parties in their own favor were admitted as ' Hist. Ellens. 1. 13. 'JI'«I.',WWH»'' I V.J RESULTS OF THE INVESTIGATION. 77 conclusive, provided they were supported by the oaths of ;i certain number of compurgators ; and in important ciiscs the number was twelve, or, at all events, when added to the oath of the party himself, made up that number. 3. The testimony of the neighborhood was api)caled to, for the purpose of deciding questions which icl.iteci to matters of general concern. 4. Sworn wit- n s«»es were appointed in each district, whose duty it wiis to attest all private bargains and transactions, in order that they mij^ht be ready to give evidence in case of dispute. 5. Every care was taken that all dealings between man and man should be as open and public as possible ; and concealment or secrecy was regarded as fraud, and in some cases punished as guilt. When we come to consider the " Assise," as established by Henry II., and fully understand the principle of that mode of trial, we shall see how, out of these different elements, which continued in full force under the Anglo- Normans, was produced at last the institution of the jury. As yet it had no visible existence, but the idea was implied in the requirement that disputed questions should be determined by the voice of sworn witnesses, taken from the neighborhood, and deposing to the truth of what they had seen or heard. What was want- ing was to mold this procedure into a formal shape, which it did not attain until a century after the Norman Conquest. CHAPTER V. THE ANGLO-NORMAN PERIOD. Section I. On the legal Changes introduced by the Normans. I N his History of the English Law, Reeve says: " The accession of William of Normandy to the English throne makes a memorable epoch in the history of our municipal law. Some Saxon customs may be traced by the observing antiquary, even in our present body of law, but in the establishment made in this country by the Normans are to be seen, as in their in- fancy, the very form and features of English law. It is to the Conquest, and to the consequences of that revolu- tion that the juridical historian is to direct his particular attention. A new order of things then commenced." This is, I believe, a great mistake, arising from a want of sufficient knowledge of the legal system of the Anglo- Saxons. It would be much nearer the truth to say, that that system was unaffected by the Conquest — and con- tinued in all its vigor for many years after that event. With reference to the right which the victory at Hast- ings might be supposed to confer on William to alter the laws and institutions of the country which he had success- fully invaded, we must not be misled by the use of the word " Conqueror." This, in legal parlanc signi * Vol. I. chap. 2. li Ca.V.^LHGAL CHANGES OF THE JVOJiMAAS. jg merely that he had acquired the throne by " purchase," and not by descent, not that he had vanquished the na- tion over which he began to reign, so that he could im- pose laws upon the people, jure belli.* Nor does it militate against this view, that we find William asserting an '• hereditary " title, which at first sight seems opposed to a claim by " purchase." The fact is, that William, conscious of the weakness of his title, resorted to every possible means of strengthening it ; and therefore claimed the crown both as heir of the Confessor, designating himself in his charters, " Ego Wilhelmus Rex Anglorum hereditario jure factus," and as having had it bequeathed to him by that monarch. But this anxiety to make out a legitimate title, proves that he did not wish to rely upon the right of conquest, which would of course have superseded and been para- mount to any other. At the same time it must be ad- mitted that the words armis conquisivit are applied by old writers to his acquisition of the throne.' There can be no doubt that it was the intention of William I. that his English subjects should continue to enjoy the rights and usages to which they had been accustomed under the laws of their Anglo-Saxon king of the line of Cerdic. But it is equally certain that much injustice and oppression were practiced by his Norman followers, who knowing nothing of these laws were dis- posed to trample upon the Anglo-Saxons as a conquered race ; and we can easily conceive how often, in the inso- lence of successful invasion, might must have triumphed over right, and caused an apprehension on the part of ' See this question fully discussed by Sir Matthew Hale, Hist, of Com- mon Law, I. c. 5. Spelman, Gloss, title Conquestus, defines the word, id quod a parentibus non acceptum, sed labore pretio vel parsimonia com- paratum possidemus. Hinc Gulielmus I. dicitur, qui Angliam conquisivit f. e. ucquisivit " purchased "; non quod subegit. ' See Hickes's Thes. Diss. Epist. p. 31. 8o THE ANGLO-NORMAN PERIOD. [Ch. II i ii the English, that they would soon lose their dearly- cheiishcd customs, and be subject in all things to the (to them) unknown laws and caprice of their Norman tyrants. They therefore fondly looked back to the time ol Eiiward the Confessor, the last of their legitimate sovereigns, as that when they enjoyed their natural rights and customs without foreign interference, and were loud in their clamors to William to restore to them the laws of that king — meaning thereby, as I conceive, not any particular code enacted by him — but the laws which prevailed in his reign, and which had been handed down for generations from their forefathers, and were the in- heritance of every Anglo-Saxon freeman. This view agrees with the expressions used by William in the proclamation or charter addressed by him in 1070, to "William, Bishop, and Godfrey, Portreeve, and all the burgers in London, French and English," in which he says, that his will is that they all should have the laws Avhich they possessed in the days of King Edward. And the statutes which he afterwards promulgated, and which are known by the name of Leges Gulielmi Con- questoris, are headed by the following preface, or title : Cez sont les leis e les custumes que li reis Will grantad al pople de Engleterre apres le cunquest de la terre : ice- les meimes que li reis Edward, sun cusin, tint devant lui. Accordingly, we find the distinguishing features of Anglo-Saxon jurisprudence retained by the Norman king. Of these we may mention the wergild, or manbot, for bodily injuries; the system of mutual suretyship (frith- borh, improperly rendered frank-pledge) ; 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.' ' In proof of this see the Leges Gul. Conq. in the " Ancient Laws and Institutes," published by the Record Commissioners. v.] LEGAL CHANGES OF THE NORMANS. 8i The most important changes in our judicial system made by the conqueror were, I, the separation of the Sj/iritual and temporal courts; 2, the introduction of the combat, or duel, as a means of determining tivil suits and questions of guilt or innocence ; and, 3, the appointment of justiciars, to administer justice tiiroughout the realm. With regard to the second of these, however. Sir Fran- cis Palgrave thinks, that notwithstanding the silence of Anglo-Saxon laws and records on the subject, trial by battle may have existed in England before the Conquest. He says:' "It must be admitted that an Anglo-Saxon duel can not be adduced ; but the argument which rests upon the absence of trial by battle in the courts of An- glo-Saxon origin, is not entirely correct. Immediately after the Conquest, the ' witnesses ' of the church of Worcester offered to become the champions of St. Mary, and to defend the rights of Bishop Wulstun by combat against the claims of the abbot of Evesham. It was in regular course, according to the common law, to join battle in th^ county court, when the cause was not re- moved into a superior tribunal. If we reject the subtle- ties, the distinctions, and, above all, the technical expres- sions which unquestionably were due to the Anglo-Nor- man lawyers, and invented, or perfected, under the An- glo-Norman sovereigns, the principles which govern the proceedings of judicial battle are so nearly identified with those which are to be collected from the Teutonic codes, as to afford ' probability that they were parts of the An- glo-Saxon la V, preserved by the us^ge and traditions of the people." With respect to the justiciars, it has been generally supposed that justices in eyre ( justitiarii itinerantes) were first established in 1176, by Henry II., for we find it re- corded that in that year, in a great counsel held at North- ampton, the king divided the realm into .six parts, and ' English Commonw. i. 224. ^, IMAGE EVALUATION TEST TARGET (MT-3) A 1.0 1.1 !£ 1^ 12.0 u 1^ ^ UiSi 6" ^ Sdmces Corparadon ^ \ V \\ A. 23 WIST MAIN STHET WnSTII,N.Y. 145M (716) •73-4503 '^ fl^ I 't-s ft *';-v- -? ' 'm^: C"?'- ■ "^^^■r: v. ^si.^"-'\ 82 THE ANGLO-NORMAN PERIOD. [Ch. appointed three traveling justices to go each circuit, so that the number was eighteen in all.' Three years after- wards, in 1179, a fresh arrangement was made, and the six circuits were reduced to four, which were distributed amongst fifteen judges.* But although <:he formal divi- sion of the kingdom into separate circuits may have been first made by Henry II., yet there is no doubt that single justiciars were appointed by William I., a few years after the Conquest, who visited the different shires to admin- ister justice in the king's name, and thus represented the curia regis as distinct from the hundred and county courts.* Section II. Modes of Trial in civil Suits in the Anglo- Norman Times. The same remark which has already been made, with reference to the absence of all mention of the form of jury trial in the Anglo-Saxon laws, applies equally to the first hundred years after the Conquest. It is incredible that so important a feature of our jurisprudence, if it had been known, would not have been alluded to in the vari- ous compilations of law which were made in the reigns of the early Norman kings. These consist of the Leges Gulielmi Conquestoris, Leges Henrici Primi, and Leges Edwardi Confessoris,* and in none of them is a hint given of the existence of the jury. But although the jury, properly so called, does not ■ Spelman, Codex ' Ibid. ' Misit autem dehinc rex potentissimus justitiarios per unaoiquamque scy- ram. Hen. Hunting. 18, Will. I. * With respect to these last, we not must be mislead by the name into a supposition that they were laws enacted by the Saxon Edward. They were a collection of such as existed in his time, compiled inost probably in the reign of Henry II., in. order that the English might possess a record of their old laws, and a guarantee for their continuance. See Phillips, Eng. Reicha u. Rechtsgeschichte. ■^ V.J TRIAL IN CIVIL SUITS. 83 yet seem to have been in existence, we find in the narra- tives of several suits, which came before the courts in those reigns, distinct traces of a mode of trial which easily paved the way for the introduction of that system. In order to satisfy ourselves on this important point it will be necessary to notice each of these briefly in chron- ological order. First, then, we find a writ directed by William the Con- queror to Archbishop Lanfranc, Roger Earl of Moreton, and Bishop Galfrid, requiring them to summon all the shires which were present at the plea of lands of the church of Eiy held befc-e the last departure of the Queen to Normandy. To these were to be added such of the barons as jould conveniently appear who held lands of the same church, and who had been present at the trial. And when the assembly met, several (plures) Englishmen were to be chosen out of those who knew in whose tenure and possession the lands lay at the time of the death of Edward the Confessor, and they were to confirm their statements by an oath (jurando testentur).' The register of Domesday Book was, in fact, compiled from evidence of this kind given upon the inquests held under the gen- eral survey ordered by the Conqueror. In the famous placitum held on Pennenden Heath in the same reign, when Lanfranc, archbishop of Canterbury, reclaimed the lands belonging to his see which had been seized by Otho, the Bishop of Bayeux, William's natural brother, during the vacancy that intervened after the de- position of Stigand, the matters in dispute were deter- mined by the men of the whole county, whom the king summoned to attend, and especially those native English who were best versed in the old laws and customs. This great cause detained the assembly three whole days (ei causi totus comitatus per tres dies fuit ibi detentus), and ' Dugdale's Monasticon, i. 478, cited in Palgrave's Proofs and lUostra- tions, English Commonwealth. 84 THE ANGLO-NORMAN PERIOD. [Ch. was decided in favor of the archbishop. They aiso ad- judged (fuit ibi diracionatuin, etiam a toto comitatu -^'mi- cordatum et judicatum) that the Archbishop of Canur- bury held the lands in his demesne as free and quit of all manner of services, as the king held his own lands.' We have an account of one other important suit in the same reign, which deserves particular attention, from the fact that in order to decide it recourse was had to the oaths of twelve men ; and this has been eagerly seized on as a proof that trial by jury was introduced by the Con- tjUeror. It will be found, however, when carefully con- sidered, by no means to warrant that assertion ; and the apparent resemblance vanishes when the true nature of the intervention of the twelve in this case is properly un- derstood. Pichot, the sheriff of Cambridgeshire, had dealt with some land as belonging to the king which Gundulf, Bishop of Hrof, in Kent, asserted to be the property of the Church.* They both appealed to the king, who ordered that all the men of the county should be assembled, in order that the question might be deter- mined by their judgment. Otho, Bishop of Bayeux, pre- sided over the court, the members of which were sworn to say the truth ; ' but dreading the power of the sheriff, they decided unjustly in favor of the king's title. Otho, not being satisfied, required them to choose out of their whole number twelve, who should upon their oaths con- firm the judgment which they all had given. This was done, and as the names of six of the "jurors" have been recorded, it may be interesting to mention them. They were Edward of Chippenham, Harold and Leofwine of Exninge, Eadric of Giselham, Wulfwine of Landwade, Ordmer of Berlingham, and six others of the best men of the county. They retired together for a short time, ' Hickes's Thes, Dissert Epist, • Textus Roffensis apu Bib. Cott. Claud. B. VI. 178. Palgrave. clxxz. V.J NATURE OF THE JUDICIUM PARIUM. 91 Section III. The Meaning and Nature of the Judu cium Parium. It is a common but erroneous opinion, that the judi- cium parium, " or trial by one's peers," had reference to the jury. This expression has misled many, and amongst others Reeves, and one of the greatest of our legal au- thorities — Blackstone — who thought that in that palladi- um of the early liberties of England, Magna Charta, trial by jury was provided for, because it was there declared that every freeman should be tried by the legal judgment of his peers, or by the law of the land.' He says : *' The truth seems to be, that this tribunal was universally es- tablished among all the northern nations, and so inter- woven in their very constitution, that the earliest ac- counts of the one give us also some traces of the other. Its establishment, however, and use in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norma", trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In Magna Charta it is more than once insisted on as the principal bulwark of our lib- erties; but especially by chap. 29, that no freeman shall ' Reeves says, after quoting these words, " that is, by a lawful trial : either that by jury which it was intended to promote and patronize; or by the ancient modes long known to the law of the land." Blackstone might have suspected that the judicium parium must mean something different from trial by jury, for he adds to the passage quoted in the text the words " a privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before : nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum." Comm. III. c. 23. But he seems to have thought that the instiku- tiop existed everywhere, for he goes on to say. " And it was esteemed in all countries a privilege of the highest and most beneficial nature." This may be true of the judicium parium, but certainly is not of trial by jury. . >)3 THE ANGLO-NORMAN PERIOD. [Ch. be hurt in cither his person or property, nisi per Icfjale juciicium parium suorum ''d per legem terrae." ' But the same expression occurs in a compilation of out laws of earlier date than Magna Charta. We find it in the Leges Henrici Primi. Thus, unusqiiisque per pares suos judicandus est et ejusdem provinciae. The pares, however, here spoken of have no reference to a jury. They may possibly include the members of the county and other courts, who discharged the function of judges, and who were the peers or fellows of the parties before them. In a stricter and more technical sense, however, they mean the homage or suitors of the baronial courts, which had seignorial jurisdiction, corresponding to the hallmotes of the Anglo-Saxons, and in some degree to the manorial courts of the present day. And the words above quoted, from the laws of Henry I., were taken by the compiler from the capitularies of Louis IX. of France, where we know that no such institution as the jury ex- isted until the period of the first Revolution. It may, indeed, be fairly doubted whether the words judicium parium could ever with propriety have been applied to the verdict of a jury. It will be hereafter shown how limited its functions were from the first ; and we shall see that the jurors were merely witnesses depos- ing to facts with which they were acquainted. And it is difficult to understand how their sworn testimony in court could have been called a judicium. This implies the decision of a judge, and such the magna assisa, or ' In his observations on Maj^na Ciiarta, Barrington having noticed the correspondence of the 29th Chapter with a Normun Charter nearly contem- poraneous, says, " I should therefore conceive that the trial per pares in the 29th Chapter of Magna Charta, was meant chiefly to relate to the trial of the barons by their peers, though it hath, fortunately for the liberties his country, been expounded to extend to the trial of all persons by a jury." It is certainly, however, a mistake to suppose that by the pares are meant peers in the limited sense of peers of parliament. The latter term is derived from the former, but at the time of Ma(^a Charta it had a much wider signifi- cation. 'wmmmmifmrKmm' nmviumkmmm't V.| NATURE OF THE JUDICIUM PARIUM. y3 jurata patricC, never gave. They came to the court to state upon oath their knowledge of certain facts, but they were not a part of it, and, therefore, could not be said to pronounce a judgment. In the Rotuli Curiae Regis, the entries clearly point out the distinction be- tween the verdict of the jury and the judgment of the court. The former commences vith the words Juratores dicunt, the latter is headed Judicium. And Glanvill, when he speaks of the conclusive finding of the juries, says, stabit veredicto visineti ; but when of the decision of the court consequent upon that finding, he uses the expression secundum dictum visineti judicabitur.' In one sense, indeed, the jury may be said to discharge judicial functions, and always to have done so from the earliest period at which they appear in our forensic an- nals, when they were strictly witnesses. For the peculi- arity by which their evidence was then distinguished was, that it was conclusive of the facts in dispute. The veredictum of a jury was always an estoppel against any averment to the contrary, unless they could be convicted or manifest perjury and fraud — and this could only be done by a subsequent proceeding. As regarded the trial in hand, their testimony (for in old times their ver- dict was nothing more) was taken to be literally and ab- solutely true. Now every court of justice has obviously two distinct functions to perform — one of which is to determine the facts, and the other to apply the law. The former is the appropriate province of a jury, the latter of the judge ; but inasmuch as the conclusive find- ing of factb is a judicial act, the term judicium may, ' Tract, de Leg. ii. 6 ; v. 4 ; Xlll. 7, ti. In one passage, Bracton may seem at first sight to apply the term judicium to a verdict. He says that in a certain case the jury do not commit perjury ; licet faciunt fatuum judicium, quia loquuntur secundum conscientiam, quia falli, possunt in judiciis suis sciat ipse justitiarius, fo. 289 (a). But judicium here means the judging faculty of the mind, which determines it to a particular conclusion. i "w ^V «-ltfi^L^ 94 THE ANGLO-NORMAN PERIOD. [Ch. perhaps, be allowed in that sense to apply to the ver- dict. Some writers have supposed that the term judicium parium was applied to the decisions of the freemen of the old German courts, before the feudal system sprung up in Europe ; and that the pares spoken of were the genossen, or associated members of the diiTerent districts, into whic'.i each territory was divided. These they imagine to have sat and judged in classes, according to the rank or occupation of the person to be tried. Thus the nobles would judge the noble, the peasants the peasant, and so on. But this theory is not borne out by the documents and records we possess. On the contrary, it may be safely asserted that no such distinction pre- vailed in those times, but che whole body of freemen of the gau or mark formed the court, and were the triers and ju'igesof all persons and cases whatever. But to return from this digression. — By one of the laws of William I., if there was a dispute between a lord and his vassal respecting any agreement about holding land, the vassal was to prove his case by the testimony of his peers (par ses pers de la tenure meimes), for in such a case he could not vouch a stranger.' To do suit (sectam) at a county or other inferior court was in fact one of the common tenures by which land was held, and the suitors, called sectatores, or sometimes at a later period pares, where therefore bound to ^ive their attendance. Hence when the tenant was entitled to claim exemption as being a minor, and in ward to the king, or on any other ground, he obtained a writ pro exoneratione sectaead curiam comitatusvel baron. And this was said to lie '* where the tenant hoideth his land to do suit at the county-court, hundred, or other court- baron or wapentake or leet, and he who ought to do suit is in ward unto the king or his committee, and the lord • Leg;. Gul. Conq. 23. "W w v.l ASSISES DE JERUSALEAf. 95 of whom he holdeth by such service will distrain him to do his suifr ^.t his court during the time he is in ward unto the king or his committee." ' The lord had no voice in the decision come to by the homage : he sirnply presided, and carried into eiTect the judgment.' According to the feudal law of Europe, if a vassal had neglected to perform the military service due from him, he was tried by his compeers, his fellow-vas- sals,* and lost his fief, si de vocatione legitima a domino suo convinci per compares suos poterit.* And in case of a cispute between a lord and his vassal, if any member of the court knew the truth of the fact he was obliged to make it known ; Notandum est quod de omni controver- sia qujE inter dominum et vasallum oritur, si pares veri- tatem noverint omino cogi debent a dominio et paribus dicere veritatem.* Here we see, as in many other in- stances, the office of trier and witness blended to- gether, but no trace of the intervention of third parties corresponding to a jury. Section IV. The Courts established by the Assises de jferusalem. We have very scanty information on the course of procedure in these feudal courts in Europe, but the defect is supplied in a great measure by the invaluable work the " Livre des Assises de Jerusalem," which is an ac- count of the courts established in Palestine by the Crusaders after Godfrey Duke of Bouillon had ascended ' Fitzherbert, Nat. Brev. 158. * Le coustume de Beauvoisins est tele que li seigneurs ne jugent pas en leur cciur, mes les homes jugent. Coutumes de Beauvaisis, c. 57. ' Meyer says, tnat the first mention of the right of vassals to be judged by their peers, occurs in a capitulary of Charles the Bald in 856. Institut. Judic. I. 459. * Feudorum Lib. ii. tit. 54. * Id. tit. 58. 96 THE ANGLO-NORMAN PERIOD. [Ch the throne of the kingdom of Jerusalem, when that city had been rescued from the Saracens in the year 1099.' Feudal courts were then established on the model of those that existed in the countries from which the cru- saders came ; and as the great majority of the soldiers of the cross were from Franco, the law of that kingdom was the one which chiefly regulated their procedure. It will be useful to consider what this was, that we may see how far writers are mistaken who think that trial by jury may have been derived from it. Godfrey of Bouillon established two seculiar courts of justice in his new kingdom, one called La Haute Cour, the High Court, of which he himself as suzerain was the chief justiciary ; and the other La Cour des Bourgeois, or Court of the Burgesses, called also the Viscount's Court, presided over by one of his feudal lords. The judges of the High Court were the chevaliers who held by tenure of knights' service in capite, and of the Burgess Court the townsfolk of the city, " the most upright and wise to be found therein." The great barons had feudal courts of their own upon the model of La Haute Cour at Jerusalem. To these they summoned their tenants, just as they were sum- moned to attend the high court presided over by the king himself, and within the limits of their seignories they had the privilege of coining money. The same rights were enjoyed by the patriarch, the archbishops, and bishops, for they held fiefs attached to tlieir churches. In the feudal courts were determined all questions in which the lord and his vassals were interested, except matters relating to heresy, marriage, and wills, of which the Church took exclusive cognizance. No one, how- ' There is a very full and accurate account of the Assises de Jerusalem, and the courts of Palestine, in Wilkens's Geschichte der KreuzQc;e, VoL I. c 13, and Beilage, III. Id. p. 17. m ] •V.} ASSISES DE JERUSALEM. 97 ever, had the right to hold a court within his fief to whom the privilege had not been granted by the su- perior lo;d. If any tenant who was himself a mesne lord (for sub-infeudation was practiced to a great extent as in England, until it was prohibited by the statute Quia Emptores) usurped such jurisdiction improperly, he was held to have forfeited his allegiance, and was liable to severe punishment. The vassals of those lords who were entitled to hold courts resorted to them, and the vassals of tliose who had no such privilege preferred their claims in the court of the king or some lord paramount.* The lord himself presided, or he might appoint a deputy, .and it was his office to fix the time and place of meet- ing, when and where it was the duty of his vassals to •attend.' The sentence was executed but not determined by him. This devolved upon the vassals whom he sum- moned to his court, and all his tenants,who might happen •even though not summoned to be pre >ent, might be called upon, if the lord thought fit, to take part in the judgment. In the Haute Cour, where the king himself or his sub- vstitute presided, the assessors of the inferior feudal courts might be summoned to sit, for they were not less the vas- sals of the crown, because they held their fiefs from mesne lords. The rights of the sovereign were paramount over all. But in the court of a crown vassal only his own ten- ants might sit, unless special permission was obtained from the suzerain to call in the tenants of another vassal in cases where it was deemed advisable to have the ben- efit of their advice and assistance as judges. When a complaint was made, or as we should say, an action commenced in court, the defendant was sum- moned by an officer (banier) to appear in person. He might, if he had a valid excuse for absence, commission ' The words of the Assize are : " il se doit clamer au seignor de qui il tient le fi^, se :1 a court ; et se il n'a court, au chef seignor. Ch. 359. * Les barons et seignors du royaume de Jerusalem qui ont court et court *et justice, doivent estre sages, leaus, droituriers, et bons justiciers. Ch. 6. 7 *&&■;. 98 THE ANGLO-NORMAN PERIOD. [Ch. an agent to state this for him, but the latter was obliged to make oath that he had been empowered by the party for that purpose. If, however, the complainant (plain- tiff) asserted that the excuse was feigned, a second summons was brought to him by three vassals, one of whom represented the president, and the others the judges of the court. This summons was peremptory, and tlie party must either accompany the messengers, or affirm with an oath the truth of the excuse which he had previously sent. If this excuse was that he was sick or had received a wound, the plaintiff waited for a time un- til he was able to inform the court that his adversary had recovered, or his wound was cured, upon which three members of the court (paires) were sent to him accom- panied by a physician or surgeon sworn to speak the truth; and if the defendant persisted in saying that he was still unable, from his malady or wound, to attend, the former examined his body to ascertain whether the state- ment was true.' If found to be true, he was allowed to absent himself as long as he kept his house (tant com il demora en son hostel) ; if false, he was ordered to follow them to the court immediately, or if he refused, the com- plainant was forthwith put in possession of the disputed property. If the defendant appeared, the plaintiff or his advocate repeated his complaint : and in most cases the former was allowed to claim a delay (demander jour) of fifteen days, at the expiration of which period both parties were bound to attend at the appointed place before sunset, or at all events before the stars appeared in the sky, and thrice proclaim, in the presence of the lord, if he had ar- rived, and of three of his vassals, their readiness to do right in the matter. The plaintiff then repeated his complaint, and he was obliged to be careful that he did not vary from his original statement, for if he did, the ' If it was an interne! malady of which the party complained, it was the duty of the physician taster son pos et veir son orine. v.] ASSISES DE JERUSALEM. 99 defendant might demand a fresh delay on the ground that it was a new plaint (nouviau claim). If only one of the two parties appeared at the expira- tion of the period (which in old legal parlance in this country would have been called the essoign day) he waited until the stars were visible in the sky, and then called out to the vassals or homage in attendance, to ob- serve them. He next applied to the lord to grant him a certificate, or record of the court, that he had kept his day, and to put him in possession of the property claimed if he was the plaintiff, or do him right if he was the de- fendant. This was accordingly done, and the other party was concluded in his right, unless he could prove that he had been detained by imprisonment, sickness, or some other valid and sufficient cause. The modes of proof were, i, the oral evidence of mem- bers of the court (recort de court), or of witnesses who were sworn to speak the truth ; and if the subject-mat- ter in dispute was of the value of a mark of silver, they were obliged to make good their testimony by combat, if challenged by the opposite party ; and 2, the produc- tion of documents. The members of the court themselves gave evidence in cases of disputes about the right to the possession of real property ; and to entitle the demandant to recover it was necessary that two of them, at least, should state, if appealed to by him, that they had seen him or his ancestors in possession of the property, or knew that it had been granted to him by the rightful owner. In criminal cases, witnesses, and the judicial combat with the accuser or his champion, seem to have been the admissible kinds of proof. But we must notice one remarkable law, whereby, if all other means failed, an accused party was allowed to assert his innocence. This was by charging the court it- self with falsehood (fausser la court), and challenging every one of its members to mortal combat. But this \' lOO TH£ ANGLO-NORMAN PERIOD. [Ch. V. was a step of imminent peril ; for if he did not fight with them all, one after another, he was beheaded, and if he did not vanquish them all in a single day, he was hanged (il sera pendu par la goule).' In many respects different courts had, as we might ex- pect, different usages ; and Jean d'lbelin tells us that it was the custom for two or more members of the court to state what the usage in former times had been, and this served for a precedent on the particular occasion. There were also burgess courts in the different towns, corresponding to the Cour de Bourgeois at Jerusalem ; over these an officer presided, called a vesconte (vice- comes), and the court was composed of him and twelve jur6s, but nothing is known of their mode of appoint- ment. This, however, is certain, that they were a per- manent tribunal, and sat as the sworn judges of the court ;* so that their constitution differed little if at all from that of the Scabini in Europe, of whom we have already spoken.* But it was not necessary that the whole twelve should sit, for three or even two were sufficient to form a quorum. The nature of their duties is shortly summed up in a passage of the Assizes : Les jur6s puisque ils sont asis en la cort, deivent oyr et escouter la clamor et le repons et bien entendre ; et sur ce que ils oront et connoistront, doivent faire droit jugement k lor essient sans faucer.* ' Upon the chances of success in such an undertaking, Jean d'lbelin well observes : il me semble que nul home, si Dieu nefaisoit apertes miracles pour lui, qui la faussast en dit, la faussast en fait. Ch. II2. * See Assises de Jerusalem, par Beugnot, torn. il. Introduct. p. XX. XL. Liv. des Assises, chap. vii. et seq. • In a charter granted to ihe inhabitants of Acre in 1231, we find the following : Jurare debent Choremanni (t>. Jurati) primo jus Ecclesise, se servaturos, jus etiam abbatis et ecclesise sancti Bernardi ; jura viduarum et orphanorum pauperum et divitum, et omnium hommum tarn extraneoruni quam jnratorum suorum super causis quse coram ipsis venerint et ad jura- mentum suum pertinuerint, jus et legem dicere, nee omittere propter gra- tiam vel timorem odium vel amorem. Id. p. 25. n. (d). * Chap, ix i.d'*-Vr^t-'_i't-Ai_,-V*ii>jJi,':;;. ^A^-,.-:dJ\V^.'.v;u4>Vi;:;:.'..*.itoWv.ii».*ri...' ■J*-l^i^i.|-^V'f ■ '.■Ji ^w CHAPTER VI. THE JURY IN THE TIME OF THE PLANTA- GENETS. Section I. On the Assize as established by Henry II. WE now come to speak of the Assize which was es- tablished in the reign of Henry II., and is called by Glanvill, a contemporary and the earliest of our juri- dical writers, regale quoddam beneficium dementia prin- cipis de consilio procerum populis indultum. In another passage he mentions it as regalis institutio ; so that there seems to be no doubt that it owed its existence not to custom and usage, but to a positive enactment of the king with the advice and consent of his nobles. In it we first find the jury in its distinct form, but the elements of which it was composed were all familiar to the juris- prudence of the time, and we shall see that, except as regards its definite constitution, it involved no idea novel to the minds of our ancestors. The assisa, or magna assisa, as it was usually called,' was a mode of trial confined to questions concerning (i) the recovery of lands of which the complainant had been ' The word assisa means nothing more than statute or enactment. Thus Glanvill says that in some cases inferior courts were made courts of record per assisam de consilio regni inde factam. Tract, de Leg. x. c. lo. And one of our old statutes is entitled Assisa panis et cervisiae, " an ordinance respecting bread and beer." Hence the recognition by jurors was caller* an assize, because it was established by an assisa, or statute of Henry \\. :^/Vl;.*^i:i'Ji;Vitfc;,^ ;.- . -.Vi-.-,u „J5^-j- m \ '1 toa /U/iV IN TIME OF PLANTAGENETS. [Cu. disseized ; (2) rights of advowson ; nnd (3) claims of vas- salage affecting the civil status of the defendant. In cases of disseizin the demandant and tenant, cor- responding to the modern plaintiff and defendant, having duly appeared in court, the former "declared " in the following plain and straightforward manner: " I claim against A. two carucates of land in the town of B. as my right and inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king Henry I. (or after the coronation of our lord the king), and of which he has taken the profits to the value of five shillings at the least. And this I am ready to prove by (the body of) this my freeman C, and if any mischance happens to him, then by another, D." It is important to notice that the person thus ofTered as the champion of the demandant must be one who could, from his own knowledge, testify to the justice of the claim. He was, in fact, one whom the plaintiff vouched as a witness of the truth of his assertion with regard to the seizin of his ancestor. — But it was suf- ficient if he could give hearsay evidence on oath, derived from a trustworthy source : ' and hence the " declaration " sometimes concluded thus : — " And this I am ready to prove by this my freeman N., whose father on his death- bed enjoined him, if at any time he heard of a dispute about this land, to give evidence of what his father saw and heard respecting him," Sometimes it happened that a hired champion was named, but this was contrary to law, and the other side might object to his competency ; for the principle of the combat was that the champion should be a " witness of the truth " of the side on which he fought ; and he gave the strongest possible evidence of the sincerity of his conviction by exposing his life to peril in the cause.* ' Glanville says he must be a person qui hoc vidit vel audivit. * Sir Edward Coke assigns a more technical but unsatisfactory reason VI.] ASSIZE OF HENRY II. 103 And as it was supposed that God interfered on behalf, of right a defeat was regarded as a proof of the falsehood of that side which sustain i it ; and hence not only did the party whose champion was vanquished lose his suit, but the champion was himself punished as guilty of the •offvinse of having borne false witness. At a later period, in the reign of Edward I., the statute of Westminister provided that the champion of the demandant should not be obliged to swear, de visu et auditu, as to what he had seen and heard, *' because it seldom happens but that the champion of the demandant is forsworn, in that he sweareth that he or his father saw the seizin of his lord or his ancestor, and his father commanded him to deraign that right." But the tenant (defendant) was not obliged to accept the combat thus offered. He might, unless a valid objection were taken by his adversary, avail himself of the enactment of Henry II., and choose the trial by as- size, magna, assisa domini regis.' Such an objection was relationship : — if both parties were descended from a common ancestor to whom the land in dispute once be- longed. This, if asserted by the plaintiff, might be denied by the defendant ; but if the fact were admitted, the next question was, which of the two was the nearest He says (Litt. 294 b.) : " In the writ of right neither the tenant nor deman. •dant shall fight for themselves, but find a champion to fight for them : be- cause if either the demandant or tenant should be slain, no judgment could be given for the lands or tenements in question. But in an appeal the de- fendant shall fight for himself, and so shall the plaintiff also ; for then if the defendant be slain, the plaintiff hath the effect of his suit, that is the death •of the defendant." ' It seems to have been called magna, from the importance of the ques- tions it was called upon to decide, and the superior station of the milites who served on it. Glanvill points out the advantages of the assize over the com- bat, the latter of which was exposed to many tedious delays and technicali- ties, and was, after all, only a proof of the sincerity of a single witness, the champion ; cum enim ex unius jurati testimonio procedat duellum, duodecira «d minus legalium hominum exigit ista constitutio juramenta. n. c. 7. 104 JURY IN TIME OF PLANTAGENETS. [Ch. in blood to the common ancestor, and what circumstance,. if any, had happened to deprive him of his prim^ facie right to the property, e.g. whether there had been a sale, gift, exchange, or forfeiture for felony. In pursuing, this inquiry, as any issue of fact arose between the par- ties it was determined by bodily combat. If, however, the defendant denied altogether that he and the plaintiff were descended from a common ances- tor, the relations of each party were summoned into court and examined as to the fact ; and if notwithstanding their assertion that a common relationship existed between them, the defendant still denied it, recourse was had to the neighborhood (decurrendum erit ad vicinetum) whose verdict (veredictum vicineti) was conclusive. And if the relationship were thus proved, the trial then proceeded in the same way as if it had been originally admitted. But if the contrary were proved, the plaintiff was pun- ished for his unjust attempt to deprive the defendant of his assize, and lost his cause. If, however, no objection of this kind were raised, the next step was to issue a writ of prohibition to the infe- rior court, if the suit respecting the lands had been there commenced ; — on the ground that the curia regis had cognizance of the cause, and it was to be determined by the assize. A writ was then addressed to the sheriff com- manding him to summon four knights of the neighbor- hood where the disputed property lay, who were, after being duly sworn, to choose twelve lawful knights, who were most cognizant of the facts (qui melius veritatem sciant); and who were upon their oaths to determine- which of the litigant parties was entitled to the land.. The defendant was also to be summoned to hear the election of the twelve jurors made by the four knights, and he might except to any of them for the same reasons and in the same way as witnesses might be objected to in- the courts Christian. When the twelve were duly chosen,. .^fidt\a.^J\^\smJ^^ ^k.'h. VI.] ASSIZE OF HENRY II. 105 they were summoned by writ to appear in court and tes- tify on oath the rights of the parties. They swore that they would not say anything false, nor knowingly con- ceal the truth ; and by knowledge, says Glanvill, was meant what they had seen or heard by trustworthy in- formation. He then adds, what shows in the clearest light how entirely they were regarded as mere witnesses, and how different the idea of their functions then wa» from what it is now. When they met to try the case, either they all knew who was the rightful claimant, or some of them did and some did not ; or they were all ig- norant. In the last case they testified this in court, and then others were chosen who were acquainted with the facts in dispute.' If, however, some did and some did not know them, the latter only were removed, and others summoned in their place, until twelve at least were found who knew and agreed upon the facts. Also if the jurors 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 afiforcing the assize. The concurrent testimony, or verdict of the jury, was conclusive ; and there could be no subsequent action brought upon the same claim ; for it was a legal maxim, that lites per magnam assisam domini Regis legitime decisae nulla occasione rite resuscitantur imposterum.* If the jurors swore falsely, and were convicted, or con- fessed their crime, their punishment was severe. They were ' Assisa venit recognitura si Adam de Greinvill et Willielmus de la Folic dissaisaverunt injust^ et sine judicio Willielmum de Weston de libero tene- mento suo in Suto, post priman coronationem Domini Regis. Juratores dicunt quod non viderunt unquam aliam saisitum de tenemento illu, nisi Willielmum de la Folie. Et quod nesciuntsi Willielmus delaFolie dissais- isset eum inde vel non, Consideratum est quod alii juratores eligantur qui melius sciant rei veritatem. Dies datus est eis ad diem Mercurii.— Plac. Ab. II, Wiltesir. » Glanv. II. c. i8. io6 JURY IN TIME OF PI.ANTAG F.NETS. [Ch. deprived of all their personal property, and imprisoned for a year at least. They became infamous, and incompe- tent to act as witnesses or compurgators in future (legem tcrr.x amittunt), but were allowed to retain their free- holds. We see then that this proceeding by assize was nothing more than the sworn testimony of a certain number of persons summoned to give evidence upon matters within their own knowledge. It is needless to multiply proofs of an assertion which does not admit of denial or contro- versy. It will be sufficient to give a single instance, taken from one of the '^hroniclers of the time: Cumque inde summonita esset recognitio duodecim militum in curia regis facienda, facta est in curia abbatis aqud Herlavam per licentiam Ranulfi de Glanvilla, et juraverunt recogni- tores SE NUNQUAM SCIVISSE illam terram fuisse separa- tam ab ecclesia.' This corresponds to a trial at the pres- ent day, respecting ancient boundaries or manorial cus- toms, where the evidence of the oldest inhabitants, as to what they have known in their time, generally determines the verdict. The difference, however, is, that in the reign of Richard I., when the dispute mentioned in Joce- lin's chronicle occurred, the jury were themselves the wit- nesses, whereas now they derive their information from the witnesses, and give their verdict accordingly. In the Rotuli Curiae Regis, published by the Record Commissioners, we find numerous entries of these " Assizes " and their verdicts, in the following form : Assisa venit recognoscendum si Robertus filius Walter! injuste et sine judicio dissaisavit Ysabel de Benninton de libero tenemento suo in Benninton infra assisam. ' Chron. Jocelina de Brakelonda, p. 45, published by the Cambridge Society. Jocelin wrote the annals of the Monastery at Bury St. Edmund's, from the year 1172 to 1202. In claiming the right to an adowson, the plain- tiff, in his oral demand before the court, said et si quis hoc voluerit negare, habeo probos homines, qui hoc viderunt et audierunt, et parati sunt hoc dirationare. — Glanv. Tract. IV. c. 6, VI.] ASSIZE OF HENRY II. 107 ^ i If Juratores dicunt, quod non dissaisavit earn ita. Judi- cium. Robertus tcneat in pace; et Ysabcl pro falso cla- more sit in miscricordia. So entirely did the verdict of the recognitors proceed upon their own previously-formed viev*' 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 prepared to support. As an example of this, we may take the following narrative from the Chronicle al- ready quoted, which contains many curious and interest- ing illustrations of the manners and customs of the period. Thomas de Burg had obtained the wardship of the only daughter of Adam de Cokefield, from the abbot of the monastery to whom she had been left in ward by her father; and he claimed in her right livery of seizin of three manors to which the convent assorted that they had a title ; with respect to two of these, they relied upon a declaration made by Robert de Cokefield, the grand- father, on his death-bed, that he had no estate of inheri- tance in them, and on a deed solemnly executed in open court by Adam, the father, in which he acknowledged that he held the two manors of the convent by agree- ment only for his life. Thomas de Burg thereupon ap- plied for a writ to summon twelve knights to meet at Theo- cesberie (Tewkesbury), and take their oaths in the pres- ence of the king. The assize met, and the deed was publicly read in open court ; but it had no effect,— be cause, as the chronicler says. " they were all against I's " (tota curia erat contra nos). The knights on their oaths said that they knew nothing of chartularies, or private agreements (juramento facto, dixerunt milites se nescire de cartis nostris, nee de privatis conventionibus) ; but that they believed that Adam and his father and grand- father, for a hundred years back, had held the manors ^n I ^ ro8 JURY IN TIME OF PLANTAGENETS [Ch. fee one after the other. " And so," says Jocelin, " we were disseized by the judgment of the court, after much trouble and heavy expense, though we kept the old yearly rents." This was certainly a flagrant instance of common ••epute being allowed to outweigh positive evi- dence ; but we must not suppose it to be by any means a solitary case. As the names of the jurors who were to form the assize were known beforehand, the temptation became great to endeavor to secure a favorable verdict by bribes, and the practice seems to have prevailed to a considerable extent, for no less than three statutes were passed in the reign of Edward III. which prohibited the offense under severe penalties. Jocelin de Brakelonde also givca an example of the corruption of the times, and the danger of not propiating the knights who served in the assize. The church of Boesford was vacant, and the abbot claimed the advowson. An assize was summoned, and five of the knights who were in the panel came to the abbot and offered to swear in any way he wished if he would pay them. He however refused, and bade them when they were sworn to speak the truth ac- cording to their conscience. Upon this they left him in anger, and declared Uj.>on their oaths in court that he was not entitled to the advowson. Although twelve was the most usual, it was not the unvarying number of the jurors of assize for some years. In the infancy of the institution the number seems to have fluctuated according as convenience or local custom required. An instance of the former is mentioned in Jocelin's Chronicle. A fine had been im- P' <^ed upon the counties of Norfolk and Suffolk, and the monastery of Bury St. Edmund's was called upon to pay its proportion. The abbot, however, hastened to the king (Henry H.) who was then '"ith his court at Claren- don, and exhibited a royal charter of exemption from VI.] ASSIZE OF HENRY 11. 109 all fines and innposts granted by King Edward the Con- fessor to the lands of the convent. Writs were there- upon issued to summon six knights of t^he county of Norfolk, and six of the county of Suffolk, to appear be- fore tbe barons of the exchequer, and " recognize " •whether the lands of the monastery ought to bear part of a general fine imposed upon the county; and because they had lands in both counties, and '* in order to save tro'uble and expense," only six knights were chosen, who went to London, and there gave their verdict in favor of the abbot, which was enrolled by the justices.' On an- other occasion, when there was a question of jurisdic- tion between the abbot and the Archbishop of Canter- bury, the former in the presence of the king ofered to put himself upon the verdict of the two counties of Norfolk and Suffolk, that he and his convent had always had possession of the disputed franchise. The arch- bishop, however, said that the men of those counties had great veneration for St. Edmund (the patron saint of the monastery), and a large part of the lands in them were under the abbot's sway, so that he was i.nwilling to abide by their decision.* We find also in the same Chronicle that a verdict was taken by consent from six- teen lawful men of the hundred respecting the moiety of an advowson.* Indeed, it is tolerably clear from Glan- vill's treatise that the law on this subject was by no means settled in his time, for he puts as a difficulty the case of there being no knights of the vicinage or county, or fewer than twelve acquainted with the facts in dis- pute, and he asks, without determining the point, whether, supposing in such an event those who were thus qualified as witnesses to be on the jury, were to offer to prove their assertion by the combat, it would be ' Justiciarii autem assidentes Ternmdictum illoram inrollavemnt. Chron* Joe. de Brakel. p. 48. » Ibid. pp. 37. 38. • Ibid. p. 45. no JURY IN TIME or PLANTAGENETS. [Ch. allowed?' In the case of an assise de mort u'ancesior, if the question were raised whether one of the parties was a minor or not, it was determined by the recogni- tion or verdict of eight jurors.' Section I'. What suggested the idea of trial by Assize ? The question now occurs, what gave rise to this insti- tution of the assise, and whether it was developed from any modes of procedure previous!}' existing »* The theory of Phillips, a German writer, who has investi- gated the history of our early jurisprudence with much learning and ability, is ingenious, and may be shortly stated as follows.* Owing to the removal by William I. of ecclesiastical causes from the cognizance of lay judges, and the gradual increase of the jurisdiction of the Curia Regis, the provincial courts, such as those of the hundred and shire, lost much of their importance. The number of causes there diminished, and the chief amount of business was monopolized by the king's court.* But as upwards of a century elapsed from the arrival of the Normans before Justices in Eyre were regularly appointed to visit the counties and administer the law in the king's name, great inconvenience would in the meantime be felt in at- ' Tract, de Legg. II. c. 21. In the manor of Petiryn Parrein, in Corn- wall, there was a custom to try an issue with six jurors, but this was in 1652 adjudged to be no good custom. By the statt'te 34 and 35 Hen. VIII. c. 26. concerning Wales, it was provided that trials in the shire and hundred courts of the principality should be by verdict of six men. ' Ibid. XIII. c. 15. The course of practice in the baronial, county, and other inferior courts, varied greatly. Ibid. XII. c. 6, 23. ' See his Englische Reiche und Rechts Geschichte, 11. § 50. * While writing this sentence it is impossihie not to be reminded that, owing to the recent establishment, or, perhaps we should more properly say, restoration of the rounty courts, the converse of the statement would now be true. .v-_ VI.] ASSIZE, HOW SUGGESTED, III tending the Curia Regis under the old system of procer dure. This court followed the king's person, whose movements were uncertain, and as the judicial combat, which was the usual mode of settling disputes, was ham- pered with many formalities and delays, parties often found themselves obliged to travel from place to place be- fore they could obtain legal redress. Besides this, they would feel the want of judges to decide at the trial, who, like those in the country courts, were familiar with the parties and their cause of quarrel. Hence would arise a wish to provide if possible a tribunal similar to the king's court. The judicial members of the county court could not all be summoned to attend, for they had causes to try at home. Who, then, could be found to supply their place ? It had, as we have seen, been the practice for the plaintiff, or, in some cases, the reeve, to nominate what may be called a panel of relations and neighbors, out of whom the defendant was to choose his compurga- tors ; and, under the altered circumstances of the time, it seemed an obvious course to choose a similar panel from amongst the members of the court of the district in which the litigant parties dwelt. The number named would be sufficient to ?dmit of valid exceptions being taken by the defendant against some of them, and yet leave upon the panel twelve to coincide with the number of the judges constituting the county court, whose sub- stitute and representatives they were. Such is the theory of Phillips, but it is, upon the whole, unsatisfactory, and, in some points, too refined to be likely to be correct. According to him the assize was a modified form of the county court summoned to at- tend the Curia Regis, and deliver its judgment or ver- dict there. But this is altogether unsupported by au- thority ; nor do I think there is any necessity for resort- ing to such a supposition. It seems to me that the matter admits of a much more simple explanation. In :±i 112 JURY IN TIME OF PLANTAGENETS. [Ch. the instances already g'ven of suits respecting lands in the reigns of the early Norman kings, we have seen that the constant practice was to decide the controversy by appealing to the knowledge of the neighborhood 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 whom the prop- erty belonged. These were called the probi et legales homines, and their verdict was conclusive of the ques- tion in dispute. Such were the inquests, of which examples have been already given in the preceding chap- ter; and when we come to speak of the Jurata we shall have occasion to consider the subject more fully. There was no difference whatever in principle between those inquests and the recognitions by the knights of assize ; and it seems to me to be almost as clear as demonstra- tion that the idea of the latter was derived from the former. In both cases the verdict was the testimony of witnesses cognizant of the matter in dispute ; and if we substitute a determinate number of knights for the probi homines of an ordinary inquest, we have at once the assize. Section III. Subsequent History of the Assize. The first mention of the trial by assize in our existing statutes occurs in the Constitutions of Clarendon, a. d. 1 164, where it was provided that if any dispute arose between a layman and a clerk as to whether a particular tenement was the property of the Church or be'onged to a lay fief, this was to be determined before the chief justiciary of the kingdom, by the verdict of twelve law- ful men (recognitione duodecim legalium hominum). And if they decided that it belonged to the Church, then any further plea concerning it was to be held in the spiritual court ; but if to a lay fief, then in the King's Court. V I.J SUBSEQ UENT HISTOR Y OF ASSIZE. 1 13 This was followed by the Statute of Northampton, A. D. 1 176, which directs the justices, in case a lord should refuse to give to the heir the seizin of his deceased an- cestor, *• to cause a recognition to be made by means of twelve lawful men as to what seizin the deceased had on the day of his '^ea^h;" and also orders them to inquire in the same. ...annsr in cases of novel dis- seizin. It was one of the articles of Magna Charta (a. d. 1215), that legal suits should no longer follow the ambulatory royal court, but be tried in some fixed place, and that rec- ognitions by assize should be taken in the counties where the lands lay ; for which purpose the king was to send into each county two justiciaries four times a year, who, with four knights of the same county, chosen by the county, were to take the assize, and no one else was to be summoned by them except the jurors and the par- ties (nisi juratores et duae partes).' The expression *' take the assize," here means " summon the assize " in the manner specified by Glanvill, and already men- tioned. The next legal writer after Glanvill is Bracton, who lived in the middle of the thirteenth century, and we find in him a clear account of the form in which this mode of trial was conducted in his time.* If no exception could be taken to the assize, and the •defendant denied the disseizin complained of, the first point to consider was, whether all or any of the recogni- tors could be objected to. And as a general rule the same causes disqualified a man from being on the assize, as disqualified him from giving testimony as a witness. ' Articnii Cartse, § 8. These articles were sealed by King John, and afterwards drawn up in the form of a charter, to which he also affixed his -seal, and so drawn up they constitute the Great Charter. The alterations :and additions are pointed out by Blackstone in his Law Tracts, pp. 299-301. » Bract. IV. c. 19. 8 (:' -a 114 JURY IN TIME OF PLANTAGENETS. [Ch. Such was conviction for perjury, which made him no longer law-worthy, as was expressed by the old English maxim: 3^6 ne e8 othee woiithe thai es enes gylty of oth 1>t|o)ten. Other causes were ^ rfdom, consanfjuinity, affinity, en- mity, or close friendship. When the objections had been disposed of, and the panel was complete, one of the rec- ognitors took the prescribed oath, and the others then, each for himself, adopted it. The prothonotary of the court next read to the jury the issue which they were to try, saying", — " Ye shall declare on the oath which ye have taken, if N. has unjustly and without judgment disseized M. of his tenement in such a vill, since such a time, or not." The jury were then to retire to some private place to consider their verdict, and no one was allowed to have access to them until it was delivered. If, however, they could not agree, other recognitors were empanelled, in number equal to the dissentient minority, provided it consisted of at least four ; and these either joined the former jury and discussed the matter with them, or they might deliberate apart ; and the conclusion to which they came was considered the verdict, which agreed of course with the view of one of the two parties into which the jury had been divided. Judgment was then given in con- formity with this verdict.' But if any of the jurors said that they were ignorant of the facts of the case, others were added who knew the truth, until the requisite num- ber was obtained. ' There is, however, a passage in Bracton which seems to imply that it was the duty of the judge to satisfy himself of the truth of the verdict of the assize: Sed cum ad Judicem pertineat justum proferre judicium et red- dere, oportebit eum diligenter deliberare et examinare si dicta juratorum in se veritatem contineant, et si eorum justum sit judicium vel fatuum, ne si continyateum judicem eorum dicta sequi et eorum judicium, ita falsum faciat judicium vel fatuum. iv. c. 19 § 6. VI.] ASSISA VERTITUR IN JURATAM, 115 In the treatise called "Fleta," which was written in the reign of Edward I., the practice app'^ars substantially the same. When a party complained of a disseizin a writ was issued to the sherifiF, and it was his duty there- upon tp convene a number, not exceeding twenty-four, of" free and lawful men " of the vincinage, out of whom in the presence of the parties (if they chose to attend) he nominated twelve indifferent persons, who then either all, or to the number of seven at least, proceeded to view the property in dispute. After having done this, thicir names were enrolled, and they were then summoned by two freeholders to appear at a fixed time and place before the justices of assize, ready to make recognizance : that is, try the question of disseizin.' In modern times the grai'd assize has been now and then summoned by a writ of right ; and I believe the last recorded instance of it occurred in 1834, which led to two trials, the second of which took place in 1838, when four knights girt with swords and twelve other recogni- tors acted as the jury in a trial at bar in the Court of Common Pleas, and were addressed by Chief Justice Tin- dal ip summing up, as " Gentlemen of the grand inquest," and " Recognitors of the grand assize." ' The writ of right, and all proceedings by the assize, were finally abol- ished by Stat. 3 and 4 William IV. c. 27. Section IV. On th: trial by the Jurata, and the mean- ing of the expression Assisa vertitur in Juratam. So far we have been considering tue assize, which we sec was in its original constitution nothing more than a body of twelve knights empaneled to determine by their testi- mony a disputed question of seizin of land, right to an advowson, or villenage. But we find in Bracton and Fleta and other old legal writers, a distinction drawn be- > Fleta. II. c 5. » Davies v. Lowndes, 5 Bing. N, C. 161. ii6 JURY IN TIME OF PLANTAGENETS. [Ch. tween the assize and jurata, to which it is necessary care- fully to attend. What is the meaning of such expressions as these : " Utrum recognitio procedere debeat in modum assise vel juratx." " Capitur assisa in modum iissiscE, quod quidem non esset si caperetur ut jurata." ' *" Cadit assisa et vertitur in juratam."* " Capienda erit assisa in modum assisae, secus vero si in modum juratae?"* And in both the above-named authors we have chapters en- titled Qualiter assisa vertitur in juratam. The subject is involved in an obscurity which perhaps can not now be wholly removed. This arises from the absence of any precise information respecting the mode in which the jurata was first formed, and how it came into exist- ence. No account of this has been transmitted to us by contemporary writers to whom its use was familiar, and we are left to find our way through the darkness, relying upon the aid of analogy, and probable conjecture drawn from the incidental notices of the subject that occur in our old chroniclers and legal writers. The theory of Meyer is that the jurata, as distinguished from the assisa, is the real jury of modern times, and that it is derived from the Cour- Basse of the kingdom of Jeru- salem, the knowledge of which was brought to England by the numerous crusaders and pilgrims who visited the Holy Land. His argument, however, is chiefly based on the assumption that the word jurata, as a mode of trial, first occurs in Bracton, who wrote a century after Glan- vill, and after the Crusades had in the interval taken place.* But this is a mistake; for although Bracton is the first writer who discusses the precise question in what cases the assisa vertitur in juratam, Glanvill distinctly notices the jurata as existing in his time. He mentions I Bract, iv. c. 19. * Id. ' Fleta, iv. c. 9. ^ Dans cet ouvrage (Glanvill). . . .il ne se recontre ni le nom de jury, ni la chose meme, quoiqu'il y soit souvent question de I'assise. Ongine des Inst. Judic. n. 169. VI.J ASSISA VERTITUR IN JURATAM. iij it when treating of purprestures, that is, trespasses or en- croachments committed against the public, as, for in- stance, in building upon the king's highway;' and says that inquisition is to he made of these before the justices per juratam patriae sive visineti, and whoever is convicted is to be in the king's mercy ; wnich Glanvill explains to mean a fine imposed by the oath of legal men of the neighborhood. The problem is to discover what was the origin and constitution of the jurata of which Glanvill speaks ; — and it seems to me that the solution is to be found in the early forms of procedure resorted to determine disputes concerning land or other property, such as we have seen took place in the ancient suits, of which several instances have been previously given. It has been sufficiently shown that in those cases the mode originally adopted in the Anglo-Saxon times was to refer the question to the knowledge of the comitatus or county, and afterwards, in the Anglo-Norman, as a more convenient method, to allow the neighborhood to be represented by a certain number of the inhabitants probi et legales homines, who stated upon oath on whose side the right lay." These, therefore, were called the ju- rato patriae, or often simply the patria, as representing the country, whose decision this verdict was deemed to be. They spoke of matters within their own knowledge — being, in fact, nothing more than witnesses who testi- fied to the truth of matters notorious in their district. Of such a jurata patriae the Chronicle of Jocelin de Brake- londe affords several good examples. On one occasion the Abbot of St. Edmund's offered that the question of > Tract, de Leg. IX. c. II. * The Great Charter (a. d. 1215) provides that amercements or fines shall be made in due proportion to the nature of the offense (secundum modum delicti), and assessed per sacramentum proborum hominum de Tisneto. Art. Chart. § 9. ttS JURY IN TIME OF PLANTAGENETS. [Ch. disputed right to an advowson should be determined by the oath of the party claiming adversely to the convent. He, however, refused to swear ; and it was then agreed on both sides that the matter should be decided by the oaths of sixteen lawful men of the hundred, and these de- clared on oath that the title was in the abbot. Another instance of the same number of jurors is mentioned in the Chronicle in the case of an affray attended with blood- shed. An oath was administered to sixteen lawful men, and when they had given their verdict, or attestatio,asit is called by Jocelin (auditis eorum attcstationibus) the abbot excommunicated the ofifenders. And we frequent- ly find in Glanvill the expression decurrendum erit ad visinetum, or words to the same effect ; which mean that recourse must be had to the knowledge of the neighbor- hood where the parties dwelt, to determine some ques- tion of fact asserted on one side, and denied on the other. But it does not appear from him that there was any num- ber limited for this purpose, although we may suppose, from analogy to the assize, that twelve would be the most usual. The testimony thus borne by the neighbors was called their testimonium or veredictum.' Hence I conclude that, in the earliest times, disputes respecting lands were decided by the voice of the com- munity of the county or hundred, as the case might be, where the parties lived ; that afterwards 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 H. and his councillors the idea of the assize, 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. But the term '* assize " had a technical meaning, and was applied only to those proceedings, the direct object • Tract de Leg. ii. c. 6, § 4 ; v. c. 4 ; IX. c. u, § a ; xiv. c. 3, § 5. w ^ia!SOsl:.>iU'^i ' -Jijil-.X -iV_' VI.] . A SSI S A VERTirUR IN JURAT AM. 119 of which was either the recovery of land or realty in some shape, or the determination of the fact of villen- age. In these cases the verdict of the recojjnitors was confined solely to the question of the rightful seizin of the land, or the civil status of the individual, but in the course of the inquiry many other issuen might be raised ; as, for instance, whether the plaintiff was entitled to proceed by way of assize, on account of not being a freeman, but a " villain ;" or whether a particular deed had been executed or not. It became necessary to de- termine these questions; but the jury in doing so could not act in their capacity of recognitors of assize, in which they were limited to the single duty of deciding the is3ue of seizin or disseizin. Hence in such cases the ex- pression was used, assisa vertitur in juratam, or, with perhaps less accuracy, the questions were said to be de- cided per assisam in modum juratJE.* I can not, however, quite satisfy myself whether the same assize went on with the inquiry in the new character of jurata, or a fresh process issued, and proceedings commenced de novo where questions arose in the progress of the suit which did not fall properly within the province of an assize of recognitors to determine. I think, however, that the former is the preferable view, and this is as- sumed by Reeves in his account of the matter.* He says, that when any issue arose upon a fact in a writ of novel disseizin, mort d'ancestor, and the like actions, which fact the parties agreed should be inquired of by a jurata, nothing was more natural, nor, indeed, more com- modious, than that, instead of summoning other recog- nitors, as in Glanvill's time, the assisa summoned in that action should be the jurors to whom they might refer the inquiry. This was generally the case; and then the lawyers said, cadit assisa et vertitur in juratam ; the as- » See Fleta, Vf. c. 16. * Hist. English Law, I. c. 6. I'-j,*.:^ ' ''AA ■■!:.-', >f ■-..*> ffl< I I20 JURY J N TIME OF PLANTAGENRTS. [Ch. size was turned into .1 jury, and the point in dispute was determined by the recognitors, not in modum assisae, but in modum juratae.' As an illustration of the principle on which the distinc<- tion between the assisa and the jurata ^ Tract, de Leg. x. la. §. 4. • Ibid. § I ' Eng. Comm. i "^■■' \i'i 126 /UJiy CEASE TO BE WITNESSES. [Ch. one shall serve upon them who hold a tenement of less than the value of forty shillings yearly, except such as be witnesses in deeds and other writings, whose presence is necessary, so that they be able to travel (laborandum ).' Now, certainly, if we confine our attention to these stat- utes, the view above mentioned seems to be the true one. But it may perhaps be doubted whether it is cor- rect, and whether it is right to say that the attesting wit- nesses were included in the panel of jurors. There are two valuable chapters in Fleta on the subject of the proof of deeds, which throw considerable light upon the question. We there find the testes clearly distinguished from the patria, juratores, and recognitores. Thus, " si testes et juratores dicant quod cartam illam nunquam viderunt." — "Cum autem testes et recognitores in curiae comparuerint." — " Probari enim poterit carta alio mod*^ quam per testes et per patriam sicut per coUatioiiem sigillorum." * — The writs to the sheriff directing him to summon recognitors, beyond doubt included the attest- ing witnessei ; but it does not therefore follow that the latter sat a:» part of the jury. Their attendance was nec- cessary, and therefore it was the duty of the sheriff to have them in court. And as their evidence really deter- mined the question at issue, parties might not improp- erly be said to be tried by them as well as by the jury, or in the language of the times, ** to put themselves upon the witnesses and the county " — se ponere super testes in carta nominatos et super patriam.* The form of writ to the sheriff in such a case was the following: ' The original is, non ponatur in eis aliquis qui minus tenementum habeat quam, &c. In the Statutes at Lai^e, this passage is rendered, " none shall pass in them but such as shall hold a tenement of less than the value," which is directly contrary to the sense. See Fleta, iv. c. 5. * De fide cartarum, c. 33 ; De probatione cartamm, c. 34. ' Fleta, lib. VI. cap. 33. It is upon this form of expression that Sii Francis Palgrave seems to rely in support of assertion that the witnesses were included ia tlie jury. Compare Bracton, iv. c. 15. VII.] WITNESSES NAMED IN DEEDS. 117 Rex Vicecomiti salutem. Summone, &c. A. B. &c. testes nominatos in carti quam D. in curi^ nostr^ protulit, &c. Et prseterea tot et tales tarn milites quam liberos et legales homines de vis- neto, quod sint coram, &c. ad recognoscendum super sac- ramentum suum si, &c. With respect to the tot et tales, here mentioned, it appears that the number of the jurors or patria, as dis- tinct from the witnesses on these occasions, varied in dif- ferent cases. We find a writ for summoning nine ; and it is deserving of notice that here only three attesting wit- nesses are specified,* which looks as though they were to be added to the jurors at the trial, and thus make up the number twelve. Sometimes the recognition was made, or, in other words, the verdict was given by the witnesses alone.* But the most usual number of jurors summoned besides the witnesses was twelve ;* and if we are to sup- pose that the latter sat with them, then the jury fre- quently consisted of a greater number than twelve ; which is certainly contrary to the general opinion, and to the preponderating weight of precedent and authority.* And the language of the statute 12 Edward II. c. 2 (a. d. 1318) seems to me to be more consistent with the view which I had ventured to take of the separation of the attesting witnesses from the jurors, than with that which supposes them to have formed part of that body. The words are, " Also it is agreed that when a deed, re- lease, acquittance, or other writing, is denied in the king's court wherein witnesses be named, process shall be awarded to cause such witnesses to appear as before hath * Summone, &c. A. B. C. testes nominatos, &c. et prseter illos 9 tam milites quam alios, &c. ad recognoscendum, &c. Ibid. § 3. » Ibid. § 3. « Ibid. § 2, 5. ^ It must, however, be admitted that there are passages in Fleta which favor the opposite view. Thus, probetur carta et conventio per testes, licet domestici sint, simul cum aliis de jurata, vel per coUationem, vel alio moda. C. 16. taS JURY CEASE TO BE WITNESSES. [Ch. been used. Yet the taking of the inquest shall not be de- ferred by the abi>jnce of such witnesses." If the witnesses in such cases formed part of the jury panel, we should hardly expect to find a statue so worded which seems to contemplate a special process to compel their attend- ance. In reality, however, since the jurors themselves were originally mere witnesses, there was no distinction in principle 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 grad- ually, in the course of years, a separation took place. This separation, at all events, existed in the reign of Ed- ward III.; for although we find in the Year Books of that period the expression, " the witnesses were joined to the assize," a clear distinction is, notwithstanding, drawn be- tween them. Thus, in a passage where these words oc- cur, we are told that a witness was challenged because he was of kin to the plaintiff; but the objection was over- ruled on the ground that the verdict could not be re- ceived from witnesses, but from the jurors of assize. And it was said that when the witnesses did not agree with the verdict in an inquest, or, in other words, when the ver- dict was against evidence, the defeated party might have an attaint.* Section II. Mode of Trial per Sectam, Besides the trial by an assize or jurata, Bracton notices another mode of determining disputes. This was when a party made a claim, et inde producit sectam. The meaning of this is, that the claimant ofTered to prove his case by vouching a certain number of witnesses ' 33 Assu. xj. VII.] MODE OF TRIAL PER SECT AM. 129 on his behalf who had been present at the transaction in question. The defendant, on the other hand, rebutted this presumption by producing a larger secta, that is, a greater number of witnesess on his side whose testimony, therefore, was deemed to outweigh the evidence of his opponent. This was called the defense par legem ; and the suit was terminated without any intervention of a jury.* Inasmuch, however, is the evidence of defendant's sacta was not deemed to be an absolute proof, but merely raised a presumption in his favor suflficient to countervail the presumption on the other side, he was not allowed to resdrt to this mode of rebuttal where the complainant could produce evidence of a different char- acter, such as a deed or charter. If this was denied, the case was to be tried per patriam, or per patriam et testes in carta nominatos. But if the plaintiff produced his secta, and the defendant had none, but was obliged to rely upon his own denial, he was not (at all events in the instance given by Bracton of an action for dower (unde nihil habet) allowed to put himself on the country, but the plaintiff recovered by force of the secta,' or the •defendant was called upon to wage his law ; that is, he was obliged to bring forward double the number of wit- nesses adduced by his opponent until twelve were sworn. It seems that if he could procure that number to swear for him he succeeded in resisting the demand. Here there was no interposition of a jury at all, but the dis- pute was decided solely by the witnesses, according as the requisite number preponderated. An exception, however, was made in the case of merchants and traders, ' Bract. 290, b. ' If neither side had « secta, then, in the words of Bracton, de Teritate ponunt se super patriani, pro defecta sectse, vel alterius probationif, quam ad wanum non habuerint 9 I30 JURY CKASE TO BE WITNESSES. [Ch. for thsy were allowed to prove a debt or payment per testes et patriam.' The proccecliiifT per sectam appears to have been un- known in Glanvill's time ; at least he does not mention it, but sa\ s, as we have already noticed, that in cases where the plaintiff could produce no written document in sup- port of his claim, the spiritual court alone took cogni- zance of the matter, and dealt with it as a sin committed on the one side or the other, eit+ier in the demand or the denial. It is, however, easy to see that the principle of the procedure is the same as prevailed in compurgation. There the plaintiff or accuser, as the case might be, sup- ported his assertion by the rim-ath, that is, the oaths of persons who swore to their belief in its truth ; and the party attacked defended himself by the cyre-ath, or oaths of compurgators, who swore that they believed in his denial. This mode of compurgation was known as the lex manifesta ; but it was provided by one of the articles of Magna Charta that no man should be allowed to put another to such a defense by his own bare assertion, un- supported by trustworthy witnesses.' Section III. On the personal knowledge of the yury as distinct from the Evidence. \ As the use of juries became more frequent, and the ad- vantages of employing them in the decision of disputes * Bract, fo. 315, b. Fleta, li. c. 64. This secta must not be confounded with the suitors of the county and baronial courts, who were also called sectn. On the latter, see Flet. Ii. c. 65, and ante, p. 56, n. i. ' Nu'ilus ballivus de cxtero ponat aliquem ad legem manifestam nee ad juramentum simplici loquela sua sine tesiibus iidelibus ad hoc inductis. There is some difficulty as to the proper translation of this passage. Pon- ere aliquem ad legem manifestam no doubt means putting a defendant to his compurgation ; but as the loquela is the statement of the plaintiff, and the sua must refer to aliquem, I believe the sentence to be elliptical for nullus ballivus (sinat) aliquem ponerc (alium) ad legem, &c. And this view Ls confirmed by Fleta. I.' i ■.'Sii2 fitiA-^'^v, ■fci*- i /]iA!r..U ^jfrSj^iJ *-.A',«iS> i.1 VII.] PERSONAL KNOWLEDGE OF JURORS. 131 more manifest, the witnesses who formed the secta of a plaintiff began to give their evidence before them, and, like the attesting witnesses to deeds, furnished them with that information which in theory they were supposed to possess previously respecting the cause of quarrel. The rules of evidence now became more strict, and except as regards the right of the jury to found their verdict upon their own i>rivate knowledge, of which we shall speak presently, the trial was conducted on much the same principles as at the present day. Thus in the eleventh year of Henry IV. we find the judges declaring, " que le jury apres ceo que ils furent jur6s, ne devient veier, ne porter ovesque eux nul auter evidence, sinon ceo que a eux fuit livrere par le court, et per le party mis en court surl'evidence monstre," that is, that the jury, after they were sworn, ought not to see or take with them any other evidence than that which was offered in open court.* The occasion of this statement was where a plaintiff had privately put a juror in possession of a document which had not been tendered in evidence, and this was shown by the latter to his fellows when they were consid- ering their verdict, which was given in favor of the plain- tiff. When, however, the matter was brought under the notice of the court, they reproved the plaintiff for his conduct as improper, and refused to let him sign judg- ment. In the time of Fortescue, who was lord chancellor in the reign of Henry VI., with the exception of the require- ment of personal knowledge in the jurors derived from near neighborhood of residence, the jury system had become in all its essential features similar co what now exists. This will be plainly seen from a perusal of the following passages taken from Fortescue's celebrated treatise De Laudibus Legum Angliae : " Whensoever the parties contending in the king's > Year Book, 2 Hen. IV. '■:£tjiLs_>;.4-,v>v/ I t3a JURY CEASE TO BE WITNESSES, [Ch courts are come to the issue of the plea upon the matter of fact, the justices forthwith, by virtue of the king's writ, write to the sheriff of the county where the fact is supposed to be, that he would cause to come before them, at a certain day by them appointed, twelve good and lawful men of the neighborhood where the fact is sup- posed, who stand i»i no relation to either of the parties who are at issue, in order to inquire and know upon their oa.hs, if the fact be so as one of the parties alleges, or whether it be as the other contends it, with him. At which day the sheriff shall make return of the said writ before the same justices, with a panel of the names of them whom he had summoned for that purpose. In case they appear, either party may challenge the array, and allege that the sheriff hath cited therein partially and in favor of the other party, viz., by summoning such as are too much parties in the cause and not indifferent ; which exception if it be found to be true upon the oath of two men of the same panel, pitched on by the justices, the panel shall immediately be quashed, and then the justices shall write to the coroners of the same county, to make a new panel ; in case that likewise should be excepted against, and be made appear to be corrupt and vicious, this panel shall also be quashed. Then the justices shall choose two of the clerks in court, or others of the same coun./,' who, sitting in the court, shall upon their oaths make an indifferent panel, which shall be excepted to by neither of the parties; but being so impaneled, and ;HM)earing in court, either party may except against any particular persons, as he may at all times and in all cases by alleging that the person so impaneled is of kin, either by blood or affinity, to the other party, or in some such particular interest, as he can not be deemed an indifferent person to pass between the parties ; of which sort of ' These are ci^led Elisors. i,>^\-'i^W'-i- ■^■iiLd.if-^J.'\l'.l [Ch VII.] PERSONAL KNOWLEDGE OF JURORS. 133 exceptions there is samuch variety as is impossible to show in a small compass." " Twelve good and true men being sworn, as in the manner above related, legally qualified, that is, having over and besides their movables, possessions in land sufficient (as was said) wherewith to maintain their rank and station, neither su.npected by, nor at variance with, either of the parties ; all of the neighborhood ; there shall be read to them in English, by the court, the record and nature of the plea, at length, which is depending between the parties; and the issue thereupon shall be plainly laid before them, concerning the truth of which those who are so sworn, are to certify the court : which done each of the parties, by themselves or their counsel, in presence of the court, shall declare and lay open to the jury all and singular the matter and evidences, whereby they think they may be able to inform the court concern- ing the truth of the point in question ; after which each of the parties has liberty to produce before the court, all such witnesses as they please, or can get to appear on their behalf ; who being charged upon their oaths, shall give in evidence all that they know touch ng the truth of the fact concerning which the parties are at issue ; and, if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to give in evidence, so that what the one has de- clared shall not inform or induce another witness of the same side, to give his evidence in the same words, or to the very same effect. The whole of the evidence being gone through, the jurors shall confer together, at their pleasure, as they shall think most convenient, upon the truth of the issue before them ; with as much deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the court, in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion. "-,■■».■. i;i'j^,'Ssii.'''ii e<,^-^!.t.Jj--l/J».. ^ '^'.-.T.,-- i V-tf ,\£C;.'i-',^i -^ >34 JURY CEASE TO BE IVITNESSES. [Ch. which i\\py are to give in to the court. Lastly, they are to return into court and certify the justices upon the truth of the issue so joined, in the presence of the parties (if they please to be present), particularly the person who is plaintiff in the cause ; what the jurors shall so certify, in the laws of England is called the verdict. In pursuance of which verdict, the justices shall render and form their judgment." Here wc see that the jury were still required to come from the neighborhood where the fact they had to try was supposed to have happened ; and thi? explains the origin of the venue (vicinetum), which af s in all in- dictments and declarations at the present uu/. It points out the place from which the jury must be summoned. This is well illustrated by Arundel's case, which oc- curred in the reign of Elizabeth.' He was indicted for murder, alleged to have been committed '• in the city of Westminster, in the county of Middlesex, to wit, in a certain street there called King Street, in the parish of Saint Margaret in the same county of Middlesex," and the jury was returned de vicineto civitatis Westmonas- terii. He was found guilty, and it was moved in arrest of judgment that the venue ought to have been out of the parish, and not out of the city. The judges met at Sergeants' Inn, and "after many arguments" solemnly determined that every trial should be out of such place which by presumption of law can have the best and most certain knowledge of the fact ; and because the parish sh.ill be intended to be more certain than the city, inas- much as when it is alleged to be in a city, it shall be taken in law to be less than the city, the trial was held to be insufficient, and a venire de novo was awarded to try the issue again, on the ground that the life of the prisoner •was never in jeopardy. — And on the trial of Reading in the reign of Charles II., where the prisoner objected to a * 6 Co Rep. 14. «*«r- ^)^.,->f". VII.] PERSONAL KNOWLEDGE OE JURORS, 135 juror on the ground that he was on terms of friendship and intimacy with the prosecutor, the Lord Chief Justice of the Common Pleas, Sir Francis North, said, ** And do you challenge a juryman because he is supposed to know something of the matter ? For that reason the juries are called from th^^ neighborhood, because they should not be wholly strangers to the fact." ' It was in consequence of this principle of the original constitution of the jury, that it was for a long time held that their private knowledge of facts might influence their verdict as mud as the oral and written evidence which was produced in court.* And therefore they might bring in a verdict, although no proofs were offered on either side. " For," says Blackstone, " the oath of the jurors to find according to their evidence was con- strued to be, to do it according to the best of their own knowledge." * And it was said by the court of Common Pleas in Bushell's case* (A. D. 1670), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowl- edge to try the matters in issue, "and so they must, though no evidence were given on either side in court;" — and the case is put of an action upon a bond to which the defendant pleads solvit ad diem, but offers no proof; — where, the court said "the jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea." This is the meaning of the old legal doctrine, which is at first sight somewhat startling, that the evidence in court is not binding evidence to a jury.* Therefore, acting upon their own knowledge, they were at liberty to give a ver- dict in direct opposition to the evidence, if they so ' 7 State Tr. 267. • So also with the Dicasts of Athens : ovilv ydp (Si oidir aire's. ^sch. Con. Timarchum. » Comm. in. 374. * Vaughan, Rep. 135. » Ibid. 15a. € T'ii"-7('-i ■■* '':"'-"T" II li 136 /C/:^K CEASE TO BE WITNESSES. [Ch. thought fit. Thus we find Sir R. Brooke, who was re- corder of London in the reign of Edward VI., laying down the law as follows :' *' As to that which has been said by the king's attorney^ that there ought to be two witnesses to prove the fact^ it is true that there ought to be two witnesses at least where the matter is to be tried by witnesses only, as in the civil law; but here the issue was to be tried by twelve men, in which case witnesses are not necessary, for in many cases an inquest shall give a precise verdict, although chere are not witnesses, or no evidence given to them. As, if it be found before the coroner, super visum corporis, that I. S. killed the dead person, and he is arraigned and acquitted, the inquest shall say who killed him, although they have no witnesses *,^ so that witnesses are not necessary, but where the matter is to be tried by witnesses only. For if witnesses were so necessary, then it would follow that the jurors could not give a verdict contrary to the wit- nesses ; whereas the law is quite otherwise, for when the witnesses for trial of a fact are joined to the inquest, if they can not agree with the jurors, the verdict of the twelve shall be taken, and the witnesses shall be re- jected." One reason for allowing this sort of discretion to the jury seems to have been that they might escape the severe penalties of an attaint, which they did if they could show, by any additional proof, that their verdict was according to the fact, although not according to the evidence produced before them in court ; and the law charitably presumed that this additional proof was known to them at the time of giving their verdict.* When, however, attaints fell into di&use and the prac- tice of new trials was introduced, juries were no longer ' Reniger v. Fagossa, Plowd. Comm. 13. ' Blackst. III. 374. V!I,] PERSONAL KNOWLEDGE OF JURORS. 137 allowed to give verdicts upon their own knowledge : and it was laid down as a rule, that where they were ac- quainted with any facts material to be known, they ought to inform the court, so that they may be sworn as wit- nesses ; and it has been said that " the fair way is to tell the court before they are sworn that they have evidence to give. And now, so different is the principle on which the jury find their verdict, that it would be a reason for a new trial if they were told by the presiding judge to take into account and be guided by their own knowledge of facts derived from any source independent of the evi- dence before them. In one case " within the present century this was made the ground of an application for a new trial. An information was filed against a party for publishing a malicious and seditious libel relating to the Luddite riots ; and the judge who tried the case was alleged to have told the jury in the course of his sum- ming up that, with respect to certain acts of outrage which were averred in the information, they were at liberty to refer to their own personal knowledge, if they saw any of those acts committed. A motion was made for a new trial upon this and other grounds ; and the judgment of Lord Ellenborough shows that, if the jury had been told to consider their own previous knowledge as aiiy evidence of the facts, it would have been a fatal misdirection. He said, " The material objection upon which the rule was obtained was founded upon a sup- posed misdirection of the learned judge at the trial, viz., that he had referred, in aid of some defect of evidence, to the personal knowledge which the jurors might pos- sess for proof of the fact that outrages had been com- mitted at Nottingham ; for, as to their having been also ' T Salk. 405. For an instance of a juryman being sworn to give evidence, tee 18 State Tr. 123. and see note to VoL 6. 1012. ' R. V. Sutton, 4 M. and Sel. 540. ,^-_- ,. .., ,^.. .■.iT-F^ ■»fV"r»^.M jTK*-; 138 y(7i?K CEASE TO BE WITNESSES. [Ch. VII. committed in the neighborhood of Nottingham, I do think that it is material to prove both. It now appears, however, from the report, that the judge did not lay any stress on the personal knowledge which the jury might be supposed to possess in order to aid any defect of evi- dence. On the contrary, it appears that he considered the evidence as fully sufficient to establish a verdict in favor of the crown ; only he made the observation with reference to what they knew, as a matter of illustration, that it formed a part of the history of the county, that such outrages had been committed, as if he had said, every one must be aware of what had passed before their own eyes, and at their own doors ; but he did not advise them to rely on that as a source of information on which they were to found their verdict, but only that it might make the proof more satisfactory to their minds, if they knew what had passed, because no one can have any reason to doubt what he knows and sees. It is conclu- sive, I think, upon the report, that the judge did not leave this to the jury as forming a branch of evidence of itself." It was on account of the principle of personal knowl- edge being required in the jury that it was, in old times, a good ground of challenge that they were not hundred- ors of the district where the cause of action arose. The Stat. 27 Eliz. ch. 6, however, enacted that it should be sufficient if two hundredors were on the jury for the trial of issues joined in any personal action ; and now, by 6 George IV. ch. 50, the jurors need only be good and lawful men of the body of the county. •'r7-^irw^7^mwr '' »'-^v f :U-i' CHAPTER VIII. JURY SYSTEM IN CIVIL TRIALS. Section I. The Jury process. AS it was an essential principle of the jury trial from the earliest times, that the jurors should be sum- moned from the hundred where the cause of action arose, the court, in order to procure their attendance, issued in the first instance a writ called a venire facias, command- ing the sherifif or other officer to whom it was directed, to have twelve good and lawful men from the neighbor- hood in court upon a day therein specified, to try the issue joined between the parties. And this was accord* ingly done, and the sheriff had his jury ready at the place which the court had appointed for its sitting. But when the Court of Common Pleas w as severed from the Curia Regis, and became stationary at Westminster (a change which took place in the reign of King John, and was the subject of one of the provisions of Magna Charta), it was found to be very inconvenient to be obliged to take juries there from all parts of Ihe country. And as justices were already in the habit of making peri- odical circuits for the purpose of holding the assize in pleas of land, it was thought advisable to substitute them for the full court in banc at Westminster, in other cases also. The statute 13 Edw. I. c. 30, v/as therefore passed, which enacted that these justices should try other issues, " wherein small examination was required," or where both parties desired it, and return the inquests into the court "m 140 /C/Z^y SYSTEM IN CIVIL TRIALS. [Ch. above. This led to an alteration in the form of the venire ; and instead of the sheriff being simply ordered to bring the jurors to the courts at Westminster on a day named, he was now required to bring them there on a certain day, •• nisi prius," that is, unless before that day the justices of assize came into his county, in which case the statute directed him to return the jury, not to the court, but be- fore the justices of assize. Still, however, a practical hardship remained ; for as the sheriff was not obliged to return the writ of venire until the day on which he brought the jurors into court where the justices were sitting, the parties had no means of knowing anything of them beforehand, or ascertaining whether they had any just cause of exception against them. This led to the passing of the Statute 42 Edw. III. c. II, which provided that no causes should be tried at nisi prius until the sheriff had returned the names of the jurors to the court. Another change now took place in the venire. That part relating to nisi prius was taken out, which was thus restored to its original form ; but the sheriff purposely delayed to comply with its exigency, and the juries not being summoned by him, did not attend on the day named in the writ. He, however, returned their names in a panel or slip of parchment to the court, so that the parties had an opportunity of seeing them, and making the necessary inquiries.' A fresh writ was then issued in consequence of the seeming neglect of the sheriff, called a distringas, or in the Common Pleas habeas corpora juratorum, which commanded him peremptorily * Stat. 6 Geo. IV. c. 50, directs the sheriff to return the names, abodes, and descriptions of a number of jurors, not less than forty-eight nor ex- ceeding seventy-two, taken from the " Jurors' Book," which is annually made up for each county from lists returned from each parish therein of persons qualified to serve as jurors. The original reason for inserting the abodes and descriptions of the jurors is stated in Stat. 27 Eliz. c. 6, to be, that the sheriff might know accurately upon whom to levy the " issues," or fines for non-attendance. VlII] THE fURY PROCESS. 141 to have the bodies of the jurors in court on a day therein named, unless before that day (nisi prius) the justices ol assize should come into his county. And such is the present form in daily use. The first mandate in the ve- nire, with respect to the day when the jury are to appear, is invariably disobeyed, and the distringas is the writ which really determines the time and place of the trial. Whether it is advisable thns to encumber the process by a iittion may well admit of doubt. It has ton long been the disgrace of the English law that it ptrtinaciously ad- heres to forms which are inconsistent with truth. Nor can any reason be assigned for doing so, except the un- satisfactory one, that the falsehood deceives nobody. But surely it is better to make the form correspond with the reality, and not accustom ourselves to the use of lan- guage which is either unmeaning or untrue, and in some cases both. In the Third Report of the Common-Law Commission- ers (1831) they say, " It is indeed very difficult to show sufficient reason for having any writ of venire facias, dis- tringas, or habeas corpora juratorum, issued with refer- ence to the individual cause. The statute which requ'res the same panel to be returned for all the common jury causes tried at^any assizes or sitting of nisi prius, has, in effect, virtually superseded these writs, and their only effect is to inflict expense and inconvenience upon the parties." That an ill use was sometimes made of the knowledge which the return to the venire affords, is tolerably clear from passages that occur in the Plumpton correspon- dence in the reign of Henry VII.' In one instance* the writer, John Pullan, who dates his letter from "Lyncolns Inne at London," says with reference to a trial which or > Pablished by the Camden Society. * p. 131. For other instances see the same Correspondence, pp. T33, 134, and 161. 142 JURY SYSTEM IN CIVIL TRIALS. [Ch i' was about to take place, " The copie of the retorne and pannell I send to you inclosed herein for more suretie, as tother letter is delivered. Sir, to speak of the labour I made to the contrary, I have written the circumstance thereof in my master letter, and surelye it was to the ut- termost of all my power. It is so now I understond, they will have a habeas corpora againe the jurors re- tornable octabis Trinitatis, so that they may have a dis- tress with a nisi prius againe Lammas Assise. There- fore, Sir, between you and my lady, ye must cause spe- ciall labour to be made,so it be done privily, to such of the jurours as ye trust will be made friendly in the cause." It seems that in this case, for some reason, the Court of Common Pleas awarded a new venire, directed to the coroners, upon which Pullan wrote to Sir Robert Plump- ton, urging him as follows: "I would your mastership made special labour to have one indifferent pannell of the coroners; they must be laboured by some friend of yours. We see here that mention is made of a panel to be re- turned by the coroners, and the reason is this. The officer whose ordinary duty it is to provide jurors for the trial of all matters, whether civil or criminal, is the sheriff of the county where the venue is laid. But if at the time of awarding the writ of venire facias, that is, the precept di- recting the jury to be summoned, it is known that the sheriff is not indifferent between the parties, the venire is not directed to him, but to the coroners. If any valid exception lies against these, the writ is directed to two clerks of the court, or to two persons of the county nom- inated by the court and sworn. These are called elisors, or choosers, and it is their duty to return the jury when neither the sheriff nor coroners are competent to do so. If a sufficient number of jurors returned by the sheriff do not appear, the deficiency is made up by empaneling ' Ibid. p. 141. VIII] ON SPECIAL JURIES. 143 bystanders present in court. This is called a tales de circumstantibus, the first mention of which occurs in Stat. 35 Hen. VIII. c. 6, where it is enacted that in civil causes the justices, upon request made by the party, plaintiff or defendant, shall have authority to command the sheriff to name and appoint, as often as need shall re- quire, so many of such other able persons of the county- then present at the assizes, or nisi prius, as shall make up a full jury, which persons shall be added to the former panel, and their names annexed to the same. And by 4 and 5 Phil, and Mary, c. 7, the same rule was extended to criminal trials and actions upon penal statutes. The proceedings in respect of a tales de circumstantibus are now regulated by Stat, 6 Geo. IV. c. 50, § 37. Section II. On special Juries. It has been said by authority that it can not be ascer- tained at what time the practice of appointing special jurors for trials at nisi prius first began, but that it prob- ably arose out of the custom of appointing jurors for trials at the bar of the courts at Westminster, and was introduced for the better administration of justice, and for securing the nomination of jurors duly qualified in all respects for their importa. t office.* The first statu- tory recognition of their existence occurs so late as in the Act 3 Geo. II. ch. 25. But the principle seems to have been admitted in early times. We find in the year 1450 (29 Hen. VI.) a petition for a special jury, that is jurors " who dwell within the shire, and have lands and tenements to the yearly value of xx/.,'" to try a plea ' R. V. Edmonds, 4 Barn, and Al. 477. In the oldest book of practice in existence, Powell's Attorney's Academy, 1623 (cited by Bentham in his Art of Packing Special Juries), no such terra as special jury occurs. Eightpence a head is there stated as the fee allowed to jurres at Nisi Prius in Lond »n and fourpence to talesmen. By 24 Geo. II. c. 18, the fee for each special jury- man was fixed at one guinea. 144 JURY SYSTEM IN CIVIL TRIALS. [Ch. which it was supposed might be pleaded in abatement on a bill of appeal of murder.' The statute of George II. speaks of special juries as already well known, and it declares and enacts that the courts at Westminster shall, upon motion made by any plaintiff, prosecutor, or defen- dant, order and appoint a jury to be struck before the proper officer of the court where the cause is depending, " in such manner as special juries have been and are usually struck in such courts respectively upon trials at bar had in the said courts." And although Section 17 provides for the return of properly qualified jurors, and the attendance of the sheriff in any cause arising in any city, or county, or town, it says nothing as to the qualification of the jurors, or the attendance of the sheriff in causes arising in a county at large ; "leaving that to be enforced according to antecedent practice, which may well be supposed to have been more perfectly established in the cases of counties at large than in smaller districts, by Teason of its more frequent occurrence."* The practice with respect to forming or " striking," as it is technically called, a special jury at the present day is as follows : Each party is entitled to have the cause tried by such a jury, and the attorneys on both sides, and the under-sheriff or his agent attend before the proper officer of the court with the special jurors' list, which, under the provisions of 6 Geo. IV. ch. 50, the sheriff is directed annually to make out from the jurors' books; and from among these described in that book as Es- quires, or as persons of higher degree, or as bankers or merchants ; and tickets corresponding with the names • Rot. Pari. V. 213. * R. V. Edmonds, 4 Barn, and AL 477. A rule was made in Trinity Term, 8 Will. III. that when the master is to strike a jury, viz. forty-eight out of the Freeholders' Book, he shall give notice to the attorneys of both sides to 4>e present, and if the one comes and the other does not, he that appears shall according to the ancient course, strike out twelve, and the master shall strike out the other twelve fer him that is absent. See i Salk. 405. .k!.>^,■i^•l :?-JT ^ VIII.] ON CHALLENGES. MS of the jurors on the list being put into a box and shaken, the officer takes out forty-eight, to any of which names either party may object for incapacity ; and supposing the objection to be established, another name is substi- tuted. The list of forty-eight is next, and at a subse- quent period, reduced by striking off, before the same officer, the names of such twelve jurors as either party shall in his turn wish to have removed ; and the names of the remaining twenty-four are then inserted in the writ of distringas as the jurors to be summoned for the cause, which persons are then summoned by the sherifT to attend the trial.' Section III. On Challenges. The right of challenge is almost essential for the pur- pose of securing perfect fairness and impartiality in a trial. It was in use amongst the Romans in criminal cases, and the Lex Servilia (b. C. 104) enacted that the accuser and the accused should severally propose one hundred judices, and that each might reject fifty from the list of the other, so that one hundred would remain to try the al- leged crime. In this country the right has existed from the earliest times. The tenant in Glanvill's time might object for good cause to any of the recognitors of the assize.* And Bracton tells us that a person put upon his trial might, if he had just cause to suspect any of the jurors to be influenced by improper feeling toward him, object to their being on the inquest, and cause them to be removed.* But not only jurors, but the judge himself, might be refused for good cause, according to the old law of Eng- ' Stephen's Blackstone, in. 591 about £1^. * Excipi autem possunt juratores ip'^ idem modis quibos et testes ia cuiia Christianitatis juste repelluntur.- '•- ^l, c. la. ' Bract, ui. c. as. ' . . 10 ..:■■■■■■ The average cost of a special jury is hi 146 JURY SYSTEM IN CIVIL TRIALS. [Ch. land.' And this corresponds with the rccusatio judicis mentioned in the code of Justinian.* But it soon ceased to be allowed in our courts, and on that account the four kniphts who elected the grand assize were not chal- lengeable ; " for that," as Coke says,* '* they bo judges to that purpose, and judges or justices can not be challenged." And he adds, "that is the reason that noblemen, that in case of high treason are to pass upon a peer of the realm, can not be challenged, because they are judges of the fact." But this seems a very in- conclusive reason, for the same would apply to ordinary jurymen, who are judges of the fact, and yet may be challenged. The true ground of the rule with respect to peers sit- ting as the High Court of Parliament to try such a case is that they are then judges of the law as well as the facts, and are, therefore, no more challengeable than the judges of the courts of common law and equity. But this does not apply to peers sitting during the recess of parliament in the court of the Lord High Steward, who is then, as has been already noticed, the sole judge of matters of law ; and the only reason that can be given for the rule that even there they can not be challenged, seems to be the unsatisfactory one assigned at the trial of Lord Audley in 163 1, namely, " because they are not upon their oath, but upon their honor, and a challenge is tried whether he («>., the juror) stands indifferent, being unsworn." * Challenges are of two kinds : I. to the array ; 2. to the polls. I. We have previously mentioned the cases in ' Bract. V. c. 15. Fleta, VI. c 3% * Liceat ei, qui suspectum judicem putat, antequam lis inchoetur, eum lecusare, ut ad alium curratur, lib^llo recusationis ei porrecto. Cod. III. tite. L 16. * Litt. 249, a. * 3 State Trials, 402. See also Co. Litt. 156, b. '■ VIII] ON CHALLENGRS. 147 which the writ of venire is directed to the coroners, or elisors, instead of the sheriff, and a challenge to the array is always grounded upon some matter personal to the officer by whom the jury has been summoned, and their names arrayed or placed upon the parchment or panel, whereon they are returned in writing to the court. Upon trials for felony this panel is not published or made known until the sitting of the court at which the trial takes place, and therefore that sitting necessarily furnishes the first opportunity of making any objection to it. Upon other trials, and in the superior courts, the parties have notice of the jurors chosen by the sheriff when he makes his return to the venire, as has been explained in the section on the jury process. But it is an established rule that a challenge to the array or to the polls can not be made until the actual appearance of a full jury; and no party therefore has an opportunity of making it, until the cause has been called on for trial. If twelve of those named in the original panel do not appear, a tales must be prayed, and the appearance of twelve obtained before any challenge can be made.' There can, however, be no challenge of the array when the process has been directed to elisors, because, says Sir Edward Coke, they were appointed by the court ; but the party may have his challenge to the polls.* The ar- ray may be challenged, that is, the whole of the jurors returned may be objected to, either by way of " princi- pal" challenge, or challenge " to the favor." The former occurs where the sheriff (or coroners, if the venire has been directed to them), is a party to the suit, or related by blood or affinity to either of the parties. Until a late period if a peer of parliament were one of the parties, and no knight were returned upon the jury, he might chal- lenge the array. But this cause of objection has been re- * See R. V. Edmonds, 4 Barn, and AL 471. • Co. Litt. 158, a. I '! 148 JURY SYSTEM IN CIVIL TRIALS. [Ch. moved by statute.' Also if none of the jurors were re- turned from the hundred in which the venire was laid, and in which therefore the cause of action was supposed to have arisen, this was formerly a ground of challenge to the array. But successive statutes have gradually abolished the necessity of having hundredors upon the jury. A challenge to the favor is founded upon circumstances which create a probability or suspicion of bias or partial- ity in the returning officer ; as that the son of the sheriff has married the daughter of one of the parties, or the like. The difference between these two kinds of challenge seems to be this : " that the first, if sustained in point of fact, must be allowed as of course ; the allowance of the latter is matter of discretion only. If the challenge be controverted by the opposite party, it is left to the deter- mination of two rsons to be appointed by the court ; aud if these persons, called triors, decide in favor of the objection, the array is to be quashed, and a jury impaneled by the coroner," * or the elisors, as the case may be. Every challenge, either to the array or to the polls, ought to be propounded in such a way that it may be put at the time upon the nisi prius record, and thus be- come open to examinatiou on a writ of error.* 2. Challenges to the polls (capita) are exceptions to the individual jurors, and are classed by Coke under four heads: (i) propter honoris respectum ; (2) propter de- fectum ; (3) propter affectum ; (4) propter delictum, (i) Propter honoris respectum ; as where a lord of parliament is impaneled on a jury. (2) Propter defectum ; as in the case of an alien born, who is therefore incompetent; or the want of sufficient estate to qualify the juror. (5) Prop- * See 34 Geo. II. c. 18 ; 6 Geo. IV. c. 50. * Steph. Blackst. iii. 597, and the authorities there dted. * R. V. Edmonds, 4 Barn, and Al. 471. VIII.J ON ATTAINTS AND NEW TRIALS. 149 ter affectum ; on well-grounded suspicion of bias or par tiality. This, like the challenge to the array, is either by way of principal challenge, or " to the favor;" and it depends upon the same kind of distinction as has been previously explained with respect to the array. If the challenge is a principal one, it may be tried by the court, and the juror himself may be examined as to the cause of challenge, but is not compelled to answer if the matter tends to his discredit. But in both cases the usual way is to determine the question by triors. These, in case the first man called be challenged, are two indiffer- ent persons named by the court ; and if they try one man, and find him indifferent, he shall be sworn, and then he and the two triors shall try the next : and when an- other is found indifferent and sworn, the two triors shall be superseded, and the first two sworn on the jury shall try the rest.' (4) Propter delictum ; where a juror has been convicted of some offense that affects his credit, and renders him infamous. Section IV. On Attaints and New Trials. In considering the comparative advantages of different systems of judicial inquiry, an important point to no- tice is the provision made for remedying wrong decisions. Man is so fallible in his opinions, so liable to be deceived by evidence, and so apt to draw mistaken inferences from facts, that if in all cases the verdict of a jury in the first instance were final, and subject to no revision, great hard- ship and injustice must necessarily ensue. And yet such was the rule in this country for many centuries, while the proceeding by attaint was in force. But this does not seem to have been the case originally. The attaint was, I believe, at first in the nature of a new trial, and the punishment of the previous jury, only one of the con- ' Blackst. Comm. in. 363. ISO JURY SYSTEM IN CIVIL TRIALS. [Ch. sequences of the verdict of the jury of attaint. The latter was in form prripaneled, not to try the former jur- ors, but simply the question of the wrongful disseizin; and if their verdict differed from that of the first jury, this amounted to a conviction of that body. This is proved by the form of the writ summoning the second set of twenty-four jurors.' Rex Vic. salutem. Si talis fecerit te securum de clamore suo prosequendo, tunc summoneas per bonos summonitores XXIV legates homines de visneto de tali villa quod sint coram justici- ariis nostris ad primam assisam cum in partes illas ven- erint parati recognoscere si talis injuste et sine judicio disseisivit praedictum talem de libero tenemento suo unde talis queritur quod juratores assisae novae dis- seisinae, quae inde summonita fuit et capta inter cos cor- am justiciariis nostris ultimo itinerantibus in comitatu tali, falsum fecerunt sacramentum. Et interim diligen- ter inqu'Vas qui fuerunt Juratores illius assisae, et eo« habeas ad praefatam assisam coram praefatis justicia rus. At the day of trial the record of the former assize was read in the presence of the twenty-four and the for- mer twelve jurors, and the complainant was asked to specify in v/hat points the latter had sworn falsely. When he had done this, each of the twenty-four took an oath that he would speak the truth as to all that should ' Bract. 291. • In Rot. Pari I. 56, (i8 Edw. I.)we have an instance of a petition for and grant of an attaii.t : Emma quoe fuit uxor WiUelmi Spillewque, pauper, mulier, petit attinctam supei Inquisitionem redisseisinre versus Abbatem de Tewkes- bury et Ballivos suos, qui contra earn dixit ob favorem Abbates et Balliv orum suorum. Rex concessit quod veniat lecordum assisae et novje diss, et inquis. rediss. et vocatis pci tibus coram Justic. de Banco fiat ibi justicia VIII.] ON ATTAINTS AND NEW TRIALS. 151 be required of him ; and the judge then explained to them the matter in dispute, and if he thought fit he might call upon each to declare the grounds of his ver- dict ; and according as this was in favor of the one side or the other, acquittal or condemnation followed. The mode also in which their verdict was enrolled shows that they discharged the office of trying the former jury by deciding the question whicl had been previously sub- mitted to that body. Jurata viginiti quatuor ad convin- cendum XII. venit recognitura si injust et sine judicio disseisivit, &c. Now, this, I think, must surely mean that if their verdict contradicted that of the jury of twelve, the latter was annulled. And as the > '^rdict of the second jury was final, and there could be no attaint against them, Bracton tells us that they ought to be care- fully examined by the justices, and give good reasons for their verdict ; *' for," he says, *' twenty-four are often de- ceived as well as twelve, and sometimes commit perjury, or are mistaken, and sometimes speak false where the twelve have spoken truth." ' If they could not agree, they were to be afforced by the addition of other jurors, as in an assize in the first instance. If their verdict was opposed to the former one, the twelve jurors were immediately arrested and im- prisoned ; their lands and chattels were forfeited to the king, and they became for the future infamous, and no longer, as Bracton expresses it, OTHESWORTH. At a later period the law added to their sentence, with cruel ' Bracton says, thai if perchance the former twelve were not unanimous, but differed in opinion the second jury might acquit some and condemn others, as happened in the case of Albert Earl of Somerset. This looks as if a verdict might be taken from less than twelve, otherwise the case sup- posed could not happen ; unless the passage means, that at the second trial some of the former jurors might escape by avowing that although they had nominally agreed in the verdict, they had amongst iliemi^lves expressed a diiferenl opinion. This, however, could hardly have iin|^ it„* ^L,J^£ ^u >^^^»a•* t6o JURY IN CRIMINAL CASES. [Ch. At an earlier period. William Rufus, wishing \6 extort money, caused fifty persons of reputed wealth to be accused of stealing the king's deer, and required them to prove their innocence by undergoing the ordeal of hot iron. Providentially (or owing most probably to some device with which we are unacquainted) they all es- caped unhurt, and the king enraged, impiously exclaimed, " Meo judicio a modo responderetur non Dei, quod pro voto cujusque hinc inde plicatur." * This shows that faith in the ordeal was even then wearing out, when such language could be c. lied to it, although it still lin- gered amongst us for some time longer. In the reign of Henry II. (a. d. 1177), the Earl of Ferrers having been murdered in London by some mid- night assassins, the king ordered several citizens to be seized, and amongst others, one named John Old. He had to undergo the water ordeal, but failed, and then offered fifty pounds to save his life ; but the king did not venture to take money for so notorious a crime, and or- ns, says : " Britton agrees with him : so that it appears by Bracton and Bntton, that in ancient times somo of these presumptions were so vehement that they were as condemnation tc ihe other party without any other trial, Init they are not so at this day, '"or trial he shall have notwithstanding such presump- tion ; but not by battle." — Lib. III. c. 16. And he adds : " the maii-our in an appeal of death is a bloody knife with which being t.^ken he shall be ousted of his wager of battle, and so it shall be in an appeal of robbery." (70 JURY IN CRIMINAL CASES. [Ch. he can not be pronounced not guilty of a deed done so secretly that the country can know nothing of the mat- ter, he says that the country {i. c, the jury) sufficiently acquits when it does not expressly convict.' If the accused person put himself upon a jury for trial he was not allowed to choose the patria of any hun- dred he preferred, but the justices assigned for the pur- pose any set of twelve they pleased from amongst those who represented each hundred. Reeves assumes that these were identical with the juries who presented the crimes and offenses oi their respective districts. He says,' " Here, then, do we see the office of the twelve jurors chosen out of each hundred at the eyre : they were to digest and mature the accusations of crimes founded upon report and the notorious evidence of the fact ; and then again, under the direction of the justices, they were to reconsider their verdict, and upon such review of the matter they were to give their verdict finally." But I incline to think that this view is incorrect, and that in the account which Bracton gives of the mode of proceeding we recognize the existence of a second and different jury, as the triers of the truth of the charge brouglit by the presentment of the country (fama patriae) against the accused. But whether this was so or not in Bracton's time, it is quite clear tliat the separ.ition of the accusing from the trying jury existed In tlie reign of Bdwaid IH., for a statute of that monarch provides that " no indictor shall be put in iii(|ih'i(|H ii|u)n deliverance of the indictees of felonies or trespanH, Uhe be challenged for such cause by him who is indicted."' Reeves may have been misled by seeing that in Brac- ' This l'» clearly inconsistent with what Bracton says about the case of secret poisoning. But it requires only ;i slight acquaintance with our early jurisprudence to be satisfied that it was a system full of anomalies." • Hist. Eng. Law, ii. 33, ' 25 Edw. III. c. 3, rx.] THE TRIAL OR PETIT JURY. 17' ton the jury are supposed to have a previous knovvhrdge of the case ; ' but this proves nothing more than that the original principle of the system was still preserved, and the verdict was simply the testimony of witnesses. Tliis plainly appears from the oath taken by the twelve jurors : " Hear this, ye justices! that we will speak the truth of those things which ye shall require from us on the part of our lord the king, and will by no means omit to speak the truth, so help us God ! " Upon this one of the justices charged them, saying, " N. who is here present accused of such and such a felony comes and denies it wholly, and puts himself upon your tongues concerning this for good and for evil : and therefore we charge you by the faith which ye owe to God. and by the oath wiiich ye have taken, that'ye make us to know the truth thereon, and omit not, for fear or love or hate, but having only (tlie fear of) God before your eyes, to say if he be guilty of that which is charijed against him, and ye shall not find him guilty (non in- cumberetis eum) if he is free from or innocent of the crime." If the justices had any doubt or suspicion as to the source from which the twelve jurors obtained the information on which they founded their verdict, it was his duty to in- terrogate them on the subject. Perhaps (says Bracton) one or more of them might say that they learnt it from one of their fellow-jurors, and he on being questioned might say that he had heard it from such a one, and so the inquiry might be pursued, until perchance the report was traced to some worthless person oi no credit. And if a grave crime had been committed, the author of ' If the accused were suspected of other crimes besides the one that was the subject of the particular inquiry, the jury were told to say whether he were guilty de hoc quod ei imponitur, vel de aliis malefiris vel non. — Bract, in. c. i3. i ' i 172 /CTA'V IN CRIMINAL CASES. [Ch. which was unknown, and thcjudge suspected the jurors of being influenced by any desire to conceal the truth, he might examine each of them separately, and so etideavor to make them declare what they knew. Here it seems that the jury were acting rather as accu- sers than as triers, and at all events we see that they did not give their verdict upon evidence taken in court, but upon the private knowledge or belief which each had be- forehand of the commission of the offense in question. In this respect they acted precisely similar to the assize in civil cases. In the reign of Edward III. trials by jury in criminal cases were nearly if not quite the same as at the present day. As an instance may be mentioned the trial of Sir Thomas de Berkeley by a jury of twelve kni'^hts, on the charge of having abetted the murder of Edward II.' Although the qualifications of previous knowledge on the part of jurors empaneled to try a prisoner had long fallen into desuetude, the fiction was still kept up by re- quiring them to be summoned from the hundred where the crime was alleged to have been committed, until the passing of Stat. 6, Geo. IV. c. 50, by which the sheriff is now obli;j;ed only to return for the trial of any issue, whether civil or criminal, twelve good and lawful men of the body of his county qualified according to law.' Section III. Trial by yury in Criminal Cases in Jersey, Considering how intimate the connection was between ' 4 Edw. III. 1330. Rot. Pari. H. 57. * Tlie qualification of a common juror to try cases, both civil and criminal, depends upon Stat. 6, Geo. IV. c, 50, and is as follows : He must possess an annual income of ten pounds issuing from lands of freehold, copyhold, or customary tenure, or of ancient demesne, in fee simpl.., fee tail, or for the life of himself or some other person ; or of twenty pounds from leasehold property, the term being twenty-one years or longer, or determinable on any IX.J TRIAL BY JURY IN JERSEY. 171 Normandy and England, it is interesting to observe how far the judicial proceedings in the two countries resem- bled each other; and we have unusual means of making ourselves acquainted with the practice of the former, in- asmuch as although it has long been obsolete in France, the criminal law of Normandy is still preserved in the Channel Islands. In Jersey, for instance, the Grand Cou- tumier is the chief authority appealed to, and it forms the basis of the criminal jurisprudence of the island. It has been previously stated that this compilation does not date earlier than the middle of the thirteenth century, and that it is probable that many of the usages therein mentioned were copied from England. Let us see what was the mode of procedure in Normandy in criminal cases, availing ourselves of the account which Sir Francii Palgrave gives of it : ' " According to the law of Normandy, criminals were convicted or absolved by an inquest, composed of twenty-four good and lawful men of the country sum- moned by the sergeant from the neighborhood where the murder or the theft had been committed. The offi- cer is directed to select those who are ' believed to be best informed of the truth of the matter, and how it happened.' None were to be adduced whose integrity or credibility might be reasonably distrusted, either by the accuser or the accused. Known friends or declared enemies, and near relations of either parly, were ex- cluded from the inquest, and they were to be brought into court suddenly and without notice, so that they might not be bribed, intimidated, or corrupted. Before the culprit was put upon his trial, a preliminary inquest life or lives ; or he must be a householder rated and assessed to the relief of the poor on a value of not less than /[,^o (except in Middlesex, where the value is to be not less than ;^3o) ; or he must occupy a house containing not less than fifteen windows. ' Eng. Commonw. i. 244. ..;*^ '74 JURY IN CRI,\fINAL CASES, [Ch. 1' I was taken by four kniglits, who were questioned touch- in;4 tlicir belief Of his j^uilt ; and. in their presence, the bailiff afterwards interrogated the twenty-tour jurors, not as C(»tnposing one body, but privately and separately from each other. They were then assembled and con- fronted with the culprit, who could challenge any one for lawful cause ; and if the challenge was allowed, the testimony of that juror was rejected. The judge then ' recorded,' or declared the verdict, in which twenty, at least, were required to concur." ' At the present day the criminal procedure in Jersey is as follows : ' The only court with criminal jurisdiction is the royal court, which is composed of the bailly, or judge appoin- ted by the crown, and twelve jures justiciers, or sworn justices, who are elected by the general body of rate- payers throughout the island, and hold office during their lives.' This royal court as at present constituted was established by a charter of King John, which has been confirmed by successive sovereigns. Its jurisdiction extends over all crimes and offenses whatsoever, except high treason, and laying violent hands on the king's min- isters whilst in the exercise of their office, which by the charter are reserved for the cognizance of the king in council. When a party has been arrested he is brought, in the first instance, before the court, which is sufficiently ' " In Brittany, at an early period, judgments were given by the Scabini, upon the evidence of the twelve witnesses who were first examined, and aft^wards sworn, and this took place in the ' Mallum,' before the Missus of Nominoe, king or duke of the Bretons ; the whole process of the Carlovingian jurisprudence was forced upon this Celtic people." — lb. n. cxcii, ' I have derived my information on this subject from the evidence col- lected by the Commissioners for inquiring into the Criminal Laws in the Channel Islands (1846). ' The royal court has also cognizance of all civil causes arising within the Island. I '-^ IX.J TRIAL BY JURY JN JERSEY. »75 formed by tin- bailly .ukI two jurats, and if the offense is of such a n.itu'c that it cm not be disposed of summa- rily, the prisoner is called upon to plead to the act of accusation or indictmi iit framed by the attorney-general. If the plea is not guilty, the Cdurt makes an aet permit- ting the attorney-general d'informer ; the effect o^ which is to enable him to give evidence in support of the charge, and the prisoner to call wirnesses for his defense. The evidence is then taken and reduced into writing before the bailly or lieutenant bailly and two jurats, and w len the whole is complete, and the case ready for trial, a jury, called the enditenicnt, is convened by the vicomte (or sheriff), acting under a mandate from the bailly. This is composed of the constable and twelve police- officers of the parish where the crime is alleged to have been committed, and the court must now consist of the bailly and seven jurats. No fr^sh oath is administered to the jury, and the accused is allowed to challenge them, but on specific grounds. The whole of the pro- ceedings and evidence previously taken are then read by the attorney-general to the jury, the counsel for the defense is heard, and the attorney-general in reply. The jury retire to consider their verdict, in the custody of the vicomte, wlio takes with him and lays before the jury the indictment and written depositions, that they may refer to them if necessary. When tiie jury return into court, if they are unanimous, the constable delivers the verdict, which if they find the prisoner guilty, is in the following form : L'accuse est plutot coupable qu'in- nocent du crime mis a sa charge. If innocent, the ver- dict is, plutot innocent que coupable. If the jury are not unanimous, each juror in rotation delivers his opinion secretly to the bailly and jurats, and the opinion of the majority is announced by the bailly as the verdict. If the prisoner is declared more innocent than guilty, he is forthwith discharged. If he is found more guilty than IMAGE EVAIUATION TEST TARGET (MT-3) «// 4^ M'^ 1.0 1.1 11.25 Ittllg 125 Itt 122 12.2 U 1^0 HJ.4_ 11.6 fliolDgraphic Sciences Corporation ¥J^ «c>^ <^ 33 WIST MAM SVRilT WnSTM,N.V. I4SM (71«)873<4S03 --^ 6^ . -. 'V; :'^f':U-, ■' ;.v^%;.s <1V,T ■■'■■ ■ •)' jf?t '.'.. ■!"/;■ ,.» ..*^-"^ ' :■ ' -- '■'i:'«*. ;-,^',4?'- -<• -';'" ■'■■■■;"'*'' :m ,1 ;. V^i■ «;:, ■^-:*;':'. •^5|i'' M.f7'*. i. ^ - 1» -- ■ 'wt^:^ '%^^' tj**'¥"f',- 176 JURY IN CRIMINAL CASES. [Ch. .p innocent, the court pronounce him to be criminally in- dicted. He is then entitled to appeal to the grande enquete, or jury of twenty-four; or he may waive this riglit, and submit to judgment. If he appeals, he is remanded to prison until the grand inquest is called. Within two or three days the court meet, constituted as before. Twenty-four men selected by the attorney- general from amongst the most intelligent inhabitants of the parish wherein the alleged crime has been com- mitted, and the two adjoining parishes, eight from each, are summoned to serve as a jury, and also a few supple- mentary jurymen from each parish, in case of challenges, sickness, or absence of those who are intended to form the jury. The prisoner may challenge any of them, but only on specific grounds. When the jury is complete they are sworn " to declare well and faithfully what they shall find in their conscience relative to the crime of which the party is accused, namely, whether he is more guilty than innocent, to charge or discharge him, and that they will do so without favor or partiality, as they shall answer it before God." Precisely the same form is then gone through which had been previously observed at the first trial. On the return of the jury into court with the vicomte, if they are unanimous, the foreman delivers the verdict; if they differ, they ea, h deliver their opinion to the bailly secretly ; ar.d if twenty out of the twenty- four concur in finding the accused more guilty than innocent, he is declared by the bailly duly attainted and convicted of the offense for which he had been indicted, and senterce is immediately passed. If, however, five or more out of the twenty-four concur in finding the accused more innocent than guilty, he is forthwith dis- charged. The bailly and jurats decide all questions of law, and the jury questions of fact. The prosecutor is not al- lowed to adduce fresh evidence after the enditement or 'W f IX.] TRIAL BY JURY IN JERSEY. 177 petit jury have met to try the accused, but the latter is sometimes permitted to call evidence in support of his defence before the grande enquete after he has been in- •dicted by tlie petit jury. We see in these proceedings an apparent inversion of our own forms. The petit jury seems to have been orig- inally in <;he nature of a jury d'examen, like our grand jury, and the grande enquete performs the office of our petit jury. There is, however, this material difference, that all the evidence both for and against the prisoner is laid before the enditement, and unless he appeals from their verdict it is conclusive, so that judgment may be passed upon it, which, of course, is not the case with the finding of the grand jury in England. It certainly is a very objectionable part of the practice, that the petit jury should be composed of police-officers who have just been active in detecting the offender, and procuring evidence to convict him; and also that witnesses are not examined viva voce in their presence when they act as an endite- ment. There also results this anomaly, that if six mem- bers of the first jury declare a man not guilty, he is nev- ertheless condemned, whereas if subsequently five mem- bers only of the second declare him not guilty, he is ac- quited, although the evidence presented to each jury is identically the same. And both these contradictory ver- dicts remain for all time recorded on the rolls of the <:ourt. CHAPTER X. I. i ki THE GRAND JURY AND OTHER MATTERS RE- LATING TO CRIMINAL TRIALS. Section I. T/ie Grand Jury. AN indictment is a written accusation of one or more persons of high treason, felony, or a misde-^ meanor, preferred before and presented upon oath by- twelve or more, not exceeding twenty-three good and lawful men of the county duly sworn, who are called the Grand Jury. They are, therefore, the accusing jury, as^ distinguished from the petit or trying jury. It has been said by an eminent legal writer, that the existence of two juries is, " though one of the most important, yet certainly one of the most obscure and inexplicable parts of the law of England.'" I do not, however, think that the latter part of this remark is true. On the contrary,, it seems to me to have been the natural result of the state of things which has been detailed in the preceding chapter. We see that when the justices in eyre paid their periodical visits to the counties, they caused to be summoned before them twelve knights,' or other good and lawful men, for each hundred, and charged them upon their oaths to inquire respecting crimes and offenses committed within their respective hundreds or wapen- takes, so that they might be ready to present to the ' Note by Professor Christian to Blackstone, ni. 367. ° Milites. See a dissertation on the ineanin<; of this word in the Appen* die Ch. X.] THE GRAND JUi •J' \ of record, or by due process and writ original, according to the old law of the land." And it had been previously provided by i Edw. III. st. 2, c. 17, that all sheriffs, bailiffs, and others whose office it was to take indictments should do so " by roll indented, whereof the one part shall remain with the indictors, and the other part with him that taketh the inquest ; so that the indictments shall not be embezzled, as they have been in times past, and so that one of the inquest may show the one part of the indenture to the justices when they come to make deli/erancc. It will have been noticed that the twelve jurors men- tioned as indictors by Bracton, were limited to the cog- nizance of offenses within their own hundred ; and the next question to consider is, how the practice arose by which, as at the present day, one body of grand jurors, consisting of twelve at least, came to represent the whole county, and presentments for separate hundreds were discontined. We have no precise information on the subject, but it is perhaps not impossible to trace the steps by which the change was effected. I believe the first notice of a Grand Inquest occurs in the Liber Assisarum for the 42nd year of the reign of Edward III. A com- mission of oyer and terminer had been issued to Throp and Lodel, justices, for the counties of Essex, Hertford, Cambridge, Norfolk, and Suffolk; and when at Chelms- ford they called upon the bailiffs of each hundred of the county to return their inquest or panels. And afterwards ^* the sheriff returned a panel of knights, which was the grand inquest (le grande enquest)." Most probably it was the duty of this grand inquest to inquire at large for every hundred in the county, in case there should be any omissions or malpractices on the part of the hundredors who took the smaller inquests ; and as the latter were frequently called upon to sit on assizes and juries in civil causes, this double office would be felt to be a burden X.J THE GRAND JURY. i8i from which they would be glad to escape, by throwing the duty of making presentments as much as possible upon the knights of the grand inquest. Thus the pre- sentments by the knights, instead of being merely, as at first, supplemental to those of the hundredors, gradually usurped altogether the place of the latter; and the system of the grand jury as it at present exists was fully devel- oped.' It was formerly deemed felony, if not high treason, for any of the grand jury to divulge the names of the per- sons whom they were about to present.* It was also not unusual to fine them for non-presentments or conceal- ments of offenses within their cognizance; but of this practice Sir Matthew Hale expresses his strong disap- proval, saying that it is not warrantable by law, and that " it is of very ill consequence ; for the privilege of an Englishman is, that his life shall not be drawn in danger without presentment or indictment ; and this would be but a slender screen or safeguard, if every jus- tice of the peace, or commissioner of oyer and terminer, or jail delivery, may make the grand jury present what he pleases, or otherwise fine them." Sir Matthew Hale, however, makes a distinction in favor of the right of the Queen's Bench to fine for an improper presentment or non-presentment ; for he says, " there is no parity of reason or example between inferior judges and that court which is the supreme ordinary court of justice in such cases."* The mode in which the grand jury is summoned and performs its functions, is the following : ' See Reeves's Hist. Eng. Law, Vol. III. 133. * Lib. Assis. 27, 5. ' Hale, P. C. II. 161. In Rot. Pari. I. 121, b. (A. D. 1293) we find an in- stance of a juror committed to jail on the testimony of his fellow -jurors, for procuring a false presentment to be made by them, so as to conceal a fel* ony concerning which plenam scivit Veritatem. i82 GRAND JURY AND OrilER MATTERS. [Ch. The sheriff of each county is diiecttd, by a precept issued to him for that purpose, to return twenty-four or more persons, out of whom the jury is to be taken and sworn ; and "if there be thirteen or more of the grand inquest, a prescntmcut by Lss tlian twelve ought not to be; but if there be twelve assi.nting, though some of the rest of their number dissent, it is a good presentment." ' The number sworn, however, must not exceed twenty- three. In a case tiiat occurred within the last few years, Lord Denman, C. J., said : ' " The court has no doubt that twenty-three is the limited number. It is a matter of practice proved by authorities in the only way in which proof can be given of a point of that kind which has been undisputed." The reason of this is that twelve agreeing may constitute a majority ; for it is a maxim of the English law, as Blackstone says, that " no man can be convicted at the suit of the king of any capital of- fense [or any felony], unless by the unanimous voice of twenty-four of his equals and neighbors : that is, by twelve at least of the grand jury in the first place assent- ing to the accusation ; and afterwards by the whole petit jury, of twelve more, finding him guilty." Formerly it was considered necessary that some of the grand jury should be summoned out of every hundred in the county. But this has been altered by statute 6 Geo. IV. c. 50, and the sheriff is now only required to return them from the body of his county. The marshal ad- ministers to the foreman of the jury the following oath : " You, as foremar of this grand inquest for the body of this county of A, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge. The king's counsel, your fellows', and your own, you shall keep secret : you shall > 2 Hale's P. C. 161. * R. V. Marsh, 6 Ad. and Ell, 242. X.J THE GRAND JURY. 183 present no one for envy, hatred, or malice; neither shall you leave any one unpresented for fear, favor, or affec- tion, or hope of reward ; but you shall present all things truly as they come to your knowledge, according to the best of your understanding : So help you God ! " The rest of the grand jury, by three at a time, in order, are then sworn in the following manner: •* The same oath which your foreman hath taken on his part, you and every one of you, shall well and truly observe and keep on your part : So help you God !" When the grand jury have been sworn, they receive a charge from the judge who presides in the criminal court, and arc instructed by him generally in the duties which they have to perform, and where any of the cases to be brought before them involve difificult points of law, these are explained to them. They then retire to receive the bills of indictment, and examine the witnesses who sup- port the accusation, endorsing on the back of each bill the names of all the witnesses whom they examine in that case. Their duty is to satisfy themselves, from the state- ments on the part of the prosecution, that sufficient cause appears for calling upon the accused party to an- swer the charge made against him. If they think that the accusation is unfounded, they indorse on the bill, *' Not a true bill," or the letters N. T. B. And if it is rot intended to prefer a fresh bill before the grand jury at that assize, the party is discharged for the time ; but a bill for the same offense may be afterwards preferred against him at a subsequent assize, if fresh circumstan- ces of suspicion in the meantime arise. If they consider the evidence sufficient to warrant putting the party on his trial, they endorse the words " True bill," or the letters T. B., and the bill being thus found by them be- comes an indictment, and the accused is tried by the petit jury. Of late years an opinion has been frequently expressed, « f ^ 184 GRAND JURY AND OTHER MATTERS, [Ch. that the preliminary proceeding by grand jury is useless, and ought to be aboHshed. And with respect to the district within the jurisdiction of the Central Criminal Court, the idea is perhaps well founded. The legal knowledge and practiced vigilance of the magistrates of the metropolis render it almost superfluous to subject their committals to the supervision of another tribunal^ before a prisoner is put upon his trial, and it is a great hardship that busy tradesmen should be taken from their avocations and detained for several days at a time upon an inquiry, which is followed by no useful results so far as respects the jurymen themselves. But the case is very different in the counties which the judges visit in their periodical circuits. The grand jury there consist princi- pally of the landed gentry and magistrates of the county, and it is of the highest importance to secure their at- tendance on such occasions. They are thus called upon to take their part in the great judicial drama, and see jus- tice administered in its purest and most enlightened form. The committals by each magistrate are exposed to the scrutiny of his neighbors, and a useful lesson is taught to each when bills are thrown out because the evidence is too slight and unsatisfactory to raise any fair presumption of guilt in the accused. For it is no light matter to incarcerate a man on a charge of felony for months previous to his trial, which in many cases must lead to the ruin of his prospects, and then find that the case of suspicion is deemed so weak by the grand jury, that when they assemble they pronounce him entitled to an immediate discharge. Moreover, they hear an expo- sition of the criminal law from the judge, which must be of essential service to them in the performance of their magisterial duties throughout the year. But besides all this, the grand jury can often baffle the attempts of malevolence ; and who can estimate the blessing to a man unjustly accused of a crime to find .."A■'^;i^Vl. ;-■.'; i^jStti'^- X.] THE GRAND JURY «8S himself relieved in so triumphant a manner from the shame and degradation of a trial at the felon's bar? Who, however innocent, with quick and sensitive feel- ings, would not gladly purchase, at almost any cost short of a compromise of honor, an exemption from such an ordeal ? To stand for hours in a crowded court the ob- ject of obloquy and suspicion, to catch the whispered comments of the auditory, and see every eye carefully watching each look and gesture, and then to have one's name spread on the wings of the press throughout the v.'orld in connection with some odious and disreputable charge, must be a degree of torture sufificient to unnerve the strongest mind. When an application was once made for a new trial, on the ground that excessive dam- ages had been awarded to a plaintiff in an action for a malicious prosecution, he having been tried and acquitted at the Old Bailey, Chief Justice Mansfield in refusing to grant it, said,* " The plaintiff is put on his trial at the Old Bailey in the presence of hundreds. What sum would bribe any man to put himself in this situation ? ' And there have undoubtedly been periods in our history when it was very necessary that the shield of the grand jury should be interposed between the crown and the subject. If in 1681 the grand jury of the city of London had not resolutely, against the undisguised en- deavors of the judges North, Pemberton, and others, re- fused to bring in a true bill against the Earl of Shaftes- bury, it is well nigh certain that that nobleman would have expiated with his life on the scaftbld the venial crime of factious opposition to the court. He had been arrested on a charge of high treason, which, however, was a mere pretense, as there was no legal evidence to implicate him, and the bill went before the grand jury. The intention was to remove it when found, as the Par- liament was not sitting!*, ^^ ^^^ court of the High Steward, ' Hewlett V. Cruchley. 5 Taunt. 281. 1 86 GRAND JURY AND OTHER MATTERS. [Ch. iii where Lord Shaftesbury would liave been tried by peers selected by the kin;^, and his conviction and sentence wouUl have been inevitable. The counsel for the crown applicU that the witnesses in support of the indictment might be examined before the grand jury in open court ; the object being to overawe the latter in the discharge of their duty. The foreman reminded the court of the oatli which he and his fellows had taken to keep the king's counsel secret, but the judges told him that the king might dispense with secrecy, and disallowed the objection. The witnesses were accordingly openly ex- amined, and the grand jury retired, but soon returned with the word IGNORAMUS written on the back of the bill ; upop which we are told that " there was a most wonderful shout, that one could have thought the hall had cracked." ' Section II. The Coroner s Jury. It has been said of coroners that they are of so great antiquity that their commencement is not known.' The name occurs in a rhyming charter granted by the Anglo- Saxon king Athelstan to the monastery of St. John of Beverley, A. D. 925, which contains the following lines: If a man be found slain idrunkend, Steived on sain John rike, his aghen men Withoiiten swike his aghen bailitVs make ye fight, Nan oyer coroner iiave ye might : Swa mikel freedom j;ive I ye, Swa hert m?y think or e^jhe see.' In old times the coroner was an officer of some impor- tance, as appears from the way in which Chaucer men« tions him in his description of the Frankelein : At sessions there was he, lord ..i i sire, Full often time he was knight of the shire, A shereve had he been, and a coronour, Was no wijere swiche a worthy vavasour, > 8 State Tr, 759-821. » 3 Bulstrode, 176. ' Dugd. Monast. II, 130 (Edit. 1817). X.] THE CORONER'S JURY. 187 It seems that anciently coroners heki pleas of the crown, and could pass judgment in criminal cases; but this power was expressly taken from them by one of the provisions of the Great Charter. We arc, however, here no further concerned with the office than as it is coimected with the jury system. The earliest statute which regulates and defines the mode of taking a coroner's inquest, is that entitled De Officio Coronatoris, 4 Rdw. I. st. 3 (A. D. 1276), and this enacts that v.'hen coroners are directed by the bailiffs of the king, or honest men (probi homines) of the county, to go to those who are slain or have died suddenly, or been wounded, or to housebreakers, or to places where treasure is said to be found, they shall forthwith proceed there, and commantl foi'.r of the next towns, or five or six, to appear before them in such a plar-- and when they are come thither, the coroner upon the oath of them shall inquire, if it concerns a man slain, where he was slain, whether it was in a house, field, bed, tavern, or company, and if any and who were there. '• Likewise it is to be inquired who were and in what manner culpable, either of the act, or of the force ; and who were present, either men or women, and of what age soever they be (if they can speak or have any discretion). And how many soever be found culpable by inquisition in any of the manners aforesaid, they shall be taken and delivered to the sheriff, and shall be committed to jail ; and such as be found and be not culpable, shall be attached until the coming of the justices, and their names shall be writren in the coroner's rolls." Then there follow a number of minute regulations respecting different kinds of inquiry. It will be observed, that although the jurors are here required to be summoned from the nearest townships, nothing is said as to their number ; and there can be little doubt that at this period it was indetermin- 1 88 GRAND JURY AND OTHER MATTERS. [Ch. ate.' But afterwards, following the analogy of the jurj'- system in other cases, it became a fixed rule of law that twelve at least must concur in the finding of the inquest, in order that the parties charged thereby may be put upon their trial before a petit jury.' The number, however, summoned and assisting at the inquest is immaterial, provided that twelve agree. Where the jury are not unanimous, it is the duty of the coroner to collect the voices, and take the verdict according to the opinion of the majority. If twelve can not agree, the jury are, ac- cording to the theory of the law, to be kept without meat, drink, or fire, until they give their verdict ; but in practice of course this rule is never enforced so as to en- danger life Of health. Formerly if they refused to make a legal presentment, it was the custom for the coroner to adjourn them from place to place ; but it was said by Chief Justice Holt that it was wrong, and that they ought to be adjourned to the assizes, " where the judge will inform them better." We have already noticed the mode in which cases of suspected crime were presented originally by the fama patriae, and afterwards by sworn jurors. And it has been assumed thac the instances quoted from the Rotuli Curiae Regis belonged to that class of presentments made in the manner pointed out by Bracton, when he tells us that twelve jurors were to be charged upon oath by the justices to discover and make known by their verdict on a day certain, all persons suspected of criminal offenses within their hundred or wapentake.* Possibly, however, some of these entries may be inquisitions taken by the coroner's jury, for it is obvious that their office closely • By the Statute of Marlbridge, 52 Hen. III. c. 24 (a. d. 1267), it was ordained that at the inquests " for the death of a man," all being twelve years of age ought to appear, unless they have reasonable cause of absence. • Smith's case, Comhercatch, 386. ' Bract. lib. III. fo. 116. X.] ;URY DE MEDIETATE LINGUA. 189 corresponded with that of the jurors or indicators men- tioned by Bracton and Fleta. The coroner had a par- allel jurisdiction with the twelve sworn hundredors in this respect. It was his duty ex officio to inquire con- cerning and present all cases of suspicious death, and otlier matters enumerated by the statute De Officio Coronatoris ; and the existence of so many different modes of inquest as were provided for by the hundred jury, the grand jury, and the coroner's jury, proves a laudable anxiety on the part of our ancestors to protect human life and discover and punish crime. Section III. The Jury de Medietate Lingua. The origin of the jury de medietate linguae has been generally referred to the reign of Edward III.; and the first mention of it is supposed to occur in the Statute of the Staple, passed in the year 1353. But this is a mis- take. In Rymer's Fcedera we find a deed of Inspexi- mus, or charter of confirmation, granted by Edward III., which recites at length and confirms a charter granted by Edward I. in the thirty-first year of his reign, in which i;he last-named monarch makes ample provision for the protection and convenience of foreign merchants sojourning within the realm. Amongst other benefits conferred upon them, the charter declares that In all pleas in \vhich merchants are impleaded, except in capital cases, whether they be plaintiffs or defendants, half of the inquest shall consist of foreign merchants re- siding in the city or town, provided a sufficient number of them can be found, and the other half of good and lawful men of the place where the plea is held. But if six foreign merchants can not be found there, then the number is to be made up of other merchants, and the remaining six are to be other good and sufficient men of A^'i^ ^j:^«>4^a loo GJiAXD JURY AND OTHER MATTERS. [Ch. the place.' The Statute of the Staple, however, of Edward III.' was rather more specific in its provisions. It enacted that when both merchants were foreigners, the jury should all be foreigners. Where che one was a foreigner, and the other a denizen, half of the jury should be foreitjners and half denizens, and if both were deni- zens, then all the jury should be denizens. In the Rolls of Parliament for the year 1308 (2 Edw. II.) occurs a king's writ ordering an action of ejectment for lands in Shropshire to be tried by a jury half English and half Welsh. At the present day, if an alien be indicted for felony or misdemeanor, he may by proper application to the court require the sheriff or other proper minister to re- turn for one half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had ; and if not, then so many aliens as shall be found in the same town or place, if any ; and no such alien juror shall be liable to be challenged for want of freehold or other qualification required in denizen jurors, but he may be challenged for any other cause. It is not necessary that all or any of the alien jurors should be natives of the same country as the prisoner. It is sufficient that they are foreigners. ' Rymer's Feed. IV. 362. The charter seems to provide this mode of trial for all merchants as I have given it m the text. The words are ubi mercator implacitatus fuerit vel alium implacuaverit cujuscumque condition is idem implacitatus exstiterit extraneous vel privatus et si de merca- toribus dictarum terrarum numerus non inveniatur sufficiens ponantur in inquisitione ille, qui idonei invenientur ibidem ; et residui sint de aliis bonis homnibus et idoneis de locis in quibus illud placitum erit. In 132c (14 Edw. II.) we have a petitio.i from some Louvain merchants praying that an action about some cloth might be tried by a jury, of which twelve should be foreigners and twelve natives — twenty-foui in all. Rot. Pari. l. 382. » 27 Edw. III. c. 8. • 6 Geo. IV. c. 50, § 47. 'H. X.] CHALLENGES IN CRIMINAL TRIALS. 191 Section IV. Challenges in Criminal Trials. What has been said with respect to all challenges for cause in civil actions, applies equally to criminal trials.' But in charges of treason and felony a prisoner is en- titled to a peremptory challege, so called " because he may challenge peremptorily upon his own dislike, without showing of any cause." " By the common law he might upon an indictment or appeal of death challenge thirty-five, which was one less than the number of three juries. This number was, by Stat. 22 Hen. VIII. c. 14, reduced to twenty in petit treason, murder, and felony; and the right was, by the same statute, altogether taken away in high treason and misprision of high treason ; but by Stat. I and 2 Phil, and Mary, c. 10, the common law with respect to challenges was revived. And so the matter still stands in the case of treason ; but by 6 Geo. IV. c. 50, no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty; and by 7 and 8 Geo. IV. c. 28, if any person indicted for treason, felony, or piracy, shall chal- lenge peremptorily a greater number of the men returned to be of the jury than such person is entitled by law to challenge in any of the said cases, every such peremptory challenge beyond the number allowed by law shall be en- tirely void, and the trial of such person shall proceed as if no such challenge had been made. It has been previously mentioned that a lord of parlia- ment tried by his peers has no right of challenge at all. The reason for which, as given by Coke, is, " for that they * Coke says, that where the k.ng is party one shall not challenge ihe array for favor ; for which he assigns the startling reason, " because in respect of his allegiance the sheriff ought to favor the king more." But Hale says expressly that prisoners are allowed to challenge the array for favor. — 2 PL C. 271. • Co. Litt. 156, b. 5 / I 192 GRAND JURY AND OTHER MATTERS. [Ch. are not sworn as other jurors be, but find the party guil- ty or not guilty upon their faith or allegiance to the king, and they are judges of the fact, and every one of them doth separately give his judgment, beginning at the lowest." By the common law the king might challenge peremp- torily without being limited to any number. But this, says Coke, was mischievous to the subject, tending to in- finite delays and danger.' It was therefore enacted, by 33 Edw. I. St. 4, that none should challenge for the king except for cause certain, and this is re-enacted, by 6 Geo. IV. c. 50, which provides that the king shall challenge no jurors without assigning a cause certain to be tried and approved by the court. In the case of a prisoner challenging, he must do so as £ach juror " comes to the book to be sworn, and before he is sworn • " but the king need not assign his cause of <:hallenge until the whole panel is gone through, and un- less there can not be a full jury without the persons so challenged. And it is then that the counsel for the crown must show cause, otherwise the juror shall be sworn. The practical effect of this rule therefore is, that the crown has the benefit of peremptory challenges, pro- vided it takes care that a sufficient number are left on the panel unchallenged so as to make up a full jury. Vox as was said by Chief Justice Holt,* "cause is not to be shown by the king's counsel till all the panel be gone through ; and then if there be not twelve left to try, they are bound to show cause : that is the law : " — a doctrine which was strenuously but ineffectually impugned by the counsel for O'Coigly, O'Connor, and others, who were tried for high treason in 1798.* When twelvo jurors have at last been collected against whom no exception is made, they are sworn separately « Co Litt. 156, b. • 26 State Tr. 1231. • 12 State Tr. 675. 11 X.] NEW TRIAL IN CASES OF FELONY. 193 according to the following form of o£th : — "You shall well and truly try, and true deliverance make, between our sovereign* lady the Queen and the prisoner at the bar whom you have in charge ; and a true verdict give according to the evidence, so help you God !" Section V. Question of . nnv Trial in Cases of Con- viction of Felony. A question of great importance has often been raised, whether in criminal cases there ought not be an appeal from the verdict of the jury on matters of fact. In the English and Scotch law it is unknown, and a conviction of felony can not be questioned by any form of legal pro- cess, on the ground that the verdict was not warranted hy the evidence. Now as it may be plausibly urged that twelve men are as likely to be mistaken in the effect of evidence in a criminal as in a civil trial, there is an ap- parent anomaly in allowing a new trial in the one case and not in the other. And certainly if there were no machinery whereby the mistakes of juries in such in- stances could be corrected other than the courts of law possess, it would be impossible to answer the objection. The defect in the system would be glaring and the evil intolerable. But the constitution provides what may perhaps be considered upon the whole a not inadequate remedy. The prerogative of mercy resides in the crown, and every capital conviction, and indeed every other in which the judge entertains any reasonable doubt as to its propriety, is submitted to the careful and humane consideration of the Secretary of State for home affairs, when, if the evidence upon which the jury have found their verdict appears to be insufficient to sustain it, or fresh facts come to Hght which tend to establish the prisoner's innocence, a royal pardon is granted, which not only annuls the conviction, but reinstates the party absolutely in all his former civil rights. And if in the J* _Ji XTt «2,>-^ Tjss «- Y. ji -v^ 194 GRAND JURY AND OTHER MATTERS. [Ch. course of the trial evidence is admitted against the prisoner as to the reception of which the presiding judge feels a doubt, or any othermatter of law jirises which he thinks might possibly justify an acquif:tal, the practice has been not to pass sentence upon a \'erdict of guilty, but to reserve the point for the cciisidcration of the other judges, and respite the judgment until they have declared their opinion. In this way safeguards arc prac- tically thrown round the life and liberty of the subject, which are not contained in the strict letter ©f the law, for undoubtedly there is no legal obligation either upon the judge to act thus, or upon the crown to rectify mistakes by a pardon. ' A recent statute (i i and 12 Vict. c. 78) has been passed which has reference to this subject, but it still leaves the matter to the discretion of the judge who tries the case. The stat- ute provides that when any person shall have been convicted of any treason, felony, or njisdemeanor before any court of oyer and terminer or jail delivery, or court of quarter sessions, the judge, or commissioner, or jus- tices of the peace before whom the case shall have been tried, may in his or their discretion, reserve any question of law which shall have arisen on the trial for the con- sideration of the justices of either bench and barons of ' In the case of the Queen v. Eduljee Byramjee, which was argued before the Judicial Committee of the Privy Council in 1846, upon a petition pray- ing for leave to appeal from a conviction for felony in the Supreme Court of Bombay, the court in delivering judgment said : " The usual practice, where the judgment is not postponed, is, if any objection be taken at the trial which the judge who tries the prisoner does not admit to be valid, but deems worthy of consideration, to reserve it for the opinion of the fifteen judges. If the majority think the objection ought to have been sustained, the judge who tried the prisoner reports to the Secretary of State, and the prerogative of the crown is exercised in such a manner as the advisers of the crown think meet. The prisoner has no legal right, in the proper sense of the term, to demand a reconsideration by a court of law of the verdict, or of any legal objection raised at the trial." — 5 Moore's P. C. Cases, 287. The application was refused ; and the same result followed in another similar case, the Queen v. AUoo Paroo, (Id. 896), in which the author was counsel. X.] NEW TRIAL IN CASES OF FELONY. 195 the Exchequer, and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided, as he or they may think fit ; and in either case the court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case may be. Against an unlimited right of appeal in cases of felony upon mere questions of fact there are grave objections : — not the least of which is the certainty that if it were allowed, it would be resorted to, however hopeless the attempt, in every capital case, from the wish to prolong life until the termination of the app'bal. This considera- tion had full weight given to it by the Judicial Com- mittee of the Privy Council in the case just quoted of the Queen v. Eduljee Byramjee. They said, " where persons charged with the commission of felonies have been convicted, it is natural that they should resort to every possible means to escape from the penalty of the law, or to put off to the latest moment the execution of the sentence." But perhaps a course might be adopted which would be more satisfactory than the present method. A fresh trial might be granted upon a certifi- cate of the judge that he was not satisfied with the con- viction. This would prevent any abuse of the privilege, and give the prisoner a legal right to have the verdict against him reconsidered. In cases where the judge de- clined so to certify, there seems to be no reason why an ap- peal should be allowed ; for it might then be assumed with sufficient certainty that the accused was guilty. In France if the court is unanimously of opinion that the jury are mistaken in their verdict, no judgment is 1 ■' m 196 GRAND JURY, dr-C. [Ch. X. pronounced, but a new trial takes place at the next ses- sion before a different jury. When the accused is found guilty by a bare majority, a new trial is granted, if a majority of the court are of opinion that it is advisable. But there can be no new trial when the prisoner is ac- quitted, whether contrary to the opinion of the court or not. Besides the advantage thus afforded to a prisoner, he has the right of appeal to acour de cassatipn to obtain a reversal of his conviction, if any of the formalities imperatively required by the law have been omitted or violated at his trial. But this reversal is not tanta- mount to an acquittal, for the case is again remitted to the court below, or such court as the cour de cassation appoints.* In certain specified instances also a prisoner is entitled to a revision of his sentence, even where his appeal to the cour de cassation is rejected. Such are the convictions of two persons for the same crime where it is clear that one of the two must be innocent. In this case both convictions are annulled, and the accused par- ties are tried again before a court different from either of those which previously condemned them. So also a revision takes place where sufficient evidence is laid belore the appeal court to show that a person for whose supposed death the prisoner has been convicted is still alive. When this hap{)ens the cour de cassation desig- nates the court to which is delegated the task of deter- mining whether the fact be so or not, and which, confining its attention exclusively to this question, informs the appeal court of its decision, and then leaves the latter to deal with the case as it thinks fit. Again, if before the execution of the sentence any of the witnesses are prosecuted for perjury, the judgment is respited, and if they are convicted, the cour de cassation annuls the sen- tence, and remits the case for a second trial before a court different from that which previously had cognizance of it.* ' ' Code d'Instruct. Crim. II. chap. 1,3. * Id. chap. 3. m i.fvistij--.'. ,s..':^vi^'f::^- ^ CHAPTER XI. REQUIREMENT OF UNANIMITY IN THE JURY. Section I. Origin of the Rule as to Unanimity. " T F the work of forming verdicts," says Bentham, J^ " had been the work of calm reflection working by the light of experience, in a comparatively mature and enlightened age, some number, certain of affording a majority on one side, viz., an odd number, would on this, as on other occasions, have been provided ; and to the decision of that preponderating number would of course have been given the effect of the conjunct deci- sion of the whole." * The origin of the rule as to unanimity may, I think, be explained as follows : In the assize as instituted in the reign of Henry II. it was necessary that twelve jurors should agree in order to determine the question of disseizin ; but this unani- mity was not then secured by any process which tended to make the agreement compulsory. The mode adopted was called, indeed, an afforcement of the jury; but this term did not imply that any violence was done to the conscientious opinions of the minority. It merely meant that a sufficient number were to be added to the panel until twelve were at last found to agree in the same con- clusion ; and this became the verdict of the assize. It might perhaps be unreasonable to require that so large a number as twelve should be the minimum without * Art of Packing as applied to Special Juries. • \l^ Vj 'P ■ 200 REQUlREAfENT OF UNANIMITY. [Ch. ever, recordetl. Thus, in an assize upon a writ of right, between the abbot of Kirkstecle and Edmund de Eyn- court, in the reign of Henry III., eleven of the jury found for the abbot and the twelfth for de Eyncourt.and judgment was given according to the verdict of the eleven, quia praedicti undecim concorditer et praecise dicunt.' But it was decided in the reign of Edward III. that the verdict of less than twelve was a nullity, and the court said, that the judges of assize ought to carry the jury about with them in a cart until they agreed.* Although the rule is thus shown to have been reason- able in its commencement, it entailed consequences of a very inconvenient nature. In that quaint old book, " The Doctor and Student," written in the reign of Henry VTII., the following question is asked of the lawyer by the divine : " Doctor. — If one of the twelve men of an inquest know the very truth of his own knowledge, and instructed his fellows thereof, and they will in no wise give credence to him, and thereupon, because meat and drink is pro- hibited them, he is given to that point, that either he must assent to them, and give their verdict against his own knowledge and against his own conscience, or die for lack of meat : how may the law then stand with con- science, that will drive an innocent to that extremity, to be either forsworn, or to be famished and die for want of meat. " Student. — I take not the law of the realm to be, that the jury after they be sworn may not eat nor drink till they be agreed of the verdict ; but truth it is, there is a ' Flac. ann. 56 Hen. III. Rot. 2g. So where the jury consisted of eleven and ten found for the plaintiff and one for the defendant, the entry was quia dicto majoris partis juratorum standum est quod prsedictus W. recuperet, &c.— Pasc. 14 Edw. I. Rot. 10. Hale. P. C. II. 297. n. (c). * 41 Assis. II. At the present day a verdict from less than twelve ift sometimes taken by ccnsent of both parties. xi.i ORIGIN OF THE RULE. aoi maxim and an old custom in the law, tliut they shall not cat nor drink after they be sworn till they have given their verdict, without th assent and license of the jus- tices ; and that is ordained by the law for eschewing divers inconveniences that might follow thereupon, and that specially if they should eat or drink at the costs of the parties ;' and therefore if they do contrary, it may be laid in arrest of the judgment : but with the assent of the justices they may both eat and drink, as if any of the jurors fall sick before they be agreed of their verdict, so sore that he may not commune of the verdict, then by the assent of the justices he may have meat and drink, and also such other things as be necessary for him ; and his fellows also at their own costs, or at the indifferent costs of the parties, if they so agree, or by the assent of the justices, may both eat and drink." The rule, however, in this respect, is different at the present day, for it is only after the judge has summed up and the jury are considering their verdict, that they are prohibited from having ** meat, drink, or fire, candle-light only excepted." Otherwise, in cases when atrial extends over several days, it would be physically impossible to enforce abstinence, and prisoners would escape by resort- ing to the expedient of tedious and protracted delay in their defense. No such lengthened trials were, however, known in the simple times of old. But the reason assigned for the rule in the passage above quoted is not the true one. It arose, no doubt, from the propensity of our an- cestors to indulge in excess at their meals ; and was dic- tated by a fear lest jurors should, if they had access when ' In the time of Elizabeth it was the custom for the successful party to entertain the jury afterwards at dinner : "The party with whom they have given their sentence giveth the enquest their dinner that day most commonly, and this is all they have for their labor, notwithstanding that they come some twenty, some thirty or forty miles or more, to the place where they give their verdict ; all the rcRt is of their own charge." — Smith's Common' wealth, c. i8. 3oa REQUIREMENT OF UNANIMITY. [Ch. impaneled to food and drink, become incapacitated from a due discbarge of their duty. The first mention of the rule occurs, I believe, in Fleta, which was written in the reign of Edward I., and it is there said, that the sheriff is to cause the jurors in an assize to be kept sine cibo et potu until they are agreed.' But at that time it was in the option of the justices, either compellere ad concor- diam the jury in this way, or to afiforce it by adding, as has been previously explained, jurors to the majority, until twelve were found to be unanimous.' The expression compellere ad concordiam shows that in Fleta's time a compulsory process might be resorted to in order to pro. duce an unanimous verdict ; and th''> >s further shown by the fact, that the dissentient minority were subjected to a fine quasi pro transgressione. But here again we must not forget that the jurors were still regarded merely as witnesses. And if seven men swore positively that they had seen and known the possession of land to be in a particular person, or his ancestors, the presumption was very strong that five other neighbors who professed to be cognizant of the matter must have known the same fact, and therefore, in refusing to concur in the verdict of the majority, they were deemed to be guilty of contu- macy, if not willful perjury. But it deserves notice, that by the law of the Saxon Ethelred, which has been al- ready quoted, if two-thirds of the thanes who formed the court or inquest agreed, the remaining one-third v ho dissented were fined. ** Let doom stand where thanes are of one voice: if they disagree, let that stand which * It was a law ov the Lombards ut judices jejuni ca as audiant et decer- nant. And by one of the laws of Hoel-dda (Leg. Wall. lib. v. § 48), Res- pondere non teneor post meridiem rulla causa post meridiem orari debet. Blackstoae notices that by the " Golden Bull " of the German em- pire, if, after the congress was opened, the electors delayed the election of a king of the Romans for thirty days, they were to be fed only with bread Rnd water until ^I.e election was made. ' Flela, IV. c. 9. ■^;.,i\^~j ij-^B XL] H J:A SONABLEiVKSS OF THE RULE. 203 VIIL of them say. And let those who are out-voted pay- each of them VI. half-marks." ' And the thanes spoken of here were certainly not witnesses, but sat in the capac- ity of judges. The above considerations afford, I think, a satisfactory account of the origin of the rule which requires unani- mity in the jury. And if the explanation be admitted, the principle involved does not seem to have been un- reasonable. The question, however, is very diff"erent, whether the rule ought to be retained when the char- acter of the tribunal has changed, and the functions which it has to discharge are no longer the same as they were when it first came into existence. This will be the subject of inquiry in the next section. Section II. Question of the Reasonableness of the Rule considered. In a valuable note to his " Middle Ages," Mr. Hallam, speaking of " the grand principle of the Saxon polity, the trial of facts by the country," says, " From this principle (except as to that preposterous relic of barbar- ism, the requirement of unanimity) may we never swerve- — may we never be compelled, in wish, to swerve — by a contempt of their oaths in jurors, and a disre- gard of the just limits of their trust !" * This is a stern judgment against the policy of the law which requires that a jury, if it delivers a verdict at all, shall be unani- mous ; and it may be useful briefly to consider whether and how far it is correct. ' Ir all the old Scandinavian tribunals the opinion cf the majority pre- vailed. Sed si illi xii. in unum convenire non poterint, major pars prsevale- bit, et quicquid juramento suo decreverit. — Priv. Civ. Ripensis, ann. 1296. But, as I have previously shown, the twelve in these cases were not " jury- men." but judges. * Supp. Notes, Midd Ages, p. 26a. ■ ■,iL«L£i!>il ji 204 LEQUIREMENT OF UNANIMITY. [Ch. The question has been oftea discussed, and the objec- tion is one not easily answered In no other tribunal in this country is unanimity essential in order that its deci- sion may be valid. When in any of the courts of com- mon law, or in the court of appeal in Chancery, the judges differ in opinion, that of the majority prevails ; or if the numbers on each side are equal, then the max- im of praesumitur pro neganti prevails, i-nd the party who seeks to set the court in motion fails in his applica- tion. When the House of Lords sit as a court of ap- peal, or as a criminal court to try a peer, or in case of impeachment of a commoner, a bare majority of one is sufficient to determine the judgment;' and it maybe fairly asked, why the rule should be different for twelve jurors, and why, if there be a single dissentient amongst them, no verdict can be given ? One advantage resulting from the rule no doubt is, that if any. one juror dissents from the rest, his opinion and reason/: must be heard and considered by them. They can not treat these with contempt or indifference, for he has an absolute veto upon their verdict, and they must convince him or yield themselves, unless they are prepared to be discharged without delivering any verdict at all. This furnishes a safeguard against preci- pitancy, and insures a full and adequate discussion of every question which can fairly admit of doubt ; for if all are at once agreed upon the effect of the evidence,, it may be reasonably presumed that the case is free from difficulty, and too clear to admit of any difference of opinion. But, on the other hand, it is impossible to deny that there are very strong reasons to be urged against the con- tinuance of the requirement of unanimity. In the first place, it is quite certain that in many cases the una nimit y ' In order, however, to convict, the greater number must consist of at least twelve. ft ,.-w-i-5'A-"i^A'^..-»Jk../'-i'^ IS, XI.J REASONABLENESS OF THE RULE. 205 is only apparent and not real, and is purchased at the sacrifice of truth. How seldom do we find in the casual intercourse of life that the first twelve men we meet take the same view of a disputed fact ; and yet this is the condition which is exacted from that number of persons who meet together for the first time in a jury-box. They are expected to agree in the same conclusion, no matter how intricate may be the circumstances of the case, and obscure the darkness in which it is shrouded, and this too after witnesses on the one side, apparently trustworthy and respectable, have made statements which t;-^*;"f. .-i/-it*,._. ^p- 3o8 REQUIREMENT OF UNANIMITY. [Ch. of the latter principle. It seems absurd that the rights of a party, in questions of a doubtful and complicated nature, should depend upon his being able to satisfy twelve persons that one particular state of facts is the true one. As it is notorious that upon such questions a boQ_, of men so numerous are often found to differ irreconcileably in their views, it is obvious that the nec- essity of returning in every case a verdict, and an un- animous one, before they separate, must frequently lead to improper compromise amofig the jurors of their re- spective opinions. " There is reason also to apprehend that where any of them happen to be actuated by partial motives, it must tend to produce a corrupt verdict. Indeed, no one can have been much conversant with courts of justice, with- out having frequently heard the remark (where the verdict has been very long in suspense), that one or other of the contending parties has a friend upon the jury. " On the other hand, however, the necessity for the unanimity of the jury carries with it one most valuable .advantage. In the event of any difference of opinion it secures a discussion. It is not possible to poll the jury at once, and so without further trouble or consideration to come to the conclusion. Any one dissentient person -can compel the other eleven fully and calmly to recon- sider their opinions. " But there seems as good reason why, after a certain period of time, sufficiently long for the purpose of reasonable and ample discussion, the jury (if still in dis- agreement) should not be excused from the necessity of giving a verdict, or why the present principle of keepin;stice and expediency. * Compare with this the power of the Scandinavian Lawman to determine the judgment or verdict, ante, p. 17. CHAPTER XII. ON THE PROPER PROVINCE OF THE JURY. Section I. Powers and Duties of Juries in England. IT was very early provided that the jury should not entangle themselves with questions of law, but con- fine themselves simply and exclusively to facts. This rule was afterwards expressed by the well-known maxim called " that decantatum in our books," ' ad quaestionem facti non respondent judices, ad quaestionem juris non respondent juratores ; an invaluable principle of juris- prudence, which more than anything else has upheld the character and maintained the efficiency of English juries as tribunals for the judicial investigation of truth. It is obvious, however, that many questions of fact involve also questions of law. Thus if the proposition to be determined be, whether A did or did not make a will ; the answer depends, first, upon the fact whether he actually executed a written paper, purporting to be a will ; secondly: whether he was competent to make it ; and, thirdly, upon the legal effect of the instrument which he signed ; and if a jury were called upon to de- termine by themselves the general question in the above form, they would have to take into account both law and fact, which is beyond the scope of their functions. So also in the earliest cases to which the assize of Henry II. applied itself, which were chiefly those of dis- seizin — inasmuch as that term had a technical meaning,. * Bushell':. case, Vaughan, 149. XII.] PO WERS AND D UTIES OF J URIES. 2 1 7 and implied a wrongful dispossession, — if the jury assumed that the act, of which they took cognizance, was wrongful, they decided a qvestion of law. And this seems to have frequently occurred, as in the case pre- viously cited from Jocelin de Brakelonde, where the jurors paid no regard to a deed produced on behalf of the convent which established its right, but gave their verdict upon their own view of the facts. And, indeed, upon all general issues ; as upon " not guilty " pleaded in trespass, " nul disseizin" in assize, and the like; though it be matter of law whether the defendant be a trespasser or disseizor, in the particular case in issue ; "yet the jury rind not (as in a special verdict) the fact of every case by itself, leaving the law to the court, but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact compH- cately, and not the fact by itself ; so as though they answer not singly to the question what is the law, yet they determine the law in all matters, where issue is joined, and tried in the principal case, but where the ver- dict is special." ' To remedy this difficulty it was en- acted by Statute 13 Edw. I. c. 30 (a. d. 1285), that, the justices assigned to take assize should not compel the jurors to say precisely whether an ouster of possession were " disseizin " or not, so that they were willing to de- clare the truth of the fact, an^ ask the assistance of the justices (as to its legal effect).* It was, however, pro- vided, that " if they of their own accord will say that it is diss' izin or not, their verdict should be admitted at their own peril." It has been strenuously maintained by some writers that the jury are entitled in all cases, where no special ' Ibid. 150. * Quo casu si Juratores ignoraverint si manifesta fuerit disseisina vel non, compelli non debent ulterius, sed petere debent instructionem Justiciarorum. '^leta, IV. c. 9. .i.i-i?..=''j.'s*j:i - t'*v^';^5tt:4y..yiSj,"-.- " ;\"La1r\V.r;: LS4»^^>fi »i8 ':i !| 1 1 m ii' I PROVINCE OF JURY. [Ch. pleas have been put on the record, to give a general ver- dict according to their own view of the law, in criminal as well as civil cases. That is, supposing the action to be brought for a libel or an assault, or the Indictment to charge a felony or a misdemeanor, and the only plea is not guilty, they assert that the jury are justified in bring- ing in a verdict of acquittal, notwithstanding they are told by the judge that in point of law +here is no de- fense, provided they think otherwise themselves. But it is impossible to uphold the ti ""ine. It is founded on a confusion between the ideas of power and right. We shall have occasion to consider the subject with reference to questions of libel hereafter, and here it will be enough to say that, although juries have undoubtedly the power in such cases to take the law into their own hands, and so, it may be, defeat the ends of justice, or do what they believe to be substantial justice, they do so at a sacrifice of conscience and duty. The law can not depend upon the verdict of a jury, whose office is simply to find the truth of disputed facts ; — and yet such must be the re- sult, if they may decide contrary to what the judge, the authorized expounder of the law, la ^^ down for their guidance. This would introduce the n » miserable un- certainty as to our rights and liberties, . -e nisera servi- tus of vagum jus, and be the most fatal i.lov that could be struck at the existence of trial by jury. Can it for a moment be contended that t^velve men in a jury-box are to determine that not to be an offense which the lav/, under a penalty, forbids ? May they pronouce that to be manslaughter or justifiable homicide which the law declares to be murder ? If so, then they may by their verdict abrogate, by rendering ineffv^ctive, every enact- ment of the legislature, and they become a court of ap- peal from the solemn decision of Parliament and the Crown. That they can do so is not disputed, but so can the judges give judgments contrary to law, if they choose ^ A.-.) V- ili^£flL alrli/ £ XII.] POWERS AND DUTIES OF JURIES 219 to disregard their oaths, and yield to the influence of corrupt motives. In both cases the law presumes that men will act according to their duty. Indeed, it is diflficult to understand how any one ac- quainted with the principles and settled practice of the Enj^lish law, can assert that it sanctions the doctrine which is here combated. Why should all demurrors be withdrawn from the cognizance of a jury, if when they try issues of fact they may also determine the law ? Why should a bill of exceptions tendered at a trial, in conse- quence of some supposed misdirection of the judge in poi"t of law, be argued before the court alone? Why should there ever be special verdicts in which the jury find merely the facts, and leave the conclusion of law to be drawn by the judges themselves? And even if the jury dc intermix with the facts so found legal inferences, the court pays no attention to the latter, but decides according to its own view of the law. Moreover, it is the constant practice for the courts to grant new trials in civil cases (and in misdemeanors where there has been a conviction), if the jury have given a verdict contrary to what the presiding judge has correctly laid dov/n to be the law. And the care taken in very early times to relieve the jury from the danger of giving a verdict upon a mistaken view of the law, as has been shown above, "proves that it never was intended that they should deter- mine legal questions for themselves. For formerly, in finding a general verdict, either for the piaintijfif or the defendant in civil cases, or a verdict of " not guilty " in criminal, a jury was exposed to the risk of an attaint if it decided contrary to law,' especially after that had been explained to them, and laid down by the court. Now, ' See Litt. Sect. 368, where Coke says, " although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for if they do mis- take the law, they run into the danger of an attaint ; therefore to find the special matter is the 'safest way where the case is doubtful." ;;'>>t;a.:ii.j3^;ii^^:;i Vf. 220 PROVINCE OF JURY. [Ch. however, that attaint has been abolished, there is no mode of punishini^ a ji ry ; and the remedy for an im- proper verdict in civil actions is a new trial. But in trials for felony, if jurors choo.-e to assert contrary to law by a verdict of not guilty, that, admittng all the facts to be proved, no legal offense has been committed by the prisoner, he must inevitably escape ; for there can be no second trial, he having been already once in jeopardy upon the charge. And it is to be feared that this has too often happened in trials for murder arising out of a duel. The law of England is clear and explicit, that death occasioned by a duel is murder; and yet, notwith- standing the numerous trials which have taken place for this offense, how few have been the convictions ! The facts have generally been beyond dispute, and the jury- can not have meant by their verdict qI acquittal to throw discredit on the evidence ; but, influenced by the max- ims which pass current in the world as the code of honor, they have determined that killing another in a fairly- fought duel is not murder. It is not likely that such a false notion would now be countenanced by any jury, for happily the current of opinion has set with irresistible force agpinst duelling ; and there is, we may hope, little danger of their not being willing to vindicate the law \ but past experience incontestably proves how the law may be warped by juries, when its stern mandates are opposed to their own prejudices, and their duty comes strongly into conflict with their feelings. And when they choose to trifle with the obligation of their oath, and take the law into their own hands, there is some truth in the retort made by Colonel Lilburne upon the judges at his trial in 1649, " You that call yourselves judges of the law are no more but Norman intruders ; and in deed and in truth, if the jury please, are no more but cyphers, to pronounce their verdict," — a doctrine which provoked Mr. Justice Jermin to exclaim, " Was there ever such a XII.] POWERS A AD DUTIES OF JURIES. 221 damnable blasphemous heresy as this is, to call the judges of the law cyphers ?" ' It can not therefore be denied that in all criminal cases the jury do virtually possess the power of deciding ques- tions of law as well as of fact. This is an anomaly, but it can only occur when they forget and violate their duty. The theory of our constitution admits several anomalies, against the inconvenience arising from which the only safeguard is the settled course of usage, and the good sense with which the objectionable power is exer- cised. Thus the Crown possesses the undoubted preroga- tive of interposing its veto upon every bill which has passed the two houses of Parliament ; and if this were often or indiscreetly exercised, legislation would be brought to a standstill, and the monarchy placed in im- minent peril. But no one fears that any such obstruction will take place. The theory is corrected by the practice. A mathematician can demonstrate that a bridge built in a particular form can not stand ; but it does stand never- theless : and why? because the force of friction, which has not been taken into account, supplies the power re- quisite to sustain the fabric. Now, what friction is in physical science, usage is in the affairs of men. In civil actions, where the question to be determined is one in which legal inference is inextricably mixed up with fact, the modern practice is for the jury to find a gen- eral verdict for the plaintiff, subject to the opinion of the court, upon a special case stated by the counsel on both sides. The first instance of this, of which we have notice, occurred, I believe, in the reign of Charles II. And it is by no means unusual, in such cases, to put the court so far in the place of the jury as to enable it to draw such ' Practical effect was once given to the idea of the supremacy of juries by a Colonel Martin, who was tried at Reading, and who caused the jury to |>ui on their hats, telling them that it was their right, inasmuch as they were the chief judges in the court. — See 4 State Tr. 1381. 222 PROVINCE OF JURY. [Ch. '^r inferences of fact as they may think a jury would have, ')X ought to have drawn. But upon the inconvenience of this part of the arrangement, English judges have ex- pressed a strong opinion. Thus the late Mr. Justice Bay- ley, writing to Chief Commissioner Adam, said : ' " P'acts only, and not evidence, ought to be stated, and whatever inferences ought to be drawn, should be drawn by the jury, not by the court ; but of late years, practically, an incorrect and slovenly mode has been adopted, of leaving it to the court to draw such inferences as the court shall think the jury ought to have drawn. The consequence is, that if the case is turned into a special verdict, it becomes necessary to reform it, and to apply to the court to draw the proper inferences. This practice, however, leads to inconvenience, and upon prin- ciple can not be supported." And in the case of Ark- wright V. Cell," it was said by the court : " A special case was reserved at the trial for the opinion of the court, stating a great number of documents and facts upon which the court are not merely to give their judgment on matters of law, but to take the office of the jury by determining whether any and what inferences of fact ought to be drawn from the facts stated. This course leads to one great inconvenience, as it tends to confound the rule of law with an inference of fact only, which in- ference might have been varied by a very slight circum- stance." It may, perhaps, in strictness be said that a large por- tion of the duties of juresis not confined to the determi- nation of matters of fact. I allude to their power of award- ing compensation by way of damages. This is a judicial act. They first find the facts upon which they are to ex. ercise a discretionary judgment with respect to the ' See Adam on Trial by Jury (in Scotland), p. 392. ' 5 Mees and Wels. 227, and see Brockbank v. Andersoo, 7 Man. and Gr. 313 I 1-i XII.] POWERS AND DUTIES OF JURIES. 223 amount which they think fit to award. It is obvious that this is a very different function from merely decid- ing upon the effect of evidence as to whether such and such allegations have been satisfactorily proved. We can easily conceive that their duties might be limited ex- clusively to this, and that when they had informed the court of their opinion, the latter might be called upon to say what amount of compensation the justice of the case required. But this would clearly be no question of law. That presupposes a definite and general rule to be ap- plied in all similar cases alike. Damages, however, must vary according to the circumstances of each particular case. While therefore juries in dealing with questions of compensation act not merely as triers of fact, judges would be unable to determine the amount without de- parting from their character of being solely expounders of the law. The question of what is the province of the jury in de- termining actions for libel, gave rise to one of the most memorable conflicts of opinion in our legal history. And although, as it was afterwards made the subject of a de- claratory act of Parliament, this question maybe thought to possess no longer any practical importance, it may be interesting to give a short review of the struggle, espe- cially as some misconception prevails as to what was the real object and effect of the act. I venture to think that it fell far short of the view contended for by those who opposed Lord Mansfield, and that it by no means asserted the doctrine laid down by Lord Camden, Ers- kine, and Fox, namely, that the question of whether the matter in a publication is libelous or not, is one for the consideration solely of the jury, with which the court has no right to interfere. This I believe to be contrary to all legal principle and authority ; and it is not difficult to show that such never has been, nor is now, the law of England. •■A W i' ja4 PROVINCE OF JURY. [Ch. In the early part of 1770, Woodfall, the printer of "The Morning Advertiser," was tritd before Lord Mansfield, for having published in his paper what was alleged to be a libel : and the Chief Justice told the jury that " all they had to consider was, whether the defendant had published the letter set out in the information, and whether the innuei^does imputing a particular meaning to particular words, as that " the K — " meant his majesty King George III. ; but they were not to consider whether the publica- tion was, as alleged in the information, " false and mali- cious," these being mere formal words ; and that whether the letter was libelous- or innocent was a pure question of law, upon which the opinion of the court might be taken by a demurrer, or a motion in arrest of judgment." The jury found the defendant " Guilty of the printing and publishing ONLY ; " but the court afterwards rejected this verdict as ambiguous, and ordered that there should be a new trial. In another case, Rex v. Miller, which occurred the same year, Lord Mansfield said,' " The direction I am going to give you is a full conviction and confidence that it is the language of the law. If you by your verdict find the defendant not guilty, the fact established* by that verdict is, he did not publish a paper of that meaning ; that fact is established, and there is an end of the prosecution. You are to try that fact, because your verdict establishes that fact, that he did not publish it. If you find that, according to your judgment, your ver- dict is final ; and if you find it otherwise, it is between God and your consciences ; for that is the basis upon which all verdicts ought to be founded ; then the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper, of the tenor, and of the meaning, set forth in the information ; that is 4he only fact finally established by your verdict ; and • 20 State Tr. 892-3. , fj A' ■',*■■. -■•iti.-J'tl-aJ^rtJs.Jj'. XII.] POWERS AND DUTIES OE JURORS. 225 whatever fact is finally established, never can be contro- verted in any shape whatever. But you do not, by that verdict, give an opinion, or establish whether it is or not lawful to print or publish a paper of the tenor and mean- ing in the information ; for supposing the defendant is found guilty, and the paper is such a paper, as by the law of the land may be printed and published, the de- fendant has a right to have judgment respited, and to have it carried to the highest court of judicature." The doctrine here laid down by this great and vener- able judge, the greatest who has ever sat on the English bench, exposed him to much but most unmerited obloquy. To say nothing of the virulent invectives of that common slanderer, Junius, who pretended to believe that Lord Mansfield was engaged in a grand conspiracy against the liberty of the press, he was assailed by Lord Chatham, in the House of Lords, in a manner which drew from him an eloquent and striking reply. He said : ' " His lordship tells the house that doctrines no less new than dangerous in their nature have been inculcated in the Court of King's Bench, and that particularly in a charge which I delivered to the jury on Mr. Woodfall's trial, my directions were contrary to law, repugnant to practice, and injurious to the dearest liberties of the people. This is" an alarming picture, my lords, it is drawn with great parade, and colored to afifect the pas- sions amazingly. Unhappily, however, for the painter, it wants the essential circumstance of truth in the de- sign, and must, like many other political pictures, be thrown, notwithstanding the reputation of the artist, among the miserable daubings of faction. " So far, in fact, my lords, is the charge without foun- dation, that the directions now given to juries are the same that they ever have been. There is no novelty in- ' 16 Pari. Hist. 1303. 15 326 PkOVINCE OF JURY. [Ch. troduced, no chicanery attempted, nor has there, till to serve some interested purposes of late, been any outcry raised against the integrity of the King's Bench." A few days afterwards Lord Mansfield informed the House of Lords that he had left a paper with the clerk (if the house, containing the judgment of the court in the case of the king against WoodfaU, and that their lordships might read it and take copies of it if they pleased. Lord Chatham bitterly attacked the Chief Justice, a^irming that his conduct in giving judgment in the case was irregular, extrajudicial, and unprece- dented ; and Lord Camden, on the following day said^ " I consider the paper delivered in by the nobie lord as a challenge directed personally to me, and I accept of it ; he has thrown down the glove, and I take it up. In direct contradiction to him, I maintain that his doctrine is not the law of England." He then proposed a series of questions as to the exact meaning of the opinion contained in the judgment, and asked Lord Mansfield to answer them, but the latter refused to recognize his opponent's right thus to catechize him, and the subject was no further pursued.* It was, however, revived in 1874, on the trial of the Dean of St. Asaph, who was prosecuted for publishing a dialogue between a gentleman and a farmer, v/ritten by Sir William Jones." Mr. Justice Buller told the jury that it was no part of their duty to form any opinion as to the character of the paper alleged to be libelous ; upon which Erskine, who was the Dean's counsel, moved for a new trial, on the ground of misdirection, and urged the opposite view upon the court in a remarkably able ' The conduct of Lord Mansfield on this occasion has been censured as wanting in spirit. I think, however, that it was dignified and proper. A political opponent has no right to demand froita a judge categorical answers to questions framed for the express purpose of throwing odium upon the judgment-seat. • 31 State Tr. 847-1046. A XII.] POWERS AND DUTIES OF JURIES. 827 argument. Lord Mansfield delivered judgment, and showed that in every trial for libel since the revolution (and to go further back for precedents would be useless) the practice of the courts of law had been uniform on this point ; and that the direction of every judge had been substantially the same as that of Mr. Justice Duller, which was then objected to. After citing the case of Rex V. Francklyn,' where the Craftsman, a celebrated party paper, written in opposition to the ministry of Sir Robert Walpole, was prosecuted, and the verdict was guilty, he thus proceeded : " I recollect one case afterwards, in which, to the great mortification of Sir Philip Yorke, then attorney-general, the Craftsman was acquitted ; and I recollect it from a famous witty and ingenious ballad that was composed on the occasion by Mr. Pulteney. Though it be a ballad, I will cite a stanza from it to show you the opinion upon this subject of the able men in opposition, and the lead- ers of the popular party in those days. They had not an idea that the jury had a right to determine upon a question of law, and *:hey rested the verdict on another and better ground : For Sir Phillip well knows That his innuendoes Will serve him no longer In verse or in prose ; For twelve honest men have decided the cause, Who are judges of fact, though not judges of laws.' Now which of these two great lawyers, Lord Mansfield and Lord Camden, was right? It has been said by high ' 17 State Tr. 625. ' It is said Lord Mansfield quotfd these lines wrongly, and that they rua thus in the original ballad, printed in 1754 : " For twelve honest men have determined the cause, Who are judges alike of the facts and the laws." However this may be, there can be no doubt that Lord Mansfield's version is the legally correct one 3a8 PROVINCE OF JURY. [Ch. authority, that the doctrine of the former was contrary to law as well as liberty, and that his argument for mak- ing the question of'* libel or not " exclusively one of law, that the defendant may demur, or move in arrest of judg- ment, and so refer it to the court, admits of the easy an- swer, that although there may be a writing set out in the information as libelous, which it would under no circum- stances be criminal to publish, yet that an information may set out a paper the publication of which mayor may not be criminal, according to the intention of the defend- ant and the circumstances * der which it is published.* But Lord Mansfield neve ant to withdraw from the consideration of the jury inc attending circumstances of the publication. He always told them that they exclu- sively were to determine whether the meaning of the in- nuendoes, as alleged in the indictment, was proved : and this they could hardly do without considering the context of the objectionable passage and surrounding circum- stances of the case. And, as to the question of inten- tion, the same same great judge seems to have laid down the law with perfect correctness, as a brief consideration will show. In most criminal cases the question of legal guilt de- pends upon the intent as a matter of fact, which the jury can alone determine. Thus, for instance, the killing a man is murder, if death or grievous bodily harm is in- tended by the blow ; but it may be the result of mere accident and mischance. This involves no question of law, but is a fact for the jury to decide. There are, how- ever, some actions from which the law presumes criminal- ity independent of the intention of the party doing them. Such is the case where a man intending to commit an- other felony, in the execution of his purpose undesignedly kills a man. Here the law implies malice, and the offense is murder. So if two persons mutually agree to com- I Lord Campbell's Lives of the Qiief Justices, II. 480. XI I. J POWERS AND DUTIES OF JURIES. 229 mit suicide together, and take poison, or attempt to drown themselves together, but only one of them dies, the survivor is guilty of murder. So also if death ensues from the grossly unskillful treatment of a medical practi- tioner, he is guilty of man«^-.-t«1; /.Ais:^-, ^""/(Aa.: « v^iLft-lh: ■ XII.] POWERS AND DUTIES OF JURIES. 235 Provided also that in case the jury shall find the defend- ant guilty, he may move an arrest of judgment, on such ground and in such a manner as by law he might have done before the passing of the act.' " By this bill," says Lord John Russell,* " juries were constituted judges of the law as well as of the fact, that is to say, they were entitled to decide not only whether the writing in question had been published or no, but also whether it were libelous." But this is a mistake. No such power is conferred upon juries by the statute in question, and they are no more entitled since its passing to take the law into their own hands in cases of libel, than in those of murder, or any other alleged crime. An attentive perusal of the provisions of the act will show that it does no more thait place trials for libel on the same footing as trials for other offenses ; and it in no respect absolves a jury from the duty of obeying the direction of the judge as to the legal character of the writing which is the subject of inquiry. If authority is wanted for this assertion it is easily supplied. In the case of R. v. Burdett,* tried in the year 1820, Mr. Justice Best said, " It must not be supposed that the statute of George the Third mad< "he question of libel a question of fact ; if it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel, as in all other cases ; the jury having the power of acting agreeably to his statement or not. AU that the statute does is to prevent the question from being left to the jury in the manner in which it was left before that time. Judges ' In 1793 Lord Abercromby, one of the Lords of Session in Scotland, said, " Our law in this respect has always been different from the common law of England, where in the case of libel the jury till a late period were judges of fact, but not of the law. With us even in matters of libel the Juiy have always determined both as to the law and the fact." — 23 State Tr. 114. * Essay en English Government, p 591. * 4 Barn, and Aid. 131. 834 PROVINCE OF JURY. [Ch. FBI!!: are in express terms directed to lay down the law as in other cases. In all cases the jury may find a genera) verdict ; they do so in cases of murder and treason ; but then the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion." What seems to have been really objectionable in the practice of the court previous to tl statute was the course of directing a verdict of guilty to be found on the mere proof of the publication of the document alleged to be a libel, and truth of the innuendoes, and then putting the defendaiit to the necessity of moving in arrest of judgment, on the ground that it sufficiently appeared on the face of the record that the matter complained of was no libel. If in the opini4)n of the judge the use of the words in question, admitting them to be proved, did not amount to an offense, the defendant was entitled to an acquittal at once and to have the direction of the judge to that effect, as in all other trials where the law does not hold the act charged to be criminal. " According to the practice," say the Commissioners on the Criminal Law,' " in the case of libel, a general verdict of guilty was required to be found in all such cases ; the jury were not allowed to exercise any option, and the inference of guilt was, so far as regarded malice, required to be made, without the sanction of the judge's opinion that it was one warranted by the facts. It was, we apprehend, with a view to the removal of these anomalies, that the Libel Act was passed, without any intention to enlarge the province of juries t^- investing them with any judicial authority to determine what shall constitute a libel. By the second section (of the Act) the court shall, according to their discretion, give their opinion and direction to the jury on the matter in issue between the king and the defendant, as in other criminal cases. As a general rule, ' Sixth Report, 1841. XII.] OFFICE OF JUDGE AND JURY. 2.35 so far as our experience extends, it is usual for the judge to inform the jury in respect of the legal quality of all the facts proved, or which the evidence tends to prove, so far as the legal quality of such facts is essential to the issue ; that is to the guilt or innocence of the accused.*' The learned Commissioners state distinctly, that the statute leaves the question of libel or no libel a mere question of law ; and they add, with perfect truth, that to make so important a question as that of libel an excep- tion to the rule that ad quaestionem facti respondent jura- tores, ad quaestionem juris judices, would constitute an anomaly, and an unfortunate one ; for no other case can be selected in which the just application of the law to the facts is so difficult ; and consequently none in which the delegation of the duty to a jury would be more likely to occasion confusion and inconvenience. Section II. Distinction between the Office of the Judge and that of the Jury. The distinction between the province of the judge and that of the jury is, in the English law, clearly defined, and observed with jealous accuracy. Ine jury must in all cases determine the value and effect of evidence which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold the balance between conflicting probabilities. The law throws upon them the whole responsibility of ascertaining facts in dis- pute, and the judge does not attempt to interfere with the exercise of their unfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone de- termines them, and their consideration is ab.solutely with- 236 PROVINCE OF JURY. [Ch. « i drawn from the jury, who must in such cases follow the direction of the judge ; or if they perversely refuse to do so, their verdict (in civil cases) will be set aside, and a new trial granted. If, in order to determine this, it is necessary to have recourse to evidence, as for instance, to show that a proposed witness is incompetent, this evi- dence must be received by the judge, and adjudicated upon by him alone. The rule can not be better or more concisely enunciated, than as laid down in a recent case: " If the evidence offered at the trial by either party is ev- idence by law admissible for the determination of the question before a jury, a judge is bound to lay it before them, and to call upon them to decide upon the effect of such evidence : but whether such evidence when offered is of that character and description which makes it ad- missible by law, is a question which is for the determin- ation of the judge alone, and is left solely to his de- cision. The construction of written documents (except in the case of innuendoes in libel) is entirely for the court, who must determine what the legal effect of the instrument is. But where it contains words of technical art, or which ha- e by local usage a particular meaning, this is submitted to the jury, who pronounce what that mean- ing is; and then the judge, having had the language thus as it were translated to him, defines the legal conse- quences which flow from the document itself.* This rule applies also in general to the case of letters which have passed between the parties, out of which an agreement is to be collected ; but where they are written in such a manner as to be capable of different constructions, and can be explained by other transactions and circumstances, ' Lewis V. Marshall, 7 Man. and Gra. 743, and see Banlett v. Smith, II Mees. and Wels. 485. ' See Neilson v. Harford, 8 M. and W. 806 ; Hitchin v. Groom. 5 C. B. 519. ;_-;,:ji*i=v.;i^-vi.'*-;;iw-,':t;'^5a [Ch. XII.] OFFICE OF JUDGE AND JURY. a37 the whole evidence must be left to the jury to decide upon, for they are to judge of the truth or falsehood of collateral facts which may vary the sense of the letters themselves ; but if they are not capable of explanation by any other circumstances, then the construction of them, like deeds or other written agreements, is a mere matter of law for the court.* A good illustration of the difference between the func- tions of the judge and those of the jury is afforded in the case of an action for a malicious prosecution. Here the question always is, whether the defendant had " reasonable and probable cause " for procuring the arrest of the plaintiff. Now this is a mixed question of law and fact. The jury are merely to determine the truth or falsity of the facts alleged by the defendant in justifi- cation of his conduct, but the result of those facts, sup- posing them to be proved, that is to say, the question of ■whether they do or do not amount to what the law deems to be reasonable and probable cause, is for the judge alone.' Nor does it make any difference in principle if the case be one in which the question of reasonable or probable cause depends not upon a few simple facts, but upon facts which are numerous and complicated, and upon inferences to be drawn therefrom ; it is still the duty of the judg"^ to inform the jury that, if they find the facts proved, and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge. It is, no doubt, attended with difficulty to bring before the jury all the combinations of which numerous • See per BuUer, J., Macbeath v. Haldimand, i T. R, 182. • Sutton V. Johnstone, 1 T. R. 493, 510. 784. In Beckwith v. Philby, 6 Bam. and Cress. 638, Lord Tenterden said, that whether there was any rea- sonable cause for suspecting that a plaintiff had committed a felony, was a question of fact for the jury. .,■l;i^at;!i-U'^iJ*^.-'^'itj^.t;^Jlv^^^;j^>i■'.■J..-fc;-:\^:^../* I a3J PROVINCE OF JURY. [Ch. facts are susceptible, and to place in a distinct point of view the application of the rule of law, according as all or some only of the facts and inferences from facts are made out to their satisfaction ; but the task is not im- practicable, and it must be performed by the judge who endeavors correctly to administer the law.' Let us illustrate this part of our subject by a few more examples. Littleton says that executors shall have free entry, egress, and regress, to carry out of the house the goods of their testato -• " by reasonable time," and upon this Sir E. Coke makes the following comment : * " This reason- able time shall be adjudged by the discretion of the jus- tices before whom the law dependeth, and so it is of reasonable fines, customs, and services, upon the true state of the case depending before them ; for reasonable- ness in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices. How long it should endure is not mentioned in the law, but is left to the discretion of the justices." * It must not, however, be taken for granted that the question of reasonableness is, in all cases, one for the court and not for the jury. The ■ Panton v. Williams, 2 Q. B. i6g. With reference to the judgment of the Exchequer Chamber in this case, from which the observations in the text are taken, Lord Denman, C. J., said in Rowlands v. Samuel, ii Q. B. 41, n. (a) : " I regret that it was not brought before the House of Lords. That case, however, does not lay down as a rule, that the judge is to sub- mit each particular fact to the jury, but not only that he is to look at all to- gether, ask the jury which is proved, and decide according to the result, whether probable cause is shown or not. As to single facts, what law can he resort to in directing the jury ? How can he lay down, as a general pro- position of law, what particular fact shows probable cause under the circum- stances of an individual case ? The fact which is probable cause in one case is not in another. What general rule can there be? There is, on any view, a difficulty ; but the Court of Exchequer Chamber having decided as they did, I have always endeavored to follow their ruling." « Co. Litt. 56, b. » " Quam longum esse debet non definitur in jure, scd pendet ex discretione justiciariorum." XII.] OFFICE OF JUDGE AND JURY. »39 w more discretione true rule, in this respect, was laid down by Lord Mans- field when he said, with reference to the reasonable notice required to be given by the holder of the bill, when dishonored by the acceptor, to the drawer or indorser: " What is reasonable notice is partly a question of fact and partly a question of law. It may depend in some measure on facts; such as the distance at which the par- ties live from each other, the course of the post, &c. But wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to by every one for the sake of certainty." ' The meaning of Lord Mansfield in the passage just quoted is, that whenever from a given state of facts found by a jury to be true, the law has settled that a certain inference shall be drawn, it is the duty of the court to pronounce what that legal inference is, and not leave it to the jury to determine. In other words, if a statutory enactment, or uniform course of decisions, has put a par- ticular construction on proved or admitted facts, it is the province of the judge to declare that construction where the circumstances of the case are such that it applies to them. For example, the law has decided, that if the holder of a bill of exchange gives notice of its dishonor by the next day's post to a drawer or indorser living at a different place, this is a reasonable notice. " It is," says Abbot, C. J., " of the greatest importance to commerce, that some plain and precise rules should belaid down, to guide persons in all cases, as to the time withia which notice of dishonor of bills must be given. That time I have always understood to be the departure of the post on the day following that on which the party receives the intelligence of the dishonor." * This, then, being the rule, th- only question for the jury m such a case rindall v. Brown, I T. R. l68. ' Williams v. Smith, 2 B. and Aid. too. M ill ii'''ii m ill,,:'.. ,: la..! 240 PROVINCE OF JURY, [Ch. would be, whether the letter f;iving the notice was, in fact, posted not later than the following day. So, in other instances, it is for the judge applying his knowledge of the law to determine whether an alleged custom is reasonable or not ; but the facts, unless they are set forth with sufficient clearness and precision on the record, and are undisputed, must be first submitted to the jury to be found by them, before the judge can pronounce his opinion upon their legal efiect. " For issues may be joined on things which are partly matters of fact and partly matters of law ; and then when the evidence is given at the trial, the judge must direct the jury how the law is ; and if they find contrary to such direction, it is a sufficient reason for a new trial." ' The judgment from which these words are taken was de- livered in a case where the defendants in an action of trespass justified under a plea alleging a custom for the inhabitants of a town to walk and ride, at all seasonable times in the year, over certain arable land which had been used as a public place of resort. But the court said, that as it appeared on the face of the record that corn was growing on the land, this was sufficient to en- able it to determine that the time when the trespass was committed was not a seasonable time ; and the plea was held to be bad. So it was decided by the court, that a <:ustom for " the poor, necessitous and indigent house- holders," residing within a particular township, to cut and carry away rotten boughs and branches in a close was bad, on account of the uncertain description of per- sons in respect of whom the right was claimed ; and a verdict which found the custom to be as alleged, was set aside as being contrary to law.* Let us next take the case of an action brought for nec- essaries supplied to an infant. Is the judge or the jury > Per Curiam, in Bell v. Wardle, Willes, ao6. * Selby V. Robinson, a T. R. 758. XI I.J OFFICE OF JUDGE AND JURY. 241 to decide what are necessaries ? Formerly it seems to have been thought that this was exclusively the province of the judge : and in an old case, where a plaintiff sued a retainer of the Earl of Essex, " for the price of a satin doublet and hose with sleeves and gold lace, a velvet jer- kin and hose, and a fustian doublet and cloth hose," and the defendant pleaded infancy, to which the plaintiff re- plied, that the apparel was delivered to him for his nec- essary dress during the time of his service, whereupon the defendant demurred {i.e. denied that the replication was a sufficient answer in point of law to his plea) ; the court finding that the defendant was described in the declaration as a gentleman, " agreed clearly that the satin, lace, and velvet, were not necessary apparel for a gentle- men ; and therefore the action would not lie for so much but only for the residue." ' And at the present day, if the articles furnished are manifestly such as can not pos- sibly come under the category of necessaries, the ques tion would not be left to the jury at all, but the plaintiff would be nonsuited.* '* Suppose," said the court on one occasion lately, " the son of the richest man in the king- dom to have been supplied with diamonds and race- horses, the judge ought to tell the jury that such articles can not possibly be necessaries." * But, if the articles are not of this description, then the question arises whether they were bought for the neces- sary use of the infant, in order to support himself proper- ly in the degree, state, and station of life in which he moves ; for the word necessaries is not confined to such things only as are needed for the support of life, but em- braces what is fit and suitable to maintain a person in his particular grade ; and this is for the jury to decide.* * Gouldsborough, 168. » Brooke r v. Scott, ii Mees. and Wels. 67. * Wharton v. Mackenzie, 5. Q. B. Rep. 6l3. * See per Parke, B., in Peters a j.leming, 6 Mees. and Web. 47, 16 ■PMVi u* PROVINCE OF JURY. [Ch. Skction III. Mixed Questions of Law and Fact. So far the rule seems clear, and such as may be acted upon without much difficulty. But there are classes of cases where the circumstances are so numerous and vary- ing as to prevent the deduction of any definite inference of law ; and where the inference necessary to support a verdict must be drawn by the jury themselves from the facts in evidence before them. Such, for instance, is the question of whether a party has acted with due caution in a matter involving certain legal liabilities. It has been said that "fraud and covin is always a ques- tion of law; it is the judgment of law on facts and in- tents." ' But this is, perhaps, too broadly stated. It is no doubt true that there are cases in which the law im- plies fraud from certain facts, irrespective of any intention in the party to commit an actual fraud. Thus, if a tradesman conveys away the whole of his effects, this is considered an act of bankruptcy, as being fraudulent against his creditors. The conclusion here is one of law, and applies to all such assignments, whatever the object may be which the assignor has in view. So also, if he departs the realm to avoid a criminal prosecution for murder, this is an act of bankruptcy, because the neces- sary consequence must be to delay his creditors, although such may not be his intention at all. But there are many cases where the fraud, in law as well as in fact, de- pends wholly on the intention ; and this must always be a question for the jury. A more correct rule was given by Mr. Justice Buller, when he said, " Fraud is some- times a question of law, sometimes a question of fact, sometimes a mixed question of law and fact."* This phrase, " mixed question of law and fact," is fre- quently used, but it is deficient in that clearness and pre- ' Per Lord EUenborough, in Doe d. Otley v. Manning, 9 East, 64. * Eastwick v. Cailland, % T. R. 436. ■*T. [Ch. XII.] PRESUMPTIONS OF LA W AND FACT. 243 cision at which le^jal expressions should aim. Every complicafcd proposition may be resolved into several dis- tinct ones, each of a simpler nature than the general one — and upon the proper solution of these the answer to the whole depends. This answer is the result of all the particular answers to the separate questions into which the general one has been divided. Now each of these may be made to fall within its appropriate category, whether of law or fact, and ought to be answered either by the judge or by the jury accordingly. If the proposi- tion is carefully analyzed there ought to be no diflRculty in assigning the different elements of which it is com- pounded to their proper tribunal for determination. Some may be questions of law, and others questions of fact; but no one of them, if rightly framed, need or ought to involve both. After all have been answered, then the result is the inference to be drawn from the whole ; and must be submitted to the jury, or decided by the judge, according to the nature of the case. If the law has c*-- fined the legal import and quality of the facts found by the jury in answer to the separate questions, it is the province of the court to pronounce that as the conse- quence of their finding; but if the circumstances are such as to exclude the application of any general rule of law, the inference must be one merely of fact, and is to be drawn by the jury. So that here again the question ultimately is either one of law or one of fact, but not mixed up of both. The true meaning of the expression, therefore, really amounts to no more than this, that there are some questions which can not be properly answered without first determining some matters of fact and ascer- taining some point or points of law. Section IV. Presumptions of Law and Fact. In almost all cases where the evidence is what is called "44 PROVINCE OF JURY. [Ch. 1:1' %:.% circumstantial, that is, where the mind must be guided to a conclusion by observing the relation which certain pioved facts bear to each other, independently of any di- rect evidence of the ultimate fact which is the object of inquiry, it must be left to the jury to deduce the proper inference. " In a great portion of trials," said Lord Ten- terden, "as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given ; the man who is charged with theft is rarely seen to break the house or take the goods ; and in cases of murder, it rarel) happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or con- clusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contra- diction." ' Where the connection between certain facts is such that the on 2 may be generally inferred from the other with a great degree of probability, the inference is usually called a presumption ; and this is more or less cogent, according as experience has shown the more or less frequent co-existence of the phenomena in question. And, as was well said by the eminent judge who has just been quoted, " It is one of the peculiar advantages of our jurisprudence that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men conversant with the affairs and business of life : and who know that where reasonable doubt is entertained, it is their duty to acquit ; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement." I have already pointed out the peculiar danger attaching to this kind of evidence,' and need only add here that in crimi- nal cases the safest rule in applying it seems to be to consider not only whether it sufficiently supports the 'R. V. Burdett, 4 Barn, and Al. 161. ' See ante, pp. 203--4. [Ch. XII.] PFESUMPTIONS OF LA W AND FACT. 245 hypothesis of guilt, but also, whether it is inconsistent with the hypothesis of innocence. But there is a somewhat larger class of presumptions, corresponding to the praesumptiones juris of the Roman law, where the law itself presumes the xi?.2nce of cer- tain facts until the contrary is pro^ .i. These cases therefore fall within the consideration of ? jury only if evidence is offered to rebut the legal ^/resumption. If not, the Utter is deemed to be, and is acted on by the court as conclusive. Such is the presumption that a per- son who has been abroad for the space of seven years, and has not been heard of within that time, is dead : that a child born in wedlo( k is legitimate : that official acts have been duly execute ^ ; that a person in posses- sion of land is seized in fee : as against the writer, that a letter was written on the day on which it is dated ; that the holder of a bill of exchange or promissory note gave value for it. Such also was the rule of the Roman law where two persons died very nearly at the same time, and there was no evidence to show which survived the other.'- Besides these there is a limited class of presumptions, the praesumptiones juris et de jure of the Roman law, which are absolute and conclusive in their nature, and may not be rebutted by evidence to the contrary.* They are in reality valid conclusions of law, and, therefore, can ' No definite rule has been adopted by our own law on this subject. See the case of General Stanwix in R. v. Dr. Hay, i W. Black. 641. Where a father and son, joint tenants, were hanged in the same cart, and the ques> tion was whether the wife of the son was entitled to dower, the jury found that the son survived the father, as he appeared to have struggled the long- est. Cro. Eliz. 503. ^ Conjectura vcl a Lege inducitur vel a Judice. Quae ab ipsa lege inducitur, vel ita comparatur, ut probationem contrarii baud admittat, vel ut eadem possit elidi. Priorem doctores prsesumptionem juris et de jure ; posteriorem prsesumptionem juris appellant. Heinecc. Elein. Jur. Civ. — The Lex here mentioned corresponds to our " Court " ; the Judex to our " Jury. » 346 PROVINCE OF JURY [Ch. not be submitted to the cognizance of a jury. They are founded on reasons of convenience, and amount to no more than this, that the law has said that certain con- sequences shall be deemed to flow from given premises, although no such consequences may have, in fact, resulted from them. Such was the old rule of law that a child born of a mother whose husband lived within the realm, or inter quatuor maria, as it was called, was con- clusively held to be legitimate. So at the present day, if a man marries a woman visibly pregnant, it is a con- clusive inference of law that the child afterwards born is legitimate. Formerly this class of presumptions was more numerous than in latter times, when the tendency has been to adopt a more rational rule, and consider them conclusive only in absence of proof to the con- trary. But there are several statutes which proceed upon the old principle. Such is that which interposes a bar to the recovery of debts after a certain period has elapsed, upon the presumption that payment has been made ; and that which, in cases of prescription prevents a disturbance of the right by presuming a grant from the owner of the fee. Section V. Utility of Written Pleadings. The English system of pleading is, in theory, admir- ably adapted for civil trials by the intervention of a jury ; or perhaps it would be more correct to say, it has grown as an offshoot out of that system. For when the true principles of pleading are kept in view, a more efficacious instrument for enabling the jury to discharge their peculiar functions can hardly be imagined. The plaintiff makes a written statement of his cause of com- plaint, and to this the defendant puts in an answer, which consists, at his option, either of a denial of the facts alleged on the other side, or an admission of them Wk ■ -•^.."i;';.fV^'iSi,''i:ii.iyi^ii^e^ [Ch. XII.] UTILITY OF WRITTEN PLEADINGS. 247 with the addition of some other facts which, in his opinion, justify his conduct. Or he asserts, that taking all that is said by the plaintiff to be true, it gives the latter no legal right of action. In this case he is said to demur, and the question is obviously one of law, ready at once for the- decision of the court. But if there is no demurrer, then the plaintiff must either reply or demur to the fresh matter of fact alleged by the defendant ; and here again the defendant must either rejoin in like manner as he answered before, or he must demur. And so the pleadings proceed until the dispute between the parties ultimately resolves itself into the assertion of some fact or facts, by the one side, which are denied by the other, and it is the province of the jury to determine by their verdict which is right ; or else a question of law is raised for the decision of the court. No matter how complicated the transaction may have been, it will gen erally be found, that the real points in dispute are few, and it is of immense importance to have these distinctly evolved, and presented for decision in a precise and categorical form. This is done by the preliminary oper- ation of written pleadings, which have fallen into dis- repute solely on account of the grievous abuses which have crept into and deformed the system. If the true principle of pleading were kept steadily in view, and the system freed from the oppressive technicality which now disgraces it, it would well deserve the eulogium passed upon it by Sir Thomas Smith, in his '' Commonwealth of England," written in the reign of Elizabeth. " Having seen," he says, " both in France and other places, many devices, edicts, and ordinances how to abridge process, and to find how that long suits in law might be mads shorter, I have not perceived or read, as yet, so wise, so just, and so well-devised a mean found out as this is by any man among us in Europe. Truth it is, that when this fashion hath not been used, and bv those £0 whom 248 PROVINCE OF JURY. [Ch XII. it is new, it will not be so easily understood, and, there- fore, they may peradventure be of contrary judgment ; but the more they do weigh and consider it, the more reasonable they shall find it." When trial by jury in civil cases was introduced into Scotland, in the year 181 5, it was immediately discovered that some such mode of preparing the issues of law and fact was indis- pensable. To leave the whole circumstance of an in- volved and intricate transaction at large to the jury» without telling them on what specific points their opinion was required, was to impose upon them a task to which they were inadequate ; and error and confusion would have been the result. Hence it became necessary, as we shall presently see, to frame distinct issues, in the shape of questions, to be submitted to the jury, and these questions, when properly drawn, embrace seriatim all the facts really in dispute.' ' Qualifications of Commonyurors, and Exemptions from serving on yurie* in England. Stat 6 Geo. IV. c. 50, g§ i, 2 enacts : " That every man except as hereinafter excepted between the ages of twenty-one years and sixty years residing in any county in England, who shall have in Ms own name or in trust for him within the same county ten pounds for thd year above reprizes in lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or in rents issuing out of any such lands or tenements,, or in such lands, tenements, and rents taker, together in fee simple, fee tail,. or for the life of himself or some other person, or who shall have within the same county twenty pounds by the year above reprizes in lands or tenements- held by lease or leases for the absolute term of twenty-one years or some longer term, or for any term of years determinable upon any life or lives,, or who being a householder shall be rated or assessed to the poor rate, or to the i< habited house duty in the county of Middlesex on a value of not less than thirty pounds, ur in any other county on a value of not less than twenty pounds, or who shall occupy a house containing not less than fifteen windows, shall be qualified and shall be liable to serve on juries for the trial of all issues joined in any of the King's Courts of Record at Westminster, and in the superior courts, both civil and criminal, of the three counties palatine, and in all courts of assize, nisi prius, oyer and terminer, and jail delivery, such issues being respectively triable in the county in which every man so • qualified respectively shall reside, and shall also be qualified and liable to serve on grand juries in court= of sessions of the peace, and on petty juries CHAPTER XIII. THE JURY SYSTEM IN SCOTLAND. Section I, Jury Trial in Civil Cases. IF we could be quite sure that the book called " Regiam Majestatem " gives a true account of the old law of Scotland, and was generally received as an authority in the courts there, we might safely assume for the trial of all issues joined in such courts of session of the peace, and triable in the county, riding, or division in which every man so qualified re- spectively shall reside, and that every man (except as hereinafter excepted)^ being between the aforesaid ages, residing in any county in Wales, and being there qualified to the extent of three- fifths of any of the foregoing qualifica- tions, shall be qualified and shall be liable to serve on juries for the trial of all issues joined in the courts of great sessions, and on grand juries in courts of sessions of the peace, and on petty juries for the trial of all issues joined in such courts of sessions of the peace in every county in Wales in which every man so qualified as last aforesaid respectively shall reside. II. " Provided always that all peers, all judges of the King's Courts of Record at Westminster, and of the courts of great session in Wales, all clergymen in holy orders, all priests of the Roman Catholic faith who shall have duly taken and subscribed the oaths and declarations required by law, all persons who shall teach or preach to any congregation of protestant dis- senters whose place of meeting is duly registered, and who shall follow no secular occupation except that of a schoolmaster, and producing a certificate of some justice of the peace of their having taken the oaths and subscribed the declaration required by law, all sergeants and barristers-at-law actually practicing, all members of the society of doctors of law and advocates of civil law actually practicing, all attorneys, solicitors, and proctors duly admitted in any court of law or equity, or of ecclesiastical or admiralty jurisdiction, in which attorneys, solicitors, and proctors have usually been Admitted, actually practicing, and have duly taken out their annual certifi- cates, all officers of any such courts actually exercising the duties of their ill 111 250 THE JURY SYSTEM IN SCOTLAND. [Ch. that trial by an assize of twelve jurors in civil cases was almost coaival in Scotland with the establishment of that institution in England. But it is doubtful whether the book in question is what it professes to be. The best lawyers do not regard it as an authority, and we must receive with caution its statements as to the proceedings by assize in Scotland in ancient, times.' respective offices, all coroners, jailers, and keepers of houses of correction, all members and licentiates of the Royjil College of Physicians in London actually practicing, all surgeons being members of the Royal College of Surgeons in London, Edinburgh, or Dublin, and actually practicing, all officers in his majesty's navy or army on full pay, all pilots licenced by the Trinity House of Deptford, Stroud, Kingston-upon-Hull, or Newcastle- upon-Tyne, and all masters of vessels in the buoy and light service employed by either of these corporations, and all pilots licensed by the lord warden of the Cinque Ports, or under any act of parliament or charter for the regulation of pilots of any other port, all the household servants of his majesty, his heirs and successors, all officers of customs and excise, all sheriffs' officers, high constables, and parish clerks, shall be and are hereby absolutely freed and exempted from being returned, and from serving upon any juries or inquests whatsoever, and shall not be inserted in the lists to be prepared by virtue of this act as hereinafter mentioned ; provided also that all persons exempt from serving upon juries in any courts aforesaid, by virtue of any prescription, charter, grant, or writ, shall continue to have and enjoy such exemption in as ample a manner as before the passing of this act, and shall not be inserted in the lists hereinafter mentioned." ' The date and authenticity of the Regiam Majestatem have been a sub- ject of much controversy amongst Scotch lawyers. All admit that it is so identical with Glanvill's treatise, that the one must have been copied from the other. But the question is. Which is the original and which is the copy? Skene Dalrymple, and other writers of eminence, declare themselves in favor of the prior claim of the Scotch work, and maintain that it is a genuine code of the laws of Scotland, promulgated by David L, who reigned from ii24to 1153. On the other hand, Craig, Lord Stair, Lord Hales, and others, are of opinion thai the Regiam Majestatem was copied from Glan- vill, interpolated with matters relative to Scotland, and imposed upon the nation as a capitulary of one of their ancient kings. See Roag's Lectures on the Law of Scotland (Edinburgh, 1822), II. 60-64. This writer thinks it evident that the Scotch work was copied from Glanvill, " and afterwards adapted to the meridian of Scotland by the insertion of so many chapters and the interpolation of particular parts;" and he says that the laws of Scotland and England were nearly the same in the time of Henry IL when XIII.] IN CIVIL CASES. 25^ It is transparently clear that the " Regiam Majesta- tem " is the same work as Glanvill's treatise, " De Legi- bus," and that the differences which occur between the two versions are merely colorable and verbal. Indeed, the very words of the English author are for the most part used in the former work, to describe what pur- ports to be the proceeding by an assize in Scotland. Thus, according to the '* Regiam Majestatem," the claimant of land there, at the close of his pliant, de- manded an assize in the following terms : " I ask the assize of that village, and placing myself in the protec- tion of God, and of the assize of the village, on account of my petition, and of the persons known to me as respectable, that they may not proceed in the said case." ' Twelve lawful men, de vicineto vel dc curia, were there- upon chosen, who swore in the presence of the parties, ** that they would recognize which of them had the better right in his demand." The provisions with re- gard to the original selection, and if necessary, addition of jurors who knew the facts in dispute, are the same in the two treatises, as also the definition of the kind of knowledge which was deemed sufficient. This will plainly appear from the following extract from an ancient vernacular translation of the original Latin, of the Scottish treatise : "The assize passand ford ward, to take inquisition of the mater; either the richt of the parties is well knawn to the assisours, or some of them his knawledge thereof, Glanvill wrote his treatise. It seems that commissioners had been more than once appointed by the old Scotch parliaments to revise the Regiam Majestatem, and other ancient books, but no report was ever made by them ; nor was any parliamentary ratification given to their labors. " So that," says Professor Erskine, in his " Principles of the law of Scotland," " none of these remains are received as of proper authority in our courts." The Regiam Majestatem is so called from the two woids with vhich it begins. ' Peto assisam talis villse, et pono me in Deum et assisam vilise super petitione mei, salvis mihi suspectis personis, ne procedant in dicta causa. 252 THE JURY SYSTEM IN SCOTLAND, [Ch. and some are ignorant, or all ignorant. Gif nane of them knawes the trueth, and in the court testifies the samine be their great eath ; other persons sail be chosen in their place, untill sic men be chosen quha knaws the veritie. Bot gif some of them knawes the trueth, and some knawes nocht ; they quha are ignorant being repelled, others sail be admitted be the court, untill twelve men be found all aggreand together. All the assisours sail sweare, that in that mater or debate, vpon the decision quhere they are chosen ; they sail nocht laine nor conceale the trueth wittinglie, nor na falset say. It is required of them wha sweares, to the effect they may have knawledge of the mater quhilk is in question, that they knaw the veritie, be sight, or be hearing of themselves, or be narration of their fathers, or be sic sure tokens and arguments to the buhilk they will give, or may give, als great faith as to- their awin proper (doings or sayings).'" When the verdict was given, the presiding judge (called Dumester) pronounced the doom or judgment of the court, either for the demandant or the tenant (defendant)r as the case might be. If the jurors were accused of hav- ing sworn falsely, this was tried by an " attaint," that is, a jury of twenty-four lawful men ; and if found guilty they were deprived of all their personal property, impris- oned for a year at least, and rendered forever infamous. This punishment was confirmed by various penal statutes, passed in the reigns of James III. and James IV." The same rules that we find in Glanvill were laid down with respect to the judicial combat, where the defendant pre- ferred that mode of trial, or consanguinity between the parties, prevented the assize.' ' Reg. Maj. Book, I. c. I2. ' Jac. 3 Pari. VI. c. 47 ; Pari. Vlll. c. 63. Jac. 4. Pari. III. c. 35. ' Reg. Majest. Lib. in. c. 29. Quon. Attach, c. 31. It was enacted by Stat. Jac. 6 Pari. xiv. c. 12, that no person without the king's license should 6ght any " singular combat," under pain of death and confiscation of all his movables. XIII.] IN CIVIL CASES. 253 We must not, however, confound this mode of trial with that per pares, which, as Lord Ivory says, " contin- ued to prevail in the whole civil courts of Scotland, down to the old court of the Session." ' This writer speaks of the trial per pares as trial by jury, but I believe this is a mistake. The reasons for maintaining that the judicium parium was quite different from the jury system, have been detailed in a previous part of the present work, and they apply equally to the trial per pares in Scotland. The latter were nothing more than the suitors, or homage of the baronial and other territorial or local courts, and they discharged the functions of both judge and jury, being, in fact, the whole court presided over by an officer who seems to have been closely analogous to the lawman of the Swedish and Norwegian tribunals. Lord Ivory himself admits that the province of the judge seems only to have been to preside in court, and •' informe the soytours (suitors,) gif they be ignorant, of the law anent wordes (interlocutors) or decreits." * And, what still more strongly proves the point I con- tend for, he quotes a passage from Glassford, who says that the judgment or sentence of the suitors " was not merely a verdict, making way for sentence by the judge, but was the interlocutor or judgment of court on the whole matter referred." But with reference to criminal trials the word *' peers" is used in a more general sense in the old Scotch law, " that na man should thole judgment, or be judged be ane man of inferior estate, than his awin peir; ihat is, ane earle, be earles ; ane baron, be barons ; ane vavassour, be vavassours ; ane burgess, be burgesses. Bot ane man of inferior estate may be judged by men of greater estate." But independently of the trials before the suitors of the baronial and other courts, and without insisting upon the • Form of Process, ll. 272. * Quon. Attach, c. 16 § 5. i..t<4>„^,lfe,_,ji- \^-. II lf:;| m 1*1 ft! f'^!! ll I li 154 7'//Jt JURY SYSTEM IN SCOTLAND. [Ch. authority of the Rcfjiam Majestatcm, there undoubtedly existed in Scotland in ancient times trial by jury in some cases of a civil nature, and its form seems to have closely resembled that which prevailed in England. Thus, Spottisvvood says, that in those days all acts of spolia- tion, intrusion, and others of that nature, were precog. nosced by a verdict of twelve men best knowing the land, whose declaration being presented to the judges they used to determine ; and he cites from a Book of Decrets and Acts, a case in the year 1469, respecting the right to c^ .tain lands, where the parties of their own consent named twelve persons, who, being sworn, gave their " de- liverence," i.e. verdict, as follows : '• We decree and deliv- er after our knowledge and understanding, that in no time bygone we heard ever that the laird of Samuelston had possession of the said lands with mannor, pasture, &c.; and that Nicol and his predecessors have ever been in peaceable possession of these lands." After which de- liverance, says Spottisvvood, the Lords decerned Samuels- ton to desist therefrom in time coming.' Moreover, we learn from Lord Kaimes," that the an- cient records of the sheriffs and other inferior courts of Scotland when searched, prove that civil causes in them were tried by juries ; and there is an Act of the year 1587, expressly appointing molestations to be tried by a jury before the sheriff. The same writer tells us, that, conjecturing that the old form of jury trials might wear out more slowly in shires remote from the capital, he made diligent search, and discovered a book of the sher- iff's court of Orkney, beginning July 3, 1602, and ending August 29, 1604, in which all the processes, civil as well as criminal, were tried by juries. And the form of procedure in Scotland known by the name of "•service of heirs," has always required the aid • Ivory's Form of Process, II. 274. * Historical Tracts, Vol. i. 273, 274. [Ch. XIII] IN CIVIL CASES, 255 )ubtedly in some : closely Thus, r spolia- precog- ;he land, ;cs they Decrcts right to consent leir " de- nd deliv- t in no nuelston pasture, ver been kfhich de- Sam uels- the an- ourts of in them the year ried by a us, that, jht wear ipital, he the sher- d ending 1 as well 'n by the i the aid of an inquest, or jury ; whose number, says Erskine, '• has alway consisted of an odd number, that an equality of voices might not make the verdict doubtful." ' This number has for a very long period been fixed at fifteen. Also in all cases where a person was to be declared in- capable of acting from *' furiosity," or fatuity, or a widow's right to dower was to be ascertained, and in striking the " fiars"of the different counties, the verdict of a jury has been indispensable. Unlike, however, what happened on this side the border, no general development of the jury system in civil trials took place in Scotland ; and it gradually fell into such complete disuse and oblivion, that it came almost to be a question whether it had ever existed there at all. Lord Kaimes endeavors to account for this result by the following theory. He says, that the maxim of our forefathers seems to have been, that though questions of law might be trusted to a single judge, matters of proof (/>., disputed facts) are safest in the hands of a plurality ; but where the judges of a court were sufficiently numer- ous for this purpose, there was no need of the interven- tion of a jury.* The Court of Session in Scotland was instituted in 1532, and consisted of fifteen members; the object being to relieve the king and council of the load of business growing daily upon them. "One thing," says Lord Kaimes, "we are certain of, without ' Inst. Book in. c. 8. ' Historical Tracts, Vol. i. 270-273. Few will be disposed to agree with Lord Kaimes' view where he says : " Juries were never employed in any British court where the judges were sufficiently numerous to act the part of a jury. Juries, for example, were never employed in parliament, nor in processes before the king and council. And in England when tlie court last named was split into the King's Bench, the Exchequer, and the Common Pleas, I am verily persuaded that the continuance of jury trials in these new courts was owing to the following circumstances, that four judges only were appointed in each of them, and but a single judge in the circuit courts." 2 5 6 T/fF. JURY S YS TEM IN SCO TL A ND. [Ch. the necessity of recurring to a conjecture, that the daily council, which camo in the place of the session, and equally with it consisted of many judges, had not from the beginning any jury trials, but took evidence by wit- nesses, and in every cause gave judgment upon the proof, precisely as we do at this day. These facts con- sidered, it seems a well-founded conjecture, that so large a number of judges as fifteen, which constitute our pres- ent Court of Session, were appointed with a view to the practice of the preceding courts, and in order to prevent the necessity of trying causes by juries. In the former court, viz., the daily Council, we find it composed of bishops, abbots, earls, lords, gentlemen, and burgesses ; in order, probably, that every man might be tried by some, at least, of his own rank ; and in examining the records of this court, we find at first few sederunts, but where at least twelve judges were present. This matter is still better ordered in the present Court of Session. Nine judges must be present to make a quorum ; and it seldom happens in examining any proof that the judges present are under twelve in number. This, I am per- suaded is the foundation of a maxim which among us passes current, without any direct authority from the regulations concerning the jurisdiction of this court. It is said to be the grand jury of the nation in civilibus, and it is supposed that its privilege to take proof without the aid of a jury proceeds from this branch of its con- stitution." It seems to me to be an answer to this ingenious theory, that in criminal trials in Scotland juries have never been discontinued. But if the fact of a court being composed of judges sufficiently numerous to act the part of a jury satisfactorily accounts for the disuse of the latter, we should certainly expect to find, that after the institution of the Court of Session it was no longer employed in criminal cases. For surely the XIII.] IN CIVIL CASEX »57 judges of that court were as competent to deal with the proof of matters of fact in criminal as in civil trials. The rules of evidence are the same in both cases, and the object in view Is alike the same ; namely, to ascertain the truth where there is a conflict of proof. Let us, however, now turn our attention to the system iis it exists at the present day. In the year 1787, Lord Swinton, one of the judges of the Court of Sessions, pub- lished a pamphlet, recommending the introduction of jury trial into Scotland, in certain specified civil actions ; and Lord Mansfield, who had retired from the chief jus- ticeship, and was then upwards of eighty years of age, was applied to for his opinion. This great jurist accord- ingly penned, for the private information of Lord Hen- dcrland, another of the Scotch judges, the following weighty remarks ** every line of which," says Lord Camp- bell, " is worth a subsidy." ' *' Great alterations in the course of the administration of justice ought to be sparingly made, and by degrees, and rather by the court than by the legislature. Tlie partial introduction of trial by jury seems to be big with infinite mischief, and will produce much litigation. " Under the words proposed, it may be extended al- most to anything ; reduction, restitution, fraud, injury. It is curious that fraud, which is always a complicated proposition of law and fact, was held in England as one of the reasons for a court of equity, to control the incon- veniences of a jury trying it. The giving it to the de- sire of both parties might be plausible; but where only one desires that mode of trial it is a reason against grant- ing it, because many causes and persons have popular prejudices attending them which influence juries. A great deal of law and equity in England has arisen to regulate the course and obviate the inconveniences ' Lives of the Chief Justices, Vol. li. p. 555. X7 2 5 8 THE JURY SYS TEM IN SCO TLA ND. [C h . %'\ which attend this mode of trial. It has introduced a court of equity distinct from a court of law, which never existed in any other country, ancient or modern ; it has formed a practice by the courts of law themselves, and by acts of parliament, bills of exceptions, special verdicts, attaints, challenges, new trials,' &c. " Will you extend by a general rererence all the law and equity now in use in England relative to trials by jury? The objections are infinite and obvious. On the other hand, will you specify particularly what their sys- tem should b(; ? The Court of Session and the judges of England, added together, would find that a very diffi- cult task." When Lord Grenville was minister, in i8o6, he brouglit in a bill for extending trial by jury to civil causes in Scot- land. He introduced the measure by an able speech, and the bill was printed and circulated throughout the country. His plan was to engraft the jury system on the Court of Session ; and he was led to believe that the or- dinary mode ot pleading in that court by summons and defenses would at once afford the means of bringing cases to an issue fit to be tried by a jury. At this time the arrear of appeals from the Court ot Session to the House of Lords had become overwhelm- ingi and hence the necessity, not only of clearing off that arrear, but also of devising means, if possible, for prevent- ing future accumulation. Many of these appeals turned upon merequestionsof fact, the mode of examining which produced immense volumes of evidence, much of which was irrelevant, and much inadmissible. It was thought, ' Lord Campbell adds : " These principles were unfortunately overlooked in the year 1807, when jury trial exactly according to the English model, with its unanimity, special ve/dicts, and bills of exceptions, was introduced into Scotland. The experiment. I am afraid, lias proved a failure, and Lord Mansfield's predictions have been fatally verified." This, as will hereafter appear, is very different from the opinion of Chief Commissioner Adam. derived from the result of his own extensive experience. ■^ ^■H WM ■— XIII] IN CIVIL CASES. 259 therefore, that if such qurstions were tried by a jury, many cases would not be appealed at all, and the judicial machinery of the Scotch courts would be materially im- proved, especially in respect of the law of evidence. Lord Grenville, however, soon afterwards, with his min- istry of " All the Talents," was removed from power, and the bill was dropped. The subject was again revived by the Report of the Law Commission, appointed in 1808, in which a modified opinion was given in favor of some measure of a similar kind. A majority of the commissioners thought " that under proper regulations it might be for the utility of the subjects within Scotland to introduce this mode of trial into the proceedings of the Court of Session to a certain extent, by conferring on the court, as now divitied, a power to direct an issue or issues to be tried in any cause, upon a question or questions of fact, by a special order to be made for that purpose ; and also to direct that the same should be tried either before a judge or judges of the Co'irt of Session, or before the Court of Justiciary, or before the Court of Exchequer, as the Court of Session in its subdivision should deem most expe- dient." No practical result followed from this suggestion until several Scotch appeals in 18 12, which turned upon facts alone, caused considerable difficulty and embarrassment in the House of Lords, and directed the attention of those most conversant with appeals to trial by a jury, as a possible remedy for the evil. At that time Mr. (after- wards Chief Commissioner) Adam had the largest amount of this kind of practice, and he was led particu- larly to consider the subject, with a view to some prac- ticable measure. Ultimately he drew up a paper, iti which the whole question wrs" reviewed, and this was submitted by him to Lord Chancellor Eldon. A draft of a bill was afterwards prepared, which was brought into a6o THE JURY SYSTEM IN SCOTLAND. [Ch. Parliament by Lord Eldon in i8i5,and before the end of the session it became law. The Act of Parliament is 55 Geo. III. c. 42 ; and as the measure was intended only as an experiment, the term of its operation was limited to seven years. This act provided for the establishment of a court and the appointment of one chief and two other judges to be called "The Lords Commissioners oftiie Jury Court in Civil C'luses," whose functions weie limited to the trial of issues directed by the Court of Session and sent to the Jury Court. New trials were to be allowed by the Court of Session on the grounds of the verdict being contrary to evidence — misdirection of the judge — undue admission or rejeccion of evidence — excess of damages — res noviter veniens ad notitiam (that is, evidence discovered subse- quent to the trial which could not have been previously foreseen or known), or " such other cause as is essential to the justice of the case," -but the granting or re- fusing a new trial was not to be subject to review or ap- peal to the House of Lords.' Eiils of exceptions were also allowed, and in fact the object of the act was to "give t"' Scotland the form, the machinery, the principles, the rules, and the practice of the common-law courts of Eng- land in respect to all that related to the trial of matters of civil right by jury." * But at the sam ; time no altera- tion whatever was made in the municipal law of Scot- land as regarded the rights of the parties in a suit. The jury were to consist of twelve jurors drawn by ballot, and their verdict must be unanimous; but it was wisely provided that if a jury impaneled shall not agree ' This power of granting new trials was afterwards, by 59 Geo. III. c. 35, § 16, exclusively vested in the Jury Court. * Adam on Trial by Jury, p. 241. No mention is made in this Act of special vt rdicts, but tlicy were redognized as existing in practice in Scotland by 59 Geo. III. c. 35, § 20. Chief Commissioner Adam says it was unnec- essary to introdu e them by legislative enactment, as being *' inherent to trial by jury." il«B|pifPppP»iHJ|.<^,P XIII.] IN CIVIL CASES. 26J in their verdict within the space of twelve hours (now limited to six) from the time they shall be enclosed to consider of their verdict, they shall be discharj^ed by the court from delivering their verdict, unless they them- selves apply for further time ; and the Court of Session may thereupon order another jury to be summoned to try the cause de novo. The form of oath to be adminis- tered to the jurors was prescribed by the act, and is as follows : " You swear by God, and as you shall answer to God at the great day of judgment, that you shall we!' and truly try these issues (or this issue), and a true verdict give ac- cording to the evidence." The original act was amended, and further provisions applicable to the subject, were introduced by 59 Geo. III. c. 35, and afterwards by 6 Geo. IV. c, 120, and 13 and 14 Vict. c. 36, which last acts contain regulations resp'^ct- ing the mode in which pleadings are to be drawn and is- sues frqimed. Also by 1 1 Geo. IV. and i Will. IV. c. 69 (1830), trial by jury in Scotland was united with the ordinary jurisdiction of the Court of Session, and the Jury Court established by 55 Geo. III. c. 42, ceased to exist. It was not likely that so great an innovation could be introduced without strong prejudice and opposition on the part of a nation so tenacious of its usages as the Scotch. One of the ablest of their lawyers has thus de- scribed their feelings on the subject : ' •* The people were taught to believe that all their native jurisprudence was in danger of being subverted by the introduction of English law, and this raised an obstinate spirit of resis- tance against whatever was peculiarly English. The necessity of unanimity in juries, with the number of twelve instead of fifteen, proved, for a long time, a great ' " Examination of the objections stated against the Bill brought into the House of Lords in the 6 Geo. IV." By Professor Bell. a62 THE JURY SYSTEM IN SCOTLAND. [Ch. obstruction to the adoption of jury trial as established in England. Even when those difficulties were at last surnnounted, fears for the law still furnished the honest a pretended ground of much opposition, although the case of perfect adaption to their purpose, with which even these English pecularities have been found to work among us, may be a lesson against violent prejudice and outcry in matters of this kind. " It was not yet perceived that a new sort of knowl- edge — a more correct analysis of the substantial grounds of action and defense — a better foresight of the general issue, more accurate habits, more vigilant attention, were necessary than before. Every one was offended that he ■was not held as competent now to conduct judicial pro- ceedings as formerly, and yet could not help feeling that error, and embarrassment, and danger attended every step of their proceedings. It was difficult for the new system to become popular." Independently of prejudice and dislike, a great and serious difficulty in the way of successful experiment lay in the nature of Scotch pleadings. We must remember that the English system of pleading has grown up side by side with the jury. It has been modified by the ex- igencies of the tribunal to which it is adapted, and has for centuries been molded in a form, the professed ob- ject of which is to evolve clearly and distinctly the issues of fact to be determined by the jury. Most faulty, in- deed, the system has become, and legal subtlety has rendered it too often an engine of odious chicane, which is a disgrace to English jurisprudence, but in theory it is what I have previously described ; and if its true pur- por-c had been always kept in view, it would not have fallen into the bad re,^"?-r? under which it now deservedly surfers, and whin', i. wiii be c ifficult for it to survive. B'.it in Scotland thv i', wa.5 !» ' apparatus of pleading ready to m'ci the wa.n 's ., plaintiff, corresponding exactly to the Gv cckievm A icohoov). This, until very lately, in technical language must have been " libeled," that is, have all the grounds of action stated in it, and causes of action of a very heterogeneous nature may be included in the .same summons.' But, now, by a recent statute (13 and 14 Vict. c. 36), it is provided that the summons shall not contain any statement whatever of the ground§^ of action: but the allegations in fact which form those grounds shall be set forth in an articulate condescendence to- gether with a note of the plaintiff's pleas in law, and these shall be annexed to the summons and be held to constitute part of it ; and the defenses {i.e. pleas) to such summons sliall be in the form of articulate answers to the condescendence. Also, where necessary, there shall be appended a statement of the alleviations in fact on which the defendant rests his defense, and a note of his pleas in law. Previously to this act the instrument called " de- fenses," too frequently deserve the description given of it by Cliief Commissioner Adam, as " a vague oratorical pleading;" — and it contained a reservation to add and eik afterwards, if necessary. As it was formerly almost impossible to collect with sufficient certainty from the summons and defenses what were the real points in dis- pute between the parties, it became usual for the plain- tiff to put in a condescendence or specification of facts on •lis part, which was followed by answers on the part of ' Thus, sending a challenge to Tight a duel (an actionable offense by the law of Scotland), assault and slander have been united in the same action. Haslop V. Staig, i Murray, 16. And of another defamation, adultery and assault. Kirk v. Guthrie, i Murray, 271. 264 THE JURY SYSTEM IN SCOTLAND. [Ch. the defendant. "A condescendence should disclose with precision and in full all the facts of the case, and conse- quently all the grounds of action on which the pursuer relies. The answers to the condescendence on the part of the defender should deny with precision the allegaVions of the pursuer, and should aver on his own part all those facts and grounds of defense on which he relies." Chief Commissioner Adam adds, " Supposing these last-men- tioned legal instruments to be executed strictly and cor- rectly in pure averment of fact, it is hardly possible to conceive any pleadings better adapted to secure a correct distribution of justice." And, I believe, the effect of the late act has been greatly to improve the form of the con- descendences and defences. This mode of pleading was the ancient form adopted in the Court of Session, when trial by jury in civil actions formed no part of the judicial system of Scotland. But however perfect it might be in theory, it has been found defective in practice. And the same writer, who has eu- logized the principle on which the instruments ought to- be framed, thus describes their actual operation: "The language of pure averment has not been observed, the style of the paper is argumentative, observations on the bearings of the facts are introduced, legal reasoning i& superadded, material facts are often omitted, or an unfair gloss put upon those which are stated, owing to the at- tention being withdiiiwii from fact to argument. Thus the security against surprise Is diminished, and repeated ninendmentH of the condescendences and answers become \iecess;\ry, creating at once much delay and great addi- tional expense. Thus the frame of these instruments, as here described, present difficulties of the most serious na- ture In preparing the question or questions for trial by • It jury. To meet this difficulty, and obtain a means of evolving with precision the real facts in dispute, the Scotch Jury XIII.] IN CIVIL CASES. 265 Act (55 Geo. III. c. 42) provided that the Court of Ses- sion should direct an issue or issues to be tried. It there- fore became necessary to frame the statements of the parties in that shape; and for this purpose advocates were appointed to discharge the office of Clerks of the Issues, and raise the proper questions out of the pleadings and exhibits in the cause, acting under the superinten- dence of a judge, whose duty it was to revise and consider with them the form of the issues, and to sign them when finally settled. The counsel and agents of the parties at- tended the clerks and the judge, "discussing the subject, not in formal argument, but in quiet conversation." ' In such a system it is obvious that expedition will princi- pally depend upon the nature and extent of the admis- sions which each party is disposed to make ; and on this subject the late Chief Commissioner says, " There is one part of the proceedin:^ which will always require deliber- ation, namely, the obtaining the admissions which pre- face the issues. Admissions save much time at trials, secure against failures in matters of formal proof, and save much expense to parties. When the agents and their employers meet to settle admissions, the proceed- ing is always abortive ; but when the clerks interpose, when they reason with the parties, and show them that no advantaije can be taken by the one over the other, the obtaining admissions very rarely fails of success," Now, however, by the recent Act, the office of Issue Clerk and that of Jury Clerk are abolished, and their du- ties are performed by any of the clerks of Session. And where in the course of any cause before the Court of Session matter of fact is to be determined, and an issue is to be adjusted with reference thereto, the plaintiff must prepare and deliver ("lodge in process") the issue he proposes, and the defendant any counter issue required by the nature of his defense. And the Lord Ordinary ' Adam on Trial by Jury, 21. : ' 'M 1^. >66 r^^ /6^/'K SYSTEM JN SCOTLAND. [Ch. before whom the cause depends appoints the parties to attend him for the adjustment of the issues; but if at a second meeting they are not adjusted and settled by consent, he reports the matter to the Inner House, or court, by whom the issues are then adjusted. The system of pleading, therefore, in Scotland, to meet the requirements of the system, is, when properly drawn, shortly as follows. A correct technical summons with condescendences ; correct technical defenses, containing answers in which the admissions and denials are distinct and articulate ; and when there are separate defenses, the facts on which they rest must be averred simply and correctly and without argument. Afterwards in order to frame an issue, whether general or special, the contents of the c ondescendencc and answers, together with those of the exhibits, are drawn to a point or points, and put in the shape of a question as a general ibsue, or of ques- tions as special issues, as the case may admit or require. The form of such an issue (or issue of style as it has been called)' in the case of an action brought by a father in conscquo'ice of a cart driven by a servant of the defend- ant running over his child on the liighway, is as follows : * Ij; being admiticd that William Wilson was servant to the defendant, Thomas Ilarvie, from Whitsunday to Martinmas, 1826 : It being also admitted that on the i6th day of September, 1826, in the street in the city of Glasgow called Gallowgate, a cart, the properly of the defender passed over and caused the death of the pursuer's son ; and that at the time it so passed over the child the said cart was under the manage- ment of the said William Wilson : Whether the death of the said child was caused by the fault, negligence, or want of skill on the part of the said William Wilson, to the loss, injury, and damage of the pursuer ? ' Damages laid at ;^icxx). ' By issue of style is meant a formula or precedent of an issue. ' By the English law the fatlier could not bring an action for such an in- jury unless the child were uiso his servant. If not, the child must bring the action in his own name, but he might appear by his father as his pro- cheiu amy. ' Compare with this case Lynch v. Nurdin, i Q. B. 29, where defendant M. i "i i : -M^' .!>'' "V' -•■'V mm j';n| j' il % ■ill XIII.J IN CIVIL CASES. 267 It may be useful to give two more examples of this kind of pleading. The following is an issue in an action for reduction (^ **. setting aside instruments alleged to have been forged, or fraudulently obtained): It beiny admitted that the pursuer is heir of provision of the late Peter I.yon, and that on the 25th day of March, 1831, the said Peter Lyon grant- ed the two bills Nos. 4 and 5 of process, for the sums of £,2.fXi and ;^20 respectively. Whether at the time of granting the said bills, or either of them, the s;iid Peter Lyon was a minor, and granted the said bills, or either of them, to his cnorm lesion? Or. Whether, at the time the said bills, or either of them, were or was grant- ed, the said Peter Lyon was engaged in trade, and granted the said Wills in the course of, or for the purpose of carrying on tlie said trade? Whether the said bills, or cither of them, were or was granted in security of payment of a debt or debts due by the father of the said Peter Lyon ? and. Whether the said Peter Lyon viciously intromitted with the funds of his said father? In an action for defamation brought by a parishioner against a Presb>terian minister: Whetiier, on or about the 2ist day of Mdrch, 1821, at Aross, in the island of Mull, at a meeting of the Presbytery of Mull, the defender did falsely, maliciously, and injuriously sny and allege, liiat the pursuer had been guilty of a gross violation of the Sabbath-day l)y having, after com'ng out of church, on a Sunday recently before the said 2rst day of March, taken his fishinj;-rod, or other implement, for killing fish, and gone out to take fish, and had been employed in fishing during a part of that day, or did use or utter words to that effect, to the inj ny and damage of the pursuer? Whether, on or about Sunday the 5th day of July, 1821, at or near the parish-church of K., at the celebration of the sacrament in the said parish- left his horse and cart unattended in the street, and plaintiff, a c'lild seven years old, got upon the cart in play, and another child incautiously led the horse on, whereby the plaintiff was thrown down and hurt. Jt was held that the defendant was liable for his negligence, although the plaintiff was a trespasser and contributed to the injury by his own act. The plaintiff appeared in this action by his mother mid guardian. As to the liability of a master in such cases for the negligence of his servant according to the English law, see Brucker v. Fromont, 6 T. R. 659, Croft v. Alison, 4 Barn, and Al. 5qo. 268 THE JURY SYSTEM IN SCOTLAND, [Ch. t.ii K>*i> * ' m church, the dcfoiulant did falsely and injuriously say to N. S., elder of the said parish, that the pursuer had i)een ^\x\\\y of the >< lid offense, and -lid direct tiic said N. S. to prevent the pursuer from advancinjj to tlic com- niunion-tablc, or did use or utiei words to tiuu effect, to the injury and damage of the pursuer? Damages laid at C^oq} It is important liowcver to notice, that at the trial of a cause wliere the question for the jury is put in the form of a ^entrral issue, as for instance, " whether the deed in question is or is not the deed of the party ?" where of course there may be a great variety of grounds on which the deed may be denied, as non-execution, fraud, duress, erasure, — reference must be had to the previous pleadings, to ascertain what grounds iiave been there averred ; for to these the party is limited. In other words, he carv not travel out of tiie record, but must confine himself to the allc<^ations on which he has chosen to rest his case in the summons or defenses, condescendences or answers. The late Chief Commissioner Adam bears a high testi- mony to the conduct of juries in Scotland during the time that he presided over them, a period of full twenty years ; and says, that they were distinguished fwi intelli- gence, attention, and impartiality. With reference to the much-disputed question -)f requiring unanimity in a verdict, he says, that during all that period only one in- stance happened of a jury separating after being inclosed for several hours without agreeing on their verdict, and this was in 1830, just before the merger o{ the Jury Court in the Court of Session.* The cause was trit^d a second time, and the new jury found a verdict \ 'lich was not disturbed. Upon this point Mr. Adam givi s it as his decided opinion, that " notwithstanding the appre- ' See Macfarlane's Notes on Issues in Jury Cases (Edinburjjh, 1849), a work in which the subject is most ably discussed and practical forms are given. To the kindness of this gentleman I am indebted for some valuable information and remarks. * Irvine c. Kilpatrick, ultimately determined in the House of Lords. 7 Bell's Appeal Cases, l36. [Ch. XIII.J IN CIVIL CASES. 369 liLMisions which arose in men's minds by requiring that the jury should be unanimous, experience h;is proved that it is a most practicable and certainly a most benefi- cial regulation." Of misconduct on the part of Scotch juries he also "knew of only one case, which happened during the last year of the existence of the '* Jnry Court," when a jury was accused of having drawn lots for their verdict. And this was made the ground of application for a new trial, but the court unanimously refuscrl to grant it, as the charge could not be satisfactorily esiiblishcd without the evidence of the jurors themselves as to what passed while they were in deliberation ; and to admit this would be contrary to all principle and authority, both in England and in Scotland.' Since that time I believe that no other instance of alleged misconduct on the part of Scotch juries has occurred. With reference to the quei'.ion of how the new system has worked since its introduction into Scotland, there is some difference of opinion. In an able article which ap- peared in " The Edinburg Review," in the year 1830, the writer, speaking of the objections which had been urged against it, says, " The experience of the last fifteen years has silenced them all ; and has most fully demonstrated, not only that there is nothing in the circumstances of Scotland repugnant to jury trials, but that it is in the very situation in which this mode of trial is chiefly re- quired. The time of the Court of Session and of the House of Lords has been wasted on no cases of mere evidence : such cases have been satisfactorily tried, or have been saved from the necessity of trial, by one or both of the parties discovering, when the matter in dis- pute was brought to a precise point by an issue, that there ' Stewart v. Frazier, March, 1830. That such is the rule in England, see Owen V. Warburton, i Bos. and Pull. N. R,326 ; Vaise v. Delaval, i Term. Rep. II. ^^1 IMAGE EVALUATION TEST TA!!GET (MT-3) 1.0 t^ta itt I&2 12.2 I.I |20 6" '>r ... '% V jy S Fk)togiaphic Sciences CorpcMalion 23 Wl»f MAM STRHT WIISTM,N.Y. 14SM ( 71* ) 072-4303 K~v •, 'A ; ;: ^H '' / v. "■*'- ■•I. -;*.- •.. "" 'v- ^^ ■ -« 0C:; f '■ ^/;;,it:,. ■ s-'-- . v. '' -- l;'"^' v^ ■ "■■■- ''■■ -''^\' > . 3 :%.«. ■ " -A::.' 'N,^;*: ,;if.. '"97- 'ts: - '^^ ■*.'• ;,-l.»;,. •V ^- ,. ^, fi ■til'i- ,y^^M 270 THE JURY SYSTEM IN SCOTLAND. [Ch. was nothing to try ; there has not been one moment's demur with any one jury; there nave not probably been above a dozen of new trials, and not half a dozen of suc- cessful bills of exception ; such progress has been made in the service of issues, that very few cases fan now oc- cur for which the right one, and this commonly a gen- eral one, is not prepared; and whatever inconveniences have occurred, have arisen from the novelty of the insti- tution, and not from anything essential to it." This is, however, too flattering a picture. Trial by jury in civil cases can not be said to be popular in Scot- land. It is looked upon there as an exceptional pro- ceeding, attendea with expense, uncertainty, and delay In the Sheriffs Courts there is no jury in civil actions, but the proofs are taken by commission, which is also still resorted to in the Court of Session, if the parties prefer that mode of inquiry. In that case the court de- cides upon the evidence so obtained. But of late years I believe, the opinion of many has been in favor of allowing the judge to hear the evidence himself, and decide the facts as well as the law, so as to supersede the use of either a commission or a jury. And the late act (13 and 14 Vict. c. 36) /"acilitat^s the accomplishment of this view, for it provides that if the parties to a cause consent, the Lord Ordinary may, i ^iless the court on his report deem it imprudent and improper, try the issue without a jury, taking evidence and hearing counsel as nearly as may be in the manner of an ordinary jury trial. For the existence of the unfavorable feeling which haa just been mentioned it is, perhaps, not difficult to account. In the first place, the new system had to encounter all the opposition which is felt to innovations upon old es- tablished forms. Practitioners and judges had to go, as it were, to schdol again, and disliked the trouble of having to master the details of a new mode of proce- [Ch. XIII.l ASSIZE IN CRIMINAL TRIALS. 271 dure. This prejudice has not yet died away, and many of those who prophesied failure have not been indisposed to realize their predictions by discountenancing as much as possible the jury trial. Besides this, the want of experience on part of the judges in dealing with a somewhat complicated system, transplanted from Eng- land with all the refinements of special verdicts, bills of exceptions, and motions for new trials, has led to many miscarriages, causing both expense and delay. Misdirec- tions have been frequent, and mistakes made, which have severally tried the patience and the pockets of the litigant parties. Thus, in one case the Court of Session held that it was proper to be tried by a jury, and sent it before two juries successively, whereas the House of Lords on appeal decided that it ought never to have been submitted to a jury at all, on the ground that, taking his own statement to be true, the plaintiff was out of court.' It must not, however, be supposed that mistakes of this kind never happen in England. But here, from long experience of the advantages of the system, the public are less sensitive respecting its defects, just as we are less disposed to criticize with harshness the failings of a familiar friend than those of a new ac- quaintance. And if it is persevered in north of the Tweed there seems no reason to doubt that much of the disfavor now felt towards it will gradually be removed. The recent Act has already remedied many of the evils complained of, and experience will suggest practical im- provements whereby the system may be made more efficient by being freed from unnecessary technicality, and thus become better adapted for its object ; which is simply to ascertain the truth of disputed facts. Section II. The Assize in Criminal Trials. According to immemorial usage in Scotland, criminal ' Irvine v. Kilpatrick, before quoted, p. 321. 2 7 2 ^^^ JURY S YSTEM IN SCO TLAND. [Ch. charges there have always been tried by an assize or jury of fifteen. In the collection of ancient laws and trea- tises on the laws of Scotland by Skene, in 1609, we are told that " the justice eyre should be holden twice in the year, for it is statute and ordained that the justice and his deputes should have two head courts yearly, univer- sally in all parts, once on the grass, and once on the corn (query, spring and autumn ?) both in the inland and also in the isles." The mode of obtaining information and presentment of crimes was called taking up dittay, and this wa? anciently done in each vill or town, either by authority of the justiciar through an inquest of three credible persons and the headsman of the place (a sort of grand jury), or, as Baron Hume thinks more prob- able, the charge of conducting the inquisition fell prin- 'Cipally on the sheriff and the justice clerk, or his depu- ties.' This was, however, altered in 1587, when a new arrangement of the circuit eyres (or ayres as it is writ- ten) was made. It was then provided that there should be appointed by the King's commission so many persons in each shire or burgh, " being known of honest fame," who were to be " constant and con<^inual uptakers of d 2 7 4 r//v^ JURY S YS TE.W IN SCO TLAND. [Ch. from the two lists. One-third of the jury are chosen from, the special, and two-thirds from tlie common list.* Eacb prisoner, and the prosecutor also, is entitled to challenge' five jurors peremptorily, that is, without assigning any reason; and any number, if he can show good legal cause for so doing. Of the five special jurors, however, not more than two can be peremptorily challenged by either the prisoner or the prosecutor. A landed proprietor, or landed man, as he is called iiv the Scotch law, has a right to be tried by a jury the ma- jority of whom are landed men. To entitle him, however^ to this privilege he must have been infeft in lands, and it can not be claimed by one who is merely the eldest soa or heir-apparent of a landed proprietor. By a late statute (ll and 12 Vict. c. 78), it is enacted that one list of assise or jurors shall be sufficient for the trial of all accused parties at each " diet " or each circuit court during its. sittings. After the jury have been duly balloted for, and have taken their places in the- box, they are sworn by the clerk of court in the terms of the following oath : " You fifteen swear by Almighty God, and as you shall answer to God at the great day of judgment, you will! truth say and no truth conceal,' in so far as you are to pass on this assize." By a recent statute (11 and 12 Vict. c. 79, 1848) the prisoner (or, as he is called in Scotland, *' panel ") must be called upon to state any objection he may have to the relevancy, i.e., legal sufficiency of the ** libel *' (corres- ' In former times the presiding judge nominated the jury of fifteen from the forty-five persons contained in the list of assize. * These words, "and no truth conceal," have evident reference to the fact, that the jury formerly proceeded upon their own knowledge of the case, and were witnesses as well as tries. We may compare with this the ne nsenne sacne forhelan, which was part of the old Anglo-Saxon oath, as has been previously noticed. XIII.] ASSIZE IN CRIMINAL CASES. 275 ponding to our indictment),' and the question of rele- vancy must be disposed of by the court before he is called upon to plead Guilty or Not Guilty ; " and in case the ' The term indictment is not unknown to the Scotch law. Libels in fact are of two kinds, either " indictments " or " criminal letters." The former are in use only in the High Court of Justiciary, and are signed by the Lord Advocatj or his deputy. They are in form addressed to the prisoner. The latter to which the term libel is usually applied, are used in the Circuit Courts of Justiciary and SherifFs Courts, and like English indictment.s speak of the prisoner in the third person. The libel is in a syllogistic form. The major premiss consists of the general allegation, that the offense with which the prisoner is charged is in its nature a crime against the law, and the minor is the assertion that the prisoner committed that offense. HERCULES JAMES ROBERTSON, Esquire, Advocate, Sherief OF Renfrewshire, To Officers of Court, jointly and severally hereby specially constituted : — Whereas, it is humbly meant and complained to me by Robert Wylie, Writer in Paisley, and Robert Rodger, Writer there, joint Procurators Fiscal of the Sheriff Court of Renfrewshire, acting for the Upper Ward of said Shire, for the public interest, upon PETER M'KELLAR, now or lately gamekeeper, and now or lately residing at or near Broom, in the Parish of Mearns and Shire of Renfrew: THAT ALBEIT, by the laws of this and of every other well-governed realm, ASSAULT, especially when committed to the injury of the person, and by a person who has been previously convicted of Assault, is a crime of an heinous nature, and severely punishable : YET TRUE IT IS AND OF VERITY, that the said Peter M'Kellar is guilty of the said crime aggravated as aforesaid, actor, or art and part, IN SO FAR AS, ou the Seventh day of June, Eighteen Hundred and Fifty, or on one or other of the days of that month, or of May immediately preced* ing, or of the bypast days of July immediately following, and within or near a pasture field at or near the mansion house of Broom, in the Parish of Mearns aforesaid, then and now or lately possessed by Allan Pollock, junior, residing there, and seventy or thereby yards from the said mansion-house, the said Peter M'Kellar did, wickedly and feloniously, attack and assault John Lennox, bleacher, now or lately residing at or near Hazleden, in the Parish of Mearns aforesaid, and did with a stick or other similar weapon, stiike him on the breast and across the knees, or other parts of his body, and did knock him twice to the ground, and the said John Lennox having got up and proceeded towards the road or pathway leading from the said mansion- house of Broom to the porter's lodge of Broom, situated at or near the old Kilmarnock road, the said Peter M'Keller did, time aforesaid, upon or near i i»i ' ' «76 THE JURY SYSTEM IN SCOTLAND. [Ch. libel shall be found relevant the same shall be read, unless such reading shall be dispensed with by the panel ; and the panel shall then be called upon to plead to the the said road or pathway from the mansion-house of Broom aforesaid, and three hundred and twelve yards or thereby distant from the said mansion- house, in the Parish of Mearns aforesaid, agnin, wiclcedly and feloniously, attack and assault the said John Lenox, and did, with a slick, or Ovher sim- ilar weapons, strike him repeatedly on the left shoulder and arms, or other parts of his body ; by all which the said John Lenox was hurt, bruised, and injured in his person ; and the said Peter M' Keller has been previously convicted of assault ; And the said Peter M'Kellar having been apprehended and taken before John Willox, Esquire, one of her Majesty's Justices of the Peace for Renfrewshire, did, in his presence, at PoUokshaws, on the Eighth day of June, Eighteen Hundred and Fifty, «rmit and subscribe a Declaration ; and the said Peter M'Kellar having thereafter been taken before John Dunn, Esquire, one of my Substitutes, did, in his presence at Paisley, on the said Eighth day of June, Eighteen Hundred and Fifty, emit and subscribe another Declaration : WHICH DECLARATIONS, as also a medical report or certificate, bearing to be dated " PoUokshaws, 8th June, 1850," and to be signed " Thos. Corbett, Surgeon," as also an extract or certified copy of a conviction for the crime of assault, obtained against the said Piter M'Kellar, before the Sheriff Court of Argyleshire, at Inveiary, on the Eleventh day of June, Eighteen Hundred and Forty-two, as also extracts or certified copies of three several convictions for the crime of assault, obtained against the said Peter M'Keller, before the Sheriff Court of Stirlingshire at Stirling, on the Twentieth day of May, Eighteen Hundred and Forty-five, Thirteenth day of September, Eighteen Hundred and Forty-five, and Thirty-first day of January, Eighteen Hundred and Forty-eight, respectively, as also an extract or certified copy of a conviction for the crime of assault, obtained against the said Peter M'Kellar, before the Jus- tice of Peace Court of Renfrewshire at Johnstone, on the Sixteenth day of April, Eighteen Hundred and Forty-nine, as also an extract or certified copy of a .onviction for the crime of assault, obtained against the said Peter M'Kellar, before the Justice of Peace Court of Renfrewshire, at PoUokshaws, on the Fourth day of May, Eighteen Hundred and Fifty, being to be used in evidence against the said Peter M'KeUar at his trial, will, for that purpose, be in due time lodged in the hands of the Clerk of Court, inorderthathemay have an opportunity of seeing the same: ALL WHICH, or part thereof being found proven by the verdict of an Assize, or admitted -1*1 XIII.] ASSIZE IN CRIMINAL CASES. 277 libel, and in case he shall plead Guilty the court shall proceed to pass sentence, and in case he shall plead Not Guilty the court shall remit him, with the libel as found relevant, to the knovvledi^e of an assize, and the case shall be otherwise proceeded with in ordinary form." Formerly the prisoner was called upon to plead first, and he was then asked by the judge whether he had any objection to offer to the relevancy of the libel. In Eng- land and Ireland he first pleads, and if there is a fatal error on the face of the indictment, he may take advantage of it at any stage of the proceedings either before convic- tion, or afterwards in arrest of judgment, or after judg- ment by writ of error. If before, the judge determines it at the time,' or reserves it in his discretion for the consideration of the Court of Criminal Appeal, lately in- stituted by the Act 11 and 12 Vict. c. 78. If after, the only resource is to bring a writ of error upon the judg- ment, provided the objection appears upon the record, that is, the face of the indictment ; — for if not, as has been before mentioned, the prisoner has no right after a verdict of Guilty to have the question considered. But in any case where the objection appears on the face of the record, the prisoner is entitled to a writ of error, even although the judge at the trial refuses to reserve by the judicial confession of the said Peter M'Kellar, in a court to be held by me or my Substitute, the said Peter M'Keller OUGHT to be punished with the pains of law, to deter others from committing the like crimes in all times coming. MEREFORE, &c. ' By the most wholesome provision of an Act passed in the present year, 1851 (14 and 15 Vict. c. loo), the court at any criminal trial in England or Ireland may amend variances between the indictment and evidence offered in proof thereof in matters not material to the merits of the case, and by which the accused can not be prejudiced in his defense ; and it may then either proceed with or postpone the trial to be had before the same or another jury, as the court shall think reasonable. Section 24 of this Act prevents in future indictments from being held insufficient for certain triYiaT defects and omissions, in the section specified. ■i ■ .^178 THE JURY SYSTEM IN SCOTLAND. [Cu. the point, and determines it against him. And this writ of error is brouglit in and the case argued before the Court of Queen's Bench, and if the judgment there is unfavorable it may be carried to tlie House of Lords, whose judgment, as being that of the Supreme Court of Appeal in the kingdom, is final and irreversible. More- over, it is now enacted that if on a writ of error brought in any criminal case, the Court of Error shall reverse the judgment, it shall be competent either to pronounce the proper judgment, or remit the record to the court below, in order that such court may pronounce the proper judgment.' In Scotland the interlocutory judgment given upon the question of relevancy is final ; and after conviction no objection to the libel can be received in arrest of judg- ment ; for the time for making such objection is when the relevancy of the libel is under consideration." This is surely an improvement upon the English practice. When the assize has been once sworn, they must, as in England, be kept by themselves apart, and no extrane- ous intercourse whatever is allowed. In the case of any sudden interruption from unavoidable accident, as the ill- ness of a juiyman or the prisoner, there can be no ad- journment, nor any continuation of the trial with the same assize, but the jury must be discharged, and a new jury balloted on a subsequent occasion from the same as- size to try the case afresh.* Having heard the whole of the evidence, and the sum- ming up of the judge, and chosen their chancellor or foreman, the jury are inclosed to consider their verdict. An act passed in the year 1587, directs that " the clerk ' II and 12 Vict. c. 78, § 5. ' For an account of the interlocutor of relevancy, see Baron Hume's Commentaries, II. 285 ; and the trial of Carnegie, in the year 1728, for the murder of the Earl of Strathmore. 17 State Tr. 134. ' Alison's ( i ; . Law, 11. 631. XIII.] ASSIZE IN CRIMINAL CASES. 379 of the Justiciarie sail enclose the said assyse them alane, or in ane house by thamselfis, and siiflfer na pcrsonen to be present with thanie or repair to thame in ony wyse, "nather clerke nor utheris, under pretense of fardcr in- formatioun, resolving of ane dout, or ony uther culler or occasion qhatsumcver. But that the said hous be holdcn fast, and na man present thairin bot the said assaisirs "(assizors), and that they be not sufferit to cume out of the said hous for qhatsumever caus, or to continew the geving of their sentence to an uther tyme ; bot that they be inclosit as said is, unto the tyme they be fully agreit, .and returne thair answir be the mouth of the said chan- cellair to the judge." The assize must remain inclosed, as directed by the act, until a majority have agreed upon their verdict. Formerly this must have been delivered in writing, but the frequent escape of guilty parties in consequence of inaccuracies in the mode of framing the verdict, and the rule that no parol statement of the jury could be received to explain their meaning, led to the passing of an act, 54 Geo. III. c. 57, which provided that where the jury was unanimous a viva voce verdict might be given. This was folio ved by 6 Geo. IV. c. 22, which enacted that all verdicts in criminal cases, whether the jury are unani- mous or not, shall be returned by the mouth of the chan- cellor of the jury, unless when the court shall direct written verdicts to be returned. This statute also pro- vides, that in all cases of verdicts being returned by the mouth of the chancellor, when the jury arc not unani- mous in their verdict, the chancellor shall announce the same, so that an entry thereof may be made in the record. And soon afterwards an act was passed (9 Geo. IV. c. 29), which provides that verdicts in writing shall be discontinued in all cases where the verdict is returned Joefore the court adjourns. A written verdict therefore in practice is now quite 28o THE JURY SYSTEM IN SCOTLAND. [Ch. obsolete, but formerly in such .1 case the chancellor fronv the jury-box, in the presence of his fellow-jurors and in open court, delivered the verdict sealed to the presiding judgi'. The latlcr opened it, and, after reading it, handed it to the clerk, who engrossed it verbatim on the record.' A written verdict could in no case be altered, amended, or vari'.'d : but a parol verdict may be explained, and its legal import discussed, between the court and the jury before it is finally recorded. This obviates many diffi- culties, and furthers the ends of justice, which was fre- quently defeated by technical objections taken to the mode in which the jury had expressed their verdict in writing. Where, however, a written verdict was delivered, the jurors present might declare that it was not their verdict, or that it contained a material omission or error. This they might prove by their oaths; but they could not object to the verdict as having been irregularly and improperly obtained from them. According to the present usage the jury are asked by the clerk if they are agreed upon their verdict, and the chancellor {i.e. foreman) then announces it aloud. It is in general either " Guilty ;" or " Not Guilty ;" or " Not Proven." It may however be a special verdict, finding certain charges proven and the remainder not proven. With reference to the question of the efficiency of trial by jury in Scotland, Mr. Alison thinks that the quali- fication of jurors is too low. and that they are hardly equal to the due discharge of their important functions. He says "The qualification of ;£"200 for an ordinary jury- man has been found both in the civil and criminal courts, to have brought a class into the jury-box incapable, in a great variety of cases, of understanding the intrica' ind impor- tant questions which are submitted to them for decision. They become utterly confounded, in particular, if the pro- ' Alison's Crim. Law, ll. 639. ; XIII.] ASSIZE IN CRIMINAL TRIALS. 38t ceedings are protracted to any considerable length, and after four or five hours' attention to the evidence, arc generally guided by the most able speech which is ad- dressed to them on its import. Verdicts in consequence, both in the civil and criminal courts, have become much more uncertain than formerly ; and the opinion has ex- tensively spread among practical men, that if you cai only protract the proceedings to a certain length, or the case is one of any considerable intricacy, little reliance can be placed on the verdict of the jury being conform- able to the evidence which has been laid before them." ' ' Alison's Crim. Law of Scotland, il. 385. In England and Wales the total number of persons committed in 1850 for alleged oflcnses was 26.813. The result of the proceedings consequent thereon was as follows : Not prosecuted and admitted evidence . . . 141 No Bills found af;ainst . Not Guilty on Trial .... Acquitted and Discharged Acquitted on the ground of Insanity Found Insane .... Detained in Custody . Sentenced to Death . . . " Transportation . . " Imprisonment . . " Whipping, Fine, &c. Pardoned without sentence . Convicted 1.458 4,639 6,238 26 12 38 49 2.578 17,602 307 I 20,537 Total Committed 36,813 With respect to the question of the greater certainty of convictions fol- lowing commitments, the tendency during the last five years to a decrease in the proportion acquitted is confirmed by the Returns for 1850. In the three years ending with 1845 the proportion was stationary at 28*6 per cent.; for the five subsequent years it has been, in 1846, 27*6 per cent.; in 1847, 25*1 per cent; in 1848, 24*4 per cent.; in 1849, the same; and in 1850, a3'2 per cent. The proportion in 1850 is comprised of 0*5 per cent, discharged by reason of no prosecution, including those admitted evidence; 5'4 discharged, no Bill being found ; and I7'3 acquitted and discharged on trial by the jietty jury. This increase, says Mr. Redgrave, of the Home i,i-\f>\ i ii82 THE JURY SYSTEM IN SCOTLAND. [Ch. Section III. The Verdict of Not Proven. It is a peculiarity of the Scotch jury system in crimi- nal trials that it admits a verdict of Not Proven, corre- sponding to the Non Liquet of the Roman law. The legal effect of this is equivalent to Not Guilty ; for a pr'.roner in whose case it is pronounced can not be tried again. According to the homely but expressive maxim of the law, no man can be made to " thole an assize " twice. It is worth considering whether it is advisable to retain in Scotland or introduce in England this kind of verdict. Sir Walter Scott applied to it the term " bastard," and I think this not unaptly describes its nature. It is, m fact, a sort of compromise between 0£fice, who compiled the Tables, in the p/jportion convicted, appears coincident v/ith the diminished severity of the punishments inflicted. In 1850, of those convicted one in 419 only had judgment of death passed or recorded against them, and one in 79 alone was sentenced to transpor- tation. In Scotland, the total number of persons committed for trial, or bailed, in 1850, was 4,468, with the following resuUs : Discharged without Trial by the Lord Advocate and his Deputies 660 Discharged frum other causes T63 Not Guilty on Trial . , 35 Not Proven on Trial ........ 223 Found Insane ......r... 6 Total Discharged or Acquitted 1,087 Convicted 3,363 Outlawed , , , z8 Total 4.468 In Ireland, the total number of persons committed in 1850 w? Of these 14,218 were acquitted, and 17,108 convicted. 31.326 [Ch. XIII.] TnE VERDICT OF NOT PROVEN. 283 conflicting opinions, and affords a convenient refuge where the mind is in doubt as to the effect of evidence. It can not be denied that such a verdict correctly in- Comparative Table, showing the Number of Convictions and Acquittals in Ireland for Seven Years, with the rate per cent, of each on the wholt Number of Offenses, VKARS. Convicted. Acquitted. Total. Rate per cent. Cunvicted. Acquitted. 1844.. 1845- • 1846.. 1847.. 1848. . 1849.. 1850 . 8,042 7,ioi 8,639 IS,223 18,206 21,202 17.108 11,406 9.595 9853 15976 20,316 20,787 I4,2I& 19,448 16,696 18,492 31,209 38,522 41,989 31.326 41-35 42-53 46-72 48-81 47-26 5049 54-61 3S-65 57-47 53-28 5i'i9 . 52-74 4^-5 45*39 660 163 35 223 6 1.087 4,468 31.326 Convicted, Acquitted . 38.31 . 61.69 . 4752 . 52.48 . 61.27 . 3^-73 . 49.78 . 50-22 49.60 . 50.40 . 37.99 . 62.01 Considered as to the class of crime, the following are the r'is.uUs Class. T. Offenses against person ...» 2. Offenses against property with violence. 3. Offenses against property without violence 4. Malicious offenses against property . , 5. Forgery and offenses against currency 6. Miscellaneous offenses . . . . With reference to this subject, it will be interesting to cite what Quete- let, a writer of great eminence, says of the operation of trial by jury in Belgium. The following extract is translated from his work, Sur la Theorie des Probabilit^s, published in 1846. We must bear in mind, that the jury in criminal cases was not adopted in Belgium until 1830 ; and Quetelet begins by quoting a passage from a work written by him in 1829 ; " ' In 1826 our tribunals condemned 84 individuals out of lOo accused, and the French tribunals 65 ; the English tribunals have also condemned 65 per cent, during the last twenty years, rhus, out of 100 accused, 16 only have been acquitted with us, and 35 in France, as in England. These two latter countries, so different in manners and in laws, however, pro- & ^^^ THE JURY SYSTEM IN SCOTLAND. ' [Ch. dicates the result at which we arrive in cases where some crime has been committed, and circumstances of grave suspicion, which yet do not amount to proof, point co a particular person as the perpetrator. And we are often justified in holding this opinion even where the verdict of Not Guilty has been given. We thereby mean to imply that the fact of the innocence of the accused is noc estab- lished to our satisfaction, while, on the other hand, we can not say that we are convinced of his guilt. And this state of mind occurs with reference to many things which do not readily, if at all, admit of demonstration. The verdict of Not Proven, would, perhaps, correctly express i -: nounce in the same manner on the fate of the unfortunate submitted to their judgments ; whilst our kingdom, so similar to France by its institu- tions, acquits a half less of the accused. Should the cause of this difference be sought in the fact, that we have not the institution of the jury, which our neighbors have? We think it is so. " ' Let us examine, in fact, what is passing before the correctional tribunals where the judges only give sentence, as in our tribunals. We shall find in France the same severity as with us. Of lOO accused only i6 are ac- quitted. " ' Let us examine the tribunals of police simply, — the same severity ; of ICO accused, only 14 are acquitted. The preceding will lead us, then, to the conclusion, that when 100 accused come before the tribunals, whether criminal or correctional, or simple police, 16 will be acquitted if they have to be dealt with by judges, and 35 if they have to be dealt with by a jury.' " Such were the conclusions I came to from the first statistical document* on crime which were published in France and Belgium. I did not therk know that the following year would realize my conjectures in the most brilliant manner. The revolution of 1830 detached Belgium from the kingdom of the Netherlands, and gave it the institution of the jury. Im- mediately the acquittals took the same course as in France. " The chances of acquittal for one accused were then doubled in Belgium by the sole fact of the institution of the jury ; and of 100 accused, 16 who would have been condemned by the system in operation anterior to 1830, were returned to society. Is this a benefit ? is it an evil ? I confine myself to giving over this remarkable fact to the meditation of the legis- lator." XIII.] THE VERDIC T OF NOT PRO VEN. 285 the opinion of many as to the existence of apparitions, or the alleged facts of animal ma^jnetism. We feel dis- inclined to believe them, and yet the evidence for them is so strong that it seems almost impossible to explain them on the hypothesis of either imposture or delusion. Now, if by the verdict of not guilty a jury were un- derstood affirmatively to declare that, they in their con- sciences believed the prisoner to be innocent of the crime imputed to him, it is clear that they could only pro- nounce it where they had no moral doubt on the ques- tion, and must in other cases, where this doubt was felt, resort to some such mode of expression as *' not proven," to indicate the effect of the evidence upon their minds. But this is not the meaning of " not guilty." It does not necessarily imply more than that the legal evidence is not sufficient to produce that degree of certainty ■which would justify or render safe a conviction. And a proof of this is furnished by the fact, that this verdict is returned in cases where the guilt of the accused if notorious, but owing to some technical difficulty or mis- take the jury are directed to acquit. They do not there- by say that he has not committed the crime, but merely that it is not legally proved that he has. There is, therefore, nothing in the verdict which need alarm the most scrupulous, conscience, for it may be, and, indeed, ought to be, given whenever a jury is not fully and beyond all reasonable doubt satisfied of the guilt of the accused. And we must remember that the law presumes every man. to be innocent who is not proved to be guilty, so that the jury do no more than their strict duty when they declare him to be not guilty whom the evidence falls short of convicting, however dark and unfavorable may be their suspicions respecting him. Such, then, being the case with respect to the verdict ' ^.■■^■:-,'.,-i(lW-.'*. .; >'^A.-:.'i^Aii^.v*llL*-.. 2 86 THE JURY SYSTEM IN SCOTLAND. [Ch WM 'W \' I ? I'i of Not Guilty, it is not difficult to show that there are grave objections against that of Not Proven. In the first place, it favors too much the natural indolence of the human mind, which thus escapes the necessity of coming to a definite conclusion upon doubtf\il facts. There must be always a strong temptation to adopt it where there is much suspicion, but a deficiency of legal proof. But is this fair towards the accused? Surely if the evidence does not establish the charge against him, he is entitled to an absolute acquittal. But although the verdict of " Not Proven " is so far tantamount to an ac- quittal, that the party can not be tried a second time, it falls very far short of it with regard to the effect upon his reputation and character. He goes away from the bar of the court with an indelible stigma upon his fame. One hardly sees how he can afterwards hold up his head amongst his fellow-men, when there stands recorded against him the opinion of a jury, that the evidence re- specting his guilt was so strong that they did not dare to pronounce a verdict of acquittal. So that many of the evil consequences of a conviction follow, although the jury refuse to convict. When Sir Nicholas Throckmor- ton was tried and acquitted by an English jury in the first year of Mary's reign, he said, " It is better to be tried than to live suspected." But in Scotland a man may be not only tried but acquited, and yet live sus- pected, owing to the sinister influence of a " Not Proven " verdict. This is a state of things which ought not to exist. It occasions too much peril to innocence, when, as often happens, circumstances have woven a dark web of suspicion around it. For it may be feared that a jury will too readily resort to such a verdict where they find a difficulty In coming to a definite conclusion. At the same time it must be admitted that there are cases in which a jury, even where they can not convict, XIII.] THE VERDICT OF NOT PROVEN. 287 are almost justified in recording their sense of the im- pression which the evidence has left upon their minds. Such was the famous trial in Scotland, in 1839. o^ ^^^ soi- dissant Earl of Stirling, charged with having forged, and knowingly uttered as forged, certain documents in sup- port of his claim to the peerage. The unanimous ver- dict in that case of Proven as to several of the documents being f9rgeries, and by a majority Not Proven as to the prisoner having forged them, or uttered them knowing them to be forged, was a merciful one, of which, I think, the accused could have no reason to complain, especially after Lord Meadowbank's charge to the jury. That learned judge said: " Gentlemen, the prisoner may have been the dupe in all these transactions, and so his counsel, I think, en- deavored to persuade you that he had been. This is possible, no doubt ; but we have only an ingenious sur- mise in support of the proposition, while you have it clearly made out, that the only person who enjoyed the fruits of the imposition is the prisoner himself, and but one very trifling piece of evidence that can be alleged to support the theory of the learned counsel. . . . Our business is to do justice, and you in particular have to weigh the evidence calmly and deliberately ; and, should you doubt of that evidence being sufficient to bring the charges here made home to the prisoner, to give him the full benefit of that doubt. But to entitle you to do so, these doubts must be well considered, and the circum- stances on which they are founded deliberately weighed. To doubts that are not reasonable you have no right whatsoever to yield. You are not entitled to require at the hand of the prosecutor direct proof of the facts laid in his charge. In no case can such be exacted. The circumstances laid in evidence must be put together, and it is your duty then to consider what is the rational and reasonable inference to be drawn from the whole of them ^88 THE JUR Y S YSTEM JN SCOTLAND. [Ch. XII I. — in short, whether it be possible to explain them upon grounds consistent with the innocence of the party ac- cused ; or whether, on the contrary, they do not neces- sarily lead to a result directly the reverse." 'rjt,^(,j,V..:-,A'il.-?ii'--:V ■*.;<-S.v-* \c:-^ i.^^-^ ^ >}! i^^'. CHAPTER XIV. JURIES IN THE UNITED STATES. BY Article III. of the Constitution of the United States of America, it is provided that " The trial of all crimes, except in the cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed ; but, when not committed within any state, the trial shall be at such place or places as the Congress may by law have di-^ rected. And Article V. of the Amendments to the Constitu- tion enacts, that "No person shall be held to answer for a capital or otherwise infamous crime, unless on a pre- sentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." By Article VI. : " In all criminal prosecutions the ac- cused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the -crime shall have been committed." By these enactments trial by jury in criminal cases was embodied in, and made part and parcel of, the Consti- tution of the United States when they broke off from, and established their independence of, the mother-coun- try. But it is somewhat remarkable that the original Articles are wholly silent on the subject of trial by jury in civil actions — a principle of jurisprudence so familiar 290 JURIES IN THE UNITED STATES. (Cii. to the Anglo-Saxon mind, that we might have supposed it would be deemed an essential element in the funda- mental laws of the new republic. And this omission was eagerly seized on by the enemies of the constitution as a handle for attack. They argued that silence upon this point, coupled with the language of the original Arti- cles, that "the supreme court shall have appellate juris- diction, both as to law and fact," was equivalent to a proof that the abolition of the civil jury was intended ; and a long and vigorous controversy arose upon the sub- ject. The view of those who, while the plan of the Con- stitution was under discussion, contended that omission amounted to abolition, was ably combated in "The Fede- ralist," in a paper which the late Mr. Justice Story de- scribes as a monument of admirable reasoning and ex- alted patriotism.' The real fact was, that the diversity of the institutions on this point, of the different states that composed the Union, induced, if it did not compel, the eminent men who framed the Constitution, to leave the subject to the discretion of Congress. The writer in " The Federalist" maintained that trial by jury was in no case abolished by the Constitution, and that in con- troversies between individuals the institution would re- main precisely in the situation in which it was placed by the constitutions of the different federal states. He pointed out the great variety in the forms of judicial procedure which existed in those states, and said : " From this sketch it appears that there is a material di- versity, as well in the modification as in the extent of the institution of trial by jury in civil cases in the several states ; and from this fact these obvious reflections flow ; first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the states ; and, secondly, that more, or at least as much, might have been hazarded by taking ' Commentaries on the Const. lU. 633. XIV.] JURIES TN THE UNITED STATES. 29' the system of any one state for a standard, as, by omit- ting a provision altogether, and leaving the matter, as has been, to legi'p'ative regulation." After stating his conviction that there were many civil cases in which trial by jury was ineligible, and pointing out the difficulties in the way of establishing it, the writer says, " The best judges of the matter will be the least anxious for a con- stitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining ques- tions of property preferable in many cases in which that mode of trial now prevails." Notwithstanding, however, these reasons, public opin- ion was not satisfied, and various state conventions pro- posed different plans for the adoption of some general rule on the subject. The result was, that in the first session of Congress, the following amended article was proposed and carried, and is incorporated into the con- stitution : "In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved. And no fact tried by a jur>' shall be otherwise re-examined in any court of the United States than according to the rules of the common law." "This," says Mr. Justice Story, " is a most important and valuable amendment, and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases — a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty."' And, on one occasion, the supreme court, in pronouncing judgment on an appeal in a civil suit, ob- served : " The trial by jury is justly dear to the Ameri- can people. It has always been an object of deep inter- est and solicitude, and every encroachment upon it has * Story's Commentaries, III. 638. > ;^x.\'j^.,^i- •9* JURIES IN THE UN/TEJO STATES. [Ch. been watched with great jealousy. The right to such a trial is, it is believed, incorporated into, and secured in ever)' state constitution in the Union." ' The limits of the present work preclude me from enu- merating the minute differences in the jury systems of the different states ; but I may here mention a few of the leading principles, enunciated by the federal constitutions. Most of them declare that the right of trial by jury shall remain inviolate. That of New Jersey provides that the legislature may authorize the trial of civil suits, when the matter does not exceed fifty dollars, by a jury of six men. In Connecticut, Indiana, and Mississippi, the jury are empowered, in all prosecutions or indict- ments for libels, to determine the law and the facts un- der the direction of the court, and the truth of the alleged libel may be given in evidence. In New Hampshire the constitution provides, that the legislature may make such regulations as will prevent parties from having as many trials by jury in the same suit or action as had before been allowed and practiced, and extends the civil juris- diction of justices of the peace to trials of suits where the sum demanded in damages does not exceed four pounds. One article is as follows : " In order to reap the fullest advantage of the inestimable privilege of the trial by jury, great care ought to be taken that none but qualified per- sons should be appointed to serve ; and such ought to be fully compensated for their travel, time, and attendance." The constitution of Maryland declares, that in controver- sies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred. That of Missouri provides that, in prosecutions for crimes, slaves shall not be de- prived of an impartial trial by jury.* I do not find this humane and equitable enactment in the constitution of ' Story's Commentaries, in. 638. * This was written before the abolition of slavery. [Ch. XI VJ JURIES IN THE UNITED STATES. 293 any other slave-holding state. In Tennessee the judges *' shall not charge the juries with respect to matters of fact, but may state the testimony and declare the law." In Iowa, whose constitution dates from 1846, the General Assembly n^ay authorize trial by a jury of a less number than twelve in inferior courts. In Wisconsin (1848) a jury trial in civil suits may be waived by the parties, in all cases, in the manner prescribed by law. Throughout the Union, in all trials, whether civil or criminal, unanimity in the jury is essential. Offenses are brought under the cognizance of a petit jury by the pre- sentment of a grand jury, as in England. The qualifica- tion of a juror varies in different states. In New York he must be subject to assessment for personal property be- longing to him, or for land in his possession, which he holds under contract for purchase, upon which improve- ments have been made of the value of one hundred and fifty dollars, or have a freehold estate of the same value. The jury-lists are made up by persons called supervisors in New York, select men in New England, trustees in Ohio, and sheriffs in Louisiana and other states. The differences between the method here and in America of obtaining grand and petit jurors are not of sufficient im- portance to justify detail in a work like this, which does not profess to be a practical treatise on the law of juries ; and I need only refer the reader to the Code of the State of New York, which has lately been there adopted, and where ample and minute information will be found upon the subject of the jury system in that state.' I ' In 1873, the legislature of the State of New York enacted that " the previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoners, or a present opinion or impression in reference thereto, shall not be a sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve as a juror upon the trial of such action : provided the person proposed as a juror, who may have formed or expressed, or has such opinion or impression ^^^."/'J-,> i. ,yr^-. ?r4 JURIES IN THE UNITED STATES. [Ch. XIV. may mention, however, that by that code juries de medie tate lingux and trials by a jury at the bar of the court, are abolislied ; also a jury trial may be waived by the consent of both parties in actions arisin^j on oblip;ations, and with the assent of the court in other actions. In such cases the trial of questions of fact is to be had by the court, or, in some cases, by referees, and it is then conducted in the same manner as a trial by the court. The question of the political and social influence of the jury as one of the institutions cf the United States will be noticed hereafter. as aforesaid, shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that mch previously formed opinion or impression will not bias or Influence his verdict, and provided the court shall be satisfied that the pcnon to proposed as a juror doe» not entertain such a presen. opinion ai would influence his verdict as a juror." — Laws of N. Y., ch. 475, p. 1133. And see Morgan's Best on tlie Principles of Evidence, vol. I., p. 38. ,.^ii?Av. CHAPTER XV. TRIAL BY JURY IN FRANCE AND OTHER PARTS OF THE CONTINENT. Section I. Trial by Jury in France. TRIAL by Jury in France owes its birth to the Revolution of 1789. Prior to that period criminal charges were tried by judges, who decided both law and fact. These sat either singly or collectively, and the preliminary proceedings were carried on in secret ; a system of which a more detailed account will be given when we come to speak of it as existing in Germany. This procedure secrete was borrowed from the Inquisi- tion, which was introduced into France in the thirteenth century, not long before the judicial tribunal or parlia- ments of Paris and Toulouse were established by Philip the Fair. It soon found favor with the judges and lawyers, who were for the most part ecclesiastics, but was, as might be expected, unpopular with the nation ; so that more than two centuries elapsed before it became general throughout the kingdom, by virtue of a royal ordinance issued in 1539, ** ^^^ suggestion of the Chan- cellor Povet, who became the victim of his own measure.' It will be sufficient here to say, that the system was made an engine of grevious injustice and horrible torture both moral and physical. The latter was only abolished in 1780, a few years before the storm of the first revolu- tion burst over France. Trial by jury in criminal charges was established in ' Meyer, Inst. Judic. liv. iv. c. 14. Franc, c. 10. Oudot, Th^orie du Jury. Bernard!, Orig. de la Legislat. . ^Ji^..-, I I 396 2H/AZ BY JURY IN FRANCE, [Cu. France by a law of the Constitutent Assembly, on the 1 6th of September, 1791. But it soon became a mock- ery ; for although by a law of 1793 it was enacted, that the extraordinary tribunals there established should pro- ceed only upon the verdict of a jury, they soon, during the reign of terror, became permanent commissions,, •which dispensed with even the form of a jury, and com- mitted murder by wholesale, refusing even the aid ot advocates to the accused. When this frightful period had passed away, trial by jury again emerged, and several modifications were made in the system. By the law of 18 Fructidor, An. VI. it was enacted, that no verdict that was not unanimous should be given sooner than after a deliberation of twenty-four hours. When Napoleon had determined to furnisn ."^ code to France, he caused the draft of his Code d'Inst'-uction Criminelle to be submitted to the different courts throughout the kingdom, in order that their opinions might be ascertained. The number that replied to the invitation was seventy-three. Of these twenty-tw;^ de- clared themselves in favor of the retention of trial by jury, thirty desired its abolition, and twenty-three ex- oresscd no definite opinion on the subject. The reasons assigned by the opponents of the system were in substance these : They said that the institution was. well enough for the English, who were used to it, but was unsuited to the French chp^racter and habits. The laboring population had neither sufHcient leisure to serve, nor enlightenment to discharge the duties of jury- men. The middle classes, from whom alone they ould be chosen, were averse to undertaking so troublesome an office, and becoming the judges of their fellow-citizens : and carried this feeling so far as to be disposed to acquit even the guilty ; so that the consequence would be an impunity for crime.* ' See Oudot, Th^rie du Jury, p. 207. [Cif. XV.] TRIAL BY JURY IN FRANCE, 297 Napoleon, however, resolved to retain the jury trial, but at the same time look care that the selection of jurors should be, to a certain extent, under the control and influence of the executive. In 1808 he promulgated his Code d'Instruction Criminelle, which embodied the Avhole of the French criminal law. There is in France no grand jury or jury of accusation at all. It did exist there from 1791 until 1808, when it was abolished by the Code Napoleon. How, then, was its place supplied, and what is the machinery for bring- ing to trial those who are suspected of crime ? The code delegated this duty upon two different officers, the one the procureur du roi, the other the juge d'instruction. The procureur was to act the part of a pu )lic prosecutor attached to the court of the district over which its juris- diction extended. And it is declared to be the duty of all magistrates and functionaries within that district to inform him of any crime that may be committed of which they have information. He ought, in cases ot heinous crime, to repair to the spot, and there collect the evidence as to the fact and mode of its perpetration, ex- amining witnessej and reducing their depositions to writing. He is empowered to order the arrest of the ac- cused, and interrogate him as to his guilt. The evidence thus obtained is all written down, and forms when duly signed the proc^s-verbal, which is then transmitted, with all the papers and documents in the case, to the juge d'iu- strurtion. In each arrondissement there is one of these appointed by the government, and taken from amongst the judges of the civil court, to serve in that capacity for three years. In Paris there are (or were) six of these judges, or, as we may call them, justices. The Code ex- pressly provides, that in the exercise of their functions as a judicial police, these magistrates shall be under the surveillance of the procureur g6n6ral of the cour royale. In all cases of flagrant and heinous crinje they are em- ,;ji ., ytLT^^ I- 39^ TRJAL BY JURY IN FRANCE. L'Ch. powered to act of their own authority, precisely in the same way as the procureurs just mentior.«;d, but may re- quire the presence of the latter to assist them. In other cases, however, they can not proceed without communi- cating- with the procureur, and must act according to his directions. It is the duty of the juge d'instruction, from time to time, and at least once a week, to report his proceedings to a chambre du conseil, composed of three magistrates, ^nd if they are of opinion, when the whole case is before them, that the accused ought not to be prosecuted, they order him to be discharged, or hand him over to the cor- rectional police, if they think the offense is one that may be dealt with summarily. But if they think that he ought to be put upon his trial before a jury, it is the duty of the procureur then to transmit the whole of the proceedings to the procureur g6n6ral of the cour royale. This officer must, within five days after receiving the case, make a report thereupon to a section of the cour royale, specially constituted for the purpose, who after duly considering the matter amongst themselves, finally determine whether the accused ought or ought not to be put upon his trial. If they decide in favor of the former course they remit the case to the assize court, and the procureur g6n6ral draws the indictment or acte d'accusa- tion as it is called, which is a long and rhetorical instru- ment, more like the inflamed speech of an advocate than a grave judicial document, in which are detailed all the circumstances attending the alleged crime, or, in the language of the Code, " the fact and all the circumstances which may aggravate or diminish the penalty." ' It con- cludes with the words : " In consequence N. is accused of having committed ' Ix fait et totttes les circonstances qui penvent a^raver on diminner la peine. XV.J TRIAL BY JURY IN FRANCE. i99 such a murder, such a theft, or such another crime under such and such circumstances.'" Such is an outline of the preliminary process whereby in France a person accused of a crime is brought to trial. And in principle it seems to differ little or not at all from commitments by magistrates in this country, excepting always the important fact, that here such commitments are always submitted to the scrutiny of a grand jury be- fore the trial can take place. There is one kind of pro- ceeding, indeed, in which amongst us the grand jury is dispensed with ; and that is where a criminal information has been obtained in the Court of Queen's Bench. But this occurs only in the case of minor offenses, known as misdemeanors — not felonies — and it is never granted without firsi calling upon the accused to show cause to the contrary. He has the opportunity of denying or ex- plaining the charge against him by affidavit. The whole matter is full)'^ discussed in open court before four of the judges, and a strong case must be made out by the pros- ecutor before they will allow the usual and ordinary course to be departed from of preferring a bill before a grand jury. It is entirely in their discretion to grant or withhold the rule — that is, order for the information to issue; and it is hardly possible to conceive a tribunal more admirably fitted to determine whether the cir- cumstancvis of the case are such as to justify the appli- cation. The want of a tribunal corresponding to our grand jury has been strongly felt and deplored by some of the ablest of the French jurists. M. Berenger, the author of some valuable treatises on criminal law and procedure, says,* that a jury d'accusation would bestow inestimable ' En consequence N. est accus^ d'avoir commis tel meurtre, tel vol, ou tel autre crime, avec telle et telle circonstance. • Of the jury, such as it should be in France. Du jury tel qu'il doit etre en France. wpwrF' -"^ft' 'V M I 300 T/?/AL BY JURY IN FRANCE. [Ch. advantages • the chief o'" which would be the abolition of secret investigations, which are the disgrace of legis- lation in France. The witnesses would go before a jury instead of giving their evidence in the private room of a juge d'instruction. The proceedings would be oral and their length curtailed, and the accused would be relieved from a voluminous mass of documents artfully prepared to make out a case of guilt. He adds, that the suppres- sion of the "jury d'accusation " in 1808 rendered it nec- essary almost to double the judicial staff. It covered France with an army of substitutes, increased the num- ber of justices (juges de premiere instance), and of as- sistants and deputies of the procureurs g6n6raux; and, in short, so complicated the machine of justice, as to cripple and impede all its movements. M. Oudot, in his '• Th6orie du Jury," fully adopts these sentiments, and declares his opinion that a ** jury d'accusation " is the sole means of preserving innocent persons from accusations the object of which is to gratify party spirit and malevolence. Alluding to its original institution in I79i,and suppression by Napoleon in 1808, he quotes the following passage from Berenger : " The jury of accusation was dreaded as an obstacle to des- potism, the elements of which were being prepared, and this shade which it caused ought to rencer it dear to the friends of liberty." * With respect to the trial jury some modifications and changes took place in the provisions of the Code, be- tween the time when it was published, in 1808, by Napo- leon and the revolution of February, 1848. The system in France was until the overthrow of the monarchy at the latter period, substantially as follows. According to the Code no one could discharge the office ' On redoutait le jury d'accusation comme un obstacle au despotisme. dont on preparait les Elements, et cet ombrage qu'il causait doit le rendr* cher aux amis de la liberty. XV.] TRIAL B)^ JURY IN FRANCE. 30 J of juror who was not thirty years old, and in full posses sion of civil rights. Persons seventy years of age were excused, if they so desired. It is curious that in the •Code Napoleon the liability to serve as a juryman is treated as a privilege or right conferred, while with us it is looked upon ;. burden from which persons are glad to claim exemption. But the explanation of this is, I think, not difficult. In England we are so habituated by the experience of centuries to the system, that the pro- ceedings are regarded almost with indifference, and our faith in the perfect fairness of criminal trials is so pro- found, that it never occurs to any one to imagine that he can individually advance the cause of justice, or is called upon to protect his fellow-countryman, when ac- cused, by serving upon the jury that is to try him. We look upon the summons to attend as jurymen as a dis- agreeable interruption of our private avocations, being entirely satisfied that the prisoner will be justly, as well as mercifully dealt with under the care of the presiding judge, whoever may compose the jury. But in France this mode of trial was a novelty. It imparted a sense of dignity and power to be called upon to adjudicate upon questions of life and liberty, and to exercise functions which had hitherto been confined to judges aiid patlia. ments. This raised the participator in such a right, not only in his own estimation, but in that of his fellow- citizens, and consequently the office was felt to be a dis- tinction and an honoir. According to the Code the right of acting as jurors was confined to the members of the electoral colleges — that is, those who enjoyed the electoral franchise, which was then of a limited nature — and certain other func- tionaries and persons whose status afforded a presump- tive assurance of respectability and character — such as retired military and naval officers, physicians, licentiates of law, and notaries. it I la's ' 302 TRIAL BY JURY JN FRANCE, [Ch. The principal changes that have been introduced into the system since the revolution of February, 1848, are contained in the law of the 7lh of August in that year, and are as follows. The primary lists of jurors include all Frenchmen not being employed in domestic service, who are th. ty years old, and in the possession of civil and political rights : but it is an essential qualification that they are able to read and write. And the law ex- cludes bankrupts, and persons who for any crime have been sentenced to more than one year's imprisonment, except in the case of political offenses, where conviction does not entail this consequence, unless it is so expressly stated in the sentence. Also state officers, public func- tionaries, priests, and national schoolmasters. Persons of. the age of seventy years, and workmen or laborers who live by daily toil, and can prove that the service would be too burdensome to them, are excused if they so de- sire. The primary lists are prepared by the mayors of districts, and finally made up and completed by the 15th of September each year. On or before the ist of No- vember, each mayor sends his list to the prefect, who forms out of them a general list for the department over which he presides. Smaller lists are them made from the general one, not by the prefect, but by a commission consisting of local officers of each district ; and these, together with a reserve list, are sent by the prefect to the assize courts of his department. From them, ten days before an assize commences, the president of the court draws openly by lot the names of thirty-six per- sons, and six supplemental ones, to form the jury panel for the assize. Each person thus chosen by lot receives due notice to attend on a fixed day, but, except in the case of extraor- dinary assizes, or, as ive should call them, special com- missions, no one is obliged to serve on juries at more than one assize each year. At the time of trial the [Ch. XV.] TRIAL BY JURY IN FRANCE. 303 func- names aie thrown into a box or urn, and twelve are ballotted for to compose the jury. Both the prisoner and the procurcur ^en^ral have each the right of per- emptory challenge, until only twelve names remain, and they are not allowed to declare the grounds on which they object to any of those whom they challenge ; ' the words of the law being, " Neither the prisoner nor his counsel, nor the procurer-general, will be allowed to ex- pose their motives for the obiection." * The course of procedure at the trial is as follows : * The president, at the sitting of the court, addressing the jury, says, "You swear and promise before God and man to examine with the most scrupulous attention the charges which shall be brought against N, and that you will not betray either the interests of the accused, nor those of society which accuses him ; that you will not communicate with any one until after the delivery of your verdict (declaration), nor listen to hatred or malevolence, nor to fear or affection ; that you will de- cide according to the charge and the kind of defense, following the dictates of your conscience and your sin- cere conviction, with the impartiality and firmness which befit men who are just and free." Each of the jurors is then separately called upon by the president to take the oath, which he does by raising his hand, and saying the words ** Je le jure." After the evidence both for and against the prisoner has been heard, the president sums up the case, and directs the attention of the jury to the principal points. He then submits to them the question which they have to try in the f-llowing terms : ' L'r:cus^, son conseil, ni le procureur g^n^ral, nc pourront exposer Icurs motifs de recusation. ' In the above account I have stated the law as it was last settled ; but i^o many and so rapid are the changes that take place in France in this sera of revolutions, that it is hardly possible to know what institution exists there. At present (December, 185 1) military despotism seems to have superseded all constitutional liberty. ' Code d'Instruction Crim. liv. II. 304 m/AL BY JURY IN FRANCE. [Ch. " Is the accused guilty of having committed the crime, with all the circumstances contained in the indictment {acte d'accusation)?" Or, if in the course of the inquiry, aggravating circum- stances have been proved which are not mentioned in the indictment, he asks them in addition the question : " Has the accused committed the crime, with such and such circumstances?" And if the defense consists in asserting the existence of a fact which in the eye of the law justifies the deed, he asks, " Is such a fact proved ?" The president then informs the jury that if a majority of them are of opinion that there are extenuating cir- cumstances in favor of the accused, they are to declare it by stating, " By a majority (we think that) there are extenuating circumstances in favor of the accused." The questions for their consideration are then given to them by the president in writing, as well as a copy of the indictment and original proc^s-verbal, and they are told by him that they must vote by secret ballot, and if they find the prisoner guilty by a bare majority they must state this in their verdict. The jury then retire to their room under the guard of an officer, and choose a foreman, orchef desjur6s, but, in default of any such choice, the first called into the jury- box by lot acts as foreman. It is his duty to read aloud Xo his fellow-jurymen the following notice, which is al- ways posted up in the room : " The law does not require of jurors an account of the means whereby they are convinced. It only prescribes to them rules for their guidance as to the fullness and sufficiency of a proof: it enjoins them to ask them- selves, in silence and apart, and seek in the sincerity of their conscience, what impression the proofs brought against the accused, and those for the defense, have made on their reason. The law does not say to them, * You shall take as true every fact attested by such or such a XV.] TRIAL BY JURY IN FRANCE. 305 jnumber of witnesses ;' nor, on the other hand, does it say, 'You shall regard as not sufficiently established every proof which shall not consist of such a proc6s-vcr- 1)al, such documents, such testimony, or such evidence.' It puts to them only this question, which includes the full extent of their duties: * Have you a sincere convic- tion ? ' It is essential not to forget that the jury are to concern themselves solely with facts; and they fail in their duty when they take into consideration the penal consequences which will follow upon their verdict. Their mission has not for its object the prosecution nor the punishment of offenses; they are called upon simply to decide whether the accused is or is not guilty of the ■crime with which he is charged." But notwithstanding these words of excellent advice to jurors as to their duty in bringing in a verdict, it is notorious that they do regard, and are influenced by, the amount of punishment which the law affixes to a crime. •Cambac^r^s declared that "the jury always examine what will be the result of their verdict ;'" and in a speech in the Chamber of Deputies in 183 1, M. Barthe said: "It is said that the jury ought to know nothing but the facts. Before the reality all this theory disappears. The jury .are not ignorant of the penalty, and the greater the pen- alty is, the more difficult it is for them to agree among themselves upon the question against the prisoner which is submitted to them."* M. Guizot also expresses the same opinion : " I know that when the jury pronounce a fact crime or delinquency, they think strongly of the penalty which is attached to it." * But this is by no means ' Les jur^s examine- 1 toujours quel sera le r^sultat de leur d^Iaration. * On dit que les jur^s ne doivent connai*<-e que les faits. Devant la r^ alit6 toute cette th^ori; disparait. Le jury n'ignore pas le peine, il la prend «n consideration, et plus la peine est grand, plus il est difficile avec lui-meme pour r^soudre contre un accustf la question qui lui est soumise. ' Je sais que, quand le jury declare un fait crime ou d^lit il pense force* ik,-.i- Li^;-.li..^£'.*f^;'rf.l'ir'>Vi.. I 322 GERMAN CRIMINAL PROCEDURE. [Ch. German states a prisoner is not executed until he han confessed his crime. This seems to me to be one of the severest censures upon the system, for it implies that those who uphold it have little confidence in the efficacy of their rules as to proofs and half proofs for discoverini^ the truth. They therefore endeavor to obtain assurance from the lips of the accused himself. But the means by which tiicy extort this are such as to deprive it of half its value, and often rendered it the most unsafe species of evidence to rely upon. But it is not in Germany alone th^t the system has prevailed. It was in full force in '' ce under the old inquisitorial process which preceded . v-stablishment of the jury there. And the reason seems to be that in both countries the people had nothing to do with the admin- istration of justice, which was left wholly to officials and a professional class. Casuistical subtlety was thus brought into play, and the theories of the closet were applied to the ever-changing circumstances of fact. If we contrast this artificial and unreal method of deal- ing with evidence wi'-h the practice of our own courts, we shall see at once how enormous is the advantage of the latter. The jury are fettered by no rules whatever in considering the effect and weight of tLe evidence they have heard, but have simply to determine whether or npt they are convinced by it. For this no juridicial re- finements are needed ; indeed, here they can properly have no place;; but each individual must satisfy himself by the aid of his own common sense, whether the proof is.such as to leave no reasonable doubt upon his mind. We have indeed rules — and some of them arbitrary and unreasonable — for excluding evidence from the considera- tion of the jury, but none which prescribe the amount of belief which CAjidence when once admitted must pro- duce. Let Us now loo'k at the practical working of the Ger- [Ch. XVI.] GERMAN CRIMINAL PROCEDURE. ^13 man system, i;nd cite a few instances of recent occur- rence. Some years ago a highway robbery and murder was committed on the road leading from Cassel to Fulda, and a poor schoolmaster was taken up on suspicion of being the assassin. He was thrown into prison, and after he had been there wearied by solitary confinement, inter- rupted only by attempts to extort from him an avowal of guilt, suddenly in the dead of midnight there appeared before him a figure like a ghost, in a sheet stained with blood, which with awful threatenings commanded him to confess. The b 1 ror-stricken wretch obeyed, and upon the strength of that confession he was condemned to death. Before, however, the sentence was executed, the real murderer was discovered, and the life of the innocent man was saved. But it was to( late: he left his prison indeed, but it was only to become the inmate of a mad- house. The ghost had been dressed up by the authori- ties for the occasion, and they no doubt prided them- selves upon the success of their stratagem, until the Pro- vidence of God revealed the truth.' Again, in the month of February, 1830, a Danish am- bassador, named Von Qualen, was found dead in a gar den at Cutin, in the duchy of Oldenburg, and the snoN\ on the ground was covered with blood from his body. The surgeons who examined it at first were of opinion that death was caused by a fall, but afterwards they thought he had been murdered. Two servants of the deceased, both of whom had hitherto borne unimpeacha- ble characters, were arrested, although there w^re no tangible grounds of suspicion against them. During six long years they remained in prison, and in that tfme had to undergo upwards of eighty examinations, which when taken down filled six thousand pages. At last the Fac- ulty of Jurists, to whom the case Was referred, pro* nounced their judgment, which was, that " not only the ' Annalen der Kurhess. Criminal Justiz. 'H--\i>;i. ii^LiwV.-. I ll ■ il 1 I 324 GERMAN CRIMINAL PROCEDURE. [Ch accused were to be released, as entirely innocent, but their claims to compensation for their long imprisonment were expressly reserved to them." Against this judg- ment, however, the public prosecutor appealed, and the two victims, who had been in the meantime set at liberty, were again incarcerated. In 1837 the Court of Appeal at Oldenburg gave judgment in the case ; and as regarded one of the accused, confirmed the decree cf the Faculty of Jurists; but condemned the other to pay the costs of h'.i maintenance in jail, and half the expense of the pro- cess against him ! ' Well may Welcker, when narrating this instance of prostituted justice, indignantly exclaim : " And until the eighth year, — Yes ! I say, until the eighth year, in Germany — the Germany of the nineteenth cen- tury — in the ordinary course of law, could such a crimi- nal process — such a frighful martyrdom of inquiry — con- tinue against these hapless and innocent men I " * He mentions also a case that occurred in recent times in the Grand Duchy of Hesse, where, after the ordinary means employed to bring abou^ a confession had failed, the magistrate caused the back of the accused to be seared with a hot iron, and after having allowed him to satisfy his famished appetite with salt food h? deprived him of water wherewith to slake his raging thirst. This however was carrying the system too far, and the official who had thus exercised his diabolical ingenuity " to dis- cover the truth," was dismissed from his post."* In the year 1830, a person named Wendt, living at Rostock, in the Duchy of Mecklenburg, was accused of poisoning his mother and his wife, and of attempting to poison his mother-in-law and several other persons, and also of arson. In 1834, the Faculty of Jurists at Got- tingen acquitted him of the first charge, but found him guilty on the others, and condemned him to be broken • Bftner's Strafrechtsfalle, n. » Staats-Lexicon, vn. 709. * Welcker quotes as his authority Demme's Annalen, Vlll. 162. rcH XVI.] INTRODUCTION OF JURY TRIAL. 325 on the wheel. The case, however, was referred to a similar faculty at Heidelberg, who, in 1836, with precisely the same materials before them, pronounced him inno- cent of all the crimes except that relating to his wife, abouk which their judgment seems to have been equiva- lent to a verdict of " not proven ;" and with respt-ct to that they ordered him to pay the costs of the proceed- ing. On appeal to the Supreme Tribunal at Parchim, that court, in 1838, declared him innocent on all the charges, and reversed the decision of the Heidelburg jurists as to costs. In 1839, ^ prisoner under sentence of death, confessed that he was the perpetrator of the crimes of which Wendt had been accused, and of which he was the victim ; for the long-protracte J trial de- stroyed his health and reduced him to beggary.' Section II. Introduction of the Jury Trial in Criminal Cases. When the French during the. war of the revolution made themselves, in 1798, mast'^rs of the provinces bor- dering the Rhine, they introduced there trial by jury in criminal cases, which had been established in France by a decree of the Constituent Assembly, on the i6th of September, 1791. The institution took vigorous root, and flourished so as to outlive the ephemeral possession of the soil by the invaders. At the close of the war part of these provinces were united to Prussia, where the old system of judicature prevailed. The hatred felt throughout Germany at the French name was at this period intense, and the people were anxious to obliterate all traces of the military inundation which had swept over them, and to restore the old landmarks of German nationality. Prussia, therefore, looked with no favor upon a tribunal which was the offspring of French dom- t ^ Demme's Neue Annalen. ' ^«r.<- r^-vpf-,- 326 GERMAN CRIMINAL PROCEDURE, [Cii. ination, but the inhabitants of the Rhineland clung to it with the afifection of men who knew by experience the benefits it conferred. The government now adopted a wise course. They appointed a commission of five per- sons, well qualified for the task, two of them natives of Rhenish Prussia, and three of Prussia Proper (the latter members of the Supreme Court at Berlin), who were thoroughly to investigate the practical working of the system, and ascertain by personal inquiry what were the views and wishes of the inhabitants of Rhenish Prussia on the subject. After a long and deliberate inquiry, the Commissioners made their report in 18 19, and they were unanimous in favor of the continuance of the jury trial.' The Prussian government acquiesced, and the institution was preserved as it exists at present. An ex- ception, however, was made that same year in the case of trials for political offenses, which were removed from the cognizance of a jury ; and this, no doubt, was a ser- ious encroachment upon the rights which it is the object of the system to secure. The other provinces of the Rhine, such as Rhenish Hesse and Bavaria, also retained the same mode of trial, and their attachment to it has increased with time. In the words of Welcker, " they cling to it as firmly as to their religion." * In Prussia Proper, the political convulsions of 1848 led to the grant of a constitution, which was proclaimed on the 5th of December in that year, and it contained the promise that jury trial should be introduced into the courts of criminal justice. This promise was fulfilled by the promulgation of a law on the 3rd of January, 1847, which established the new system, and regulated its mode of action by a number of provisions taken chiefly without. ' Gutachten der konigl. preuss. immediat justis commissioa Qb«r dat Geschworengericht. 1819. ' Staats-Lexicon, Vll. 753. XVI.] INTRODUCTION OF JURY TRIAL. 327 any material variation from the Code Napoleon. The qualifications of jurors were made to depend upon a cer- tain rate of assessment to taxes, or the presumed posses- sion of a certain intellectual capacity. The latter includ- ed attorneys and notaries, professors, physicians and sur- geons, and all official persons who have property to the amount of 500 thalers, or are immediately nominated by the king. Every juryman must be at least thirty years old, and in the full enjoyment of civic rights ; and he most also have resided a year in the district for which the list is made up. The lists are prepared by proper officers in September every year, and are then for three days open to public inspection. The objections to any names must be madn within the same period, and are decided upon by the persons who prepared the particular lists. These are then submitted to the president of the ministry, who out of them frames smaller lists for each jury district. He chooses sixty names for every assize, and these are reduced to thirty-six by the presiding judge, not however in the way of selection, lut by ballot, while the public prosecu- tor and the prisoner have each the '^•'^ht of rejection or " challenge," to which the only limit is that twelve must be left. It would occupy too much space to detarl all the min- ute regulations of the ktw of the 3rd of January, 1849, establishing the jury trial in criminal cases throughout the Prussian dominions. And it is the less necessary to do so, as many modifications are already projected, the suggestions of both theory and experience.* It will be sufficient here to state generally, that there is no jury of accusation corresponding to our grand jury, and that the number of the trying jury is twelve, who may give a ver- dict by a majority. If, however, the numbers are seven to five the judges who preside at the trial nrtust decide it ' See Gneist, Die Bildung Jer Geschworeng. n DeatscHhmd. ■m 3a8 GERMAN CRIMINAL PROCEDURE. [Ch. themselves according to a plurality of opinions.' And where the jury are unanimous in a verdict of guilty, but the court is satisfied that they are mistaken, it may annul the verdict and order a fresh trial. But if the same ver- dict is returned a second time it is final, By a law of the 15th of April, 1851, political offenses were withdrawn from the cognizance of juries in Prussia. The jury system in criminal trials was adopted in Bavaria and Hesse, in 1848. In Wurtemberg and Baden, in 1849. In Austria at the beginning of 1850; and the first trial by jury took place at Vienna in the autumn of that year. In Hanover and many of the smaller states it either has been already, or is about to be in- troduced. Eagerly as trial by jury was demanded in Germany, and gladly as the concession has been received, exper- ience has already proved that institutions;, like tiees, when transplanted do not flourish with the same vigor as when growing in their native soil. An ordinance can not supply that which usage and habit alone can give. The effective working of a system like the jury depends in an especial manner upon circumstances which can not be made the subject of legislation.' It takes its color- ing and complexion, and, indeed, all its vitality, from the intellectual and moral character of the people, in whose hands it is placed as a plastic instrument for good or evil. And the character of a nation is the growth of ages influencing much more than influenced by institu- tions adopted from without. I u/ no means say that there is anything in the German mind antagonistic to a ' So tritt das Gericht selbst in Berathnng und entscheidet nach Stimmen- mehrheit Uber den von den Geschworenen nur mit einfacher Mehrheit fest- gestellten Pukt. § III. der Verordn. 3 Jan. 1849. * Die blosse Einfuhrung neuer liberalen Formen und die Nachahmung gerichtlicher Einrichtungen fremder LSnder nicht hinreicht, wenn diese Formen nicht in den Sitten des Volkes wurzein und ihre belebende Kraft dnrch gewisse Zust&nde erh^Uen Mitiermaier. Die Mttndlichkeit &c. p. 75. XVI.] INTRODUCTION OF JURY TRIAL. 329 full and fair development of all the advantages of the jury trial. But time alone can show whether this is so or not. The danger, I think, is, lest in their love for theory and passion for the ideal, they become too im- patient of defects which ought to be remedied, not by the abstract rules of philosophic principle, but the homely suggestions of practical experience. Moreover, many questions of difficulty must of necessity arise, which will make the Germans at first dissatisfied with the tribunal. The province of the jury and that of the judge may be clearly defined on paper, but this will not prevent collisions from occurring, from time to time, be- tween them, which will engender a spirit of opposition, and cause the people to look upon the latter with sus- picion and mistrust. Juries will now and then return absurd verdicts, which will tend to bring the institution into contempt. Some instances of these have already happened, and are noticed by Goetze, vice-president of the royal Supreme Court at Berlin, in his short treatise, published last year, " Ueber die Preussischen Schwur- gerichte und deren Reform." It would be easy to match such cases by similiar blunders on the part of English juries ; but here we make allowances as for the faults of an old friend, and their occurrence hardly ex- cites more than a passing smile. We know that they are mere exceptions, and can afford to excuse them. Not so in Germany, where as yet it can scarcely be known whether they will prove the exception or the rule. Many reasons of this kind concur to abate the enthu- siasm with which the Germans regarded the jury trial when at a distance. They now begin to scan more nar- rowly the system. Goetze has done this in the work already mentioned, and Professor Gneist in an. elaborate treatise has pointed out its defects, and suggested a great variety of amendments in the shape of a new projet de loi (<3re0(t}etltUltttf). He says that the institution has I 330 GETANM CRIMINAL FROCEDURE. [Ch. XVI. not been greeted with the applai.se that had been ex- pected. What would a year previously have been met with acclamation is now received with unmistakable coldness. He attributes this chiefly to the nature of the property qualification required for serving on the jury, which makes it too much of a class interest, and to the interference of government in the preparation of the lists. But there can be no doubt that the new system is a valuable boon and an immense improvement upon the former procedure. AH friends of constitutional freedom and enemies of judicial oppression must wish well to the great experiment ; and we may hope that amongst a people so truthful, so honest, and so enlightened as the Germans, trial by jury will soon become one of their most efficient as well as cherished institutions. CHAPTER XVII. ILLUSTRATIONS OF TRIAL BY JURY IN THE CASE OF ENGLISH STATE PROSECUTIONS I PROPOSE, in the present chapter, to illustrate the improvement which has taken place in the conduct of criminal proceedings, in this country, by a few exam- ples of trials at different periods of our history. As juries are drawn from the mass of the people, and from no distinct class or body having interests separate from those of the rest of the nation, they may be fairly deemed to represent the average state of public feeling and spirit ; and the verdicts they give are a tolerably correct index of the opinions entertained by society on questions affecting the rights and liberty of the subject. But in former times the proper province of the jury was not sufficiently understood, and the rules of evi- dence were so loose and defective, that a prisoner stood in great jeopardy where ihe court, acting in obedience to the known wishes of the crown, strove to obtain a conviction. Sir Nicholas Throckmorton's case deserves to be men- tioned, as betokening the comm«incement of a more manly spirit in juries, which had in state prosecutions previously been so accustomed to yield a servile defer- ence to the authorit)'^ of those in power, as to render trial by jury little better than a mockery. For, as Hargrave says,* " in ancient times, and more especially in the reign of Henry VIII., when from the devastation • See I State Tr. 407 (Howell's Edit.X 33? ILLUSTRATIONS OF JURY TRIAL. [Ch. made by civil wars amongst the ancient nobility, and other causes disturbing the balance of the constitu- tion, the influence of the crown was become exorbitant, and seems to have been in its zenith, to be accused of a crime against the state and to be convicted were almost the same thing. The one was usually so certain a conse- quence of the other, that exclusively of Lord Dacre's case, who was tried by his peers and acquitted in the reign of Henry VIII., and that of Sir Nicholas Throck- morton in the reign of his daughter Mary, the examples to the contrary are very rare." Sir Nicholas Throckmorton was tried in the year 1554 (the 1st of Mary), by a common jury before commission- ers at Guildhall, on a charge of high treason, for conspir- ing and imagining the death of the Queen, and intend- ing to depose and deprive her of her royal estate, and also traitorously devising to take violently the Tower of London. In many respects the trial is remarkable, as showing the contrast between the mode of conducting a criminal prosecution then and at the present day. The attorney-general. Griffin, was of course one of the coun- sel for the crown, but he was led by Sergeant Stanford,' who took precedence of the Queen's first law-officer. The commissioners and the counsel catechised the pris- oner much in the same way as is still customary in France and Belgium, and sought to entrap him into unfavorable admissions, notwithstanding the affecting appeal made by him to their sense of justice and fair play. He said : " I pray you remember that I am not alienate from you, but that I am your Christian brother — neither you so charged but you ought to consider equity, nor yet so privileged, but that you have a duty of God appointed you how you shall do your office ; which if you exceed * Stanford, or as the name was written, Staundforde, was the author of » learned work, called Pleas of the Crown. XVII.J IN STA TE PROSECUTIONS. 335 will be grievously required at your hands. It is lawful for you to use your gifts, which I know God hath largely given you, as your learning, wit, and eloquence, so ;is thereby you do not seduce the minds of the simple and unlearned jury, to credit matters otherwise than they be. For. master Sergeant, I know how by persuasions, en- forcements, presumptions, applying, implying, inferring. •conjr;cluring, deducing of arguments, wrestling and ex- ceeding the law, the circumstances, the depositions and ■confessions, unlearned men may be enchanted to think and judge those that be things indifferent, or at the worst oversights, to be great treasons ; such power orators have, and such ignorance the unlearned have. Almighty God by the mouth of his prophet doth conclude such ad- vocates to be cursed, speaking these words, ' Cursed be he that doth his office craftily, corruptly, and maliciously.' " This address does not seem to have had much influence •upon the learned sergeant, who opened the case against the prisoner by asking him the following question : " How say you, Throckmorton, did not you send Win- ter to Wyat into Kent, and did devise that the Tower of London should betaken, with other instructions concern- ing Wyat's stir and rebellion ?" Throckmorton admitted that he had said to Winter that Wyat was desirous to speak with him, but denied that he had concerted with them any plot for taking the Towc;r. Upon this Stanford read a confession made by Winter, although he was alive and mi^ht have been called so as to give his evidence in the presence of the prisoner ; and then triumphantly turning to the jury he ex- claimed : " Now, my masters of the jury, you have heard my sayings confirmed with Winter's confession ; how say you, Throckmorton, can yci H ny it? if you will, you shall have Winter justify it t '. face." Throckmorton, howevei <: d that as there was nothing j34 ILLUSTRATIONS OF JURY TRIAL [Ch material in the confession to innplicate him, he might safely admit the whole to be true, although he might truly deny some part of it. Sergeant Dyer then adduced another confession of an alleged co-conspirator named Cioftes, and proceeded to state the substance of it, when Sir Nicliolas Throckmorton interposed, and took a most just and reasonable objection, saying: " Master Croftes is yet living, and is here this day ; how happeneth it he is not brought face to face to justi- fy the matter, neither hath been of all this time ? Will you know the truth ? either he said not so, or he will not abide by it, but honestly hath reformed himself." But this argument had no effect, and the next step was to read a confession by one Vaughan, of a damnatory nature against the prisoner; after which Sir Thomas Bromley, lord chief justice of England, who was one of the commissioners, said to him : " How say you, will you confess the matter? and it will be best for you." Throckmorton. — " No, I will never accuse myself un- justly ; but inasmuch as I am come hither to be tried, I pray you let me have the law favorably." Vaughan was then called, and being sworn, gave his evidence viv^ voce. Throckmorton admitted that some part of his confessicJn previously read was true, "as the name, the places, the time, and some part of the matter." This made the attorney-general turn triumphantly to the jury and exclaim, "So you of the jury may perceive the prisoner doth confess something to be true." The ques- tioning of the accused was resumed, and the confessions of other persons, not produced as witnesses, implicating him, were read. He took several objectiorvs in point of law, and amongst them this, that only one witness had appeared against him, whereas the law required that there should be two to justify a conviction on a charge of high treason. He therefore desired that the Court would read XVII.] IN STATE PROSECUTIONS. 3.35 the statute relating to that crime to the jury; but Chief Justice Bromley answered, " No I for there shall be no books brought at your desire ; we know the law sufficiently without book." After some altercation be- tween the court and the prisoner, the attorney- general interrupted them, saying, •* I pray you, my Lord Chief Justice, repeat the evidence for the Queen, and give the jury their charge ; for the prisoner will kct p you here all day." But Throckmorton felt that he was speaking for his life, and was not inclined tamely to sur- render his right to be heard. At last, after some home thrusts had been made by him at Mr. Attorney, the latter, losing his temper, said : "I pray you, my lords, that you the Queen's commis- sioners suffer not this prisoner to use the Queen's learned counsel thus; I was never interrupted thus in my life, nor I ever knew any thus suffered to talk as this prisoner is suffered : some of us will come no more at the bar, an we be thus handled." At last Chief Justice Bromley summed up the case, and Throckmorton afterwards addressed the jury in an earnest speech, saying, " The trial of our whole contro- versy, the trial of my innocency, the trial of my life, lands, and goods, and the destruction of my posterity forever, doth rest on your good judgments." The jury then re- tired, and after deliberating for several hours, returned into court with a verdict of Not Guilty. Upon this the Lord Chief Justice, with the most marked impropriety remonstrated with them in a threatening tone, saying, " Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited ? The matter doth touch the Queen's highness and yourselves also; — take good heed what you do." But the jury were firm, and Whetston, the foreman, an- swered, " We have found him not guilty, agreeable to all our consciences." 336 /LLVSTRATIONS OF JURY TRIAL [Ch. Bromley, C. J. — " If you have done well, it is the bet- ter for you. But it was not better in a pecuniary sense for the jury. The attorney-general immediately rose, and thus ad- dressed the court : " And it please you, my lords, forasmuch as it seemeth tliese men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, I pray you for the Queen that they and every one of them may be bound in a rec- ognizance of ;^500 a piece to answer to such matters as they shall be charged with in the Queen's behalf, when- soever they shall be charged or called." The court, however, went further than even this mon- strous request asked them to do ; for according to the ifcport of the trial, being dissatis6ed with the verdict, they committed the jury to prison. Four of the number were soon .' erwards discharged, on humbly admitting that they had done wrong; but thei remaining eight were brought before the Star-Chamber and most severely -dealt with. Three were adjudged to pay £2,000 each, ,and the rest £,200 each. It is unnecessary to point out the irregularities and in- justice in the conduct of this trial, which, thanks to the ^firmness and honesty of the jury, terminated in an ac- -quittal. To use the words of the accomplished editor of Criminal trials,' " With the exception of the ar- raignment, we look in vain for any similarity to our present system of criminal procedure. Instead of a statement of the facts of the case by the queen's counsel, for the assistance of the court and jury in attending to the evidence, we find only repeated protestations of the guilt of the prisoner; and, instead of being calmly called ' D. Jardine, E^q. The observations of this author are always interest- iing, and his work is a valuable manual for those who wish to make them iselves acquainted with our old criminal jurisprudence. XVII.] IN STATE PROSECUTIONS. 337 upon by the court for his defense when the case for the prosecution is closed, we see the prisoner, from the be- ginning to the end of the trial, literally baited with questions and accusations by the court and the counsel ; repeatedly urged both to confess his guilt, and required to answer separately to each piece of evidence as it is produced. Throckmorton was a man of great talents and of singular energy of mind ;, and his activity and boldness gave him unusual advantages in his altercations with the judges and counsel ; but a man of less firm- ness of nerve, though entirely innocent, would, under such circumstances, have been utterly unable to defend himself." It is, perhaps, not fair to complain of the confessions of absent parties being received in evidence as any special hardship in this case ; for the proper rules and principles of evidence at this time were so little under- stood, that almost anything was considered admissible, whether hearsay or not. I have selected the trial as an example, not only of the firmness of a jury when the government was despotic in its character, but also of the mode in which state prosecutions were then carried on, that we may feel and appreciate the change which has taken place. But it was not until the sera of the Revo- lution, in 1689, that this change became effective and real. The next trial to which I shall advert as illustrating the improper practices resorted to in former times to obtain a conviction, and, at the same time, showing the necessity then of an institution like the jury to serve as a bulwark against the attacks of the crown and the ser- vility of the judges, it that of Penn and Mead, who were indicted at the Old Bailey, in the year 1670 (28 Charles II.) for having, with divers other pernons to the jurors unknown, unlawfully and tumultuously assembled and congregated themselves together in Gracechurch Street, v*r^fT,.,'.;j"-V--'t,T i- 338 ILLUSTRATIONS OF JURY TRIAL [Ch. in London. The indictment then set forth that Penn^ by agreement, wish, and abetment of Mead, in the open street, did preach and speak to the persons in the street assembled, by reason whereof a great concourse and tumult of people a long time did remain and continue,, in contempt of the king and his law, and to the great terror and disturbance of many of his liege people and subjects. The real ground of the prosecution in this case war the dislike felt by the government against the Protestant Non -conformists, to whom Penn and Mead belonged,, being both Quakers, a sect which at that time had lately come into existence ; and owing to their extraordinary dress, demeanor, and doctrines, they were looked upon as fanatics of a pestilent kind. Their meeting-houses were shut up by the authorities, and they were com- manded not to assemble and preach in the streets. But, as Neal, the historian of the Puritans, says, " In imita- tion of the prophet Daniel, they would do it more pub- iicly because they were forbid. Some called this obstin- a':y, others firmness ; but by it they carried their point,, the government being weBry of dealing with so much perverseness." The following account of the trial is taken from a narrative written by Penn and Mead themselves ; * and of course some allowance must be made for possible ex- aggeration on their part. But there can be no doubt chat the proceedings were conducted with unseemly harshness, and the jury were threatened by the court in a manner subversive of every principle of justice. The trial took place before the lord mayor, recorder, and aldermen ; and after two or three witnesses had proved the fact that Penn had preached to the people, and that Mead was there, the recorder summed up the case to the jury, and they were told to consider their " See 6 State Tr. 95^-69. XVII.] IN STATE PROSRCUTIONS. 339 verdict. They retired to a room up-stairs, and in the words of the narrative, " After an hour and a-halfs time, eight came down agreed, but four remained above ; the court sent an officer for them, and they accordingly canr>e down. The bench used many unworthy threats to •. four that dissented; and the recorder, addressing hirself to Bushel, one of the jury, said, " Sir, you are the ca jc of this disturbance, and manifestly show yourself an abet- tor of faction ; I shall set a mark upon you, sir ! " Sir y. Robinson (Alderman). — " Mr. Bushel, I have known you near this fourteen years ; you have thrust yourself upon this jury, because you think there is some service for you : I tell you, you deserve ;o be indicted more than any man that hath been brought to the bar this day." Bushel. — " No, Sir John ; there were threescore before me, and I would willingly have got off, but could not." Alderman Bloodworth. — " I said, when I saw Mr. Bush- el, what I see is come to pass ; for I knew he would never yield. Mr. Bushel, we know what you are." May. — " Sirrah, you are an impudent fellow. I will put a mark upon you." The jury were then sent back to consider their verdict, and after some considerable time they returned to the court. Silence was ordered, and the jury were called by their names. Clerk. — ^Are you agreed upon your verdict ?" Jury.—'' Yes." Clerk.—'' Who shall speak for you ?" Jury. — " Our foreman." Clerk. — '• Look upon the prisoners at the bar. How say you ? Is William Penn guilty of the matter where- of he stands indicted in manner and form, or not guilty?" Foreman. — " Guilty of speaking in Gracechurch Street." Court.—'' Is that all ? " rissv.-. 340 ILLUSTRATIONS OF JURY TRIAL [Ch. Foreman. — " That is all I have in commission." Recorder. — " You had as good say nothing." May.—" Was it not an unlawful assembly ? You mean he was speaking to a tumult of people there." Foreman. — " My lord, this is ail I had in commission." The narrative then thus proceeds : " Here some of the jury seemed to buckle to the questions of the court ; upon which Bushel, Hammond, and some others, opposed themselves, and said they allowed of no such word as an unlawful assembly in their verdict ; at which the record- er, mayor, Robinson, and Bloodworth, took great occasion to vilify them with most opprobrious language : and this verdict not serving their turns, the recorder expressed himself thus : Recorder. — " The law of England will not allow you to part till you have given in your verdict." Jury. — " We have given in our verdict, and we can give in no other." Recorder. — " Gentlemen, you have not given in your verdict, and you had as good say nothing ; therefore go and consider it once more, that we may make an end of this troublesome business." Jury. — "We desire we may have pen, ink, and paper." Their request was complied with, and the jury again retired; and after a short interval returned into court ■with their verdict written. They found Penn " guilty of speaking or preaching to an assembly met together in Gracechurch Street ; " and Mead not guilty. This put the court into a passion, and the recorder said : '* Gentlemen, you shall not be dismissed till we have a verdict that the court will accept : and you shall be locked up, without meat, drink, fire, and tobacco ; you shall not think thus to abuse the court ; we will have a verdict, by the help of God, or you shall starve for it." Penn. — " My jury, who are my judges, ought not to be thus menaced ; their verdict should be free, and not com- TT XVII.] IN STATE PROSECUTIONS. 34» pelled ; the bench ought to wait upon them, but not forestal them. I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury's verdict." Recorder. — " Stop that prating fellow's mouth, oi put him out of the court." The jury were again directed to retire to their room; but Penn made a spirited remonstrance. He said: "The agreement of twelve men Is a verdict in law, and such a one being given by the jury, I require the clerk of the peace to record it, as he will answer at his peril. And if Lhe jury bring in another verdict contradictory to this, I affirm they are perjured men in law. You are English- men (turning to and addressing the jury); mind your privilege ; give not away your right." The court then adjourned to the next morning, which was Sunday, when the prisoners were brought to the bar, and the jury sent for. They still persisted in their ver- dict, that Penn was only guilty of peaking in Grace- church Street, which was of course no legal offense. Chrk. — " What say you ? Is William Penn guilty of the matter whereof he stands indicted, in manner and form aforesaid, or not guilty?" Foreman. — " Guilty of speaking in Gracechurch Street." Recorder, — " What is this to the purpose? I say I will have a verdict." .A.nd speaking to Bushel, he said : " You are a factious fellow ; I will set a mark upon y du ; and whilst I have anything to do in the city, I will have an eye upon you." Mayor. — " Have you no more wit than to be led by such a pitiful fellow ? I will cut his nose." Penn. — " It is intolerable that the jury should be thus menaced: is this according to the fundamental laws? Are not they my proper judges by the Great Charter of England? What hope is there of ever having jistice done, when juries are threatened, and their verdicts re- 342 ILLUSTRATIONS OF JURY TRIAL [Cfl. jected ? I am concerned to speak, and grieved to see such arbitrary proceedings. Did not the lieutenant of the Tower render one of them worse than a felon ? And do you not plainly seem to condemn such for factious fel- lows, who answer not your ends ? Unhappy are those juries who are threatened to be fined, and starved, and ruined, if they give not in verdicts contrary to their con- sciences." Recorder. — *' My Lord, you must take a course with that same fellow." Mayor. — " Stop his mouth ; jailer, bring fetters, and stake him to the ground." Penn. — " Do your pleasure ; I matter not your fet- ters." Recorder. — " Till now I never understood the reason of the policy and prudence of the Spaniards in suffering the Inquisition among them : and certainly it will never be well with us till something like unto the Spanish In- quisition be in England." Again the jury were commanded to retire, and con- sider their verdict, although the foreman protested, say- ing, " We have given in our verdict, and all agreed to it ; and if we give in another, it will be a force upon us to save our lives." Next day they returned into court, when the following scene tock place. Foreman. — *' H -*re is our verdict in writing, and our hands subscribed." The clerk took the paper, but was prevented by the re- corder from reading it ; and he commanded the clerk to ask for a positive verdict. Foreman. — "That is our verdict ; we have subscribed to it." Clerk. — " How say j ou ? Is William Penn guilty, &c. or not guilty?" Foreman. — " Not guilty." XVII.J TN STATE PROSECUTIONS. 343 Clerk. — " How say you ? Is William Mead guilty, &c. or not guilty?" Foreman. — " Not guilty." Clerk. — " Then hearken to your verdict ; you say, that William Penn is not guilty in manner and form as he stands indicted ; you say that William Mead is not guilty in manner and form as he stands indicted ; and so you say all." Jury. — " Yes, we do so." The court then commanded that every juror should ■distinctly answer to his name, and give in his separate verdict, which they unanimously did, saying, Not guilty, " to the great satisfaction of the assembly." . Recorder. — " I am sorry, gentlemen, you have fol- lowed your own judgments and opinions, rather than the good and wholesome advice which was given you ; God keep my life out of your hands ; but for this the court fines you forty marks a man, and imprisonment till paid." Upon this Penn came forward, and said : " I demand my liberty, being freed by the jury." Mayor. — " No, you are in for your fines." Penn. — " Fines, for what ?" Mayor, — " For contempt of court." Penn. — " I ask, if it be according to the fundamental laws of England, that any Englishman should be fined or amerced but by the judgment of his peers or jury ; since it expressly contradicts the 14th and 29th chapters of the Great Charter of England, which say, * No free- man ought to be amerced but by the oath of good and lawful men of the vicinage.' " Recorder,-— ^^ T^t. him away, take hiia away; take him out of the court." Penn. — " I can never urge the fundamental laws of England, but you cry, ' Take him away ! take him away !* But it is no wonder, since the Spanish Inqui- 1--A-, 344 ILLUSTRATIONS OF JURY TRIAL [Ch. sition hath so great a place in the recorder's heart. God Almighty, who is just, will judge you all for these things" "They then," says the narrative, "hauled the pris- oners in to the bale dock, and from thence sent them to Newgate, for the non-payment of their fines; and so were their jury. But the jury were afterwards dis- charged upon an Habeas Corpus, returnable in the Common Pleas, where their commitment was adjudged illegal." • In addition to what has been said in a previous chap> ter, as to the illegal custom of fining juries for their ver- dicts, we may here mention that in the reign of Eliza- beth, in a case where three persons had been indicted and tried for murder, and the jury found them guilty of manslaughter only, against the direction of the courts and apparently against the evidence also, all the jurors, were committed and find, and bound over in recogni- zances for their good behavior.* And in the reign of James I. it was held by the lord chancellor, the two chief justices and the chief baron, that when a party in- dicted is found guilty on the trial, the jury shall not be questioned ; but when a jury has acquitted a felon or traitor against manifest proof, they may be charged in the Star-Chamber, " for their partiality in finding a man- fest offender not guilty." ' This doctrine was extended to the case of fining the grand jury when they ignored a a bill ; and an instance of it occurred, in 1667, when Chief Justice Kelying fined a grand jury of the county of Somerset for refusing to find a true bill of murder against a man ; but " because there were gentlemen of repute in the county, the court spared the fine." * This case, however, and several others in which the same ■ Se« Bushell's case, Vaughan, 135. Ante, p. 154. ' Yelverton, 23. Noy, 48. ' 12 Co. Rep. 23. * 2 Keble, 180. XVII.] IN STATE PROSECUTIONS. 345 judge was concerned, were brought before the House of Commons, and the conduct of the chief justice was condemned, the house resolving " that the precedents and practice of fining or imprisoning jurors for verdicts is illegal." Finally, in 1670, it was solemnly decided by the Court of King's Bench, that the practice was con- trary to law.' But juries during the seventeenth century were not always so courageous in resisting the threats and bully- ing of the court. The infamous Jefferies found little difficulty in persuading them to convict during his bloody assize, or " campaign," as it was not unaptly called by his master, King James II., in the west of England, after the suppression of the Duke of Monmouth's rebel- lion. There are few more affecting trials on record than that of Mrs* Alice Lisle * indicted in 1685 ^o*" hig'^ trea- son, in having " traitorously entertained, concealed, com- forted, upheld and maintained " one Hicks (a dissent- ing minister), well knowing him to be a false traitor, and to have levied and raised rebellion and insurrection against the king. So ran the indictment ; but the real fact was, that Mrs. Lisle had received Hicks in her house after the battle of Sedgmoor, at which he had been present with the insurgents. The whole gist of the accusation con- sisted in the allegation that she knew at the time that he had been out with the rebels ; and this most certainly was not proved, whatever suspicions there might be on the subject. But Jefferies was not to be balked of his prey. His conduct throughout the trial was disgraceful to humanity ; browbeating the witnesses ' Mr. Jardine says (Criminal Trials, p. 118) that in some extreme cases where juries obstinately persist in giving a verdict contrary to the direction of the court in matters of law, they are even at the present day liable to be fined ; and he supports this assertion by a quotation from Hawkins's Pleas of the Crown. But this is very questionable in point of law, and certainly would never now be attempcd in practice. » II State Tr. 298-382. 346 ILLUSTRATIONS OF JURY TRIAL [Ch. when' they did not swear quite up to the mark, and straining every point against the prisoner. The animus of tlie judge was plainly seen even in the affectation of impartiality with which he closed his address to the jury on summing up the case. He said : •' Gentlemen, upon your consciences be it ; the preser- vation of the government, the life of the king, the safety and honor of our religion, and the discharge of our con- sciences as loyal men, good Christians, and faithful sub- jects, are at stake; neither her age nor her sex are to move you, who have nothing else to consider but the evidence of the fact you are to try. I charge you, there- fore, as you will answer it at the bar of the last judg- ment, where you and we must all appear, deliver your verdict according to conscience and truth. With that great God, the impartial judge, there is no such thing as respect of persons ; and in our discharge of our duty in courts of justice, he has enjoined us, his creatures, that we must have no such thing as a friend in the administration of justice ; all our friendship must be to truth, and our care to preserve that inviolate." Bishop Burnet gives the following account of the verdict of the jury : " Though it was insisted on as a point of law, that till the persons found in her house were convicted, she could not be found guilty, yet Jefferies charged the jury in a most violent manner to bring her in guilty. All the audience was strangely affected with so unusual a behavior in a judge. Only the person most concerned, the lady her- self, who was then past seventy, was so little moved at it, that she fell asleep. The jury brought her in Not guilty. But the judge in great fury sent them out again. Yet they brought her in a second time Not guilty. Then he seemed as in a transport of rage. He upon that threatened them with an attaint of jury. And they, overcome with fear, brought her in the third time» Guilty." ¥» ■'■5 f'-rt'f ■ XVII.] /iV STATE PROSECUTIONS. 347 Poor Mrs. Lisle was executed — but her attainder'was reversed in the following reign by an Act which recited that she had been convicted by a verdict injuriously ex- torted and procured by the menaces and violences, and other illegal practices of George Lord Jefiferies, baron of Wem,' then lord chief justice of the King's Bench. The trial and conviction of Mrs. Gaunt, on a charge of the same kind, was a fit sequel to that of Mrs. Lisle — and fills up the measure of our disgust at proceedings in which murder was committed under the form of law. The trial and conviction of Baxter, in 1685, were also disgraceful to both judge and jury. The latter had been carefully selected by the sheriffs, who were the tools of the government, and willingly seconded Jefferies in his eager- ness for a conviction. It is refreshing after this to turn to cases where the jury both understood and performed their duty. Such was that when Sir Hugh Campbell was tried in Scotland, on a charge of high treason, in 1684, and the lord justice- general by repeated questions endeavored to induce a witness for the crown to say something unfavorable to the prisoner. The scene is thus described in Wodrow's " History of the Sufferings of the Church :" ' "After silence, the justice-general interrogates Ingrham again : who answered, he had said as much as he could say upon oath. And the justice-general offering a third time to interrogate Ingrham, Nisbet of Craigentinny, one of the assizers, rose up and said, * My lord justice- general, I have been an assizer in this court above twenty times, and never heard a witness interrogate upon the same thing more than twice ; and let Cesnocl'; persua- sion be what it will, we who are assizers, and are to cog- ' He is so styled in the Act ; but it seems that the letters patent, if any were in preparation, elevating him to this dignity, were never formally made out. In a book printed in 1687, a dedication appeared addressed to Jeffer* ies by the titles of " Earl of Flint, Viscount Wycomb, and Baron Wem." » 10 State Tr. 970. 348 ILLUSTKATJONS OF JURY TRIAL. [Ch iiosce upon the probation upon the peril of our souls, will take notice only to Ingrham's first deposition, though your lordship should interrogate him twenty times.' The justice-general answered him with warmth, ' Sir, you are not judges in this case.' The laird of Drum, antjther of the assizers, presently replied, 'Yes, my lord, we are only competent judges as to the probation, thougfi not of its relevancy.' Whereupon the whole assizers rose up, and sented to what those said. The justice- general, in a t,.eat heat, said, 'I never saw such an up- roar in this court, nor, I believe, any of my predecessors before me ; and it is not us you contemn, but his majes- ty's authority.' " The trial and acquittal of the Seven Bishops in 1688 is a glorious example of the benefits of trial by jury.' There can not, I think, be a doubt that the obsequious judges at that time (always excepting Mr. Justice Powell) would have found them guilty if the decision had rested with them. The bishops were indicted for a conspiracy, the alleged overt act of which was the composition and pub- licutioii of a seditious libel under the form of a petition to the King (James II.). After the case had proceeded at great length, and some evidence to prove the publica- tion, about which there was a great difficulty, had been supplied by the opportune arrival of the Lord President of the Council, the lord chief justice. Sir R. Wright, said : '* Truly, I must needs tell you that there was a great presumption before, but there is a greater now, and I think I shall leave it with some effect to the jury. I can not see but here is enough to put the proof upon you." After the case had been summed up, and the opinions of the several judges given upon the point of law, as to whether the petition in question was a libel or not, the chief justice said to the jury : > 12 State Tr. 183-43I. XVII.] IN STATE PROSECUTIONS. 349 " Gentlemen of the jury, have you a mind to drink be- fore you go ?" Jury. — "Yes, my lord, if you please." Upon this wine was sent for, and the jury having re- freshed themselves, retired to consider their verdict. They stayed in deliberation all night, " without fire or ■candle," and the next morning came into court with a \ erdict of Not Guilty ; " at which there were several great hiiouts in court, and throughout the hall." The shouts, says Kennett, were carried on through the cities of West- minster and London, and flew to Hounslow-heath, where the soldiers in the camp echoed them so loud that it startled the king, who was then in Lord Feversham's tent. He sent to know what was the matter, and the earl came back and told him, " It is nothing but the sol- diers shouting upon the news of the bishops being ac- quitted. ' The king replied, "And do you call that nothing ? but so much the worse for them." The king might well ask whether it was nothing, when the army proclaimed by huzzas its sympathy with a ver- dict which rescued the Church of England from its hos- tile grasp. It was the death-knell of all his hopes, and told him, with a voice that could not be mistaken, that Protestant England would not submit her neck to the dominion of an alien pontiff, or her liberties to the caprice of a bigoted monarch. Bishop Burnet tells us of a jury in his time who were shut up a whole day and night, and those who were for an acquittal yielded to the fury of the rest, only that they might save their lives, and not be starved.' At the present day, when the jury in a criminal ' Not long ago a special jury at Salisbury, who were shut up to consider their verdict, sent a message to the SherilT, saying that they had already used as fuel the chairs, and were on the point of burning the tables in their room. On one occasion lately a facetious judge being asked by a juror on retiring, whether he might have a glass of water, decided that he might, saying, that in his opinion water was not drink. 350 n. LUSTRATIONS OF JURY TH/AL [Ch. trial can not a;4rce upon a verdict, they are dis- chargeil as soon as the confinement and abstinence be- come seriously injurious to liealth ; and this is generally certified to the court by a medical man. But it may well be doubted whether the rule as to their being kept •• without meat, drink, or fire," ought not to be relaxed. It is difficult to see what harm can possibly result from their being supplied with a moderate degree of food and the warmth of fire during their deliberation. The inter- ruption of their ordinary occupations, and the loss of time and inconvenience occasioned by their attendance at the trial, are quite a sufficient stimulus to induce them to come quickly to an agreement, without adding the pangs of hunger, and thirst, and cold. And it seems absurd, if not worse, to try and starve men into unanimity in a matter in which their consciences are concerned. The result must often be that the strongest stomach, instead of the wisest head, carries the day. I feel persuaded that if we first heard of the existence of this custom in a book of travels relating to some distant country, we should denounce it as utterly unreaonable ; and nothing but long usage could reconcile us to its continuance amongst us. For my own part, I am unable to devise an argument defending it. The possibility of excess seems to be the only pretext for the rule ; but this is a chimerical apprehension, since it is always in the power of the court to take care that the food and drink supplied shall be of the most temperate kind. It may possibly be said, that even this to some common jurors would be a temptation to prolong the sitting ; but when we consider the detriment to their own private affairs which absence causes, such a case can only be a rare and exceptional one. As a refreshing contrast to the mode of conducting state prosecutions in old times, we can not do better than carefully peruse the trials of Hardy, Home Tooke, XVII.] IN STATE PROSECUTIONS. I5X and others, indicted In 1794, for hi}i[h treason; and also those of Thistlewood, and Ings, indicted in 1820, for the same offense. The circumstances, however, of the cases at these two periods were very different. Hardy, Home Tookc, Holcroft, Thelwall, and others, were tried for constructive treason, in conspiring to subvert the gov- ment, by attending illegal meetings, and inciting the people to send delegates to a convention, with intent that the persons to be assembled at such convention miglit wickedly and traitorously, without, and in defiance of, the authority and against the will of tlie parliament of this kingdom, subvert and alter the legislature, rule and government of the realm, and depose the king from the royal state, title, power, and government thereof.' The prisoners were, at their own wish, tried separately ; and the occasion afforded Erskine an opportunity for the display of his unrivalled eloquence, and the achievement of his most brilliant triumphs. He was counsel for Hardy, whose trial came on first, and it will be forever memorable from the noble oration of the impassioned advocate who defended him. Erskine then eclipsed himself, and made a speech not unworthy of comparison with any ever delivered by Demosthenes or Cicero. It is impossible to give a notion of its excellence by mere extracts ; it would be like offering a few bricks as a specimen of a house. Nor is this the place for criticis- ing the mighty effort. But one passage I may cite to show the boldness of his language, and the spirit with which juries can be addressed when a question of political freedom is at stake. It is as follows : " I will say anywhere, without fear, — nay, I will say here, where I stand, — that an attempt to interfere, by despotic combination and violence, with any govern- ment which a people choose to give to themselves, whether it be good or evil, is an oppression and subver- ' State Trials, Vols. xxir. and xxv. ' •«F '•5i>rv.-« T'V - 35 2 ILL VSTRA TIONS OF JURY TRIA L [Ch. sion of the natural and unalienable rights of man ; and though the government of this country should coun- tenance such a system, it would not only be still legal for me to express my detestation of it, as I here deliber- ately express it, but it would become my interest and my duty. For, if combinations of despotism can ac- complish such a purpose, who shall tell me what other nation s'uall not be the prey of their ambition ? — Upon the very principle of denying to a people the right of governing themselves, how are we to resist the French, should th'.y attempt by violence to fasten their govern- ment upon us? Or, what inducement would there be for resistance to preserve laws, which are not, it seems, our own, but which are unalterably imposed upon us ? — The very argument strikes as with a palsy the arm and vigor of the nation. I hold dear the privileges I am contending for, not as privileges hostile to the constitu- tion, but as necessary for its preservation ; and if the French were to intrude by force upon the government of our own free choice, I should leave these papers, and return to a profession, that, perhaps, I better un- derstand." The result was, that Hardy was acquitted, and the government were ill-advised enough to persist in the other prosecutions, which, as might be expected, termin- ated in its defeat. Thistlewood and his companions, called the " Cato-street Conspirators," were determined rebels, who had all but succeeded in surprising and as- sassinating the ministers of the day at Lord Harrowby's house in Grosvenor-Square.' They were convicted and executed as they deserved ; and I only allude to their trials as good examples of the fair and temperate mode in which they are now conducted. But for this purpose any of the trials during the last hundred years may be » 33 State Tr. 681-1566. XVII.] IN STATE PROSECUTION'S. 353 taken at random, and they, perhaps better than any ar- gument or theory, will serve to display the inestimable benefits of the system in cases affecting reputation, lib- erty, or life. as I } CHAPTER XVIII. THE JURY CONSIDERED AS A SOCIAL, POLITI- CAL, AND JUDICIAL INSTITUTION. i \ \ AN institution like the jury, existing for ages amongst a people, can not but influence the national charac- ter. And it is not difficult to point out proofs of this. If Englishmen are distinguished for one moral feature more than another, it is, I think, a love for fair play, and abhorrence of injustice. Now the very esserice-_fi£_the jury trial is its principle of fairness. The right of beinj tried by his equals, that is, his fellow-citizens, taken In- discriminately from the mass, who feel neither nialicg-jior favor, but simply decide according to what in their con- science they believe to berths truth, gives every man a conviction that he will be dealt with impartially, and in- spires him with the wish to mete out to others the same measure of equity that is dealt to himself. But we must not suppose that it is trial by jury in crimi- nal cases only that exercises a beneficial influence, or that it can safely stand alone. In his able and philosophical work," De la D6mocratieen Am^rique," ' M.de Tocque- ville avows his conviction that the jury system, if lim,- ited solely to criminal trials, is always in peril. And the reasons he gives for this opinion are well worthy of con- sideration. He says that in that case the people see it in operation only at intervals, and in particular cases ; they are accustomed to dispense with it in the ordinary affairs of life, and look upon it merely as one means, and not ' Tom. n. i88. Ch. XVIII.] THE JURY CONSIDERED. 355 the sole means of obtai ning justice. But when it em- braces^'civn"actrpns, it is constantly before meir^eyes, and affects all their interests; it penetrates into the usages of life, and so habituates the minds of men to its forms, that they, so to speak, confound it with the very idea ot justice. The^ury, he^cj?ntinues. and especially the civil jury, serves to imbue the minds of tHe^tizeiis of a country with a part of the qualities and character of a judge ; and this is the best mode of preparing them for freedom. It spreads amongst all classes a respect for the decisions of the law ; it teaches them the practice of equitable deal- ing. Each man in judging his neighbor thinks that he may be also judged in his turn. This is in an especial man- ner true of the civil jury ; for although hardly any one fears lest he may become the object of a criminal prosecution, everybody may be engaged in a law suit. It teaches every man not to shrink from the responsibility attach- ing to his own acts ; and this gives a manly character, without which there is no political virtue. It clothes every citizen with a kind of magisterial office ; it makes all feel that they have duties to fulfill towards society, "O and that they take a part in its government ; it forces men to occupy themselves with something else than their own affairs, and thus combats that individual selfishness, which is, as it were, the rust of the community. Such are some of the advantages which, according to the view of this profound thinker, result from trial by jury in civil cases. But, moreover, it is one great ins tnuiieat-ibr„^e edu- cation of the people. " This is, in my opinion," says _M . , de Tocqueville, "its greatest advantage."* He callsitl )X a school into which admission is free and always open.j' which each juror enters to be instructed in his legal rights, where he engages in daily communication witl^ I ' " C'est 14, i mon avis," says M. de Tocqueville, " son plus grand avan- ,iifc >- 3S6 THE JURY CONSIDERED AS A SOCIAL [Ch. the most accomplished and enh'ghtened of th^ upper classes, where the laws are taught him in a practical manner, and are brought down to the level of his appre- hension by the efforts of the advocates, the instruction of the judge, and the very passions of the parties in the cause. Hence, says M. de Tocqueville,' " I regard it as one of the most efficacious means that society can em- ploy for the education of the masses." It is also no mean advantage of the system, that it calls upon the people largely to participate in judicial functions; and this makes them in a great degree respon- sible for the purity of the proceedings of~the courts ot law. Such, indeed, was the case at Athens of old, but public morality was there at a low ebb : and the capital error was committed of lessening the sense of responsi- bility, by distributing it amongst a crowd of dicasts, who decided causes with the feelings and passions of a tumul- tuous assembly, rather than the grave austerity of a court of justice. From the first of these evils England has been preserved by Christianity ; and the second has been avoided by limiting to twelve persons in each case the investigation of disputed facts, and decision respect- ing innocence or guilt. We are so familiar with the sys- tem, that we can hardly appreciate its full value. And yet it must react upon and influence the tone of public feeling, when so large a portion of the community are frequently called upon to discharge the important func- tions that devolve upon juries; when they have so often to promise, under the awful sanction of an oath, to lay aside anger, and hate, and fear ; nor allow themselves to be swayed by love or friendship while they address them- selves to their soi^mn duties : when they witness the un- wavering firmness and stern impai.;, luy wi.'^ which jus- tice is administerea, and listen £o the cair»i a-.rl passion- * " Jc le rega'de com me V'ln d(- ir- ovens les p -ji i-ffji i. .^e dent puisse se «ervir la society pour I'-jiluration uu peuple." XVIII.] AND JUDICIAL INSTITUTION. 1^1 less recapitulation of the evidence by the presiding judge, in whose hands the balance is held so evenly, that it is often difficult to discover to which side his own in- dividual opinion inclines, and impossible to know which he wishes to succeed. The jury may also be considered in another point of view. It is a political institution of the highest value. — " The jury," says M. de Tocqueville,' "is emphatically a political institution. The man who judges in criminal cases is, then, really a master of society. The institution of the jury places the people themselves, or at least one class of citizens, upon the seat of the judge. The institu- tion of the jury, then, actually places the direction of so- ciety in the hands of the people, or of this class." The basis, and as it were taproot, of that enlight- ened freedom which distinguishes the Anglo-Saxon race, is the principle of self-government. It is aston- ishing how little the crown or the executive interferes with the internal regulation of the affairs of English- men. Municipal institutions in our towns spread over the kingdom a number of small parliaments, in which the representatives of each locality, annually elected by the rate-payers, discuss and decide upon the business which interests the inhabitants with as much independence as the House of Commons itself. If any act of illegal usurpation were attempted, they would instantly become the centers of resistance round which the people would rally. The borough funds are administered by each cor- poration, an'' the police act under its orders with as little control by the government as though the latter did not exist. Almost every man has an opportunity of making ■ " Le jury, est avant tout une institution politique. . . . L'homme qui juge au crimincl est done rt'ellement le in^itrt de la society. L'insti- tution du jury place le peuple luimerae, ou du moiiis une classe de citoyens, sui' le siege du juge. L'institutlon du jury met cioac reellement la direction de la socidt^ dans les mains du peuple, ou dt, cette classe." — De la Ddnio- cratie en Amtrique, Tom. ii. 184-186. ij ii il '' 358 THE JURY CONSIDERED AS A SOCIAL [Ch. his voice heard and his influence felt in all questions of local interest. And if he fails in his opposition to measures to which be is adverse, it is only because he is outvoted by a majority of his fellow-citizens. A field for active exertion is thus afforded to those busy spirits which take delight in the excitement of public business and popular harangues, and a safety-valve is opened through which escapes the vapor of ill-humor, which, if pent up altogether, might explode in sedition or treason. This it is which, combined with the enjoyment in ample measure of the political franchise, places the liberties of the country in a position of stable equilib- rium, and enables the vessel of the State to ride at anchor and in safety, while the storm of revolution sweeps with whirlwind violence over Europe. Now it is obvious that trial by jury is in direct har- mony with and encourages the exercise of this habit. Its very nature consists in making the people the arbi- ters in questions affecting their property, liberties, and lives. " It is to trial by jury," says one whose opinion is entitled to the greatest weight on such a question,' " more than even by representation (as it at present ex- ists) ' that the people own the share they have in the government of the country ; it is to trial by jury, also, that the government mainly owes the attachment of the people to the laws; a conslduiatlon which ought to make our h^gislators very cautious how tliey take awtiy this iiiiiilc nf tilal by new, trlHTng, and vexatious enact- ments." On the continent however, and especially in France, al- though there trial by jury does partially exist, self-gov- ern luent is practically unknown. Centralization swal- lows up and absorbs all freedom of local action. The government stretches out its polypus arms in every di- ' Lord John Russell, On the English Government, p. 394. • That is in 1823. Ml m XVIII.J AI\rD JUDICIAL INSTITUTION, 359 rection, and hardly anything is too minute and unim- portant for its grasp. The people do not manage their own affairs, but are treated like children, fit only to be " under tutors and governors." ' The consequence is, that the executive is made responsible for every real or imaginary evil ; discontent at its measures smolders in the hearts of the population, and the riot of a mob leads to the overthrow of a throne. " The more contracted power is," says Dr. Johnson, '' the more easily it is over- thrown. A country governed by a despot is an inverted cone. Government there can not be so firm as when it rests upon a broad basis gradually contracted, as the gov- ernment of Great Britain." The history of France during the last sixty years abundantly proves this. The government there, under whatever form, whether that of Directory, Consulship, Empire, Restoration, Monarchy of the Barricades, Republic, or the Army, which is its present phase, has always been essentially despotic in its character. It has ruled by a system of paid employes in immediate dependence upon itself. The provincial functionaries, such as prefects and sub- prefects, and mayors of arrondissements, are mere pup- pets whose strings are pulled by the executive in Paris. In no country is the system of police surveillance and espionage more thoroughly understood nr constantly practiced. No public meetings are convened as in Eng- land to take into consideration tiie measures of govern- ment, and if necessary organize a peaceful opposition to ' II est 6vident que la pluplart de nos princes ne veulent pas seulement dinger le peuple tout entier ; on dirait qu'ils se jugent responsables des actions et de la destinee individuel'e de leurs sujets, qu'ils ont entrepis de conduiie et d'eclairer chacun d'eux dans les differents actes de sa vie, et au besoin, dc le rendre heureux malgr^ lui-meme. Deleurcot^ les particuliers envisagent de plus en plus le pouvoir social sous le meme jour ; dans tous leur besoint ils I'apellent ^ leur aide, et lis attachent i .ous moments surlui liuis le^anl^ coiume sur un rvecepteur ou sur un guide. — De Tocqueville, Democratic en Am^rique. 36o THE JURY CONSIDERED AS A SOCIAL [Ch them. The people are not, except in the solitary in- stance of dropping their individual votes into the ballot- box when the period of an election comes round, made parties to the management of their own interests. Hence there is, properly speaking, no public opinion in France, the influence of which can be felt by statesmen, and enable them to forecast the measures which will be best suited forthe wants and most in accordance with the real wishes of the nation. Hence also results the startling paradox, that the French of all people in the world are the most impatient of constitutional control, and the most servilely submissive to despotic power. But how, it may be asked, is this consistent with the assertion that the institution of the jury, which does ex- ist in France, is conducive to self-government? The answer is, that its tendency is thwarted by opposing ir- fluences. It is but of recent introduction, and has not grown with the growth and strengthened with the strength of the French people. It has been adopted from without, and there has not yet been time for it to counteract the results of ce»ituries. In order to become the champion of freedom, it ought first to be its child. A nation must be accustomed to and familiar with the use of free institutions, to derive full benefit from the jury trial. As the people are thereby invested with the most important part of the judicial office, the right of determining questions of innocence and guilt, they must be fitted for their task in order to discharge it well. But how can this be if they have been brought up in habits of servile dependence upon the will of the govern- ment, acting everywhere and in everything through its official myrmidons ? This serves partly to explain the fact to which I have before adverted, that French juries actively seconded the government in its attacks upon the liberty of the press, and have thus conspired with it against their own freedom. XVIII.] AND JUDICIAL INSTITUTION. 361 But there is also another reason for the apparent an- omaly. There is no doubt that the jury in any shape, if left to itself, is antagonistic to arbitrary power. Hence, in all the continental nations where it has been intro- duced, the governments have endeavored to retain some influence over its decisions by entrusting the formation of the primary lists of the jurors, out of whom the par- ticular twelve are to be selected, to their own oflficers. Between such employes and our own sheriffs there is really no analogy. A French prefect is the nominee and paid servant of the government. He may be dismissed by it at any moment, and has, therefore, a direct and palpable interest in obeying the suggestions of those upon whom his tenure of office depends. But the sher- iffs in this country are in no sense the creatures of the crown or the government. In the first place they re- ceive no salary or pay of any kind, but, on the contrary, serve at a heavy expense to themselves. The office is in reality a burdensome one — and so would be felt were it not for the honor and position it confers for the time being. It is held only for a year, and the crown selects for it one of three persons in each county whose names are selected and presented by the judj^es. The sheriff is, in fact, in his ministerial capacity merely the officer of the courts of law for executing their vrits and process ; and as such he is amenable to their sum- mary jurisdiction, and may be fined by them for neg- lect of duty. We can, therefore, at the present day afford to smile at the danger with which we are threatened by a French writer, M. Oudot, when he points out as a defect in our system, which may be attended with the gravest conse- quences, the fact that the nomination of the sheriffs charged with the selection of juries belongs to the crown. He says, " If the minister could succeed in corrupting the judges who present the candidates for the office of 362 THE JURY CONSIDERED AS A SOCIAL [Ch. sheriff, he mijjht inflict a mortal blow upon the indepen- dence of the jury."' But it can not be denied that there Jiave been times when the apprehension was by no means chimerical, not, indeed, that the judges might be corrupted in selecting candidates for the office, but that the sheriffs themselves, might yield in the performance of their duties to the influence of favoritism and power. Under the Tudor princes it was no uncommon thing to tamper with the sheriff in order that he might return a panel favorable to the wishes of the crown ; and refrac- tory juries were summoned before the Star-Chamber or Privy Council, and there reprimanded, and sometimes punished with fine and imprisonment. Thus it was that, in the eloquent words of Mr. Hallam,' " That pri- maeval institution, those inquests by twelve true men, the unadulterated voice of the people responsible alone to God and their conscience, which should have been heard in the sanctuaries of justice, as fountains spring- ing fresh from the lap of earth, became like waters constrained in their course by art, stagnant and impure." But we must not exaggerate the extent or effect of this interference. The Star-Chamber never ventured to deprive the subject of his general right to trial by jury. The exercise of the powers of that unconstitutional tribunal was wholly exceptional. It did not pretend to assume cognizance of the great mass of offenses known to the lav/, but was the instrument whereby the crown gave effect to its own prerogative, the nature of which was in those days little understood, nor was its power confined within any definite limits. At an earlier period we find a formal attempt made in a single instance (at least I know of no other), to abrogate by law the claim ' Thforie du jury. ' Const. Hist. Eng. I. 316, 3rd edit. In Lodge's Illustrations and the Paston Correspondence we find numerous examples of improper solicitation by persons interested of the jurors returned on the panel. XVIII.] AND JUDICIAL INSTITUTION. 363 of a citizen to be tried by a jury of his countr> men. The rolls of Parliament for the reign of Edward IV. contain a petitior from two p<^rsons, Henry Bodiugan and Richard lioncthon, praying ihat ihcir conviction mi[^MU be annulled.' An aci had been passed in the fourteenth year of that reign, which authorized the jus- tices of the King's Bench to examine them on a charge of felony, and provided, " that if the said Henry and Richard were by their examination found guilty, they then should have such judgment and execution . s they should have had if ti>ey were of the same attaint by the trial of twelve men, and like forfeiture to be in that be- half." The accused partit s refused to appear, and were convicted by default. They therefore petitioned the crown that the judgment might be annulled, on the ground that a trial by justices in this mode was unknown to the law of England, and was a novel ;ind dangerous innovation. The king granted their prayer, and thus affirmed the principle of the indefeasible right of the subjects of this realm to be tried, as they have hereto- fore been accustomed, by a jury of their peers. And it would be difficult to conceive a better security than this right affords against any exercise of arbitrary violence on the part of the crown, or a government act- ing in the name of the crown. No matter how ardent may be its wish to destroy or crush an obnoxious oppo- nent, there can be no real danger from its menaces ot acts so long as the party attacked can take refuge in a jury fairly and indifferently chosen. If the law of the land is that the question of guilt is in all cases to be de- cided by such a tribunal, the people must conspire against themselves before monarch or minister can in- jure their property or unjustly abridge their individual freedom. To use the words of Bourguignon, when b'peaking of the jury in his excellent memoir on the IMAGE EVALUATION TEST Tf\R6ET (MT-3) ^ *^^ :/. ^ 4^ ^ 1.0 ^1^ tii l^||U|L6 6" Hiotographic Sdeoces Corporation 23 WtST MAIN STRUT VMnSTM,N.Y. 14S80 (716 {172-4503 ■ii ^ S '■^ M: "'&: ■'vp- '\y ,''k * ■Ji ■',+ .->(.. €,^ ■', --%-'. ,S?' 364 THE JURY CONSIDERED AS A SOCIAL [Ch. means of improving that system in France: " Leur in- dcpendance nc pent dtre dangereuse parceque leur pou- voir n'est qu'instantan^ : ne tenant \ aucune corporation ils ne peuvent avoir d'autre int^r^t que celui de la jus- tice \ on ne saurait faire servir le pouvoir qui leur est ronfi^, 'x un systfeme g^n^ral d'oppression ou de tyrannic^ puisque, pour les s^duire, il faudrait s^duire la masse enti^re des bons citoyens, et leur faire pr6f6rer I'int^ret des oppresseurs k leur propres int^rdts." Hence it is that the nations of the Continent have so ardently desired to obtain this mode of trial amongst themselves, and have put it in the van of their demands in all revolutionary movements. It is no exaggerated statement of the Danish jurist, Repp, when he says, " All modern nations (Europeans and Americans at least)^ in as far as they dare express their political opinions, though disagreeing in many other point? in politics, seem to agree in this : that they consider trial by jury as a palladium, which lost or won, will draw the liberty of the subject along with it. In the many constitutions which have been projected or established in the nineteenth century, most other things were dissimilar and local ; this alone was a vital poin'c, a punctum saliens from which it was expected that the whole fabric of a liberal constitu- tion would be spontaneously dated.' ' Take, for instance, the freedom of the press. This, which we justly prize as one of the first of social blessings, is chiefly indebted to the jury for its vigorous existence. Every state-trial for a seditious libel in this country ig an appeal from the government to the people. They by their representative twelve determine in each case, under the guidance of a judge, the degree of license which is allowable in the discussion of public questions ; and their liberty is thus placed directly in their own hands. A tyrannical minister in a country whose constitution is * Historical Treatise on Juries in Scandinavia. XVIII.] AND JUDICIAL INSTITUTION. 365 aiominally free may, through the agency of servile and corrupt tribunals, establish despotism under the form of law. But how can he accomplish this when, instead of judges removable at pleasure, he has to obtain the con- currence of independent citizens, taken at random from the community? They will not forge chains to enslave themselves. They will not pronounce a publication to be criminal because it reflects upon a government whose •conduct they feel ought to be subject to their censorship and control. The press, therefore, that mightiest agent for good and evil of modern times, has a peculiar inter- est in the preservation of a tribunal which gives it the right of saying Provoco ad populum, when the arm of the executive is stretched out to destroy it. Moreover, it is no light matter in a constitutional point of view, for the people to repose undoubting confidence in their legal tribunals. Political grievances are really often of far less practical importance than judicial. It is a much less evil to be deprived of an electoral vote than" to be exposed to the danger of an unfair trial upon a false accusation, or to have one's propert} at the mercy of an adversary who is rich enough to bribe a venal judge. No whisper of such_a_3.U&picion is ever breathed in this country, "anSTtHie consequence is a feeling of secu- rity and confidence in the upright administration of the law which nothing can shake. This is said to have been in a remarkable manner exemplified during the great Rebellion of 1642. Then, although the kingdom was rent asunder by civil wars, and Royalist and Roundhead fought desperately for their opposite political creeds, the ordinary functions of the courts of justice were neither changed nor suspended. The judges went their circuits, and held their assizes : and juries determined questions of property and life as in times of profound tranquillity ; nor did either party attempt to interfere with proceedings which both felt alike an interest in protecting. In the m 366 THE JURY CONSIDERED AS A SOCIAL [Ch. later years of ancient Rome the corruption of the legal tribunals was notorious. No reader of Cicero requires to be reminded of this; and it was one of the most efficient causes which led to the downfall of the Repub- lic ; for liberty became valueless when the fountains of justice were poisoned at their source. An opposite evil may, indeed, arise in times of popular excitement. Jurors drawn from the masses of the peo- ple, and under the influence of the same passions as their neighbors and fellow-citizens, may paralyze the arrn of • government by refusing to bring in verdicts of guilty where the charge is that of sedition or treason, although the case against the accused is clearly proved. This has happened at different times in this country, and it might be carried to such an extent as to render a state-prosecu- tion a hopeless attempt. But the evil suggests its own remedy. It may, I think, be safely asserted, that when this universal disinclination to convict exists, even where the evidence is clear, it is time to change the measures which have provoked such a humiliating result. It is worse than useless to persist in a course of policy which renders the executive pov/erless, and gives a triumph to the mob in every verdict of acquittal. The tack of the vessel must be altered when she can make no headway in the course that has been hitherto steered. With respect to-the^ury system as a means of protect- ing innocence, it may be safely averred that it is the rarest of accidents when an innocent man is convicted in this country.' To say that it never happens would be to give to a human tribunal the attribute of infallibility, to fly in the face of recorded facts. But so long as man's judgment is liable to error, such cases must now and then occur, whatever precaution is taken to prevent them. And before such a catastrophe can happen in ' For tables of the numbers of acquittals and convictions in the United Kingdom during the last few vears, see Appendix. XVIII] AND JUDICIAL INSTITUTION, 367 our own courts, how strong must be the evidence which implicates the ccused ! The committing magistrate, the grand jury, the petit jury, and the presiding judge, must all, in different degrees, have concurred in bringing about the result. I say the presiding judge, for if he has grave doubts as to the prisoner's guilt, it is always in his power, and indeed it becomes his duty, to point out to the jury what the circumstances are which may make it un- safe for them to bring in a verdict of guilty ; and it is well k" own that such an intimation is hardly ever disregarded. But can it with equal truth be asserted that juries never acquit in ordinary cases when they ought to condemn ? I fear not: This is no doubt the vul nerable point of the system, that ieellngs^ of coin passion for the pnsbner, or of repjjgaance to the punishment which' tlie law awards, are sometimes allowed to overpower their sense oT duty. -They usujpja such cases the prerogative^f^mercy, forget^ ting that theyjiave sworn to give a true verdTctac cord- ing to'lTie evidence. But it is an error at which human- ity need not blush : it springs from one of the purest in- stincts of our nature, and is a symptom of kindliness of heart which as a national characteristic is an honor. In some parts of Ireland, indeed, we can not doubt that un- willingness to convict has proceeded from sympathy with crime ; but those cases are exceptional. The state of Ireland is abnormal. Her social system is disorganized ; and so long as murders can be there committed in broad day in the face of many bystanders, and no attempt be made to prevent the crime or arrest the assassin, we can not hope that juric? will be found less ready to secure impunity to guilt. When in respect of any class of offenses the difficulty of obtaining convictions is at all general in England, we may hold it as an axiom, that the law requires amendment. Such conduct in juries is the silent protest of the people against its undue severity. This was strongly exemplified in the case of prosecutions 368 THE JURY CONSIDERED AS A SOCIAL [Ch, for the forgery of bank-notes, when it was a capital fel- ony. It was in vain that the charge was proved. Juries would not condenran men to the gallows for an offense of which the punishment was out of all proportion to the crime ; and as they could not mitigate the sentence they brought in verdicts of Not Guilty. The consequence was, that the law was changed ; and when secondary punishments were substituted for the penalty of death, a forger had no better chance of an acquittal than any other criminal. Thus it is that the power which juries possess of refusing to put the law in force has, in the W9rds of Lord John Russell, ' " been the cause of amend- ing many bad laws which the judges would have admin- istered with professional bigotry," and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England." It would be strange indeed if we were dissatisfied with a tribunal which is one of the objects most prized by those nations on the continent who possess it, and most coveted by those who do not. Let us listen to the lan- guage used by a German judge on opening an assize court in Rhenish Bavaria, in 1834: * " As often as the day again appears, on which jurors meet for the discharge of their important functions, ear- nest thoughts must throng upon the mind of every re- flecting person who understands how to judge of and lay to heart the higher relations of the social union. The first impression certainly amongst us all is a feeling of joy that we are still in possession of an institution which ' Essay on English Government, p. 393. ' This expression is rather harsh, for it must be remembered that the judges are bound to administer the law as they find it . They are not re- sponsible for its undue severity. This is the fault of the legislature. So that, " professional bigotry " really can mean nothing more than " conscien* lious regard for their duty and their oaths." ' See Staats-Lexicon, Vol. vil. Art. Jury. XVI II.] AND JUDICIAL INSTITUTION. 369 the freest nations of two hemispheres regard as their most precious jewel, and watch over with jealous eyes — an institution which calls on the unprejudiced, indepen- dent citizen to be the judge of his equal ; — which sur- rounds the holiest rights of man — the rights of liberty and honor — with the strongest guards which human fore- sight could devise, when it freed the verdict of guilty or not guilty from the trammels of legal technicality, and entrusted it to the conscience of chosen men, who taken from the midst of the population, and from all classes of the community, offer every possible guarantee for a dis- cerning and impartial administration of justice. The people who possess such an institution stand higher than those who arq still without it. They are less in their nonage, and more free. The citizen who -from time to time is summoned from the round of his usual avocations to the judgment-seat, must feel himself in a high degree honored and elevated by the trust reposed in him. He becomes more conscious of his worth as a man and a cit- izen. He gains both in experience and intelligence, lightly, theref6re,"may a certairT degree of pride mingle with the feeling of joy of which I have spoken." Such sentiments could only spring from a deep con- viction of the worth of the object they applaud. And this conviction was no doubt strengthened by the con- trast that exists between trial by jury and the mode of criminal procedure in the other German states, of which we have already spoken. But such contrast enhances the value of the testimony. It must, however, be admitted that it is not in its crim- inal functions that the jury has been exposed to the at- tacks of those who question its title to public favor. No voice worth noticing has been raised against it in this aspect, although it has often been said in jest, that an innocent man would prefer being tried by a judge, and a guilty one by a jury, who would be more likely to blun- 84 37 o THE JURY CONSIDERED AS A SOCIAL [Ch. der into an acquittal. But its merits as a tribunal for the decision of civil actions have been more freely can- vassed ; and here we can not appeal to the desire of the continc:ntal nations to adopt the institution as a testimony on its behalf; for in no instance have they introduced into .their courts trial by jury in civil cases. They have looked at it only as a means of protection against false chari^es of crime, and have not ventured to submit to its decision complicated questions of property or contract, where facts asserted on one side are denied on the other. In the speech made by H6rault de S^chelles, when he presented the Report of the Jurisprudence Committee to the French National Convention in 1793, he said: " It is not the same in civil affairs as in criminal. In criminal matters where the law is deficient, the accused is discharged of right, because his crime not being found in the law is no longer considered as crime ; it is only a ques- tion then of acquitting or condemning him. But in a civil process, a party may make a just demand for the most legitimate rights, and it is possible that the law may be silent. In this case what shall the judge do ? shall he send away a plaintiff whose moral right is clear, a victim of the impr^voyance of the civil law? But there is a more ur- gent reason because it belongs to the nature of things. It is, that in almost all lawsuits it is impossible to distin- guish the fact and the right, which usually are mixed to- gether ; and the one can not be preserved or apprehend- ed without the other. But further: in criminal matters you rise from the fact to the la- ; in civil, from the law to the fact : so that it would be necessary in civil matters to place the judge in the first order and the jury in the sec- ond. The example of the English is opposed ; but it is a fact, that they groan under a civil jurisprudence which is at the same time slow and circuitous. ... *' The institution of the civil jury has appeared to us XVIII.] AND JUDICIAL INSTITUTION, 371 impracticable, and those who are obstinate in supporting it have not enough, perhaps, reflected upon the nature of the jury. The jury in criminal matters, as in civil affairs, only decides upon the facts, not upon the law. Or if it should be possible to find in each contestation the means of declaring a fact, if there exists not a law for each contestation, as there exists one for each crime, how would the judges act charged with applying the 'aw ? They would decide then according to their own opinion. But if they did not see the fact like the juries, or if. as it more often happens, the matter can be con- sidered under different bearings, if it presents different consequences, then the judges would be themselves juries, or rather the juries would be useless. It would be a monstrous thing in civil matters that the judges could annihilate by their opinion the declaration of the the jury ; it would be doing away with the jury it- self. Shall it be said, then, that in this case the office of the judge will be useless? 3ut then they make the juries judges of facts as well as law ; which is repugnant to the nature of things ; then they are simply judges, and there are no more juries." And one of the ablest and most philosophical jurists of modern times, Meyer, expressly points out the civil jury as one of the defects of our judicial system.' After admitting in terms of warm eulogium the advantages of the jury as a tribunal for criminal inquiry, he says that no reason exists for entrusting the examination of facts in a civil action to persons who are not familiar with the conduct of such actions. But the grounds al- leged by Meyer for his opinion are so weak, that it is surprising to find them brought forward by a writer of his reputation. His argument is this. A civil proceed- ing not only possesses much less interest for those who investigate it, but presents much greater variety than * Orig. des Instit. Judic. n. c. 21 ii*'iS^':,.U.i'i.l^. .,.;. ■!,..-;:■ 372 THE JURY CONSIDERED AS A SOCIAL [Ch. one of a criminal nature: and a juryman can not be ex- pected to give as much attention to a question which has not the same degree of importance as those of the lat- ter kind. There may be motives why a defendant in a civil cause should not wish to give a complete answer to the action, but may find his advantage in being defeated. For instance, he may be in possession of a guarantee or indemnity which he can enforce against a third party; and he may, in collusion with the plaintiff, submit to an adverse verdict, in order to share with the latter the pro- ceeds of the guarantee, which he can afterwards recover against the guarantor 1 And Meyer asks how such a manoeuvre can be discovered by a jury, which is not like a permanent judge conversant with actions, and can have no motive for suspecting the parties? It is hardly necessary to answer such reasoning as this ; but it may be asked in reply, what motives a judge any more than a jury could have for imagining that a case so utterly im- probable would happen. And if it did, the judgment of a court must be the same as the verdict of a jury. If a party declines to defend a suit, the plaintiff must suc- ceed, whatever may be the nature of the arrangement between them with respect to ulterior proceedings. No court of law or equity can eke out for a man a defense of which he refuses to avail himself. And, besides, Meyer forgets that the guarantor in such a case could immediately, after being called upon to pay the money, bring an action against the party whom he indemnified, and recover the whole amount he had been compelled to pay ; so that there can be no imaginable reason why the defendant in the first suit should collude with the plain- tiff to the injury of the guarantor. A man is not likely to agree to divide a sum with A, when by so doing he renders himself liable to pay the whole amount to B. But, moreover, we are told by the same author, that the whole proceeding of trial by jury in civil suits is illusory. 'i XVIII.J yIND JUDICIAL INSTITUTION. 373 The jury, he says, give their verdict after the whole case has been summed up by the presiding judge; and that verdict may be set aside by the court above, and a new trial ordered on various grounds; which have been pre- viously explained. Of what value, then, he asks, is a mode of trial which is submitted to the censorship of a superior tribunal, not only in matters of form, but upon the merits, as in the case of questions as to the suffi- ciency of evidence and excessive damages ? What is the liberty of a jury which sees a first verdict annulled, because it is not approved of by the presiding judge, and which knows that after a second trial the verdict will be brought under the consideration of the same judges who have already invalidated the decision arrived at in the first? Is nci the intervention of the jury in civil ques- tions, subject to the correction of a permanent tribunal, the means of throwing ridicule on the institution, and inspiring a doubt of its utility, even in criminal proceed- ings? Now, strangely enough, the objections which are here urged by Meyer against trial by jury in civil cases will, to most minds, I think, appear to be some of the chief • recommendations of the system. I need not repeat here the language of Lord Mansfield, which has been already quoted, respecting the necessity of not allowing verdicts in the first instance to be in all cases final, and subject to no power of revision or possibility of reconsideration. It would be much easier to argue in favor of admitting such a power in criminal cases, than to deny its advan- tages in civil. The supervision of verdicts, as it is exer- cised by the courts of law in this country, not only does not render the jury trial illusory, but increases its effi- ciency in a remarkable degree. Whatever might be the nature of the tribunal, it would be an intolerable hardship if no means existed of correcting its mistakes, which must sometimes inevitably occur in the course of investigating^ 374 THE JURY CONSIDERED AS A SOCIAL [Ch. difficult and complicated questions of fact. The deci- sion of a court consisting of one or more judges, to whom alone Meyer would intrust this task, is surely liable to error ; and yet either its decision must be in all cases irreversible, or if not then, according to his argument, its powers are nugatory, and its proceedings illusory. But although it is easy to answer the above objections, it can not be denied that plausible arguments may be urged against the fitness of a jury to determine the intri- cate questions that often arise in civil actions. Nor will it be thought a sufficient answer to say that the system has in this country antiquity to recommend it. We live in times when this plea is treated with small respect. A better reason for the continuance of an institution must be given than that it has been handed down to us by our fore- fathers, although this alone ought to raise a presumption in its favor, and throw upon the opponent the burden of proving his objection. The many evils which have long deformed our jurisprudence have produced in the public mind a feeling of jealousy and discontent at the state of the law, which is not likely to be restrained by the reflec- tion that the present generation is no worse off in this respect than those which have preceded it. That man must be a careless observer, who thinks that a remedy will be found in mere palliatives, or that mischief can be arrested by a few slight changes. The machinery of our law is too complicated, and its working too expensive, to suit the wants of the present busy age ; and it must be effectually amended, or it will run the risk of being rudely overthrown. At times impatient murmurs may be heard against the ignorance or perverseness of juries, and their "erdicts are unfavorably contrasted with what are supposed likely to have been the decisions of a learned and clear-sighted judge. Within the last few years an innovation has taken place of an important kind. The act establishing XVIII.J A AD JUDICIAL INSTITUTION. 375 the county courts has substituted single judjjes for juries in all cases within their jurisdiction where neither of the litigant parties claims to have the cause heard before the latter tribunal. But a still greater change consists in the number of tlic jurors. The old immemorial twelve are no longer required, but the jury is limited to five, whose verdict determines the facts in dispute. Th*; reason of this, no doubt, has been a conviction on the part of the legislature, that the great majority of causes which would be tried in the county courts were likely to be of too tri- fling a nature to justify them in thtowing the burden of attendance upon a larger number. But in selecting an uneven number like five, and still requiring their verdict to be unanimous, they seem to have been impressed with the idea, that in case of difference of opinion there must necessarily be a majority, who are more likely to infli" nee the dissentients than where the numbers are equally di- vided. The allowing judges to decide both facts and law in claims limited to a certain amount, is nothing more than extending to civil cases the principle which entrusts magistrates with the power of summary conviction in minor offenses. In the outlines of a proposed code lately put forth by the Society for Promoting the Amendment of the Law, one of the articles is, " All questions of fact shall be de- termined by the judge, unless either party shall require them to be determined by a jury." This corresponds with the provision in the New York code previously <}i\oted, which enables the parties in a cause, by mutual consent, to dispense with a jury. And certainly, as re- gards the public, no fair objection can be taken to such a plan ; for volenti non fit injuria ; and there seems no reason why, if both parties desire it, they should not be at liberty to forego a jury trial. But an additional bur- den would thereby be thrown upon the judges ; and this deserves consideration, as will be noticed hereafter. The 376 THE JURY CONSIDERED AS A SOCIAL [Ch. opponents, however, of the civil jury say — and it may be admitted — that juries are sometimes mistaken, and their verdicts wrong. I believe that this happens much less frequently than the objection implies ; and chiefly in those cases where there is such a conflict of evidence and probabilities as would render it difficult for any tribunal, however constituted, to arrive at the truth. The presid- injr j» dge has, by the tendency and bias of the remarks w'.iich he makes in summing up, the means of influencing and guiding them to a right result ; and they have gen- erally the good sense to avail themselve? of all the help afforded by his perspicacit)\ And in the power of grant- ing a new trial, the court possess an eff'ectual, though, it must be confessed, en expensive remedy, against verdicts in civil cases which are manifestly improper, True it is that causes are sometimes submitted to the decision of juries with which they are unfitted to deal. Such are questions arising out of long and complicated accounts^ and other matters of a like kind ; but these ought never to be brought before them. The only proper tribunal for such inquiries is the forum domesticum of the arbi- trator; and experience ought by this time to have taught parties the folly of incurring in those cases the costs of appearing in court, where the almost inevitable conse^ quence is, that the cause is referred to arbitration, after much unnecessary expense and delay. Tt would not be difficult for an opponent of the system to ci<:e ludicrous examples of foolish verdicts, but they woulo be a very unfair sample of the average quality ; and nothing can be more unsafe than to make exceptional cases the basis of legislation. In a country like this, which is one vast hive of commerce and manufactures, and where so large a proportion of civil actions arises out of transactions in trade, it may be with certainty affirmed, that the persons most likely to understand the nature, and arrive at the truth of the dispute between litigant parties, are ihose *^i^ XVIII.] AND JUDICIAL INSTITUTION, 377 who are conversant with twe details of business, and en- gaged in similar occupations themselves. And such are the men who constitute our juries. It may well be doubted whether Lord Mansfield would have been able to elaborate from the principles of the common law, cramped and fettered as it was by the technicalities of a bygone time, the noble system of mercantile law, which has immortalized his name, without the assistance of jur- ies of merchants, who so zealously co-operated with him in the task of applying the legal maxims of the days of the Henrys and Edwards to questions arising upon bills of exchange, charter-parties, and policies of insurance. Nor must we forget the many other advantages of this mode of trial, which have been already noticed in an ear- lier part of the present chapter. It was said of Socrates that he first drew philosophy from the clouds, and made it walk upon the earth. And of the civil jury it may be also said, that it is an institu- tion which draws down the knowledge of the laws to the level of popular comprehension, and makes the unlearned understand the nature and extent of their legal rights and remedies. Supposing, however, we were to abolish it, what tribu- nal are we prepared to substitute in its place ? Are we to throw the burden upon the judges, and make them like the Scabini of the Franks, decide disputed facts, as well as expound the law ? But it may well be doubted whether this would in the end more effectually secure the great object of judicial inquiry, namely, the discovery of truth. To say nothing of the exhaustion of mind which would be felt by a judge called upon in the rapid succes- 3ion of causes tried at nisi prius to weigh contradictory evidence, and balance opposing probabilities, — although it may sound paradoxical, it is true, that the habitual and constant exercise of such an office tends to unfit a man for its due discharge. Every one has a mode of 378 THE JURY CONSIDERED AS A SOCIAL [Ch. drawing inferences in some degree peculiar to himself. He has certain theories with respect to the motives that influence conduct. Some are of a suspicious nature, and prone to deduce unfavorable conclusions from slight cir- cumstances. Others again err in the opposite extreme. But each is glad to resort to some general rule by which in cases of doubt and difficulty, he may be guided. And this is apt to tyrannize over the mind when frequent op- portunity is given for applying it. But in the ever- varying transactions of human life, amidst the realities stranger than fictions that occur, where the springs of action are often so different from what they seem, it is very unsafe to generalize, and assume that men will act according to a theory of conduct which exists in the mind of the judge. I am satisfied also that the concurrence of the people in the administration of the law, through the medium of the jury, greatly increases the respect and reverence paid to the judges. In deciding upon facts, opinions will necessarily vary, and judges, like other men, are liable to be mistaken in estimating the effect of evidence. Every one thinks himself competent to express an opinion upon a mere question of fact, and would be apt to comment freely upon the decision of a judge which on such a question happened to be at variance with his own. It is easy to conceive cases where much odium would be incurred, if, in the opinion of the public, the judge mis- carried in a matter which they thought themselves as well able to determine as himself. From this kind of attack the judge is now shielded by the intervention of the jury. He merely expounds the law, and declares its sentence ; and in the performance of this duty, if he does not always escape criticism, he very seldom can incur censure. So that De Tocqueville is strictly right when he says, " Le jury qui semble diminuer les droits de la magistrature, fonde r^eilement son empire: et il n'y a XVII I.J AND POLITICAL INSTITUTION. 379 pas de pays oii les juges soient aussi puissans que ceux oil le peuple entre en partage de leurs privileges." But, moreover, the tendency of judicial habits is to foster an astuteness, which is often unfavorable to the decision of a question upon its merits. No mind feels the force of technicalities so strongly as that of a lawyer. It is the mystery of his craft, which he has taken much pains to learn, and which he is seldom averse to exercise. He is apt to become the slave of forms, and to illustrate the truth of the old maxim — qui haeret in litera haeret in cortice. Now a better corrective for this evil could hard- ly be devised than to bring to the consideration of dis- puted facts the unsophisticated understandings of men fresh from the actual business of real life, imbued with no professional or class prejudices, and applying the whole power of their minds to the detection of mistakes, or the disentanglement of artifice and fraud. The jury acts as a constant check upon, and corrective of, that nar- row subtlety to which professional lawyers are so prone, and subjects the rules of rigid technicality to be construed by a vigorous common sense. And there is good sense in the following quaint re- marks taken from the pamphlet already quoted, which is attributed to Lord Somers:' "If judges had power of both determining the matter of fact, and also the matter of law, as must, if there were no juries, their latitude of erring, &c., must then be the greater, and their doing v/rong or mischief might be the more, inasmuch as they mightwrong one then in both the fact a id law; and their encouragement so to do would be improved, since then it must be harder to detect them, as whether erred in the fact, or in the law, or partly in both ; like as it's easier seeking a bush than a wood. . . . But were judges pre- sumed saints, and never so upright, &c., yet who can im- agine, but at a trial when witnesses are all examined, and ' Guide to English Juries, by a Person of Quality- 38o THE JURY CONSIDERED AS A SOCIAL \Q\\. evidence all given, the jury being so many persons, and probably knowing something of the matter before, they may, all assisting one another, better observe, remember, and judge upon the whole matter, than any one, or two^ &c., others, though called judges ? Certainly one may do more with help than without. So the proverb is — Ne Hercules quidem contra duos; oculi plus oculo vident. Two to one is odds at foot-ball. And, non omnes sed pauci dccipi aut decipere possunt. The fewer may the more easily deceive or be deceived. Quandoque bonus dormitat Homerus. Nemo sine crimine vivit. Huma- num est errare. It's natural for man to err. None's without fault ; and the surest foot may slip." If common jurors are sometimes found deficient in in- telligence, the true remedy is not to abolish the system, but to improve it by educating the people so as to make them more fit to discharge the duties which it imposes. The more we train and discipline their minds, and above all, the more we teach them to act upon Christian prin- ciples, so that they may undertake the office under a deep and solemn sense of responsibility, and with a con- scientious reverence for their oaths, the more excellent an instrument for the ends of justice will the jury become. And the converse of this is equally true. Where the mental capacity of a nation is mean, or the standard of public morality is low, and the obligation of an oath is lightly felt, no worse machinery could be devised for ju- dicial investigations. It is invidious to specify instances, but it is easy to see that there are countries where trial by jury, even in criminal cases, must be a doubtful ex- periment, and in civil, at present, beyond all question a failure.* The late change in the law, whereby parties in an ac- ' I may mention British India as a country where I believe it would be rery unsafe to entrust questions to the decision of a native jury. All who have had much practice in Indian appeals must be painfully aware how little J- i-^*fli*'' \ic < ^ I> 1^ XVIII.] AND POLITICAL INSTITUTION. 381 tion are made admissible witnesses for themselves, lias. I think, increased the importance as well as the difficulty of the office of the jury. It is remarkable that our gre it leijal optimist, Blackstone, pointed out, a century ap;o, "the want of acomphte discovery by the oath of the par- ties," as one of the defects of our jury system. He said : " This each of them is now entitled to have, by ^oing through the expense and circuity of a court of equity, and therefore it is sometimes had by consent, even in tlie courts of law. How far such a mode of compulsive ex- amination is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious discussion, but is foreign to our present in- quiries. It has long been introduced and established in our courts of equity, not to mention the civil law courts ; and it seems the height of judicial absurdity, that in the same cause between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster- Hall, and denied on the other: or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar; but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In siiort, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected." I am by no means disposed to deny that the admission of parties to give evidence in a cause in their own behalf will facilitate the ends of justice, by promoting the dis- covery of truth ; but without doubt the temptation to perjury is thereby increased, and the task of the jury will be often rendered more difficult and delicate. Even reverence the natives have for truth, even when guarded by the sanction of an oath. An attempt, however, has been made partially to introduce the system in India, in .civil cases. See Reg. VI. of 1832, Sec. iii. 38^ THE JURY CONSIDERED, or-C. [Ch. XVIII. t- stoppinj; far short of perjury, a man is naturally inclined to give an undue coloring to the merits of his own case; his memory is sharpened as to points favorable to him, and his wishes often make him put an interpretation tjpon the words used in a verbal contract or other trans- action to which he is a party, which he is apt to con found with the words actually uttered on the occasion. All this will impose upon the jury the task of deciding more frequently than heretofore between opposite and conflicting statements, and require more than usual cau- tion and intelligence on their part. The same difiPici'.Ity, however, would occur if any other tribunal were resorted to, and therefore it can be no valid argument against the use of the jury in civil causes. The great object of all ought to be to increase the efficiency of this mode of trial by educating the people. And by education I do not mean merely the sharpening of the intellect, but the teaching them to act upon religious principle. It has been strongly said, that " the whole establishment of King, Lords, and Commons and all the laws and statutes of the realm, have only one great object, and that is, to bring twelve men into a jury-box." This is hardly an exaggeration. For to what end is the machinery of the constitution em- ployed but to give every man his due, and protect all in the enjoyment ^f their property, liberty, and rights? And the twelve men in the jury-box are in this country the great court of appeal, vrhen in the case of the hum- blest as w^ell as the most exalted citizen, these or any of these are attacked. Long may it be so! and while other nations are heaving with the throes of revolution, and regard their polity with discontent, long may the char- acteristics of England be her attachment to the institu- tions handed down to us by our forefathers — her confi- dence in the pure and upright administration of justice — and her reverence for the law. T INDEX. Afforcement of jury, 105. Althing, 27. America, jury in, 289. Anglo-Saxons, jury unknown to, 45, 46. Tribunals of, 52-54. Numerical divisions how maintained, 54-5S Witnesses amongst, 70-76. Publicity of proceedings, 72. Arimannen, 19, 35. Asega, 22. Assise of Henry II., loi. Its origin, 110-113. Its subsequent history, 112-115. Difference between assisa and jurata, 115-iaj. Assisa vertitur in juratam, 115. Assises de Jerusalem, 95, g6. Asworen eth, 25, 66. Attaints, originally in nature of new trial, 749 Punishment by, 152. Battle, trial by, 81. Belgium, jury in, 312. Boni Homines, 36, 38. Bot, 49^. Borh, 50. Burhgemote, 54 Capitula Coronae, 164. '.■li&ifi'.t.', ■,/iAs4>.'r i^^i>."i;!^-.^'li.trfiiV_^t,-^#i^r;'^"i^-i»,.v-. V.Tl^^ii.'.-.'.--^ J' '. SU INDEX. Challenges in civil trials, 145-149. In criminal, 191-2. Chamber de la Tournelle, 213. Compurgators amongst the Anglo-Saxons, 6i-7o, Their usual number, 63. Difference between them and a jury, 69-70. Instance of suit decided by, 84-86. Conquest, Norman, meaning of term, 78-9. Coroner, when jury returned by, 142. Coroner's jury, 186. Corsnead, 68, 159. Cour de cassation, 196. Curia regis, 82, 104, no, iix. Cyr>ath, 65, 130. De Medietate Linguae jury, 189 Dicasts of AtLens, 7, 135. Ding, 34. DingmKnner, 34. Distringas, 140, 145. Dumester, 252. Ealder-man, 54. Echevin, 36-^7. Elisors, 132, 142. Fd, 49- Fama publica, 159, 167. Patriae, 170, 179, 188. Pausser la Court, 99, 153. Forath or Vorath, 66. Folgarii, 55. France, trial by jury in, 295. No grand jury in, 297. Question of civil jury considered and rejected, 309. Want of self-government in, 308, 357. Frank-pledge, system of, 53. Prithborh, 47, 50. Frosta-thing, 16. INDEX. Gau, 532, 94. Gemot, 33, 56, 57, 76. Geneva, trial by jury in, 31a. Gerefa, 33, 53. Germany, system of criminal procedure in, 3x4. Introduction of trial by jury in, 325. Godi, Icelandic, 27. Graf, II. GrSgas, 27. Grand Coustumier 4, 173. Grand Assise. See Assise. Grand Enquete, 176, 177. Grand Jury, 178. Its use considered, 184. Does not exist on Continent, 297. Greece, jury in, 312. Gula-thing, 16, 18. 385 Hallmotes, Anglo-Saxon, 9a. Hlaford, 63, 67. Hundred Court, 53. Hundredors, 73, 148. Iceland, legal tribunals in, a8. Issues for jury trial in Scotland, 265. Forms of, 266, 267. Jefiferies, Chief Justice, his conduct at trial of Mrs. Lisle, 345-6. Jersey, trial by jury in, 173. Judex Quaestionis, 10. Judices Pedanei, 38. Judicium Parium, not trial by jury, 91, 92, 199. Applies to members of feudal and county courts, 94. Jurata, its origin and nature, 116-118. Jurata patriae, 93, 117, 164, 179. Jurors, originally mere witnesses, 105, 106. Gradually ceased to be so, 124-128. Fluctuations in numbers of, 108-109. 5 ;■ \ %■ 386 INDEX. Personal knowledge originally required, 135-138. Might give verdict upon their own knowledge against evidence of witnesses, 136. Change in this respect, 137. Disagreeing minority punished, 199. Kept sine cibo et potu, 302. Jury, theories as to origin, 3-6. Its proper functions, 7, 9. Unknown to Anglo-Saxons, 45. Not introduced by William the Conqueror, 83. Panel tampered with, 141. Fined for verdict, 153. In criminal cases, 165. Proper province of, 216. Powers of in cases of libel, 223. Considered as a political institution, 357. Advantages of jury in civil cases, 373, 377. Jury de Medietate linguae, 189. Justiciars appointed, 81. Kions-nefih, 24. Lahmen, 56. Landgericht, 33. Laugrettomen, 16-18. Laudatores, 62. Law and fact, 242. Legitima purgatio, 165. Lex Terrae, 106. Lex Servilia, 145. Libel, province of jury in, 223-235. Fox's libel act, 232. Scotch teiyn for indictment, 274-5. Logman, 17, 18. Maegas, 52. Magna Charta, 91, 92. Mallum, 7, 33. '.%1 INDEX, |t7 Mansfield, Lord, his ruling in cases of libel, 394. Manung, 70. Marken, 32. Milites, 118. Missus, 43. NUmbd in Sweden, 19, 20, ai, 30. Nefndarmen, 16. New trial in civil cases, 154, 156. Question of, in cases of felony, 193. Nisi Prius, meaning of term, 140. Non Liquet, 10. Normans, legal changes introduced by, 81. Examples of Anglo-Norman trials, 82-90. Norse Thing, 7. Not Proven, verdict of, 280. Ordeal of three kinds, 67-68. Oath of Anglo-Saxon witnesses, 74. Pares. See Judicium Parium. Pleadings, system of written, 246. Portugal, jury in, 312. Presentment, ancient mode of, 159-161. Press, freedom of, 364. Presumptions of guilt in old times conclusive, 168. Of law and fact, 243. Probi homines, 22, 90, 112, 187. Rachinburgen, 6, 19, 35, 38. Recognitors of assize, 107. Recusatio judicis, 146. Regiam Majestatem, date and authenticity of book dis cussed, 249. Rim-ath, 130. Russell, Lord John, his view of utility of jury, 358, 368. Russia, twelve sworn jurors in, 31, Sachibaro, 34. Sandemaend, 23, 25, 26. ■I 388 INDEX. Sardinia, jury in, 313. Scabini, 6, 10, 36-38, 57. Scandinavia, so-called "juries" in, 14, 15. Scir-gemot, 54. Scotland, jury-system in civil cases, 249-271. Assize in criminal trial, 271-a. Secta, 56, 94. Mode of trial by, 128. Sheriff, 140, 143. Tampered with, 361-2. Six-hyndesmen, 62. Special jury, earliest notice of, 143. Form ot striking, 144. Cost of, 145. Tales de circumstantibus, 143. Tenmannetale, 51. Thanes acting as judges or accusers, 56, 57. Tingmaend, 23. Triers, 148, 149, 170, 223. Unanimity of jury, origin of rule, 197. Reasonableness of rule, 203-215. Not required in Scotland in criminal trials, 280. Nor in France or elsewhere on Continent, 195-6. United States, jury in, 289. Venire facias, 122, 139, 141. Verdict, originally nothing more than the conjoint testi- mony of the jury, 11. Jury fined for, 154. Varthing, 26, 27. Vorath, 66-7, 162. » Wapentake, derivation of word, 53. Wergild, 48, 51, 52, 61, 80. Witan, 54. i ■ ■i:-:''''V .'*■