HISTORY
OF
TRIAL BY JURY
BY
WILLIAM FORSYTH, M.A.
LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE, AND AUTHOR OF "HORTENSIU OR HISTORY OF LAWYERS."
SECOND EDITION, PREPARED BY
JAMES APPLETON MORGAN,
ESQ.
AUTHOR OF "THE LAW OF LITERATURE." ETC., ETC.
JERSEY CITY: FREDERICK D. LINN & COMPANY,
PUBLISHERS.
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 investigated with laborious accuracy. I would especially mention the works of Rogge, Phillips, Gunderman, Welcker, Mittermaier, and Gneist. But no English 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 contributions 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
can be properly discussed by those only who possess competent legal knowledge; and it might have been thought that it would have attracted the curiosity, 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 difference in the manner of treating juridical subjects between the foreign and the English 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 consequences. In short, these treatises are but little more than full indexes to the reports, arranged under appropriate 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 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 inquiry 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 1, 1875,
939
BROADWAY, NEW YOKK.
CONTENTS.
CHAPTER I. THE NATURE OF THE JURY SYSTEM.
SECT. PAGE
I. Various Theories respecting the Origin of the Jury ... 1
II. Causes of mistaken Views on the Subject.....5
CHAPTER II. THE ANCIENT TRIBUNALS OF SCANDINAVIA. 13
I. The Norwegian Laugrettomen .......16
II. The Swedish Nämbd ........19
III. The Danish Tingmænd, Nævninger, and Sandemænd ... 23
IV. The Icelandic Tólftar-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.
1. Trial by Jury unknown to the Anglo-Saxons .... 45
II. The Wergild .......... 48
III. The Fridborh .......... 59
IV. The Anglo-Saxon Courts ....... 52
V. Examples of Anglo-Saxon Civil Trials.....58
VI. Of the Compurgators........61
VII. Of the legally appointed Witnesses in the Anglo-Saxon Law . 70
VIII. Results of the Investigation.......76
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 Parium ... 91
IV. The Courts established by the Assises de Jerusalem ... 95
CHAPTER VI.
THE JURY IN THE TIME OF THE PLANTAGENETS.
I. On the Assize as established by Henry II......101
II. What suggested the idea of Trial by Assize ... . 110
III. Subsequent History of the Assize......112
IV. On the Trial by the Jurata, and the meaning of the expression
Assisa 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
CHAPTER IX. JURY IN CRIMINAL CASES.
I. Ancient Mode of presenting Offenses......159
II. Rise and Growth of the Jury System for the Trial of Accusations ...........165
III. Trial by Jury in Criminal Cases in Jersey .. ... 173
CHAPTER X.
THE GRAND JURY, AND OTHER MATTERS RELATING TO CRIMINAL TRIALS.
I. The Grand Jury.......... 178
II. The Coroner’s Jury......... 186
III. The Jury de Medietate Linguæ....... 189
IV. Challenges in Criminal Trials....... 191
V. Question of new Trial in Cases of Conviction of Felony . . 193
CHAPTER XI. 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. ON THE PROPER PROVINCE OF THE JURY.
I. Powers and Duties of Juries in England..... 216
II. 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
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.
1 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. System of Criminal 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 XVIII.
THE JURY CONSIDERED AS A SOCIAL, POLITICAL 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 subject 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 investigate its origin and trace its history, until it assumed the well-defined form and office with which we are so familiar, 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 arose, as I hope to show, silently and gradually, out of the usages of a state of society which has forever passed 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 popular opinion was — and perhaps it even now prevails — that it 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.1 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 country we are indebted for more correct views to the labors of Reeves, Palgrave, Starkie, and Hallam. But the jurists of Germany also deserve the praise of having investigated 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 hopeless. Thus Bourguignon says,2 “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 nothing is known of its origin; and of a perfection
1 Amongst the cartoons exhibited as designs for the decoration of the new Houses of Parliament, one 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.
2 Son origine se peid dans la nuit des temps. Mémoire sur le Jury.
so absolute that it has remained in unabated rigor from its commencem: it to the present time.”1 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 themselves 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 certain 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 Crusaders; and he fixes upon the reign of Henry III. as the æra of its introduction into England.2 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.3 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;”4 and he ought to have added, or “notices the fact of its existence.” Sir Francis Palgrave says, that a tribunal of sworn witnesses elected out of the popular courts and employed
1 Treatise on Trial by Jury in Civil Causes (in Scotland). 2 Orig. et Progrès des Inst. Judic. tom. II. c. 11. 3 Hist. English Law, I. c. 1; II. c. 2. 4 Hist. Ang-Saxons, III. 223.
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.1
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.”2 He refers also to the Grand Coustumier as justifying the idea that the jury is of Norman origin. But we may remark in passing, that this work was written later than the year 1215; so that whatever 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 English.
Some writers, especially amongst the Germans, attribute the origin of 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 together for the purpose of deliberating on whatever affected the interests of the gau 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 pervades the jury-trial, and that therefore the latter is derived 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
1 Rise and Progress of Eng. Commonwealth, I. 256. 2 Comment. III. 349.
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 people 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 sequence from the modes of trial in use amongst the Anglo-Saxons and Anglo-Normans, — 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 acquires 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
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 historical 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 undergone 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 incidental notice in contemporary annals and records.
Again, we must be careful not to attach too much importance to seeming analogies, or mistake partial resemblances 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 ancient county and feudal courts in this country.
One important feature of the institution is by no
means peculiar to it. I mean the fact that it is a sworn tribunal — that its members decide under the solemn sanction of an oath. This was the case with the Dicasts at Athens and the Judices at Rome, and the same principle prevailed in the old Norse THING and German MALLUM, 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 limited 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 disputed facts, who are quite distinct from the judges or court. Their office is to decide upon the effect of evidence, and thus inform the court truly upon the question at issue, in order that the latter may be enabled to pronounce a right judgment. But they are not the court itself, nor do they form part of it; and they have nothing 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 return 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
to try causes, but who did so in the capacity of Judges, and when satisfied of the evidence awarded and pronounced the doom.
These are the Geschwornen-Gerichte to which the jurists of Germany of late years have been so fond of appealing, as the model upon which they wish to reform their modern courts of judicature, and which they assume to have been in principle the same as the English Jury.1
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 tribunal 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 complicated, 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 competent 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 capable of applying it, the rights of all would be set afloat — tossed on a wide sea of arbitrary, flunctuating, and contradictory decisions. Hence in all such popular courts as we are describing, it has been found necessary to appoint 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
1 See Rogge, Gerichtswesen der Germanen, and Staats Lexicon, vol. VII art. Jury
of law from questions of fact, the lay members felt themselves more and more inadequate to adjudge the causes that came before them. They were obliged 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 attendance might without sensible inconvenience be dispensed with altogether. And of course this change was favored by the crown, as it thereby gained the important 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 appointed by the king, and deciding all matters of fact and law, and it brought with it its odious train of secret process and inquisitorial examinations. But the result was inevitable. The ancient courts of Scandinavia and Germany carried in their very constitution the element of their own destruction, and this consisted in the fact that the whole judicial power was in 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 understanding are at least as competent now as they were in the days of Henry II. to determine whether there is sufficient 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.
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.1 There we find a presiding judge, who was either the prætor or a judex quæstionis specially appointed by him, and a body of judices taken from a particular class, at one time the equestrian, and at another the senatorial, whose duty it was to determine the fact of the guilt or innocence of the accused.2 At the close of the evidence they were said to be missi in consilium by the judge, that is, told “to consider their verdict,” and to each were given three tablets marked respectively 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 prætor pronounced the sentence, with which the judices did not interfere.3 So far the course of procedure seems closely analogous to our own. But
1 This, however, was not the opinion of Dr. Pettingall, who wrote an ingenious treatise in 1769 to show that the English jury was probably derived from the Greeks and Romans.
2 It is difficult to convey to an English reader the precise import of foreign terms of jurisprudence, without using an awkward periphrasis — and for this reason, that the words nominally equivalent have acquired by usage a different sense amongst us. Thus, although it seems quite correct to render “judices” by “judges,” we are so accustomed to associate 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 — Schöppen — and Urtheiler of the Teutonic system. They were the “members of the courts” who determined both law and fact, and gave judgment — combining thus the functions of both judge and jury.
3 See Heinecc. Antiq. Rom. Syntagma, lib. IV. tit. 18.
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 finding of facts, 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 prætor 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 præter 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 between 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 occupied 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 the conjoint testimony of a fixed number of persons deposing to facts within their own knowledge.
Let us therefore now turn our attention to the primæ-
val courts of justice on the continent, and consider first those of Scandinavia, where the system in many points bore such resemblances to our own, as to have induced some authors to maintain that the latter 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,1 which deserves 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 tribunals, and Blackstone and other writers were content to take their scanty information from Saxo Grammaticus, Stjernhook, 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 primæval 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-
1 Historical Treatise on Trial by Jury, Wager of Law, and other co-ordinate 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.
pressed with this that he does not hesitate throughout his work to speak of the usual mode of trial amongst them as trial by jury; and with reference to the Norwegian 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 originally 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 whole of that region the characteristic of the legal tribunals was, that they were composed of twelve persons, taken from time to time from amongst the people, who determined questions in dispute upon oath, and whose judgment or verdict was decided by the majority.
With reference to this mode of trial, 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 institution. 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, however, 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
disputes; and as that began to decline on the introduction of Christianity, it was succeeded by compurgation and the ordeal, which last is said to have been first established 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 seeing 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 regulations respecting its form, its application, and its contingencies, and prescribe its use in almost every
page.1
The jurors, however, of the old Saxons were nothing
but compurgators. This 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 proportioned to the nature of the offense.2 But no mention 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 from them came the invaders and occupants of Britain, to whom, under the name of Anglo-Saxons, we trace up so many of our most cherished rights and customs as freemen.
1 Repp, Histor. Treatise.
2 The Saxon laws are full of such enactments as the following, De ictu nobilis xxx. Solid. vel, si negat, teitia manu juret. De Vulneri bus.
SECTION I. The Norwegian Laugrettomen.
In Norway it was different. There causes were determined 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 introduced some changes in an institution which had existed long before. In Norway there were two solemn meeting 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 deputies (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 considered 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,1 which literally means, “Law-amendment-men.” This name seems at first sight to imply that they had legislative rather than judicial functions to perform, but this
From Laug lex and retta emendatio.
was not so. In those simple times, the written laws generally 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 Lögmann 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 innovation 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 to 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 sacred cords make there such noise and disturbance that the jurors are prevented from hearing cases, or those from pleading who have obtained leave from the lawman and
the jurors, they shall pay a fine of an ore silver, when detected 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 hither (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 agree with him; unless the king with the advice of the most prudent men shall otherwise decide.”
Previously to the promulgation of this code the Lögmann 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 him, as they were fully entitled to decide cases according 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 season of the year also when the Thing was not sitting, he was empowered to act as supreme judge, and hear and decide causes alone.
Now, although Repp in his learned work 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 Laugrettomen 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 judicial 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
case of the Rachinburgen of the Teutonic, and the Arimannen 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 summoned merely to determine for the court disputed questions of fact, by their own previous knowledge 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 modified 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 Nämbd.
In Sweden a similar tribunal existed from time immemorial. In the ancient codes of that country it is most frequently called Nämbd;1 and there were several kinds of it. Thus we find mention of the Konungz Nämbd, 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 Hundred. Causes and offenses of every kind were tried before these courts, and whenever any case of importance occurred, which required judicial investigation, it was the duty of the magistrate to summon an extraordinary Thing or meeting, and nominate a Nämbd to take cognizance of it. For it was only at a Thing that the
1 Solemnis fuit et adhuc est Hyperboreis nostris Nembdæ usus, cujus officium ante fuit de facto tantum cognoscere, examinare, statumque causæ exponere, uti constat ex jure nostro. Welt, Themis Romano-Svecica, quoted by Repp. Nämbd, is sometimes spelt Nämnd and Nämd.
court could sit as in Norway. It was, in fact, in the nature of a committee chosen out of the deputies who attended the assembly; and the Thing was a meeting at which all the judicial business was transacted by the Nämbd. In the Landslagh the king’s Nämbd is spoken of as if it had only criminal jurisdiction; but according to Repp, civil causes also came before it. The words of the code are: “Now offenses may happen to be committed against the king and the law laid down in the king’s BALK; therefore there shall be twelve men ordered in every Lawman’s jurisdiction, agreed upon, chosen, and nominated by the king and the natives of this country. They shall attentively and diligently seek out and discover, each in that district in which he is ordered to maintain justice, all those that, contrary to this law, disturb or molest the people. And they have to swear the following oath.” The code then gives the oath, which is, that they will not make any man guilty who is innocent, nor any man innocent who is guilty, and proceeds: “Whomsoever these twelve, or seven of their number, convicted before the king himself, or those who judge under his commission in a court of inquisition, or in a Landsthing, let him be cast and lose his hand, head, life, and goods or money, to the king or the prosecutor and the district, according to the nature of the offense. Whomsoever they discharge, let him be discharged. Against this jury (or court) there is no appeal.”
Repp says that we are not to suppose from the words of the law that the jurors were a kind of officers, or commissioners of the peace, or even a sort of public prosecutors. They were jurors to all intents and purposes, and to them lay an appeal from the inferior courts in all causes. As to the mode of nomination of jurors, we are left in some doubt. One code (the OestgothaLagh) says, the magistrate of the district was to appoint
a jury, and both the contending parties were to be present and approve of those who were nominated. And it says, “True men1 are to sit on the Nämbd, and not parties in the cause, nor their friends or relatives. According to the Westgotha-Lagh, the king was to appoint a Nämbd for himself.2
It must be admitted that between the Swedish Nämbd and the English jury there appear many curious points of resemblance — and especially so, if we can put implicit faith in the passage which I have already quoted in a note from Laurens Welt, who wrote in the year 1687, and who says that the office of the former, in early times, was de facto tantum cognoscere. When an offense had been committed, the magistrate of the district was to convoke a Hundreds-thing, and in the words of the law, “the nämbd shall investigate and ascertain the truth in that cause. If there be witnesses, let them appear before the jury, and let each man swear the oath prescribed to him; and the magistrate of the district shall dictate the oath.”3 “If a man ravishes a woman — is caught in the act — and twelve men prove the fact by their evidence, then the magistrate shall instantly issue circulars,4 and summon a Thing, and sentence him to be executed by the sword without delay.”
Still, however, I believe that the nämbd was the whole court, notwithstanding what Welt says as to their deciding only upon fact, and that in early times the whole
1 Sanninda män, which literally means “truth-speaking men.” The term is Icelandic.
2 In the Uplandzlagh occurs a provision which makes twelve men nominate the judges: “When judges are to be chosen, the magistrate shall rise and nominate twelve men from the hundred: these men shall nominate two men to be judges. The king shall invest them with authority to judge. These judges shall be present at the Thing every Thing-day.”
3 Edzöris Balk of Landslagh. Repp, 96.
4 Literally “cut up the chip of message.” Repp, 105.
judicial power, both of judge and jury, was lodged in its hands. This view is confirmed by Repp himself, who yet speaks of it always as a jury. He says that “in ancient courts juries were everything, and judges were functionaries of only secondary importance, and that authority and power originally vested in the juries, have, under the progressive development of monarchy, been transferred from them to the judges.” In other words, the judges were originally mere presidents of a court consisting of sworn members, who exercised full judicial powers. The latter were from time to time chosen from amongst the people, and their number was twelve; but still they were not “jurymen” in the modern sense of the term, and altogether different from the probi homines of the vicinage in England, summoned for the purpose of giving the court the benefit of their testimony upon some disputed claim or question of guilt.
In Friesland a single judge named asega1 pronounced the sentence or doom (tuom). But he had frequently assessors to aid him, who seem to have had, when they attended, a voice in the judgment. Their number was seven,2 or twelve, and hence they are often spoken of as “the twelve”3 (tolef, zwölfe), or “the seven of the twelve.” Sometimes also they are called “the king’s orkennen” (witnesses), a fact which must not be lost sight of, when we come to speak of the English jury in its earliest form. They had to execute the decree of the asega or president, and discharged many of the duties of the modern sheriff and police.
1 Asega literally means legem dicens, juridicus. — See Grimm, Deutsche Rechts Alterthumer.
2 Septem suffragiis reus vel vincit vel vincitur. Stjernhook, 59.
3 The old Norse name of this tribunals was tolfmanna-domr, “the doom of twelve men.” A more expressive term for a verdict could hardly be found.
SECTION III. The Danish Tingmænd, Nævninger, and Sandemænd,
In Denmark the modes of trial by compurgation (there called Lov),1 and the ordeal, existed in full vigor; but concurrently with these, before the administration of the law fell into the hands of regular judges, causes were decided by persons who were called either Tingmænd, Nævninger, or Sandemænd, according to the nature of the court they attended. Of these let us speak briefly in their order.
And first of the TINGMÆND.2 These were not necessarily jurors. They were the members who constituted the Thing, of whom, according to the law of King Waldemar, seven made a quorum. But they did not originally adjudicate upon causes, except when no other jurors had been appointed — their proper business being to form the Thing at which the public affairs of the district were transacted — and they were therefore more like a municipal council than a court of justice. At a later period, however, by the law of King Erik, a special jurisdiction was given to them.
Next of the NÆVN, or NÆVNlNGER.3 These were the proper jurors or sworn judges of Denmark, being so called from nævn, “to name.” The appellation therefore signifies that they were the named or nomination men. They existed in very ancient times, and long anterior to any of the extant Danish codes.4 Their number was origi-
1 The literal meaning of Lov in Danish is “law.”
2 Ting is the same as Thing in the other Scandinavian languages, the Danes being unable to pronounce the h. Mænd is the plural of mand, man. The Tingmænd therefore are persons attending or serving at a Thing or court.
3 Instead of nævn we often find the word spelt nefnd, which is the Icelandic form.
4 Saxo Grammaticus indeed says, Hist. Dan. lib. IX. that Ragner Lod-
nally twelve, and they were chosen by the inhabitants of the district; although in some criminal cases the prosecutor, and in others the magistrates, might nominate them. The latter also had this power in default of a nomination by the community. In Jutland they were appointed annually by the inhabitants for trying all causes within the year. In Scania fifteen were nominated at first, as the accused or defendant was entitled to challenge three. In later times the number varied according to the nature of the offenses they had to try, but still twelve was the basis on which each tribunal was formed. Almost all the laws that exist respecting them have reference to their functions as criminal judges; and Repp says that it is evident the office was in Denmark held to be an odious one. In certain cases they were required to be related to one of the parties, and were hence called Köns-Nævninger, or Kions-neffn (kindred-jurors). This occurred chiefly in causes in which family questions had to be decided, as whether a child had been born alive? whether it had been baptized? or whether it had survived its father or mother?
In Denmark a cause was decided by the majority of the jurors; but the bishop, together with the best eight men of the district, had the power of confirming or rejecting their judgment; and an ancient code provides that if they are all unanimous they shall forfeit their property when they have given a judgment contrary to the opinion of the plurality of the best men of the district. In criminal cases it appears that no man could compel another to submit to a trial before the Nævn unless he either brought witnesses in support of his charge, or
brok, who reigned over Denmark between 750 and 790, instituted the trial by twelve men. Ut omnis controversiarum lis, semotis actionum instrumentis, nec accusantis impetitione nec rei defensione admissa, DUODECIM PATRUM AP PROBATORUM JUDICIO mandaretur, instituit. But according to Repp, Professor Ancher, in his Dansk Lovhistorie, has satisfactorily shown that the institution is of much older date.
swore to its truth by an oath called the asworen eth. And it was the province of the juries to decide upon the preliminary proofs whether they would allow the trial to proceed or not. In this proceeding we may trace a faint resemblance to our own grand-jury system, the principle in both being the same, namely, that a man ought not to be put upon his trial unless there is a prima facie case of guilt made out against him.
The SANDEMÆND1 were peculiar to Jutland. They were sworn judges, eight in number, two being nominated by the king for each division of the country. They took an oath to judge on the spot where the deed had been committed, or, if a right of land was in dispute, then where the property is situated. They received half a mark of silver for horse-hire from the party who employed them, whatever the result of their judgment might be, and their verdict was determined by a majority; but subject, as in the case of the nævn, to be annulled by the bishop and his eight coadjutors. The oath they took was to the effect that they would state nothing but what they knew to be most right and true (SANDESTE), and they had cognizances of all personal injuries and disputes respecting land and church- property.
It is needless to repeat here what has been already said respecting the Norwegian and Swedish juries. The Danish nævn and sandemænd were in principle exactly the same — namely, in persons whom the whole judicial power, in the particular case, was vested. They were therefore the court itself, pro hac vice, and may with as much propriety be called judges as jurors. True it is they were not learned judges — that is, not men trained in the study of the law, and appointed permanently by the crown: but in the simplicity of ancient
1 From sand (true), or sande (to prove). The word is translated by the Danish lawyers veridici.
times this was not necessary, for the law itself was too brief and plain, and the causes of too clear a nature, to require an apprenticeship to qualify a man for the office of a judge. But because this was so, and men taken from the ranks of the people were, from time to time, chosen to try cases and determine both law and fact, this does not render them less judges, in the strict sense of the word, than the learned occupants of the judicial bench were who afterwards supplied their place.1
All traces of this system have long since vanished in Denmark. The nævn are not summoned, although the institution has never yet been formally abolished. The business of courts of justice there, except in the high court of appeal in Copenhagen, is carried on with closed doors. A single judge presides, assisted by learned colleagues, and no part of the proceedings transpires until their conclusion, except such as the parties themselves choose to make public. In the high court which is open to the public, a chief justice presides, with twelve assessors, and here alone the pleadings are verbal, eight advocates being privileged to speak in it: but there is no jury for them to address.
SECTION IV. The Icelandic Tólftar-quidr.
Iceland was anciently divided into ithirty-nine provinces, or shires, each of which was called a Godord, and three of these made a Thing, or judicial district, in which the Varthing, or court for that district, was annually
1 Repp, in his Treatise, p. 132, finds fault with Vogt for speaking of the Sandemænd 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 primæval simplicity of the northern courts — was unintelligible to him.” But surely the idea of courts of justice without judges would be an absurdity. It matters not, as respects the name by which the members ought to be called, whether they are learned lawyers of not They are, to all intents and purposes, judges.
held.1 There were, therefore, thirteen of these Things. Over each shire presided a magistrate called Godi, and three of these nominated for each 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,2 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 defendant 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 Tólftar-quidr (a nomination of twelve), and was much employed in cases of dispute between the Godars and their Thingrnen. In such instances the Godi nominated 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 neighbors to the place where the cause of trial arose. If they did not agree, the judgment of the majority was binding,
1 Our knowledge of Icelandic law is chiefly derived from the Grágás the Grey-Goose code. 2 That is, All-thing, general court.
and it was determined by lot who should first declare his opinion.
Now according to the expression of Repp these different 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 of 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 Denmark; 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, were generally so simple as to render a separation between them unnecessary. A decision upon the latter involved certain legal consequences which were definite and clear, and which were as well known to the members of the Thing as to the professed lawyer. The jurors, therefore, in determining the facts of the case, also applied the law, and were thus both judge and jury combined.
Legal process, however, in Iceland was by no means deficient in intricacy. It may be interesting to quote one or two cases from the Niáls Saga,1 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 rarely occurred in any cause in which he
1 Repp, Historical Treatise, 167.
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 summoned 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 preliminaries 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 nonsuited.” 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 matter entirely, and proceed no further, 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 place, committed theft, and then slain Vali?” To this the court answered: “All this is not denied; nor is it pretended that this issue of the cause is grounded in justice or equity; but there was 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
you will in your judgments adhere to justice and truth and the laws? But what can be more just and equitable, than outlawing and depriving of all means of supporting life a most heinous culprit, who has deserved such a condemnation? As to that part of your oath by which you are enjoined to judge according to law, you ought, indeed, on the one side to be mindful of the laws of process: but, on the other, not forgetful of equity and justice; this ought to be your firm purpose when you take the oath, to condemn such as have deserved it, to punishment, and not to incur the heavy responsibility of suffering them to escape with impunity.”
Such, then, were the ancient courts of justice in Scandinavia, and it has, I think, in the course of the inquiry, been proved that they were essentially different from our own jury. But independently of the reasons which have been already urged against the theory, that it was derived from them, the following consideration seems to be entitled to great weight. If the old tribunals of the North were the archetype of the jury, how could we have failed to discover the existence of their leading and peculiar features in the juridical system of the Anglo-Saxons? The Jutes and Angles and Saxons and Danes, who at various times overran and occupied England, came from the countries where the institutions of which we have been speaking prevailed, and if they had transplanted them to the land of their adoption, we must have found them noticed amongst the numerous laws and customs of the Anglo-Saxon period, of which records are still preserved. The existence of a nämbd would have been as distinctly marked in them as it is in the Scandinavian codes.
It is, in my opinion, the most improbable of theories to suppose that courts constituted like those of Norway and Sweden, with their twelve jurors and presiding Lawman, should have been introduced into Britain by the invading Northmen some centuries before the Norman
Conquest, and have become the common tribunals of the country, without leaving any record or trace of their existence until the reign of Henry II. And yet this must have been the case if the hypothesis 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 king 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 retained 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 explain 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
1 The most remarkable approximation to our own institution seems to have existed at an early period in Russia for the trial of criminal cases. In the French translation of M. Karamsin’s Histoire de Russie, we find the following: Le plus ancien code des lois russes porte que douze citoyens assermentés discutent suivant leur conscience les charges qui pèsent sur un accusé, et laissent aux 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.1 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 impossible for the suzerain to attend all in person, presidents were appointed, who were at first chosen by the community at large,2 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
1 For the account here given of the old German tribunals, my authorities are chiefly Savigny’s Geschichte des Romischen Rechts, Rogge’s Gerichtswesen der Germanen, and Grimm’s Deutsche Rechts Alterthümer. The latter work is a mine of antiquarian legal lore.
2 Ehguntur in iisdem conciliis et principes, qui jura per pagos vicosque reddunt. Tac. Germ. c. 12.
these persons is grafio or graf,1 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 proceedings took place were of two kinds, called “unbidden” (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 different places. This was the “mallum legitimum” of the Franks and the gemot of the Anglo-Saxons. No notice was required 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 summoned when there was some special business to be transacted; and previous notice was given of the time and place of meeting. Here, too, it seems that the absentees were fined.2
The presiding “comes” or “missus” had, however, no voice in the decision; and his duties, like those of the archon at Athens and prætor at Rome, were merely ministerial. The members of the court (urtheiler or schöffen) had the right to determine all questions of law and fact; and, with the assistance of witnesses in the early ages, no doubt did so. But as the law became
1 This word has been usually derived from grau, canus, as though the idea of age or seniority were implied. But Grimm suggests the derivation iavo tignum (rafter), doms. Hence gfravo, contubernalis, comes. Gerefa, from which we have scir-gerefa, or sheriff has the same root as graf.
2 Grimm, Deuts, Rechts Alterthümer. These meetings or courts had various names, derived (l) from the district, or (2) from the presiding officer, or (3) from the persons who attended them. Thus we find them called (1) landgericht, gaugericht, markgericht, stadtgericht, (2) grafen gericht, vogtsgericht, probstgencht, (3) rittergericht, lehengericht, mann gericht.
more technical, and the transactions of mankind more complex, the want of assistance from those who had applied themselves to legal studies would soon be felt Accordingly we find mention of such persons under the name of Sachibarone, whose office it was to act in the capacity of legal assessors or advisers to the uninstructed members of the court. But when, instead of a certain number of freemen, taken indiscriminately, selected 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 disappears.1
The presiding officer held a staff or wand in his hand, and sat on a chair (stuhl) which was frequently of stone; while the other members of the court were seated beside or beneath him on a bench.2
These, who were in reality the judges, consisted originally, as we have seen, of all the freemen of the community, whose duty it was to attend the meeting;3 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 opposite evils, namely the absence of a sufficient number, or
1 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 librum legis, ut semper rectum judicium judicet. Rogge thinks that this appointment of a judex was peculiar to the Bavarians and Alamanni. See his Gerichtswesen Germ. ch. iii. § 14.
2 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.
3 Hence they were called dingpflichtige and dingmänner, i.e. men whose duty it was to attend the ding or court. It deserves notice that the Latin equivalent for these words used by the old writers, is veridici.
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.1 Savigny applies this term to all the freemen, who, in contradistinction to the numerous body of the unfree (unfreien), had the full civic franchise; 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 Rachinburgen, or, at all events, might at any time become so by attending the courts.
Amongst the Lombards the corresponding name was Arimannen;2 and they are both rendered in old charters
1 One of two derivations has usually been given of the first two syllables of this word: (1) from racha, i.e. sache, causa, whence comes recht; (2) from rek or reiks, nobilis, implying the free members 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.
2 Thus we find in a grant of the Emperor Henry TV. (A. D. 1084) the words donamus insurper ... monasterio liberos homines quos vulgo Arimannos 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, the
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.1
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.2 At a later period it was different, and we find judges duly appointed to the office, and called Scabini,3 who, however, did not at first exclude the freemen, but seem to have sat with them as joint members of the court. The chief difference between them was, that it was optional to the latter to attend 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 introduced 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 prefers. 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.
1 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.
2 Of this we have an instance in the early part of the seventh century: Comes quidam ex genere Francorum cognomine Dotto, congregatâ non minima multitudine Francorum, in urbe Torndeo, ut erat illi injunctum ad dirimendas resedrat actiones. Tune ... .præsentatus est quidam reus, quern omnis turba acclamabat dignum esse morte. Bouquet, 3, 533, cited by Savigny, I. c. 4, art. 2.
3 Scabinus is derived by Grimm from scapan, “to order or decree.” The Italian scabino, Spanish esclavin, and French echevin, are all the same word.
date,1 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:2 and the number required to form a court was seven: “ut nullus ad placitum banniatur (summoned) ... exceptis scabineis septem qui ad omnia placita præesse debent;”3 but on solemn and important occasions they were increased to twelve.4 Grimm remarks that there is an unmistakable relation between these two numbers so applied — 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 sentence.5 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 between the Scabini, or judges of the Teutonic courts, and the English jury, Savigny mentions one important difference, 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
1 Savigny, Ib.
2 Ut missi nostri, ubicunque malos scabineos inveniunt, ejiciant, et totius populi concensu in loco eorum bonos eligant, et cum electi fuerint, jurare faciant, ut scienter injuste judicare non debeant. Capit. ann. 829
3 Capit. ann. 803.
4 Capit. ann. 819.
5 Deuts. Rechts. Alter. 777. Sometimes, but not often, we find the number of the court consisting of a multiple of seven or twelve.
laid down by the presiding judge.1 He observes that this is analogous to the proceedings of the Roman tribunals, where the prætor directed the judices as to the law; and he declares himself unable to account for an agreement 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 questions of law. They had in fact no judicial duty to perform. 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 office 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 prætor, and that of fact for the judices. In civil causes the parties went before the prætor, who seems to have settled what the law was, supposing the facts proved, and he then appointed a judex to try the case, who might, if he thought fit, call in as assessors persons 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 Judicis Pedanei. This is the meaning of the passage in
1 Gesch. Rom. Rechts, I. c. 4, art. 2, Die Schöffen. Bernardi, 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 modern jury. But Savigny has clearly shown that this view is erroneous.
Aulus Gellius: Finally, to prevent all danger of determining 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;1 which Mr. Starkie, by mistake, applies to the judices presided over by a prætor at the public criminal trials, who do, as before noticed, present some curious features of resemblance to a modern jury.2
The nearest approach among ourselves to such a tribunal 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 occasions 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,
1 Denique ut tanto minus esset periculi ne imperiti judicarent, solebant aliquando 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.
2 In his Law of Evidence, I 5, n (d), Mr. Starkie says: “The principal and characteristic circumstance in which the trial by a Roman differed from that of a modern jury, consisted in this, that in the former case, neither the prætor, 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 lawyers, 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 correct verdict as compounded both of law and fact.” The expressions “jury” and “verdict,” here used by Mr. Starkie, tend only to mislead. He mistakes 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, analogous to modern jurymen; but we never find any jurisperiti added to them.
and he is then the sole judge of matters of law, while they are triers of matters of fact.1
SECTION II. The Mode of Proof in the Ancient Courts 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 relates to the use of compurgation as a means of determining questions of innocence or guilt, as well as other disputes, may be conveniently deferred until we speak of the judicial system of the Anglo-Saxons, of which it was a prominent feature. Here it will be sufficient 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 certain facts supposed to be within their own cognizance.
But it will be necessary to remember that our attention is here directed to a state of society entirely different from any which now exists in Europe; and we must endeavor, as far as possible, to divest ourselves of the ideas and prejudices derived from modern systems of judicature. One of the most striking characteristics of the olden 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 decision by a court of justice.2 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
1 See 19, State Trials, 962-964.
2 See Rogge, Gerichtsw. der Germ. 93-131. Grimm., Deuts. Rechts. Alter.
each other. And of these the competency varied according to the subject-matter of their testimony. With respect 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 actually seen what had occurred.1 Nearness of neighborhood in such cases was deemed sufficient to qualify a man for being a witness, for he could hardly in those 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.
But besides circumstances and events of general interest to the community, to prove which all the free members 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 depended on the birth of a living child, witnesses were summoned to be present at the lying-in2 — 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,
1 Ille homo qui hoc testificare voluerit, commarchanus ejus debet esse, et debet habare sex solidorum pecuniam et similem agrum. Leg. Bainv. T. 16, c. I, § 2. Sanè si eos (caballos) in re sua damnum sibi facientes invenerit clauseritque. vicinis suis et consortibus contestetur. Leg. Burg. T. 49, c. 3.
2 — hæreditas materna ad patrem ejus pertineat, eo tamen si testes habet pater ejus quod vidissent ilium infantem oculos aperire ut potuisset calmea domus videre et quatuor parietes. Leg. Alam. T. 92.
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 happened, 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. Common prudence, indeed, would dictate to every man the same course at the present day.
Among the ancient Germans the credibility of all competent 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 crime disqualified him or affected his legal credit. The offenses of which society then took cognizance were almost entirely those of violence against persons 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 witness: a person guilty of this was incapable of giving testimony again.2 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 quem testimoniare debet, nullum crimen possit indicere.3
Except amongst the Lombards, all evidence was given upon oath, and as a natural consequence from what 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 required was to ascertain the truth of the matter in dispute
1 Leg. Rothar. c. 16. Leg. Bainv. T. 3, e. 5.
2 See Rogge, Greichts. Germ.
3 Capit. lib. iii. c. 32.
— and this their testimony declared. Hence, no formal judgment on the part of the members of the court (schöffen) 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.1 Hence, also, we find that their number, like that of the judges, was usually seven,2 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.3 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 evidence was regarded in the nature of a verdict or judgment, for usually the court itself, in convicting an offender, 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) might3 themselves be challenged to fight by the culprit and six of his friends.4
Moreover, the witnesses not only deposed to facts, but also gave evidence with respect to value, where an injury to property had been committed, or payment of a debt had been withheld. In other words, they determined the amount of damages. For their testimony was conclusive, and the court did not attempt to interfere.5
1 This explains what Malblanc says in his Doctrina de Jurejurando: Id enim observavi, olim præsertim 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, præsentes fuerunt, et hanc causam dijudicaverunt. Deuts. R. Alter. 859.
1 Grimm, ubi supra. 3 Capit. Louis, ann. 812.
4 Sachsenspiegel, ii. art. 12. Rogge, Gerichtsw. Germ. 89.
5 Rogge, Gerichtsw. Germ. c. iv. § 28.
Now when we come to consider the earliest constitution of the jury, we shall see some striking points of resemblance between its functions and those of the old German witnesses. Indeed they so far coincided that it is remarkable that in this country alone, that institution was developed from a state of things so nearly similar. Why it should have been unknown on the continent, and yet have flourished with so much vigor in England, is a problem of which the solution, I believe, is to be found in the fact of the institution in Germany of the Scabini under Charlemagne. These were the sole judges of fact as well as law. They absorbed the whole judicial functions of the court, and therefore there was no room for another body distinct from them, whose office should be conclusively to determine questions of fact for them. And when the principle was once established of thus making the court consist entirely of a limited number of duly qualified judges, the transition to which I have before adverted to single judges, nominated by and dependent on the crown, who decided without the intervention of a jury, was a natural and almost necessary consequence.
CHAPTER IV.
THE JUDICIAL SYSTEM OF THE ANGLO-SAXONS.
SECTION I. Trial by Jury unknown to the Anglo-Saxons.
IN his admirable edition of Blackstone’s “Commentaries,”1 Mr. Sergeant Stephen says, that “When the Anglo-Saxon memorials are carefully scrutinized, we find them to be such as even to justify a doubt whether trial by jury (in any sense approaching to our use of that term) did actually exist among us at any time before the Norman Conquest.” This statement is, I believe, short of the truth. It may be confidently asserted that trial by jury was unknown to our Anglo-Saxon ancestors; and the idea of its existence in their legal system has arisen from a want of attention to the radical distinction between the members or judges composing a court, and a body of men apart from that court, but summoned to attend it in order to determine conclusively the facts of the case in dispute. This is the principle on which is founded the intervention of a jury; and no trace whatever can be found of such an institution in Anglo-Saxon times.2
1 Vol. III. 588, n. (z).
2 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
If it had existed, it is utterly inconceivable that distinct mention of it should not frequently have occurred in the body of Anglo-Saxon laws and contemporary chronicles which we possess, extending from the time of Ethelbert (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 unknown in Saxon times, it is nevertheless true that we can recognize the traces of a system which paved the way for its introduction, and rendered its adoption at a later period neither unlikely nor abrupt. This is, indeed, just what we might expect. Our early jurispru-
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 past: 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 Regiæ 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.
dence was too imperfect not to be in a transitionary state. Its history is analogous to that of our constitution 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 portions 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 customary 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 lineal descent has never been interrupted or disturbed.”1
The proof of the non-existence of the jury amongst the Anglo-Saxons must depend upon a careful consideration 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 remarkable 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 connected with each other — upon which it will be useful to say a few words.
1 Palgrave’s English Commonw I. 6.
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.1 For amongst the Saxons, and indeed all the nations of the Teutonic family, every freeman was deemed to possess a certain pecuniary value, which varied according to his rank; and this determined the amount of compensation which he was entitled to receive for a wound or a blow.2 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 offender; 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 hereafter noticed, gave rise to appellations by which different classes were distinguished. The king had his wergild as well as the lowest ceorl.3
The great object of this system of pecuniary compensation 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
1 Wer signifies “man,” and therefore wer-gild, or wer-geld, means the worth or payment of a man.
2 Luitur enim homicidium certo armentorum vel pecorum numero. Tac. Germ. c. 21. By one of the Ripuarian laws, leg. ii. lit. xxxvi. De diversis interfectionibus, it was provided, that animals might be given instead of money as a wergild, their various values being computed in solidi. Thus, si quis weregildum solvere debet, bovem cornutum videntem et sanum pro duobus solidis tribuat.
3 See “Ancient Laws and Institutes,” tit. Wergilds.
became the enemies of, and in a state of feud (fá) with the person who had inflicted the wound.1 It was therefore provided that, instead of this lex talonis, so destructive of the peace and well-being of the community, the injured party if he survived, or his relations if he died,2 should be content with a money-payment as a compensation, 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 punished. 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 bere, “Buy off the spear or bear it.”3
It appears, also, that if an affray took place and several 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 sustained greater loss that the other, it was entitled to compensation (wer) or bot or vengeance to the extent of the overplus or excess.4
1 Thus Tacitus tell us of the ancient Germans, Suscipere tam inimicitias seu patris seu propinqui quam amicitias necesse est. De Moribus Germ. c. 21.
2 — recipitque satisfactionem universa domus. Id.
3 Leg. Edw. Conl. 12. Amongst the Lombards, females were not entitled to share in the compensation because they could not “bear the feud.” Quia filiæ ejus, eo quod fœmineo sexu esse probantur, non possum 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 fœmina cum armis defendere nequiverit, duplicem compositionem accipiat. Leg. Bain v. iii. c. 13. Perhaps, however, these laws refer to different wergilds; the first to payment of compensation in the case of a relative, the last to payment for injury done to the woman herself.
4 See Oaths, Anc. Laws and Inst. p. 183. Leg. Hen. I. c. 70, § 9. S1
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 twofold 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 those to whom as an especial privilege the state had delegated this power, received the fine for the breach of the peace.”1
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, endeavored 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 derived 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, acquainted with Anglo-Saxon, into liberum plegium, instead of pacis plegium. It means, therefore, a “peace-pledge,” the mutual guarantee by which every member of a tithing as well as of a mæg, 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, quærant parentes ejus Weræ vel vindictæ superplus. Si unius dignitatis et paritatis sint, in eo consistat.
1 Kemble’s Introduction to the Codex Diplomaticus Ævi Saxonici, lvii A most valuable dissertation upon parts of the Anglo-Saxon law.
In the collection of laws called Leges Edwardi Confessoris, there is a full account of this universal system of bail. “Another peace the greatest of all there is, whereby all are maintained in former state, to wit, in the establishment of a guarantee which the English call Frithborgas, 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.”l
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 compensation paid by a wrongdoer, for any injury inflicted on a member of their gild or tithing.2
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
1 Leg. Edw. Conf. 20, and see Leg. Edg. II, 6; Cnut, 20; Gul. Conq. iii
14.
2 Si quis occidat hujusmodi qui parentes non habent, compositionis medietas solvatur Regi et medietas gildonibus. Leg. Alf. Chron. Bromton apud Twysden, p. 825.
marks, of which forty went to the king, and the remaining six went to the relations of the slain, if the murderer were not found and brought to justice within a year.1
The original of these societies must be sought for in family unions afterwards extended beyond relationship by blood to connection by neighborhood. At first the mægas 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 (mægas) 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.2
We have seen that the frithborh was a system of mutual bail for the preservation of the public peace. The smallest subdivision for this purpose was the tithing (teothing), 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
1 Leg. Edw. Conf. 15.
2 See some remarks as to the origin of courts, in Morgan’s Law of Literature, vol. II., chapter on Legal Reports.
teothings-ealdor, or tienheofod; and he seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice, does not very clearly appear.1
Next in order came the Hundred (hundrede), which in its original constitution consisted of ten tithings, or a hundred families, associated together by a similar bond of mutual responsibility. In some parts of England the territorial division was called a Wapentake2 instead of Hundred. The head-man was called the hundredesealdor, or simply gerefa,3 which was the generic name for the officer or reeve of any district. He acted as the presiding officer of the hundred-court, which met once at least every month,4 and had both civil and criminal jurisdiction. The bishop, however, of the diocese had co-ordinate authority with him, and the court had cognizance of ecclesiastical causes, which were entitled to
1 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 counties which corresponded with the ancient 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.”
2 The ordinary derivation of this word is from wappen, arms, and tæcan, to touch, signifying that the inhabitants of each hundred did homage to their headman, by touching his spear with their weapons. See Leg. Edw. Conf. c. 33. Phillips, however, in his Gesch. des Angles. Rechts, thinks that the word denotes the mode in which the different hundreds were distinguished by the painting of their arms, taking tæcan in the sense of “to mark.”
3 This term, however, is not found earlier than the Leges Edw. Confessoris. In the Leg. Hen. I. c. 91, § I, he is called “aldremannus hundieti.” The origin of the word gerefa has been already explained; see ante, p. 33, note.
4 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.
precedence over any other business. Trials by ordeal seem most frequently to have taken place there. Sometimes it was formed by a union of two or more hundreds, as in the case where the litigant parties belonged to different hundreds, or there was a deficiency in the numbers requisite to constitute a court.1
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.2 It was convened by the shire-reeve (sometimes called ealdor-man), who presided over it, assisted by the bishop. Here causes were decided and business transacted which affected the inhabitants 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 suppose that this was a permanent or fixed tribunal. It was 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 unless 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.”3
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 maintained? Constant fluctuations would necessarily take place from the increase of families and the migration of
1 Si aliquid in Hundredis agendorum penuria judicum vel casu aliquo transferendum sit in duas vel tres vel amplius Hundredas. Leg. Hen. I. c. 7.
2 Leg. Edg. II. 5; Cnut. II. 17; Edw. Conf. 35. There were also small town-courts, burhgemote, with limited jurisdiction.
3 Leg. Cnut. II. 16.
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 provided for by a periodical adjustment in the following manner. It was the duty of all the freemen of a hundred to meet twice a year and examine into the state of the tithings to see whether they had their full complement of members, and whether there was a deficiency or excess of numbers.1 If this happened, we must suppose, although it is not so expressly stated, that a fresh numerical 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 occur 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 published by the authority of the State.2
Although originally, and perhaps always in strict right, the whole of the free male adults of a district might at-
1 Speciali tamen plenitudine, si opus est, bis in anno conveniant in hundretum suum quicunque liberi, tam hudefest quam folgarii, ad dinoscendum, scilicet, inter cetera, si decanie plene sint, vel qui. quomodo, qua ratione, recesserint, vel super-accreverint. Leg. Henrici I. c. viii. § I. The tam hudefest 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 lord. See Glossary to Ancient Laws and Inst.
2 See Phillips, Eng. Reichs u. Rechtsgeschichte, I. 202.
tend and form the monthly or half-yearly court held for that district, yet it is by no means improbable that in practice this became 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 such a class of judges amongst the Anglo-Saxons; but he says that it can not be affirmed with certainty whether they were designated by any particular name.1
There are several passages to be found amongst the Anglo-Saxon laws which throw light upon this question. Thus one of the laws of Ethelred provided, “Let doom stand where thanes are of one voice: if they disagree, let that stand which VIII, of them say;2 and let those who are there outvoted pay each of them VI. half-marks.” And an order respecting the “Dunsætas,” or dwellers in Wales, ran thus: “XII. lahmen3 shall administer the law (or, explain it, riht tæcan) 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.”
Another law of Ethelred4 enacted, that a “gemot (or
1 His mistake in thinking that the term “witnesses” (gecorene to gewitneese) 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 manorial courts, to try offenses and determine disputes there, called secta and sectatores; and the obligation to attend was in the nature of a tenure, for neglect of which they might be distrained to appear. Fleta II. c. 53-65.
2 In the compilation known by the name of Leges Henrici Primi, we find the following law: Vincat sententia meliorum et cui justitia magis acquieverit. Unless we consider meliorum as equivalent to plurimorum, and indicating a majority, this would open a wide door to cavil and dispute. Allen, in his notes to Leg. Hen. I. (Anc. Laws and Inst.), assumes it to mean a majority, and to be a substitution for the two-thirds, or eight, of the law of Ethelred, and he asks whether justitia here means the king’s justiciary? This interpretation is at least doubtful.
3 Lah-man means jurisconsultus, judex.
4 Leg. Ethel, III. 3.
meeting) be held in every wapentake; and the XII. senior (yldastan) thanes go out and the reeve with them, and swear on the relic that is given to them in hand, that they will accuse no innocent man, nor conceal any crime.”1
Now this may possibly mean that the thanes here spoken of were to act as the judges of the gemot, or court; and such is the opinion of Dufresne, Brady, and Hicks, who think that they correspond to the scabini of the Franks. In this sense also the passage is taken by Phillips, in his able and accurate work, the Geschichte des Anglesachsischen Rechts. But the more general, and perhaps preferable, view is, that the thanes were in the nature of inquisitors of crimes committed within the district; and accordingly Sir Francis Palgrave,2 speaking of this law, says, “If the wapentake, or hundred, impeached the offender, the suitor spake by the twelve chief thanes, who together with the gerefa were sworn that they would not accuse any innocent man, nor conceal any crime... The resemblance of the twelve thanes to a grand jury is sufficiently obvious; and the principal difference between the Anglo-Saxon echevins3 and the modern inquest of the shire, seems to have consisted in the greater stability of the ancient magistracy, who, judging from the analogies afforded by the burghs, held their offices for a definite period.” I hope, however, to be able to show in the course of this chapter, that the functions of the twelve thanes, considered in this point of view, did not materially differ from those of the court itself at that time — so that the two theories are hardly at variance with each other.
1 Nænne sacleasan man forsecgean ne nænne sacne forhelan. Phillips (Gesch. Ang. Rechts) translates forsecgean, “condemno.” Mr. Thorpe (Anc. Laws and Inst. I. 295) renders ne nænne sacne forhelan, “nor conceal any guilty one.” But this is incorrect, for sacne means a thing, not a person.
2 English Commonwealth, I. 213.
3 Sir F. Palgrave here applies the term echevins to the Thanes. It is the French form of scabini, whose office has been previously explained.
So far, therefore, as the extant laws give us any information, it seems not improbable that the usual number of numbers composing the court was twelve. But we find mention in the old chronicles of causes decided amongst the Anglo-Saxons by twenty-four judges. Thus in the following passage from the Historia Eliensis:1 “Tandem veniens Ægelwinus Alderman ad Grantebrucge habuit ibi grande placitum civium et Hundretanorum coram XXIV. judicibus.” In this case we may suppose that there was a union of two hundreds, which probably happened because the suit was one of importance. At the same time I do not think that the right of all the freemen of the district to attend these courts in the capacity of judges was taken away.2 But it came to be looked upon rather as a burden than a privilege, and as such it is spoken of by Bracton and Fleta, when they discuss the duty of the secta or sectatores to appear in the county and baronial courts.
SECTION V. Examples of Anglo-Saxon Civil Trials.
Before quitting this part of the subject it will be useful to give one or two instances of trials which took place before these primitive tribunals.3 They will help us to understand the system better than a more lengthened disquisition.
A large meeting or court (magna concio) was held at Witlesford, in Cambridgeshire, over which Ægelwin the ealdorman presided. When all were seated, one Wensius a relation of Wulfric, rose and laid claim to two hydes of land at Swaffham, of which he said that he and his
1 I. 34, and see Ib. 13.
2 Thus at the court mentioned in the text, held at Witlesford in Cambridgeshire, we are told that Ægelwinus Aldermannus et omnes meliores concionatores de comitatu Grantebrycge were present. Hist. Eliens. I. 45.
» Hist. Eliens. I, 45.
kinsmen had been unjustly deprived, and had not been paid their value. Upon this Ægelwin, the president, asked the assembly if there was any one present who knew how Walstun, the party in possession, had become the owner of the land. Alfric of Wicham answered, that Wulstan had bought it from Wensius, the claimant, for eight pounds, which he paid him in two sums, at two different times, and that the last of these sums was sent to him by the hands of Leofwin, the son of Ædulph, who gave him the money in the presence of eight hundreds, in the southern part of Cambridgeshire, where the lands in dispute lay.1 To prove the truth of this assertion, Alfric vouched as witnesses the inhabitants of those eight hundreds (VIII. hundretas traxit in testimonium); and the court having heard their evidence decided against the claimant.
The next case is taken from the Historia Ramesiensis.2 Some land at the same place, Swaffham, in the possession of the monastery of Ramsey, was claimed by Alfnoth, who summoned Œdnoth. the sub-prior, and others of the monks, to appear at Wendlebury before judges (coram judicibus). These judges were, Aylwyn
1 — dedit illi pecuniam in una