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

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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.

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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.

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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.

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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 cyrotheca involutam coram VIII. Hundretis, in quibus prædicta forte jacebat. It is difficult to conceive how the land in dispute, which we are told was two hydes, could have been situated in eight hundreds, unless we assume the hyde to have contained a greater number of acres than seems possible. Mr. Kemble, in his “Saxons in England,” Bbk. I, c. 4, has fully investigated the subject, and he says, that “the hypothesis of the hide having comprised from thirty to thirty-three acres, is the only one which will answer the conditions found in various grants;” and “that it is entirely impossible for the hide to have reached 120, or even 100 acres.” But if this writer is correct in his computation, then 66 acres (two hydes) must have lain in no less than eight hundreds. But in another passage (bk, I. c. 9) he assumes it as probable that our present hundreds, nearly represent the original in number and extent, and if so, it is plainly impossible that the two hydes which were the subject of dispute could have contained only 66 acres.

2 Cap. 47.

the sheriff (Aldermannus), and Edric, an officer appointed by the king (regis præpositus), who presided over the court, which consisted of a number of principal men of the county. After some progress had been made in the inquiry, it was suggested and agreed that the dispute should be decided by thirty-six persons, half of whom were to be chosen from the friends of one party, and half from the friends of the other, qui causam judiciali sententia inter eos dirimerent. These were named, and they retired from court to examine into the case. In the meantime, however, and during their absence, Alfnoth, the plaintiff, asked Œdnoth, and another monk who was in his company, whether they would venture to make oath that they were entitled to the land, and thus terminate the dispute? Œdnoth answered that they were ready to do so: but the sheriff refused to allow this, saying, that it was not right that the clergy should be sworn before a secular tribunal; whereupon the court unanimously agreed that the oath was unnecessary, that the monastery ought to keep the land, and that Alfnoth, for his false claim, should forfeit his property to the king.

It will be sufficient to quote one more example of these suits. A son having laid claim to some lands in his mother’s possession, sued her in the county court, and, as he was opposed by a relative who appeared on her behalf, three of the thanes took horse and rode to her, to inquire into the facts of the case. The lady, in a moment of anger, formally disinherited her undutiful son, and made Leoflæd, a female relative, her heir,.in the following terms: “Here sitteth Leoflæd, my kinswoman, unto whom I grant both my land and my gold, both gown and dress, and all that I possess after my own day.” The thanes returned and testified to the court that these words had been spoken; upon which, judgment was given against the son, and a record made that Leoflæd’s

husband was entitled to the property, of course, after the death of the testatrix.1

Of the exact mode in which trials were conducted in these courts we know little; but the Anglo-Saxon laws, and contemporary annals, make frequent mention of two classes of witnesses who play a most important part in the judicial proceedings of the time, and of whom it is necessary to speak somewhat in detail.

These consisted, 1, of compurgators, who supported by their oaths the credibility of a party accused of a crime, or engaged in a suit; and, 2, of persons appointed to attest transactions, in order that their evidence might be available afterwards in case of dispute. We proceed first to consider the former.

SECTION VI. Of the Compurgators.

Amongst the Anglo-Saxons there was what we may call a graduated scale of oaths, and legal credit was attached to them according to the rank of the witness. And this rank was estimated by the amount of “wergild” or value set upon his life according to the principle which has been previously explained. Thus the oath of a twelfhyndesman (i.e., a person whose wer was twelve hundred shillings) was equal to that of six ceorls or twyhyndesmen; and the reason assigned for this by a law of Athelstan, was, because the homicide of a twelfhyndes man could only be fully atoned for by taking vengeance on six ceorls, and his wergild was equal to that of six ceorls.

On the same principle we find oaths sometimes designated by the number of hydes of land possessed by the party taking them. Thus the expressions occur, be hund twelftig hyda, and be sixtig hyda, the meaning of which is this: Whoever was the owner of five hydes of land

1 See Kemble’s Introduct. to Cod. Dip. Ævi Sax.

had a wergild of six hundred shillings, and was called a sixhyndes man. Hence the oaths of twelve sixhyndesmen were the oaths of twelve persons owning each five hydes of land, so that they represented sixty hydes, and the aggregate value of their oaths was, in Anglo-Saxon parlance, called be sixtig hyda. In like manner as the twelf hyndesman had a legal value double that of the sixhyndesman, his worth was that of twelve hundred shillings, which represented ten hydes. Twelve such persons, therefore, represented 12 x 10 = 120 hydes of land, and the aggregate value of their oaths or legal credibility was expressed by be hund twelftig hyda.

It is, perhaps, hardly correct to call the compurgators witnesses, for they did not make their appearance in court to testify that they had witnessed anything relating to the facts in dispute, but merely to vouch for the trustworthiness of the party on behalf of whom they came forward. But, even now, we use the expression “witnesses to character,” and we may, therefore, with equal propriety apply the term to the compurgators, whose office was so closely analogous. They resembled, in some respects, the laudatores of the Roman law.

The chief difference between these and the compurgators of the English law consisted in this, that the former were produced to show the improbability that a person so supported in his adversity by friends could have been guilty of the crime imputed to him, — while the latter pledged their belief on oath that the accused had not sworn falsely in denying the charge brought against him; and if a sufficient number could be found to do this, he was entitled to an acquittal. For, in the times of our Anglo-Saxon ancestors, such regard was paid to the sanctity of an oath, and such a repugnance was felt to the idea, that a man of good repute amongst his neighbors could be willfully forsworn, that if, when charged with a debt or a crime, he denied it on oath in a court of

justice, and could get a certain number of persons to swear that they believed him, he had judgment given in his favor, unless the opposite party could produce more compurgators on his side.1

The oath taken by the accused was as follows:

“By the Lord, I am guiltless both in deed and counsel of the charge of which N. accuses me.”

That by the compurgators was:

“By the Lord, the oath is clear and unperjured which M. has sworn.”2

If a man was accused of an offense and ran away, and any one charged the lord (hlaford) with having counseled or been privy to his escape, the law was that the lord should “take to him five thanes and he himself the sixth, and clear himself thereof by oath.”3 If the purgation succeeded, the lord was entitled to the wer (i.e. amount of legal compensation due for the crime), but if it failed (i.e. if a sufficient number of proper compurgators could not be found), the lord was obliged to pay the wer to the king, and the man who had fled became an

outlaw.4

But the usual number of compurgators was twelve. Thus in the articles of peace between Guthrum, king of

1 The system of computation was by no means peculiar to the Anglo Saxons. It was in use amongst all the various nations of the Teutonic family, and twelve seems to have been with them the favorite number of compurgators, although more were often required: Ingenuus, nobilis homo ingenuus — cum cluodecim ingenuis se purget. Concli. Tribur. ann. 895. See Bernardi, De l’Orig. de la Legislation Franc. 82, and Rogge, Gerichts vesen der Germanen, Chap. 5.

2 Anc. Laws and Inst. tit. Oaths.

3 Leg. Ethel. I; Cnut, Sec. 30, 31; Henr. I. 41. § 6.

4 Id. The expression in the various laws on this subject is wer, as given in the text: but I apprehend that it is used loosely for wite, which means the penalty due to the king or lord for the public wrong done by crime. The wer belonged properly to the injured party, or his relatives and gildsmen if he were dead; but it is not unfrequently put for the whole amount payable by the wrongdoer, and then it includes the wite.

the invading Danes, and Alfred, about the year 880, we find the following provision:1 “If a king’s thane be accused of man-slaying, if he dare to clear himself, let him do that with XII. king’s thanes. If any one accuse that man who is of less degree than the king’s thane let him clear himself with XI. of his equals and with one king’s thane. And so in every suit which may be for more than four “mancuses.”2 And if he dare not, let him pay for it threefold, as it may be valued.”

One of the laws of William the Conqueror declared that if a man were accused of robbery and bailed to appear and answer the charge, and in the meantime fled from justice, his bail was to swear with eleven compurgators (si jurra sei duzime main) that at the time he offered himself as bail he did not know that the man had committed the robbery, and that he had not been privy to his escape.3 So also by another law of the same monarch, if a man were charged with theft who had hitherto borne a good character, he might clear himself by his own single oath; but if he had been previously convicted or accused (e hi blasme unt este), he was to make oath “with the twelfth hand;” and for this purpose fourteen persons were to be named, out of whom he was to choose eleven, making himself the twelfth. — If, however, they refused to swear, he had to undergo the ordeal.4

But we must now notice an important feature in this system, which seems to have been intended as a check upon its liability to abuse. Experience must have soon shown that when a man was allowed to choose his own compurgators, it was not difficult for him to select out of a large body of relations or neighbors a sufficient number who would be willing to swear that they believed

1 Anc. LI. and Inst. 155.

2 The mancus was equal to thirty pence.

3 Leg. Gul. Conq. 3.

4 Id. 14. See also 15.

him, whatever his character might be. The oath taken by friends thus rallying round him at his call, was known by the name of ungecorene-ath, or rim-ath, “the unchosen oath;” because the witnesses were not chosen or nominated by the opposite party. But afterwards the accused was allowed to name persons of the proper class (i.e., kinsmen or fellow-gildsmen of the accused), and out of these the accused or defendant was obliged to choose his compurgators. This was called the eyre ath, or “chosen oath,” because the oath of the accused was supported by the oaths of persons chosen by his adversary; and we may well imagine that the latter took care to nominate persons who were least likely to be tampered with, or to be influenced by undue feelings of compassion.1

It seems also that in some cases a certain number of compurgators were named by the reeve of the district, consisting of relatives and neighbors of the accused, and out of these he was obliged to choose the number required for his compurgation.3 This form of procedure was equally called the eyre ath. Here, too, the number out of which the compurgators were to be chosen was generally twelve, or some multiple of twelve, and they were called the equals or peers (gelican) of the accused If he was a man of bad character, a triple number of per-

1 See Gunderman, Enstehung der Jury, n. 55. Phillips, Anglesachs. Recht. 182.

2 This was exactly in accordance with the custom that prevailed amongst the nations of the continent, where we find that numerous laws existed, regulating the mode of appointing compurgators, who in the Latin versions of those laws are called sacramentales legitimi, or simply sacramentales. Thus: Si qualiscunque causa inter homines liberos evenerit et sacramentum landum fuerit, si usque ad xx. solidos fuerit causa ipsa aut amplius, ad Evangelia sancta juret cum XII. aliis suis, id est sacramentalibus. Ita ut VI. Ili nominentur ab illo qui pulsat, et Septimus sit qui pulsatur, et quinque quales voluerit reus, liberos tamen, ut sint XII. — Leg. Rothar. c. 364. Et

cum XII. sacramentalibus juret, cum quinque nominatis et septem advocatis Leg. Alam. tit. 77.

sons were named, out of whom he was to choose a triple number of compurgators, or if they were not named, and he was unable to procure the required number to vouch for him, he was obliged to undergo the triple ordeal.1

But it was not in all cases that compurgation was allowed. In some crimes of open violence, or when a man was taken in the mainour with the red hand, or other proofs of guilt upon him, he could not clear himself by adducing persons to swear to their belief in his innocence. The process in this case was different. It was no longer a contest of oath against oath — i.e., the oath of the accuser against the oaths of the accused and his compurgators. The former, indeed, swore to the truth of the charge, and in this he was supported by the oaths of a competent number of friends, but the latter was obliged to submit to the ordeal in order that by the judgment of God his guilt or innocence might be made manifest.

An accusation thus fortified by oath was called vorath, or forath;2 and we may now perceive that it makes little difference whether we consider the “twelve senior thanes,” mentioned in the law of Ethelred, which has been previously noticed,3 members of a court of justice, or merely inquisitors to accuse of crime. Their functions in either case would be very nearly, if not altogether, the same.

If we regard them as “accusers,” they were obviously equivalent to kind of public vorath — that is, to persons who supported their charge against the accused by jointly pledging their oaths to its truth — in which case we

1 Northumb. Presb. Leges, c. 51; Leg. Ethel. I. I; Leg. Gul. Conq. c. 17.

2 In the old Danish law it was known as the asworen eth, “sworn oath.” In the Salic law it is called wedredum. See Gunderman, Erst, der Jury 35.

1Ante, pp. 56, 57.

have seen that compurgation was not allowed where the accusation related to certain specific acts of violence, and the accused was obliged to resort to the ordeal to clear himself. The vorath was in fact taken as a primâ facie proof of guilt, and so might be regarded as a judgment of a court condemning the suspected person to undergo the ordeal, in order that the God of Truth might interpose and ultimately decide the question of innocence or guilt. If so, then the functions of the thanes as accusers were not dissimilar to those of judges, whose doom in such a case would in Anglo-Saxon times have been the same, namely, that the culprit must abide the issue of the ordeal. And this view is strengthened by the following provision of the same law of Ethelred, which ordains, “And let every one (accused) buy himself law with XII. ores, half to the lord (landrica), and half to the wapentake; and let every man of previous bad character (tiht-bysig) go to the threefold ordeal, or pay fourfold.”

The ordeal was also to be undergone in the following cases: I. Where a person accused was unable to adduce a sufficient number of compurgators; 2. Where he had been notoriously guilty of perjury on a previous occasion; 3. Where he was not a freeman; unless his hlaford, or lord, swore to his belief in his innocence, or bought him off by paying the wergild. But it seems that even when the ordeal was requisite, the accused was obliged previously to take an oath that he was innocent in the sight of the law (mid folcrihte unscyldig).2

The ordeal was of three kinds: I. The ordeal of hot iron, in which the accused had to take up and carry for a certain distance a mass of hot iron of a pound weight; 2. The ordeal of hot water, in which he had to take out of a pitcher of boiling water a stone hanging by a string, at a depth equal to the length of his own hand. In some

1 From tihtle (accusation), and bysig (implicated, busied). 2 Leg. Atheist. I. 23.

cases he had to undergo the triple ordeal (pryfeald lada), in which the iron was increased to three pounds weight, or the stone was sunk in the water to the depth of his elbow.1 3. The Corsnæd,2 or ordeal of the accursed morsel. This consisted in making the accused person swallow a piece of bread, accompanied with a prayer that it might choke him if he were guilty. Godwin, the powerful Earl of Kent, and father of Harold, was currently believed to have died in the act of attempting to swallow the corsnæd.3

If a party was unable to vouch a sufficient number of compurgators, he was deemed to have taken a false oath, and lost his suit in a civil case, or was convicted in a criminal.4 But even if he did produce the requisite number, his opponent might (in some cases at all events) overpower the force of their testimony by calling compurgators on his side, whose oaths were of preponderating legal value. These, again, might be met by the accused in the same manner, and so on, until either party prevailed in the amount of legal value of the witnesses who supported him with their oaths. Sometimes the number of compurgators was so great as to form a large

1 Leg. Ina. 77, App. Duncange v. Lada.

2 Fiom cor, proof, and snaed, morsel or crumb. It was also called nedbread, or bread that must (ned) be taken.

3 In the year 1194 (temp. Rich. I.), when the Justices in Eyre for the county of Kent came to Canterbury, it was testified before them that the Abbott of St. Augustines ought to have, and his ancestors had always had, libertatem legis, scilicet judicii aquæ et ignis et duelli. Chron. Thome apud Twysden, fo. 1841. And we find from another chronicler, that in the following year the ordeal was put in force in Canterbury, Mense Decembri Justiciæ qui vocantur errantes missi per Angliam ab Archiepiscopo Cantuariensi fuerunt apud Cantuariam, ibique per ministros regis judicio aquæ mundati sunt vel perierunt criminosi, qui ad regiam pertinebant coronam. Gervase, ann. 1195.

4 An instance of the former occurs in the Hist. Eliens, I, 44: Cui omnia illata deneganti et contradicenti ut cum jurejurando se purgaret, quod cum facere nequibat, nec qui secum jurare debuerant habere, poterat, decretum est, ut eo expulso Brihtnodus Alderman utisque hydis uteretur.

assembly. Thus, in one case, we read of upward? of a thousand attending.1

“Perjury,” says Mr. Hallam, “was the dominant crime of the middle ages; encouraged by the preposterous rules of compurgation, and by the multiplicity of oaths in the ecclesiastical law.”2 Now it is obvious that such a system as that of compurgation could be of real efficacy in promoting the ends of justice, only where unbounded reverence was paid to the sanctity of an oath. But we may be very sure that it must at all times have been a most fallacious test of innocence, and have favored, to an alarming extent, the escape of the guilty. This was at last discovered; and the only wonder is, that such a mode of trial was allowed to linger so long amongst us. It gradually, however, fell into disuse, and was ultimately restricted to actions of debt, where, until a very recent period, the defendant was allowed “to wage his law,” that is deny upon oath the debt, and vouch eleven compurgators in support of his credibility. The consequence of this was, that plaintiffs avoided, when they could, that form of action, for, as Sir Edward Coke says of his own time, “Men’s consciences do grow so large specially (in this case passing with impunity), as they choose rather to bring an action upon the case upon his, the defendant’s, promise, wherein, because it is trespass sur le case, he can not wage his law, that an action of debt.”3

Certain points of resemblance between the compurgators and the jury, and especially the coincidence in point of number, have led several authors to the conclusion, that the latter was derived from the former, and was in truth only a modification of the ancient usage in this re-

1 Tunc Ulnothus adduxit fideles viros plus quam mille, ut per juramen tum illorum sibi vindicaret eandem terrain. Hist. Eliens. I, 35.

2 Midd. Ages. Suppl. Notes, p. 260.

3 Co. Litt. 295. b. The party himself was sworn de fidelitate, and the eleven compurgators, de credulitate.

spect.1 But this is, I believe, entirely a mistake, founded on a misconception of the original nature of the office of jurymen. We shall show, indeed, hereafter that they were witnesses, but not to character, only to facts. Compurgation was one mode of trial; the jury was another. Each was distinct from the other, and both might, and in fact did, co-exist together, although, as experience taught men the immense advantage which the latter had over the former as a means of discovering the truth, trial by compurgators gradually fell into disuse.

SECTION VII. Of the legally appointed Witnesses in the Anglo-Saxon Law.

We must next notice a class of witnesses appointed by law to attest bargains, whose existence has not hitherto attracted the attention it deserves, with reference to the subject of our inquiry. They seem to have stood in the place of modern public notaries, for the purpose of supplying evidence of transactions, and so preventing perjury and fraud. We have already had occasion to describe them as they existed amongst the old Germans, and the Anglo-Saxon laws enable us to give a more particular account of their functions.

The earliest mention of these witnesses occurs, I believe, in one of the laws of Athelstan (A. D. 924-940), which enacted that there should be named in every reeve’s jurisdiction2 as many men as were known to be unlying, that they might be for witness in every suit. “And be the oaths of these unlying men according to the worth

1 Amongst others. Rogge has advanced this opinion with great confidence, in his learned and useful treatise, Greichtswesen der Germanen, chap. viii. §44; and Turner, in his Hist. of the Anglo-Saxons, has altogether confounded the compurgators with the jury.

2 The original is manung, which seems to have comprised all who resided within the jurisdiction of the reeve, and owed obedience to his summons. See Anc. Laws and Inst. p. 223.

of the property without dispute.” They were also liable to punishment if they bore false testimony. “But if it be found that any of these (the appointed witnesses) have given wrongful witness, let his witness never again stand for aught, and let him also give XXX. shillings as wite (or

penalty.”)1

But the most explicit information on the subject is contained in the laws of Edgar, which provided as follows:2

“This then is what I will; that every man be under surety within the towns (burgs) and without; and let witness be appointed to every town and to every hundred.

“To every town let there be chosen XXXIII. as witnesses (gecorene to gewitnesse).3

“To small towns and in every hundred XL, unless ye

desire more.

“And let every man with these witnesses buy and sell every of the chattels he may buy or sell, either in a town or in a wapentake; and let every of them when he is first chosen as witness give the oath that he never, neither for love nor for fear, will deny any of those things of which he was witness, nor declare any other thing in witness save that alone which he saw or heard; and of such sworn men let there be at every bargain two or three as witness.

“And he who rides in quest of cattle, let him declare to his neighbors about what he rides; and when he comes home, let him also declare with whose witness he bought the cattle.”

In the simple state of society which existed in the time of our Saxon forefathers, transactions between man

1 Leg. Athels. 1. 10.

2 Leg. Edg. Supp,, and see Leg. Edw. I. 5; Edm. Conc. Culint. 5; Ethelr. I. 3; Cnut, Secul. 24; Edw. Conf. 38; Gul. Conq. I. 45; III. 10.

3 These are the gewitnesse, whom Grimm confounds with the members of the court. See ante, page 56, note I.

and man were conducted with a publicity and openness of which we have now no example. Sir Francis Palgrave has well and eloquently described the mode in which evidence was thus perpetuated in early times.1 “The forms, the festivities, and the ceremonies accompanying the hours of joy, and the days of sorrow, which form the distinguishing epochs in the brief chronicle of domestic life, impressed them upon the memory of the people at large. The parchment might be recommended by custom, but it was not required by law; and they had no registers to consult, no books to open. By the declaration of the husband at the church-door the wife was endowed in the presence of the assembled relations, and before all the merry attendants of the bridal train. The birth of the heir was recollected by the retainers who had participated in the cheer of the baronial hall; and the death of the ancest9r was proved by the friends who had heard the wailings of the widow, or who had followed the corpse to the grave.” Payments were made in the presence of the Hundred court, that all the district might be able afterwards to testify to the fact,2 and the charters and deeds were usually witnessed by a number of persons the most interested in the grant, and therefore the most likely to remember it. On one occasion when a hyde of land was given by the monastery of Ely to Œdnoth, a monk of Ramsey, for his good offices in terminating a troublesome dispute, he cut off four pieces of turf, and laid them on the altar of Gregory in his convent, in the presence of a crowd of witnesses, in hujus meræ donationis argumentutn.3 Secrecy and concealment were deemed to be almost conclusive evidence of fraud or crime — and as such they were treated by the

1 English Commonwealth, I. 248.

2 — dederunt ei eandem pecuniam apud Brandune coram testimonio totius Hundreti in quo illa terra jacet. Hist. Eliens. I. 46. 3 Hist. Rames. c. 42,

Anglo-Saxon law. Thus if a person being on a journey were to make a bargain suddenly without any previous intention (unmyndlunge), and without having declared it when he rode out, he was to make it known on his return, and if it was for live stock, he was with witness of his township to bring it to the common pasture. And if he did not do this before five days he was to forfeit the cattle, “because he would not declare it to his neighbors,” even although he had really bought them in the presence of legally named witnesses, and the ealdor of the hundred were satisfied that this was true.1 So also if a man from afar, or a stranger, were to go out of the highway into some by-path or wood, and did not then shout or blow a horn, he was to be accounted a thief, cither to be slain, or redeemed with his wergild.2

And so late as the reign of Henry II., in cases of rape the woman was to go to the nearest town immediately after the outrage, and make known to trustworthy persons the injury she had suffered — showing the marks of violence and state of her clothes if torn. She was then to go before the headman of the hundred and do the same, and also publicly declare the ill-usage she had received at the next county court.3

In all this, the usage of the Anglo-Saxons corresponded closely with that of the Teutonic nations of the Continent. And, although I am not aware that there is extant amongst the laws of the former any distinct statement that hundredors generally were competent witnesses with respect to matters of common interest or notoriety within the hundred, as we have seen was the case with respect to the markgenossen of Germany, this may, 1 think, be inferred with sufficient certainty from the whole tenor of those laws, as well as from incidental

1 Leg. Edg. Supp. 8, 9, 10; and see Leg. Gul. Conq. 10. 2 Legg. Withræd, 28; Ine, 20. 3 Glanv. Tract. de Leg. XIV. c. 6.

mention of such testimony in the old chronicles. And what has been before said on the subject of the conclusiveness and legal effect of the evidence thus given, applies with equal force to the Anglo-Saxon witnesses. Their testimony was decisive of the matter of dispute. It was a verdict not to be questioned or gainsaid.1

When one of the legally appointed witnesses appeared in court to give evidence respecting a transaction which he had attested, he took the following oath:2

“In the name of Almighty God! as I here for N. in true witness stand, unbidden and unbought, so I with my eyes oversaw, and with my ears overheard, that which I with him say.”

And the defendant was himself obliged to take an oath, corresponding to the plea of nil debet, in the following form:

“In the name of the living God, I owe not to N. scot (sceatt) or shilling, or penny or penny’s worth; but I have discharged to him all that I owed him so far as our verbal contracts were at first.”

It may be asked whether there was not also an oath denying the alleged contract altogether (corresponding to the plea of nunquam indebitatus); for that which has just been cited amounts merely to a plea that whatever contract may have been made has been satisfied by payment. We find no such form, and perhaps for the following reason. The onus of proof lay upon the plaintiff, who to establish his demand must have called the attesting witnesses to the transaction. If he had none, then the requisition of the law had not been complied with,

1 Postea vero evoluto tempore, et defuncto Rege ædgaro, visus est idem Leonricus subdola calliditate, omnem conventionem, quam cum Episcopo fecerat, annullare si posset, sed legates viri ædricus Rufus et Leonricus de Berle et Sivirthus vecors, qui huic rei intererant et testes fuerant. eum convictum reddiderunt. — Hist. Eliens. I. 6.

2 Anc. Laws and Inst. Oaths, p. 181.

and he failed in his suit.1 If he had, the mere denial of the defendant would avail nothing, as it would be very difficult, if not impossible, for him to call witnesses to prove a negative; that is, that there never had been such a contract as the plaintiff alleged.

Although we have no express information on the point, we may reasonably conclude that compurgation was not allowed in cases where the plaintiff could prove his demand by calling the legal witnesses who had attested the contract. Otherwise the absurdity would follow, that the oath of a defendant, backed by relatives or friends whom he vouched for a belief in his integrity, would be sufficient to discredit the positive testimony of those whom the law had appointed as trustworthy witnesses. And this view is confirmed by what we know of wager of law in later times. This was not permitted when the debt claimed was secured by a deed or other specialty which spoke for itself, but only, as Coke says,2 “when it groweth by word, so as he may pay or satisfy the party in secret, whereof the defendant having no testimony of witnesses may wage his law.”

In his “Geschichte des Angelsachsischen Rechts,”3 Phillips considers these witnesses as having judicial functions to perform; and indeed treats them as identical with the court which took cognizance of disputes arising out of transactions which they had attested. I can not. however, think that this view is correct. The passages which he cites from the Anglo-Saxon laws are those which

1 If, for instance, the ownership of cattle were in dispute, and the party who asserted that he had bought them could not produce the requisite number of legal witnesses, he was obliged to restore them to the former proprietor. Leg. Sec. Cnut, 24, and compare Leg. Gul. Conq. I: Quod si aliquis rem postmodum calumniatus fuerit et nec testes habuerit nec warrantum, et rem reddat et forisfacturam cui de jure competit.

2 Co. Litt. 294, b.

3 Sect. 50. Grimm also confounds the witnesses with the court in his Deuts. Rechts Alter. 779. See ante, p. 71.

have been already quoted or referred to; and they certainly do not prove it. They nowhere say that the witnesses had to act as judges; and in the following instance at least they are spoken of as different and distinct: Aluricus igitur eandem terram Brihtnoto Abbati liberavit in manu primum coram XXIV. Judicibus in prædicto loco, deinde etiam similiter fecit coram testibus legalibus.1 In so far, however, that their evidence was conclusive, it may be taken to have been equivalent to a judicial sentence, and this has perhaps misled Phillips and others to suppose that they did pronounce such a sentence in the character of judges.

Originally, indeed, there may have been no difference between these two characters; for when all the freemen of the hundred attended the gemot, or court, they necessarily included those who could give evidence upon the matters that came before it. These were as much members of the court as the rest; and their testimony, therefore, on a disputed question was the judicial decision upon it. But afterwards, when the court consisted of a limited number, the judges and witnesses must have been different persons, although the effect of the evidence of the latter remained the same.

SECTION VIII. Results of the Investigation.

Let us now see at what point we have arrived in the investigation of the judicial system of the Anglo-Saxons.

1. We find that courts existed presided over by a reeve, who had no voice in the decision, and that the number of persons who sat as judges was frequently twelve, or some multiple of that number. 2. The assertions of parties in their own favor were admitted as

1 Hist Eliens. I. 13.

conclusive, provided they were supported by the oaths of a certain number of compurgators; and in important cases the number was twelve, or, at all events, when added to the oath of the party himself, made up that number. 3. The testimony of the neighborhood was appealed to, for the purpose of deciding questions which related to matters of general concern. 4. Sworn witnesses were appointed in each district, whose duty it was to attest all private bargains and transactions, in order that they might be ready to give evidence in case of dispute. 5. Every care was taken that all dealings between man and man should be as open and public as possible; and concealment or secrecy was regarded as fraud, and in some cases punished as guilt. When we come to consider the “Assise,” as established by Henry II., and fully understand the principle of that mode of trial, we shall see how, out of these different elements, which continued in full force under the Anglo-Normans, was produced at last the institution of the jury. As yet it had no visible existence, but the idea was implied in the requirement that disputed questions should be determined by the voice of sworn witnesses, taken from the neighborhood, and deposing to the truth of what they had seen or heard. What was wanting was to mold this procedure into a formal shape, which it did not attain until a century after the Norman Conquest.

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CHAPTER V. THE ANGLO-NORMAN PERIOD.

SECTION I. On the legal Changes introduced by the Normans.

IN his History of the English Law, Reeve says:1 “The accession of William of Normandy to the English throne makes a memorable epoch in the history of our municipal law. Some Saxon customs may be traced by the observing antiquary, even in our present body of law, but in the establishment made in this country by the Normans are to be seen, as in their infancy, the very form and features of English law. It is to the Conquest, and to the consequences of that revolution that the juridical historian is to direct his particular attention. A new order of things then commenced.”

This is, I believe, a great mistake, arising from a want of sufficient knowledge of the legal system of the Anglo-Saxons. It would be much nearer the truth to say, that that system was unaffected by the Conquest — and continued in all its vigor for many years after that event.

With reference to the right which the victory at Hastings might be supposed to confer on William to alter the laws and institutions of the country which he had successfully invaded, we must not be misled by the use of the word “Conqueror.” This, in legal parlance, signified

1 Vol. 1. chap. 2.

merely that he had acquired the throne by “purchase,” and not by descent, not that he had vanquished the nation over which he began to reign, so that he could impose laws upon the people, jure belli.1

Nor does it militate against this view, that we find William asserting an “hereditary” title, which at first sight seems opposed to a claim by “purchase.” The fact is, that William, conscious of the weakness of his title, resorted to every possible means of strengthening it; and therefore claimed the crown both as heir of the Confessor, designating himself in his charters, “Ego Wilhelmus Rex Anglorum hereditario jure factus,” and as having had it bequeathed to him by that monarch. But this anxiety to make out a legitimate title, proves that he did not wish to rely upon the right of conquest, which would of course have superseded and been paramount to any other. At the same time it must be admitted that the words armis conquisivit are applied by old writers to his acquisition of the throne.2

There can be no doubt that it was the intention of William I. that his English subjects should continue to enjoy the rights and usages to which they had been accustomed under the laws of their Anglo-Saxon king of the line of Cerdic. But it is equally certain that much injustice and oppression were practiced by his Norman followers, who knowing nothing of these laws were disposed to trample upon the Anglo-Saxons as a conquered race; and we can easily conceive how often, in the insolence of successful invasion, might must have triumphed over right, and caused an apprehension on the part of

1 See this question fully discussed by Sir Matthew Hale, Hist. of Common Law, I. c. 5. Spelman, Gloss. title Conquestus, defines the word, id quod a parentibus non acceptum, sed labore pretio vel parsimonia comparatum possidemus. Hinc Gulielmus I. dicitur, qui Angliam conquisivit i. e. acquisivit “purchased”; non quod subegit.

1 See Hickes’s Thes. Diss. Epist. p. 31.

the English, that they would soon lose their dearly-cherished customs, and be subject in all things to the (to them) unknown laws and caprice of their Norman tyrants. They therefore fondly looked back to the time of Edward the Confessor, the last of their legitimate sovereigns, as that when they enjoyed their natural rights and customs without foreign interference, and were loud in their clamors to William to restore to them the laws of that king — meaning thereby, as I conceive, not any particular code enacted by him — but the laws which prevailed in his reign, and which had been handed down for generations from their forefathers, and were the inheritance of every Anglo-Saxon freeman.

This view agrees with the expressions used by William in the proclamation or charter addressed by him in 1070, to “William, Bishop, and Godfrey, Portreeve, and all the burgers in London, French and English,” in which he says, that his will is that they all should have the laws which they possessed in the days of King Edward.

And the statutes which he afterwards promulgated, and which are known by the name of Leges Gulielmi Conquestoris, are headed by the following preface, or title: Cez sont les leis e les custumes que li reis Will grantad al pople de Engleterre apres le cunquest de la terre: iceles meimes que li reis Edward, sun cusin, tint devant lui.

Accordingly, we find the distinguishing features of Anglo-Saxon jurisprudence retained by the Norman king. Of these we may mention the wergild, or manbot, for bodily injuries; the system of mutual suretyship (frithborh, improperly rendered frank-pledge); the prohibition of suits before the king, unless there was first a failure of justice in the hundred, or county court; the necessity of purchases and sales being made in the presence of legal witnesses: and the use of compurgation and the ordeal.1

1 In proof of this see the Leges Gul. Conq. in the “Ancient Laws and Institutes,” published by the Record Commissioners.

The most important changes in our judicial system made by the conqueror were, I, the separation of the spiritual and temporal courts; 2, the introduction of the combat, or duel, as a means of determining civil suits and questions of guilt or innocence; and, 3, the appointment of justiciars, to administer justice throughout the realm.

With regard to the second of these, however, Sir Francis Palgrave thinks, that notwithstanding the silence of Anglo-Saxon laws and records on the subject, trial by battle may have existed in England before the Conquest. He says:1 “It must be admitted that an Anglo-Saxon duel can not be adduced; but the argument which rests upon the absence of trial by battle in the courts of Anglo-Saxon origin, is not entirely correct. Immediately after the Conquest, the ‘witnesses’ of the church of Worcester offered to become the champions of St. Mary, and to defend the rights of Bishop Wulstun by combat against the claims of the abbot of Evesham. It was in regular course, according to the common law, to join battle in the county court, when the cause was not removed into a superior tribunal. If we reject the subtleties, the distinctions, and, above all, the technical expressions which unquestionably were due to the Anglo-Norman lawyers, and invented, or perfected, under the Anglo-Norman sovereigns, the principles which govern the proceedings of judicial battle are so nearly identified with those which are to be collected from the Teutonic codes, as to afford a probability that they were parts of the Anglo-Saxon law, preserved by the usage and traditions of the people.”

With respect to the justiciars, it has been generally supposed that justices in eyre (justitiarii itinerantes) were first established in 1176, by Henry II., for we find it recorded that in that year, in a great counsel held at Northampton, the king divided the realm into six parts, and

1 English Commonw. I. 224.

appointed three traveling justices to go each circuit, so that the number was eighteen in all.1 Three years afterwards, in 1179, a fresh arrangement was made, and the six circuits were reduced to four, which were distributed amongst fifteen judges.2 But although the formal division of the kingdom into separate circuits may have been first made by Henry II., yet there is no doubt that single justiciars were appointed by William I., a few years after the Conquest, who visited the different shires to administer justice in the king’s name, and thus represented the curia regis as distinct from the hundred and county courts.3

SECTION II. Modes of Trial in civil Suits in the Anglo-Norman Times.

The same remark which has already been made, with reference to the absence of all mention of the form of jury trial in the Anglo-Saxon laws, applies equally to the first hundred years after the Conquest. It is incredible that so important a feature of our jurisprudence, if it had been known, would not have been alluded to in the various compilations of law which were made in the reigns of the early Norman kings. These consist of the Leges Gulielmi Conquestoris, Leges Henrici Primi, and Leges Edwardi Confessoris,4 and in none of them is a hint given of the existence of the jury.

But although the jury, properly so called, does not

1 Spelman, Codex 2 Ibid.

3 Misit autem dehinc rex potentissimus justitiarios per unamquamque scyrara. Hen. Hunting. 18, Will. I.

4 With respect to these last, we not must be mislead by the name into a supposition that they were laws enacted by the Saxon Edward. They were a collection of such as existed in his time, compiled most probably in the reign of Henry II., in order that the English might possess a record of their old laws, and a guarantee for their continuance. See Phillips, Eng. Reichs n. Rechtsgeschichte.

yet seem to have been in existence, we find in the narratives of several suits, which came before the courts in those reigns, distinct traces of a mode of trial which easily paved the way for the introduction of that system. In order to satisfy ourselves on this important point it will be necessary to notice each of these briefly in chronological order.

First, then, we find a writ directed by William the Conqueror to Archbishop Lanfranc, Roger Earl of Moreton, and Bishop Galfrid, requiring them to summon all the shires which were present at the plea of lands of the church of Ely held before the last departure of the Queen to Normandy. To these were to be added such of the barons as could conveniently appear who held lands of the same church, and who had been present at the trial. And when the assembly met, several (plures) Englishmen were to be chosen out of those who knew in whose tenure and possession the lands lay at the time of the death of Edward the Confessor, and they were to confirm their statements by an oath (jurando testentur).1 The register of Domesday Book was, in fact, compiled from evidence of this kind given upon the inquests held under the general survey ordered by the Conqueror.

In the famous placitum held on Pennenden Heath in the same reign, when Lanfranc, archbishop of Canterbury, reclaimed the lands belonging to his see which had been seized by Otho, the Bishop of Bayeux, William’s natural brother, during the vacancy that intervened after the deposition of Stigand, the matters in dispute were determined by the men of the whole county, whom the king summoned to attend, and especially those native English who were best versed in the old laws and customs. This great cause detained the assembly three whole days (eâ causâ totus comitatus per tres dies fuit ibi detentus), and

1 Dugdale’s Monasticon, I. 478, cited in Palgrave’s Proofs and Illustrations, English Commonwealth.

was decided in favor of the archbishop. They also adjudged (fuit ibi diracionatum, etiam a toto comitatu concordatum et judicatum) that the Archbishop of Canterbury held the lands in his demesne as free and quit of all manner of services, as the king held his own lands.1

We have an account of one other important suit in the same reign, which deserves particular attention, from the fact that in order to decide it recourse was had to the oaths of twelve men; and this has been eagerly seized on as a proof that trial by jury was introduced by the Conqueror. It will be found, however, when carefully considered, by no means to warrant that assertion; and the apparent resemblance vanishes when the true nature of the intervention of the twelve in this case is properly understood. Pichot, the sheriff of Cambridgeshire, had dealt with some land as belonging to the king which Gundulf, Bishop of Hrof, in Kent, asserted to be the property of the Church.2 They both appealed to the king, who ordered that all the men of the county should be assembled, in order that the question might be determined by their judgment. Otho, Bishop of Bayeux, presided over the court, the members of which were sworn to say the truth;3 but dreading the power of the sheriff, they decided unjustly in favor of the king’s title. Otho, not being satisfied, required them to choose out of their whole number twelve, who should upon their oaths confirm the judgment which they all had given. This was done, and as the names of six of the “jurors” have been recorded, it may be interesting to mention them. They were Edward of Chippenham, Harold and Leofwine of Exninge, Eadric of Giselham, Wulfwine of Landwade, Ordmer of Berlingham, and six others of the best men of the county. They retired together for a short time

1 Hickes’s Thes. Dissert Epist.

2 Textus Roffensis apud Hickes Thes. Dissert. Epist. p. 33.

3 It is clear from the context that the homines comitatus were sworn.

and on their return into court swore that the judgment given was right and true. Soon afterwards, however, a monk named Grim, having occasion to visit Bishop Gundulf, and hearing of the decision, declared that the whole body was perjured, as he had himself formerly received the rents and services from the land in question as agent or bailiff on behalf of the Church. Upon this, Gundulf went to the Bishop of Bayeux, and told him what the monk had said. Otho first examined the man himself, and then sent for one of those who had taken part in the judgment; and this person at once, with much apparent contrition, confessed, that he had perjured himself. Another was sent for, who made the same confession. The bishop then ordered the rest of the court, and also the twelve who had upon oath confirmed the judgment, to meet him in London, where he summoned many of the principal barons of the kingdom to come and form a court. These adjudged that the whole of those who originally decided the cause had committed perjury, and the land was restored to Bishop Gundulf. But, inasmuch as twelve of them asserted that they had not agreed in the judgment of the others, Otho ordered that they should clear themselves by the ordeal of hot iron, and when they failed in this, they were, with the rest of the county, obliged to pay a fine to the king.

It is extraordinary that the true nature of this proceeding has escaped the penetration of previous writers. They have assumed it to be the first authentic instance of a trial by jury in this country. Even Sir F. Palgrave speaks of the jury in the above case giving their verdict against Gundulphus.1 And Turner, in his “History of the Anglo-Saxons,”2 says, “It is not contested that the institution of a jury existed in the time of the Conqueror. The document which remains of the dispute between Gundulf, the bishop of Rochester, and Pichot,

1 Eng. Comm. I. 253.

2 Vol. I. p. 535.

the sheriff, ascertains the fact.” But so far from this position being not contested, it would, I believe, be much more correct to say that the jury trial in its form of an inquest by twelve men summoned to determine by their verdict a disputed fact, was unknown in the time of the Conqueror. And the above-cited trial proves no thing in favor of the opposite view.

In reality the twelve on this occasion were merely compurgators, called upon by the president of the court to support upon oath the suspected judgment, or rather testimony (for it was nothing more), of their fellows. It is true that they differed from ordinary compurgators, inasmuch as they here affirmed testimony which they had themselves given; but this was an exceptional case. It was not possible to find compurgators distinct from the court, for it was supposed to consist of the whole county, and therefore Otho was obliged to make a portion of the members perform that office. And he might not unreasonably suppose that by thus diminishing the number, he increased the sense of responsibility, and had a better chance of arriving at the truth. I am satisfied that this is the right view of the case, and that except as regarded their number, the duodecim de melioribus comitatus, here mentioned, had nothing in common with the assize or recognition by jurors of a later period. We see at once why they were twelve, for that was the ordinary number required in compurgation on grave occasions.

In the year 1090, in the reign of William Rufus, when the citizens of London disputed the title of the convent of St. Augustine’s at Canterbury to the vill of Stonor, we are told that it was decided in the same vill by the justiciars (diracionatum est per justiciaries), that the abbot and his monastery were entitled to it and all rights thereunto pertaining.1 From the way in which

1 Chron. Gul. Thome de rebus gestis Abbatum Sti Augustini Cantuariæ. apud Twysden. fo. 1793.

the chronicler, who was himself a monk of St. Augustine’s, tells us that the king favored the side of the abbot, we may suspect that the royal pleasure was not without influence on the decision of the justices. But no hint is given that there was any intervention of the men of the county in giving judgment in this case. It was tried and determined by the justices alone.

In the same reign occurs a writ addressed to the sheriff requiring him to assemble the shire of Hamton, and decide by its judgment whether the land of Isham, in the time of the king’s father, paid rent to monks of St. Benedict. And it is clear that this inquest was taken on the oaths of the men of the shire: for afterwards a writ was issued to the sheriff ordering him to restore Isham to the abbot, “as he proved his claim to it in Hamton, and as it was testified and sworn.”1

But it was not only with regard to land that such inquests were taken, for we find a writ in the name of Prince William, the son of Henry I., addressed to the sheriff of Kent requiring him to summon “Hamo the son of Vital, and the probi vicini of Sandwich whom Hamo shall name.” to say the truth respecting the freedom from toll of a vessel belonging to the abbot of St. Augustine’s which seems to have been seized for nonpayment of dues. Subsequently, the sheriff was directed to restore the vessel to the abbot, according to the recognition of the good men of the county (sicut recognitum fuit per probos homines comitatus).2 And in the reign of Henry II. we have a writ addressed to Richard de Lucy and the foresters of Windsor to take a recognition, “by the oaths of lawful men of the hundred,” as to a right of pannage for hogs claimed by the abbot of Abingdon.

1 Brady, Pref. xlix. cited in Palgrave’s Proofs and Illustrations.

2 Bib. Cott. Julius, D. Id. This instance is important, as being one of the earliest, if not the first, where mention is made of the probi vicini being summoned to determine a dispute.

In the year 1121, Henry I. ordered that a complaint of , the monks of St. Stephen, at Caen, against the king’s tenants of Bridport, for unlawfully taking possession of some lands of the manor of Bridton, which they claimed in right of their abbey, should be heard before judges, and determined by the affirmation of the men of four townships of that neighborhood. On the day appointed Warine, the sheriff of Dorset and Somerset, assembled seven “hundreds,” and the cause was heard before them. Sixteen men, consisting of three from Bridport, three from Bridton, and ten from the neighborhood, took an oath that they would affirm the truth in the inquisition; and their testimony was, that the land was of old time appurtenant to Bridton, and ought to belong to whoever was the owner of that manor. The names of these jurors have been preserved, and amongst them we find one mentioned as Alwine Bacon, their foreman (qui erat præpositus).1

In a county court held in the reign of Stephen (A. D. 1153), a cause was tried between the monks of Christ’s Church, Canterbury, and the sheriff, Radulf Picot, as to the right of the latter to levy certain imposts on their lands. Picot himself presided, and the case was decided in favor of the monks by the judgment of the whole county.

In the Chronicle of Battle Abbey we find mention made of several actions brought to recover manors and lands belonging to the monastery; but nothing is there said of a jury, or even a recognition by an assize, although the narrative is carried down nearly to the end of the reign of Henry II.2 The causes were heard before the king himself in council, or one of his justiciars, and determined by the evidence of charters and other documents. In one case, Abbot Walter prosecuted a claim to some land at Bernehorne, which he alleged to have been purchased

1 Chartul. St. Stephen’s at Caen, Id.

2 See the Chronicon Monasterit de Bello.

by a former abbot, in the reign of Henry I., and of which the monastery had been unjustly deprived. The king (Henry II.) appointed a day for the parties to appear before him at Clarendon, and thither accordingly they came, and the cause was tried in the presence of the king. The abbot produced his deeds, and judgment was given in his favor (unanimi consensu totius curiæ adjudicatum est), and a writ was issued to the four knights who then held the office of sheriff of Sussex, commanding them to restore the land to the abbey, having first ascertained its metes and bounds “by the oaths of twelve trustworthy men of the neighborhood who knew the boundaries.”2

The last instance we need quote occurred in the reign of Henry II. There was a dispute between the inhabitants of Wallingford and the Abbot of Abingdon respecting the right of the latter to a market in their town. The king accordingly issued a writ to Robert, Earl of Leicester, Justiciar of England, and ordered him to summon the whole county of Berkshire, and cause twenty-four of the elder inhabitants, who remembered the times of the king’s grandfather, Henry I., to be chosen, that they might upon their oaths declare whether they had seen a full market held at Abingdon in those days. Accordingly the sheriff, under the instructions of the earl, convoked the meeting, and the twenty-four chosen jurors swore that they had seen and attended a full market there. The townsmen, however, suggested to the king that the statement was false, and that some of the jurors were retainers of the abbey. He therefore ordered that a fresh inquest should be held at Oxford, in the presence of his justices, and that the jurors should be chosen by both sides out of the county of Berkshire, and the towns of Wallingford and Oxford. The result was, that they

1 Chronicon Monasterii de Bello, pp. 105-110.

were divided into three parties, each of whom asserted a different right of market; and the Earl of Leicester, who was present, seeing that it was hopeless to expect them to agree, left the meeting and went to the king, who was then at Salisbury, and having informed him of what had happened, told him that he himself remembered, when he was a boy, seeing a full market at Abingdon so long back as the reign of King William. This satisfied the king; who thereupon ordered that the full right of market should be confirmed to the abbot, and the townsmen who came to him with their complaint were dismissed roughly from his presence.1

It is from a careful consideration of these narratives that we must derive our knowledge of the judicial system under the Anglo-Norman kings. And they throw considerable light upon the subject of our inquiry. Although the form of the jury did not then exist, the rudiments of that mode of trial may be distinctly traced, in the selection from the neighborhood where the dispute arose, of a certain number of persons, who after being duly sworn testified to the truth of the facts within their own knowledge. This is what distinguishes the proceeding from what took place amongst the Anglo-Saxons — namely, the choosing a limited number of probi homines to represent the community, and give testimony for them. When we come to describe the original constitution of the jury, as it appears in the treatises of Glanvill and Bracton, we shall see how easy was the transition from the mode of procedure which we have just considered to that of the assize, or rather that the latter was merely a modification of the former. But first it will be necessary to say a few words respecting the judicium parium, about which a good deal of misconception still prevails.

1 Bib. Cott. Claud. B. VI. 178. Palgrave, clxxx.

SECTION III. The Meaning and Nature of the Judicium Parium.

It is a common but erroneous opinion, that the judicium parium, “or trial by one’s peers,” had reference to the jury. This expression has misled many, and amongst others Reeves, and one of the greatest of our legal authorities — Blackstone — who thought that in that palladium of the early liberties of England, Magna Charta, trial by jury was provided for, because it was there declared that every freeman should be tried by the legal judgment of his peers, or by the law of the land.1 He says: “The truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other. Its establishment, however, and use in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In Magna Charta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29, that no freeman shall

1 Reeves says, after quoting these words, “that is, by a lawful trial: either that by jury which it was intended to promote and patronize; or by the ancient modes long known to the law of the land.” Blackstone might have suspected that the judicium parium must mean something different from trial by jury, for he adds to the passage quoted in the text the words “a privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: nemo beneficiurn suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum.” Comm. III. c. 23. But he seems to have thought that the institution existed everywhere, for he goes on to say. “And it was esteemed in all countries a privilege of the highest and most beneficial nature.” This may be true of the judicium parium, but certainly is not of trial by jury.

be hurt in either his person or property, nisi per legale judicium parium suorum vel per legem terræ.”1

But the same expression occurs in a compilation of our laws of earlier date than Magna Charta. We find it in the Leges Henrici Primi. Thus, unusquisque per pares suos judicandus est et ejusdem provinciæ. The pares, however, here spoken of have no reference to a jury. They may possibly include the members of the county and other courts, who discharged the function of judges, and who were the peers or fellows of the parties before them. In a stricter and more technical sense, however, they mean the homage or suitors of the baronial courts, which had seignorial jurisdiction, corresponding to the hallmotes of the Anglo-Saxons, and in some degree to the manorial courts of the present day. And the words above quoted, from the laws of Henry I., were taken by the compiler from the capitularies of Louis IX. of France, where we know that no such institution as the jury existed until the period of the first Revolution.

It may, indeed, be fairly doubted whether the words judicium parium could ever with propriety have been applied to the verdict of a jury. It will be hereafter shown how limited its functions were from the first; and we shall see that the jurors were merely witnesses deposing to facts with which they were acquainted. And it is difficult to understand how their sworn testimony in court could have been called a judicium. This implies the decision of a judge, and such the magna assisa, or

1 In his observations on Magna Charta, Barrington having noticed the correspondence of the 29th Chapter with a Norman Charter nearly contemporaneous, says, “I should therefore conceive that the trial per pares in the 29th Chapter of Magna Charta, was meant chiefly to relate to the trial of the barons by their peers, though it hath, fortunately for the liberties of this country, been expounded to extend to the trial of all persons by a jury.” It is certainly, however, a mistake to suppose that by the pares are meant peers in the limited sense of peers of parliament. The latter term is derived from the former, but at the time of Magna Charta it had a much wider signification.

jurata patriæ, never gave. They came to the court to state upon oath their knowledge of certain facts, but they were not a part of it, and, therefore, could not be said to pronounce a judgment. In the Rotuli Curiæ Regis, the entries clearly point out the distinction between the verdict of the jury and the judgment of the court. The former commences with the words Juratores dicunt, the latter is headed Judicium. And Glanvill, when he speaks of the conclusive finding of the juries, says, stabit veredicto visineti; but when of the decision of the court consequent upon that finding, he uses the expression secundum dictum visineti judicabitur.1

In one sense, indeed, the jury may be said to discharge judicial functions, and always to have done so from the earliest period at which they appear in our forensic annals, when they were strictly witnesses. For the peculiarity by which their evidence was then distinguished was, that it was conclusive of the facts in dispute. The veredictum of a jury was always an estoppel against any averment to the contrary, unless they could be convicted or manifest perjury and fraud — and this could only be done by a subsequent proceeding. As regarded the trial in hand, their testimony (for in old times their verdict was nothing more) was taken to be literally and absolutely true. Now every court of justice has obviously two distinct functions to perform — one of which is to determine the facts, and the other to apply the law. The former is the appropriate province of a jury, the latter of the judge; but inasmuch as the conclusive finding of facts is a judicial act, the term judicium may,

1 Tract. de Leg. II. 6; v. 4; XIII. 7, II. In one passage, Bracton may seem at first sight to apply the term judicium to a verdict. He says that in a certain case the jury do not commit perjury; licet faciunt fatuum judicium, quia loquuntur secundum conscientiam, quia falli, possunt in judiciis suis sciat ipse justitiarius, fo. 289 (a) But judicium here means the judging faculty of the mind, which determines it to a particular conclusion.

perhaps, be allowed in that sense to apply to the verdict.

Some writers have supposed that the term judicium parium was applied to the decisions of the freemen of the old German courts, before the feudal system sprung up in Europe; and that the pares spoken of were the genossen, or associated members of the different districts, into which each territory was divided. These they imagine to have sat and judged in classes, according to the rank or occupation of the person to be tried. Thus the nobles would judge the noble, the peasants the peasant, and so on. But this theory is not borne out by the documents and records we possess. On the contrary, it may be safely asserted that no such distinction prevailed in those times, but the whole body of freemen of the gau or mark formed the court, and were the triers and judges of all persons and cases whatever.

But to return from this digression. — By one of the laws of William I., if there was a dispute between a lord and his vassal respecting any agreement about holding land, the vassal was to prove his case by the testimony of his peers (par ses pers de la tenure meimes), for in such a case he could not vouch a stranger.1

To do suit (sectam) at a county or other inferior court was in fact one of the common tenures by which land was held, and the suitors, called sectatores, or sometimes at a later period pares, where therefore bound to give their attendance. Hence when the tenant was entitled to claim exemption as being a minor, and in ward to the king, or on any other ground, he obtained a writ pro exoneratione sectæ ad curiam comitatus vel baron. And this was said to lie “where the tenant holdeth his land to do suit at the county-court, hundred, or other court-baron or wapentake or leet, and he who ought to do suit is in ward unto the king or his committee, and the lord

1 Leg. Gul. Conq. 23.

of whom he holdeth by such service will distrain him to do his suit at his court during the time he is in ward unto the king or his committee.”1

The lord had no voice in the decision come to by the homage: he simply presided, and carried into effect the judgment.2 According to the feudal law of Europe, if a vassal had neglected to perform the military service due from him, he was tried by his compeers, his fellow-vassals,3 and lost his fief, si de vocatione legitima a domino suo convinci per compares suos poterit.4 And in case of a dispute between a lord and his vassal, if any member of the court knew the truth of the fact he was obliged to make it known; Notandum est quod de omni controversia quæ inter dominum et vasallum oritur, si pares veritatem noverint omino cogi debent a dominio et paribus dicere veritatem.5 Here we see, as in many other instances, the office of trier and witness blended together, but no trace of the intervention of third parties corresponding to a jury.

SECTION IV. The Courts established by the Assises de Jerusalem.

We have very scanty information on the course of procedure in these feudal courts in Europe, but the defect is supplied in a great measure by the invaluable work the “Livre des Assises de Jerusalem,” which is an account of the courts established in Palestine by the Crusaders after Godfrey Duke of Bouillon had ascended

1 Fitzherbert, Nat. Brev. 158.

2 Le coustume de Beauvoisins est tele que li seigneurs ne jugent pas en leur cour, mes les homes jagent. Coutumes de Beauvaisis, c. 57.

3 Meyer says, that the first mention of the right of vassals to be judged by their peers, occurs in a capitulary of Charles the Bald in 856. Institut. Judic. I. 459.

4 Feudorum Lib. ii. tit. 54.

• Id tit. 58.

the throne of the kingdom of Jerusalem, when that city had been rescued from the Saracens in the year 1099.1 Feudal courts were then established on the model of those that existed in the countries from which the crusaders came; and as the great majority of the soldiers of the cross were from France, the law of that kingdom was the one which chiefly regulated their procedure. It will be useful to consider what this was, that we may see how far writers are mistaken who think that trial by jury may have been derived from it.

Godfrey of Bouillon established two seculiar courts of justice in his new kingdom, one called La Haute Cour, the High Court, of which he himself as suzerain was the chief justiciary; and the other La Cour des Bourgeois, or Court of the Burgesses, called also the Viscount’s Court, presided over by one of his feudal lords. The judges of the High Court were the chevaliers who held by tenure of knights’ service in capite, and of the Burgess Court the townsfolk of the city, “the most upright and wise to be found therein.”

The great barons had feudal courts of their own upon the model of La Haute Cour at Jerusalem. To these they summoned their tenants, just as they were summoned to attend the high court presided over by the king himself, and within the limits of their seignories they had the privilege of coining money. The same rights were enjoyed by the patriarch, the archbishops, and bishops, for they held fiefs attached to their churches.

In the feudal courts were determined all questions in which the lord and his vassals were interested, except matters relating to heresy, marriage, and wills, of which the Church took exclusive cognizance. No one, how-

1 There is a very full and accurate account of the Assises de Jerusalem, and the courts of Palestine, in Wilkens’s Geschichte der Kreuzüge, Vol. I. c. 13, and Beilage, III. Id. p. 17.

ever, had the right to hold a court within his fief to whom the privilege had not been granted by the superior lord. If any tenant who was himself a mesne lord (for sub-infeudation was practiced to a great extent as in England, until it was prohibited by the statute Quia Emptores) usurped such jurisdiction improperly, he was held to have forfeited his allegiance, and was liable to severe punishment. The vassals of those lords who were entitled to hold courts resorted to them, and the vassals of those who had no such privilege preferred their claims in the court of the king or some lord paramount.1 The lord himself presided, or he might appoint a deputy, and it was his office to fix the time and place of meeting, when and where it was the duty of his vassals to attend.2 The sentence was executed but not determined by him. This devolved upon the vassals whom he summoned to his court, and all his tenants who might happen even though not summoned to be present, might be called upon, if the lord thought fit, to take part in the judgment.

In the Haute Cour, where the king himself or his substitute presided, the assessors of the inferior feudal courts might be summoned to sit, for they were not less the vassals of the crown, because they held their fiefs from mesne lords. The rights of the sovereign were paramount over all. But in the court of a crown vassal only his own tenants might sit, unless special permission was obtained from the suzerain to call in the tenants of another vassal in cases where it was deemed advisable to have the benefit of their advice and assistance as judges.

When a complaint was made, or as we should say, an action commenced in court, the defendant was summoned by an officer (banier) to appear in person. He might, if he had a valid excuse for absence, commission

1 The words of the Assize are: “il se doit clamer au seignor de qui il tient le fié, se il a court; et se il n’a court, au chef seignor. Ch. 259.

2 Les barons et seignors du royaume de Jerusalem qui ont court et cours et justice, doivent estre sages, léaus, droituriers, et bons justiciers. Ch. 6.

7

an agent to state this for him, but the latter was obliged to make oath that he had been empowered by the party for that purpose. If, however, the complainant (plaintiff) asserted that the excuse was feigned, a second summons was brought to him by three vassals, one of whom represented the president, and the others the judges of the court. This summons was peremptory, and the party must either accompany the messengers, or affirm with an oath the truth of the excuse which he had previously sent. If this excuse was that he was sick or had received a wound, the plaintiff waited for a time until he was able to inform the court that his adversary had recovered, or his wound was cured, upon which three members of the court (paires) were sent to him accompanied by a physician or surgeon sworn to speak the truth; and if the defendant persisted in saying that he was still unable, from his malady or wound, to attend, the former examined his body to ascertain whether the statement was true.1 If found to be true, he was allowed to absent himself as long as he kept his house (tant com il demora en son hostel); if false, he was ordered to follow them to the court immediately, or if he refused, the complainant was forthwith put in possession of the disputed property.

If the defendant appeared, the plaintiff or his advocate repeated his complaint: and in most cases the former was allowed to claim a delay (demander jour) of fifteen days, at the expiration of which period both parties were bound to attend at the appointed place before sunset, or at all events before the stars appeared in the sky, and thrice proclaim, in the presence of the lord, if he had arrived, and of three of his vassals, their readiness to do right in the matter. The plaintiff then repeated his complaint, and he was obliged to be careful that he did not vary from his original statement, for if he did, the

1 If it was an internal malady of which the party complained, it was the duty of the physician taster son pos et vei[]on orine.

defendant might demand a fresh delay on the ground that it was a new plaint (nouviau claim).

If only one of the two parties appeared at the expiration of the period (which in old legal parlance in this country would have been called the essoign day) he waited until the stars were visible in the sky, and then called out to the vassals or homage in attendance, to observe them. He next applied to the lord to grant him a certificate, or record of the court, that he had kept his day, and to put him in possession of the property claimed if he was the plaintiff, or do him right if he was the defendant. This was accordingly done, and the other party was concluded in his right, unless he could prove that he had been detained by imprisonment, sickness, or some other valid and sufficient cause.

The modes of proof were, 1, the oral evidence of members of the court (recort de court), or of witnesses who were sworn to speak the truth; and if the subject-matter in dispute was of the value of a mark of silver, they were obliged to make good their testimony by combat, if challenged by the opposite party; and 2, the production of documents.

The members of the court themselves gave evidence in cases of disputes about the right to the possession of real property; and to entitle the demandant to recover it was necessary that two of them, at least, should state, if appealed to by him, that they had seen him or his ancestors in possession of the property, or knew that it had been granted to him by the rightful owner.

In criminal cases, witnesses, and the judicial combat with the accuser or his champion, seem to have been the admissible kinds of proof.

But we must notice one remarkable law, whereby, if all other means failed, an accused party was allowed to assert his innocence. This was by charging the court itself with falsehood (fausser la court), and challenging every one of its members to mortal combat. But this

was a step of imminent peril; for if he did not fight with them all, one after another, he was beheaded, and if he did not vanquish them all in a single day, he was hanged (il sera pendu par la goule).1

In many respects different courts had, as we might expect, different usages; and Jean d’Ibelin tells us that it was the custom for two or more members of the court to state what the usage in former times had been, and this served for a precedent on the particular occasion.

There were also burgess courts in the different towns, corresponding to the Cour de Bourgeois at Jerusalem; over these an officer presided, called a vesconte (vice-comes), and the court was composed of him and twelve jurés, but nothing is known of their mode of appointment. This, however, is certain, that they were a permanent tribunal, and sat as the sworn judges of the court;2 so that their constitution differed little if at all from that of the Scabini in Europe, of whom we have already spoken.3 But it was not necessary that the whole twelve should sit, for three or even two were sufficient to form a quorum. The nature of their duties is shortly summed up in a passage of the Assizes: Les jurés puisque ils sont asis en la cort, deivent oyr et escouter la clamor et le repons et bien entendre; et sur ce que ils oront et connoistront, doivent faire droit jugement à lor essient sans faucer.4

1 Upon the chances of success in such an undertaking, Jean d’Ibelin well observes: il me semble que nul home, si Dieu nefaisoit apertes miracles pour lui, qui la faussast en dit, la faussast en fait. Ch. 112.

2 See Assises de Jerusalem, par Beugnot, tom. II. Introduct. p. XX. XL. Liv. des Assises, chap. VII. et seq.

3 In a charter granted to the inhabitants of Acre in 1231, we find the following: Jurare debent Choremanni (i.e. Jurati) primo jus Ecclesiæ, se servaturos, jus etiam abbatis et ecclesiæ sancti Bernardi; jura viduarum et orphanorum pauperum et divitum, et omnium hominum tam extraneorum quam juratorum suorum super causis quæ coram ipsis venerint et ad juramentum suum pertinuerint, jus et legem dicere, nec omittere propter gratiam vel timorem odium vel amorem. Id. p. 25. n. (d). 4 Chap. ix.

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CHAPTER VI.

THE JURY IN THE TIME OF THE PLANTAGENETS.

SECTION I. On the Assize as established by Henry II.

WE now come to speak of the Assize which was established in the reign of Henry II., and is called by Glanvill, a contemporary and the earliest of our juridical writers, regale quoddam beneficium dementia principis de consilio procerum populis indultum. In another passage he mentions it as regalis institutio; so that there seems to be no doubt that it owed its existence not to custom and usage, but to a positive enactment of the king with the advice and consent of his nobles. In it we first find the jury in its distinct form, but the elements of which it was composed were all familiar to the jurisprudence of the time, and we shall see that, except as regards its definite constitution, it involved no idea novel to the minds of our ancestors.

The assisa. or magna assisa, as it was usually called,1 was a mode of trial confined to questions concerning (1) the recovery of lands of which the complainant had been

1 The word assisa means nothing more than statute or enactment. Thus Glanvill says that in some cases inferior courts were made courts of record per assisam de consilio regni inde factam. Tract. de Leg. x. c. 10. And one of our old statutes is entitled Assisa panis et cervisiæ, “an ordinance respecting bread and beer.” Hence the recognition by jurors was called an assize, because it was established by an assisa, or statute of Henry II.

disseized; (2) rights of advowson; and (3) claims of vassalage affecting the civil status of the defendant.

In cases of disseizin the demandant and tenant, corresponding to the modern plaintiff and defendant, having duly appeared in court, the former “declared” in the following plain and straightforward manner:

“I claim against A. two carucates of land in the town of B. as my right and inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king Henry I. (or after the coronation of our lord the king), and of which he has taken the profits to the value of five shillings at the least. And this I am ready to prove by (the body of) this my freeman C., and if any mischance happens to him, then by another, D.”

It is important to notice that the person thus offered as the champion of the demandant must be one who could, from his own knowledge, testify to the justice of the claim. He was, in fact, one whom the plaintiff vouched as a witness of the truth of his assertion with regard to the seizin of his ancestor. — But it was sufficient if he could give hearsay evidence on oath, derived from a trustworthy source:1 and hence the “declaration” sometimes concluded thus: — “And this I am ready to prove by this my freeman N., whose father on his deathbed enjoined him, if at any time he heard of a dispute about this land, to give evidence of what his father saw and heard respecting him.”

Sometimes it happened that a hired champion was named, but this was contrary to law, and the other side might object to his competency; for the principle of the combat was that the champion should be a “witness of the truth” of the side on which he fought; and he gave the strongest possible evidence of the sincerity of his conviction by exposing his life to peril in the cause.2

1 Glanville says he must be a person qui hoc vidit vel audivit.

2 Sir Edward Coke assigns a more technical but unsatisfactory reason

And as it was supposed that God interfered on behalf, of right a defeat was regarded as a proof of the falsehood of that side which sustained it; and hence not only did the party whose champion was vanquished lose his suit, but the champion was himself punished as guilty of the offense of having borne false witness. At a later period, in the reign of Edward I., the statute of Westminister provided that the champion of the demandant should not be obliged to swear, de visu et auditu, as to what he had seen and heard, “because it seldom happens but that the champion of the demandant is forsworn, in that he sweareth that he or his father saw the seizin of his lord or his ancestor, and his father commanded him to deraign that right.”

But the tenant (defendant) was not obliged to accept the combat thus offered. He might, unless a valid objection were taken by his adversary, avail himself of the enactment of Henry II., and choose the trial by assize, magna, assisa domini regis.1 Such an objection was relationship: — if both parties were descended from a common ancestor to whom the land in dispute once belonged. This, if asserted by the plaintiff, might be denied by the defendant; but if the fact were admitted, the next question was, which of the two was the nearest

He says (Litt. 294 b.): “In the writ of right neither the tenant nor demandant shall fight for themselves, but find a champion to fight for them: because if either the demandant or tenant should be slain, no judgment could be given for the lands or tenements in question. But in an appeal the defendant shall fight for himself, and so shall the plaintiff also; for then if the defendant be slain, the plaintiff hath the effect of his suit, that is the death of the defendant.”

1 It seems to have been called magna, from the importance of the questions it was called upon to decide, and the superior station of the milites who served on it. Glanvill points out the advantages of the assize over the combat, the latter of which was exposed to many tedious delays and technicalities, and was, after all, only a proof of the sincerity of a single witness, the champion; cum enim ex unius jurati testimonio procedam duellum, duodecire ad minus legalium hominum exigit ista constitutio juramenta. II. c. 7.

in blood to the common ancestor, and what circumstance, if any, had happened to deprive him of his primâ facie right to the property, e.g. whether there had been a sale, gift, exchange, or forfeiture for felony. In pursuing this inquiry, as any issue of fact arose between the parties it was determined by bodily combat.

If, however, the defendant denied altogether that he and the plaintiff were descended from a common ancestor, the relations of each party were summoned into court and examined as to the fact; and if notwithstanding their assertion that a common relationship existed between them, the defendant still denied it, recourse was had to the neighborhood (decurrendum erit ad vicinetum) whose verdict (veredictum vicineti) was conclusive. And if the relationship were thus proved, the trial then proceeded in the same way as if it had been originally admitted.

But if the contrary were proved, the plaintiff was punished for his unjust attempt to deprive the defendant of his assize, and lost his cause.

If, however, no objection of this kind were raised, the next step was to issue a writ of prohibition to the inferior court, if the suit respecting the lands had been there commenced; — on the ground that the curia regis had cognizance of the cause, and it was to be determined by the assize. A writ was then addressed to the sheriff commanding him to summon four knights of the neighborhood where the disputed property lay, who were, after being duly sworn, to choose twelve lawful knights, who were most cognizant of the facts (qui melius veritatem sciant); and who were upon their oaths to determine which of the litigant parties was entitled to the land. The defendant was also to be summoned to hear the election of the twelve jurors made by the four knights, and he might except to any of them for the same reasons and in the same way as witnesses might be objected to in the courts Christian. When the twelve were duly chosen,

they were summoned by writ to appear in court and testify on oath the rights of the parties. They swore that they would not say anything false, nor knowingly conxceal the truth; and by knowledge, says Glanvill, was meant what they had seen or heard by trustworthy information. He then adds, what shows in the clearest light how entirely they were regarded as mere witnesses, and how different the idea of their functions then was from what it is now. When they met to try the case, either they all knew who was the rightful claimant, or some of them did and some did not; or they were all ignorant. In the last case they testified this in court, and then others were chosen who were acquainted with the facts in dispute.1 If, however, some did and some did not know them, the latter only were removed, and others summoned in their place, until twelve at least were found who knew and agreed upon the facts. Also if the jurors when chosen were not unanimous, others were to be added to the number until twelve at least agreed in favor of the one side or other. — This was called afforcing the assize.

The concurrent testimony, or verdict of the jury, was conclusive; and there could be no subsequent action brought upon the same claim; for it was a legal maxim, that lites per magnam assisam domini Regis legitimè decisæ nulla occasione rite resuscitantur imposterum.2

If the jurors swore falsely, and were convicted, or confessed their crime, their punishment was severe. They were

1 Assisa venit recognitura si Adam de Greinvill et Willielmus de la Folie dissaisaverunt injustè et sine judicio Willielmum de Weston de libero tenemento suo in Suto, post priman coronationem Domini Regis. Juratores dicunt quod non viderunt unquam aliam saisitum de tenemento illo, nisi Willielmum de la Folie. Et quod nesciunt si Willielmus de la Folie dissaisisset eum inde vel non, Consideratum est quod alii juratores eligantur qui meilus sciant rei veritatem. Dies datus est eis ad diem Mercurii. — Plac. Ab. II, Wiltesir.

2 Glanv. II. c. 18.

deprived of all their personal property, and imprisoned for a year at least. They became infamous, and incompetent to act as witnesses or compurgators in future (legem terræ, amittunt), but were allowed to retain their freeholds.

We see then that this proceeding by assize was nothing more than the sworn testimony of a certain number of persons summoned to give evidence upon matters within their own knowledge. It is needless to multiply proofs of an assertion which does not admit of denial or controversy. It will be sufficient to give a single instance, taken from one of the chroniclers of the time: Cumque inde summonita esset recognitio duodecim militum in curia regis facienda, facta est in curia abbatis aqud Herlavam per licentiam Ranulfi de Glanvilla, et juraverunt recognitores SE NUNQUAM SCIVISSE illam terram fuisse separatam ab ecclesia.1 This corresponds to a trial at the present day, respecting ancient boundaries or manorial customs, where the evidence of the oldest inhabitants, as to what they have known in their time, generally determines the verdict. The difference, however, is, that in the reign of Richard I., when the dispute mentioned in Jocelin’s chronicle occurred, the jury were themselves the witnesses, whereas now they derive their information from the witnesses, and give their verdict accordingly.

In the Rotuli Curiæ Regis, published by the Record Commissioners, we find numerous entries of these “Assizes” and their verdicts, in the following form:

Assisa venit recognoscendum si Robertus filius Walteri injuste et sine judicio dissaisavit Ysabel de Benninton de libero tenemento suo in Benninton infra assisam.

1 Chron. Jocelina de Brakelonda, p. 45, published by the Cambridge Society. Jocelin wrote the annals of the Monastery at Bury St. Edmund’s, from the year 1172 to 1202. In claiming the right to an adowson, the plain tiff, in his oral demand before the court, said et si quis hoc voluerit negare, habeo probos homines, qui hoc viderunt et audierunt, et parati sunt noc dirationare. — Glanv. Tract. IV. c. 6.

Juratores dicunt, quod non dissaisavit earn ita. Judicium. Robertus teneat in pace; et Ysabel pro falso clamore sit in misericordia.

So entirely did the verdict of the recognitors proceed upon their own previously-formed view of the facts in dispute, that they seem to have considered themselves at liberty to pay no attention to evidence offered in court however clearly it might disprove the case which they were prepared to support. As an example of this, we may take the following narrative from the Chronicle already quoted, which contains many curious and interesting illustrations of the manners and customs of the period.

Thomas de Burg had obtained the wardship of the only daughter of Adam de Cokefield, from the abbot of the monastery to whom she had been left in ward by her father; and he claimed in her right livery of seizin of three manors to which the convent asserted that they had a title; with respect to two of these, they relied upon a declaration made by Robert de Cokefield, the grandfather, on his death-bed, that he had no estate of inheritance in them, and on a deed solemnly executed in open court by Adam, the father, in which he acknowledged that he held the two manors of the convent by agreement only for his life. Thomas de Burg thereupon applied for a writ to summon twelve knights to meet at Theocesberie (Tewkesbury), and take their oaths in the presence of the king. The assize met, and the deed was publicly read in open court; but it had no effect, — be cause, as the chronicler says, “they were all against us” (tota curia erat contra nos). The knights on their oaths said that they knew nothing of chartularies, or private agreements (juramento facto, dixerunt milites se nescire de cartis nostris, nec de privatis conventionibus); but that they believed that Adam and his father and grandfather, for hundred years back, had held the manors in

fee one after the other. “And so,” says Jocelin, “we were disseized by the judgment of the court, after much trouble and heavy expense, though we kept the old yearly rents.” This was certainly a flagrant instance of common repute being allowed to outweigh positive evidence; but we must not suppose it to be by any means a solitary case.

As the names of the jurors who were to form the assize were known beforehand, the temptation became great to endeavor to secure a favorable verdict by bribes, and the practice seems to have prevailed to a considerable extent, for no less than three statutes were passed in the reign of Edward III. which prohibited the offense under severe penalties. Jocelin de Brakelonde also gives an example of the corruption of the times, and the danger of not propiating the knights who served in the assize. The church of Boesford was vacant, and the abbot claimed the advowson. An assize was summoned, and five of the knights who were in the panel came to the abbot and offered to swear in any way he wished if he would pay them. He however refused, and bade them when they were sworn to speak the truth according to their conscience. Upon this they left him in anger, and declared upon their oaths in court that he was not entitled to the advowson.

Although twelve was the most usual, it was not the unvarying number of the jurors of assize for some years. In the infancy of the institution the number seems to have fluctuated according as convenience or local custom required. An instance of the former is mentioned in Jocelin’s Chronicle. A fine had been imposed upon the counties of Norfolk and Suffolk, and the monastery of Bury St. Edmund’s was called upon to pay its proportion. The abbot, however, hastened to the king (Henry II.) who was then with his court at Clarendon, and exhibited a royal charter of exemption from

all fines and imposts granted by King Edward the Confessor to the lands of the convent. Writs were thereupon issued to summon six knights of the county of Norfolk, and six of the county of Suffolk, to appear before the barons of the exchequer, and “recognize” whether the lands of the monastery ought to bear part of a general fine imposed upon the county; and because they had lands in both counties, and “in order to save trouble and expense,” only six knights were chosen, who went to London, and there gave their verdict in favor of the abbot, which was enrolled by the justices.1 On another occasion, when there was a question of jurisdiction between the abbot and the Archbishop of Canterbury, the former in the presence of the king offered to put himself upon the verdict of the two counties of Norfolk and Suffolk, that he and his convent had always had possession of the disputed franchise. The archbishop, however, said that the men of those counties had great veneration for St. Edmund (the patron saint of the monastery), and a large part of the lands in them were under the abbot’s sway, so that he was unwilling to abide by their decision.2 We find also in the same Chronicle that a verdict was taken by consent from sixteen lawful men of the hundred respecting the moiety of an advowson.3 Indeed, it is tolerably clear from Glanvill’s treatise that the law on this subject was by no means settled in his time, for he puts as a difficulty the case of there being no knights of the vicinage or county or fewer than twelve acquainted with the facts in dispute, and he asks, without determining the point whether, supposing in such an event those who wen thus qualified as witnesses to be on the jury, were to offer to prove their assertion by the combat, it would be

1 Justiciarii autem assidentes verumdictum illoram inrollaverunt. Chrot Joc. de Brakal. p. 48. 2 Ibid. pp. 37, 38. 3 Ibid. p. 45.

allowed?1 In the case of an assise de mort d’ancestor, if the question were raised whether one of the parties was a minor or not, it was determined by the recognition or verdict of eight jurors.2

SECTION II. What suggested the idea of trial by

Assize?

The question now occurs, what gave rise to this institution of the assise, and whether it was developed from any modes of procedure previously existing? The theory of Phillips, a German writer, who has investigated the history of our early jurisprudence with much learning and ability, is ingenious, and may be shortly stated as follows.3

Owing to the removal by William I. of ecclesiastical causes from the cognizance of lay judges, and the gradual increase of the jurisdiction of the Curia Regis, the provincial courts, such as those of the hundred and shire, lost much of their importance. The number of causes there diminished, and the chief amount of business was monopolized by the king’s court.4 But as upwards of a century elapsed from the arrival of the Normans before Justices in Eyre were regularly appointed to visit the counties and administer the law in the king’s name, great inconvenience would in the meantime be felt in at-

1 Tract. de Legg. II. c. 21. In the manor of Penryn Farrein, in Cornwall, there was a custom to try an issue with six jurors, but this was in 1652 adjudged to be no good custom. By the statute 34 and 35 Hen. VIII. c. 26, concerning Wales, it was provided that trials in the shire and hundred courts of the principality should be by verdict of six men.

2 Ibid. XIII. c. 15. The course of practice in the baronial, county, and other inferior courts, varied greatly. Ibid. XII. c. 6, 23.

3 See his Englische Reiche und Rechts Geschichte, II. § 50.

4 While writing this sentence it is impossible not to be reminded that, owing to the recent establishment, or, perhaps we should more properly say, restoration of the county courts, the converse of the statement would now be true.

tending the Curia Regis under the old system of procedure. This court followed the king’s person, whose movements were uncertain, and as the judicial combat, which was the usual mode of settling disputes, was hampered with many formalities and delays, parties often found themselves obliged to travel from place to place before they could obtain legal redress. Besides this, they would feel the want of judges to decide at the trial, who, like those in the country courts, were familiar with the parties and their cause of quarrel. Hence would arise a wish to provide if possible a tribunal similar to the king’s court. The judicial members of the county court could not all be summoned to attend, for they had causes to try at home. Who, then, could be found to supply their place? It had, as we have seen, been the practice for the plaintiff, or, in some cases, the reeve, to nominate what may be called a panel of relations and neighbors, out of whom the defendant was to choose his compurgators; and, under the altered circumstances of the time, it seemed an obvious course to choose a similar panel from amongst the members of the court of the district in which the litigant parties dwelt. The number named would be sufficient to admit of valid exceptions being taken by the defendant against some of them, and yet leave upon the panel twelve to coincide with the number of the judges constituting the county court, whose substitute and representatives they were.

Such is the theory of Phillips, but it is, upon the whole, unsatisfactory, and, in some points, too refined to be likely to be correct. According to him the assize was a modified form of the county court summoned to attend the Curia Regis, and deliver its judgment or verdict there. But this is altogether unsupported by authority; nor do I think there is any necessity for resorting to such a supposition. It seems to me that the matter admits of a much more simple explanation. In

the instances already given of suits respecting lands in the reigns of the early Norman kings, we have seen that the constant practice was to decide the controversy by appealing to the knowledge of the neighborhood where the parties resided and the lands lay; and frequently a limited number of persons were sworn who represented the vicinage, and who stated on oath to whom the property belonged. These were called the probi et legales homines, and their verdict was conclusive of the question in dispute. Such were the inquests, of which examples have been already given in the preceding chapter; and when we come to speak of the Jurata we shall have occasion to consider the subject more fully. There was no difference whatever in principle between those inquests and the recognitions by the knights of assize; and it seems to me to be almost as clear as demonstration that the idea of the latter was derived from the former. In both cases the verdict was the testimony of witnesses cognizant of the matter in dispute; and if we substitute a determinate number of knights for the probi homines of an ordinary inquest, we have at once the assize.

SECTION III. Subsequent History of the Assize.

The first mention of the trial by assize in our existing statutes occurs in the Constitutions of Clarendon, A. D. 1164, where it was provided that if any dispute arose between a layman and a clerk as to whether a particular tenement was the property of the Church or belonged to a lay fief, this was to be determined before the chief justiciary of the kingdom, by the verdict of twelve lawful men (recognitione duodecim legalium hominum). And if they decided that it belonged to the Church, then any further plea concerning it was to be held in the spiritual court; but if to a lay fief, then in the King’s Court.

This was followed by the Statute of Northampton, A. D. 1176, which directs the justices, in case a lord should refuse to give to the heir the seizin of his deceased ancestor, “to cause a recognition to be made by means of twelve lawful men as to what seizin the deceased had on the day of his death;” and also orders them to inquire in the same manner in cases of novel disseizin.

It was one of the articles of Magna Charta (A. D. 1215), that legal suits should no longer follow the ambulatory royal court, but be tried in some fixed place, and that recognitions by assize should be taken in the counties where the lands lay; for which purpose the king was to send into each county two justiciaries four times a year, who, with four knights of the same county, chosen by the county, were to take the assize, and no one else was to be summoned by them except the jurors and the parties (nisi juratores et duæ partes).1 The expression “take the assize,” here means “summon the assize” in the manner specified by Glanvill, and already mentioned.

The next legal writer after Glanvill is Bracton, who lived in the middle of the thirteenth century, and we find in him a clear account of the form in which this mode of trial was conducted in his time.2

If no exception could be taken to the assize, and the defendant denied the disseizin complained of, the first point to consider was, whether all or any of the recogni tors could be objected to. And as a general rule the same causes disqualified a man from being on the assize, as disqualified him from giving testimony as a witness.

1 Articuli Cartæ, § 8. These articles were sealed by King John, and afterwards drawn up in the form of a charter, to which he also affixed his seal, and so drawn up they constitute the Great Charter. The alterations and additions are pointed out by Blackstone in his Law Tracts, pp. 299-301.

2 Bract. IV. c. 19.

Such was conviction for perjury, which made him no longer law-worthy, as was expressed by the old English maxim:

He ne es othes worthe that es enes gylty of oth broken.

Other causes were serfdom, consanguinity, affinity, enmity, or close friendship. When the objections had been disposed of, and the panel was complete, one of the recognitors took the prescribed oath, and the others then, each for himself, adopted it. The prothonotary of the court next read to the jury the issue which they were to try, saying, — “Ye shall declare on the oath which ye have taken, if N. has unjustly and without judgment disseized M. of his tenement in such a vill, since such a time, or not.”

The jury were then to retire to some private place to consider their verdict, and no one was allowed to have access to them until it was delivered; If, however, they could not agree, other recognitors were empanelled, in number equal to the dissentient minority, provided it consisted of at least four; and these either joined the former jury and discussed the matter with them, or they might deliberate apart; and the conclusion to which they came was considered the verdict, which agreed of course with the view of one of the two parties into which the jury had been divided. Judgment was then given in conformity with this verdict.1 But if any of the jurors said that they were ignorant of the facts of the case, others were added who knew the truth, until the requisite number was obtained.

1 There is, however, a passage in Bracton which seems to imply that it was the duty of the judge to satisfy himself of the truth of the verdict of the assize: Sed cum ad Judicem pertineat justum proferre judicium et reddere, oportebit eum diligenter deliberare et examinare si dicta juratorum in se veritatem contineant, et si eorura justum sit judicium vel fatuum, ne si continyat eum judicem eorum dicta sequi et eorum judicium, ita falsum faciat judicium vel fatuum. iv. c. 19 § 6.

In the treatise called “Fleta,” which was written in the reign of Edward I., the practice appears substantially the same. When a party complained of a disseizin a writ was issued to the sheriff, and it was his duty thereupon to convene a number, not exceeding twenty-four, of “free and lawful men” of the vincinage, out of whom in the presence of the parties (if they chose to attend) he nominated twelve indifferent persons, who then either all, or to the number of seven at least, proceeded to view the property in dispute. After having done this, their names were enrolled, and they were then summoned by two freeholders to appear at a fixed time and place before the justices of assize, ready to make recognizance: that is, try the question of disseizin.1

In modern times the grand assize has been now and then summoned by a writ of right; and I believe the last recorded instance of it occurred in 1834, which led to two trials, the second of which took place in 1838, when four knights girt with swords and twelve other recognitors acted as the jury in a trial at bar in the Court of Common Pleas, and were addressed by Chief Justice Tindal in summing up, as “Gentlemen of the grand inquest,” and “Recognitors of the grand assize.”2 The writ of right, and all proceedings by the assize, were finally abolished by Stat. 3 and 4 William IV. c. 27.

SECTION IV. On the trial by the Jurata, and the meaning of the expression Assisa vertitur in Juratam.

So far we have been considering the assize, which we see was in its original constitution nothing more than a body of twelve knights empaneled to determine by their testimony a disputed question of seizin of land, right to an advowson, or villenage. But we find in Bracton and Fleta and other old legal writers, a distinction drawn be-

1 Fleta, II. c. 5. 2 Davies v. Lowndes, 5 Bing. N. C. 161.

tween the assize and jurata, to which it is necessary carefully to attend. What is the meaning of such expressions as these: “Utrum recognitio procedere debeat in modum assisæ vel juratæ.” “Capitur assisa in modum assisæ, quod quidem non esset si caperetur ut jurata.”1 “Cadit assisa et vertitur in juratam.”2 “Capienda erit assisa in modum assisæ, secus vero si in modum juratæ?”3 And in both the above-named authors we have chapters entitled Qualiter assisa vertitur in juratam.

The subject is involved in an obscurity which perhaps can not now be wholly removed. This arises from the absence of any precise information respecting the mode in which the jurata was first formed, and how it came into existence. No account of this has been transmitted to us by contemporary writers to whom its use was familiar, and we are left to find our way through the darkness, relying upon the aid of analogy, and probable conjecture drawn from the incidental notices of the subject that occur in our old chroniclers and legal writers.

The theory of Meyer is that the jurata, as distinguished from the assisa, is the real jury of modern times, and that it is derived from the Cour-Basse of the kingdom of Jerusalem, the knowledge of which was brought to England by the numerous crusaders and pilgrims who visited the Holy Land. His argument, however, is chiefly based on the assumption that the word jurata, as a mode of trial, first occurs in Bracton, who wrote a century after Glanvill, and after the Crusades had in the interval taken place.4 But this is a mistake; for although Bracton is the first writer who discusses the precise question in what cases the assisa vertitur in juratam, Glanvill distinctly notices the jurata as existing in his time. He mentions

1 Bract. iv. c. 19. 2 Id. 3 Fleta, iv. c. 9.

4 Dans cet ouvrage (Glanvill) ... .il ne se recontre ni le nom de jury, ni la chose meme, quoiqu’il y soit souvent question de l’assise. Origine des Inst. Judic. II. 169.

it when treating of purprestures, that is, trespasses or encroachments committed against the public, as, for instance, in building upon the king’s highway;1 and says that inquisition is to he made of these before the justices per juratam patriæ sive visineti, and whoever is convicted is to be in the king’s mercy; which, Glanvill explains to mean a fine imposed by the oath of legal men of the neighborhood.

The problem is to discover what was the origin and constitution of the jurata of which Glanvill speaks; — and it seems to me that the solution is to be found in the early forms of procedure resorted to determine disputes concerning land or other property, such as we have seen took place in the ancient suits, of which several instances have been previously given.

It has been sufficiently shown that in those cases the mode originally adopted in the Anglo-Saxon times was to refer the question to the knowledge of the comitatus or county, and afterwards, in the Anglo-Norman, as a more convenient method, to allow the neighborhood to be represented by a certain number of the inhabitants probi et legales homines, who stated upon oath on whose side the right lay.2 These, therefore, were called the jurato patriæ, or often simply the patria, as representing the country, whose decision this verdict was deemed to be. They spoke of matters within their own knowledge — being, in fact, nothing more than witnesses who testified to the truth of matters notorious in their district. Of such a jurata patriæ the Chronicle of Jocelin de Brakelonde affords several good examples. On one occasion the Abbot of St. Edmund’s offered that the question of

1 Tract. de Leg. IX. c. II.

2 The Great Charter (A. D. 1215) provides that amercements or fines shall be made in due proportion to the nature of the offense (secundum modum delicti), and assessed per sacramentum proborum horainum de visneto. Art. Chart. § 9.

disputed right to an advowson should be determined by the oath of the party claiming adversely to the convent. He, however, refused to swear; and it was then agreed on both sides that the matter should be decided by the oaths of sixteen lawful men of the hundred, and these declared on oath that the title was in the abbot. Another instance of the same number of jurors is mentioned in the Chronicle in the case of an affray attended with bloodshed. An oath was administered to sixteen lawful men, and when they had given their verdict, or attestatio, as it is called by Jocelin (auditis eorum attestationibus) the abbot excommunicated the offenders. And we frequently find in Glanvill the expression decurrendum erit ad visinetum, or words to the same effect; which mean that recourse must be had to the knowledge of the neighborhood where the parties dwelt, to determine some question of fact asserted on one side, and denied on the other. But it does not appear from him that there was any number limited for this purpose, although we may suppose, from analogy to the assize, that twelve would be the most usual. The testimony thus borne by the neighbors was called their testimonium or veredictum.1

Hence I conclude that, in the earliest times, disputes respecting lands were decided by the voice of the community of the county or hundred, as the case might be, where the parties lived; that afterwards a select number was substituted for the whole, who gave their testimony upon oath, and, therefore, were called the “jurata;” and that this suggested to Henry II. and his councillors the idea of the assize, which was nothing but the jurata in a technical form, and limited to milites, or knights, who were summoned by a writ of the sheriff in virtue of a precept from the king.

But the term “assize” had a technical meaning, and was applied only to those proceedings, the direct object

1 Tract de Leg. II. c. 6, § 4; v. c. 4; IX. c. II, § 2; XIV. c. 3, § 5.

of which was either the recovery of land or realty in some shape, or the determination of the fact of villenage. In these cases the verdict of the recognitors was confined solely to the question of the rightful seizin of the land, or the civil status of the individual, but in the course of the inquiry many other issues might be raised; as, for instance, whether the plaintiff was entitled to proceed by way of assize, on account of not being a freeman, but a “villain;” or whether a particular deed had been executed or not. It became necessary to determine these questions; but the jury in doing so could not act in their capacity of recognitors of assize, in which they were limited to the single duty of deciding the issue of seizin or disseizin. Hence in such cases the expression was used, assisa vertitur in juratam, or, with perhaps less accuracy, the questions were said to be decided per assisam in modum juratæ.1 I can not, however, quite satisfy myself whether the same assize went on with the inquiry in the new character of jurata, or a fresh process issued, and proceedings commenced de novo where questions arose in the progress of the suit which did not fall properly within the province of an assize of recognitors to determine. I think, however, that the former is the preferable view, and this is assumed by Reeves in his account of the matter.2 He says, that when any issue arose upon a fact in a writ of novel disseizin, mort d’ancestor, and the like actions, which fact the parties agreed should be inquired of by a jurata, nothing was more natural, nor, indeed, more commodious, than that, instead of summoning other recognitors, as in Glanvill’s time, the assisa summoned in that action should be the jurors to whom they might refer the inquiry. This was generally the case; and then the lawyers said, cadit assisa et vertitur in juratam; the as-

1 See Fleta, IV. c. 16.

2 Hist. English Law, I. c. 6.

size was turned into a jury, and the point in dispute was determined by the recognitors, not in modum assisæ, but in modum juratæ.1

As an illustration of the principle on which the distinction between the assisa and the jurata proceeded, may be mentioned the case of actions brought, where the subject-matter of dispute was consecrated land or buildings. Here there could be no right of private ownership,2 and therefore there could be no disseizin, which always meant the ouster of the rightful owner. Hence, if any trespass or encroachment was committed upon such tenements, an assize did not lie, but a jurata was empaneled to inquire concerning the trespass. In such cases, to use the expression of the legal writers of that age, Cadit assisa et non breve, et vertitur assisa in juratam, ad inquirendum de transgressione, si facta fuerit in re sacra, quia nulla ibi est disseisina ut per juratam emendetur transgressio.2 So also in the case of any public building, a wrongful occupation of it was not considered a disseizin, but a purpresture or trespass, and the same rule prevailed.

Where a question arose whether the tenement claimed by the plaintiff lay in the vill and county named in the writ, and the jurors were unable to determine it, it was the duty of the judge, with the consent of both parties, to order a preambulation; and this was designated by the expression cadit assisa in perambulationem.4 And if a deed attested by witnesses were pleaded in bar of the right claimed, then the rule was, that the parties must proceed by an assize taken in the form of a jurata, and by the witnesses named in the written instrument.5

1 Et ita eo ipso remanet assisa, et placitum super exceptione ipsa inter ipsos litigantes deinde esse potent. Super hac autem exceptione recognitionem desiderare potest alteruter litigantium, et eam habere potent. Glanv. XIII. c. 20.

2 Coke says that burglary may be committed in a church as being the domus mansionalis of Almighty God. 3 Inst. c. 14.

3 Fleta, IV. c. 14. 4 Id. IV. c. 15. 5 Id. c. 16.

It seems to have been usual, if not necessary, that both parties should give their consent to enable the proceeding to take place in technical form, per juratam, and on this account, even if the verdict were erroneous, no attaint or conviction of the jury could follow, quia non erit locus convictioni propter consensum. In such case the jury were looked upon as arbitrators chosen by the litigants to decide their controversy, whom therefore it would be unjust to punish for a mistaken finding.1 Nay, more than this, when a man put himself upon the jurata to determine a disputed issue, it was looked upon as his own mode of proof, voluntarily chosen, and therefore he had no right to quarrel with the result, whatever it might be: quia si quæ partium venire vellet contra dicta juratorum, ita diceret probationem suam esse falsam.2 But yet Bracton tells us, that if the objection of villenage were taken in order to deprive the plaintiff of his right to the assize (for no villain could proceed by that mode of trial), and the jury found the fact against him, they might be convicted if they were wrong, provided the plaintiff could prove this, either by another jury of twenty-four, or by the testimony of his relations.3 But in all cases where the trial was by way of “assize,” and not “jurata,” the jurors might be attainted for a wrong verdict, quia assisa capta est in modum assisæ, et non juratæ.4

An ancient statute, the date of which is uncertain, provided that in cases where land of trifling extent and value, such as an acre or toft, was claimed, the justices might

1 Utraque pars facit juratam quasi judicem per consensum et per juratam terminabitur negotium siene aliqua convictione. Bract. IV. c. 23. En plusurs maneres sount assises chaunges ascuns jesques en temps ascuns a toutes jours par assent des partes jesques en jures... Si chet l’assise (cadit assisa) et pur assent des parties soient les jurours faits come juges arbiters. — Button, c. 51.

2 Bract. IV. c. 34. . 3 Id. IV. 23.

4 A jurata, however, might be attained if it gave a wrong verdict in a matter which touched the King. — Bract. 390.

award a jury of twelve free men une jurre de XII. franks hommes, instead of the grand assize, to spare the service of twelve knights, par espargnir le travaille de XII. chivaliers, and these were to take an oath to speak the truth sans dire a lour ascient, that is, without being obliged to say that it was of their own knowledge.1 The meaning of this seems to be, that they were not restricted to giving evidence of what they had seen or actually known themselves, but might deliver their verdict upon such information as they believed to be true. This was a step towards the reception by the jury of evidence from witnesses in court. Gradually the justices appointed to hold the assize were directed to entertain other questions than those concerning land. And special judges seem to have been from time to time nominated for this purpose distinct from the regular justices of the bench, and these visited the counties, traveling circuit as at the present day. Thus by Stat. 13 Edw. I. c. 30. (A. D. 1285), it is provided that to avoid the delay and expense of bringing parties to Westminster, inquisitions of trespass and other pleas, wherein small examination is required, shall be determined before the justices of assize, and the writ to the sheriff for summoning the jury is to be in the following form:

Præcipimus tibi quod venire facias coram justiciariis nostris apud Westmonasterium in Octabis sancti Michaelis nisi talis et talis tali die et loco ad partes illas venerint, duodecim, &c.2

In 1306 we find the word assisa applied to a trial of an action of trepass and false imprisonment.3

1 Cotton. MS. Appendix to Statutes.

2 It is deserving of notice, that although the statute is entitled “Of the authority of Justices of Nisi Prius,” the word prius does not occur in the writ of venire facias there given and addressed to the sheriff. It was not inserted until afterwards.

3 Rot. Parl. I. 200

The machinery for this mode of inquiry was ready in the existence of the jurata, so familiar to the people, inthe sense here explained, in the decision of disputes. And the assisa supplied the model of the form in which it was thenceforth to appear. The transition from a varying number of neighbors assembled at a county or other court, to that of a fixed number, namely twelve, summoned to the assize court, was easy and slight; and the verdict of the jury was originally neither more nor less than the testimony of the latter.1

1 The earliest record extant of a trial by a regularly constituted jurata is, I believe, that of an action of ejectment between Edward I. and the Bishop of Winchester in 1290, respecting the right to the custody of the Hospital of St. Julian at Southampton. It is found in the Rot. Parl. I. 19. It may be interesting to give the names of the jurors who gave their verdict for the king, “in cujus rei testimonium” they affixed their seals. Thomas Peveril Henry Attecruche, John de Langele, John Pers, Thomas de Vyneter, Walter de Letford, Nicholas Gese, Adam le Horder, Hugh Sampson, Henry le Lung John Wrangy, and John Page. At this time the pleadings in an action were identical with those at the present day. See an action of trespass brought by the parson of Chipping Norton against another parson, for turning him out of his house on a Sunday. Rot. Parl. I. 96. There the sheriff is directed to summon twenty-four jurors.

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CHAPTER VII

THE JURY CEASING TO BE WITNESSES, BECOME JUDGES OF EVIDENCE.

SECTION I. Mode of Trial where witnesses were named

in Deeds.

THE inquiry in which we have been engaged has made it abundantly clear that the verdict of the jurata, as well as the assize, was founded on the personal knowledge of the jurors themselves respecting the matter in dispute, without hearing the evidence of witnesses in court. But there was an exception in the case of deeds which came into controversy, and in which persons had been named as witnessing the grant or other matter testified by the deed. And as this seems to have paved the way for the important change whereby the jury ceasing to be witnesses themselves, gave their verdict upon the evidence brought before them at the trials, the subject deserves attentive examination.

In Glanvill’s time the usual mode of proving deeds the execution of which was denied, was by combat, in which one of the attesting witnesses was the champion of the plaintiff. If the name of no attesting witness was inserted in the deed, the combat must be maintained by some other person who had seen or knew of the execution.1 Another mode of proof was by a comparison of the disputed deed with others admitted or proved to

1 Tract. de Leg. x. 12, § 3.

have been executed by the party; — but this, which would at the present day be entirely a question for the jury, was determined then by the court.1 In the case of contracts, where the creditor could produce no deed or mortgage, or other security in support of his claim, the temporal courts took no cognizance of the matter; but the question was treated as one of broken faith, and referred to the spiritual tribunal (Curia Christianitatis).2

At a later period, when Bracton wrote and the judicial combat in civil suits was falling into disuse, disputes arising out of deeds and charters to which there were attesting witnesses were determined by their evidence. And it has been the general opinion that they were included in the jury and formed part of it. Thus Sir F. Palgrave says,3 when a charter was pleaded, the witnesses named in the attesting clause of the instrument, and who had been present on the Folkmoot, the shire or the manor-court when the seal was affixed by the donor, were included in the panel; and when a grant had been made by panel, the witnesses were sought out by the sheriff and returned upon the jury.” And there are two old statutes the language of which obviously favors this interpretation. The first of these is the 52 Hen. III. c. 14 (A. D. 1267), which after mentioning the exemption from serving “in assizes, juries, and inquests,” enjoyed by those who had obtained grants or charters to that effect, provides, that “if their oaths be so requisite that without them justice can not be ministered, as in great assizes, perambulations, and in deeds of writings of covenants, where they be named as witnesses, or in attaints and in other cases like, they shall be compelled to swear, saving to them at another time their foresaid liberty and exemption.” Next follows the Statute of Westminster, 13 Edw. I c. 38 (A. D. 1285), which enacts that if assizes and juries be taken out of the shire, no

1 Tract. de Leg. x. 12, §. 4.

2 Ibid. § 1

3 Eng. Comm. 1

one shall serve upon them who hold a tenement of less than the value of forty shillings yearly, except such as be witnesses in deeds and other writings, whose presence is necessary, so that they be able to travel (laborandum ).1 Now, certainly, if we confine our attention to these statutes, the view above mentioned seems to be the true one. But it may perhaps be doubted whether it is correct, and whether it is right to say that the attesting witnesses were included in the panel of jurors. There are two valuable chapters in Fleta on the subject of the proof of deeds, which throw considerable light upon the question. We there find the testes clearly distinguished from the patria, juratores, and recognitores. Thus, “si testes et juratores dicant quod cartam illam nunquam viderunt.” — “Cum autem testes et recognitores in curiæ comparuerint.” — “Probari enim poterit carta alio modo quam per testes et per patriam sicut per collationem sigillorum.”2 — The writs to the sheriff directing him to summon recognitors, beyond doubt included the attesting witnesses; but it does not therefore follow that the latter sat as part of the jury. Their attendance was neccessary, and therefore it was the duty of the sheriff to have them in court. And as their evidence really determined the question at issue, parties might not improperly be said to be tried by them as well as by the jury, or in the language of the times, “to put themselves upon the witnesses and the county” — se ponere super testes in carta nominatos et super patriam.3 The form of writ to the sheriff in such a case was the following:

1 The original is, non ponatur in eis aliquis qui minus tenementum habeat quam, &c. In the Statutes at Large, this passage is rendered, “none shall pass in them but such as shall hold a tenement of less than the value,” which is directly contrary to the sense. See Fleta, IV. c. 5.

2 De fide cartarum, c. 33; De probatione cartarum, c. 34.

3 Fleta, lib. VI. cap. 33. It is upon this form of expression that Sir Francis Palgrave seems to rely in support of assertion that the witnesses were included in the jury. Compare Bracton, IV. c. 15.

Rex Vicecomiti salutem.

Summone, &c. A. B. &c. testes nominatos in cartâ quam D. in curiâ nostrâ protulit, &c. Et præterea tot et tales tam milites quam liberos et legales homines de visneto, quod sint coram, &c. ad recognoscendum super sacramentum suum si, &c.

With respect to the tot et tales, here mentioned, it appears that the number of the jurors or patria, as distinct from the witnesses on these occasions, varied in different cases. We find a writ for summoning nine; and it is deserving of notice that here only three attesting witnesses are specified,1 which looks as though they were to be added to the jurors at the trial, and thus make up the number twelve. Sometimes the recognition was made, or, in other words, the verdict was given by the witnesses alone.2 But the most usual number of jurors summoned besides the witnesses was twelve;3 and if we are to sup. pose that the latter sat with them, then the jury frequently consisted of a greater number than twelve; which is certainly contrary to the general opinion, and to the preponderating weight of precedent and authority.4

And the language of the statute 12 Edward II. c. 2 (A. D. 1318) seems to me to be more consistent with the view which I had ventured to take of the separation of the attesting witnesses from the jurors, than with that which supposes them to have formed part of that body. The words are, “Also it is agreed that when a deed, release, acquittance, or other writing, is denied in the king’s court wherein witnesses be named, process shall be awarded to cause such witnesses to appear as before hath

1 Summone, &c. A. B. C. testes nominatos, &c. et præter illos 9 tam milites quam albs, &c. ad recognoscendum, &c. Ibid. § 3.

2 Ibid. § 3. 3 Ibid. § 2, 5.

4 It must, however, be admitted that there are passages in Fleta which favor the opposite view. Thus, probetur carta et conventio per testes, licet domestici sint, simul cum aliis de jurata, vel per collationem, vel alio modo. C. 16.

been used. Yet the taking of the inquest shall not be deferred by the absence of such witnesses.” If the witnesses in such cases formed part of the jury panel, we should hardly expect to find a statue so worded which seems to contemplate a special process to compel their attendance.

In reality, however, since the jurors themselves were originally mere witnesses, there was no distinction in principle between them and the attesting witnesses; so that it is by no means improbable that the latter were at first associated with them in the discharge of the same function, namely, the delivery of a verdict, and that gradually, in the course of years, a separation took place. This separation, at all events, existed in the reign of Edward III.; for although we find in the Year Books of that period the expression, “the witnesses were joined to the assize,” a clear distinction is, notwithstanding, drawn between them. Thus, in a passage where these words occur, we are told that a witness was challenged because he was of kin to the plaintiff; but the objection was overruled on the ground that the verdict could not be received from witnesses, but from the jurors of assize. And it was said that when the witnesses did not agree with the verdict in an inquest, or, in other words, when the verdict was against evidence, the defeated party might have an attaint.1

SECTION II. Mode of Trial per Sectam,

Besides the trial by an assize or jurata, Bracton notices another mode of determining disputes. This was when a party made a claim, et inde producit sectam. The meaning of this is, that the claimant offered to prove his case by vouching a certain number of witnesses

1 23 Assis. II.

on his behalf who had been present at the transaction in question. The defendant, on the other hand, rebutted this presumption by producing a larger secta, that is, a greater number of witnesess on his side whose testimony, therefore, was deemed to outweigh the evidence of his opponent. This was called the defense par legem; and the suit was terminated without any intervention of a jury.1

Inasmuch, however, as the evidence of defendant’s sacta was not deemed to be an absolute proof, but merely raised a presumption in his favor sufficient to countervail the presumption on the other side, he was not allowed to resort to this mode of rebuttal where the complainant could produce evidence of a different character, such as a deed or charter. If this was denied, the case was to be tried per patriam, or per patriam et testes in carta nominatos. But if the plaintiff produced his secta, and the defendant had none, but was obliged to rely upon his own denial, he was not (at all events in the instance given by Bracton of an action for dower (unde nihil habet) allowed to put himself on the country, but the plaintiff recovered by force of the secta,2 or the defendant was called upon to wage his law; that is, he was obliged to bring forward double the number of witnesses adduced by his opponent until twelve were sworn. It seems that if he could procure that number to swear for him he succeeded in resisting the demand. Here there was no interposition of a jury at all, but the dispute was decided solely by the witnesses, according as the requisite number preponderated. An exception, however, was made in the case of merchants and traders,

1 Bract. 290, b.

2 If neither side had a secta, then, in the words of Bracton, de veritate ponunt se super patriam, pro defectu sectæ, vel alterius probationis, quam ad manum non habuerint.

for they were allowed to prove a debt or payment per testes et patriam.1

The proceeding per sectam appears to have been unknown in Glanvill’s time; at least he does not mention it, but says, as we have already noticed, that in cases where the plaintiff could produce no written document in support of his claim, the spiritual court alone took cognizance of the matter, and dealt with it as a sin committed on the one side or the other, either in the demand or the denial. It is, however, easy to see that the principle of the procedure is the same as prevailed in compurgation. There the plaintiff or accuser, as the case might be, sup. ported his assertion by the rim-ath, that is, the oaths of persons who swore to their belief in its truth; and the party attacked defended himself by the cyre-ath, or oaths of compurgators, who swore that they believed in his denial. This mode of compurgation was known as the lex manifesta; but it was provided by one of the articles of Magna Charta that no man should be allowed to put another to such a defense by his own bare assertion, unsupported by trustworthy witnesses.2

SECTION III. On the personal knowledge of the Jury as distinct from the Evidence,

As the use of juries became more frequent, and the advantages of employing them in the decision of disputes

1 Bract. fo. 315, b. Fleta, II. c. 64. This secta must not be confounded with the suitors of the county and baronial courts, who were also called secta. On the latter, see Flet. II. c. 65, and ante, p. 56, n. I.

2 Nullus ballivus de cætero ponat aliquem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis. There is some difficulty as to the proper translation of this passage. Ponere aliquem ad legem manifestam no doubt means putting a defendant to his compurgation; but as the loquela is the statement of the plaintiff, and the sua must refer to aliquem, I believe the sentence to be elliptical for nullus ballivus (sinat) aliquem ponere (alium) ad legem, &c. And this view is confirmed by Fleta.

more manifest, the witnesses who formed the secta of a plaintiff began to give their evidence before them, and, like the attesting witnesses to deeds, furnished them with that information which in theory they were supposed to possess previously respecting the cause of quarrel. The rules of evidence now became more strict, and except as regards the right of the jury to found their verdict upon their own private knowledge, of which we shall speak presently, the trial was conducted on much the same principles as at the present day. Thus in the eleventh year of Henry IV. we find the judges declaring, “que le jury apres ceo que ils furent jurés, ne devient veier, ne porter ovesque eux nul auter evidence, sinon ceo que a eux fuit livrere par le court, et per le party mis en court sur l’evidence monstre,” that is, that the jury, after they were sworn, ought not to see or take with them any other evidence than that which was offered in open court.1

The occasion of this statement was where a plaintiff had privately put a juror in possession of a document which had not been tendered in evidence, and this was shown by the latter to his fellows when they were considering their verdict, which was given in favor of the plaintiff. When, however, the matter was brought under the notice of the court, they reproved the plaintiff for his conduct as improper, and refused to let him sign judgment.

In the time of Fortescue, who was lord chancellor in the reign of Henry VI., with the exception of the requirement of personal knowledge in the jurors derived from near neighborhood of residence, the jury system had become in all its essential features similar to what now exists. This will be plainly seen from a perusal of the following passages taken from Fortescue’s celebrated treatise De Laudibus Legum Angliæ:

“Whensoever the parties contending in the king’s

1 Year Book, 2 Hen. IV.

courts are come to the issue of the plea upon the matter of fact, the justices forthwith, by virtue of the king’s writ, write to the sheriff of the county where the fact is supposed to be, that he would cause to come before them, at a certain day by them appointed, twelve good and lawful men of the neighborhood where the fact is supposed, who stand in no relation to either of the parties who are at issue, in order to inquire and know upon their oaths, if the fact be so as one of the parties alleges, or whether it be as the other contends it, with him. At which day the sheriff shall make return of the said writ before the same justices, with a panel of the names of them whom he had summoned for that purpose. In case they appear, either party may challenge the array, and allege that the sheriff hath cited therein partially and in favor of the other party, viz., by summoning such as are too much parties in the cause and not indifferent; which exception if it be found to be true upon the oath of two men of the same panel, pitched on by the justices, the panel shall immediately be quashed, and then the justices shall write to the coroners of the same county, to make a new panel; in case that likewise should be excepted against, and be made appear to be corrupt and vicious, this panel shall also be quashed. Then the justices shall choose two of the clerks in court, or others of the same county,1 who, sitting in the court, shall upon their oaths make an indifferent panel, which shall be excepted to by neither of the parties; but being so impaneled, and

appearing in court, either party may except against any particular persons, as he may at all times and in all cases by alleging that the person so impaneled is of kin, either by blood or affinity, to the other party, or in some such particular interest, as he can not be deemed an indifferent person to pass between the parties; of which sort of

1 These are called Elisors.

exceptions there is so much variety as is impossible to show in a small compass.”

“Twelve good and true men being sworn, as in the manner above related, legally qualified, that is, having over and besides their movables, possessions in land sufficient (as was said) wherewith to maintain their rank and station, neither suspected by, nor at variance with, either of the parties; all of the neighborhood; there shall be read to them in English, by the court, the record and nature of the plea, at length, which is depending between the parties; and the issue thereupon shall be plainly laid before them, concerning the truth of which those who are so sworn, are to certify the court: which done each of the parties, by themselves or their counsel, in presence of the court, shall declare and lay open to the jury all and singular the matter and evidences, whereby they think they may be able to inform the court concerning the truth of the point in question; after which each of the parties has liberty to produce before the court, all such witnesses as they please, or can get to appear on their behalf; who being charged upon their oaths, shall give in evidence all that they know touching the truth of the fact concerning which the parties are at issue; and, if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to give in evidence, so that what the one has declared shall not inform or induce another witness of the same side, to give his evidence in the same words, or to the very same effect. The whole of the evidence being gone through, the jurors shall confer together, at their pleasure, as they shall think most convenient, upon the truth of the issue before them; with as much deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the court, in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion,

which they are to give in to the court. Lastly, they are to return into court and certify the justices upon the truth of the issue so joined, in the presence of the parties (if they please to be present), particularly the person who is plaintiff in the cause; what the jurors shall so certify, in the laws of England is called the verdict. In pursuance of which verdict, the justices shall render and form their judgment.”

Here we see that the jury were still required to come from the neighborhood where the fact they had to try was supposed to have happened; and this explains the origin of the venue (vicinetum), which appears in all indictments and declarations at the present day. It points out the place from which the jury must be summoned.

This is well illustrated by Arundel’s case, which occurred in the reign of Elizabeth.1 He was indicted for murder, alleged to have been committed “in the city of Westminster, in the county of Middlesex, to wit, in a certain street there called King Street, in the parish of Saint Margaret in the same county of Middlesex,” and the jury was returned de vicineto civitatis Westmonasterii. He was found guilty, and it was moved in arrest of judgment that the venue ought to have been out of the parish, and not out of the city. The judges met at Sergeants’ Inn, and “after many arguments” solemnly determined that every trial should be out of such place which by presumption of law can have the best and most certain knowledge of the fact; and because the parish shall be intended to be more certain than the city, inasmuch as when it is alleged to be in a city, it shall be taken in law to be less than the city, the trial was held to be insufficient, and a venire de novo was awarded to try the issue again, on the ground that the life of the prisoner was never in jeopardy. — And on the trial of Reading in the reign of Charles II., where the prisoner objected to a

1 6 Co Rep. 14.

juror on the ground that he was on terms of friendship and intimacy with the prosecutor, the Lord Chief Justice of the Common Pleas, Sir Francis North, said, “And do you challenge a juryman because he is supposed to know something of the matter? For that reason the juries are called from the neighborhood, because they should not be wholly strangers to the fact.”1

It was in consequence of this principle of the original constitution of the jury, that it was for a long time held that their private knowledge of facts might influence their verdict as much as the oral and written evidence which was produced in court.2 And therefore they might bring in a verdict, although no proofs were offered on either side. “For,” says Blackstone, “the oath of the jurors to find according to their evidence was construed to be, to do it according to the best of their own knowledge.”3 And it was said by the court of Common Pleas in Bushell’s case4 (A. D. 1670), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowledge to try the matters in issue, “and so they must, though no evidence were given on either side in court;” — and the case is put of an action upon a bond to which the defendant pleads solvit ad diem, but offers no proof; — where, the court said “the jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea.” This is the meaning of the old legal doctrine, which is at first sight somewhat startling, that the evidence in court is not binding evidence to a jury.5 Therefore, acting upon their own knowledge, they were at liberty to give a verdict in direct opposition to the evidence, if they so

1 7 State Tr. 267.

2 So also with the Dicasts of Athens: ou\de\n ga\r oi\mai dokei proddei~o/qai u~min lo\gwn oude\ marturi/aj o~da tij dafw~j oi\de\n ai\ ti/j Æsch. Con. Timarchum.

1 Comm. III. 374. 4 Vaughan, Rep. 135. 5 Ibid. 152.

thought fit. Thus we find Sir R. Brooke, who was recorder of London in the reign of Edward VI., laying down the law as follows:1

“As to that which has been said by the king’s attorney, that there ought to be two witnesses to prove the fact, it is true that there ought to be two witnesses at least where the matter is to be tried by witnesses only, as in the civil law; but here the issue was to be tried by twelve men, in which case witnesses are not necessary, for in many cases an inquest shall give a precise verdict, although there are not witnesses, or no evidence given to them. As, if it be found before the coroner, super visum corporis, that I. S. killed the dead person, and he is arraigned and acquitted, the inquest shall say who killed him, although they have no witnesses; so that witnesses are not necessary, but where the matter is to be tried by witnesses only. For if witnesses were so necessary, then it would follow that the jurors could not give a verdict contrary to the witnesses; whereas the law is quite otherwise, for when the witnesses for trial of a fact are joined to the inquest, if they can not agree with the jurors, the verdict of the twelve shall be taken, and the witnesses shall be rejected.”

One reason for allowing this sort of discretion to the jury seems to have been that they might escape the severe penalties of an attaint, which they did if they could show, by any additional proof, that their verdict was according to the fact, although not according to the evidence produced before them in court; and the law charitably presumed that this additional proof was known to them at the time of giving their verdict.2

When, however, attaints fell into disuse and the practice of new trials was introduced, juries were no longer

1 Reniger v. Fagossa, Plowd. Comm. 12. 2 Blackst. III. 374.

allowed to give verdicts upon their own knowledge: and it was laid down as a rule, that where they were acquainted with any facts material to be known, they ought to inform the court, so that they may be sworn as witnesses; and it has been said that “the fair way is to tell the court before they are sworn that they have evidence to give.”1

And now, so different is the principle on which the jury find their verdict, that it would be a reason for a new trial if they were told by the presiding judge to take into account and be guided by their own knowledge of facts derived from any source independent of the evidence before them. In one case2 within the present century this was made the ground of an application for a new trial. An information was filed against a party for publishing a malicious and seditious libel relating to the Luddite riots; and the judge who tried the case was alleged to have told the jury in the course of his summing up that, with respect to certain acts of outrage which were averred in the information, they were at liberty to refer to their own personal knowledge, if they saw any of those acts committed. A motion was made for a new trial upon this and other grounds; and the judgment of Lord Ellenborough shows that, if the jury had been told to consider their own previous knowledge as any evidence of the facts, it would have been a fatal misdirection. He said, “The material objection upon which the rule was obtained was founded upon a supposed misdirection of the learned judge at the trial, viz., that he had referred, in aid of some defect of evidence, to the personal knowledge which the jurors might possess for proof of the fact that outrages had been committed at Nottingham; for, as to their having been also

1 1 Salk. 405. For an instance of a juryman being sworn to give evidence, see 18 State Tr. 123, and see note to Vol. 6. 1012. 2 R. v. Sutton, 4 M. and Sel. 540.

committed in the neighborhood of Nottingham, I do think that it is material to prove both. It now appears, however, from the report, that the judge did not lay any stress on the personal knowledge which the jury might be supposed to possess in order to aid any defect of evidence. On the contrary, it appears that he considered the evidence as fully sufficient to establish a verdict in favor of the crown; only he made the observation with reference to what they knew, as a matter of illustration, that it formed a part of the history of the county, that such outrages had been committed, as if he had said, every one must be aware of what had passed before their own eyes, and at their own doors; but he did not advise them to rely on that as a source of information on which they were to found their verdict, but only that it might make the proof more satisfactory to their minds, if they knew what had passed, because no one can have any reason to doubt what he knows and sees. It is conclusive, I think, upon the report, that the judge did not leave this to the jury as forming a branch of evidence of itself.”

It was on account of the principle of personal knowledge being required in the jury that it was, in old times, a good ground of challenge that they were not hundredors of the district where the cause of action arose. The Stat. 27 Eliz. ch. 6, however, enacted that it should be sufficient if two hundredors were on the jury for the trial of issues joined in any personal action; and now, by 6 George IV. ch. 50, the jurors need only be good and lawful men of the body of the county.

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CHAPTER VIII.

JURY SYSTEM IN CIVIL TRIALS. SECTION I. The Jury process.

AS it was an essential principle of the jury trial from the earliest times, that the jurors should be summoned from the hundred where the cause of action arose, the court, in order to procure their attendance, issued in the first instance a writ called a venire facias, commanding the sheriff or other officer to whom it was directed, to have twelve good and lawful men from the neighborhood in court upon a day therein specified, to try the issue joined between the parties. And this was accordingly done, and the sheriff had his jury ready at the place which the court had appointed for its sitting.

But when the Court of Common Pleas was severed from the Curia Regis, and became stationary at Westminster (a change which took place in the reign of King John, and was the subject of one of the provisions of Magna Charta), it was found to be very inconvenient to be obliged to take juries there from all parts of the country. And as justices were already in the habit of making periodical circuits for the purpose of holding the assize in pleas of land, it was thought advisable to substitute them for the full court in banc at Westminster, in other cases also. The statute 13 Edw. I. c. 30, was therefore passed, which enacted that these justices should try other issues, “wherein small examination was required,” or where both parties desired it, and return the inquests into the court

above. This led to an alteration in the form of the venire; and instead of the sheriff being simply ordered to bring the jurors to the courts at Westminster on a day named, he was now required to bring them there on a certain day, “nisi prius,” that is, unless before that day the justices of assize came into his county, in which case the statute directed him to return the jury, not to the court, but before the justices of assize.

Still, however, a practical hardship remained; for as the sheriff was not obliged to return the writ of venire until the day on which he brought the jurors into court where the justices were sitting, the parties had no means of knowing anything of them beforehand, or ascertaining whether they had any just cause of exception against them. This led to the passing of the Statute 42 Edw. III. c. II, which provided that no causes should be tried at nisi prius until the sheriff had returned the names of the jurors to the court. Another change now took place in the venire. That part relating to nisi prius was taken out, which was thus restored to its original form; but the sheriff purposely delayed to comply with its exigency, and the juries not being summoned by him, did not attend on the day named in the writ. He, however, returned their names in a panel or slip of parchment to the court, so that the parties had an opportunity of seeing them, and making the necessary inquiries.1 A fresh writ was then issued in consequence of the seeming neglect of the sheriff, called a distringas, or in the Common Pleas habeas corpora juratorum, which commanded him peremptorily

1 Stat. 6 Geo. IV. c. 50, directs the sheriff to return the names, abodes, and descriptions of a number of jurors, not less than forty-eight nor exceeding seventy-two, taken from the “Jurors’ Book,” which is annually made up for each county from lists returned from each parish therein of persons qualified to serve as jurors. The original reason for inserting the abodes and descriptions of the jurors is stated in Stat. 27 Eliz. c. 6, to be, that the sheriff might know accurately upon whom to levy the “issues,” or fines for non-attendance.

to have the bodies of the jurors in court on a day therein named, unless before that day (nisi prius) the justices of assize should come into his county. And such is the present form in daily use. The first mandate in the venire, with respect to the day when the jury are to appear, is invariably disobeyed, and the distringas is the writ which really determines the time and place of the trial. Whether it is advisable thus to encumber the process by a fiction may well admit of doubt. It has too long been the disgrace of the English law that it pertinaciously adheres to forms which are inconsistent with truth. Nor can any reason be assigned for doing so, except the unsatisfactory one, that the falsehood deceives nobody. But surely it is better to make the form correspond with the reality, and not accustom ourselves to the use of language which is either unmeaning or untrue, and in some cases both.

In the Third Report of the Common-Law Commissioners (1831) they say, “It is indeed very difficult to show sufficient reason for having any writ of venire facias, distringas, or habeas corpora juratorum, issued with reference to the individual cause. The statute which requires the same panel to be returned for all the common jury causes tried at any assizes or sitting of nisi prius, has, in effect, virtually superseded these writs, and their only effect is to inflict expense and inconvenience upon the parties.”

That an ill use was sometimes made of the knowledge which the return to the venire affords, is tolerably clear from passages that occur in the Plumpton correspondence in the reign of Henry VII.1 In one instance2 the writer, John Pullan, who dates his letter from “Lyncolns Inne at London,” says with reference to a trial which

1 Published by the Camden Society.

2 p. 131. For other instances see the same Correspondence, pp. 132, 134, and 161.

was about to take place, “The copie of the retorne and pannell I send to you inclosed herein for more suretie, as tother letter is delivered. Sir, to speak of the labour I made to the contrary, I have written the circumstance thereof in my master letter, and surelye it was to the uttermost of all my power. It is so now I understond, they will have a habeas corpora againe the jurors retornable octabis Trinitatis, so that they may have a