10 Conservative.
TRIAL BY JURY.
PAUT I.
- Concerning the origin of trial by jury ,
the hypothesis -which presents the fewest
difficulties , and which can bo supported
by important arguments , regards the
British system of sworn inquests as
being derived from Normandy. What
ever may be the remote source of this
institution , out of which trial by jury
unquestionably grew , two points are
clear , viz : 1. The system of inquest by
sworn recognitors , even in its simplest
form , maizes its first appearance in
England , soon after the Norman -con
quest. 2. This system was , in England ,
from the first , worked in close combina
tion with the previously-existing pro
cedure of the shire-moots , the assem
blies of the county , held by the sheriff
aided by the bishop of the diocese. "
No trace of such an institution as a
jury can be found in Anglo-Saxon times ,
and if it had existed , distinct mention
of it would have been made ill the
Anglo-Saxon laws and contemporary
chronicles which we possess , extending
from the time of Ethelbert A. D. 568-
( > 16 to the Norman Conquest ; but no
mention is made.
With reference to criminal trials , we
meet in the ordinance of King Ethelred
II 978-1016 with sort of of
- , a jury accusa
tion , resembling the grand jury of today ,
and possibly- its direct progenitor. In
the Gemot of every hundred , the twelve
senior thegus ( or thanes ) with the reeve ,
were directed to go apart and bring
accusation against all whom they be
lieved to have been guilty of any crime.
But this jury did not determine the
guilt or innocence of the accused ; that
had to be decided by compurgatiou , or
the ordeal. This primitive grand jury
probably continued in use after the
Norman conquest , until it was recon
structed by Henry II. For more than a
hundred years after the conquest , the
ancient Anglo-Saxon modes of trial , or
forms of proof , by ordeal , by oath , by
witnesses and production of charters ,
continued in general use alongside the
Norman procedure the wager of battle ,
and the occasional employment of the
inquest by sworn recognitors.
The conqueror was evidently anxious
that the English should still continue to
enjoy the rights and customs with
which they had become familiar. As a
result , we find that the distinctive
features of the Anglo-Saxon juris
prudence were retained by the conquer
or. Nevertheless , he made some im
r " portant changes in the judicial system.
He separated the spiritual and temporal
courts ; he introduced the combat , or
duel , as a means of determining civil
a'otions and questions of guilt or in
nocence ; and ho appointed judges to
administer justice throughout the realm.
Gradual Growth of Jury Trial.
But it was only by degrees that the
advantages of the principle of trial by
jury in its application to judicial matters ,
were realized. The sworn inquest ap
pears to have been at first chiefly used
for determining non-judicial matters ,
such as the ascertaining of the laws of
King Edward , the assessing of feudal
taxation under William II and Henry I ,
and the customs of the church of York ,
which the latter monarch , in 1106 ,
directed five commissioners to verify by
the oath of twelve of the citizens. On
one occasion the conqueror ordered the
justiciars to summon the shire moots ,
which had taken part in a suit touching
the Tights of Ely. A number of the
English who knew the state of the lands
in question , in the reign of Edward , were
then to be chosen , and these were to
swear to the truth of their depositions ;
action was , then to be taken accordingly'
jtn spite of-this , there are equally early
instances of strictly legal matters being
decided by the recognition , on oath of a
certain number otprobi et legales homines ,
selected from'the men of the county to re
present the neighborhood , and to testify
to facts of which they had special knowl
edge. The Normans generally abolished
trial by conjurgators in criminal cases ,
and though the trial by ordeal long con
tinued in force , it began -to be looked
upon as absurdity.
In the year 1215 ( the date of Magna
Oharta ) , ' the ordeal Was abolished
throughout Western Europe by the
fourth Lateran council , which prohibited
the further use of that mode of trial , so
that trial by jury became unavoidably
general in England , in order to dispose
of the numerous class of cases , when
the charge Avas preferred , not by an in
jured individual against the culprit in
the form of an appeal , but by the great
inquest of the county ( the modern
grand jury ) in the form of a present
ment. Obviously it was only where
there was an accusing appellant , that the
trial by babble was possible. There was
for a long time no mode of compelling a
prisoner to submit the question of his
guilt or innocence to twelve such men ,
summoned from the neighborhood.
Magna Charts.
The thirty-ninth section of Magna
Oharta says : ' No free man shall be
taken or imprisoned , or disseised , or
outlawed , or exiled or anyways des
troyed , nor will we go upon him , nor
will we send upon him , unless by the
lawful judgment of his peers , or by the
law of the land. " This has been gen
erally taken as establishing the institu
tion of trial by jury. But such can
hardly bo the fact , for the same ex
pression is found in a compilation of
laws of earlier date than Magua Oharta.
It may be found in the Leges Henrici
Primi.
The "judicium parium" of Magna
Oharta seems to bo the enunciation' of a
general legal principle , rather than the
technical definition of a mode of trial.
According to Stubbs , "it lay at the
foundation of all German law , and the
very formula , hero used is probably
adopted from the laws of the Frauoou-
ian and Saxon Caesars. "
The use of a jury both for criminal
presentment and civil inquests is men
tioned for the first time in the English
statute law in the constitutions of Clar
endon (1164. ( ) The manner in which the
jury is referred to , gives the impression
that it was already in common use.
The statute declared that "by the recog
nition of twelve lawful men , " the Chief
Justice should decide all disputes as to
the lay or clerical tenure of land.
Extension of Jury Trial by Henry II.
It was in the Grand Assize ( the exact
date of which is not known ) that the
principle of recognition by jury , having
raduallly grown - into familiar use in
various civil matters , was applied by
Henry II , in an expanded form , to the
decision of suits to determine the right
to land. This assize is called by Glan-
ville , a contemporary , and the earliest
'judicial writer of importance" , a regalis
institutio. In it may be found the jury
in its distinct form , but the elements of
which it was composed were all fam
iliar to the jurisprudence of the period.
By the grand assize the defendant was
allowed his choice between wager of
battle and the recognition of a jury of
twelve sworn knights of the vicinage ,
summoned for the purpose by the sheriff.
The Magna Assisa was a mode of
trial confined to questions concerning
the recovery of lands of which the com
plainant had been disseised ; the rights
of advowsons ; claims of vassalage ,
affecting the civil status of the defend
ant. A writ was then addressed to the
sheriff , commanding him to summon
four knights of the district , in which
the disputed property was , who were ,
after they were sworn , to choose twelve
lawful knights who were most familiar
with the facts , ( qui meluis veritatem
sciant , ) and who were upon their oaths ,
to decide which of the disputants was
entitled to the laud. The defendant
was summoned to hear the election of
the twelve jurors made by the four
knights , and he might object to any of
them.
Jurors as Witnesses.
When the twelve were duly chosen
they were summoned by writ to appear
in court and testify on oath as to the
rights of the parties. They took an
oath that they would neither give false
evidence nor knowingly conceal the
truth ; and , according to Glanville ,
knowledge meant what they had seen
or heard by trustworthy information ,
and this demonstrates most clearly , how
entirely they were looked upon , as mere
witnesses , and how different the idea of
their duties then was , from what it is
now. If they were all ignorant as to
the rightful claimant , they testified this