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 T. J. B a state of society which has for ever 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 ancestors1. 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 labours 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. 1 Numerous have been the theories as to the birth 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. and parentage of this the favourite 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, Son origine se perd dans la nuit des temps1; 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 so absolute that it has remained in unabated rigour from its commencement to the present time. Spelman was uncertain whether to attribute the origin of the system to the Saxons or the Normans. Du Cange and Hickes ascribed its introduction to the Normans, who 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 England3. The theory of Reeves in his History of the English Law is, that when Rollo led his followers into Normandy they 1 Mémoire sur le Jury. 2 Treatise on Trial by Jury in Civil Causes (in Scotland). 3 Orig. et Progrès des Inst. Judic. Tom. II. c. 11. 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 endeavoured to substitute it in the place of the Saxon tribunals. He speaks of it therefore as a novelty introduced by them soon after the Conquest, and says that it may be laid down with safety that the system did not exist in Anglo-Saxon times'. Turner, on the other hand, in his History of the Anglo-Saxons, thinks that it was then in use, although no record makes the date of its commencement2;' 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 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 Conqueror3. The opinion of one of the latest and ablest of our legal writers, Mr. Serjeant Stephen, seems to coincide with that of Reeves, for he says, 'The most probable theory seems to be that we owe the germ of this (as of so many of our institutions) to the Normans, and that it was derived by them from Scandinavian tribunals, where the judicial number of twelve was always held in great veneration. He refers also to the 1 Hist. English Law, 1. c. 1.; II. c. 2. 2 Hist. Ang. Saxons. III. 223. 3 Rise and Progress of Eng. Commonwealth, 1. 256. |