or property, nisi per legale judicium parium suorum vel per legem terræ1.'

But the same expression occurs in a compilation of our laws of earlier date than Magna Carta. 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

In his observations on Magna Carta, Barrington, having noticed the correspondence of the 29th Chapter with a Norman Charter nearly comtemporaneous, says, 'I should therefore conceive that the trial per pares in the 29th Chapter of Magna Carta, 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 Carta it had a much wider signification.

words judicium parium could ever with propriety have been applied to the verdict of a jury. It will be hereafter shewn 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 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 judicabitur1.

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.

1 Tract. de Leg. 1.6; v.4; xш. 7. 11. 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.

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 of 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 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'.

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, were 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 secto 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 the suit is in ward unto the king or his committee, and the lord 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?.'

The lord had no voice in the decision come to by the homage: he simply presided, and carried into effect the judgment3. According to the feudal law of

1 Leg. Gul. Conq. 23. 2 Fitzherbert, Nat. Brev. 158. 3 Le coustume de Beauvoisins est tele que li seigneurs ne jugent pas en leur cour, mes les homes jugent. Coutumes de Beauvaisis, c. 57.

T. J.

I

Europe, if a vassal had neglected to perform the military service due from him, he was tried by his compeers, his fellow-vassals', and lost his fief, si de vocatione legitimá a domino suo convinci per compares suos poterit. 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 omnino cogi debent a domino et paribus dicere veritatem3. 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 the throne of the kingdom of Jerusalem, when that city had been rescued from the Saracens in the

1 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. 1. 459.

2 Feudorum Lib. ii. tit. 54.

3 Ib. tit. 58.