CHAPTER VII.

FORMS OF TRIAL AND TRIBUNALS AMONG THE SAXONS.

Having examined the social and political status of the Saxons in England, as evidenced by their history and environment, we may expect to find, on considering the judicial institutions, their personal characteristics reflected therein. Here, as there, we distinguish the same primitive system of administration, the same rudimentary ideas of right, the same regard for the efficacy of clerical absolution, the same adherence to old. and meaningless forms, and the same reverence for the vis major.

The judicial system of the Anglo-Saxons' depended for its administration on, and consisted of, four distinct factors or elements: these were, sectatores or suitors of court, the secta or suit of witnesses, official witnesses, and compurgators. These have been generally confounded or at least not clearly distinguished, and the misconception of their proper functions has given rise to many ingenious theories. In general it may be said that of all these functionaries the first class only performed judicial duties; the second and the third were species of witnesses; the fourth officiated (at least originally) in criminal cases only, while none of them were jurors. A delineation of the functions of each will be given, and a distinction attempted.

1 "That system was unaffected by the Conquest, and continued in all its vigor for many years after that event." Forsyth, c. V. §1.

The name of Sectatores is applied by Forsyth to the limited number of freemen" who attended the hundred, county and manorial courts,' to try offenses and determine disputes there; and the obligation to attend was in the nature of a tenure, for neglect of which they might be distrained to appear." For, in accordance with the customs of those days, "to do suit at a county or other inferior court was

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1

one of

the common tenures by which land was held, and the suitors, called sectatores, or .. at a later period pares, were therefore bound to give their attendance." Anciently their number appears to have depended on chance or convenience; nor do they appear to have acted always under the sanction of an oath; for to Reeves* "it seems that causes in the county and other courts were heard and determined by an indefinite number of persons called sectatores," of whom "the frequent mention, ," he continues, "is no proof of juries, properly so called, being known to our Saxon ancestors." It would seem that this form of judicial tribunal was the modified outcome of a feature of the elaborate county system established by Alfred, and a result of the alterations necessitated and the encroachments caused by the incessant warfare prevalent after the death of that monarch,

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? Trial by Jury, p. 66 and note. Id. p. 113.

3 "This trial by an indefinite number of sectatores or suitors of court continued for many years after the Conquest; these are the persons meant by the terms pares curiæ, and judicium parium, so often found in the writings of this [Anglo-Norman] period." Reeves, Hist. Eng. Law, vol. I. p. 85. Cf. post, chap. XI. Sullivan (Lect. on the Laws of Eng., ed. 1776, p. 248) says that "the hundred court vanished in Edward

the Third's reign."

4 Hist. Eng. Law (2d ed. 1787) vol. I. p. 24.

ment.

which must have greatly affected his system of governThe whole matter, however, is involved in much obscurity, and will be resumed, to some extent, in the chapter treating of the Judicium Parium."

re

Concerning the second of the four classes, Prof. Robertson observes : "The trial per sectam sembled in principle the system of compurgation. The plaintiff proved his case by vouching a certain number of witnesses (secta) who had seen the transaction in question, and the defendant rebutted the presumption thus created by vouching a larger number of witnesses on his own side." It was thus an application to civil suits of the principle, which governed the system of compurgation in relation to criminal causes. At a later period in Saxon history, however, it seems that compurgation was also extended to (and thus superseded the use of the secta in) civil proceedings; or, at least, that the term "compurgation" was employed to designate both the criminal and the civil (i. e. the sectatory) method. Indeed, the very name of secta became an

Post, chap. XI.

Enc. Brit. XII, art. Jury. The same writer adds: "In course of time the practice arose of the witnesses of the secta telling their story to the jury, and with the increasing use of juries and the development of rules of evidence, this was gradually established as the true principle of the system."

According to Prof. Thayer ("The Older Modes of Trial," Harv. Law Rev. V. 48-51) the secta appertained to the proceedings preliminary to trial, and was required to show that the plaintiff had a case sufficient to put his adversary to proof. The latter might "stake his case on an examination of the complaint-witnesses," and prevailed if they disagreed; or he could join issue and proceed to trial regularly. Thus the secta was usually not examined, and later not even produced, and only the formula was preserved in the pleadings (in England) until 1852.

But in New Jersey all decorations still archaically conclude: et inde producit sectam (“and therefore he brings his suit, etc.")

alternative term for sectatores-the judges above described-which led to the confounding of the one with the other, and bred endless confusion and mistake.

At a more advanced period of the Anglo-Saxon dominion, when the defects of their mode of evidence and system of trial became perceptible even to their untutored minds, an attempt was made to partially remedy these defects by the official appointment in each district of sworn witnesses," whose duty it was to attest therein all sales, endowment of a woman ad ostium ecclesiæ, and the execution of charters. They were not subject to cross-examination, and their oath was decisive in case of dispute. Later, persons peculiarly qualified by circumstances (though not pre-appointed), were similarly sworn to prove age, ownership of chattels, and the death. of one in whose estate dower was claimed.' Hence in the Year Books (16 Edw. II. 507, A. D. 1323) we read complaint that one

66

may name ses cosyns et ses auns, who by his procurement will decide against us."

The most important of the four elements, and that destined to play the largest part in the development of trial by jury, was compurgation." Under the Saxon system, in criminal cases the charge of the prosecutor or 66 accusor "sufficed to put the accused on his defense. This defense was by means of the process of compurgation, which was in vogue among the various Teutonic

Brunner, Schwurz, 54–59, 205.

9 Hence, when the Conqueror transplanted the Norman trial by battle or duel to England, any one who might have been a fit, i. e. a sworn, witness for either party in a real action, could "hazard himself in a duel," as a champion of the cause of his principal. See Forsyth, c. IV. 10 Cf. Reeves, vol. I. p. 20. Many instances are set forth in 5 Haw. Law Rev. 58-63, showing that by the end of the 16th century it was obsolescent, and finally prevailed in actions of detinet end debt only.

nations (twelve being the usual number) and rested on the maxim: "Nobilis homo ingenuus,-cum duodecim ingenuis se purget." Compurgators may be defined as persons, who supported by their oaths the credibility of the party accused, pledging their belief in the latter's denial of the charge brought against him."

"These were in no sense witnesses, for they might be wholly ignorant of the real facts in dispute; nor were they a jury, for no evidence was submitted to their consideration. They were merely friends of the party who summoned them; they knew his character, and by their united oaths they at once attested that character and their confidence in his truthfulness and the justice of his cause.

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This mode of trial was brought into England by the Saxons," and Judge Cooley thus describes it: "Then the party accused-or, in later times, the party plaintiff or defendant-appeared with his friends, and they swore, he laying his hand on theirs and swearing with them, to

11 Vide Rogge, Gerichtswesen der Germanen, c. 8.

12 Contrast herewith the Vorath, post, chap. X. This appears to have been the incriminating body, composed of a number of freemen who happened to be cognizant of the facts of a particular case whereon they predicated their accusation, to meet which charge the defendant had resort to compurgation as aforesaid.

13 Pom., Johns. Cycl. II. art. Jury.

14 "The trial by compurgators, under the name of Wager of Law, continued to be the law of England till abolished in 1833." Eng. Cycl. III. 25. For a case wherein (as late as 1817) the tender of wager of law was held admissible, see Chandler's Am. Law Reporter, p. 255, and note (cf. Chase's Bl. 74, note). So in King v. Williams, 2 B. & C. 538, its legality was still (1824) reluctantly recognized in England. Contra, Story, J., Siglar v. Haywood, 21 U. S. 8 Wheat. 675, 5 L. ed. 713.

Starkie (Ev. 76, note h) observes that the evidence to character, in criminal cases, is the last remnant of the process of compurgation now existent in Engiish law.

It was abolished by Stat. 3 and 4 Wm. IV. c. 42.