worth 1200 shillings was equal to that of six churls, which was the term applied to an ordinary freeman," each of whom, however, was still considered as weighty as two Welshmen !31

Accordingly it causes little surprise, when, cognizant of the system, and conscious of this method of estimating the value of depositions, we read in Hallam that "perjury 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." "

As referred to above, the points of resemblance between sectatores, compurgators and jurors have been the origin of many ingenious theories, maintaining that our modern jury was derived by a species of evolution from one or the other of these primitive boards of trial; while Turner, in his history of the Anglo-Saxons, fails to observe any distinction whatever between compurgators and jurors. This, concludes Forsyth," is "entirely a mistake, founded on a misconception of the original nature of the office of jurymen. Compurgation

30 There were two classes of freemen-the nobles or earls and those not noble or churls. The unfree man or serf was termed a theow, and "was a mere chattel; he had no rights; could be transferred from one owner to another; had none of the privileges of freemen; was not, in fact, an element of the community or state." Pomeroy, Mun. Law, §375.

Nor could the churl become an earl, "for the simple reason that he could not change his forefathers; but he might, and often did, become a thegn [thane]."-Freeman, Growth Eng. Const., c. I.

31 Forsyth, pp. 73, 56. cf. Pomeroy, Mun. Law, §370.

32 Hist. Middle Ages, Supp. Notes 260.

It was this prevalence of perjury, which is said to have led to the proceeding called an Attaint [as to which, see post, chap. IX.] for "it is related by the old writers that, during a considerable period after the Conquest, it was difficult to maintain the Saxon administration of justice in the county courts, by reason of the lapsed integrity of the freeholders, who were usually assembled in these courts as jurymen." Cooley, Am. Cycl. V. 152, art. Common Law.

33 Trial by Jury, c. IV.

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 fell gradually into disuse." While an American authority of weight holds it to be "certain that all these influences" contributed to establish this mode of trial in England, and to shape it as we knew it to exist there. Indeed, it was not until all of them had had an opportunity of completing their work, that we find what we should now call a jury.'

9936

We had, in the preceding chapter, traced a historical outline of the Anglo-Saxon or, rather, ante-Norman epoch, and have now completed the consideration of the various phases of its jurisprudence. It may, therefore, not be inappropriate, before taking final leave of this topic, to conclude with a graphic comment on the general status of the island and its inhabitants, at that period. Hume" observes: "Whatever we may imagine concerning the usual truth and sincerity of men who lived in a rude and barbarous state, there is much more falsehood and even perjury among them, than among civilized nations. Our European ancestors, who employed every moment the expedient of swearing on extraordinary crosses and relics, were less honorable in all engagements than their posterity. The general proneness to perjury was much increased by the usual want of discernment in judges, who could not dis

34 Cf. ante, note 14.

35 And that of the Norman recognitors-as to whom, see chap. IX.

36 Cooley, Am. Cycl. IX. art. Jury.

37 Hist. of Eng., app. I.

cuss an intricate evidence, and were obliged to number, not weigh, the testimony of the witnesses. Hence the ridiculous practice of obliging men to bring compurgators, who, as they did not pretend to know anything of the fact, expressed upon oath that they believed the person spoke true; and these compugators were in some cases multiplied to the number of three hundred (Praef. Nicol. ad Wilkin, p. II.)"

38

"They [the Anglo-Saxons] were in general a rude, uncultivated people, ignorant of letters, unskilled in mechanical arts, untamed to submission under law and government, addicted to intemperance, riot, and disorder. Their best quality was their military courage, which yet was not supported by discipline or conduct. Their want of fidelity to the prince, or to any trust reposed in them, appears strongly in the history of their later period, and their want of humanity in all their history. Even the Norman historians, notwithstanding the low state of the arts in their own country, speak of them as barbarians, when they mention the invasion made upon them by the Duke of Normandy (Gul. Pict. p. 202). The conquest put the people in a situation of receiving slowly, from abroad, the rudiments of science. and cultivation, and of correcting their rough and licentious manners.'

38 As to the value of oaths in general, see Best, Ev. § 59, and the authorities there referred to in the notes.

As illustrative of the multiplicity of oaths pervading the administration of justice even at a more recent period, it has been well observed that "a pound of tea cannot travel regularly from the ship to the consumer, without costing half a dozen oaths at the least." Paley's Moral & Pol. Philos. bk. III. pt. I. c. 16.

And our own execrable tariff and tariff-administration laws render us to-day justly amenable to similar strictures.

39 And even more; e. g. the case of Mister Ulnothus (ante, p. 83), who marched to court with more than a thousand men, to prove his claim.

CHAPTER VIII.

THE INSTITUTIONS OF THE NORMANS.

The accession of William the Norman (1066) constitutes the second great landmark in the history of English law, and inaugurates the epoch from which may be said to date the science of our jurisprudence. In the eloquent language of Judge Story," "some of the most venerable sages of the law belong to this period; the methodical and almost classical Bracton; the neat and perspicuous Glanville; the exact and unknown author of Fleta; the criminal treatise of Britton; the ponderous collections of Statham, Fitzherbert, and Brooke; and, above all, the venerable Year Books themselves, the grand depositaries of the ancient common law, whence the Littletons and the Cokes, the Hobarts and the Hales, of later times, drew their precious and almost inexhaustible learning This, too, was the age of scholastic refinements and metaphysical subtilties, and potent quibbles, and mysterious conceits; when special

1Misc. Writings, p. 198, ff: On the Progress of Jurisprudence.

? So Blackstone speaks of "the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon." 2 Bl. Com., end of c. IV.

Among the master-spirits of these ages, Longfellow (in his essay on Dante)-after referring to Albertus Magnus, and Peter Lombard, "The Wise Master of Sentences," and "the Angelic Doctor, Thomas Aquinas" -mentions Raymond Lully, the Doctor Illuminatus, Francis of Mayence, the Magister Acutus Abstractionum, William Durand, the Doctor Resolutissimus, Walter Burleigh, the Doctor Planus et Perspicuus, and William

pleading pored over its midnight lamp, and conjured up its phantoms to perplex, to bewilder, and sometimes to betray. This, too, was the age of strained and quaint argumentation, when the discussions of the bar were perilously acute and cunning. And yet, though much of the law of these times is grown obsolete, and the task of attempting a general revival of it hopeless, it cannot be denied that it abounds with treasures of knowledge. It affords the only sure foundation, in many cases, on which to build a solid fabric of argument; and no one ever explored its depths, rough and difficult as they are, without bringing back instruction fully proportioned to his labor."

Occam, the Doctor Invincibilis, Singularis, et Venerabilis-"men of acute and masculine intellect."

There were, moreover, the Doctor Solemnis, the Doctor Solidus, the Doctor Fundatissimus, and last not least John Duns Scotus, the Doctor Subtilis and founder of "the Formalists, who taught that the end of philosophy is, to find out the quiddity of things-that every thing has a kind of quiddity or quidditive existence,-and that nothingness is divided into absolute nothingness, which has no quiddity or thingness, and relative nothingness, which has no existence out of the understanding."

3 In connection with the note appended to chap. V. (p. 60)—concerning the influence of the civil on the common law-the high esteem with which the former was regarded by so eminent an authority as Mr. Justice Story may here be advantageously referred to.

In his eulogistic remarks on the occasion of the demise of Hugh S. Legaré, U. S. Attorney General, he observed: "I had indeed looked to him with great fondness of expectation. I had looked to see him accomplish what he was so well fitted to do,-what, I know, was the darling object of his pure ambition-to engraft the civil law upon the jurisprudence of this country, and thereby to expand the common law to greater usefulness and a wiser adaptation to the progress of society by forcing into it the enlarged and liberal principles and just morality of the Roman jurisprudence." Misc. Writings, pp. 820, 822; cf. 1 Kent, Com. 515.

Dr. Irving (Intro. to the Civil Law) maintains that the influence of the civil law on the laws of England has been much greater than lawyers generally are aware. This coincides with the opinion of Spence and Holt, cited in the Note last referred to.