Page:Harvard Law Review Volume 10.djvu/180

154 HARVARD LAW REVIEW. ment of God, and partly founded on the idea that, when legal measures had failed, recourse must be had to force. The com- plainant addressed his charge to the defendant in solemn tradi- tional form ; the defendant replied to the complainant by an equally solemn verbal and logical contradiction. The compurgators, joining their hands, with one voice swore to the purity of the oath of their principal. If the oath was inconclu- sive the parties brought their witnesses to declare such knowledge as their position as neighbors had given them ; the court, having determined the point to which the witnesses must swear, they swore to that particular fact. If the witnesses also failed, the ordeal was made use of And where the defeated party called in question the sentence thus obtained, he might challenge the decision of the court by appealing to the members of it for a trial by combat. This practice, however common among some branches of the German stock, was by no means universal, and was not practised among the native English. In these proceedings we find circumstances which, when viewed superficially, appear to be analogous to the later tiial by jury; but on closer examination we see that they warrant no such impression. The ancient judges who declared the law and gave the sentence — the rachmbiirgii or the scabini — were by no means the equivalent of the modern jury, who ascertain the fact by hearing and balancing evidence, leaving the law and sentence to the presiding magistrate. Nor were the ancient witnesses, who deposed to the precise point in dispute, more nearly akin to the jurors, who have to inquire the truth and declare the result of the inquiry, than to the modern wit- nesses, who swear to speak not only the truth and nothing but the truth, but the whole truth. The compurgators swore to confirm the oath of their principal, and the only thing they had in common with the modern jury was that they took an oath. Although this is so, yet the procedure in question is a step in the history of the jury: the first form in which the jury appears is that of witnesses, and the principle which gives weight to that evidence is the belief that it is the testimony of the community; even the idea of the compur- gatory oath is not without the same element; the compurgators have certain legal qualifications which shall secure their credibility. Beyond this point, modified here as elsewhere by local usages, the Anglo-Saxon system did not proceed. The compurgation, the sworn witness, and the ordeal supplied the proof; and the sheriff with his fellows, the bishop, the shire-thegns, .& ju dices and yV/n?- tores, and the suitors of the court declared the law.