Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/818

784 JURY trial. They must submit to the direction of the judge as to any rule or principle of law that may be applicable to the case ; and, even in deliberating on the facts, they re ceive, although they need not be bound by, the directions of the judge as to the weight, value, and materiality of the evidence submitted to them. Further, according to the general practice, they are selected from the inhabitants of the locality, whether county or city, within which the cause of action has arisen or the crime has been committed, so that they bring to the discharge of their duties a certain amount of independent local knowledge, an element in the institution which is by no means to be ignored. Such in general terms is the famous judicial institution the develop ment of which is generally regarded as one of the greatest achievements of English jurisprudence. What is ths origin of this very remarkable and character istic system ? That is a question which has engaged the attention of many learned men. The fullest discussion of the subject is contained in Forsyth s Trial by Jury, published in 1852, and more concise notices of the various theories that have been advanced will be found in Stubbs s Constitutional History, vol. i., and in Freeman s Norman Conquest, vol. v. Until quite recently this, like all other institutions, was popularly regarded as the work of a single legislator, and in England it is one of the achievements usually assigned to Alfred. It is needless to say that there is no historical foundation whatever for such a supposition, nor is it much more correct to regard it as " copied from this or that kindred institution to be found in this or that German or Scandinavian land," or brought over ready made by Hengist or by William. 1 " Many writers of authority," says Canon Stubbs, "have maintained that the entire jury system is indigenous in England, some deriving it from Celtic tradition based on the principles of Roman law, and adopted by the Anglo-Saxons and Normans from the people they had conquered. Others have regarded it as a product of that legal genius of the Anglo-Saxons of which Alfred is the mythic impersonation, or as derived by that nation from the customs of primitive Germany or from their intercourse with the Danes. Nor even when it is admitted that the system of recognition was introduced from Normandy have legal writers agreed as to the source from which the Normans themselves derived it. One scholar maintains that it was brought by the Norsemen from Scandinavia; another that it was derived from the processes of the canon law ; another that it was developed on Gallic soil from Roman principles ; another that it eame from Asia through the crusades," or was borrowed by the Angles and Saxons from their Slavonic neighbours in northern Europe. Ths true answer is that forms of trial resembling the jury system in various particulars are to be found in the primitive institutions of all nations. That which comes nearest in time and character to trial by jury is the system of recognition by sworn inquest, introduced into England by the Normans. " That inquest," says Mr Stubbs, y is directly derived from the Frank capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian code, and thus own some distant relationship with the Roman jurisprudence." However that may be, the system of recognition consisted in questions of fact, relating to fiscal or judicial business, being submitted by the officers of the crown to sworn witnesses in the local courts. It is pointed out by Mr Freeman that the Norman rulers of England were obliged, more than native rulers would have been, to rely on this system for accurate information. They needed to have a clear and truthful account of disputed points set before them, and such an account was sought for in the oaths of 1 Freeman, Norman Conquest, vol. v. p. 451. the recognitors. 2 The Norman Conquest, therefore, fostered the growth of those native germs common to England with other countries out of which the institution of juries grew. Recognition, as introduced by the Normans, is only, in this point of view, another form of the same principle which shows itself in the compurgators, in the frith bod; in every detail of the action of the popular courts before the Con quest. Admitting with Mr Stubbs that the Norman recognition was the instrument which the lawyers in Eng land ultimately shaped into trial by jury, Mr Freeman maintains none the less that the latter is a distinctively English thing. Mr Forsyth comes to substantially the same conclusion. Noting the jury germs of the Anglo- Saxon period, he shows how out of those elements, which continued in full force under the Anglo-Normans, was produced at last the institution of the jury. "As yet it was only implied in the requirement that disputed questions should be determined by the voice of sworn witnesses taken from the neighbourhood, and deposing to the truth of what they had seen or heard." What was wanting was to mould the procedure into shape, and that it did not attain until a century after the Conquest. The inquest by recognition, which was employed generally for the ascertainment of facts, as for example in assessing taxation, is exemplified in legal matters by the process known as the assize or the great assize, applicable to questions affecting freehold or status. Defendant in such an action was enabled by an enactment of Henry II. to decline the trial by combat and choose the trial by assize, which was conducted as follows. The sheriff summoned four knights of the neighbourhood, who being sworn chose twelve lawful knights who were most cognizant of the facts, who should determine on their oaths which had the better right to the land. If they all knew the facts and were agreed as to their verdict, well and good; if some or all were ignorant, the fact was certified in court, and new knights were named, until twelve were found to be agreed. The same course was followed when the twelve were not unanimous. New jurors, as they may be called, were added until the twelve were agreed. This was called afforcing the assize. At this point the knowledge on which the jurors acted was their own personal knowledge, acquired independently of the trial. "So entirely," says Forsyth, "did they proceed upon their own previously formed view of the facts in dispute that they seem to have considered themselves at liberty to pay no attention to evidence offered in court, however clearly it might disprove the case which they were prepared to support." The use of recognition is prescribed by the constitutions of Clarendon for cases of dispute as to lay or clerical tenure. See Forsyth, p. 131; Stubbs, vol. i. p. 617. In criminal cases there appears to be a more complete approximation to the jury in Anglo-Saxon times in the twelve senior thegns, who, according to an ordinance of yEthelred II. were sworn in the county court that they would accuse no innocent man and acquit no guilty one. The twelve thegns were a jury of presentment or accusation, like the grand jury of later times, and the absolute guilt or innocence of those accused by them had to be determined by subsequent proceedings by compurgation or the ordeal. Whether this is the actual origin of the grand jury or not, the assizes of Clarendon and Northampton establish the Ciiminal jury on a definite basis. By the articles of visitation of 1194, four knights are to be chosen from the county who by their oath shall choose two lawful knights of each hundred or wapintake, or, if knights be wanting, free and legal men, so that the twelve may answer for all 2 This fact would account for the remarkable development of the system on English ground, as contrasted with its decay and extinction in France.