Page:Harvard Law Review Volume 10.djvu/181

GROWTH OF TRIAL BY JURY IN ENGLAND. 1 55 The Normans generally abolished trial by compurgators in crim- inal cases, and though the trial by ordeal long continued in force, it began to be looked upon as an impious absurdity. In the year 12 15, the year of the granting of Magna Charta, the ordeal was abolished throughout Western Europe by the Fourth Lateran Council, which prohibited the further use of that mode of trial ; so that trial by jury became unavoidably general in England in order to dispose of the numerous class of cases when the charge was preferred, not by an injured individual against the culprit in the form of an appeal, but by the great inquest of the country (our modern Grand Jury) in the form of a presentment. For it was only where there was an accusing appellant that the trial by battle was possible. But still there was for a long time no mode of compelling a prisoner to sub- mit the question of his guilt or innocence to twelve sworn men, summoned from the neighborhood. The thirty-ninth section of Magna Charta says : " No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled or anyways destroyed ; nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land" i^7iisi per legale judicium parium suoruirtj vel per legem terrcs). This has been generally taken as establishing the institu- tion of trial by jury. But such cannot be the case, for the same expression occurs in a compilation of our laws of earlier date than Magna Charta. It is to be found in the Leges Henrici Primi, Thus : unusquisque per pares suos judicandus est et ejiisdetn pro- vincice. Mr. Forsyth, in his learned treatise entitled History of Trial by Jury, gives it as his opinion that ki^ pares here spoken of have no reference to a jury. He considers that " they may possibly include the members of the county and other courts, who discharged the functions of judges, and who were the peers or fellows of the parties before them." And he goes on to say that, in a stricter and more technical sense, however, they may mean the homage or suitors of the baronial courts, which had seignorial jurisdiction, corresponding to the hall-motes 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." The judicium parium " of Magna Charta is the enunciation, however, of a general legal principle rather than the technical definition of a mode of trial. " It lay," says Stubbs, " at 21