Page:Harvard Law Review Volume 5.djvu/62

46 HARVARD LAW REVIEW. slight account of these things will serve as a background in trying to make out the jury. I. The great fundamental thing, to be noticed first of all, out of which all else grew, was the conception of popular courts and popular justice. We must read this into all the accounts of our earliest law. In these courts it was not the presiding officers, one or more, who were the judges : it was the whole company — as if in a New England town-meeting, the lineal descendant of these old Germanic moots, the people conducted the judica- ture, as well as the finance and politics, of the town. These old courts were a sort of " town-meeting" of judges. Among the Germanic races this had always been so; nothing among them was more ancient than this idea and practice of popular justice. 1 This notion among a rude people carried with it all else that we find, — the preservation of very old traditional methods, as if sacred ; a rigid adherence to forms ; the absence of the develop- ment of the rational modes of proof. Of the popular courts Maine says, in the admirable sixth chapter of his " Early Law and Custom," while speaking of the Hundred Court and the Salic Law : " I will say no more of its general characteristics than that it is intensely technical, and that it supplies in itself sufficient proof that legal technicality is a disease, not of the old age, but of the infancy of societies." The body of the judicial business of the popular courts seven and eight centuries ago lay in ad- ministering rules that a party should follow this established formula or that, and according as he bore the test should be punished or go quit. The conception of the trial was that of a proceeding between the parties, carried on publicly under forms which the community oversaw. They listened to complaints which often must follow with the minutest detail certain forms " de verbo in verbum," which must be made probable by a " fore-oath," complaint-witnesses, the exhibition of the wound, or other visible confirmation. There were many modes of trial and some range of choice for the parties; but the proof was largely " one-sided," so that the main question was who had the right to go to the proof, for this was often a privilege. For determining this question there were traditional usages and rules, and the determination was that famous Beweisurtheil which disposed of 1 Maine, Early Law and Custom, c. 6; Pop. Gov., pp. 89-92 ; Essays in Anglo-Saxon Law, 2-3.