jury and tive systems im bedded in the local courts. Germs of courts of the townships did not possess contentious jurisdicrepresenta- tion, it follows that the ordinary administration of law was confined to the courts of the shire and hundred. The business of these courts was not limited, however, to the exercise of judicial functions only. In the Old-English commonwealth, as in all other infant societies, the line of demarcation between the different powers in the state was not at all well defined; the courts of the shire and hundred were not only the judicial but the administrative workshops of the constitution. In addition to the administration of justice, these courts transacted such business as the levying of military forces, the adjustment of local assessments, and the regulation of the system of police;2 and in their presence were performed all acts that required special publicity, such as the making of sales and the execution of important documents.3 These local courts, in which were discussed and settled nearly every question in which the body of the people were directly Conquest. concerned, survived the shock of the Norman conquest, pre Local courts survive the serving in their organization and procedure the germs out of which the greatest of English institutions were to spring. Out of the representative principle imbedded in the courts of the shire and hundred were developed, under the influence of Norman administrative ideas, the jury system," and the system of representative government. In order fully to grasp the history of this development, which involves the Embryonic question of questions for students of English institutions, — it will be necessary to begin with an examination of the tive princi- germs of the representative principle as they appear in the primitive constitution. Such an examination can only be forms of representa ple. 1 See above, pp. 104, 191. 8 Wills were often attested by the 4 "The courts of those days supplied the means by which every kind of business was transacted, and had probably a greater resemblance to a public meeting than to a court of justice in the modern sense of the term. This was true of all courts whatever, but especially of the county court, . . . in which were transacted all the more important branches of public business, judicial, financial, and military."- Sir James Fitz-James Stephen, Hist. Crim. Law, vol. i. p. 77. 6 Stubbs, Const. Hist., vol. i. p. 608. "It is in the new system of recognition, assizes, and presentments by jury that we find the most distinct traces of the growth of the principle of representation; and this in three ways." 6 Guizot, Hist. Rep. Gov., p. 45. hundred courts both tive assem made through an analysis of the organization of the local courts, and of the methods of their procedure. The court of the hundred, like that of the shire, consisted of the meeting of all the qualified freemen resident within the district over which its jurisdiction extended. In the hundred court appeared the reeve and four selectmen from each township embraced within the hundred; in the shire court, like representatives appeared from each township embraced within the shire.1 Both courts were, therefore, not only popular but Shire and representative assemblies. In both courts the whole body of "suitors" (attendants) were the judges, and in theory what- representaever judgment was rendered was the judgment of the whole blies. assembly. But in practice it became impossible for the whole body to exercise judicial functions. The inconveniences which arose out of this state of things indicated the obvious and natural remedy. Each assembly delegated its powers to a judicial committee composed of its own members, who acted in behalf of the whole court. The representa- The “judi tives, or "judices," so chosen, whose number seems to have ces." been always twelve or some multiple of twelve, probably acted under the advice of the presiding officer, who was presumed to be familiar with all the old customs. Illustrations of this principle of delegation may be found in the twelve judges elected in the shire court of Cambridge to confirm with their oaths a decision previously rendered in the same court in a case between the Bishop of Rochester and the Sheriff of Cambridge;5 in the twelve senior thegns who appear as a representative body in the courts of both the shire and hundred; and in the twenty-four "judices "7 or the 6 Probable origin of jury of pre sentment. Origin of the trial jury. Archaic legal procedure. thirty-six "barons "1 who were chosen in the East Anglian county courts to determine the suits of Ramsey and Ely. The twelve senior thegns seem, however, to have represented the hundred or wapentake for a special purpose. Æthelred's law provides "that a gemot be held in every wapentake; and the XII senior thegns go out, and the reeve with them, and swear on the relic that is given them in hand. that they will accuse no innocent man, nor conceal any guilty one." The most competent critics seem to regard the twelve thegns, not as "judices," but as inquisitors of all crimes committed within the hundred to which they belong; and, as such, they probably represent the earliest form of the criminal jury of presentment.2 But it must not be for one moment supposed that, in the representative body of "judices" to whom the judicial powers of the popular courts were sometimes delegated, there can be discovered the beginning of the trial jury, which has its origin in an entirely different source. What that source is, cannot be discovered without a brief examination of the archaic forms of Old-English legal procedure. The modern suit represents a syllogism in which the body of judicial rules are the major, and the declaration of facts the minor, premise: the primitive Teutonic suit was a simple demand made by the actor on the defendant for compensation. To such a demand, which was made in a solemn traditional form, the defendant opposed an equally solemn contradiction. The demand and denial, which made up the issue, were uuattended by any allegations of fact in support of either.5 The vitally rum coram XXIV judicibus." Hist. 68, 69. Konrad Maurer holds that "XXXVI barones de amicis utriusque partis pari numero electos ipsi judices constituerunt.". Ibid., p. 471. See Stubbs, Const. Hist., vol. i. p. 103, and note 5; Forsyth, Trial by Jury, pp. 58, 59. 2 Forsyth (Trial by Fury, p. 57) holds this view, and cites in support of it Palgrave, English Commonwealth, vol. i. P. 213. Bishop Stubbs assents with his usual caution. Const. Hist., vol. i. pp. 103, 115, 396, 611, 618. This probable view is also adopted by Sir James Fitz-James Stephen, Hist. of Crim. Law (London, 1883), vol. i. pp. Ethelred's law only related to the Danelagh, and that it is in full accord with Scandinavian law. Krit. Ueberschau, v. p. 389, note 2. This interpretation of the passage is disputed, however, by Brunner, Die Entstehung der Schwurgerichte, pp. 402, 404. 8 Essays in A. S. Law, p. 183. 4 Brunner, Schwurg., p. 44. 5 "He (defendant) did not oppose the facts on which the plaintiff rested his claim, since the plaintiff brought forward no such facts; he only attacked the assertion that he was indebted."Essays in A. S. Law, p. 194. important point in the procedure, which was conducted throughout with an iron rigorism of form,1 was the question. of proof. How the proof should be given, and who should give it, were matters settled by the judgment, which was not only rendered before the taking of the proof, but in it was declared what would happen after its completion.2 The strange inversion of ideas involved in the rendition of the judgment before the taking of the proof can be explained, however, by the fact that proof, as understood by the Teu- Teutonic tonic barbarian, was not a judicial means of bringing convic- of proof. conception tion to the mind of the court; it was simply a satisfaction due and given by the party to his adversary in the form prescribed by custom. It was no part of the business of the court to weigh the proof; it simply declared who should give it, and in what manner, and then what the judgment would be after its completion. Three independent means of proof were Three indeallowable, oath, ordeal, and documents. The oath, which pendent the party having the right of proof swore in his own behalf, proof, could be accompanied or supported, (1) by the oaths of com- deal, and purgators, or oath-helpers; (2) by the oaths of witnesses. After the party making the proof had sworn to his demand, his oath-helpers swore to their belief, not in their chief's as-" sertion, but in his credibility. The witness-proof by which a party could support his assertion was drawn either from transaction or community witnesses. Transaction witnesses, Transac which existed in Old-English law as in all the folk laws, were nesses. official persons appointed to witness such business transactions as sales, gifts, exchanges, and the like. By Eadgar's 1 Brunner, Entstehung der Schwurgerichte, p. 44. 2 Ibid., pp. 45, 46; Siegel, Gerichtsverfahren, p. 148. "It follows that in the barbarian form of proof by witnesses, which was merely one particular kind of proof, as ordeal was another, the producer of the witnesses proposed not in the least to convince the tribunal of his own good right, but simply to produce the fixed number of witnesses according to the customary form, and these witnesses were to corroborate by oath the theme or statement prescribed for them in the previous judgment which had ordered the proof."— North American Review, July, 1874, pp. 219, 220. means of oath, or documents. tion wit Community witnesses. proof introduced by the Nor mans. law, a given number of such witnesses were appointed in each burg and hundred.1 Community witnesses were such persons as could testify concerning circumstances, long-continued relations, and occurrences known to them as neighbors, or members of the community. This class of witnesses, who were chiefly em ployed in actions relating to real estate and status, acted in a representative capacity; they declared the witness of the community in support of the assertion of the party by whom Inquest of they were produced. After the system of inquest by proof (inquisitio per testes), which the Normans introduced into England under the name of assizes, became employed in legal contests between private individuals as to the possession of land, the community witnesses appear as the sworn recognitors of the assize. But they appear in a somewhat changed relation they no longer depose to the single assertion of their chief to which they were confined by the customary law; they declare the witness of the community as to the whole truth within their knowledge, in response to questions propounded to them by the judge charged with the execution of the inquiry. The conclusion is now firmly established, that out of the inquest of proof, which was chiefly employed in judicial matters in suits relating to rights in land, was developed by the lawyers of the Plantagenet period the jury of judgment, the trial jury of modern times.1 that the idea of the latter was derived from the former. In both cases the verdict was the testimony of witnesses cognizant of the matter in dispute; and if we substitute a determinate number of knights for the probi homines of an ordinary inquest, we have at once the assize.' - Forsyth, Trial by Jury, p. II2. 4 66 Henry II. expanded and consolidated the system so much that he was not unnaturally regarded as the founder of it in its English character."-Stubbs, Const. Hist., vol. i. p. 614. The system of inquests by sworn recognitors has been directly traced to the Frankish Capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian Code. — Ibid., p. 613; Spence, The Equitable Jurisdiction, vol. i. p. 178; Palgrave, Eng lish Commonw., p. 271; Brunner, Schwurg,, p. 87. |