of proof was added to the ancient procedure: to the four exproof added isting methods of proof the Normans added trial by battle. A new means of by the Normans. How the form of termined. After this innovation the issue was made up and the proofjudgment rendered as before, and in such judgment the court determined as of old, according to the circumstances of each particular case, whether the trial should be had by compurgation, by witnesses, by documents, by the ordeal, or by battle. It was not, however, within the arbitrary discretion of the trial was de- judges to order such a trial as they saw fit; as a general rule the party who had made the last good pleading was entitled to ask the court for a judgment according to law as to the form of trial to be followed. With the foregoing statement of the scheme of procedure which prevailed in the popular courts down to and after the Norman conquest clearly in view, it will be possible to explain with greater clearness how still another method of proof - afterwards known as trial by jury struggled into view, and finally superseded all other methods of proof known to the customary law. The origin and growth of this new method of proof will be considered in the following sections. Origin and history of juries. The historical origin of trial by jury-an institution which reached its full development only upon the soil of England has been examined from every possible point of view by scholars who represent the leading nationalities of the world.2 By these various inquirers the origin of the institution has been traced to every source which hypothesis or analogy could plausibly suggest. The fruit of this investigation, carried on for so long a time and by so many hands, has finally expanded into a great literature, the mass of which has been. rendered practically worthless through the results of the latest research. Not until a very recent period was the thread of truth discovered which has led to the removal of the endless difficulties and confusions which at one time arose out of the application to the history of the jury of a mass of false and misleading analogies. But even now that its true history has been fully worked out, and the several stages of 1 Upon this whole subject, see Bigelow, Hist. of Procedure, ch. viii., "The Medial Judgment." See, also, p. 301. 2 For a catalogue of the works which have been written by authors of various nationalities upon the history of juries, see Brunner, Die Entstehung der Schwurgerichte. product of of Old-Eng. Norman its historical development clearly defined, it is still difficult to unfold, within narrow limits, the processes of thought through which the final result was at last attained. Upon the thresh- The trial old of the inquiry let the conclusion be accepted that the jury the jury of judgment, the trial jury of modern times, has been the union slowly developed upon English soil out of the fusion of two lish and distinct elements, one of which can be traced to Old- elements. English, the other to Norman law. In order, therefore, to solve the problem involved in the historical development of the jury, we must first ascertain the origin and character of the elements out of which it arose; next must be examined the process through which these elements were blended; and finally the after-growth of the new creation. Before attempting, however, to trace the elements of the jury to the sources from which they were drawn, it may be helpful to emphasize the fact that, down to about the middle of the fifteenth century, jurors, in all the changing relations which they were Jurors originally called upon to assume, were simply witnesses and nothing witnesses more; whatever report or verdict they made upon their oaths was based, not upon the testimony of witnesses other than themselves, but upon what they derived from their own personal knowledge or from reliable report. Not until after jurors were relieved of their early character as witnesses did they assume the character of judges, who were no longer required to furnish proof, but simply to pronounce judgment upon proof brought before them. The historical develop- History of ment of the jury may therefore be divided for convenience the jury di into two epochs; the first embracing the period in which the two epochs. jurors were mere witnesses, the second embracing the period in which they became judges of facts established in their presence, without reference to their previous knowledge of The history of the jury, in the first period of its development, involves then an examination of the process by which definite issues of fact came to be submitted to organized bodies of witnesses whose unanimous deposition or report as to the fact in question was conclusive of it. the case. The fact has been heretofore explained that proof by wit 1 "That institution (the modern jury) was purely Norman-English, having come by direct lineage from the inquisition procedure introduced from Normandy by William the Conquer- 334. 2 See above, p. 310. and noth ing more. vided into The barbaric theory of proof. swore only to the assertion of their chief. nesses was one of the four leading methods of proof known to the customary law. Such proof, in the form in which it appeared in the archaic procedure, does not satisfy, however, the modern conception of legal testimony. The witnesses of the customary law could only appear before the court when produced by the party required to make proof, and Witnesses when thus produced they swore only to the truth of the assertion made by their chief; they were neither required nor allowed to respond to interrogatories propounded either by the parties, or by the court itself. Their testimony was offered in obedience to that barbaric theory which regarded the proof given in a cause, not as a means of bringing conviction to the mind of the court, but as a satisfaction due to the adversary in the forms prescribed by custom. The witnesses known to the Old-English customary law embraced two distinct classes, - transaction witnesses, who were in the nature of official persons appointed in every town and hundred to witness sales, gifts, exchanges, and the like; and Community community witnesses. The latter class, whose very name goes far to explain their real character, were persons selected from the community or neighborhood who, by their long acquaintance with the locality, could testify as to long continued relations, circumstances, and occurrences known to them as neighbors, or members of the community. Such witnesses were chiefly employed in causes touching the relationship or status of an individual, or in suits in which the right to They spoke land was in question. And although such witnesses were the voice of party witnesses, that is, witnesses produced by the party to whose assertion they swore, still the assertion made by them derived its force from the fact that it embodied the voice or knowledge of the community as to the particular Transaction witnesses. witnesses. the community as to the fact in question. 1 See above, p. 205. 2 Brunner, Schwurg., pp. 50-53; Essays in A. S. Law, pp. 186, 187. "It follows that in the barbarian form of proof by witnesses, which was merely one particular kind of proof, as the 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 Amer ican Review, No. ccxliv. (July, 1874), Pp. 219, 220. 4 Eadgar's Laws, iv. 4, 5, 6; Æthelstan, v. 1, § 5; Forsyth, Trial by Jury, PP. 84, 85. 5 Brunner, Schwurg., pp. 50-53; Essays in A. S. Law, pp. 186, 187; Bige low, Hist. of Procedure, p. 309. fact or right in question.1 If this idea is kept steadily in view, it will be possible to distinguish this important class of witnesses through all the changes of form and of name through which they pass. The principle that disputed questions of fact should be determined by the voice of sworn witnesses taken from the neighborhood survived the Norman conquest, and under the organizing hands of the conquerors this form of proof was cast into a more definite and formal shape, and was at the same time emancipated from much of the rigorous formality which had surrounded it in the primitive system. After the Conquest the community witnesses Community of the customary law were brought into contact with, and after the incorporated into, a new scheme of proof,—the inquisitio Conquest. per testes, an instrument of royal law whose introduction into England can be traced directly to a Norman source. witnesses sitio per Normans Franks, from the Code. Theodosian No trace of the inquest of proof (inquisitio per testes) can The inqui be found in Old-English legal procedure; it was purely a testes deNorman innovation, but by no means a Norman invention. rived by the It is admitted on all hands that the inquisitorial system was introduced into England by the Normans, who derived it from the directly from the Frank Capitularies, into which it was prob- who prob ably adopted from the fiscal regulations of the Code of Theo- ably took it dosius, a code which in 438 was promulgated as law in both the Eastern and Western Empires.5 The inquest of proof, in the form in which it appeared in the Frank system, consisted of the instructions or special commissions issued by the kings to their missi, or royal commissioners, commanding them to make special inquiry into fiscal and judicial matters by the oaths of sworn witnesses in the local courts. An inquisition pure and simple was an official inquiry instituted by royal authority, and executed by a judge or other royal 1 "The testimony of the neighborhood was appealed to for the purpose of deciding questions which related to matters of general concern." - For syth, Trial by Jury, p. 92. 2 "From this class of proof (com munity witnesses) arose the 'inquisitio per testes' in the Norman period, and the jury of English law." - Essays in A. S. Law, p. 187. 3 Brunner, Zeugen und Inquisitionsbeweis, p. 41. 4 Brunner, Schwurg., p. 87, citing Cod. 5 Cf. Smith's Dictionary of Greek 6 The roots of the Frankish inquest of proof "are not to be found in the customary or folk law; it is a creation of new or royal law."-North American Review, July, 1884, p. 220. An inquisi- officer in a local court through the oaths of sworn witnesses tion a royal inquiry ex- who responded to interrogatories propounded by the judge ecuted in a himself. As to the number of witnesses, the judge could through the use his own discretion; according to the sources, the number witnesses. varied between two and five hundred. As every qualified local court oaths of between customary witnesses and those of the inquest. member of the community was a member of the local court, the answers of the representative witnesses selected by the officer charged with the execution of the inquiry embodied the knowledge or belief of the community itself. But this method of proof, which was a creation of new or royal law, differed radically from the witness proof which existed in the old customary or folk law. The customary witnesses were narrowed down by a rule which required that they should swear only to the assertion of their chief; while the witnesses of the inquest were emancipated from the old rigor of form, and were sworn to answer all such questions as the judge Difference should propound. The customary witnesses were jurors, the witnesses of the inquest were jurati. The Frankish inquest of proof found in Normandy a soil favorable to its development. It was in use in the duchy before the Conquest,2 and it was there applied to both fiscal and judicial purposes. The evidence is abundant to show that the inquest of proof was a favorite instrument of law in the hands of the Conqueror which he frequently applied to the transaction of both fiscal and judicial business. The most comprehensive application ever made of the principle, perhaps, was made by Domesday William in the taking of the Domesday Survey,3 which is nothing but the fruit of a general inquiry conducted by royal commissioners into the condition of every part of the kingdom, in order to ascertain "how it was set and by what men." The commissioners went into every shire, and before them came representatives from every hundred and from every township. Upon the deposition or verdict of these representative jurors, together with the depositions of the the result of a vast royal inquest. 1 Brunner, Schwurg., p. 85. 2 Brunner, Schwurg., pp. 84, 381, 382. But it was in England only that the system reached its full development; the witnesses of the Frankish inquest were never transformed in Normandy into the jury of judgment, the trial jury of modern times. After the union of Normandy with France, proof by inquest disappeared, little by little, until it finally became extinct in Normandy, as in the rest of France. 3 Stubbs, Const. Hist., vol. i. p. 385, 611; Freeman, Norm. Cong., vol. iv. p. 470, vol. v. p. 303. |