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CHAPTER VI.

TRIAL BY JURY.--THE HIGH COURT OF STAR-CHAMBER.-.

SLAVERY IN ENGLAND.

OBSERVATIONS ON THE PERIOD FROM EDWARD I. TO THE STUARTS ESSENTIAL FEA

TURE OF THE JURY TRIAL-THE ROMAN JURY TRIAL-PECULIARITY OF THE

ENGLISH JURY TRIAL-ITS ORIGIN IN THE SAXON COURTS-COMPURGATORS

RECOGNITORS-TRIAL BY PEERS IN MAGNA CHARTA-WITNESSES CALLED IN AID
OF JURORS UNDER EDWARD III.MODERN CONSTITUTION OF THE JURY SETTLED
UNDER HENRY IV. - SUBSEQUENT CHANGES-BLACKSTONE ON THE JURY TRIAL
-COURT OF STAR-CHAMBER-ITS ORIGIN-HOW SETTLED UNDER HENRY VII.-
ITS JURISDICTION UNDER HENRY VIII.-HISTORICAL DISCUSSION-MODE OF PRO-
CEDURE-ITS ABUSES AND EFFECTS-CIVIL JURISDICTION OF THE STAR-CHAN.
BER-ITS ENORMITIES DESCRIBED BY CLARENDON-OBSERVATIONS-SAXON
SLAVERY IN ENGLAND-GENERAL REMARKS ON SLAVERY-ACCOUNT FROM HAL-

LAM OF ITS GRADUAL DISAPPEARANCE IN ENGLAND-CONCLUSION.

The constitutional history of England, from the reign of Edward I. to that of James I., hardly falls within the scope of the present volume. Our object is to trace the gradual recognition of rights, and the still more gradual development of constitutional contrivances for their protection. The period just indicated was preëminently barren in such matters. The rights of English subjects may be fairly taken to have been completely recognized by the statute de tallagio ; and, from the epoch of the settlement of Parliament on its present basis, no change of importance took place in the English constitution. Such changes as occurred were merely local peculiarities, embodying no principle, and developing no general truth. They are therefore not within the scope of a work which aims at utility to the American citizen, rather than the enlightenment of the laborious student in English jurisprudence.

Yet the period which intervened between the two reigns above

mentioned, is by no means the least interesting to the student, Throughout the whole of it we see the doubtful struggle of free institutions for existence. We behold a Parliament at one time so strong and so conscious of its strength, as to depose the sovereign of the country from his kingly office, and change the succession to the crown;' and at another, we behold the same great council stooping from its high prerogative, to become the servile register of kingly proclamations, legalizing, in advance, the acts of royal tyranny:' and it is startling to observe that at the very time when knowledge was increasing, and a right conception of the true foundation of all government was becoming most clear, the nearest approach to despotism was made by English monarchs. Of the line of princes who have governed England, from the Conqueror down, none have been more completely arbitrary in their sway than the Tudors. Yet it is precisely in their reigns that the most rapid strides were made in knowledge, and that the clearest expositions of the rights of subjects were produced. No one since the time of Hooker, has excelled that writer in the clearness of his views on government; yet his writings were produced under the arbitrary reign of Elizabeth."

But neither do we propose to enlarge on these apparently paradoxical phenomena. There is, however, one great institution which attained nearly its present form during this period, and which, from its immense importance, we conceive it necessary to trace through the various phases of its history. We mean TRIAL BY Jury. And there are two other English institutions to be named hereafter, from which we believe important lessons may be learned ; and for a sketch of which we think the present is the proper place. But first of Juries.

I. The essential feature of the Jury Trial is that it provides two judges, one of whom decides the law in the particular case to be determined, while to the other is reserved the duty of pronouncing on the facts, and rendering a final judgment thereupon according to the law as it has been previously expounded. This, we say, is the essential feature of the Jury Trial, separated from the adjuncts which have been connected with it in the common law of England and the United States; and this separation of the trial of the law from the trial of the facts, conducing as it obviously does to equity in judicial procedures, is by no means novel in the history of jurisprudence.

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Among the Romans, the trial of a cause was first held before the Prætor. To him the prosecutor stated his case without any evidence of its truth : the defendant in like manner made his answer; and the Prætor then stated the law in the case. With the truth or falsehood of the statements made by prosecutor and defendant, the Prætor had no concern whatever. He simply cited the law to show what would be the legal decision of the cause if the facts were as had been alleged on either hand. This was called the trial in jure, or trial of the law. On its conclusion the cause was committed to a court of jurors (judices), for decision by a trial in judicio, or final judgment of the facts ; which ended the proceedings. How the Roman judices were selected is not altogether certain. It appears, however, that they were a body of official persons from whom details were made for the trial of particular cases. Nor is the number of the jurors known. But it is probable that it was varied according to the importance of the cause to be decided. This mode of trial was the ordinary mode among the Romans. Extraordinary trials were occasionally held-perhaps at the pleasure of the parties to the suit-in which the whole matter was left to the Prætor, who then pronounced the law, decided on the facts, and rendered judgment. Under the emperors, as might have been anticipated, the principle of consolidation, which was so triumphant in the executive and legislative powers, was soon extended to the judicial. The office of the judices fell into disuse ; the extraordinary trial by the Prætor, became the ordinary course of justice; and the Roman jury trial—for so it may with perfect truth be called -was utterly abolished. Despotism has little love for juries.

The peculiar feature of the English jury trial, is the choice of jurors from the whole body of freemen, dwelling within the jurisdiction of the court which tries the cause; and this, which is in fact the greatest safeguard of the citizen against the arbitrary despotism of executive authority, is the legitimate outgrowth of the Saxon system.

We have already described (chap. I.) the folk. courts of the Saxons in their hundreds and counties, in which the

assembled freemen of the district decided both the law and facts of the causes brought before them, and the ealdorman, though he no doubt instructed and advised them, bad no power to force or alter their decision. These courts were unquestionably common to all the Germanic tribes who founded kingdoms in the middle and southern parts of Europe at the fall of the empire. The Arimanns among the Franks, the Rachinbourgs among the Lombards, and the boni homines among all the tribes, had originally, no doubt, the same institutions, and the same privileges as the freemen of the Anglo-Saxons of England. And if it be asked why the jury trial should have grown up step by step in England to its present form, while no such institution has arisen on the Continent, the answer is an obvious one. For on the Continent, the German conquerors fell very shortly into the legal system of the Roman colonists they had subdued, and hence the code and practice of the imperial courts came to be very generally substituted for the rude methods of administering justice they had hitherto pursued. In England, on the contrary, the Roman laws could have no influence upon the Saxons. England had been totally deserted by the Romans, and the aboriginal inhabitants were so completely subjugated by the invaders that the greater part took refuge in the fastnesses of Wales, where they maintained a savage independence till the reign of Edward I., and those who still remained among the invaders were reduced to abject slavery. Before the Saxon tribes in England every vestige of the Roman government and jurisprudence disappeared; and in respect to juries and all other matters the folk courts were left to follow out their course of natural development. It may be well to state, in this connection, that the development of jury trial in England was but hindered by the Norman conquest. For though the feudal courts held by the lords among their vassals must have had a much more extensive jurisdiction than the like courts of the Saxon earls among the ceorls belonging to their mound, yet the folk courts were not by any means abolished. On this subject we have spoken in a former chapter. We shall now proceed to trace the steps by which the tumultuous jury of the Saxon folk courts gradually formed itself into the modern English and American jury.

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Among the Germanic tribes the ordinary way of settling ques. tions was originally by means of conjurators or compurgators, a method concerning which there has been and still is much controversy. According to some writers, and among them a no less authority than Mr. Sharon Turner, the compurgators—whose number varied with the importance of the case-were essentially a committee of the folk court empowered regularly to try the cause, to hear the testimony brought by the parties, and to render a judicial verdict. If this view of the case be true, these compurgators lacked but one particular of being identical with our own jurors; and indeed the parties who sustain it, further hold that at the period of the conquest, jury trial was already as completely perfected among the Saxons as it is among ourselves. Of this, to say the least, there must be very grave doubts; and the evidence adduced in proof of it is not sufficient to sustain the theory. But neither, on the other hand, is there sufficient evidence adduced by their opponents in the opposite extreme. These men affirm that compurgators, so far from being jurors, were not even witnesses of facts, but persons who, without the slightest knowledge of the facts, might be brought forward either by the plaintiff or the defendant to swear to their belief of the probability or improbability of the complaint or charge made. And it is further maintained that the decision of the cause was given to the party who produced the greater number of compurgators, or whose compurgators were of higher rank than those of his opponent. It is difficult to believe that any system so absurd could have prevailed in any country; and although it would appear that some such system did for a time prevail among the Frankish tribes, analogy is not enough to prove that it was ever settled as an institution among the Saxons. Truth lies probably between the two extremes of these opinions. It is likely that the oaths of compurgators, intimately acquainted with the parties to the cause, had great weight with the voters in the folk courts, especially as it was always probable that they would have a knowledge of the cause at issue, and that witnesses for either party would be sought by him among his compurgators. But it is not likely that the testimony of witnesses was disregarded or excluded,

Be this as it may, the functions of the compurgators were speed

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