« ForrigeFortsett »
ily determined, and ere long we find them under the new appellation of recognitors. These were persons chosen from the neighborhood of the matter to be tried-generally twelve or some multiple of twelve-whose office it was to decide the cause from their own knowledge, and from the information they were able personally to give each other. As they were themselves chosen on account of their acquaintance with the litigants and the matters in litigation, they heard no witnesses, and received no allegations, but in cases of doubt they were required to state the ground on which they rendered their decision or verdict (rere dictum), which was always given on oath. When these recognitors were first employed is doubtful. Some would fix the date long before the conquest, others not till afterward. In this case likewise the truth probably lies between. There is no date at which this step toward jury trial was universally made. It was adopted doubtless by some shire and hundred motes long before the conquest, but it probably did not become a universal institution before a later date ; and it is not before the period of the Norman reigns that we have documentary proof that it had been accomplished—a circumstance at which we cannot be surprised when we consider the destruction of the Saxon monuments and records which was made by the Conqueror.
From the date of Magna Charta we have little difficulty in tracing the remaining steps of jury trial. When it had been decreed that no freeman should be taken or imprisoned, or dispossessed, or banished, or in any way destroyed, but by the lawful judgment of his peers, it could not but be that a people jealous of its rights, and daily growing in enlightenment and civilization, should improve upon the rude contrivances of an epoch less advanced in knowledge, and as yet untrained by wrongs to guard their rights.
It was an obvious defect in the system of recognitors, that they were not permitted to call witnesses to their assistance; and in the reign of Henry III., we find that witnesses on either side were joined with the recognitors, in one body, for the trial of the cause. This constitution of the jury must undoubtedly have been often perverted to injustice in a manner that would naturally suggest its own remedy.
Accordingly, in the reign of Edward III., A. D. 1350, witnesses were called in aid of the recognitors, to whom they gave their testimony. They were not, however, joined with them, and took no part in their decision. Here, therefore, we may join with the historian of the court of Chancery, Mr. Spencer, in saying that the jury was complete in its developments, and that it now remained only that proper regulations for its action should be framed, and due restrictions brought to bear on it for the prevention of abuses, in order to present it in that perfect form which is the pride of England and America.
And now that the recognitors were permitted to call witnesses in evidence, little was necessary to be added to the constitution of the jury trial, but that it should be protected against irregular and improper testimony, and that its proceedings should be so directed as to insure the gravity becoming in a court of justice. Therefore, in the reign of Henry IV., a most important change was made, which put the jury under the direction of the judges in open court. The witnesses were now required to give their evidence in presence of the judges, who controlled the whole proceedings of the court and jury, and rejected all such evidence as was improper to be given. Since that time witnesses have not been questioned merely by jurors, but submitted to examination by the judge, the jury, and the counsel in the cause ; so that their evidence is fairly tested in a searching cross-examination, and the court has every opportunity of judging from their manner and appearance how much credit is to be reposed in what they say. The jury trial was thus brought into its present state. The separation of the trial of the law from the trial of the facts was now complete, and while the assistance of a competent judge was afforded to the jurors to instruct them in the law and aid them in receiving testimony, the decision of the cause was not left to a single person, who might be the
corrupt appointee of an unscrupulous and arbitrary Government, but to a jury of freemen, whose interest it must be to sustain rights which were their own.
One change only remained to be made. Hitherto the jurors or recognitors had been selected from the neighborhood in which the crime had been committed, or the property in litigation lay-a provision, which, when the recognitors rendered their verdict from
personal knowledge, was essential; but which, now that more reliance was reposed in the extraneous depositions of witnesses, was likelier to cause prejudice, and a perversion of the judgment of the juror, that would lead him to give little heed to the importance of evidence produced in court, when it might happen to conflict with prepossessions of his own. To remedy this, evil—for an evil it was felt to be—"numerous partial changes were made from time to time, until, by statutes in the reigns of Anne and of George II., the rule requiring the jurors to be summoned from the vicinage was abolished, and the selection was directed to be made from the county at large. And by a decison of the court of King's Bench, it was declared that if a jury gave a verdict upon their own private knowledge, it was an error, and that they ought to have informed the court, so that they might have been sworn as witnesses. This brought trial by jury to its present perfected condition. As anciently a most careful scrutiny was made to select such men only as were familiar with the parties and the facts, the endeavor is now equally strenuous to obtain such alone as are absolutely unacquainted with the parties and circumstances of the case, and shall stand unbiassed by any preconceived opinions and prejudices.” (POMEROY's Municipal Law, p. 76.)
Thus, then, from this rapid and imperfect sketch, the reader will perceive that jury trial, like all other guarantees of human freedom, has proceeded from a slight germ through ages of progress, every step of which is marked in blood, rebellion, revolution, to that perfect consummation which it is our right now to enjoy. This venerable institution, which from the first Saxon settlement in England, to the reign of George the Second, must be counted to have passed through nearly thirteen centuries of growth-this venerable institution, cherished by our Revolutionary fathers, who declared that in these States the sacred English right of trial by jury should never be denied—this venerable institution is not merely threatened in this free (9) Republic, it is trampled under foot. And yet the people hesitate ! The writer of these pages is no party politician, but thus much a student may say even to the statesman: It is easier to pull down than to build up ! The oak that grows for ages perishes before the woodman in an hour, and liberty, which grows more slowly, perishes as quickly if the violence of arbitrary power is suffered, unrebuked, to rise against it. To the American citizen there is at present a sad warning in the termination of the first of the following glowing paragraphs from Blackstone :
“The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. A constitution that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages. And, therefore, a celebrated French writer, who concludes that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the TRIAL BY JURY.
“ Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society, but if that be entirely intrusted to the magistracy (a select body of men, and those generally selected by the prince, or such as enjoy the highest offices of the state), their decisions, in spite of their own natural integrity, will have frequently an involuntary bias toward those of their own rank and dignity; it is not to be expected from human nature that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wisely therefore ordered that the principles and axioms of law, which are general propositions, Aowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope; the law is well known and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact preëstablished. But in settling and adjusting a question of fact when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here, therefore, a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the adminstration of public justice, and prevents the encroachments of the more powerful and wealthy citizen. Every new tribunal, erected for the decision of facts, without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step toward establishing aristocracy, the most oppressive of absolute governments. The feudal system, which, for the sake of military subordination, pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege, so universally diffused through every part of it, the trial by the feudal peers. And in every country on the Continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy, in effect, has been established, though under the shadow of regal government, unless where the miserable commons have taken shelter under absolute monarchy, as the lighter evil of the two. And particularly, it is a circumstance well worthy an Englishman's observa