be present at the masses in the mean time, and make his offerings and receive the holy sacrament on the day of his going through the ordeal; and he should swear, that with folc-right he was guiltless of the accusation before he went to the ordeal. If the trial was the hot water, he was to plunge his arm halff-way above the elbow on the rope. If the ordeal was the iron, three days were to pass before it was examined. They who attended were to have fasted, and not to exceed twelve in number of either side; or the ordeal was to be void unless they departed (1).

A thief found guilty by the ordeal was to be killed, unless his relations redeemed him by paying his were, and the value of the goods, and giving borh for his good behaviour (2).

The command of the ordeals must have thrown great power into the hands of the church; and as in most cases they who appealed to them did so from choice, it is probable that whoever expressed this deference to the ecclesiastical order were rewarded for the compliment, as far as discretion and contrivance would permit.

The ordeal was a trial, not a punishment. The most popular of the legal punishments were the pecuniary mulcts. But as the imperfection and inutility of these could not be always disguised as they were sometimes impunity to the rich, who could afford them, and to the poor, who had nothing to pay them with, other punishments were enacted. Among these we find imprisonment (3), outlawry (4), banishment (5), slavery (6), and transportation (7). In other cases we have whipping (8), branding (9), the pillory (10), amputation of limb (11), mutilation of the nose and ears and lips (12), the eyes plucked out, hair torn off (13), stoning (14), and hanging (15). Nations not civilized have barbarous punishments.

In considering the origin of the happy and wise institution of the ENGLISH JURY, which has contributed so much to the excellence of our national character, and to the support of our constitutional liberty, it is impossible not to feel considerable diffidence and difficulty. It is painful to decide upon a subject on which great men have previously differed. It is peculiarly desirable to trace, if possible, the seed, bud, and progressive vegetation of a tree so beautiful and so venerable.

It is not contested that the institution of a jury existed in the time of the Conqueror. The document which remains of the dispute between Gundulf, the bishop of Rochester, and Pichot, the sheriff, ascertains this fact. We will state the leading circumstances of this valuable account.

The question was, Whether some land belonged to the church or to the

(1) Wilkins, p. 61.

(2) Ibid. p. 65. For the ordeal of other nations, see Muratori, v.; and Du Cange.

Sax. Chron.
(7) Ibid. p. 12.

(10) Ibid. p. 11. 75. 54.
(13) Ibid.

(15) Ibid. p. 18. 70. 139.

p. 138.

king? "The king commanded that all the men of the county should be gathered together, that by their judgment it might be more justly ascertained to whom the land belonged." This was obviously a shire-gemot.

:

"They, when assembled, from fear of the sheriff, affirmed that the land was the king's but as the bishop of Bayeux, who presided at that placitum, did not believe them, he ordered, that if they knew that what they said was true, they should choose twelve from among themselves, who should confirm with an oath what all had declared. But these, when they had withdrawn to counsel, and were there harassed by the sheriff through his messenger, returned and swore to the truth of what they asserted."

By this decision the land became the king's. But a monk, who knew how the fact really stood, assured the bishop of Rochester of the falsehood of their oath, who communicated the information to the bishop of Bayeux. The bishop, after hearing the monk, sent for one of the twelve, who, falling at his feet, confessed that he had forsworn himself. The man on whose oath they had sworn theirs, made a similar avowal.

On this the bishop "ordered the sheriff to send the rest to London, and twelve other men from the best in the county, who confirmed that to be true which they had sworn."

They were all adjudged to be perjured, because the man whose evidence they had accredited had avowed his perjury. The church recovered the land; and when "the last twelve wished to affirm that they had not consented with those who had sworn, the bishop said they must prove this by the iron ordeal. And because they undertook this, and could not do it, they were fined three hundred pounds to the king, by the judgment of other men of the county (1)."

By this narration, we find that a shire-gemot determined on the dispute, in the first instance: but that in consequence of the doubts of the presiding judge, they chose from among themselves twelve, who swore to the truth of what they had decided, and whose determination decided the case.

The jury appears to me to have been an institution of progressive growth, and its principle may be traced to the earliest Anglo-Saxon times. One of the judicial customs of the Saxons was, that a man might be cleared of the accusation of certain crimes, if an appointed number of persons came forward and swore that they believed him innocent of the allegation. These men were literally juratores, who swore to a veredictum; who so far determined the facts of the case as to acquit the person in whose favour they swore. Such an oath, and such an acquittal, is a jury in its earliest and rudest shape; and it is remarkable that for accusations of any consequence among the Saxons of the Continent, twelve juratores were the number required for an acquittal. Thus, for the wound of a noble, which produced blood, or disclosed the bone, or broke a limb; or if one seized another by the hair, or threw him into the water; in these and some other cases twelve juratores were (2) required. Similar customs may be observed in the laws of the Continental Angli and Frisiones, though sometimes the number of the jury or juratores varied according to the charge; every number being appointed from three to forty-eight (3). In the laws of the Ripuarii, we find that in certain cases the oaths of even seventy-two persons were necessary to his acquittal (4). It is obvious, from their numbers, that these

(1) Thorpe, Regist. Roffen. 32.

(3) Lind. Lex. Angli, 482, and Lex. Fris. 490.

(2) Lindenborg. Leg. Sax. p. 474.
(4) Lind. Lex. Ripuar. p. 451.

could not have been witnesses to the facts alleged. Nor can we suppose that they came forward with the intention of wilful and suborned perjury. They could only be persons who, after hearing and weighing the facts of the case, proffered their deliberate oaths that the accused was innocent of the charge. And this was performing one of the most important functions of our modern juries.

In the laws of the Alemanni, the principle appears more explicitly; for in these the persons who are to take the oath of acquittal are called nominati, or persons named. And in the case of murdering the messenger of a dux, the juratores were to be twelve named and twelve elected (1). This named and elected jury seems to approximate very closely to our present institution.

In referring to our own Anglo-Saxon laws, we find three jurators mentioned in those of the kings of Kent, in the latter end of the seventh century. If a freeman were accused of theft, he was to make compensation, or to acquit himself by the oaths of four rim æwda men. These words are

literally "the number of four legal men," or "four of the numbered legal men (2)." In either construction they point to a meaning similar to the nominati in the laws of the Alemanni; that is, persons legally appointed as jurators.

The principle of an acquittal by the peers of the party accused appears in the laws of Wihtræd, where the clergyman is to be acquitted by four of his equals, and the ceorlisc man by four of his own rank(3).

An acquittal from walreaf, or the plunder of the dead, required the oaths of forty-eight full-born (4) thegns. These, of course, could not be witnesses. They must have been a selection of so many in the shire-gemot, who, on hearing the facts of the accusation, would, upon their oaths, absolve the accused. And what is this but a jury? The Danish colonists probably used it.

In the treaty between Alfred and Guthrun, more lights appear: "If any accuse the king's thegn of manslaughter (manslihtes), if he dare absolve himself, let him do it by twelve king's thegns. If the accused be less than a king's thegn, let him absolve himself by eleven of his equals, and one king's thegn (5)." Here the number of twelve, and the principle of the peers, both appear to us.

Something of the principle of a jury appears to us in these laws: "If any one takes cattle, let five of his neighbours be named, and out of these let him get one that will swear with him, that he took it to himself according to folc-right; and he that will implead him, let ten men be named to him, and let him get two of these and swear that it was born in his possession, without the rim æthe, the oath of number, and let this cyre oath stand above twenty pennies.

"Let him who prays condemnation for a slain thief get two paternal and one maternal relation, and give the oath that they knew of no theft in their kinsman, and that he did not deserve death for that crime; and let some twelve go and try him (6)."

This passage seems to have an allusion to this subject:

"Let there be named, in the district of every gerefa, as many men as

(1) Lind. Lex. Aleman. p. 370, 371.

(2) Leg. Hloth. Wilk. p. 8.

(4) Leg. Inæ. Wilk. p. 27.

(3) Leg. Wiht. Wilk. p. 12.

(5) Wilk. p. 47.

(6) Wilk. p. 58.

are known to be unlying men, that they may witness every dispute, and be the oaths of these unlying men of the value of the property without (1) choice." These men, so named, may have been the rim æwda men noticed before.

"If any kill a thief that has taken refuge within the time allowed, let him compensate for the mund byrde; or let some twelve absolve him that he knew not the jurisdiction (2).”

This injunction seems also to provide a jury: On an accusation of idolatry or witchcraft, "if it be a king's thegn who denies it, let there be then named to him twelve, and let him take twelve of his relations, and twelve strangers: and if he fails, let him pay for the violation of the law, or ten half marcs (3)." This seems a jury: twelve persons were to be appointed, and he was to add twelve of his kinsfolks; and this law concerning Northumbria, where they were chiefly Danes, as many foreigners were to be added. If they absolved him, he was cleared; if not, he was to be mulcted. It is one of the rules established concerning our jury, that a foreigner has a right to have half of the jury foreigners.

The following law of Ethelred has the same application:

"Let there be gemots in every wapentace; and let twelve of the eldest thegns go out with the gerefa, and swear on the relics, which shall be given into their hands, that they will condemn no innocent man, nor screen any that is guilty (4)." This passage seems to have no meaning but so far as it alludes to a jury.

Two other laws are as applicable: "If any be accused that he has fed the man who hath broken our lord's peace, let him absolve himself with thrinna twelve, and let the gerefa name the absolving persons; and this law shall stand where the thegns are of the same mind. If they differ, let it stand as eight of them shall declare (5)." This is surely a jury, of whom eight constituted the legal majority.

There is another passage, in the laws made by the English witan and the Welsh counsellors, which bears upon this subject: "Twelve lahmen, of whom six shall be English and six shall be Welsh, shall enjoin right. They shall lose all that they have if they enjoin erroneously, or absolve themselves that they knew no better (6). '

On the whole, it would seem that the custom of letting the oaths of a certain number of men determine legal disputes in favour of the person for whom they swore, was the origin of the English jury. It was an improvement on this ancient custom, that the jurators were named by the court instead of being selected by the parties. It was a further progress towards our present mode of jury, that the jurators were to hear the statements of both parties before they gave their deciding veredictum, or oath of the truth. While the ordeals were popular, the trials by jurators were little used; but as these blind appeals to Heaven became unfashionable, the process of the legal tribunals was more resorted to, and juries became more frequent (7).

(1) Wilk. p. 62.

(2) Ibid. p. 63.
(5) Ibid. p. 118.

(3) Ibid. p. 100. (6) Ibid. p. 125.

(4) Ibid. p. 117. (7) The following passage in the old law-book, the Mirror, shows that jurors were used in the time of Alfred. It says of this king, “Il pendist les suitors d'Dorcester, pur ceo que ils judgerent un home a la mort per jurors de lour franchise pur felony que il fist; en le forrein et dount ils ne puissent conustre pur la forrainte." p. 300. See a notice of what Alfred is stated to have done with respect to such jurors or jurymen in the second volume of this history, p. 97.

The excellence of the English trial by jury seems to arise from the impartiality of the sheriff in summoning a sufficient number of jurors; from their being indifferently called and put on the trial at the time of the causecoming on; from their having no interest or prejudices as to the matter in decision; from their habits of serving on juries; from their general good meaning and common sense; from a fair sentiment of their own importance as judges of the fact of the case; from their moral sense of their own duties as a jury; from a conscientious desire of doing right between the parties ; from an acuteness of mind which prevents them from being misled by declamation; from the respectful attention to the observations and legal directions of the presiding judge; and from a general acquaintance of the rules of wrong and right between man and man. These qualities cannot be attained by any country on a sudden; our population has been educated to these important duties by many centuries of their practical discharge, and therefore it will be long before either the juries of Scotland, France, Spain, or Germany can equal the English in utility, efficiency, judgment, or rectitude.