Page:Harvard Law Review Volume 10.djvu/176

150 150 HARVARD LAW REVIEW. THE GROWTH OF TRIAL BY JURY IN ENGLAND. THE national origin of trial by jury, its historical development, and the moral ideas on which it is founded, have all been dis- cussed by a variety of writers with the acute penetration of philo- sophical research. The foundation of the institution of trial by jury was not laid in any act of the legislature, but it arose silently and gradually out of the usages of a state of society which has for- ever passed away. 4t used to be the generally received opinion at one time that the founder of this institution was Alfred the Great; but this idea has been dispelled of recent years by an enlightened spirit of historical criticism which has been applied to the subject. Various and conflicting have been the opinions expressed by writers as to the origin of this institution, some writers even con- sidering it a hopeless task to attempt to inquire into its origin. Thus Bourguignon says, So7t origine se perd datis la nuit des temps. Blackstone, one of our great legal authorities, speaks of it " as a trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof," and he adds, " certain it is that juries were in use amongst the ear- liest Saxon colonies." Du Cange and Hickes were of opinion that it was introduced by the Normans, who themselves borrowed the idea from the Goths. Meyer, in his work on The Origin and Progress of the Judicial Institutions of Europe, looks upon the jury as partly a modification of the Grand Assize established by Henry II., and partly an imitation of the feudal courts erected in Pales- tine by the Crusaders ; and he fixes upon the reign of Henry III. as the era of its introduction into England. Reeves, in his History of English Law^ gives it as his opinion, that, when Rollo led his followers into Normandy, they carried with them this mode of trial from the North. He says that it was used in Normandy in all cases of small importance, and that when the Normans had transplanted themselves into England they endeavored to substitute it in the place of the Saxon tribunals. He therefore speaks of it as a novelty introduced by them soon after the Conquest, and says that the sys- tem did not exist in Anglo-Saxon times. Sir Francis Palgrave says