Page:Harvard Law Review Volume 10.djvu/177

151 GROWTH OF TRIAL BY JURY IN ENGLAND. 151 that a tribunal of sworn witnesses, elected out of the popular courts, and employed for the decision of rights of property, may be traced to the Anglo-Saxon times, but that in criminal cases the jury ap- pears to have been unknown until it was established by William I. Mr. Serjeant Stephen says, *' We owe the germ of this (as of so many of our institutions) to the Normans, and it was derived by them from the Scandinavian tribunals, where the judicial num- ber of twelve was always held in great reverence." Many eminent writers have strongly maintained that the English jury is of indige- nous growth, and was not derived, either directly or indirectly, from any of the tribunals that existed on the Continent. Some others have held that it is of ancient British or Romano-British origin. Others, again, have considered that the Anglo-Saxon compurgators (or sworn witnesses to credibility), the sworn witnesses to facts, the frith-borh, the twelve senior thegns of Ethelred's law, who were sworn to accuse none falsely, the system of trial in local courts by the whole body of the Shire or Hundred, contain the germ of the modern jury. Yet, with the exception of what may be termed Ethelred's Jury of Presentment, not one of these supposed origins would be found, if we examined them closely, to possess much more than a superficial analogy to the inquest by sworn recogni- tors, the historic progenitor of the existing jury. The theory which presents the fewest difficulties, and which is supported by very weighty arguments, regards the English system of sworn inquests as being derived from Normandy. There, both prior to and subsequent to the cession of the Neu'strian province to RoUo by Charles the Simple, it had existed, as in the rest of France, from its estabhshment under the Carlovingian kings, whose Capitu- laries contain minute instructions for inquisitions by sworn wit- nesses in the local courts. But, whatever may be the remote source of this institution, out of which trial by jury grew, two points are at any rate clear, (i) The system of inquest by sworn recognitors, even in its simplest form, makes its first appearance in England soon after the Norman Conquest. (2) This system was in England, from the first, worked in close combination with the previously existing procedure of the shire-moot; and, in its developed form of "trial by jury," is distinctly an English institution. When we at- tempt to inquire into the origin of an institution which has come down to us from hoary antiquity we must carefully note under what form it appears when for the first time it receives the notice of con- temporary writers. This often differs considerably from the form