Page:Harvard Law Review Volume 10.djvu/178

152 152 HARVARD LAW REVIEW, and character which it assumes in the growth of years. There is one important feature in this institution, and it is this, that its members give their decision under the solemn sanction of an oath; but this feature is not peculiar to this institution, for under the like sanction the Dicasts at Athens and the Judices at Rome decided. The same rule also prevailed in the old Norse Thing and German Mallum, where the right of all the inhabitants of the Gau or Mark to be present in the judicial proceedings of these periodical assem- blies became in practice limited to a few, as the representatives of the community. But the distinguishing characteristic of the sys- tem is that the jury consists of a body of men taken from the com- munity at large, and summoned for the purpose of finding the truth of disputed facts, who are quite distinct from the judges or the court. Their duty is to decide upon the effect of evidence, so that the court may be able to pronounce a right judgment. Twelve men of ordinary ability are just as capable of deciding to-day on the effect of evidence as they were in the infancy of the institution. Although the technicality of the law has increased, yet it in no way interferes with their fitness to decide on the effect of proofs. And this is the reason why the English jury flourishes still in its pristine vigor, whilst the old juries of the Continent have either fallen into decay or been entirely swept away. No trace of such an institution as a jury can be found in Anglo- Saxon times, for if it had existed distinct mention would have been frequently made of it in the body of Anglo-Saxon laws and con- temporary chronicles which we possess, extending from the time of Ethelbert (a. d. 568-616) to the Norman Conquest, but no men- tion is made. With respect to criminal trials, we meet, in the ordinance of King Ethelred II. (978-1016), with a kind of jury of accusation, resem- bling our Grand Jury, and possibly its direct progenitor. In the Gemot of every Hundred, the twelve senior thegns, with the reeve, were directed to go apart, and bring accusation against all whom they believed to have committed any crime. But this jury did not decide the guilt or innocence of the accused ; that had to be de- cided by compurgation or the ordeal. This primitive Grand Jury probably continued in use after the Norman Conquest, until it was reconstituted by Henry II. For more than a hundred years after the Norman Conquest, the ancient Anglo-Saxon modes of trial, or forms of proof, by ordeal (Judicium Dei), by oath (compurgation, termed later "wager of law"), by witnesses and production of