Page:Harvard Law Review Volume 4.djvu/173

157 *'LAtV AND FACT'riN JURY TRIALS, 157 both law and fact, was " tried " merely by the oath, with or without fellow-swearers. The old " trial by witnesses " was a testing of the question in like manner by their mere oath. So a record was said to "try" itself And so when out of the midst of these methods first came the trial by jury, it was the jury's oath, or rather their verdict, that " tried " the case. How this mode of trial came to swallow up the others, and then to lose some of its chief features, and become shaped into an instrument of our modern purely rational procedure, is a long story, and is not for this place. But as we use the phrase " trial " and " trial by jury " now, we mean a rational ascertainment of facts, and a rational ascertainment and application of rules. What was formerly " tried " by the method of force or the mechanical conformity to form, is now The long survival in our system of certain ancient forms and phrases, presently to be mentioned, makes it interesting to notice that in the older days the word *' law " (lex) often indicated, not the substantive law, but a mode of trial. This comes out clearly in an exposition of the phrases lex et consuetudo in the old custumal of Normandy,^ where we read : " Consitetudines are customs prac- tised from ancient times, allowed by rulers and kept up by the people, determining whose anything is or to what it belongs. But Leges are what is instituted by rulers and kept up by the people in the country, for settling particular controversies. Leges are, so to speak, the rightful instrumentality for declaring the truth of a controversy. And there are certain modes of practising the leges {71SUS). To illustrate: the consuetudo is, that a widow has the third part of the fief that her husband possessed at the time of the marriage. But if a controversy arises as to whether he did then i L'Ancienne Coutume de Normandie (compiled A.D. 1270-1275) c. xi. De Consuetu- dine: " Consuetudines vero sunt mores ab antiquitate habiti,aprincipibus approbati, et a populo conservati, quid cujus sit vel ad quod pertinet limitantes. Leges autem sunt institutiones a principibus factae et a populo in provincia conservatae, per quas conten- tiones singulae deciduntur. Sunt enim leges quasi instrumentain jure ad contentionum daclarationem veritatis. Usus autem circa leges attendunt ; sunt enim usus modi quibus legibus uti debemus. Verbi gratia : consuetudo est quod relicta habeat tertiam partem, feodi quod vir suns tempore contractus matrimonii possidebat. Si autem contentio oriatur de aliquo feodo quod tunc ille non possidebat, ipsa tamen in eodem dotem recla- mante, per legem inquisitionis et hujusmodi contentio habet terminari. Usus autem sunt modi quibus hujusmodi lex habet fieri ; Videlicet, perduodecim juratoset nonsuspectos, et feodo prius viso." Cited in Brunner, Schvvur. 177. See, also, Stephen, Pleading, note 36.
 * ' tried " by the method of reason.