Page:Harvard Law Review Volume 5.djvu/265

249 HARVARD LAW REVIEW. VOL. V. JANUARY 15, 1892. No. 6. THE JURY AND ITS DEVELOPMENT. I. IN giving an account of early Germanic conceptions and modes of "trial," and their development in English judicature (5 Harv. L. Rev. 45 ; 4 ib. 156-9), I traced them down into modern times, and asked, " What, meantime, had been happen- ing to the jury ?" Let me now try to answer that question in some way, such as may be possible within the narrow limits that can be allowed in this magazine. Of the pedigree of the jury, as growing out of certain practices in public administration inherited by the Normans from the Frankish kings and brought to England at the Conquest, something was said in the paper just re- ferred to. I will now attempt, first, to trace this earlier history and transmigration more definitely ; second, when once we find the jury fairly on its legs in England, in the twelfth century, and reach the records, text-books, and, later, the reports, that give material for more accurate judgments, I will endeavor to follow the develop- ment of the jury through the later seven centuries to our own time. Such an undertaking must be executed in a very summary manner. It will be easier to treat the matter so, because I am writing with the main purpose of throwing light upon the English " law of evidence," which is the child of the jury, and not of stating fully the history of that institution. I. 1. "The capitularies and documents of the Carlovingian period," says Brunner (Schw. 84), " have a procedure unknown to the old Germanic law, which has the technical name of inqui-