Page:The American Cyclopædia (1879) Volume IX.djvu/742

 722 JURY way under if not by the archons. From this large body a smaller number was selected, per- haps by lot, for each ease, to hear and deter- mine the questions which might arise in that case, under the direction of a presiding archon or other magistrate. Before proceeding to hear any case, they were sworn to discharge their duty faithfully. After hearing the case, they gave their votes by depositing them in urns or vases, from which the presiding magistrate took them and announced the verdict. In this there is much resemblance to the jury of our own day ; the principal difference being in the large number who sat in each case, which ap- pears to have been sometimes as many as 500. This body the advocates addressed, beginning their speeches with "Avdps; dtKaarai (as we see in Demosthenes, ^Eschines, and Lysias), in the same manner as our advocates say, " Gentle- men of the jury." It cannot be doubted, we think, that the judicial procedure of Kome was, to a great extent, derived from and formed by that of Athens. We are accustomed to translate the word judex by "judge," but there was no officer or magistrate known to the Romans who discharged precisely the duties which with us belong to the judge ; the prsetor came nearest to it ; but judex would be much better translated by the word juryman. When the plaintiff (actor) came before the prfetor or other magistrate having jurisdiction, he made, his complaint, and the defendant (reus) an- swered it. The praetor then referred the case to the judices to determine the facts ; usually stating, in this reference, that such or such conclusions of law would follow from such or such conclusions of fact. The number of judices usually sitting is not known, and some- times even an important case was tried be- fore a single judex ; as we know that Cicero delivered his oration Pro Quintio before one judex, assisted by a consilium. The judices generally were aided by jurisconsults who sat with them. The whole number of persons from whom could be selected the judices of each case was in Rome as in Athens large, amounting to some thousands ; but by whom or on what principle it was appointed, or how or by whom the smaller number was appointed for each case, is not certainly known. There was sometimes an agreement of the parties as to the judex or judices, who were sometimes called arlitri, and who then answered to our arbitrators ; and there was a method of object- ing to judices appointed by lot or otherwise (reeusatio judieis), which answered very ex- actly to our challenges. As we know that, as soon as Rome conquered a province, it intro- duced at once the provisions and the forms of its own law (its jura et instituta), in part per- haps because the province might be thus most effectually bound to the empire, and in part also because they were always better than those of the conquered nation ; and as we know therefore that institutions, which resembled in so many particulars our jury, were in full force in England for more than three centuries, it would seem to be unreasonable to deny them an important influence in creating the trial by jury. But, on the other hand, the Saxons Drought into England the trial by compurga- tors. Then the party accused, or in later times the party plaintiff or defendant, appeared with his friends, and they swore, he laying his hand on theirs and swearing with them, to the in- nocence of the accused, or to the claim or de- fence of the party. Little is certainly known either of the origin or of the extent, in point of time or of country, over which the trial by compurgators prevailed ; but it must have had great influence upon the subsequent forms of procedure. If in nothing else, it fixed the number of the traverse jury at 12, that being the common number of compurgators, whence the old mediajval phrase jurare duodecimo inanu ; and this was a great improvement on the varying and sometimes very large number in Greece and Rome. Besides this, however, recent investigation has shown, among the Norman legal usages, traces of trial by jury, more numerous and more nearly resembling that trial as now conducted, than anything known to have existed among the Anglo-Sax- ons. Moreover, it is now known that, with much variety of form, modes of trial essentially similar to that by jury prevailed among both the Teutonic and Scandinavian nations, from a very remote antiquity. We regard it there- fore as certain that all these influences con- tributed to establish this mode of trial in Eng- land, and to shape it as we know it to exist there. Indeed, it was not until all of them had had an opportunity of completing their work, that we find what we should now call a jury certainly existing. Glanville represents it, in one of its most important forms and purposes, as introduced in the reign of Henry II.; he calls it "a royal benefit conferred upon the people by the goodness of the sovereign, with the advice of the nobility." So many of the attendant circumstances indicate that it was a Norman institution, bestowed upon his Eng- lish subjects by a Norman king, that Sir Francis Palgrave has not hesitated to consider our jury trial as derived directly from Norman law. One mistake in regard to a clause in Magna Charta is so common, and perhaps so important, that it should be corrected. The great charter says that no freeman shall be ar- rested or imprisoned, or exiled, or otherwise destroyed, nisi per legale judicium parium stiorum, vel per legem terrw. This has been held to mean, " unless by lawful trial by jury ;" and an argument has been drawn from it against the legality of any conclusive proce- dure against any person but on the finding of a jury. But the judicium parium of Magna Charta did not mean a judgment or verdict of a jury. Even in Magna Charta itself we read of juratores ; and the phrase veredictum lega- lium hominum, and others by which a jury is indicated, are common in the law language of