Page:The Green Bag (1889–1914), Volume 09.pdf/56

 Trial by Jury of Roman Origin.

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TRIAL BY JURY OF ROMAN ORIGIN. BY BOYD WINCHESTER. THE Saxon common lawyer delights to attribute the usage of trial by jury to his German ancestry; and his American associate seldom lets a jury trial pass with out some adulatory sentiments to the great Alfred, to whose age it is conceived are to be traced the earliest memorials of its establish ment. But we conceive the trial by jury can be shown to be derived from the insti tutions of Rome by more direct and conclu sive testimony than is adduced in favor of its Saxon origin. The proofs of such an establishment among these people, previous and, indeed, down to the time of William the Conqueror, amount to no more than evidence that bar barous men may submit questions of con testation to the decision of their friends; but surely amounts to no proof that the trial by jury existed among them, as an in stitution entirely aboriginal. And because such a custom gave hints to successive law makers of a system by which regular adju dications might be regulated, it does not prove that such a system might not have been matured by more polished ancient nations, and have originated with them. The disposition to arbitrate questions of controversy is not indigenous to civilized communities. We think testimony may be gathered from the customs and habits of all barbarous nations, in proof that such a mode of deciding differences is natural to all men. The North American Indians could furnish us as many incidents upon this point, in favor of their being the origi nators of the trial by jury, as any other people. So far as the records of such trials exist in English history, the most enthusiastic ad vocate of this theory has been able to

imagine memorials of its existence only so far as the age of the Conqueror. The triumphant instances given only prove that, to settle questions, they resorted to the simple mode of summoning persons having a knowledge of the facts —. these were only witnesses. But even if such cases were entitled to any consideration in tracing the origin of jury-trial, it is within the legitimate province of conjecture to conceive that the first idea of such a custom may have been taken from the Romans. For Caesar invaded Brit ain upwards of eleven hundred years pre viously, and even Germany some years earlier. His superior abilities, great am bition and extensive knowledge, combined with the pride of a Roman in the institu tions of his country, render it more than probable that he labored to extend her civi lization, as well as empire, to the barbarous people whom he had conquered. Now it is much more reasonable to infer that the various invasions of the Roman armies of the territory of barbarous nations may have impressed their habits upon po litical and judicial institutions than that par ticular systems originated with the latter. Mr. Turner, in his history of the AngloSaxons, states that, by one of the judicial customs of the Saxons, an accused person was acquitted if a certain number of men swore he was innocent; and he hence infers the existence of the trial by jury in the earliest Anglo-Saxon times. There is nothing conclusive in this cir cumstance. The resort to witnesses to prove or repel an accusation is what people, however rude their institutions, may resort to. The same author dwells much on the fact that those jurators were of the number