Retrospect of Alterations made in Judicial System. 126 structed by the common law judges, as before adverted to.-At length, by the united efforts of the judges and of the legislature, a system was established, which was considered sufficiently complete to render a reference to the Roman law (which for many reasons, as will hereafter be noticed, became very unpalatable) no longer necessary (a). It was not sufficient to establish rules for the decision of legal questions, without accompanying them with a system of procedure adapted to the improved state of the law, and the altered mode of its administration; this was accordingly effected. Having now arrived at the period when the foundations of the [127] *common law of England, and of its judicial system, were securely and permanently fixed, it may be well to look back for a moment and take a general view of the nature of the judicial system which now prevailed in England, as compared with that which it had superseded. Formerly the county courts, and courts of the hundred, were the ordinary courts of original jurisdiction for the trial of all questions not affecting the king or the proceres of the land; these courts were open to all, and the suitor brought forward his complaint as he pleased, without regard to form. Now the King's court, and the courts held by his justices, were the ordinary courts for the trial of all questions of importance. The king was now the fountain of justice; it was necessary, therefore, under this new system, that a special authority in the form of the king's writ should be procured, in order that justice should be obtained in his court and its several branches, though now the ordinary courts of justice; and it was required that the suit should be prosecuted according to the established forms prevalent in those courts. Again, in ancient times, even under the Anglo-Normans, no authentic record was kept of the proceedings of the ordinary tribunals; the proceedings in the county court might be the subject of controversy, even by the parties themselves. The proceedings in the now courts of ordinary jurisdiction were recorded, and the record could not be disputed; and these records formed a series of precedents for future decisions, a thing unknown to the ancient judicial constitution,-and appeals by writ of error (b) from the inferior to the superior courts were introduced. As regards the law itself: the system which, under the name of the Common Law, was established by the judges, and by the legislature, was found to be insufficient to answer all the exigencies of society; and ultimately a distinct tribunal for supplying the deficiencies of the Common Law, and for correcting the rigorous operation of its rules and maxims in particular cases, established itself. It is hardly necessary to state, that this tribunal is the Court of Chancery. To trace the growth and establishment, and to point out the principles on which its jurisdiction is exercised, is the subject which is next to be entered upon. But the student can scarcely follow such an investigation without some further acquaintance with the general principles of the law relating to civil rights, (a) "Je ne pretends pas dire," says the learned and intelligent M. Savigny, tom. iii. p. 66, note, "que les Lombards de cette epoque n'auraient pas pu se passer des sources du droit; sans doute la pratique auVOL. 1.-12 rait trouvé moyen de satisfier à leur besoins, comme l'Angleterre nous en offre un exemple frappant;" and see Seld. Dissert. in Flet. p. 532. (b) See Co. Litt. 117 b. 127 Rise and Establishment of Trial by Jury in Civil Cases. which was administered by the Courts of common law (a), and with the course of procedure established in those courts. I propose, [*128] therefore, in the first place, to endeavor to present a condensed and general view of the leading features of that system of law which was formed out of the materials to which I have above referred, and of the new course of judicial procedure. This indeed is necessary for the due understanding of the jurisdiction of the Court of Chancery in more respects than one, as many of the rules which govern the enjoyment of the beneficial or equitable interests in property, which are given by the Court of Chancery independent of the law, have been made to conform with the corresponding rules as to the enjoyment of property depending on purely legal titles. This sketch must necessarily be very general; it is intended only as introductory to the perusal of some of the excellent modern treatises on the principles of the common law in all its branches which now abound (b): the modern alterations in the law, more especially those which have been introduced by the legislature, will be shortly adverted to. (a) "The great defect of the Chancery Bar," said Lord Eldon, writing to Mr. Banks, "is its ignorance of Common Law and Common Law practice; and strange as it should seem, yet almost without exception it is, that gentlemen go to a bar where they are to modify, qualify, and soften the rigor of the common law, with very little notion of its doctrines and prac tice."-Twiss's Life of Eldon. (b) It will be seen that I have largely availed myself of the very valuable modern editions of Sir W. Blackstone's Commentaries by Mr. Serj. Stephen, Mr. Stewart, and Mr. Sweet, as also of the earlier one of Mr. Justice Coleridge. ADDITIONAL NOTE TO CHAPTER III.-NOTE 1. Origin and Establishment of Trial by Jury in Civil Cases, v. supra, p. 112–3. The appearance of a very interesting article in the Law Review (No. IV.), by a gentleman eminently conversant with the laws and institutions of England, (I mean Mr. Starkie,) enables me to trace the institution of trial by jury in civil cases from the point at which it is left in the text, down to the present time. In the text, three stages of this institution, after the Conquest, (using the term jury, not in reference to the name but the functions.) have been adverted to. The first was, when the whole body of freeholders, assembled at the county court, or court of the hundred, or a certain number selected by consent of the parties, under the presidency of the sheriff as the substitute for the earl, disposed of the question as regards both law and fact, none of them, at least as far as we can discover, being sworn (1); their verdict was the judgment. The next stage was, where, instead of proceeding before the whole body of the county, twelve persons from the vicinage (i. e. the country), were selected by virtue of the king's writ to give the verdict, the persons so selected being sworn (2); this was probably of Norman introduction. The next modification was the selection of a certain number for the trial of particular *actions in the King's Court, namely, the grand assize and recognitions (3); [*129] here the judgment, founded on the verdict, was given by the court. In the proceedings in assizes the jury or persons to whose decision the question was submitted, were mere recognitors; that is, they decided simply on their own knowledge or from tradition, and not upon evidence, and for this reason they were always selected from the hundred or vicinage in which the question arose. But as (1) Ethelred's grand jury was sworn, but its functions were criminal only, v. supra, p. 63; and see Bracton, fo. 116 a. (2) Jurata patriæ or vicineti, &c., sup. p. 112. Reeves, i. p. 86; this took place in Origin of Trial by Jury. 129 regards the inquests taken by what may be called the common juries (jurata patria), which were composed, not of knights only, but of other lawful men selected by the sheriff, though also selected from the vicinage, the rule was not so strict; they might decide on the testimony of those who could speak to what they had seen or heard; their verdict therefore was not liable to the process of attaint. Such inquests were necessarily resorted to in many cases (1). In the proceedings by jury trial it was necessary that twelve should concur; therefore in case of disagreement in proceedings by assize, others from the vicinage, conversant with the matter, were sought for and added to the recognitors or jury, till a verdict by the requisite number could be obtained (2). The great difficulty of procuring a verdict of twelve caused for a time the verdict of the majority to be received; but in the time of Edw. III. the necessity for an unanimous verdict of twelve was re-established. In the reign of Henry III. trial by recognitors and by witnesses joined together in one jury came into use; thus in the case of a disputed deed, the witnesses to the deed were summoned together with the recognitors from the vicinage to try the question. We find that in the 23 Edw. III. (I am now almost wholly, with his permission, following Mr. Starkie (3)) the witnesses, instead of being summoned as constituent members, were adjoined to the recognitors or jury in assizes, to afford to the jury the benefit of their testimony, but without having any voice in the verdict. This is the first indication we have of the jury deciding on evidence formally produced (4), and it is the connecting link between the ancient and modern jury. The jury subject to the peril of attaint, might, if they chose, decide contrary to the testimony of the witnesses, as to which they were the sole judges; they were still so far recognitors that they were to decide on their own knowledge, if they possessed any. Whilst the jurors were mere recognitors, the court exercised a very vigilant superintendence in examining each of the jurors separately, in doubtful cases, to see whether the knowledge of the facts, which the jurors by their verdict professed to have, were drawn from legitimate sources; but this security failed, or at least was very difficult of application, when the jurors might give their verdict on a balance of testimony. This appears to have occasioned another change in the mode of jury trial which was effected some time before the 11th Hen. IV., namely that all the evidence on which it was intended that the jury should rely in forming their verdict, should be given at the bar of the court; so that the judges might have the opportunity of excluding from the consideration of the jury all evidence of a character that ought not to be permitted to influence their judgment. This effected a change in the mode of trying civil causes; *the importance of which can hardly be too highly estimated. "Jurors from being, as it were, mere recipients and depositaries of [*130] knowledge, exercised the more intellectual faculty of forming conclusions from testimony, a duty not only of high. importance with a view to truth and justice; but also collaterally in encouraging habits of reflection and reasoning [aided by the instructions of the judges], which must have had a great and most beneficial effect in promoting civilization." The exercise of the control last adverted to on the part of the judges was the foundation of that system of rules in regard to evidence which has since constituted so large and important a branch of the law of England. "In The practice of receiving evidence openly at the bar immediately led to another remarkable result-namely, the great extension of the duty of an advocate. earlier times-upon criminal as well as civil inquiries-the jury after they had been sworn and merely charged by the court as to the points at issue, retired to consult together in secret without hearing either witnesses or counsel at the bar. But now the scene was totally changed; witnesses were examined and cross-examined in open court; the flood-gates of forensic eloquence were opened, and full scope given (1) This kind of inquest was taken before the sheriff and the King's Justice (Custos placitorum corona) by virtue of the king's writ, in cases, amongst others, where a person claimed to recover his estate on the expiration of a term of years; an assize of novel disseisin would not lie in such case. for the party had come in by right; see Bracton, lib. iv. 7. 1, fol. 318. Et v. ib. iv. 1. 34, § 2 & 3, fo. 215 b, &c.; and Reeves, i. 335-8; Glanv. vii. c. 16, p. 186, ed. Beam. (2) This was called in after-times afforcing the jury, Starkie, Law Rev. p. 379, 380. (3) I am not aware that the several transitions I am about to notice were ever clearly pointed out before Mr. Starkie's publication. (4) But, as above noticed, the common juries (juratæ) might search for evidence for themselves. Et v. sup. p. 101, n. (i). 130 Franciscus Accursii, Councillor of Edward I. to the advocate to exercise his ingenuity and powers of persuasion on the jurors, to whose discretion the power of judging on matters of fact was now intrusted." Another important consequence followed-when the jury in an assize gave or were presumed to give their verdict upon facts within their knowledge, if they came to a wrong decision they must usually have been guilty of perjury. When they became judges of the facts upon evidence, the liability to attaint would have been as unreasonable and unjust as in the case of an ordinary jury: it therefore virtually fell into disuse. Thenceforth the means of correcting error and mistake on the part of a jury, was left without adequate remedy by the courts of law until the seventeenth century, when the practice of granting new trials was introduced, which I shall have occasion again to advert to in tracing the equitable jurisdiction of the Court of Chancery (1). The last change in the institution of jury trial is of comparatively modern introduction; it is the limiting the functions of the jury to that of being judges of fact upon evidence laid before them. The principles, Mr. Starkie observes, which warranted this change are obvious; it was found that the cause of truth suffered more from the prejudices which the residence of jurors in the neighborhood of the disputed fact were likely to engender, than was gained from knowledge and means of judging so acquired (2). Other inconveniences arose from the rules as to the Venue, so that, after various modifications as to the number of persons from the hundred or vicinage that were to be put upon the jury, by the Stat. 4 & 5 Anne, c. 16, and 24 Geo. II. c. 18, the law requiring jurors to be returned from the vicinage or hundred was abolished in all civil actions, and it was directed that they should be summoned from the body of the county. By a decision of the Court of Queen's Bench in the first year of Queen Anne, it was held that if a jury gave a verdict of their own knowledge, they ought so to inform the Court, that they might be sworn as witnesses. This, and another case in the reign of George I., put an end to all remains of the ancient functions of juries as recognitors. The question, therefore, adds Mr. Starkie, When did the trial by jury begin? admits of no definite answer, otherwise than by referring to the different transitions to which allusion has been made (3). *The ancient mode of giving evidence amongst the Romans before the Ju [*131] dices, prior to the course of judicial procedure having been altered by the emperors, was this: the witnesses were examined and cross-examined orally before them, (they having usually one or more of the jurisconsulti as their advisers,) and at the same time the advocates made their speeches in favor of their respective clients (4). We find in Macrobius the following account of the mode of hearing a cause by a single judge in his time:-" Veniunt in comitium tristes, jubent dicere quorum negocium est-narrant―Judex testes poscit. Ipse it minctum, ubi redit, ait se omnia audivisse, tabulas poscit, literas inspicit, vix præ vino sustinet palpebras, &c." (5). An account of the corresponding trial by judices or jury (for all judices were sworn), in criminal cases, may be seen by reference to, Inquiry into the Origin of the Laws, &c., of Modern Europe, p. 201-3, where some of the analogies to the English course of procedure are pointed out (6). ADDITIONAL NOTE TO CHAPTER III.-NOTE 2. Franciscus Accursii, Councillor of Edward I., v. supra, p. 123. Edward I., A. D. 1273, came to Bologna on his return from the Holy Land, and took into his service Franciscus the son of Accursius, who is called in our ancient records Franciscus Accursii (7). A short time afterwards, namely, A. D. 1274, he followed 11; and see the Additional Note to Chapter vii. infra; Dict. of Antiq. Art. "Judex," Rosinus, p. 678. (5) Lib. ii. Saturnal, c. 12. See Tiger ström de Judicibus apud Roman. p. 37-8. (6) The reference there to Starkie on Evi dence (in the third edition) will be i. p. 85 (7) That this was his real name appear from Rymer, to. i. p. 516. 524. 741, ed. 1816 all referred to by Savigny. I presume he i so named in the document quoted by Sir F Palgrave (sup. 123), but in the writ as pub References to the Roman Law in Bracton's Treatise. 131 the king to London. From that time he was employed in many affairs of state (1): he went twice as ambassador from Edward to France, and once in 1278, to Pope Nicholas III. A hall at Oxford was appropriated for his use (2), but there is no trace of his having taught in England. In 1281 he left England; the king gave him a gratuity of 400 marcs sterling, and promised to pay him an annuity of forty marcs. In 1282 he appears again as a teacher in Bologna. In 1290 five years' arrears of his annuity were paid to him by the king's orders. He died in 1293, at the age of sixtyeight, and by his will made considerable donations for charitable purposes in England and elsewhere (3). Azo, whose commentary appears to have been made use of by Bracton, was the preceptor of Franciscus Accursius, the father (4). It is through the kindness of Mr. William Wright, and Mr. William Wright, jun., and their familiarity with the German language and the works of M. Savigny, that I have been able to compile this account of one of the advisers of Edward the First, who in all probability assisted in the construction of some part of our system of jurisprudence. ADDITIONAL NOTE TO CHAPTER III.—NOTE 3. References to the Roman Law in Bracton's Treatise, v. supra, p. 125. [*132] Mr. Reeves (vol. ii. p. 88), after eulogizing Bracton's Treatise, notices the exceptions taken to it on account of the quotations from the Roman Law. "But the passages," says this industrious writer, "to which such writers take exception, if put together, would perhaps not fill three whole pages of his book, and it may be doubted whether they are such as can mislead the reader." Again, "upon a second consideration," he says, "of those places where the Roman law is stated with most confidence, it would seem to be rather alluded to for illustration and ornament than adduced as an authority, though it is visible that Bracton, with all his endeavors to give form and beauty to our own law, by setting forth its native strength to advantage, did not refuse such helps as could be derived from other sources to improve and augment it." But see p. 54 of the same volume. My own observation would lead me to say, as indeed will appear from what has already been stated and what follows in the succeeding Chapters, that there is scarcely a principle of law incorporated in the treatise of Bracton, that has survived to our times, which may not be traced to the Roman law. Bracton's direct references plainly do not comprise nearly the whole of what he adopted immediately from the Corpus Juris. I am aware that most of our historians, and, with the exception of Civilians, of the writers on the Laws of England, as well before as since the publication of M. Reeves's History, have advocated the independence of the Law of England. Lord Lyttelton, particularly in his admirable History of the Life and Times of Henry II., which has formed the basis of most of the subsequent histories of that epoch, refers to a solitary decision of Glanville in regard to the law of Bastardy (which is cited, evidently with approbation, by Mr. Beames, p. 183 of his edition), as showing "the entire independence of the law of England on the canon and civil laws in his time”—a large conclusion from such premises. As regards legal authority on the subject, Mr. Cruise observes (v. p. 66–7), that our legal writers since the time of Bracton appear either to have been ignorant of the obligations we owe to the Romans, or, from mistaken pride, to have been extremely unwilling to acknowledge them. All, however, seem to admit, that some explanation is necessary to account for the laws exhibited by the treatises of Glanville and Bracton, being, as compared with the Laws of the Anglo-Saxons and of Henry I., "like the code of another nation," v. int. al. Reeves, i. p. 224, et v. supra, p. 122, n. (b). The explanation which has been resorted to is this, that the laws to be found in Glanville and Bracton already prevailed in Normandy, that they came here by degrees, and that it was only now that they were fully introduced into England (Reeves, ubi supra). As regards the rudiments of feudal tenure, they had, if I have taken a just view of the authorities, equally prevailed in England as in Normandy. As to the rest, no evidence of their prior exist lished by the Record Commissioners, (Parl. Writs, vol. i. p. 3,) the names are not inserted. (1) He is called by Edward, Familiaris noster, Juris Civilis Professor, Rymer, i. p. 524, 3 Edw. I. a. D. 1275. (2) Wood's Hist. Univer. of Oxford, i. p. 124. (3) Savigny, Mid. Ag. German ed. to. v. p. 279; in the French edition, which is considerably abridged, iv. p. 153. (4) Struvii, Hist. P. 44. |