BOOKS.
FORSYTH'S HISTORY OF TRIAL BY
Aranorron it is only in England that "trial by jury" has com- pletely sustained and developed itself through the various stages of civilization, yet its principle seems inherent in the human mind, when human action is allowed free scope, unchecked by the arts of despotism. The germ of trial by one's peers, or neighbours, or fellows, is found among the wildest tribes, as its principle obtained among the most civilized nations if free. The villagepunehayet of Hindostan, the council of the tribe among the Red Indians, the analogous insti- tutions of the ancient Germans and Scandinavians, are all exam- ples of jury trial in essence, however they may differ in form from the twelve good men and true inducted into our jury-box. In "Athens or free Rome," the citizen had the same right of trial by his fellow citizens. Nay, even the offseourings of various peoples, when thrown together upon terms of equality—as the buccaneers —seem to adopt the principle of settling public injuries by the judgment of peers (pares), reserving the duello for private quar- rel. The exception to the principle would seem to rest as much in character as in circumstances. The free mind, wherever found, appears willing to encounter the labour and trouble and odium of judging; the slavish mind shrinks from self-decision, willingly dele- gating everything to a superior. It would be a curious subject of inquiry, and form a worthy additional chapter to a future edition of Mr. Forsyth's book, to endeavour to trace what races want the germ of trial by jury—whether the Celt had it, whether the Negro has it. The history would also be improved by going snore fully into the widespread existence of the essential institution amongst the numerous peoples which have possessed its germ. Mr. For- 's professional calling has somewhat narrowed his views on the philosophy of the question, and he sticks a little too closely to its legal archaeology. Up to the present century., trial by jury was unhesitatingly con- sidered an Anglo-Saxon institution, and by many ascribed to that mythic personage of the British constitution Alfred the Great. Closer research under the guidance of a critical spirit has dissipated many such delusions, and thrown a clearer light upon much that was obscure. Some modern antiquarians have doubted whether the jury in its present form was really owing to the Anglo-Saxons. In one point Mr. Forsyth goes further than those sceptics; he de- nies that the English jury existed in its modern shape for several centuries after the Conquest. The first recorded recognition of a now established principle, that the jury ought not to regard any other evidence than what has been tendered in open court, is as late as Henry the Fourth, though the jury itself seems proved to be of an earlier date.
"The earliest record extant of a trial by a regularly constituted jurisfa is, I believe, that of an action of ejectment between Edward I. and the Bishop of Winchester in 1290, respeefing the right to the custody of the Hospital of St. Julian at Southampton. It is found in the Rot. Pan. i. 19. It may be interesting to give the names of the jurors who gave their verdict for the King, in mous rd i testimoniutn' they affixed their seals. Thomas Peveril, Henry Attecruche, John de Langele, John Pers, Thomas de Vyneter, Walter .de Letford, Nicholas Gese, Adam le Herder, Hugh Sampson, Henry le Lung, John Wrangy, and John Page. At this time the pleading's in an action were identical with those at the present day. See an action of trespass brought by the parson of Chipping Norton against another parson, for turn- ing him out of his house on a Sunday. Rot. Pan a. 96. There the sheriff is directed to summon twenty-four jurors."
Mr. Forsyth's conclusion is that the English jury is of indigenous growth. The original germ may doubtless be traced in the Teu- tonic or Scandinavian institutions, while the stock on which it was grafted was Anglo-Saxon ; but the men whom we now call jury- men were in those ancient times, and under that simple system of society and jurisprudence, witnesses, whose testimony was the ver- dict, because their oaths went to establish the common knowledge of the neighbourhood as to ownership of land or other visible pro- perty of those times. It was chiefly in what would now be called civil actions that trials in our sense took place. In criminal mat- ters, the trial of a man taken with the maner, or, in Anglo-Norman law French, the mainour (hand-work) was very summary; and cases resting upon complicated evidence were not, so to speak, tried at all ; recourse being had to the ordeal, of which the reader of Hume will remember a pleasant account. Rude as the know- ledge of the neighbourhood (vieinetutn) may seem to us, it was perhaps the best evidence that could be had, when the simple na- ture of Anglo-Saxon life is realized to the mind; nay, it is even now very good evidence in out-of-the-way places, where all that a common man has or does is known to his neighbours.
"In the simple state of society which existed in the time of our Saxon forefathers, transactions between man and man were conducted with a pub- licity and openness of which we have now no example. Sir Francis Pal- grave has well and eloquently described the mode in which evidence was thus perpetuated in early times. 'The forms, the festivities, and the cere- monies accompanying the hours of joy and the days of sorrow which form the distinguishing epochs in the brief chronicle of domestic life, impressed them upon the memory of the people at large. The parchment might be recommended by custom, but it was not required by law ; and they had no registers to consult, no books to open. By the declaration of the husband at the church-door, the wife was endowed in the presence of the assembled re- lations, and before all the merry attendants of the bridal train. The birth of the heir was recollected by the retainers who had participated in the cheer of the baronial hall ; and the death of the ancestor was proved by the friends who had heard the wailings of the widow, or who had followed the corpse to the grave.' Payments were made in the presence of the Hundred court, that all the district might be able afterwards to testify to the fact ; and the char- ters and deeds were usually witnessed by a number of persons the most in-
• History of Trial by Jury. By William Forsyth, MA., late Fellow of Trinity College, Cambridge ; and Author of " Hortensius " Published by Parker and Son
terested in the grant, and therefore the most likely to remember it. On one occasion when a hyde of land was given by the monastery of Ely to (Ednoth, a monk of Ramsey, for his good offices in terminating a troublesome dispute, he cut off four pieces of turf and laid them on the altar of St. Gregory in his convent, in the presence of a crowd of witnesses, in hulas worm donationis aryumentutn. Secrecy and concealment were deemed to be almost conclusive evidence of fraud or crime ; and as such they were treated by the Anglo- Saxon law. Thus, if a person being on a journey were to make a bargain suddenly without any previous intention, (unnlynaanye,) and without hav- ing declared it when he rode out, he was to make it known on his return ; -and if it was for live stock he was with witness of his township to bring it to the common pasture. And if he did not do this before five days he was to forfeit the cattle' because he would not declare it to his neighbours,' even although be had really bought them in the presence of legally named wit- nesses, and the eaidor of the hundred were satisfied that this was true. So also if a man from afar, or a stranger, were to go out of the highway into some by-path or wood, and did not then shout or blow a horn he was to be accounted a thief, either to be slain or redeemed with his wergild."
To prove his conclusions respecting the slow indigenous growth and the final establishment of our existing jury, Mr. Forsyth travels over a very wide field. He surveys the ancient tribunals of Scandinavia and Germany; considers more elaborately the judi- cial system of the Anglo-Saxons and the .Anglo-Normans, fill the settlement of the Jury in its present form, when, ceasing to be witnesses they became judges of evidence, perhaps about the reign of Edward the Third. Throughout the whole of this explora- tion Mr. Forsyth displays keenness of perception and calmness of judgment, set off by a clear and agreeable though somewhat diffuse style. Whether he really succeeds in establishing his main position—the perfectly indigenous character of the jury as an in- stitution—may admit of doubt; because he sets out with too nar- row and technical a definition. No doubt, the theory deduced from the modern principle is true, applied to a modern jury—that it judges of the fact, not of the law. Still, even in modern prac- tice the line is not easily drawn. In all criminal cases, the jury, by deciding upon the intent as well as upon the facts really does apply the law ; so likewise it passes judgment in all civil cases where damages are concerned. Among the simple if not barbarous manners of the ancient Northmen and Germans, it seems difficult to believe that a distinction which in practice we, law and judge ridden people, cannot maintain now, should be maintained in the wilds of Scandinavia and the forests of Germany a thousand or fifteen hundred years ago. Grant Mr. Forsyth's theory touching a jury, allow the probability of that theory being carried out by the rude forefathers of the peoples North of the Rhine, and his position is clearly established. But we think the essential prin- ciple of jury trial larger and deeper. It consists, we apprehend, in this—that every man shall have his case tried by his fellows, not wholly by state or king-appointed functionaries, though the presence of such may be necessary to constitute a court. Num- bers, and the exact degree of power which a jury possessed, are mere forms or accidents. The circumstances which enabled the principle of trial by one's fellows to maintain its ground in Eng- land and finally develop itself as it has done, while it has been overwhelmed in all those Continental states which possessed its germ, is a subject worthy of searching inquiry, though from want of sufficient records that inquiry might be vain. A history of trial by jury is not the whole subject of the volume under review. Mr. Forsyth traces the workings of our modern jury system in civil and criminal cases; illustrating the latter by some striking examples of firmness in the jury and violence or
y in the judges. He describes the jury law of Scotland and merles., and its introduction into France, Germany, and other Con- tinental states, apparently not always well prepared for it : but the author says nothing of Ireland, which, we opine, would fur- nish stronger instances of unfitness than almost any other country. Besides these subjects, cognate to history if not exactly historical, Mr. Forsyth enters into discussions verging on the professional, as the proper province of a jury, the question of unanimity in the verdict, the advantage or 'disadvantage of the Scotch form of "not proven," and the social and political effects of the institution. In these disquisitions Mr. Forsyth argues fairly and rationally, bat not always so as to command implicit assent; often with the pro- fessional bias which is charged upon English lawyers, and some- times with the manner of an advocate—so difficult to shake off when it has become habitual.
The occasionally mooted question of jury-abolition,—for the substitution of the decision of a judge for that of a jury really amounts to its abolition,—is of course considered by Mi. Forsyth. This proposition was at one time greatly in vogue among some of the followers of Bentham, when they had more the ear of the pub- lic than they have now. The incidental effects of our jury system, which, like that of our municipal system, trains the mass of Englishmen to publio business and forms so strong a barrier to the centralization and despotism of the Continent, was overlooked in their arguments. Probably it would have been designedly dis- regarded. The argument for the abolition was obvious,—that a man trained to the examination of evidence is better qualified to weigh its bearings than twelve men taken promiscuously from the crowd: and in occasional cases this is true. But where there is much difficulty in deciding upon the simple fact, ay or no, we be- lieve it will generally be found to be so doubtful in itself that men may fairly differ upon the question, and the decision of a judge be not more satisfactory than that of a jury. It is by no means clear that the judge would not acquire or display counter- vailing defects, such as Mr. Forsyth points out.
"Supposing , however, that we were to abolish it, what tribunal are we prepared to substitute in its place ? Are we to throw the burden upon the judges, and make them, like the Scabini of the Franks, decide disputed facts as well as expound the law ? But it may well be doubted whether this would in the end more effectually secure the great object of judicial inquiry, namely, the discovery of truth. To say nothing of the exhaustion of mind which would be felt by a judge called upon in the rapid succession of causes tried at nisi prim to weigh contradictory evidence and balance opposing probabilities,—although it may sound paradoxical, it is true, that the ha- bitual and constant exercise of such an office tends to unfit a man for its due discharge. Every one has a mode of drawing inferences in some degree pe- culiar to himself. He has certain theories with respect to the motives that influence conduct. Some are of a suspicious nature, and prone to deduce un- favourable conclusions from slight circumstances. Others again err in the opposite extreme. But each is glad to resort to some general rule by which, in cases of doubt and difficulty, he may be guided. And this is apt to ty- rannize over the mind when frequent opportunity is given for applying it. But in the ever-varying transactions of -human life, amidst the realities stranger than fictions that occur, where the springs of action are often so different from what they seem it is very- unsafe to generalize, and assume that men will act according to i a theory of conduct which exists in the mind of the judge. "I am satisfied also that the concurrence of the people in the administra- tion of the law, through the medium of the jury, Featly increases the re- spect and reverence paid to the judges. In deciding upon facts, opinions will necessarily vary, and judges, like other men, are liable to be mistaken in estimating the effect of evidence. Every one thinks himself competent to express an opinion upon a mere question of fact, and would be apt to com- ment freely upon the decision of a judge which on such a question happened to be at variance with his own. It is easy to conceive cases where much odium would be incurred if in the opinion of the public the judge miscarried in a matter which they thought themselves as well able to determine as himself. From this kind of attack the judge is now shielded by the inter- vention of the jury. He merely expounds the law and declares its sentence : and in the performance of this duty, if he does not always escape criticism, he very seldom can incur censure. So that De Tocqueville is strictly right when he says, Le jury qui semble diminuer lee droits de la magistrature, fonde reellement son empire ; et 11 n'y a pas de pays oil les jug.es soient aussi louissans que oeux oil le peuple entre en portage de leurs pnvileges ? ' "Moreover, the tendency of judicial habits is to foster an astuteness which is often unfavourable to the decision of a question upon its merits. No mind feels the force of technicalities so strongly as that of a lawyer. It is the mystery of his craft, which he has taken much pains to learn, and which he is seldom averse to exercise. He is apt to become the slave of forms, and to illustrate the truth of the old maxim---qui herd in literel keret in cortiee. Now, a better corrective for this evil could hardly be de- vised than to bring to the consideration of disputed facts the unsophisticated understandings of men fresh from the actual business of real life, imbued with no professional or class prejudices, and applying the whole power of their minds to the detection of mistakes or the disentanglement of artifice and fraud. The jury acts as a constant check upon and corrective of that narrow subtilty to which professional lawyers are so prone, and subjects the rules of rigid technicality to be construed by a vigorous common sense."
For the decision of a fact ay or no, the determination of an in- tent or animus to be deduced from facts, or the assessment of da- mages for some social injury which does not admit the application of any certain test, we 'believe a jury to be the best tribunal, as Aristotle considers the.judgment of the whole audience to be better than that of the best judge amongst them, however inferior each individual may be singly. juries, no doubt, commit errors and have their class and personal prejudices : but would a judge be free from errors or prejudices ? and would not the sense of per- sonal responsibility press too heavily upon him in some cases, from which a jury is by its numbers free to a great extent? In fact, this personal irresponsibility of juries is pushed too far, and seems to be one great source of rash, inconsiderate, or perverse verdicts. Publicity is the essence of our constitution, especially in matters of justice. The judge, the counsel, the witnesses, not only come visibly before the audience, but before the world with names at full. Jurymen alone of all our functionaries discharge their duty anony- mously; and to this obscurity may be traceable not doubtful or mistaken verdicts, but those verdicts which sometimes shock com- mon sense. Of course no responsibility can endow a man with facul- ties he does not possess ; all it can do is to make him more careful in the exercise of the faculties which he has ; and to get this fully out of a jury-, their names and address should form a regular part of the proceedings. It may be said that if the daily press were to do this, it would be improperly bringing the jury before the public. Such an argument is merely begging the question ; which is, should we maintain an anonymous tribunal ? In reality, it is not consideration for jurymen, but negligent habit that governs the daily press. In cases of great political interest, where the fac- tions passions of the community are excited, and the most con- scientious discharge of their duty is most likely to make enemies, the names and addresses of the jury are conspicuously paraded, without any sense of delicacy or regard for the interests or feelings of the jurors.
Previous page
