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TRIAL BY JURY IN FRANCE

Address Before the Missouri Bar Association, May 4, 1900

TRIAL BY JURY IN FRANCE

In responding to the invitation with which you have so highly honored me I have thought it not improper to select for my subject “Trial by Jury in France, which I believe has at least the merit of being by no means hackneyed, since I have not been able to find, either in French or English, a consecutive account of the origin and development of trial by jury in that country; hence the information that I have obtained on the subject has been derived from a considerable variety of sources. It forms, I think, rather a curious story.

Horace tells us that they who cross the sea only change their horizon, and not themselves; but this is not the case with institutions; for they often undergo fundamental changes in crossing an invisible boundary line. It will be seen that trial by jury in France is a very different thing from trial by jury in England and in our own country.

Trial by jury, as we all know, is of great antiquity. Under different forms it has found a place amonc many races and peoples. It was not unknown to the Normans; but it took no root in the French soil. As it exists now in France it is an exotic, borrowed consciously and directly from England, where it has been domiciled, has prospered, and has borne fruit for centuries.

The mutual antipathy that has so long subsisted between the French and the English peoples probably dates from the time of the Teutonic conquest of Eng. land. Perhaps no invasion has ever been attended with more savage brutality. The Saxons proceeded to exterminate the native population without pity, and without compunction. The handful of Britons who succeeded in making their escape across the channel to join their brother Celts in what is now called Brittany, had a terrible story to tell of the massacre of nearly a whole Christian people by ferocious heathen hordes, who worshipped the mythical gods of the North with unholy rites; a story that thrilled Christendom with horror and detestation. France, which was so near to the scene of this dreadful catastrophe, must have been profoundly shocked and awe-stricken. The sentiment of aversion thus kindled, fanned by incessant wars, increased during the succeeding centuries, until the national animosity became rancorous and implacable to the last degree. To the Frenchman the Englishman became what the Samaritan was to the Jew, what the Russian is to the Pole; so that he rarely mentioned the name of Albion without the qualifying epithet of “the perfidious."

Owing to this keen hostility England remained almost a terra incognita to the great body of the French people until the eighteenth century, when it may be said to have been discovered by Voltaire and Montesquieu. Voltaire spent about three years in England, returning home in 1729 enamored with English institutions, and profoundly impressed with the advantages attending trial by jury. A few months after his return Montesquieu went to England, where he stayed about a year and a half, engaged in a very discriminating study of the English government. He easily perceived that, as he afterwards said, England was the freest country on the earth, her people the happiest; that while France had for more than a century been sinking deeper and deeper into poverty and ignorance, her neighbor and rival had increased in something like the same ratio in intelligence and wealth. Thus it was that these two great writers, like the Israelites that spied out the land of Canaan, brought back a good report, which was soon disseminated throughout France.

After the close of the American Revolution the French people were much elated by the thought that they had lent a helping hand in the work of dismembering the British empire, and that they had secured a permanent ally far across the briny seas. They felt that they had broken the prestige of the perfidious Albion; and that they had humbled her pride. Many thought that she could never again claim to be first class power. The stain of Crecy and Agincourt had been washed away at Yorktown; and under such circumstances France could afford to be generous to a fallen foe. For the first and the only time anglomania seized upon the people, or at least upon the higher classes. English clubs, English horse-races and English jockeys, English dress and manners, were eagerly copied with that sudden enthusiasm which marks the Gallic temperament. Montesquieu's Spirit of the Laws had awakened interest in the study of comparative jurisprudence; and had even made it fashionable in the salons of Paris, where ladies talked knowingly of the laws of the ancient Persians and Thracians.

The first volume of Blackstone's Commentaries on the Laws of England was published in 1765, and the last volume came out four years later. The idea of writing this work was no doubt suggested by Domat's great treatise on the Civil Law, to the plan of which Blackstone adhered at least so far as to endeavor to unfold the mysteries of jurisprudence in such terms as might bring them within the comprehension of the inquiring and thoughtful layman. When the States-General were called to meet some months after at Versailles in 1789 Blackstone's Commentaries were eagerly perused by many who aspired to play a political part in the national affairs of France, as well as by others of their fellow subjects of enlightened intelligence; and English insti

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