FORM OF PROCESS BEFORE THE JURY COURT.' PART I. INTRODUCTION. THAT HAT trial by Jury was at one time univers ally established in this country, and even prevailed in the courts of civil judicature, will not be disputed by any one acquainted with the ancient history of our Law. Our ancestors probably received it at the same time, and from the same source, with their neighbours in England; and traces of it being to be found" in the "laws of all those nations which adopted the "feudal system, as in Germany, France, and a When a former part of this work was put to press, the present Jury Court had not been instituted; and it was noticed as a matter of regret, that so little attention had in this country been paid to a form of trial, from which many seemed to anticipate the greatest public advantage. Since that time, the desired experiment has been made: But with what success, there is yet hardly enough of experience to enable any one to judge. Reports by the Committees of the Faculty and Writers to the Signet, in 1807. Lord Swinton's Considerations concerning the Revival of Jury Trial, in 1789. Kames's Law Tracts, voce Courts, p. 291. Glassford's Remarks on Scottish Courts of Law, passim, &c. &c. C Italy," it is not unlikely that all may have derived it from one common origin. What that common origin was, it must now be difficult, and, perhaps, altogether impossible, to discover. Some have traced it back to the classical times of the Greeks and Romans; and, certainly, in the judicial institutions both of Athens and Rome, there is a very strong analogy, if not an absolute and perfect similitude, to the Jury of the present day. So palpable, indeed, is the likeness, that those even who derive our Juries from a different quarter have been constrained to acknowledge it.a Dr. Pettingal, whom Sir William Blackstone, a very competent judge, characterizes "as a "learned writer," has written an essay' for the express purpose of establishing the classical origin of Juries. And so powerful and many are the resemblances which he points out between them, and the Smaora of the Greeks, and the c Blackstone's Commentaries, vol. iii, p. 349. d Gibbon, when speaking of the Roman judices selecti, says, the prætor, or presiding magistrate," could only pronounce the sentence "of the majority of judges, who with some truth and more preju"dice, have been compared to the English Juries." Decline and Fall of the Roman Empire, vol. viii, p. 105. • Blackstone's Commentaries, vol. iii, p. 365, Note". "An inquiry into the use and practice of Juries among the "Greeks and Romans, from whence the origin of the English Jury "may probably be deduced." 1769. judices selecti of the Romans, that one is almost tempted to acquiesce in his conclusions. Among the Athenians, there was the same relative connection between the Apxwr, or presiding magistrate, and the AmαTα-that at present subsists between our Judge and Jury." The Δικασται σε were chose out of all the different "ranks of the people." "In order to prevent "all suspicion of corruption, they were chose by "lot. They tried all the principal causes, and "the majority carried the question. They were "increased in number according to the import66 ance of the cause. When they were impan "nelled they were inclosed by a rope, to pre 8 Pettingall, passim. And in illustration and support of his assertion he refers to frequent passages in the Greek orators. 46 See, in particular, Lysias, 2d Orat. C. Alcibiad., where the distinction between the presiding magistrate and the dixara is strongly brought out. σε Εγω μεν ω ΑΝΔΡΕΣ ΔΙΚΑΣΤΑΙ υμας αίθεμαι τα δικαια σε ψηφίσασθαι και των ΣΤΡΑΤΗΓΩΝ δέομαι επει και εν τη αλλη αρχη πολλε σε άξιος τη πόλει γεγονασι, και περι των της ασφάλειας γραφον κοινωνες είναι 66 τω τε διώκοντι και το φευγοντι See also Lycurgus C. Leochrat. § 19, p. 205, edit. Taylor, where, in addition to the Agxw, and Aixusa, (the judge and jury), a third class is introduced, viz. the dins, by whom Dr. Pettingal understands to be meant a person analogous to our witness. σε – το συνεχαν την δημοκρατείαν ορκος εσιν τρια γαρ εσιν εξ ων η πολιτεία συνέςηκεν, ο ΑΡΧΩΝ, • ΔΙΚΑΣΤΗΣ, Ο “ ΙΔΙΟΤΗΣ, τε τών έκαςος ταυτην την πισιν δίδωσιν εικοτως.” See also Potter's Archæologia Græca, cap. 21, p. 118, 4th edition." When "both the parties, i. e. the counsel on both sides, had made an end "of speaking, the crier, by command of the magistrate who presid“ed, (Agxw»), ordered the judges (Axa5α) to bring in their verdict.” Where the learned Archbishop, as is contended by Dr. Pettingall, "directed by the natural reason of the thing, and the resemblance "it bore to our own method of proceeding, declares the dixasai a "jury without intending it, and explains what he means by the "word judges, by supposing them to bring in a verdict." Pettingal, p. 46. |