ABSTRACT
The subject of our next inquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country: a trial that has been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholsona to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feudal system, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, ‘boni homines’ usually the vassals or tenants of the lord, being the equals or peers of the parties litigant: and, as the lord’s vassals judged each other in the lord’s courts, so the king’s vassals, or the lords themselves, judged each other in the king’s court.b In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention.c Stiernhookd ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was co-temporary with our king Egbert. Just as we are apt to impute the invention of this, and some other pieces of juridical polity, to the superior genius of Alfred the great; to whom, on account of his having done much, it is usual to attribute every thing: and as the tradition of ancient Greece placed to the account of their one Hercules whatever achievement was performed superior to the ordinary prowess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other. Its establishment however and use, in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties; but especially by chapter 29. that no freeman shall be hurt in either his person or
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property; ‘nisi per legale judicium parium suorum vel per legem terrae’.* A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before:e ‘nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum’.* And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature.
