and, though [384] they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretences to another mode of trial.* The courts of law will therefore in transitory actions very often change the venue, or county wherein the cause is to be tried:† but in local actions, though they sometimes do it indirectly and by mutual consent, yet to effect it directly and absolutely, the parties are driven to the delay and expence of a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial."?

The locality of trial required by the common law seems a consequence of the antient locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England. Formerly they were usually demanded only in the courtbaron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court (as seems to have been the course in the Saxon times) the lord of the hundred had a farther power, to convoke the inhabitants of different vills to form a jury; observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it came to the county court, the great tribunal of Saxon justice, the sheriff had a See pag. 294.

b This, among a number of other instances, was the case of the issues directed by the house of lords in the cause between the Duke of Devonshire and the miners of the county of Derby, A. D. 1762. c LL. Edw. Conf. v. 32. Wilk. 203.

*-* Quoted, with an omission, 15 Me. 93.

+ Cited, 4 Hen. & M. 252.

? Cited, 11 R. I. 185; 4 Hen. & M. 249.

wider authority, and could impanel a jury from the men of his county at large: but was obliged (as a mark of the original locality of the cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king's justiciars drew the cognizance of the cause from the [385] county court, though they could have summoned a jury from any part of the kingdom, yet they chose to take the cause as they found it, with all it's local appendages; triable by a stated number of hundredors, mixed with other freeholders of the county. The restriction as to hundredors hath gradually worn away, and at length entirely vanished; that of counties still remains, for many beneficial purposes: but, as the king's courts have a jurisdiction co-extensive with the kingdom, there surely can be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception.

I have ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober reflection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all it's imperfections) I trust that this mode of decision will be found the best criterion, for investigating the truth of facts, that was ever established in any country.

NOTES OF THE AMERICAN EDITOR TO CHAPTER XXIII.

(61) A privilege of the highest and most beneficial nature, page 350.

In the English jury we have a combination of two distinct institutions not always found united, but so easily harmonized, especially in primitive times, that it is a common mistake for students to think they have found both, where in fact only one of them existed. d See pag. 360.

One of these is the trial by one's peers, judicium parium, as distinguished from the absolute power of a superior (or his representative judges) to interpret and apply the law as he thinks best. Found almost everywhere in connection with customary law among rude peoples, it is limited and restricted as law becomes more definitely conceived and expressed; and is often completely banished by the principle of authentic interpretation (see note 24 to Introduction, page 160 of volume 1), in which the power of the "sovereign" to command culminated. (See note 19, page 137 of volume 1.)

The other element of jury trial is the separation of law and fact, i. e., the determination of the latter by a different body from that which pronounces the law. The value of this does not lie merely in the safeguard furnished against corruption or prejudice on the part of the judges, such as might lead them to punish for crimes never committed, or to close their eyes to the proofs of guilt. The tribunal of fact must be much more than a mere witness or referee, to report to the judge what has actually been done. It must have the power to draw those broad conclusions, known as ultimate or legal facts, including the motives and circumstances of outward acts, by which guilt or innocence in criminal cases: in civil ones the relative rights and duties of the parties are determined. In this sense the finding of facts covers much of the same ground with the application of the law to fact by authentic interpretation. This may explain why so little scope for that doctrine has ever been found in a country which had the trial by jury, a tribunal of fact in the fullest extent of the term.

Yet, in spite of the manifold connections thus seen between the two institutions first mentioned above, it is clear that they are distinct and may exist independently of each other. Perhaps no better illustration of

this can be given than that furnished in feudalism. The trial by one's peers was an essential feature of all feudal courts. It was here that the name originated, and hardly any judicial power existed apart from this. Yet the jury was unknown in its true sense, because of the entire commingling of law and fact in the judgments thus rendered.

On the other hand, it is evident that the jury first became an established institution in English law under royal favor, and not so much as a means of preserving the judicium parium as rather an expedient to reconcile that ancient right with the powers of the justices in eyre on their circuits. These judges needed no assistance in laying down the law, and hence we find no scabini by their side, as on the continent. Savigny, who thinks the scabini were found every where among the Germanic races, and that the English jury is a modified form of them, acknowledges that he cannot account on that hypothesis for the fact that the jury deal with questions of fact, as the Roman judices did, and do not deal with questions of law, as the scabini of the continent did. He quotes, however, an apt guess of Eichhorn's, that a like need of improvement in the primitive tribunals produced the scabini and the itinerant justices. But these justices could not pass on questions of fact for want of local knowledge, and would have found it difficult to deal with the mass of suitors in the shire, if they had not either originated or fostered some such means of determining facts as the jury. (See Savigny, R. R. on M., I. 258, and note h; also, Grimm, Rechtsalterthumer, p. 785; Biener. Geschw. III. 133, note 3.) Gneist indeed thinks that the juries originated in the curia regis, and could not have been carried into the shires before magna charta, or the reign of Edward I. (Const. Hist. I. 357.) But this is clearly wrong. Although there is no space here for a mere historical research, we know that the assisa

dates from Henry II., and have good reason to think the jurata older still; and whatever the origin of the jury, it is certainly its use in the circuits and assizes that has given it permanence and value as an English institution: as a tribunal of fact, even more than a judgment of peers.

The jurata has indeed been commonly assumed to be a subsequent form of the assisa. The chief interest of the question is in the inferences which may be drawn from either answer to it, as to the origin and source of jury trial as an institution.

We have not only the distinct statement of Glanvil, but other reasons also, for holding the assisa to have been an institution consciously created by positive law, the jurata to have been the gradual work of custom.

If this custom began after the introduction of the assisa (temp. Hen. II.) there is an end of all theories as to the A. S. origin of the jury, and much added plausibility in that of a Norman or continental primitive form, from which it was brought after the conquest.

But if this custom dates back of the assisa, it is altogether probable that the latter was only a statutory modification of it, to answer the needs of the time; and that the jurata may be entirely of English growth.

The principle of trial by one's peers, or as our law forcibly expresses it by the country, is often spoken of as peculiar to the Northern races of Europe: sometimes, though only through ignorance, to our English law. It is true that in the Corpus Juris, representing the law of the empire, it is neglected, as it is by the modern systems founded upon it in Continental Europe. But we know that in the latter this was the consequence of usurped power in the king or other centralized authority (see Montesquieu Esprit des Loix, book 28, chs. 42 and 43), and we have good reason to believe the same was the case at Rome. At least all capital trials were originally had in the comitia. The twelve