the very ground on which, with us, a juryman could not be challenged, though by British law even seven brothers of the accused might be on the jury.

One of the law triads says the case of a son imputed to a man-false affiliation -may be denied three ways:1. By the reputed father.

2. If he were dead, by the pencenedl. 3. If there were then none, by fifty men of the kin.

Another triad, which speaks of false affiliation, gives us some insight into a kind of habeas corpus law, which the Britons then held.

"The three plagues of a kin are :— "1. To breed up the child of a lord " (whatever it was, I know not).

"2. To bring a child falsely to a kin. "3. Gwarchadw ❞—to keep pen raith in custody the head-swearer, whom I take to be the man clearing himself by the oaths of his kin, who swore that they believed to be true the oath of the man at the bar.

In this case, the verdict was to be, as with us, that of the whole jury, and not of a part of them; for the law declares, "If one of the oathsmen will "not swear this oath, the oaths of the "others are of no weight."

But there was another lower oath, in which two-thirds of the jury would give a verdict, that the oathsman believed to be likely (not true) that which the accused had sworn.

For suits as to goods for the value of 20 ceiniaug (silver pennies), there should be five oathsmen;

the difference between the British and the English law is clear. The English settled here, as our people now settle in Australia-men from sundry parts of their fatherland, side by side; and therefore they could not have kept up tribeship, and they took, instead of it, their boroughship-which boroughship consisted in a making-up of social tribes on neighbourhood, instead of kindred. on blood.

"They should reckon," says English law, "ten men together (a tithing), "and the eldest should hold the nine to "their duties ;" and they were to keep the geald's money, and know what they paid and took for geald.

And yet the Saxon-English held, as nearly as they could, to the kindredgeald, since, if a man should accuse another, and say he was homicide, he must clear himself with his kindred (mid his magan), who must bear or make good his wrong. So, if a slayer fled from the land, his kinsmen were to pay half his blood-money; and, if a man fought with another, and killed him, his mother's kin paid one-third of his geald, his hundreds-men onethird, and for a third he fled.

The number of oathsmen was, in many cases of life, the same with the Old English as it is with us, and was with the Britons-twelve; and they held the rule that a man was to be tried

by his peers. A thane accused of manslaughter must clear himself with twelve king's thanes; or, if he were a thane of lower rank than a king's thane, he must clear himself with eleven of his equals (his gelicene, his likes, answering to the wording of the British law, nesaf ei werth, nearest to his own state), and with one king's thane. Now, was this system of wergeald, and trial by jury, the work of the English-Saxons, either here or in the North? Or was it an earlier law of the Britons, taken up from them by the Saxon-English in Britain? We do not find the law of jury with wergeald in the old laws of our elder brethren, the Frisians, from whom our forefathers came; and that

English, we may cite as one witness among many, Innes's "Scotland in the Middle Ages." In explaining the old Scotch laws of the rating of goods for the sake of galánas, or geald, and of a man's clearing of himself by the oathsmen, who were bound to swear for him that they believed him guilty, Mr. Innes tells us they were called the laws of the "Brets and Scots"-the Brets being the North Britons or Picts, and the Scots the other Celtic race, the Highlanders or Irish. He adds that these laws were proscribed as barbarous by Edward I., in 1305. Mr. Innes observes that there is nothing said in these laws of witnesses; but, by the laws of Hywel Dda, oathsmen might be witnesses.

In the run of time, the tribeship of the Britons was broken up, and the bonds of English boroughship, of hundreds, and tithings, were loosened; and the kindred oathsmen of the Welsh, and of the Brets and Scots, and of the English fellowship, became a panel of twelve freemen. Formerly there was a panel, as there must have been with the Britons, for every single case; but, by the 3 Geo. II., it was enacted that there should be one panel, of from forty-eight to seventy-two men, for all cases of an assize.

Anciently, the English law kept so near to the British that the jury must be fellow-hundreds-men of the accused. But, under Edward III., six, and then, under Elizabeth, only two, were to be of his hundred; and, lastly, under George II., all of them might be from other hundreds than that of the prisoner on trial.

The assessment of the geald on the hundred was brought down to late times. We may find a hint of it in old editions of the book of that everlasting old master of commercial arithmetic, Walkingame, who, telling his disciples that a robbery has been committed on the highway, and that an assessment for the geald has been made on the hundred, requires them, by way of exercise, to assign, by a given scale, the shares of the geald to the several towns,

Now, what is the difference between our juries, and those of Britain in early times of the Britons and Saxon-English? The difference is that their juries were for the clearing of a man, and not for the finding him guilty; for, unless he could clear himself by their oaths, he was guilty by the accusation. All the oathsmen were of his kin, or his boroughship; and, if all of them, not most of them, could not clear him by their verdict, then he was guilty. Our juries, on the other hand, seem called either to clear or to convict a man, and are not to be of his kin or kith. Yet, in doctrine, if not in practice, we hold so much of the law of kinship as to allow that a man should be tried by his peers, and that, if a foreigner be tried by our laws, he should have a medietas linguæ, a half of his speech, or six of the jury foreigners.

Whatever changes we have made in trial by jury, and in whatever cases we have cast it aside, we shall most likely be ready to believe that we have done wisely; and, at all events, the dust of the Britons that sleeps on our hills, wherever the farmer or the antiquary will leave it alone, cannot rise to gainsay us. It seems, however, to have been a good, as it was a great, maxim of their law, that a man should not be tried by his foes, or by men of a hostile class. To this doctrine we shall most likely all assent. What hope is there for lambs as tried by the wolf; or, if the cat had wings, what would become of the sparrows? It may be thought that the kindred of a man among the Britons would always clear him for their own sakes; and yet we hold, with them, that a man should be tried by his peers. Who are meant by his peers? Who were meant by a man's peers with the Britons and SaxonEnglish, we see by their laws. A Welshman was to be tried by his kindred, and an Englishman with his likes. (mid his gelícena); and both by those men who would have to take amends or make amends for their wrongs. This form of trial answered for hundreds of

men revered an oath more than we do, I am as sorry as unwilling to allow it. Alas! for our civilization, ay, and our religion, if such was the truth! I believe the Britons and our forefathers thought-as, with all our crimes and perjuries, we should most likely believe

that there will be at least one good conscience among twelve men; and, as a man could not be cleared but by a verdict of the whole jury, the whole jury were found to do justice. And, if an accused man was convicted of a crime by twelve of his own kin, how trustworthily fair was his conviction; while a verdict of guiltiness from a jury of foes, or of a foe-class, would rarely be received as justice by a man's kindred or friends.

The rule, therefore, that a man should be tried by his peers, as it is a rule of English common law, is still a good one, and our safeguard. No man should be tried by a jury of the class against whom alone he can do his crime. If, in America, for example, a man under an accusation of helping a slave to escape, is tried by a jury of slave-owners, he is not tried by the common law of our race. So neither would it be by the mind of English law that a man, for an uproar in a strike, should be tried by a jury of masters in his craft, or that a master, for a like breach of the peace, should be tried by twelve of his men on strike.

A nobleman is not to be tried by commoners. Good! and a commoner ought not to be tried by noblemen. And yet, if a noble magistrate on the bench convicts a man without a jury, as he is jury as well as judge, he so far violates the common law of the land. If it be answered that a man of higher rank ought not to be tried by a lower one, but that a man of low state should be tried by his betters, I answer that such is not the mind of English common law; and, as far as it may be statute law, it seems to me to be a stroke for oligarchy or despotism. The cry of the Britons is, let a man be tried by men (nesaf ei werth), nearest his own state, and of old English law, by (his gelícena) his likes.

I may be told, as I have already been told, that I must allow that robbers or thieves ought to be tried by a jury of robbers or thieves. No such thing. Robbers and thieves are not a lawful class of the community. Their very being as such a class is forbidden by the law; and we can never impute to the law a willingness that a man should be tried by a class to which it forbids the very act of being.

The peace-men do not seem to me to be unreasonable in their wish to have the acts of kings or States tried by a jury of kings or States as arbitrators. If we could get a good and fully received law of nations by which any tyrant or wrong-doer among his neighbours should be bound to abide by the award of six, if not twelve, good sovereigns, or "his likes," it seems that it would be the height of civilization, though, even then, as a man convicted of crime is not fit for a juryman, so a king whose tyranny has bred an insurrection in his own land might not be qualified for the jury-box of crowned heads.

Some have thought that our juries are taken from men of too little school knowledge, if not of too low an understanding. I am not of that opinion. The jury are judges of fact, and not of law; and plain men of common understanding are not often very bad judges of such facts as come into the trials of their own peers. Their ignorance may be only of the technicalities of law forms and law words; and charges of incompetency may be made against a jury by a single writer in a newspaper, whose one opinion is to be taken as of more weight than that of twelve hearers and watchers of the prisoners, of the witnesses, and of the whole trial.

Such a man, moreover, may think, in his eagerness to get a so-deemed bad man out of the community, that the office of a jury is to convict a prisoner; whereas the old, and, I think, the true view of their office seems to have been, that the man would be convicted by the accusation, unless the jury could, with a

British law cries of the accused and the accusation, let him deny it (gwadded) with so many men; and the voice of the Saxon-English is, "Let him clear, or cleanse himself (becaenne hine), if he can," and again, "Let him clear himself" (ladige hine). And the judge, even yet, tells the jury that, if they have any doubt of the prisoner's guilt, they are to give him the benefit of it. The question, therefore, for a juryman seems to be, "Can I with a good conscience clear the prisoner?" not, "Can I fairly convict him?" It is better that a guilty man should once in a long time be wrongfully freed, than that every man's life or freedom should be at the mercy of any tool of a faction.

Magna Charta declares that no free man shall be taken or imprisoned unless by a lawful judgment of his peers, or by the law of the land. These words seem clear enough, and yet they are to me very far from clear; for, if a man is not to be imprisoned without a trial by his peers, Magna Charta is lost in our imprisonments from the juryless courts of magistracy. We have here no Magna Charta, and no such safeguard of our freedom; but we have King John again in all his might. "Ay," it may be answered, "but Magna Charta says that a man is to be tried by the judgment of his peers, or the law of the land; and now, by the statute law, which is the law of the land, a man may be imprisoned without trial by jury." Well then, Magna Charta was not tam Magna after all; for it only declared that a man should not be imprisoned without trial by his peers, until he should be so imprisoned. But does "the law of the land," in Magna Charta, mean statute-law, or the common law of England's freedom? That is what I want to know.

In the code of British law there certainly was statute-law which was not called the law of the land. Hywel's code is in three parts:

1. Laws of the court.

2. Laws of the land (Cyfraith y Wlad).

And again, Chap. I. is headed, Laws of Women, as it contains Laws for the Rights and Protection of Women; and that those statute-laws were not deemed laws of the land is clear, inasmuch as the first words of the second chapter are, "Here begin the Laws of the Land" (Cyfreithieu y Wlad).

Then again, on the other side, on looking into the laws of our elder brethren, the Frisians, I find it declared that the law of the land, "Dat Landriucht," takes in both the canon law (Paws riucht), and the civil law (Keyser's riucht); so that, as I cannot learn what is the law of the land, I know not whether we have the safeguard of Magna Charta, or have it not.

Those who would write down either juries, or the verdicts of the whole rather than of a majority, as a clumsy hindrance to justice, may want to find convicted the rogue whom they have already convicted in their own minds, and they may yearn for any trial gear that would most quickly and surely work out their own wills; but the truth is that, if conviction were the aim of a trial, there would be no need of jury or judge. A man is holden to be guilty by his accusation and commitment for trial; for on what other ground than that of guilt can a man be taken out of his English freedom, and cast into a jail? Leave him to the prosecutor's accusation, and he will convict him. Leave the state-prisoner to the tyrant, and he will find him guilty. But no. The prosecutor holds that the accused is guilty; but the law, though it allows him to be taken for trial, still holds that he is guiltless till he has been convicted by his

convicted by his peers, and brings those peers to clear him, if they can, with a good conscience, from the prosecutor's accusation. So much the more foolish, some may answer, when we know all the while the villain is guilty; and for rogues, such as we know him to be, summary conviction is much better than the clumsy machinery of a trial by jury. In answer to such an opinion I will tell a fable. A man had a good axe

to chop up some small wood for nickies, as we call them in the West-some little bundles of wood for lighting fires-he said to himself, "What a clumsy tool is this for chopping nickies !" and he gave away his axe for a small bill-hook; and, on wanting to turn some nicknacks, he gave away his great clumsy lathe, as he called it, for a little table machine; but, a month afterwards, he wanted to fell a tree, and to turn some banisters, and he thought, "Oh, hang it! I wish I had my axe and big lathe.

I might have chopped "nickies with my axe, and might have "turned my nicknacks with my long "lathe, better than I can fell a tree with "this little bill-hook, or turn banisters "on nine inches of lathe-bed." Trial by jury, the axe and the long lathe, may be rather heavy for some little jobs of justice; but never mind; keep it for great

ones.

Men want a machinery that will save a Naboth's vineyard and life from a Jezebel; helpless right from great might.

A writer on Turkey has given some notes on summary punishments or convictions of Mohammedan law. A baker, at Constantinople, he tells us, was standing at the door of his shop with a friend from the provinces, and saw coming to his house the inspector of weights. He at once fled, lest that judge, jury, and officer, should nail his ear to the door-post. His loaves were found short of weight, and what could be clearer than that the only man in the shop should be its owner? He must be the guilty baker, and his ear was nailed to the door. There is a political maxim in Turkey that irksome legality is less good than quick injustice, because the fear and awe which so rigid a manner of proceeding infuses into the hearts of the people make them ready to obey the most irrational commands.

Men are of two opinions whether it would be best that a verdict should be taken as good from a majority of a jury as well as of a one-minded one. I would not, however, even with Paley, give up our law of a one-minded jury for that of a majority. Hampden was tried by twelve judges, who were, de facto,

him, while four deemed him in the right. If the law of one-mindedness had holden over the twelve judges, as it holds over twelve jurymen, he might have won his suit against the king, and the constitution might have been preserved without the civil war and Cromwell's military despotism. Again, juries of a few-voiced verdict would be more easily packed, or tampered with by strong minds among themselves, than could our juries of one-voiced verdicts; and the latter gives less might to the mighty side when that side is to be feared. Farther, a few-voiced verdict would be far less satisfactory than a full-voiced one to men at the bar, and all their friends, and, in political trials, to friends of their cause. man's friends would say, "Oh, yes, our father, or brother, or cousin, or friend, is convicted, forsooth, and how? Why, he is condemned to the gallows, or the prison, or to banishment, when five of the jury were convinced he was guiltless; and we know who turned the scale of opinion-two weakminded fellows who were biassed by others, his foes." To be constantly breeding dissatisfaction and disaffection to the laws would be a great evil; and, if writers now complain of the injustice of verdicts of one-minded juries, much more would they complain of verdicts of seven jurymen, when five were of their own opinion

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"Nay, but," it has been said, "it is a great hindrance to justice when one stubborn juryman holds on his opinion against his eleven brethren, so that the jury is discharged without a verdict." Now the little evil and the great good of this case has been most nicely hit by a writer in the Illustrated Times of the 23d of March, 1861. The judge had discharged a jury, (though not from a want of onemindedness,) and, as it was, says the writer, there was no trial; consequently they (the prisoners) might again be placed at the bar-nay more, the jury may be again discharged, and the same course be adopted during the lives of the parties.