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the very ground on which, with us, a the difference between the British and juryman could not be challenged, though the English law is clear. The English by British law even seven brothers of settled here, as our people now settle the accused might be on the jury. in Australia—men from sundry parts of
One of the law triads says the case of their fatherland, side by side ; and a son imputed to a man-false affiliation therefore they could not have kept up —may be denied three ways :
tribeship, and they took, instead of it, 1. By the reputed father.
their boroughship—which boroughship 2. If he were dead, by the pencenedl. consisted in a making-up of social tribes
3. If there were then none, by fifty on neighbourhood, instead of kindred men of the kin.
on blood. Another triad, which speaks of false “They should reckon," says Engaffiliation, gives us some insight into a lish law, “ten men together (a tithing), kind of habeas corpus law, which the "and the eldest should hold the nine to Britons then held.
“their duties ;” and they were to keep “ The three plagues of a kin are : the geald's money, and know what they
“ 1. To breed up the child of a lord” paid and took for geald. (whatever it was, I know not).
And yet the Saxon-English held, as “ 2. To bring a child falsely to a kin. nearly as they could, to the kindred
“ 3. Gwarchadw pen raith" —to keep geald, since, if a man should accuse in custody the head-swearer, whom I another, and say he was homicide, he take to be the man clearing himself by must clear himself with his kindred the oaths of his kin, who swore that they (mid his magan), who must bear or believed to be true the oath of the man make good his wrong. So, if a slayer at the bar.
fled from the land, his kinsmen were In this case, the verdict was to be, as to pay half his blood-money; and, if with us, that of the whole jury, and a man fought with another, and killed not of a part of them ; for the law him, his mother's kin paid one-third declares, “If one of the oathsmen will of his geald, his hundreds-men one“not swear this oath, the oaths of the third, and for a third he fled. “others are of no weight.”
The number of oathsmen was, in But there was another lower oath, in many cases of life, the same with the which two-thirds of the jury would Old English as it is with us, and was give à verdict, that the oathsman be- with the Britons — twelve ; and they lieved to be likely (not true) that which held the rule that a man was to be tried the accused had sworn.
by his peers. A thane accused of For suits as to goods for the value of manslaughter must clear himself with 20 ceiniaug (silver pennies), there should twelve king's thanes ; or, if he were a be five oathsmen ;
thane of lower rank than a king's thane, 60 ceiniang . . . . . 12 he must clear himself with eleven of his 120. . . . . . . . 24 equals (his gelicene, his likes, answering A pound . . . . 48 to the wording of the British law, nesaf For less than a man-load. 3 ei werth, nearest to his own state), and
For a horse-load. ... 10 with one king's thane. Now, was this For theft, the oathsmen were to be, system of wergeald, and trial by jury, as with us, twelve-six men of mark, the work of the English-Saxons, either and six men of no mark.
here or in the North? Or was it an The Saxon-English law of wrongs, earlier law of the Britons, taken up both of life and goods, was like that from them by the Saxon-English in of the Britons, save that the oaths- Britain ? We do not find the law of men were not needfully of a man's jury with wergeald in the old laws of kindred, though they were to be his our elder brethren, the Frisians, from fellow-hundreds-men, bound to stand by whom our forefathers came ; and that English, we may cite as one witness Now, what is the difference between among many, Innes's “Scotland in the our juries, and those of Britain in early Middle Ages." In explaining the old times of the Britons and Saxon-English ? Scotch laws of the rating of goods The difference is that their juries were for the sake of galánas, or geald, and of for the clearing of a man, and not for a man's clearing of himself by the the finding him guilty; for, unless he oathsmen, who were bound to swear for could clear himself by their oaths, he was him that they believed him guilty, Mr. guilty by the accusation. All the oathsInnes tells us they were called the laws men were of his kin, or his boroughship; of the “ Brets and Scots"—the Brets and, if all of them, not most of them, being the North Britons or Picts, and could not clear him by their verdict, the Scots the other Celtic race, the then he was guilty. Our juries, on the Highlanders or Irish. He adds that other hand, seem called either to clear these laws were proscribed as barbarous or to convict a man, and are not to be by Edward I., in 1305. Mr. Innes of his kin or kith. Yet, in doctrine, observes that there is nothing said in if not in practice, we hold so much of these laws of witnesses ; but, by the the law of kinship as to allow that a laws of Hywel Dda, oathsmen might man should be tried by his peers, and be witnesses.
that, if a foreigner be tried by our laws, In the run of time, the tribeship of he should have a medietas linguæ, a half the Britons was broken up, and the of his speech, or six of the jury fobonds of English boroughship, of hun- reigners. dreds, and tithings, were loosened ; and Whatever changes we have made in the kindred oathsmen of the Welsh, trial by jury, and in whatever cases we and of the Brets and Scots, and of the have cast it aside, we shall most likely English fellowship, became a panel be ready to believe that we have done of twelve freemen. Formerly there wisely; and, at all events, the dust of was a panel, as there must have been the Britons that sleeps on our hills, with the Britons, for every single case; wherever the farmer or the antiquary but, by the 3 Geo. II., it was enacted will leave it alone, cannot rise to gainsay that there should be one panel, of from us. It seems, however, to have been a forty-eight to seventy-two men, for all good, as it was a great, maxim of their cases of an assize.
law, that a man should not be tried by Anciently, the English law kept so his foes, or by men of a hostile class. near to the British that the jury must To this doctrine we shall most likely be fellow hundreds-men of the accused. all assent. What hope is there for But, under Edward III., six, and then, lambs as tried by the wolf; or, if the under Elizabeth, only two, were to be of cat had wings, what would become of his hundred; and, lastly, under George II., the sparrows ? It may be thought all of them might be from other hun- that the kindred of a man among the dreds than that of the prisoner on trial. Britons would always clear him for
The assessment of the geald on the their own sakes; and yet we hold, with hundred was brought down to late times. them, that a man should be tried by We may find a hint of it in old his peers. Who are meant by his editions of the book of that ever- peers ? Who were meant by a man's lasting old master of commercial arith- peers with the Britons and Saxonmetic, Walkingame, who, telling his dis- English, we see by their laws. A ciples that a robbery has been committed Welshman was to be tried by his kinon the highway, and that an assessment dred, and an Englishman with his likes for the geald has been made on the (mid his gelícena); and both by those hundred, requires them, by way of ex- men who would have to take amends ercise, to assign, by a given scale, the or make amends for their wrongs. This shares of the geald to the several towns, form of trial answered for hundreds of men revered an oath more than we do, I may be told, as I have already been I am as sorry as unwilling to allow it. told, that I must allow that robbers or Alas! for our civilization, ay, and our thieves ought to be tried by a jury of religion, if such was the truth! I be- robbers or thieves. No such thing. lieve the Britons and our forefathers Robbers and thieves are not a lawful thought-as, with all our crimes and class of the community. Their very being perjuries, we should most likely believe as such a class is forbidden by the law; --that there will be at least one good and we can never impute to the law a conscience among twelve men; and, as a willingness that a man should be tried man could not be cleared but by a ver- by a class to which it forbids the very dict of the whole jury, the whole jury act of being. were found to do justice. And, if an The peace-men do not seem to me accused man was convicted of a crime to be unreasonable in their wish to have by twelve of his own kin, how trust- the acts of kings or States tried by a worthily fair was his conviction ; while jury of kings or States as arbitrators. a verdict of guiltiness from a jury of If we could get a good and fully foes, or of a foe-class, would rarely be received law of nations by which any received as justice by a man's kindred tyrant or wrong-doer among his neighor friends.
bours should be bound to abide by the The rule, therefore, that a man should award of six, if not twelve, good sovebe tried by his peers, as it is a rule of reigns, or “his likes," it seems that English common law, is still a good one, it would be the height of civilization, and our safeguard. No man should be though, even then, as a man convicted tried by a jury of the class against whom of crime is not fit for a juryman, so a alone he can do his crime. If, in Ame- king whose tyranny has bred an insurrica, for example, a man under an accu- rection in his own land might not be sation of helping a slave to escape, is qualified for the jury-box of crowned tried by a jury of slave-owners, he is heads. not tried by the common law of our race. Some have thought that our juries So neither would it be by the mind of are taken from men of too little school English law that a man, for an uproar knowledge, if not of too low an underin a strike, should be tried by a jury of standing. I am not of that opinion. masters in his craft, or that a master, The jury are judges of fact, and not of for a like breach of the peace, should be law; and plain men of common undertried by twelve of his men on strike. standing are not often very bad judges
A nobleman is not to be tried by of such facts as come into the trials of commoners. Good! and a commoner their own peers. Their ignorance may be ought not to be tried by noblemen. only of the technicalities of law forms And yet, if a noble magistrate on the and law words; and charges of incombench convicts a man without a jury, petency may be made against a jury by as he is jury as well as judge, he so far a single writer in a newspaper, whose violates the common law of the land one opinion is to be taken as of more If it be answered that a man of higher weight than that of twelve hearers and rank ought not to be tried by a lower one, watchers of the prisoners, of the witbut that a man of low state should be nesses, and of the whole trial. tried by his betters, I answer that such S uch a man, moreover, may think, in is not the mind of English common law; his eagerness to get a so-deemed bad and, as far as it may be statute law, it man out of the community, that the seems to me to be a stroke for oligarchy office of a jury is to convict a prisoner ; or despotism. The cry of the Britons is, whereas the old, and, I think, the true let a man be tried by men (nesaf ei view of their office seems to have been, werth), nearest his own state, and of old that the man would be convicted by the English law, by (his gelícena) his likes. accusation, unless the jury could, with a
British law cries of the accused and the And again, Chap. I. is headed, Laws accusation, let him deny it (gwadded) of Women, as it contains Laws for the with so many men ; and the voice of Rights and Protection of Women; and the Saxon-English is, “Let him clear that those statute-laws were not deemed or cleanse himself (becaenne hine), if laws of the land is clear, inasmuch as he can," and again, “Let him clear the first words of the second chapter himself” (ladige hine). And the judge, are, “Here begin the Laws of the Land ” even yet, tells the jury that, if they have (Cyfreithieu y Wlad). any doubt of the prisoner's guilt, they T hen again, on the other side, on are to give him the benefit of it. The looking into the laws of our elder question, therefore, for a juryman seems brethren, the Frisians, I find it declared to be, “Can I with a good conscience that the law of the land, “ Dat Landclear the prisoner ?” not, “Can I fairly riucht," takes in both the canon law convict him ?” It is better that a guilty (Paws riucht), and the civil law (Keyman should once in a long time be ser's riucht); so that, as I cannot learn wrongfully freed, than that every man's what is the law of the land, I know not life or freedom should be at the mercy whether we have the safeguard of of any tool of a faction.
Magna Charta, or have it not. Magna Charta declares that no free Those who would write down either man shall be taken or imprisoned unless juries, or the verdicts of the whole by a lawful judgment of his peers, or by rather than of a majority, as a clumsy the law of the land. These words hindrance to justice, may want to seem clear enough, and yet they are to find convicted the rogue whom they me very far from clear; for, if a man have already convicted in their own is not to be imprisoned without a minds, and they may yearn for any trial by his peers, Magna Charta is trial gear that would most quickly and lost in our imprisonments from the surely work out their own wills; but juryless courts of magistracy. We have the truth is that, if conviction were the here no Magna Charta, and no such aim of a trial, there would be no need safeguard of our freedom ; but we have of jury or judge. A man is holden to King John again in all his might. “Ay," be guilty by his accusation and commitit may be answered, “but Magna Charta ment for trial ; for on what other ground says that a man is to be tried by the than that of guilt can a man be taken judgment of his peers, or the law of the out of his English freedom, and cast land; and now, by the statute law, which into a jail ? Leave him to the proseis the law of the land, a man may be cutor's accusation, and he will convict imprisoned without trial by jury." Well him. Leave the state-prisoner to the then, Magna Charta was not tam tyrant, and he will find him guilty. Magna after all ; for it only declared But no. The prosecutor holds that the that a man should not be imprisoned accused is guilty ; but the law, though it without trial by his peers, until he allows him to be taken for trial, still should be so imprisoned. But does “the holds that he is guiltless till he has been law of the land,” in Magna Charta, convicted by his peers, and brings those mean statute-law, or the common law of peers to clear him, if they can, with England's freedom? That is what I a good conscience, from the prosecutor's want to know.
accusation. So much the more foolish, In the code of British law there some may answer, when we know all certainly was statute-law which was the while the villain is guilty ; and for not called the law of the land. Hywel's rogues, such as we know him to be, code is in three parts :
summary conviction is much better 1. Laws of the court.
than the clumsy machinery of a trial by 2. Laws of the land (Cyfraith y jury. In answer to such an opinion I Wlad).
will tell a fable. A man had a good axe
to chop up some small wood for nickies, him, while four deemed him in the as we call them in the West—some little right. If the law of one-mindedness had bundles of wood for lighting fires—he said holden over the twelve judges, as it to himself, “ What a clumsy tool is this holds over twelve jurymen, he inight for chopping nickies !” and he gave away have won his suit against the king, his axe for a small bill-hook; and, on and the constitution might have been wanting to turn some nicknacks, he gave preserved without the civil war and away his great clumsy lathe, as he called Cromwell's military despotism. Again, it, for a little table machine; but, a month juries of a few-voiced verdict would afterwards, he wanted to fell a tree, and be more easily packed, or tampered with to turn some banisters, and he thought, by strong minds among themselves, than “Oh, hang it! I wish I had my axe and could our juries of one-voiced verdicts ; “big lathe. I might have chopped and the latter gives less might to the “nickies with my axe, and might have mighty side when that side is to be “ turned my nicknacks with my long feared. Farther, a few-voiced verdict “ lathe, better than I can fell a tree with would be far less satisfactory than a “ this little bill-hook, or turn banisters full-voiced one to men at the bar, “ on nine inches of lathe-bed.” Trial by and all their friends, and, in political jury, the axe and the long lathe, may be trials, to friends of their cause. A rather heavy for some little jobs of jus- man's friends would say, "Oh, yes, tice; but never mind; keep it for great our father, or brother, or cousin, or ones. Men want a machinery that will friend, is convicted, forsooth, and how? save a Naboth's vineyard and life from a Why, he is condemned to the gallows, Jezebel; helpless right from great might or the prison, or to banishment, when
A writer on Turkey has given some five of the jury were convinced he was notes on summary punishments or con- guiltless; and we know who turned victions of Mohammedan law. A baker, the scale of opinion, two weakminded at Constantinople, he tells us, was fellows who were biassed by others, standing at the door of his shop with a his foes.” To be constantly breeding friend from the provinces, and saw dissatisfaction and disaffection to the coming to his house the inspector of laws would be a great evil; and, if writers weights. He at once fled, lest that judge, now complain of the injustice of verdicts jury, and officer, should nail his ear to of one-minded juries, much more would the door-post. His loaves were found they complain of verdicts of seven juryshort of weight, and what could be men, when five were of their own clearer than that the only man in the opinion shop should be its owner? He must “Nay, but,” it has been said, “it is be the guilty baker, and his ear was a great hindrance to justice when one nailed to the door. There is a political stubborn juryman holds on his opinion maxim in Turkey that irksome legality against his eleven brethren, so that the is less good than quick injustice, because jury is discharged without a verdict.” the fear and awe which so rigid a manner Now the little evil and the great of proceeding infuses into the hearts of good of this case has been most the people make them ready to obey nicely hit by a writer in the Illustrated the most irrational commands.
Times of the 23d of March, 1861. Men are of two opinions whether it The judge had discharged a jury, would be best that a verdict should be (though not from a want of onemindedtaken as good from a majority of a juryness,) and, as it was, says the writer, as well as of a one-minded one. I there was no trial; consequently they would not, however, even with Paley, (the prisoners) might again be placed at give up our law of a one-minded jury the bar-nay more, the jury may be for that of a majority. Hampden was again discharged, and the same course be tried by twelve judges, who were, de facto, adopted during the lives of the parties.