Origins Of Jury Trial And Other Institutes Of Common Law


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Origins Of Jury Trial And Other Institutes Of Common Law

  1. 1. Origins of Jury Trial and other institutes of common law
  2. 2. Thomas Jefferson to the Abbé Arnoux Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them.
  3. 3. Thomas Jefferson to Thomas Paine I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution
  4. 4. Alexis de Tocqueville, Democracy in America jury trials educate citizens about self-government. institution of the jury not only help to improve the law, it helps improve the jurors too. It educates them about law and legal process and helps them understand their duties as citizens. It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
  5. 5. To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged. . . . The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail. I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal. The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people
  6. 6. Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free. Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. When the jury is reserved for criminal offences, the people only witnesses its occasional action in certain particular cases; the ordinary course of life goes on without its interference, and it is considered as an instrument, but not as the only instrument, of obtaining justice. This is true a fortiori when the jury is only applied to certain criminal causes. When, on the contrary, the influence of the jury is extended to civil causes, its application is constantly palpable; it affects all the interests of the community; everyone co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself. The institution of the jury, if confined to criminal causes, is always in danger, but when once it is introduced into civil proceedings it defies the aggressions of time and of man.
  7. 7. In criminal causes, when society is armed against a single individual, the jury is apt to look upon the judge as the passive instrument of social power, and to mistrust his advice. Moreover, criminal causes are entirely founded upon the evidence of facts which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such, however, is not the case in civil causes; then the judge appears as a disinterested arbiter between the conflicting passions of the parties. The jurors look up to him with confidence and listen to him with respect, for in this instance their intelligence is completely under the control of his learning.
  8. 8. “ The jury . . . serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. “ Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit. Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.
  9. 9. English judges are more ‘technically oriented’ whereas ‘[t]he American professional judiciary is notoriously politicized and expected to consider ‘the equities’ of cases so that the door remains open to the consideration of various extralegal factors’. American jury assists in this equitable functioning and helps to buffer judges against criticism. In England and in America the judges exercise an influence upon criminal trials which the French judges have never possessed. The reason of this difference may easily be discovered; the English and American magistrates establish their authority in civil causes, and only transfer it afterwards to tribunals of another kind, where that authority was not acquired. Upon these occasions they are accidentally placed in the position which the French judges habitually occupy, but they are invested with far more power than the latter; they are still surrounded by the reminiscence of the jury, and their judgment has almost as much authority as the voice of the community at large, represented by that institution. Their influence extends beyond the limits of the courts; in the recreations of private life as well as in the turmoil of public business, abroad and in the legislative assemblies, the American judge is constantly surrounded by men who are accustomed to regard his intelligence as superior to their own, and after having exercised his power in the decision of causes, he continues to influence the habits of thought and the characters of the individuals who took a part in his judgment. The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate its power, and in no country are the judges so powerful as there, where the people partakes their privileges.  jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.
  10. 10. William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND Jury is "the glory of English law", "a strong … barrier between the liberties of the people and prerogatives of the Crown“ " The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias toward those of their own rank and dignity; it is not to be expected from human nature that the few should always be attentive to the interests and good of the many."
  11. 11. Adam Smith, Lectures on Jurisprudence Another thing which curbs the power of the judge is that all causes must be tried with regard to the fact by a jury. The matter of the fact is left entirely to their determination.
  12. 12. Smith seems more specific than Blackstone: for him, trial by jury is primarily a means to curb the power of the judge – and not the state at large. Yet, both have something similar in mind: judge is representative of powerful state against which people who appear in court are ill-protected. Professional judges who are independent from other branches of government as well as from conflicting parties might misuse their factual independence by remaining uninformed, following their own ideologies, becoming lazy or even corrupt. Juries are a potential means to make professional judges more accountable: if juries force judges to explain central content of the law to them in a comprehensible manner, possibility that judges can shield themselves behind complicated language is reduced.
  13. 13. Learned Hand, Spirit of Liberty I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
  14. 14. Charles de Montesquieu, De I'esprit des Lois compared European jurisdictions, expressed his preference for the English judicial system and stated that "the judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires."
  15. 15. Jean Jacques Rousseau, Du Contrat Social ou Principes du Droit Politique "When choice and lot are combined, positions that require special talents, such as military posts, should be filled by the former; the latter does for cases, such as judicial offices, in which good sense, justice, and integrity are enough, because in a state that is well constituted, these qualities are common to all the citizens."
  16. 16. Lord PATRICK Devlin, TRIAL BY JURY “ Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the and the other surviving. The fi rst object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the Constitution: it is the lamp that shows that freedom lives.”
  17. 17. Jury as a bastion of civil liberties It was associated with the "Anglo-Saxon liberty" that distinguished England from the Continental absolutist Roman-law regimes. In countries with trial by jury, individual freedom is protected better than in countries without trial by jury. The origin of the jury was located in the courts of Anglo-Saxon England, whose judges were (like jurors) laymen, rather than professionals In the early Middle Ages, all courts were characteristically composed of groups of laymen, who decided both factual and normative questions, or at least decided the form of proof (testimony, documents, compurgation, ordeal, or battle) that would settle the dispute. jury and lay assessor courts are not the only institutions of lay participation in the judiciary: justices of the peace and lay magistrates that adjudicate minor offenses are 2 other institutions.
  18. 18. Jury as fiscal instrument Alternative view of jury’s origin sees it as a piece of fiscal machinery for the compulsory interrogation of the inhabitants of a locality in the interests of the Crown, which was later extended to private litigants Jury was introduced by the Norman kings following the fiscal practices of the Carolingian Empire This view sees the origins of the jury as testimonial, rather than judicial Instead of the palladium of liberty descending from Anglo-Saxon liberty the jury is in origin the creation of the fiscal interests of an aggressive centralizing monarchy
  19. 19. Countries with lay participation in judicial decision-making Enjoy factually more independent judiciaries Experience higher levels of judicial accountability Has less frequent mistakes in judicial fact-finding population will be more knowledgeable concerning its legal order than countries without lay participation
  20. 20. Juries would be better in finding facts than a professional judge because jurors come from many walks of life and are thus people who have a lot of first-hand experience in the real world higher the number of jurors participating in a specific case, the lower the probability of mistakes in judicial decision-making A factually independent judiciary reduces uncertainty – and increases predictability – if it increases the likelihood that formal legislation gets factually implemented. Citizens will develop a longer time horizon which will lead to more investment in physical capital but also to a higher degree of specialization, i.e., to a different structure of human capital. Jury induces legitimacy in law and public institutions. High degree of legitimacy is correlated with lower degrees of tax resistance. This means that less resources need to be spent for monitoring the tax paying behavior of citizens. All this means that jury is conducive to economic growth.
  21. 21. jurors have fewer incentives than professional judges to care about the outcome of a case, precisely because it is a one-shot game jurors do not strive for a career within the judiciary and have, hence, no incentives to build up a reputation as informed, law-abiding, fair decision-makers. This might lead them to pay less attention than professional judges to the outcome of a case. opposite also appears plausible: precisely because being part of a court is no routine for jurors, they are more interested, pay more attention and so forth. jurors and lay judges are less dependent on government than professional judges: they do not have an interest in a judicial career, which means that they do not have to behave cautiously out of reasons unrelated to the current trial threat of firing juror is not credible which is also true for many other of the often-used instruments vis-à-vis professional judges, such as reducing their salary and the like
  22. 22. Conditions that favor proper functioning of jury society must be racially, culturally, linguistically, and religiously homogeneous members of society must be sufficiently educated to understand their responsibilities as jurors members of juries must generally agree with the laws which they are supposed to enforce very high degrees of inequality could inhibit the beneficial use of a jury, as some jurors might be motivated by aspirations of redistribution
  23. 23. Criticism of jury people who act contrary to established conventions might be less secure in the hands of jurors who might represent well-established conventions. Taking the argument one step further, one might even argue that trial by jury is an institution which could be a hindrance to innovation. Trial by jury could thus also lead to exploitation of minorities by majorities. jury inheres the danger of transforming itself into an instrument for redistribution. A jury representing median income earner might decide to put a hefty fine on someone simply because of his being more wealthy.
  24. 24. Evolution of the jury, from its ancient origins to its role in justice system, reflects the historical movement toward popular self-governance and illustrates the gradual expansion of individual rights to all members of society
  25. 25. Ancient Athens - dikastai There existed a mechanism through which it was assured that no one could elect jurors, called dikaste , for their own trial. For normal cases, the courts were made up of dikastai of 500 citizens. For capital cases, those which involved death, the loss of liberty, exile, the loss of civil rights, or the seizure of property, the trial was before a jury of 1,000 to 1,500 dikastai . These voted by secret ballot and were eventually granted the power to annul unconstitutional laws, thus introducing judicial review.
  26. 26. Ancient Rome From the beginning of the republic and in the majority of civil cases towards the end of the empire, there were tribunals with the characteristics of the jury, the Roman judges being civilian, lay and not professional. Capital trials were held in front of juries composed of hundreds or thousands of people in the commitias or centuries, the same as in Roman trials.
  27. 27. Criminal justice was administered by presiding judge, who was either the prætor or a judex quæstionis specially appointed by him, and a body of judices taken from a particular class, at one time the equestrian, and at another the senatorial, whose duty it was to determine the fact of the guilt or innocence of the accused At the close of the evidence judices were said to be missi in consilium by the judge, that is, told “to consider their verdict,” to each of judices were given 3 tablets marked respectively with the letters A. for Absolvo C. for Condemno, and N. L. for Non Liquet one of these tablets judice threw into an urn, and result of the trial was determined by the majority of the letters that appeared. If the fatal C. prevailed, the prætor pronounced the sentence, with which the judices did not interfere.
  28. 28. Roman judices might, without any breach of legal duty, acquit in spite of the most conclusive evidence of guilt judices were entitled as representing the sovereign people to exercise the prerogative of mercy, and their verdict in that case implied and was equivalent to a pardon when the prætor announced the verdict of the majority, if it was condemno he used the words Videtur Fecisse or Non Jure Videtur Fecisse; if it was absolvo, the words Non Videtur Fecisse, or Jure Videtur Fecisse
  29. 29. principal and characteristic circumstance in which the trial by a Roman differed from that of a modern jury, consisted in this, that in the former case, neither the prætor, nor any other officer distinct from the jury, presided over the trial to determine as to the competency of witnesses, admissibility of evidence, to expound the law as connecting the facts with the allegations to be proved on the record; in order to remedy the deficiency, Romans resorted to this expedient - jury generally consisted of one or more lawyers, and thus they derived that knowledge of law from their own members which was necessary to enable them to reject inadmissible evidence, and to give a correct verdict as compounded both of law and fact
  30. 30. Islamic Lafif - likely precursor to the English jury The likely precursor to the English jury trial was the Lafif in the Maliki school of classical Islamic law and jurisprudence, which was developed between the 8 th and 11 th centuries in the medieval Islamic world. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters "which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.“ It is likely that the concept of the Lafif may have been introduced to England by the Normans after their conquest of England and the Emirate of Sicily, and then evolved into the modern English jury.
  31. 31. Proto juries Proto juries - both, trial (petit) and presenting (grand) jury, differed from the modern sort by being self-informing There was nothing equivalent to a modern police charged with investigating crimes and collecting evidence. Little or no evidence was presented in court. Jurors were expected to gather information themselves informally before they came to court and to present their conclusions to the judges. Breakdown of medieval society and the growth of the towns changed this; the jury was called upon to determine the facts of the case, based upon the evidence presented in court.
  32. 32. jury has been derived from institutions of Greeks and Romans, as well as from the earliest tribunals of the Teutonic peoples and ancient Scandinavian assemblies. Blackstone thinks it was in use "among the earliest Saxon colonies" jury was long popularly supposed to have been established as a completed institution by Alfred the Great,  king of the Anglo-Saxon kingdom of Wessex from 871 to 899 In the late 880s or early 890s Alfred issued a long  domboc  or law code consisting of his "own" laws followed by a code issued by his late seventh-century predecessor King Ine of Wessex. Together these laws are arranged into 120 chapters.
  33. 33. Jurors as witnesses Originally jurors were mostly seen as witnesses, not lay judges Jury was a body of neighbors summoned by some public officer to give upon oath a true answer to some question Juries were not required to speak of their own knowledge but could report what was reputed to be the case in their districts there are several instances of "testimonial" lay fact finding of panels of locals, restricted to specific types of disputed issue, from elsewhere in Europe in the 12 th century and later Middle Ages
  34. 34. So long as jurors acted on their own knowledge their verdicts could continue to be given a kind of oracular authority entitled to as much certainty as the trial by ordeal which had brought to bear the knowledge and justice of God. it was required that jurors should come from the locality of the alleged facts, identified by vill (village or township). By the later 13 th century, this requirement was causing difficulty in impaneling juries, and it was progressively diluted and finally abolished by statutory intervention. Recent research has modified the view that the medieval jury was entirely self-informing as it now appears that jurors lived too far from the scene of many crimes to have firsthand knowledge of events. It seems therefore that these early trial jurors both gathered and weighed evidence.
  35. 35. The verdict as a proof jury was responsible for providing vere dicta (true statements) and not actually given control over the outcome of the case jury verdict was just proof of a specific kind available for facts of a specific type Initially jury verdict was one among a range of possible proofs that could be tendered to support a pleading Rational modes of proof, the jury, gradually substituted the judgment of God
  36. 36. Vicini Specially convened groups of vicini, panels locals or neighbors, as distinct from party witnesses, were quite widely used as a mode of proof for "local" facts in early medieval normative sources, following late Roman antecedents. The gist of the idea is not that locals will necessarily have direct knowledge of the facts, but that local reputation about them—including hearsay—is itself probative.
  37. 37. Use of vicini The late Roman law of land transfer and, with it, the use of vicini to determine boundary issues, evidently survived in southern European normative materials, which is unsurprising as this was the area of greatest Roman legal influence in this period; Use of vicini in boundary cases passed into the canon law, which is equally unsurprising as the church was said to live by Roman law. Same concept is applied in case of derivation of the damages and status rules: local reputation is an appropriate source of evidence for both local values and family relationships
  38. 38. Corporalis traditio concept of vicini as a special type of witnesses emerged from 2 laws of Constantine the Great, These laws established corporalis traditio required a ceremonious transfer of the land executed on the property itself and in the presence of vicini This was a change to the previous law, which allowed conveyance in the case of Italic land by ceremony of mancipatio, or generally by documents, executed away from the land itself There are a number of references in the Corpus Iuris Civilis to reputation or the knowledge of neighbors as a means of proof
  39. 39. corporalis traditio after fall of western Roman Empire A variant of Roman corporalis traditio was included in the Edictum Theoderici (which has been attributed either to the Visigoth Theoderic II [453-66] or to the Ostrogoth Theodoric the Great [489-526]) Burgundian Code of Gundobad (roughly 524-532) contains a similar requirement that sales of land must be in writing and attested by seven or five witnesses "loci illius consistentibus" (dwelling in that place) or at least three witnesses "loci illius consistentibus" who are of good reputation. The late 5 th century Visigothic Code of Euric requires either a document, or witnesses to the price, This approach is followed in the 7 th century Spanish Visigothic code. In late 11 th or early 12 th century Expositio ad Libram Papiensem (Commentary on the Book of Pavia) says that a traditio must be on the land and in the presence of witnesses "sicut in lege Romanorum precipitur" (as is required in the law of the Romans)
  40. 40. Vicini & boundary disputes Use of vicini before the Laws of Constantine was related to boundary issues as well. Visigothic Code of Euric provides for use of vicini if boundaries have been wrongfully altered or where there are no clear boundaries. The use of local "seniores" to establish boundaries is also found in canon law sources - Irish collection of canons Hibernensis, Synod of Toul, Synods of Aachen. The use of vicini to assess damage to land in cases of cattle trespass can be found in the Visigothic laws and, following them, the Bavarian laws, and in the mid 7 th century Lombard Edictus Rothari.
  41. 41. Vicini & personal status Early canon law sources make passing reference to the use of vicini or similar phrases in relation to 2 questions of personal status: proof that an individual was baptized proof of family relationship for the purposes of the prohibition of marriage within the prohibited degrees.
  42. 42. Concept of fama Fama - reputation or rumour "vicinorum facta praesumimur scire" (we are presumed to know of the acts of neighbors) - Decretum Gratiani or Concordia discordantium canonum Early medieval uses of local reputation as a form of evidence were incorporated into the Roman-canon law of proof, and the perceived value of this sort of evidence was at a high point in the later 12 th century, when the use of jury-like bodies began to be generalized and systematized in the English royal courts. Local reputation was an acceptable canonical mode of proof (unlike trial by battle), which had already been practiced in England for more limited purposes and met the objections of the king and lay landowners to the procedural claims of the church. fama was a sufficient basis to put a person to compurgation on a criminal charge, even though there was no accuser or witnesses fama was not full and sufficient proof - local reputation was creating a presumption
  43. 43. Roots of Anglo-Saxon Exceptionality General European transition from lay to professional adjudication 12 th century Jury trial appears as an early medieval survival, as opposed to the professionalized model of the learned laws. The presence of proto-juries in land matters and in grounding public prosecutions on the basis of fama is not in itself and in its time a major divergence Such bodies continued to be used elsewhere in Europe through the later Middle Ages. The real divergences are to be sought elsewhere, particularly (among other differences) in the absence of the separate and secret examination of witnesses (including jurors, but also other witnesses) in the later common law.
  44. 44. Jury as a product of mixture and compromises Jury developed as a form of synthesis between lay and professional adjudication emerged in the context compromise between centrally and locally controlled administration of justice Modern jury is the product of a confrontation and fusion between the more rational Romano-canonic system of proof and older methods of proof, that made some use of collective testimony or collective oath and "judgment of God.“ Modern jury is not a direct descendant of lay collective judgment. The relationship was mediated by the uses of vicini in early medieval, and particularly canon, law and by the uses of local reputation
  45. 45. Ordeal Compromises were made between the royal courts, committed to the “judgment of God” in the form of trial by battle and by ordeal ecclesiastical courts, which rejected trial by battle and sought to use documents, witnesses, and procedure per notorium on the basis of the personal knowledge of the ecclesiastical judge. A criminal, accused by presentment jury, was given a trial by ordeal. The accused would then be put to trial by the ordeal of water. A clergyman would bless the water and the accused would be thrown in. It was assumed that God intervened to protect the innocent An accused who floated had been rejected by the blessed water and was declared guilty
  46. 46. New systematic procedural thought The period between the late 11 th and the early 13 th century saw the rediscovery of the Digest of Justinian Corpus Iuris Civilis, Gratian's Decretum, and the papal decretals stimulated the development of systematic thought about law considered as an intellectually coherent field transition from lay judgment to professional law involved defining the roles of judge and witness by mutual exclusion. These rules began to develop in the early 12 th century, but reached its full development only later the judge is to decide only on the basis of facts alleged and proved, not on the basis of personal knowledge witness, in contrast, is to speak only to personal knowledge on the basis of immediate sense-perception, not to draw conclusions
  47. 47. Judge’s function Judge began to be required to act only on the basis of knowledge gained judicially through the lawsuit ( secundum allegata et probata, according to what was alleged and proved), not on the basis of his private knowledge ( conscientiam ). In 12 th century Bulgarus, most celebrated of the famous Four Doctors of the law school of the University of Bologna, and was regarded as the Chrysostom of the Glossators, started to teach that a judge is not a competent witness in a cause in which he is judge The presence of the jury as fact-finder and the absence of any effective modes of controlling the juries, the judge’s role was limited to maintaining courtroom order, framing the questions that the juries must answer, ensuring compliance with the ground rules of the various forms of action.
  48. 48. Witnesses’ function Witnesses, in contrast, were required to speak to personal knowledge of facts in issue. they were required to testify only to things done in their presence, which they had themselves seen and heard ( de visu et auditu ), not to hearsay ( ab alio auditu ). growth of the requirement that witnesses should be separately and secretly examined by the judge in order to establish the grounds of their knowledge
  49. 49. Church's role ecclesiastics were in this period aggressive claimants to land ecclesiastical bodies had a built-in advantage in litigation because they kept archives and could produce documents, which were highly valued in early medieval judicial procedure, including in 12 th -century England Equally, however, they could "produce" documents in another sense - in England in the century after the Norman Conquest forgery of charters was the rule rather than the exception Most of people were illiterate Fore these reasons there was general preference for witnesses over documents Roman-canon proceduralists were, in this context, to develop elaborate authentication rules for documents, but these rules were not settled until the early 13 th century
  50. 50. Church, State and Law – variations across English Channel imperative of using clerics in a civil law system was a further factor that moved the English kings during this period toward juries Both Henry II and King John were excommunicated. Throughout history English Kings were battling church for control of land Using clerics must have been much more attractive to the French kings, who were closely allied with the Church and usually canonized.
  51. 51. Wantage Code The English king Ethelred the Unready ( c . 968 – 1016) set up an early legal system through the Wantage Code of Ethelred. One provision of Wantage Code stated that the 12 leading thegns (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias.
  52. 52. Law of Ethelred, which is still extant, was the source both presentment and trial jury and of our whole system of jury trial. That law reads as follows: "Et habeantur placita in singulis Wapentachiis; et exeant seniores xii. tayni et prepositus cum eis, et jurent super sanctuarium quod eis dabitur in manus quod neminem innocentem velint accusare vel noxium concelare et omnis infamatus homo vadat ad triplex ordalium, vel reddat quadruplum." But while the whole jury system can not be traced to this statute, as some writers seem to have supposed, the jury provided for by it may certainly be considered the foundation of the subsequent grand jury. The criminal jury has also been traced to this statute, but not definitely, and while its origin may not be determined, its history from the year 1166 is clear
  53. 53. Roots institution closest to the English jury is that found in Normandy more or less contemporaneously which gradually decayed after the destruction of the Angevin empire Institutions of lay fact finding also existed far more widely in France, Norman Sicily, Spain, parts of Germany, Scandinavia, the Low Countries, Hungary, and Serbia
  54. 54. Some see archetype of the jury in Teutonic and Saxon compurgators, who were generally 12 in number, and whose oaths were conclusive of matter in dispute. Others derive jury from the Rachinburgen or Scabini of the continental nations
  55. 55. Teutonic courts ancient courts of Teutonic nations were nothing more than assemblies of freemen, met together for the purpose of deliberating on whatever affected the interests of their gau or district, including punishment of offenses and settlement of civil claims president, or perhaps in some instances parties themselves, chose beforehand certain freemen, who were required to form a court for the hearing of the particular case. Their number varied, but was generally 7, and never less than 3. name by which those who were thus nominated to act in a judicial capacity were known amongst the old Franks was Rachinburgen. Amongst the Lombards the corresponding name was Arimannen. before giving judgment, members of court retired from the presence of the presiding officer in order to consider their decision every one of markgenossen who possessed a certain amount of property might give evidence, although he had not actually seen what had occurred
  56. 56. Norwegian Laugrettomen causes were determined and offenses tried by a body of sworn jurymen in the most ancient times Code of Gulathing, published by King Magnus, in the year 1274, introduced some changes in constitution of this tribunal which had existed long before solemn meeting or THINGS held periodically — one in the North, called FROSTA-THING, and the other in the South, called GULA-THING 3 persons holding different offices under the crown were authorized by law to nominate a certain number of deputies (called Nefndarmen, or “named-men”) from each district, who attended the Things From amongst the deputies were chosen 36 men to act as jurors They took their seats within the sacred inclosure, in a space marked off by staves and ropes, called Laugretta jurors themselves were called LAUGRETTOMEN,   which literally means, “Law-amendment-men.”
  57. 57. King Magnus Lagabøte’s code, 1274 “ The Thing shall last so long as the Lawman chooses, and during such time as he, with the consent of the jury, deems necessary for adjudging the causes which then are to be heard. Their number is three times twelve; their nomination must be so managed that some fit men be chosen from every district. Those who are chosen to be jurors shall, before they enter the court, swear an oath after the following form: “‘ I protest before God that I will give such a vote in every cause, as well on the side of plaintiff as defendant, as I consider most just in the sight of God, according to law and my conscience; and I shall always do the same whenever I shall be chosen as juror.’ “ This oath every man is to swear before he enters the court, the first time he serves on a jury, but not a second time, though he should be chosen. Every man must go fasting into court, and make his appearance there while the sun is in the east, and remain in the court till noon. No man must bring any drink into court, neither for sale nor in any other way. If those who are outside the sacred cords make there such noise and disturbance that the jurors are prevented from hearing cases, or those from pleading who have obtained leave from the lawman and the jurors, they shall pay a fine of an ore silver, when detected and convicted, having been previously admonished. “ Those who are chosen to serve as jurors shall judge according to law, in all causes that in a lawful manner and course are hither (that is to Gula-thing) appealed. But in all cases that the code does not decide, that is to be considered law which all the jurors agree upon. But if they disagree, the lawman prevails with those who agree with him; unless the king with the advice of the most prudent men shall otherwise decide.”
  58. 58. Laugrettomen were in all respects judges, and not merely jurymen. They decided both law and fact, and awarded the sentence which the law prescribed. Thing was presided over by a Lögmann or Law-man, one of whose qualifications for the office in old times was, that he could recite by heart the laws of the land; Previously to the promulgation of code of King Magnus Lagabøte ( Magnus the law-mender ) Lögmann had merely presided and acted as the legal adviser of the jurors, they being the judges to all intents and purposes. Lögmann were not, however, bound to consult jurors, as they were fully entitled to decide cases according to their own view of the law. King Magnus’s code invested Lögmann with a most important judicial power in the event of any disagreement in opinion among the jurors, Lögmann could, by giving his vote on that side, make the judgment of the minority prevail During the season of the year also when the Thing was not sitting, Lögmann was empowered to act as supreme judge, and hear and decide causes alone.
  59. 59. Swedish Nämbd there were several kinds of Nämbd Konungz Nämbd, or King’s Jury, Lawman’s, the Bishop’s, the Hundred’s jury whenever any case of importance occurred, which required judicial investigation, it was the duty of magistrate to summon an extraordinary Thing or meeting, and nominate a Nämbd to take cognizance of it OestgothaLagh Code – “Sanninda män (Icelandic for truth-speaking men) are to sit on the Nämbd, and not parties in the cause, nor their friends or relatives”
  60. 60. Swedish law “ Now offenses may happen to be committed against the king and the law laid down in the king’s BALK; therefore there shall be twelve men ordered in every Lawman’s jurisdiction, agreed upon, chosen, and nominated by the king and the natives of this country. They shall attentively and diligently seek out and discover, each in that district in which he is ordered to maintain justice, all those that, contrary to this law, disturb or molest the people. And they have to swear the following oath.” “ Whomsoever these twelve, or seven of their number, convicted before the king himself, or those who judge under his commission in a court of inquisition, or in a Landsthing, let him be cast and lose his hand, head, life, and goods or money, to the king or the prosecutor and the district, according to the nature of the offense. Whomsoever they discharge, let him be discharged. Against this jury (or court) there is no appeal.”
  61. 61. Danish Tingmænd, Nævninger, and Sandemænd causes were decided by persons who were called either Tingmænd, Nævninger, or Sandemænd, according to the nature of the court they attended Tingmænd were the members who constituted the Thing, of whom, according to the law of King Waldemar, 7 made a quorum they did not originally adjudicate upon cases, except when no other jurors had been appointed — their proper business being to form the Thing at which the public affairs of the district were transacted — and they were therefore more like a municipal council than a court of justice. At a later period, however, by the law of King Erik, a special jurisdiction was given to them. Nævninger were the proper jurors or sworn judges of Denmark, being so called from nævn, “to name.” Number of Nævninger was originally 12. In Jutland they were appointed annually by the inhabitants for trying all causes within the year. In Scania fifteen were nominated at first, as the accused or defendant was entitled to challenge three. Nævninger were chosen by inhabitants of district; although in some criminal cases the prosecutor, and in others the magistrates, might nominate them Sandemænd were peculiar to Jutland. They were sworn judges, 8 in number, 2 being nominated by the king for each division of the country Sandemænd took an oath to judge on the spot where the deed had been committed, or, if a right of land was in dispute, then where the property is situated. Sandemænd received half a mark of silver for horse-hire from the party who employed them, whatever the result of their judgment might be, and their verdict was determined by a majority; but subject, as in the case of the nævn, to be annulled by the bishop and his eight coadjutors. The oath Sandemænd took was to the effect that they would state nothing but what they knew to be most right and true (SANDESTE), and they had cognizances of all personal injuries and disputes respecting land and church- property.
  62. 62. Icelandic Tólftar-quidr Iceland was anciently divided into 39 provinces, or shires, called a Godord, 3 of Godord made a Thing, or judicial district, in which the Varthing, or court for that district, was annually held. There were 13 of these Things Over each shire presided a magistrate called Godi three of Godi nominated for each Varthing 12 judges, who tried causes in the first instance From these lay an appeal to the Fiordungs-dom, a court held about Midsummer at the Althing,  and composed of 36 judges nominated by 9 Godar for each quarter of Iceland From Fiordungs-dom a case might be appealed to the Fimtar-dom, the 5 th court, so called because it was the 5 th in number of the courts held at the Althing. Fiordungs-dom was the tribunal of last resort, and the judges were nominated by the Godar, 12 for each quarter of the island, so that they nominally amounted to 48 Law required that the plaintiff should reject 6 of these, and the defendant another 6; so that number who actually sat to try a cause was reduced to 36, or three times twelve, which was considered a doubly sacred number besides these regular courts, civil and criminal cases were tried by jurors in sets of 5, 9, or 12, according to the nature of the case. Last was called Tólftar-quidr (a nomination of 12), Tólftar-quidr was much employed in cases of dispute between the Godars and their Thingrnen. In such instances the Godi nominated 11, and the other party the 12 th , who, however, was obliged to be one of the other two Godar who bore office in that Thing In other cases, 11 of the jurors were always nominated by the Godi, and he himself was the 12 th
  63. 63. jury has been traced to the  assises de Jerusalem  of Godfrey de Bouillon, 1099 Godfrey de Bouillon established 2 seculiar courts of justice in his new kingdom La Haute Cour (High Court) of which he himself as suzerain was the chief justiciary La Cour des Bourgeois (Court of the Burgesses), called also the Viscount’s Court, presided over by one of his feudal lords There were also burgess courts in the different towns, corresponding to the Cour de Bourgeois at Jerusalem Vesconte (vice-comes) presided over burgess courts , and court was composed of him and 12 jurés it was not necessary that the whole 12 should sit, for 3 or even 2 were sufficient to form a quorum nature of juror’s duties is shortly summed up in a passage of the Assizes Les jurés puisque ils sont asis en la cort, deivent oyr et escouter la clamor et le repons et bien entendre; et sur ce que ils oront et connoistront, doivent faire droit jugement à lor essient sans faucer
  64. 64. Reforms of Henry II In the 12 th century, English King Henry II took a major step in developing the jury system. He initiated systematization of the use of local reputation as a form of proof, both in the canon law and in English law The king and his advisers and justices were not simply copying the developing canon law of proof, but rather stretching both canonical concepts and local practices to gain political advantage in the middle ground A jury of 12 free men were assigned to arbitrate in land disputes Use of proto-juries in Henry II's reforms builds on early medieval practices, predates the development of the learned law of proof, and thus sets the English common law on a path divergent from the rest of Europe, that of the ultimate dominance of trial by jury In the reforms of Henry II the use of panels of locals replaced the judgment-testimony of local lay courts, and it involved thinking about the jurors as witnesses
  65. 65. Gundolph vs. Pichot Its positive history may be said to begin with a trial between Gundolph, bishop of Rochester, and Pichot, one of king's sheriffs, of the title to certain lands in Kent, of which ownership was in dispute between king and St. Andrew. This is first case of which we have any record, in which decision was rendered by a limited number of suitors, or  pares curiœ,  upon oath. King commanded that all the men of that county, Kent, should be convened, in order to decide which had the better title. But they, being intimidated by sheriff, affirmed it to be land of the king rather than that of St. Andrew. Bishop of Baieux, the king's justiciary, however, did not trust to their decision, and commanded, that if they knew what they said to be true, they should select 12 of their number, who should confirm by their oath that which all had said but 12, after they had retired to consult and had been alarmed by a message from sheriff, swore on returning, that what they had already said was true. And so the land remained in the king's hands.
  66. 66. same year, a monk by the name of Grim came to the bishop, and, having heard what the 12 had sworn, with wonder and detestation asserted that they were all of them perjured. For Grim himself had been the overlooker of the lord of Fracheham, and had taken services and customs for that manor, and had had one of those who had so sworn under him in the same manor. This was communicated by the bishop of Rochester to the bishop of Baieux, to whom Grim gave the same account. The justiciary then caused one of those who had so sworn to come before him, who, when he had come, falling at the bishop's feet, confessed his guilt. Another, who had sworn the first, made the like confession. The rest of the jurors were then, by the order of the bishop as justiciary, sent to London. All being assembled at London, it was adjudged both by French and English that all the 12 were perjured. On this condemnation the bishop of Rochester had his land again.
  67. 67. It appears also, from this account, that 12 others  de melioribus comitatus  were called to account for having confirmed what the others had sworn, when these affirmed that they had not agreed with those who had so sworn, bishop said they should prove their assertion by the ordeal of iron this they promised to do, but being unable to perform their promise, were by judgment of the county fined in penalty of £300 to king.
  68. 68. Treatise of Glanvil, 1187 Glanvil speaks of trial by ordinary assize and  jurata patriœ as forms of trial already in existence, and thus describes the grand assize which has been recently established as a method of trying the title to land, rights of advowson, and claims of vassalage. "This," he says, "is a certain royal benefit bestowed upon the people and emanating from the clemency of the prince, with the advice of his nobles— regale beneficium clementia principis populis indultum.  So effectually does this proceeding preserve the lives and civil condition of men, that every one may now possess his right in safety at the same time that he avoids the doubtful event of a duel. This legal institution flows from the most profound equity * * *; by so much as the testimony of many credible witnesses in judicial proceedings preponderates over that of one only, by so much greater equity is this institution regulated than that of the duel; for, since the duel proceeds upon the testimony of one juror, this constitution requires the oaths of twelve lawful men at least."
  69. 69. "When the assize proceeds to make the recognition, the right will be well known either to all the jurors, or some may know it and some may not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the matter, and this be testified upon their oaths in court, recourse must be had to others until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter and some not, the latter are to be rejected, and others summoned to court, until twelve at least can be found who are unanimous. But if some of the jurors should decide for one party, and some of them for the other, then others must be added until twelve at least can be obtained who agree in favor of one side. Each of the knights summoned for this purpose ought to swear that he will neither utter that which is false nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard or from the declaration of their fathers, and from other sources equally entitled to credit as if falling within their own immediate knowledge."
  70. 70. at this time jurors of grand assize were mere recognitors, they were to deliver their verdict upon their own knowledge of the facts in question. In order to obtain required unanimous verdict of the twelve, resort was had to the practice of afforcing, by which was meant, dropping jurors who were ignorant of the facts in cases of disagreement, and adding others in their stead, until 12 were obtained who were unanimous. Afforcement have very early fallen into disuse, and there was some doubt whether thereafter the verdict should be rendered by a majority of the original jurors
  71. 71. Henry II had been responsible for turning the jury into an essential instrument of English law, first, in 1166, when jury trials were extended to all criminal cases by the Assize of Clarendon, and second, with enactment of the Grand Assize in 1179, which provided that in disputes involving title to land, litigants had a choice between a wager of battle or trial before a jury.
  72. 72. Henry II stands out as the central figure in the history of English royal law. Through measures such as the Assize of Clarendon he established a permanent court of professional judges, the use of inquisitional juries, regular circuits for itinerant judges, and a system of standardized forms of action via writs. The system of itinerant justices, in particular, reveals Henry's motivations; these justices also served as tax collectors.
  73. 73. Constitutions of Clarendon, 1164 Requires the bishop or archdeacon to entertain prosecutions only by accusation by lawful accusers, or on the basis of legales homines de visneto produced by the sheriff, that is, of fama established by an enquiry from vicini. (C. 6) Role of the sheriff is merely to assist the bishop
  74. 74. Assize of Clarendon, 1166 Assisa means statute or enactment established juries of the hundreds and boroughs. 12 knights or other freemen of every hundred, and 4 men of every township, were required to declare on oath accusations of murder, robbery, larceny and harboring of criminals to a "justice in eyre," a judge who moved between hundreds on a circuit. The function of a presentment jury was to bring cases, which had before only been possible by private appeal.
  75. 75. A writ was addressed to the sheriff commanding him to summon 4 knights of the neighborhood where the disputed property lay, These 4 knights were, after being duly sworn, to choose 12 lawful knights, who were most cognizant of the facts (qui melius veritatem sciant); defendant was to be summoned to hear election of 12 jurors made by 4 knights, and he might except to any of them for same reasons and in the same way as witnesses might be objected to in court if the jurors when chosen were not unanimous, others were to be added to the number until twelve at least agreed in favor of the one side or other — This was called afforcing the assize These 12 knights were upon their oaths to determine which of the litigant parties was entitled to the land
  76. 76. As the names of the jurors who were to form the assize were known beforehand, the temptation became great to endeavor to secure a favorable verdict by bribes no less than 3 statutes were passed in the reign of Edward III (1312 –1377), which prohibited the offense under severe penalties
  77. 77. constitutions of Clarendon, 1164 governed disputes as to the title of lands between a layman and a clerk statute of Northampton, 1176, provides for recognition of the claims of heirs before itinerant justices.
  78. 78. The grand assize In 1176 Henry conceded to the pope that "clerici non cogantur facere duellum" (clerks shall not be forced to wage battle) This alternative mode of proof was made generally available to all tenants defendants, rather than merely to clerks.
  79. 79. Bracton, (1210 - 1268) According to Bracton it was the duty of the judge to satisfy himself of the truth of the verdict of the assize Sed cum ad Judicem pertineat justum proferre judicium et reddere, oportebit eum diligenter deliberare et examinare si dicta juratorum in se veritatem contineant, et si eorura justum sit judicium vel fatuum, ne si continyat eum judicem eorum dicta sequi et eorum judicium, ita falsum faciat judicium vel fatuum. iv. c. 19 § 6
  80. 80. grand assize was only technical form of the  jurata patriœ,  which was a form of trying title to lands by swearing as to same by whole community, and afterward by a number selected from the community. Certainly the distinction between the  jurata patriœ  and the grand assize seems to have been very early lost, and both became known as jury. With establishment of justices in Eyre and the increasing number of suitors who resorted to the king's courts, grand assize superseded ordinary assize referred to by Glanvil, and recognition of facts in manner described by him became part of its regular business. last recorded instance of grand assize occurred in 1834, which led to 2 trials, the second of which took place in 1838, when 4 knights girt with swords and 12 other recognitors acted as the jury in a trial at bar in the Court of Common Pleas, and were addressed by Chief Justice Tindal in summing up, as “Gentlemen of the grand inquest,” and “Recognitors of the grand assize.”  
  81. 81. By the assize of Clarendon, inquest is to be made through each county and through each hundred, by 12 lawful men of the hundred and by 4 lawful men of each township, by their oath, that they will speak the truth. By these, all persons of evil fame are to be presented to the justices and then to proceed to the ordeal. If they fail in the ordeal, they undergo the legal punishment if they sustain the ordeal, yet as presentment against them is based on evidence of neighborhood on score of bad character, they are to abjure the kingdom. The jury of presentment is reduced to a still more definite form and receives a more distinct representative character in the assizes of Northampton, and in the articles of visitation of 1194.
  82. 82. In latter capitulary plan used for nominating the recognitors of grand assize is applied to grand jury, for so the body now constituted may be termed. In first place, 4 knights are to be chosen for whole county, who by their oath shall choose 2 lawful knights of each hundred or wapentake, or, if knights be wanting, legal and free men, so that these 12 may answer under all heads concerning whole hundred or wapentake. Heads on which they answer include not only assizes which have been already referred to in connection with jury, but all pleas of crown, trial of malefactors and their receivers, as well as a vast amount of fiscal business.
  83. 83. writers succeeding Glanvil are Bracton, Britton, and author of Fleta Bracton, stating grounds for exemption from service on the jury, says, that same causes which disqualified a man from testifying were good grounds of objection to his serving on assize he enumerates as such: conviction for perjury, serfdom, consanguinity, affinity, and enmity or close friendship with other party objections having been disposed of, jury were sworn and retired to consult upon verdict, and until they had agreed no one was allowed access to them. If they could not agree, new recognitors, equal in number to minority, were added, and the verdict was then rendered by the twelve who were found to agree. If, however, any of the jurors were ignorant of the facts of the case, others who knew the truth, were added in their stead, and the truth was then declared. Down to the time of the writers last mentioned the jurors were, as we have seen, mere recognitors deciding upon their own knowledge. Next step forward consisted in adding to their own knowledge that of others, thus making the jurors judges of evidence
  84. 84. Lord Somers, Guide to English Juries, 1682 "In analogy, of late the jury is reduced to the number of twelve; like as the prophets were twelve to foretell the truth; the apostles twelve, to preach the truth; the discoverers twelve, sent into Canaan to seek and report the truth; and the stones twelve, that the Hierusalem is built on; and as the judges were anciently twelve to try and determine matters of law; and always when there is any waging law, there must be twelve to swear in it.“ no more scientific explanation than this is available
  85. 85. Jury as a risk aversion mechanism In theory grand assize was preferred to battle, among other reasons, because in proportion as the testimony of several suitable witnesses in judicial proceedings outweighs that of one man, so jury relies more on equity than does battle; for whereas battle is fought on the testimony of one witness, jury implies the oaths of at least twelve men. In practice accusation lead to personal trial by battle between accuser and accused. Presentment, in contrast, like canonical fama, leads to the defendant being put to purge himself; the members of the panel are free of the risks involved in personal accusation.
  86. 86. Private Prosecution (7 th -10 th Centuries ) Historically, till 19 th century, criminal prosecutions in England were almost entirely private. UK preserved a right of private prosecution till now Prosecution by the late 11 th century were called "appeals“- they were formally brought in the name of the Crown, victim had to appeal to King to initiate proceedings. Prosecuting an appeal involved a long and complicated process that often took several years.
  87. 87. Royal law enforcement officials Nevertheless, royal officials did provide investigative assistance. From the late 12 th century, the coroner had been gathering evidence in homicide cases. Justices of the peace performed a similar function for other crimes from, at latest, the 16 th century, and possibly as early as the 14 th . Partly in response to the growing problem of urban crime, pressure began to mount for public prosecution.
  88. 88. Until at least the late 10 th century, those convicted of crime were not ordinarily hanged, incarcerated, or otherwise punished Criminals owed the victim compensation (bot) or, in homicide cases, owed the victim's family the deceased's wergild, a monetary payment that varied with the deceased's social status. The nature of criminal penalties began to change as early as the late 10 th century. Bot seems to have been payable to church, king, or community at large rather than to the injured kin. Hanging and fines payable to the king were the only criminal penalties regularly imposed in royal courts.
  89. 89. Wergild instead of this lex talonis, so destructive of peace and well-being of the community, injured party if he survived, or his relations if he died,  should be content with a money-payment as a compensation, or damages for the wrong done to him by a law of Alfred, if any man attempted private redress by vengeance before he had shown his readiness to accept the wergild if offered to him, he was to be severely punished For amongst the Saxons, and indeed all the nations of the Teutonic family, every freeman was deemed to possess a certain pecuniary value, which varied according to his rank; and this determined the amount of compensation which he was entitled to receive for a wound or a blow regular tariff of penalties was thus established, which, as will be hereafter noticed, gave rise to appellations by which different classes were distinguished. The king had his wergild as well as the lowest ceorl Every bodily injury, from the loss of a nail to the destruction of life, had its appropriate price, which must be paid by the offender; and it was only on failure of this payment that he could be punished for his wrongful act, he was exposed to the vengeance of the injured party and his friends
  90. 90. Anglo-Saxon law had no category for crimes against the state or against society -- it recognized only crimes against individuals. As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims -- or else face the hazards of outlawry and blood-feud. Murderers owed wergeld (literally, " man-money" ) to their victims' kin. Lesser criminals owed their victims lesser fines, elaborately graded according to the victim's status and the importance of the limb, hand, digit, fingertip, etc., that had been lost. In recognition of importance of private property, heavier penalties were also imposed for crimes occurring in or about home, most serious being hamesucken, i.e. smashing up someone's house. This emphasis on the home reflected Anglo-Saxon law's concern with protecting property rights, including notion of a protected private space.
  91. 91. Frithborh frithborh - system of mutual bail for the preservation of the public peace In the absence of anything like an organized police for prevention and punishment of crime, Anglo-Saxons, in common with all the Teutonic nations, endeavored to secure some of blessings of a more settled state of society through the medium of the system known in later times by name of Frithborh (pledge of peace )- mutual guarantee by which every member of a tithing as well as of a mæg, or family, became a pledge or surety (borh) to the other members, as well as to the state, for the maintenance of the public peace Throughout kingdom all men are bound to be in a guarantee by 10s if one of the 10 men offend, other 9may hold him to do right if a crime were committed by any of their body, were to arrest him and bring him to justice. If they thought him innocent, they were to clear him by their oaths — or if he were convicted and sentenced, they were to pay the wergild and wite if he fled from justice they were to make oath that they had no guilty participation in his escape; which if they failed to prove, they had to pay a penalty proportioned to the offense. on the other hand, they were entitled to receive a part of the compensation paid by a wrongdoer, for any injury inflicted on a member of their gild or tithing
  92. 92. smallest subdivision for purpose of frithborh was the tithing (teothing), consisting of 10 families this society was sometimes called wer-borhe or sureties for payment of the “wer.” head-man of this community was named teothings-ealdor, or tienheofod; and he seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature Next in order came Hundred (hundrede), which in its original constitution consisted of 10 tithings, or a 100 families, associated together by a similar bond of mutual responsibility head-man was called the hundredesealdor, or simply gerefa, who acted as presiding officer of the hundred-court, which met once at least every month Bishop, however, of diocese had co-ordinate authority with him, and court had cognizance of ecclesiastical causes Scir-gemot, or court of the shire, which was held twice every year, or oftener, if occasion required. Here causes were decided and business transacted which affected the inhabitants of several of the hundreds highest court of all was that of the king, in which he himself was present attended by his councilors, or witan. It was held as occasion required, and wherever the king happened to be. It was in general only a court of appeal
  93. 93. Reciprocal voluntary agreements Like insurance agencies, the surety groups helped members to spread risks by pooling assets; like credit bureaus, they vouched for the good standing of their own members and denied access to outsiders who had demonstrated their untrustworthiness; like credit card companies, they stood behind the claims and acts of their members. Whether ancient or modern, these common solutions to common problems all arose out of the free and spontaneous cooperation of self-interested agents.
  94. 94. Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. Moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. Outcome of a dispute turned entirely on the facts of the case, which were usually established through ritual oath-giving. Disputants first swore to their accusations and denials. Each party then called on oath helpers (including members of their surety groups) to back up these claims with oaths of their own. For the court to accept any one of these oaths, it would have to be given flawlessly -- though the poetic form of the oaths made it easier to meet this requirement.
  95. 95. The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice. Like the surety groups, the moot courts depended on voluntary cooperation. Jurisdiction in most types of cases depended on the consent of the parties. Even if they consented to appear, they might not remain throughout, and even if they remained, the moot generally could not compel them to submit to its decision. Thus the procedure of the moot had to assume, and to help create, a sufficient degree of trust between the parties to permit the system to operate
  96. 96. Rise of Royal Law In many societies, state law has advanced rapidly on the heels of military conquest. It entered England, however, with almost imperceptible subtlety. 2 factors prepared the stage. 1 st , constant threat of foreign invaders, particularly the Danes, had concentrated power in hands of England's defenders. 2 nd , influence of Christianity imbued throne with a godly quality, allowing kings to claim a divine mandate. Onto this stage strode Alfred, king of Wessex, during the last quarter of the ninth century.
  97. 97. Alfred volunteered to champion the cause of the weak -- for a fee. Weak victims sometimes found it difficult to convince their much stronger offenders to appear before the court. Kings balanced the scales by backing claims of such plaintiffs. This forced brazen defendants to face court, where they faced the usual fines plus a surcharge that went to the king as payment for his services. This surcharge, called wite, made enforcing law a profitable business. King Alfred, strengthened by threat of invasion and emboldened by his holy title, assumed duty of preventing all fighting within his kingdom. He did this by extending special jurisdiction which king had always exercised over his own household to cover old Roman highways and eventually entire kingdom. In effect, boundaries of royal household expanded to encompass entire realm, and protection of peace and safety of private households was subsumed into that of king. Alfred declared that anyone found guilty of assault owed him wite for violating the king's peace.
  98. 98. He lacked the ability to back up this claim, however, and it went largely ignored. But he had set a trend in motion. Over the next few centuries royal law would grow stronger, with later monarchs such as Athelstan and Knut creating the skeleton of a royal legal system. This reflected reality that almost half of England under later Saxon kings was conquered territory (Danelaw, the Five Boroughs, and York) which had been overrun by the Vikings after great invasion of 853 and then regained by Alfred's successors as kings of Wessex. Faced with the problem of governing territory where old Saxon institutions had disappeared, they were driven to create a governmental and legal system which was, for the time, unusually uniform and centralized (e.g. in its use of a standardized unit of law and administration, the hundred ). This centralization received a major boost with the Norman conquest of 1066, when an alien minority of rulers found the system they inherited highly congenial
  99. 99. From Polycentric Law to State Law Legal revolution swept through Europe in the years between 1050 and 1200 While power of Church rose to rival that of kings, law of the church -- inspired by newly rediscovered Justinian codification of Roman law -- rose to new levels of sophistication Key events in this process were Gregorian reforms and Investiture Crisis of 12 th century - whether kings could invest bishops with the symbols of their office and so " make bishops" These events transformed the church into an independent institution, distinct from monarchies and staffed by a clergy who formed an independent order in society, marked off by their vow of celibacy In marked contrast, church in Byzantium remained creature of the emperor and never gained independence Following its achievement of independence, the church created the great system of canon law, with commentators from Gratian onwards turning a haphazard collection of edicts into a massive, sophisticated intellectual system.
  100. 100. Other legal systems entered the fray. Thousands of cities and towns sprang up, leading to new centers of power and the development of urban law. Support of church and a labor shortage brought an element of reciprocity to the relations between peasants and lords, triggering the emergence of manorial law. Vassals likewise won standing in the separate jurisdiction of feudal law. Rise of a populous, mobile merchant class promoted evolution of another form of privately produced law, law merchant.
  101. 101. Competition between jurisdictions helped to protect individual liberty A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king Same person, in different capacities (merchant, cleric, vassal, townsman, etc.), enjoyed a significant degree of choice among legal systems, forcing them to compete. This competition for " customers" and the interaction among rivalrous legal systems resulted in many of the legal innovations that we take for granted today.
  102. 102. For the most part, royal law won this competition among jurisdictions. It had important advantage over its rivals - power to tax allowed it to subsidize its legal services. Royal courts absorbed the local functions of the law merchant by adopting its precedents and offering to enforce them at bargain rates. Royal law also wielded far greater coercive power than competing legal systems, which depended on reciprocity and trust for their operation. The overarching or paramount power of monarchs enabled them to restrict competition to their jurisdiction, with force the ultimate support for royal action. Thus in England Edward I was able to restrict the growth of private jurisdictions through the Quo Warranto procedure created by the Statute of Gloucester in 1278.
  103. 103. royalists' original motives for establishing a monopoly in law and secret key to their success: restructuring property rights. Customary legal systems viewed crimes as violations of individuals' property rights, including rights to " personal peace" ; hence the emphasis on restitution for victims, with the accompanying incentive for individuals to enforce the law. New royal law classified murder, rape, theft, and so on as crimes against the state, rather than as crimes against individuals. Fines went to the king. Victims got only the satisfaction of seeing criminals suffer corporal punishment. Dissatisfied individuals continued to seek restitution out of court, so state officials forbade them to take justice into their own hands. This sharply reduced victims' incentives to pursue criminals, and statutes demanding the victims' cooperation had little effect. State therefore developed the police powers necessary to enforce its laws on criminals and victims alike.
  104. 104. Persistence of Polycentric Law Although state legal systems have amassed immense monopolistic powers, they have never entirely quashed competition among legal systems. States themselves compete to attract human and financial capital. Law merchant has continued to survive in a realm safely beyond the reach of any one state's laws: international trade. Even within state boundaries polycentricity has survived into modern times - revival of polycentric law in England in the 18 th and 19 th centuries growth of private arbitration services in Victorian England and revival of old jurisdictions as ways of circumventing the state system Parliament later terminated this process through the Judicature Acts
  105. 105. It’s hardly correct to call compurgators witnesses, for they did not make their appearance in court to testify that they had witnessed anything relating to facts in dispute, but merely to vouch for trustworthiness of party on behalf of whom they came forward
  106. 106. Laws of William the Conqueror if a man were accused of robbery and bailed to appear and answer the charge, and in the meantime fled from justice, his bail was to swear with eleven compurgators (si jurra sei duzime main) that at the time he offered himself as bail he did not know that the man had committed the robbery, and that he had not been privy to his escape if a man were charged with theft who had hitherto borne a good character, he might clear himself by his own single oath; but if he had been previously convicted or   accused (e hi blasme unt este), he was to make oath “with the 12 th hand;” and for this purpose 14 persons were to be named, out of whom he was to choose 11, making himself the 12 th . If, however, they refused to swear, he had to undergo the ordeal
  107. 107. The oath taken by friends thus rallying round him at his call, was known by the name of ungecorene-ath, or rim-ath, “the unchosen oath;” because the witnesses were not chosen or nominated by the opposite party. But afterwards the accused was allowed to name persons of the proper class ( i.e ., kinsmen or fellow-gildsmen of the accused), and out of these the accused or defendant was obliged to choose his compurgators. This was called the eyre ath, or “chosen oath,” because the oath of the accused was supported by the oaths of persons chosen by his adversary in some cases a certain number of compurgators were named by the reeve of the district (shire reeve, predecessor to the  sheriff ), consisting of relatives and neighbors of the accused, and out of these he was obliged to choose the number required for his compurgation. This form of procedure was equally called the eyre ath. Here, too, the number out of which the compurgators were to be chosen was generally 12, or some multiple of 12, and they were called the equals or peers (gelican) of the accused If he was a man of bad character, a triple number of persons were named, out of whom he was to choose a triple number of compurgators, or if they were not named, and he was unable to procure the required number to vouch for him, he was obliged to undergo the triple ordeal
  108. 108. If a party was unable to vouch a sufficient number of compurgators, he was deemed to have taken a false oath, and lost his suit in a civil case, or was convicted in a criminal. But even if he did produce the requisite number, his opponent might overpower the force of their testimony by calling compurgators on his side, whose oaths were of preponderating legal value. These, again, might be met by the accused in the same manner, and so on, until either party prevailed in the amount of legal value of the witnesses who supported him with their oaths
  109. 109. law of Ethelred “ And let every one (accused) buy himself law with XII ores, half to the lord (landrica), and half to the wapentake; and let every man of previous bad character (tiht-bysig) go to the threefold ordeal, or pay fourfold.”
  110. 110. Legally appointed witnesses Legally appointed witnesses have stood in the place of modern public notaries, for the purpose of supplying evidence of transactions, and so preventing perjury and fraud Laws of Athelstan (A. D. 924-940) there should be named in every reeve’s jurisdiction as many men as were known to be unlying, that they might be for witness in every suit. And be the oaths of these unlying men according to the worth of the property without dispute But if it be found that any of these (the appointed witnesses) have given wrongful witness, let his witness never again stand for aught, and let him also give XXX shillings as wite (or penalty)
  111. 111. Laws of Edgar “ This then is what I will; that every man be under surety within the towns (burgs) and without; and let witness be appointed to every town and to every hundred. “ To every town let there be chosen XXXIII. as witnesses (gecorene to gewitnesse). 3 “ To small towns and in every hundred XL, unless ye desire more. “ And let every man with these witnesses buy and sell every of the chattels he may buy or sell, either in a town or in a wapentake; and let every of them when he is first chosen as witness give the oath that he never, neither for love nor for fear, will deny any of those things of which he was witness, nor declare any other thing in witness save that alone which he saw or heard; and of such sworn men let there be at every bargain two or three as witness. “ And he who rides in quest of cattle, let him declare to his neighbors about what he rides; and when he comes home, let him also declare with whose witness he bought the cattle.”
  112. 112. courts presided over by a reeve, who had no voice in the decision, number of persons who sat as judges was frequently 12, or some multiple of that number assertions of parties in their own favor were admitted as conclusive, provided they were supported by the oaths of a certain number of compurgators; and in important cases the number was 12, or, at all events, when added to the oath of the party himself, made up that number testimony of the neighborhood was appealed to, for the purpose of deciding questions which related to matters of general concern Sworn witnesses were appointed in each district, whose duty it was to attest all private bargains and transactions, in order that they might be ready to give evidence in case of dispute care was taken that all dealings between man and man should be as open and public as possible; and concealment or secrecy was regarded as fraud, and in some cases punished as guilt
  113. 113. Ordeal ordeal was also to be undergone in the following cases: Where a person accused was unable to adduce a sufficient number of compurgators Where he had been notoriously guilty of perjury on a previous occasion Where he was not a freeman; unless his hlaford, or lord, swore to his belief in his innocence, or bought him off by paying the wergild. even when the ordeal was requisite, the accused was obliged previously to take an oath that he was innocent in the sight of the law (mid folcrihte unscyldig) ordeal was of 3 kinds: ordeal of hot iron, in which the accused had to take up and carry for a certain distance a mass of hot iron of a pound weight ordeal of hot water, in which he had to take out of a pitcher of boiling water a stone hanging by a string, at a depth equal to the length of his own hand. In some cases he had to undergo the triple ordeal (pryfeald lada), in which the iron was increased to three pounds weight, or the stone was sunk in the water to the depth of his elbow. Corsnæd, or ordeal of the accursed morsel. This consisted in making the accused person swallow a piece of bread, accompanied with a prayer that it might choke him if he were guilty
  114. 114. End of ordeals At an early period, even before the abolition of ordeal by the Lateran council of 1215, a petty jury was allowed to disprove truth of presentment In 1215, at 4 th Lateran Council Pope Innocent III forbade clergy from participating in the ordeal. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. Trial by battle and wager of law were not formally abolished until 1819 and 1833 There is no evidence that any battle was fought after 1485.
  115. 115. Road to Magna Carta By the 14 th century, it was common to have 12 persons on the criminal jury and to require their verdict to be unanimous. English kings did not surrender ultimate control to juries. Manipulated with justice to ensure that judgments inclined favorably towards the king’s friends and ministers was common In subsequent years there was a gradual movement to ensure that judges could not convict without the consent of a jury. Finally King accepted juries as a check on royal judges and royal power.
  116. 116. Magna Carta June 15, 1215 at Runnymede, England when King John Lackland (French Sans Terre ) signed the Magna Carta Magna Carta introduced jury as a veto-player to limit absolute royal power In exchange for cash and peace, King John agreed that he and his subjects were to be governed by rule of law and that “no person may be amerced without the judgment of his peers” Fundamental strength of English property rights and the common law that had evolved from the Magna Carta and which would have circumscribed royal behavior and ultimately forced responsible government. In the 14 th century Parliament interpreted the phrase ‘lawful judgment of peers’ to include trial by peers and therefore trial by jury, a process which existed only in embryo in 1215
  117. 117. Article 39 of the Magna Carta Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae. "No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land."
  118. 118. same words with that of the Emperor Conrad 200 years before: nemo beneficiurn suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum.
  119. 119. Blackstone 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 Charta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29, that no freeman shall be hurt in either his person or property, nisi per legale judicium parium suorum vel per legem terræ.”
  120. 120. judicium parium is not reference to modern jury trial per pares in the 29 th Chapter of Magna Charta, was meant chiefly to relate to the trial of the barons by their peers, though it has, fortunately, been expounded to extend to the trial of all persons by a jury
  121. 121. Rise of presentment (10 th -14 th Centuries) Starting in the late tenth century, Anglo-Saxon kings began to change the nature of criminal prosecution. Aethelred's third code, promulgated around 1000, required the 12 leading thanes (nobles) of a wapentake (district) to accuse and arrest those suspected of crime in their locality. Under the presentment procedure, leading men were chosen from each locality and were required to present (that is, report) on oath crimes committed in their neighborhoods. A dual system of presentment took place whereby the accusing jury which had hitherto considered who should be tried by ordeal now presented the accused before new convicting juries. These new juries were self-informing in the sense that they were assumed to know the facts because they lived in the local neighborhood.
  122. 122. In the reign of Edward I bailiffs of each bailiwick, in order to be ready for periodical circuits of justices in eyre, were required to choose 4 knights, who again were to choose 12 of the better men (duodecim de melioribus) of the bailiwick, and it was the duty of the latter to present all those who were suspected of having committed crimes Each of them took the following oath: Hear this, ye Justices! that I will speak the truth of that which ye shall ask of me on the part of the king, and I will do faithfully to the best of my endeavor. So help me God, and these holy Apostles.
  123. 123. Presentment Until the 14 th century, presentments were confined almost exclusively to homicide and theft. Nearly all accusations of rape, mayhem, wounding, false imprisonment, assault and battery were brought by way of appeal, as were large numbers of homicide and theft cases. By the end of the 13 th century the appeal was becoming much less common, and presentment had become the way nearly all crimes were prosecuted.
  124. 124. Victim Immediately after the crime, the victim (or the first finder in the case of homicide) was required to "raise the hue and cry" - to notify his neighbors of the crime by yelling out. The hue and cry brought people to the crime scene while the evidence was fresh and could lead to hot pursuit of the criminal. The victim (called “appellor”) was then required to make "fresh suit" by publicizing the alleged crime in the neighboring villages and notifying the coroner.   The victim (or family member in homicide and some other cases) was required to initiate suit at the next county court, which met every four weeks. Suit had to be in person. No attorneys were allowed unless the victim was incapacitated.
  125. 125. Respondent The respondent (called “appellee”) was then summoned to appear at the next county court. If he did not appear, he was given three more chances. If he still did not show up, he was outlawed. An outlaw forfeited all his property, and it was a crime to feed, shelter, or communicate with him. If he resisted arrest, he could be killed without further legal process. 18 percent of all appeals ended in outlawry.
  126. 126. Initial proceedings The appellor was expected to appear and affirm her prior accusation. If s/he no longer believed the accusation was true, if s/he had settled with the appellee, if the appellee had intimidated him/her into dropping the accusation, or if s/he simply had lost interest in the case, s/he might not show up or, upon showing up, might retract her accusation. If the appellor remained steadfast in her accusation and if the appellee appeared in county court before outlawry was pronounced, the appellee would be "attached," that is, he would be required to find sureties that he would appear at trial. If he could not find sureties, he could be jailed pending trial. In cases of homicide, all appellees were supposed to be jailed pending trial, although this harsh rule was not always enforced. All procedural steps in county court were recorded by the coroners, the royal officials charged with preserving the king's fiscal rights and supervising the local administration of criminal justice.
  127. 127. Circuit Judges Trial was postponed until royal justices arrived to handle criminal cases awaiting trial in the countryside. The organization of royal justice under the Norman and Plantagenet kings required judges to leave the royal capitol at fixed times of the year and travel around the country, thus the term traveling the circuit. Most of the cases heard while on circuit were criminal charges brought by private citizens. Many of them were utterly baseless.
  128. 128. Indictment Eyres occurred approximately every 4 years at the turn of the 13 th century. Grand jury primarily screened accusations made by others, declaring "true bill" of accusations ("indictments") it approved. An indictment is a written accusation of one or more persons of high treason, felony, or a misdemeanor, preferred before and presented upon oath by 12 or more, not exceeding 23 good and lawful men of the county duly sworn, who are called the Grand Jury. They are, therefore, the accusing jury, as distinguished from the petit or trying jury. Presentment was an excellent filtering device to reduce the number of charges. Grand jury was disposing of complaints and suspicions that were not widely believed by reliable persons At the eyre, presenting jury reported all appeals to itinerant justices. Their presentments were compared with the coroners' written records of county court proceedings to ensure that jury was not concealing appeals.
  129. 129. Functions of grand jury Besides acting as a screening device to reduce the workload of the royal judges, the grand jury evolved into an institution which allowed a degree of local control of criminal prosecutions. Royal judges had no right to hear cases unless approval had been granted by the grand jury in the locality where the crime had occurred. The grand jury has become both a sword and a shield of justice: a sword, because it can investigate crime and indict criminals; a shield, because by its secret and nonpublic nature, it can protect the innocent against unfair publicity.
  130. 130. If the justices had any doubt or suspicion as to the source from which the 12 jurors obtained information on which they founded their verdict, it was his duty to interrogate them on the subject. Perhaps one or more of them might say that they learnt it from one of their fellow-jurors, and he on being questioned might say that he had heard it from such a one, and so the inquiry might be pursued, until perchance the report was traced to some worthless person of no credit - says Bracton.
  131. 131. on the trial of Reading in the reign of Charles II, where the prisoner objected to a juror on the ground that he was on terms of friendship and intimacy with the prosecutor, the Lord Chief Justice of the Common Pleas, Sir Francis North, said, “ And do you challenge a juryman because he is supposed to know something of the matter? For that reason the juries are called from the neighborhood, because they should not be wholly strangers to the fact.”
  132. 132. Over time, English juries became less self-informing and relied more on the trial itself for information on the case This change in character of jurors by which they became judges of fact instead of witnesses, is common to the civil and criminal jury alike. juries role changed from one of active fact finding to the more passive role familiar today whereby jurors evaluated evidence on the basis of information and testimony introduced in court by private accusers and government appointed justices of the peace When they became evaluators of evidence presented to them in court problems arose as to how verdicts could be given the same authority, as evaluation of evidence could not command the same certainty as personal knowledge of the evidence For some time therefore writers and judges latched on to the fiction that juries could continue to be self-informing about the facts
  133. 133. Anyone who voluntarily testified to the jury when he had no interest in the case or where he was not a relative of one of the parties was guilty of the crime of maintenance. Indeed, in criminal cases before the reign of Elizabeth, even when court rules were relaxed sufficiently to permit juries to hear testimony, only the Crown could adduce witnesses. Even when the de­fendant was finally permitted to call witnesses in his defense, they had to remain unsworn, sworn inquisition being a prerogative of the Crown.
  134. 134. in the 11 th year of Henry IV ( 1367 –1413 ) we find judges declaring, “ que le jury apres ceo que ils furent jurés, ne devient veier, ne porter ovesque eux nul auter evidence, sinon ceo que a eux fuit livrere par le court, et per le party mis en court sur l’evidence monstre,” that is, that the jury, after they were sworn, ought not to see or take with them any other evidence than that which was offered in open court. In time of Henry VI, with the exception of requirement of personal knowledge in jurors derived from near neighborhood of residence, jury system had become in all its essential features similar to what now exists
  135. 135. adjoining of witnesses to jury started from 23 rd year of Edward III for the purpose of assisting the jury by means of the knowledge of the witnesses so adjoined The latter, however, had no voice in verdict, which was to be accepted even though it was opposed to evidence of these witnesses. Very early, great care had been found necessary to exclude from consideration of jury all improper or corrupted evidence. This was done by requiring the evidence to be given in the presence of court subsequently this became foundation for law of evidence and rules respecting its production. Although jurors still spoke with witnesses in the early 16 th century, by the middle of the century witnesses appeared to be testifying in court with greater regularity. A turning point seemed to take place in 1563 when legislation compelled witnesses to appear and perjury was made a crime.
  136. 136. This gradual process took place throughout the 16 th century. Jurors remained free to investigate cases on their own until the 17th century. Sir Edward Coke proclaimed in 1620 Ad quaestionem facti non respondent judices; ad quaestionem juris non respondent juratores
  137. 137. If the appellor was present and wanted to continue her prosecution, she would repeat her accusation. In a majority of cases (57 percent), appellors dropped their prosecution before the case reached the eyre. By the 1250s judges routinely put appellees to trial when appellors did not prosecute. When a nonprosecuted appellee was put to trial, he was sometimes said to have been tried "at the king's suit.“ Trial without the cooperation of the victim-prosecutor was possible because the jurors were self-informing and did not need the victim's testimony in order to convict. Conviction rate at the king's suit was roughly the same as the conviction rate of those prosecuted by the appellor