Our next and last observation shall be based on the absence of something which the reader might possibly expect to find in the Saxon laws.
Of all the legal institutions that have claimed a Saxon origin, none compares for importance with that of trial by jury. This has been called the bulwark of English liberty, and it has been assigned to King Alfred as the general founder of great institutions. But this is only a popular opinion.
Perhaps there is no single matter in legal antiquities that has been so much debated as the origin of trial by jury. In the vast literature which the subject has called forth, the most various accounts have been proposed. It is an English institution, but whence did the English get it? From which of the various sources that have contributed to the composite life of the English nation? Was it Anglo-Saxon, or was it Anglo-Norman, or was it Keltic? Was it a process common to all the Germanic family? If it was Norman, from which source—from their Scandinavian ancestors or from their Frankish neighbours? All these origins have been maintained, and others besides these. According to some writers, it is a relic of Roman law; some trace it to the Canon law; and champions have not been wanting to vindicate it as originally a Slavonic institution which the Angles borrowed from the Werini ere they had left their old mother country.[102]
In all this diversity of view there is one fixed point of common agreement. It is allowed on all hands that England is the arena of its historical career, and the question therefore always takes this start,—How did the English acquire it?
The Anglo-Saxon laws have been diligently scanned to see if the practice or the germ of it could be discovered there. In Æthelred iii., 3, there is an ordinance that runs thus:—
This looks like the grand jury examining the bills of indictment before trial, and determining primâ facie whether they are true bills which ought to be tried in court. But the progress of modern inquiry has led to the conclusion, that though there may be rudiments of the principle in Anglo-Saxon and in all Germanic customs, still it was among the Franks in the Carling era that a definite beginning can first be recognised. The Frankish capitularies had a process called Inquisitio, which was adopted into Norman law, and was there called Enquête; this, having passed with the Normans into England, was finally shaped and embodied in the common law among the legal reforms of Henry II.
Under the Saxon laws, the true men who were sworn to do justice had a very different part to act from that which falls to the lot of our English jury. The duty of the latter is to deliver a verdict on matter of fact as proved by evidence given in court. The judge charges them to put aside what they may have heard out of court, and let it have no influence on their verdict, but to let that verdict be strictly based upon the evidence of witnesses before the court.
In Æthelred’s time it was different. The sworn men were not to judge testimony truly, but to bear witness truly. They were to bring into court their own knowledge of the case, and of any circumstances that threw light upon it, including the general opinion and persuasion of the neighbourhood. There was no attempt to collect evidence piecemeal, and to rise above the level of local rumour, by a patient judicial investigation. This provides us with something like a measure of the intellectual stage of the public mind in Saxon times, and will perhaps justify these remarks if they have seemed like drifting away from our proper subject. The notion of weighing evidence had not taken its place among the institutions of public life. This has now become with us almost a popular habit. Proficiency and soundness in it may be rare, but the appreciation of it, the perception of its power and beauty, and withal a pride and glory in it, is almost universal. How wide a distance does this seem to put between us and our Saxon forefathers, only to say that they had but the most rudimentary notions about the nature of evidence!
Witnesses came into court, not to speak, one by one, to a matter of fact, but to pronounce in a body what they all believed and held. They came to testify and uphold the popular opinion. Such testimony is like nothing known to us now, except when witnesses are called to speak to general character. These witnesses gave their evidence on oath; but it would naturally happen sometimes that such sworn testimony was to be had on both sides of the question. When this was the case, there was but one resource left, and that was the Ordeal—the appeal to the judgment of God. Such are the devices of inexperienced nations, who have no skill in sifting out the truth, and are baffled by contending testimony. Nothing can better illustrate the stage of our national progress in the times which produced the literature which we are now surveying.