The Scottish Jury

Authors

Rufus Fleming

Abstract

The origin of the jury is one of the subjects on which an agreement has not been. reached by writers on the history of law. A number of theories have been put forward at different times. At this day two of these theories receive considerable support. The first is that the jury system is a gradual and natural sequence from the modes of trial in use among the Anglo-Saxons and Anglo-Normans. The second-and perhaps the one more widely accepted at present-is that we owe trial by jury to the legal institutions of the Frankish empire. (Forsyth's "History of Trial by Jury," and Pollock and Maitland's "History of English Law"). Among other hypotheses is that of Meyer ("Origin and Progress of the Judicial Institutions of Europe") who attributes jury trial in part to the assize established by Henry II, and in part to the feudal courts instituted in Palestine by the Crusaders. Beyond question the assize of Henry II marks an, important advance toward jury trial, but Meyer's hypothesis is not now supported. The feudal courts in Palestine were created about io99, in the reign of Godfrey, Duke of Bouillon, and were modeled after those existing in the countries from which the Crusaders came. There were two secular courts, the one presided over by the Duke (then King of Palestine), in which twelve knights were the judges; the other, presided over by a feudal lord, in which the judges were twelve townsfolk. There were also lesser courts on the same lines. They were, however, of the nature of permanent tribunals, and had resemblance in principle to the jury court. Another theory is that of Reeve in his "History of English Law." According to it the Northmen carried the Scandinavian mode of trial into Normandy and brought it with them to England. Turner, on the other hand, in his "History of the Anglo-Saxons," thinks that the jury system was in use during the Saxon period. But he cannot point to anything in the records that affords any substantial support -to his theory. Other writiers have attributed the origin to a national recognition of the principle that no man ought to be condemned except by the voice of his fellow-citizens. This principle, it is maintained, is found strongly asserted among all the Teutonic nations and the jury is, simply a modification of their ancient assemblies. The objection to this theory is that the jury did not develop in traceable form in any other place than England.

Recommended Citation

Rufus Fleming, The Scottish Jury, 5 Mich. L. Rev. 520 (1907).
Available at: https://repository.law.umich.edu/mlr/vol5/iss7/3