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ballot. From these, all the juries were supplied, to the number of eighty one each, upon every new cause. On each side, there was a liberty to challenge fifteen: fifty one remained to give the verdict. This rejectio judicum is often mentioned by Cicero.

In Rome as in Athens, the jury were sworn; and the defendant was acquitted on an equality of votes.

W

Both at Athens and Rome, the time allowed to the counsel for their pleadings, was measured by the dropping of a certain quantity of water. * When the counsel, on each side, had finished their arguments by saying, "dixi," the prætor sent out the jury to consult about their verdict. When they returned with their verdict, they delivered it to the prætor; and he published it. y

z

The Roman juries were judges of law as well as of fact. They could give a verdict of condemnation, a verdict of acquittal, or a verdict of non liquet. This last has, by some, been considered as a special verdict; but improperly; for a special verdict furnishes the court with a statement of facts, on which they can found a decision of law; whereas a non liquet among the Romans immediately adjourned the cause for farther consideration. In some modern tribunals on the continent of Europe, a most scandalous use has, by judges, been made of their power to pronounce a non liquet.

In the celebrated cause of Milg, we can trace the vestiges of a special jury. Pompey, who was, at that

time, sole consul, with the dictatorial power, " videre ne quid detrimenti respublica caperet," appointed a jury, in all respects, of the most able and upright men. Of this jury, the celebrated Cato was one. "Te, M. Cato, testor," says Cicero, in his animated and particular address. The selection of a jury in this peculiar manner, instead of the usual way by ballot, was, probably, one instance, in which Pompey exercised his dictatorial authority.a

Julius Cæsar extended the Roman name and power into Gaul and Germany; and reduced those countries into the form of Roman provinces. This is an expression of strong and peculiar import. When a country was reduced into the form of a Roman province, it lost its own laws, and was governed by those of Rome. b

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Cæsar visited Britain: Claudius, one of his successours, achieved the conquest of a considerable part of the island. He planted in it four colonies. One of them -that at Malden-was intended, as we are told by Tacitus, not so much as a check upon the rebel Britons, as to accustom the new conquests to a familiarity with the Roman laws" imbuendis sociis ad officia legum." His designs were crowned with success. The Britons, who, at first, were disgusted even with the language of Rome, became soon the admirers of her language, her eloquence, and her laws.d Under the reign of Severus, the Roman laws were in their meridian splendour in Britain, and were illustrated by the talents and authority of the celebrated Papinian.

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When the Romans retired from England to guard the vitals of the empire, the Britons resumed, in part, their ancient customs; but blended them with the Roman institutions, with which they had long been familiar. As the trial by jury was a part of the Roman system of judicial polity, when her colonies were established in Britain, it is probable, that this, among other parts, was left and was continued among the Britons.f

Such is the train of observations, which has induced an opinion, that the trial by jury was introduced into England from Athens, through the intermediate channel of Rome. Others think they can trace this mode of trial through a different channel.

The very learned Selden is of opinion, that the Saxons derived the institution of juries immediately from the Grecians. The government of the Saxons, about the time of Tiberius, was, in general, as he informs us, & so suited to that of the Grecians, that it cannot be imagined but much of the Grecian wisdom was introduced among them, long before the glory of the Romans was exalted to its greatest height. It may be well supposed, he infers, that there is some consanguinity between the Saxons and the Grecians, though the degree of that consanguinity be not known. The people were a free people, because they were a law to themselves. This was a privilege belonging to all the Germans, in the same manner as to the Athenians and the Lacedemonians.

The most ordinary trial among the Saxons was, upon a traverse of the matter in fact, by witnesses before the

f Pet. on Jur. 146. 179.

g Bac. on Gov. 9.

jurors; their votes made the verdict, and determined the matter in fact. In former times, continues he, it was questionless a confused manner of trial by votes of the whole multitude, which made the verdict hard to be discerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way.

h

The trial per pares, we are told by others, was common to all the northern nations, as well as to the Saxons.

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It is probable, says an ingenious and well informed writer, that, among the Saxons, every kind of law suit was, at first, determined in full assembly, and by a plurality of voices. But when the duty of these assemblies became burthensome by the increase of business, convenience introduced a practice of selecting a certain number of their members to assist their president in the determination of each cause. Hence the origin of juries; the precise date of whose establishment is uncertain, because it probably arose from no general or publick regulation, but from the gradual and almost imperceptible changes, authorized by common usage in the several districts of the kingdom. The number of jurymen was, for some time, different upon different occasions; till the advantage of uniform practice introduced a general rule, which determined, that no less than twelve persons should be called in all ordinary causes.

j

A third class of writers contend, that juries, properly so called, were first introduced into England from Nor

Bac. on Gov. 56. i Millar. 440. Sulliv. 251. j Millar. 123.

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mandy. They admit a near affinity between this institution and that known to the tribunals of the Saxons; but insist, that, among that people, the trial by jury, speaking correctly, did not exist. The trial, say they, per duodecim juratos, called nambda, was established among the Scandinavians at a very early period; but having fallen into disuse, was revived by a law of Reignerus surnamed Lodbrog, about the year eight hundred and twenty. Seventy years after this time, Rollo made his settlement in Normandy; and, among other customs, carried with him this mode of trial. When the Normans transplanted themselves into England, they were anxious to legitimate this as well as other parts of their jurisprudence, and endeavoured to substitute it in the place of the Saxon sectatores, or suitors to the court. The earliest mention, they say, which we find of any thing like a jury, was in the reign of the Conqueror. He had referred a cause to the county, or sectatores, to determine in their county court, as the course then was according to the Saxon establishment. That court gave their opinion of the cause. But Odo, the bishop. of Baieux, who presided at the hearing of the cause, was dissatisfied with their determination, and directed, that, if they were still sure they spoke truth, they should choose twelve from among themselves, who should confirm it upon their oaths. The old trial by an indefinite number of suitors of court continued, it is added, for many years after the conquest; but the precedent set by the Bishop of Baieux had a great effect towards altering it. It was not, however, till the reign of Henry the second, that the trial by jurors became general. 1.

k 1. Reev. 18. 60.

1 Id. 60. 61.