considered a fit subject for compensation in round cash, why should not damages be awarded for the destruction of a fine ruin-say Bolton Abbey, or Fotheringay,—whose value is wholly dependent on association? Why should not something be allowed for the pretium affectionis? We entirely disagree with Mr. Duncan's reasoning in this part of his evidence; and we are still less disposed to concur with him on another point, as to which he stands alone.

This question is put to him :

"Suppose a house cost 10,000l., it would not let for above 2001. a year in the country?

"Therefore thirty years' purchase upon such a rent as that would be a very inadequate sum to pay?

"There is no doubt that if a railway company takes a house that has cost 10,000l., they do not pay 10,000l. for it; they only pay what could be got for it, what it would sell for, together with the additional compensation for taking it compulsorily.

"But supposing you turn the proprietor out of his house?

"Parliament does it.

"Ought you not to pay him for it?

"We do compensate him, to the full extent of its value, and a good deal more. If he wants to preserve his house, and to prevent its being taken for a public work, he must go to parliament, and beg their protection for his house. Parliament gives the company leave to go through it, on paying what it is worth.

"Then his only way of protecting himself is to get the bill thrown out? "To get the bill thrown out, or to make the company deviate." 1

The same question as to the 10,000l. house is put to Mr. John Clutton, the solicitor of the South-Eastern Railway Company, and we are happy to find that, on being asked whether he would give the amount of money actually expended, that gentleman answers, —

"Yes, and something more.

"You would not take the house and give the owner thirty years' purchase upon 2007., which might be the rent he might get for it, but you would take into consideration the amount of money which he had just laid out upon it?

“I think you must as nearly as possible place the man in the same position as he was in before the railway came. I think no railway company should inflict a hardship upon a private individual if they can ascertain the facts.

"Would you not also allow something for the annoyance of being removed? "Yes; if he had the year before expended 10,000l. for his own comfort, and

1 Minutes of Evidence, p. 11.

the company come and take that property away, I should say he should have something beyond the 10,000l. for his removal." 1

Mr. Edward Driver, the well-known surveyor, is also for dealing liberally in such a case. He says,

“I should pay the full cost of the building. "And the value of the land it stood upon?

"Yes; and compensation for any inconvenience sustained besides, or disappointment.2

It seems to be a rule as to which, in practice, there is little difference of opinion that no landowner has a right to compensation unless he have property on the line. However destructive it may be to the comfort and happiness of an individual to have a railway pass rather close to him, yet, if it does not go over land that belongs to him, he has no sort of claim. Hear again the inflexible Mr. Duncan :

"I know that a case has occurred under our railway acts of parliament where damage was done to an adjoining owner; but he was not actually on the line, he was not in the book of reference; we had nothing to pay him for going over his land; we simply passed by him; and in making a bridge approach, the road in front of his house was much raised, and we put him to positive inconvenience. He used to go from his garden to the road upon a level, but after this alteration he had to come out of his garden gate, and walk up three or four steps to reach the road. He was not an owner upon the line, and he contended unsuccessfully before arbitrators that the company were bound to pay him compensation. But I know that since that case the courts of law have construed the railway acts so that any person placed in a similar position is entitled to compensation, and that he can go to a jury to settle what the compensation to be paid him should be. But if a gentleman's house is merely injured by the noise, or in respect of the sight of the railway, in matters of that kind I doubt very much indeed whether the act of parliament would give compensation to such a party; you must have something more close in point of injury than that as a groundwork for compensation. In the case I have mentioned, the raised road was quite close to the person's dwelling, and was an evident and palpable mischief to him; but in the case of the sight of the railway, or the noise of the railway trains or engine, or matters of that kind, those injuries are too far off from compensation for the acts of parliament to reach them; at least I apprehend so. I apprehend that, unless the owner of a house situated in the position of being annoyed by sight or noise was an owner upon the line, he would not be able to recover compensation.

"You have as good a right to erect an embankment opposite a person's house, upon land which belongs to you, as any other owner would have to erect a house there?

66

Yes, for the public object sanctioned by act of parliament." 3

Mr. Driver, too, is perhaps still more positive.

"Do you know any case where a person's residence has been injured, and the owner of that residence, not having any property actually on the line, has been compensated for the injury to his residence?

"None; that principle has never been admitted at all." 1

To the same effect, Mr. Clutton says, that if the demand of compensation by parties having no property on the line were once recognised,

"It would be impossible for any company to construct their works, so wide a field would be opened. If you opened that case at all, you might have to compensate every man within ten miles of the line."

Our limits, we regret to find, do not admit of our carrying this matter further. We had intended to say something of the general incompetency of juries to do justice in questions of compensation. We must reserve this, however, for another opportunity; as it seems not improbable that railways and their managers will continue long to furnish matter for occasional lucubrations.

ART. X.-ON THE TRIAL BY JURY.

THE trial by jury may be considered, 1st, as regards its origin and history; 2dly, its present practical state and use; 3dly, its capabilities. It cannot be doubted that, however valuable this institution may be, for legal purposes as an instrument for the investigation of truth, and for political purposes as a bulwark of civil liberty, it is not at present enjoyed without some attendant inconveniences, of such a nature as to warrant earnest endeavour to ascertain whether the system may not be rendered more perfect, whether its defects may not be remedied without the sacrifice of any of its advantages.

In purposing, on this occasion, to advert to the history of this mode of trial, we scarcely need to premise, that it would far exceed our present limits to undertake any specific and

1 Minutes of Evidence, p. 34.

2 Id. p.

18.

systematic detail of the changes which it has undergone. Our statements and observations must at present be confined, principally, to a selection of such references and authorities as prove and illustrate transitions of a marked specific character. In order to point out these the more clearly, it will be necessary, in the first place, briefly to consider in what the functions of a jury, as now constituted, consist; and also to distinguish the principal forms of which a popular mode of trial is susceptible. A jury, then, as now constituted, may be defined to consist of "twelve men selected from the body of the community, and sworn to decide any disputed matter of fact by judging upon evidence lawfully submitted to them."

It will easily be seen, from this description of the present trial by jury, of what various forms the trial by a merely popular tribunal is capable. Such a one, in its most primitive and simple state, may consist simply of a class or body of persons, indefinite in point of number, and not sworn, and who are to decide, either upon their own personal knowledge or upon evidence laid before them, as in the case of a trial by a body of suitors, pares curiæ, or resiants within any local district.

Again, such a generality may be limited as to number; a further qualification may be added, that the persons so limited in point of number, and selected for the office, shall act under the obligation of an oath. In such case, that is, where the trial is had before a definite number selected for the purpose, and also sworn, they may be termed generally a jury, or if selected by reason of locality, a jurata patriæ. The jury, then, or jurata patriæ, may be distinguished as regards the functions, which it is appointed to discharge, as a jury of mere conusance or recognition, for the finding of facts on the mere personal knowledge of the jurors; as a jury of mixed functions acting partly on their own knowledge and partly on evidence laid before them; and lastly, as a jury, such as has already been described, judging merely on evidence of the facts laid before them.

These four distinctions have been made, not because they embrace all possible forms of which a popular tribunal is capable, but because they correspond with those actually exhibited at different periods of our legal history, and also

because they are necessary, in order the more easily to point out the changes which have occurred in that history, and corresponding with it in order of time.

It is here to be observed, that there is another very important function, in respect of which tribunals which exercise a judgment upon facts may be distinguished from each other: such a tribunal may either be limited to the deciding upon mere matter of fact, or may be further entrusted also to decide upon the law as applied to such facts. In order, however, to confine the subject of present consideration within clear and distinct limits, we have endeavoured to avoid any discussion arising out of this latter distinction.

The principle of decision by classes indefinite in point of number, and unsworn, pervaded the legal constitutions of our Saxon ancestors. Suits before the king, between his tenants in capite, as well as other suits of great importance, were decided by the pares of his Court. Those in the County Court or Hundred Court were tried by the suitors, or sectatores, of the Court; whilst in the Courts of inferior jurisdiction belonging to various manors and other franchises, questions were also decided before the pares or suitors of the particular court or franchise.

The wisdom and policy manifested by the Anglo-Saxons in framing laws for the manifestation of right, was not less admirable than the order and symmetry observable in the construction of their courts of justice. They aimed at, and to a great extent established, a testimonial system, founded on just and simple principles, and of great practical utility. Many matters of importance of a public nature, and capable of notoriety by public attestation, were transacted openly in the face of the comitatus. Grants, agreements, and fines or concords of disputes, were commonly made and transacted in the County Courts, in the presence of the whole comitatus, attested often besides by many particular witnesses. Wills also were frequently recorded there. Consequently, when questions arose concerning such transactions, the whole conitatus was appealed to in case the transaction had taken place coram comitatu; and the proof was by witnesses in the case of a charter or other writing, or a matter transacted

1 Reg. de Ely, f. 4. Dugdale's Orig. Jur. 30.