Nisi Prius. justice. They were also called Judges of "Nisi prius," Judges of the meaning of which term I must explain to you. It was still considered that Westminster was the proper place for the administration of justice, and these judges were said to be sent to try by a jury of the respective counties, the truth of such matters of fact as were then under dispute in the Courts at Westminster Hall.65 All actions, that is, all proceedings at law for the redress of injuries, began by issuing a writ, and these writs always were, and still are, issued from the Courts at Westminster and are returnable there. That is, these causes would, in the common course of things, be tried at Westminster, in the court from which the writ issued, and whereto it should be returned, and they were therefore said to be matters under dispute in the Courts at Westminster. But it was provided that they should only be tried there nisi prius, that is, "unless previously" (for that is the meaning of these Latin words) to the day ap. pointed for the trial, the Judges of Assize came into the county, where the matter "under dispute originated, to try the cause.66 A commission still issues from the crown, empowering the judges and a few other persons associated with them in the commission, to try causes in their circuits. These judges had also, and still have, what is called a general commission of gaol delivery. This gave Gaol dethem the power to try and deliver from prison everyone who might be in gaol when the judges arrived at the circuit town. " This practice is very properly described by Blackstone as one "of singular use and excellence." 67 In many foreign countries, even at the present day, men may be kept in prisons and dungeons for years, with livery. Justices of the Peace, or Ma gistrates. out trial, and even without knowing of what they are accused. But by this practice the gaols are cleared, and all prisoners tried, punished, or delivered twice at least in every year, for these circuits are now made twice in each year, and sometimes oftener. The well-known, and most important act, called the Habeas Corpus Act, by which men detained anywhere against their will, are entitled to be brought before a judge, in order that he may decide whether they are detained in lawful custody, will be noticed in a subsequent lecture, as it was not passed until the reign of Charles the First. The Judges of Assize, you thus see, go on these circuits instead of the Sovereign, and by virtue of the commission issued by the Sovereign they may be said to represent the Sovereign. They therefore are, and always have been, received in the counties with great state. They are attended by the high sheriff, accompanied, till lately, by javelin men, or men carrying javelins. This is a sketch of the origin of our judges going on circuit and holding assizes in the present day. Criminals, or breakers of the law or of the peace of the kingdom, are now, and for several centuries have been, in the first instance brought before the Justices of the Peace, or inferior magistrates; and, if there is considered to be sufficient evidence against them, the magistrates commit them to prison, where they remain until the judges come on circuit for the trial of all prisoners. Justices of the peace, as magistrates are properly termed, were first appointed in the reign of Edward the Third. There were, previously, officers appointed as wardens, or keepers of the peace; but in the reign of Edward the Third the power of trying felonies was granted to them, and they then acquired the more honourable name of Justices. Justices of the peace, or magistrates, hold various sessions or sittings for the transaction of business, the principal of which are the Quarter Sessions, which must be held four times a-year. The powers granted to the Justices of the peace by Edward the Third are now somewhat diminished.62 Trial by Jury. not guilty. I have now told you how our laws were made, and Guilty or how they were put in force, by which you see whose duty it was to punish the guilty. But we have to examine next the very important question, "how is an accused man found to be guilty or innocent?" In order to do this, I must endeavour to trace out the history of the Trial by Jury, a system of the highest value to a nation, with the possession of which for the trial of criminal cases, no country can be enslaved, and without which no country can be free. Value of Jury depends on principles. Trial by two great The value of trial by jury consists in two great principles. First, that the guilt or innocence of a prisoner is determined by a body of men, who have nothing to do with the infliction of the punishment, and not by the judge who awards the punishment, or by the officers appointed to carry the sentence into execution. And secondly, that those who decide on the guilt or innocence of a prisoner are his equals. The origin of almost all institutions is necessarily Origin of involved in some obscurity. It is like the sun-rising. tions ob It is impossible to fix any exact moment when the scure. K all institu No exact time can be fixed darkness of night first begins to yield to the brightness of morning, and so it is with the origin of most of our institutions. They rose by degrees, from small beginnings. The necessities of some particular circumstance induced men to take a certain course. A similar circumstance occurred; the recollection of a former successful result of the course previously taken induced men again to take the same course. This at last became a constant habit in all similar cases, but, in cases differing slightly, a slightly different course was taken. Thus Mr. Starkie, an eminent lawyer 33a, , says, that no definite answer can be given to the question, "When when Trial did Trial by Jury begin?" and that it can be answered by Jury began. only by tracing the different steps by which it arrived at its present form. If we considered that the only peculiarity of Trial by Jury was, that those who pronounce the sentence should be distinct from those who carry the sentence into execution, we should come to the conclusion that Trial by Jury existed in the earliest Anglo-Saxon times.48 For it is quite certain that in the hundred courts, of which I have told you, the assembled thanes, or lords, who pronounced the sentence, were quite distinct from the Eorl and Shire-gerefa, who carried the sentence into execution. But there is something more than this in the system of Trial by Jury, viz., that those who Those who pronounce the verdict shall be the prisoner's equals, the verdict and this great and most valuable principle of the must be the whole system of English law is nowhere distinctly pronounce prisoner's equals, first esta blished by Magna Charta. I recognised until the granting of Magna Charta. believe that when that great bulwark of our freedom was granted, Trial by Jury was distinctly recognised, although it was, even then, not quite in the form in which it now exists. I will, however, endeavour to track out the progress of this system of trial from the earliest time at which we can find any trace of it. Two Kinds of Juries. I must begin by reminding you that, as you pro- Grand bably know, there are, in criminal cases, two kinds Jury and of juries, the Grand Jury, and the Common Jury. Jury. It is the business of the Grand Jury to say whether there is sufficient ground for sending a prisoner to trial at all, but it is the business of the Common Jury to say, when the trial comes, whether a man is guilty or innocent. The origin of the Grand Jury is clearer than that of the Common Jury. The Grand Jury can be distinctly traced in the reign of Ethelred Grand the Unready, son of Edgar, and great-grandson of ed about Alfred. This was about the year A.D. 1000, or above 800 years ago. In Ethelred's code of laws, it is ordained, that, at the assemblage of the hundred courts, "the twelve eldest thanes shall go out, and the shire-reeve with them, and shall swear on the relic that is given to them in hand, that they will accuse no innocent man, nor conceal any guilty one." 73 This seems to be, in principle, the Grand Jury of our days, which is in substance a kind of inquest or inquiry into the state of crime of the district, for the purpose of referring to trial such cases as, upon inquiry, appear to require that more solemn and practical method of investigation. But the origin of trial by Common Jury is not so easy to make out. When the twelve thanes returned body, the whole body of thanes, to the rest of the Jury exist A.D. 978. |