20 On the ORIGIN and STRUCTURE of 



ftinclion between the judges of the facft and the law, which is 

 to be found almoft univerfally in nations arifing from a rude 

 ftate, all manifeftly flow from this common fource, and, of con- 

 fequence, unite in eftablifhing it as a principle of importance in 

 the hiftory of the public law of Europe. In all rude nations, 

 the laws are few, fimple and precife j and it never occurs to 

 their imagination, that any doubt can arife about the interpre- 

 tation of them. When, therefore, their public aflemblies have, 

 on the accufation of the injured, or of the chief,- convicted a 

 perfon of a violation of the law, the pronouncing, as well as 

 executing the fentence, is committed, as a matter of courfe, to 

 the chief, though he was to profit by the conviclion. In pro- 

 cefs of time, however, as law becomes complicated, there is 

 room for doubt as to its interpretation, and the chief has re- 

 courfe to the afliftance of afleflbrs or deputies for this purpofe. 

 Hence it happens, that the king, in almoft all countries, is na- 

 turally the fource, both of the jtidicial procedure by which 

 courts of juftice exercife their power, and of that magiftracy 

 which interprets the law, while the nation*, as naturally try, or 

 delegate thofe who try, how far individuals have, in fact, com- 

 mitted the wrongs of which they are accufed. We have exam- 

 ples in the kings and afchons of Athens, in the kings, confuls 

 and pretors of Rome, as well as in the Gothic magiftracy, of the 

 former powers, and of the latter, in the trials by the fuflrages 

 of the Greek and Roman tribes, of the county courts and na- 

 tional aflemblies in modern Europe; and in thofe by the ^ITITI 

 or arbiters, delegated from the tribes in Greece, the judices pe- 

 danei, delegated from the Roman tribes, the fcabini from the 

 Gothic and French tribes, the nembda from the Swedifh, he- 

 red fougd from the Danifh, the judices nobilium from the 

 Hungarian, and the lawmen, and their fucceflbrs the juries, 



from the Anglo^faxon and Norman aflemblies f. 



THE 



* Enlightened, but, I apprehend, by no means bound by this interpretation. 

 \ THIS origin of juries has been controverted by very learned writers j but, I think, 

 it is capable of being eftablilhed. And the only plaufible arguments againft it feem to 



me 



