OF ENGLISH LIBERTY. 15 



taken of the person and property of individuals of nonage and insane 

 mind ; and, finally, all those commercial transactions for which no 

 provisions are found in the common law, and which all fall under the 

 jurisdiction of the court of equity, as a third species of legislation, al- 

 so provided with peculiar regulations and forms. 



Considering, then, the casualty to which the civil laws owe their 

 introduction and formation, it may not be unreasonable to doubt whe- 

 ther \\\QJury, the far-famed pillar of the English liberty, be really the 

 true image of the ancient Germanic popular courts. This much is 

 certain, that, long after the conquest, the juries were greatly limited 

 and neglected, and that the mode of settling disputes by judicial single 

 combat was very much preferred. The expression, also, in the twenty- 

 ninth chapter of the Magna Charta, which was generally considered 

 as referring to the confirmation of the jury, or rather its jurisdiction, 

 and by which no freeman can be endangered in goods and person ex- 

 cept per legale judicium parium suorum vel per legem terrce (by 

 the decision of his peers and the laws of the country) — that expres- 

 sion, we say, has such a striking resemblance to that used by the 

 Emperor Conrad II, about two centuries previously, in securing to his 

 Italian inferior vassals the inviolate and perpetual possession of their 

 benifices (nemo beneficium suum perdat nisi secundum consuetudi- 

 nem antecessorum nostrorum et per judicium parium suorum.— 

 L. L. Longab., 1. iii. ; Tit., ii., i., 4), that it may be fairly questioned 

 whether the jurisdiction of the jury was at all the subject of conside- 

 ration. And if we add to it the remarkable circumstance that the ex- 

 ertions—or, as we may now term it, the spirit of the age — of the 

 feoffees of that period consisted chiefly in securing their independence 

 against the encroachments of their superiors, and, further, that it 

 was the feoffees who extorted the Magna Charta from King John, it is 

 more than probable that the above expression refers to the irrevocabi- 

 lity of the granted benefices (as those by the Emperor Conrad in Italy), 

 rather than to aught pertaining to the jury, its privileges, or functions. 



Perhaps, if construed in that more probable sense, the jury might 

 be nothing else than the continuation of that mode of judicial proceed- 

 ing which was current when the courts of fees existed, and when the 

 accused was judged by his peers. That mode of proceeding, however, 

 soon sunk into oblivion in those countries where the feudal system was 

 not of so comprehensive a character, and only included under its rule 

 the nobles and other important subjects ; whilst it could but serve as 

 the basis of a progressive and lasting institution of liberty in a country 

 like England, where, as we have already stated, the feudal system rami- 



