296 THE POPULAR SCIENCE MONTHLY. 



wont to attach to it. Among the phenomena of human life is this, that 

 in all countries and ages certain ideas or beliefs have been found so 

 pleasing to the national vanity as to be regarded as the most funda- 

 mental of truths. They have descended from generation to generation 

 as a sort of popular inheritance. They have formed part of the edu- 

 cation of youth and the entertainment of maturer age. They have 

 been placed, so to speak, in the national Pantheon, and v^'orshiped as 

 at least half divine. 



No one ever thought of doubting them, because to do so would be 

 sacrilege ; to deny them, a crime. Instances of this will occur to every 

 one, and no more marked instance can be found than this, that we owe 

 trial by jury to the wisdom, courage, and foresight of the Anglo- 

 Saxons of the reign of John. A reference to the circumstances of that 

 period will make this evident. 



In consequence of their miserable condition, the hardships and ex- 

 actions of the feudal system, and the cruelty and rapacity of those 

 above them, the Anglo-Saxons, who constituted the lowest orders of 

 the people at that time, were crying out for a return to the laws and 

 customs of the Anglo-Saxon period. These customs included, as we 

 have seen, a sort of trial by jury of the crudest and most rudimentary 

 kind. But it was not for this they cried. This, such as it was, they 

 had never lost. Under the Norman kings it was encouraged rather 

 than suppressed, and in the reign of John had advanced far toward a 

 regular judicial system. To this extent only can the reference to trial 

 by jury in Magna Charta be ascribed to the Anglo-Saxons — viz., that 

 it was one of the customs of the English people descended from the 

 Anglo-Saxon period, confirmed by many subsequent charters, and en- 

 rolled in the great charter as part of the national constitution. To 

 understand this it is indispensable to remember what the great charter 

 was, and how little in reality the lower orders had to do with it. The 

 struggle out of which it arose was not with them at all. It was a 

 contest between the king and the barons, who set at naught his au- 

 thority, who hanged his officers, and who rebelled against his outrages 

 and abuses. It was they, the greatest enemies of the Anglo-Saxons, 

 whose interest was in framing the laws so that they might ravage the 

 common people with impunity, and at the same time escape similar 

 treatment on the part of the king, who compelled the latter to sign 

 Magna Charta. And so clearly were their interests opposed to the sys- 

 tem of trial by jury, that it has been confidently asserted that the famous 

 jury clause was due to the king himself. It seems more reasonable, 

 however, to ascribe it to the archbishop and the clergy, by whom the 

 document was undoubtedly drawn, and to whom its peculiar phrase- 

 ology is undoubtedly due. But what is more credible, and, if true, 

 more important, is the assertion on high authority that the words 

 judicium pariiim, or judgment of peers, which are supposed to em- 

 body the great central principle of trial by jury, do not refer to 



