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Show 24 INTRODUCTIOX. (House of Co mmon:::..;, , ) 1·n which met towo· eth•e r the elect•e d rep- resentat1. ves of tl1 e smaller landed propnetors, . holchng. by kn1. crht' s servi. ce n. n mediately of the crown, (knlghi.., .o f the, s hn.~e , ) toc0 rether with the newly-admitted rcpre e. ntahv ,' of the c1. t1.e s and c1 n.e f to 'n' n~... , (burcor e e".) The Parlw.nlenl thus con ti· tu t e d c1 m ·m eel and exerci ed ' l)robably as succcs~or of the vVittenagemote, appellate jurisdiction fron1 the de~i 'ions f all the courts of law. In the ti1ne of l~d·ward III. 1t "·a' o G • r even a common practice for the judges, when any questwn o diiTiculty arose in their several court.,, to take the ad vice of Parliament on it before giving judgment. 'Thu" in a ca"e n1entioned in the Year Book, 40 Ed. III., 'fhorpc, chief ju. tice of the ICing's Bench, went with another juuge to the IIou e of Lords, to inquire the 1neaning and eflect of a law they had just pa ed for amending the ·ystc1n of pl acling:; ·* and many other instances occur of the arne :ort. Thi, appellate power vesting in ]Jarliatucnt fr01n the decisions of all the courts wa the first of the circu1n ·lance" alJove alluded to a erving to prevent the 111onopoly of the ~ulministration of ju ·tice by the lawyers. Bnt this check with the process of time ba .. almost entirely ui::-appeareu. In England this appellate power in Parlianwnt ha .... long incc f~tllen into the bands exclu..,ively of the llou ·c of Lor(b, who them elves in giving judgment are ordinarily only th, mouthpiece of the judges called in to give their advi ·e. In what arc now the United tates of Atnerica the same appellate jnrisuiction wa * If the Lords, says Campbell, were f.-till liable to be RO intenogated, ~hey would not unfrequently ue puzzled; and the reYivn.l of the practice 1111ght be a check on hasty legi~lation. It certainly would be ::t check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those' ,ho frame them. INTRODUCTIOS. • 25 odginally cxerci.'ed by the colonial assemblies. vVith us , however, it has entirely vanished. under the influence of the iuca of a total eparation of the legislative, executive, and judicial function . The other, and by far the n1o t in1portant checJ· upon the monopoly of the lawyer , vYas the introduction and gradual perfecting of the trial by jury, by which the more ancient method "- the compurgation and ordeal of the Anglo-Saxons, and the trial by battle, the favorite 1nethod of the AngloNornlans- were entirely super~cdcd. The hi tory of the trial by jury is exceedingly obscure. The petit jury may, however, be traced back to the old Anglo-Saxon n1etltod of trial by COinpurgation, the jury in its origin being only a body of witnes es drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their O\Vll personal knowledge of the 1natters in dispute.* The grand jury see1n · to have originated iu the old AngloSaxon cu. tom in1bodied in one of the laws of Ethelrcd, by i!-C Hence the necessity of Ycnue, that i:), the allegation in all declarations and indictment~ of some place in somo county where the matter complained o.f happ~ned, in. order to a trial uy a jury of the vicinage. In personal actwns th1s necessity of trying a case in the county where the transaction occurred was got rid of by first ~etting out the true place of the transaction, ~nd then alleging under a 1./idelicet a venue in the county where the actwn was brought, whi c;h latter allegation the courts ,vould not allow to be disputed. But in criminal proceedings and real actions the neces. ity of a trial in the county where the offence was committed or the land lie· still continues. The origin of the jury in ::t body of neighbors who decided from their own knowledge will seem less remar1mhle when we recollect that by the customs of the Anglo-Saxous ::tll sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Pulgrn.ve's English Commonwealtlz, vol. i. p. 213. 3 |