Of the trial by jury

Abstract

The subject of our next inquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country. A trial that hath been used time out of mind in this nation, and seems to have been co-eval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholson¹ to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal system, as in Germany, France, and Italy; who had all of them a tribunal composed of twelve good men and true, ‘boni homines,’ usually the vasals or tenants of the lord, being the equals or peers of the parties litigant: and, as the lord’s vasals judged each other in the lord’s courts, so the king’s vasals, or the lords themselves, judged each other in the king’s court. In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention.

Book III, Chapter 23.