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William Thackery

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John Woodroffe

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A. P. Sinnett

History of trial by jury

by William Forsyth


TT is, I think, remarkable that no History of Trial by Jury has ever yet appeared in this country. Several learned essays on its origin have, indeed, from time to time been written, but chiefly in reviews, and the fugitive literature of the day. In Germany the subject of the Jury has of late years occupied much attention, and has been investigated with laborious accuracy. I would especially mention the works of Rogge, Phillips, Gunderman, Welcker, Mittermaier, and Gneist. But no English lawyer has hitherto devoted himself to the task of giving a full and historical account of the rise and growth of the Jury System, although it would be unjust not to acknowledge some valuable contributions by the late Mr. Starkie, in articles written by him in the Law Review and elsewhere; and Sir Francis Palgrave has, in his Rise and Progress of the English Commontfealth, thrown much light on the nature of the earliest form of Jury Trial known to our ancestors. And yet the subject is one which can be properly discussed by those only who possess competent legal knowledge : and it might have been thought that it would have attracted the curiosity, and exercised the pen of our legal writers. But it was, many years ago, made a reproach against us by the late great American jurist, Mr. Justice Story, that we confine ourselves too much to the technicalities of our profession. He says:—

' There is a remarkable difference in the manner of treating juridical subjects between the foreign and the English jurists. The former, almost universally, discuss every subject with an elaborate theoretical fulness and accuracy, and ascend to the elementary principles of each particular branch of the science. The latter, with few exceptions, write practical treatises which contain little more than a collection of the principles laid down in the adjudged cases, with scarcely an attempt to illustrate them by any general reasoning, or even to follow them out into collateral consequences. In short, these treatises are but little more than full indexes to the reports arranged under appropriate heads: and the materials are often tied together by very slender threads of connexion.'

But in truth we can hardly be surprised at this. An English lawyer has small encouragement to write anything else but a ' practical treatise.' That is the only kind of literature in which he can safely appear as an author, or which gives him a chance of attaining what is supposed to be the great object of his existence—professional success. And the public care little for historical inquiries, except such as are of a popular and amusing kind. I am by no means sanguine that the subject I have chosen will excite sufficient interest to secure it a favourable hearing; and therefore I can hardly be disappointed in the result. But I am not without hopes that readers, if few, yet fit, may be found, who will care to know something of the origin and development of a system so important in a national point of view as that of the Jury. To such I commend my labours. I have travelled over too wide a field not to fear that I may have committed some errors; but I trust they are neither numerous nor important. And they who best know the difficulties of the inquiry will be the most lenient in their censure.

I must express my best thanks to Mr. Macfarlane, of Edinburgh, for his kindness in allowing me to submit to him the MS. of my chapter on the Jury System in Scotland, and for some valuable suggestions made by him. And in an especial manner my warmest acknowledgments and thanks are due to the Syndics of the University Press at Cambridge for their liberal consent to defray, out of the funds at their command, the expenses of printing the present work. Their kindness has made me more than usually anxious that the treatise should be in some degree worthy of such a mark of favour, and justify the confidence reposed in me.


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