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happen to have been informed. It is not likely that the Saxons, who were, as Hallam says, mere barbarians, should have originated these useful institutions, but at the same time they had the good sense to borrow them, and continue them; and they were the germs and originals of all our guilds and civil corporations.
Again, the German critic is extremely angry with Finlason for discussing the Roman judicial constitution, especially for making the judices facti the prototypes of English jurors. But here the German critic, through pure ignorance on the one hand, and wilful inattention to the author on the other, falls into utter confusion and error. He evidently fancies the Saxon jurors and the modern English jurors the same, and then easily accuses Finlason of error in likening the Roman judices to the former. But Finlason does no such thing; he compares them rather with the latter; just as Savigny compares them with the German judicators, the scabini. That is, Finlason finds in the Roman judices the prototypes, not of the Saxon jurors, who were mere witnesses, but of the selected judicators, instituted by Charlemagne upon the Roman model, and the jurors of later English times—that is, men selected and sworn to try
on evidence. The German critic is so ignorant as to think this is a new view! Why, a century ago—as far back as 1769–Pettingall published his learned “Enquiry into the use and practice of juries among the Romans, from which the origin of English juries may properly be deduced ;” that is the modern, not the ancient compurgators, but the juries which arose in a later age, deciding upon evidence. Savigny, after pointing out the identity between the boni homnes (the very phrase used in the English law to designate jurors) and the judicators, under the German system, corresponding to the judices selecti of the Romans, proceeds to remark : “ It is remarkable that the right of the juries of England is in an essential particular different from the Germans, and accordant with the Roman system.” Spence, also a man of immense learning, took the same view. The selected judi
cators of the Roman system are seen at this day in the nautical assessors of the Admiralty, and the Roman system, on which the Roman judges in criminal cases were chosen was substantially similar to our own jury system.
Again, in the Roman criminal form, trials in the formation of the jury or judicial body, taken by lot, (sortitio jndicum) from the general body of qualified citizens, there was the right of challenge, exactly as in the English system, and it can be shown that this also was taken by the Saxons from the Romans. The accuser and the accused, under the Roman system, had the right of mutual challenge or objection to such particular persons as judges (Cic. ad Att. 1. 16.) The same system is to be traced in the Saxon laws, (though
the early Saxon jurors were compurgators), and in Glanville I and Bracton. Mr. Hallam even recognizes that in Saxon
times there is mention of juries chosen byiboth sides (ii. 284). This had not escaped the notice of Montesquieu and Guizot; and the German critic, who sneers at them, has not acquired even their measure of knowledge. This is the more discreditable to him, because more than one German writer in our own times have fully explained the system, and shown how closely, as Montesquieu had long ago pointed out, it resembled the English jury system. (Goettling, Geschichte du Rom Stoats verfassung, 4.) Walter, Geschichte des Rom. Rechts. Fegerstiom De Judiatres aprei Romanos. Thus Mr. Finlason's views on the subject are those of the latest and best German writers; all ignored, however, by the learned German critic !
The German critic, however ignorant of all this, blindly follows Reeves, who tells, him that trial by jury was instituted in the reign of Henry II., probably having in his mind the institution of the grand assize mentioned by Glanville, and confounding it with trial by jury, whereas it was only a mode of ascertaining the testimony of the neighbours on the question, a method known for ages before the Conquest, and the only sense in which it was instituted under lluny II., was in its being substituted, at the option of the
tenant for the duel, or trial by battle which the Romans had substituted for the ancient English mode of trial. But that, on the other hand, was only a trial by witnesses or compurgators, and was not at all like the modern trial by jury, insomuch that Glanville himself speaks of the champion who waged the “duel" as a juror, exactly as in the Mirror the same expression is applied to the champion or the compurgator. This is one amongst numerous instances of exact accordance between Glanville and the Mirror, showing the authenticity of the latter, and fully justifying its copious use by the learned Editor of Glanville by way of illustration or commentary.
The German critic, however, is most scornful and contemptuous about Finlason's use of the Mirror. Let us test the German critic's knowledge of the subject; we shall find him as ignorant of it as every other. He says, speaking of the ist and 2nd volumes of the work :-“In nearly all the notes the Mirror of Justice is cited as on authority.” This, as a simple matter of fact is untrue, it is not cited after the reign of Edward II., where Reeves erroneously notices it (rather early in the 2nd volume) and it is cited only occasionally during the period to which it really relates, from the Saxon age to Edward 1. The German critic, however, knowing nothing about it, follows Reeves blindly. “ The Mirror is a legal source of Edward II. time, and parts of it are of very doubtful worth. Together with much valuable information, it contains numerous statements about the historical origin of legal principles, which have the stamp of falsity on their face." This sentence plainly shows that the critic has never seen the Mirror, and that he is only expanding the erroneous passage in Reeves, from which he has taken his idea of it. The whole statement is unfounded. There is not a particle of truth in it; nor in what follows:- Institutions, which according to all trustworthy evidence, were established after the Conquest, especially in the reign of Henry II., are referred back to the Anglo-Saxon period, and then
of course, the credit of originating those much admired Norman institutions is given, by tradition to Alfred the Great."
Here, again, if there were nothing else to show it, there is ample proof that the German critic has never looked at the Mirror. There is not a word of this statement which is true-not a single word. The name of Alfred is only mentioned in the entire work two or three times; and in not a single instance as the founder of any institution at all! No Norman institution is referred to Saxon times, but, on the contrary, the reader is told clearly that the institutions mentioned had clearly all of them been altered and established in Norman time and the ordinances of Henry II. and even Henry I. are carefully mentioned, showing how the Saxon laws had been altered. Here, indeed, as already pointed out, is the value of the work, and for this reason it was so copiously cited by the learned editor of Glanville, and by Mr. Finlason in editing Reeves. And this German critic, evidently in utter ignorance of the edition of Glanville, published half a century ago, and which teems with citations from the Mirror, has the increditable, presumption never having read the work himself, to sneer at an English lawyei, who, after twenty years study of the book, has made a use of it, for the purpose of illustration, sanctioned by the example of the most learned lawyers of his age! Surely this is a rare display of impudence and imposture !
But let us go on, for this is an imposture which, on account of its impudence, ought to be unsparingly exposed :-" That the author should have a special fondness for the Mirror is easily intelligible, for its fictions chime in with his view. They show the existence in the Saxon period of the later English institutions." The truth being that they show nothing of the kind, but exactly the reverse, carefully and expressly pointing out that such and such an institution was of later origin, and showii g how it differed from the earlier, nine tenths of its contents, referring the institutions described to Norman, not to San
times. A more ludicrous exhibition of ignorance never was displayed in the form of a criticism. And the fun of the thing reaches its height where the presumptuous critic proceeds to assume the airs of a man who has mastered a work which it is piain he has never seen; and to lecture a man who has shown himself a perfect master of it in these terms“Finlason several times reproaches Reeves while correcting him for not having reading read the Mirror. Reeves was certainly thoroughly acquainted with this source. We could wish that Finlason had read the work he edited to as much purpose as Reeves read the Mirror."
The German critic, it is clear, had not read as much the Mirror, as Reeves, who had probably scarcely read the first pages of it. The German critic has copied what Reeves wrote of it, and can say no more about it than to repeat or expand what Reeves had written of it. Those who have read Mr. Finlason's notes will have seen that he at all events had made himself perfect master, not only of the Mirror, but of the Saxon laws, and all the monuments of our legal history during the Saxon and Norman periods, and they will have no difficulty in seeing that his account of the subject, is far more likely to be correct than the German writer's, who had evidently known nothing about it. The German critic was impertinent enough to say that Finlason is not acquainted with the works of Kemble and Palgrave. But here, again, in assuming Mr. Finlason's ignorance, he only betrays his own. It happens that the very works mentioned, more than any other modern publications, uphold Mr. Finlason's conclusions, especially as to the value of the Mirror, and the origin of real trial by jury. In the Codex Diplomaticus, for example, is to be found repeated instances in which the king's thanes, or earls, are called cométes, or companions of the king, &c., which is the term used in the Mirror. But then there are similar instances in Bede. Kemble, and Palgrave of course could only work from the original sources of Saxon history and laws, and with which any student of Saxon history would be familiar, and