In Re Curry, the phrase was held by a general term of the New York supreme court (1881) to mean "lawful judicial proceedings in a court of competent jurisdiction. Trial by jury is not, in all cases, an essential element in 'due process of law.' It is only in cases in which it had been theretofore used, that the constitution [of 1846] makes it a necessary element in such 'due process.' 1 N. Y. Civ. Proc. 326; per Davis, P. J., Daniels, J., concurring.

But in some of the New England states, the expression has been held to guarantee the right of trial by jury. State v. Ray, 63 N. H. 406; Jones v. Robbins, 8 Gray, 329, 343; Saco v. Wentworth, 37 Me. 165, 172. And see dissenting opinion of Harlan, J., 110 U. S. 516, 553, 28 L. ed. 232, 244.

Cf. further, as to "due process of law," Burgess, Pol. Sci. I. 188, 197-200, 211, 212.

There is a constitutional right to a trial by jury, in an action for divorce on the ground of adultery. Batzel v. Batzel, 10 Jones & S. 561. Contra, Cassidy v. Sullivan, 64 Cal. 266.

Whether the right of trial by jury exists in a given case, is determined by the court, not by the parties. Knickerbocker L. Ins. Co. v. Nelson, 8 Hun, 21. See Pennsylvania Coal Co. v. Delaware & H. Canal Co. 1 Keyes, 72.

If a case embraces both legal and equitable claims, the whole must go to the jury. People v. Albany & S. R. Co. 5 Lans. 25; affirmed, 57 N. Y. 161; Davis v. Morris, 36 N. Y. 569.

A statute whereby the right to trial by jury is "clogged with onerous conditions" will not be pronounced unconstitutional, unless it wholly prostrates the right or renders it wholly unavailing to the defendant for his protection. Flint River S. B. Co. v. Foster, 5 Ga. 194; Reckner v. Warner, 22 Ohio St. 275; Hapgood v. Doherty, 8 Gray, 373.

So colored men are (under our Constitutional Amendments) entitled to trial by a jury indifferently composed of whites and negroes. Ex parte Virginia, 100 U. S. 340, 25 L. ed. 677.

For civil rights adjudication generally, cf. Virginia v. Rives, 100 U. S. 313, 25 L. ed. 667; Strauder v. West Virginia, 100 U. S. 305, 25 L. ed. 664; and the chapter on "Civil Liberty in the Constitution of the United States," Burgess, II. 184-252.

In Ex parte Milligan, 71 U. S. 4 Wall. 141, 18 L. ed. 302, the petitioner was tried by a court-martial in Indiana and convicted of treasonable practices, shortly before the end of the Civil War-the military commander having suspended all civil rights and remedies within the limits of his district, consequent upon the suspension of the writ of habeas corpus (under Const. art. 1. § 9) by President and Congress. Held (the Chief Justice and three associates dissenting) that the proceeding was indefensible as a war measure and unconstitutional; that martial rule is confined to the locality of actual war, and could never exist where the courts are open and in the proper and unobstructed exercise of their functions.Hare (Am. Const. Law, I. 507) says that, if Patrick Henry could have foreseen the opinion of Chief Justice Chase in this case and laid it before

the Virginia Convention, "his disbelief in paper guaranties would have been confirmed, his predictions verified, and the new frame of government rejected without further debate."

In the case of Clawson v. United States, 113 U. S. 143, 28 L. ed. 957, 114 U. S. 477, 29 L. ed. 179, decided in 1885, it is held that a Mormon's conviction for polygamy by a jury composed-by virtue of an Act of Congress— wholly of monogamists, is not in conflict with the constitutional requirement of trial by one's fellows.

Cf. chap. IX. notes 65-68; chap. X. note 41; also chap. VIII. note 28.

CHAPTER XII.

PRESENT ASPECT OF THE JURY.

We have thus traced the history of the jury, as a factor of jurisprudence in general, but more directly in its relation to the English system, have marked the successive ages of growth and strata of accretion and stages of development through which it passed before attaining its ultimate structure, and submit the following conclusions: first, that an institution resembling the modern jury in various respects must have existed in England-brought thither by the Romans, and originating among the Greeks—at the earliest civilized period; secondly, that the Roman institution departed simultaneously with Roman civilization, and this feature of "The glory that was Greece,

And the grandeur that was Rome"

has accordingly exerted no influence on the Anglo-Saxons or upon similar institutions subsequently prevailing in the island; thirdly, that no body which can with any degree of propriety be regarded as a jury, existed among the Anglo-Saxons, but that their institutions furnished various elements which afforded a basis of operation for the juridical features introduced by the Norman Conquest; fourthly, that the institutions of the Normans were most instrumental in, and supplied the foundation for, rearing the jury structure; and fifthly, that (in the shape of the assise) it was formally established by positive legislation as an ingredient of our jurisprudence in the reign and by the will of the second Henry, upon the statutes of which monarch

changes were subsequently engrafted by legislation (both parliamentary and judicial) in accordance with historical influences and the progress of jurisprudence.'

2

Does it seem too bold, then, to attribute the establishment of the institution of Henry II. to "the ncat and perspicuous Glanville," or, more euphoniously and precisely, Sir Ranulphus de Glanvilla? "An institution" -writes Emerson, in his essay on Self-Reliance-" is the lengthened shadow of one man." Him, our oldest legal writer, Lord Campbell terms "the father of English jurisprudence;" and the conception of the plan of the assise by him, the chief justiciar and juridical councilor of King Henry, may plausibly be inferred.*

It is not strictly within the province of this treatise -whose purpose is to trace the historical genesis of the jury-to discuss and weigh its merits and demerits, and

1"Our jury is the outflow of English national influences: for Celt, Saxon, Dane, and Norman have all contributed their elements to form the English nationality, and have added their diverse customs and institutions to be amalgamated into the English municipal law. And through all this mass, the Roman jurisprudence has penetrated, and infused its wonderful vitality and power." Pom. Mun. Law, § 27.

And to the same effect Prof. Freeman (Growth of Eng. Const. c. I.): "Each change in our law and constitution has been, not the bringing in of anything wholly new, but the development and the improvement of something that was already old. The ancient custom has ever been to shrink from mere change for the sake of change, but fearlessly to change whenever change was really needed."

Concerning "Judicial Legislation," see a paper (by E. R. Thayer) in 5 Harv. L. Rev. pp. 172-201, ably discussing its scope and legitimate function in the development of the common law.

2 Cf. Story, cited ante, chap. VIII. p. 87.

8 Lives of the Chief Justices, I. 25.

Stubbs speaks of "

significant reforms, which owe their origination perhaps to the great justiciar, Ranulf Glanvill." Select Charters, p. 127.

Blackstone refers to him as the inventor of the writ of assise (Com. bk. III. c. X) and the writ of replevin (Id. c. IX.)

4 The name is variously spelled Glanvil, Glanvill or Glanville. He is the oldest writer on English jurisprudence, and was born at Stratford in

to consider its shortcomings. Among the charges brought against it is that it retards (especially in our larger cities) the disposition of suits, which could be more expeditiously tried by a judge sitting alone; and that even after verdict the administration of justice is hampered by appeals predicated upon exceptions taken at the trial to the rulings of the court, in erroneously admitting for or excluding from the consideration of the jury certain evidence, to the alleged prejudice of the appellant.

On the other hand, its champions contend that "one marked benefit of the system, which has done much to distinguish England and American civilization from that of other countries is, that it affords a school for the more intelligent and responsible citizens in the principles and details of the municipal law. The effect

Suffolk, the year of birth being unknown. Glanville was a man of the sword as well as a man of law, and it was he who took William the Lion, King of Scotland, prisoner at Alnwick in 1174. In the next year he was appointed sheriff of Yorkshire, in 1176 a justice of the King's Court and in eyre, and in 1180 chief justiciary of all England. After the death of his patron, Henry II., in 1189, Glanville was removed from office (probably for political reasons) by Richard I. and imprisoned until he had paid a ransom, said by some to have been as much as £15,000. Thereupon he joined the crusaders, and died at the siege of Acre in 1190.

The revision of English laws made in the reign of Henry II. is ascribed to him, and at the instance of that monarch also his famous Tractatus de legibus et consuetudinibus regni Angliae is said to have been written. It is divided into 14 books, and chiefly treats of the forms of procedure in the curia regis, with incidental references to the general principles of law. The preface expresses its object to be "not only to instruct the professional lawyer, but such as are less accustomed to technical learning." The first printed edition was published in 1554. cf. Foss, Judges of England. Of Glanville's treatise, Prof. Maitland (Pol. Sci. Quart. IV. 516, 518), speaks as "the first of our legal classics," and considers its orderly arrangement and practical brevity as doubtless influenced-like the later treatise of Bracton-by the author's knowledge of Roman law. [A still older treatise on English law, called Quadripartitus, was published in 1892, by Dr. Liebermann at Halle, to which he ascribes the date 1114.]