VOLUME XV SLICE V Joints to Justinian I. (continued 11)

The coroner’s jury must by statute (1887) consist of not more than twenty-three nor less than twelve jurors. It is summoned by the coroner to hold an inquest super visum corporis in cases of sudden or violent death, and of death in prisons or lunatic asylums, and to deal with treasure trove. The qualification of the coroner’s jurors does not depend on the Juries Acts 1825 and 1870, and in practice they are drawn from householders in the immediate vicinity of the place where the inquest is held. Unanimity is not required of a coroner’s jury; but twelve must concur in the verdict. If it charges anyone with murder or manslaughter, it is duly recorded and transmitted to a court of assize, and has the same effect as an indictment by a grand jury, i.e. it is accusatory only and is not conclusive, and is traversable, and the issue of guilt or innocence is tried by a petty jury.

The Petty Jury.—The ordeal by water or fire was used as the final test of guilt or innocence until its abolition by decree of the Lateran council (1219). On its abolition it became necessary to devise a new mode of determining guilt as distinguished from ill fame as charged by the grand jury. So early as 1221 accused persons had begun to put themselves on the country, or to pay to have a verdict for “good or ill”; and the trial seems to have been by calling for the opinions of the twelve men and the four townships, who may have been regarded as a second body of witnesses who could traverse the opinion of the hundred jury. (See Pollock and Maitland, ii. 646.) The reference to judicium parium in Magna Carta is usually taken to refer to the jury, but it is clear that what is now known as the petty jury was not then developed in its present form. “The history of that institution is still in manuscript,” says Maitland.

It is not at all clear that at the outset the trial by the country (in pais; in patria) was before another and different jury. The earliest instances look as if the twelve men and the four vills were the patria and had to agree. But by the time of Edward I. the accused seems to have been allowed to call in a second jury. A person accused by the inquest of the hundred was allowed to have the truth of the charge tried by another and different jury.5 “There is,” says Forsyth, “no possibility of assigning a date to this alteration.” “In the time of Bracton (middle of the 13th century) the usual mode of determining innocence or guilt was by combat or appeal. But in most cases the appellant had the option of either fighting with his adversary or putting himself on his country for trial”—the exceptions being murder by secret poisoning, and certain circumstances presumed by the law to be conclusive of guilt.6 But the separation must have been complete by 1352, in which year it was enacted “that no indictor shall be put in inquests upon deliverance of the indictees of felonies or trespass if he be challenged for that same cause by the indictee.”

The jurors, whatever their origin, differed from the Saxon doomsmen and the jurats of the Channel Islands in that they adjudged nothing; and from compurgators or oath-helpers in that they were not witnesses called by a litigant to support his case (Pollock and Maitland, i. 118). Once established, the jury of trial whether of actions or indictments developed on the same lines. But at the outset this jury differed in one material respect from the modern trial jury. The ancient trial jury certify to the truth from their knowledge of the facts, however acquired. In other words, they resemble witnesses or collectors of local evidence or gossip rather than jurors. The complete withdrawal of the witness character from the jury is connected by Forsyth with the ancient rules of law as to proof of written instruments, and a peculiar mode of trial per sectam. When a deed is attested by witnesses, you have a difference between the testimony of the witness, who deposes to the execution of the deed, and the verdict of the jury as to the fact of execution. It has been contended with much plausibility that in such cases the attesting witnesses formed part of the jury. Forsyth doubts that conclusion, although he admits that, as the jurors themselves were originally mere witnesses, there was no distinction in principle between them and the attesting witnesses, and that the attesting witnesses might be associated with the jury in the discharge of the function of giving a verdict. However that may be, in the reign of Edward III., although the witnesses are spoken of “as joined to the assize,” they are distinguished from the jurors. The trial per sectam was used as an alternative to the assize or jury, and resembled in principle the system of compurgation. The claimant proved his case by vouching a certain number of witnesses (secta), who had seen the transaction in question, and the defendant rebutted the presumption thus created by vouching a larger number of witnesses on his own side. In cases in which this was allowed, the jury did not interpose at all, but in course of time the practice arose of the witnesses of the secta telling their story to the jury. In these two instances we have the jury as judges of the facts sharply contrasted with the witnesses who testify to the facts; and, with the increasing use of juries and the development of rules of evidence, this was gradually established as the true principle of the system. In the reign of Henry IV. we find the judges declaring that the jury after they have been sworn should not see or take with them any other evidence than that which has been offered in open court. But the personal knowledge of the jurors was not as yet regarded as outside the evidence on which they might found a verdict, and the stress laid upon the selection of jurymen from the neighbourhood of the cause of the action shows that this element was counted on, and, in fact, deemed essential to a just consideration of the case. Other examples of the same theory of the duties of the jury may be found in the language used by legal writers. Thus it has been said that the jury may return a verdict although no evidence at all be offered, and again, that the evidence given in court is not binding on the jury, because they are assumed from their local connexion to be sufficiently informed of the facts to give a verdict without or in opposition to the oral evidence. A recorder of London, temp. Edward VI., says that, “if the witnesses at a trial do not agree with the jurors, the verdict of the twelve shall be taken and the witnesses shall be rejected.” Forsyth suggests as a reason for the continuance of this theory that it allowed the jury an escape from the attaint, by which penalties might be imposed on them for delivering a false verdict in a civil case. They could suggest that the verdict was according to the fact, though not according to the evidence.

In England the trial jury (also called petty jury or traverse jury) consists of twelve jurors, except in the county court, where the number is eight. In civil but not in criminal cases the trial may by consent be by fewer than twelve jurors, and the verdict may by consent be that of the majority. The rule requiring a unanimous verdict has been variously explained. Forsyth regards the rule as intimately connected with the original character of the jury as a body of witnesses, and with the conception common in primitive society that safety is to be found in the number of witnesses, rather than the character of their testimony. The old notion seems to have been that to justify an accusation, or to find a fact, twelve sworn men must be agreed. The afforcing of the jury, already described, marks an intermediate stage in the development. Where the juries were not unanimous new jurors were added until twelve were found to be of the same opinion. From the unanimous twelve selected out of a large number to the unanimous twelve constituting the whole jury was a natural step, which, however, was not taken without hesitation. In some old cases the verdict of eleven jurors out of twelve was accepted, but it was decided in the reign of Edward III. that the verdict must be the unanimous opinion of the whole jury. Diversity of opinion was taken to imply perversity of judgment, and the law sanctioned the application of the harshest methods to produce unanimity. The jurors while considering their verdict were not allowed a fire nor any refreshment, and it is said in some of the old books that, if they failed to agree, they could be put in a cart and drawn after the justices to the border of the county, and then upset into a ditch. These rude modes of enforcing unanimity has been softened in later practice, but in criminal cases the rule of unanimity is still absolutely fixed.

In civil cases and in trials for misdemeanour, the jurors are allowed to separate during adjournments and to return to their homes; in trials for treason, treason-felony and murder, the jurors, once sworn, must not separate until discharged. But by an act of 1897 jurors on trials for other felonies may be allowed by the court to separate in the same way as on trials for misdemeanour.

These rules do not apply to a jury which has retired to consider its verdict. During the period of retirement it is under the keeping of an officer of the court.

At common law aliens were entitled to be tried by a jury de medietate linguae—half Englishmen, half foreigners, not necessarily compatriots of the accused. This privilege was abolished by the Naturalization Act 1870; but by the Juries Act 1870 aliens who have been domiciled in England or Wales for ten years or upwards, if in other respects duly qualified, are liable to jury service as if they were natural-born subjects (s. 8).

A jury of matrons is occasionally summoned, viz. on a writ de ventre inspiciendo, or where a female condemned to death pleads pregnancy in stay of execution.

The jurors are selected from the inhabitants of the county, borough or other area for which the court to which they are summoned is commissioned to act. In criminal cases, owing to the rules as to venue and that crime is to be tried in the neighbourhood where it is committed, the mode of selection involves a certain amount of independent local knowledge on the part of the jurors. Where local prejudice has been aroused for or against the accused, which is likely to affect the chance of a fair trial, the proceedings may be removed to another jurisdiction, and there are a good many offences in which by legislation the accused may be tried where he is caught, irrespective of the place where he is alleged to have broken the law. As regards civil cases, a distinction was at an early date drawn between local actions which must be tried in the district in which they originated, and transitory actions which could be tried in any county. These distinctions are now of no importance, as the place of trial of a civil action is decided as a matter of procedure and convenience, and regard is not necessarily paid to the place at which a wrong was done or a contract broken.

The qualifications for, and exemptions from, service as a petty juror are in the main contained in the Juries Acts 1825 and 1870, though a number of further exemptions are added by scattered enactments. The exemptions include members of the legislature and judges, ministers of various denominations, and practising barristers and solicitors, registered medical practitioners and dentists, and officers and soldiers of the regular army. Persons over sixty are exempt but not disqualified. Lists of the jurors are prepared by the overseers in rural parishes and by the town clerks in boroughs, and are submitted to justices for revision. When jurors are required for a civil or criminal trial they are summoned by the sheriff or, if he cannot act, by the coroner.

Special and Common Juries.—For the purpose of civil trials in the superior courts there are two lists of jurors, special and common. The practice of selecting special jurors to try important civil cases appears to have sprung up, without legislative enactment, in the procedure of the courts. Forsyth says that the first statutory recognition of it is so late as 3 Geo. II. c. 25, and that in the oldest book of practice in existence (Powell’s Attourney’s Academy, 1623) there is no allusion to two classes of jurymen. The acts, however, which regulate the practice allude to it as well established. The Juries Act 1870 (33 & 34 Vict. c. 77) defines the class of persons entitled and liable to serve on special juries thus: Every man whose name shall be on the jurors’ book for any county, &c., and who shall be legally entitled to be called an esquire, or shall be a person of higher degree, or a banker or merchant, or who shall occupy a house of a certain rateable value (e.g. £100 in a town of 20,000 inhabitants, £50 elsewhere), or a farm of £300 or other premises at £100. A special juryman receives a fee of a guinea for each cause. Either party may obtain an order for a special jury, but must pay the additional expenses created thereby unless the judge certifies that it was a proper case to be so tried. For the common jury any man is qualified and liable to serve who has £10 by the year in land or tenements of freehold, copyhold or customary tenure; or £20 on lands or tenement held by lease for twenty-one years or longer, or who being a householder is rated at £30 in the counties of London and Middlesex, or £20 in any other county. A special jury cannot be ordered in cases of treason or felony, and may be ordered in cases of misdemeanour only when the trial is in the king’s bench division of the High Court, or the civil side at assizes.

Challenge.—It has always been permissible for the parties to challenge the jurors summoned to consider indictments or to try cases. Both in civil and criminal cases a challenge “for cause” is allowed; in criminal cases a peremptory challenge is also allowed. Challenge “for cause” may be either to the array, i.e. to the whole number of jurors returned, or to the polls, i.e. to the jurors individually. A challenge to the array is either a principal challenge (on the ground that the sheriff is a party to the cause, or related to one of the parties), or a challenge for favour (on the ground of circumstances implying “at least a probability of bias or favour in the sheriff”). A challenge to the polls is an exception to one or more jurymen on either of the following grounds: (1) propter honoris respectum, as when a lord of parliament is summoned; (2) propter defectum, for want of qualification; (3) propter affectum, on suspicion of bias or partiality; and (4) propter delictum, when the juror has been convicted of an infamous offence. The challenge propter affectum is, like the challenge to the array, either principal challenge or “to the favour.” In England as a general rule the juror may be interrogated to show want of qualification; but in other cases the person making the challenge must prove it without questioning the juror, and the courts do not allow the protracted examination on the voir dire which precedes every cause célèbre in the United States. On indictments for treason the accused has a right peremptorily to challenge thirty-five of the jurors on the panel; in cases of felony the number is limited to twenty, and in cases of misdemeanour there is no right of peremptory challenge. The Crown has not now the right of peremptory challenge and may challenge only for cause certain (Juries Act 1825, s. 29). In the case of felony, on the first call of the list jurors objected to by the Crown are asked to stand by, and the cause of challenge need not be assigned by the Crown until the whole list has been perused or gone through, or unless there remain no longer twelve jurors left to try the case, exclusive of those challenged. This arrangement practically amounts to giving the Crown the benefit of a peremptory challenge.

Function of Jury.—The jurors were originally the mouthpiece of local opinion on the questions submitted to them, or witnesses to fact as to such questions. They have now become the judges of fact upon the evidence laid before them. Their province is strictly limited to questions of fact, and within that province they are still further restricted to matters proved by evidence in the course of the trial and in theory must not act upon their own personal knowledge and observation except so far as it proceeds from what is called a “view” of the subject matter of the litigation. Indeed it is now well established that if a juror is acquainted with facts material to the case, he should inform the court so that he may be dismissed from the jury and called as a witness; and Lord Ellenborough ruled that a judge would misdirect the jury if he told them that they might reject the evidence and go by their own knowledge. The old decantatum assigns to judge and jury their own independent functions: Ad quaestionem legis respondent judices: ad quaestionem facti juratores (Plowden, 114). But the independence of the jurors as to matters of fact was from an early time not absolute. In certain civil cases a litigant dissatisfied by the verdict could adopt the procedure by attaint, and if the attaint jury of twenty-four found that the first jury had given a false verdict, they were fined and suffered the villainous judgment. Attaints fell into disuse on the introduction about 1665 of the practice of granting new trials when the jury found against the weight of the evidence, or upon a wrong direction as to the law of the case.

In criminal cases the courts attempted to control the verdicts by fining the jurors for returning a verdict contra plenam et manifestam evidentiam. But this practice was declared illegal in Bushell’s case (1670); and so far as criminal cases are concerned the independence of the jury as sole judges of fact is almost absolute. If they acquit, their action cannot be reviewed nor punished, except on proof of wilful and corrupt consent to “embracery” (Juries Act 1825, s. 61). If they convict no new trial can be ordered except in the rare instances of misdemeanours tried as civil cases in the High Court. In trials for various forms of libel during the 18th century, the judges restricted the powers of juries by ruling that their function was limited to finding whether the libel had in fact been published, and that it was for the court to decide whether the words published constituted an offence.7 By Fox’s Libel Act 1792 the jurors in such cases were expressly empowered to bring in a general verdict of libel or no libel, i.e. to deal with the whole question of the meaning and extent of the incriminated publication. In other words, they were given the same independence in cases of libel as in other criminal cases. This independence has in times of public excitement operated as a kind of local option against the existing law and as an aid to procuring its amendment. Juries in Ireland in agrarian cases often acquit in the teeth of the evidence. In England the independence of the jury in criminal trials is to some extent menaced by the provisions of the Criminal Appeal Act 1907.

While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. The rules as to admissibility of evidence, largely based upon scholastic logic, sometimes difficult to apply, and almost unknown in continental jurisprudence, coupled with the right of an English judge to sum up the evidence (denied to French judges) and to express his own opinion as to its value (denied to American judges), fetter to some extent the independence or limit the chances of error of the jury.

“The whole theory of the jurisdiction of the courts to interfere with the verdict of the constitutional tribunal is that the court is satisfied that the jury have not acted reasonably upon the evidence but have been misled by prejudice or passion” (Watt v. Watt (1905), App. Cas. 118, per Lord Halsbury). In civil cases the verdict may be challenged on the ground that it is against the evidence or against the weight of the evidence, or unsupported by any evidence. It is said to be against the evidence when the jury have completely misapprehended the facts proved and have drawn an inference so wrong as to be in substance perverse. The dissatisfaction of the trial judge with the verdict is a potent but not conclusive element in determining as to the perversity of a verdict, because of his special opportunity of appreciating the evidence and the demeanour of the witnesses. But his opinion is less regarded now that new trials are granted by the court of appeal than under the old system when the new trial was sought in the court of which he was a member.

The appellate court will not upset a verdict when there is substantial and conflicting evidence before the jury. In such cases it is for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury. Under modern procedure, in order to avoid the risk of a new trial, it is not uncommon to take the verdict of a jury on the hypothesis that there was evidence for their consideration, and to leave the unsuccessful party to apply for judgment notwithstanding the verdict. The question whether there was any evidence proper to be submitted to the jury arises oftenest in cases involving an imputation of negligence—e.g. in an action of damages against a railway company for injuries sustained in a collision. Juries are somewhat ready to infer negligence, and the court has to say whether, on the facts proved, there was any evidence of negligence by the defendant. This is by no means the same thing as saying whether, in the opinion of the court, there was negligence. The court may be of opinion that on the facts there was none, yet the facts themselves may be of such a nature as to be evidence of negligence to go before a jury. When the facts proved are such that a reasonable man might have come to the conclusion that there was negligence, then, although the court would not have come to the same conclusion, it must admit that there is evidence to go before the jury. This statement indicates existing practice but scarcely determines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is relevant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connexion as cause and effect (see Evidence). As regards damages the court has always had wide powers, as damages are often a question of law. But when the amount of the damages awarded by a jury is challenged as excessive or inadequate, the appellate court, if it considers the amount unreasonably large or unreasonably small, must order a new trial unless both parties consent to a reduction or increase of the damages to a figure fixed by the court; see Watt v. Watt (1905), App. Cas. 115.

Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree.

There is much force in the arguments of Bentham and others against the need of unanimity—the application of pressure to force conviction on the minds of jurors, the indifference to veracity which the concurrence of unconvinced minds must produce in the public mind, the probability that jurors will disagree and trials be rendered abortive, and the absence of any reasonable security in the unanimous verdict that would not exist in the verdict of a majority. All this is undeniably true, but disagreements are happily not frequent, and whatever may happen in the jury room no compulsion is now used by the court to induce agreement.

But, apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury system deserves all the encomiums which have been passed upon it. In criminal cases, especially of the graver kind, it is perhaps the best tribunal that could be devised. There the element of moral doubt enters largely into the consideration of the case, and that can best be measured by a popular tribunal. Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. But in civil causes, where the issue must be determined one way or the other on the balance of probabilities, a single judge would probably be a better tribunal than the present combination of judge and jury. Even if it be assumed that he would on the whole come to the same conclusion as a jury deliberating under his directions, he would come to it more quickly. Time would be saved in taking evidence, summing up would be unnecessary, and the addresses of counsel would inevitably be shortened and concentrated on the real points at issue. Modern legislation and practice in England have very much reduced the use of the jury both in civil and criminal cases.

In the county courts trial by jury is the exception and not the rule. In the court of chancery and the admiralty court it was never used. Under the Judicature Acts many cases which in the courts of common law would have been tried with a jury are now tried before a judge alone, or (rarely) with assessors, or before an official referee. Indeed cynics say that a jury is insisted on chiefly in cases when a jury, from prejudice or other causes, is likely to be more favourable than a judge alone.

In criminal cases, by reason of the enormous number of offences punishable on summary conviction and of the provisions made for trying certain indictable offences summarily if the offender is young or elects for summary trial, juries are less called on in proportion to the number of offences committed than was the practice in former years.

Scotland.—According to the Regiam Majestatem, which is identical with the treatise of Glanvill on the law of England (but whether the original or only a copy of that work is disputed), trial by jury existed in Scotland for civil and criminal cases from as early a date as in England, and there is reason to believe that at all events the system became established at a very early date. Its history was very different from that of the English jury system. There was no grand jury under Scots law, but it was introduced in 1708 for the purpose of high treason (7 Anne c. 21). For the trial of criminal cases the petty jury is represented by the criminal “assize.” This jury has always consisted of fifteen persons and the jurors are chosen by ballot by the clerk of the court from the list containing the names of the special and common jurors, five from the special, ten from the common. Prosecutor and accused each have five peremptory challenges, of which two only may be directed against the special jurors; but there is no limit to challenges for cause. The jury is not secluded during the trial except in capital cases or on special order of the court made proprio motu or on the application of prosecutor or accused. The verdict need not be unanimous, nor is enclosure a necessary preliminary to a majority verdict. It is returned viva voce by the chancellor or foreman, and entered on the record by the clerk of the court, and the entry read to the jury. Besides the verdicts of “guilty” and “not guilty,” a Scots jury may return a verdict of “not proven,” which has legally the same effect as not guilty in releasing the accused from further proceedings on the particular charge, but inflicts on him the stigma of moral guilt.

Jury trial in civil cases was at one time in general if not prevailing use, but was gradually superseded for most purposes on the institution of the Court of Session (1 Mackay, Ct. Sess. Pr. 33). In this, as in many other matters, Scots law and procedure tend to follow continental rather than insular models. The civil jury was reintroduced in 1815 (55 Geo. III. c. 42), mainly on account of the difficulties experienced by the House of Lords in dealing with questions of fact raised on Scottish appeals. At the outset a special court was instituted in the nature of a judicial commission to ascertain by means of a jury facts deemed relevant to the issues in a cause and sent for such determination at the discretion of the court in which the cause was pending. The process was analogous to the sending of an issue out of chancery for trial in a superior court of common law, or in a court of assize. In 1830 the jury court ceased to exist as a separate tribunal and was merged in the Court of Session. By legislation of 1819 and 1823 certain classes of cases were indicated as appropriate to be tried by a jury; but in 1850 the cases so to be tried were limited to actions for defamation and nuisance, or properly and in substance actions for damages, and under an act of 1866 even in these cases the jury may be dispensed with by consent of parties.

The civil jury consists as in England of twelve jurors chosen by ballot from the names on the list of those summoned. There is a right of peremptory challenge limited to four, and also a right to challenge for cause. Unanimity was at first but is not now required. The jury if unanimous may return a verdict immediately on the close of the case. If they are not unanimous they are enclosed and may at any time not less than three hours after being enclosed return a verdict by a bare majority. If after six hours they do not agree by the requisite majority, i.e. are equally divided, they must be discharged. It was stated by Commissioner Adam, under whom the Scots civil jury was originated, that in twenty years he knew of only one case in which the jury disagreed. Jury trial in civil cases in Scotland has not flourished or given general satisfaction, and is resorted to only in a small proportion of cases. This is partly due to its being transplanted from England.

Ireland.—The jury laws of Ireland do not differ in substance from those of England. The qualifications of jurors are regulated by O’Hagan’s Acts 1871 and 1872, and the Juries Acts 1878 and 1894. In criminal cases much freer use is made than in England of the rights of the accused to challenge, and of the Crown to order jurors to stand by, and what is called “jury-packing” seems to be the object of both sides when some political or agrarian issue is involved in the trial. Until the passing of the Irish Local Government Act 1898, the grand jury, besides its functions as a jury of accusation, had large duties with respect to local government which are now transferred to the county councils and other elective bodies.

British Empire.—In most parts of the British Empire the jury system is in force as part of the original law of the colonists or under the colonial charters of justice or by local legislation. The grand jury is not in use in India; was introduced but later abolished in the Cape Colony; and in Australia has been for most purposes superseded by the public prosecutor. The ordinary trial jury for criminal cases is twelve, but in India may be nine, seven, five or three, according to certain provisions of the Criminal Procedure Code 1898. In countries where the British Crown has foreign jurisdiction the jury for criminal trials has in some cases been fixed at a less number than twelve and the right of the Crown to fix the number is established; see ex p. Carew, 1897, A.C. 719. In civil cases the number of the jury is reduced in some colonies, e.g. to seven in Tasmania and Trinidad.

European Countries.—In France there is no civil jury. In criminal cases the place of the grand jury is taken by the chambre des mises en accusation, and the more serious crimes are tried before a jury of twelve which finds its verdict by a majority, the exact number of which may not be disclosed. In Belgium, Spain, Italy and Germany, certain classes of crime are tried with the aid of a jury.

United States.—The English jury system was part of the law of the American colonies before the declaration of independence; and grand jury, coroner’s jury and petty jury continue in full use in the United States. Under the Federal Constitution (Article iii.) there is a right to trial by jury in all criminal cases (except on impeachment) and in all civil actions at common law in which the subject matter exceeds $20 in value (amendments vi. and vii.). The trial jury must be of twelve and its verdict must be unanimous; see Cooley, Constitutional Limitations (6th ed.), 389. The respective provinces of judge and jury have been much discussed and there has been a disposition to declare the jury supreme as to law as well as fact. The whole subject is fully treated by reference to English and American authorities, and the conflicting views are stated in Sparf v. United States, 1895, 156 U.S. 61. The view of the majority of the court in that case was that it is the duty of the jury in a criminal case to receive the law from the court and to apply it as laid down by the court, subject to the condition that in giving a general verdict the jury may incidentally determine both law and fact as compounded in the issues submitted to them in the particular case. The power to give a general verdict renders the duty one of imperfect obligation and enables the jury to take its own view of the terms and merits of the law involved.

The extent to which the jury system is in force in the states of the union depends on the constitution and legislation of each state. In some the use of juries in civil and even in criminal cases is reduced or made subject to the election of the accused. In others unanimous verdicts are not required, while the constitutions of others require the unanimous verdict of the common law dozen.

(W. F. C.)

1 I.e. the jury-box, or enclosed space in which the jurors sit in court.

2 Freeman, Norman Conquest, v. 451.

3 This fact would account for the remarkable development of the system on English ground, as contrasted with its decay and extinction in France.

4 Blackstone puts the principle as being that no man shall be convicted except by the unanimous voice of twenty-four of his equals or neighbours—twelve on the grand, and twelve on the petty jury.

5 The distinction between the functions of the grand jury, which presents or accuses criminals, and the petty jury, which tries them, has suggested the theory that the system of compurgation is the origin of the jury system—the first jury representing the compurgators of the accuser, the second the compurgators of the accused.

6 Forsyth, 206. The number of the jury (twelve) is responsible for some unfounded theories of the origin of the system. This use of twelve is not confined to England, nor in England or elsewhere to judicial institutions. “Its general prevalence,” says Hallam (Middle Ages, ch. viii.), “shows that in searching for the origin of trial by jury we cannot rely for a moment upon any analogy which the mere number affords.” In a Guide to English Juries (1682), by a person of quality (attributed to Lord Somers), the following passage occurs: “In analogy of late the jury is reduced to the number of twelve, like as the prophets were twelve to foretell the truth; the apostles twelve to preach the truth; the discoverers twelve, sent into Canaan to seek and report the truth; and the stones twelve that the heavenly Hierusalem is built on.” Lord Coke indulged in similar speculations.

7 See R. v. Dean of St. Asaph (1789), 3 T.R. 418.

JUS PRIMAE NOCTIS, or Droit du Seigneur, a custom alleged to have existed in medieval Europe, giving the overlord a right to the virginity of his vassals’ daughters on their wedding night. For the existence of the custom in a legalized form there is no trustworthy evidence. That some such abuse of power may have been occasionally exercised by brutal nobles in the lawless days of the early middle ages is only too likely, but the jus, it seems, is a myth, invented no earlier than the 16th or 17th century. There appears to have been an entirely religious custom established by the council of Carthage in 398, whereby the Church required from the faithful continence on the wedding-night, and this may have been, and there is evidence that it was, known as Droit du Seigneur, or “God’s right.” Later the clerical admonition was extended to the first three days of marriage. This religious abstention, added to the undoubted fact that the feudal lord extorted fines on the marriages of his vassals and their children, doubtless gave rise to the belief that the jus was once an established custom.

The whole subject has been exhaustively treated by Louis Veuillot in Le Droit du seigneur au moyen âge (1854).

JUS RELICTAE, in Scots law, the widow’s right in the movable property of her deceased husband. The deceased must have been domiciled in Scotland, but the right accrues from movable property, wherever situated. The widow’s provision amounts to one-third where there are children surviving, and to one-half where there are no surviving children. The widow’s right vests by survivance, and is independent of the husband’s testamentary provisions; it may however be renounced by contract, or be discharged by satisfaction. It is subject to alienation of the husband’s movable estate during his lifetime or by its conversion into heritage. See also Will.

JUSSERAND, JEAN ADRIEN ANTOINE JULES (1855- ), French author and diplomatist, was born at Lyons on the 18th of February 1855. Entering the diplomatic service in 1876, he became in 1878 consul in London. After an interval spent in Tunis he returned to London in 1887 as a member of the French Embassy. In 1890 he became French minister at Copenhagen, and in 1902 was transferred to Washington. A close student of English literature, he produced some very lucid and vivacious monographs on comparatively little-known subjects: Le Théâtre en Angleterre depuis la conquête jusqu’ aux prédécesseurs immédiats de Shakespeare (1878); Le Roman au temps de Shakespeare (1887; Eng. trans. by Miss E. Lee, 1890); Les Anglais au moyen âge: la vie nomade et les routes d’Angleterre au XIVe siècle (1884; Eng. trans., English Wayfaring Life in the Middle Ages, by L. T. Smith, 1889); and L’Épopée de Langland (1893; Eng. trans., Piers Plowman, by M. C. R., 1894). His Histoire littéraire du peuple anglais, the first volume of which was published in 1895, was completed in three volumes in 1909. In English he wrote A French Ambassador at the Court of Charles II. (1892), from the unpublished papers of the count de Cominges.

JUSSIEU, DE, the name of a French family which came into prominent notice towards the close of the 16th century, and for a century and a half was distinguished for the botanists it produced. The following are its more eminent members:—

1. Antoine de Jussieu (1686-1758), born at Lyons on the 6th of July 1686, was the son of Christophe de Jussieu (or Dejussieu), an apothecary of some repute, who published a Nouveau traité de la thériaque (1708). Antoine studied at the university of Montpellier, and travelled with his brother Bernard through Spain, Portugal and southern France. He went to Paris in 1708, J. P. de Tournefort, whom he succeeded at the Jardin des Plantes, dying in that year. His own original publications are not of marked importance, but he edited an edition of Tournefort’s Institutiones rei herbariae (3 vols., 1719), and also a posthumous work of Jacques Barrelier, Plantae per Galliam, Hispaniam, et Italiam observatae, &c. (1714). He practised medicine, chiefly devoting himself to the very poor. He died at Paris on the 22nd of April 1758.

2. Bernard de Jussieu (1699-1777), a younger brother of the above, was born at Lyons on the 17th of August 1699. He took a medical degree at Montpellier and began practice in 1720, but finding the work uncongenial he gladly accepted his brother’s invitation to Paris in 1722, when he succeeded Sébastien Vaillant as sub-demonstrator of plants in the Jardin du Roi. In 1725 he brought out a new edition of Tournefort’s Histoire des plantes qui naissent aux environs de Paris, 2 vols., which was afterwards translated into English by John Martyn, the original work being incomplete. In the same year he was admitted into the académie des sciences, and communicated several papers to that body. Long before Abraham Trembley (1700-1784) published his Histoire des polypes d’eau douce, Jussieu maintained the doctrine that these organisms were animals, and not the flowers of marine plants, then the current notion; and to confirm his views he made three journeys to the coast of Normandy. Singularly modest and retiring, he published very little, but in 1759 he arranged the plants in the royal garden of the Trianon at Versailles, according to his own scheme of classification. This arrangement is printed in his nephew’s Genera, pp. lxiii.-lxx., and formed the basis of that work. He cared little for the credit of enunciating new discoveries, so long as the facts were made public. On the death of his brother Antoine, he could not be induced to succeed him in his office, but prevailed upon L. G. Lemonnier to assume the higher position. He died at Paris on the 6th of November 1777.

3. Joseph de Jussieu (1704-1779), brother of Antoine and Bernard, was born at Lyons on the 3rd of September 1704. Educated like the rest of the family for the medical profession, he accompanied C. M. de la Condamine to Peru, in the expedition for measuring an arc of meridian, and remained in South America for thirty-six years, returning to France in 1771. Amongst the seeds he sent to his brother Bernard were those of Heliotropium peruvianum, Linn., then first introduced into Europe. He died at Paris on the 11th of April 1779.

4. Antoine Laurent de Jussieu (1748-1836), nephew of the three preceding, was born at Lyons on the 12th of April 1748. Called to Paris by his uncle Bernard, and carefully trained by him for the pursuits of medicine and botany, he largely profited by the opportunities afforded him. Gifted with a tenacious memory, and the power of quickly grasping the salient points of subjects under observation, he steadily worked at the improvement of that system of plant arrangement which had been sketched out by his uncle. In 1789 was issued his Genera plantarum secundum ordines naturales disposita, juxta methodum in horto regio Parisiensi exaratam, anno MDCCLXXIV. This volume formed the basis of modern classification; more than this, it is certain that Cuvier derived much help in his zoological classification from its perusal. Hardly had the last sheet passed through the press, when the French Revolution broke out, and the author was installed in charge of the hospitals of Paris. The muséum d’histoire naturelle was organized on its present footing mainly by him in 1793, and he selected for its library everything relating to natural history from the vast materials obtained from the convents then broken up. He continued as professor of botany there from 1770 to 1826, when his son Adrien succeeded him. Besides the Genera, he produced nearly sixty memoirs on botanical topics. He died at Paris on the 17th of September 1836.

5. Adrien Laurent Henri de Jussieu (1797-1853), son of Antoine Laurent, was born at Paris on the 23rd of December 1797. He displayed the qualities of his family in his thesis for the degree of M.D., De Euphorbiacearum generibus medicisque earundem viribus tentamen, Paris, 1824. He was also the author of valuable contributions to botanical literature on the Rutaceae, Meliaceae and Malpighiaceae respectively, of “Taxonomie” in the Dictionnaire universelle d’histoire naturelle, and of an introductory work styled simply Botanique, which reached nine editions, and was translated into the principal languages of Europe. He also edited his father’s Introductio in historiam plantarum, issued at Paris, without imprint or date, it being a fragment of the intended second edition of the Genera, which Antoine Laurent did not live to complete. He died at Paris on the 29th of June 1853, leaving two daughters, but no son, so that with him closed the brilliant botanical dynasty.

6. Laurent Pierre de Jussieu (1792-1866), miscellaneous writer, nephew of Antoine Laurent, was born at Villeurbanne on the 7th of February 1792. His Simon de Nantua, ou le marchand forain (1818), reached fifteen editions, and was translated into seven languages. He also wrote Simples notions de physique et d’histoire naturelle (1857), and a few geological papers. He died at Passy on the 23rd of February 1866.

JUSTICE (Lat. justitia), a term used both in the abstract, for the quality of being or doing what is just, i.e. right in law and equity, and in the concrete for an officer deputed by the sovereign to administer justice, and do right by way of judgment. It has long been the official title of the judges of two of the English superior courts of common law, and it is now extended to all the judges in the supreme court of judicature—a judge in the High Court of Justice being styled Mr Justice, and in the court of appeal Lord Justice. The president of the king’s bench division of the High Court is styled Lord Chief Justice (q.v.). The word is also applied, and perhaps more usually, to certain subordinate magistrates who administer justice in minor matters, and who are usually called justices of the peace (q.v.).

JUSTICE OF THE PEACE, an inferior magistrate appointed in England by special commission under the great seal to keep the peace within the jurisdiction for which he is appointed. The title is commonly abbreviated to J.P. and is used after the name. “The whole Christian world,” said Coke, “hath not the like office as justice of the peace if duly executed.” Lord Cowper, on the other hand, described them as “men sometimes illiterate and frequently bigoted and prejudiced.” The truth is that the justices of the peace perform without any other reward than the consequence they acquire from their office a large amount of work indispensable to the administration of the law, and (though usually not professional lawyers, and therefore apt to be ill-informed in some of their decisions) for the most part they discharge their duties with becoming good sense and impartiality. For centuries they have necessarily been chosen mainly from the landed class of country gentlemen, usually Conservative in politics; and in recent years the attempt has been made by the Liberal party to reduce the balance by appointing others than those belonging to the landed gentry, such as tradesmen, Nonconformist ministers, and working-men. But it has been recognized that the appointment of justices according to their political views is undesirable, and in 1909 a royal commission was appointed to consider and report whether any and what steps should be taken to facilitate the selection of the most suitable persons to be justices of the peace irrespective of creed and political opinion. In great centres of population, when the judicial business of justices is heavy, it has been found necessary to appoint paid justices or stipendiary magistrates1 to do the work, and an extension of the system to the country districts has been often advocated.

The commission of the peace assigns to justices the duty of keeping and causing to be kept all ordinances and statutes for the good of the peace and for preservation of the same, and for the quiet rule and government of the people, and further assigns “to you and every two or more of you (of whom any one of the aforesaid A, B, C, D, &c., we will, shall be one) to inquire the truth more fully by the oath of good and lawful men of the county of all and all manner of felonies, poisonings, enchantments, sorceries, arts, magic, trespasses, forestallings, regratings, engrossings, and extortions whatever.” This part of the commission is the authority for the jurisdiction of the justices in sessions. Justices named specially in the parenthetical clause are said to be on the quorum. Justices for counties are appointed by the Crown on the advice of the lord chancellor, and usually with the recommendation of the lord lieutenant of the county. Justices for boroughs having municipal corporations and separate commissions of the peace are appointed by the crown, the lord chancellor either adopting the recommendation of the town council or acting independently. Justices cannot act as such until they have taken the oath of allegiance and the judicial oath. A justice for a borough while acting as such must reside in or within seven miles of the borough or occupy a house, warehouse or other property in the borough, but he need not be a burgess. The mayor of a borough is ex officio a justice during his year of office and the succeeding year. He takes precedence over all borough justices, but not over justices acting in and for the county in which the borough or any part thereof is situated, unless when acting in relation to the business of the borough. The chairman of a county council is ex officio a justice of the peace for the county, and the chairman of an urban or rural district council for the county in which the district is situated. Justices cannot act beyond the limits of the jurisdiction for which they are appointed, and the warrant of a justice cannot be executed out of his jurisdiction unless it be backed, that is, endorsed by a justice of the jurisdiction in which it is to be carried into execution. A justice improperly refusing to act on his office, or acting partially and corruptly, may be proceeded against by a criminal information, and a justice refusing to act may be compelled to do so by the High Court of Justice. An action will lie against a justice for any act done by him in excess of his jurisdiction, and for any act within his jurisdiction which has been done wrongfully and with malice, and without reasonable or probable cause. But no action can be brought against a justice for a wrongful conviction until it has been quashed. By the Justices’ Qualification Act 1744, every justice for a county was required to have an estate of freehold, copyhold, or customary tenure in fee, for life or a given term, of the yearly value of £100. By an act of 1875 the occupation of a house rated at £100 was made a qualification. No such qualifications were ever required for a borough justice, and it was not until 1906 that county justices were put on the same footing in this respect. The Justices of the Peace Act 1906 did away with all qualification by estate. It also removed the necessity for residence within the county, permitting the same residential qualification as for borough justices, “within seven miles thereof.” The same act removed the disqualification of solicitors to be county justices and assimilated to the existing power to remove other justices from the commission of the peace the power to exclude ex officio justices.

The justices for every petty sessional division of a county or for a borough having a separate commission of the peace must appoint a fit person to be their salaried clerk. He must be either a barrister of not less than fourteen years’ standing, or a solicitor of the supreme court, or have served for not less than seven years as a clerk to a police or stipendiary magistrate or to a metropolitan police court. An alderman or councillor of a borough must not be appointed as clerk, nor can a clerk of the peace for the borough or for the county in which the borough is situated be appointed. A borough clerk is not allowed to prosecute. The salary of a justice’s clerk comes, in London, out of the police fund; in counties out of the county fund; in county boroughs out of the borough fund, and in other boroughs out of the county fund.

The vast and multifarious duties of the justices cover some portion of every important head of the criminal law, and extend to a considerable number of matters relating to the civil law.

In the United States these officers are sometimes appointed by the executive, sometimes elected. In some states, justices of the peace have jurisdiction in civil cases given to them by local regulations.

1 Where a borough council desire the appointment of a stipendiary magistrate they may present a petition for the same to the secretary of state and it is thereupon lawful for the king to appoint to that office a barrister of seven years’ standing. He is by virtue of his office a justice for the borough, and receives a yearly salary, payable in four equal quarterly instalments. On a vacancy, application must again be made as for a first appointment. There may be more than one stipendiary magistrate for a borough.

JUSTICIAR (med. Lat. justiciarius or justitiarius, a judge), in English history, the title of the chief minister of the Norman and earlier Angevin kings. The history of the title in this connotation is somewhat obscure. Justiciarius meant simply “judge,” and was originally applied, as Stubbs points out (Const. Hist. i. 389, note), to any officer of the king’s court, to the chief justice, or in a very general way to all and sundry who possessed courts of their own or were qualified to act as judices in the shire-courts, even the style capitalis justiciarius being used of judges of the royal court other than the chief. It was not till the reign of Henry II. that the title summus or capitalis justiciarius, or justiciarius totius Angliae was exclusively applied to the king’s chief minister. The office, however, existed before the style of its holder was fixed; and, whatever their contemporary title (e.g. Custos Angliae), later writers refer to them as justiciarii, with or without the prefix summus or capitalis (ibid. p. 346). Thus Ranulf Flambard, the minister of William II., who was probably the first to exercise the powers of a justiciar, is called justiciarius by Ordericus Vitalis.

The origin of the justiciarship is thus given by Stubbs (ibid. p. 276). The sheriff “was the king’s representative in all matters judicial, military and financial in the shire. From him, or from the courts of which he was the presiding officer, appeal lay to the king alone; but the king was often absent from England and did not understand the language of his subjects. In his absence the administration was entrusted to a justiciar, a regent or lieutenant of the kingdom; and the convenience being once ascertained of having a minister who could in the whole kingdom represent the king, as the sheriff did in the shire, the justiciar became a permanent functionary.”

The fact that the kings were often absent from England, and that the justiciarship was held by great nobles or churchmen, made this office of an importance which at times threatened to overshadow that of the Crown. It was this latter circumstance which ultimately led to its abolition. Hubert de Burgh (q.v.) was the last of the great justiciars; after his fall (1231) the justiciarship was not again committed to a great baron, and the chancellor soon took the position formerly occupied by the justiciar as second to the king in dignity, as well as in power and influence. Finally, under Edward I. and his successor, in place of the justiciar—who had presided over all causes vice regis—separate heads were established in the three branches into which the curia regis as a judicial body had been divided: justices of common pleas, justices of the king’s bench and barons of the exchequer.

Outside England the title justiciar was given under Henry II. to the seneschal of Normandy. In Scotland the title of justiciar was borne, under the earlier kings, by two high officials, one having his jurisdiction to the north, the other to the south of the Forth. They were the king’s lieutenants for judicial and administrative purposes and were established in the 12th century, either by Alexander I. or by his successor David I. In the 12th century a magister justitiarius also appears in the Norman kingdom of Sicily, title and office being probably borrowed from England; he presided over the royal court (Magna curia) and was, with his assistants, empowered to decide, inter alia, all cases reserved to the Crown (see Du Cange, s.v. Magister Justitiarius).

See W. Stubbs, Const. Hist. of England; Du Cange, Glossarium (Niort, 1885) s.v. “Justitiarius.”

JUSTICIARY, HIGH COURT OF, in Scotland, the supreme criminal court, consisting of five of the lords of session together with the lord justice-general and the lord justice-clerk as president and vice-president respectively. The constitution of the court is settled by the Act 1672 c. 16. The lords of justiciary hold circuits regularly twice a year according to the ancient practice, which, however, had been allowed to fall into disuse until revived in 1748. For circuit purposes Scotland is divided into northern, southern and western districts (see Circuit). Two judges generally go on a circuit, and in Glasgow they are by special statute authorized to sit in separate courts. By the Criminal Procedure (Scotland) Act 1887 all the senators of the college of justice are lords commissioners of justiciary. The high court, sitting in Edinburgh, has, in addition to its general jurisdiction, an exclusive jurisdiction for districts not within the jurisdiction of the circuits—the three Lothians, and Orkney and Shetland. The high court also takes up points of difficulty arising before the special courts, like the court for crown cases reserved in England. The court of justiciary has authority to try all crimes, unless when its jurisdiction has been excluded by special enactment of the legislature. It is also stated to have an inherent jurisdiction to punish all criminal acts, even if they have never before been treated as crimes. Its judgments are believed to be not subject to any appeal or review, but it may be doubted whether an appeal on a point of law would not lie to the house of lords. The following crimes must be prosecuted in the court of justiciary: treason, murder, robbery, rape, fire-raising, deforcement of messengers, breach of duty by magistrates, and all offences for which a statutory punishment higher than imprisonment is imposed.

JUSTIFICATION, in law, the showing by a defendant in a suit of sufficient reason why he did what he was called upon to answer, For example, in an action for assault and battery, the defendant may prove in justification that the prosecutor assaulted or beat him first, and that he acted merely in self-defence. The word is employed particularly in actions for defamation, and has in this connexion a somewhat special meaning. When a libel consists of a specific charge a plea of justification is a plea that the words are true in substance and in fact (see Libel and Slander).

JUSTIN I. (450-527), East Roman emperor (518-527), was born in 450 as a peasant in Asia, but enlisting under Leo I. he rose to be commander of the imperial guards of Anastasius. On the latter’s death in 518 Justin used for his own election to the throne money that he had received for the support of another candidate. Being ignorant even of the rudiments of letters, Justin entrusted the administration of state to his wise and faithful quaestor Proclus and to his nephew Justinian, though his own experience dictated several improvements in military affairs. An orthodox churchman himself, he effected in 519 a reconciliation of the Eastern and Western Churches, after a schism of thirty-five years (see Hormisdas). In 522 he entered upon a desultory war with Persia, in which he co-operated with the Arabs. In 522 also Justin ceded to Theodoric, the Gothic king of Italy, the right of naming the consuls. On the 1st of April 527 Justin, enfeebled by an incurable wound, yielded to the request of the senate and assumed Justinian at his colleague; on the 1st of August he died. Justin bestowed much care on the repairing of public buildings throughout his empire, and contributed large sums to repair the damage caused by a destructive earthquake at Antioch.

See E. Gibbon, Decline and Fall of the Roman Empire (ed. Bury, 1896), iv. 206-209.

JUSTIN II. (d. 578), East Roman emperor (565-578), was the nephew and successor of Justinian I. He availed himself of his influence as master of the palace, and as husband of Sophia, the niece of the late empress Theodora, to secure a peaceful election. The first few days of his reign—when he paid his uncle’s debts, administered justice in person, and proclaimed universal religious toleration—gave bright promise, but in the face of the lawless aristocracy and defiant governors of provinces he effected few subsequent reforms. The most important event of his reign was the invasion of Italy by the Lombards (q.v.), who, entering in 568, under Alboin, in a few years made themselves masters of nearly the entire country. Justin’s attention was distracted from Italy towards the N. and E. frontiers. After refusing to pay the Avars tribute, he fought several unsuccessful campaigns against them. In 572 his overtures to the Turks led to a war with Persia. After two disastrous campaigns, in which his enemies overran Syria, Justin bought a precarious peace by payment of a yearly tribute. The temporary fits of insanity into which he fell warned him to name a colleague. Passing over his own relatives, he raised, on the advice of Sophia, the general Tiberius (q.v.) to be Caesar in December 574 and withdrew for his remaining years into retirement.

See E. Gibbon, Decline and Fall of the Roman Empire (ed. Bury, 1896), v. 2-17; G. Finlay, History of Greece (ed. 1877), i. 291-297; J. Bury, The Later Roman Empire (1889), ii. 67-79.

(M. O. B. C.)

JUSTIN (Junianus Justinus), Roman historian, probably lived during the age of the Antonines. Of his personal history nothing is known. He is the author of Historiarum Philippicarum libri XLIV., a work described by himself in his preface as a collection of the most important and interesting passages from the voluminous Historiae philippicae et totius mundi origines et terrae situs, written in the time of Augustus by Pompeius Trogus (q.v.). The work of Trogus is lost; but the prologi or arguments of the text are preserved by Pliny and other writers. Although the main theme of Trogus was the rise and history of the Macedonian monarchy, Justin yet permitted himself considerable freedom of digression, and thus produced a capricious anthology instead of a regular epitome of the work. As it stands, however, the history contains much valuable information. The style, though far from perfect, is clear and occasionally elegant. The book was much used in the middle ages, when the author was sometimes confounded with Justin Martyr.

Ed. princeps (1470); J. G. Graevius (1668); J. F. Gronovius (1719); C. H. Frotscher (1827-1830); J. Jeep (1859); F. Rühl (1886, with prologues); see also J. F. Fischer, De elocutione Justini (1868); F. Rühl, Die Verbreitung des J. im Mittelalter (1871); O. Eichert, Wörterbuch zu J. (1881); Köhler and Rühl in Neue Jahrbücher für Philologie, xci., ci., cxxxiii. There are translations in the chief European languages; in English by A. Goldyng (1564); R. Codrington (1682); Brown-Dykes (1712); G. Turnbull (1746); J. Clarke (1790); J. S. Watson (1853).

JUSTINIAN I. (483-565). Flavius Anicius Justinianus, surnamed the Great, the most famous of all the emperors of the Eastern Roman Empire, was by birth a barbarian, native of a place called Tauresium in the district of Dardania, a region of Illyricum,1 and was born, most probably, on the 11th of May 483. His family has been variously conjectured, on the strength of the proper names which its members are stated to have borne, to have been Teutonic or Slavonic. The latter seems the more probable view. His own name was originally Uprauda.2 Justinianus was a Roman name which he took from his uncle Justin I., who adopted him, and to whom his advancement in life was due. Of his early life we know nothing except that he went to Constantinople while still a young man, and received there an excellent education. Doubtless he knew Latin before Greek; it is alleged that he always spoke Greek with a barbarian accent. When Justin ascended the throne in 518, Justinian became at once a person of the first consequence, guiding, especially in church matters, the policy of his aged, childless and ignorant uncle, receiving high rank and office at his hands, and soon coming to be regarded as his destined successor. On Justin’s death in 527, having been a few months earlier associated with him as co-emperor, Justinian succeeded without opposition to the throne. About 523 he had married the famous Theodora (q.v.), who, as empress regnant, was closely associated in all his actions till her death in 547.

Justinian’s reign was filled with great events, both at home and abroad, both in peace and in war. They may be classed under four heads: (1) his legal reforms; (2) his administration of the empire; (3) his ecclesiastical policy; and (4) his wars and foreign policy generally.

1. It is as a legislator and codifier of the law that Justinian’s name is most familiar to the modern world; and it is therefore this department of his action that requires to be most fully dealt with here. He found the law of the Roman empire in a state of great confusion. It consisted of two masses, which were usually distinguished as old law (jus vetus) and new law (jus novum). The first of these comprised: (i.) all such of the statutes (leges) passed under the republic and early empire as had not become obsolete; (ii.) the decrees of the senate (senatus consulta) passed at the end of the republic and during the first two centuries of the empire; (iii.) the writings of the jurists of the later republic and of the empire, and more particularly of those jurists to whom the right of declaring the law with authority (jus respondendi) had been committed by the emperors. As these jurists had in their commentaries upon the leges, senatus consulta and edicts of the magistrates practically incorporated all that was of importance in those documents, the books of the jurists may substantially be taken as including (i.) and (ii.). These writings were of course very numerous, and formed a vast mass of literature. Many of them had become exceedingly scarce—many had been altogether lost. Some were of doubtful authenticity. They were so costly that no person of moderate means could hope to possess any large number; even the public libraries had nothing approaching to a complete collection. Moreover, as they proceeded from a large number of independent authors, who wrote expressing their own opinions, they contained many discrepancies and contradictions, the dicta of one writer being controverted by another, while yet both writers might enjoy the same formal authority. A remedy had been attempted to be applied to this evil by a law of the emperors Theodosius II. and Valentinian III., which gave special weight to the writings of five eminent jurists (Papinian, Paulus, Ulpian, Modestinus, Gaius); but it was very far from removing it. As regards the jus vetus, therefore, the judges and practitioners of Justinian’s time had two terrible difficulties to contend with—first, the bulk of the law, which made it impossible for any one to be sure that he possessed anything like the whole of the authorities bearing on the point in question, so that he was always liable to find his opponent quoting against him some authority for which he could not be prepared; and, secondly, the uncertainty of the law, there being a great many important points on which differing opinions of equal legal validity might be cited, so that the practising counsel could not advise, nor the judge decide, with any confidence that he was right, or that a superior court would uphold his view.

The new law (jus novum), which consisted of the ordinances of the emperors promulgated during the middle and later empires (edicta, rescripta, mandata, decreta, usually called by the general name of constitutiones), was in a condition not much better. These ordinances or constitutions were extremely numerous. No complete collection of them existed, for although two collections (Codex gregorianus and Codex hermogenianus) had been made by two jurists in the 4th century, and a large supplementary collection published by the emperor Theodosius II. in 438 (Codex theodosianus), these collections did not include all the constitutions; there were others which it was necessary to obtain separately, but many whereof it must have been impossible for a private person to procure. In this branch too of the law there existed some, though a less formidable, uncertainty; for there were constitutions which practically, if not formally, repealed or superseded others without expressly mentioning them, so that a man who relied on one constitution might find that it had been varied or abrogated by another he had never heard of or on whose sense he had not put such a construction. It was therefore clearly necessary with regard to both the older and the newer law to take some steps to collect into one or more bodies or masses so much of the law as was to be regarded as binding, reducing it within a reasonable compass, and purging away the contradictions or inconsistencies which it contained. The evil had been long felt, and reforms apparently often proposed, but nothing (except by the compilation of the Codex theodosianus) had been done till Justinian’s time. Immediately after his accession, in 528, he appointed a commission to deal with the imperial constitutions (jus novum), this being the easier part of the problem. The commissioners, ten in number, were directed to go through all the constitutions of which copies existed, to select such as were of practical value, to cut these down by retrenching all unnecessary matter, and gather them, arranged in order of date, into one volume, getting rid of any contradictions by omitting one or other of the conflicting passages.3 These statute law commissioners, as one may call them, set to work forthwith, and completed their task in fourteen months, distributing the constitutions which they placed in the new collection into ten books, in general conformity with the order of the Perpetual Edict as settled by Salvius Julianus and enacted by Hadrian. By this means the bulk of the statute law was immensely reduced, its obscurities and internal discrepancies in great measure removed, its provisions adapted, by the abrogation of what was obsolete, to the circumstances of Justinian’s own time. This Codex constitutionum was formally promulgated and enacted as one great consolidating statute in 529, all imperial ordinances not included in it being repealed at one stroke.

The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the older law contained in the treatises of the jurists. Before entering on this, however, he wisely took the preliminary step of settling the more important of the legal questions as to which the older jurists had been divided in opinion, and which had therefore remained sources of difficulty, a difficulty aggravated by the general decline, during the last two centuries, of the level of forensic and judicial learning. This was accomplished by a series of constitutions known as the “Fifty Decisions” (Quinquaginta decisiones), along with which there were published other ordinances amending the law in a variety of points, in which old and now inconvenient rules had been suffered to subsist. Then in December 530 a new commission was appointed, consisting of sixteen eminent lawyers, of whom the president, the famous Tribonian (who had already served on the previous commission), was an exalted official (quaestor), four were professors of law, and the remaining eleven practising advocates. The instructions given to them by the emperor were as follows:—they were to procure and peruse all the writings of all the authorized jurists (those who had enjoyed the jus respondendi); were to extract from these writings whatever was of most permanent and substantial value, with power to change the expressions of the author wherever conciseness or clearness would be thereby promoted, or wherever such a change was needed in order to adapt his language to the condition of the law as it stood in Justinian’s time; were to avoid repetitions and contradictions by giving only one statement of the law upon each point; were to insert nothing at variance with any provision contained in the Codex constitutionum; and were to distribute the results of their labours into fifty books, subdividing each book into titles, and following generally the order of the Perpetual Edict.4

These directions were carried out with a speed which is surprising when we remember not only that the work was interrupted by the terrible insurrection which broke out in Constantinople in January 532, and which led to the temporary retirement from office of Tribonian, but also that the mass of literature which had to be read through consisted of no less than two thousand treatises, comprising three millions of sentences. The commissioners, who had for greater despatch divided themselves into several committees, presented their selection of extracts to the emperor in 533, and he published it as an imperial statute on December 16th of that year, with two prefatory constitutions (those known as Omnem reipublicae and Dedit nobis). It is the Latin volume which we now call the Digest (Digesta) or Pandects (Πάνδεκται) and which is by far the most precious monument of the legal genius of the Romans, and indeed, whether one regards the intrinsic merits of its substance or the prodigious influence it has exerted and still exerts, the most remarkable law-book that the world has seen. The extracts comprised in it are 9123 in number, taken from thirty-nine authors, and are of greatly varying length, mostly only a few lines long. About one-third (in quantity) come from Ulpian, a very copious writer; Paulus stands next. To each extract there is prefixed the name of the author, and of the treatise whence it is taken.5 The worst thing about the Digest is its highly unscientific arrangement. The order of the Perpetual Edict, which appears to have been taken as a sort of model for the general scheme of books and titles, was doubtless convenient to the Roman lawyers from their familiarity with it, but was in itself rather accidental and historical than logical. The disposition of the extracts inside each title was still less rational; it has been shown by a modern jurist to have been the result of the way in which the committees of the commissioners worked through the books they had to peruse.6 In enacting the Digest as a law book, Justinian repealed all the other law contained in the treatises of the jurists (that jus vetus which has been already mentioned), and directed that those treatises should never be cited in future even by way of illustration; and he of course at the same time abrogated all the older statutes, from the Twelve Tables downwards, which had formed a part of the jus vetus. This was a necessary incident of his scheme of reform. But he went too far, and indeed attempted what was impossible, when he forbade all commentaries upon the Digest. He was obliged to allow a Greek translation to be made of it, but directed this translation to be exactly literal.

These two great enterprises had substantially despatched Justinian’s work; however, he, or rather Tribonian, who seems to have acted both as his adviser and as his chief executive officer in all legal affairs, conceived that a third book was needed, viz. an elementary manual for beginners which should present an outline of the law in a clear and simple form. The little work of Gaius, most of which we now possess under the title of Commentarii institutionum, had served this purpose for nearly four centuries; but much of it had, owing to changes in the law, become inapplicable, so that a new manual seemed to be required. Justinian accordingly directed Tribonian, with two coadjutors, Theophilus, professor of law in the university of Constantinople, and Dorotheus, professor in the great law school at Beyrout, to prepare an elementary textbook on the lines of Gaius. This they did while the Digest was in progress, and produced the useful little treatise which has ever since been the book with which students commonly begin their studies of Roman law, the Institutes of Justinian. It was published as a statute with full legal validity shortly before the Digest. Such merits as it possesses—simplicity of arrangement, clearness and conciseness of expression—belong less to Tribonian than to Gaius, who was closely followed wherever the alterations in the law had not made him obsolete. However, the spirit of that great legal classic seems to have in a measure dwelt with and inspired the inferior men who were recasting his work; the Institutes is better both in Latinity and in substance than we should have expected from the condition of Latin letters at that epoch, better than the other laws which emanate from Justinian.

In the four years and a half which elapsed between the publication of the Codex and that of the Digest, many important changes had been made in the law, notably by the publication of the “Fifty Decisions,” which settled many questions that had exercised the legal mind and given occasion to intricate statutory provisions. It was therefore natural that the idea should present itself of revising the Codex, so as to introduce these changes into it, for by so doing, not only would it be simplified, but the one volume would again be made to contain the whole statute law, whereas now it was necessary to read along with it the ordinances issued since its publication. Accordingly another commission was appointed, consisting of Tribonian with four other coadjutors, full power being given them not only to incorporate the new constitutions with the Codex and make in it the requisite changes, but also to revise the Codex generally, cutting down or filling in wherever they thought it necessary to do so. This work was completed in a few months; and in November 534 the revised Codex (Codex repetitae praelectionis) was promulgated with the force of law, prefaced by a constitution (Cordi nobis) which sets forth its history, and declares it to be alone authoritative, the former Codex being abrogated. It is this revised Codex which has come down to the modern world, all copies of the earlier edition having disappeared.

The constitutions contained in it number 4652, the earliest dating from Hadrian, the latest being of course Justinian’s own. A few thus belong to the period to which the greater part of the Digest belongs, i.e. the so-called classical period of Roman law down to the time of Alexander Severus (244); but the great majority are later, and belong to one or other of the four great eras of imperial legislation, the eras of Diocletian, of Constantine, of Theodosius II., and of Justinian himself. Although this Codex is said to have the same general order as that of the Digest, viz. the order of the Perpetual Edict, there are considerable differences of arrangement between the two. It is divided into twelve books. Its contents, although of course of the utmost practical importance to the lawyers of that time, and of much value still, historical as well as legal, are far less interesting and scientifically admirable than the extracts preserved in the Digest. The difference is even greater than that between the English reports of cases decided since the days of Lord Holt and the English acts of parliament for the same two centuries.

The emperor’s scheme was now complete. All the Roman law had been gathered into two volumes of not excessive size, and a satisfactory manual for beginners added. But Justinian and Tribonian had grown so fond of legislating that they found it hard to leave off. Moreover, the very simplifications that had been so far effected brought into view with more clearness such anomalies or pieces of injustice as still continued to deform the law. Thus no sooner had the work been rounded off than fresh excrescences began to be created by the publication of new laws. Between 534 and 565 Justinian issued a great number of ordinances, dealing with all sorts of subjects and seriously altering the law on many points—the majority appearing before the death of Tribonian, which happened in 545. These ordinances are called, by way of distinction, new constitutions, Novellae constitutiones post codicem (νεαραὶ διατάξεις), Novels. Although the emperor had stated in publishing the Codex that all further statutes (if any) would be officially collected, this promise does not seem to have been redeemed. The three collections of the Novels which we possess are apparently private collections, nor do we even know how many such constitutions were promulgated. One of the three contains 168 (together with 13 Edicts), but some of these are by the emperors Justin II. and Tiberius II. Another, the so-called Epitome of Julian, contains 125 Novels in Latin; and the third, the Liber authenticarum or vulgata versio, has 134, also in Latin. This last was the collection first known and chiefly used in the West during the middle ages; and of its 134 only 97 have been written on by the glossatores or medieval commentators; these therefore alone have been received as binding in those countries which recognize and obey the Roman law,—according to the maxim Quicquid non agnoscit glossa, nec agnoscit curia. And, whereas Justinian’s constitutions contained in the Codex were all issued in Latin, the rest of the book being in that tongue, these Novels were nearly all published in Greek, Latin translations being of course made for the use of the western provinces. They are very bulky, and with the exception of a few, particularly the 116th and 118th, which introduce the most sweeping and laudable reforms into the law of intestate succession, are much more interesting, as supplying materials for the history of the time, social, economical and ecclesiastical, than in respect of any purely legal merits. They may be found printed in any edition of the Corpus juris civilis.

This Corpus juris, which bears and immortalizes Justinian’s name, consists of the four books described above: (1) The authorized collection of imperial ordinances (Codex constitutionum); (2) the authorized collection of extracts from the great jurists (Digesta or Pandectae); (3) the elementary handbook (Institutiones); (4) the unauthorized collection of constitutions subsequent to the Codex (Novellae).

From what has been already stated, the reader will perceive that Justinian did not, according to a strict use of terms, codify the Roman law. By a codification we understand the reduction of the whole pre-existing body of law to a new form, the re-stating it in a series of propositions, scientifically ordered, which may or may not contain some new substance, but are at any rate new in form. If he had, so to speak, thrown into one furnace all the law contained in the treatises of the jurists and in the imperial ordinances, fused them down, the gold of the one and the silver of the other, and run them out into new moulds, this would have been codification. What he did do was something quite different. It was not codification but consolidation, not remoulding but abridging. He made extracts from the existing law, preserving the old words, and merely cutting out repetitions, removing contradictions, retrenching superfluities, so as immensely to reduce the bulk of the whole. And he made not one set of such extracts but two, one for the jurist law, the other for the statute law. He gave to posterity not one code but two digests or collections of extracts, which are new only to this extent that they are arranged in a new order, having been previously altogether unconnected with one another, and that here and there their words have been modified in order to bring one extract into harmony with some other. Except for this, the matter is old in expression as well as in substance.

Thus regarded, even without remarking that the Novels, never having been officially collected, much less incorporated with the Codex, mar the symmetry of the structure, Justinian’s work may appear to entitle him and Tribonian to much less credit than they have usually received for it. But let it be observed, first, that to reduce the huge and confused mass of pre-existing law into the compass of these two collections was an immense practical benefit to the empire; secondly, that, whereas the work which he undertook was accomplished in seven years, the infinitely more difficult task of codification might probably have been left unfinished at Tribonian’s death, or even at Justinian’s own, and been abandoned by his successor; thirdly, that in the extracts preserved in the Digest we have the opinions of the greatest legal luminaries given in their own admirably lucid, philosophical and concise language, while in the extracts of which the Codex is composed we find valuable historical evidence bearing on the administration and social condition of the later Pagan and earlier Christian empire; fourthly, that Justinian’s age, that is to say, the intellect of the men whose services he commanded, was quite unequal to so vast an undertaking as the fusing upon scientific principles into one new organic whole of the entire law of the empire. With sufficient time and labour the work might no doubt have been done; but what we possess of Justinian’s own legislation, and still more what we know of the general condition of literary and legal capacity in his time, makes it certain that it would not have been well done, and that the result would have been not more valuable to the Romans of that age, and much less valuable to the modern world, than are the results, preserved in the Digest and the Codex, of what he and Tribonian actually did.

To the merits of the work as actually performed some reference has already been made. The chief defect of the Digest is in point of scientific arrangement, a matter about which the Roman lawyers, perhaps one may say the ancients generally, cared very little. There are some repetitions and some inconsistencies, but not more than may fairly be allowed for in a compilation of such magnitude executed so rapidly. Tribonian has been blamed for the insertions the compilers made in the sentences of the old jurists (the so-called Emblemata Triboniani); but it was a part of Justinian’s plan that such insertions should be made, so as to adapt those sentences to the law as settled in the emperor’s time. On Justinian’s own laws, contained in the Codex and in his Novels, a somewhat less favourable judgment must be pronounced. They, and especially the latter, are diffuse and often lax in expression, needlessly prolix, and pompously rhetorical. The policy of many, particularly of those which deal with ecclesiastical matters, may also be condemned; yet some gratitude is due to the legislator who put the law of intestate succession on that plain and rational footing whereon it has ever since continued to stand. It is somewhat remarkable that, although Justinian is so much more familiar to us by his legislation than by anything else, this sphere of his imperial labour is hardly referred to by any of the contemporary historians, and then only with censure. Procopius complains that he and Tribonian were always repealing old laws and enacting new ones, and accuses them of venal motives for doing so.

The Corpus Juris of Justinian continued to be, with naturally a few additions in the ordinances of succeeding emperors, the chief law-book of the Roman world till the time of the Macedonian dynasty when, towards the end of the 9th century, a new system was prepared and issued by those sovereigns, which we know as the Basilica. It is of course written in Greek, and consists of parts of the substance of the Codex and the Digest, thrown together and often altered in expression, together with some matter from the Novels and imperial ordinances posterior to Justinian. In the western provinces, which had been wholly severed from the empire before the publication of the Basilica, the law as settled by Justinian held its ground; but copies of the Corpus Juris were extremely rare, nor did the study of it revive until the end of the 11th century.

The best edition of the Digest is that of Mommsen (Berlin 1868-1870), and of the Codex that of Krüger (Berlin 1875-1877).

2. In his financial administration of the empire, Justinian is represented to us as being at once rapacious and extravagant. His unwearied activity and inordinate vanity led him to undertake a great many costly public works, many of them, such as the erection of palaces and churches, unremunerative. The money needed for these, for his wars, and for buying off the barbarians who threatened the frontiers, had to be obtained by increasing the burdens of the people. They suffered, not only from the regular taxes, which were seldom remitted even after bad seasons, but also from monopolies; and Procopius goes so far as to allege that the emperor made a practice of further recruiting his treasury by confiscating on slight or fictitious pretexts the property of persons who had displeased Theodora or himself. Fiscal severities were no doubt one cause of the insurrections which now and then broke out, and in the gravest of which, (532) thirty thousand persons are said to have perished in the capital. It is not always easy to discover, putting together the trustworthy evidence of Justinian’s own laws and the angry complaints of Procopius, what was the nature and justification of the changes made in the civil administration. But the general conclusion seems to be that these changes were always in the direction of further centralization, increasing the power of the chief ministers and their offices, bringing all more directly under the control of the Crown, and in some cases limiting the powers and appropriating the funds of local municipalities. Financial necessities compelled retrenchment, so that a certain number of offices were suppressed altogether, much to the disgust of the office-holding class, which was numerous and wealthy, and had almost come to look on the civil service as its hereditary possession. The most remarkable instance of this policy was the discontinuance of the consulship. This great office had remained a dignity centuries after it had ceased to be a power; but it was a very costly dignity, the holder being expected to spend large sums in public displays. As these sums were provided by the state, Justinian saved something considerable by stopping the payment. He named no consul after Basilius, who was the name-giving consul of 541.

In a bureaucratic despotism the greatest merit of a sovereign is to choose capable and honest ministers. Justinian’s selections were usually capable, but not so often honest; probably it was hard to find thoroughly upright officials; possibly they would not have been most serviceable in carrying out the imperial will, and especially in replenishing the imperial treasury. Even the great Tribonian labours under the reproach of corruption, while the fact that Justinian maintained John of Cappadocia in power long after his greed, his unscrupulousness, and the excesses of his private life had excited the anger of the whole empire, reflects little credit on his own principles of government and sense of duty to his subjects. The department of administration in which he seems to have felt most personal interest was that of public works. He spent immense sums on buildings of all sorts, on quays and harbours, on fortifications, repairing the walls of cities and erecting castles in Thrace to check the inroads of the barbarians, on aqueducts, on monasteries, above all, upon churches. Of these works only two remain perfect, St Sophia in Constantinople, now a mosque, and one of the architectural wonders of the world, and the church of SS Sergius and Bacchus, now commonly called Little St Sophia, which stands about half a mile from the great church, and is in its way a very delicate and beautiful piece of work. The church of S. Vitale at Ravenna, though built in Justinian’s reign, and containing mosaic pictures of him and Theodora, does not appear to have owed anything to his mind or purse.