other, this was final in the cause. But then it was necessary
that all should agree: for it does not appear that our ancestors, in
those days, conceived how any assembly could be supposed to give an
assent to a point concerning which several who composed that assembly
thought differently. They had no idea that a body composed of several
could act by the opinion of a small majority. But experience having
shown that this method of trial was tumultuary and uncertain, they
corrected it by the idea of compurgation. The party concerned was no
longer put to his oath,--he simply pleaded; the compurgators swore as
before in ancient times; therefore the jury were strictly from the
neighborhood, and were supposed to have a personal knowledge of the man
and the fact. They were rather a sort of evidence than judges: and from
hence is derived that singularity in our laws, that most of our
judgments are given upon verdict, and not upon evidence, contrary to the
laws of most other countries. Neither are our juries bound, except by
one particular statute, and in particular cases, to observe any positive
testimony, but are at liberty to judge upon presumptions. These are the
first rude chalkings-out of our jurisprudence. The Saxons were extremely
imperfect in their ideas of law,--the civil institutions of the Romans,
who were the legislators of mankind, having never reached them. The
order of our courts, the discipline of our jury, by which it is become
so elaborate a contrivance, and the introduction of a sort of scientific
reason in the law, have been the work of ages.

As the Saxon laws did not suffer any transaction, whether of the sale of
land or goods, to pass but in the shire and before witnesses, so all
controversies of them were concluded by what they called the _scyre
witness_.[68] This was tried by the oaths of the parties, by _viva voce_
testimony, and the producing of charters and records. Then the people,
laity and clergy, whether by plurality of votes or by what other means
is not very certain, affirmed the testimony in favor of one of the
claimants. Then the proceeding was signed, first by those who held the
court, and then by the persons who affirmed the judgment, who also swore
to it in the same manner.[69]

[Sidenote: Punishments.]

The Saxons were extremely moderate in their punishments. Murder and
treason were compounded, and a fine set for every offence. Forfeiture
for felony was incurred only by those that fled.