Trial by Ordeal.—Boys settle some matters about which they cannot agree by "tossing up a penny," or by "drawing cuts." In a game of ball they determine "first innings" by "tossing the bat." Differences in a game of marbles, they settle by guessing "odd or even," or by "trying it over to prove it." In all these modes of adjustment there is an appeal to chance. Probably behind these practices is the feeling that the boy who ought to win will somehow guess right. This appealing to chance to settle questions of fact is characteristic of society in its primitive state. Modes of establishing justice similar in principle to these boy practices prevail to this day among superstitious peoples. They have prevailed even in Europe, not only among people of low mental power, but also among the cultured Greeks. Among our own Saxon ancestors the following modes of trial are known to have been used: A person accused of crime was required to walk blindfolded and barefoot over a piece of ground on which hot ploughshares lay at unequal distances, or to plunge his arm into hot water. If in either case he escaped unhurt he was declared innocent. This was called Trial by Ordeal. The theory was that Providence would protect the innocent.

Trial by Battle.—Sometimes boys settle their disputes by fighting. This, too, was one of the modes of adjudication prevalent in early times among men. Trial by Battle was introduced into England by the Normans. "It was the last and most solemn resort to try titles to real estate." [Footnote: Dole's Talks about Law, p. 53.] The duel remained until recently, and indeed yet remains in some countries, as a reminder of that time. And disputes between countries are even now, almost without exception, settled by an appeal to arms. Perhaps the thought is that "he is thrice armed that hath his quarrel just." Sometimes when one of the boys is too small to fight for his rights, another boy will take his part and fight in his stead. Similarly, in the Trial by Battle, the parties could fight personally or by "champion." Interesting accounts of this mode of trial are given by Green and Blackstone, and in Scott's "Talisman."

Arbitration.—Two boys who have a difference may "leave it to" some other boy in whom they both have confidence. And men did and do settle disputes in a similar way. They call it settlement by Arbitration.

A boy would hardly refer a matter for decision to his little brother. Why?

Folk-Moot.—Still another common way for two boys to decide a question about which they differ is to "leave it to the boys," some of whom are knowing to the facts and others not. Each of the disputants tells his story, subject to more or less interruption, and calls upon other boys to corroborate his statements. The assembled company then decides the matter, "renders its verdict," and if necessary carries it into execution. In this procedure the boys are re-enacting the scenes of the Folk-moot or town meeting of our Saxon ancestors.

Boy-Courts.—Let us look at this boy-court again to discover its principal elements.

In the first place, we see that every boy in the crowd feels that he has a right to assist in arriving at the decision, that "the boys" collectively are to settle the matter. In other words, that the establishment of justice is a public trust. So our Saxon forefathers used to come together in the Folk-moot and as a body decide differences between man and man. The boys have no special persons to perform special duties; that is, no court officers. Neither, at first, did those old Saxons.

Secondly, in the boy-court the facts in the case are brought out by means of witnesses. So it was in the Folk-moot, and so it is in most civilized countries today. Among those old Saxons the custom grew up of allowing the facts in the case to be determined by twelve men of the neighborhood, who were most intimately acquainted with those facts. When they came over to England these Saxons brought this custom with them, and from it has been developed the Trial by Jury. The colonists of this country, most of whom came from England, brought with them this important element in the establishment of justice, and it is found today in nearly all the states.

Again, when in the boy-court the facts of the case have been established and it becomes necessary to apply the rules of the game to the particular case, the boys frequently, invariably in difficult cases, turn to some boy or boys known to be well versed in the principles of the game, and defer to his or their opinion. And, similarly, in the Folk-moot, much deference was paid in rendering judgment to the old men who for many years had helped to render justice, and who, in consequence, had much knowledge of the customs, unwritten laws, in accordance with which decisions were rendered. In this deference to one or more persons who are recognized as understanding the principles involved in the case, we see the germ of judgeship in our present courts.

And finally, a boy naturally reserves the right, mentally or avowedly, of appealing from the decision of the boys to the teacher or his father, in case he feels that he has been unjustly dealt with.

Thus we see that the principal elements of the courts of today, the establishment of justice as a public trust, the determination of the facts by means of witnesses and a jury, the application of the law by one or more judges, the right of appeal to a higher court, are not artificial, but in the nature of things. We inherited them from our primitive ancestors, and in that sense they may be said to have been imposed upon us. But their naturalness appears in the fact that boys when left to themselves introduce the same elements into their boy-courts.

CHANGES MADE IN COURSE OF TIME.

In the Jury System.—The jurors were originally, as has been said, persons acquainted with the facts. After the Norman conquest, it came about that the jury consisted of twelve persons disinterested and unacquainted with the facts. Probably the change gradually came about from the difficulty of getting twelve men eligible to the jury who knew of the facts. Persons ineligible to the jury were then invited to give it information, but not to join it in the verdict. The next step, taken about 1400 A.D., was to require these witnesses to give their evidence in open court, subject to examination and cross-examination. The testimony of the witnesses, however, was still merely supplementary. Then in the time of Queen Anne, about 1707 A.D., it was decided that any person who had knowledge of the facts of the case should appear as a witness, that the jury should consist of persons unacquainted with the facts, and that the verdict should be rendered in accordance with the evidence. And so it is to this day, both in England and America. [Footnote: The best history of the jury system is probably Forsyth's.]

"It is not true, however, that a man is disqualified from serving on a jury simply because he has heard or read of the case, and has formed and expressed some impression in regard to its merits; if it were, the qualifications for jury service in cases that attract great attention would be ignorance and stupidity. The test, therefore, is not whether the juryman is entirely ignorant of the case, but whether he has formed such an opinion as would be likely to prevent him from impartially weighing the evidence and returning a verdict in accordance therewith." [Footnote: Dole's Talks about Law, p. 59.]

In the Officers.—As has been said, there were in the old Saxon courts no court officers. But quite early the necessity for such officers became manifest. And several of the offices then established have come down to us. Some of them, however, have been so modified in the progress of time as to be hardly recognizable.