Chapter XX: Part 20

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a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury.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.)

FOOTNOTES:

[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 XIV^e 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 magistrates[1] 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.

FOOTNOTE:

[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.