Chapter 4

Mackintosh says: "The Saxon chiefs, who were called kings, originally acquired power by the same natural causes which have gradually, and everywhere, raised a few men above their fellows. They were, doubtless, more experienced, more skilful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the lustre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to suppose that the northern Germans who had conquered England, had so far changed their characteristic habits from the age of Tacitus, that the victors became slaves, and that their generals were converted into tyrants."—Mackintosh's Hist. of England, Ch. 2.45 Lardner's Cab. Cyc., 73-4.

Rapin, in his discourse on the "Origin and Nature of the English Constitution," says:

"There are but two things the Saxons did not think proper to trust their kings with; for being of like passions with other men, they might very possibly abuse them; namely, the power of changing the laws enacted by consent of king and people; and the power of raising taxes at pleasure. From these two articles sprung numberless branches concerning the liberty and property of the subject, which the king cannot touch, without breaking the constitution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king's prerogatives with the people's liberties. * * But when kings arose, as some there were, that aimed at absolute power, by changing the old, and making new laws, at pleasure; by imposing illegaltaxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English."—Rapin's Preface to his History of England.

Hallam says that among the Saxons, "the royal authority was weak."—2 Middle Ages, 403.

But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative,when assented toby theWitena-gemote, or assembly of wise men—that is, the bishops and barons. But this assembly evidently had no legislative power whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs,simply as a council, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will.

Lingard says:

"It was necessary that the king should obtain the assent of these (the members of the Witena-gemotes) to all legislative enactments;because, without their acquiescence and support, it was impossible to carry them into execution. To many charters (laws) we have the signatures of the Witan.They seldom exceed thirty in number; they never amount to sixty."—1 Lingard, 486.

It is ridiculous to suppose that the assent of such an assembly gave anyauthorityto the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their assent to a few laws passed by the king.

More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely,and the people slaves, of course. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government,and of Anglo-Saxon liberty.

The fact that the people had no representation in this assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day,provethat this assembly exercised no authority which juries of the people acknowledged, except at their own discretion.[37]

There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas,[38]viz., "that the County and Hundred Courts," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "in those times were the real and only Parliaments of the kingdom." And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced,and none others, became practically the law of the land as matter of course.[39]

Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the factthat the kings enacted so few laws. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelvepages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Massachusetts, and, says Blackstone, "seems to have been no more than a new edition, or fresh promulgation of Alfred's code, ordome-book, with such additions and improvements as the experience of a century and a half suggested."—1 Blackstone, 66.[40]

The Code of William the Conqueror[41]would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality.[42]The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the "lex terræ," or "common law" of the kingdom. Even Magna Carta contains hardly anything other than this same "common law," with some new securities for its observance.

How is this abstinence from legislation, on the part of the ancient kings, to be accounted for, except on the supposition that the people would accept, and juries enforce, few or no new laws enacted by their kings? Plainly it can be accounted for in no other way. In fact, all history informs us that anciently the attempts of the kings to introduce or establish new laws, met with determined resistance from the people, and generally resulted in failure. "Nolumus Leges Angliæ mutari," (we will that the laws of England be not changed,) was a determined principle with the Anglo-Saxons, from which they seldom departed, up to the time of Magna Carta, and indeed until long after.[43]

SECTION II.

The Ancient Common Law Juries were mere Courts of Conscience.

But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals,—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.

That the authority of the king was of little weight with thejudicial tribunals, must necessarily be inferred from the fact already stated, that his authority over thepeoplewas but weak. If the authority of his laws had been paramount in the judicial tribunals, it would have been paramount with the people, of course; because they would have had no alternativebut submission. The fact, then, that his laws werenotauthoritative with the people, is proof that they werenotauthoritative with the tribunals—in other words, that they were not, as matter of course, enforced by the tribunals.

But we have additional evidence that, up to the time of Magna Carta, the laws of the king were not binding upon the judicial tribunals; and if they were not binding before that time, they certainly were not afterwards, as has already been shown from Magna Carta itself. It is manifest from all the accounts we have of the courts in which juries sat, prior to Magna Carta, such as the court-baron, the hundred court, the court-leet, and the county court,that they were mere courts of conscience, and that the juries were the judges, deciding causes according to their own notions of equity, and not according to any laws of the king, unless they thought them just.

These courts, it must be considered, were very numerous, and held very frequent sessions. There were probably seven, eight, or nine hundred courtsa month, in the kingdom; the object being, as Blackstone says, "to bring justice home to every man's door." (3 Blackstone, 30.) The number of thecountycourts, of course, corresponded to the number of counties, (36.) Thecourt-leetwas the criminal court for a district less than a county. Thehundred courtwas the court for one of those districts anciently called ahundred, because, at the time of their first organization for judicial purposes, they comprised (as is supposed) but a hundred families.[44]The court-baron was the court for a single manor, and there was a court for every manor in the kingdom. All these courts were holden as often as once in three or five weeks; the county court once a month. The king's judges were present at none of these courts; the only officers in attendance being sheriffs, bailiffs, and stewards, merely ministerial, and not judicial, officers; doubtless incompetent, and, if not incompetent, untrustworthy, for giving the juries any reliable information in matters of law, beyond what was already known to the jurors themselves.And yet these were the courts, in which was done all the judicial business, both civil and criminal, of the nation, except appeals, and some of the more important and difficult cases.[45]It is plain that the juries, in these courts, must, of necessity, have been the sole judges of all matters of law whatsoever; because there was no one present, but sheriffs, bailiffs, and stewards, to give them any instructions; and surely it will not be pretended that the jurors were bound to take their law from such sources as these.

In the second place, it is manifest that the principles of law, by which the juries determined causes, were, as a general rule, nothing else than their own ideas of natural equity,and not any laws of the king; because but few laws were enacted, and many of those were not written, but only agreed upon in council.[46]Of those that were written, few copies only were made, (printing being then unknown,) and not enough to supply all, or any considerable number, of these numerous courts. Beside and beyond all this, few or none of the jurors could have read the laws, if they had been written; because few or none of the common people could, at that time, read. Not only were the common people unable to read their own language, but, at the time of Magna Carta, the laws were written in Latin, a language that could be read by few persons except the priests, who were also the lawyers of the nation. Mackintosh says, "the first act of the House of Commons composed and recorded in the English tongue," was in 1415, two centuries after Magna Carta.[47]Up to this time, and for some seventy years later, the laws were generally writteneither in Latin or French; both languages incapable of being read by the common people, as well Normans as Saxons; and one of them, the Latin, not only incapable of being read by them, but of being even understood when it was heard by them.

To suppose that the people were bound to obey, and juries to enforce, laws, many of which were unwritten, none of whichtheycould read, and the larger part of which (those written in Latin) they could not translate, or understand when they heard them read, is equivalent to supposing the nation sunk in the most degrading slavery, instead of enjoying a liberty of their own choosing.

Their knowledge of the laws passed by the king was, of course, derived only from oral information; and "the good laws," as some of them were called, in contradistinction to others—those which the people at large esteemed to be good laws—were doubtless enforced by the juries, and the others, as a general thing, disregarded.[48]

That such was the nature of judicial proceedings, and of the power of juries, up to the time of Magna Carta, is further shown by the following authorities.

"The sheriffs and bailiffs caused the free tenants of their bailiwics to meet at their counties and hundreds;at which justice was so done, that every one so judged his neighbor by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing, and certainly published."And although a freeman commonly was not to serve (as a juror or judge) without his assent, nevertheless it was assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they were not specially exempted to do such suits, andthere judged their neighbors."—Mirror of Justices, p. 7, 8.

"And although a freeman commonly was not to serve (as a juror or judge) without his assent, nevertheless it was assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they were not specially exempted to do such suits, andthere judged their neighbors."—Mirror of Justices, p. 7, 8.

Gilbert, in his treatise on the Constitution of England, says:

"In the county courts, if the debt was above forty shillings, there issued ajusticies(a commission) to the sheriff, to enable him to hold such a plea,where the suitors(jurors)are judges of the law and fact."—Gilbert's Cases in Law and Equity, &c., &c., 456.

All the ancient writs, given in Glanville, for summoning jurors, indicate that the jurors judged of everything,on their consciences only. The writs are in this form:

"Summon twelve free and legal men (or sometimes twelve knights) to be in court,prepared upon their oaths to declare whether A or B have the greater right to the land(or other thing)in question." See Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332.

Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the fact that the jurors were the judges. He says:

"By one law, every one was to be tried by his peers, who were of the same neighborhood as himself. * * By another law,the judges, for so the jury were called, were to be chosen by the party impleaded, after the manner of the Danishnembas; by which, probably, is to be understood that the defendant had the liberty of taking exceptions to, or challenging the jury, as it was afterwards called."—Crabbe's History of the English Law, p. 55.

Reeve says:

"The great court forcivilbusiness was thecounty court; held once every four weeks. Here the sheriff presided;but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges; and the sheriff was to execute the judgment. * *"Thehundred courtwas held beforesome bailiff; theleetbefore the lord of the manor's steward.[49]* *"Out of the county court was derived an inferior court ofciviljurisdiction, called thecourt-baron. This was held from three weeks to three weeks, andwas in every respect like the county court;" (that is, the jurors were judges in it;) "only the lord to whom this franchise was granted, orhis steward,presided instead of the sheriff."—1 Reeve's History of the English Law, p. 7.

"Thehundred courtwas held beforesome bailiff; theleetbefore the lord of the manor's steward.[49]* *

"Out of the county court was derived an inferior court ofciviljurisdiction, called thecourt-baron. This was held from three weeks to three weeks, andwas in every respect like the county court;" (that is, the jurors were judges in it;) "only the lord to whom this franchise was granted, orhis steward,presided instead of the sheriff."—1 Reeve's History of the English Law, p. 7.

Chief Baron Gilbert says:

"Besides the tenants of the king, which heldper baroniam, (by the right of a baron,) and did suit and service (served as judges) at his own court; and the burghers and tenants in ancient demesne, that did suit and service (served as jurors or judges) in their own court in person, and in the king's by proxy, there was also a set of freeholders, that did suit and service (served as jurors) at the county court. These were such as anciently held of the lord of the county, and by the escheats of earldoms had fallen to the king; or such as were granted out by service to hold of the king, but with particular reservation to do suit and service (serve as jurors) before the king's bailiff;because it was necessary the sheriff, or bailiff of the king, should have suitors(jurors)at the county court, that the business might be despatched. These suitors are the pares(peers)of the county court, and indeed the judges of it; as the pares(peers)were the judges in every court-baron; and therefore the king's bailiff having a court before him, there must bepares or judges, for the sheriff himself is not a judge; and though the style of the court isCuria prima Comitatus E.C. Milit.' vicecom' Comitat' præd' Tent' apud B., &c. (First Court of the county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); by which it appears that the court was the sheriff's;yet, by the old feudal constitutions, the lord was not judge, but the pares(peers)only; so that, even in ajusticies, which was a commission to the sheriff to hold plea of more than was allowed by the natural jurisdiction of a county court,the pares(peers, jurors)only were judges, and not the sheriff; because it was to hold plea in the same manner as they used to do in that (the lord's) court."—Gilbert on the Court of Exchequer, ch. 5, p. 61-2.

"It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coëxtensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum),being a court in which the freeholders of the manor are the sole judges, but in which the lord, by himself, or more commonly by his steward, presides."—Political Dictionary, wordManor.

The same work, speaking of the county court, says: "The judges were the freeholders who did suit to the court." See wordCourts.

"In the case of freeholders attending as suitors, the county court or court-baron, (as in the case of the ancient tenantsper baroniamattending Parliament,)the suitors are the judges of the court, both for law and for fact, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers,with no judicial authority."—Political Dictionary, wordSuit.

"Court, (curtis, curia aula); the space enclosed by the walls of a feudal residence, in which the followers of a lord used to assemble in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, thepares curiæ, (peers of the court,) the limited portion of the general assembly, to which was entrusted the pronouncing of judgment," &c.—Encyclopedia Americana, wordCourt.

"In court-barons or county courtsthe steward was not judge, but the pares(peers,jurors); nor was the speaker in the House of Lords judge, but the barons only."—Gilbert on the Court of Exchequer, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

"The sheriff presided at thehundred court, * * and sometimes sat in the place of the alderman (earl) in thecounty court."—Crabbe, 23.

The sheriff afterwards became the sole presiding officer of the county court.

Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more than three hundred years after Magna Carta, in describing the difference between the Civil Law and the English Law, says:

"Judexis of us called Judge, but our fashion is so divers, that they which give the deadly stroke, and either condemn or acquit the man for guilty or not guilty,are not called judges, but the twelve men. And the same order as well in civil matters and pecuniary, as in matters criminal."—Smith's Commonwealth of England, ch. 9, p. 53, Edition of 1621.

Court-Leet."That theleetis the most ancient court in the land forcriminalmatters, (the court-baron being of no less antiquity incivil,) has been pronounced by the highest legal authority. * * Lord Mansfield states that this court was coeval with the establishment of the Saxons here, and its activity marked very visibly both among the Saxons and Danes. * * The leet is a court of record for the cognizance of criminal matters, or pleas of the crown; and necessarily belongs to the king; though a subject, usually the lordof the manor, may be, and is, entitled to the profits, consisting of the essoign pence, fines, and amerciaments."It is held before the steward, or was, in ancient times, before the bailiff, of the lord."—Tomlin's Law Dict., wordCourt-Leet.

"It is held before the steward, or was, in ancient times, before the bailiff, of the lord."—Tomlin's Law Dict., wordCourt-Leet.

Of course the jury were the judges in this court, where only a "steward" or "bailiff" of a manor presided.

"No cause of consequence was determined without the king's writ; for even in the county courts, of the debts, which were above forty shillings, there issued aJusticies(commission) to the sheriff, to enable him to hold such plea,where the suitors are judges of the law and fact."—Gilbert's History of the Common Pleas, Introduction, p. 19.

"This position" (that "the matter of law was decided by the King's Justices, but the matter of fact by the pares") "is wholly incompatible with the common law, for the Jurata (jury) were the sole judges both of the law and the fact."—Gilbert's History of the Common Pleas, p. 70,note.

We come now to the challenge; and of oldthe suitors in court, who were judges, could not be challenged; nor by the feudal law could theparesbe even challenged,Pares qui ordinariam jurisdictionem habent recusari non possunt; (the peers who have ordinary jurisdiction cannot be rejected;) "but those suitors who are judges of the court, could not be challenged; and the reason is, that there are several qualifications required by the writ, viz., that they beliberos et legales homines de vincineto(free and legal men of the neighborhood) of the place laid in the declaration," &c., &c.—Ditto, p. 93.

"Ad questionem juris non respondent Juratores." (To the question of law the jurors do not answer.) "The Annotist says, that this is indeed a maxim in the Civil-Law Jurisprudence,but it does not bind an English jury, for by the common law of the land the jury are judges as well of the matter of law, as of the fact, with this difference only, that the (a Saxon word) or judge on the bench is to give them no assistance in determining the matter offact, but if they have any doubt among themselves relating to matter oflaw, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter oflaw. And this is the province of the judge on the bench, namely, to show, orteachthe law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law." (Here various Saxon laws are quoted.) "In neither of these fundamental laws is there the least word, hint, or idea, that the earl or alderman (that is to say, thePrepositus(presiding officer) of the court, which is tantamount tothe judge on the bench) is to take upon him to judge the delinquent in any sense whatever, the sole purport of his office is toteachthe secular or worldly law."—Ditto, p. 57,note.

"The administration of justice was carefully provided for; it was not the caprice of their lord,but the sentence of their peers, that they obeyed. Each was the judge of his equals, and each by his equals was judged."—Introd. to Gilbert on Tenures, p. 12.

Hallam says: "A respectable class of free socagers, having, in general, full rights of alienating their lands, and holding them probably at a small certain rent from the lord of the manor, frequently occur in Domes-day Book. * * They undoubtedly were suitors to the court-baron of the lord, to whose soc, or right of justice, they belonged.They were consequently judges in civil causes, determined before the manorial tribunal."—2 Middle Ages, 481.

Stephens adopts as correct the following quotations from Blackstone:

"TheCourt-Baronis a court incident to every manor in the kingdom, to be holden by the steward within the said manor." * *It "is a court of common law, and it is the court before the freeholders who owe suit and service to the manor," (are bound to serve as jurors in the courts of the manor,) "the steward being rather the registrar than the judge. * * The freeholders' court was composed of the lord's tenants, who were thepares(equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks;and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor."—3 Stephens' Commentaries, 392-3.3 Blackstone, 32-3.

"AHundred Courtis only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor.The free suitors (jurors) are here also the judges, and the steward the register."—3 Stephens, 394.3 Blackstone, 33.

"TheCounty Courtis a court incident to the jurisdiction of the sheriff. * *The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer."—3 Stephens, 395-6.3 Blackstone, 35-6.

Blackstone describes these courts, as courts "wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends."—3 Blackstone, 30.

"When we read of a certain number offreemenchosen by the parties to decide in a dispute—all bound by oath to votein foro conscientia—and thattheirdecision,not the will of the judge presiding, ended the suit, we at once perceive that a great improvement has been made in the old form of compurgation—an improvement which impartial observation can have no hesitation to pronounce as identical in its main features with the trial by jury."—Dunham's Middle Ages, Sec. 2, B. 2, Ch. 1.57 Lardner's Cab. Cyc., 60.

"The bishop and the earl, or, in his absence, the gerefa, (sheriff,) and sometimes both the earl and the gerefa, presided at theschyre-mote(county court); the gerefa (sheriff) usually alone presided at themote(meeting or court) of the hundred. In the cities and towns which were not within any peculiar jurisdiction, there was held, at regular stated intervals, aburgh mote, (borough court,) for the administration of justice, at which a gerefa, or a magistrate appointed by the king, presided."—Spence's Origin of the Laws and Political Institutions of Modern Europe, p. 444.

"The right of the plaintiff and defendant, and of the prosecutor and criminal,to challenge the judices, (judges,)or assessors,[50]appointed to try the cause in civil matters, and to decide upon the guilt or innocence of the accused in criminal matters, is recognized in the treatise called the Laws of Henry the First; but I cannot discover, from the Anglo-Saxon laws or histories, that before the Conquest the parties had any general right of challenge;indeed, had such right existed, the injunctions to all persons standing in the situation of judges (jurors) to do right according to their conscience, would scarcely have been so frequently and anxiously repeated."—Spence, 456.

Hale says:

"The administration of the common justice of the kingdom seems to be wholly dispensed in the county courts, hundred courts, and courts-baron; except some of the greater crimes reformed by the laws of King Henry I., and that part thereof which was sometimes taken up by theJustitiarius Angliæ."This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz.:"First, by the ignorance of the judges, which were the freeholders of the county.* *"Thirdly, a third inconvenience was, that all the business of any moment was carried by parties and factions.For the freeholders being generally the judges, and conversing one among another,and being as it were the chief judges, not only of the fact, but of the law; every man that had a suit there, sped according as he could make parties."—1 Hale's History of the Common Law, p. 246.

This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz.:

"First, by the ignorance of the judges, which were the freeholders of the county.* *

"Thirdly, a third inconvenience was, that all the business of any moment was carried by parties and factions.For the freeholders being generally the judges, and conversing one among another,and being as it were the chief judges, not only of the fact, but of the law; every man that had a suit there, sped according as he could make parties."—1 Hale's History of the Common Law, p. 246.

"In all these tribunals," (county court, hundred court, &c.,) "the judges were the free tenants, owing suit to the court, and afterwards called its peers."—1 Lingard's History of England, 488.

Henry calls the twelve jurors "assessors," and says:

"These assessors,who were in reality judges, took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted."—3 Henry's History of Great Britain, 346.

Tyrrell says:

"Alfred cantoned his kingdom, first intoTrihingsandLathes, as they are still called in Kent and other places, consisting of three or four Hundreds;in which, the freeholders being judges, such causes were brought as could not be determined in the Hundred court."—Tyrrell's Introduction to the History of England, p. 80.

Of theHundred Courthe says:

"In this court anciently,one of the principal inhabitants, called the alderman, together with the barons of the Hundred[51]—id est the freeholders—was judge."—Ditto, p. 80.

Also he says:

"By a law of Edward the Elder, 'Every sheriff shall convene the people once a month, and do equal right to all, putting an end to controversies at times appointed.'"—Ditto, p. 86.

"A statute, emphatically termed the 'Grand Assize,' enabled the defendant, if he thought proper, to abide by the testimony of the twelve good and lawful knights, chosen by four others of the vicinage,and whose oaths gave a final decision to the contested claim."—1 Palgrave's Rise and Progress of the English Commonwealth, 261.

"From the moment when the crown became accustomed to the 'Inquest,' a restraint was imposed upon every branch of the prerogative.The king could never be informed of his rights, but through the medium of the people.Every 'extent' by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the 'good men and true' who were impanelled to 'pass' between the subject and the sovereign; and the thunder of the Exchequer at Westminster might be silenced by the honesty, the firmness, or the obstinacy, of one sturdy knight or yeoman in the distant shire.Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community.The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general constitution of the realm. * * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand."—1 Palgrave's Rise and Progress of the English Constitution, 274-7.

Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community.

The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general constitution of the realm. * * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand."—1 Palgrave's Rise and Progress of the English Constitution, 274-7.

Coke says, "The court of the county is no court of record,[52]and the suitors are the judges thereof."—4 Inst., 266.

Also, "The court of the Hundred is no court of record,and the suitors be thereof judges."—4 Inst., 267.

Also, "The court-baron is a court incident to every manor, and is not of record,and the suitors be thereof judges."—4 Inst., 268.

Also, "The court of ancient demesne is in the nature of a court-baron,wherein the suitors are judges, and is no court of record."—4 Inst., 269.

Millar says, "Some authors have thought that jurymen were originallycompurgators, called by a defendant to swear that they believed him innocent of the facts with which he was charged.... But ... compurgators were merely witnesses;jurymen were, in reality, judges. The former were called to confirm the oath of the party by swearing, according to their belief, that he had told the truth, (in his oath of purgation;)the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty.... Juries were accustomed to ascertain the truth of facts, by the defendant's oath of purgation, together with that of his compurgators.... Both of them (jurymen and compurgators) were obliged to swear that they wouldtell the truth.... According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact; and it was thought that no man, who knew the real circumstances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted."—1 Millar's Hist. View of Eng. Gov., ch. 12, p. 332-4.

Also, "The same form of procedure, which took place in the administration of justice among the vassals of a barony, was gradually extended to the courts held in thetrading towns."—Same, p. 335.

Also, "The same regulations, concerning the distribution of justice by the intervention of juries, ...were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property."—Same, p. 337.

Also. "This tribunal" (theaula regis, or king's court, afterwards divided into the courts of King's Bench, CommonPleas, and Exchequer) "was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron-courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury."—Same, vol. 2, p. 292.

Speaking of the times of Edward the First, (1272 to 1307,) Millar says:

"What is called the petty jury was therefore introduced into these tribunals, (the King's Bench, the Common Pleas, and theExchequer,) as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, orfiscal."—Same, vol. 2, p. 293-4.

Also, "That this form of trial (by jury) obtained universally in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the constitution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or vassals of a barony, were determined by thepares curiæ(peers of the court;)and that the judge took little more upon him than to regulate the method of proceeding, or to declare the verdict of the jury."—Same, vol. 1, ch. 12, p. 329.

Also, "Among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the hundred, and afterwards in the baron-courts of every feudal superior."—Same, vol. 2, p. 296.

Palgrave says that in Germany "The Graff (gerefa, sheriff) placed himself in the seat of judgment, and gave the charge to the assembled free Echevins, warning them to pronounce judgment according to right and justice."—2Palgrave, 147.

Also, that, in Germany, "The Echevins were composed of the villanage, somewhat obscured in their functions by the learning of the grave civilian who was associated to them, and somewhat limited by the encroachments of modern feudality;but they were still substantially the judges of the court."—Same, 148.

Palgrave also says, "Scotland, in like manner, had the laws of Burlaw, or Birlaw, which were made and determined by the neighbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighbor and neighbor,which men, so chosen, were judges and arbitrators, and called Birlaw men."—1Palgrave's Rise, &c., p. 80.

But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of England, and from Blackstone's Commentaries.[53]

That all these courts were merecourts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it, is not only shown by the extractsalready given, but is explicitly acknowledged in the following one, in which themodern "courts of conscience"are compared with theancient hundred and county courts, and the preferencegiven to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purertribunal than the consciences of individuals specially appointed, and holding permanent offices.

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