An Essay on the Trial By Jury

Part 2 out of 6

"ought to be amerced, or suffer the judgment of the tumbrel," -- 51
Henry III., St. 6. (1266)

Among the "Statutes of Uncertain Date," but supposed to be prior
to Edward III., (1326), are the following:

Chap. 6 provides that "if a brewer break the assize, (fixing the
price of ale,) the first, second, and third time, he shall be amerced;
but the fourth time he shall suffer judgment of the pillory without
redemption."

Chap. 7 provides that "a butcher that selleth swine's flesh
measeled, or flesh dead of the murrain, or that buyeth flesh of
Jews, and selleth the same unto Christians, after he shall be
convict thereof, for the first time he shall be grievously amerced;
the second time he shall suffer judgment of the pillory; and the
third time he shall be imprisoned and make fine; and the fourth
time he shall forswear the town."

Chap. 10, a statute against forestalling, provides that, "He that is
convict thereof, the first time shall be amerced, and shall lose the
thing so bought, and that according to the custom of the town; he
that is convicted the second time shall have judgment of the
pillory; at the third time he shall be imprisoned and make fine; the
fourth time he shall abjure the town. And this judgment shall be
given upon all manner of forestallers, and likewise upon them that
have given them counsel, help, or favor." 1 Ruffheads Statutes,
187, 188. 1 Statutes of the Realm, 203.

[26] 1 Hume, Appendix, l.

[27] Blackstone says, "Our ancient Saxon laws nominally punished
theft with death, if above the value of twelve pence; but the
criminal was permitted to redeem his life by a pecuniary ransom,
as among their ancestors, the Germans, by a stated number of
cattle. Bit in the ninth year of Henry the First (1109,) this power of
redemption was taken away, and all persons guilty of larceny
above the value off twelve pence were directed to be hanged,
which law continues in force to this day." 4 Blackstone, 238

I give this statement of Blackstone, because the latter clause may
seem to militate with the idea, which the former clause
corroborates, viz., that at the time of Magna Carta, fines were the
usual punishment of offenses. But I think there is no probability
that a law so unreasonable in itself, (unreasonable even after
making all allowance for the difference in the value of money,)
and so contrary to immemorial custom, could and did obtain any
general or speedy acquiescence among a people who cared little
for the authority of kings.

Maddox, writing of the period from William the Conqueror to
John, says: "The amercement in criminal and common pleas,
which were wont to be imposed during this first period and
afterwards, were of so many several sorts, that it is not easy to
place them under distinct heads. Let them, for methods' sake, be
reduced to the heads following: Amercements for or by reason of
murders and manslaughters, for misdemeanors, for disseisins, for
recreancy, for breach of assize, for defaults, for non-appearance,
for false judgment, and for not making suit, or hue and cry. To
them may be added miscellaneous amercements, for trespasses of
divers kinds." 1 Maddox' History of the Exchequer, 542.

[28] Coke, in his exposition of the words legem terrae, gives quite
in detail the principles of the common law governing arrests, and
takes it for granted that the words "nisi per legem terre" are
applicable to arrests, as well as to the indictment, &c. 2 inst., 51,
52.

[29] I cite the above extract from Mr. Hallam solely for the sake of
his authority for rendering the word vel by and; and not by any
means for the purpose of indorsing the opinion he suggests, that
legem terrae authorized "judgments by default or demurrer,*'
without the intervention of a jury. He seems to imagine that lex
terrae, the common law, at the time of Magna Carta, included
everything, even to the practice of courts, that is, at this day, called
by the name of Common Law; whereas much of what is now
called Common Law has grown up, by usurpation, since the time
of Magna Carta, in palpable violation of the authority of that
charter. He says, "Certainly there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Of course there are now many such ways, in which a
party's goods or person are taken, besides by the judgment of a
jury; but the question is, whether such takings are not in violation
of Magna Carta.

He seems to think that, in cases of "judgment by default or
demurrer," there is no need of a jury, and thence to infer that
legem terrae may not have required a jury in those cases. But this
opinion is founded on the erroneous idea that juries are required
only for determining contested facts, and not for judging of the
law. In case of default, the plaintif must present a prima facie case
before he is entitled to a judgment; and Magna Carta, (supposing it
to require a jury trial in civil cases, as Mr. Hallam assumes that it
does,) as much requires that this prima facie case, both law and
fact, be made out to the satisfaction of a jury, as it does that a
contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice
and assistance of the court, of course) as much as any other matter
of law arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except
where there is a "trial" meaning thereby a contest on matters of
fact. His language is, that "there are many legal procedures,
besides trial by jury, through which a party's goods or person may
be taken." Now Magna Carta says nothing of trial by jury; but only
of the judgment, or sentence, of a jury. It is only by inference that
we come to the conclusion that there must be a trial by jury. Since
the jury alone can give the judgment, or sentence, we infer that
they must try the case; because otherwise they would be
incompetent, and would have no moral right, to give judgment.
They must, therefore, examine the grounds, (both of law and fact,)
or rather try the grounds, of every action whatsoever, whether it be
decided on "default, demurrer," or otherwise, and render their
judgment, or sentence, thereon, before any judgment can be a legal
one, on which "to take a party's goods or person." In short, the
principle of Magna Carta is, that no judgment can be valid against
a party's goods or person, (not even a judgment for costs,) except a
judgment rendered by a jury. Of course a jury must try every
question, both of law and fact, that is involved in the rendering of
that judgment. They are to have the assistance and advice of the
judges, so far as they desire them; but the judgment itself must be
theirs, and not the judgment of the court.

As to "process of attachment for contempt," it is of course lawful
for a judge, in his character of a peace officer, to issue a warrant
for the arrest of a man guilty of a contempt, as he would for the
arrest of any other offender, and hold him to bail, (or, in default of
bail, commit him to prison,) to answer for his offence before a
jury. Or he may order him into custody without a warrant when the
offence is committed in the judge's presence.

But there is no reason why a judge should have the power of
punishing, for contempt, any more than for any other offence. And
it is one of the most dangerous powers a judge can have, because it
gives him absolute authority in a court of justice, and enables him
to tyrannize as he pleases over parties, counsel, witnesses, and
jurors. If a judge have power to punish for contempt, and to
determine for himself what is a contempt, the whole administration
of justice (or injustice, if he choose to make it so) is in his hands.
And all the rights of jurors, witnesses, counsel, and parties, are
held subject to his pleasure, and can be exercised only agreeably
to his will. He can of course control the entire proceedings in,
and consequently the decision of, every cause, by restraining and
punishing every one, whether party, counsel, witness, or juror,
who presumes to offer anything contrary to his pleasure.

This arbitrary power, which has been usurped and exercised by
judges to punish for contempt, has undoubtedly had much to do in
subduing counsel into those servile, obsequious, and cowardly
habits, which so universally prevail among them, and which have
not only cost so many clients their rights, but have also cost the
people so many of their liberties.

If any summary, punishment for contempt be ever necessary, (as it
probably is not,) beyond exclusion for the time being from the
court-room, (which should be done, not as a punishment, but for
self-protection, and the preservation of order,) the judgment for it
should be given by the jury, (where the trial is before a jury,) and
not by the court, for the jury, and not the court, are really the
judges. For the same reason, exclusion from the court-room should
be ordered only by the jury, in cases when the trial is before a jury,
because they, being the real judges and triers of the cause, are
entitled, if anybody, to the control of the court-room. In appeal
courts, where no juries sit, it may be necessary not as a
punishment, but for self-protection, and the maintenance of order
that the court should exercise the power of excluding a person, for
the time being, from the court-room; but there is no reason why
they should proceed to sentence him as a criminal, without his
being tried by a jury.

If the people wish to have their rights respected and protected in
courts of justice, it is manifestly of the last importance that they
jealously guard the liberty of parties, counsel, witnesses, and
jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that "one may doubt
whether these (the several eases he has mentioned) were in
contemplation of the framers of Magna Carta " that is, as
exceptions to the rule requiring that all judgmcnts, that are to be
enforced "against a party's goods or person,", be rendered by a jury.

Again, Mr. Hallam says, if the word vel, be rendered by and,, "the
meaning will be, that no person shall be disseized, &c., except
upon a lawful cause of action.", This is true; but it does not follow
that any cause of action, founded on statute only,, is therefore a
"lawful, cause of action," within the meaning of legem terrae, , or
the Common Law., Within the meaning of the legem terrae, of
Magna Carta, nothing but a common law, cause of action is a
"lawful", one.

CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND
DUTIES OF JURORS

If any evidence, extraneous to the history and language of Magna
Carta, were needed. to prove that, by that chapter which
guaranties the trial by jury, all was meant that has now been
ascribed to it, and that the legislation of the king was to be of
no authority with the jury beyond what they chose to allow to it,
and that the juries were to limit the punishments to be inflicted,
we should find that evidence in various sources, such as the laws,
customs, and characters of their ancestors on the continent, and
of the northern Europeans generally; in the legislation and customs
that immediately succeeded Magna Carta; in the oaths that have
at different times been administered to jurors, &c;., &c;. This
evidence can be exhibited here but partially. To give it all would
require too much space and labor

SECTION I

Weakness of the Regal Authority.

Hughes, in his preface to his translation of Horne's "Mirror of
Justices," (a book written in the time of Edward I, 1272 to
1307,) giving a concise view of the laws of England generally,
says:

"Although in the Saxon's time I find the usual words of the acts
then to have been edictum, (edict,) constitutio, (statute,)
little mention being made of the commons, yet I further find
that, tum demum Leges vim et vigorem habuerunt, cum fuerunt
non modo institutae sed firmatae approbatione communitatis." (The
laws had force and vigor only when they were not only enacted,
but confirmed by the approval of the community.)

The Mirror of Justices itself also says, (ch. 1, sec. 3,) in
speaking "Of the first Constitutions of the Ancient King."

"Many ordinances were made by many kings, until the time of the
king that now is (Edward I.); the which ordinances were abused,
or not used by many, nor very current, because they were not put
in writing, and certainly published." Mirror of Justices, p. 6.

Hallam says:

"The Franks, Lombards, and Saxons seem alike to have been
jealous of judicial authority; and averse to surrendering what concerned
every man's private right, out of the hands of his neighbors and
equals." 1 Middle Ages, 271.

The "judicial authority," here spoken of, was the authority of
the kings, (who at that time united the office of both
legislators and judges,), and not of a separate department of
government, called the judiciary, like what has existed in more
modern times. [1]

Hume says:

"The government of the Germans, and that of all the northern
nations, who established themselves on the ruins of Rome, was
always extremely free; and those fierce people, accustomed to
independence and inured to arms, were more guided by
persuasion, than authority, in the submission which they paid to their
princes. The military despotism, which had taken place n the
Roman empire, and which, previously to the irruption of those
conquerors, had sunk the genius of men, and destroyed every noble
principle of science and virtue, was unable to resist the
vigorous efforts of a free people, and Europe, as from a new
epoch, rekindled her ancient spirit, and shook off the base
servitude to arbitrary will and authority under which she had so
long labored. The free constitutions then established, however
impaired by the encroachments of succeeding princes, still
preserve an air of independence and legal administration, which
distinguished the European nations; and if that part of the globe
maintain sentiments of liberty, honor, equity, and valor,
superior to the rest of mankind, it owes these advantages chiefly
to the seeds implanted by those generous barbarians.

"The Saxons, who subdued Britain, as they enjoyed great liberty
in their own country, obstinately retained that invaluable
possession in their new settlement; and they imported into this
island the same principles of independence, which they had
inherited from their ancestors. The chieftains, ( for such they
were, more than kings or princes,) who commanded them in those
military expeditions, still possessed a very limited authority;
and as the Saxons exterminated, rather than subdued the ancient
inhabitants, they were, indeed, transplanted into a new
territory, but preserved unaltered all their civil and military
insfitutions. The language was pure Saxon; even the names of
places, which often remain while the tongue entirely changes,
were almost all affixed by the conquerors; the manners and
customs were wholly German; and the same picture of a fierce and
bold liberty, which is drawn by the masterly pen of Tacitus, will
suit those founders of the English government. The king, so far
from being invested with arbitrary power, was only considered as
the first among the citizens; his authority depended more on his
personal qualities than on his station; he was even so far on a
level with the people, that a stated price was fixed for his
head, and a legal fine was levied upon his murderer, which though
proportionate to his station, and superior to that paid for the
life of a subject, was a sensible mark of his subordination to
the community." 1 Hume, Appendix, l.

Stuart says:

"The Saxons brought along with them into Britain their own
customs, language, and civil institutions. Free in Germany, they
renounced not their independence, when they had conquered.
Proud from victory, and with their swords in their hands, would
they surrender their liberties to a private man? Would temporary
laders, limited in their powers, and unprovided in resources,
ever think to usurp an authority over warriors, who considered
themselves as their equals, were impatient of control, and
attached with devoted zeal to their privileges? Or, would they
find leisure to form resolutions, or opportunities to put them in
practice, amidst the tumult and confusion of those fierce and
bloody wars, which their nations first waged with the Britons,
and then engaged in among themselves? Sufficiently flattered in
leading the armies of their countrymen, the ambition of
commanders could as little suggest such designs, as the liberty
of the people could submit to them. The conquerors of Britain
retained their independence; and this island saw itself again in
that free state in which the Roman arms had discovered it.

"The same firmness of character, and generosity of manners,
which, in general, distinguished the Germans, were possessed in
an eminent degree by the Saxons; and while we endeavor to unfold
their political institutions, we must perpetually turn our
observation to that masterly picture in which the Roman historian
has described these nations. In the woods of Germany shall we
find the principles which directed the state of land, in the
different kingdoms of Europe; and there shall we find the
foundation of those ranks of men, and of those civil
arrangements, which the barbarians everywhere established; and
which the English alone have had the good fortune, or the spirit,
to preserve." Stuart on the Constitution of england, p. 59 - 61.

"Kings they (the Germans) respected as the first magistrates of
the state; but the authority possessed by them was narrow and
limited." Ditto, p. 134.

"Did he, (the king,) at any time, relax his activity and martial
ardor, did he employ his abilities to the prejudice of his
nation, or fancy he was superior to the laws; the same power
which raised him to honor, humbled and degraded him. The
customs and councils of his country pointed out to him his
duty; and if he infringed on the former, or disobeyed the latter,
a fierce people set aside his authority.

"His long hair was the only ornament he affected, and to be
foremost to attack an enemy was his chief distinction.
Engaged in every hazardous expedition, he was a stranger to
repose; and, rivalled by half the heroes of his tribe, he could
obtain little power. Anxious and watchful for the public
interest, he felt every moment his dependence, and gave
proofs of his suhmission.

"He attended the general assembly of his nation, and was allowed
the privilege to harangue it first; but the arts of persuasion,
though known and respected by a rude people, were unequally
opposed to the prejudices and passions of men." Ditto, p. 135 - 6.

"The authority of a Saxon mnarch was not more considerable. The
Saxons submitted not to the arbitrary rule of princes. They
administered an oath to their sovereigns, which bound them to
aeknowledge the laws, and to defend the rights of the church and
people; and if they forgot this obligation, they forfeited their
office. In both countries, a price was affixed on kings, a fine
expiated their murder, as well as that of the meanest citizen;
and the smallest violation of ancient usage,or the least step
towards tyranny, was always dangerous, and often fatal to them."
Ditto, p. 189-40.

"They were not allowed to impose taxes on the kingdom." Ditto,
p. 146.

"Like the German monarchs, they deliberated in the general
assembly of the nation; but their legislative authority was not
much respected; and their assent was considered in no better
light than as a form. This, however, was their chief prerogative;
and they employed it to acquire an ascendant in the state. To art
and insinuation they turned, as their only resource, and
flattered a people whom they could not awe; but address, and the
abilities to persuade, were a weak compensation for the absence
of real power.

"They declared war, it is said, and made peace. In both cases,
however, they acted as the instruments of the state, and put in
execution the resolutions which its councils had decreed. If,
indeed, an enemy had invaded the kingdoms, and its glory and its
safety were concerned, the great lords took the field at the call
of their sovereign. But had a sovereign declared war against a
neighboring state, without requiring their advice, or if he meant
to revenge by arms an insult offered to him by a subject, a
haughty and independent nobility refused their assistance. These
they considered as the quarrels of the king, and not of the
nation; and in all such emergencies he could only be assisted by
his retainers and dependents." Ditto, p. 147 8.

"Nor must we imagine that the Saxon, any more than the German
monarchs, succeeded each other in a lineal descent, [2] or that
they disposed of the crown at their pleasure. In both countries,
the free election of the people filled the throne; and their
choice was the only rule by which princes reigned. The
succession, accordingly, of their kings was often broken and
interrupted, and their depositions were frequent and groundless.
The will of a prince whom they had long respected, and the favor
they naturally transferred to his descendant, made them often
advance him to the royal dignity; but the crown of his ancestor
he cnsidered as the gift of the people, and neither expected nor
claimed it as a right." Ditto, p. 151 3.

In Germany "It was the business of the great to command in war,
and in peace they distributed justice.

"The princes in Germany were earls in England. The great
contended in both countries in the number of their retainers, and
in that splendor and magnificence which are so alluring to a rude
people; and though they joined to set bounds to regal power, they
were often animated against each other with the fiercest hatred.
To a proud and impatient nobility it seemed little and unsuiting
to give or accept compositions for the injuries they committed or
received; and their vassals adopting their resentment and
passions, war and bloodshed alone could terminate their quarrels.
What necessarily resulted from their situation in society, was
continued as a privilege; and the great, in both countries, made
war, of their private authority, on their enemies. The Saxon
earls even carried their arms against their sovereigns; and,
surrounded with retainers, or secure in fortresses and castles,
they despised their resentment, and defied their power.

"The judges of the people, they presided in both countries in
courts of law. [3] The particular districts over which they
exerted their authority were marked out in Germany by the council
of the state; and in England their jurisdiction extended over the
fiefs and other territories they possessed. All causes, both
civil and criminal, were tried before them; and they judged,
except in cases of the utmost importance, without appeal. They
were even allowed to grant pardon to criminals, and to correct by
their clemency the rigors of justice. Nor did the sovereign
exercise any authority in their lands. In these his officers
formed no courts, and his writ was disregarded.

"They had officers, as well as the king, who collected their
revenues, and added to their greatness; and the inhabitants of
their lands they distinguished by the name of subjects.

"But to attend the general assembly of their nation was the chief
prerogative of the German and Saxon princes; and as they
consulted the interest of their country, and eliberated
concerning matters of state, so in the king's court, of which
also they were members, they assisted to pronounce judgment in
the complaints and appeals which were lodged in it." Ditto, p.
158 to 165.

Henry says:

"Nothing can be more evident than this important truth; that our
Anglo-Saxon kings were not absolute monarchs; but that their
powers and prerogatives were limited by the laws and customs of
the country. Our Saxon ancestors had been governed by limited
monarchs in their native seats on the continent; and there is not
the least appearance or probability that they relinquished their
liberties, and submitted to absolute government in their new
settlements in this island. It is not to be imagined that men,
whose reigning passion was the love of liberty, would willingly
resign it; and their new sovereigns, who had been their
fellow-soldiers, had certainly no power to compel them to such a
resignation." 3 Henry's History of Great Britain, 358.

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 skillful, 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
illegal taxes 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 to by the Witena
- 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 o 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 any authority to 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, prove that this assembly exercised no authority
which juries of the people acknowledged, except at their own
discretion. [4]

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, [5] viz.. "that the
County aud 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. [6]

Finally, on this point. Conclusive proof that the legislation of
the king was of little or no authority, is found in the fact that
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 twelve pages 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, or dome-book, with such
additions and improvements as the experience of a century and a
half suggested." 1 Blackstone, 66. [7]

The Code of Wiliiam the Conqueror [8] 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. [9] The Norman
princes, from William the Conqueror to John, I think without
exception, bound themselves, and, in order to mqintain their
thrones, were obliged to bind themselves, to observe the ancient
laws and customs, in other words; the "lex terrae," 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 ether 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 Angliae 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. [10]

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 these 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 the
judicial tribunals, must necessarily be inferred from the fact
already stated, that his authority over the people was 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 alternative but
submission. The fact, then, that his laws were not authoritative
with the people, is proof that they were not authoritative 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 courts a month, in the kingdom; the object being, as
Blackstone says, "To bring justice home to every man's door." (3
Blackstone, 80.) The number of the county courts, of course,
corresponded to the number of counties, (36.) The court-leet was
the criminal court for a district less than a county. The hundred
court was the court for one of those districts anciently called a
hundred, because, at the time of their first organization for
judicial purposes, they comprised, (as is supposed) but a hundred
families. [11] 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
bailiff's, 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. [12] 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. [13] Of
those that werewritten, few copies only were made, (printing
being then unknown,) and not enough to supply a11, 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 thattime, 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. [14]. Up to this time, and for some
seventy years later, the laws were generally written either 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 beingeven
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 which they
could 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. [15]

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 sheriff's 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, and there 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 a justicies (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 832.

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 Danish nem-bas; 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 for civil business was the county 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.

"The hundred court was held before some bailiff; the leet before
the lord of the manor's steward.[16]

"Out of the county court was derived an inferior court of civil
jurisdiction, called the court-baron. This was held from three
weeks to three weeks, and was in every respect like the county
court;" (that is, the jurors were judges in it;) "only the lord
to whom this franchise was granted, or his steward presided
instead of the sheriff;" 1 Reeve's History of the English Law,
p. T.,

Chief Baron Gilbert says:

"Besides the tenants of the king, which held per 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 aud 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 kng'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 be pares or judges, for the
sheriff himself is not a judge; and though the style of the court
is Curia prima Comitatus E. C. Milit.' vicecom' Comitat' praed'
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 s1ieriff's; yet, by the old feudal
constititions, the lord was not judge, but the pares (peers)
only; so that, even in a justicies, which was a commission to the
sheriff to hold plea of more than was allowed hy 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. 61- 2.

"It is a distinguishing feature of the feudal system, to make
civil jurisdiction necessarily, and criminal jurisdiction
ordinarily, coextensive 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, word
Manor.

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

"In the case of freeholders attending as suitors, the county
court or court-baron., (as in the case of the ancient tenants per
baroniam attending 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, word Suit.

"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,
the pares curiae, (peers of the court,) the limited portion of
the general assembly, to which was entrusted the pronouncing of
judgment," &c;. Encyclopedia Americana, word Court.

"In court-barons or county courts the 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
Rxchequer, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

"The sheriff presided at the hundred court, * * and sometimes sat
in the place of the alderman (earl) in the county 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:

"Judex is 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
twele 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 the leet is the most ancient court in the land
for criminal matters, (the court-baron being of no less antiquity
in civil,) 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 lord of 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." Tomline's Law Dict., word
Court-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 a Justicies (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 old the suitors in court,
who were judge, could not he challenged; nor by the feudal law
could the pares be 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 be liberos 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 theland the jury
are the 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 of
fact, but if they have any doubt among themselves relating to
matter of law, 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 of law. And this is the province of the judge on the bench,
namely, to show, or teach the 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, the Prepositus (presiding
officer) of the court, which is tantamount to the judge on the
bench) is to take upon him to judge the delinquent in any sense
whatever, the sole purport of his office is to teach the 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 where consequently judges in civil
causes, determined before the manorial tribunal." 2 Middle
Ages, 481.

Stephens adopts as correct the following quotations from Blackstone:
"The Court-Baron is 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 the pares(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
etermine, by writ of right, all controversies relating to the right
of lands within the manor." 3 Stephens' Commentaries, 392 3.
3 Blackstone, 32-33.

"A Hundred Court is 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.

"The County Court is 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 of freemen chosen by the
parties to decide in a dispute all bound by oath to vote in
foro conscientia and that their decision, 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 the schyre-mote (county court); the gerefa (sheriff) usually
alone presided at the mote (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, a
burgh 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,
[17] 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
challege; 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 the Justitiarius Angliae.

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.

Tyrre11 says:

"Alfred cantoned his kingdom, first into Trihings and Lathes, 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 the Hundred Court he says:

"In this court anciently, one of the principal inhabitants,
called the alderman, together with the barons of the Hundred [18]
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
impaneled 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 impaneled 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, [19]
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 originally
compurgators, 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
would tell 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 eld in the trading towns."
Same, p. 335.

Also, "The same regulation, 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" (the aula regis, or king's court, afterwards
divided into the courts of King's Bench, Common Pleas,
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 the
Exhequer,) as well as into their anxiliary courts employed to
distribute justice in the circuits; and was thus rendered
essentially necessary in determining causes of every sort,
whether civil, criminal, or fiscal." 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 Eng-1and, 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 the pares curiae (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." 2 Palgrave, 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." 1 Palgrave'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.
[20]

That all these courts were mere courts of conscience, in which
the juries were sole judges, administering justice according to
their own ideas of it, is not only shown by the extracts already
given, but is explicitly acknowledged in the following one, in
which the modern "courts of conscience" are compared with the
ancient hundred and county courts, and the preference given 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 purer
tribunal than the consciences of individuals specially appointed,
and holding permanent offices.

"But there is one species of courts constituted by act of
Parliament, in the city of London, and other trading and populous
districts, which, in their proceedings, so vary from the course
of the common law, that they deserve a more particular
consideration. I mean the court of requests, or courts of
conscience, for the recovery of small debts. The first of these
was established in London so early as the reign of Henry VIII.,
by an act of their common council; which, however, was certainly
insufficient for that purpose, and illegal, till confirmed by
statute 3 Jac. I., ch. 15, which has since been explained and
amended by statute 14 Geo. II., ch. 10. The constitution is this:
two aldermen and four commoners sit twice a week to hear all
causes of debt not exceeding the value of forty shillings; which
they examine in a summary way, by the oath of the parties or
other witnesses, and make such order therein as is consonant to
equity and good conscience.i * * * Divers trading towns and
other districts have obtained acts of Parliament, for
establishing in them courts of conscience upon nearly the same
plan as that in the city of London.

"The anxious desire that has been shown to obtain these several
acts, proves clearly that the nation, ingeneral, is truly
sensible of the great inconvenience arising from the disuse of
the ancient county and hundred courts, wherein causes of this
small value were always formerly decided with very little trouble
and expense to the parties. But it is to be feared that the
general remedy, which of late hath been principally applied to
this inconvenience, (the erecting these new jurisdictions,) may
itself be attended in time with very ill consequences; as the
method of proceeding therein is entirely in derogation of the
common law; and their large discretionary powers create a petty
tyranny in a set of standing commissioners; and as the disuse of
the trial by jury may tend to estrange the minds of the people
from that valuable prerogative of Englishmen, which has already
been more than sufficiently excluded in many instances. How
much rather is it to be wished that the proceedings in the county
and hundred courts could be again revived, without burdening
the freeholders with too frequent and tedious attendances; and
at the same time removing the delays that have insensibly crept
into their proceedings, and the power that either party has of
transferring at pleasure their suits to the courts at Westminster!
And we may, with satisfaction, observe, that this experiment has
been actually tried, and has succeeded in the populous county of
Middlesex, which might serve as an example for others. For by
statute 23 Geo. II., ch. 33, it is enacted:

1. That a special county court shall be held at least once in a
month, in every hundred of the county of Middlesex, by the county
clerk.

2. That twelve freeholders of that hundred, qualified to serve on
juries, and struck by the sheriff, shall be summoned to appear at
such court by rotation; so as none shall be summoned oftener than
once a year.

3. That in all causes not exceeding the value of forty shillings,
the county clerk and twelve suitors (jurors) shll proceed in a
summary way, examining the parties and witnesses on oath,
without the formal process anciently used; and shall make
such order therein as they shall judge agreeable to conscience."
3 Blackstone, 81 83.

What are these but courts of conscience? And yet Blackstone tells
us they are a revival of the ancient hundred and county courts.
And what does this fact prove, but that the ancient common law
courts, in which juries sat, were mere courts of conscience?
It is perfectly evident that in all these courts the jurors were
the judges, and determined all questions of law for themselves;
because the only alternative to that supposition is, that the
jurors took their law from sheriffs, bailiffs, and stewards, of
which there is not the least evidence in history, nor the least
probability in reason. It is evident, also, that they judged
independently of the laws of the king, for the reasons before
given, viz., that the authority of the king was held in very,
little esteem; and, secondly, that the laws of the king (not
being printed, and the people being unable to read them if they
had been printed) must have been in a great measure unknown to
them, and could have been received by them only on the authority
of the sheriff, bailiff; or steward. If laws were to be received
by them on the authority of these officers, the latter would have
imposed such laws upon the people as they pleased.

These courts, that have now been described, were continued in
full power long after Magna Carta, no alteration being made in
them by that instrument, nor in the mode of administering justice
in them.

There is no evidence whatever, so far as I am aware, that the
juries had any less power in the courts held by the king's
justices, than in those held by sheriffs, bailiff, and stewards;
and there is no probability whatever that they had. All the
difference between the former courts and the latter undoubtedly
was, that, in the former, the juries had the benefit of the
advice and assistance of the justices, which would, of course, be
considered valuable in difficult cases, on account of the
justices being regarded as more learned, not only in the laws of
the king, but also in the common law, or "law of the land."

The conclusion, therefore, I think, inevitably must be, that
neither the laws of the king, nor the instructions of his
justices, had any authority over jurors beyond what the latter
saw fit to accord to them. And this view is confirmed by this
remark of Hallam, the truth of which all will acknowledge:

"The rules of legal decision, among a rude people, are always
very simple; not serving much to guide, far less to control the
feelings of natural equity." 2 Middle Ages, ch. 8, part 2, p. 465.

It is evident that it was in this way, by the free and concurrent
judgments of juries, approving and enforcing certain laws and
rules of conduct, corresponding to their notions of right and
justice, that the laws and customs, which, for the most part,
made up the common law, and were called, at that day, "the
good laws, and good customs," and "the law of the land," were
established. How otherwise could they ever have become
established, as Blackstone says they were, "by long and
immemorial usage, and by their universal reception throughout
the kingdom,"- 1 Blackstone,63-67., when, as the Mirror says,
"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?"

The fact that, in that dark age, so many of the principles of
natural equity, as those then embraced in the Common Law,
should have been so uniformly recognized and enforced by juries,
as to have become established by general consent as "the law
of the land;" and the further fact that this "law of the land" was
held so sacred that even the king could not lawfully infringe or
alter it, but was required to swear to maintain it, are beautiful
and impressive illustrations of the troth that men's minds, even
in the comparative infancy of other knowledge, have clear and
coincident ideas of the elementary principles, and the paramount
obligation, of justice. The same facts also prove that the common
mind, and the general, or, perhaps, rather, the universal
conscience, as developed in the untrammeled judgments of juries,
may be safely relied upon for the preservation of individual rights
in civil society; and that there is no necessity or excuse for that
deluge of arbitrary legislation, with which the present age is
overwhelmed, under the pretext that unless laws be made, the
law will not be known; a pretext, by the way, almost universally
used for overturning, instead of establishing, the principles of
justice.

SECTION III. The Oaths of Jurors.

The oaths that have been administered to jurors, in England, and
which are their legal guide to their duty, all (so far as I have
ascertained them) corroborate the idea that the jurors are to try
all cases on their intrinsic merits, independently of any laws
that they deem unjust or oppressive. It is probable that an oath
was never administered to a jury in England, either in a civil or
criminal case, to try it according to law.

The earliest oath that I have found prescribed by law to be
administered to jurors is in the laws of Ethelred, (about the
year 1015,) which require that the jurors "shall swear, with their
hands upon a holy thing, that they will condemn no man that is
innocent, nor acquit any that is guilty." 4 Blackstone, 302.
2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the
Anglo-Saxons, 117. Spelman's Glossary, word Jurata.

Blackstone assumes that this was the oath of the grand jury
4 Blackstone, 302); but there was but one jury at the time this
oath was ordained. The institution of two juries, grand and petit,
took place after the Norman Conquest.

Hume, speaking of the administration of justice in the time of
Alfred, says that, in every hundred,

"Twelve freeholders were chosen, who, having sworn,
together with the hundreder, or presiding magistrate of that
division, to administer impartial justice, proceeded to
the examination of that cause which was submitted to their
jurisdiction." Hume, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff
"faciet jurare duodecim legales homines de vicineto seu de
villa, quod inde veritatem secundum conscientiam suam
manifestabunt," (shall make twelve, legal men from the
neighborhood to swear that they will make known the truth
according to their conscience.) Crabbe's History of the
English Law, 119. 1 Reeves, 87. Wilkins, 321 323.

Glanville, who wrote within the half century previous to
Magna Carta, says;

"Each of the knights summoned far this purpose (as jurors)
ought to swear that he will neither utter that which is false, nor
knowingly conceal the truth." Beames' Glanville, 65.

Reeve calls the trial by jury "the trial by twelve men sworn
to speak the truth." 1 Reeve's History of the English Law, 87.

Henry says that the jurors "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 Hist. of Great Britain, 346.

The Mirror of Justices, (written within a century after
Magna Carta,) in the chapter on the abuses of the Common
law, says:"It is abuse to use the words, to their knowledge,
in their oaths, to make the jurors speak upon thoughts, since
the chief words of their oaths be that they speak the truth." p.
249.

Smith, writing in the time of Elizabeth, says that, in civil suits,
the jury "be sworn to declare the truth of that issue according to
the evidence, and their conscience." Smith's Commonwealth
of England. edition of 1621, p. 73.

In criminal trials, he says:

"The clerk giveth the juror an oath to go uprightly betwixt the
prince and the prisoner." Ditto, p. 90. [24]

Hale says:

"Then twelve, and no less, of such as are indifferent and are
returned upon the principal panel, or the tales, are sworn to try
the same according to the evidence." 2 Hale's History of the
Common Law, 141.

It appears from Blackstone that, even at this day, neither in
civil nor criminal cases, are jurors in England sworn to try causes
according to law. He says tht in civil suits the jury are "Sworn well
and truly to try the issue between the parties; and a true verdict to
give according to the evidence." 3 Blackstone, 365.

"The issue" to be tried is whether A owes B anything and if so,
how much? or whether A has in his possession anything that
belongs to B; or whether A has wronged B, and ought to make
compensation; and if so, how much?

No statute passed by a legislature, simply as a legislature, can alter
either of these "issues" in hardly any conceivable case, perhaps in
none. No unjust law could ever alter them in any. They are all
mere questions of natural justice, which legislatures have no power to
alter, and with which they have no right to interfere, further than to
provide for having them settled by the most competent and impartial
tribunal that it is practicable to have, and then for having all just decisions
enforced. And any tribunal, whether judge or jury, that attempts to
try these issues, has no more moral right to be swerved from the
line of justice, by the will of a legislature, than by the will of any other
body of men whatever. And this oath does not require or permit a jury to
be so swerved.

In criminal cases, Blackstone says the oath of the jury in England
is:

"Well and truly to try, and true deliverance make, between our
sovereign lord, the king, and the prisoner whom they have in
charge, and a true verdict to give according to the evidence." 4
Blackstone, 355.

"The issue" to be tried, in a criminal case, is "guilty," or "not
guilty." The laws passed by a legislature can rarely, if ever, have anything
to do with this issue. "Guilt" is an intrinsic quality of actions, and can
neither be created, destroyed, nor changed by legislation. And no tribunal
that attempts to try this issue can have any moral right to declare a man
guilty, for an act that is intrinsically innocent, at the bidding of a
legislature, any more than at the bidding of anybody else. And this
oath does not require or permit a jury to do so.

The words, "according to the evidence," have doubtless been
introduced into the above oaths in modern times. They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be
meant such evidence only as the government sees fit ft allow to go to the
jury. If the government can dictate the evidence, and require the jury to
decide according to that evidence, it necessarily dictates the conclusion to
which they must arrive. In that case the trial is really a trial by the
government, and not by the jury. The jury cannot try an issue, unless they
determine what evidence shall be admitted. The ancient oaths, it will be
observed, say nothing about "according to the evidence." They obviously
take it for granted that the jury try the whole case; and of course that they
decide what evidence shall be admitted. It would be intrinsically an
immoral and criminal act for a jury to declare a man guilty, or to declare
that one man owed. money to another, unless all the evidence were
admitted, which they thought ought to be admitted, for ascertaining the truth.
[25]

Grand Jury. If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact than the oath of grand juries does not
require them to be governed by the laws in finding indictments. There
have been various forms of oath administered to grand jurors; but by none of
them that I recollect ever to have seen, except those of the States of
Connecticut and Vermont, are they sworn to present men according to law.

The English form, as given in the essay on Grand Juries, written
near two hundred years ago, and supposed to have been written by Lord
Somers, is as follows:

"You shall diligently inquire, and true presentment make, of all
such articles, matters, and things, as shall be given you in charge,
and of all other matters and things as shall come to your knowledge
touching this present service. The king's council, your fellows, and your own,
you shall keep secret. You shall present no person for hatred or malice;
neither shall you leave any one unpresented for favor, or affection,
for love or gain, or any hopes thereof; but in all things you shall present the
truth, the whole truth, and nothing but the truth, to the best of your
knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essay says "our
ancestors appointed" it. See Essay, p. 33 34.

On the obligations of this oath, the essay says:"If it be asked how,
or in what manner, the (grand) juries shall inquire, the answer
is ready, according to the best of their understandings. They only,
not the judges, are sworn to search diligently to find out all treasons,
&c;., within their charge, and they must and ought to use their own
discretion in the way and manner of their inquiry. No directions
can legally be imposed upon there by any court or judges; an honest
jury will thankfully accept good advice from judges, as their assistants;
but they are bound by their oaths to present the truth, the whole truth,
and nothing but the truth, to the best of their own, not the judge's,
knowledge. Neither can they, without breach of that oath, resign
their consciences, or blindly submit to the dictates of others; and
therefore ought to receive or reject such advices, as they judge them
good or bad. * *Nothing can be more plain and express than the
words of the oath are to this purpose. The jurors need not search the
law books, nor tumble over heaps of old records, for the explanation
of them. Our greatest lawyers may from hence learn more certainly
our ancient law in this case, than from all the books in their studies.
The language wherein the oath is penned is known and understood by
every man, and the words in it have the same signification as they have
wheresoever else they are used. The judges, without assuming to
themselves a legislative power, cannot put a new sense upon them,
other than according to their genuine, common meaning. They cannot
magisterially impose their opinions upon the jury, and make them
forsake the direct words of their oath, to pursue their glosses. The
grand inquest are bound to observe alike strictly every part of their
oath, and to use all just and proper ways which may enable them to
perform it; otherwise it were to say, that after men had sworn to
inquire diligently after the truth, according to the best of their
knowledge, they were bound to forsake all the natural and proper
means which their understandings suggest for the discovery of it,
if it be commanded by the judges." Lord Somers' Essay on Grand
Juries, p. 88.

What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of
petit juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties. [26]

SECTION IV. The Right of Juries to fix the Sentence.

The nature of the common law courts existing prior to Magna
Carta, such as the county courts, the hundred courts, the court-leet,
and the court-baron, all prove, what has already been proved from
Magna Carta, that, in jury trials, the juries fixed the sentence;
because, in those courts, there was no one but the jury who could fix it,
unless it were the sheriff, bailiff, or steward; and no one will pretend that
it was fixed by them. The juries unquestionably gave the "judgment"
in both civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also
shown by statutes subsequent to Magna Carta. A statute passed
fifty-one years after Magna Carta, says that a baker, for default in
the weight of his bread, "debeat amerciari vel subire judicium pilloae,"

that is, "ought to be amerced, or suffer the sentence of the pillory."
And that a brewer, for "selling ale, contrary to the assize," "debeat
amerciari, vel pati judicium tumbrelli;" that is, "ought to be
amerced, or suffer judgment of the tumbrel." 51 Henry III., st. 6. (1266.)

If the king (the legislative power) had had authority to fix the
punishments of these offences imperatively, he would naturally
have said these offenders shall be amerced, and shall suffer
judgment of the pillory and tumbrel, instead of thus simply
expressing the opinion that they ought to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta,
provides that,"No city, borough, nor town, nor any man, be amerced,
without reasonable cause, and according to the quantity of the trespass;
that is to say, every freeman saving his freehold, a merchant saving
his merchandise, a villein his waynage, and that by his or their
peers." 3 Edward I., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,"Forasmuch as the
common fine and amercement of the whole county in Eyre of the
justices for false judgments, or for other trespass, is unjustly
assessed by sheriff's and baretors in the shires, so that the sum is many
times increased, and the parcels otherwise assessed than they ought to
be, to the damage of the people, which be many times paid to the sheriffs
and baretors, which do not acquit the payers; it is provided, and the
king wills, that from henceforth such sums shall be assessed before
the justices in Eyre, afore their departure, by the oath of knights
and other honest men, upon all such as ought to pay; and the justices
shall cause the parcels to be put into their estreats, which shall be
delivered up unto the exchequer, and not the whole sum." St. 3 Edward I.,
ch. 18, (1275.) [27]

The following statute, passed in 1341, one hundred and twenty-five
years after Magna Carta, providing for the trial of peers of the realm,
and the king's ministers, contains a recognition of the principle of
Magna Carta, that the jury are to fix the sentence.

"Whereas before this time the peers of the land have been arrested
and imprisoned, and their temporalities, lands, and teneiments,
goods and cattels, asseized in the king's hands, and some put to
death without judgment of their peers: It is accorded and assented,
that no peer of the land, officer, nor other, because of his office,
nor of things touching his office, nor by other cause, shall be
brought in judgment to lose his temporalities, lands, tenements,
goods and cattels, nor to be arrested, nor imprisoned, outlawed,
exiled, nor forejudged, nor put to answer, nor be judged, but by
award (sentence) of the said peers in Parliament." 15 Edward III.,
st. 1, sec. 2.

Section 4, of the same statute provides,

"That in every Parliament, at the third day of every Parliament.
the king shall take in his hands the offices of all the ministers
aforesaid," (that is, "the chancellor, treasurer, barons, and
chancellor of the exchequer, the justices of the one bench and of
the other, justices assigned in the country, steward and chamberlain
of the king's house, keeper of the privy seal, treasurer of the
wardrobe, controllers, and they that be chief deputed to abide nigh
the king's son, Duke of Cornwall,") "and so they shall abide four
or five days; except the offices of justices of the one place or the
other, justices assigned, barons of exchequer; so always that they
and all other ministers be put to answer to every complaint; and if
default be found in any of the said ministers, by complaint or other
manner, and of that attainted in Parliament, he shall be punished
by judgment of the peers, and put out of his office, and another
convenient put in his place. And upon the same our said sovereign
lord the king shall do (cause) to be pronounced and made execution
without delay, according to the judgment (sentence) of the said peers
in the Parliament."

Here is an admission that the peers were to fix the sentence, or
judgment, and the king promises to make execution "according to"
that sentence.

And this appears to be the law, under which peers of the realm
and the great officers of the crown were tried and sentenced, for
four hundred years after its passage, and, for aught I know, until this
day.

The first case given in Hargrave's collection of English State
Trials, is that of Alexander Nevil, Archbishop of York, Robert
Vere Duke of Ireland; Michael de la Pole, Earl of Suffolk, and
Robert Tresilian, Lord Chief Justice of England, with several
others, convicted of treason, before "the Lords of Parliament," in
1388. The sentences in these cases were adjudged by the "Lords
of Parliament," in the following terms, as they are reported.

"Wherefore the said Lords of Parliament, there present, as judges
in Parliament, in this case, by assent of the king, pronounced their
sentence, and did adjudge the said archbishop, duke, and earl, with
Robert Tresilian, so appealed, as aforesaid, to be guilty, and
convicted of treason, and to be drawn and hanged, as traitors and
enemies to the king and kingdom; and that their heirs should be
disinherited forever, and their lands and tenements, goods and
chattels, forfeited to the king, and that the temporalities of the
Archbishop of York should be taken into the king's hands."

Also, in the same case, Sir John Holt, Sir William Burgh, Sir John
Cary, Sir Roger Fulthorpe, and John Locton, "were by the lords
temporal, by the assent of the king, adjudged to be drawn and
hanged, as traitors, their heirs disinherited, and their lands and
tenements, goods and chattels, to be forfeited to the king."

Also, in the same case, John Blake, "of council for the king," and
Thomas Uske, under sheriff of Middlesex, having been convicted
of treason, "The lords awarded, by assent of the king, that they
should both be hanged and drawn as traitors, as open enemies to
the king and kingdom, and their heirs disinherited forever, and
their lands and tenements, goods and chattels, forfeited to the king."

Also, "Simon Burleigh, the king's chamberlain," being convicted
of treason, "by joint consent of the king and the lords, sentence
was pronounced against the said Simon Burleigh, that he should be
drawn from the town to Tyburn, and there be hanged till he be
dead, and then have his head struck from his body."

Also, "John Beauchamp, steward of the household to the king,
James Beroverse, and John Salisbury; knights, gentlemen of the
privy chamber, were in like manner condemned." 1 Hargrave's
State Trials, first case.

Here the sentences were all fixed by the peers, with the assent of
the king. But that the king should be consulted, and his assent
obtained to the sentence pronounced by the peers, does not imply
any deficiency of power on their part to fix the sentence
independently of the king. There are obvious reasons why they
might choose to consult the king, and obtain his approbation of the
sentence they were about to impose, without supposing any legal
necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the
realm were usually sentenced by those who tried them, with the
assent of the king. But in some instances no mention is made of
the assent of the king, as in the case of "Lionel, Earl of Middlesex,
Lord High Treasurer of England," in 1624, (four hundred years
after Magna Carta,) where the sentence was as follows:

"This High Court of Parliament doth adjudge, that Lionel, Earl of
Middlesex, now Lord Treasurer of England, shall lose all his
offices which he holds in this kingdom, and shall, hereafter, be
made incapable of any office, place, or employment in the state
and commonwealth. That he shall be imprisoned in the tower of
London, during the king's pleasure. That he shall pay unto our
sovereign lord the king a fine of 50,000 pounds. That he shall
never sit in Parliament any more, and that he shall never come
within the verge of the court." 2 Howell's Stale Trials, 1250.

Here was a peer of the realm, and a minister of the king, of the
highest grade; and if it were ever necessary to obtain the assent of
the king to sentences pronounced by the peers, it would unquestionably
have been obtained in this instance, and his assent would have appeared
in the sentence.

Lord Bacon was sentenced by the House of Lords, (l620,) no
mention being made of the assent of the king. The sentence is in
these words:

"And, therefore, this High Court doth adjudge, That the Lord
Viscount St. Albans, Lord Chancellor of England, shall undergo
fine and ransom of 40,000 pounds. That he shall be imprisoned
in the tower during the king's pleasure. That he shall forever be
incapable of any office, place, or employment in the state or
commonwealth. That he shall never sit in Parliament, nor come
within the verge of the court."

And when it was demanded of him, before sentence, whether it
were his hand that was subscribed to his confession, and whether
he would stand to it; he made the following answer, which implies
that the lords were the ones to determine his sentence. "My lords,
it is my act, my hand, my heart. I beseech your lordships to be
merciful to a broken reed." 1 Hargrave's State Trials, 886 7.

The sentence against Charles the First, (1648,) after reciting
the grounds of his condemnation, concludes in this form:

"For all which treasons and crimes, this court doth adjudge,
that he, the said Charles Stuart, as a tyrant, traitor, murderer, and
public enemy to the good people of this nation, shall be put
to death by the severing his head from his body."

The report then adds:

"This sentence being read, the president (of the court) spake as
followeth: 'This sentence now read and published, is the act,
sentence, judgment and resolution of the whole court.'
1 Hargrave's State Trials, 1037.

Unless it had been the received "law of the land" that those who
tried a man should fix his sentence, it would have required an act
of Parliament to fix the sentence of Charles, and his sentence
would have been declared to be "the sentence of the law,"
instead of "the act, sentence, judgment, and resolution of
the court."

But the report of the proceedings in "the trial of Thomas, Earl
of Macclesfield, Lord High Chancellor of Great Britain,
before the House of Lords, for high crimes and misdemeanors
in the execution of his office," in 1725, is so full on this point,
and shows so clearly that it rested wholly with the lords to
fix the sentence, and that the assent of the king was wholly
unnecessary, that I give the report somewhat at length.

After being found guilty, the earl addressed the lords, for
a mitigation of sentence, as follows:

"I am now to expect your lordships' judgment; and I hope
that you will be pleased to consider that I have suffered
no small matter already in the trial, in the expense I have
been at, the fatigue, and what I have suffered otherways.
* * I have paid back 10,800 pounds of the money already; I have
lost my office; I have undergone the censure of both houses
of Parliament, which is in itself a severe punishment,' "&c;., &c;.

On being interrupted, he proceeded: "My lords, I submit
whether this be not proper in mitigation of your lordships'
sentence; but whether it be or not, I leave myself to your
lordships' justice and mercy; I am sure neither of them will be
wanting, and I entirely submit.' * * *

"Then the said earl, as also the managers, were directed to
withdraw; and the House (of Lords) ordered Thomas,
Earl of Macclesfield, to be committed to the custody of the
gentleman usher of the black rod; and then proceeded to
the consideration of what judgment," (that is, sentence,
for he had already been found guilty,) "to give upon the
impeachment against the said earl."

"The next day, the Commons, with their speaker, being
present at the bar of the House (of Lords), * * * the speaker
of the House of Commons said as follows:

"My Lords, the knights, citizens, and burgesses in
Parliament assembled, in the name of themselves, and of
all the commons of Great Britain, did at this bar impeach
Thomas, Earl of Macclesfield, of high crimes and
misdemeanors, and did exhibit articles of impeachment
against him, and have made good their charge. I do,
therefore, in the name of the knights, citizens, and
burgesses, in Parliament assembled, and of all the commons
of Great Britain, demand judgment (sentence) of your
lordships against Thomas, Earl of Macclesfield, for the
said high crimes and misdemeanors.'

"Then the Lord Chief Justice King, Speaker of the House
of Lords, said: 'Mr. Speaker, the Lords are now ready
to proceed to judgment in the case by you mentioned.'

"Thomas, Earl of Macclesfielg, the Lords have
unanimously found you guilty of high crimes and
misdemeanors, charged on you by the impeachment of
the House of Commons, and do now, according to law,
proceed to judgment against you, which I am ordered
to pronounce. Their lordships' judgment is, and this high
court doth adjudge, that you, Thomas, Earl of
Macclesfield, be fined in the sum of thirty thousand
pounds unto our sovereign lord the king; and that you
shall be imprisoned in the tower of London, and there
kept in safe custody, until yon shall pay the said fine.'"
6 Hargrave's State Trials, 762 3 4.

This case shows that the principle of Magna Carta, that
a man should be sentenced only by his peers, was in force,
and acted upon as law, in England, so lately as 1725, (five
hundred years after Magna Carta,) so far as it applied to a
peer of the realm, a severe punishment," ect., ect.

But the same principle, on this point, that applies to a peer
of the realm, applies to every freeman. The only
difference between the two is, that the peers of the realm
have had influence enough to preserve their constitutional
rights; while the constitutional rights of the people have been
trampled upon and rendered obsolete by the usurpation and
corruption of the government and the courts.

SECTION V. The Oaths of Judges

As further proof that the legislation of the king, whether
enacted with or without the assent and advice of his parliaments,
was of no authority unless it were consistent with the common
law, and unless juries and judges saw fit to enforce it, it may be
mentioned that it is probable that no judge in England was ever
sworn to observe the laws enacted either by the king alone,
or by the king with the advice and assent of parliament.

The judges were sworn to "do equal law, and execution of right,
to all the king's subjects, rich and poor, without having
regard to any person;" and that they will "deny no man
common right;" [28] but they were not sworn to obey or
execute any statutes of the king, or of the king and parliament.
Indeed, they are virtually sworn not to obey any statutes that
are against "common right," or contrary to "the common law,"
or "law of the land;" but to "certify the king thereof" that is,
notify him that his statutes are against the common law;
and then proceed to execute the common law, notwithstanding
such legislation to the contrary. The words of the oath on this point
are these:

"That ye deny no man common right by (virtue of) the king's
letters, nor none other man's, nor for none other cause; and in
case any letters come to you contrary to the law, (that is, the
common law, as will be seen on reference to the entire oath given
in the note,) that ye do nothing by such letters, but certify the
king thereof, and proceed to execute the law, (that is, the
common law,) notwithstanding the same letters."

Where it is considered that the king was the sole legislative
power, and that he exercised this power, to a great extent, by
orders in council, and by writs and "letters" addressed
oftentimes to some sheriff, or other person, and that his
commands, when communicated to his justices, or any
other person, "by letters," or writs, under seal, had as much
legal authority as laws promulgated in any other form
whatever, it will be seen that this oath of the justices
absolutely required that they disregard any legislation that
was contrary to "common right," or "the common law,"
and notify the king that it was contrary to common right,
or the common law, and then proceed to execute the
common law, notwithstanding such legislation. [29]

If there could be any doubt that such was the meaning
of this oath, that doubt would be removed by a statute
passed by the king two years afterwards, which fully
explains this oath, as follows:

"Edward, by the Grace of God, ect., to the Sheriff of
Stafford, greeting: Because that by divers complaints
made to us, we have perceived that the Law of the Land,
which we by our oath are bound to maintain, is the less
well kept, and the execution of the same disturbed many
times by maintenance and procurement, as well in the
court as in the country; we greatly moved of conscience
in this matter, and for this cause desiring as much for
the pleasure of God, and ease and quietness of our
subjects, as to save our conscience, and for to save
and keep our said oath, by the assent of the great men
and other wise men of our council, we have ordained
these things following:

"First, we have commanded all our justices, that they
shall from henceforth do equal law and execution of
right to all our subjects, rich and poor, without having
regard to any person, and without omitting to do right
for any letters or commandment which may come to
them from us, or from any other, or by any other cause.
And if that any letters, writs, or commandments come
to the justices, or to other deputed to do law and right
according to the usage of the realm, in disturbance of
the law, or of the execution of the same, or of right to
the parties, the justices and other aforesaid shall
proceed and hold their courts and processes,
where the pleas and matters be depending before
them, as if no such letters, writs, or commandments
were come to them; and they shall certify us and
our council of such commandments which be
contrary to the law, (that is, "the law of the land,"
or common law,) as afore is said." [30] And to the
intent that our justices, shall do even right to all
people in the manner aforesaid, without more
favor showing to one than to another, we have
ordained and caused our said justices to be sworn,
that they shall not from henceforth, as long as
they shall be in the office of justice, take fee nor
robe of any man, but of ourself, and that they shall
take no gift nor reward by themselves, nor by other,
privily nor apertly, of any man that hath to do before
them by any way, except meat and drink, and that
of small value: and that they shall give no counsel
to great men or small, in case where we be party,
or which do or may touch us in any point, upon
pain to be at our will, body, lands, and goods, to
do thereof as shall please us, in case they do contrary.
And for this cause we have increased the fees of
the same, our justices, in such manner as it ought
reasonably to suffice them." 20 Edward III.,
ch. l. (1346.)

Other statutes of similar tenor have been enacted
as follows:

"It is accorded and established, that it shall not

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