An Essay on the Trial By Jury

Part 3 out of 6

be commanded by the great seal, nor the little seal,
to disturb or delay common right; and though such
commandments do come, the justices shall not
therefore leave (omit) to do right in any point."
St. 2 Edward III., ch. 8. (1328.)

"That by commandment of the great seal, or privy
seal, no point of this statute shall be put in delay;
nor that the justices of whatsoever place it be shall
let (omit) to do the common law, by commandment,
which shall come to them under the great seal, or the
privy seal." 14 Edward III, st. 1, ch. 14. (1340.)

"It is ordained and established, that neither letters
of the signet, nor of the king's privy seal, shall be
from henceforth sent in damage or prejudice of the
realm, nor in disturbance of the law" (the common law).
11 Richard II., ch. 10. (1387.)

It is perfectly apparent from these statutes, and from
the oath administered to the justices, that it was a
matter freely confessed by the king himself, that his
statutes were of no validity, if contrary to the common
law, or "common right."

The oath of the justices, before given, is, I presume,
the same that has been administered to judges in
England from the day when it was first prescribed to
them, (1344,) until now. I do not find from the English
statutes that the oath has ever been changed. The Essay
on Grand Juries, before referred to, and supposed to have
been written by Lord Somers, mentions this oath
(page 73) as being still administered to judges, that is,
in the time of Charles II., more than three hundred years
after the oath was first ordained.

If the oath has never been changed, it follows that
judges have not only never been sworn to support any
statutes whatever of the king, or of parliament, but that,
for five hundred years past, they actually have been
sworn to treat as invalid all statutes that were contrary
to the common law.

SECTION VI. The Coronation Oath.

That the legislation of the king was of no authority over
a jury, is further proved by the oath taken by the kings
at their coronation. This oath seems to have been
substantially the same, from the time of the Saxon kings,
down to the seventeenth century, as will be seen from the
authorities hereafter given.

The purport of the oath is, that the king swears to maintain
the law of the land that is, the common law. In
other words, he swears "to concede and preserve to
the English people the laws and customs conceded to them
by the ancient, just, and pious English kings, * * and
especially the laws, customs, and liberties conceded to
the clergy and people by the illustrious king Edward;" * *
and "the just laws and customs which the common people
have chosen, (quas vulgus elegit)."

These are the same laws and customs which were called
by the general name of "the law of the land," or "the
common law," and, with some slight additions, were
embodied in Magna Carta.

This oath not only forbids the king to enact any statutes
contrary to the common law, but it proves that his statutes
could be of no authority over the consciences of a jury;
since, as has already been sufficiently shown, it was one
part of this very common law itself, that is, of the
ancient "laws, customs, and liberties," mentioned in the
oath, that juries should judge of all questions that came
before them, according to their own consciences,
independently of the legislation of the king.

It was impossible that this right of the jury could subsist
consistently with any right, on the part of the king, to
impose any authoritative legislation upon them. His
oath, therefore, to maintain the law of the land, or the
ancient "laws, customs, and liberties," was equivalent
to an oath that he would never assume to impose laws upon
juries, as imperative rules of decision, or take from
them the right to try all cases according to their own
consciences. It is also an admission that he had no
constitutional power to do so, if he should ever desire
it. This oath, then, is conclusive proof that his legislation
was of no authority with a jury, and that they were
under no obligation whatever to enforce it, unless it
coincided with their own ideas of justice.

The ancient coronation oath is printed with the
Statutes of the Realm, vol. i., p. 168, and is as follows: [31]

TRANSLATION.

"Form of the Oath of the King of England, on his
Coronation.

(The Archbishop of Canterbury, to whom, of right and
custom of the Church of Canterbury, ancient and
approved, it pertains to anoint and crown the kings of
England, on the day of the coronation of the king, and
before the king is crowned, shall propound the
underwritten questions to the king.)

The laws and customs, conceded to the English people
by the ancient, just, and pious English kings, will you
concede and preserve to the same people, with the
confirmation of an oath? and especially the laws, customs,
and liberties conceded to the clergy and people by the
illustrious king Edward?

(And the king shall answer,) I do concede, and will
preserve them, and confirm them by my oath.

Will yon preserve to the church of God, the clergy, and
the people, entire peace and harmony in God, according
to your powers?

(And the king shall answer,) I will.

In all your judgments, will you cause equal and right
justice and discretion to be done, in mercy and truth,
according to your powers?

(And the king shall answer,) I will.

Do you concede that the just laws and customs, which
the common people have chosen, shall be preserved;
and do you promise that they shall be protected by you,
and strengthened to the honor of God, according to
your powers?

(And the king shall answer,) I concede and promise."

The language used in the last of these questions,
"Do you concede that the just laws and customs,
which the common people have chosen, (quas vulgus
elegit,) shall be preserved?" ect., is worthy of especial
notice, as showing that the laws, which were to be
preserved, were not necessarily all the laws which
the kings enacted, but only such of them as the common
people had selected or approved.

And how had the common people made known their
approbation or selection of these laws? Plainly, in no
other way than this that the juries composed of the
common people had voluntarily enforced them.
The common people had no other legal form of making
known their approbation of particular laws.

The word "concede," too, is an important word. In the
English statutes it is usually translated grant as if with
an intention to indicate that "the laws, customs, and
liberties" of the English people were mere privileges,
granted to them by the king; whereas it should be
translated concede, to indicate simply an acknowledgment,
on the part of the king, that such were the laws, customs,
and liberties, which had been chosen and established
by the people themselves, and of right belonged to them,
and which he was bound to respect.

I will now give some authorities to show that the foregoing
oath has, in substance, been the coronation oath from
the times of William the Conqueror, (1066,) down to the
time of James the First, and probably until 1688.

It will be noticed, in the quotation from Kelham, that he
says this oath (or the oath of William the Conqueror) is
"in sense and substance the very same with that which the
Saxon kings used to take at their coronations."

Hale says:

"Yet the English were very zealous for them," (that is, for
the laws of Edward the Confessor,) "no less or otherwise
than they are at this time for the Great Charter; insomuch
that they were never satisfied till the said laws were
reenforced, and mingled, for the most part, with the
coronation oath of king William I., and some of his
successors." 1 Hale's History of Common Law, 157.

Also, "William, on his coronation, had sworn to govern
by the laws of Edward the Confessor, some of which had
been reduced into writing, but the greater part consisted
of the immemorial customs of the realm." Ditto, p. 202,
note L.

Kelham says:

"Thus stood the laws of England at the entry of William I.,
and it seems plain that the laws, commonly called the laws
of Edward the Confessor, were at that time the standing
laws of the kingdom, and considered the great rule of their
rights and liberties; and that the Eriglish were so zealous
for them, 'that they were never satisfied till the said laws
were reenforced, and mingled, for the most part, with the
coronation oath.' Accordingly, we find that this great
conqueror, at his coronation on the Christmas day succeeding
his victory, took an oath at the altar of St. Peter, Westminster,
in sense and substance the very same with that which the
Saxon kings used to take at their coronations. * * And at
Barkhamstead, in the fourth year of his reign, in the presence
of Lanfranc, Archbishop of Canterbury, for the quieting of
the people, he swore that he would inviolably observe the good
and approved ancient laws which had been made by the devout
and pious kings of England, his ancestors, and chiefly by King
Edward; and we are told that the people then departed in good
humor." Kelham's Preliminary Discourse to the Laws of
William the Conqueror. See, also, 1 Hale's History of the
Common Law, 186.

Crabbe says that William the Conqueror "solemnly swore that
he would observe the good and approved laws of Edward the
Confessor." Crabbe's History of the English Law, p. 43.

The successors of William, up to the time of Magna Carta,
probably all took the same oath, according to the custom of the
kingdom; although there may be no historical accounts extant
of the oath of each separate king. But history tells us specially
that Henry I., Stephen, and Henry II., confirmed these ancient
laws and customs. It appears, also, that the barons desired of
John (what he afterwards granted by Magna Carta) "that the laws
and liberties of King Edward, with other privileges granted to the
kingdom and church of England, might be confirmed, as they
were contained in the charters of Henry the First; further alleging,
that at the time of his absolution, he promised by his oath to
observe these very laws and liberties." Echard's History of
England, p. 105 6.

It would appear, from the following authorities, that since
Magna Carta the form of the coronation oath has been
"to maintain the law of the land," meaning that law as
embodied in Magna Carta. Or perhaps it is more probable that
the ancient form has been still observed, but that, as its substance
and purport were "to maintain the law of the land," this latter
form of expression has been used, in the instances here cited, from
motives of brevity and convenience. This supposition is the
more probable, from the fact that I find no statute prescribing a
change in the form of the oath until 1688.

That Magna Carta was considered as embodying "the law of
the land," or "common law," is shown by a statute passed by
Edward I., wherein he "grants," or concedes,

"That the Charter of Liberties and the Charter of the Forest
* * shall be kept in every point, without breach, * * and that our
justices, sheriffs, mayors, and other ministers, which, under
us, have the laws of our land [32] to guide, shall allow the said
charters pleaded before them in judgment, in all their points,
that is, to wit, the Great Charter as the Common Law, and the
Charter of the Forest for the wealth of the realm.

"And we will, that if any judgment be given from henceforth,
contrary to the points of the charters aforesaid, by the justices, or
by any other our ministers that hold plea before them against
the points of the charters, it shall be undone, and holden for
naught." 25 Edward I., ch. 1 and 2. (1297.)

Blackstone also says:

"It is agreed by all our historians that the Great Charter of King
John was, for the most part, compiled from the ancient customs of
the realm, or the laws of Edward the Confessor; by which they
usually mean the old common law which was established under
our Saxon princes." Blackstone's Introduction to the Charters.
See Blackstone's Law Tracts, 289.

Crabbe says:

"It is admitted, on all hands, that it (Magna Carta) contains nothing
but what was confirmatory of the common law, and the
ancient usages of the realm, and is, properly speaking, only an
enlargement of the charter of Henry I., and his successors."
Crabbe's History of the English Law, p. 127.

That the coronation oath of the kings subsequent to Magna Carta
was, in substance, if not in form, "to maintain this law of the
land, or common law," is shown by a statute of Edward Third,
commencing as follows:

"Edward, by the Grace of God, ect., 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 oath are bound to maintain," ect. St. 20 Edward III. (1346.)

The following extract from Lord Somers' tract on Grand Juries
shows that the coronation oath continued the same as late as
1616, (four hundred years after Magna Carta.) He says:

"King James, in his speech to the judges, in the Star Chamber,
Anno 1616, told them, 'That he had, after many years, resolved
to renew his oath, made at his coronation, concerning justice,
and the promise therein contained for maintaining the law of
the land.' And, in the next page save one, says, 'I was sworn to
maintain the law of the land, and therefore had been perjured
if I had broken it. God is my judge, I never intended it.'
"Somers on Grand Juries, p. 82.

In 1688, the coronation oath was changed by act of Parliament,
and the king was made to swear:

"To govern the people of this kingdom of England, and the
dominions thereto belonging, according to the statutes in
Parliament agreed on, and the laws and customs of the
same." St. 1 William and Mary, ch. 6. (1688.)

The effect and legality of this oath will hereafter be
considered. For the present it is sufficient to show, as has
been already sufficiently done, that from the Saxon times
until at least as lately as 1616, the coronation oath has
been, in substance, to maintain the law of the land, or
the common law, meaning thereby the ancient Saxon
customs, as embodied in the laws of Alfred, of Edward
the Confessor, and finally in Magna Carta.

It may here be repeated that this oath plainly proves that
the statutes of the king were of no authority over juries, if
inconsistent with their ideas of right; because it was one
part of the common law that juries should try all causes
according to their own consciences, any legislation of the
king to the contrary notwithstanding.[33]

[1] Hale says:"The trial by jury of twelve men was the usual
trial among the Normans, in most suits; especially in assizes, et
juris utrum." 1 Hale's History of the Common Law, 219

This was in Normandy, before the conquest of England by the
Normans. See Ditto, p. 218.

Crabbe says:"It cannot be denied that the practice of submitting
causes to the decision of twelve men was universal among all the
northern tribes (of Europe) from the very remotest antiquity."
Crabbe's History of the English Law, p. 32.

[2] "The people, who in every general council or assembly could
oppose and dethrone their sovereigns, were in little dread of
their encroachments on their liberties; and kings, who found
sufficient employment in keeping possession of their crowns,
would not likely attack the more important privileges of their
subjects."

[3] This office was afterwards committed to sheriffs. But even
while the court was held by the lord, "the Lord was not judge,
but the Pares (peers) only." Gilbert on the Court of Exchequer,
61-2.

[4] The opinion expressed in the text, that the Witan had no
legislative authority, is corroborated by the following
authorities:

"From the fact that the new laws passed by the king and the Witan
were laid before the shire-mote, (county court,) we should be
almost justified in the inference that a second sanction was
necessary before they could have the effect of law in that
particular county." Durham's Middle Ages, Sec. 2, B. 2, Ch. l.
57 Lardner's Cab. Cyc., 53.

The "second sanction" required to give the legislation of the
king and Witan the effect of law, was undoubtedly, I think, as a
general thing, the sanction of a jury. I know of no evidence
whatever that laws were ever submitted to popular vote in the
county courts, as this author seems to suppose possible. Another
mode, sometimes resorted to for obtaining the sanction of the
people to the laws of the Witan, was, it seems, to persuade the
people themselves to swear to observe them. Mackintoshsays:

"The preambles of the laws (of the Witan) speak of the infinite
number of liegemen who attended, as only applauding the
measures of the assembly. But this applause was neither so
unimportant to the success of the measures, nor so precisely
distinguished from a share in legislation, as those who read history
with a modern eye might imagine. It appears that under Athelstan
expedients were resorted to, to obtain a consent to the law from
great bodies of the people in their districts, which their numbers
rendered impossible in a national assembly. That monarch appears
to have sent commissioners to hold shire-gemotes or county
meetings, where they proclaimed the laws made by the king and
his counsellors, which, being acknowledged and sworn to at these
folk-motes (meetings of the people) became, by their assent,
completely binding on the whole nation." Mackintosh's Hist. of
England, Ch. 2. 45 Lardner's Cab. Cc., 75.

[5] Page 31.

[6] Hallam says, "It was, however, to the county court that an
English freeman chiefly looked for the maintenance of his civil
rights." 2 Middle Ages, 392.

Also, "This (the county court) was the great constitutional
judicature in all ques- tions of civil right." Ditto, 395.
Also, "The liberties of these Anglo-Saxon thanes were chiefly
secured, next to their swords and their free spirits, by the
inestimable right of deciding civil and criminal suits in their
own county courts." Ditto, 899.

[7] "Alfred may, in one sense, be called the founder of these
laws, (the Saxon,) for until his time they were an unwrittencode,
but he expressly says, 'that I, Alfred, collected the good laws of
our forefathers into one code, and also I wrote them down'
-- which is a decisive fact in the history of our laws well
worth noting." Introduction to Gilbert's History of the Common
Pleas, p. 2, note.

Kelham says, "Let us consult our own lawyers and historians, and
they will tell as that Alfred, Edgar, and Edward the Confessor,
were the great compilers and restorers of the English Laws."
Kelham's Preliminary Discourse to the Laws of William the
Conqueror, p. 12. Appendix to Kelham's Dictionary of the Norman
Language.

"He (Alfred) also, like another Theodosius, collected the various
customs that he found dispersed in the kingdom, and reduced and
digested them into one uniform system, or code of laws, in his
som-bec, or liber judicialis (judicial book). This he compiled
for the use of the court baron, hundred and county court, the
court-leet and sheriff's toarn, tribunals which he established
for the trial of all causes, civil and criminal, in the very
districts wherein the complaints arose." 4 Blackstone, 411.

Alfred himself says, "Hence I, King Alfred, gathered these
together, and commanded many of those to be written down which
our forefathers observed those which I liked and those which
I did not like, by the advice of my Witan, I threw aside. For I
durst not venture to set down in writing over many of my own,
since I knew not what among them would please those that should
come after us. But those which I met with either of the days of
me, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who
was the first of the English who received baptism thse which
appeared to me the justest I have here collected, and abandoned
the others. Then I, Alfred, King of the West Saxons, showed these
to all my Witan, and they then said that they were all willing to
observe them." Laws of Alfred, translated by R. Price, prefixed
to Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc.

"King Edward * * projected and begun what his grandson, King
Edward the Confessor, afterwards completed, viz., one uniform
digest or body of laws to be observed throughout the whole
kingdom, being probably no more than a revival of King Alfred's
code, with some improvements suggested by necessity and
experience, particularly the incorporating some of the British,
or, rather, Mercian customs, and also such of the Danish
(customs) as were reasonable and approved, into the West Saxon
Lage, which was still the ground-work of the whole. And this
appears to be the best supported and most plausible conjecture,
(for certainty is not to be expected,) of the rise and original
of that admirable system of maxims and unwritten customs which
is now known by the name of the common law, as extending its
authority universally over all the realm, and which is doubtless
of Saxon parentage." 4 Blackstone, 412.

"By the Lex Terrae and Lex Regni is understood the laws of
Edward the Confessor, confirmed and enlarged as they were by William
the Conqueror; and this Constitution or Code of Laws is what even to
this day are called 'The Common Law of the Land.'" Introduction
to Gilbert's History of the Common Pleas, p. 22, note.

[8] Not the conqueror of the English people, (as the friends of
liberty maintain,) but only of Harold the usurper. See Hale's
History of the Common, Law, ch. 5.

[9] For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing institutions, the
Anglo-Saxon statutes are concise and technical, alluding to the
law which was then living and in vigor, rather than defining it.
The same clauses and chapters are often repeated word, for word,
in the statutes of subsequent kings, showing that enactments
which bear the appearance of novelty are merely declaratory.
Consequently the appearance of a law, seemingly for the first
time, is by no means to be considered as a proof that the matter
which it contains is new; nor can we trace the progress of the
Anglo-Saxon institutions with any degree of certainty, by
following the dates of the statutes in which we find them first
noticed. All arguments founded on the apparent chronology of the
subjects included in the laws, are liable to great fallacies.
Furthermore, a considerable portion of the Anglo-Saxon law was
never recorded in writing. There can be no doubt but that the
rules of inheritance were well established and, defined; yet we
have not a single law, and hardly a single document from which
the course of the descent of land can be inferred. * * Positive
proof cannot be obtained of the commencement of any institution,
because the first written law relating to it may possibly be
merely confirmatory or declaratory; neither can the non-existence
of any institution be inferred from the absence of direct
evidence. Written laws were modified and controlled by customs
of which no trace can be discovered until after the lapse of
centuries, although those usages must have been in constant vigor
during the long interval of silence." 1 Palgrave's Rise and
Progress of the English Commonwealth, 58-9.

[10] Rapin says, "The customs now practised in England are, for
the most part, the same as the Anglo-Saxons brought with them
from Germany." Rapin's Dissertation on the Government of the
Anglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discourse
before named.

[11] Hallam says, "The county of Sussex contains sixty-five
('hundreds'); that of Dorset forty-three; while Yorkshire has
only twenty-six; and Lancashire but six." 2 Middle Ages, 391.

[12] Excepting also matters pertaining to the collection of the
revenue, which were determined in the king's court of exchequer.
But even in this court it was the law "that none be amerced but
by his peers." Mirror of Justices, 49.

[13] "For the English laws, although not written, may, as it
should seem, and that without any absurdity, be termed laws,
(since this itself is law that which pleases the prince has the
force of law,) I mean those laws which it is evident were
promuulgated by the advice of the nobles and the authority of the
prince, concerning doubts to be settled in their assembly. For if
from the mere want of writing only, they should not be considered
laws, then, unquestionably, writing would seem to confer more
authority upon laws themselves, than either the equity of the
persons constituting, or the reason of those framing them."
Glanville's Preface, p. 38. (Glanville was chief justice of Henry
II., 1180.) 2 Turner's History of the Anglo-Saxons, 280.

[14] Mackintosh's History of England, ch. 3. Lardner's Cabinet
Cyclopedia, 286.

[15] If the laws of the king were received as authoritative by
the juries, what occasion was there for his appointing special
commissioners for the trial of offences, without the intervention
of a jury, as he frequently did, in manifest and acknowledged
violation of Magna Carta, and "the law of the land?" These
appointments were undoubtedly made for no other reason than that
the juries were not sufficiently subservient, but judged
according to their own notions of right, instead of the will of
the king whether the latter were expressed in his statutes, or
by his judges.

[16] Of course, Mr. Reeve means to be understood that, in the
hundred court, and court-leet, the jurors were the judges, as he
declares them to have been in the county court; otherwise the
"bailiff" or "steward" must have been judge.

[17] The jurors were sometimes called " assessors," because they
assessed, or determined the amount of fines and amercements to
be imposed.

[18] "The barons of the Hundred" were the freeholders. Hallam
says: "The word baro, originally meaning only a man, was of very
large significance, and is not unfrequently applied to common
freeholders, as in the phrase court-baron." 3 Middle Ages,
14-15.

Blackstone says: "The court-baron * * is a court of common law,
and it is the court of the barons, by which name the freeholders
were sometimes anciently called; for that it is held before the
freeholders who owe suit and service to the manor." 3
Blackstone, 33.

[19] The ancient jury courts kept no records, because those who
composed the courts could neither make nor read records. Their
decisions were preserved by the memories of the jurors and other
persons present.

[20] Stuart says:

"The courts, or civil arrangements, which were
modelled in Germany, preserved the independence of the people;
aud having followed the Saxons into England, and continuing their
importance, they supported the envied liberty we boast of.

"As a chieftain led out his retainers to the field, and governed
them during war; so in peace he summoned them together, and
exerted a civil jurisdiction. He was at once their captain and
their judge. They constituted his court; and having inquired with
him into the guilt of those of their order whom justice had
accused, they assisted him to enforce his decrees.

"This court (the court-baron) was imported into England; but the
innovation which conquest introduced into the fashion of the
times altered somewhat its appearance.

"The head or lord of the manor called forth his attendants to his
hall. * * He inquired into the breaches of custom, and of
justice, which were committed within the precincts of his
territory, and with his followers, who sat with him as judges, he
determined in all matters of debt, and of trespass to a certain
amount. He possessed a similar jurisdiction with the chieftain in
Germany, and his tenants enjoyed an equal authority with the
German retainers.

"But a mode of administration which intrusted so much power to
the great could not long be exercised without blame or injustice.
The German, guided by the candor of his mind, and entering into
all his engagements with the greatest ardor, perceived not, at
first, that the chieftain to whom he submitted his disputes might
be swayed, in the judgments he pronounced, by partiality,
prejudice, or interest; and that the influence he maintained with
his followers was too strong to be restrained by justice.
Experience instructed him of his error", he acknowledged the
necessity of appealing from his lord; and the court of the
Hundred was erected.

"This establishment was formed both in Germany and England, by
the inhabitants of a certain division, who extened their
jurisdiction over the territory they occupied. [21] They bound
themselves under a penalty to assemble at stated times; and
having elected the wisest to preside over them, they judged, not
only all civil and criminal matters, but of those also which
regarded religion and the priesthood. The judicial power thus
invested in the people was extensive; they were able to preserve
their rights, and attended this court in arms.

[21] "It was the freemen in Germany, and the possessors of land
in England, who were suitors (jurors) in the hundred court. These
ranks of men were the same. The alteration which had happened in
relation to property had invested the German freemen with land or
territory."

"As the communication, however, and intercourse, of the
individuals of a German community began to be wider, and more
general, as their dealings enlarged, and as disputes arose among
the members of different hundreds, the insufficiency of these
courts for the preservation of order was gradually perceived. The
shyre mote, therefore, or county court, was instituted; and it
formed the chief source of justice both in Germany and England.

"The powers, accordingly, which had been enjoyed by the court of
the hundred, were considerably impaired. It decided no longer
concerning capital offences; it decided not concerning matters of
liberty, and the property of estates, or of slaves; its
judgments, in every case, became subject to review; and it lost
entirely the decision of causes, when it delayed too long to
consider them.

"Every subject of claim or contention was brought, in the first
instance, or by appeal, to the county court; and the earl, or
eorldorman, who presided there, was active to put the laws in
execution. He repressed the disorders which fell out within the
circuit of his authority; and the least remission in hi duty, or
the least fraud he committed, was complained of and punished. He
was elected from among the great, and was above the temptation
of
a bribe; but, to encourage his activity, he was presented with a
share of the territory he governed, or was entitled to a
proportion of the fines and profits of justice. Every man, in his
district, was bound to inform him concerning criminals, and to
assist him to bring them to trial; and, as in rude and violent
times the poor and helpless were ready to be oppressed by the
strong, he was instructed particularly to defend them.

"His court was ambulatory, and assembled only twice a year,
unless the distribution of justice required that its meetings
should be oftener. Every freeholder in the county was obliged to
attend it; and should he refuse this service, his possessions
were seized, and he was forced to find surety for his appearance.
The neighboring earls held not their courts on the same day; and,
what seems very singular, no judge was allowed, after meals, to
exercise his office.

"The druids also, or priests, in Germany, as we had formerly
occasion to remark, and the clergy in England, exercised a
jurisdiction in the hundred and county courts. They instructed
the people in religious duties, and in matters regarding the
priesthood; and the princes, earls, or eorldormen, related to
them the laws and customs of the community. These judges were
mutually a check to each other; but it was expected that they
should agree in their judgments, and should willingly unite their
efforts for the public interest. [22]

"The meeting (the county court) was opened with a discourse by
the bishop, explaining, out of the Scriptures and ecclesiastical
canons, their several duties as good Christians and members of
the church. After this, the alderman, or one of his assessors,
made a discourse on the laws of the land, and the duties of good
subjects and good citizens. When these preliminaries were over,
they proceede to try and determine, first the causes of the
church, next the pleas of the crown, and last of all the
controversies of private parties." 8 Henry's History of Great
Britain, 348.

This view is corroborated by Tyrrell's Introduction to the
History of England; p. 83-84, and by Spence's Origin of the Laws
and Political Institutions of Modern Europe, p. 447, and the note
on the same page. Also by a law of Canute to this effect, In
every county let there be twice a year an assembly, whereat the
bishop and the earl shall be present, the one to instruct the
people in divine, the other in human, laws. Wilkins, p. 136.

"But the prince or earl performed not, at all times, in person,
the obligations of his office. The enjoyment of ease and of
pleasure, to which in Germany he had delivered himself over,
when disengaged from war, and the mean idea he conceived
of the drudgery of civil affairs, made him often delegate to an
inferior person the distribution of justice in his district. The
same sentiments were experienced by the Saxon nobility;
and the service which they owed by their tenures, and the high
employments they sustained, called them often from the
management of their counties. The progress, too, of commerce,
giving an intricacy to cases, and swelling the civil code, added
to the difficulty of their office, and made them averse to its duties.
Sheriffs, therefore, or deputies, were frequently appointed to
transact their business; and though these were at first under
some subordination to the earls, they grew at length to be
entirely independent of them. The connection of jurisdiction and
territory ceasing to prevail, and the civil being separated from
the ecclesiastical power, they became the sole and proper
officers for the direction of justice in the counties.

"The hundred, however, and county courts were not equal of
themselves for the purposes of jurisdiction and order. It was
necessary that a court should be erected, of supreme authority,
where the disputes of the great should be decided, where the
disagreeing sentiments of judges should be reconciled, and where
protection should be given to the people against their fraud and
injustice.

"The princes accordingly, or chief nobility, in the German
communities, assembled together to judge of such matters. The
Saxon nobles continued this prerogative; and the king, or, in his
absence, the chief justiciary, watched over their deliberations.
But it was not on every trivial occasion that this court
interested itself. In smaller concerns, justice was refused
during three sessions of the hundred, and claimed without effect,
at four courts of the county, before there could lie an appeal to
it.

"So gradually were these arrangements established, and so
naturally did the varying circumstances in the situation of the
Germans and Anglo-Saxons direct those successive improvements
which the preservation of order, and the advantage of society,
called them to adopt. The admission of the people into the courts
of justice preserved, among the former, that equality of ranks
for which they were remarkable; and it helped to overturn, among
the latter, those envious distinctions which the feudal system
tended to introduce, and prevented that venality in judges, and
those arbitrary proceedings, which the growing attachment to
interest, and the influence of the crown, might otherwise have
occasioned." Stuart on the Constitution of England, p. 222 to
245.

"In the Anglo-Saxon period, accordingly, twelve only were
elected; and these, together with the judge, or presiding officer
of the district, being sworn to regard justice, and the voice of
reason, or conscience, all causes were submitted to them."
Ditto, p. 260.

"Before the orders of men were very nicely disinguished, the
jurors were elected from the same rank. When, however, a regular
subordination of orders was established, and when a knowledge of
property had inspired the necessitous with envy, and the rich
with contempt, every man was tried by his equals. The same spirit
of liberty which gave rise to this regulation attended its progress.
Nor could monarchs assume a more arbitrary method of proceeding.
'I will not' (said the Earl of Cornwall to his sovereign) 'render up
my castles, nor depart the kingdom, but by judgment of my
peers.' Of this institution, so wisely calculated for the preservation
of liberty, all our, historians have pronounced the eulogium." --
Ditto, p. 262-3.

Blackstone says:

"The policy of our ancient constitution, as regulated and
established by the great Alfred, was to bring justice home to
every man's door, by constituting as many courts of judicature
as there are manors and towns in the kingdom; wherein injuries
were redressed in an easy and expeditious manner, by the
suffrage of neighbors and friends. These little courts, however,
communicated with others of a larger jurisdiction, and those
with others of a still greater power; ascending gradually from
the lowest to the supreme courts, which were respectively
constituted to correct the errors of the inferior ones, and to
determine such causes as, by reason of their weight and
difficulty, demanded a more solemn discussion. The course
of justice flowing in large streams from the king, as the
fountain, to his superior courts of record; and being then
subdivided into smaller channels, till the whole and every part
of the kingdom were plentifully watered and refreshed. An
institution that seems highly agreeable to the dictates of
natural reason, as well as of more enlightened policy.

"These inferior courts, at least the name and form of them, still
cntinue in our legal constitution; but as the superior courts of
record have, in practice, obtained a concurrent original
jurisdiction, and as there is, besides, a power of removing
plaints or actions thither from all the inferior jurisdictions;
upon these accounts (among others) it has happened that these
petty tribunals have fallen into decay, and almost into oblivion;
whether for the better or the worse may be matter of some
speculation, when we consider, on the one hand, the increase of
expense and delay, and, on the other, the more able and impartial
decisions that follow from this change of jurisdiction.

"The order I shall observe in discoursing on these several
courts, constituted for the redress of civil injuries, (for with
those of a jurisdiction merely criminal I shall not at present
concern myself, [23]) will be by beginning with the lowest, and
those whose jurisdiction, though public and generally dispersed
through the kingdom, is yet (with regard to each particular
court) confined to very narrow limits; and so ascending gradually
to those of the most extensive and transcendent power." -- 3
Blackstone, 30 to 32.

"The court-baron is a court incident to every manor in the
kingdom, to beholden by the steward within the said manor. This
court-baron is of two natures; the one is a customary court, of
which we formerly spoke, appertaining entirely to the
copy-holders, in which their estates are transferred by surrender
and admittance, and other matters transacted relative to their
tenures only. The other, of which we now speak, is a court of
common law, and it is a court of the barons, by which name the
freeholders were sometimes anciently called; for that it is held
by the freeholders who owe suit and service to th manor, the
steward being rather the registrar than the judge. These courts,
though in their nature distinct, are frequently confounded
together. The court we are now considering, viz., 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 is to determine, by writ of right, all controversies
relating to the right of lands within the manor. It may also hold
plea of any personal actions, of debt, trespass in the case, or
the like, where the debt or damages do not amount to forty
shillings; which is the same sum, or three marks, that bounded
the jurisdiction of the ancient Gothic courts in their lowest
instance, or fierding courts, so called because four were
institute within every superior district or hundred." 8
Blackstone, 38, 34.

"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 are here also the judges, and the steward the
registrar, as in the case of a court-baron. It is likewise no
court of record, resembling the former at all points, except that
in point of territory it is of greater jurisdiction. This is said
by Sir Edward Coke to have been derived out of the county court
for the ease of the people, that they might have justice done to
them at their own doors, without any charge or loss of time; but
its institution was probably coeval with that of hundreds
themselves, which were formerly observed to have been
introduced, though not invented, by Alfred, being derived from
the polity of the ancient Germans. The centeni, we may remember,
were the principal inhabitants of a district composed of different
villages, oriinally in number a hundred, but afterward only called
by that name, and who probably gave the same denomination
to the district out of which they were chosen. Caesar speaks
positively of the judicial power exercised in their hundred
courts and courts-baron. 'Princeps regiorum atque pagorum' (which
we may fairly construe the lords of hundreds and manors) 'inter
suos jus dicunt, controversias que minuunt.' (The chiefs of the
country and the villages declare the law among them, and abate
controversies.) And Tacitus, who had examined their constitution
still more attentively, informs us not only of the authority of
the lords, but that of the centeni, the hundreders, or jury, who
were taken out of the common freeholders, and had themselves a
share in the determination. ' Eliguntur in conciliis et
principes, qui jura per pagos vicosque reddunt, centenii
singulis, ex plebe comites comcilium simul et auctoritas adsunt.
(The princes are chosen in the assemblies, who administer the
laws throughout the towns and villages, and with each one are
associated an hundred companions, taken from the people, for
purposes both of counsel and authority.) This hundred court was
denominated haereda in the Gothic constitution. But this court,
as causes are equally liable to removal from hence as from the
common court-baron, and by the same writs, and may also be
reviewed by writ of false judgment, is therefore fallen into
equal disuse with regard to the trial of actions." 8 Blackstone, 34,
85.

"The county court is a court incident to the jurisdiction of the
sheriff. It is not a court of record, but may hold pleas of debt,
or damages, under the value of forty shillings; over some of
which causes these inferior courts have, by the express words of
the statute of Gloucester, (6 Edward I., eh. 8,) a jurisdicton
totally exclusive of the king's superior courts. * * The county
court may also hold plea of many real actions, and of all
personal actions to any amount, by virtue of a special writ,
called a justicies, which is a writ empowering the sheriff, for
the sake of despatch, to do the samee justice in his county court
as might otherwise be had at Westminster. The freeholders of the
county court are the real judges in this court, and the sheriff
is the ministerial ofhcer. * * In modern times, as proceedings
are removable from hence into the king's superior courts, by writ
of pone or recordari, in the same manner as from hundred courts
and courts-baron, and as the same writ of false judgment may be
had in nature of a writ of error, this has occasioned the same
disuse of bringing actions therein." 3 Blackstone, 36, 37.

"Upon the whole, we cannot but admire the wise economy and
admirable provision of our ancestors in settling the distribution
of justice in a method so well calculated for cheapness,
expedition, and ease. By the constitution which they established,
all trivial debts, and injuries of small consequence, were to be
recovered or redressed in every man's own county, hundred, or
perhaps parish." 3 Blackstone, 59.

[22] It would be wholly erroneous, I think, to infer from this
statement of Stuart, that either the "priests, princes, earls, or
eorldormen" exercised any authority over the jury in the trial of
causes, in the way of dictating the law to them. Henry's account
of this matter doubtless gives a much more accurate
representation of the truth. He says that anciently

[23] There was no distinction between the civil and criminal
courts, as to the rights or powers of juries.

[24] This quaint and curious book; (Smith's Commonwealth
of England) describes the minutiae of trials, giving in detail
the mode of impaneling the jury and then the conduct of the
lawyers, witnesses, and court I give the following extracts,
tending to show that the judges impose no law upon the juries,
in either civil or criminal cases but only require them to
determine the causes according to their consciences.

In civil causes he says:

"When it is thought that it is enough pleaded before them,
and the witnesses have said what they can, one of the judges,
with a brief and pithy recapitulation, reciteth to the twelve
in sum the arguments of the sergeants of either side, that
which the witnesses have declared, and the chief points of the
evidence showed in writing, and once again putteth them in
mind of the issue, and sometime giveth it them in writing,
delivering to them the evidence which is showed on either part,
if any be, (evidence here is called writings of contracts,
authentical after the manner of England, that is to say, written,
sealed, and delivered,) and biddeth them go together." p. 74.

This is the whole account given of the charge to the jury.

In criminal eases, after the witnesses have been heard, and
the prisoner has said what he pleases in his defence, the book
proceeds:

"When the judge hath heard them say enough, he asketh if
they can say any more. If they say no, then he turneth his speech
to the inquest. 'Good men, (saith he,) ye of the inquest, ye have
heard what these men say against the prisoner. You have also
heard what the prisoner can say for himself. Have an eye to
your oath, and to your duty, and do that which God shall put
in your minds to the discharge of your consciences, and mark
well what is said.' " p. 92.

This is the whole account given of the charge in a criminal ease.

The following statement goes to confirm the same idea, that
jurors in England have formerly understood it to be their right and
duty to judge only according to their consciences, and not to
submit to any dictation from the court, either as to law or fact.

"If having pregnant evidence, nevertheless, the twelve do
acquit the malefactor which they will do sometime, especially if
they perceive either one of the justices or of the judges, or some
other man, to pursue too much and too maliciously the death of the
prisoner, * * the prisoner escapeth; but the twelve (are) not only
rebuked by the judges, but also threatened of punishment; and
many times commanded to appear in the Star-Chamber, or before the
Privy Council for the matter. But this threatening chanceth oftener
than the execution thereof; and the twelve answer with most
gentle words, they did it according to their consciences, and
pray the judges to be good unto them, they did as they thought
right, and as they accorded all, and so it passeth away for the
most part." p. 100.

The account given of the trial of a peer of the realm corroborates
the same point:

"If any duke, marquis, or any other of the degrees of a baron,
or above, lord of the Parliament, be appeached of treason, or any
other capital crime, he is judged by his peers and equals; that,
is, the yeomanry doth not go upon him, but an inquest of the Lords
of Parliament, and they give their voice not one for all, but each
severally as they do in Parliament being (beginning) at the
youngest lord. And for judge one lord sitteth, who is constable of
England for that day. The judgment once given, he breaketh his
staff, and abdicateth his office. In the rest there is no difference
from that above written," (that is, in the case of a freeman.) p. 98.

[25] "The present form of the jurors' oath is that they shall 'give a
true verdict according to the evidence.' At what time this form was
introduced is uncertain; but for several centuries after the Conquest,
the jurors, both in civil and criminal cases, were sworn merely to
speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4,
p. 287, 291; Britton, p. 135.) Hence their decision was accurately
termed veredictum, or verdict, that is, ' a thing truly said'; whereas
the phrase 'true verdict' in the modern oath is not an accurate
expression." Political Dictionary, word Jury.

[26] Of course, there can be no legal trial by jury, in either civil or
criminal cases, where the jury are sworn to try the cases "according
to law."

[27] Coke, as late as 1588, admits that amercements must be fixed by the
peers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without
success, as it seems to me, to show a difference between fines and
amercements. The statutes are very numerous, running through the
three or four hundred years immediately succeeding Magna Carta,
in which fines, ransoms, and amercements are spoken of as if they
were the common punishments of offences, and as if they all meant the
same thing. If, however, any technical difference could be made
out between them, there is clearly none in principle; and the word
amercement, as used in Magna Carta, must be taken in its most
comprehensive sense.

[28] "Common right" was the common law. 1 Coke's
Inst. 142 a. 2 do. 55, 6.

[29] The oath of the justices is in these words:"Ye shall
swear, that well and lawfully ye shall serve our lord the
king and his people, in the office of justice, and that
lawfully ye shall counsel the king in his business, and that
ye shall not counsel nor assent to anything which may
turn him in damage or disherison in any manner, way, or
color. And that ye shall not know the damage or
disherison of him, whereof ye shall not cause him to be
warned by yourself, or by other; and that ye shall do
equal law and execution of right to all his subjects, rich
and poor, without having regard to any person. And that
ye take not by yourself, or by other, privily nor apertly,
gift nor reward of gold nor silver, nor of any other
thing that may turn to your profit, unless it be meat or
drink, and that of small value, of any man that shall
have any plea or process hanging before you, as long
as the same process shall be so hanging, nor after for
the same cause. And that ye take no fee, as long as ye
shall be justice, nor robe of any man great or small, but
of the king himself. And that ye give none advice or
counsel to no man great or small, in no case where the king
is party. And in case that any, of what estate or condition
they be, come before you in your sessions with force
and arms, or otherwise against the peace, or against the
form of the statute thereof made, to disturb execution
of the common law," [mark the term, "common law,")
"or to menace the people that they may not pursue the
law, that ye shalt cause their bodies to be arrested and
put in prison; and in case they be such that ye cannot
arrest them, that ye certify the king of their names, and
of their misprision, hastily, so that he may thereof
ordain a convenable remedy. And that ye by yourself,
nor by other, privily nor apertly, maintain any plea or
quarrel hanging in the king's court, or elsewhere in the
country. And that ye deny no man common right by
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
" before mentioned,) "that ye do nothing by such
letters, but certify the king thereof, and proceed to
execute the law," (the "common law" before mentioned,)
"notwithstanding the same letters. And that ye shall
do and procure the profit of the king and of his crown,
with all things where ye may reasonably do the
same. And in case ye be from henceforth found in
default in any of the points aforesaid, ye shall be at the
king's will of body, lands, and goods, thereof to be
done as shall please him, as God you help and all
saints." 18 Edward III., st. 4. (1344.)

[30] That the terms "Law" and "Right," as used
in this statute, mean the common law, is shown
by the preamble, which declares the motive of
the statute to be that "the Law of the Land,
(the common law,) which we (the king) by our
oath are bound to maintain," may be the better
kept, &.

[31] The following is a copy of the original:

"Forma Juramenti Regis Anglicae in Coronacione sua:

(Archiepiscopus Cantuariae, ad quo de jure et consuetudine
Ecclesiae Cantuariae, antiqua et approbata, pertinet
Reges Angliae inungere et coronare, die coronacionis
Regis, anteque Rex coronetur, faciet Regi Interrogationes
subscriptas.)

Si leges et consuetudines ab antiquis justis et Deo
devotis Regibus plebi Anglicano concessas, cum
sacramenti confirmacione eidem plebi concedere
et servare (volueris:) Et praesertim leges et
consuetudines et libertates a glorioso Rege Edwardo
clero populoque concessas ?

(Et respondeat Rex,) Concedo et servare volo, et
sacramento confirmare.

Servabis Ecclesiae Dei, Cleroque, et Populo, pacem
ex integro et concordiam in Deo secundum vires tuas ?

(Et respondeat Rex,) Servabo.

Facies fieri in omnibus Judieiis tuis equam et rectam
justioiam, et discreeionem, in misericordia et veritate,
secundum vires tuas?

(Et respondeat Rex,) Faciam.

Concedis justas, leges et consuetudines esse tenendas,
et promittis per te eas esse protegendas, et ad honorem
Dei corroborandas, quas vulgus elegit, secundum vires
tuas ?

(Et respondeat Rex,) Concedo et promitto."

[32] It would appear, from the text, that the Charter of Liberties
and the Charter of the Forest were sometimes called "laws of the
land."

[33] As the ancient coronation oath, given in the text,
has come down from the Saxontimes, the following
remarks of Palgrave will be pertinent, in connection
with the oath, as illustrating the fact that, in those times,
no special authority attached to the laws of the king:

"The Imperial Witenagemot was not a legislative
assembly, in the strict sense of the term, for the whole
Anglo-Saxon empire. Promulgating his edicts amidst
his peers and prelates, the king uses the language of
command; but the theoretical prerogative was modified
by usage, and the practice of the constitution required
that the law should be accepted by the legislatures
(courts) of the several kingdoms. * * The 'Basileus'
speaks in the tone of prerogative: Edgar does not
merely recommend, he commands that the law shall be
adopted by all the people, whether English, Danes, or
Britons, in every part of his empire. Let this statute be
observed, he continues, by Earl Oslac, and all the host
who dwell under his government, and let it be transmitted
by writ to the ealdormen of the other subordinate states.
And yet, in defiance of this positive iujunction, the
laws of Edgar were not accepted in Mercia until the reign
of Canute the Dane. It might be said that the course
so adopted may have been an exception to the general rule;
but in the scanty and imperfect annals of Anglo-Saxon
legislation, we shall be able to find so many examples
of similar proceedings, that this mode of enactment
must be considered as dictated by the constitution of
the empire. Edward was the supreme lord of the
Northumbrians, but more than a century elapsed before
they obeyed his decrees. The laws of the glorious
Athelstane had no effect in Kent, (county,) the
dependent appanage of his crown, until sanctioned
by the Witan of the shire (county court). And the power of
Canute himself, the 'King of all England,' does not
seem to have compelled the Northumbrians to
receive his code, until the reign of the Confessor,
when such acceptance became a part of the compact
upon the accession of a new earl.

Legislation constituted but a small portion of the
ordinary business transacted by the Imperial
Witenagemot. The wisdom of the assembly was
shown in avoiding unnecessary change. Consisting
principally of traditionary usages and ancestorial customs,
the law was upheld by opinion. The people considered
their jurisprudence as a part of their inheritance.
Their privileges and their duties were closely conjoined;
most frequently, the statutes themselves were only
affirmances of ancient customs, or declaratory enactments.

In the Anglo-Saxon commonwealth, therefore, the
legislative functions of the Witenagemot were of far
less importance than the other branches of its authority.
* * The members of the Witenagemot were the ' Pares Curiae '
(Peers of Court) of the kingdom. How far, on these occasions,
their opinion or their equity controlled the power of the crown,
cannot be ascertained. But the form of inserting their names
in the 'Testing Clause' was retained under the
Anglo-Norman reigns; and the sovereign, who submitted
his Charter to the judgment of the Proceres, professed to
be guided by the opinion which they gave. As the 'Pares'
of the empire, the Witenagemot decided' the disputes
between the great vassals of the crown. * * The jurisdiction
exercised in the Parliament of Edward I., when the barony
of a Lord-Marcher became the subject of litigation, is
entirely analogous to the proceedings thus adopted by the great
council of Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the
ealdormen, and the optimates passed judgment upon all great
offenders.* *

The sovereign could not compel the obedience of the different
nations composing the Anglo-Saxon empire. Hence, it
became more necessary for him to conciliate their
opinions, if he solicited any service from a vassal prince or
a vassal state beyond the ordinary terms of the compact;
still more so, when he needed the support of a free burgh or
city. And we may view the assembly (the Witenagemot)
as partaking of the character of a political congress, in
which the liegemen of the crown, or the communities
protected by the ' Basileus,' (sovereign,) were asked or
persuaded to relieve the exigences of the state, or to consider
those measures which might be required for the common weal.
The sovereign was compelled to parley with his dependents,

It may be doubted whether any one member of the empire had
power to legislate for any other member. The Regulus of Cumbria
was unaffected by the vote of the Earl of East Angliae, if
he chose to stand out against it. These dignitaries
constituted a congress, in which the sovereign could
treat more conveniently and effectually with his vassals
than by separate negotiations. * * But the determinations
of the Witan bound those only who were present, or who
concurred in the proposition; and a vassal denying his assent
to the grant, might assert that the engagement which he
had contracted with his superior did not involve any
pecuniary subsidy, but only rendered him liable to perform
service in the field." 1 Palgrave's Rise and Progress of the
English Commonwealth, 637 to 642.

CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN
CIVIL SUITS.

The evidence already given in the preceding chapters proves that
the rights and duties of jurors, in civil suits, were anciently
the same as in criminal ones; that the laws of the king were of
no obligation upon the consciences of the jurors, any further
than the laws were seen by them to be just; that very few laws
were enacted applicable to civil suits; that when a new law was
enacted, the nature of it could have been known to the jurors
only by report, and was very likely not to be known to them at
all; that nearly all the law involved in civil suits was
unwritten; that there was usually no one in attendance upon
juries who could possibly enlighten them, unless it were
sheriffs, stewards, and bailiffs, who were unquestionably too
ignorant and untrustworthy to instruct them authoritatively; that
the jurors must therefore necessarily have judged for themselves
of the whole case; and that, as a general rule, they could judge
of it by no law but the law of nature, or the. principles of
justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that "they would
make known the truth according to their consciences," implies
that the jurors were above the authority of all legislation. The
modern oath, in England, viz., that they "will well and truly try
the issue between the parties, and a true verdict give, according
to the evidence," implies the same thing. If the laws of the king
had been binding upon a jury, they would have been sworn to try
the cases according to law, or according to the laws.

The ancient writs, in civil suits, as given in Glanville, (within
the half century before Magna Carta,) to wit, "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 in question," indicate that the jurors
judged of the whole matter on their consciences only.

The language of Magna Carta, already discussed, establishes
the same point; for, although some of the words, such as
"outlawed," and "exiled," would apply only to criminal cases,
nearly the whole chapter applies as well to civil as to criminal
suits. For example, how could the payment of a debt ever be
enforced against an unwilling debtor, if he could neither be
"arrested, imprisoned, nor deprived of his freehold," and if the
king could neither "proceed against him, nor send any one against
him, by force or arms" ? Yet Magna Carta as much forbids that
any of these things shall be done against a debtor, as against a
criminal, except according to, or in execution of, " a judgment
of his peers, or the law of the land," a provision which, it
has been shown, gave the jury the free and absolute right to give
or withhold "judgment" according to their consciences,
irrespective of all legislation.

The following provisions, in the Magna Carta of John, illustrate
the custom of referring the most important matters of a civil
nature, even where the king was a party, to the determination of
the peers, or of twelve men, acting by no rules but their own
consciences. These examples at least show that there is nothing
improbable or unnatural in the idea that juries should try all
civil suits according to their own judgments, independently of
all laws of the king.

Chap. 65. "If we have disseized or dispossessed the Welsh of any
lands, liberties, or other things, without the legal judgment of
their peers, they shall be immediately restored to them. And if
any dispute arises upon this head, the matter shall be determined
in the Marches, [1] by the judgment of their peers," &c;.

Chap. 68. " We shall treat with Alexander, king of Scots,
concerning the restoring of his sisters, and hostages, and rights
and liberties, in the same form and manner as we shall do to the
rest of our barons of England; unless by the engagements, which
his father William, late king of Scots, hath entered into with
us, it ought to be otherwise; and this shall be left to the
determination of his peers in our court."

Chap. 56. "All evil customs concerning forests, warrens, and
foresters, warreners, sheriffs, and their officers, rivers and
their keepers, shall forthwith be inquired into in each county,
by twelve knights of the same shire, chosen by the most
creditable persons in the same county, and upon oath; and within
forty days after the said inquest, be utterly abolished, so as
never to be restored."

There is substantially the same reason why a jury ought to judge
of the justice of laws, and hold all unjust laws invalid, in
civil suits, as in criminal ones. That reason is the necessity of
guarding against the tyranny of the government. Nearly the same
oppressions can be practised in civil suits as in criminal ones.
For example, individuals may be deprived, of their liberty, and
robbed of their property, by judgments rendered in civil suits,
as well as in criminal ones. If the laws of the king were
imperative upon a jury in civil suits, the king might enact laws
giving one man's property to another, or confiscating it to the
king himself, and authorizing civil suits to obtain possession of
it. Thus a man might be robbed of his property at the arbitrary
pleasure of the king. In fact, all the property of the kingdom
would be placed, at the arbitrary disposal of the king, through
the judgments of juries in civil suits, if the laws of the king
were imperative upon a jury in such suits. [2]

Furthemore, it would be absurd and inconsistent to make
a jury paramount to legislation in criminal suits, and
subordinate to it in civil suits; because an individual, by
resisting the execution of a civil judgment, founded upon an
unjust law, could give rise to a criminal suit, in which the jury
would be bound to hold the same law invalid. So that, if an
unjust law were binding upon a jury in civil suits, a defendant,
by resisting the execution of the judgment, could, in effect,
convert the civil action into a criminal one, in which the jury
would be paramount to the same legislation, to which, in the
civil suit, they were subordinate. In other words, in the
criminal suit, the jury would be obliged to justify the defendant
in resisting a law, which, in the civil suit, they had said he
was bound to submit to.

To make this point plain to the most common mind suppose a
law be enacted that the property of A shall be given to B. B
brings a civil action to obtain possession of it. If the jury, in this
civil suit, are bound to hold the law obligatory, they render a
judgment in favor of B, that he be put in possession of the
property; thereby declaring that A is bound to submit to a law
depriving him of his property. But when the execution of that
judgment comes to be attempted that is, when the sheriff comes
to take the property for the purpose of delivering it to B A
acting, as he has a natural right to do, in defence of his
property, resists and kills the sheriff. He is thereupon indicted
for murder. On this trial his plea is, that in killing the
sheriff, he was simply exercising his natural right of defending
his property against an unjust law. The jury, not being bound, in
a criminal case, by the authority of an unjust law, judge the act
on its merits, and acquit the defendant thus declaring that he
was not bound to submit to the same law which the jury, in the
civil suit, had, by their judgment, declared that he was bound to
submit to. Here is a contradiction between the two judgments. In
the civil suit, the law is declared to be obligatory upon A; in
the criminal suit, the same law is declared to be of no
obligation.

It would be a solecism and absurdity in government to allow
such consequences as these. Besides, it would be practically
impossible to maintain government on such principles; for no
government could enforce its civil judgments, unless it could
support them by criminal ones, in case of resistance. A jury must
therefore be paramount to legislation in both civil and criminal
cases, or in neither. If they are paramount in neither, they are
no protection to liberty. If they are paramount in both, then all
legislation goes only for what it may chance to be worth in the
estimation of a jury.

Another reason why Magna Carta makes the discretion and
consciences of juries paramount to all legislation in civilsuits, is,
that if legislation were binding upon a jury, the jurors (by reason
of their being unable to read, as jurors in those days were, and
also by reason of many of the statutes being unwritten, or at least
not so many copies written as that juries could be supplied with
them) would have been necessitated at least in those courts in
which the king's justices sat to take the word of those justices
as to what the laws of the king really were. In other words, they
would have been necessitated to take the law from the court, as
jurors do now.

Now there were two reasons why, as we may rationally suppose,
the people did not wish juries to take their law from the king's
judges. One was, that, at that day, the people probably had sense
enough to see, (what we, at this day, have not sense enough to
see, although we have the evidence of it every day before our
eyes,) that those judges, being dependent upon the legislative
power, (the king,) being appointed by it, paid by it, and
removable by it at pleasure, would be mere tools of that power,
and would hold all its legislation obligatory, whether it were
just or unjust. This was one reason, doubtless, why Magna Carta
made juries, in civil suits, paramount to all instructions of the
king's judges. The reason was precisely the same as that for
making them paramount to all instructions of judges in criminal
suits, viz., that the people did not choose to subject their
rights of property, and all other rights involved in civil suits,
to the operation of such laws as the king might please to enact.
It was seen that to allow the king's judges to dictate the law to
the jury would be equivalent to making the legislation of the
king imperative upon the jury.

Another reason why the people did not wish juries, in civil
suits, to take their law from the king's judges, doubtless was,
that, knowing the dependence of the judges upon the king, and
knowing that the king would, of course, tolerate no judges who
were not subservient to his will, they necessarily inferred; that
the king's judges would be as corrupt, in the administration of
justice, as was the king himself, or as he wished them to be. And
how corrupt that was, may be inferred from the following
historical facts.

Hume says:

"It appears that the ancient kings of England put themselves
entirely upon the footing of the barbarous Eastern princes, whom
no man must approach without a present, who sell all their good
offices, and who intrude themselves into every business that they
may have a pretence for extorting money. Even justice was
avowedly bought and sold; the king's court itself, though the
supreme judicature of the kingdom, was open to none that brought
not presents to the king; the bribes given for expedition, delay,
suspension, and doubtless for the perversion of justice, were
entered in the public registers of the royal revenue, and remain
as monuments of the perpetual iniquity and tyranny of the times.
The barons of the exchequer, for instance, the first nobility of
the kingdom, were not ashamed to insert, as an article in their
records, that the county of Norfolk paid a sum that they might be
fairly dealt with; the borough of Yarmouth, that the king's
charters, which they have for their liberties, might not be
violated; Richard, son of Gilbert, for the king's helping him to
recover his debt from the Jews; * * Serio, son of Terlavaston,
that he might be permitted to make his defence, in case he were
accused of a certain homicide; Walter de Burton, for free law, if
accused of wounding another; Robert de Essart, for having an
inquest to find whether Roger, the butcher, and Wace and
Humphrey, accused him of robbery and theft out of envy and
ill-will, or not; William Buhurst, for having an inquest to find
whether he were accused of the death of one Godwin, out of
ill-will, or for just cause. I have selected these few instances
from a great number of the like kind, which Madox had selected
from a still greater number, preserved in the ancient rolls of
the exchequer.

Sometimes a party litigant offered the king a certain portion,
a half, a third, a fourth, payable out of the debts which he, as
the executor of justice, should assist in recovering. Theophania
de Westland agreed to pay the half of two hundred and twelve
marks, that she might recover that sum against James de
Fughleston; Solomon, the Jew, engaged to pay one mark
out of every seven that he should recover against Hugh de la
Hose; Nicholas Morrel promised to pay sixty pounds, that the Earl
of Flanders might be distrained to pay him three hundred and
forty-three pounds, which the earl had taken from him; and these
sixty pounds were to be paid out of the first money that Nicholas
should recover from the earl." Hume, Appendix 2.

"In the reign of Henry II,, the best and most just of these (the
Norman) princes, * *Peter, of Blois, a judicious and even elegant
writer, of that age, gives a pathetic description of the venality
of justice, and the oppressions of the poor, * * and he scruples
not to complain to the king himself of these abuses. We may judge
what the case would be under the government of worse princes."
Hume, Appendix 2.

Carte says:

"The crown exercised in those days an exorbitant and
inconvenient power, ordering the justices of the king's court, in
suits about lands, to turn out, put, and keep in possession,
which of the litigants they pleased; to send contradictory
orders; and take large sums of money from each; to respite
proceedings; to direct sentences; and the judges, acting by their
commission, conceived themselves bound to observe such orders,
to the great delay, interruption, and preventing of justice; at
least, this was John's practice," Carte's History of England,
vol. 1, p. 832.

Hallam says:

"But of all the abuses that deformed the Anglo-Saxon government,
none was so flagitious as the sale of judicial redress, The king,
we are often told, is the fountain of justice; but in those ages
it was one which gold alone could unseal. Men fined (paid fines)
to have right done them; to sue in a certain court; to implead a
certain person; to have restitution of land which they had
recovered at law. From the sale of that justice which every
citizen has a right to demand, it was an easy transition to
withhold or deny it. Fines were received for the king's help
against the adverse suitor; that is, for perversion of justice,
or for delay. Sometimes they were paid by opposite parties, and,
of course, for opposite ends." 2 Middle Ages, 438.

In allusion to the provision of Magna Carta on this subject,
Hallam says:

"A law which enacts that justice shall neither be sold, denied,
nor delayed, stamps with infamy that government under which it
had become necessary." 2 Middle Ages, 451.

Lingard, speaking of the times of Henry II., (say 1184,) says:

"It was universally understood that money possessed greater
influence than justice in the royal courts, and instances are on
record, in which one party has made the king a present to
accelerate, and the other by a more valuable offer has succeeded
in retarding a decision. * * But besides the fines paid to the
sovereigns, the judges often exacted presents for themselves, and
loud complaints existed against their venality and injustice."
8 Lingard, 231.

In the narrative of "The costs and charges which I, Richard de
Anesty, bestowed in recovering the land of William, my uncle,"
(some fifty years before Magna Carta,) are the following items:

"To Ralph, the king's physician, I gave thirty-six marks and one
half; to the king an hundred marks; and to the queen one mark of
gold." The result is thus stated. "At last, thanks to our lord
the king, and by judgment of his court, my uncle's land was
adjudged to me." 2 Palgrave's Rise and Progress of the English
Commonwealth, p. 9 and 24.

Palgrave also says:

"The precious ore was cast into the scales of justice, even when
held by the most conscientious of our Anglo-Saxon kings. A single
case will exemplify the practices which prevailed. Alfric, the
heir of 'Aylwin, the black,' seeks to set aside the death-bed
bequest, by which his kinsman bestowed four rich and fertile
manors upon St. Benedict. Alfric, the claimant, was supported by
extensive and powerful connexions; and Abbot Alfwine, the
defendant, was well aware that there would be danger in the
discussion of the dispute in public, or before the Folkmoot,
(people's meeting, or county court); or, in other words, that the
Thanes of the shire would do their best to give a judgment in
favor of their compeer. The plea being removed into the Royal
Court, the abbot acted with that prudence which so often calls
forth the praises of the monastic scribe. He gladly emptied
twenty marks of gold into the sleeve of the Confessor, (Edward,)
and five marks of gold presented to Edith, the Fair, encouraged
her to aid the bishop, and to exercise her gentle influence in
his favor. Alfric, with equal wisdom, withdrew from prosecuting
the hopeless cause, in which his opponent might possess an
advocate in the royal judge, and a friend in the king's consort.
Both parties. therefore, found it desirable to come to an
agreement." 1 Palgrave's Rise and Progress, &c;., p. 650.

But Magna Carta has another provision for the trial of civil
suits, that obviously had its origin in the corruption of the
king's judges. The provision is, that four knights, to be chosen
in every county, by the people of the county, shall sit with the
king's judges, in the Common Pleas, in jury trials, (assizes,) on
the trial of three certain kinds of suits, that were among the
most important that were tried at all. The reason for this
provision undoubtedly was, that the corruption and subserviency
of the king's judges were so well known, that the people would
not even trust them to sit alone in a jury trial of any
considerable importance. The provision is this:

Chap. 22, (of John's Charter.) "Common Pleas shall not follow our
court, but shall be holden in some certain place. Trials upon the
writ of novel disseisin, and of Mort d'Ancester, and of Darrein
Presentment, shall be taken but in their proper counties, and
after this manner: We, or, if we should be out of our realm, our
chief justiciary, shall send two jnsticiaries through every
county four times a year; [3] who, with four knights chosen out
of every shire, by the people, shall hold the assizes (juries) in
the county, on the day and at the place appointed."

It would be very unreasonable to suppose that the king's judges
were allowed to dictate the law to the juries, when the people
would not even suffer them to sit alone in jury trials, but
themselves chose four men to sit with them, to keep them honest.
[4]

This practice of sending the king's judges into the counties
to preside at jury trials, was introduced by the Norman kings
Under the Saxons it was not so. No officer of the king was
allowed to preside at a jury trial; but only magistrates chosen
by the people.[5]

But the following chapter of John's charter, which immediately
succeeds the one just quoted, and refers to the same suits,
affords very strong, not to say conclusive, proof, that juries
judged of the law in civil suits that is, made the law, so far
as their deciding according to their own notions of justice could
make the law.

Chap. 23. "And if, on the county day, the aforesaid assizes
cannot be taken, so many knights and freeholders shall remain, of
those who shall have been present on said day, as that the
judgments may be rendered by them, whether the business be more
or less."

The meaning of this chapter is, that so many of the civil
suits, as could not be tried on the day when the king's justices
were present, should be tried afterwards, by the four knights
before mentioned, and the freeholders, that is, the jury. It must
be admitted, of course, that the juries, in these cases, judged
the matters of law, as well as fact, unless it be presumed that
the knights dictated the law to the jury na thing of which there
is no evidence at all.

As a final proof on this point, there is a statute enacted
seventy years after Magna Carta, which, although it is contrary
to the common law, and therefore void, is nevertheless good
evidence, inasmuch as it contains an acknowledgment, on the part
of the king himself, that juries had a right to judge of the
whole matter, law and fact, in civil suits. The provision is
this:

"It is ordained, that the justices assigned to take the assizes,
shall not compel the jurors to say precisely whether it be
disseisin, or not, so that they do show the truth of the deed,
and seek aid of the justices. But if they will, of their own
accord, say that it is disseisin, or not, their verdict shall be
admitted at their own peril." 13 Edward I., st. 1, ch. 3, sec.
2. (1285.)

The question of "disseisin, or not," was a question of law, as
well as fact. This statute, therefore, admits that the law, as
well as the fact, was in the hands of the jury. The statute is
nevertheless void, because the king had no authority to give
jurors a dispensation from the obligation imposed upon them by
their oaths and the "law of the land," that they should "make
known the truth according their (own) consciences." This they
were bound to do, and there was no power in the king to absolve
them from the duty. And the attempt of the king thus to absolve
them, and authorize them to throw the case into the hands of the
judges for decision, was simply an illegal and unconstitutional
attempt to overturn the "law of the land," which he was sworn to
maintain, and gather power into his own hands, through his
judges. He had just as much constitutional power to enact that
the jurors should not be compelled to declare the facts, but that
they might leave them to be determined by the king's judges, as
he had to enact that they should not be compelled to declare the
law, but might leave it to be decided by the king's judges. 122
It was as much the legal duty of the jury to decide the law as to
decide the fact; and no law of the king could affect their
obligation to do either. And this statute is only one example of
the numberless contrivances and usurpations which have been
resorted to, for the purpose of destroying the original and
genuine trial by jury.

[1] Marches, the limits, or boundaries, between England and
Wales.

[2] That the kings would have had no scruples to enact laws for
the special purpose of plundering the people, by means of the
judgments of juries, if they could have got juries to acknowledge
the authority of their laws, is evident from the audacity with
which they plundered them, without any judgments of juries to
authorize them.

It is not necessary to occupy space here to give details as to
these robberies; but only some evidence of the general fact.

Hallam says, that "For the first three reigns (of the Norman
kings) * * the intolerable exactions of tribute, the rapine of
purveyance, the iniquity of royal courts, are continually in the
mouths of the historians. ' God sees the wretched people,' says
the Saxon Chronicler, 'most unjustly oppressed; first they are
despoiled of their possessions, and then butchered.' This was a
grievous year (1124). Whoever had any property, lost it by heavy
taxes and unjust decrees." 2 Middle Ages, 435-6.

"In the succeeding reign of John, all the rapacious exactions
usual to these Norman kings were not only redoubled, but mingled
with outrages of tyranny still more intolerable.

"In 1207 John took a seventh of the movables of lay and spiritual
persons, all murmuring, but none daring to speak against it."
Ditto, 446.

In Hume's account of the extortions of those times, the following
paragraph occurs:

"But the most barefaced acts of tyranny and oppression were
practised against the Jews, who were entirely out of the
protection of the law, and were abandoned to the immeasurable
rapacity of the king and his ministers. Besides many other
indignities, to which they were continually exposed, it appears
that they were once all thrown into prison, and the sum of 66,000
marks exacted for their liberty. At another time, Isaac, the Jew,
paid alone 5100 marks", Brun, 3000 marks; Jurnet, 2000; Bennet,
500. At another, Licorica, widow of David, the Jew of Oxford, was
required to pay 6000 marks." Hume's Hist Eng., Appendix 2.

Further accounts of the extortions and oppressions of the kings
may be found in Hume's History, Appendix 2, and in Hallam's
Middle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for some
of the spoliations he had committed upon individuals "without the
legal judgment of their peers." See Magna Carta of John, ch.
60, 61, 65 and 66.

One of the great charges, on account of which the nation rose
against John, was, that he plundered individuals of their
property, "without legal judgment of their peers." Now it was
evidently very weak and short sighted in John to expose himself
to such charges, if his laws were really obligatory upon the
peers; because, in that case, he could have enacted any laws that
were necessary for his purpose, and then, by civil suits, have
brought the cases before juries for their "judgment," and thus
have accomplished all his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints,
that he deprived men of their property "without legal judgment of
their peers," if his laws had been binding upon the peers;
because he could then have made the same spoliations as well with
the judgment of the peers as without it. Taking the judgment of
the peers in the matter, would have been only a ridiculous and
useless formality, if they were to exercise no discretion or
conscience of their own, independently of the laws of the king.

It may here be mentioned, in passing, that the same would be true
in criminal mature, if the king's Laws were obligatory upon
juries.

As an illustration of what tyranny the kings would sometimes
practise, Hume says:

"It appears from the Great Charter itself, that not only John, a
tyrannical prince, and Richard, a violent one, but their father
Henry, under whose reign the prevalence of gross abuses is the
least to be suspected, were accustomed, from their sole
authority, without process of law, to imprison, banish, and
attaint the freemen of their kingdom." Hume, Appendix 2.

The provision, also, in the 64th chapter of Magna Carta, that "
all unjust and illegal fines, and all amercements, imposed
unjustly, and contrary to the Law of the Land, shall be entirely
forgiven," &c;.; and the provision, in chapter 61, that the king
"will cause full justice to be administered" in regard to "all
those things, of which any person has, without legal judgment of
his peers, been dispossessed or deprived, either by King Henry,
our father., or our brother, King Richard," indicate the
tyrannical practices that prevailed.

We are told also that John himself "had dispossessed several
great men without any judgment of their peers, condemned others
to cruel deaths, * * insomuch that his tyrannical will stood
instead of a law." Echard's History of England, 106.
Now all these things were very unnecessary and foolish, if his
laws were binding upon juries; because, in that ease, he could
have procured the conviction of these men in a legal manner, and
thus have saved the necessity of such usurpation. In short, if
the laws of the king had been binding upon juries, there is no
robbery, vengeance, or oppression, which he could not have
accomplished through the judgments of juries. This consideration
is sufficient, of itself, to prove that the laws of the king were
of no authority over a jury, in either civil or criminal cases,
unless the juries regarded the laws as just in themselves.

[3] By the Magna Carta of Henry III., this is changed to once a
year.

[4] From the provision of Magna Carta, cited in the text, it must
be inferred that there can be no legal trial by jury, in civil
eases, if only the king's justices preside; that, to make the
trial legal, there must be other persons, chosen by the people,
to sit with them; the object being to prevent the jury's being
deceived by the justices. I think we must also infer that the
king's justices could sit only in the three actions specially
mentioned. We cannot go beyond the letter of Magria Carta, in
making innovations upon the common law, which required all
presiding officers in jury trials to be elected by the people.

[5] ["The earls, sheriffs, and head-boroughs were annually
elected in the full folcmote, (people's meeting)." Introduction
to Gilbert's History of the Common Pleas, p. 2, note.

"It was the especial province of the earldomen or earl to attend
the shyre-meeting, (the county court,) twice a year, and there
officiate as the county judge in expounding the secular laws, as
appears by the fifth of Edgar's laws." Same, p. 2, note.

"Every ward had its proper alderman, who was chosen, and not
imposed by the prince." Same, p. 4, text.

"As the aldermen, or earls, were always chosen" (by the people)
"from among the greatest thanes, who in those times were
generally more addicted to arms than to letters, they were but
ill-qualified for the administration of justice, and performing
the civil duties of their office." 3 Henry's History of Great
Britain, 343.

"But none of these thanes were annually elected in the full
folcmote, (people's meeting,) as the earls, sheriffs, and
head-boroughs were; nor did King Alfred (as this author suggests)
deprive the people of the election of those last mentioned
magistrates and nobles, much less did he appoint them himself."
Introd. to Gilbert's Hist. Com. Pleas, p. 2, note.

"The sheriff was usually not appointed by the lord, but elected
by the freeholders of the district." Political Dictionary, word
Sheriff.

"Among the most remarkable of the Saxon laws we may reckon
* * the election of their magistrates by the people, originally even
that of their kings, till dear-bought experience evinced the
convenience and necessity of establishing an hereditary
succession to the crown. But that (the election) of all
subordinate magistrates, their military officers or heretochs,
their sheriffs, their conservators of the peace, their coroners,
their portreeves, (since changed into mayors and bailiffs,) and
even their tithing-men and borsholders at the last, continued,
some, till the Norman conquest, others for two centuries after,
and some remain to this day." 4 Blackstone, 418.

"The election of sheriffs was left to the people, according to
ancient usage." St. West. 1, c. 27. Crabbe's History of
English Law, 181.

CHAPTER V. OBJECTIONS ANSWERED

The following objections will be made to the doctrines and the
evidence presented in the preceding chapters.

1. That it is a maxim of the law, that the judges respond to the
question of law, and juries only to the question of fact.
The answer to this objection is, that, since Magna Carta, judges
have had more than six centuries in which to invent and
promulgate pretended maxims to suit themselves; and this is one
of them. Instead of expressing the law, it expresses nothing but the
ambitious and lawless will of the judges themselves, and of those
whose instruments they are.[1]

2. It will be asked, Of what use are the justices, if the jurors
judge both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten
the jurors, if they can, by their advice and information; such
advice and information to be received only for what they may
chance to be worth in the estimation of the jurors. 2. To do
anything that may be necessary in regard, to granting appeals and
new trials.

3. It is said that it would be absurd that twelve ignorant men
should have power to judge of the law, while justices learned in
the law should be compelledto sit by and see the law decided
erroneously.

One answer to this objection is, that the powers of juries are not
granted to them on the supposition that they know the law better
than the justices; but on the ground that the justices are
untrustworthy, that they are exposed to bribes, are themselves
fond of power and authority, and are also the dependent and
subservient creatures of the legislature; and that to allow them
to dictate the law, would not only expose the rights of parties to
be sold for money, but would be equivalent to surrendering all the
property, liberty, and rights of the people, unreservedly into the
hands of arbitrary power, (the legislature,) to be disposed of at
its pleasure. The powers of juries, therefore, not only place a
curb upon the powers of legislators and judges, but imply also an
imputation upon their integrity and trustworthiness: and these are
the reasons why legislators and judges have formerly entertained
the intensest hatred of juries, and, so fast as they could do it
without alarming the people for their liberties, have, by
indirection, denied, undermined, and practically destroyed their
power. And it is only since all the real power of juries has been
destroyed, and they have become mere tools in the hands of
legislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the
temptations of money, fame, and power, to induce them to
disregard justice between parties, and sell the rights, and violate the
liberties of the people. Jurors, on the other hand, are exposed to
none of these temptations. They are not liable to bribery, for
they are unknown to the parties until they come into the jury-box.
They can rarely gain either fame, power, or money, by giving
erroneous decisions. Their offices are temporary, and they know
that when they shall have executed them, they must return to the
people, to hold all their own rights in life subject to the
liability of such judgments, by their successors, as they
themselves have given an example for. The laws of human nature
do not permit the supposition that twelve men, taken by lot from the
mass of the people, and acting under such circumstances, will all
prove dishonest. It is a supposable case that they may not be
sufficiently enlightened to know and do their whole duty, in all
cases whatsoever; but that they should all prove dishonest, is not
within the range of probability. A jury, therefore, insures to us
what no other court does that first and indispensable requisite
in a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of the law,
they decide the law absolutely; that their decision must
necessarily stand, be it right or wrong; and that this power of
absolute decision would be dangerous in their hands, by reason of
their ignorance of the law.

One answer is, that this power, which juries have of judging of
the law, is not a power of absolute decision in all cases. For
example, it is a power to declare imperatively that a man's
property, liberty, or life, shall not be taken from him; but it is
not a power to declare imperatively that they shall be taken from
him.

Magna Carta does not provide that the judgments of the peers shall
be executed; but only that no other than their judgments shall
ever be executed, so far as to take a party's goods, rights, or
person, thereon.

A judgment of the peers may be reviewed, and invalidated, and a
new trial granted. So that practically a jury has no absolute
power to take a party's goods, rights, or person. They have only
an absolute veto upon their being taken by the government. The
government is not bound to do everything that a jury may adjudge.
It is only prohibited from doing anything (that is, from taking
a party's goods, rights, or person) unless a jury have first
adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of
one jury should be reaffirmed by another, on a new trial, it must
then be executed. But Magna Carta does not command even this
although it might, perhaps, have been reasonably safe for it to
have done so for if two juries unanimously affirm the same
thing, after all the light and aid that judges and lawyers can
afford them, that fact probably furnishes as strong a presumption
in favor of the correctness of their opinion, as can ordinarily be
obtained in favor of a judgment, by any measures of a practical
character for the administration of justice. Still, there is
nothing in Magna Carta that compels the execution of even a
second judgment of a jury. The only injunction of Magna Carta
upon the government, as to what it shall do, on this point, is that it
shall "do justice and right," without sale, denial, or delay. But
this leaves the government all power of determining what is
justice and right, except that it shall not consider anything as
justice and right so far as to carry it into execution against
the goods, rights, or person of a party unless it be something
which a jury have sanctioned.

If the government had no alternative but to execute all judgments
of a jury indiscriminately, the power of juries would
unquestionably be dangerous; for there is no doubt that they may
sometimes give hasty and erroneous judgments. But when it is
considered that their judgments can be reviewed, and new trials
granted, this danger is, for all practical purposes, obviated.

If it be said that juries may successively give erroneous
judgments, and that new trials cannot be granted indefinitely, the
answer is, that so far as Magna Carta is concerned, there is
nothing to prevent the granting of new trials indefinitely, if the
judgments of juries are contrary to "justice and right." So that
Magna Carta does not require any judgment whatever to be
executed so far as to take a party's goods, rights, or person, thereon
unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument, suppose the
existence of a practical, if not legal, necessity, for executing
some judgment or other, in cases where juries persist in
disagreeing with the courts. In such cases, the principle of Magna
Carta unquestionably is, that the uniform judgments of
successivejuries shall prevail over the opinion of the court. And
the reason of this principle is obvious, viz., that it is the will of the
country, and not the will of the court, or the government, that
must determine what laws shall be established and enforced; that
the concurrent judgments of successive juries, given in opposition
to all the reasoning which judges and lawyers can offer to the
contrary, must necessarily be presumed to be a truer exposition of
the will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control of
the court, in matters of law, they may disagree amongthemselves,
and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occur
but rarely; because, although one jury may disagree, a succession
of juries are not likely to disagree that is, on matters of
natural law, or abstract justice. [2] If such a thing should
occur, it would almost certainly be owing to the attempt of the
court to mislead them. It is hardly possible that any other cause
should be adequate to produce such an effect; because justice
comes very near to being a self-evident principle. The mind
perceives it almost intuitively. If, in addition to this, the
court be uniformly on the side of justice, it is not a reasonable
supposition that a succession of juries should disagree about it.
If, therefore, a succession of juries do disagree on the law of
any case, the presumption is, not that justice fails of being
done, but that injustice is prevented that injustice, which
would be done, if the opinion of the court were suffered to
control the jury.

For the sake of the argument, however, it may be admitted to be
possible that justice should sometimes fail of being done through
the disagreements of jurors, notwithstanding all the light which
judges and lawyers can throw upon the question in issue. If it be
asked what provision the trial by jury makes for such cases, the
answer is, it makes none; and justice must fail of being done,
from the want of its being made sufficiently intelligible.

Under the trial by jury, justice can never be done that is, by a
judgment that shall take a party's goods, rights, or person
until that justice can be made intelligible or perceptible to the
minds of all the jurors; or, at least, until it obtain the
voluntary assent of all an assent, which ought not to be given
until the justice itself shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof of
property; or, in other words, every man is presumed to be the
rightful proprietor of whatever he has in his possession.

Back to Full Books