trial-by-jury-book/edited/04.markdown

# 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,[^68] _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.[^69]

Furthermore, 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 _civil_ suits, 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; * * Serlo, 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.”—_2 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 justiciaries through every county four
> times a year;[^70] _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.[^71]

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._[^72]

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—a 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. 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.

[Footnote 68: _Marches_, the limits, or boundaries, between England and
Wales.]

[Footnote 69: 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 matters, 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 case, 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.]

[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
year.]

[Footnote 71: 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
cases, 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 Magna Carta, in making innovations upon the common law, which
required all presiding officers in jury trials to be elected by the
people.]

[Footnote 72: “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_, 413.

“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.]