trial-by-jury-book/chapters/03.markdown

CHAPTER III.

ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.


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


SECTION I.

_Weakness of the Regal Authority._

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

   "Although in the Saxon's time I find the usual words of the acts then
   to have been _edictum_, (edict,) _constitutio_, (statute,) little
   mention being made of the commons, yet I further find that, _tum
   demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ
   sed firmatæ approbatione communitatis_." (The laws had force and
   vigor only when they were not only enacted, but confirmed by the
   approval of the community.)

The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking
"_Of the first Constitutions of the Ancient Kings_:"

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

Hallam says:

   "The Franks, Lombards, and Saxons seem alike to have been jealous of
   judicial authority; and averse to surrendering what concerned every
   man's private right, out of the hands of his neighbors and
   equals."--_1 Middle Ages_, 271.

The "judicial authority," here spoken of, was the authority of the
kings, (who at that time united the office of both legislators and
judges,) and not of a separate department of government, called the
judiciary, like what has existed in more modern times.[34]

Hume says:

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

   "_The Saxons, who subdued Britain, as they enjoyed great liberty in
   their own country, obstinately retained that invaluable possession in
   their new settlement; and they imported into this island the same
   principles of independence, which they had inherited from their
   ancestors. The chieftains, (for such they were, more than kings or
   princes,) who commanded them in those military expeditions, still
   possessed a very limited authority_; and as the Saxons exterminated,
   rather than subdued the ancient inhabitants, they were, indeed,
   transplanted into a new territory, _but preserved unaltered all their
   civil and military institutions_. The language was pure Saxon; even
   the names of places, which often remain while the tongue entirely
   changes, were almost all affixed by the conquerors; the manners and
   customs were wholly German; and the same picture of a fierce and bold
   liberty, which is drawn by the masterly pen of Tacitus, will suit
   those founders of the English government. _The king, so far from
   being invested with arbitrary power, was only considered as the first
   among the citizens; his authority depended more on his personal
   qualities than on his station; he was even so far on a level with the
   people, that a stated price was fixed for his head, and a legal fine
   was levied upon his murderer, which though proportionate to his
   station, and superior to that paid for the life of a subject, was a
   sensible mark of his subordination to the community._"--_1 Hume_,
   _Appendix_, 1.

Stuart says:

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

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

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

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

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

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

   "_The authority of a Saxon monarch was not more considerable. The
   Saxons submitted not to the arbitrary rule of princes. They
   administered an oath to their sovereigns, which bound them to
   acknowledge the laws, and to defend the rights of the church and
   people; and if they forgot this obligation, they forfeited their
   office._ In both countries, a price was affixed on kings, a fine
   expiated their murder, as well as that of the meanest citizen; and
   the smallest violation of ancient usage, or the least step towards
   tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.
   139-40.

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

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

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

   "Nor must we imagine that the Saxon, any more than the German
   monarchs, succeeded each other in a lineal descent,[35] or that they
   disposed of the crown at their pleasure. In both countries, the free
   election of the people filled the throne; and their choice was the
   only rule by which princes reigned. The succession, accordingly, of
   their kings was often broken and interrupted, and their depositions
   were frequent and groundless. The will of a prince whom they had long
   respected, and the favor they naturally transferred to his
   descendant, made them often advance him to the royal dignity; but the
   crown of his ancestor he considered as the gift of the people, and
   neither expected nor claimed it as a right."--_Ditto_, p. 151-3.

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

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

   "The judges of the people, they presided in both countries in courts
   of law.[36] The particular districts over which they exerted their
   authority were marked out in Germany by the council of the state; and
   in England their jurisdiction extended over the fiefs and other
   territories they possessed. All causes, both civil and criminal, were
   tried before them; and they judged, except in cases of the utmost
   importance, without appeal. They were even allowed to grant pardon to
   criminals, and to correct by their clemency the rigors of justice.
   Nor did the sovereign exercise any authority in their lands. In these
   his officers formed no courts, and his _writ_ was disregarded. * *

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

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

Henry says:

   "Nothing can be more evident than this important truth; that our
   Anglo-Saxon kings were not absolute monarchs; but that their powers
   and prerogatives were limited by the laws and customs of the country.
   Our Saxon ancestors had been governed by limited monarchs in their
   native seats on the continent; and there is not the least appearance
   or probability that they relinquished their liberties, and submitted
   to absolute government in their new settlements in this island. It is
   not to be imagined that men, whose reigning passion was the love of
   liberty, would willingly resign it; and their new sovereigns, who had
   been their fellow-soldiers, had certainly no power to compel them to
   such a resignation."--_3 Henry's History of Great Britain_, 358.

   Mackintosh says: "The Saxon chiefs, who were called kings, originally
   acquired power by the same natural causes which have gradually, and
   everywhere, raised a few men above their fellows. They were,
   doubtless, more experienced, more skilful, more brave, or more
   beautiful, than those who followed them. * * A king was powerful in
   war by the lustre of his arms, and the obvious necessity of
   obedience. His influence in peace fluctuated with his personal
   character. In the progress of usage his power became more fixed and
   more limited. * * It would be very unreasonable to suppose that the
   northern Germans who had conquered England, had so far changed their
   characteristic habits from the age of Tacitus, that the victors
   became slaves, and that their generals were converted into
   tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.
   Cyc._, 73-4.

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

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

Hallam says that among the Saxons, "the royal authority was weak."--_2
Middle Ages_, 403.

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

Lingard says:

   "It was necessary that the king should obtain the assent of these
   (the members of the Witena-gemotes) to all legislative enactments;
   _because, without their acquiescence and support, it was impossible
   to carry them into execution_. To many charters (laws) we have the
   signatures of the Witan. _They seldom exceed thirty in number; they
   never amount to sixty._"--_1 Lingard_, 486.

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

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

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

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

Finally, on this point. Conclusive proof that the legislation of the
king was of little or no authority, is found in the fact _that the kings
enacted so few laws_. If their laws had been received as authoritative,
in the manner that legislative enactments are at this day, they would
have been making laws continually. Yet the codes of the most celebrated
kings are very small, and were little more than compilations of
immemorial customs. The code of Alfred would not fill twelve pages of
the statute book of Massachusetts, and was little or nothing else than a
compilation of the laws of Moses, and the Saxon customs, evidently
collected from considerations of convenience, rather than enacted on the
principle of authority. The code of Edward the Confessor would not fill
twenty pages of the statute book of Massachusetts, and, says Blackstone,
"seems to have been no more than a new edition, or fresh promulgation of
Alfred's code, or _dome-book_, with such additions and improvements as
the experience of a century and a half suggested."--_1 Blackstone_,
66.[40]

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

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

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


SECTION II.

_The Ancient Common Law Juries were mere Courts of Conscience._

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

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

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

These courts, it must be considered, were very numerous, and held very
frequent sessions. There were probably seven, eight, or nine hundred
courts _a month_, in the kingdom; the object being, as Blackstone says,
"_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The
number of the _county_ courts, of course, corresponded to the number of
counties, (36.) The _court-leet_ was the criminal court for a district
less than a county. The _hundred court_ was the court for one of those
districts anciently called a _hundred_, because, at the time of their
first organization for judicial purposes, they comprised (as is
supposed) but a hundred families.[44] The court-baron was the court for
a single manor, and there was a court for every manor in the kingdom.
All these courts were holden as often as once in three or five weeks;
the county court once a month. The king's judges were present at none of
these courts; the only officers in attendance being sheriffs, bailiffs,
and stewards, merely ministerial, and not judicial, officers; doubtless
incompetent, and, if not incompetent, untrustworthy, for giving the
juries any reliable information in matters of law, beyond what was
already known to the jurors themselves. And yet these were the courts,
in which was done all the judicial business, both civil and criminal, of
the nation, except appeals, and some of the more important and difficult
cases.[45] It is plain that the juries, in these courts, must, of
necessity, have been the sole judges of all matters of law whatsoever;
because there was no one present, but sheriffs, bailiffs, and stewards,
to give them any instructions; and surely it will not be pretended that
the jurors were bound to take their law from such sources as these.

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

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

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

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

   "The sheriffs and bailiffs caused the free tenants of their bailiwics
   to meet at their counties and hundreds; _at which justice was so
   done, that every one so judged his neighbor by such judgment as a man
   could not elsewhere receive in the like cases_, until such times as
   the customs of the realm were put in writing, and certainly
   published.

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

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

   "In the county courts, if the debt was above forty shillings, there
   issued a _justicies_ (a commission) to the sheriff, to enable him to
   hold such a plea, _where the suitors_ (_jurors_) _are judges of the
   law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456.

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

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

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

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

Reeve says:

   "The great court for _civil_ business was the _county court_; held
   once every four weeks. Here the sheriff presided; _but the suitors of
   the court, as they were called, that is, the freemen or landholders
   of the county, were the judges_; and the sheriff was to execute the
   judgment. * *

   "The _hundred court_ was held before _some bailiff_; the _leet_
   before the lord of the manor's steward.[49] * *

   "Out of the county court was derived an inferior court of _civil_
   jurisdiction, called the _court-baron_. This was held from three
   weeks to three weeks, and _was in every respect like the county
   court_;" (_that is, the jurors were judges in it_;) "only the lord to
   whom this franchise was granted, or _his steward_, _presided instead
   of the sheriff_."--_1 Reeve's History of the English Law_, p. 7.

Chief Baron Gilbert says:

   "Besides the tenants of the king, which held _per baroniam_, (by the
   right of a baron,) and did suit and service (served as judges) at his
   own court; and the burghers and tenants in ancient demesne, that did
   suit and service (served as jurors or judges) in their own court in
   person, and in the king's by proxy, there was also a set of
   freeholders, that did suit and service (served as jurors) at the
   county court. These were such as anciently held of the lord of the
   county, and by the escheats of earldoms had fallen to the king; or
   such as were granted out by service to hold of the king, but with
   particular reservation to do suit and service (serve as jurors)
   before the king's bailiff; _because it was necessary the sheriff, or
   bailiff of the king, should have suitors_ (_jurors_) _at the county
   court, that the business might be despatched. These suitors are the
   pares_ (_peers_) _of the county court, and indeed the judges of it;
   as the pares_ (_peers_) _were the judges in every court-baron_; and
   therefore the king's bailiff having a court before him, there must be
   _pares or judges, for the sheriff himself is not a judge_; and though
   the style of the court is _Curia prima Comitatus E.C. Milit.'
   vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the
   county, E.C. knight, sheriff of the aforesaid county, held at B., &c.);
   by which it appears that the court was the sheriff's; _yet, by
   the old feudal constitutions, the lord was not judge, but the pares_
   (_peers_) _only_; so that, even in a _justicies_, which was a
   commission to the sheriff to hold plea of more than was allowed by
   the natural jurisdiction of a county court, _the pares_ (_peers,
   jurors_) _only were judges, and not the sheriff_; because it was to
   hold plea in the same manner as they used to do in that (the lord's)
   court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2.

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

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

   "In the case of freeholders attending as suitors, the county court
   or court-baron, (as in the case of the ancient tenants _per baroniam_
   attending Parliament,) _the suitors are the judges of the court, both
   for law and for fact_, and the sheriff or the under sheriff in the
   county court, and the lord or his steward in the court-baron, are
   only presiding officers, _with no judicial authority_."--_Political
   Dictionary_, word _Suit_.

   "COURT, (curtis, curia aula); the space enclosed by the walls of a
   feudal residence, in which the followers of a lord used to assemble
   in the middle ages, to administer justice, and decide respecting
   affairs of common interest, &c. It was next used for those who stood
   in immediate connexion with the lord and master, the _pares curiæ_,
   (peers of the court,) the limited portion of the general assembly, to
   which was entrusted the pronouncing of judgment," &c.--_Encyclopedia
   Americana_, word _Court_.

   "In court-barons or county courts _the steward was not judge, but the
   pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords
   judge, but the barons only."--_Gilbert on the Court of Exchequer_,
   ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

   "The sheriff presided at the _hundred court_, * * and sometimes sat
   in the place of the alderman (earl) in the _county
   court_."--_Crabbe_, 23.

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

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

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

   _Court-Leet._ "That the _leet_ is the most ancient court in the land
   for _criminal_ matters, (the court-baron being of no less antiquity
   in _civil_,) has been pronounced by the highest legal authority. * *
   Lord Mansfield states that this court was coeval with the
   establishment of the Saxons here, and its activity marked very
   visibly both among the Saxons and Danes. * * The leet is a court of
   record for the cognizance of criminal matters, or pleas of the crown;
   and necessarily belongs to the king; though a subject, usually the
   lord of the manor, may be, and is, entitled to the profits,
   consisting of the essoign pence, fines, and amerciaments.

   "_It is held before the steward, or was, in ancient times, before the
   bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_.

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

   "No cause of consequence was determined without the king's writ; for
   even in the county courts, of the debts, which were above forty
   shillings, there issued a _Justicies_ (commission) to the sheriff, to
   enable him to hold such plea, _where the suitors are judges of the
   law and fact_."--_Gilbert's History of the Common Pleas,
   Introduction_, p. 19.

   "This position" (that "the matter of law was decided by the King's
   Justices, but the matter of fact by the pares") "_is wholly
   incompatible with the common law, for the Jurata (jury) were the sole
   judges both of the law and the fact_."--_Gilbert's History of the
   Common Pleas_, p. 70, _note_.

   We come now to the challenge; and of old _the suitors in court, who
   were judges_, could not be challenged; nor by the feudal law could
   the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem
   habent recusari non possunt_; (the peers who have ordinary
   jurisdiction cannot be rejected;) "_but those suitors who are judges
   of the court_, could not be challenged; and the reason is, that there
   are several qualifications required by the writ, viz., that they be
   _liberos et legales homines de vincineto_ (free and legal men of the
   neighborhood) of the place laid in the declaration," &c.,
   &c.--_Ditto_, p. 93.

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

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

   Hallam says: "A respectable class of free socagers, having, in
   general, full rights of alienating their lands, and holding them
   probably at a small certain rent from the lord of the manor,
   frequently occur in Domes-day Book. * * They undoubtedly were suitors
   to the court-baron of the lord, to whose soc, or right of justice,
   they belonged. _They were consequently judges in civil causes,
   determined before the manorial tribunal._"--_2 Middle Ages_, 481.

Stephens adopts as correct the following quotations from Blackstone:

   "The _Court-Baron_ is a court incident to every manor in the kingdom,
   to be holden by the steward within the said manor." * * _It "is a
   court of common law, and it is the court before the freeholders who
   owe suit and service to the manor_," (are bound to serve as jurors in
   the courts of the manor,) "_the steward being rather the registrar
   than the judge_. * * The freeholders' court was composed of the
   lord's tenants, who were the _pares_ (equals) of each other, and were
   bound by their feudal tenure to assist their lord in the dispensation
   of domestic justice. This was formerly held every three weeks; _and
   its most important business was to determine, by writ of right, all
   controversies relating to the right of lands within the manor_."--_3
   Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.

   "A _Hundred Court_ is only a larger court-baron, being held for all
   the inhabitants of a particular hundred, instead of a manor. _The
   free suitors (jurors) are here also the judges, and the steward the
   register._"--_3 Stephens_, 394. _3 Blackstone_, 33.

   "The _County Court_ is a court incident to the jurisdiction of the
   sheriff. * * _The freeholders of the county are the real judges in
   this court, and the sheriff is the ministerial officer._"--_3
   Stephens_, 395-6. _3 Blackstone_, 35-6.

Blackstone describes these courts, as courts "_wherein injuries were
redressed in an easy and expeditious manner, by the suffrage of
neighbors and friends_."--_3 Blackstone_, 30.

   "When we read of a certain number of _freemen_ chosen by the parties
   to decide in a dispute--all bound by oath to vote _in foro
   conscientia_--and that _their_ decision, _not the will of the judge
   presiding, ended the suit_, we at once perceive that a great
   improvement has been made in the old form of compurgation--an
   improvement which impartial observation can have no hesitation to
   pronounce as identical in its main features with the trial by
   jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's
   Cab. Cyc._, 60.

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

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

Hale says:

   "The administration of the common justice of the kingdom seems to be
   wholly dispensed in the county courts, hundred courts, and
   courts-baron; except some of the greater crimes reformed by the laws
   of King Henry I., and that part thereof which was sometimes taken up
   by the _Justitiarius Angliæ_."

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

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

   "Thirdly, a third inconvenience was, that all the business of any
   moment was carried by parties and factions. _For the freeholders
   being generally the judges_, and conversing one among another, _and
   being as it were the chief judges, not only of the fact, but of the
   law_; every man that had a suit there, sped according as he could
   make parties."--_1 Hale's History of the Common Law_, p. 246.

   "In all these tribunals," (county court, hundred court, &c.,) "_the
   judges were the free tenants_, owing suit to the court, and
   afterwards called its peers."--_1 Lingard's History of England_, 488.

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

   "These assessors, _who were in reality judges_, took a solemn oath,
   that they would faithfully discharge the duties of their office, and
   not suffer an innocent man to be condemned, nor any guilty person to
   be acquitted."--_3 Henry's History of Great Britain_, 346.

Tyrrell says:

   "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as
   they are still called in Kent and other places, consisting of three
   or four Hundreds; _in which, the freeholders being judges_, such
   causes were brought as could not be determined in the Hundred
   court."--_Tyrrell's Introduction to the History of England_, p. 80.

Of the _Hundred Court_ he says:

   "In this court anciently, _one of the principal inhabitants, called
   the alderman, together with the barons of the Hundred[51]--id est the
   freeholders--was judge_."--_Ditto_, p. 80.

Also he says:

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

   "A statute, emphatically termed the 'Grand Assize,' enabled the
   defendant, if he thought proper, to abide by the testimony of the
   twelve good and lawful knights, chosen by four others of the
   vicinage, _and whose oaths gave a final decision to the contested
   claim_."--_1 Palgrave's Rise and Progress of the English
   Commonwealth_, 261.

   "From the moment when the crown became accustomed to the 'Inquest,' a
   restraint was imposed upon every branch of the prerogative. _The king
   could never be informed of his rights, but through the medium of the
   people._ Every 'extent' by which he claimed the profits and
   advantages resulting from the casualties of tenure, every process by
   which he repressed the usurpations of the baronage, depended upon the
   'good men and true' who were impanelled to 'pass' between the subject
   and the sovereign; and the thunder of the Exchequer at Westminster
   might be silenced by the honesty, the firmness, or the obstinacy, of
   one sturdy knight or yeoman in the distant shire.

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

   The principle of the jury was, therefore, not confined to its mere
   application as a mode of trying contested facts, whether in civil or
   criminal cases; and, both in its form and in its consequences, it had
   a very material influence upon the general constitution of the realm.
   * * The main-spring of the machinery of remedial justice existed in
   the franchise of the lower and lowest orders of the political
   hierarchy. Without the suffrage of the yeoman, the burgess, and the
   churl, the sovereign could not exercise the most important and most
   essential function of royalty; from them he received the power of
   life and death; he could not wield the sword of justice until the
   humblest of his subjects placed the weapon in his hand."--_1
   Palgrave's Rise and Progress of the English Constitution_, 274-7.

Coke says, "The court of the county is no court of record,[52] _and the
suitors are the judges thereof_."--_4 Inst._, 266.

Also, "The court of the Hundred is no court of record, _and the suitors
be thereof judges_."--_4 Inst._, 267.

Also, "The court-baron is a court incident to every manor, and is not of
record, _and the suitors be thereof judges_."--_4 Inst._, 268.

Also, "The court of ancient demesne is in the nature of a court-baron,
_wherein the suitors are judges_, and is no court of record."--_4
Inst._, 269.

Millar says, "Some authors have thought that jurymen were originally
_compurgators_, called by a defendant to swear that they believed him
innocent of the facts with which he was charged.... But ... compurgators
were merely witnesses; _jurymen were, in reality, judges_. The former
were called to confirm the oath of the party by swearing, according to
their belief, that he had told the truth, (in his oath of purgation;)
_the latter were appointed to try, by witnesses, and by all other means
of proof, whether he was innocent or guilty_.... Juries were accustomed
to ascertain the truth of facts, by the defendant's oath of purgation,
together with that of his compurgators.... Both of them (jurymen and
compurgators) were obliged to swear that they would _tell the truth_....
According to the simple idea of our forefathers, guilt or innocence was
regarded as a mere matter of fact; and it was thought that no man, who
knew the real circumstances of a case, could be at a loss to determine
whether the culprit ought to be condemned or acquitted."--_1 Millar's
Hist. View of Eng. Gov._, ch. 12, p. 332-4.

Also, "The same form of procedure, which took place in the
administration of justice among the vassals of a barony, was gradually
extended to the courts held in the _trading towns_."--_Same_, p. 335.

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

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

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

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

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

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

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

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

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

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

That all these courts were mere _courts of conscience, in which the
juries were sole judges, administering justice according to their own
ideas of it_, is not only shown by the extracts already given, but is
explicitly acknowledged in the following one, in which the _modern
"courts of conscience"_ are compared with the _ancient hundred and
county courts_, and the preference given to the latter, on the ground
that the duties of the jurors in the one case, and of the commissioners
in the other, are the same, and that the consciences of a jury are a
safer and purer tribunal than the consciences of individuals specially
appointed, and holding permanent offices.

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

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

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

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

   3. That in all causes not exceeding the value of forty shillings,
   _the county clerk and twelve suitors (jurors) shall proceed in a
   summary way_, examining the parties and witnesses on oath, without
   the formal process anciently used; _and shall make such order therein
   as they shall judge agreeable to conscience_."--_3 Blackstone_,
   81-83.

What are these but courts of conscience? And yet Blackstone tells us
they are a _revival of the ancient hundred and county courts_. And what
does this fact prove, but that the ancient common law courts, in which
juries sat, were mere courts of conscience?

It is perfectly evident that in all these courts the jurors were the
judges, and determined all questions of law for themselves; because the
only alternative to that supposition is, _that the jurors took their law
from sheriffs, bailiffs, and stewards_, of which there is not the least
evidence in history, nor the least probability in reason. It is evident,
also, that they judged independently of the laws of the king, for the
reasons before given, viz., that the authority of the king was held in
very little esteem; and, secondly, that the laws of the king (not being
printed, and the people being unable to read them if they had been
printed) must have been in a great measure unknown to them, and could
have been received by them only on the authority of the sheriff,
bailiff, or steward. If laws were to be received by them on the
authority of these officers, the latter would have imposed such laws
upon the people as they pleased.

These courts, that have now been described, were continued in full power
long after Magna Carta, no alteration being made in them by that
instrument, _nor in the mode of administering justice in them_.

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

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

   "The rules of legal decision, among a rude people, are always very
   simple; not serving much to guide, far less to control the feelings
   of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465.

It is evident that it was in this way, _by the free and concurrent
judgments of juries, approving and enforcing certain laws and rules of
conduct, corresponding to their notions of right and justice_, that the
laws and customs, which, for the most part, made up the _common law_,
and were called, at that day, "_the good laws, and good customs_," and
"_the law of the land_," were established. How otherwise could they ever
have become established, as Blackstone says they were, "_by long and
immemorial usage, and by their universal reception throughout the
kingdom_,"[54] when, as the Mirror says, "_justice was so done, that
every one so judged his neighbor, by such judgment as a man could not
elsewhere receive in the like cases, until such times as the customs of
the realm were put in writing and certainly published_?"

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


SECTION III.

_The Oaths of Jurors._

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

The earliest oath that I have found prescribed by law to be administered
to jurors is in the laws of Ethelred, (about the year 1015,) which
require that the jurors "_shall swear, with their hands upon a holy
thing, that they will condemn no man that is innocent, nor acquit any
that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the
Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's
Glossary_, word _Jurata_.

Blackstone assumes that this was the oath of the _grand_ jury (_4
Blackstone_, 302); but there was but one jury at the time this oath was
ordained. The institution of two juries, grand and petit, took place
after the Norman Conquest.

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

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

By a law of Henry II., in 1164, it was directed that the sheriff
"_faciet jurare duodecim legales homines de vicineto seu de villa, quod
inde veritatem secundum conscientiam suam manifestabunt_," (shall make
twelve legal men from the neighborhood _to swear that they will make
known the truth according to their conscience_.)--_Crabbe's History of
the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.

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

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

Reeve calls the trial by jury "_the trial by twelve men sworn to speak
the truth_."--_1 Reeve's History of the English Law_, 87.

Henry says that the jurors "took a solemn oath, that they would
faithfully discharge the duties of their office, and not suffer an
innocent man to be condemned, nor any guilty person to be
acquitted."--_3 Henry's Hist. of Great Britain_, 346.

The _Mirror of Justices_, (written within a century after Magna Carta,)
in the chapter on the abuses of the Common Law, says:

   "It is abuse to use the words, _to their knowledge_, in their oaths,
   to make the jurors speak upon thoughts, _since the chief words of
   their oaths be that they speak the truth_."--p. 249.

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

In _criminal_ trials, he says:

   "The clerk giveth the juror an oath to go uprightly betwixt the
   prince and the prisoner."--_Ditto_, p. 90.[55]

Hale says:

   "Then twelve, and no less, of such as are indifferent and are
   returned upon the principal panel, or the _tales_, are sworn to try
   the same according to the evidence."--_2 Hale's History of the Common
   Law_, 141.

It appears from Blackstone that, even _at this day, neither in civil nor
criminal cases_, are jurors in England sworn to try causes _according to
law_. He says that in civil suits the jury are

   "Sworn well and truly to _try the issue_ between the parties, and a
   true verdict to give according to the evidence."--_3 Blackstone_,
   365.

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

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

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

   "Well and truly to try, and true deliverance make, between our
   sovereign lord, the king, and the prisoner whom they have in charge,
   and a true verdict to give according to the evidence."--_4
   Blackstone_, 355.

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

The words, "_according to the evidence_," have doubtless been introduced
into the above oaths in modern times. They are unquestionably in
violation of the Common Law, and of Magna Carta, if by them be meant
such evidence only as the government sees fit to allow to go to the
jury. If the government can dictate the evidence, and require the jury
to decide according to that evidence, it necessarily dictates the
conclusion to which they must arrive. In that case the trial is really a
trial by the government, and not by the jury. _The jury_ cannot _try an
issue_, unless _they_ determine what evidence shall be admitted. The
ancient oaths, it will be observed, say nothing about "_according to the
evidence_." They obviously take it for granted that the jury try the
whole case; and of course that _they_ decide what evidence shall be
admitted. It would be intrinsically an immoral and criminal act for a
jury to declare a man guilty, or to declare that one man owed money to
another, unless all the evidence were admitted, which _they_ thought
ought to be admitted, for ascertaining the truth.[56]

_Grand Jury._--If jurors are bound to enforce all laws passed by the
legislature, it is a very remarkable fact that the oath of grand juries
does not require them to be governed by the laws in finding indictments.
There have been various forms of oath administered to grand jurors; but
by none of them that I recollect ever to have seen, except those of the
States of Connecticut and Vermont, are they sworn to present men
_according to law_. The English form, as given in the essay on Grand
Juries, written near two hundred years ago, and supposed to have been
written by _Lord Somers_, is as follows:

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

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

On the obligations of this oath, the essay says:

   "If it be asked how, or in what manner, the (grand) juries shall
   inquire, the answer is ready, _according to the best of their
   understandings_. They only, not the judges, are sworn to search
   diligently to find out all treasons, &c., within their charge, and
   they must and ought to use their own discretion in the way and manner
   of their inquiry. _No directions can legally be imposed upon them by
   any court or judges_; an honest jury will thankfully accept good
   advice from judges, as their assistants; but they are bound by their
   oaths to present the truth, the whole truth, and nothing but the
   truth, to the best of their own, not the judge's, knowledge. Neither
   can they, without breach of that oath, resign their consciences, or
   blindly submit to the dictates of others; and therefore ought to
   receive or reject such advices, as they judge them good or bad. * *
   Nothing can be more plain and express than the words of the oath are
   to this purpose. The jurors need not search the law books, nor tumble
   over heaps of old records, for the explanation of them. Our greatest
   lawyers may from hence learn more certainly our ancient law in this
   case, than from all the books in their studies. The language wherein
   the oath is penned is known and understood by every man, and the
   words in it have the same signification as they have wheresoever else
   they are used. The judges, without assuming to themselves a
   legislative power, cannot put a new sense upon them, other than
   according to their genuine, common meaning. They cannot magisterially
   impose their opinions upon the jury, and make them forsake the direct
   words of their oath, to pursue their glosses. The grand inquest are
   bound to observe alike strictly every part of their oath, and to use
   all just and proper ways which may enable them to perform it;
   otherwise it were to say, that after men had sworn to inquire
   diligently after the truth, according to the best of their knowledge,
   they were bound to forsake all the natural and proper means which
   their understandings suggest for the discovery of it, if it be
   commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p.
   38.

What is here said so plainly and forcibly of the oath and obligations of
grand juries, is equally applicable to the oath and obligations of petit
juries. In both cases the simple oaths of the jurors, and not the
instructions of the judges, nor the statutes of kings nor legislatures,
are their legal guides to their duties.[57]


SECTION IV.

_The Right of Juries to fix the Sentence._

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

That the juries were to fix the sentence under Magna Carta, is also
shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, says that a baker,
for default in the weight of his bread, "_debeat_ amerciari vel subire
judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the
sentence of the pillory." And that a brewer, for "selling ale, contrary
to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that
is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51
Henry III._, st. 6. (1266.)

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

The statute of Westminster, passed sixty years after Magna Carta,
provides that,

   "No city, borough, nor town, _nor any man_, be amerced, without
   reasonable cause, and according to the quantity of the trespass; that
   is to say, every freeman saving his freehold, a merchant saving his
   merchandise, a villein his waynage, _and that by his or their
   peers_."--_3 Edward I._, ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

   "Forasmuch as the _common fine and amercement_ of the whole county in
   Eyre of the justices for false judgments, or for other trespass, is
   unjustly assessed by sheriffs and baretors in the shires, so that the
   sum is many times increased, and the parcels otherwise assessed than
   they ought to be, to the damage of the people, which be many times
   paid to the sheriffs and baretors, which do not acquit the payers; it
   is provided, and the king wills, that from henceforth such sums shall
   be assessed before the justices in Eyre, afore their departure, _by
   the oath of knights and other honest men_, upon all such as ought to
   pay; and the justices shall cause the parcels to be put into their
   estreats, which shall be delivered up unto the exchequer, and not the
   whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58]

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

   "Whereas before this time the peers of the land have been arrested
   and imprisoned, and their temporalities, lands, and tenements, goods
   and cattels, asseized in the king's hands, and some put to death
   without judgment of their peers: It is accorded and assented, that no
   peer of the land, officer, nor other, because of his office, nor of
   things touching his office, nor by other cause, shall be brought in
   judgment to lose his temporalities, lands, tenements, goods and
   cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
   forejudged, nor put to answer, nor be judged, but by _award_
   (_sentence_) of the said peers in Parliament."--_15 Edward III._, st.
   1, sec. 2.

Section 4, of the same statute provides,

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

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

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

The first case given in Hargrave's collection of English State Trials,
is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke
of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert
Tresilian_, Lord Chief Justice of England, with several others,
convicted of treason, before "the Lords of Parliament," in 1388. The
sentences in these cases were adjudged by the "Lords of Parliament," in
the following terms, as they are reported.

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

   Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir
   _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the
   lords temporal, by the assent of the king_, adjudged to be drawn and
   hanged, as traitors, their heirs disinherited, and their lands and
   tenements, goods and chattels, to be forfeited to the king."

   Also, in the same case, _John Blake_, "of council for the king," and
   _Thomas Uske_, under sheriff of Middlesex, having been convicted of
   treason,

   "_The lords awarded, by assent of the king_, that they should both be
   hanged and drawn as traitors, as open enemies to the king and
   kingdom, and their heirs disinherited forever, and their lands and
   tenements, goods and chattels, forfeited to the king."

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

   Also, "_John Beauchamp_, steward of the household to the king, _James
   Beroverse_, and _John Salisbury_, knights, gentlemen of the privy
   chamber, _were in like manner condemned_."--_1 Hargrave's State
   Trials_, first case.

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

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

   "This High Court of Parliament doth adjudge, that Lionel, Earl of
   Middlesex, now Lord Treasurer of England, shall lose all his offices
   which he holds in this kingdom, and shall, hereafter, be made
   incapable of any office, place, or employment in the state and
   commonwealth. That he shall be imprisoned in the tower of London,
   during the king's pleasure. That he shall pay unto our sovereign lord
   the king a fine of 50,000 pounds. That he shall never sit in
   Parliament any more, and that he shall never come within the verge of
   the court."--_2 Howell's State Trials_, 1250.

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

_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention
being made of the assent of the king_. The sentence is in these words:

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

And when it was demanded of him, before sentence, whether it were his
hand that was subscribed to his confession, and whether he would stand
to it; he made the following answer, which implies that the lords were
the ones to determine his sentence.

   "My lords, it is my act, my hand, my heart. _I beseech your lordships
   to be merciful to a broken reed._"--_1 Hargrave's State Trials_,
   386-7.

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

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

The report then adds:

   "This sentence being read, the president (of the court) spake as
   followeth: 'This sentence now read and published, is the act,
   sentence, judgment and resolution of the whole court.'"--_1
   Hargrave's State Trials_, 1037.

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

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

_After being found guilty_, the earl addressed the _lords_, for a
_mitigation of sentence_, as follows:

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

On being interrupted, he proceeded:

   "'My lords, I submit whether this be not proper in _mitigation of
   your lordships' sentence_; but whether it be or not, I leave myself
   to your lordships' justice and mercy; I am sure neither of them will
   be wanting, and I entirely submit.' * *

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

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

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

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

   "'Thomas, Earl of Macclesfield, the Lords have unanimously found you
   guilty of high crimes and misdemeanors, charged on you by the
   impeachment of the House of Commons, and do now, according to law,
   proceed to _judgment_ against you, which I am ordered to pronounce.
   Their lordships' _judgment_ is, and this high court doth adjudge,
   that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty
   thousand pounds unto our sovereign lord the king; and that you shall
   be imprisoned in the tower of London, and there kept in safe custody,
   until you shall pay the said fine.'"--_6 Hargrave's State Trials_,
   762-3-4.

This case shows that the principle of Magna Carta, that a man should be
_sentenced only_ by his peers, was in force, and acted upon as law, in
England, so lately as 1725, (five hundred years after Magna Carta,) so
far as it applied to a _peer of the realm_.

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


SECTION V.

_The Oaths of Judges._

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

The judges were sworn to "_do equal law, and execution of right, to all
the king's subjects, rich and poor, without having regard to any
person_;" and that they will "_deny no man common right_;"[59] but they
were _not_ sworn to obey or execute any statutes of the king, or of the
king and parliament. Indeed, they are virtually sworn _not_ to obey any
statutes that are against "_common right_," or contrary to "_the common
law_," or "_law of the land_;" but to "certify the king thereof"--that
is, notify him that his statutes are against the common law;--and then
proceed to execute the _common law_, notwithstanding such legislation to
the contrary. The words of the oath on this point are these:

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

When it is considered that the king was the sole legislative power, and
that he exercised this power, to a great extent, by orders in council,
and by writs and "letters" addressed often-times to some sheriff, or
other person, and that his commands, when communicated to his justices,
or any other person, "by letters," or writs, _under seal_, had as much
legal authority as laws promulgated in any other form whatever, it will
be seen that this oath of the justices _absolutely required_ that they
disregard any legislation that was contrary to "_common right_," or
"_the common law_," and notify the king that it was contrary to common
right, or the common law, and then proceed to execute the common law,
notwithstanding such legislation.[60]

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

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

   "First, we have commanded all our justices, that they shall from
   henceforth _do equal law and execution of right_ to all our subjects,
   rich and poor, without having regard to any person, _and without
   omitting to do right for any letters or commandment which may come to
   them from us, or from any other, or by any other cause. And if that
   any letters, writs, or commandments come to the justices, or to other
   deputed to do law and right according to the usage of the realm, in
   disturbance of the law, or of the execution of the same, or of right
   to the parties, the justices and other aforesaid shall proceed and
   hold their courts and processes, where the pleas and matters be
   depending before them, as if no such letters, writs, or commandments
   were come to them; and they shall certify us and our council of such
   commandments which be contrary to the law_, (that is, "the law of the
   land," or common law,) _as afore is said_.[61] And to the intent that
   our justices shall do even right to all people in the manner
   aforesaid, without more favor showing to one than to another, we have
   ordained and caused our said justices to be sworn, that they shall
   not from henceforth, as long as they shall be in the office of
   justice, take fee nor robe of any man, but of ourself, and that they
   shall take no gift nor reward by themselves, nor by other, privily
   nor apertly, of any man that hath to do before them by any way,
   except meat and drink, and that of small value; and that they shall
   give no counsel to great men or small, in case where we be party, or
   which do or may touch us in any point, upon pain to be at our will,
   body, lands, and goods, to do thereof as shall please us, in case
   they do contrary. And for this cause we have increased the fees of
   the same, our justices, in such manner as it ought reasonably to
   suffice them."--_20 Edward III._, ch. 1. (1346.)

Other statutes of similar tenor have been enacted, as follows:

   "It is accorded and established, that it shall not 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:[62]

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 you 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?" &c., 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 reënforced, 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
   English were so zealous for them, 'that they were never satisfied
   till the said laws were reënforced, 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_[63] 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, &c., &c., 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_," &c.--_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.[64]

[Footnote 34: 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.]

[Footnote 35: "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."]

[Footnote 36: 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.]

[Footnote 37: 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."--_Dunham's
Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _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.
Mackintosh says:

"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. Cyc._, 75.]

[Footnote 38: Page 31.]

[Footnote 39: 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 questions 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_,
399.]

[Footnote 40: "Alfred may, in one sense, be called the founder of these
laws, (the Saxon,) for until his time they were an unwritten code, 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 us * * 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 tourn, 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
Æthelbert, who was the first of the English who received baptism--those
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._ 1. _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 Terræ_ 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_.]

[Footnote 41: 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.]

[Footnote 42: 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.]

[Footnote 43: 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. 198. See _Kelham's Discourse before named_.]

[Footnote 44: 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.]

[Footnote 45: 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.]

[Footnote 46: "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 promulgated 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.]

[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet
Cyclopædia, 266.]

[Footnote 48: 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.]

[Footnote 49: 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.]

[Footnote 50: The jurors were sometimes called "assessors," because they
assessed, or determined the amount of fines and amercements to be
imposed.]

[Footnote 51: "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.]

[Footnote 52: 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.]

[Footnote 53: Stuart says:

"The courts, or civil arrangements, which were modelled in Germany,
preserved the independence of the people; and 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 extended their jurisdiction over
the territory they occupied.[65] 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.

"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 his 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.[66]

"_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 distinguished, 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
continue 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,[67]) 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 be holden 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 the 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 instituted within every superior
district or hundred."--3 _Blackstone_, 33, 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,
originally 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. Cæsar 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, centeni singulis, ex plebe comites concilium 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 _hæreda_ 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."--_3 Blackstone_, 34, 35.

"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., ch. 8,) a jurisdiction 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 same 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 officer._ * * 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.]

[Footnote 54: 1 Blackstone, 63-67.]

[Footnote 55: This quaint and curious book (Smith's Commonwealth of
England) describes the _minutiæ_ of trials, giving in detail the mode of
impanelling 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 cases, 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 case.

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.]

[Footnote 56: "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_.]

[Footnote 57: 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_."]

[Footnote 58: _Coke_, as late as 1588, admits that amercements must be
fixed by the peers (8 Coke's Rep. 38, 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.]

[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142
a. 2 _do._ 55, 6.]

[Footnote 60: 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 shall 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.)]

[Footnote 61: 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, &c.]

[Footnote 62: The following is a copy of the original:

   "_Forma Juramenti Regis Angliæ in Coronacione sua_:

   (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ
   Cantuariæ, antiqua et approbata, pertinet Reges Angliæ 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 præsertim leges et consuetudines
   et libertates a glorioso Rege Edwardo clero populoque concessas?

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

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

   (Et respondeat Rex,) Servabo.

   Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et
   discrecionem, 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."]

[Footnote 63: It would appear, from the text, that the Charter of
Liberties and the Charter of the Forest were sometimes called "_laws of
the land_."]

[Footnote 64: As the ancient coronation oath, given in the text, has
come down from the Saxon times, 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 injunction, 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 Curiæ' (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 Angliæ, 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.]

[Footnote 65: "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."]

[Footnote 66: 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_

   "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 proceeded 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._"--3
   _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.]

[Footnote 67: There was no distinction between the civil and criminal
counts, as to the rights or powers of juries.]