trial-by-jury-book/edited/06.markdown

# JURIES OF THE PRESENT DAY ILLEGAL


It may probably be safely asserted that there are, at this day, no legal
juries, either in England or America. And if there are no legal juries,
there is, of course, no legal trial, nor “judgment,” by jury.

In saying that there are probably no legal juries, I mean that there are
probably no juries appointed in conformity with the principles of the
_common law_.

The term _jury_ is a technical one, derived from the common law; and
when the American constitutions provide for the trial by jury, they
provide for the _common law_ trial by jury; and not merely for any trial
by jury that the government itself may chance to invent, and call by
that name. It is the _thing_, and not merely the _name_, that is
guarantied. Any legislation, therefore, that infringes any _essential
principle_ of the _common law_, in the selection of jurors, is
unconstitutional; and the juries selected in accordance with such
legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,[^79] that since Magna
Carta, the legislative power in England (whether king or parliament) has
never had any constitutional authority to infringe, by legislation, any
essential principle of the common law in the selection of jurors. All
such legislation is as much unconstitutional and void, as though it
abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the _essential principles_ of the common law,
controlling the selection of jurors?

They are two.

1. That _all_ the freemen, or adult male members of the state, shall be
eligible as jurors.[^80]

Any legislation which requires the selection of jurors to be made from a
less number of freemen than the whole, makes the jury selected an
illegal one.

If a part only of the freemen, or members of the state, are eligible as
jurors, the jury no longer represent “the country,” but only a part of
“the country.”

If the selection of jurors can be restricted to any less number of
freemen than the whole, it can be restricted to a very small proportion
of the whole; and thus the government be taken out of the hands of “the
country,” or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors
is sufficiently proved, not only by the reason of the thing, but by the
following evidence:

1. Everybody must be presumed eligible, until the contrary be shown. We
have no evidence, that I am aware of, of a prior date to Magna Carta, to
_disprove_ that all freemen were eligible as jurors, unless it be the
law of Ethelred, which requires that they be elderly[^81] men. Since no
specific age is given, it is probable, I think, that this statute meant
nothing more than that they be more than twenty-one years old. If it
meant anything more, it was probably contrary to the common law, and
therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that
all freemen, above the age of twenty-one years, were eligible as jurors.

The _Mirror of Justices_, (written within a century after Magna Carta,)
in the section “_Of Judges_”—that is, _jurors_—says:

> “All those who are not forbidden by law may be judges (jurors). To
> women it is forbidden by law that they be judges; and thence it is,
> that feme coverts are exempted to do suit in inferior courts. On the
> other part, a villein cannot be a judge, by reason of the two
> estates, which are repugnants; persons attainted of false judgments
> cannot be judges, nor infants, nor any under the age of twenty-one
> years, nor infected persons, nor idiots, nor madmen, nor deaf, nor
> dumb, nor parties in the pleas, nor men excommunicated by the bishop,
> nor criminal persons. * * And those who are not of the Christian
> faith cannot be judges, nor those who are out of the king’s
> allegiance.”—_Mirror of Justices_, 59-60.

In the section “_Of Inferior Courts_,” it is said:

> “From the first assemblies came consistories, which we now call
> courts, and that in divers places, and in divers manners; whereof the
> sheriffs held one monthly, or every five weeks, according to the
> greatness or largeness of the shires. And these courts are called
> county courts, _where the judgment is by the suitors_, if there be no
> writ, and is by warrant of jurisdiction ordinary. The other inferior
> courts are the courts of every lord of the fee, to the likeness of
> the hundred courts. * * There are other inferior courts which the
> bailiffs hold in every hundred, from three weeks to three weeks, _by
> the suitors of the freeholders of the hundred. All the tenants within
> the fees are bounden to do their suit there_, and that not for the
> service of their persons, but for the service of their fees. But
> women, infants within the age of twenty-one years, deaf, dumb,
> idiots, those who are indicted or appealed of mortal felony, before
> they be acquitted, diseased persons, and excommunicated persons are
> exempted from doing suit.”—_Mirror of Justices_, 50-51.

In the section “_Of the Sheriff’s Turns_,” it is said:

> “The sheriffs by ancient ordinances hold several meetings twice in
> the year in every hundred; _where all the freeholders within the
> hundred_ are bound to appear for the service of their fees.”—_Mirror
> of Justices_, 50.

The following statute was passed by Edward I., seventy years after Magna
Carta:

> “Forasmuch also as sheriffs, hundreders, and bailiffs of liberties,
> have used to grieve those which be placed under them, putting in
> assizes and juries men diseased and decrepit, and having continual or
> sudden disease; and men also that dwelled not in the country at the
> time of the summons; and summon also an unreasonable number of
> jurors, for to extort money from some of them, for letting them go
> in peace, and so the assizes and juries pass many times by poor men,
> and the rich abide at home by reason of their bribes; it is ordained
> that from henceforth in one assize no more shall be summoned than
> four and twenty; and old men above three score and ten years, being
> continually sick, or being diseased at the time of the summons, or
> not dwelling in that country, shall not be put in juries of petit
> assizes.”—_St. 13 Edward I._, ch. 38. (1285.)

Although this command to the sheriffs and other officers, not to summon,
as jurors, those who, from age and disease, were physically incapable of
performing the duties, may not, of itself, afford any absolute or legal
implication, by which we can determine precisely who were, and who were
not, eligible as jurors at common law, yet the exceptions here made
nevertheless carry a seeming confession with them that, at common law,
all male adults were eligible as jurors.

But the main principle of the feudal system itself shows that _all_ the
full and free adult male members of the state—that is, all who were
free born, and had not lost their civil rights by crime, or
otherwise—_must_, at common law, have been eligible as jurors. What was
that principle? It was, that the state rested for support upon the land,
and not upon taxation levied upon the people personally. The lands of
the country were considered the property of the state, and were made to
support the state _in this way_. A portion of them was set apart to the
king, the rents of which went to pay his personal and official
expenditures, not including the maintenance of armies, or the
administration of justice. War and the administration of justice were
provided for in the following manner. The freemen, or the freeborn adult
male members of the state—who had not forfeited their political
rights—were entitled to land _of right_, (until all the land was taken
up,) on condition of their rendering certain military and civil services
to the state. The military services consisted in serving personally as
soldiers, or contributing an equivalent in horses, provisions, or other
military supplies. The civil services consisted, among other things, in
serving as jurors (and, it would appear, as witnesses) in the courts of
justice. For these services they received no compensation other than
the use of their lands. In this way the state was sustained; and the
king had no power to levy additional burdens or taxes upon the people.
The persons holding lands on these terms were called _freeholders_—in
later times _freemen_—meaning free and full members of the state.

Now, as the principle of the system was that the freeholders held their
lands of the state, on the condition of rendering these military and
civil services as _rents_ for their lands, the principle implies that
_all_ the freeholders were liable to these rents, and were therefore
eligible as jurors. Indeed, I do not know that it has ever been doubted
that, at common law, _all_ the freeholders were eligible as jurors. If
all had not been eligible, we unquestionably should have had abundant
evidence of the exceptions. And if anybody, at this day, allege any
exceptions, the burden will be on him to prove them. The presumption
clearly is that _all_ were eligible.

The first invasion, which I find made, by the English statutes, upon
this common law principle, was made in 1285, seventy years after Magna
Carta. It was then enacted as follows:

> “Nor shall any be put in assizes or juries, though they ought to be
> taken in their own shire, that hold a tenement of less than the value
> of _twenty shillings yearly_. And if such assizes and juries be taken
> out of the shire, no one shall be placed in them who holds a tenement
> of less value than forty shillings yearly at the least, except such
> as be witnesses in deeds or other writings, whose presence is
> necessary, so that they be able to travel.”—_St. 13 Edward I._, ch.
> 38. (1285.)

The next invasion of the common law, in this particular, was made in
1414, about two hundred years after Magna Carta, when it was enacted:

> “That no person shall be admitted to pass in any inquest upon trial
> of the death of a man, nor in any inquest betwixt party and party in
> plea real, nor in plea personal, whereof the debt or the damage
> declared amount to forty marks, if the same person have not lands or
> tenements of the yearly value of _forty shillings above all charges
> of the same_.”—_2 Henry V._, st. 2, ch. 3. (1414.)

Other statutes on this subject of the property qualifications of jurors,
are given in the note.[^82]

From these statutes it will be seen that, since 1285, seventy years
after Magna Carta, the common law right of all free British subjects to
eligibility as jurors has been abolished, and the qualifications of
jurors have been made a subject of arbitrary legislation. In other
words, the government has usurped the authority of _selecting_ the
jurors that were to sit in judgment upon its own acts. This is
destroying the vital principle of the trial by jury itself, which is
that the legislation of the government shall be subjected to the
judgment of a tribunal, taken indiscriminately from the whole people,
without any choice by the government, and over which the government can
exercise no control. If the government can select the jurors, it will,
of course, select those whom it supposes will be favorable to its
enactments. And an exclusion of _any_ of the freemen from eligibility is
a _selection_ of those not excluded.

It will be seen, from the statutes cited, that the most absolute
authority over the jury box—that is, over the right of the people to
sit in juries—has been usurped by the government; that the
qualifications of jurors have been repeatedly changed, and made to vary
from a freehold of _ten shillings yearly_, to one of “_twenty pounds by
the year at least above reprises_.” They have also been made different,
in the counties of Southampton, Surrey, and Sussex, from what they were
in the other counties; different in Wales from what they were in
England; and different in the city of London, and in the county of
Middlesex, from what they were in any other part of the kingdom.

But this is not all. The government has not only assumed arbitrarily to
classify the people, on the basis of property, but it has even assumed
to give to some of its judges entire and absolute personal discretion in
the selection of the jurors to be impanelled in criminal cases, as the
following statutes show.

> “Be it also ordained and enacted by the same authority, that all
> panels hereafter to be returned, which be not at the suit of any
> party, that shall be made and put in afore any justice of gaol
> delivery or justices of peace in their open sessions _to inquire for
> the king, shall hereafter be reformed by additions and taking out of
> names of persons by discretion of the same justices before whom such
> panel shall be returned; and the same justices shall hereafter
> command the sheriff, or his ministers in his absence, to put other
> persons in the same panel by their discretions; and that panel so
> hereafter to be made, to be good and lawful_. This act to endure only
> to the next Parliament.”—_11 Henry VII._, ch. 24, sec. 6. (1495.)

This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
end of the then next Parliament.

It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)

_These acts gave unlimited authority to the king’s justices to pack
juries at their discretion; and abolished the last vestige of the common
law right of the people to sit as jurors, and judge of their own
liberties, in the courts to which the acts applied._

Yet, as matters of law, these statutes were no more clear violations of
the common law, the fundamental and paramount “law of the land,” than
were those statutes which affixed the property qualifications before
named; because, if the king, or the government, can select the jurors on
the ground of property, it can select them on any other ground
whatever.

Any infringement or restriction of the common law right of the whole
body of the freemen of the kingdom to eligibility as jurors, was legally
an abolition of the trial by jury itself. The juries no longer
represented “the country,” but only a part of the country; that part,
too, on whose favor the government chose to rely for the maintenance of
its power, and which it therefore saw fit to select as being the most
reliable instruments for its purposes of oppression towards the rest.
And the selection was made on the same principle, on which tyrannical
governments generally select their supporters, viz., that of
conciliating those who would be most dangerous as enemies, and most
powerful as friends—that is, the wealthy.[^83]

These restrictions, or indeed any one of them, of the right of
eligibility as jurors, was, in principle, a complete abolition of the
English constitution; or, at least, of its most vital and valuable part.
It was, in principle, an assertion of a right, on the part of the
government, to _select_ the individuals who were to determine the
authority of its own laws, and the extent of its own powers. It was,
therefore, _in effect_, the assertion of a right, on the part of the
government itself, to determine its own powers, and the authority of its
own legislation, over the people; and a denial of all right, on the part
of the people, to judge of or determine their own liberties against the
government. It was, therefore, in reality, a declaration of entire
absolutism on the part of the government. It was an act as purely
despotic, _in principle_, as would have been the express abolition of
all juries whatsoever. By “the law of the land,” which the kings were
sworn to maintain, every free adult male British subject was eligible to
the jury box, with full power to exercise his own judgment as to the
authority and obligation of every statute of the king, which might come
before him. But the principle of these statutes (fixing the
qualifications of jurors) is, that nobody is to sit in judgment upon the
acts or legislation of the king, or the government, except those whom
the government itself shall select for that purpose. A more complete
subversion of the essential principles of the English constitution could
not be devised.

The juries of England are illegal for another reason, viz., that the
statutes cited require the jurors (except in London and a few other
places) to be _freeholders_. All the other free British subjects are
excluded; whereas, at common law, all such subjects are eligible to sit
in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to be
freeholders; but the term _freeholder_ no longer expresses the same idea
that it did in the ancient common law; because no land is now holden in
England on the same principle, or by the same tenure, as that on which
all the land was held in the early times of the common law.

As has heretofore been mentioned, in the early times of the common law
the land was considered the property of the state; and was all holden by
the _tenants_, so called, (that is, _holders_,) on the condition of
their rendering certain military and civil services to the state, (or to
the king as the representative of the state,) under the name of _rents_.
Those who held lands on these terms were called free _tenants_, that is,
_free holders_—meaning free persons, or members of the state, holding
lands—to distinguish them from villeins, or serfs, who were not members
of the state, but held their lands by a more servile tenure, and also to
distinguish them from persons of foreign birth, outlaws, and all other
persons, who were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil rights
by crime or otherwise) was entitled to land of _right_; that is, by
virtue of his civil freedom, or membership of the body politic. Every
member of the state was therefore a freeholder; and every freeholder was
a member of the state. And the members of the state were therefore
called freeholders. But what is material to be observed, is, that a
man’s right to land was an incident to his _civil freedom_; not his
civil freedom an incident to his right to land. He was a freeholder
because he was a _freeborn_ member of the state; and not a freeborn
member of the state because he was a freeholder; for this last would be
an absurdity.

As the tenures of lands changed, the term _freeholder_ lost its original
significance, and no longer described a man who held land of the state
by virtue of his civil freedom, but only one who held it in
fee-simple—that is, free of any liability to military or civil
services. But the government, in fixing the qualifications of jurors,
has adhered to the term _freeholder_ after that term has ceased to
express the _thing_ originally designated by it.

The principle, then, of the common law, was, that every freeman, or
freeborn male Englishman, of adult age, &c., was eligible to sit in
juries, by virtue of his civil freedom, or his being a member of the
state, or body politic. But the principle of the present English
statutes is, that a man shall have a right to sit in juries because he
owns lands in fee-simple. At the common law a man was _born_ to the
right to sit in juries. By the present statutes he _buys_ that right
when he buys his land. And thus this, the greatest of all the political
rights of an Englishman, has become a mere article of merchandise; a
thing that is bought and sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but only in
juries to which every free or natural born adult male Englishman is
eligible.

The second essential principle of the common law, controlling the
selection of jurors, is, that when the selection of the actual jurors
comes to be made, (from the whole body of male adults,) that selection
shall be made in some mode that excludes the possibility of choice _on
the part of the government_.

Of course, this principle forbids the selection to be made _by any
officer of the government_.

There seem to have been at least three modes of selecting the jurors, at
the common law. 1. By lot.[^84] 2. Two knights, or other freeholders,
were appointed, (probably by the sheriff,) to select the jurors. 3. By
the sheriff, bailiff, or other person, who held the court, or rather
acted as its ministerial officer. Probably the latter mode may have been
the most common, although there may be some doubt on this point.

At the common law the sheriffs, bailiffs, and other officers _were
chosen by the people, instead of being appointed by the king_. (_4
Blackstone_, 413. _Introduction to Gilbert’s History of the Common
Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former
chapter.[^85] At common law, therefore, jurors selected by these officers
were legally selected, so far as the principle now under discussion is
concerned; that is, they were not selected by any officer who was
dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the choice of
sheriffs was taken from the people, and it was enacted:

> “That the sheriffs shall henceforth be assigned by the chancellor,
> treasurer, barons of the exchequer, and by the justices. And in the
> absence of the chancellor, by the treasurer, barons and
> justices.”—_9 Edward II._, st. 2. (1315.)

These officers, who appointed the sheriffs, were themselves appointed by
the king, and held their offices during his pleasure. Their appointment
of sheriffs was, therefore, equivalent to an appointment by the king
himself. And the sheriffs, thus appointed, held their offices only
during the pleasure of the king, and were of course mere tools of the
king; and their selection of jurors was really a selection by the king
himself. In this manner the king usurped the selection of the jurors who
were to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial by
jury was destroyed, so far as related to the county courts, in which the
sheriffs presided, and which were the most important courts of the
kingdom. From this cause alone, if there were no other, there has not
been a legal jury in a _county_ court in England, for more than five
hundred years.

In nearly or quite all the States of the United States the juries are
illegal, for one or the other of the same reasons that make the juries
in England illegal.

In order that the juries in the United States may be legal—that is, in
accordance with the principles of the common law—it is necessary that
every adult male member of the state should have his name in the jury
box, or be eligible as a juror. Yet this is the case in hardly a single
state.

In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
jurors are required to be _freeholders_. But this requirement is
illegal, for the reason that the term _freeholder_, in this country, has
no meaning analogous to the meaning it had in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
“freeholders or householders.” Each of these requirements is illegal.

In Florida, they are required to be “householders.”

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
the qualifications of “electors.”

In Virginia, they are required to have a property qualification of one
hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,
Michigan, and Wisconsin, certain civil authorities of the towns, cities,
and counties are authorized to select, once in one, two, or three years,
a certain number of the people—a small number compared with the
whole—from whom jurors are to be taken when wanted; thus disfranchising
all except the few thus selected.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a
veto upon the jurors selected by the authorities of the town.

In Massachusetts, the inhabitants, by vote in town meeting, can strike
out any names inserted by the authorities, and insert others; thus
making jurors elective by the people, and, of course, representatives
only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by the
county commissioners.

In North Carolina, “_the courts of pleas and quarter sessions_ * * shall
select the names of such persons only as are freeholders, and as are
well qualified to act as jurors, &c.; thus giving the courts power to
pack the juries.”—(_Revised Statutes_, 147.)

In Arkansas, too, “It shall be the duty of the _county court_ of each
county * * to make out and cause to be delivered to the sheriff a list
of not less than sixteen, nor more than twenty-three persons, qualified
to serve as _grand_ jurors;” and the sheriff is to summon such persons
to serve as _grand_ jurors.

In Tennessee, also, the jurors are to be selected by the _county
courts_.

In Georgia, the jurors are to be selected by “the justices of the
inferior courts of each county, together with the sheriff and clerk, or
a majority of them.”

In Alabama, “the sheriff, judge of the county court, and clerks of the
circuit and county courts,” or “a majority of” them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but the sheriffs
are appointed by the governor of the state, and that is enough to make
the juries illegal. Probably the same objection lies against the
legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in New
Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,
Kentucky, Iowa, Texas, and California, I know not. There is little doubt
that there is some valid objection to them, of the kinds already
suggested, in all these states.

In regard to jurors in the courts of the United States, it is enacted,
by act of Congress:

> “That jurors to serve in the courts of the United States, in each
> state respectively, shall have the like qualifications, and be
> entitled to the like exemptions, as jurors of the highest court of
> law of such state now have and are entitled to, and shall hereafter,
> from time to time, have and be entitled to, and shall be designated
> by ballot, lot, or otherwise, according to the mode of forming such
> juries now practised and hereafter to be practised therein, in so far
> as such mode may be practicable by the courts of the United States,
> or the officers thereof; and for this purpose, the said courts shall
> have power to make all necessary rules and regulations for conforming
> the designation and empanelling of jurors, in substance, to the laws
> and usages now in force in such state; and, further, shall have
> power, by rule or order, from time to time, to conform the same to
> any change in these respects which may be hereafter adopted by the
> legislatures of the respective states for the state courts.”—_St._
> 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394.

In this corrupt and lawless manner, Congress, instead of taking care to
preserve the trial by jury, so far as they might, by providing for the
appointment of legal juries—incomparably the most important of all our
judicial tribunals, and the only ones on which the least reliance can be
placed for the preservation of liberty—have given the selection of them
over entirely to the control of an indefinite number of state
legislatures, and thus authorized each state legislature to adapt the
juries of the United States to the maintenance of any and every system
of tyranny that may prevail in such state.

Congress have as much constitutional right to give over all the
functions of the United States government into the hands of the state
legislatures, to be exercised within each state in such manner as the
legislature of such state shall please to exercise them, as they have to
thus give up to these legislatures the selection of juries for the
courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by jury,
in a single court of the United States, since the adoption of the
constitution.

These facts show how much reliance can be placed in written
constitutions, to control the action of the government, and preserve the
liberties of the people.

If the real trial by jury had been preserved in the courts of the United
States—that is, if we had had legal juries, and the jurors had known
their rights—it is hardly probable that one tenth of the past
legislation of Congress would ever have been enacted, or, at least,
that, if enacted, it could have been enforced.

Probably the best mode of appointing jurors would be this: Let the names
of _all_ the adult male members of the state, in each township, be kept
in a jury box, by the officers of the township; and when a court is to
be held for a county or other district, let the officers of a sufficient
number of townships be required (without seeing the names) to draw out a
name from their boxes respectively, to be returned to the court as a
juror. This mode of appointment would guard against collusion and
selection; and juries so appointed would be likely to be a fair epitome
of “the country.”

[^79]: On the English Constitution.

[^80]: Although all the freemen are legally eligible as jurors,
    any one may nevertheless be challenged and set aside, at the trial, for
    any special _personal_ disqualification; such as mental or physical
    inability to perform the duties; having been convicted, or being under
    charge, of crime; interest, bias, &c. But it is clear that the common
    law allows none of these points to be determined by the court, but only
    by “_triers_.”

[^81]: What was the precise meaning of the Saxon word, which I
    have here called _elderly_, I do not know. In the Latin translations it
    is rendered by _seniores_, which may perhaps mean simply those who have
    attained their majority.

[^82]: In 1483 it was enacted, by a statute entitled “Of what
    credit and estate those jurors must be which shall be impanelled in the
    Sheriff’s Turn.”
    
    > “That no bailiff nor other officer from henceforth return or impanel
    > any such person in any shire of England, to be taken or put in or
    > upon any inquiry in any of the said Turns, but such as be of good
    > name and fame, and having lands and tenements of freehold within the
    > same shires, to the yearly value of _twenty shillings_ at the least,
    > or else lands and tenements holden by custom of manor, commonly
    > called _copy-hold_, within the said shires, to the yearly value of
    > twenty-six shillings eight pence over all charges at the least.”—_1
    > Richard III._, ch. 4. (1483.)
    
    > In 1486 it was enacted, “That the justices of the peace of every
    > shire of this realm for the time being may take, by their discretion,
    > an inquest, whereof every man shall have lands and tenements to the
    > yearly value of _forty shillings_ at the least, to inquire of the
    > concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.)
    
    A statute passed in 1494, in regard to jurors in the city of London,
    enacts:
    
    > “That no person nor persons hereafter be impanelled, summoned, or
    > sworn in any jury or inquest in courts within the same city, (of
    > London,) except he be of lands, tenements, or goods and chattels, to
    > the value of _forty marks_;[^86] and that no person or persons
    > hereafter be impanelled, summoned, nor sworn in any jury or inquest
    > in any court within the said city, for lands or tenements, or action
    > personal, wherein the debt or damage amounteth to the sum of forty
    > marks, or above, except he be in lands, tenements, goods, or
    > chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch.
    > 21. (1494.)
    
    The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
    London to have “_goods_ to the value of one hundred marks.”
    
    > In 1494 it was enacted that “It shall be lawful to every sheriff of
    > the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
    > summons twenty-four lawful men of such, inhabiting within the
    > precinct of his or their turns, as owe suit to the same turn, whereof
    > every one hath lands or freehold to the yearly value of _ten_
    > shillings, or copy-hold lands to the yearly value of _thirteen
    > shillings four pence_, above all charges within any of the said
    > counties, or men of less livelihood, if there be not so many there,
    > notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
    > the next parliament.”—_11 Henry VII._, ch. 26. (1494.)
    
    This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
    
    > In 1531 it was enacted, “That every person or persons, being the
    > king’s natural subject born, which either by the name of citizen, or
    > of a freeman, or any other name, doth enjoy and use the liberties and
    > privileges of any city, borough, or town corporate, where he dwelleth
    > and maketh his abode, being worth in _movable goods and substance_ to
    > the clear value of _forty pounds_, be henceforth admitted in trials
    > of murders and felonies in every sessions and gaol delivery, to be
    > kept and holden in and for the liberty of such cities, boroughs, and
    > towns corporate, albeit they have no freehold; any act, statute, use,
    > custom, or ordinance to the contrary hereof notwithstanding.”—_23
    > Henry VIII._, ch. 13. (1531.)
    
    > In 1585 it was enacted, “That in all cases where any jurors to be
    > returned for trial of any issue or issues joined in any of the
    > Queen’s majesty’s courts of King’s Bench, Common Pleas, and the
    > Exchequer, or before justices of assize, by the laws of this realm
    > now in force, ought to have estate of freehold in lands, tenements,
    > or hereditaments, of the clear yearly value of _forty shillings_,
    > that in every such case the jurors that shall be returned from and
    > after the end of this present session of parliament, shall every of
    > them have estate of freehold in lands, tenements, or hereditaments,
    > to the clear yearly value of _four pounds_ at the least.”—_27
    > Elizabeth_, ch. 6. (1585.)
    
    > In 1664-5 it was enacted, “That all jurors (other than strangers upon
    > trials _per medietatem linguæ_) who are to be returned for the trials
    > of issues joined in any of (his) majesty’s courts of king’s bench,
    > common pleas, or the exchequer, or before justices of assize, or nisi
    > prius, oyer and terminer, gaol delivery, or general or quarter
    > sessions of the peace, from and after the twentieth day of April,
    > which shall be in the year of our Lord one thousand six hundred and
    > sixty-five, in any county of this realm of England, shall every of
    > them thon have, in their own name, or in trust for them, within the
    > same county, _twenty pounds by the year_, at least, above reprises,
    > in their own or their wives’ right, of freehold lands, or of ancient
    > demesne, or of rents in fee, fee-tail, or for life. And that in every
    > county within the dominion of Wales every such juror shall then have,
    > within the same, _eight pounds by the year_, at the least, above
    > reprises, in manner aforesaid. All which persons having such estate
    > as aforesaid are hereby enabled and made liable to be returned and
    > serve as jurors for the trial of issues before the justices
    > aforesaid, any law or statute to the contrary in any wise
    > notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.)
    
    By a statute passed in 1692, jurors in England are to have landed
    estates of the value of _ten pounds a year_; and jurors in Wales to have
    similar estates of the realm of _six pounds a year_.—_4 and 5 William
    and Mary_, ch. 24, sec. 14. (1692.)
    
    By the same statute, (sec. 18,) persons may be returned to serve upon
    the _tales_ in any county of England, who shall have, within the same
    county, _five pounds by the year_, above reprises, in the manner
    aforesaid.
    
    By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
    London, who shall not be “an householder within the said city, and have
    lands, tenements, or personal estate, to the value of _one hundred
    pounds_.”
    
    By another statute, applicable only to the county of _Middlesex_, it is
    enacted,
    
    > “That all leaseholders, upon leases where the improved rents or value
    > shall amount to _fifty pounds or upwards per annum_, over and above
    > all ground rents or other reservations payable by virtue of the said
    > leases, shall be liable and obliged to serve upon juries when they
    > shall be legally summoned for that purpose.”—_4 George II._, ch. 7,
    > sec. 3. (1731.)

[^83]: Suppose these statutes, instead of disfranchising all
    whose freeholds were of less than the standard value fixed by the
    statutes, had disfranchised all whose freeholds were of greater value
    than the same standard—would anybody ever have doubted that such
    legislation was inconsistent with the English constitution; or that it
    amounted to an entire abolition of the trial by jury? Certainly not. Yet
    it was as clearly inconsistent with the common law, or the English
    constitution, to disfranchise those whose freeholds fell below any
    arbitrary standard fixed by the government, as it would have been to
    disfranchise all whose freeholds rose above that standard.

[^84]: _Lingard_ says: “These compurgators or jurors * * were
    sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
    300.

[^85]: Chapter 4, p. 120, note.

[^86]: A mark was thirteen shillings and four pence.