2794 lines
156 KiB
Markdown
2794 lines
156 KiB
Markdown
# ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS
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If any evidence, extraneous to the history and language of Magna Carta,
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were needed to prove that, by that chapter which guaranties the trial by
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jury, all was meant that has now been ascribed to it, and _that the
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legislation of the king was to be of no authority with the jury beyond
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what they chose to allow to it_, and that the juries were to limit the
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punishments to be inflicted, we should find that evidence in various
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sources, such as the laws, customs, and characters of their ancestors on
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the continent, and of the northern Europeans generally; in the
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legislation and customs that immediately succeeded Magna Carta; in the
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oaths that have at different times been administered to jurors, &c., &c.
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This evidence can be exhibited here but partially. To give it all would
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require too much space and labor.
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## Weakness of the Regal Authority
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Hughes, in his preface to his translation of Horne’s “_Mirror of
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Justices_,” (a book written in the time of Edward I., 1272 to 1307,)
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giving a concise view of the laws of England generally, says:
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> “Although in the Saxon’s time I find the usual words of the acts then
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> to have been _edictum_, (edict,) _constitutio_, (statute,) little
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> mention being made of the commons, yet I further find that, _tum
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> demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ
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> sed firmatæ approbatione communitatis_.” (The laws had force and
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> vigor only when they were not only enacted, but confirmed by the
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> approval of the community.)
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The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking
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“_Of the first Constitutions of the Ancient Kings_:”
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> “Many ordinances were made by many kings, until the time of the king
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> that now is (Edward I.); the which ordinances were abused, _or not
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> used by many, nor very current_, because they were not put in
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> writing, and certainly published.”—_Mirror of Justices_, p. 6.
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Hallam says:
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> “The Franks, Lombards, and Saxons seem alike to have been jealous of
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> judicial authority; and averse to surrendering what concerned every
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> man’s private right, out of the hands of his neighbors and
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> equals.”—_1 Middle Ages_, 271.
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The “judicial authority,” here spoken of, was the authority of the
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kings, (who at that time united the office of both legislators and
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judges,) and not of a separate department of government, called the
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judiciary, like what has existed in more modern times.[^34]
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Hume says:
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> “The government of the Germans, and that of all the northern nations,
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> who established themselves on the ruins of Rome, was always extremely
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> free; and those fierce people, accustomed to independence and inured
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> to arms, _were more guided by persuasion than authority, in the
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> submission which they paid to their princes_. The military despotism,
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> which had taken place in the Roman empire, and which, previously to
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> the irruption of those conquerors, had sunk the genius of men, and
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> destroyed every noble principle of science and virtue, was unable to
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> resist the vigorous efforts of a free people, and Europe, as from a
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> new epoch, rekindled her ancient spirit, and shook off the base
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> servitude to arbitrary will and authority under which she had so long
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> labored. The free constitutions then established, however impaired by
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> the encroachments of succeeding princes, still preserve an air of
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> independence and legal administration, which distinguished the
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> European nations; and if that part of the globe maintain sentiments
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> of liberty, honor, equity, and valor, superior to the rest of
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> mankind, it owes these advantages chiefly to the seeds implanted by
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> those generous barbarians.
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> “_The Saxons, who subdued Britain, as they enjoyed great liberty in
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> their own country, obstinately retained that invaluable possession in
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> their new settlement; and they imported into this island the same
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> principles of independence, which they had inherited from their
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> ancestors. The chieftains, (for such they were, more than kings or
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> princes,) who commanded them in those military expeditions, still
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> possessed a very limited authority_; and as the Saxons exterminated,
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> rather than subdued the ancient inhabitants, they were, indeed,
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> transplanted into a new territory, _but preserved unaltered all their
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> civil and military institutions_. The language was pure Saxon; even
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> the names of places, which often remain while the tongue entirely
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> changes, were almost all affixed by the conquerors; the manners and
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> customs were wholly German; and the same picture of a fierce and bold
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> liberty, which is drawn by the masterly pen of Tacitus, will suit
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> those founders of the English government. _The king, so far from
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> being invested with arbitrary power, was only considered as the first
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> among the citizens; his authority depended more on his personal
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> qualities than on his station; he was even so far on a level with the
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> people, that a stated price was fixed for his head, and a legal fine
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> was levied upon his murderer, which though proportionate to his
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> station, and superior to that paid for the life of a subject, was a
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> sensible mark of his subordination to the community._”—_1 Hume_,
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> _Appendix_, 1.
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Stuart says:
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> “The Saxons brought along with them into Britain their own customs,
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> language, and civil institutions. Free in Germany, they renounced not
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> their independence, when they had conquered. Proud from victory, and
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> with their swords in their hands, would they surrender their
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> liberties to a private man? Would temporary leaders, limited in their
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> powers, and unprovided in resources, ever think to usurp an authority
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> over warriors, who considered themselves as their equals, were
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> impatient of control, and attached with devoted zeal to their
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> privileges? Or, would they find leisure to form resolutions, or
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> opportunities to put them in practice, amidst the tumult and
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> confusion of those fierce and bloody wars, which their nations first
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> waged with the Britons, and then engaged in among themselves?
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> Sufficiently flattered in leading the armies of their countrymen, the
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> ambition of commanders could as little suggest such designs, as the
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> liberty of the people could submit to them. The conquerors of Britain
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> retained their independence; and this island saw itself again in
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> that free state in which the Roman arms had discovered it.
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> “The same firmness of character, and generosity of manners, which, in
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> general, distinguished the Germans, were possessed in an eminent
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> degree by the Saxons; and while we endeavor to unfold their political
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> institutions, we must perpetually turn our observation to that
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> masterly picture in which the Roman historian has described these
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> nations. In the woods of Germany shall we find the principles which
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> directed the state of land, in the different kingdoms of Europe; and
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> there shall we find the foundation of those ranks of men, and of
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> those civil arrangements, which the barbarians everywhere
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> established; and which the English alone have had the good fortune,
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> or the spirit, to preserve.”—_Stuart on the Constitution of
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> England_, p. 59-61.
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> “Kings they (the Germans) respected as the first magistrates of the
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> state; but the authority possessed by them was narrow and
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> limited.”—_Ditto_, p. 134.
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> “Did he, (the king,) at any time, relax his activity and martial
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> ardor, did he employ his abilities to the prejudice of his nation, or
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> fancy he was superior to the laws; the same power which raised him to
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> honor, humbled and degraded him. The customs and councils of his
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> country pointed out to him his duty; and if he infringed on the
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> former, or disobeyed the latter, a fierce people set aside his
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> authority. * *
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> “His long hair was the only ornament he affected, and to be foremost
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> to attack an enemy was his chief distinction. Engaged in every
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> hazardous expedition, he was a stranger to repose; and, rivalled by
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> half the heroes of his tribe, he could obtain little power. Anxious
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> and watchful for the public interest, he felt every moment his
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> dependence, and gave proofs of his submission.
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> “He attended the general assembly of his nation, and was allowed the
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> privilege to harangue it first; but the arts of persuasion, though
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> known and respected by a rude people, were unequally opposed to the
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> prejudices and passions of men.”—_Ditto_, p. 135-6.
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> “_The authority of a Saxon monarch was not more considerable. The
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> Saxons submitted not to the arbitrary rule of princes. They
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> administered an oath to their sovereigns, which bound them to
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> acknowledge the laws, and to defend the rights of the church and
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> people; and if they forgot this obligation, they forfeited their
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> office._ In both countries, a price was affixed on kings, a fine
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> expiated their murder, as well as that of the meanest citizen; and
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> the smallest violation of ancient usage, or the least step towards
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> tyranny, was always dangerous, and often fatal to them.”—_Ditto_, p.
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> 139-40.
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> “They were not allowed to impose taxes on the kingdom.”—_Ditto_, p.
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> 146.
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> “Like the German monarchs, they deliberated in the general assembly
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> of the nation; _but their legislative authority was not much
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> respected_; and their assent was considered in no better light than
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> as a form. This, however, was their chief prerogative; and they
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> employed it to acquire an ascendant in the state. To art and
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> insinuation they turned, as their only resource, and flattered a
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> people whom they could not awe; but address, and the abilities to
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> persuade, were a weak compensation for the absence of real power.
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> “They declared war, it is said, and made peace. In both cases,
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> however, they acted as the instruments of the state, and put in
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> execution the resolutions which its councils had decreed. If, indeed,
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> an enemy had invaded the kingdom, and its glory and its safety were
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> concerned, the great lords took the field at the call of their
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> sovereign. But had a sovereign declared war against a neighboring
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> state, without requiring their advice, or if he meant to revenge by
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> arms an insult offered to him by a subject, a haughty and independent
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> nobility refused their assistance. These they considered as the
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> quarrels of the king, and not of the nation; and in all such
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> emergencies he could only be assisted by his retainers and
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> dependents.”—_Ditto_, p. 147-8.
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> “Nor must we imagine that the Saxon, any more than the German
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> monarchs, succeeded each other in a lineal descent,[^35] or that they
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> disposed of the crown at their pleasure. In both countries, the free
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> election of the people filled the throne; and their choice was the
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> only rule by which princes reigned. The succession, accordingly, of
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> their kings was often broken and interrupted, and their depositions
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> were frequent and groundless. The will of a prince whom they had long
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> respected, and the favor they naturally transferred to his
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> descendant, made them often advance him to the royal dignity; but the
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> crown of his ancestor he considered as the gift of the people, and
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> neither expected nor claimed it as a right.”—_Ditto_, p. 151-3.
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In Germany “It was the business of the great to command in war, and in
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peace they distributed justice. * *
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> “The _princes_ in Germany were _earls_ in England. The great
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> contended in both countries in the number of their retainers, and in
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> that splendor and magnificence which are so alluring to a rude
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> people; and though they joined to set bounds to regal power, they
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> were often animated against each other with the fiercest hatred. To a
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> proud and impatient nobility it seemed little and unsuiting to give
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> or accept compositions for the injuries they committed or received;
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> and their vassals adopting their resentment and passions, war and
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> bloodshed alone could terminate their quarrels. What necessarily
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> resulted from their situation in society, was continued as a
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> _privilege_; and the great, in both countries, made war, of their
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> private authority, on their enemies. The Saxon earls even carried
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> their arms against their sovereigns; and, surrounded with retainers,
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> or secure in fortresses and castles, they despised their resentment,
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> and defied their power.
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> “The judges of the people, they presided in both countries in courts
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> of law.[^36] The particular districts over which they exerted their
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> authority were marked out in Germany by the council of the state; and
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> in England their jurisdiction extended over the fiefs and other
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> territories they possessed. All causes, both civil and criminal, were
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> tried before them; and they judged, except in cases of the utmost
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> importance, without appeal. They were even allowed to grant pardon to
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> criminals, and to correct by their clemency the rigors of justice.
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> Nor did the sovereign exercise any authority in their lands. In these
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> his officers formed no courts, and his _writ_ was disregarded. * *
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> “They had officers, as well as the king, who collected their
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> revenues, and added to their greatness; and the inhabitants of their
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> lands they distinguished by the name of _subjects_.
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> “But to attend the general assembly of their nation was the chief
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> prerogative of the German and Saxon princes; and as they consulted
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> the interest of their country, and deliberated concerning matters of
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> state, so in the _king’s court_, of which also they were members,
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> they assisted to pronounce judgment in the complaints and appeals
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> which were lodged in it.”—_Ditto_, p. 158 to 165.
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Henry says:
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> “Nothing can be more evident than this important truth; that our
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> Anglo-Saxon kings were not absolute monarchs; but that their powers
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> and prerogatives were limited by the laws and customs of the country.
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> Our Saxon ancestors had been governed by limited monarchs in their
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> native seats on the continent; and there is not the least appearance
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> or probability that they relinquished their liberties, and submitted
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> to absolute government in their new settlements in this island. It is
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> not to be imagined that men, whose reigning passion was the love of
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> liberty, would willingly resign it; and their new sovereigns, who had
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> been their fellow-soldiers, had certainly no power to compel them to
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> such a resignation.”—_3 Henry’s History of Great Britain_, 358.
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> Mackintosh says: “The Saxon chiefs, who were called kings, originally
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> acquired power by the same natural causes which have gradually, and
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> everywhere, raised a few men above their fellows. They were,
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> doubtless, more experienced, more skilful, more brave, or more
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> beautiful, than those who followed them. * * A king was powerful in
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> war by the lustre of his arms, and the obvious necessity of
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> obedience. His influence in peace fluctuated with his personal
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> character. In the progress of usage his power became more fixed and
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> more limited. * * It would be very unreasonable to suppose that the
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> northern Germans who had conquered England, had so far changed their
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> characteristic habits from the age of Tacitus, that the victors
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> became slaves, and that their generals were converted into
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> tyrants.”—_Mackintosh’s Hist. of England, Ch. 2._ _45 Lardner’s Cab.
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> Cyc._, 73-4.
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Rapin, in his discourse on the “Origin and Nature of the English
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Constitution,” says:
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> “There are but two things the Saxons did not think proper to trust
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> their kings with; for being of like passions with other men, they
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> might very possibly abuse them; namely, the power of changing the
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> laws enacted by consent of king and people; and the power of raising
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> taxes at pleasure. From these two articles sprung numberless branches
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> concerning the liberty and property of the subject, which the king
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> cannot touch, without breaking the constitution, and they are the
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> distinguishing character of the English monarchy. The prerogatives of
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> the crown, and the rights and privileges of the people, flowing from
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> the two fore-mentioned articles, are the ground of all the laws that
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> from time to time have been made by unanimous consent of king and
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> people. The English government consists in the strict union of the
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> king’s prerogatives with the people’s liberties. * * But when kings
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> arose, as some there were, that aimed at absolute power, by changing
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> the old, and making new laws, at pleasure; by imposing illegal taxes
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> on the people; this excellent government being, in a manner,
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> dissolved by these destructive measures, confusion and civil wars
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> ensued, which some very wrongfully ascribe to the fickle and restless
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> temper of the English.”—_Rapin’s Preface to his History of England._
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Hallam says that among the Saxons, “the royal authority was weak.”—_2
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Middle Ages_, 403.
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But although the king himself had so little authority, that it cannot be
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supposed for a moment that his laws were regarded as imperative by the
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people, it has nevertheless been claimed, in modern times, by some who
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seem determined to find or make a precedent for the present legislative
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authority of parliament, that his laws were authoritative, _when
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assented to_ by the _Witena-gemote_, or assembly of wise men—that is,
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the bishops and barons. But this assembly evidently had no legislative
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power whatever. The king would occasionally invite the bishops and
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barons to meet him for consultation on public affairs, _simply as a
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council_, and not as a legislative body. Such as saw fit to attend, did
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so. If they were agreed upon what ought to be done, the king would pass
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a law accordingly, and the barons and bishops would then return and
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inform the people orally what laws had been passed, and use their
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influence with them to induce them to conform to the law of the king,
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and the recommendation of the council. And the people no doubt were much
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more likely to accept a law of the king, if it had been approved by this
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council, than if it had not. But it was still only a law of the king,
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which they obeyed or disregarded according to their own notions of
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expediency. The numbers who usually attended this council were too small
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to admit of the supposition that they had any legislative authority
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whatever, to impose laws upon the people against their will.
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Lingard says:
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> “It was necessary that the king should obtain the assent of these
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> (the members of the Witena-gemotes) to all legislative enactments;
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> _because, without their acquiescence and support, it was impossible
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> to carry them into execution_. To many charters (laws) we have the
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> signatures of the Witan. _They seldom exceed thirty in number; they
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> never amount to sixty._”—_1 Lingard_, 486.
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It is ridiculous to suppose that the assent of such an assembly gave any
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_authority_ to the laws of the king, or had any influence in securing
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obedience to them, otherwise than by way of persuasion. If this body had
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had any real legislative authority, such as is accorded to legislative
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bodies of the present day, they would have made themselves at once the
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most conspicuous portion of the government, and would have left behind
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them abundant evidence of their power, instead of the evidence simply of
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their assent to a few laws passed by the king.
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More than this. If this body had had any real legislative authority,
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they would have constituted an aristocracy, having, in conjunction with
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the king, absolute power over the people. Assembling voluntarily, merely
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on the invitation of the king; deputed by nobody but themselves;
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representing nobody but themselves; responsible to nobody but
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themselves; their legislative authority, if they had had any, would of
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necessity have made the government the government of an aristocracy
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merely, _and the people slaves, of course_. And this would necessarily
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have been the picture that history would have given us of the
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Anglo-Saxon government, _and of Anglo-Saxon liberty_.
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The fact that the people had no representation in this assembly, and the
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further fact that, through their juries alone, they nevertheless
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maintained that noble freedom, the very tradition of which (after the
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substance of the thing itself has ceased to exist) has constituted the
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greatest pride and glory of the nation to this day, _prove_ that this
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assembly exercised no authority which juries of the people acknowledged,
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except at their own discretion.[^37]
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There is not a more palpable truth, in the history of the Anglo-Saxon
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government, than that stated in the Introduction to Gilbert’s History of
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the Common Pleas,[^38] viz., “_that the County and Hundred Courts_,” (to
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which should have been added the other courts in which juries sat, the
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courts-baron and court-leet,) “_in those times were the real and only
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Parliaments of the kingdom_.” And why were they the real and only
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parliaments of the kingdom? Solely because, as will be hereafter shown,
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the juries in those courts tried causes on their intrinsic merits,
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according to their own ideas of justice, irrespective of the laws agreed
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upon by kings, priests, and barons; and whatever principles they
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uniformly, or perhaps generally, enforced, _and none others_, became
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practically the law of the land as matter of course.[^39]
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Finally, on this point. Conclusive proof that the legislation of the
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king was of little or no authority, is found in the fact _that the kings
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enacted so few laws_. If their laws had been received as authoritative,
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in the manner that legislative enactments are at this day, they would
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have been making laws continually. Yet the codes of the most celebrated
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kings are very small, and were little more than compilations of
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immemorial customs. The code of Alfred would not fill twelve pages of
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the statute book of Massachusetts, and was little or nothing else than a
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compilation of the laws of Moses, and the Saxon customs, evidently
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collected from considerations of convenience, rather than enacted on the
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principle of authority. The code of Edward the Confessor would not fill
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twenty pages of the statute book of Massachusetts, and, says Blackstone,
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“seems to have been no more than a new edition, or fresh promulgation of
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Alfred’s code, or _dome-book_, with such additions and improvements as
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the experience of a century and a half suggested.”—_1 Blackstone_,
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66.[^40]
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The Code of William the Conqueror[^41] would fill less than seven pages
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of the statute book of Massachusetts; and most of the laws contained in
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it are taken from the laws of the preceding kings, and especially of
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Edward the Confessor (whose laws William swore to observe); but few of
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his own being added.
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The codes of the other Saxon and Norman kings were, as a general rule,
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less voluminous even than these that have been named; and probably did
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not exceed them in originality.[^42] The Norman princes, from William the
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Conqueror to John, I think without exception, bound themselves, and, in
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||
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]
|
||
|
||
|
||
## 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.
|
||
|
||
|
||
## 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]
|
||
|
||
|
||
## 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.
|
||
|
||
|
||
## 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.
|
||
|
||
|
||
## 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]
|
||
|
||
[^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.
|
||
|
||
[^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.”
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^38]: Page 31.
|
||
|
||
[^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.
|
||
|
||
[^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_.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^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_.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^47]: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet
|
||
Cyclopædia, 266.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^50]: The jurors were sometimes called “assessors,” because they
|
||
assessed, or determined the amount of fines and amercements to be
|
||
imposed.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^54]: 1 Blackstone, 63-67.
|
||
|
||
[^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.
|
||
|
||
[^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_.
|
||
|
||
[^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_.”
|
||
|
||
[^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.
|
||
|
||
[^59]: “_Common right_” was the common law. _1 Coke’s Inst._ 142
|
||
a. 2 _do._ 55, 6.
|
||
|
||
[^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.)
|
||
|
||
[^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.
|
||
|
||
[^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.”
|
||
|
||
[^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_.”
|
||
|
||
[^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.
|
||
|
||
[^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.”
|
||
|
||
[^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.
|
||
|
||
[^67]: There was no distinction between the civil and criminal
|
||
counts, as to the rights or powers of juries.
|