Essay on the Trial by Jury — Ch 3 – Part 2 – Ancient Common Law Juries were Mere Courts of Conscience

SECTION II

The Ancient Common Law Juries were mere Courts of Conscience.

But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested.

If this administration be in accordance with the arbitrary will of the legislator that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals, the government is a despotism, and the people are slaves.

If, on the other hand, the rule of decision be these 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, 80. ) 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.

[11] 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 bailiff's, 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.

[12] 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.

[13] Of those that werewritten, few copies only were made, (printing being then unknown,) and not enough to supply a11, 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 thattime, 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.

[14].

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 beingeven 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.

[15] 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 sheriff's 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 832. 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 nem-bas; 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.

[16] "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. T.

, 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 aud 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 kng'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' praed' 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 s1ieriff's; yet, by the old feudal constititions, 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 hy 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. 61- 2. "It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coextensive 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 curiae, (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 Rxchequer, 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 twele 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."

Tomline'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 judge, could not he 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.