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

"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 theland the jury are the 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 where 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 etermine, by writ of right, all controversies relating to the right of lands within the manor."

3 Stephens' Commentaries, 392 3. 3 Blackstone, 32-33. "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, [17] 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 challege; 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 Angliae.

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. Tyrre11 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 [18] 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 impaneled 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 impaneled 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, [19] 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.

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But .

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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.

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Both of them (jurymen and compurgators) were obliged to swear that they would tell 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 eld in the trading towns."

Same, p. 335. Also, "The same regulation, concerning the distribution of justice by the intervention of juries, .

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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 Exhequer,) as well as into their anxiliary 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 Eng-1and, 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 curiae (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.

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