Essay on the Trial by Jury — Ch 3 – Part 4 – Oaths of Jurors

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.

i * * * 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, ingeneral, 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) shll 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, bailiff, 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,"- 1 Blackstone,63-67. , 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 troth 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 untrammeled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be made, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice.

SECTION III.

The Oaths of Jurors.

The oaths that have been administered to jurors, in England, and which are their legal guide to their duty, all (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive.

It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law.

The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors "shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty."

4 Blackstone, 302. 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the Anglo-Saxons, 117. Spelman's Glossary, word Jurata.

Blackstone assumes that this was the oath of the grand jury 4 Blackstone, 302); but there was but one jury at the time this oath was ordained.

The institution of two juries, grand and petit, took place after the Norman Conquest.

Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred, "Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division, to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction."

Hume, ch. 2. By a law of Henry II.

, in 1164, it was directed that the sheriff "faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt," (shall make twelve, legal men from the neighborhood to swear that they will make known the truth according to their conscience.

) Crabbe's History of the English Law, 119. 1 Reeves, 87. Wilkins, 321 323. Glanville, who wrote within the half century previous to Magna Carta, says;

"Each of the knights summoned far 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. [24] 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 tht 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 ft 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.

[25] Grand Jury.

If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact than 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 there 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. 88. 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.

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