An Essay on the Trial by Jury Part 13

"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 const.i.tution 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.]

[Footnote 54: 1 Blackstone, 63-67.]

[Footnote 55: This quaint and curious book (Smith's Commonwealth of England) describes the _minutiae_ 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 G.o.d 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 pa.s.seth 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.]

[Footnote 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_.]

[Footnote 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_."]

[Footnote 58: _c.o.ke_, as late as 1588, admits that amercements must be fixed by the peers (8 c.o.ke'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.]

[Footnote 59: "_Common right_" was the common law. _1 c.o.ke's Inst._ 142 a. 2 _do._ 55, 6.]

[Footnote 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 a.s.sent 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 G.o.d you help and all saints."--_18 Edward III._, st. 4. (1344.)]

[Footnote 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.]

[Footnote 62: The following is a copy of the original:

"_Forma Juramenti Regis Angliae in Coronacione sua_:

(Archiepiscopus Cantuariae, ad quo de jure et consuetudine Ecclesiae Cantuariae, antiqua et approbata, pertinet Reges Angliae 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, c.u.m sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et praesertim leges et consuetudines et libertates a glorioso Rege Edwardo clero populoque concessas?

(Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare.

Servabis Ecclesiae 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."]

[Footnote 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_."]

[Footnote 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 ill.u.s.trating the fact that, in those times, no special authority attached to the laws of the king:

"The Imperial Witenagemot was not a legislative a.s.sembly, 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 const.i.tution 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 const.i.tution 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 const.i.tuted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the a.s.sembly was shown in avoiding unnecessary change. _Consisting princ.i.p.ally 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 Curiae' (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 va.s.sals 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 a.n.a.logous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king.

In this a.s.sembly, the king, the prelates, the dukes, the ealdormen, and the optimates pa.s.sed 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 va.s.sal prince or a va.s.sal 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 a.s.sembly (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 c.u.mbria was unaffected by the vote of the Earl of East Angliae, if he chose to stand out against it. These dignitaries const.i.tuted a congress, in which the sovereign could treat more conveniently and effectually with his va.s.sals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a va.s.sal denying his a.s.sent to the grant, might a.s.sert 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.]

[Footnote 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."]

[Footnote 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 a.s.sessors, 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 Inst.i.tutions 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 a.s.sembly, 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.]

[Footnote 67: There was no distinction between the civil and criminal counts, as to the rights or powers of juries.]