An Essay on the Trial by Jury Part 6

"Did he, (the king,) at any time, relax his activity and martial ardor, did he employ his abilities to the prejudice of his nation, or fancy he was superior to the laws; the same power which raised him to honor, humbled and degraded him. The customs and councils of his country pointed out to him his duty; and if he infringed on the former, or disobeyed the latter, a fierce people set aside his authority. * *

"His long hair was the only ornament he affected, and to be foremost to attack an enemy was his chief distinction. Engaged in every hazardous expedition, he was a stranger to repose; and, rivalled by half the heroes of his tribe, he could obtain little power. Anxious and watchful for the public interest, he felt every moment his dependence, and gave proofs of his submission.

"He attended the general a.s.sembly of his nation, and was allowed the privilege to harangue it first; but the arts of persuasion, though known and respected by a rude people, were unequally opposed to the prejudices and pa.s.sions of men."--_Ditto_, p. 135-6.

"_The authority of a Saxon monarch was not more considerable. The Saxons submitted not to the arbitrary rule of princes. They administered an oath to their sovereigns, which bound them to acknowledge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office._ In both countries, a price was affixed on kings, a fine expiated their murder, as well as that of the meanest citizen; and the smallest violation of ancient usage, or the least step towards tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.

139-40.

"They were not allowed to impose taxes on the kingdom."--_Ditto_, p.

146.

"Like the German monarchs, they deliberated in the general a.s.sembly of the nation; _but their legislative authority was not much respected_; and their a.s.sent was considered in no better light than as a form. This, however, was their chief prerogative; and they employed it to acquire an ascendant in the state. To art and insinuation they turned, as their only resource, and flattered a people whom they could not awe; but address, and the abilities to persuade, were a weak compensation for the absence of real power.

"They declared war, it is said, and made peace. In both cases, however, they acted as the instruments of the state, and put in execution the resolutions which its councils had decreed. If, indeed, an enemy had invaded the kingdom, and its glory and its safety were concerned, the great lords took the field at the call of their sovereign. But had a sovereign declared war against a neighboring state, without requiring their advice, or if he meant to revenge by arms an insult offered to him by a subject, a haughty and independent n.o.bility refused their a.s.sistance. These they considered as the quarrels of the king, and not of the nation; and in all such emergencies he could only be a.s.sisted by his retainers and dependents."--_Ditto_, p. 147-8.

"Nor must we imagine that the Saxon, any more than the German monarchs, succeeded each other in a lineal descent,[35] or that they disposed of the crown at their pleasure. In both countries, the free election of the people filled the throne; and their choice was the only rule by which princes reigned. The succession, accordingly, of their kings was often broken and interrupted, and their depositions were frequent and groundless. The will of a prince whom they had long respected, and the favor they naturally transferred to his descendant, made them often advance him to the royal dignity; but the crown of his ancestor he considered as the gift of the people, and neither expected nor claimed it as a right."--_Ditto_, p. 151-3.

In Germany "It was the business of the great to command in war, and in peace they distributed justice. * *

"The _princes_ in Germany were _earls_ in England. The great contended in both countries in the number of their retainers, and in that splendor and magnificence which are so alluring to a rude people; and though they joined to set bounds to regal power, they were often animated against each other with the fiercest hatred. To a proud and impatient n.o.bility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their va.s.sals adopting their resentment and pa.s.sions, war and bloodshed alone could terminate their quarrels. What necessarily resulted from their situation in society, was continued as a _privilege_; and the great, in both countries, made war, of their private authority, on their enemies. The Saxon earls even carried their arms against their sovereigns; and, surrounded with retainers, or secure in fortresses and castles, they despised their resentment, and defied their power.

"The judges of the people, they presided in both countries in courts of law.[36] The particular districts over which they exerted their authority were marked out in Germany by the council of the state; and in England their jurisdiction extended over the fiefs and other territories they possessed. All causes, both civil and criminal, were tried before them; and they judged, except in cases of the utmost importance, without appeal. They were even allowed to grant pardon to criminals, and to correct by their clemency the rigors of justice.

Nor did the sovereign exercise any authority in their lands. In these his officers formed no courts, and his _writ_ was disregarded. * *

"They had officers, as well as the king, who collected their revenues, and added to their greatness; and the inhabitants of their lands they distinguished by the name of _subjects_.

"But to attend the general a.s.sembly of their nation was the chief prerogative of the German and Saxon princes; and as they consulted the interest of their country, and deliberated concerning matters of state, so in the _king's court_, of which also they were members, they a.s.sisted to p.r.o.nounce judgment in the complaints and appeals which were lodged in it."--_Ditto_, p. 158 to 165.

Henry says:

"Nothing can be more evident than this important truth; that our Anglo-Saxon kings were not absolute monarchs; but that their powers and prerogatives were limited by the laws and customs of the country.

Our Saxon ancestors had been governed by limited monarchs in their native seats on the continent; and there is not the least appearance or probability that they relinquished their liberties, and submitted to absolute government in their new settlements in this island. It is not to be imagined that men, whose reigning pa.s.sion was the love of liberty, would willingly resign it; and their new sovereigns, who had been their fellow-soldiers, had certainly no power to compel them to such a resignation."--_3 Henry's History of Great Britain_, 358.

Mackintosh says: "The Saxon chiefs, who were called kings, originally acquired power by the same natural causes which have gradually, and everywhere, raised a few men above their fellows. They were, doubtless, more experienced, more skilful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the l.u.s.tre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to suppose that the northern Germans who had conquered England, had so far changed their characteristic habits from the age of Tacitus, that the victors became slaves, and that their generals were converted into tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.

Cyc._, 73-4.

Rapin, in his discourse on the "Origin and Nature of the English Const.i.tution," says:

"There are but two things the Saxons did not think proper to trust their kings with; for being of like pa.s.sions with other men, they might very possibly abuse them; namely, the power of changing the laws enacted by consent of king and people; and the power of raising taxes at pleasure. From these two articles sprung numberless branches concerning the liberty and property of the subject, which the king cannot touch, without breaking the const.i.tution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king's prerogatives with the people's liberties. * * But when kings arose, as some there were, that aimed at absolute power, by changing the old, and making new laws, at pleasure; by imposing illegal taxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English."--_Rapin's Preface to his History of England._

Hallam says that among the Saxons, "the royal authority was weak."--_2 Middle Ages_, 403.

But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, _when a.s.sented to_ by the _Witena-gemote_, or a.s.sembly of wise men--that is, the bishops and barons. But this a.s.sembly evidently had no legislative power whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, _simply as a council_, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pa.s.s a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been pa.s.sed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will.

Lingard says:

"It was necessary that the king should obtain the a.s.sent of these (the members of the Witena-gemotes) to all legislative enactments; _because, without their acquiescence and support, it was impossible to carry them into execution_. To many charters (laws) we have the signatures of the Witan. _They seldom exceed thirty in number; they never amount to sixty._"--_1 Lingard_, 486.

It is ridiculous to suppose that the a.s.sent of such an a.s.sembly gave any _authority_ to the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their a.s.sent to a few laws pa.s.sed by the king.

More than this. If this body had had any real legislative authority, they would have const.i.tuted an aristocracy, having, in conjunction with the king, absolute power over the people. a.s.sembling voluntarily, merely on the invitation of the king; deputed by n.o.body but themselves; representing n.o.body but themselves; responsible to n.o.body but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely, _and the people slaves, of course_. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government, _and of Anglo-Saxon liberty_.

The fact that the people had no representation in this a.s.sembly, and the further fact that, through their juries alone, they nevertheless maintained that n.o.ble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has const.i.tuted the greatest pride and glory of the nation to this day, _prove_ that this a.s.sembly exercised no authority which juries of the people acknowledged, except at their own discretion.[37]

There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "_in those times were the real and only Parliaments of the kingdom_." And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced, _and none others_, became practically the law of the land as matter of course.[39]

Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the fact _that the kings enacted so few laws_. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelve pages of the statute book of Ma.s.sachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Ma.s.sachusetts, and, says Blackstone, "seems to have been no more than a new edition, or fresh promulgation of Alfred's code, or _dome-book_, with such additions and improvements as the experience of a century and a half suggested."--_1 Blackstone_, 66.[40]

The Code of William the Conqueror[41] would fill less than seven pages of the statute book of Ma.s.sachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality.[42] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the "_lex terrae_,"

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 Angliae 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]

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 those principles of natural equity and justice, which const.i.tute, 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 pa.s.sed 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 a.s.sent, nevertheless it was a.s.sented 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 Const.i.tution 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.