An Essay on the Trial by Jury Part 7

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 _nembas_; 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.[49] * *

"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. 7.

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 and 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 king'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 sheriff's; _yet, by the old feudal const.i.tutions, 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 by 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, p. 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 s.p.a.ce enclosed by the walls of a feudal residence, in which the followers of a lord used to a.s.semble 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 a.s.sembly, to which was entrusted the p.r.o.nouncing 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 Exchequer_, 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 twelve 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 p.r.o.nounced 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, ent.i.tled 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._"--_Tomlin'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 judges_, could not be 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.

"_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 the land the jury are 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 a.s.sistance 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 cla.s.s 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 were 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 a.s.sist their lord in the dispensation of domestic justice. This was formerly held every three weeks; _and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor_."--_3 Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.

"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 p.r.o.nounce 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 Inst.i.tutions of Modern Europe_, p. 444.

"The right of the plaintiff and defendant, and of the prosecutor and criminal, _to challenge the judices_, (judges,) _or a.s.sessors,[50]

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 challenge; _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 _Just.i.tiarius 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 "a.s.sessors," and says:

"These a.s.sessors, _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.

Tyrrell 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 princ.i.p.al inhabitants, called the alderman, together with the barons of the Hundred[51]--id est the freeholders--was judge_."--_Ditto_, p. 80.

Also he says: