Essay on the Trial By Jury Part 12

[8] Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper. See Hale's History of the Common, Law, ch. 5.

[9] For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing inst.i.tutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it.

The same clauses and chapters are often repeated word, for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory.

Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon inst.i.tutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies.

Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and, defined; yet we have not a single law, and hardly a single doc.u.ment from which the course of the descent of land can be inferred. * * Positive proof cannot be obtained of the commencement of any inst.i.tution, because the first written law relating to it may possibly be merely confirmatory or declaratory; neither can the non-existence of any inst.i.tution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence." 1 Palgrave's Rise and Progress of the English Commonwealth, 58-9.

[10] Rapin says, "The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany." Rapin's Dissertation on the Government of the Anglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discourse before named.

[11] Hallam says, "The county of Suss.e.x contains sixty-five ('hundreds'); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six." 2 Middle Ages, 391.

[12] Excepting also matters pertaining to the collection of the revenue, which were determined in the king's court of exchequer.

But even in this court it was the law "that none be amerced but by his peers." Mirror of Justices, 49.

[13] "For the English laws, although not written, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law that which pleases the prince has the force of law,) I mean those laws which it is evident were promuulgated by the advice of the n.o.bles and the authority of the prince, concerning doubts to be settled in their a.s.sembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons const.i.tuting, or the reason of those framing them."

Glanville's Preface, p. 38. (Glanville was chief justice of Henry II., 1180.) 2 Turner's History of the Anglo-Saxons, 280.

[14] Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopedia, 286.

[15] If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and "the law of the land?" These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king whether the latter were expressed in his statutes, or by his judges.

[16] Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, the jurors were the judges, as he declares them to have been in the county court; otherwise the "bailiff" or "steward" must have been judge.

[17] The jurors were sometimes called " a.s.sessors," because they a.s.sessed, or determined the amount of fines and amercements to be imposed.

[18] "The barons of the Hundred" were the freeholders. Hallam says: "The word baro, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase court-baron." 3 Middle Ages, 14-15.

Blackstone says: "The court-baron * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor." 3 Blackstone, 33.

[19] The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.

[20] Stuart says:

"The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; aud having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of.

"As a chieftain led out his retainers to the field, and governed them during war; so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They const.i.tuted his court; and having inquired with him into the guilt of those of their order whom justice had accused, they a.s.sisted him to enforce his decrees.

"This court (the court-baron) was imported into England; but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance.

"The head or lord of the manor called forth his attendants to his hall. * * He inquired into the breaches of custom, and of justice, which were committed within the precincts of his territory, and with his followers, who sat with him as judges, he determined in all matters of debt, and of trespa.s.s to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers.

"But a mode of administration which intrusted so much power to the great could not long be exercised without blame or injustice.

The German, guided by the candor of his mind, and entering into all his engagements with the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he p.r.o.nounced, by partiality, prejudice, or interest; and that the influence he maintained with his followers was too strong to be restrained by justice.

Experience instructed him of his error", he acknowledged the necessity of appealing from his lord; and the court of the Hundred was erected.

"This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extened their jurisdiction over the territory they occupied. [21] They bound themselves under a penalty to a.s.semble at stated times; and having elected the wisest to preside over them, they judged, not only all civil and criminal matters, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms.

[21] "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."

"As the communication, however, and intercourse, of the individuals of a German community began to be wider, and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The shyre mote, therefore, or county court, was inst.i.tuted; and it formed the chief source of justice both in Germany and England.

"The powers, accordingly, which had been enjoyed by the court of the hundred, were considerably impaired. It decided no longer concerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments, in every case, became subject to review; and it lost entirely the decision of causes, when it delayed too long to consider them.

"Every subject of claim or contention was brought, in the first instance, or by appeal, to the county court; and the earl, or eorldorman, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority; and the least remission in hi duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was ent.i.tled to a proportion of the fines and profits of justice. Every man, in his district, was bound to inform him concerning criminals, and to a.s.sist him to bring them to trial; and, as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them.

"His court was ambulatory, and a.s.sembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance.

The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, after meals, to exercise his office.

"The druids also, or priests, in Germany, as we had formerly occasion to remark, and the clergy in England, exercised a jurisdiction in the hundred and county courts. They instructed the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or eorldormen, related to them the laws and customs of the community. These judges were mutually a check to each other; but it was expected that they should agree in their judgments, and should willingly unite their efforts for the public interest. [22]

"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 proceede 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." 8 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.

"But the prince or earl performed not, at all times, in person, the obligations of his office. The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over, when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, made him often delegate to an inferior person the distribution of justice in his district. The same sentiments were experienced by the Saxon n.o.bility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties.

Sheriffs, therefore, or deputies, were frequently appointed to transact their business; and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for the direction of justice in the counties.

"The hundred, however, and county courts were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice.

"The princes accordingly, or chief n.o.bility, in the German communities, a.s.sembled together to judge of such matters. The Saxon n.o.bles continued this prerogative; and the king, or, in his absence, the chief justiciary, watched over their deliberations.

But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the hundred, and claimed without effect, at four courts of the county, before there could lie an appeal to it.

"So gradually were these arrangements established, and so naturally did the varying circ.u.mstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage of society, called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges, and those arbitrary proceedings, which the growing attachment to interest, and the influence of the crown, might otherwise have occasioned." Stuart on the Const.i.tution of England, p. 222 to 245.

"In the Anglo-Saxon period, accordingly, twelve only were elected; and these, together with the judge, or presiding officer of the district, being sworn to regard justice, and the voice of reason, or conscience, all causes were submitted to them."

Ditto, p. 260.

"Before the orders of men were very nicely disinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessitous with envy, and the rich with contempt, every man was tried by his equals. The same spirit of liberty which gave rise to this regulation attended its progress.

Nor could monarchs a.s.sume a more arbitrary method of proceeding.

'I will not' (said the Earl of Cornwall to his sovereign) 'render up my castles, nor depart the kingdom, but by judgment of my peers.' Of this inst.i.tution, so wisely calculated for the preservation of liberty, all our, historians have p.r.o.nounced the eulogium." -- Ditto, p. 262-3.

Blackstone says:

"The policy of our ancient const.i.tution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by const.i.tuting as many courts of judicature as there are manors and towns in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively const.i.tuted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An inst.i.tution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy.

"These inferior courts, at least the name and form of them, still cntinue in our legal const.i.tution; but as the superior courts of record have, in practice, obtained a concurrent original jurisdiction, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and, on the other, the more able and impartial decisions that follow from this change of jurisdiction.

"The order I shall observe in discoursing on these several courts, const.i.tuted for the redress of civil injuries, (for with those of a jurisdiction merely criminal I shall not at present concern myself, [23]) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power." -- 3 Blackstone, 30 to 32.

"The court-baron is a court incident to every manor in the kingdom, to beholden by the steward within the said manor. This court-baron is of two natures; the one is a customary court, of which we formerly spoke, appertaining entirely to the copy-holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons, by which name the freeholders were sometimes anciently called; for that it is held by the freeholders who owe suit and service to th manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., 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 is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespa.s.s in the case, or the like, where the debt or damages do not amount to forty shillings; which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding courts, so called because four were inst.i.tute within every superior district or hundred." 8 Blackstone, 38, 34.

"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 are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record, resembling the former at all points, except that in point of territory it is of greater jurisdiction. This is said by Sir Edward c.o.ke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its inst.i.tution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the princ.i.p.al inhabitants of a district composed of different villages, oriinally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred courts and courts-baron. 'Princeps regiorum atque pagorum' (which we may fairly construe the lords of hundreds and manors) 'inter suos jus dic.u.n.t, controversias que minuunt.' (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their const.i.tution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundreders, or jury, who were taken out of the common freeholders, and had themselves a share in the determination. ' Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centenii singulis, ex plebe comites comcilium simul et auctoritas adsunt.

(The princes are chosen in the a.s.semblies, who administer the laws throughout the towns and villages, and with each one are a.s.sociated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated haereda in the Gothic const.i.tution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions." 8 Blackstone, 34, 85.

"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., eh. 8,) a jurisdicton 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 samee 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 ofhcer. * * 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.