Essay on the Trial By Jury Part 13

"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.

[22] 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

[23] There was no distinction between the civil and criminal courts, as to the rights or powers of juries.

[24] This quaint and curious book; (Smith's Commonwealth of England) describes the minutiae of trials, giving in detail the mode of impaneling 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 eases, 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 ease.

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.

[25] "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.

[26] 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."

[27] c.o.ke, as late as 1588, admits that amercements must be fixed by the peers (8 c.o.ke's Rep. 88, 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.

[28] "Common right" was the common law. 1 c.o.ke's Inst. 142 a. 2 do. 55, 6.

[29] 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 shalt 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.)

[30] 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, &.

[31] The following is a copy of the original:

"Forma Juramenti Regis Anglicae 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 Judieiis tuis equam et rectam justioiam, et discreeionem, 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."

[32] It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called "laws of the land."

[33] As the ancient coronation oath, given in the text, has come down from the Saxontimes, 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 iujunction, 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.

CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.

The evidence already given in the preceding chapters proves that the rights and duties of jurors, in civil suits, were anciently the same as in criminal ones; that the laws of the king were of no obligation upon the consciences of the jurors, any further than the laws were seen by them to be just; that very few laws were enacted applicable to civil suits; that when a new law was enacted, the nature of it could have been known to the jurors only by report, and was very likely not to be known to them at all; that nearly all the law involved in civil suits was unwritten; that there was usually no one in attendance upon juries who could possibly enlighten them, unless it were sheriffs, stewards, and bailiffs, who were unquestionably too ignorant and untrustworthy to instruct them authoritatively; that the jurors must therefore necessarily have judged for themselves of the whole case; and that, as a general rule, they could judge of it by no law but the law of nature, or the. principles of justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that "they would make known the truth according to their consciences," implies that the jurors were above the authority of all legislation. The modern oath, in England, viz., that they "will well and truly try the issue between the parties, and a true verdict give, according to the evidence," implies the same thing. If the laws of the king had been binding upon a jury, they would have been sworn to try the cases according to law, or according to the laws.

The ancient writs, in civil suits, as given in Glanville, (within the half century before Magna Carta,) to wit, "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 in question," indicate that the jurors judged of the whole matter on their consciences only.

The language of Magna Carta, already discussed, establishes the same point; for, although some of the words, such as "outlawed," and "exiled," would apply only to criminal cases, nearly the whole chapter applies as well to civil as to criminal suits. For example, how could the payment of a debt ever be enforced against an unwilling debtor, if he could neither be "arrested, imprisoned, nor deprived of his freehold," and if the king could neither "proceed against him, nor send any one against him, by force or arms" ? Yet Magna Carta as much forbids that any of these things shall be done against a debtor, as against a criminal, except according to, or in execution of, " a judgment of his peers, or the law of the land," a provision which, it has been shown, gave the jury the free and absolute right to give or withhold "judgment" according to their consciences, irrespective of all legislation.

The following provisions, in the Magna Carta of John, ill.u.s.trate the custom of referring the most important matters of a civil nature, even where the king was a party, to the determination of the peers, or of twelve men, acting by no rules but their own consciences. These examples at least show that there is nothing improbable or unnatural in the idea that juries should try all civil suits according to their own judgments, independently of all laws of the king.

Chap. 65. "If we have disseized or dispossessed the Welsh of any lands, liberties, or other things, without the legal judgment of their peers, they shall be immediately restored to them. And if any dispute arises upon this head, the matter shall be determined in the Marches, [1] by the judgment of their peers," &c;.