An Essay on the Trial By Jury · Chapter 6Trial by Jury (5)
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"The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, ( for such they were, more than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority; and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, but preserved unaltered all their civil and military insfitutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community." 1 Hume, Appendix, l.
Stuart says:
"The Saxons brought along with them into Britain their own customs, language, and civil institutions. Free in Germany, they renounced not their independence, when they had conquered. Proud from victory, and with their swords in their hands, would they surrender their liberties to a private man? Would temporary laders, limited in their powers, and unprovided in resources, ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and bloody wars, which their nations first waged with the Britons, and then engaged in among themselves? Sufficiently flattered in leading the armies of their countrymen, the ambition of commanders could as little suggest such designs, as the liberty of the people could submit to them. The conquerors of Britain retained their independence; and this island saw itself again in that free state in which the Roman arms had discovered it.
"The same firmness of character, and generosity of manners, which, in general, distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to unfold their political institutions, we must perpetually turn our observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the foundation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which the English alone have had the good fortune, or the spirit, to preserve." Stuart on the Constitution of england, p. 59 - 61.
"Kings they (the Germans) respected as the first magistrates of the state; but the authority possessed by them was narrow and limited." Ditto, p. 134.
"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 suhmission.
"He attended the general assembly 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 passions of men." Ditto, p. 135 - 6.
"The authority of a Saxon mnarch 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 aeknowledge 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. 189-40.
"They were not allowed to impose taxes on the kingdom." Ditto, p. 146.
"Like the German monarchs, they deliberated in the general assembly of the nation; but their legislative authority was not much respected; and their assent 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 kingdoms, 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 nobility refused their assistance. These they considered as the quarrels of the king, and not of the nation; and in all such emergencies he could only be assisted 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, [2] 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 cnsidered 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 nobility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their vassals adopting their resentment and passions, 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. [3] 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 assembly of their nation was the chief prerogative of the German and Saxon princes; and as they consulted the interest of their country, and eliberated concerning matters of state, so in the king's court, of which also they were members, they assisted to pronounce 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 passion 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 skillful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the lustre 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 Constitution," says:
"There are but two things the Saxons did not think proper to trust their kings with; for being of like passions 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 constitution, 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 assented to by the Witena - gemote, or assembly of wise men that is, the bishops and barons. But this assembly 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 pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, 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 assent of these (the members o 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 assent of such an assembly 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 assent to a few laws passed by the king.
More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody 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 assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day, prove that this assembly exercised no authority which juries of the people acknowledged, except at their own discretion. [4]
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, [5] viz.. "that the County aud 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. [6]
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 Massachusetts, 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 Massachusetts, 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. [7]
The Code of Wiliiam the Conqueror [8] would fill less than seven pages of the statute book of Massachusetts; 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. [9] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to mqintain 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 ether 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. [10]
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 these principles of natural equity and justice, which constitute, 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, 80.) 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. [11] 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 bailiff's, 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. [12] 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. [13] Of those that werewritten, few copies only were made, (printing being then unknown,) and not enough to supply a11, 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 thattime, 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. [14]. 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 beingeven 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 passed 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. [15]
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 sheriff's 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 assent, nevertheless it was assented 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 Constitution 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 832.
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 nem-bas; 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.[16]
"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. T.,
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 aud 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 kng'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 s1ieriff's; yet, by the old feudal constititions, 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 hy 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. 61- 2.