An Essay on the Trial by Jury Part 12

[Footnote 39: Hallam says, "It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights."--_2 Middle Ages_, 392.

Also, "This (the county court) was the great const.i.tutional judicature in all questions of civil right."--_Ditto_, 395.

Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts."--_Ditto_, 399.]

[Footnote 40: "Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, but he expressly says, '_that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down_'--which is a decisive fact in the history of our laws well worth noting."--_Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_.

Kelham says, "Let us consult our own lawyers and historians, and they will tell us * * that Alfred, Edgar, and Edward the Confessor, were the great _compilers and restorers_ of the English Laws."--_Kelham's Preliminary Discourse to the Laws of William the Conqueror_, p. 12.

_Appendix to Kelham's Dictionary of the Norman Language._

"He (Alfred) also, like another Theodosius, _collected the various customs_ that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his _som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for the use of the court baron, hundred and county court, the court-leet and sheriff's tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose."--_4 Blackstone_, 411.

Alfred himself says, "Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed--those which I liked--and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of aethelbert, who was the first of the English who received baptism--those which appeared to me the justest--I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them."--_Laws of Alfred, translated by R. Price, prefixed to Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._

"King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, _being probably no more than a revival of King Alfred's code_, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian _customs_, and also _such of the Danish_ (customs) as were reasonable and approved, into the _West Saxon Lage_, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the _common law_, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage."--_4 Blackstone_, 412.

"By the _Lex Terrae_ and _Lex Regni_ is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Const.i.tution or Code of Laws is what even to this day are called '_The Common Law of the Land_.'"--_Introduction to Gilbert's History of the Common Pleas_, p. 22, _note_.]

[Footnote 41: 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.]

[Footnote 42: 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.]

[Footnote 43: 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. 198. See _Kelham's Discourse before named_.]

[Footnote 44: Hallam says, "The county of Suss.e.x contains sixty-five ('hundreds'); that of Dorset forty-three; while Yorks.h.i.+re has only twenty-six; and Lancas.h.i.+re but six."--_2 Middle Ages_, 391.]

[Footnote 45: 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.]

[Footnote 46: "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 promulgated 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.]

[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopaedia, 266.]

[Footnote 48: 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.]

[Footnote 49: 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.]

[Footnote 50: The jurors were sometimes called "a.s.sessors," because they a.s.sessed, or determined the amount of fines and amercements to be imposed.]

[Footnote 51: "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.]

[Footnote 52: 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.]

[Footnote 53: Stuart says:

"The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and 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 fas.h.i.+on 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 extended their jurisdiction over the territory they occupied.[65] 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.

"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 his 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.[66]

"_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 distinguished, 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 continue 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,[67]) 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 be holden 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 the 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 s.h.i.+llings; 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.tuted within every superior district or hundred."--3 _Blackstone_, 33, 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, originally 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, centeni singulis, ex plebe comites concilium 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."--_3 Blackstone_, 34, 35.