Part 6 (2/2)

It is ridiculous to suppose that the a.s.sent of such an a.s.sembly 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 a.s.sent to a few laws pa.s.sed by the king.

More than this. If this body had had any real legislative authority, they would have const.i.tuted an aristocracy, having, in conjunction with the king, absolute power over the people. a.s.sembling voluntarily, merely on the invitation of the king; deputed by n.o.body but themselves; representing n.o.body but themselves; responsible to n.o.body 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 a.s.sembly, and the further fact that, through their juries alone, they nevertheless maintained that n.o.ble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has const.i.tuted the greatest pride and glory of the nation to this day, _prove_ that this a.s.sembly exercised no authority which juries of the people acknowledged, except at their own discretion.[37]

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,[38] viz., ”_that the County and 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.[39]

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 Ma.s.sachusetts, 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 Ma.s.sachusetts, 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.[40]

The Code of William the Conqueror[41] would fill less than seven pages of the statute book of Ma.s.sachusetts; 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.[42] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain 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 other 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.[43]

SECTION II.

_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 those principles of natural equity and justice, which const.i.tute, 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_, 30.) 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.[44] 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, bailiffs, 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.[45] 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.[46] Of those that were written, few copies only were made, (printing being then unknown,) and not enough to supply all, 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 that time, 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.[47] 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 being even 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 pa.s.sed 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.[48]

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 sheriffs 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 a.s.sent, nevertheless it was a.s.sented 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 Const.i.tution of England, says:

”In the county courts, if the debt was above forty s.h.i.+llings, 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 332.

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