Part 7 (1/2)

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 _nembas_; 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.[49] * *

”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. 7.

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 and 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 king'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 sheriff's; _yet, by the old feudal const.i.tutions, 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 by 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, p. 61-2.

”It is a distinguis.h.i.+ng feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coextensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), _being a court in which the freeholders of the manor are the sole judges_, but in which the lord, by himself, or more commonly by his steward, presides.”--_Political Dictionary_, word _Manor_.

The same work, speaking of the county court, says: ”_The judges were the freeholders who did suit to the court._” See word _Courts_.

”In the case of freeholders attending as suitors, the county court or court-baron, (as in the case of the ancient tenants _per baroniam_ attending Parliament,) _the suitors are the judges of the court, both for law and for fact_, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers, _with no judicial authority_.”--_Political Dictionary_, word _Suit_.

”COURT, (curtis, curia aula); the s.p.a.ce enclosed by the walls of a feudal residence, in which the followers of a lord used to a.s.semble in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, the _pares curiae_, (peers of the court,) the limited portion of the general a.s.sembly, to which was entrusted the p.r.o.nouncing of judgment,” &c.--_Encyclopedia Americana_, word _Court_.

”In court-barons or county courts _the steward was not judge, but the pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords judge, but the barons only.”--_Gilbert on the Court of Exchequer_, ch. 3, p. 42.

Crabbe, speaking of the Saxon times, says:

”The sheriff presided at the _hundred court_, * * and sometimes sat in the place of the alderman (earl) in the _county court_.”--_Crabbe_, 23.

The sheriff afterwards became the sole presiding officer of the county court.

Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more than three hundred years after Magna Carta, in describing the difference between the Civil Law and the English Law, says:

”_Judex_ is of us called Judge, but our fas.h.i.+on is so divers, that they which give the deadly stroke, and either condemn or acquit the man for guilty or not guilty, _are not called judges, but the twelve men. And the same order as well in civil matters and pecuniary, as in matters criminal_.”--_Smith's Commonwealth of England_, ch. 9, p. 53, Edition of 1621.

_Court-Leet._ ”That the _leet_ is the most ancient court in the land for _criminal_ matters, (the court-baron being of no less antiquity in _civil_,) has been p.r.o.nounced by the highest legal authority. * *

Lord Mansfield states that this court was coeval with the establishment of the Saxons here, and its activity marked very visibly both among the Saxons and Danes. * * The leet is a court of record for the cognizance of criminal matters, or pleas of the crown; and necessarily belongs to the king; though a subject, usually the lord of the manor, may be, and is, ent.i.tled to the profits, consisting of the essoign pence, fines, and amerciaments.

”_It is held before the steward, or was, in ancient times, before the bailiff, of the lord._”--_Tomlin's Law Dict._, word _Court-Leet_.

Of course the jury were the judges in this court, where only a ”steward”

or ”bailiff” of a manor presided.

”No cause of consequence was determined without the king's writ; for even in the county courts, of the debts, which were above forty s.h.i.+llings, there issued a _Justicies_ (commission) to the sheriff, to enable him to hold such plea, _where the suitors are judges of the law and fact_.”--_Gilbert's History of the Common Pleas, Introduction_, p. 19.

”This position” (that ”the matter of law was decided by the King's Justices, but the matter of fact by the pares”) ”_is wholly incompatible with the common law, for the Jurata (jury) were the sole judges both of the law and the fact_.”--_Gilbert's History of the Common Pleas_, p. 70, _note_.

We come now to the challenge; and of old _the suitors in court, who were judges_, could not be challenged; nor by the feudal law could the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem habent recusari non possunt_; (the peers who have ordinary jurisdiction cannot be rejected;) ”_but those suitors who are judges of the court_, could not be challenged; and the reason is, that there are several qualifications required by the writ, viz., that they be _liberos et legales homines de vincineto_ (free and legal men of the neighborhood) of the place laid in the declaration,” &c., &c.--_Ditto_, p. 93.