Part 8 (1/2)

”By a law of Edward the Elder, 'Every sheriff shall convene the people once a month, and do equal right to all, putting an end to controversies at times appointed.'”--_Ditto_, p. 86.

”A statute, emphatically termed the 'Grand a.s.size,' enabled the defendant, if he thought proper, to abide by the testimony of the twelve good and lawful knights, chosen by four others of the vicinage, _and whose oaths gave a final decision to the contested claim_.”--_1 Palgrave's Rise and Progress of the English Commonwealth_, 261.

”From the moment when the crown became accustomed to the 'Inquest,' a restraint was imposed upon every branch of the prerogative. _The king could never be informed of his rights, but through the medium of the people._ Every 'extent' by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the 'good men and true' who were impanelled to 'pa.s.s' between the subject and the sovereign; and the thunder of the Exchequer at Westminster might be silenced by the honesty, the firmness, or the obstinacy, of one st.u.r.dy knight or yeoman in the distant s.h.i.+re.

Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community.

The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general const.i.tution of the realm.

* * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand.”--_1 Palgrave's Rise and Progress of the English Const.i.tution_, 274-7.

c.o.ke says, ”The court of the county is no court of record,[52] _and the suitors are the judges thereof_.”--_4 Inst._, 266.

Also, ”The court of the Hundred is no court of record, _and the suitors be thereof judges_.”--_4 Inst._, 267.

Also, ”The court-baron is a court incident to every manor, and is not of record, _and the suitors be thereof judges_.”--_4 Inst._, 268.

Also, ”The court of ancient demesne is in the nature of a court-baron, _wherein the suitors are judges_, and is no court of record.”--_4 Inst._, 269.

Millar says, ”Some authors have thought that jurymen were originally _compurgators_, called by a defendant to swear that they believed him innocent of the facts with which he was charged.... But ... compurgators were merely witnesses; _jurymen were, in reality, judges_. The former were called to confirm the oath of the party by swearing, according to their belief, that he had told the truth, (in his oath of purgation;) _the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty_.... Juries were accustomed to ascertain the truth of facts, by the defendant's oath of purgation, together with that of his compurgators.... Both of them (jurymen and compurgators) were obliged to swear that they would _tell the truth_....

According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact; and it was thought that no man, who knew the real circ.u.mstances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted.”--_1 Millar's Hist. View of Eng. Gov._, ch. 12, p. 332-4.

Also, ”The same form of procedure, which took place in the administration of justice among the va.s.sals of a barony, was gradually extended to the courts held in the _trading towns_.”--_Same_, p. 335.

Also, ”The same regulations, concerning the distribution of justice by the intervention of juries, ... _were introduced into the baron courts of the king_, as into those of the n.o.bility, or such of his subjects as retained their allodial property.”--_Same_, p. 337.

Also. ”This tribunal” (the _aula regis_, or king's court, afterwards divided into the courts of King's Bench, Common Pleas, and Exchequer) ”was properly the ordinary baron-court of the king; and, being in the same circ.u.mstances with the baron-courts of the n.o.bility, it was under the same necessity of trying causes by the intervention of a jury.”--_Same_, vol. 2, p. 292.

Speaking of the times of Edward the First, (1272 to 1307,) Millar says:

”What is called the petty jury was therefore introduced into these tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or _fiscal_.”--_Same_, vol. 2, p. 293-4.

Also, ”That this form of trial (by jury) obtained universally in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the const.i.tution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or va.s.sals of a barony, were determined by the _pares curiae_ (peers of the court;) _and that the judge took little more upon him than to regulate the method of proceeding, or to declare the verdict of the jury_.”--_Same_, vol. 1, ch. 12, p. 329.

Also, ”Among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the hundred, and afterwards in the baron-courts of every feudal superior.”--_Same_, vol. 2, p. 296.

Palgrave says that in Germany ”The Graff (gerefa, sheriff) placed himself in the seat of judgment, and gave the charge to the a.s.sembled free Echevins, warning them to p.r.o.nounce judgment according to right and justice.”--2 _Palgrave_, 147.

Also, that, in Germany, ”The Echevins were composed of the villanage, somewhat obscured in their functions by the learning of the grave civilian who was a.s.sociated to them, and somewhat limited by the encroachments of modern feudality; _but they were still substantially the judges of the court_.”--_Same_, 148.

Palgrave also says, ”Scotland, in like manner, had the laws of Burlaw, or Birlaw, which were made and determined by the neighbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighbor and neighbor, _which men, so chosen, were judges and arbitrators_, and called Birlaw men.”--1 _Palgrave's Rise_, &c., p. 80.

But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Const.i.tution of England, and from Blackstone's Commentaries.[53]

That all these courts were mere _courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it_, is not only shown by the extracts already given, but is explicitly acknowledged in the following one, in which the _modern ”courts of conscience”_ are compared with the _ancient hundred and county courts_, and the preference given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer tribunal than the consciences of individuals specially appointed, and holding permanent offices.

”But there is one species of courts const.i.tuted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests, _or courts of conscience_, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The const.i.tution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty s.h.i.+llings; which they examine in a summary way, by the oath of the parties or other witnesses, _and make such order therein as is consonant to equity and good conscience_.* * Divers trading towns and other districts have obtained acts of Parliament, for establis.h.i.+ng in them _courts of conscience_ upon nearly the same plan as that in the city of London.

”The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties.