Part 8 (2/2)

But it is to be feared that the general remedy, which of late hath been princ.i.p.ally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. _How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived_, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! _And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middles.e.x_, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted:

1. That a special county court shall be held at least once in a month, in every hundred of the county of Middles.e.x, _by the county clerk_.

2. _That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation_; so as none shall be summoned oftener than once a year.

3. That in all causes not exceeding the value of forty s.h.i.+llings, _the county clerk and twelve suitors (jurors) shall proceed in a summary way_, examining the parties and witnesses on oath, without the formal process anciently used; _and shall make such order therein as they shall judge agreeable to conscience_.”--_3 Blackstone_, 81-83.

What are these but courts of conscience? And yet Blackstone tells us they are a _revival of the ancient hundred and county courts_. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience?

It is perfectly evident that in all these courts the jurors were the judges, and determined all questions of law for themselves; because the only alternative to that supposition is, _that the jurors took their law from sheriffs, bailiffs, and stewards_, of which there is not the least evidence in history, nor the least probability in reason. It is evident, also, that they judged independently of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that the laws of the king (not being printed, and the people being unable to read them if they had been printed) must have been in a great measure unknown to them, and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers, the latter would have imposed such laws upon the people as they pleased.

These courts, that have now been described, were continued in full power long after Magna Carta, no alteration being made in them by that instrument, _nor in the mode of administering justice in them_.

There is no evidence whatever, so far as I am aware, that the juries had any _less_ power in the courts held by the king's justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and a.s.sistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or ”law of the land.”

The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them.

And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge:

”The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity.”--_2 Middle Ages_, ch. 8, part 2, p. 465.

It is evident that it was in this way, _by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice_, that the laws and customs, which, for the most part, made up the _common law_, and were called, at that day, ”_the good laws, and good customs_,” and ”_the law of the land_,” were established. How otherwise could they ever have become established, as Blackstone says they were, ”_by long and immemorial usage, and by their universal reception throughout the kingdom_,”[54] when, as the Mirror says, ”_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_?”

The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the _Common Law_, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as ”_the law of the land_;” and the further fact that this ”law of the land” was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive ill.u.s.trations of the truth that men's minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be _made_, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establis.h.i.+ng, the principles of justice.

SECTION III.

_The Oaths of Jurors._

The oaths that have been administered to jurors, in England, and which are their _legal_ guide to their duty, _all_ (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it _according to law_.

The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors ”_shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty_.”--_4 Blackstone_, 302. _2 Turner's History of the Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's Glossary_, word _Jurata_.

Blackstone a.s.sumes that this was the oath of the _grand_ jury (_4 Blackstone_, 302); but there was but one jury at the time this oath was ordained. The inst.i.tution of two juries, grand and pet.i.t, took place after the Norman Conquest.

Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred,

”Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division, _to administer impartial justice_, proceeded to the examination of that cause which was submitted to their jurisdiction.”--_Hume_, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff ”_faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt_,” (shall make twelve legal men from the neighborhood _to swear that they will make known the truth according to their conscience_.)--_Crabbe's History of the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323.

Glanville, who wrote within the half century previous to Magna Carta, says:

”Each of the knights summoned for this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth.”--_Beames' Glanville_, 65.

Reeve calls the trial by jury ”_the trial by twelve men sworn to speak the truth_.”--_1 Reeve's History of the English Law_, 87.

Henry says that the jurors ”took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted.”--_3 Henry's Hist. of Great Britain_, 346.

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