Chapter VIII: 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 constitute, 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 passed 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 assent, nevertheless it was assented 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 Constitution of England, says:

"In the county courts, if the debt was above forty shillings, 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.

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 constitutions, 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 distinguishing 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 space enclosed by the walls of a
feudal residence, in which the followers of a lord used to assemble
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 assembly, to
which was entrusted the pronouncing 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 fashion 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 pronounced 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, entitled 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
shillings, 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.

"_Ad questionem juris non respondent Juratores._" (To the question of
law the jurors do not answer.) "The Annotist says, that this is
indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind
an English jury, for by the common law of the land the jury are
judges as well of the matter of law, as of the fact_, with this
difference only, that the (a Saxon word) or judge on the bench is to
give them no assistance in determining the matter of _fact_, but if
they have any doubt among themselves relating to matter of _law_,
they may then request him to explain it to them, which when he hath
done, and they are thus become well informed, they, and they only,
become competent judges of the matter of _law_. And this is the
province of the judge on the bench, namely, to show, or _teach_ the
law, but not to take upon him the trial of the delinquent, either in
matter of fact or in matter of law." (Here various Saxon laws are
quoted.) "In neither of these fundamental laws is there the least
word, hint, or idea, that the earl or alderman (that is to say, the
_Prepositus_ (presiding officer) of the court, which is tantamount to
_the judge on the bench_) is to take upon him to judge the delinquent
in any sense whatever, the sole purport of his office is to _teach_
the secular or worldly law."--_Ditto_, p. 57, _note_.

"The administration of justice was carefully provided for; it was not
the caprice of their lord, _but the sentence of their peers, that
they obeyed. Each was the judge of his equals, and each by his equals
was judged._"--_Introd. to Gilbert on Tenures_, p. 12.

Hallam says: "A respectable class of free socagers, having, in
general, full rights of alienating their lands, and holding them
probably at a small certain rent from the lord of the manor,
frequently occur in Domes-day Book. * * They undoubtedly were suitors
to the court-baron of the lord, to whose soc, or right of justice,
they belonged. _They were consequently judges in civil causes,
determined before the manorial tribunal._"--_2 Middle Ages_, 481.

Stephens adopts as correct the following quotations from Blackstone:

"The _Court-Baron_ is a court incident to every manor in the kingdom,
to be holden by the steward within the said manor." * * _It "is a
court of common law, and it is the court before the freeholders who
owe suit and service to the manor_," (are bound to serve as jurors in
the courts of the manor,) "_the steward being rather the registrar
than the judge_. * * 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 assist their lord in the dispensation
of domestic justice. This was formerly held every three weeks; _and
its most important business was to determine, by writ of right, all
controversies relating to the right of lands within the manor_."--_3
Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3.

"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 (jurors) are here also the judges, and the steward the
register._"--_3 Stephens_, 394. _3 Blackstone_, 33.

"The _County Court_ is a court incident to the jurisdiction of the
sheriff. * * _The freeholders of the county are the real judges in
this court, and the sheriff is the ministerial officer._"--_3
Stephens_, 395-6. _3 Blackstone_, 35-6.

Blackstone describes these courts, as courts "_wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends_."--_3 Blackstone_, 30.

"When we read of a certain number of _freemen_ chosen by the parties
to decide in a dispute--all bound by oath to vote _in foro
conscientia_--and that _their_ decision, _not the will of the judge
presiding, ended the suit_, we at once perceive that a great
improvement has been made in the old form of compurgation--an
improvement which impartial observation can have no hesitation to
pronounce as identical in its main features with the trial by
jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's
Cab. Cyc._, 60.

"The bishop and the earl, or, in his absence, the gerefa, (sheriff,)
and sometimes both the earl and the gerefa, presided at the
_schyre-mote_ (county court); the gerefa (sheriff) usually alone
presided at the _mote_ (meeting or court) of the hundred. In the
cities and towns which were not within any peculiar jurisdiction,
there was held, at regular stated intervals, a _burgh mote_, (borough
court,) for the administration of justice, at which a gerefa, or a
magistrate appointed by the king, presided."--_Spence's Origin of the
Laws and Political Institutions of Modern Europe_, p. 444.

"The right of the plaintiff and defendant, and of the prosecutor and
criminal, _to challenge the judices_, (judges,) _or assessors,[50]
appointed to try the cause in civil matters, and to decide upon the
guilt or innocence of the accused in criminal matters_, is recognized
in the treatise called the Laws of Henry the First; but I cannot
discover, from the Anglo-Saxon laws or histories, that before the
Conquest the parties had any general right of challenge; _indeed, had
such right existed, the injunctions to all persons standing in the
situation of judges (jurors) to do right according to their
conscience_, would scarcely have been so frequently and anxiously
repeated."--_Spence_, 456.

Hale says:

"The administration of the common justice of the kingdom seems to be
wholly dispensed in the county courts, hundred courts, and
courts-baron; except some of the greater crimes reformed by the laws
of King Henry I., and that part thereof which was sometimes taken up
by the _Justitiarius Angliae_."

This doubtless bred great inconvenience, uncertainty, and variety in
the laws, viz.:

"_First, by the ignorance of the judges, which were the freeholders
of the county._ * *

"Thirdly, a third inconvenience was, that all the business of any
moment was carried by parties and factions. _For the freeholders
being generally the judges_, and conversing one among another, _and
being as it were the chief judges, not only of the fact, but of the
law_; every man that had a suit there, sped according as he could
make parties."--_1 Hale's History of the Common Law_, p. 246.

"In all these tribunals," (county court, hundred court, &c.,) "_the
judges were the free tenants_, owing suit to the court, and
afterwards called its peers."--_1 Lingard's History of England_, 488.

Henry calls the twelve jurors "assessors," and says:

"These assessors, _who were in reality judges_, 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 History of Great Britain_, 346.

Tyrrell says:

"Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as
they are still called in Kent and other places, consisting of three
or four Hundreds; _in which, the freeholders being judges_, such
causes were brought as could not be determined in the Hundred
court."--_Tyrrell's Introduction to the History of England_, p. 80.

Of the _Hundred Court_ he says:

"In this court anciently, _one of the principal inhabitants, called
the alderman, together with the barons of the Hundred[51]--id est the
freeholders--was judge_."--_Ditto_, p. 80.

Also he says:

"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 Assize,' 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 'pass' 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 sturdy knight or yeoman in the distant shire.

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 constitution 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 Constitution_, 274-7.

Coke 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 circumstances 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 vassals 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 nobility, 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 circumstances with the baron-courts of the nobility, 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 constitution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or vassals 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 assembled free Echevins, warning them to pronounce 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 associated 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 Constitution 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 constituted 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
constitution is this: two aldermen and four commoners sit twice a
week to hear all causes of debt not exceeding the value of forty
shillings; 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 establishing
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.
But it is to be feared that the general remedy, which of late hath
been principally 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 Middlesex_, 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 Middlesex, _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 shillings,
_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 assistance 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 illustrations 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 establishing, the principles of justice.