An Essay on the Trial By Jury

to the history and language

he juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislat

TIO

f the Rega

Justices," (a book written in the time of Edward I, 1272 to 1307

eing made of the commons, yet I further find that, tum demum Leges vim et vigorem habuerunt, cum fuerunt non modo institutae sed firmatae app

, (ch. 1, sec. 3,) in speaking "Of the

ard I.); the which ordinances were abused, or not used by many, nor very current, bec

am s

ial authority; and averse to surrendering what concerned every man's priva

time united the office of both legislators and judges,), and not of a separate departme

e s

ich, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions t

ncient inhabitants, they were, indeed, transplanted into a new territory, but preserved unaltered all their civil and military insfitutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. The kin

rt s

ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and bloody wars, which their nations first waged with the Brito

observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the

agistrates of the state; but the authority possess

fancy he was superior to the laws; the same power which raised him to honor, humbled and degraded him. The customs and councils of his

every hazardous expedition, he was a stranger to repose; and, rivalled by half the heroes of his tribe, he could obtain litt

angue it first; but the arts of persuasion, though known and respected by a rude peop

ge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office. In both countries, a price was affixed on kings, a fine expiated t

to impose taxes on the

n no better light than as a form. This, however, was their chief prerogative; and they employed it to acquire an ascendant in the state. To art and insinuation they turned,

d its safety were concerned, the great lords took the field at the call of their sovereign. But had a sovereign declared war against a neighboring state, without requiring their advice, or if he meant to revenge by arms an insult offered to him by

nd their choice was the only rule by which princes reigned. The succession, accordingly, of their kings was often broken and interrupted, and their depositions were frequent and groundless. The will of a prince whom they had long respected, an

the great to command in war, and

tred. To a proud and impatient nobility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their vassals adopting their resentment and passions, war and bloodshed alone could terminate their quarrels. What necessarily resulted from their situation in soc

urisdiction extended over the fiefs and other territories they possessed. All causes, both civil and criminal, were tried before them; and they judged, except in cases of the utmost importance, without appeal. They were even

r revenues, and added to their greatness; and the inhabitan

sulted the interest of their country, and eliberated concerning matters of state, so in the king's court, of which also they w

ry

ted monarchs in their native seats on the continent; and there is not the least appearance or probability that they relinquished their liberties, and submitted to absolute government in their new settlements in this island. It is not to be imagined

ho followed them. * * A king was powerful in war by the lustre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to

se on the "Origin and

tution

breaking the constitution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king's prerogatives with the people's lib

axons, "the royal authority

tive power , whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, simply as a council, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king

ard

ctments; because, without their acquiescence and support, it was impossible to carry them into execution. To many charters

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 con

invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the gove

at noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glor

es 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 intri

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 Massachusetts, 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 princ

usetts; and most of the laws contained in it are taken from the laws of the preceding kings, and espe

ces, from William the Conqueror to John, I think without exception, bound themselves, and, in order to mqintain their thrones, were obliged to bind themselves, to observe the ancient laws and c

n be accounted. for in no ether 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

TIO

on Law Juries we

sci

is 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 decisi

thority 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,

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 co

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. [11] 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 thre

t cases. [12] 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, b

ber, 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 thattime, 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,

ld read, and the larger part of which (those written in Latin) they could not translate, or understand when they heard them read

od laws,"as some of them were called, in contradistinction to others those which the people at large esteemed

nd of the power of juries, up to the time of Magna

which justice was so done, that every one so judged his neighbor by such judgment as a man could not elsewhere rec

s assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they

tise on the Constitu

a commission) to the sheriff, to enable him to hold such a plea, where the suitors (juro

g jurors, indicate that the jurors judged of everything

d upon their oaths to declare whether A or B have the greater right to the land {or oth

., (1100 to 1135,) recognizes the fact

were called, were to be chosen by the party impleaded, after the manner of the Danish nem-bas; by which, probably, is to be understood that the de

ve

he sheriff presided; but the suitors of the court, as they were called, that is, the freemen

e some bailiff; the leet before t

weeks to three weeks, and was in every respect like the county court;" (that is, the jurors were judges in it;) "only the lord

ron Gilb

reservation to do suit and service (serve as jurors) before the kng'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' a

with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), being a court in which the freeholders

t, says: "The judges were the freeholders

ding 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 cour

ter 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 c

ounty courts the stew

rors); nor was the s

e barons only." Gil

r, ch. 3

ng of the Saxo

* and sometimes sat in the place of the alde

came the sole presiding o

g more than three hundred years after Magna Carta, in describin

n or acquit the man for guilty or not guilty, are not called judges, but the twele men. And the same order as well in

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 m

ancient times, before the bailiff, of the l

in this court, where only a "stewar

ch were above forty shillings, there issued a Justicies (commission) to the sheriff, to enable him to hold such p

fact by the pares ") "is wholly incompatible with the common law, for the Jurata ( jury) were th

bent 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 seve

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 fac

their lord, but the sentence of their peers, that they obeyed. Each was the judge of

am s

nt 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

one: "The Court-Baron is a court incident to every manor in 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

of a particular hundred, instead of a manor. The free suitors ( jurors) are here

* The freeholders of the county are the real judges in this court, and the

uries were redressed in an easy and expeditious manner, b

ll 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 observ

esided 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, (boroug

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 challege

e s

y courts, hundred courts, and courts-baron; except some of the greater crimes reformed by the laws

convenience, uncertainty, an

the judges, which were the f

being generally the judges, and conversing one among another, and being as it were the chief judges, not only of the fact, but o

the judges were the free tenants, owing suit to the court, and a

a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innoce

e11

aces, consisting of three or four Hundreds; in which, the freeholders being judges, such causes were brough

ndred Cou

, called the alderman, together with the barons of the Hun

he

the people once a month, and do equal right to all, puttin

the testimony of the twelve good and lawful knights, chosen by four others of the vicinage, and whose oaths g

y '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 impan

; 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 peo

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 importan

e s

t of record, [19] and the suitors a

no court of record, and the suito

to every manor, and is not of record, and t

ture of a court-baron, wherein the suitors are j

ar s

udges. 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

nd it was thought that no man, who knew the real circumstances of a case, could be at a loss to determine wh

istration of justice among the vassals of a barony, was graduall

of juries, . . .were introduced into the baron courts of the king, as into those of t

and Exchequer) "was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron cou

f Edward the First, (12

he Exhequer,) as well as into their anxiliary courts employed to distribute justice in the circuits; and was thus render

ean 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

seems to have prevailed universally; first in the allodial courts of the county, or of the

he seat of judgment, and gave the charge to the assembled free Echevins, warni

ions by the learning of the grave civilian who was associated to them, and somewhat limited by the enc

ghbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighb

aps 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 cour

knowledged 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

n 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

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 agai

at least once in a month, in every hundred of

es, and struck by the sheriff, shall be summoned to appear at such cou

shll proceed in a summary way, examining the parties and witnesses on oath, without the formal process ancien

ly 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 t

power long after Magna Carta, no alteration being made in them by

ability 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, whi

nstructions of his justices, had any authority over jurors beyond what the latter saw fit to accord

ry simple; not serving much to guide, far less to control the fe

nd 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 king

swear to maintain it, are beautiful and impressive illustrations of the troth 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 untrammeled judgments

. The Oaths

em) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppr

uire 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 g

2); but there was but one jury at the time this oath was ordained. The insti

e administration of

that, in ev

residing magistrate of that division, to administer impartial justice, proceeded to t

uod inde veritatem secundum conscientiam suam manifestabunt," (shall make twelve, legal men from the neighborhood to swear that they

te within the half

Carta,

ought to swear that he will neither utter that which is fal

by twelve men sworn to speak the truth."

harge the duties of their office, and not suffer an innocent man to be condemne

the Common law, says:"It is abuse to use the words, to their knowledge, in their oaths, to make the

"be sworn to declare the truth of that issue according to the evidence, and

al trials

to go uprightly betwixt the prince a

e s

ed upon the principal panel, or the tales, are sworn to try the same

nd sworn to try causes according to law. He says tht in civil suits the jury are "Sworn well and truly to t

? or whether A has in his possession anything that belongs to B; or whet

power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whethe

kstone says the oath of

eign lord, the king, and the prisoner whom they have in charge, and

insic quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man g

g to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. The jury cannot try an issue, unless they determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "according to the evidence." They obviously take it

t require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none

ies, written near two hundred years ago, and suppose

e touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented fo

ncient, for the essay says "our ancest

t breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * *Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a leg

to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instru

ight of Juries to

already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless

equent to Magna Carta. A statute passed fifty-one years after Magna Carta, says that a bak

r "selling ale, contrary to the assize," "debeat amerciari, vel pati judicium tumbrelli;" th

y, he would naturally have said these offenders shall be amerced, and shall suffer judgment of the pillory

amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his fr

and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in E

arta, providing for the trial of peers of the realm, and the king's ministers, contain

eir peers: It is accorded and assented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, land

the same sta

of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so they shall abide four or five days; except the offices of justices of the one place or the other, justices assigned, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said mi

the sentence, or judgment, and the king promises

he great officers of the crown were tried and sentenced, for four hu

Michael de la Pole, Earl of Suffolk, and Robert Tresilian, Lord Chief Justice of England, with several others, convicted of treason, before "the L

rl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs sh

ton, "were by the lords temporal, by the assent of the king, adjudged to be drawn and hanged, as traitors,

f treason, "The lords awarded, by assent of the king, that they should both be hanged and drawn as traitors, as open enemies to the

ng and the lords, sentence was pronounced against the said Simon Burleigh, that he should be drawn from

p, steward of the ho

John Salisbury; kni

in like manner con

ials, fi

nounced by the peers, does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they mi

h the assent of the king. But in some instances no mention is made of the assent of the king, as in the case of "Lionel, Earl of

be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto o

er necessary to obtain the assent of the king to sentences pronounced by the peers, it would unqu

s, (l620,) no mention being made of the assen

nsom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any o

would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence. "My lord

(1648,) after reciting the grounds of

harles Stuart, as a tyrant, traitor, murderer, and public enemy to the good peop

ort the

eth: 'This sentence now read and published, is the act, sentence, judgm

uld have required an act of Parliament to fix the sentence of Charles, and his sentence would have been dec

ords, for high crimes and misdemeanors in the execution of his office," in 1725, is so full on this point, and shows so clearly that it reste

rl addressed the lords, for a mi

the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money a

tion of your lordships' sentence; but whether it be or not, I leave myself to your lordships

sfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of wh

g present at the bar of the House (of Lords), * * *

d, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses,

e of Lords, said: 'Mr. Speaker, the Lords are now read

ed to judgment against you, which I am ordered to pronounce. Their lordships' judgment is, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousan

eers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years a

he two is, that the peers of the realm have had influence enough to preserve their constitutional rights; while the constitutional

The Oaths

unless it were consistent with the common law, and unless juries and judges saw fit to enforce it, it may be mentioned that it is probable that

y or execute any statutes of the king, or of the king and parliament. Indeed, they are virtually sworn not to obey any statutes that are against "common right," or contrary to "the common law," or "law of the land;" but to "cer

ome to you contrary to the law, (that is, the common law, as will be seen on reference to the entire oath given in the note,) that ye do nothi

ds, when communicated to his justices, or any other person, "by letters," or writs, under seal, had as much legal authority as laws promulgated in any other form whatever, it will be seen that this oath of the justices absolutely required that t

th, that doubt would be removed by a statute passed by the king

kept, and the execution of the same disturbed many times by maintenance and procurement, as well in the court as in the country; we greatly moved of conscience in this matter, and for this cause desiring as much for the pleas

courts and processes, where the pleas and matters be depending before them, as if no such letters, writs, or commandments were come to them; and they shall certify us and our council of such commandments which be contrary to the law, (that is, "the law of the land," or common law,) as afore is said." [30] And to the intent that our justices, shall do even right to all people in the manner aforesaid, without more favor showing to one than to another, we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe o

milar tenor have bee

tle seal, to disturb or delay common right; and though such commandments do come, the justices

nor that the justices of whatsoever place it be shall let (omit) to do the common law, by commandment,

ng's privy seal, shall be from henceforth sent in damage or prejudice of the realm

the justices, that it was a matter freely confessed by the king himself, that hi

l now. I do not find from the English statutes that the oath has ever been changed. The Essay on Grand Juries, before referred to, and supposed to have been written by Lord So

ort any statutes whatever of the king, or of parliament, but that, for five hundred years past, t

. The Coro

y the kings at their coronation. This oath seems to have been substantially the same, from the time of

the English people the laws and customs conceded to them by the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties co

general name of "the law of the land," or "the common law," a

f a jury; since, as has already been sufficiently shown, it was one part of this very common law itself, that is, of the ancient "laws, customs, and liberties," ment

iberties," was equivalent to an oath that he would never assume to impose laws upon juries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constituti

onation oath is

, vol. i., p. 168, an

SLAT

h of the King of

ona

nd approved, it pertains to anoint and crown the kings of England, on the day of the coronation of

will you concede and preserve to the same people, with the confirmation of an oath? and especially

do concede, and will preserve t

e clergy, and the people, entire peace and

g shall answ

and right justice and discretion to be done,

g shall answ

e chosen, shall be preserved; and do you promise that they shall be protec

ll answer,) I con

en, (quas vulgus elegit,) shall be preserved?" ect., is worthy of especial notice, as showing that the laws, which were to be prese

no other way than this that the juries composed of the common people had voluntarily enforced the

of the English people were mere privileges, granted to them by the king; whereas it should be translated concede, to indicate simply an acknowledgment, on the part of the king,

substance, been the coronation oath from the times of William the Conquer

(or the oath of William the Conqueror) is "in sense and substance the ver

e s

re at this time for the Great Charter; insomuch that they were never satisfied till the said laws were reenforced, and mingled,

the Confessor, some of which had been reduced into writing, but the greater p

am s

, with the coronation oath.' Accordingly, we find that this great conqueror, at his coronation on the Christmas day succeeding his victory, took an oath at the altar of St. Peter, Westminster, in sense and substance the very same with that which the Saxon kings used to take at their coronations. * * And at Barkhamstead, in the fourth year of his reign, in the presence of Lanfranc, Archbishop of Cante

at he would observe the good and approved laws of Edward

y I., Stephen, and Henry II., confirmed these ancient laws and customs. It appears, also, that the barons desired of John (what he afterwards granted by Magna Carta) "that the laws and liberties of King Edward, with other privileges granted to the kingdom an

haps it is more probable that the ancient form has been still observed, but that, as its substance and purport were "to maintain the law of the land," this latter form of expression has been used, in

of the land," or "common law," is shown by a statute

ffs, mayors, and other ministers, which, under us, have the laws of our land [32] to guide, shall allow the said charters pleaded before them i

aforesaid, by the justices, or by any other our ministers that hold plea before them against the p

one als

ient customs of the realm, or the laws of Edward the Confessor; by which they usually mean the old common law which w

be s

f the common law, and the ancient usages of the realm, and is, properly speaking, only an enlarge

n substance, if not in form, "to maintain this law of the land, or com

Because that by divers complaints made to us, we have perceived that the law of

es shows that the coronation oath continued the same as lat

s coronation, concerning justice, and the promise therein contained for maintaining the law of the land.' And, in the next page save one, says, 'I was swor

s changed by act of Parliament,

reto belonging, according to the statutes in Parliament agreed on, and

ne, that from the Saxon times until at least as lately as 1616, the coronation oath has been, in substance, to maintain the law of the land, or

ries, if inconsistent with their ideas of right; because it was one part of the common law that juries should tr

trial among the Normans, in most suits; especially in assiz

y, before the conqu

See Ditto

decision of twelve men was universal among all the northern tribes (of Europe

in little dread of their encroachments on their liberties; and kings, who found sufficient employment in ke

ile the court was held by the lord, "the Lord was not judge, but

the Witan had no legislative authority, is

,) we should be almost justified in the inference that a second sanction was necessary before they could have th

I know of no evidence whatever that laws were ever submitted to popular vote in the county courts, as this author seems to suppose possible. Another mode, sometimes r

y with a modern eye might imagine. It appears that under Athelstan expedients were resorted to, to obtain a consent to the law from great bodies of the people in their districts, which their numbers rendered impossible in a national assembly. That monarch appears to have sent commissioners to hold shire-ge

Page

urt that an English freeman chiefly looked for the

, 395. Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their fre

he expressly says, 'that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down' - which

Edward the Confessor, were the great compilers and restorers of the English Laws." Kelham's Preliminary Dis

, or code of laws, in his som-bec, or liber judicialis (judicial book). This he compiled for the use of the court baron, hundred and county court, the court-leet and s

y of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who was the first of the English who received baptism thse which appeared to me the justest I

experience, particularly the incorporating some of the British, or, rather, Mercian customs, and also such of the Danish (customs) as were reasonable and approved, into the West Saxon Lage, which was still the ground-work of the whole. And this appears to be the best supported and most plausible con

s they were by William the Conqueror; and this Constitution or Code of Laws is what even to this day are

friends of liberty maintain,) but only of Harold the

des see Wilkins' Law

f the Anglo-Saxon institutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and, defined; yet we have not a single law, and hardly a single document from which the course of the descent of land can be inferred.

as the Anglo-Saxons brought with them from Germany." Rapin's Dissertation on the Gover

'hundreds'); that of Dorset forty-three; while Yorkshire has

h were determined in the king's court of exchequer. But even in this court it

ulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer

of England, ch. 3. Lardner

of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and "the law of the land?" These appointments were undoubtedly made for no other reason than that the ju

and court-leet, the jurors were the judges, as he declares them to have been

ors," because they assessed, or determined the

originally meaning only a man, was of very large significance, and is not unfrequent

the barons, by which name the freeholders were sometimes anciently called; for that it

sed the courts could neither make nor read records. Their decisions w

Stuar

the independence of the people; aud having followed the Saxons into England, a

and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court; and having in

d; but the innovation which conquest introduced into t

d within the precincts of his territory, and with his followers, who sat with him as judges, he determined in all matters of debt, and of trespass to a

ith the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he pronounced, by partiality, prejudice, or interest; and that the influence h

nd themselves under a penalty to assemble at stated times; and having elected the wisest to preside over them, they judged, not only all civil and criminal matters, but of those al

rs (jurors) in the hundred court. These ranks of men were the same. The alteration which h

enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was grad

ncerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments

remission in hi duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was entitled to a proportion of

er in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appeara

ucted the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or eorldormen, related to them the laws and customs of the community. Thes

the church. After this, the alderman, or one of his assessors, made a discourse on the laws of the land, and the duties of good subjects and good citizens. When these preliminaries were over,

tions of Modern Europe, p. 447, and the note on the same page. Also by a law of Canute to this effect, In every county let there be twice a year

re experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. Sheriffs, therefore, or deputies, w

ry that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreein

e king, or, in his absence, the chief justiciary, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In small

d them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system

with the judge, or presiding officer of the district, being sworn to regard justice, an

the rich with contempt, every man was tried by his equals. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. 'I will not' (said the Earl of Corn

stone

however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. Th

a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for th

t at present concern myself, [23]) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with

nciently called; for that it is held by the freeholders who owe suit and service to th manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., 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

ni, we may remember, were the principal inhabitants of a district composed of different villages, oriinally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred courts and courts-baron. 'Princeps regiorum atque pagorum' (which we may fairly construe the lords of hundreds and manors) 'inter suos jus dicunt, controversias que minuunt.' (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundreders, or jury, who were taken o

nty court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ, called a justicies, which is a writ empowering the sheriff, for the sake of despatch, to do the samee justice in his county court as might otherwise be had at Westminster. The freeholders of the county court are the real judges in this court, and the sherif

in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and i

rls, or eorldormen" exercised any authority over the jury in the trial of causes, in the way of dictating the law to them

en the civil and criminal courts, a

ling the jury and then the conduct of the lawyers, witnesses, and court I give the following extracts, tending to show that the judges imp

causes

either side, that which the witnesses have declared, and the chief points of the evidence showed in writing, and once again putteth them in mind of the issue, and sometime giveth it them in writing, delivering to them the ev

ccount given of the

been heard, and the prisoner has said what h

ith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye

ount given of the cha

rmerly understood it to be their right and duty to judge only according to their cons

ner, * * the prisoner escapeth; but the twelve (are) not only rebuked by the judges, but also threatened of punishment; and many times commanded to appear in the Star-Chamber, or before the Privy Council for the matter. But this threatening chanceth oftener than

ial of a peer of the realm

t go upon him, but an inquest of the Lords of Parliament, and they give their voice not one for all, but each severally as they do in Parliament being (beginning) at the youngest lord. And for judge one lord sitteth, w

nquest, the jurors, both in civil and criminal cases, were sworn merely to speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their dec

ry, in either civil or criminal cases, where the

atutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if th

the common law. 1 Coke's

long as the same process shall be so hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the king is party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against the form of the statute thereof made, to disturb execution of the common law," [mark the term, "common law,") "or to menace the people that they may not pursue the law, that ye shalt cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by you

y the preamble, which declares the motive of the statute to be that "the Law of the Land, (the

ing is a copy o

Regis Anglicae in

tuariae, ad quo de

iae, antiqua et a

ngere et coronare

coronetur, faciet R

crip

sas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et praesert

ncedo et servare volo,

et Populo, pacem ex integro et con

ndeat Rex

et rectam justioiam, et discreeionem, in m

ndeat Rex

promittis per te eas esse protegendas, et ad honorem Dei

Rex,) Concedo

Charter of Liberties and the Charter of the Fo

the following remarks of Palgrave will be pertinent, in connection with the oath, as illust

ry part of his empire. Let this statute be observed, he continues, by Earl Oslac, and all the host who dwell under his government, and let it be transmitted by writ to the ealdormen of the other subordinate states. And yet, in defiance of this positive iujunction, the laws of Edgar were not accepted in Mercia until the reign of Canute the Dane. It might be said that the course so adopted may have been an exception to the general rule; but in the scanty and imperfect annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar proceedings, that this mode of enactm

nge. Consisting principally of traditionary usages and ancestorial customs, the law was upheld by opinion. The people considered their jurisprudence as a part of their inher

he power of the crown, cannot be ascertained. But the form of inserting their names in the 'Testing Clause' was retained under the Anglo-Norman reigns; and the sovereign, who submitted his Charter to the judgment of the Proceres, professed to be guided by the opinion which they gave. As the 'Pares' of the empire, the Witen

he dukes, the ealdormen, and the optimates

the ordinary terms of the compact; still more so, when he needed the support of a free burgh or city. And we may view the assembly (the Witenagemot) as partaking of the character of a political congress, in which the liegemen of the crown, or the c

which the sovereign could treat more conveniently and effectually with his vassals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a vassal denying his assent t