An Essay on the Trial By Jury

gation upon the consciences of the jurors, any further than the laws were seen by them to be just; that very few laws were enacted applicable to civil suits; that when a new law was enacted, the natur

rant and untrustworthy to instruct them authoritatively; that the jurors must therefore necessarily have judged for themselves of the whole case; a

of all legislation. The modern oath, in England, viz., that they "will well and truly try the issue between the parties, and a true verdict give, according to the eviden

ve free and legal men, (or sometimes twelve knights,) to be in court, prepared upon their oaths to declare whether A or B ha

be enforced against an unwilling debtor, if he could neither be "arrested, imprisoned, nor deprived of his freehold," and if the king could neither "proceed against him, nor send any one against him, by force or arms" ? Yet Magna Carta as much forbids that any of these things shall be done against

was a party, to the determination of the peers, or of twelve men, acting by no rules but their own consciences. These examples at least show that there is

ut the legal judgment of their peers, they shall be immediately restored to them. And if any dispute aris

in the same form and manner as we shall do to the rest of our barons of England; unless by the engagements, which his father William, late

eepers, shall forthwith be inquired into in each county, by twelve knights of the same shire, chosen by the most creditable persons

individuals may be deprived, of their liberty, and robbed of their property, by judgments rendered in civil suits, as well as in criminal ones. If the laws of the king were imperative upon a jury in civil suits, the king might enact laws giving one man's property to another, or confiscating it to the king himself, and authorizing ci

suit, in which the jury would be bound to hold the same law invalid. So that, if an unjust law were binding upon a jury in civil suits, a defendant, by resisting the execution of the judgment, could, in effect, convert the civil action into a criminal one, in which the ju

ment comes to be attempted that is, when the sheriff comes to take the property for the purpose of delivering it to B A acting, as he has a natural right to do, in defence of his property, resists and kills the sheriff. He is thereupon indicted for murder. On this trial his plea is, that in killing the sheriff, he was simply exercising his natural right of defending his property against an unjust law. The jury, not being bound, in a crimina

d enforce its civil judgments, unless it could support them by criminal ones, in case of resistance. A jury must therefore be paramount to legislation in both civil and criminal cases, or in neithe

ad, as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them) would have been necessitated at least in tho

he king,) being appointed by it, paid by it, and removable by it at pleasure, would be mere tools of that power, and would hold all its legislation obligatory, whether it were just or unjust. This was one reason, doubtless, why Magna Carta made juries, in civil suits, paramount to all instructions of the king's judges. The reason was precisely the same as that for making them paramount t

he king, and knowing that the king would, of course, tolerate no judges who were not subservient to his will, they necessarily inferred; that the king's judges would be as c

e s

egisters of the royal revenue, and remain as monuments of the perpetual iniquity and tyranny of the times. The barons of the exchequer, for instance, the first nobility of the kingdom, were not ashamed to insert, as an article in their records, that the county of Norfolk paid a sum that they might be fairly dealt with; the borough of Yarmouth, that the king's charters, which they have for their liberties, might not be violated; Richard, son of Gilbert, for the king's helping him to recover his debt from the Jews; * * Serio, son of Terlavaston, that he might be permitted to make his def

and twelve marks, that she might recover that sum against James de Fughleston; Solomon, the Jew, engaged to pay one mark out of every seven that he should recover against Hugh de la Hose; Nicholas Morrel promised to pay sixty pounds, that the

r, of that age, gives a pathetic description of the venality of justice, and the oppressions of the poor, * * and he scruples not to com

te

the litigants they pleased; to send contradictory orders; and take large sums of money from each; to respite proceedings; to direct sentences; and the judges, acting by their commission, co

am s

(paid fines) to have right done them; to sue in a certain court; to implead a certain person; to have restitution of land which they had recovered at law. From the sale of that justice which every citizen has a right to demand, it was an easy trans

rovision of Magna Ca

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denied, nor delayed, stamps with infamy that government

the times of Henry

has made the king a present to accelerate, and the other by a more valuable offer has succeeded in retarding a decision. * * But besides the fines pai

Anesty, bestowed in recovering the land of William, my uncle,"

een one mark of gold." The result is thus stated. "At last, thanks to our lord the king, and by judgment of his co

ve als

ell aware that there would be danger in the discussion of the dispute in public, or before the Folkmoot, (people's meeting, or county court); or, in other words, that the Thanes of the shire would do their best to give a judgment in favor of their compeer. The plea being removed into the Royal Court, the abbot acted with that prudence which so often calls forth the praises of the monastic scribe. He gladly emptied twenty marks of gold into the sleeve o

he county, shall sit with the king's judges, in the Common Pleas, in jury trials, (assizes,) on the trial of three certain kinds of suits, that were among the most important that were tried at all. The reason for this provi

Darrein Presentment, shall be taken but in their proper counties, and after this manner: We, or, if we should be out of our realm, our chief justiciary, shall send two jnsticiaries through

te the law to the juries, when the people would not even suffer them to sit alone in

was introduced by the Norman kings Under the Saxons it was not so. No officer of the k

e same suits, affords very strong, not to say conclusive, proof, that juries judged of the law in civil suits

nights and freeholders shall remain, of those who shall have been present on said day,

terwards, by the four knights before mentioned, and the freeholders, that is, the jury. It must be admitted, of course, that the juries, in these cases, ju

the common law, and therefore void, is nevertheless good evidence, inasmuch as it contains an acknowledgment, on the part of

eisin, or not, so that they do show the truth of the deed, and seek aid of the justices. But if they will, of their own accord,

to absolve them from the duty. And the attempt of the king thus to absolve them, and authorize them to throw the case into the hands of the judges for decision, was simply an illegal and unconstitutional attempt to overturn the "law of the land," which he was sworn to maintain, and gather power into his own hands, through his judges. He had just as much constitutional power to enact that the jurors should not be compelled to declare the facts, but that they might leave them to be deter

s, or boundaries, betw

by means of the judgments of juries, if they could have got juries to acknowledge the authority of their laws,

to give details as to these robberies; bu

, are continually in the mouths of the historians. ' God sees the wretched people,' says the Saxon Chronicler, 'most unjustly oppressed; first they are despoiled of

ons usual to these Norman kings were not only redoubled, b

f lay and spiritual persons, all murmuring, bu

tortions of those times, th

ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of 66,000 marks exacted for their liberty. At another ti

the kings may be found in Hume's History, Appendix 2

spoliations he had committed upon individuals "without the legal jud

ntly very weak and short sighted in John to expose himself to such charges, if his laws were really obligatory upon the peers; because, in that case, he could have enacted any laws that w

ng upon the peers; because he could then have made the same spoliations as well with the judgment of the peers as without it. Taking the judgment of the peers in the ma

he same would be true in criminal mature, if

tyranny the kings would som

father Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their

entirely forgiven," &c;.; and the provision, in chapter 61, that the king "will cause full justice to be administered" in regard to "all those things, of which any person has, wit

lish, if his laws were binding upon juries; because, in that ease, he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king had been binding upon juries, there is no robbery, vengeance, or

of Henry III., this is

e must be other persons, chosen by the people, to sit with them; the object being to prevent the jury's being deceived by the justices. I think we must also infer that the king's justices could sit only in th

elected in the full folcmote, (people's meeting)." Introd

(the county court,) twice a year, and there officiate as the county judge in expou

n, who was chosen, and not imposed

se times were generally more addicted to arms than to letters, they were but ill-qualified for the administ

ead-boroughs were; nor did King Alfred (as this author suggests) deprive the people of the election of those last menti

lord, but elected by the freeholders of the

blishing an hereditary succession to the crown. But that (the election) of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeve

ple, according to ancient usage." St. West. 1