 Chapter 2, Part 2 of an Essay on the Trial by Jury. Whether Magna Carta allowed of any other trial than by jury? The question here arises whether Legendari did not allow of some other mode of trial than that by jury. The answer is that, at the time of Magna Carta, it is not probable, for the reasons given in the note, that Legendari authorized in criminal cases any other trial than the trial by jury. But if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in Legendari, as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to. Note, the trial by battle was one in which the accused challenged his accuser to single combat and staked the question of his guilt or innocence on the result of the duel. These trials introduced into England by the Normans, within 150 years before Magna Carta. It was not very often resorted to even by the Normans themselves, probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II, by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry than authorized as a matter of law. At any rate, it is not likely that it was included in the Legendari of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of Lexterre unless it can be shown either to have been of Saxon origin or to have been recognized by Magna Carta. The trial by Ordeal was of various kinds. In one Ordeal the accused was required to take hot iron in his hand, in another to walk blindfold among red-hot plowshares, in another to thrust his arm into boiling water, in another to be thrown with his hands and feet bound into cold water, in another to swallow the morsel of execration, in the confidence that his guilt or innocence would be miraculously made known. This mode of trial is nearly extinct at the time of Magna Carta, and it is not likely that it was included in Legendari as that term is used in that instrument. This idea is corroborated by the fact that the trial by Ordeal was specially prohibited only four years after Magna Carta. By act of parliament in III, Henry III, according to Sir Edward Cope, or rather by an order of the king and council, 3rd blockstone 345 note. I apprehend that this trial was never forced upon accused persons, but was only allowed to them as an appeal to God from the judgment of a jury. Note with a note. Holland says it appears as if the Ordeal were permitted to persons already convicted by the verdict of a jury. Second Middle Ages, 446 note. The trial by Comprogators was one in which, if the accused could bring 12 of his neighbors who would make oath that they believed in innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two different modes of trial, so nearly resembling each other as this in the trial by jury do, should prevail at the same time, and among a rude people whose judicial proceedings would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta, and there is no probability that it was included in Legend Tere. End footnote. For all practical purposes of the present day, therefore, it may be asserted that Magna Carta allows no trial ever but trial by jury, whether Magna Carta allowed sentence to be fixed otherwise than by the jury. Still another question arises on the words Legend Tere vives, whether, in cases where the question of guilt was determined by the jury, the amount of punishment may not have been fixed by Legend Tere, the common law, instead of it being fixed by the jury. I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, Lex Tere, the common law, fixed the punishment in cases where the question of guilt was tried by a jury, or indeed that it did in any other case. Doubtless certain punishments were common and usual for certain offenses, but I do not think it can be shown that the common law, the Lex Tere, which the king was sworn to maintain, required any one specific punishment or any precise amount of punishment for any one specific offense. If such a thing be claimed it must be shown, for it cannot be presumed. In fact, the contrary must be presumed because, in the nature of things, the amount of punishment proper to be inflicted in any particular case is a matter requiring the exercise of discretion at the time in order to adapt it to the moral quality of the offense, which is different in each case, varying with the mental and moral constitution of the offenders and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and valains shall not be immersed for a small crime, but according to the degree of the crime, and for a great crime in proportion to the magnitude of it, and that none of the aforesaid immersements shall be imposed or assessed but by the oaths of honest men of the neighborhood, and that earls and barons shall not be immersed but by their peers, and according to the quality of the offense. All this implies that the moral quality of the offense was to be judged of at the trial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be. I think therefore it must be conceited that, in all cases tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these silver reasons. First, it is uncertain whether the common law fixed the punishment of any offense, whatever. Second, the words periuditium parrium suborum, according to the sentence of his peers, imply that the jury fixed the sentence in some cases tried by them, and if they fixed the sentence in some cases, it must be presumed they did it in all, unless the contrary be clearly shown. Third, the express provisions of Magna Carta before averted to that no immersements or fines should be imposed upon freemen, merchants, or valains but by the oath of honest men of the neighborhood, and according to the degree of the crime, and that earls and barons should not be immersed but by their peers, and according to the quality of the offense proves that, at least, there was no common law fixing the amount of fines, or if there were, that it was to be no longer in force. And if there was no common law fixing the amount of fines, or if it was to be no longer in force, it is reasonable to infer, in the absence of all evidence to the contrary, either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose. Note. Koch attempts to show that there is a distinction between immersements and fines, admitting that immersements must be fixed by one's peers, but claiming that fines may be fixed by the government. Second, Institutes 27-8, Koch's reports 38. But there seems to have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction at the time of Koch, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict. The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and immersements as synonymous as follows. More as much as the common fine and immersement of the whole counting ire of the justices for false judgments or for other trespass is unjustly assessed by sheriffs and baritores in the shires, it is provided then, and the king wills, that from henceforth such sums shall be assessed before the justices in ire, of for their departure by the oath of knights and other honest men, etc. Third Edward I, Chapter 18, 1275. And in many other statutes passed after Magna Carta, the terms fine and immersement seem to be used indifferently in prescribing the punishment for offenses. As late as 1461, two hundred and forty-six years after Magna Carta, the Statute I, Edward IV, Chapter II, speaks of fines, ransoms, and immersements as being levied upon criminals as if they were the common punishments of offenses. Statute II and III, Philip and Mary, Chapter VIII, uses the terms fines, forfeasures, and immersements five times, 1555. Elizabeth, Chapter XIII, Section X, uses the terms fines, forfeatures, and immersements. That immersements were fines or pecuniary punishments inflicted for offenses is proved by the following statutes, all supposed to have been passed within one hundred and fifteen years after Magna Carta, which speak of immersements as a species of judgment or punishment and as being inflicted for the same offenses as other judgments. Thus one statute declares that a baker, for default in the weight of his bread, ought to be immersed or suffer the judgment of the pillory, and that a brewer, for selling ale contrary to the assays, ought to be immersed or suffer the judgment of the tumbrill, 51 Henry III, Statute VI, 1266. Among the statutes of uncertain date, but supposed to be prior to Edward III, 1326, are the following. Chapter VI provides that if a brewer break the assays, fixing the price of ale, the first, second, and third time he shall be immersed, but the fourth time he shall suffer judgment of the pillory without redemption. Chapter VII provides that a butcher that sell a swine's flesh measled, or flesh dead of the murren, or that buy a flesh of Jews and selleth the same unto Christians after he shall be convict thereof, for the first time he shall be grievously immersed, the second time he shall suffer judgment of the pillory, and the third time he shall be imprisoned and make fine, and the fourth time he shall forswear the town. Chapter X, a statute against forstalling, provides that he that is convict thereof, the first time shall be immersed, and shall lose the thing he so bought, and that according to the custom of the town, he that is convicted the second time shall have judgment of the pillory, at the third time he shall be imprisoned and make fine, the fourth time he shall abjure the town, and this judgment shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor. First rough-hid statutes 187, 188. Statutes of the realm, 203. End footnote. Under the Saxon laws, fines payable to the injured party seemed to have been the common punishments for all offenses. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king, even, was punishable by fine. When a criminal was unable to pay his fine, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, or in the case of murder, the kindred of the deceased, were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offenses. Note. First hum, appendix one. End footnote. And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all prescribed that the offender should be grievously immersed, or pay a great fine to the king, or a grievous ransom, with the alternative in some cases, perhaps understood in all, of imprisonment, management, or outlawry in case of non-payment. Note. Blackstone says, our ancient Saxon laws nominally punished theft with death, if above the value of 12 pence. But the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. But in the ninth year of Henry I, 1109, this power of redemption was taken away, and all persons guilty of larceny above the value of 12 pence were directed to be hanged, which law continues enforced to this day. Fourth Blackstone, 238. I give this statement of Blackstone, because the latter clause may seem to militate with the idea which the former clause corroborates, vis that at the time of Magna Carta, fines were the usual punishments of offenses. But I think there is no probability that a law so unreasonable in itself, unreasonable even after making all allowance for the difference in the value of money, and so contrary to immemorial custom, could or did obtain any general or speedy acquiescence among a people who cared little for the authority of kings. Maddox, writing of the period from William the Conqueror to John says, the immersements in criminal and common pleas which were want to be imposed during this first period and afterwards were of so many several sorts that it is not easy to place them under distinct heads. Let them, for method's sake, be reduced to the heads following. Immersements for or by reason of murders and manslaughter for misdemeanors, for deceasans, for recreancy, for breach of assays, for defaults, for non-appearance, for false judgment, and for not making soup or hue and cry. Two of them may be added miscellaneous immersements for trespasses of diverse kinds. First Maddox history of the Exchequer, 542, end footnote. Judging, therefore, from the special provisions in Magna Carta requiring fines or immersements to be imposed only by juries, without mentioning any other punishments, judging also from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offenses by fines, with the alternative to the criminal being imprisoned, banished, or outlawed, and exposed to private vengeance in case of non-payment, continued until the time of Magna Carta, and that in providing expressly that fines should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted, that if there were to be any others, they were to be fixed by the juries, and consequently, that nothing was left to be fixed by legion tere. But whether the common law fixed the punishment of any offenses or not is a matter of little or no practical importance at this day, because we have no idea of going back to any common law punishments of 600 years ago, if indeed there were any such at the time. It is enough for us to know, and this is what it is material for us to know, that the jury fixed the punishments in all cases unless they were fixed by the common law, that Magna Carta allowed no punishments to be prescribed by statute, that is, by the legislative power, nor in any other manner by the king or his judges in any case whatever, and consequently, that all statutes prescribing particular punishments for particular offenses or giving the king's judges any authority to fix punishments were void. If the power to fix punishments had been left in the hands of the king, it would have given him a power of oppression, which was liable to be greatly abused, which there was no occasion to leave with him, and which would have been incongruous with the whole object of this chapter of Magna Carta, which object was to take all discretionary or arbitrary power over individuals entirely out of the hands of the king and his laws and entrust it only to the common law and the peers, or jury, that is, the people. What looks that I did authorize? But here the question arises, what then did legend that I authorized the king, that is, the government, to do in the case of an accused person if it neither authorized any other trial than that by jury, nor any other punishments than those fixed by juries? The answer is that, only to the darkness of history on the point, it is probably wholly impossible at this day to state with any certainty or precision anything whatever that the legendary of Magna Carta did authorize the king, that is, the government, to do if indeed it authorized him to do anything. In the case of criminals, other than to have them tried and sentenced by their peers for common law crimes and to carry that sentence into execution, the trial by jury was a part of legendary and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence implies that they were to try the accused, otherwise they could not know what sentence or whether any sentence ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial, that is, they were to judge of the nature of the offense, of the admissibility and weight of testimony, and of everything else whatsoever, that was of the essence of the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence then were wholly in the hands of the jury. We also have sufficient evidence in the nature of the oath administered to juries in criminal cases. It was simply that they would neither convict the innocent nor acquit the guilty. This was the oath in the Saxon times and probably continued to be until Magna Carta. We also know that, in the case of conviction, the sentence of the jury was not necessarily final, that the accused had the right of appeal to the king and his judges, and to demand either a new trial or an acquittal if the trial or conviction had been against law. So much, therefore, of the legendary of Magna Carta we know with reasonable certainty. We also know that Magna Carta provides that, no bailiff, Ballyvos, shall hereafter put any man to his law, put him on trial, on his single testimony without credible witnesses brought to support it. Koch thinks that under this word, Ballyvos, in this act is comprehended every justice minister of the king, steward and bailiff, second institutes 44. And in support of this idea he quotes from a very ancient law book called The Mirror of Justices, written in the time of Edward I, within a century after Magna Carta. But whether this were really a common law principle or whether the provision grew out of that jealousy of the government which, at the time of Magna Carta, had reached its height, cannot perhaps now be determined. We also know that, by Magna Carta, immersements or fines could not be imposed to the ruin of a criminal, that in the case of a freeman, his contentment, or means of subsisting in the condition of a freeman, must be saved to him, that in the case of a merchant, his merchandise must be spared, and in the case of a valane, his wainage, or plow tackle, and carts. This also is likely to have been a principle of the common law, in as much as, in that rude age, when the means of getting employment as laborers were not what they are now, the man and his family would probably have been liable to starvation if these means of sustenance had been taken from him. We also know, generally, that at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, or crimes, according to Lex Tere, or the common law. Beyond the points now given, we hardly know anything, probably nothing with certainty as to what the legend Tere of Magna Carta did authorize in regard to crimes, and there is hardly anything extent that can give us any real light on the subject. It would seem, however, that there were, even at that day, some common law principles governing arrests, and some common law forms and rules as to holding a man for trial, by bail or imprisonment, putting him on trial, such as by indictment or complaint, summoning and impaneling jurors, et cetera, et cetera. Whatever these common law principles were, Magna Carta requires them to be observed, for Magna Carta provides for the whole proceedings. Commencing with the arrest, no freemen shall be arrested, et cetera, and ending with the execution of the sentence. And it provides that nothing shall be done by the government from beginning to end, unless according to the sentence of the peers, or legend Tere, the common law. The trial by peers was a part of legend Tere, and we have seen that the peers must necessarily have governed the whole proceedings at the trial. But all the proceedings for arresting the man and bringing him to trial must have been had before the case could come under the cognizance of the peers, and they must therefore have been governed by other rules to the discretion of the peers. We may conjecture, although we cannot perhaps know with much certainty that Lex Tere, or common law, governing these other proceedings was somewhat similar to the common law principles on the same points at the present day. Such seemed to be the opinions of Koch, who says that the phrase nisi per legim Tere means unless by due process of law. Thus he says, nisi per legim Tere, but by the law of the land. For the true sense and exposition of these words see the statute of 37 Edward III, chapter 8, where the words by the law of the land are rendered without due process of law. For there it is said, though it be contained in the great charter, that no man be taken imprisoned or put out of his freehold without process of law, that is by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law. Without being brought in to answer but by due process of the common law, no man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land. Second institutes, 50. The foregoing interpretations of the word nisi per legim Tere are co-operated by the following statutes enacted in the next century after Magna Carta, that no man from henceforth shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands against the form of the great charter and the law of the land. Statute 5, Edward III, chapter 9, 1331. Whereas it is contained in the great charter of the franchises of England that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, unless it be by the law of the land, is accorded, assented, and established, that from henceforth none shall be taken by petition or suggestion made to our lord the king or to his council, unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original of the common law, nor that none be put out of his franchises, nor of his freehold, unless he be duly brought into answer and forejudged of the same by the course of the law, and if anything be done against the same it shall be redressed and holding for none. Statute 25, Edward III, chapter 4, 1350. That no man of what estate or condition that he be shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law. Statute 28, Edward III, chapter 3, 1354. That no man be put to answer without presentment before justices or matter of record, or by due process and writ original according to the old law of the land, and if anything from henceforth be done to the contrary it shall be void in law and holding for error. Statute 42, Edward III, chapter 3, 1368. The foregoing interpretation of the words Nisi per legim terre, that is, by due process of law, including indictment, etc., has been adopted as the true one by modern writers and courts, as, for example, by Kent, Second Commentaries, 13, Story, Third Commentaries, 661, and the Supreme Court of New York, 19 Wendell, 676, 4 Hill, 146. The Fifth Amendment to the Constitution of the United States seems to have been framed on the same idea in as much as it provides that no person shall be deprived of life, liberty, or property without due process of law. Note. Koch, in his exposition on the words legim terre, gives quite in detail the principles of the common law governing arrests, and takes it for granted that the words Nisi per legim terre are applicable to arrests, as well as to the indictment, etc. Second Institutes, 5152. End footnote. Whether the word vel should be rendered by or or by and. Having thus given the meanings, or rather the applications which the words vel per legim terre will reasonably and perhaps must necessarily bear, it is proper to suggest that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, in as much as the word vel is often used for et. And the whole phrase Nisi per legim terre, which would then read, unless by the sentence of his peers, and the law of the land, would convey a more intelligible and harmonious meaning than it otherwise does. Blackstone suggests that this may be the true reading. Charters, page 41. Also, Mr. Hallam, who says, Nisi per legali euditium parium svorum vel per legim terre. Several explanations have been offered of the alternative clause, which some have referred to judgment by default, or de mur. Others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand preserved in the town clerk's office in London called Liber Costumarum et Regum Antiquorum. A various reading et per legim terre occurs. Blackstone's Charter, page 41. And the word vel is so frequently used for et that I am not wholly free from the suspicion that it was so intended in this place. The meaning will be that no person shall be deceived, et cetera, except upon a lawful cause of action found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations, but I do not offer it with much confidence. Second Hallam's Middle Ages, Chapter 8, Part 2, Page 449, and Note. Note. I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word vel by and, and not by any means for the purpose of endorsing the opinion he suggests, that legim terre authorized judgments by default or demure without the intervention of a jury. He seems to imagine that Lex Terre, the common law at the time of Magna Carta, included everything even at the practice of courts, that is, at this day called by the name of common law, whereas much of what is now called common law has grown up by usurpation since the time of Magna Carta and palpable violation of the authority of that charter. He says, certainly there are many legal procedures besides trial by jury through which a party's goods or person may be taken. Of course, there are now many such ways in which a party's goods or person are taken besides by the judgment of a jury, but the question is whether such takings are not in violation of Magna Carta. He seems to think that in cases of judgment by default or demure, there is no need of a jury and thence to infer that legim terre may not have required a jury in those cases, but this opinion is founded on the erroneous idea that juries are required only for determining contested facts and not for judging of the law. In case of default, the plaintiff must present a Primae Fatsi case before he is entitled to a judgment and Magna Carta, supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does, as much requires that this Primae Fatsi case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be. As for a demurrer, the jury must try a demurrer, having the advice and assistance of the court, of course, as much as any other matter of law arising in a case. Mr. Hallam evidently thinks there is no use for a jury, except where there is a trial, meaning thereby a contest on matters of fact. His language is that there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. Now Magna Carta says nothing of trial by jury, but only of the judgment or sentence of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment or sentence, we infer that they must try the case, because otherwise they would be incompetent and would have no moral right to give judgment. They must therefore examine the grounds, both of law and of fact, or rather try the grounds of every action whatsoever, whether it be decided on default, demurrer, or otherwise, and render their judgment or sentence thereon, before any judgment can be a legal one, on which to take a party's goods or person. In short, the principle of Magna Carta is that no judgment can be valid against a party's goods or person. Not even a judgment for cost, except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in rendering of that judgment. They are to have the assistance and advice of the judges so far as they desire them, but the judgment itself must be theirs and not the judgment of the court. As to process of attachment for contempt, it is, of course, lawful for a judge in his character of a peace officer to issue a warrant for the arrest of a man guilty of contempt as he would for the arrest of any other offender and hold him to bail, or in default of bail commit him to prison to answer for his offense before a jury. Or he may order him into custody without a warrant when the offence is included in the judge's presence. But there is no reason why a judge should have the power of punishing for contempt any more than for any other offense. And it is one of the most dangerous powers a judge can have because it gives him absolute authority in a court of justice and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt and for himself what is a contempt, the whole administration of justice or injustice if he chooses to make it so is in his hands and all the rights of jurors, witnesses, counsel, and parties are held subject to his pleasure and can be exercised only agreeably to his will. He can, of course, control the entire proceedings and consequently the decision of every cause by restraining and punishing everyone whether party, counsel, witnesses, or juror who presumes to offer anything contrary to his pleasure. This arbitrary power which has been usurped and exercised by judges to punish for contempt has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits which so universally prevail among them and which have not only cost so many clients their rights but have also cost the people so many of their liberties. If any summary punishment for contempt be ever necessary as it probably is not beyond exclusion for the time being from the courtroom which should be done not as a punishment but for self-protection and the preservation of order the judgment for it should be given by the jury. Where the trial is before a jury and not by the court for the jury and not the court are really the judges. For the same reason exclusion from the courtroom should be ordered only by the jury in cases when the trial is before a jury because they, being the real judges and triers of the cause are entitled, if anybody, to the control of the courtroom. In appeal courts where no jury sit it may be necessary not as a punishment but for self-protection and the maintenance of order that the court should exercise the power of excluding a person for the time being from the courtroom but there is no reason why they should proceed to sentence him as a criminal without his being tried by a jury. If the people wish to have their rights respected and protected in courts of justice it is manifestly of the last importance that they jealously guard the liberty of parties counsel, witnesses and jurors against all arbitrary power on the part of the court. Certainly Mr. Hallam may very well say that one may doubt whether these the several cases he has mentioned were in contemplation of the framers of Magna Carta that is as exceptions to the rule requiring that all judgments that are to be enforced against a party's goods or person be rendered by a jury. Again Mr. Hallam says if the word vell be rendered by and the meaning will be that no person shall be diseased etc except upon a lawful cause of action. This is true but it does not follow that any cause of action founded on statute only is therefore a lawful cause of action within the meaning of legem tere or the common law. Within the meaning of the legem tere of Magna Carta nothing but a common law cause of action is a lawful one. End footnote. The idea that the word vell should be rendered by and is cooperated if not absolutely confirmed in the following passage in Blackstone which has before been cited. Speaking of the trial by jury as established by Magna Carta he calls it a privilege which is couched in almost the same words with that of the Emperor Conrad 200 years or 4 No one shall lose his estate unless according to the custom of her ancestors and the judgment of his peers. Third Blackstone, 350 If the word vell be rendered by and as I think it must be at least in some cases this chapter of Magna Carta will then read that no freeman shall be arrested or punished unless according to the sentence of his peers and the law of the land. The difference between this reading and the other is important. In the one case there would be at first view some color of ground were saying that a man might be punished in either of two ways. Viz according to the sentence of his peers or according to the law of the land. In the other case it requires both the sentence of his peers and the law of the land common law to authorize his punishment. If this latter reading be adopted the provision would seem to exclude all trials except trial by jury and all causes of action except those of the common law. But I apprehend the word vell must be rendered both by and and by or that in cases of a judgment it should be rendered by and so as to require the concurrence both of the judgment of the peers and the law of the land to authorize the king to make execution upon a party's goods or person. But that in cases of arrest and imprisonment simply for the purpose of bringing a man to trial vell should be rendered by or because there can have been no judgment of a jury in such a case and the law of the land must therefore necessarily be the only guide to and restraint upon the king. If this guide and restraint were taken away the king would be invested with an arbitrary and most dangerous power in making arrests and confining to prison under pretense of an intention to bring to trial. Having thus examined the language of this chapter of Magna Carta so far as it relates to criminal cases its legal import may be stated as follows viz no freemen should be arrested or imprisoned or deprived of his free hold or his liberties or free customs or be outlawed or exiled or in any manner destroyed harmed nor will we the king proceed against him nor send anyone against him by force or arms unless according to that is an execution of the sentence of his peers and or or as the case may require the common law of England as it was at the time of Magna Carta in 1215 end of chapter 2 part 2 chapter 3 part 1 of an essay on the trial by jury this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org read by Beth Ann trial by jury by Lysander Spooner chapter 3 part 1 additional proofs of the rights and duties of jurors if any evidence extraneous to the history and language of Magna Carta were needed to prove that by that chapter which guarantees the trial by jury all was meant that has now been ascribed to it and that the legislation of the king was to be of no authority with the jury beyond that what they chose to allow it and that the 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 legislation and customs that immediately succeeded Magna Carta in the oaths that have at different times administered to jurors etc etc this evidence can be exhibited here but partially to give it all would require too much space and labor section 1 weakness of the regal authority Hughes in his preface to his translation of Horan's mirror of justices a book written in the time of Edward I 1272 to 1307 given a concise view of the laws of England generally says although in the Saxon's time I find the usual words of the acts then to have been edictum edict constituzio statue little mentioned being made of the commons yet I further find that tomb demon leges vim et begorum abueront cum fueront tutzi sed fermatzi aprobatzione cumunutatsis the laws had force and vigor only when they were not only enacted but confirmed by the approval of the community the mirror of justices itself also says chapter 1 section 3 in speaking of the first constitutions of the ancient kings many ordinances were made by many kings until the time of the king that now is Edward I the witch ordinances were abused were not used by many nor very current because they were not put in writing and certainly published mirror of justices page 6 hollum says the Franks, Lombards and Saxons seem alike to have been jealous of judicial authority and averse to surrendering what concerned private right out of the hands of his neighbors and equals first middle ages 271 the judicial authority here spoken of was the authority of the kings who at that time united the office of both legislators and judges and not of a separate department of government called the judiciary like what has existed in more modern times note Hale says the trial by jury of 12 men was the usual trial among the Normans in most suits especially in the sizes at Eurus Ultram first Hale's history of the common law 219 this was in Normandy before the conquest of England by the Normans c ditto page 218 Crab says it cannot be denied that the practice of submitting causes to the decision of 12 men was universal among all the northern tribes of Europe from the very remotest antiquity Crab's history of the English law page 32 end foot note Hume says the government of the Germans and that of all the northern nations who established themselves on the ruins of Rome was always extremely free and those fierce people accustomed to independence and in year to arms were more guided by persuasion than authority in the submission which they paid to their princes the military despotism which had taken place in the Roman Empire and which previously to the eruption of those conquerors had sunk the genius of men and destroyed every noble principal of science and virtue was unable to resist the vigorous efforts of a free people and Europe as from a new epic 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 then established however impaired by the encroachments of succeeding princes still preserve an air of independence and an administration which distinguished the European nations and if that part of the globe maintained sentiments of liberty honor equity and valor superior to the rest of mankind it owes his advantages chiefly to the seeds implanted by those generous barbarians the Saxons who subdued Britain as they enjoyed great liberty in their own country obstinately retained that invaluable possession in their new settlement and they imported into this island the same principles of independence which they had inherited from their ancestors the chieftains for such they were more than kings or princes who commanded them in those military expeditions still possessed a very limited authority and as the Saxons exterminated rather than subdued ancient inhabitants they were indeed transplanted into a new territory but preserved unaltered all their civil and military institutions 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 the Saxons will suit those founders the English government the king so far from being invested with arbitrary power was only considered as the first among the citizens his authority depended more on his personal qualities than on his station he was even so far on a level with the people that a stated price was fixed for his head the proportionate to his station and superior to that paid for the life of a subject was a sensible mark of his subordination to the community first hum appendix one Stuart says the Saxons brought along with them into Britain their own customs language and civil institutions free in Germany they renounced not their independence when they had conquered proud from victory the Saxons would they surrender their liberties to a private man would temporary leaders limited in their powers and unprovided in resources 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 Britons and then engaged in among themselves sufficiently flattered in leading the armies of their countrymen the ambition of commanders could as little suggest such designs as the liberty of the people could submit to them the conquerors of Britain retained their independence and this island sought itself again the free state in which the Roman arms had discovered it the same firmness of character and generosity of manners which in general distinguished the Germans were possessed in an eminent degree by the Saxons and while we endeavor to unfold their political institutions we must perpetually turn our 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 foundation of those ranks of men and of those civil arrangements which the barbarians everywhere established in which the English alone have had the good fortune or the spirit to preserve Stuart on the constitution of England page 59 to 61 Kings they the Germans acted as the first magistrates of the state but the authority possessed by them was narrow and limited ditto page 134 did he the king at any time relax his activity in martial order did he employ his abilities to the prejudice of his nation or 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 country point out to him his duty and if he infringed on the former or disobeyed the latter a fierce people set aside his authority his long hair was the only ornament he affected and to be foremost to attack an enemy was his chief distinction engaged in every hazardous expedition he was a stranger to repose and rivaled by half the heroes of his tribe that he could obtain but little power anxious and watchful for the public interest he felt every moment his dependence and gave proofs of his submission he attended the general assembly of his nation and was allowed the privilege to harangue at first but the arts of persuasion though known and respected by a rude people were unequally opposed to the prejudices and passions of men ditto page 135 to 6 the authority of a Saxon monarch was not more considerable the Saxons submitted not to the arbitrary rule of princes they administered an oath to their sovereigns which bound them to acknowledge the laws and to defend the rights of church and people and if they forgot this obligation they forfeited their office in both countries a price was a fine expiated their murderer as well as that of the meanest citizen and the smallest violation of ancient usage or the least stepped toward tyranny was always dangerous and often fatal to them ditto page 139 to 40 they were not allowed to impose taxes on the kingdom ditto page 146 like the german monarchs they deliberated in the general assembly of the nation but their legislative authority was not much respected and their assent was considered in 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 as their only resource and flattered a people whom they could not awe but address to persuade were a weak compensation for the absence of real power they declared war it is said and made peace in both cases however they acted as the instruments of the state and put in execution the resolutions which its councils had decreed if indeed an enemy had invaded the kingdom and its glory and its safety were concerned the great lords took the field of sovereign but had a sovereign declared war against a neighboring state without requiring their advice or if he meant to revenge my arms an insult offered to him by a subject a haughty and independent nobility refused their assistance these they considered as the quarrels of the king and not of the nation and in all such emergencies he could only be assisted by his retainers and dependents in 1947 to 8 nor must we imagine that the Saxon any more than the German monarchs seceded each other in lenial dissent or that they disposed of the crown at their pleasure note the people who in every general council or assembly could oppose and dethrone their sovereigns were in little dread of their encroachments on their liberties and kings who found sufficient employment in keeping possession of their crowns would not likely attack the more important privileges of their subjects end foot note in both countries the free election of the people filled the throne and their choice was the only rule by which princes reigned the secession 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 and the favor they naturally transferred to his descendant made them often advance him to the royal dignity but the crown of his ancestor he considered as the gift of the people and neither expected nor claimed it as a right ditto page 151 to 153 in Germany it was the business of the great to command and war and in peace they contributed justice the princes in Germany were earls in England the great contended in both countries in the number of their retainers and in that splendor and magnificence which are so alluring to a rude people and though they joined to set bounds to regal power they were often animated against each other with a fiercest hatred to a proud and impatient nobility it seemed little and insuding 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 society was continued as a privilege and the great in both countries made war of their private authority and their enemies the Saxon earls even carried their arms against their sovereigns and surrounded with retainers or secure in fortresses and castles they despised their resentment and defied their power the judges of the people they presided in both countries in courts of law this office was afterwards committed to sheriffs but even while the court was held by the lord the lord was not judge but the paris, peers only Gilbert on the court of exchequer 61 to 2 and footnote the particular districts over which they exerted their authority were marked out in Germany by the council of the state and in England their jurisdiction 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 allowed to grant pardon to criminals and to correct by their clemency the rigors of justice nor did the sovereign exorcise any authority in their lands in these his officers formed no courts and his writ was disregarded they had officers as well as the king who collected their revenues and added to their greatness and the inhabitants of their lands they distinguished by the name of subjects but to attend the general assembly of their nation was the chief prerogative of the German and Saxon princes and as they consulted the interest of their country and deliberated concerning matters of state so in the kings court of which also they were members they assisted to pronounce judgment in the complaints and appeals which were lodged in it nitto page 158 to 165 Henry says nothing can be more evident than this important truth that our Anglo-Saxon kings were not absolute monarchs but that their powers and prerogatives were limited by the laws and customs of the country our Saxon ancestors had been governed by limited 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 on this island it is not to be imagined that men whose reigning passion was a love of liberty would willingly resign it and their new sovereigns who had been their fellow soldiers had certainly no power to compel them to such resignation third Henry's history of Great Britain 358 Macintosh says the Saxon chiefs who were called kings originally acquired power by the same natural causes which have gradually and everywhere raised a few men above their fellows they were doubtless more experienced, more skillful and more brave or more beautiful than those who follow them a king was powerful and more by the luster of his arms and the obvious necessity of obedience his influence and 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 suppose that the northern Germans who had conquered England had so far changed their characteristic habits from the age of Tacitus that the victors became slaves and that their generals were converted into tyrants Macintosh's history of England Chapter 2 45 Lardner's Cabinet Encyclopedia 73-4 Wrapping on his discourse on the origin and nature of the English Constitution says there are but two things the Saxons did not think proper to trust their kings with for being of like passions with other men they might very possibly abuse them namely the power of changing the laws enacted by consent of king and people and the power of raising taxes at pleasure from these two articles sprung numberless branches concerning the liberty and property of the subject which the king cannot touch without 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 aforementioned 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 liberties but when kings arose as some there were they aimed at absolute power by changing the old and making new laws at pleasure by imposing illegal taxes on the people this excellent government being in a manner dissolved by these destructive measures confusion in civil wars ensued which some very wrongfully ascribed to the fickle and restless temper of the English reference preface to his history of England says that among the Saxons the royal authority was weak second middle ages 403 but although the king himself had so little authority that it cannot be supposed for a moment that his laws were regarded as imperative by the people it has nevertheless been claimed in modern times by some who seem determined to find or make a precedent for the present legislative authority of parliament that his laws were authoritative when assented to by the Wittnugge moat or assembly of wise men that is the bishops and barons but this assembly evidently had no legislative 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 a saw fit to attend did so if they were agreed upon what ought to be done the king would pass the 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 and the recommendation of the council and the people no doubt were much more likely to accept a law of the king if it had been approved by this council than if it had not but it was still only a law of the king which they obeyed or disregarded according to their own notions of expediency the numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever to impose laws upon the people against their will Lingard says it was necessary that the king should obtain the assent of these the members of the vitina gamote to all legislative enactments because without their acquiescence and support it was impossible to carry them into execution to many charters laws we have the signatures of the witton they seldom exceed 30 in number they never amount to 60 1st Lingard 486 it is ridiculous to suppose that the assent of such an assembly gave any authority to the laws of the king or had any influence in securing obedience to them otherwise than by way of persuasion if this body had had any real legislative authority such as as according to legislative bodies of the present day they would have made themselves at once the most conspicuous portion of the government and would have left behind them abundant evidence of their power instead of the evidence simply of their assent to a few laws passed by the king more than this if this body had had any real legislative authority they would have constituted an aristocracy having in conjunction with the king absolute power over the people assembling voluntarily merely on the 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 government the government of an aristocracy merely and the people slaves of course and this would necessarily have been the picture that history would have given us of the Engel Saxon government of Engel Saxon liberty the fact that the people had no representation in this assembly and the further fact that through their juries alone they nevertheless maintained that noble freedom the very tradition of which after the substance of the thing itself has ceased to exist has constituted the greatest pride and glory of the nation to this day prove that this assembly exercised no authority which juries of the people acknowledged except at their own discretion note the opinion expressed in the text that the Witten had no legislative authority is cooperated by the following authorities from the fact that the new laws passed by the king and the Witten were laid before the shire moat county court we should be almost justified in the inference that a second sanction was necessary before they could have the effect of law in that particular county Dunham's Middle Ages section 2, b2 chapter 1 57, Larger's cabinet psychopedia, 53 the second sanction required to give the legislation of the king and Witten the effect of law was undoubtedly I think as a general thing the sanction of a jury 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 resorted to for obtaining the sanction of the people to the laws of the Witten was it seems to persuade the people themselves to swear to observe them Macintosh says the preamble of the laws of the Witten speak of the infinite number of liegemen who attended as only applauding the measures of the assembly but this applause was neither so unimportant to the success of the measures nor so precisely distinguished from a share in legislation as those who read history with a modern eye might imagine it appears that under Athelstan experience 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 emotes or county meetings where they proclaimed the laws made by the king and his counselors which being acknowledged and sworn to at these folk motes meetings of the people became by their assent completely binding on the whole nation Macintosh's History of England Chapter 2 45 Lardner's Cabinet Cyclopedia 75 There is not a more palpable truth in the history of English Saxon government than that stated in the introduction of Gilbert's History of the Common Pleas Page 31 viz that the county and hundred courts should have been added the other courts in which juries sat the courts barren and court lead 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 intrinsic merits according to their own ideas of justice irrespective of the laws agreed upon by kings, priests and barons and whatever principles they uniformly or perhaps generally enforced and none others became practically the law of the land as matter of course note Holland says it was however to the county court that an English freeman chiefly looked for the maintenance of his civil rights 2nd middle ages 392 also this the county court was the great constitutional judicature in all questions of civil rights ditto 395 also the liberties of these Anglo-Saxon things were chiefly secured next to their swords and free spirits by the inesimal right of deciding criminal suits in their own county courts ditto 399 and footnote finally on this point conclusive proof that the legislation of the king was of little or no authority is found in the fact that the kings enacted so few laws if their laws had been recieved as authoritative in the manner that legislative enactments are at this day they would have been making laws continually yet the codes of the most celebrated kings are very small and were little more than compilations of immemorial customs the code of alfred would not fill 12 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 principle of authority the code of edward the confessor would not fill 20 pages of the statute book of massachusetts and says blackstone seems to have been no more than a new addition or fresh promulgation of alfred's code or doom book with such additions and improvements as the experience of a century and a half suggested first blackstone 166 note alfred may in one sense be called the founder of these laws the saxon for until his time they were an unwritten code but he expressly says that i alfred collected the good laws of our forefathers into one code and also i wrote them down which is a decisive fact in the history of our laws well worth noting introduction to Gilbert's history of the common pleas page 2 and note kellan says let us consult our own lawyers and historians and they will tell us that alfred edgert and edward the confessor were the great compilers and restorers of the english laws kellan's preliminary discourse to the laws of william the conqueror page 12 appendix to kellan's dictionary of the norman language he alfred also like another theodosis collected the various customs that he found dispersed in the kingdom and reduced and digested them into one uniform system or code of laws in his sombech or liber euditialis judicial book this he compiled for the use of the court baron hundred and county court the court elite and the sheriffs torn tribunals which he established for the trial of all causes civil and criminal in the very districts wherein the complaints arose fourth blackstone 411 alfred himself says hence i king alfred gathered these together and commanded many of those to be written down which our forefathers observed those which i liked and those which i did not like by the advice of my witton i threw aside for i durst not ventured to set down in writing over many 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 kinsmen or of atha king of mersha or of ethelbert was the first of the english kings who received baptism those which appeared to me the justice i have collected and abandoned the others then i alfred king of the west saxons showed these to all my witton and they said that they were all willing to observe them laws of alfred translated by our price prefixed macintosh's history of england vol 1 lardner's cabinet psychopedia king edward projected and begun with his grandson king edward the confessor afterwards completed this one uniform digest or bodies of law to be observed throughout the whole kingdom being probably no more than a revival of king alfred's code with some improvements suggested by necessity and experience particularly the incorporating of some of the british or rather mershan customs and also such of the danish customs as are reasonable and approved into the west saxon law which was still the groundwork of the whole and this appears to be the best supported and most plausible conjecture for certainty is not to be expected though the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the common law as extended in its authority universally over all the realm and which is doubtless of saxon parentage fourth blackstone 412 by the lex terre and lex reine is understood the laws of edward the confessor confirmed and enlarged as they were by william the conqueror and this constitution or code of laws is what even to this day are called the common law of the land introduction to gilbert's history of the common please page 22 end foot note the code of william the conqueror note not the conqueror of the english people as the friends of liberty maintain but only of herald the usurper see hell's history of the common law chapter 5 end foot note would fill less than 7 pages of the statute book of massachusetts and most of the laws contained in it are taken from the laws of the preceding kings and especially of edward the confessor whose laws william swore to observe but few of his own being added the codes of the other saxon and norman kings were as a general rule less voluminous even than those that have been named and probably did not exceed them in originality note for all these codes see wilkins laws of the anglo saxons being regulations adapted to the existing institutions the anglo saxon statutes are concise and technical alluding to the law which was then living and in vigor rather than defining it the same clauses and chapters are often repeated word for word in the statutes of subsequent kings showing that enactments which bear the appearance of novelty are merely declaratory consequently the appearance of a law seemingly for the first time is by no means to be considered as a proof that the matter which it contains is new nor can we trace the progress of 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 positive proof cannot be attained of the commencement of any institution because the first written law relating to it may possibly be merely confirmatory or declaratory neither can the non-existence of any institution be inferred from the absence of direct evidence written laws were modified and controlled by customs of which no trace can be discovered until after the lapse of centuries although those usages must have been in constant vigor during the long interval of silence first palgares rise in progress of the english commonwealth 56 9 end footnote references from william the conqueror to john i think without exception bound themselves and in order to maintain their thrones were obliged to bind themselves to observe the ancient laws and customs in other words the lex tere or common law of the kingdom even magnacarta contains hardly anything other than this same common law for its observance how is this abstinence from legislation on the part of the ancient kings to be accounted for except on the supposition that the people would accept and juries enforce few or no new laws enacted by their kings plainly it can be accounted for in no other 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 nomus legis angliai mutari we will that the laws of england be not changed was a determined principle with the anglo saxons from which they seldom departed up to the time of magnacarta and indeed until long after note the customs now practiced in england are for the most part the same as the anglo saxons brought with them from germany rapton's dissertation on the government of the anglo saxons vol. 2 oxford edition page 138 c kellum's discourse before named end footnote end of chapter 3 part 1 chapter 3 part 2 of an essay on the trial by jury this is a liber vox recording all liber vox recordings are in the public domain for more information or to volunteer please visit libervox.org read by beth an trial by jury by lyce under spooner chapter 3 part 2 section 2 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 a 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 that we have of the courts in which the 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 third 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 note Holland says the county of Sussex contains that of Dorset 43 while Yorkshire has only 26 and Lungshire but 6 Second Middle Ages 391 end footnote the court bearing was the court for a single manner and there was a court for every manner in the kingdom all these courts were held in 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 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 note accepting also matters pertaining to the collection of the revenue which were determined in the king's court of exchequer but even in this court it was the law that none be immersed but by his peers mirror of justice 49 end footnote 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 the principles of law by which the juries determined causes were of the 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 note for the english laws although not written may as it should seem and that without any absurdity be termed laws since this itself is law that which places the prince has the force of law I mean those laws which it is evident were promulgated 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 more authority upon laws themselves than either the equity of the persons constituting or the reason of those framing them Glynville's preface page 38 Glynville was chief justice of Henry II 1180 2nd Turner's history of the English Saxons 280 end of footnote 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 McIntosh says the first act of the House of Commons composed and recorded in the English tongue was in 1415 two centuries after Magna Carta note McIntosh's history of England chapter 3 Lardner's cabinet psychopedia 266 end footnote up to this time and for some 70 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 and 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 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 note if the laws of the king were recede as authoritative by the juries what occasion was there for his appointing special commissioners for the trial of offenses without the intervention 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 juries were not sufficiently subservient but judged according to their own notions of right instead of the will of the king whether the latter were expressed in his statutes or by his judges and footnote that said towards 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 everyone so judged his neighbor by such judgment as a man could not elsewhere recede in the like cases until such times as the customs of the realm were put in writing and certainly published and although a free man 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 court if they were not specially exempted to do such suits and there judged their neighbors mirror of justices page seven and eight Gilbert in his treatise on the constitution of England says in the county courts if the debt was above 40 shillings they're issued a Eustizias 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 et cetera et cetera 456 all the ancient writs given in Glenville for summoning jurors indicate that the jurors judged of everything unconscious only the writs are in this form summon 12 free and legal men or sometimes 12 knights to be in court prepared upon their oaths to declare where the A or B have the greater right to the land or other thing in question see writs in Beams Glenville page 54 to 70 and 233 to 306 to 332 Crab speaking of the time of Henry I 1100 to 1135 recognizes the fact that the jurors were the judges he says by one law everyone 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 implanted after the manner of the Danish Nimbus 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 grabs history of the English law page 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 lead before the lord of the manors steward note of course Mr. Reeve means to be understood that in the hundred court the court lead the jurors were the judges as he declares them to have been in the county court otherwise the bailiff or steward must have been judge end footnote out of the county court was derived an inferior court of several 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 is granted or his steward presided instead of the sheriff first Reeve's history of the English law page 7 chief baron gilbert says besides the tenants of the king which held per peronium by the right of baron and did suit and service served as judges at his own court and the burgers and tenants an ancient domain that did suit and service served as jurors or judges in their own court in person and in the kings 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 estiates 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 service jurors before the king's bailiff because it was necessary that the sheriff or bailiff of the king should have suitors jurors at the county court that the business might be dispatched these suitors are the paris peers of the county court and indeed the judges of it as the paris peers were the judges in every court baron and therefore the king's bailiff having a court before him there must be paris or judges for the sheriff himself is not a judge and though the style of the court is curia, prima, comitas ec miltat, vicum comitat, préd, tent aiput, bi et cetera first court of the county ec night, sheriff of the fore said county held it be et cetera by which it appears that the court was a sheriff yet by the old feudal constitutions the lord was not judge but the paris peers only so that even in the eustizias which was a commission to the sheriff to hold plea of more than the law by the natural jurisdiction of the county court the paris, 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 chapter 5 page 61 to 2 it is a distinguishing feature of the feudal system to make civil jurisdiction necessary and criminal jurisdiction ordinarily co- extensive with tenure and accordingly there is inseparably incident to every manner a court bearing curia baronium being a court in which the freeholders of the manner are the sold judges but in which the lord by himself or more commonly by a steward presides political dictionary word manner 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 ancient tenets par baronium attending parliament the suitors are the judges of the court both for law and for fact and the share for the under share from 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 courtis 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 etc it was next used for those who stood in immediate connection with the lord and master the paris curia peers of the court the limited portion of the general assembly to which was entrusted the pronouncing of judgment etc encyclopedia americana word court in court barons or county courts the steward was not judge but the paris peers jurors nor was the speaker in the house of lords judge with the barons only Gilbert on the court of ex-checker chapter 3 page 42 krab speaking of the saxon times says the sheriff resided at the hundred court and sometimes sat in the place of the older man Earl in the county court krab 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 300 years after magnacarta in describing the difference between the civil law and english law says eudex is of us called judge but our fashion is so diverse 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 chapter 9 page 53 edition of 1621 court leit that the leit 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 mansfeld states that this court was co-eval with the establishment of the saxons here and its activity marked very visibly both among the saxons and danes the leit 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 prophets consisting of the assoing pence fines and emersements it is held before the steward or was in the ancient times before the bailiff of the lord tomlin's law dictionary word court leit of course the jury were the judges in this court were 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 40 shillings there issued a eustice commission to the sheriff to enable him to hold such plea where their suitors are judges of the law and fact gilbert's history of the common police introduction page 19 this position that the matter of law was decided by the king's justices but the matter of fact by the paris is wholly incompatible with the common law for the ureta jury were the all judges both of the law and the fact gilbert's history of the common police page 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 paris be even challenged paris qui ordinarium juristizionum habent recusari non pasunt 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 is that they be liberos at legales homines de uzzoneto free and lingual men of the neighborhood of the place laid in the declaration etc etc ditto page 93 end of chapter 3 part 2